The European Convention on Human Rights and the Living instrument doctrine: an investigation into the Convention’s constitutional nature and evolutive interpretation

Abstract

Currently mired in controversy, the European Court of Human Rights and the Convention itself have come in for stern criticism from a diverse array of stakeholders. Of particular controversy is the Court’s utilisation of the Living instrument doctrine, which it first expressly recalled in its 1978 Tyrer v. UK decision. Confusion has continued to surround how this doctrine came about and its potential to allow the Strasbourg Judiciary to cross over the constitutional separation of judiciary and legislature. However, while the substantive idea of the Convention as a living instrument capable of evolving with European Society is legitimate, confusion still exists about how it operates and to what extent it might be used to alter existing Convention Standards. This study sets out that at the heart of this modern legitimacy crisis in the Convention system is a failed dialogical model of the Convention institutions. However, clearer explanations and a better understanding of appropriate roles of the various institutions and improved channels of dialogue may lead to a more accepted Convention system and act to calm some of the conflict surrounding the Convention today. After examination of various aspects of Convention law and practice the eventual argument is that the current crisis is largely one of failed dialogue between Convention stakeholders and is best address through an improved understanding of and discovery of European Consensus.

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