Tyrer v. United Kingdom in 1978 was vitally important in the evolution of the European Court of Human Rights’ approach to interpreting the ECHR.8 At issue was corporal punishment, which would have been common in Europe in 1950 when the ECHR was initially adopted.9 If the ECtHR had taken the approach of referring to the intention of the drafters, there is no doubt that this would not have been considered a violation of the ECHR. However, the court took the opportunity to create a method of developing the case law of the court in a rational and incremental way, rather than simply stating that precedent did not bind an international court. In this way, the court found a logical way to develop its judgments and still have them respected. In Tyrer, the ECtHR found that judicially sanctioned corporal punishment was a violation of the prohibition of degrading punishment contrary to article 3 of the Convention. The court held that “the Convention is a living instrument which . . . must be interpreted in the light of present day conditions” and went on to state that it was influenced by the “developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.”10
Mowbray has commented upon the fact that the court did not elaborate further upon the “living instrument” doctrine in Tyrer, stating that “as the doctrine was to become the basis of considerable judicial creativity, it would have been beneficial if the Court . . . had expanded upon the reasons for its adoption of such a doctrine.”11 The court has also been criticized for not feeling the need “to cite any detailed evidence” on the “commonly accepted standards” in penal policy in the Council of Europe.12 Nevertheless, the court in the more recent case of Stafford v. United Kingdom did elucidate this method of interpretation further, explaining that a “failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.”13 This explains the emphasis on “present day conditions,” rather than the intentions of the drafters.
The “living instrument” doctrine as a method of interpretation raises two main concerns. First, despite the fact that international courts are not bound by precedent as such, if the doctrine were used to excess, it would leave states concerned that they could not predict their human rights obligations. The court has reassured states about this in a number of cases, stating that, “while not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases.”14 Second, there are concerns whether the consideration of the contemporary approach in Europe is a strength or a weakness of the court. Wintemute argues that consensus is a strength because the court’s judgments are binding, and “when it takes a stand on a particular human rights issue, it expects 47 European countries to follow, sooner or later,” and suggests that if there were no consensus, the court would risk a “political backlash.”15
The Example of the ECtHR Applying the Living Instrument Doctrine to Homosexuality
Dudgeon v. United Kingdom was one of the first cases in which the court used the living instrument doctrine to interpret article 8 of the ECHR (the right to respect for family and private life) to find a violation in the case of a homosexual applicant. In this instance, Dudgeon was suffering from fear and psychological distress as a result of laws that made homosexual acts between consenting adult males criminal offenses.16 The court accepted that some degree of regulation of male homosexual conduct was necessary in a democratic society. Despite the fact that the legal prohibition of homosexuality was the norm in 1950s Europe, the ECtHR held that, “compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour,” finding that in the majority of the members of the Council of Europe, criminal sanctions no longer applied to homosexual practices.17
Some academics have criticized this decision, commenting that the fact that the court, while finding a violation, still acknowledged the legitimate necessity to protect vulnerable youth and was clearly still accepting of “discriminatory legislation concerning the age of consent to same-sex practices.”18 This suggests that in 1981, while the court felt confident in developing a prohibition against criminalizing private homosexual acts, it did not accept at that time that there was a consensus prohibiting discrimination on age of consent. This reference to a European consensus raises the question of whether the living instrument doctrine could result in the court’s interpreting its articles more restrictively as a result of changes in the domestic law of Council of Europe States. Is consensus within Europe so important for a contemporary understanding of the ECHR, as developed through the living instrument doctrine, that the interpretation of the articles by the court could contract as well as expand? On this issue it has been commented that “the Court takes contemporary understanding in member states to be better and not merely different” to earlier criminalization and that, for the change to affect the interpretation of an ECHR right it “must constitute an improvement, moving closer to the truth of the substantive protected right.”19
It is interesting that at times the ECtHR does not refer explicitly to the living instrument doctrine, rather to changes within the European consensus. This is the situation in the next two cases. Nevertheless, this is understood by academics as using the living instrument doctrine as it is based on present-day conditions in the Council of Europe area. The first of these cases deals with the discrimination against admitting homosexuals into the armed forces in Smith and Grady v. United Kingdom, two conjoined cases in which the applicants were discharged from the armed forces after investigations confirmed their sexual orientation.20 The court did not accept the British government’s argument that the presence of homosexuals would have a “substantial and negative effect on the morale . . . fighting power and operational effectiveness of the armed forces,”21 but, in finding a breach of article 8 (private life), held that it would not consider negative attitudes as a justification for interferences with the applicant’s rights “any more than similar negative attitudes towards those of a different race or colour.”22 The court did not consider article 14 on discrimination,23 and while it did not actually mention the phrase “living instrument,” the fact that it noted that it could not “overlook the widespread and consistently developing views and associated legal changes to the domestic laws of Contracting States on this issue” makes it clear that in effect it was using the living instrument doctrine.24 The court’s comparison between negative attitudes to sexual orientation with negative attitudes to race or color is an indication that by the end of the twentieth century, the court viewed personal sexual orientation as an innate characteristic concerning an important part of an individual’s private life and requiring very serious reasons for it to accept that a violation of the right would be necessary in a democratic society.25
Although the United Kingdom had enacted legislation to decriminalize homosexual acts in private in 1967, the legislation did not consider the acts private if more than two people were engaged in them.26 This came before the ECtHR in ADT v. United Kingdom, as during a search of the applicant’s home, the police uncovered a video showing the applicant engaged in homosexual acts with up to four other men.27 He was convicted of gross indecency and complained that this breached his right to respect for his private life under article 8 of the ECHR.28 The court held that the applicant had suffered an interference with his private life, noting that the video was clearly not intended to be published as the applicant had “gone to some lengths not to reveal his sexual orientation.”29 In finding a violation of article 8, the court emphasized that the activities were genuinely private, stating that the applicant was “involved in sexual activities with a restricted number of friends in circumstances in which it was most unlikely that others would become aware of what was going on.”30 This case can really be seen as a continuation of Dudgeon v. United Kingdom, that homosexual acts in private must be decriminalized.31 Therefore, this case is less interesting for the living instrument doctrine, which is not directly referenced in the case, than it is for the criticism that this judgment, relying as it does on the right to private life, encourages the view that “public authorities in contracting states [can] justify mechanisms of social control designed to suppress the leakage of homosexuality into the public sphere.”32
L and V v. Austria concerned two applicants in a conjoined case who had been convicted and punished for having consensual sexual relations with men between 14 and 18, which was not an offense for heterosexuals.33 In this case, the court explicitly used the living instrument doctrine to explain the change of approach in finding a violation of article 14 (discrimination) in conjunction with article 8 (private life). Furthermore, it referenced the “ever growing European consensus to apply equal ages of consent for heterosexual, lesbian and homosexual relations” in support of this.34 The court used the language of “minoritization,” stating that the Austrian legislation “embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” and used the Smith and Grady formula of comparing negative attitudes against homosexuality to negative attitudes toward “race, origin or colour.”35 As people have no choice about their race, origin, or color, it is clear that the ECtHR’s view of sexuality is that it is an innate characteristic. It is therefore interesting that academics have warned that the benefits of this equal status also have the effect of weakening “any argument for human rights protection of sexuality and sexual activity in terms of personal choice.”36
In some cases, the court has indicated that it is likely to change its approach in a future case. This is useful as it gives the States Party to the Council of Europe warning that their obligations under the ECHR may be extended as the domestic law in the Council of Europe is developing. Schalk and Kopf v. Austria is one of those cases in which the court gave warning that its case law may develop. In this case, the applicants, two homosexuals, were unable to persuade the ECtHR that the refusal of Austria to allow them to marry constituted a violation of article 12 of the ECHR.37 Unusually, the court made reference to the historical context in which the Convention was adopted, when “marriage was clearly understood in the traditional sense of being a union between partners of different sex.”38 Nevertheless, the court went out of its way to comment that “it has not yet had an opportunity to examine whether two persons who are of the same sex can claim to have a right to marry,” and went so far as to say that it “would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex.”39 While the court accepted that the institution of marriage had gone through major social changes, it obviously found central to its decision of no violation that there is no European consensus regarding same-sex marriage.40 However, the case is important, not just for essentially giving notice that the living instrument interpretation will require same-sex marriages when there is sufficient European consensus, but also in acknowledging for the first time that same-sex couples can enjoy family life under article 8.41 This takes the situation of homosexuals out of the private sphere, which has been much criticized and indeed “Article 8 places States under a positive obligation to establish frameworks enabling family life to be enjoyed.”42 Furthermore, Austria had introduced legislation to allow same-sex civil partnerships during the case and, importantly, while the court held that Austria could not be criticized for not introducing legislation earlier, it held that there was a “margin of appreciation in the timing of the introduction of legislative changes,” not on the issue of “whether to introduce such changes.”43 Indeed, it has been questioned “how family life can be fully enjoyed without some form of legal recognition being offered to those in same-sex relationships.”44
The implications of Schalk and Kopf v. Austria came to fruition in the Grand Chamber judgment in Vallianatos and Others v. Greece.45 In this case, the court finally found that Greece’s failure to provide for same-sex civil unions at the same time as providing for different-sex civil unions discriminated against the applicants under article 14 (discrimination) in conjunction with article 8 (private life).46 Although the court was careful to state that it was not looking in the abstract to a general obligation upon the Greek State to provide legal recognition for same-sex relationships, it emphasized that “same-sex couples are just as capable as different-sex couples of entering into stable committed relationships” and in their “need for legal recognition and protection of their relationship.”47 Importantly, the court recognized that officially recognized civil partnerships have an “intrinsic value” even if the rights they provide could have been obtained through private law means.48 This part of the decision cannot be overstated as it “requires recognition that same-sex relationships are of an equal moral worth to different-sex.”49 The court made reference to the living instrument doctrine and said that the state, in protecting family life, had to “take into account developments in society and changes in the perception of social and civil-status issues and relationships including the fact that there is not just one way or one choice when it comes to leading one’s family or private life.”50 This shows just how important the recognition of the family life of same-sex couples was. However, it is interesting that the Grand Chamber of the court was willing as far as it did on just an emerging trend, rather than a European consensus.51
In the final case of interest, Oliari and Others v. Italy, the court took the Vallianatos judgment a step further.52 In this case, the applicants again complained about the lack of state provision for same-sex civil partnerships or marriage, but here there was no form of civil partnership available to different-sex couples.53 The court reiterated the need for legal recognition and protection of committed stable same-sex relationships and the fact of the intrinsic value of such official recognition.54 However, the court could not refer to a European consensus as only a “thin majority” of Council of Europe States had legislated in favor of recognizing and protecting same-sex relationships.55 The ECtHR did not dispose of the case on the basis of present-day conditions in the Council of Europe. Instead it looked at the situation in Italy and found that the Constitutional Court had called for “juridical recognition of the relevant rights and duties of homosexual unions” and that this reflected the sentiments of the majority of Italians.56 It even found that the Italian government had not denied the need for such protection.57 Therefore, the court did not feel the need to refer to the living instrument doctrine in finding that, “in the absence of a prevailing community interest” and in the light of the domestic court’s conclusions, Italy had “failed to fulfil . . . [its] positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.”58
Perhaps the living instrument doctrine had its basis in the Vienna Convention on the Law of Treaties’ concept of interpretation in light of the object and purpose of the treaty.59 It can be argued that the living instrument doctrine is merely an extension of the “object and purpose” reading of the Convention, which is appropriate in the unique circumstances of a court that has been appointed to interpret the compliance of states with their human rights obligations. Failure to adopt an appropriate interpretative methodology would leave the court unable to do more than enforce rights as they were envisaged over 65 years ago.
It is interesting that where states have chosen to extend the Convention rights through Protocols, “the Court has adopted great caution in not transgressing into these areas through over-creative interpretations of the existing text.”60 Nevertheless, with respect to the original convention rights, “the Court does not always care to establish an explicit consensus across Contracting States” and it “is more interested in the moral value the Convention rights serve and what arguments best support it rather than on whether such arguments are widely shared across the Council of Europe.”61 As demonstrated in Oliari, it may be questioned whether the court’s judgments will still be respected if the “living instrument” doctrine is stretched to the breaking point. With respect to the cultural context of the court as the final human rights arbiter of 800 million people, it can certainly be argued that the court in its jurisprudence is “actively engaged in fashioning the landscape of present day conditions,” not just following them.62
The author gratefully acknowledges the assistance of Kelsi N. Steele, of the University of Cincinnati College of Law, for her assistance in reference format in this article.
1. CETS No. 005, European Convention for the Protection of Human Rights and Fundamental Treaties, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953).
2. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980), reprinted in 8 I.L.M. 679 (1969).
3. See George Letsas, Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer, 21 Eur. J. Int’l L. 509, 513 (2010).
4. App. No. 4451/70, 1 Eur. H.R. Rep. 524 (1975).
5. Id. ¶ 29.
6. Id. ¶¶ 30, 34; see Letsas, supra note 3, at 516–17.
7. Alastair Mowbray, The Creativity of the European Court of Human Rights, 5 Hum. Rts. L. Rev. 57, 60 (2005); Soering v. United Kingdom, App. No. 14038/88, 11 Eur. H.R. Rep. 439, ¶ 87 (1989).
8. App. No. 5856/72, 2 Eur. H.R. Rep. 1 (1978).
9. Id. ¶¶ 9–10.
10. Id. ¶ 31.
11. Mowbray, supra note 7, at 61.
12. Letsas, supra note 3, at 528.
13. App. No. 46295/99, 35 Eur. H.R. Rep. 1121, ¶ 68 (2002).
14. Chapman v. United Kingdom, App. No. 27238/95, 33 Eur. H.R. Rep. 399, ¶ 70 (2001); Cossey v. United Kingdom, App. No. 10843/84, 13 Eur. H.R. Rep. 622, ¶ 35 (1990); Goodwin v. United Kingdom, App. No. 28957/95, 35 Eur. H.R. Rep. 447, ¶ 74 (2002); Stafford, 35 Eur. H.R. Rep. 1121, ¶ 68.
15. Robert Wintemute, Consensus Is the Right Approach for the European Court of Human Rights, The Guardian (Aug. 12, 2010), available athttp://www.theguardian.com/law/2010/aug/12/european-court-human-rights-consensus.
16. App. No. 7525/76, 4 Eur. H.R. Rep. 149, ¶¶ 14, 37 (1981).
17. Id. ¶¶ 49, 60.
18. See Michele Grigolo, Sexualities and the ECHR: Introducing the Universal Sexual Legal Subject, 14 Eur. J. Int’l L. 1023, 1031 (2003).
19. Letsas, supra note 3, at 531 (emphasis in original).
20. App. Nos. 33985/96 & 33986.96, 29 Eur. H.R. Rep. 493, ¶¶ 11–28 (1999).
21. Id. ¶¶ 96–97.
22. Id. ¶ 97.
23. Id. ¶¶ 115–16.
24. Id. ¶ 104.
25. Id. ¶ 89.
26. Sexual Offences Act 1967 s.2(a). Note that the decriminalization of homosexual acts in private did not apply in Northern Ireland at the time of Dudgeon v. United Kingdom, App. No. 7525/76, 4 Eur. H.R. Rep. 149 (1981).
27. App. No. 35765/97, 31 Eur. H.R. Rep. 33, ¶¶ 8–11 (2000).
28. Id. ¶ 20.
29. Id. ¶¶ 25–26.
30. Id. ¶ 37.
31. Seeid. ¶¶ 29, 32, 37.
32. Paul Johnson, “An Essentially Private Manifestation of Human Personality”: Constructions of Homosexuality in the European Court of Human Rights, 10 Hum. Rts. L. Rev. 67, 77 (2010).
33. App. Nos. 39392/98 & 39829/98, 36 Eur. H.R. Rep. 55, ¶¶ 10–19 (2003).
34. Id. ¶¶ 47, 50.
35. Id. ¶ 52; Grigolo, supra note 18, at 1032.
36. Grigolo, supra note 18, at 1032.
37. Schalk & Kopf v. Austria, App. No. 30141/04, 53 Eur. H.R. Rep. 20, ¶¶ 7–14, 64 (2010).
38. Id. ¶ 55.
39. Id ¶¶ 50, 61.
40. Id. ¶ 58.
41. Id. ¶ 94.
42. See Johnson, supra note 32, at 77; Loveday Hodson, A Marriage by Any Other Name? Schalk and Kopf v. Austria, 11 Hum. Rts. L. Rev. 170, 175 (2011).
43. Schalk & Kofp, 53 Eur. H.R. Rep. 20, ¶ 105; Hodson, supra note 42, at 176.
45. App. Nos. 29381/09 & 32684/09, 59 Eur. H.R. Rep. 12 (2013).
46. Id. ¶ 92.
47. Id. ¶¶ 75, 78.
48. Id. ¶ 81.
49. Ilias Trispiotis, Discrimination and Civil Partnerships: Taking “Legal” out of Legal Recognition, 14 Hum. Rts. L. Rev. 343, 355 (2014).
50. Vallianatos, 59 Eur. H.R. Rep. 12, ¶ 84.
51. Id. ¶ 91.
52. App. Nos.18766/11 & 36030/11 (July 21, 2015), http://hudoc.echr.coe.int/eng?i=001-156265.
53. Id. ¶ 99.
54. Id. ¶¶ 165, 174.
55. Id. ¶ 178. Only 24 out of 47 of the Council of Europe States had provided for some type of legal recognition of same-sex relationships.
56. Id. ¶¶ 180–81.
57. Id. ¶ 182.
58. Id. ¶ 185.
59. Vienna Convention on the Law of Treaties, art. 31(1), U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980), reprinted in 8 I.L.M. 679 (1969).
60. Mowbray, supra note 7, at 60.
61. Letsas, supra note 3, at 527–28.
62. Johnson, supra note 32, at 68.