Is the ‘Living Instrument’ Approach of the European Court of Human Rights Compatible with the ECHR and International Law?

Abstract

The article offers a rebuttal of prominent criticisms directed against the ‘living instrument’ interpretative approach of the European Court of Human Rights. The paper 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 paper 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 interpretation of the 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 the 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