.png){kind=icon}
1. What is the importance of the Vienna Convention 1969 on the way in which the ECHR is interpreted?
The Vienna Convention 1969 is an international agreement on how treaties should be interpreted. Its provisions can and are followed by the ECtHR. The purposive, non-formal, approach to human rights (including the ‘living instrument’ doctrine) which the ECtHR adopts is partly inspired by the Vienna Convention.
2. What is the implication of calling the ECHR a ‘living instrument’?
The ECHR is interpreted in such a way as to recognise changing European values and standards which have been given a form of legal recognition (e.g in the domestic law of many states). It is not interpreted by reference solely to the intentions and values of the drafters in 1950. An important implication is that the Court may declare concrete rights which are controversial, today, in a state but not imagined at the time the state entered into its Convention obligations.
3. Explain the term ‘margin of appreciation’.
This is the idea that on some issues the ECtHR finds there is no requirement of law and no common European standard in respect of an issue (often one involving a balance between individual and public interests). Therefore, the Court allows states to have different standards. The width of a margin of appreciation (i.e. the degree to which states are free to determine an issue for themselves) will depend on the issue and the nature of the right in issue.
4. Distinguish “negative” and “positive” duties—can they really be distinguished?
Negative duties are duties on states not to conduct themselves in certain ways (e.g. not to torture). Positive duties are things that states must do if they are to protect human rights. Article 2, for instance, requires states not to use lethal force (except under certain conditions) but also requires states to have (i.e. to spend money upon) a proper criminal justice system. In practice it can be hard to separate the positive from the negative and to do so would involve pointless abstraction.
5. What concepts go to make up the Convention idea of ‘democracy’?
Various specific rights contribute to an effective democracy such as free expression (Article 10), freedom of assembly and association (Article 11) and the right to vote in Article 3 of the First Protocol. Furthermore, important values pervade the Convention such as pluralism, tolerance, broadmindedness and the rule of law. These suggest an openness which even democratic majorities cannot undermine. The ECHR is, therefore, aware not just of threats to democracy but also of threats that democracy, as majority rule, can pose to human rights.