Suppose you make an agreement. Let’s also suppose that, in spite of trusting the other party, you’re smart enough to put this agreement in writing. So far, so good: both parties know what is agreed upon and have proof of this on paper. But what if, like magic, a new method of interpreting contracts was proclaimed by judges which basically meant that the wording of the contract could mean the exact opposite of what you thought it meant when you signed it? You wouldn’t be very happy about it and you would perhaps even be wary to ever sign a contract again. Before you know it, you’re bound to an agreement you didn’t sign up for.
Strangely enough, this is precisely what the European Court of Human Rights has in its power to do to the European Convention on Human Rights when using the so-called Living Instrument interpretation. In 1978 the Court proclaimed in the Tyrer case that “the Convention is a living instrument [..] which must be interpreted in the light of present-day conditions”. At first glance this seems like a very sensible thing for judges to do. Times change and so do circumstances, technologies and values. It isn’t a very good thing if the law, or in this case a treaty, doesn’t change along with these circumstances because an obsolete law is a useless law.
However, one of the most important rules in international law, is the consent to be bound rule. It means that states can only be bound to rules they specifically agreed to. How does this relate to the effect the Living Instrument Interpretation might have in changing the Convention’s meaning?
Another important question behind this interpretational method is whether it is the judges place at all to change the meaning of the Convention? Where does the judge’s task as law interpreter and law applier end and the task of creating new legislation begin? What guarantees are there to make sure that the judicial branch doesn’t take over the legislative branch in the Council of Europe? Are states really capable of overruling judgments of the Council of Europe with new legislation in the form of, for instance, protocols, or is it merely a theoretical possibility of turning back decisions of the judicial branch but not a practical and effective one?
In short, the Living Instrument interpretation raises many questions varying from what it exactly means, how and when it is applied to how this relates to the separation of powers and checks and balances in the Council of Europe. These questions have yet to be researched extensively. My dissertation will focus on these questions and will try to shed some light on the theoretical aspects of the Living Instrument. For now, let’s just conclude that the Living Instrument, while still facing some interesting theoretical questions, is in practice already being used by the Court as an instrument of interpretation and is therefore very much alive.