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Title: State obligations to prevent breaches of Article 3 by non-state actors
Author: Fahy, Patrick
ISNI:       0000 0004 5369 6734
Awarding Body: Queen's University Belfast
Current Institution: Queen's University Belfast
Date of Award: 2014
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The thesis examines an area of human rights law where the author contends there is serious doctrinal imprecision and decisional inconsistency in the jurisprudence of the European Court of Human Rights; in the principles and practice applied in relation to the State's obligations under Article 3 of the European Convention on Human Rights to provide operational protection for At1icle 3 rights. The thesis relates this problem back to the failure of the European Court of Human Rights in the case of Osman v United Kingdom to sufficiently define the relationship between the notion of effectiveness and the concept of reasonableness, both of which elements were described in the case as being applicable in interpretation of the State's obligations. In consequence of this failure, and for other reasons peculiar to United Kingdom jurisprudence, the thesis suggests that United Kingdom courts when charged with independently interpreting the requirements of At1icle 3 have consistently done so on the basis that the concept of reasonableness stands alone, and denotes a leeway or discretion to the State in the performance of its established obligations. It argues that this approach disregards the linkage expressly made between reasonableness and effectiveness in Osman and in other Cout1 jurisprudence on the issue. The thesis contends that the sufficiency of the State's performance of its At1icle 3 obligations must be judged on the basis of its effectiveness, such judgment to be carried out applying the concept of reasonableness. In this way, the unqualified status of the At1icle 3 rights can be upheld, without placing unreasonable burdens on the State. To this end, the thesis proposes that the Cout1 should adopt a two-stage process in its examination of claims to the benefit of Article 3 rights to operational protection; through which the issue of establishment of the rights and obligations is clearly separated from the issue of the content of established rights. Only in this way, the thesis argues, can the principles applicable to each of these areas be identified and properly applied. The thesis rules out any role for the notion of a discretion which would prevent the Court examining substantively the quality of the State's performance of its obligation.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available