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UPDATE April 2024
CHAPTER 6, 6.1.6
This section discusses the “living instrument” doctrine – the idea that the Convention should be interpreted in the light of modern-day circumstances. It is central to the way the Strasbourg Court interprets and applies the Convention and, therefore, for most circumstances, is the approach to Convention rights that will be “mirrored” by UK courts under the HRA (see Chapter 4, 4.3.1 – 4.3.6).
In April 2024 a Grand Chamber made a judgment which is a dramatic example of the working of the doctrine. The context of the case is climate-change remediation; a possible result of the case is to greatly strengthen the effectiveness of campaigning groups to use the courts to try to hold governments to their climate change remediation targets.
The case (Verein Klimaseniorinnen Schweiz and others v Switzerland app 53600/20 Grand Chamber judgment of 9 April 2024 – VSS) was brought by individual, elderly, Swiss women who had suffered in unseasonably hot weather in Switzerland and, importantly, also by an association, of which they were members, which campaigns for climate-change remediation, especially for the elderly.
The association (VSS) successfully argued that Switzerland had failed to take sufficient remediation measures and so was in breach of “positive obligations” found in Article 8 (the right to private and family life), read by reference to Article 2; and also Article 6 (the right to a fair hearing, including the right of access to justice).
Although the term “living instrument” is only applied once by the Court to explain its reasoning, the case is unambiguously an extension of the scope of Convention rights: - a new positive obligation, based on Article 8, imposed on states in respect of climate-change remediation, and also a significant broadening of the admissibility rules so that associations (such as campaigning groups) have “standing” to bring cases on behalf of their members and the public.
The relevant section on Article 8 is Chapter 15, 15.8 and 15.10.1
On admissibility and associations see Chapter 2, 2.7.1. in particular section on “Political parties, trade unions, and other ‘non-governmental’ groups” (5E page 44)
THE LIVING INSTRUMENT DOCTRINE – A REFLECTION OF SOCIAL CHANGE (CLIMATE CHANGE)
Part of the justification for the living instrument doctrine is that Convention rights need to be tailored and developed in ways that make them and keep them relevant and applicable in modern society. This is very clear in VSS. The Court has gone out of its way to emphasise and produce the agreed and devastating evidence for man-made (anthropogenic) climate change and the damage it is doing to human experience on earth (if you are interested in this evidence, read paras [64]-[120]). It is in this special context, specifically, that the living instrument extensions of the law are developed and applied. Throughout the Court is insistent that it is the specific and unavoidable characteristics of climate change, such as the problem of intergenerational justice, which justify what it is doing.
THE LIVING INSTRUMENT DOCTRINE REQUIRES A CONSENSUS – BUT WHAT IS ITS NATURE?
Critics of the living instrument doctrine argue that judges, exercising the judicial power, are not well placed to identify social change. This criticism would have power if it were the case that judges are claiming some special understanding of changing values in society or of the way progressive opinion is developing. But VSS makes it clear that that is not how the consensus is identified.
The Court recognises, first, that climate change is a deadly threat to human health and experience, that remedial action is urgent and necessary and, so far, has been inadequate. But the source for this statement of values is objective, it does not reflect the personal opinions and assessments of the judges. It lies in the formation of unchallenged international opinion found in countless documents such as the Kyoto Protocol, the Paris Accords and the COP communications up to and including 2023 – the Court brings together a vast amount of material.
Even more importantly, the consensus which justifies this expansion of Convention rights in VSS is one found, not in the subjective views of judges, but in legal sources which, with increasing authority and strength, require climate change remission to be a binding obligation of states and, of crucial importance in the case, the ground of a human right to a liveable environment [133]-[272]. The consensus which justifies the living instrument doctrine is not one of social values but of law.
BUT THE COURT IS ALSO AWARE OF ITS LIMITS AS A COURT GIVING EFFECT TO A LEGAL INSTRUMENT
It is also clear from VSS that the living instrument doctrine does not permit the Court to, as it were, play fast and loose with the Convention text or past practice and case law. Although the case has radical elements, and it does develop Convention law into new areas, there is also a sense of restraint which limit the scope of new principles, or which confine them to the climate change context.
HOW THE LIVING INSTRUMENT AFFECTED THE LAW IN VSS - 1. RADICAL WIDENING OF THE RIGHT OF ASSOCIATIONS (E.G. CAMPAINING GROUPS) TO BRING A CASE CHALLENGING GOVERNMENT POLICY ON BEHALF OF OTHERS
As you know, only a person who has been “directly affected” by the alleged breach can count as a “victim” and be allowed to bring a case before the Court.
As individuals, the women could not show that they were directly affected by alleged violations of articles 2,8 and 6 – their hardship did not meet the threshold required to bring a case and it is difficult for a person to show that he or she has been directly affected by a future harm. So, the individual women could not proceed with their case.
But the association, the campaigning group, was allowed to proceed and this is where there has been a big change in the law. The position has always been, roughly speaking (the Strasbourg procedural law is complex), that an association (say a political party or a campaigning group) cannot bring a case alleging that some law or state practice breaches the Convention rights of its members or of the public generally. This is because the association itself has not been directly affected (it would be if the law or practice concerned the rights of associations), it is bringing an action on behalf of others or of the public, and this is more like a political claim (called an actio popularis) which is better suited to Parliament than to the courts (Chapter 2, 2.7.1, 5E page 41). But, in the particular and unique context of climate change remediation, things are different. Those who suffer as a result of un-remediated climate change are many, various, unknown and perhaps still to be born – this is in the nature of climate change, uniquely. For this reason, and particularly because of future generations, remediation cannot be left to the democratic, majoritarian, political process [see paras 415-420]. There needs to be a legal requirement for remediation and some mechanism for allowing legal actions to enforce human rights relating to climate change. Granting standing to campaign groups
HOW THE LIVING INSTRUMENT AFFECTED THE LAW IN VSS – 2. THE CREATION OF A NEW RIGHT TO CLIMATE CHANGE REMEDIATION, BASED ON ARTICLE 8 READ IN THE LIGHT OF ARTICLE 2
In the unique, dangerous and pervasive context of climate change, the ECtHR has created a new “positive obligation” on the High Contracting Parties. This new obligation is based on Article 8. There is a long history of Article 8 being used in environmental cases (Chapter 15, 15.8 and 15.10.1) but VSS takes this aspect of Article 8 to an entirely new level, going way beyond previous cases which tended to relate to specific and identifiable environmental harms which were causing suffering to identifiable individuals. The duty is for states “to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change” and to do so quickly so as to reach net neutrality in greenhouse gas emission within the next three decades (i.e. to give effect to what has been agreed by states as binding targets); furthermore the Court clearly sees this target as one which requires popular pressure and so the duty extends to various requirements as to popular involvement and the provision of information to the public [see paras 545-554].
This is a major expansion of the positive obligations on states, which reflects the Court’s sense of the seriousness and urgency of climate change. Under Article 1 of the Convention these obligations create legal rights which should be available in domestic law and enforced in the domestic courts. To repeat, enforcement, it seems, can be either by individuals who, unlike the individual women in VSS, can show they were directly affected by a failure to fulfil the obligation, but now, also, by a campaigning organisation such as VSS. Presumably, in the UK, this could be done by a group such as ClientEarth using the Human Rights Act.
THE LIVING INSTRUMENT DOCTRINE IS CONTROVERSIAL
There is a dissenting judgment. The judge from the United Kingdom (Judge Tim Eicke) argues, in essence, that this exercise of the living instrument doctrine has gone beyond what is appropriate for a court to do. He fully recognises the danger to the planet from climate change but argues that the new rights (relating to admissibility of associations and the positive duty under Article 8) are not just extensions of existing principles found in the case law but are radical departures – that the Court, although it claims otherwise, has, in effect, created an actio popularis; and it has introduced a new positive obligation on Convention states that, in the context of climate change remediation, is undemocratic. Dealing with climate change is a matter of huge complexity, involving the complex balancing of different interests, and this is a matter that courts cannot deal with.
The point is that controversy about the living instrument doctrine is not, in European terms, about the place of “originalism” (the Court has long ago disassociated itself from this) but rather it is about the separation of powers – where the line is to be drawn between those matters which are properly matters of law and for the courts to deal with, and those matters which are properly dealt with by, ultimately, the democratically elected institutions.
Howard Davis
April 2024