The ECHR as a Living Instrument: Its Meaning and its Legitimacy
24 Pages Posted: 15 Mar 2012
Date Written: March 14, 2012
The idea that the ECHR is a living instrument that must be interpreted according to present-day conditions has been a central feature of Strasbourg’s case law from its very early days. This paper begins by providing a general account of the way in which the European Court of Human Rights has understood and used evolutive interpretation, by looking at relevant case law and how it has developed over time (sections 2 and 3). It then moves on to discuss the rationale and justifiability of the doctrine, particularly in relation to the moral foundations of human rights (section 4). The second part of paper (section 5) addresses the general issue of the European Court's legitimacy over contracting states and the role that evolutive interpretation plays in arguments in favour and against legitimacy. It argues that commitment to evolutive interpretation is essential, rather than a threat, to the Court's legitimacy.
Keywords: European Convention on Human Rights (ECHR), European Court of Human Rights, living instrument, evolutive interpretation, legitimacy, margin of appreciation, consensus
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