Explain and analyse how the European Court of Human Rights has used the living instrument principle to expand the protection given by Article 8.

In the introduction, explain the issue and set out how the essay will answer the question. The essay could focus on a number of particular areas or take a broader approach.

Structure the essay to answer the question in a clear manner. If the essay will focus on a particular area or a number of areas (such as sexuality, the environment) then the introduction should explain why these areas were chosen and note (possibly in a footnote) the other areas that may also be used to illustrate the question but will not be detailed in the essay. It is suggested that structuring the essay around a particular theme or certain areas under article 8 would help develop a clearly structured argument rather than a ‘Tell all you know’ answer which is not focused on answering the question that is set.

The essay should:

• Explain what is meant by the ‘living instrument principle’ and explain generally why the ECtHR has developed this principle – changing consensus, changing nature of rights protections etc.
• Explain briefly the meaning of article 8: open to interpretation through positive obligations and the wide meaning given to ‘private life’, ‘expanded’ meaning of family life
• Illustrate the use of the principle through article 8 jurisprudence of the ECtHR, choosing particular areas to illustrate criticisms etc.
• If the essay focuses on particular areas such as the environment then discuss case law illustrating the use of the principle – has it been used to expand the protection of the right? Are there examples where it has been used to restrict the right or to continue with a similar interpretation as before? Use both majority and dissenting opinions.

The essay should use the arguments and criticisms of academics, relevant case law and reports.

Conclusions: this should bring the arguments together and evaluate the use of the living instrument principle by the ECtHR under article 8. Does its use guarantee effective protection? Has the principle always been used successfully by the Court? Is it clear when the principle is applied and how?