The living instrument doctrine is a method of

judicial interpretation Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary. This is an important issue in some common law jurisdictions such as the United St ...

developed and used by the

European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...

to interpret the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...

in light of present-day conditions. The doctrine was first articulated in '' Tyrer v. United Kingdom'' (1978), and has led both to different rulings on certain issues as well as evaluating the human rights implications of new technologies.

Origin and development

The living instrument doctrine has been used from the beginning by the

. It was first articulated during the case '' Tyrer v. United Kingdom'' (1978). In ''Tyrer'' the court rejected the argument that because people in the

Isle of Man The Isle of Man ( , also ), or Mann ( ), is a self-governing British Crown Dependency in the Irish Sea, between Great Britain and Ireland. As head of state, Charles III holds the title Lord of Mann and is represented by a Lieutenant Govern ...

approved of

judicial corporal punishment Judicial corporal punishment is the infliction of corporal punishment as a result of a sentence imposed on an offender by a Court, court of law, including Flagellation, flagellation (also called flogging or whipping), forced Amputation, amputat ...

, such could not be a violation of

Article 3 of the European Convention on Human Rights Article often refers to: * Article (grammar), a grammatical element used to indicate definiteness or indefiniteness * Article (publishing), a piece of nonfictional prose that is an independent part of a publication Article(s) may also refer to: ...

. The judgement stated that "The Court must also recall that the Convention is a living instrument which, as the

Commission In-Commission or commissioning may refer to: Business and contracting * Commission (remuneration), a form of payment to an agent for services rendered ** Commission (art), the purchase or the creation of a piece of art most often on behalf of anot ...

rightly stressed, must be interpreted in the light of present-day conditions." It went on to say that the verdict was being made in the context of the outlawing of corporal punishment in other European countries. Other early cases which helped develop the living instrument doctrine include '' Marckx v. Belgium'' (1979), in which the court decided that it was no longer justified to treat

illegitimate children Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as ''b ...

differently, and ''

Dudgeon v United Kingdom ''Dudgeon v United Kingdom'' (1981) was a European Court of Human Rights (ECtHR) case, which held that Section 11 of the Criminal Law Amendment Act 1885, which criminalised male homosexual acts in England, Wales and Northern Ireland, breached ...

'' (1981), in which the court judged "as compared with the era when that legislation was enacted, there is now a better understanding, and in consequence, an increased tolerance of homosexual behaviour to the extent that it is no longer considered to be necessary or appropriate" to criminalize homosexuality. According to law scholar George Letsas, these cases have a pattern: a case involving a moral issue comes to the Court, the Court notes the importance of the moral aspect in the member state, but also considers developments in other Council of Europe states. In most cases, this resulted in a violation of a Convention right being found. In '' Mamatkulov and Askarov v. Turkey'' (2005), the court stated that it "upholds individual rights as practical and effective, rather than theoretical and illusory protections". The judgement for '' Demir and Baykara v. Turkey'' (2008) stated that the living instrument doctrine, in addition to being in light of present-day conditions, also meant interpretation "in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights".

Effects

Because the living instrument doctrine prioritizes whether there is a European consensus in a certain interpretation of a Convention obligation, it is closely related to the Convention interpretation concepts of autonomous concepts and

margin of appreciation The margin of appreciation (or margin of state discretion) is a legal doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights to judge whether a state party to the European Convention o ...

. In cases where the Court did not find a European consensus on a particular issue, such as '' Sheffield and Horsham v United Kingdom'' (1998) on the subject of sex-reassignment surgery, it was much less likely to find a violation because it considered that the state had a wide margin of appreciation on how to treat a given issue. In the early 2000s, the Court loosened its reliance on European consensus and began to consider a trend in member states' laws sufficient to find that present-day conditions had changed with regard to a particular issue according to the living instrument doctrine. Areas in which the court considers that present-day conditions have evolved include

gender equality Gender equality, also known as sexual equality, gender egalitarianism, or equality of the sexes, is the state of equal ease of access to resources and opportunities regardless of gender, including economic participation and decision-making, an ...

, environmental regulation, and

transgender rights The legal status of transgender people varies greatly around the world. Some countries have enacted laws protecting the rights of transgender individuals, but others have criminalized their gender identity or expression. In many cases, transg ...

. Letsas also finds differences in how

blasphemy Blasphemy refers to an insult that shows contempt, disrespect or lack of Reverence (emotion), reverence concerning a deity, an object considered sacred, or something considered Sanctity of life, inviolable. Some religions, especially Abrahamic o ...

, sexual advice for adolescents, and

obscenity An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin , , "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral ...

are treated by the Court. The Court has given increased scrutiny to differential treatment exclusively based on

ethnicity An ethnicity or ethnic group is a group of people with shared attributes, which they Collective consciousness, collectively believe to have, and long-term endogamy. Ethnicities share attributes like language, culture, common sets of ancestry, ...

, gender, religion, or

sexual orientation Sexual orientation is an enduring personal pattern of romantic attraction or sexual attraction (or a combination of these) to persons of the opposite sex or gender, the same sex or gender, or to both sexes or more than one gender. Patterns ar ...

, which it is now more likely to label unjustified

discrimination Discrimination is the process of making unfair or prejudicial distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong, such as race, gender, age, class, religion, or sex ...

. In addition, with the proliferation of alternative family arrangements, the court has expanded its definition of family under Article 8, for example to

same-sex couples A same-sex relationship is a romantic or sexual relationship between people of the same sex. ''Same-sex marriage'' refers to the institutionalized recognition of such relationships in the form of a marriage; civil unions may exist in countries ...

, as in '' Oliari and Others v Italy'' (2015). Because of the living instrument doctrine, the Court has ruled on the human rights implications of technologies that did not exist when the Convention was drafted, on issues such as

biotechnology Biotechnology is a multidisciplinary field that involves the integration of natural sciences and Engineering Science, engineering sciences in order to achieve the application of organisms and parts thereof for products and services. Specialists ...

internet freedom Internet censorship is the legal censorship, control or suppression of what can be accessed, published, or viewed on the Internet. Censorship is most often applied to specific Network domain, internet domains (such as ''Wikipedia.org'', for exam ...

personal data Personal data, also known as personal information or personally identifiable information (PII), is any information related to an identifiable person. The abbreviation PII is widely used in the United States, but the phrase it abbreviates has fou ...

mass surveillance Mass surveillance is the intricate surveillance of an entire or a substantial fraction of a population in order to monitor that group of citizens. The surveillance is often carried out by Local government, local and federal governments or intell ...

, and

surrogacy Surrogacy is an arrangement whereby a woman gets pregnant and gives birth on behalf of another person or couple who will become the child's legal parents after birth. People pursue surrogacy for a variety of reasons such as infertility, danger ...

Reception

Supporters of the doctrine note that it is not prohibited by the treaty itself to take an expansive and/or evolutive interpretation of the rights enumerated therein. Stefan Thiel argues that the living instrument doctrine is allowed both by the Convention and relevant international law. Dutch judge

Marc Bossuyt Marc, Baron Bossuyt (born 9 January 1944 in Ghent) is a member of the Permanent Court of Arbitration in The Hague and a former judge and president at the Belgian Constitutional Court. Bossuyt obtained a Dr.iur (LLM) at the University of Ghent in ...

stated in a speech that the living instrument doctrine is "a

Trojan horse In Greek mythology, the Trojan Horse () was a wooden horse said to have been used by the Greeks during the Trojan War to enter the city of Troy and win the war. The Trojan Horse is not mentioned in Homer, Homer's ''Iliad'', with the poem ending ...

for

judicial activism Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...

, giving Strasbourg judges the liberty to find what they want to find in the interstices of Convention rights". Other critics argue that the state parties should only be bound by the original obligations as understood in 1950. Sonja Grover argues that insisting on a

originalist Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism a ...

and/or conservative

textualist Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...

understanding of Convention rights can also be considered a form of judicial activism which denies individuals the full exercise of their rights. According to Letsas, the living instrument doctrine is not activist because "contracting states have given the Court jurisdiction to protect whatever human rights people ''in fact'' have, and not what human rights domestic authorities or public opinion ''think'' people have". Accordingly, the Court should not give any more weight to

majoritarian Majoritarianism is a political philosophy or ideology with an agenda asserting that a majority, whether based on a religion, language, social class, or other category of the population, is entitled to a certain degree of primacy in society, and ...

preferences across the entire Council of Europe area than within a particular state, and is justified in raising the threshold of human rights protection, despite the blowback it has received from certain rulings.

Other uses

The living instrument doctrine has also been used by the

United Nations Human Rights Committee The United Nations Human Rights Committee is a treaty body composed of 18 experts, established by a 1966 human rights treaty, the International Covenant on Civil and Political Rights (ICCPR). The Committee meets for three four-week sessions per yea ...

and has been proposed with regards to the

Charter of Fundamental Rights of the European Union The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly procla ...

References

External links

31 January 2020 official dialogue
The European Convention on Human Rights: living instrument at 70 Legal interpretation European Court of Human Rights