'it may be that the concept of the european convention on human rights as well as 'living instrument' is nothing more than a device to provide the court with an excuse to change its mind abruptly on an issue in response to changing public perceptions; it may be good for flexible doctrine development, but it's very bad for legal certainty.' discuss
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” . This is the general interpretation principle of international conventions as it is stated by the Vienna Convention on the Law of Treaties. It is also one of the main rules applied by the European Court of Human Rights when interpreting the European Convention on Human Rights (ECHR) .
There can be no doubt that the interpretation principles applied by the Court introduce an element of relativity to the ECHR. For example, the principle of reading the Convention as a ‘living instrument' has allowed the application of a number of articles to be adjusted according to the given societal, cultural and political realities. The purpose of this essay is to explore the rationale behind these interpretation principles, critically approaching their so far implementation.
To this end, the essay has been divided into three parts. The first will analyse the most important interpretation principles, focusing on concepts such as ‘living instrument' and ‘purposive interpretation'. Subsequently, the second part will critically approach these rules to understand the logic behind them. More importantly, the essay will evaluate their implementation and the impact they so far had on consistency and uniformity of judicial review and legislative amendments. Finally, the last part will draw the discussion to a conclusion by summarising the main points and by stating the final lessons to be learned from this account.
Interpreting the European Convention on Human Rights
In general, international conventions are multilateral contracts between states . Most often, these treaties are intended to endure time. This is particularly true for human rights treaties and especially the ECHR. This was signed in 1950 and has been amended or complemented through a series of protocols. The European Court of Human Rights, the single authority responsible for the interpretation and application of the Convention , ruled in one of its leading judgements: “[The Court must] recall that the Convention is a living instrument, which must be interpreted in the light of present-day conditions. In the case now before it, the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member states of the Council of Europe in this field” .
Acknowledging the changing nature of the societal and cultural environments in which the Convention is applied, the Court ruled that, inter alia, the following principles need to be respected when interpreting the Convention:
(1) The purposive, value-laden nature of the Convention
In Wemhoff v Germany, the Court said: “it is necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the objects of the treaty not that which would restrict to the greatest possible degree the obligations undertaken by the parties” . This rule -which has been consistently applied by the European Court-, follows the paradigm of Article 31(1) of the Vienna Convention, stating that the Articles of the ECHR need to be interpreted in accordance with the ordinary meaning of the terms in their context and in the light of the Convention's overall object and purpose.
Consequently, when interpreting the text of the ECHR, judges need to read beyond the standard definition of its terms and place them within the conceptual framework in which the Convention was originally drafted. The debate on the distinction between teleological and textualist approach has been fierce . For example, it has been pointed out that the teleological approach is an application in extended form of a principle of interpretation which all textualists would accept, namely the principle of effectiveness. This states that “particular provisions are to be interpreted so as to give them their fullest weight and effect consistent with the normal sense of the words and with other parts of the text, and in such a way that a reason and a meaning can be attributed to every part of the text” .
In a nutshell, textualists assert that an effective interpretation must always proceed from the text, while the telelogists maintain that the interpreter is authorised to engage in a measure of judicial legislation and in order to make an agreement effective can take into account object and purpose in a wider way. Judge Sir Gerald Fitzmaurice said in his separate opinion in the Golder case: “The factors which distinguish the ECHR from other treaties could justify even a somewhat restrictive interpretation of the Convention, but, without going as far as that, they must be said, unquestionably, not only to justify, but positively to demand, a cautious and conservative interpretation, particularly as regards any provisions the meaning of which may be uncertain, and where extensive construction might have the effect of imposing upon the contracting states obligations they had not really meant to assume, or would not have understood themselves to be assuming...Any serious doubt must therefore be resolved in favour of, rather than against, the government concerned” .
However, the Court did not adopt this restrictive approach, but followed the example of Wemhoff . A question that naturally follows from this approach is what criteria the Court uses to establish the purposive framework in which the Convention is applied and interpreted. Francesca Klug claimed that Courts need to consider the following three criteria: (a) the broad philosophical approach to human rights as this was constructed by the Universal Declaration of Human Rights (b) the promotion of the commonly accepted ideals and values of a democratic society and the (c) principles characterised by pluralism, tolerance and broadmindedness . However, these are not as concrete as one would expect them to be, while many have argued that they add an even further dimension of relativity to the ECHR .
(2) The living instrument principle
The European Court stressed that when interpreting the Convention and the individual rights protected, domestic courts need to adopt a dynamic and forward-looking approach. This needs to take into account the current surrounding conditions especially in terms of sociological and cultural differences. This principle is also known as the ‘doctrine of evolutionary law' according to which the newest case law tends to be the most persuasive.
For example, Article 3 provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. When interpreting this sentence, a question that has often arisen is what criteria are relevant in deciding whether the Convention's prohibition has been violated. Put another way, how is the Court to decide whether a person has been subject to ‘degrading' punishment? The academic literature identified two possible ways of going about interpreting the article. The first takes the Convention as this was adopted in 1950. Obviously, the signatories had a particular idea of what, in this case, constitutes ‘degrading punishment'. To identify this intention, judges need only refer to the accompanying documents and discussion manuscripts that preceded the Convention. The second view is that although governments doubtless had their own ideas on the subject, they included a general reference to the concept of degrading punishment so that when the time came to interpret the Convention, the Court would be able to look beyond the particular conceptions of 1950 and take into account contemporary ideas.
The official position of the Court was revealed in the leading case of Tyrer v UK. There, the judges ruled that Article 3 is to be interpreted as embodying the concept of inhuman and degrading punishment, rather than any conception which may have been held in 1950 and, more importantly, indicated that it would be prepared to take a similar approach to other parts of the Convention.
Similarly, in the Winterwerp case -where the Court was called to decide whether a violation of Article 5(1)(e) occurred- the judges said that in the absence of a definition of the term ‘persons of unsound mind', the Court must consider that: “the terms in not one that can be given a definitive interpretation...it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society's attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more widespread” . Again, this approach adds an element of relativism to the convention.
Critically approaching the Court's interpretation policy
It is clear from the above analysis that an apparent element of flexibility is injected into the ECHR. In fact, a number of commentators have claimed that the creation of the aforementioned interpretation concepts were principally meant to serve as devices that would provide the Court with an excuse to change its mind on an issue in response to changing public perceptions . If this is true, then the Court's approach may give rise to the following three problems:
(1) Lack of uniformity
According to the principle of the rule of law, legal rules -whether in statutory or common law format- need to be applied in a consistent manner. Any attempt to tamper with its homogeneity would mean that the rule of law has been replaced by the rule of man in the sense that the law is no longer the primary authority and that it can be overruled by personal judgements (even if these are of appointed judges). Clearly, the Convention cannot be applied arbitrarily. Its clauses need to be read, understood and implemented uniformly within the Council of Europe.
Therefore, the question that is most pertinent here is whether principles such as the ‘living instrument' doctrine tamper with the uniformity that the law needs to carry. The position of the Court is clear. As a number of cases have shown both the principle of legality and equity are to be respected when reaching a decision. This means that the Court can not exceed its powers as these have been defined by the text of the Convention. Any changes to these powers will have to be authorised by all contracting parties. More importantly, each case has to be judged on its own merits, and, although equity has to be respected, the principles and values enshrined by the Convention are universal.
(2) Unexpected developments
It has been argued that the Court may find itself anticipating developments before they have occurred. For instance, in Marckx v Belgium , the Court had to decide whether Belgian legislation which drew certain distinctions between legitimate and illegitimate children contravened the right to respect for family guaranteed by Article 8. The Court held that it did, on the ground that although such a distinction was traditional the “Convention must be interested in the light of present-day conditions”. In this respect, the judges said they could not “but be struck by the fact that the domestic law of the great majority of the member states of the Council of Europe has evolved and is continuing to evolve in company with the relevant international instruments” .
However, it has long been argued that the dangers of refusing to recognise that changes have occurred will lead to injustice. This danger was experienced in the Court's jurisprudence on transsexuals' rights. In the Cossey case, the applicant, a male-to-female transsexual, claimed that Article 8 and 12 had been breached. The Court rejected this claim, but eight judges dissented on the issue of Article 8 and four as regards to Article 12. They said: “The status of transsexuals is one where legal solutions necessarily follow medical, social and moral developments in society” . They also noted that since the Rees case -which also involved transsexual's rights- there have been “clear developments in the laws of the contracting state which demanded a fresh approach”. A few years later, the case of Christine Goodwin v UK came to change fundamentally the way English law deals with trans-gender issues including change of names, marriage, birth certificates, social security, employment and pensions .
(3) Creating new obligations
As dissenting judge Fitzmaurice said in Golder , “...extensive construction might have the effect of imposing upon the contracting states obligations they had not really meant to assume or would not have understood themselves to be assuming...”. However, the possibility of facing this danger is remote for at least two reasons.
First, the Convention is bound by the Vienna Convention on the Law of Treaties. Its article 31(4) provides that: “A special meaning shall be given to a term if it is established that the parties so intended”. Second, the court tends to treat the ordinary meaning of a word or phrase as more or less self-evident and does not elaborate upon it.
From this paper's analysis, three considerations immerge. First, the Court has clearly adopted an evolutive approach to the ECHR in the sense that its Articles are not meant to be read as ‘dead letters' but as ‘living clauses' that should be adapted according to the current needs and cultural changes occurring within the Council of Europe. Second, this policy is not meant to dilute the uniformity of the Convention or the rule of law which underpins the values enshrined in the treaty. On the contrary, it is intended to enhance the Convention's applicability throughout the Council. Undoubtedly, human rights norms are not meant to be static. They evolve with the societies in which they are created and implemented. Finally, case law is not meant to be rigid but listen to the needs and changes of the people. As Plucknett put it, common law is meant to be the law of the common people .
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