Living Instrument Principle or Doctrine

The European Convention on Human Rights and the Living Instrument Principle

“The ‘rights and freedoms’ that the signatories to the (European Convention on Human Rights, based its court in Strasbourg) agreed to secure within their jurisdiction are stated in very general terms. They include the right to life (Article 2), freedom from torture and degrading treatment (Article 3), the right to liberty (Article 5), the right to a fair trial (Article 6), the right to respect for private and family life (Article 8), freedom of thought, conscience and religion (Article 9) and freedom of expression (Article 10). Article 14 forbids discrimination when giving effect to these rights. Because these rights are expressed in general terms, the (European Convention on Human Rights) Court often has to make a ruling as to whether or not conduct constitutes an infringement of a particular right. When it does so, the Court is not concerned with the meaning that those who originally signed the Convention would have intended the right to have.

The (Strasbourg) Court treats the (European Convention on Human Rights) as what it has
described as a ‘living instrument’. This means that in defining the scope of a right the
Court (of the European Convention on Human Rights) will have regard to changes in social attitudes in the Member States of the Council of Europe. The Court recognizes that the scope of human rights changes over time.

The Court laid down this principle in 1978 when ruling in the case of Tyrer v UK (1978, 2 EHRR 1) that a sentence imposed on a 15 year old youth of three strokes of the birch constituted inhuman and degrading punishment contrary to Article 3 of the (European Convention on Human Rights). Such punishment would not have been considered untoward by those
who drafted the Convention in 1950. But the ‘living instrument’ doctrine requires the Court to move with the times when defining in concrete terms what conduct does and what does not violate a particular right.

Lord Bingham described this as the protection of rights ‘in the light of evolving standards of decency that mark the progress of a maturing society’ (Reyes v R [2002] UKPC 11 at para 26). In principle I believe that most would regard the ‘living instrument’ doctrine as desirable. The
original signatories to the Convention would surely have intended the Court to apply contemporary standards when enforcing human rights. But that exercise necessarily gives to the decisions of the Court (of the European Convention on Human Rights) a legislative effect.

This is fine if the evolving standards are universal. But what if they are not? The Court’s answer is that where standards differ from one European country to another, the (Strasbourg) Court will to apply what it describes as a ‘margin of appreciation’.” (1)

Resources

See Also

Operative Instrument
European Court of Human Rights
International Human Rights – Humanitarianism resources

Notes and References

1. European Human Rights – A Force for Good or a Threat to Democracy?. The Rt Hon the Lord Phillips of Worth Matravers