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 in-
strument’ 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 re-
strictive 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 institution-
al concerns with the role of judges in the adjudication of rights. Ultimately, the ‘living instru-
ment’ interpretative approach therefore appears legal under the Convention and relevant In-
ternational Law.

A. INTRODUCTION

With the success of the Conservative Party at the most recent General Election, the signatory
status of the United Kingdom to the European Convention on Human Rights (ECHR) faces an
uncertain future. Currently, the Human Rights Act 1998 still provides the legal basis for the
implementation and adjudication of the ECHR in domestic courts, as well as the remedies for
incompatibilities between domestic legislation and the Convention. The Human Rights Act
has dramatically altered the legal landscape of the UK. Former Lord Chief Justice Lord Judge,
and Deputy President of the UK Supreme Court Lady Hale have described it as the most sig-

1
nificant legal development of the last 30 years, 1 and the Act has even been described as “one
of the most important pieces of legislation to be enacted in the twentieth century.” 2

The Government has nonetheless pledged to replace the Human Rights Act 1998 with a ‘clari-
fied’ British Bill of Rights enabled by primary domestic legislation. 3 Some commentators
view these plans with scepticism, as they fear the proposed ‘clarification’ is merely a ploy to
limit the human rights protection enjoyed under the Convention. 4 The Conservative plans also
fail to outline whether these reforms entail withdrawal from the ECHR, as scrapping the Hu-
man Rights Act and introducing a Bill of Rights would not absolve the UK from its obliga-
tions under International Law.

As a whole, the reform plans are part of a larger debate within the UK on the obligations and
perceived intrusions that judgments of the European Court of Human Rights (ECtHR) consti-
tute for the legislative flexibility of the Westminster Parliament. A comparatively small num-
ber of judgments have raised eyebrows in the past by attracting broad media attention and
controversy in the UK. 5

1
Joshua Rozenberg, Law in Action at 30 (BBC Radio 4 2014), passim.
2
John Stanton, ‘Parliamentary Sovereignty and the Human Rights Act–By Alison L Young’ (2010) 30 Legal
Studies 689.
3
Protecting Human Rights in the UK - The Conservatives' Proposals for Changing Britain's Human Rights
Laws (2014) <https://www.conservatives.com/~/media/Files/Downloadable%20Files/HUMAN_RIGHTS.pdf>
accessed 4.11.2014.
4
Joshua Rozenberg, ‘Tory plans for European human rights convention will take UK back 50 years’ The
Guardian (3.10.2014) <http://www.theguardian.com/law/2014/oct/03/tory-plans-european-human-rights-
convention-take-uk-back-50-years> .
5
See for instance the baseless claims that the ECtHR found the UK in violation of the Convention in 3 out of 5
cases, Adam Wagner, ‘No, The Sun, "Euro Judges" do not "go against UK in 3 out of 5 cases". More like 1 in
100.’ (UK Human Rights Blog, 27.08.2014) <http://ukhumanrightsblog.com/2014/08/27/no-the-sun-euro-
judges-do-not-go-against-uk-in-3-out-of-5-cases-more-like-1-in-100/#more-24313> accessed 1.03.2015; Merris
Amos, ‘The UK and the European Court of Human Rights’ (UK Constitutional Law Blog, 24.11.2014)
<http://ukconstitutionallaw.org/2014/11/24/merris-amos-the-uk-and-the-european-court-of-human-rights/>
accessed 15.3.2014.
2
Considering the thousands of cases decided by the ECtHR every year, 6 it should perhaps not
be a surprise that some judgments are unfavourably received, and attract criticism from af-
fected States. However, the odyssey of the ruling in Hirst v. UK 7 stands out in two respects.

First, it has come to epitomize a perfect storm: a partially misunderstood and at times wilfully
misrepresented ruling that affected a sensitive domestic policy area, combined with a strong
opposition of the public towards any legislative changes. Second, Hirst also demonstrates the
inertia of a political establishment that has to date been unwilling to challenge this public
opinion, and instead preferred to flaunt its obligations under the ECHR and International Law
for over a decade since the Court gave its ruling.

Section B will begin by providing some background information on Hirst, the ‘living instru-
ment’ approach adopted by the ECtHR and the controversy that ensued in the UK.

Section C will then examine the legality of the ‘living instrument’ approach under the Con-
vention and International Law. Many accounts that are critical of the ECtHR make claims that
the Court has acted illegally, either generally or in individual judgments.

I will contradict these claims, and offer an argument that the ‘living instrument’ approach is
ultimately lawful and in conformity with the ECHR and International Law. The paper thus
does not engage with the terminology that is often employed in conceptualizing the debate:
legitimacy, especially the relationship and interaction between legality and legitimacy. This
question is certainly deserving of closer attention, but exceeds the scope of this paper.

B. BACKGROUND

I. The ‘living instrument’ interpretative approach

The ECtHR views the Convention rights as subject to evolution and change in their under-
standing over time. What constitutes privacy, a right to life and freedom of expression must

6
European Court of Human Rights - Annual Report 2014 (2015)
<http://www.echr.coe.int/Documents/Annual_Report_2014_ENG.pdf> accessed .
7
Hirst v. United Kingdom, 74025/01,Grand Chamber, 6.10.2005.
3
evolve with technological and social developments. 8 This updating approach is, in the mind of
the ECtHR, not an overruling, but rather the logical conclusion from the object and purpose of
the Convention: to provide effective and meaningful protection of individual rights.

The ‘living instrument’ has indeed led the ECtHR to adapt and expand the Convention rights
to keep pace with modern developments and changes in the prevailing societal attitudes. The
ECtHR thus intends to provide for an interpretation of the Convention that “upholds individu-
al rights as practical and effective, rather than theoretical and illusory protections.” 9

Thus, the Court has proceeded for instance with Article 8. The ECtHR has interpreted this
provision to encompass a wide array of rights covering, inter alia, physical and psychological
integrity, 10 sexuality, 11 gender, 12 data protection, 13 reputation, 14 and environmental protec-
tion. 15

II. The controversy in the UK

Hirst, a prisoner convicted of manslaughter, had challenged a decision denying him registra-
tion for voting 16 taken pursuant to section 3 of the Representation of the People Act 1983.
This provision in essence establishes a blanket ban on prisoners voting in any election, regard-
less of the nature and severity of their offence. The Chamber of the ECtHR took issue with
8
This is settled case law, see Mamatkulov and Askaraov v Turkey, 46827/99, 46951/99,Grand Chamber,
4.02.2005 (note 9); Tyrer v. UK, 5856/72,Court, 25.04.1978; Marckx v. Belgium, 6833/74,Plenary, 13.06.1979;
Chassagnou and others v. France, 25088/94 & 28331/95 & 28443/95,Grand Chamber, 29.4.1999; Dudgeon v.
United Kingdom, 7525/76,Plenary, 22.10.1981.
9
Mamatkulov and Askaraov v Turkey, 46827/99, 46951/99 at 121.
10
Juhnke v. Turkey, 52515/99,Court, 13.05.2008 at 70; Costello-Roberts v. United Kingdom, 13134/87,Court,
25.3.1993, at 36.
11
Van Kück v. Germany, 35968/97,Court, 12.7.2003 at 69.
12
Rees v. United Kingdom, 9532/81,Court, 17.10.1986; Goodwin v. United Kingdom, 28957/95,Grand Chamber,
11.7.2002.
13
Rotaru v. Romania, 28341/95,Grand Chamber, 4.5.2000 [collection of data through public entities]; Copland
v. United Kingdom, 62617/00,Court, 3.4.2007 [email and internet use in the workplace]; S & Marper v. United
Kingdom, 30562/04, 30566/04,Grand Chamber, 4.12.2008 [DNA and finger prints].
14
Pfeifer v. Austria, 12556/03,Court, 15.11.2007 [damage to the reputation of a journalist].
15
See for instance, López Ostra v. Spain, 16798/90,Court, 9.12.1994 [air pollution]; Hatton and others v. United
Kingdom, 36022/97,Grand Chamber, 8.07.2003 [noise emissions from Heathrow Airport]; Taskin and others v.
Turkey, 46117/99,Court, 10.11.2004 [cyanide contamination of water].
16
Hirst v HM Attorney General, [2001] EWHC Admin 239.
4
this blanket ban and judged it a violation of Article 3 of Protocol No.1 to the Convention
(Right to Vote) in 2004. 17 The Grand Chamber then subsequently upheld the ruling in 2005. 18

Under less controversial circumstances, the UK may have simply amended domestic legisla-
tion pursuant to the established mechanisms of the Human Rights Act 1998 and be done with
the matter. This has been the sequence of events in numerous cases following declarations of
incompatibility by domestic courts. 19 However, the ruling was only the starting point of a
prolonged debate, which gathered much attention in the media, 20 and from legal scholars and
senior judges. 21

A decade has passed since the final ruling in Hirst and an end to the controversy is still not in
sight: the UK has yet to implement the judgment, and draft legislation from as recently as
December 2013 has failed to make significant headway. 22 The ruling in Hirst has come to
symbolise more than a matter of criminal justice in the UK. The debate no longer revolves

17
Hirst v. United Kingdom, 74025/01,Court, 30.03.2004, referred to the Grand Chamber.
18
Hirst v. United Kingdom, 74025/01 (note 7).
19
Jeff King, ‘Parliament’s Role following Declarations of Incompatibility under the Human Rights Act’ in M
Hunt, H Hooper and P Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit
(Bloomsbury Publishing 2015).
20
See for instance the public calls for defiance from David Davis and Jack Straw, ‘We must defy Strasbourg on
prisoner votes’ The Telegraph (London, 24.05.2012) <http://www.telegraph.co.uk/news/uknews/law-and-
order/9287633/We-must-defy-Strasbourg-on-prisoner-votes.html> accessed 4.11.2014.
21
Jeff King, ‘Should prisoners have the right to vote?’ (18.05.2011)
<http://ukconstitutionallaw.org/2011/05/18/jeff-king-should-prisoners-have-the-right-to-vote/> accessed
30.05.2015; Danny Nicol, ‘Legitimacy of the Commons debate on prisoner voting’ [2011] Public Law 681;
George Letsas, ‘In Defense of the European Court of Human Rights’ (University College London - Institute for
Human Rights, 2011) <http://www.ucl.ac.uk/human-rights/news/documents/prisoners-vote.pdf> accessed
4.11.2014; Jean-Paul Costa, ‘On the legitimacy of the European Court of Human Rights' judgments’ (2011) 7
European Constitutional Law Review 173; David Mead, ‘Outcomes aren't all: defending process-based review of
public authority decisions under the Human Rights Act’ Public Law 61; Lord Irvine of Lairg, ‘A British
interpretation of Convention rights’ [2012] Public Law 237; Philip Sales, ‘Strasbourg jurisprudence and the
Human Rights Act: a response to Lord Irvine’ [2012] Public Law 253; Helen Fenwick, ‘The Human Rights Act
or a British Bill of Rights: creating a down-grading recalibration of rights against the counter-terror backdrop?’
Public Law 468.
22
For a summary of the events since 2005, see Isobel White and Alexander Horne, Prisoners' voting rights
(House of Commons Library, 2014) <http://www.parliament.uk/briefing-papers/SN01764.pdf> accessed
4.11.2014.
5
around the substantial legal question, but rather focuses on the sovereignty of the UK Parlia-
ment in the face of a perceived Strasbourg dictate. 23

Critics contend that on ratification States agreed to uphold the rights as stated by the drafters
in the original text and did not endorse future developments through an ‘activist’ court. Thus,
the ECtHR has acted in an illegal and illegitimate fashion by attaching ex post facto further
obligations to the Convention without the express consent of contracting States. 24

Lord Hoffmann epitomizes this stance in a statement made in the wake of the introduction of
the Human Rights Act 1998, which reflects the concerns that still inform the arguments of
many critics today:

“When we joined, indeed, took the lead in the negotiation of the European Convention, it was
not because we thought it would affect our own law, but because we thought it right to set an
example for others and to help to ensure that all the Member States respected those basic
human rights which were not culturally determined but reflected our common humanity.” 25

If that was truly the expectation of States in 1950, then it was sorely disappointed indeed.

C. DEFENDING THE INTERPRETATIVE APPROACH

I submit that this ‘living instrument’ approach is compatible with the Convention and the
broader context of International Law and will lay out my argument in this section.

23
Jeff King, ‘Should prisoners have the right to vote?’.
24
Lord Sumption, ‘The Limits of Law’ (27th Sultan Azlan Shah Lecture, 20.11.2013)
<https://www.supremecourt.uk/docs/speech-131120.pdf> accessed 14.05.2015; Lord Hoffmann, ‘The
Universality of Human Rights’ (2009) 125 Law Quarterly Review 416; echoed by, Michael Pinto-Duschinsky,
Bringing Rights back Home: Making Human rights compatible with parliamentary democracy in the UK (Policy
Exchange 2011); this may, however, not be indicative of the broader, more nuanced views held in the UK judici-
ary, see Ed Bates, ‘The Senior Judiciary on ‘Strasbourg’ – More Supportive Than Some Would Have You
Believe’ (UK Constitutional Law Blog, 2015) <http://ukconstitutionallaw.org/2015/05/28/ed-bates-the-senior-
judiciary-on-strasbourg-more-supportive-than-some-would-have-you-believe/> accessed 29.05.2015.
25
Rt Hon Lord Hoffmann, ‘Human Rights and the House of Lords’ (1999) 62 The Modern Law Review 159,
166.
6
 I. Compatibility with the Convention

Even though evidence from the Convention text, the Preamble and reservations is ultimately
inconclusive, States have democratically endorsed the interpretative approach in the past.
Critics who insist on an ‘orginalist’ 26 or strict textual interpretation of the Convention have
failed to point to any evidence that the drafters intended to enshrine a specific interpretational
approach or understanding of Convention rights. The travaux préparatoires do not concern
themselves with the method of interpretation, nor do they betray a consensus on the proper
boundaries of the Convention. If anything, the object and purpose points towards a broad
mandate for the ECtHR to develop the Convention.

1. Convention text

The Convention itself grants the ECtHR interpretative authority (Article 32 ECHR) and binds
the States to the final verdict through Article 46(1) ECHR. These provisions are ultimately
binding based on the foundational principle of pacta sund servanda 27 in International Law.
Therefore, it is clear that contracting States are obligated to adhere to the interpretation of the
Convention. However, it is unclear what interpretative approach the ECtHR ought to employ,
as it does not appear to advocate or prohibit recourse to an evolutive interpretative approach,
much less engage with such questions. One possible reading of Lord Sumption’s lecture is
that he is advocating a strict textual interpretation. Under that assumption, however, his argu-
ment encounters significant difficulties. 28 The text of the Convention is far from clear, and
often requires recourse to supplementary means of interpretation in order to be practically
adjudicated. Even where the wording is seemingly clear, it appears to conflict and contradict
with Lord Sumption’s claims. For instance, with regard to Article 8 ECHR he states:

“This perfectly straightforward provision was originally devised as a protection against the
surveillance state by totalitarian governments. But in the hands of the Strasbourg court it has
been extended to cover the legal status of illegitimate children, immigration and deportation,
extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child

26
Antonin Scalia, A matter of interpretation : federal courts and the law (A Gutmann ed, Princeton University
Press 1997).
27
Which is reflected in Article 26 of the Vienna Convention on the Law of Treaties (VCLT).
28
Lord Sumption, ‘The Limits of Law’, p. 9.
7
abduction, the law of landlord and tenant, (…). None of these extensions are warranted by the
express language of the Convention, nor in most cases are they necessary implications.” 29

However, this line of argument does not account for the ambivalent terminology in Article 8
ECHR. The Court itself has acknowledged that a final and complete definition of ‘private life’
is not possible. 30 Nor does Lord Sumption’s line of argument account for the presence of the
seemingly clear word ‘everyone’ in Article 8 ECHR: why ‘everyone’ should exclude the
groups he has mentioned above remains unclear. 31

Instead, there appear to be compelling reasons to hold that a broader reading of Article 8
ECHR is necessary to allow the Convention to remain practically effective in light of modern
developments. Threats to Private and Family Life these days do not exclusively arise from
totalitarian surveillance States, and it is questionable whether they ever did, even at the time
of the Convention’s drafting.

2. Relevance of the Preamble

Sir Nicolas Bratza has suggested that the Preamble supports a broader, evolutive interpreta-
tion of the Convention. 32 Preambles, however, are unlikely to furnish a basis for such a nor-
mative claim. They mostly contain aspirations, hopes, and vague commitments to higher ide-
als, expressed in a celebratory language style that seeks to both provide a rationale for the
creation of the concerned document text and to establish a link to the broader cultural and
societal context that informed their development. 33 On the one hand, preambles are thus not

29
Ibid, p.7 et seq.
30
Van Kück v. Germany, 35968/97 at 69; P.G. and J.H. v. United Kingdom, 44787/98,Court, 25.9.2001 at 56.
31
George Letsas, ‘Lord Sumption’s Attack on Strasbourg: More Than Political Rhetoric?’ (UK Constitutional
Law Association, 9.12.2013) <http://ukconstitutionallaw.org/2013/12/09/george-letsas-lord-sumptions-attack-
on-strasbourg-more-than-political-rhetoric/> accessed 14.05.2015 (note 108).
32
Nicolas Bratza, ‘Living Instrument or Dead Letter-The Future of the European Convention on Human Rights’
[2014] European Human Rights Law Review 116, 120.
33
Peter Häberle, ‘Präambeln im Text und Kontext von Verfassungen’ in J Listl and H Schambeck (eds),
Demokratie in Anfechtung und Bewährung - Festschrift für Johannes Broermann (Duncker & Humblot 1982);
Stefan Theil, ‘Three insights from Peter Häberle’s “Preambles in the text and context of constitutions’ (UK
Constitutional Law Blog, 25.03.2015) <ukconstitutionallaw.org/2015/03/25/stefan-theil-three-insights-from-
peter-haberles-preambles-in-the-text-and-context-of-constitutions> accessed 19.07.2015.
8
self-executing norms with direct legal effect, but rather normative master plans, that require
further specification before rising above “moral appeal[s] without immediate legal obliga-
tions.” 34 While on the other hand, preambles can complement and guide the interpretation of
the subsequent legal text and thus there is a strong back and forth between preambles and the
text proper. 35

The Preamble of the ECHR has only featured in a small number of cases, and proved legally
decisive in even fewer. 36 The passage on the “collective enforcement of certain rights stated
in the Universal Declaration” stands out somewhat from the generally aspirational phrasing
of the Preamble. In that vein, the ECtHR has held that it would be “a mistake to see in this
reference a merely ‘more or less rhetorical reference’, devoid of relevance for those inter-
preting the Convention” and derived from the passage a firm intention of the contracting
States to commit to upholding the rule of law. 37

One may hence infer from the Preamble that the establishment of an overall effective protec-
tion regime for human rights was a central intention of the parties, but that does necessarily
equate to an endorsement of the ‘living instrument’ approach. Neither this reference to the
rule of law in the Preamble, nor the subsequent text expresses a preference or so much as ref-
erences guidelines for the interpretation of the Convention. It must therefore remain doubtful
whether the general aspirations expressed in the Preamble carry sufficient weight to support
an evolutive approach to the interpretation.

34
Peter Häberle, ‘Präambeln im Text und Kontext von Verfassungen’, p. 204, my translation; in the context of
the ECHR, see Franz C. Mayer, ‘Präambel’ in U Karpenstein and FC Meyer (eds), Europäische
Menschenrechtskonvention - Kommentar (C.H. Beck 2012) at [1].
35
Peter Häberle, ‘Präambeln im Text und Kontext von Verfassungen’.
36
Soering v. United Kingdom, 14038/88,Plenary, 7.7.1989 at [88] and Ilaşcu and others v. Moldovia and
Russia, 48787/99,Grand Chamber, 8.7.2004 at [317] [both referencing the common heritage of political tradi-
tions, ideals, freedom and the rule of law]; Sejdić and Finci v. Bosnia and Herzegovina, 27996/06 &
34836/06,Grand Chamber, 22.12.2009 at [45] [referencing peace].
37
Golder v United Kingdom, 4451/70,Plenary, 21.02.1975 at [34]; affirmed and referenced subsequently in
Ireland v. United Kingdom, 5310/71,Plenary, 18.1.1978 at [239] and Salah v. The Netherlands, 8196/02,Court,
6.7.2006 at [68].
9
 3. Democratic endorsement & state practice

Critics further allege that ECtHR has incurred a significant democratic deficit through its ex-
pansive reading of the Convention. 38 It is true that some Contracting States of the European
Convention originally conceived it primarily to prevent a relapse of European totalitarianism
after the Second World War. 39 However, it soon evolved beyond this role and has been re-
markably effective in keeping up with modern developments. Crucially, the contracting
States, including the UK, have democratically endorsed these developments, including the
‘living instrument’ interpretative approach.

With respect to the UK, the ECHR entered into force in 1953. The UK accepted the then op-
tional jurisdiction of the ECtHR to hear individual petitions in 1966 40 and renewed its con-
sent over the decades until the ratification of Protocol 11 in 1998, which rendered the optional
jurisdiction compulsory for all States. While there was often a degree of concern and disa-
greement over the interpretation of the Convention, successive UK governments democrati-
cally legitimised the ECtHR on a rolling basis. 41 Specifically, after the ECtHR established the
‘living instrument’ in 1978 in the case of Tyrer v UK, 42 the Conservative Government under
Thatcher renewed the jurisdiction in 1981. 43 This democratic decision and the ones following

38
Lord Sumption, ‘The Limits of Law’, p. 9; Lord Irvine of Lairg, ‘A British interpretation of Convention
rights’, 245; Jonathan Sumption, ‘Judicial and Political Decision-making: The uncertain Boundary’ (F.A. Mann
Lecture, 2011) accessed 4.12.2015 ; Lord Hoffmann, ‘The Universality of Human Rights’; Michael Pinto-
Duschinsky, Bringing Rights back Home: Making Human rights compatible with parliamentary democracy in
the UK; Lord Judge, ‘A view from London ’ (Counsel Magazine, 2014)
<http://www.counselmagazine.co.uk/articles/view-london> accessed 4.12.2015.
39
Ed Bates, The evolution of the European Convention on Human Rights: from its inception to the creation of a
permanent court of human rights (Oxford University Press 2010).
40
Vaughne Miller, The European Convention on Human Rights and the Court of Human Rights: issues and
reforms (House of Commons Library 2011).
41
Ed Bates, ‘What was the point of the European Convention on Human Rights?’ (UK Human Rights Blog,
21.03.2011) <http://ukhumanrightsblog.com/2011/03/21/what-was-the-point-of-the-european-convention-on-
human-rights-dr-ed-bates/> accessed 14.05.2015.
42
Tyrer v. UK, 5856/72; Marckx v. Belgium, 6833/74; for an assessment, see George Letsas, ‘The ECHR as a
living instrument: its meaning and legitimacy’ in A Føllesdal, B Peters and G Ulfstein (eds), Constituting Europe
: the European Court of Human Rights in a national, European and global context (Cambridge University Press
2013).
43
Ed Bates, ‘What was the point of the European Convention on Human Rights?’ (note 41).
10
it were taken in full knowledge of the ‘living instrument’ approach, and the developments of
the Convention.

Furthermore, following the ratification of Protocol 11 by the UK in 1998, the Government

expressly acknowledged as much in the White Paper on the Human Rights Bill . It specifical-
ly accepted and endorsed the interpretative approach, expressing the hope that “in future our
judges will be able to contribute to this dynamic and evolving interpretation of the Conven-
tion.” 44

Even during the height of the domestic debate in the United Kingdom, the declarations fol-
lowing conferences in Interlaken, 45 Izmir, 46 Brighton, 47 and most recently Brussels 48 have not
mentioned such concerns over the ‘living instrument’ approach. The insistence on an expan-
sion of the margin of appreciation of afforded to States remains the only consistently raised
criticism of the Court’s case law. In fact, the overwhelming majority of States has not voiced
fundamental concerns at an international level. Instead, the focus was on easing the ECtHR’s
caseload and applauding its contribution to Human Rights protection.

The more recent Protocols to the Convention also reflect this preference for measured re-
forms. Both Protocol No. 15 and No. 16 are currently in the process of ratification, and no
changes to either Article 32 ECHR or amendments to the ‘living instrument’ approach are
contemplated. 49 Protocol No. 15 makes symbolic changes to the Preamble of the Convention,

44
, Rights Brought Home: The Human Rights Bill (CM 3782 ) (1997).
45
Interlaken Declaration - High Level Conference on the Future of the European Court of Human Rights,
19.2.2010 (2010).
46
Izmir Declaration - High Level Conference on the Future of the European Court of Human Rights, 27.4.2011
(2011)
47
Brighton Declaration - High Level Conference on the Future of the European Court of Human Rights,
20.4.2012 (2012)
<https://wcd.coe.int/ViewDoc.jsp?Ref=BrightonDeclaration&Language=lanEnglish&Ver=original&Site=COE&
BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864> accessed .
48
Brussels Declaration - High level Conference on the “Implementation of the European Convention on Human
Rights, our shared responsibility” , 27.03.2015 (2015).
49
See ‘Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental
Freedoms’ (Council of Europe, 15.01.2015)
<http://www.conventions.coe.int/Treaty/EN/Treaties/Html/213.htm> accessed 1.01.2015; ‘Protocol No. 16 to the
Convention for the Protection of Human Rights and Fundamental Freedoms’ (Council of Europe, 15.01.2015)
<http://conventions.coe.int/Treaty/EN/Treaties/Html/214.htm> accessed 1.01.2015.
11
and amends the time limit for applications to the ECtHR, while Protocol No. 16 provides for
the introduction of a referral mechanism, which will allow the highest courts of Contracting
States to request advisory opinions. 50

There are certainly reasons to question the democratic credentials of the ECtHR with regard
to the election procedure for judges and its difficulty in adjudicating cases in a reasonable
time span. 51 However, these criticisms are not directly linked in any meaningful way to the
interpretative approach the Court has adopted. The election procedure and candidates are the
responsibility of the Council of Europe and its Members, and the caseload is more fundamen-
tally a result of the reforms of Protocol No. 11, which opened up the Court to individual peti-
tions and abolished the Commission. Some go even further in arguing that the entire notion
that human rights and the tribunals adjudicating them can undermine democracy is nonsensi-
cal. 52

Either way, there is strong evidence of democratic endorsement of the interpretative approach
and the consistent support of the ECtHR through States. However, this has not prevented crit-
ics from advocating an originalist interpretation of the Convention.

4. The travaux préparatoires and original intent

This is common to the criticisms of both Lords Sumption and Hoffmann. They advocate an
apparently ‘orginalist’ 53 approach to interpretation, one that emphasises remaining true to the
‘original’ intent of the drafters. 54 The problem arises, however, that there is little evidence as
to the drafters mind-set regarding treaty interpretation and certainly not sufficient to conclude
that they sought to codify any specific interpretational approach. Much the same is true with
regard to the contours of the rights expressed in the Convention. While there is some evidence

50

51
George Letsas, ‘The ECHR as a living instrument: its meaning and legitimacy’, p. 131.
52
Jamie Mayerfeld, ‘The Democratic Legitimacy of International Human Rights Law’ (2009) 19 Ind Int'l &
Comp L Rev 49, 63.
53
Antonin Scalia, A matter of interpretation : federal courts and the law (note 26).
54
Similar concerns were voiced by other senior judges Rt Hon Lord Hoffmann, ‘Human Rights and the House of
Lords’; Lord Scott, in Harrow LBC v Qazi, [2003] UKHL 43, [2004] 1 AC 983 at [123]; Lord Sumption, ‘The
Limits of Law’, p. 7.
12
that the drafters had a specific understanding of most rights contained in the Convention in
mind, the wide interpretation mandate ultimately given to the ECtHR equally supports the
proposition that originalism and textualism are not representative of the common intention of
the parties.

The travaux préparatoires scarcely engaged with the questions of development and interpre-
tation of the Convention rights. The discussion rather focused on two issues of principle:

(1) should the Convention contain a list of enumerated rights in general terms (as advocated
by the Consultative Assembly), or should it endeavour to define the rights in more detail

(2) should a Court be established alongside the already agreed upon Commission as well as
delimiting the roles of both within the Convention system. 55

Among the strongest advocates of detailed definitions was the United Kingdom. Its repre-
sentative in the Conference of Senior Officials, Samuel Hoare (Deputy Under-Secretary in the
Home Office), insisted that “(…) [the treaty] would create obligations which States would be
bound to perform, and they therefore had to know the precise extent of their undertakings”
and that “exact knowledge of the extent of their undertakings would make it easier for States
to accept them.” 56

Nonetheless, the UK delegation was equally concerned with ensuring that the rights granted
were effective, that they would make a practical difference and not simply form decorative
ornaments for the newly established Council of Europe.

Figure 1 provides an overview of the positions taken by the negotiating States in the Confer-
ence of Senior Officials, which ultimately drafted a compromise text using the detailed defini-
tion text as its basis, and introducing key articles from the enumeration draft, most notably the
current Article 8 ECHR (Private and Family Life). 57

55
Collected edition of the "Travaux préparatoires" of the European Convention on Human Rights - Committee
of Experts, Committee of Ministers, Conference of Senior Officials 30 March-June 1950, vol IV (Martinus
Nijhoff 1977) , p. 246 et seq.
56
Ibid., p. 106.
57
Ibid., p. 258.
13
 Enumeration of rights Detailed definition of rights

Establish Commission only Denmark 58 Greece

59
Sweden Netherlands
Turkey Norway
United Kingdom

Establish Commission and Belgium 60 Luxemburg 61

Court France
Ireland
Italy

Figure 1: Position taken by the representatives of the negotiating States in the Conference of
Senior Officials (8-17 June 1950).

Additionally, an optional clause was included, which allowed States to accept the jurisdiction
of the Court. The negotiating States eventually accepted the resulting draft Convention with-
out significant revision.

It might therefore perhaps surprise current critics of the ECHR to learn that to a significant
extent the position of the United Kingdom prevailed in the negotiations of 1950. First, the
draft Convention eventually agreed upon was in fact widely considered to contain detailed
definitions, which were sufficient to allow States to judge accurately the extent of their com-
mitments and obligations. This largely explains the lengths to which the ECHR text often
goes in elaborating circumstances under which a violation of certain Articles may be justified,
for instance as “necessary in a democratic society.” Nonetheless, it appears somewhat bizarre

58
Position on enumeration and definition reserved, representative suggest combining both versions of the text.
59
Position on enumeration and definition reserved, representative suggest combining both versions of the text.
60
In favour of detailed definition if Court is established, in favour of enumeration if Court is not established.
61
In favour of detailed definition if Court is established, in favour of enumeration if Court is not established;
Position reserved on the question of establishing a Court.
14
through modern legal eyes, that the draft was considered exceptionally detailed: many of the
Articles contained in the Convention employ vague terminology and can scarcely be de-
scribed as self-executing. In my view, this cannot be solely attributed to the influence of the
enumeration draft, whose overall influence on the final draft was significant, but not decisive.
Perhaps it was somewhat naïve to believe that rigid and clearly delimited obligations had been
adopted which would require only little further elaboration, interpretation or development.
Nevertheless, the Convention came close to the negotiating position of the United Kingdom,
the Netherlands, Greece and Norway in many respects.

Second, the United Kingdom also succeeded in persuading a significant bloc of countries to
reject the establishment of a Court with mandatory jurisdiction over the Convention. Instead,
States were free to accept or reject the jurisdiction of the Court, and the bar was set somewhat
higher still by requiring eight States to accept the jurisdiction before the Court would even be
established. 62 Those States who advocated an enumeration of rights and mandatory jurisdic-
tion had conceded significant ground, and some openly expressed their dismay. 63

As to the matter of interpretation, there is little of substance within the travaux préparatoires:
negotiators mention interpretation exclusively when expressing their particular understanding
of individual Articles and do not engage with limits and scope of future developments, much
less mention which interpretational approach they consider preferable. While there was a mi-
nority of States that intended the Convention to function primarily as a safeguard against a
resurgence of European totalitarianism, this was never a consensus position. 64

Arguably, the drafters envisioned that the Convention would remain in force for quite some
time, much as constitutions are drafted with longer timeframes in mind. Hence, the drafters
did not seek to prejudice the interpretation of the Convention, in order to afford the ECtHR a
degree of flexibility in reacting to future developments: Articles 46 and 32 ECHR appear con-
62
Article 56 of the 1950 Convention text reads: “(1) The first election of the members of the Court shall take
place after the declarations by the High Contracting Parties mentioned in Article 46 have reached a total of eight.
(2) No case can be brought before the Court before this election.”
63
Collected edition of the "Travaux préparatoires" of the European Convention on Human Rights - Legal
Committee, Ad-hoc Joint Committee, Committee of Ministers, Consultative Assembly 23 June-28 August 1950,
vol V (Martinus Nijhoff 1979), p. 272-280 [Representative Norton of Ireland], p. 282-302, esp. 294-296 [Repre-
sentative Teitgen of France], p. 322-324 [Representative O'Higgins of Ireland], p. 336-340 [Representative
Becker of Germany perhaps went furthest with an impassioned plea for European integration].
64
Danny Nicol, ‘Original intent and the European Convention on Human Rights’ [2005] Public Law 152, 170.
15
sistent with that assumption. Unlike other international treaties, the drafters also intended the
ECHR to be bindingly interpreted, if not by a Court, then at least by a Commission. 65

The strongest rejoinder to calls for an orginalist interpretation is thus perhaps the lack of clear
evidence on intentions regarding the interpretation and the permissible scope of the Conven-
tion rights. If anything, circumstantial evidence points towards a broad mandate for the EC-
tHR, notwithstanding that preparatory works are at any rate only a supplementary source in
the interpretation of treaties under International Law. 66

Therefore, it is useful at this juncture to consider the broader context of International Law, as
the ECtHR has itself stated that the Convention “must be interpreted in harmony with other
rules of international law of which it forms a part.” 67 International Law can therefore be di-
rectly relevant to determining whether the ‘living instrument’ interpretative approach is per-
missible.

II. Compatibility with International Law

As to International Law, the ‘living instrument’ interpretative approach does not appear at
odds with the Vienna Convention on the Law of Treaties. The International Court of Justice
practices a largely similar evolutive interpretation, and the approach can further be defended
as an inquiry into the common intention and hence the object and purpose of the parties to the
ECHR. As a matter of International Law, the domestic interpretation of the ECHR cannot be
decisive to the outcome of rulings by the ECtHR. Regardless of how well the objection is rea-
soned, the UK Parliament cannot legally overrule a judgment from Strasbourg as it has at-
tempted with Hirst, and the Human Rights Act 1998 cannot be said to have established a cata-
logue of rights independent from the interpretation of the ECtHR.

65
Contrast with the International Covenant on Civil and Political Rights, where the United Nations Human
Rights Committee merely provides its ‘views’, which nonetheless have at least a limited legal relevance, see
Eckart Klein and Friedericke Brinkmaier, ‘CCPR und EGMR – Der Menschenrechtsausschuß der Vereinten
Nationen und der Europäische Gerichtshof für Menschenrechte im Vergleich’ (2001) 49 Vereinte Nationen 17,
18.
66
See Article 32 VCLT.
67
Hassan v United Kingdom, 29750/09,Grand Chamber, 16.09.2014, at 102; Al-Adsani v United Kingdom,
35763/97,Grand Chamber, 21.11.2001.
16
 1. The ‘living instrument’ under the VCLT

The central treaty governing the interpretation of treaties under International Law is the Vien-
na Convention on the Law of Treaties (VCLT), which codifies “the means of interpretation
admissible for ascertaining the intention of the parties.” 68 It is important to note, that this in-
tention of parties is of course not based solely on the intention of an individual party. Rather
the goal is to determine, to the extent possible the common intention of all parties to a treaty. 69
This is also broadly reflective of the approach adopted by the International Court of Justice
(ICJ) with regard to treaty interpretation based on the methods codified in the VCLT. 70

The VCLT establishes the ordinary meaning of a treaty as a central mode of interpretation
(Article 31), which also constitutes the first point of reference for the ICJ. This ‘ordinary
meaning’ of treaty terms is at times ambiguous, as drafters often do not include detailed defi-
nitions or because the meaning has simply changed over time. Therefore, the interpretation
often goes further towards a more detailed analysis of the intentions of the parties: the object
and purpose interpretation (Article 31 VCLT) of treaties.

Evolutionary treaty interpretation occurs when a term contained in a treaty is capable of

evolving, as opposed to being rigid and fixed for all time. Thereby the meaning changes in

68
Report of the International Law Commission on the work of its eighteenth session (ILC Ybk 1966/II, 1966),
218-219.
69
For a comprehensive overview of the practice of International Courts and Tribunals on evolutive interpreta-
tion, see Eirik Bjørge, The evolutionary interpretation of treaties (Oxford University Press 2014), p. 60; see also
V Gowlland-Debbas, ‘The Role of the International Court of Justice in the Development of the Contemporary
Law of Treaties’ in CJ Tams and J Sloan (eds), The Development of International Law by the International
Court of Justice (Oxford University Press 2013), p. 35-37.
70
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 at [53]; Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), ICJ Reports 1992, 351 at [378];
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea
intervening), [2002] ICJ Rep 303, 346; Dispute Regarding Navigational and Related Rights (Costa Rica v.
Nicaragua), ICJ Reports 2009, 213 at [237].
17
step with developments in areas, for instance in the law, which may alter the way it was origi-
nally understood (as opposed to the time of application in an individual case). 71

a. Evolutionary interpretation and the living instrument

International Law scholarship appears to recognize such an evolutive interpretation method,

and it has been conceptualized as a subcategory of the object and purpose interpretation under
the VCLT. 72 The International Court of Justice (ICJ) has adopted such an interpretative ap-
proach in various cases since the advisory opinion on Namibia, 73 and most recently in the
case of Navigational Rights. 74 This evolutive interpretation is seen as an important aspect of
determining the object and purpose of an enduring treaty, and especially so with respect to the
developing nature and threats to human rights. 75

Some aspects of the ‘living instrument’ approach however arguably go beyond evolutive in-
terpretation, if this is to be understood, as part of a broader inquiry into the object and purpose
of the treaty, as an expression of the common intention of the drafters. 76

The ECtHR has developed rights that find no express mention, 77 rights that were impossible
to anticipate for the drafters 78 and in some cases even developed rights, which the drafters

71
Eirik Bjørge, The evolutionary interpretation of treaties, p. 59.
72
James Crawford, Brownlie's Principles of public international law (Oxford University Press 2012), p. 379;
Matthias Herdegen, ‘Interpretation in International Law’ in R Wolfrum (ed), Max Planck Encyclopedia of Public
International Law (Oxford University Press 2015) at [14] and [15]; Eirik Bjørge, The evolutionary interpretation
of treaties; Rudolf Bernhardt, ‘Evolutive treaty interpretation, especially of the European Convention on Human
Rights’ (1999) 42 German Yearbook of International Law 11; David S. Jonas and Thomas N. Saunders, ‘The
Object and Purpose of a Treaty: Three Interpretive Methods’ (2010) 43 Vand J Transnat'l L 565.
73
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 at [53].
74
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), ICJ Reports 2009, 213 at [64];
see also Aegean Sea Continental Shelf (Greece v. Turkey), ICJ Reports 1978 at [77]; ; Gabčíkovo-Nagymaros
Project (Hungary/Slovakia), ICJ Reports 1997 at [112 and 140].
75
Rudolf Bernhardt, ‘Evolutive treaty interpretation, especially of the European Convention on Human Rights’
16, 17.
76
Eirik Bjørge, The evolutionary interpretation of treaties, p. 135.
77
Golder v United Kingdom, 4451/70 [Access to court].
78
Matthews v. UK, 24833/94,Grand Chamber, 18.02.1999 [right to vote in EU elections].
18
originally rejected. 79 If the parties gave no thought, or even rejected certain rights later devel-
oped by the ECtHR through the ‘living instrument’ approach, how can this interpretation rep-
resent the common intention of parties (i.e. the object and purpose of the treaty)?

b. Abstract and concrete intentions

Ronald Dworkin in A Matter of Principle gives a possible answer to this dilemma within the
context of the US Constitution. 80 George Letsas subsequently adapted Dworkin’s approach
for the purposes of the ECHR. In simplified terms, the approach holds that drafters may be
guided by many separate intentions which may not necessarily be of equal importance for the
purposes of the subsequent interpretation: abstract intentions, such as the intention to estab-
lish an effective human rights protection in post war Europe and concrete intentions which
materialize on the specific understanding of these rights at the time. According to Dworkin,
abstract intentions ought to be considered as primarily relevant over concrete intentions when
establishing the intention of drafters of the Convention. 81 Hence, applied to the ECHR it
could be seen as more important to update the human rights interpretation of the ECHR in
step with modern developments, and thus remain true to the abstract common intention of the
drafters, than uphold the 1950s era understanding of any specific right, which informed the
concrete common intention.

It should also be noted in this context, that Dworkin did not content himself with developing
the distinction between abstract and concrete considerations: he posed a deeper question,
namely why the historical intention of drafters should be relevant at all to the contemporary
application of the law. 82 Dworkin’s comments are of course made in the specific context of
the US Constitution, but his point carriers over into International Law and furnishes an alter-
native reading of the ECtHR case law.

To take a specific example, an abstract intention would be to safeguard the freedom of asso-
ciation for citizens, including the right to form and join trade unions, while nonetheless con-
sidering that this protection does not encompass a right not to be compelled to join a trade
79
Young, James and Webster v. UK, 7601/76 & 7806/77,Court, 13.08.1981 [freedom from being compelled to
join a trade union].
80
Ronald Dworkin, A matter of principle (Harvard University Press 1985), p. 48.50.
81
Ibid., p. 52-53 ;George Letsas, A Theory of Interpretation of the European Convention on Human Rights
(Oxford University Press 2007), p. 70; Eirik Bjørge, The evolutionary interpretation of treaties, p. 62;.
82
Ronald Dworkin, A matter of principle, p. 53-55.
19
union (concrete intention). Both intentions were expressed during the deliberations of Article
11 ECHR and due to significant disagreement, the phrase “no one may be compelled to be-
long to an association”, was not included in the Convention. 83 The ECtHR subsequently en-
gaged with the existence of a protection under Article 11 in the case of Young, James and
Webster v. UK. 84 The three applicants had been dismissed from their jobs for failure to join
one of three trade unions, which constituted a condition for their employment under a so-
called closed shop agreement. In essence, the latter is an agreement between the employer(s)
and trade union(s) that employees are required to be or become members of a specific trade
union. 85 While the ECtHR did not deem it relevant to rule definitively whether Article 11
contained a freedom from forced association, it nonetheless stated that even if an intention to
exclude such a protection were represented in the travaux préparatoires:

“(…) it does not follow that the negative aspect of a person’s freedom of association falls
completely outside the ambit of Article 11 (art. 11) and that each and every compulsion to
join a particular trade union is compatible with the intention of that provision. To construe
Article 11 (art. 11) as permitting every kind of compulsion in the field of trade union member-
ship would strike at the very substance of the freedom it is designed to guarantee.”

This argument can be read as distinguishing abstract from concrete intentions. The ‘living
instrument’ approach could thus indeed be understood as an expression of the drafters ab-
stract, common intention: an evolutive interpretational approach, explained by the overall
search for the common intention of the parties pursuant to Articles 31-33 VCLT. 86 There are
however a few problems with this assertion with regard to the ECHR. 87

If one holds the view that the common intention of parties is the ultimate goal of any applica-
tion of Articles 31-33 VCLT, 88 then a clear, objective distinction of abstract and concrete in-
tentions would appear crucial. This endeavour may however run into significant conceptual

83
Collected edition of the "Travaux préparatoires" of the European Convention on Human Rights - Committee
of Experts, Committee of Ministers, Conference of Senior Officials 30 March-June 1950, p. 262.
84
Young, James and Webster v. UK, 7601/76 & 7806/77
85
Ibid., at [13].
86
This is the conclusion ultimately reached Eirik Bjørge, The evolutionary interpretation of treaties, pp. 135,
139-140.
87
I do not take a position on the argument in the context of other international courts and tribunals.
88
Eirik Bjørge, The evolutionary interpretation of treaties., p. 62.
20
problems: while it is clear that drafters will more often than not hold both abstract and con-
crete intentions, it appears doubtful that one can reasonably distinguish the one from the oth-
er, especially when there is ambivalent historical evidence and the risk of circular arguments.
For instance, can it be said in the context of Article 11 ECHR that the abstract intention of
protecting freedom of association was ever distinct from the concrete intentions, i.e. the spe-
cific idea of what Article 11 ought to protect? If so, which did the drafters intend to be more
important: in other words, what was their overarching “meta-intention”? 89 Dworkin and
Letsas rightly point to these logical pitfalls, which in my view risk reducing the distinction to
little more than a convenient framework: one that permits disregarding those intentions that
conflict with the interpretation which one is predisposed to advocate.

Crucially, the ruling in Young, James and Webster 90 may also be accounted for without re-
course to different kinds of intentions. Perhaps the ECtHR did not draw distinctions between
different intentions at all, but rather utilized moral considerations, distinct from any intentions
of the drafters, to update the Convention rights in question. Indeed, that is the conclusion ul-
timately reached by Dworkin and Letsas in comparable contexts: both argue that introducing
outside moral considerations is inevitable in the business of interpretation, be it of constitu-
tions or treaties under International Law, respectively.

Therefore, instead of looking to the historical intentions to determine the object and purpose
of a treaty pursuant to the VCLT, one might first seek to determine the object and purpose of
a treaty with respect to overarching moral values, and then subsequently engage with the in-
tentions of drafters relevant to those moral values. In other words, one can acknowledge that
“any theory of interpretation of the ECHR (or any international treaty) must at some stage
stand outside the drafters’ intentions and provide a normative justification based on values of
political morality. (…) We cannot know whether (and the extent to which) drafters’ intentions
are relevant unless we settle first on the object and purpose of the treaty.” 91

89
George Letsas, A Theory of Interpretation of the European Convention on Human Rights, p. 70-71; Ronald
Dworkin, A matter of principle, p. 53.
90
It is curious that this case is one of the few where an evolutive interpretation has been alleged that is not
considered in Eirik Bjørge, The evolutionary interpretation of treaties.
91
George Letsas, A Theory of Interpretation of the European Convention on Human Rights, p. 71-72.
21
This, contends Letsas, accurately captures the true spirit of Articles 31-32 VCLT. It would
certainly account more easily for the development of unforeseen and rejected rights through
the ECtHR under the Convention.

c. Conclusion

The approach advocated by Bjørge deems evolutive interpretation as part of an investigation

into the object and purpose of a treaty, which itself is part of an inquiry into the common in-
tentions of the drafters under Articles 31-33 VCLT: the decisive factor when it comes to in-
terpretation. Letsas sees things from a different perspective when he contends that it is futile
to seek the relevant common intentions of drafters if one has not determined the underlying
moral principles of a given treaty: the latter to him constitute the true object and purpose un-
der Articles 31-33 VCLT that must guide any evolutive interpretation of the treaty. Perhaps it
is therefore more convincing to embrace the moral determinations made by the ECtHR in the
course of the ‘living instrument’ approach, and accept that the (historical) intentions of draft-
ers overall have and ought to have only a secondary bearing on the current interpretation, after
the relevant moral principles that ground the Convention are established. The practical differ-
ences between these approaches may well prove negligible, as both Bjørge and Letsas ulti-
mately seek out general objective (moral) principles to guide the interpretation of treaties:
Bjørge achieves this by inferring, and giving precedence to abstract (i.e. more general, princi-
pled) over concrete (i.e. more specific, subjective) intentions. Letsas, for his part, ultimately
forgoes this distinction altogether and seeks out the general moral principle as his starting
point.

In any case, I do not take a strong view on this question. I would only contend that it is clearly
established that international courts and tribunals practice evolutive interpretation in the con-
text of treaties. The for the most part significantly similar ‘living instrument’ approach does
not appear to conflict with the VCLT. However, it may well be the case, that the Court has
overstepped the boundaries of what is permissible under International Law and the Conven-
tion.

22
 2. Domestic interpretation of international law obligations

Danny Nicol advanced a variant of this argument by holding that the ECtHR had acted ultra
vires and that Parliament had thus been right to challenge its interpretative supremacy on the
basis of British Constitutional principles. 92 He found that

“there is a strong normative case for encouraging representative assemblies to chal-

lenge the supposed limits of their competence as enunciated by non-representative
bodies.” 93

In a purely domestic setting, Nicol has a sound argument. However, it does not lend itself well
to being transferred to the international level. Nicol’s view implies that domestic constitution-
al principles, and the interpretation given to them by Parliament, may supersede or modify the
content of international obligations. However, this proposition violates fundamental tenants of
international law. As the Vienna Convention on the Law of Treaties expressly states in Article
27, states cannot interpret treaty obligations according to their own domestic law.

This provision and adherence to it is more than a legal rule of convenience. It is a necessary
condition for any meaningful international cooperation. If the Convention is intended to have
any meaningful effect and attain uniform application, equal obligations for all parties must be
ensured. That is not merely a matter of fairness: domestic caveats would largely defeat the
purpose of international agreements, particularly those concerned with human rights. No mat-
ter how well reasoned or fundamental, domestic constitutional principles must remain irrele-
vant to the applicability and scope of freely accepted obligations under international law.

Specifically with a view to the United Kingdom, the Human Rights Act 1998 can therefore
not be said to have created a separate set of human rights obligations that are distinct from the
ECHR, 94 as Lord Irvine appears to suggest. 95 It would misconstrue the Human Rights Act
1998 to hold that the requirement of ‘taking into account’ gave UK courts leeway in deter-
mining whether the ECtHR appreciated or correctly assessed the common law. The Human
Rights Act 1998 cannot, as a matter of International Law provide a basis to disregard ECHR

92
Danny Nicol, ‘Legitimacy of the Commons debate on prisoner voting’ [2011] Public Law 681.
93
Ibid, 690.
94
Carmen Draghici, ‘The Human Rights Act in the Shadow of the European Convention: Are copyist's Errors
Allowed?’ [2014] European Human Rights Law Review 154.
95
Lord Irvine of Lairg, ‘A British interpretation of Convention rights’.
23
case law, or an opt out from the Convention at the discretion of domestic courts, even though
this was mistakenly suggested by Lord Philips in the Horncastle judgment. 96

The functioning and intricacies of domestic law can further only concern the ECtHR to the
extent that they touch upon the rights as interpreted and protected under the Convention. It is
not immediately relevant how domestic UK law and principles would conceptualize and treat
matter of rights protection arising state action, as the Convention must be interpreted autono-
mously to provide an objective standard of review for all contracting States. Hence, Baroness
Hale mispresents the relationship between domestic courts and the ECtHR when she holds
that “it is right and healthy for national courts to feel free to criticise Strasbourg where its
judgments have applied principles which are unclear or inconsistent or where it has misun-
derstood national law or practices.” 97

As Carmen Draghici rightly points out, the Convention itself knows several mechanisms for
States to voice their concerns, domestic judicial disregarding and disapplication is not permit-
ted and incurs the international law responsibility of the UK. 98 Even where a domestic UK
court expands the scope and protection of a Convention right, it is in fact not bindingly inter-
preting the Convention, but rather concerned with a corresponding statutory right. 99

At least from the perspective of international law the rule is clear: the means of implementa-
tion of the ECHR into domestic law is irrelevant: no implementation action or deviating inter-
pretation through domestic courts can alter the content of international obligations, or afford
domestic courts interpretative supremacy over the obligations under the Convention. Short of
a withdrawal, domestic law cannot intervene and alter the context of these obligations as they
have been agreed upon, and ultimately as interpreted by the ECtHR under the auspices of the
Convention.

96
R v Homcastle, [2009] UKSC 14 at [11].
97
Brenda Hale, ‘Argentoratum locutum: is Strasbourg or the Supreme Court supreme?’ (2012) 12 Human Rights
Law Review 65, p. 78.
98
Carmen Draghici, ‘The Human Rights Act in the Shadow of the European Convention: Are copyist's Errors
Allowed?’, 165.
99
Ibid, 161.
24
 III. Institutional criticism

1. State sovereignty and human rights

Finally, there are good reasons to reject institutional criticism levied against the Court, which
advocate for more deference to States. Specifically, critics misrepresent the nature and role of
human rights as an institutional check on unrestricted State sovereignty. Those who would
seize upon Hersch Lauterpacht as an early critic of the Court overlook the broader context of
his statements.

A key difference between Lord Sumption’s view and that taken by the ECtHR with its ‘living
instrument approach’ lies in the underpinning conception of rights. 100 Lord Sumption views
them primarily as “claims against the claimant’s own community”, which “[i]n a democracy,
(…) depend for their legitimacy on a measure of recognition by that community. To be effec-
tive, they require a large measure of public acceptance through an active civil society.” 101
This statement betrays a fundamental difference of understanding of the theoretical underpin-
nings of human rights, and supports a view that is at odds with most contemporary accounts,
and, I argue, does violence to the very foundation of human rights as a safeguard for minori-
ties.

There are accounts that hold the recognition and maintenance by governments as a defining
feature of human rights. Such a view is put forward, for instance by Rex Martin. 102 However,
the majority of the contemporary accounts differ sharply on this point: most authors, includ-
ing James Nickel, Charles Beitz and Amartya Sen view independence from recognition or
enactment as defining features of human rights. 103

Naturally, such independence from recognition or endorsement brings human rights into con-
flict with State sovereignty. From the perspective of International Law this is however pre-
cisely the key rationale for human rights. Human rights seek to check the otherwise largely

100
George Letsas, ‘Lord Sumption’s Attack on Strasbourg: More Than Political Rhetoric?’.
101
Lord Sumption, ‘The Limits of Law’, p. 14.
102
Rex Martin, A system of rights (Oxford University Press 1997), p. 77, 87.
103
James W. Nickel, Making sense of human rights (2nd edn, Blackwell Pub. 2007), p.9; Charles R Beitz, The
idea of human rights (Oxford University Press 2011), p. 109; Amartya Sen, ‘Elements of a theory of human
rights’ 32 Philosophy & Public Affairs 315, 329.
25
unchecked sovereign power of governments over their citizens, notwithstanding the bounda-
ries already drawn by jus cogens. Ever since the experiences of the Second World War and
the rise of regional and global protection regimes, this has been the stated raison d'être of
human rights. The protection of the individual is clearly the primary consideration: limits on
State sovereignty are not the regrettable result of an overbearing court, but logically anteced-
ent to any meaningful human rights.

Those who might be tempted to portray Hersch Lauterpacht as an early defender of State sov-
ereignty against an overreaching ECHR should be mindful of this broader context. Lauter-
pacht was indeed sceptical whether the ECtHR was the appropriate forum for individual hu-
man rights complaints. He predicted with remarkable foresight that it would lead to national
resentment towards the Convention system. 104 However, Lauterpacht understood his criticism
as part of a broader choice between two competing forums for individual complaints: the -
then still existing - European Commission of Human Rights and the ECtHR. He undoubtedly
did not seek to make an argument against the idea of Human Rights checks on State sover-
eignty from a democratic theory perspective, as some may be inclined to suggest in the con-
text of the current debate. In fact, he expressly insisted that on the matter Human Rights pro-
tection “no achievements of substance can be brought without actual sacrifices in sovereign-
ty”. 105 This entailed in his mind the power for international entities to “scrutinise and, if need
be, to pass judgment upon the conformity of the conduct of the organs of the State with its
international obligations”. He continues that this requires that the State “surrender its free-
dom of action and its legislative supremacy with regard to a matter relating to the most essen-
tial aspect of its law and constitution.” 106 Thus, Lauterpacht firmly believed in the necessity
of curtailing State sovereignty through commitments to Human Rights. 107

Without further substantiation and justification for an apparently static concept of rights and
the emphasis of State sovereignty Lord Sumption’ s argument remains incomplete. 108 Ulti-
mately, however, it is Lord Sumption’ s unsupported claim that the drafters intended a specif-
ic interpretational approach or enshrined a specific understanding of rights that renders his
104
Hersch Lauterpacht, International law and human rights (Stevens 1950), p. 447.
105
Ibid, p. 452 et seq.
106
Ibid., p.311 and generally on the ECHR p.453.
107
Ed Bates, The evolution of the European Convention on Human Rights: from its inception to the creation of a
permanent court of human rights (note 39), p. 106 et seq.
108
George Letsas, ‘Lord Sumption’s Attack on Strasbourg: More Than Political Rhetoric?’.
26
account unconvincing. As demonstrated above, the ‘living instrument’ approach does not
overstep acceptable boundaries of legal interpretation of the Convention, nor what is permis-
sible under International Law. Additionally, there is hardly a lack of express democratic en-
dorsement through States, least of all the UK.

2. Judges and rights

Critics are further unduly dismissive of the role of judges in the adjudication of rights. 109 A
more active role for judges in developing and updating the law is usual, even in legal systems
that are traditionally sceptical towards activist judges.

In my view, the ‘living instrument’ approach can also be defended in institutional terms, on
both a strong and a sceptical account of the role of judges in determining the contents of
rights. Lord Sumption argues that the “power to extrapolate or extend by analogy the scope of
a written instrument so as to enlarge its subject-matter is not always easy to reconcile with
the rule of law. It is a power which no national judge could claim to exercise in relation to a
domestic statute, even in a common law system.” 110 It is this claim and the associated institu-
tional scepticism that shall be scrutinised in the remainder of this paper. In considering this
question, it is helpful here to contrast a more expansive view of judicial interpretation as ad-
vocated by Ronald Dworkin, with the more sceptical approach favoured by Jeremy Waldron.
Both authors speak to the question of the role of judges in the interpretation and adjudication
of rights. Dworkin is willing to encourage judges towards making moral determinations in
developing and the rights afforded to individuals and is thus more sympathetic to the ‘living
instrument approach’. Waldron would see this as a task primarily for democratic legislatures,
if certain democratic conditions are met, and hence advocates a more limited role for judges,
which supports limited leeway in interpreting and developing rights.

109
In the context of the ECHR, see Lord Sumption, ‘The Limits of Law’; Lord Hoffmann, ‘The Universality of
Human Rights’, p.11; Lord Judge, ‘A view from London ’; for an argument critical of the ECHR case law, but
based on judicial assertiveness in the context of rights adjudication, see Lord Irvine of Lairg, ‘A British
interpretation of Convention rights’, 252; contrast with the more conciliatory argument of Brenda Hale,
‘Argentoratum locutum: is Strasbourg or the Supreme Court supreme?’; more generally on the role of judges in
rights adjudication, see Jeremy Waldron, ‘The core of the case against judicial review’ (2006) 115 The Yale Law
Journal 1346; Antonin Scalia, A matter of interpretation : federal courts and the law.
110
Lord Sumption, ‘The Limits of Law’, p. 8.
27
In his book on the “moral reading” of the American Constitution, Dworkin offers a rebuttal
of what he refers to as the majoritarian premise in democratic theory: the idea that whenever
the political majority is not permitted to have its way, something morally regrettable has oc-
curred, even if it is acceptable under limited circumstances. 111 Instead, so argues Dworkin,
Judges should be encouraged to set aside the majority preference, in favour of the fundamen-
tal rights of individuals, whilst adhering to principled reasoning, 112 and developing a coherent
vision of justice. 113

The result is an argument for a ‘moral reading’ of the US Constitution, which has been
adapted to legal interpretation in general, and by George Letsas in the specific context of the
ECHR. 114 Letsas defends what he describes as the “severing of interpretive links” by the EC-
tHR through its ‘living instrument’ interpretative approach with the nature of Human Rights.
He views these rights as checks on majority preference in democratic legislative bodies. Ulti-
mately, so argues Letsas, by ratifying the Convention, the

“states have given the Court jurisdiction to protect whatever human rights people in
fact have, and not what human rights domestic authorities or public opinion think
people have.” 115

The ‘living instrument’ approach is as a necessary consequence of ensuring that human rights
are able to achieve their primary purpose. Morally developing human rights is thus an act of
minority protection, as minorities are not in a position to effect meaningful legislative change
on their own behalf. In this regard, the ‘Dworkinian’ argument also stands for scepticism to-
wards democratic legislatures.

This scepticism is however far from universal. One may instead be inclined to reject a ‘moral
reading’ of the Convention as a far-reaching expansion of the authority of unelected judges.
Jeremy Waldron has developed such an account in opposition to Dworkin. 116 Taking the view

111
Ronald Dworkin, Freedom's law : the moral reading of the American Constitution (Oxford University Press
1996), p. 15 et seq.
112
Ronald Dworkin, Justice in robes (Belknap Press 2006), p. 53.
113
Ronald Dworkin, Law's empire (Hart 1998), chapter 6.
114
George Letsas, ‘The ECHR as a living instrument: its meaning and legitimacy’, p.14.
115
Ibid., p.139, emphasis omitted, citing George Letsas, A Theory of Interpretation of the European Convention
on Human Rights, chapters 2 and 3.
116
Jeremy Waldron, ‘The core of the case against judicial review’.
28
that there is no evidence to support the proposition that judges are better suited to protect
rights than democratic legislatures, Waldron argues that expansive judicial review is not dem-
ocratically legitimate, regardless of the moral soundness of the outcomes it produces.

It is important to note that Waldron advocates an egalitarian understanding of democracy, 117

and his argument can therefore be better understood if it is slightly restated: Waldron believes
that expansive judicial review violates the principle equality of citizens. He emphasises the
formally equal, democratic participation of citizens, over a moral evaluation of the outputs of
the decision-making process. 118 To Waldron, this deference to legislatures requires that four
central democratic conditions are met: (1) good working democratic institutions; (2) well-
functioning, representative judicial institutions hearing individual lawsuits and upholding the
rule of law; (3) a commitment by most in society to the idea of individual and minority rights,
as well as (4) persistent, substantial, and good faith disagreement about rights. 119 Even assum-
ing that States meet these idealistic conditions in practice, I submit that this does not render
the ‘living instrument’ approach untenable under Waldron’s account.

First, it is important to note that Waldron is concerned with a domestic setting, where the
branches of Government have differences of opinion on the content of rights. He is not pri-
marily concerned with the international level of the ECHR, where most of his democratic
conditions do not readily apply: after all, the Council of Europe does not operate as a State. It
is primarily an international organization, which promotes co-operation between European
countries in the areas of legal standards human rights, democratic development, the rule of
law and cultural co-operation. 120

If we are to attempt a transfer of Waldron’s argument to the international level, we must go

back to the essence of his claims. Waldron alleges that there is no reason to presume that the
ECtHR is better suited to protecting rights than the democratic legislatures of States. Wal-
dron’s understanding of egalitarian democracy thus becomes the tipping point: when in doubt,
give preference to the outcome of the democratic process, over inevitably subjective consider-
ations of moral ‘soundness’. This aspect is more difficult to transfer to the ECHR. The ‘legis-
lature’ - those enacting the obligations of the ECHR - is comprised of the States who have

117
Ibid., p. 1386 et seq.
118
Ibid., p. 1393.
119
Ibid., p.1360.
120
‘Who we Are’ (Council of Europe) <http://www.coe.int/en/web/about-us/who-we-are> accessed 16.7.2015.
29
ratified and accepted the developments of the ECHR, including the ‘living instrument’ ap-
proach. On the one hand, Waldron would urge respect for these democratic decisions, while at
the same time questioning the undoubtedly strong role taken by the judges in Strasbourg, es-
pecially in controversial cases.

Thus the transfer of Waldron’s argument arrives at an impasse. There are democratic argu-
ments on both sides of the ECHR debate: the democratic credentials of the decision to ratify
the Convention, and the supposedly equally strong democratic credentials of those seeking
reform of that commitment. Perhaps it is therefore useful to observe what is considered ap-
propriate in a domestic setting of the UK. Does the ‘living instrument’ approach exceed the
boundaries of interpretation in a legal system that is generally sympathetic towards Waldron’s
concerns?

The operation of the common law legal system in the UK is a good example, as the constitu-
tional relationship between the judiciary and the Parliament leads to considerable scepticism
towards rights-based review of government action or legislation through ‘activist’ judges.
This attitude stands in contrast to legal systems in the continental European legal tradition and
those common law jurisdictions with entrenched constitutional rights who are generally more
accustomed to what is commonly described as “strong form” 121 judicial review. This is the
concept of substantively reviewing, striking down or disapplying legislation on the grounds of
unconstitutionality or conflict with individual rights through a Supreme Court or Constitu-
tional Court. 122 Major common law jurisdictions, such as the UK, Australia and New Zealand
generally do not adopt such an approach, although the latter has enacted a Bill of Rights and
permits limited reviews of legislation through its courts. 123 However, even in a common law
legal system, judges consistently update and adapt their interpretation of the law to modern
developments without sparking controversy.

In his instructive work on legal interpretation, John Bell has argued that an updating approach
to the interpretation of statutes is in fact generally suitable. The interpretation given should be
the meaning “which fits its appropriate modern meaning, even if that differs from the original

121
Jeremy Waldron, ‘The core of the case against judicial review’ (note 116), p. 1354.
122
See for instance the US Supreme Court and the German Federal Constitutional Court.
123
Jeremy Waldron, ‘The core of the case against judicial review’(note 116), p. 1355.
30
meaning of the text.” 124 Bell identifies in particular ‘general words and open-ended concepts’,
‘technological developments’ and ‘policy developments’, as prominent instances where courts
might consider updating their interpretation of statutes. 125 All of these instances have abun-
dantly befallen the Convention throughout the decades of its development history. Bell justi-
fies this updating approach by arguing that legal texts are inextricably imbedded in the legal
tradition and thinking in which they were created. Thus, only the current context of a legal
text allows us to determine its “sphere of application” and consequently its appropriate mean-
ing. 126 Bell provides a particularly strong example of this through the case of R v Brittain. 127
In 1971, Brittain had shown up uninvited to a party and forced his way into the owner’s
house. Brittain had, however, no intention of occupying or claiming any right to the land,
which was the defining feature of the Forcible Entry Act of 1381 128 at the time of the Court of
Appeal decision. The relevant section of the Act read:

“And also the King defendeth, that none from henceforth make any entry into lands and tene-
ments, but in case where entry is given by the law; and in such case not with strong hand, nor
with multitude of people, but only in peaceable and easy manner. And if any man from hence-
forth do the contrary, and thereof be duly convict, he shall be punished by imprisonment.”

The statute evidently had not been intended, nor had it ever been applied to ‘gate crashing’ a
party. The Court of Appeal nonetheless interpreted the provision to convict Brittain, holding
that the underlying policy consideration of the statute was to prevent public disorder.

Thus, even on a sceptical account that broadly speaking shares the concerns of Jeremy Wal-
dron, it is appropriate for judges to interpret, develop and update legal provisions over time.
Both ends of the theoretical spectrum on the interpretation of rights through judges do not
appear at odds with an approach similar to the ‘living instrument’.

124
John Bell, ‘Interpreting Statutes over Time’ in M van Hoecke and F Ost (eds), Time and Law Is it the Nature
of Law to Last? (Bruylant 1998), p. 31.
125
Ibid., p. 32 et seq.
126
Ibid, p. 52 et seq.
127
R v Brittain, [1972] 1 QB 357.
128
Which was since repealed through the Criminal Law Act 1977, c. 45.
31
 D. CONCLUSION

Ultimately, the ‘living instrument’ interpretative approach appears legal under the Convention
and broader International Law. As I have emphasised, this does not conclusively answer the
question whether the ECtHR is legitimate, in the sense of whether the Court has the political
and moral authority to update its interpretation of the Convention rights is a question beyond
the scope of this paper.

Within that context, invoking State sovereignty and democratic considerations as an argument
against human rights protection is particularly problematic. It is true that human rights may at
times conflict with some notions of democracy. However, those who invoke that specific ob-
jection with regard to the ECHR and the UK should tread carefully: ratification and the sub-
sequent rolling endorsement of the jurisdiction of the Court, as well as the domestic Human
Rights Act 1998 can all lay a strong claim to democratic credentials.

Moreover, the textual and an orginalist interpretation that some would see enforced, is blind
to modern developments, and unduly ignores the altered nature of threats to human dignity,
freedom, and equality in the 21st century. The advent of the internet and the dramatic changes
in societal attitudes regarding sexuality and gender in the decades after 1949 must play their
part in the understanding of human rights provisions if the latter are to remain meaningful
safeguards. This is an insight that has been embraced even by those legal systems generally
sceptical towards affording judges a strong role in the adjudication of rights.

On a practical level, it is likely that politically sensitive decisions will continue to provoke
domestic criticism, as was the case in the UK with Hirst 129 and in Italy with Lautsi. 130 At the
international level, States are less confrontational: they do not appear to harbour deep reserva-
tions or concerns towards the development of the ECHR under the aegis of the Court. Politi-
cal opportunism, rather than genuine legal concerns, could explain the controversies and
threats of withdrawal from the Convention. After all, governments still appear very much

129
Hirst v. United Kingdom, 74025/01 (n7).
130
Lautsi and others v. Italy, 30814/06,Grand Chamber, 18.3.2011), particularly troubling due to public death
threats against the applicants by a Government Minister after the initial Chamber judgment, see John Hooper,
‘Human rights ruling against classroom crucifixes angers Italy’ The Guardian (3.11.2009)
<http://www.theguardian.com/world/2009/nov/03/italy-classroom-crucifixes-human-rights> accessed
14.05.2015.
32
committed to the idea of European human rights adjudication. However, the danger remains
that in an effort to ‘outflank’ EU-sceptical political movements, the political mainstream will
inadvertently erode the many achievements of human rights protection. The Court may well
become a casualty of the rise of right wing populism and the EU sceptic and xenophobic poli-
cies they bring to the table. Thus, a sovereign and isolationist State may yet experience a re-
naissance and reinstate itself as “the unsurpassable barrier between man and the law of man-
kind“. 131

131
Hersch Lauterpacht, An International Bill of the Rights of Man (2nd edn, 2013), p.5.
33