A Norm in Flux: The Development of the Norm Against Torture Under the European Convention from a Macro Perspective
iCourts Working Paper Series No. 45
36 Pages Posted: 17 Feb 2016 Last revised: 12 Apr 2017
Date Written: February 16, 2016
Due to the nature of the rights protected under the European Convention on Human Rights (ECHR), some of which are temporally and socio-culturally bounded, the European Court of Human Rights (ECtHR) has often felt compelled to assume a standard-setter role when delivering judgments. This resulted in the transformation of the norms safeguarded under the ECHR ‘in the light of present day conditions’. This has been certainly the case for the norm against torture and inhuman or degrading treatment or punishment. This paper looks into how such an institutionalized, and ‘taken for granted’ norm has developed over time. I give an account on how the ECtHR’s jurisprudence has transformed the norm’s nature and scope. Analyzing the preparatory works and conducting large-scale content analysis on the relevant case law for the period between 1948 and 2006, I observe two developments. First, the scope of the norm has been broadened, particularly with the introduction of new obligations. The norm evolved from being conceptualized only in negative obligations terms (obligation to respect), to including positive obligations (obligations to protect and implement). Second, the thresholds to find a violation of this norm have been lowered. Based on a diachronic analysis, this research pinpoints that norms continue to develop even after being formally accepted or institutionalized, and judicial decisions serve as vehicles to set the boundary of (il)legitimate forms of treatment and punishment a State may employ within its jurisdiction.
Keywords: ECHR, ECtHR, norm development, legal change, legal interpretation, negative and positive obligations, the prohibition on torture
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