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This chapter looks at the role that drafters' intentions and the text should play in the interpretation of the ECHR. The European Court has been relatively consistent in rejecting intentionalism and textualism as interpretive methods, in favor of the so-called ‘evolutive’ or ‘living instrument’ approach. The chapter provides a philosophical defence of the Court's approach drawing on the relevant debates about the interpretation of the US Constitution. It is argued that neither the text, nor drafters' intentions, can alone justify why the ECHR grants a particular right or not. Certainty and publicity, two values often cited in support of intentionalism and textualism, have no application in the ECHR which is neither meant to guide individuals' conduct nor to protect States' expectations about what their ECHR obligations are. On the contrary, the ECHR aims to prohibit States from treating individuals in a certain way, however convenient or justified they may find it.

This chapter examines several key judgments from the late 1970s. It begins with an overview which emphasizes the importance of the contribution made by the Court of the late 1970s to the Strasbourg jurisprudence overall. It considers the teleological approach to interpretation, Strasbourg law on positive obligations, the law relating to evolutive interpretation and the living instrument doctrine, and the approach taken by the Court to restrictions on Convention rights. The remainder of the chapter examines four key cases in which the Court first developed, or made vital contributions to its understanding of the above doctrines: Tyrer v United Kingdom; Marckx v Belgium; Airey v Ireland; and Sunday Times v United Kingdom. The last-mentioned case was particularly important for the development of the margin of appreciation doctrine.

What is wrong with rights might lie in several places. Some accuse the very concept of a right belonging to an individual as a kind of property. Chapter 6 considered this charge and found it wanting. Instead, Chapters 5, 7, 8 and 9 identified problems in misleading connotations of talk about ‘natural rights’, the failure to reckon with the contingency of rights upon economic and political conditions, and the importation of what is paradigmatically a legal idea into ethical deliberation. An additional possibility is that problems lie not only in concepts of rights, but also in the way in which judges treat them. This is the topic of this chapter and the following one. The present chapter examines recent decisions of the European Court of Human Rights (Al-Skeini [2011], Al-Jedda [2011]), and the Supreme Court of the United Kingdom (Smith [2013]), which threaten the UK’s military power. It concludes that, in these cases, the jurisprudence of the European court is vitiated by an imprudence born of a limited historical and political imagination, a culture of risk-aversion, and an ideological rights-fundamentalism. Such imprudent jurisprudence serves to weaken the military effectiveness of European States Party and their ability to support politically fragile states, to undermine states’ confidence in international treaties, and to provoke calls for states’ withdrawal from the Convention altogether.

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.

The European Court of Human Rights has a long tradition of interpreting the European Convention of Human Rights evolutively, but can national courts also change the meaning of the terms of the ECHR through interpretation? This chapter looks into how a judicial system comprising European and national elements can be constructed that distinguishes three possible models of judicial human rights architectures. Based on those models, the practice of domestic courts in three member states (Germany, Ireland, and the United Kingdom) are reviewed. Subsequently, the question of evolutive interpretation by national courts is looked at from the European perspective focusing on its legal, institutional, and normative aspects. In conclusion, the insights are summarized by five themes, including tools to harmonize international and national jurisprudence, the diversification of domestic rules to implement international law, compatibility problems of national and European judicial architectures, and the notion of judicial architecture.

The concept of ‘European consensus’ is the creation of the European Court of Human Rights. Early on, the Court determined that the European Convention on Human Rights is a living instrument and that, in interpreting the Convention over time, the Court has to take the changing attitudes in societies into consideration. The European consensus is an element within the so-called evolutive interpretation of the Convention. Nevertheless, the details as to its origin and scope remain controversial and give rise, from time to time, to a criticism of the Court as to its use of the concept of European consensus in the case at hand. This chapter focuses on any possible analogy that the concept of European consensus may have to the sources of international law and its possible relationship with the general rule of interpretation of a treaty. This is done with the aim of providing the elements of reflection within the debate which claim that the Court, in interpreting the Convention, overshadows State consent on the scope and content of the Convention. The chapter concludes that, upon a closer look, the Court has resorted to European consensus largely within the confines of the general rule of interpretation of a treaty. The notion has denoted both subsequent State practice as well as new regional customary law. Clearer differentiation between these types of situation would help the Court avoid the criticism of too much evolutive interpretation.

This chapter analyses the idea, in the words of the European Court, that ‘the Convention is a living instrument’. The chapter argues that the domestic courts have taken seriously the notion that if the evolutionary interpretation of the Convention rights as laid down by the European Court means that the rights now mean something different from that which they meant earlier, then it is their duty to give effect to that current meaning. In taking this approach, the domestic courts are aided by their own national legal systems’ approaches to techniques similar to the living instrument doctrine, such as ‘always speaking’ interpretation, ‘living tree’ interpretation, and ‘Verfassungswandel’. The domestic courts do not hesitate to go beyond the interpretation given by the European Court of a Convention provision, which shows that they have understood the meaning of the notion that ‘the Convention is a living instrument’.