NM: In the book, you explain that positive obligations are fundamentally a manifestation (or ‘sub-capacity’) of the principle of effectiveness in its function as a norm of international law. What does – or should – this entail for the delimitation of positive obligations by the ECtHR?
GS: The doctrine of positive obligations ensures that the protection of human rights is holistic in the sense that member States have and must fulfil, apart from negative obligations, also positive obligations. The said doctrine is one of the two extremely important doctrines which derive from and at the same time secure and assist the principle of effectiveness, the other important doctrine being the living instrument doctrine. In this connection, in my concurring opinion (§ 7) in Güzelyurtlu and Others v. Cyprus and Turkey, [GC], 36925/07, 29 January 2019, I argue that “[t]he relationship between [the] positive obligations and the principle of effectiveness can be said to resemble the affinity between offspring and their forebears”. As such, the doctrine of positive obligations is a sub-capacity of the Principle, the former being both a sub-norm and a sub-method of the latter. In my view, as a sub-norm of international law, the doctrine derives from the principle of effectiveness in its capacity as a norm of international law inherent in each Convention provision and maintains that member States, through all their authorities, should take the necessary positive substantive and procedural steps or measures or actions in order to secure the effective protection of the Convention rights. As a sub-method of interpretation, the doctrine endeavours to assist itself as a sub-norm to be interpreted and applied appropriately, and, by doing so, it assists the principle of effectiveness both as a norm of international law and as a method of interpretation. The two capacities of the doctrine are interdependent and have a common purpose, namely, to assist the Principle through their synergy. The Principle and the doctrine have the same DNA, and this explains why the degree and extent of protection of a right either directly through the Principle or indirectly through its doctrine should be same, i.e., full and broad. It can be argued that the Principle delegates a special mission to the doctrine, its offspring, which in turn works for the Principle as a foot-soldier or ambassador in one respect of its multifaceted functions and operations. Consequently, the doctrine both underlines and demonstrates the importance of the Principle. It is thus clear from the above that the doctrine is one of the most significant features of the Convention.
NM: Your book also unpacks another doctrine, namely, the living instrument doctrine, which stems from but also serves the principle of effectiveness. Can you elaborate on this as well as on the interrelationship of this doctrine with the doctrine of positive obligations and the principle of effectiveness?
Like the doctrine of positive obligations, the living instrument doctrine, ensuring that the Convention is always applied at the present time and is interpreted in the light of the present-day conditions effectively, is also a sub-capacity of the principle of effectiveness, as it is a sub-norm and a sub-method of the Principle in its capacity as a norm of international law and a method of interpretation, respectively. In the case-law, it has been applied by the Court in a wide range of circumstances and in respect of complaints concerning if not all, at least almost all, Convention rights. The special relationship of the two doctrines with the Principle and their wide application, support the main proposal of my book, namely that the Principle is the norm of all norms and the method of all methods.
It was in 1978, in Tyrer v. the United Kingdom (no. 5856/72, 25 April 1978 – a judgment prohibiting judicial corporal punishment), that the Court held for the first time that the Convention was a living instrument to be interpreted in the light of present-day conditions; and ever since, this has been repeatedly applied in the case-law of the Court. It is to be noted, however, that the doctrine of positive obligations was first enunciated by the Court about 10 years before the first explicit reference of living instrument doctrine in the “Belgian linguistic case” (Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium v. Belgium, no. 1474/62, 23 July 1968 (merits)). If one considers that the establishment and development of positive obligations in the case-law of the Court is an example of the application of the living instrument doctrine, then one could interestingly remark that in the case-law of the Court, positive obligations had appeared first, and many years before the living instrument doctrine was crystallised by the Court.
The living instrument doctrine and the doctrine of positive obligations are interrelated and fall under the Principle’s umbrella of human rights protection. Without these doctrines, as sub-norms and sub-methods of the Principle, the protection of human rights would not be effective. Thus, each doctrine, being an offspring, assistant, and ambassador of the Principle, is closely intertwined and interconnected with it. There is also a close interrelationship between the two doctrines which is reflected, as has been said above, in the fact that positive obligations is a field or area where the living instrument doctrine has seen fertile application in the case-law of the Court.
The living instrument doctrine ensures that the Principle is always applied at the present time and is interpreted in the light of the present-day conditions effectively. As such, the living instrument doctrine is a central figure of the Court’s case-law, it derives from – and at the same time serves – the principle of effectiveness. From my perspective, the Convention is alive, moves and develops just like the Earth.
The question arises as to how the Convention as a text can have life and move in time. More simply stated: can a text have a life? Is this said only metaphorically or is there anything more to it than that? The answer is that it is not the text on paper which literally moves but it is its meaning which moves.
The living instrument doctrine is inherent in the nature of the Convention, because its source, the Principle, is inherent in the Convention. There cannot be any evolution of human rights if human rights could not by their nature have the capacity to evolve and remain effective at the present time. The Convention is a living instrument simply because by its inherent nature it has a life of its own, and its adaptation to present-day conditions is one of the characteristics of its having life, or is a consequence or result of its having life. The Convention inherently keeps moving on its own journey, like a healthy human body or a ship, without any external assistance. Any other view would be at odds with the idea that the Convention is a living instrument. It is therefore not moving because of external forces, like new social needs or present-day conditions which push it to move. However, when there are such conditions, a Convention provision, while moving over time, will respond to them and through its interpretation by the Court will adapt itself to them.
Regarding its movement, the Convention can be compared to a human body. If at a particular moment only the legs or the arms or the head of a human body appear externally to be moving, it does not mean that the whole body does not have life and is not moving. Likewise, I humbly argue that the Convention moves as a whole and as a compact instrument, rather than in a piecemeal fashion, and this movement is inherent in the Convention. To be more precise, all the Convention provisions, substantive and procedural alike, are moving and evolving in time. This movement or journey through time of the Convention provisions at a normative level is tacit and cannot always easily be visible or understood unless seen through lens of the interpretation and application by the Court. By way of comparison, the Earth rotates and revolves around the sun without being externally noticeable, but it is still moving. That being said, the movement in time of the Convention as a compact instrument, let us say from Day (or moment) A, to Day (or moment) B (which is the present time), should not be confused with the change in interpretation of a particular Convention provision or norm by the Court. These two things are different because the former has to do with the nature and capacity of the Convention to always be situated at the present time, while the latter has to do with the interpretation of a particular Convention provision. The movement or change of the Convention over time does not always or necessarily amount to or effect a change in the interpretation of its provisions. However, the Convention movement and its interpretation are interrelated in the sense that the latter has to take into account the former, though this is not always the only criterion for the interpretation of a Convention provision by the Court. So, in my view, the Court is not the one that steers the movement of the Convention, but it is certainly the one that watches it move and develop and is the one that interprets this movement and development and assists in its evolutionary journey.
The doctrine as a sub-norm of the Principle is by its nature not idealistic in the sense of being unrealistic. On the contrary, the movement of the Convention in the real world is a capacity or an element of the doctrine as a sub-norm of international law. Therefore, the life of a norm, when understood and applied correctly by the Court, should automatically be reflected in its judgments as regards the interpretation and application of the norm to the specific facts before it.
It is important to bear in mind that the Convention is intended to apply to the real world and not to exist only in the sphere of theory. If that was not so, then there would be no point in the Court’s consideration of the present-day conditions in interpreting a Convention provision. Furthermore, since the living instrument doctrine derives from the Principle, which requires practical and effective protection of human rights in the real world, the same should apply to the doctrine both as a sub-norm and as a sub-method of interpretation.
I also wish to emphasise that in my view not only the Convention is a living instrument which evolves in time but also that the space or environment in which the Convention moves, also evolves and influences – just as air, water, etc. influence living creatures – all the Convention provisions as well as their relationships with other international treaties and with real-life conditions and reinforces the primary aim of the Convention. This environment or space in which the Convention moves has its own dynamism, a human-centred dynamic.
As stated in its Preamble, the Convention is not only aimed at “maintaining” human rights but also at realising them further. This furthering of human rights justifies the evolutionary and progressive interpretation. It is submitted that a regression in the protection of human rights, which unfortunately sometimes happens in practice in the Court’s case-law, cannot be regarded as an application of the living instrument doctrine. The Convention’s evolution should be in accordance with its scope, and its primary aim and purpose: that of protecting human rights effectively. The evolution should therefore take the direction of either maintaining the existing level of protection of human rights or of further realising or advancing it, as provided in the Preamble to the Convention, and never a direction in which the level of protection is reduced. It is maintained that the living instrument doctrine as a sub-method of interpretation and application of a Convention provision should be faithful in relation to the doctrine as a sub-norm, in the sense that it should assist the Court in correctly applying the sub-norm in question the particular circumstances of the case. Any regression of human rights protection will be at odds with the doctrine’s application and the nature of human rights, which should always be protected effectively. It is the submission of this work that, unlike the life of a being which is perishable, the life of a human right norm is indestructible and non-perishable and should always seek perfection. A norm cannot fall ill and die, so an interpretation and application of it by the Court which leads to such an effect can neither pursue its aim and purpose nor be considered as a manifestation of the living instrument doctrine. When dealing with the protection of human rights, what the ancient Greek philosopher Heraclitus of Ephesus (530-470 BC) said, namely that “the way up and the way down are one and the same”, should not be applied. The character of the Convention is not contaminated when it evolves in the real world, like the rays of the sun are not affected, regardless of where they enter; as the ancient Greek philosopher Diogenes said: “the sun, too, shines into cesspools and is not polluted”. The Convention, as an advanced living instrument, enters the real world with dignity and majestic modesty with the purpose of making it more humane and at the same time becoming more sophisticated and advanced by rendering itself more real. It is argued that with the passage of time, the relevant Convention standards pertaining to human rights become more refined and developed, especially through the increasing understanding and recognition of human dignity, which is intrinsic in every human right, irrespective of whether a member State grossly violates the rule of law.