Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

legislatures or constitutional assemblies should have the power to evolve the meaning of the constitution and how far they may go before they start abusing this power.

Similar debates arise in the context of the interpretation of international human rights treaties. To be sure, international human rights treaties are not constitutions. They are multilateral agreements between sovereign states. Contracting states may at any point opt-in or pull out of a human rights treaty.2 If a state chooses not to join, or chooses to pull out, then the international court or supervisory body has no jurisdiction to hear complaints from individuals within that state. This is so even when a treaty, like the European Convention on Human Rights (ECHR, or the Convention), provides for direct access to a court and makes its jurisdiction compulsory and binding on contracting states. Moreover, human rights treaties, unlike a constitution, are not meant to contain all the fundamental principles of a political community; they are not meant to constitute a system of political organisation for a particular people. So the link between international human rights and national institutions is contingent and ultimately conditional on state consent.

Still, a lot remains common between international human rights treaties and constitutional bills of rights. They both contain lists of abstract fundamental rights that individuals have against government. They both face the need to accommodate constant and drastic societal changes in relation to these abstract rights, changes that were not anticipated at the drafting stage – or in the case of treaties, at the stage of state accession. And, in the case of the ECHR and most constitutions, they both create judicial institutions with the power to review whether individuals’ legal rights have been violated. So just like many constitutional courts, international human rights courts have to take a stand on how far, if at all, the meaning of the abstract legal rights individuals are entitled to

2 It is sometimes argued that two main United Nations Covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR), do not allow a state that has ratified them to denounce them or withdraw. This is the position of the UN Human Rights Committee, as expressed in General Comment 26 (1996). The Committee bases its argument partly on the fact that the Covenants do not expressly provide for denunciation. Most human rights treaties, however, expressly provide for state denunciation. See, e.g., art. 58 of the European Convention on Human Rights (ECHR), art. 21 of the International Covenant on the Elimination of all Forms of Racial Discrimination (CERD), and art. 78 of the American Convention on Human Rights (ACHR). Note also that the Optional Protocol to the ICCPR, which recognises the competence of the Human Rights Committee to receive and consider individual communications, expressly permits states to denounce it (art. 12).

claim before them, evolves over time. No doubt, no area of law is immune from radical changes in social circumstances. But what is distinctive about human rights law is that it engages abstract values that are meant to serve as general normative standards against which to judge the soundness of a legal system as a whole. Radical changes in societal beliefs about these abstract values poses a distinctive challenge for any court, be it domestic or international, that adjudicates on issues of fundamental human rights.3

The idea that the ECHR is a living instrument that must be interpreted according to present-day conditions has been a central feature of Strasbourg’s case law from its very early days. This chapter first provides a general account of the way in which the European Court of Human Rights (ECtHR, or the Court) has understood and used evolutive interpretation, by looking at relevant case law and how it has developed over time (sections 2 and 3).4 I aim to show that there has been an important shift in the Court’s use of the doctrine of evolutive interpretation over the years, particularly in relation to the relevance and normative weight of state consensus. I then move on to discuss the rationale and justifiability of the doctrine, particularly in relation to the moral foundations of human rights (section 4). The final section (section 5) is devoted to the relation between evolutive interpretation and the Court’s legitimacy over contracting states. It argues that evolutive interpretation, understood as the moral reading of the Convention, is essential to the Court’s legitimacy.

2.The ECHR as a living instrument: early cases

In the hands of the ECtHR, the idea of a living instrument has three main features. First, the Court will take into consideration ‘present-day standards’ as an important factor in interpreting the Convention; it will very rarely inquire into what was thought to be acceptable state conduct when the Convention was drafted, or what specific rights the drafters of the Convention intended to protect. Second, the present-day standards that the Court takes into consideration must somehow be common or shared amongst contracting states. The Court has never clarified what it means

3This is also true of courts such as the European Court of Justice (ECJ) or the International Criminal Court (ICC) which, though not designated as human rights courts, routinely face and decide issues of fundamental human rights.

4I shall use the terms ‘evolutive interpretation’ and ‘living-instrument approach’ interchangeably. Another synonym in the relevant literature is the term ‘dynamic interpretation’.

for a standard to be common or shared. As we shall see, the Court does not make it a condition that all contracting states have expressly accepted the standard by way of legislative enactment. Third, the Court will not assign decisive importance to what the respondent state (be it its authorities or public opinion) considers to be an acceptable standard in the case at hand. This is so particularly if the respondent state’s practice is out of line with the commonly accepted standards in the Council of Europe. Over time, however, the Court has shifted the emphasis it places on the various aspects of the living instrument approach. This section looks at the early cases decided by the old Court, i.e. before the reform of Protocol 11 to the ECHR (1998).

The idea that the ECHR is a living instrument has figured in Strasbourg’s case law since its very early days. The Court first acknowledged it in the judgment of Tyrer v. United Kingdom, delivered in 1978.5 The Court had to decide whether judicial corporal punishment of juveniles amounts to degrading punishment within the meaning of article 3 of the Convention. The punishment, having the form of bare-skin birching carried out by a policeman at a police station, was prescribed by law and practised in the Isle of Man, a dependent territory of the United Kingdom, with a significant degree of legislative autonomy. At the time, judicial corporal punishment had been abolished in the rest of the United Kingdom and neither was to be found in the vast majority of the other contracting states. In his submissions, the Attorney-General for the Isle of Man put forward the following argument: judicial corporal punishment could not be considered degrading because it ‘did not outrage public opinion in the Isle of Man’.6 The Court, however, rejected this argument. It noted that public acceptance of judicial corporal punishment could not constitute a criterion as to whether it is degrading or not, because the reason why people favour this type of punishment may well be the fact that corporal punishment is so degrading that it operates as a deterrent. It then went on to add:

The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, 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.7

with the relevant international instruments, towards full juridical recognition of the maxim ‘mater semper certa est’.13

The Court concluded that article 8 of the Convention had been breached. There is a noticeable difference between Tyrer and Marckx. In the latter, the Court went on to refer explicitly to two international conventions (the Brussels Convention on the Establishment of Maternal Affiliation of Natural Children and the European Convention on the Legal Status of Children born out of wedlock) as a way to demonstrate the existence of ‘commonly accepted standards’. Yet these two international conventions were far from being signed by the majority of the contracting states at the time. The way the Court justified this was by saying that, ‘the existence of these two treaties denotes that there is a clear measure of common ground in this area amongst modern societies’. It added, further, that Belgian law itself showed signs of this ‘evolution of rules and attitudes’.

In the case of Dudgeon v. United Kingdom, decided in 1981, the main issue was whether penalisation of homosexuality in Northern Ireland violated the right to respect for private life guaranteed by article 8(1). The respondent state drew the Court’s attention to the particularities of Northern Ireland: it is a conservative society that places emphasis on religious matters, and in which there was a genuine conviction, shared by a large number of people and institutional actors, that decriminalising homosexuality would be seriously damaging to the moral fabric of the society. The Court took the view that these particularities, and in particular the ‘moral climate’ of Northern Ireland, are a relevant factor for the purposes of article 8 ECHR. But then it went on to say:

As compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied.14

The Court further added that there had been little enforcement of the criminal prohibition in recent years, and that the respondent state had

13Ibid., at para. 41.

14ECtHR, Dudgeon v. United Kingdom (Appl. No. 7525/76), Judgment (Chamber), 24 February 1983, Series A, No. 59, para. 60.

provided no evidence to show that decriminalisation would be injurious to moral standards in Northern Ireland. It concluded that, though a legitimate concern, the moral climate in Northern Ireland did not amount to a pressing social need, capable of outweighing the negative effect that the prohibition had on the life of homosexuals. It found a violation of article 8 of the Convention.

The early cases in which the Court characterised the Convention as a living instrument display a certain pattern. First, the Court is invited to rule on an issue that is morally sensitive in the respondent state: corporal punishment, children born out of wedlock, homosexuality. Second, the Court acknowledges the relevance of the prevailing moral climate within the respondent state to the interpretation of the Convention. Third, the Court appeals to broader developments in the Council of Europe as a counterweight to the prevailing moral climate in the respondent state. And fourth, the Court also examines a number of substantive considerations that do not relate to the prevailing moral climate or to common standards in the Council of Europe. Rather, they relate directly to the purpose of the protected right and to why governmental acts fall short of serving this purpose in the case at hand.15 In most cases, the pattern results in the finding of a violation.

The use of present-day developments and standards in the Council of Europe as a counterweight to the moral climate prevailing in the respondent state is the central feature of evolutive interpretation as applied by the old Court. It has a negative and a positive side. The negative side is that what the national authorities and the people of the respondent state believe about the applicant’s human right claim is not decisive for whether she has that right under the Convention. The positive side is that commonly held standards in the Council of Europe are very weighty considerations for whether the applicant has the right she claims. Evolutive

15In ECtHR, Guzzardi v Italy (Appl. No. 7367/76), Judgment (Plenary), 6 November 1980, Series A, No. 39, for example, the Court had to decide whether compulsory residence in an island constitutes deprivation of liberty. The Italian government argued that all that the applicant had suffered was not a deprivation, but a restriction of liberty, which is outside the scope of art. 5. In response, the Court held that ‘the difference between deprivation and restriction is one of degree or intensity and not one of nature or substance’, that deprivation may take several forms and that ‘account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’. It concluded that the applicant’s condition amounted to deprivation of liberty even though there was no physical barrier to the applicant’s movement. Towards the end of its judgment, the Court made reference to ‘the notions currently prevailing in democratic states’.

interpretation is therefore linked to two other doctrines of the Court, which complement it: autonomous concepts and the margin of appreciation.

The Court’s doctrine of autonomous concepts is linked to the negative aspect of the evolutive interpretation. The Court and the former Commission have held that a number of Convention concepts have autonomous meaning, i.e. they ‘must be interpreted as having an autonomous meaning in the context of the Convention and not on the basis of their meaning in domestic law’.16 On the Court’s view, ‘definition in national law has only relative value and constitutes no more than a starting point’.17 The Court has characterised as autonomous a signifi- cant number of concepts that figure in the Convention, such as criminal charge,18 civil rights and obligations,19 possessions,20 association,21 victim,22 civil servants23 and lawful detention.24

The positive aspect of evolutive interpretation is linked to the role that consensus within the Council of Europe plays in the Court’s doctrine of the margin of appreciation.25 Throughout the 1980s and 1990s, the old

16 ECommHR, RL v. The Netherlands, Decision (Commission), 18 March 1995, not reported.

17ECtHR, Chassagnou and Others v. France (Appl. Nos. 25088/94, 28331 and 28443/95), Judgment (Grand Chamber), 29 April 1999, Reports 1999-III, para. 100; ECtHR, Karakurt v. Austria (Appl. No. 32441/96), Judgment (Third Section) not reported, at 4.

18ECtHR, Engel and Others v. The Netherlands (Article 50) (Appl. Nos. 5100, 5101 and 5102/71; 5354 and 5370/72), Judgment (Plenary), 8 June 1976, Series A, No. 22; ECtHR, Campbell and Fell v. United Kingdom (Appl. Nos. 7819 and 7878/77), Judgment (Chamber), 28 June 1984, Series A, No. 80; ECtHR, Ravnsborg v. Sweden (Appl. No. 14220/88), Judgment (Chamber), 23 March 1992, Series A, No. 283-B.

19ECtHR, Konig v. Germany (Appl. No. 6232/73), Judgment (Plenary), 28 June 1978, Series A, No. 27; ECtHR, Sporrong and Lönnroth v. Sweden (Appl. Nos. 7151 and 7152/75), Judgment (Plenary), 23 September 1982, Series A, No. 52.

20ECtHR, Gasus Dosierund Fordertechnik GmbH v. The Netherlands (Appl. No. 15375/89), Judgment (Chamber), 23 February 1995, Series A, No. 306-B; ECtHR, Iatridis v. Greece (Appl. No. 31107/96), Judgment (Grand Chamber), 25 March 1999, Reports 1999-II; ECtHR, Former King of Greece v. Greece (Appl. No. 25701/94), Judgment (Grand Chamber), 23 November 2000, Reports 2000-XII.

21Chassagnou and Others v. France.

22ECtHR, Asselbourg and 78 others and Greenpeace Association-Luxembourg v. Luxembourg (Appl. No. 29121/95), Judgment (Second Section), 29 June 1999, Reports 1999-VI.

23ECtHR, Pellegrin v. France (Appl. No. 28541/95), Judgment (Grand Chamber), 8 December 1999, Reports 1999-VIII; ECtHR, Frydlender v. France (Appl. No. 30979/96), Judgment (Grand Chamber), 27 June 2000, Reports 2000-VII.

24ECtHR, Eriksen v. Norway (Appl. No. 17391/90), Judgment (Chamber), 27 May 1997, Reports 1997-III; ECtHR, Witold Litwa v. Poland (Appl. No. 26629/95), Judgment (Second Section), 4 April 2000, Reports 2000-III.

25See Arai-Takahashi, Chapter 3, this volume.

Court granted a wide margin of appreciation to the respondent state in cases where there was no consensus amongst contracting states on the moral issue raised by the applicant’s case, particularly in relation to restrictions based on public morals. These cases concerned a number of controversial issues regarding freedom of expression and private life: the publication of a book containing sexual advice for adolescents,26 the exhibition of obscene paintings,27 the screening28 or licensing29 of a blasphemous film and the legal reassignment of sex for post-operation transsexuals.30 In these cases, the old Court found the lack of consensus or of a ‘uniform conception of morals’ a weighty factor, and in the end did not find a violation. Of particular note are the cases relating to postoperation transsexuals and their unsuccessful claim to have their new gender recognised by law. The old Court decided three such cases (Rees, Cossey, Sheffield and Horsham) in a period of twelve years, indicating that the issue amounts to a human rights violation, but finding no consensus amongst contracting states in favour of the applicants.

In sum, until the late 1990s, the Court would cite present-day standards in the Council of Europe as a counterweight factor to the moral climate prevailing in the respondent state, a climate prejudiced against the applicant’s claim (Tyrer, Marckx, Dudgeon). Once it had done so, it would examine the substance of the right in question and often conclude that there has been a violation. In other cases, however, the Court would be reluctant to recognise that a common standard exists, given that there was no consensus amongst contracting states (Handyside, Sheffield and Horsham, Otto-Preminger). In these cases, the Court would perform a less strict scrutiny of the substantive issue in question, granting the respondent state a wide margin of appreciation and ultimately finding no violation. This resulted in a normative tension between the Court’s

26 ECtHR, Handyside v. United Kingdom (Appl. No. 5493/72), Judgment (Plenary), 7 December 1976, Series A, No. 24.

27ECtHR, Muller and Others v. Switzerland (Appl. No. 10737/84), Judgment (Chamber), 24 May 1988, Series A, No. 133.

28ECtHR, Otto-Preminger-Institut v. Austria (Appl. No. 13470/87), Judgment (Chamber), 20 September 1994, Series A, No. 295-A.

29ECtHR, Wingrove v. United Kingdom (Appl. No. 17419/90), Judgment (Chamber), 25 November 1996, Reports 1996-V.

30ECtHR, Rees v. United Kingdom (Appl. No. 9532/81), Judgment (Plenary), 17 October 1986, Series A, No. 106; ECtHR, Cossey v. United Kingdom (Appl. No. 10843/84), Judgment (Plenary), 27 September 1990, Series A, No. 184; ECtHR, Sheffield and Horsham v. UK (Appl. Nos. 22985/93 and 23390/94), Judgment (Grand Chamber), 30 July 1998, Reports 1998-V.

reasoning in cases like Marckx and in cases like Rees and Sheffield and Horsham. In Marckx, the Court would be satisfied to invoke some abstract common standard, evidenced by the existence of a couple of international conventions which had not been ratified by the majority, let alone all, of the contracting states. And it would do so by citing the idea that the ECHR should be seen as a living instrument. In cases like Sheffield and Horsham, however, the Court would raise the bar as to what a common standard is. It would require a ‘generally shared approach among the Contracting States’ and would grant states a wide margin of appreciation in the absence of it. In the eyes of academic commentators, the doctrine of the margin of appreciation was naturally seen as a constraint to the doctrine of evolutive interpretation: the Court would bring the meaning of the Convention rights up to date, but it would use common ground, or consensus amongst contracting states, as the ultimate limit of how far it can go.31

3.The new Court: from consensus to common values

The previous section highlighted a tension between cases in which the old Court found a violation, citing the living instrument approach and cases in which it found no violation, citing the respondent state’s margin of appreciation. In the early 2000s, after the coming into force of Protocol 11, this tension started to retreat in favour of the living instrument approach. The new Court started favouring the Marckx test over the Sheffield and Horsham test. Recall that the Court in Marckx relied on some abstract sense of common standards, evidenced by the existence of some international conventions (not ratified by the majority of member states) and by trends of evolution in societal beliefs. By contrast, in cases like Sheffield and Horsham, the Court granted the respondent state a wide margin of appreciation in the absence of a ‘common ground’ or ‘shared approach’ by the contracting states. Let us look at some examples.

In 2002, the Court revisited the issue of whether the state has a positive duty, under article 8 ECHR, officially to recognise the new gender

31See, e.g., Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2001): ‘On the other hand the existence of a common European standard tends to strengthen the Strasbourg organs in the assertive application of evolutive interpretation, shrinking the breadth of margin’, at 200.

identity of post-operative transsexuals and to alter public records accordingly. In the cases of Goodwin v. United Kingdom and I v. United Kingdom, the Court reversed its previous case law, ruling unanimously in favour of the applicants. In its reasoning, the Court noted that it must have regard to ‘the changing conditions within the respondent State and within Contracting States generally’ and respond to any ‘evolving convergence as to the standards to be achieved’.32 In other words, it tried to justify reversing its previous case law on the ground that there were significant developments in Europe since Sheffield and Horsham. But, in effect, the Court simply loosened its test for the existence of a common, present-day standard. It noted that although the emphasis in Sheffield and Horsham was on the lack of a common European approach, this lack is ‘hardly surprising’ in countries with such diverse legal systems and traditions. And it went on to say:

The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of postoperative transsexuals.

Just like Marckx and unlike Sheffield and Horsham, the Court in Goodwin was willing to rely on what it took to be a trend of evolution, as a present-day common standard, in order to outweigh the respondent state’s appeal for a margin of appreciation. Just like in Marckx, the test for the existence of present-day common standards was so loose as to make one wonder whether the Court is paying lip-service to the idea of common ground.

In subsequent cases, the new Court generalised and expanded this approach. It started appealing to evidence of common ground and trends of evolution in international law materials, regardless of whether such materials are binding and whether most contracting states have ratified them. So, for example, the Court has taken into consideration the following materials: recommendations and resolutions of the Committee of Ministers and the Parliamentary Assembly,33 reports of the ‘Venice

32ECtHR, Goodwin v. United Kingdom (Appl. No. 17488/90), Judgment (Grand Chamber) 27 March 1996, Reports 1996-II, para. 74.

33ECtHR, Oneryildiz v. Turkey (Appl. No. 48939/99), Judgment (Grand Chamber), 30 November 2004, Reports 2004-XII.