Volume 23 (2017)

Volume 23 (2017) / Issue 3

Stefan Theil, 'Is the ‘Living Instrument’ Approach of the European Court of Human Rights Compatible with the ECHR and International Law?' (2017) 23 European Public Law, Issue 3, pp. 587–614

Keywords:
ECHR; Living Instrument; Human Rights; International Law; VCLT; Legal Interpretation; Travaux Préparatoire; Original Intent; State Sovereignty

Abstract

The article offers a rebuttal of prominent criticisms directed against the ‘living instrument’ interpretative approach of the European Court of Human Rights. The article initially introduces the basic application of the interpretative approach as adopted by the Court and then considers whether it is compatible with the Convention and broader International Law. The article argues that the Preamble, subsequent State practice and preparatory work offer inconclusive evidence to both critics and supporters of the ‘living instrument’. However, the interpretative approach can claim democratic endorsement through States, while arguments based on the necessity to consider domestic interpretations of the European Convention on Human Rights (ECHR) cannot support a restrictive interpretation as a matter of International Law. The ‘living instrument’ further appears compatible in the context of state sovereignty in International Law, and broader institutional concerns with the role of judges in the adjudication of rights. Ultimately, the ‘living instrument’ interpretative approach therefore appears legal under the Convention and relevant International Law.

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ISSN: 1354-3725
ID: EURO2017033