The Living Instrument & Margin of Appreciation Principles

The idea of a living instrument is about the way the courts interpret human rights law when they make decisions. It is about there being leeway to read the meaning of the words in the law to ensure they are relevant to the circumstances of our time (2023) and not stuck in time with out-of-date meanings of the words when the law was written (1950). Through its case-law, the European Court of Human Rights has interpreted the rights set out in the Convention, so that its protections apply today to situations that were totally unforeseeable, even unimaginable, at the time it was first signed. This includes issues related to new technologies, bioethics or the environment. The Convention also applies to societal or sensitive questions relating to things like terrorism or migration. This means that both the European Court of Human Rights and our courts in the UK can consider how different the way we live now is without having to rewrite the law. It is closely linked to the idea of a ‘margin of appreciation’ (see below).

An example of the ECHR being a living instrument is found in the case of Tyrer, involving the UK, in the 1970s (read more about the Tyrer case). The case went to the European Court of Human Rights (it was before the Human Rights Act in the UK, so people could not take their human rights concerns directly to UK courts). In this case the Court decided that corporal punishment by the police, meaning physically hurting someone to punish them – in this case 3 lashes with a stick – was considered inhuman and degrading treatment, contrary to Article 3 of the Convention. This was because in the rest of Europe this was no longer the norm, and society had moved on from that kind of behaviour from public authorities.

The margin of appreciation is where the European Court respects that different countries may have different understandings on certain issues, with different legal and cultural traditions. The margin of appreciation means each country has scope to make decisions on how the rights apply on that matter in their country. But each country still has to fulfil the ultimate objectives and purposes of the Convention. The margin of appreciation is linked to another idea in human rights called subsidiarity. This means that national authorities have a primary role in protecting human rights, and so the European Court will defer to them. The European Court uses the margin of appreciation when there are a lot of different opinions about specific rights issues across Europe. There needs to be consensus across many countries for the Court to develop the law using the living instrument principle.

The margin of appreciation therefore limits the living instrument by accepting that different societies across Europe will develop different legal understandings at different paces.

An example of this is Dudgeon v United Kingdom (22 October 1981), where the European Court of Human Rights found that criminal laws against homosexual activities in private were against the right to respect for private life, protected in Article 8 of the Convention (and now the Human Rights Act since 1998). The Court was mindful of an emerging shared view in the countries that are part of the ECHR that consensual homosexuality between adults in private ought not to be a crime. This change in “societal values” resulted in a “reduced area of discretion for the States that were out of line”. This shows that the margin of appreciation is important for keeping the Convention relevant without need for constant rewriting, while respecting how society across Europe can change.  

It's important to say here that the margin of appreciation doctrine is an international principle which is used by the European Court of Human Rights not by national courts. This is because the European Court presides over 46 states with different cultures and traditions all signed up to a shared human rights Convention. It’s also important to say that it's for the Court to make decisions on the margin of appreciation, not individual states and their governments.