Chapter 3 - Guiding Convention Principles

Summary

INTRODUCTION

In developing the introduction to the Convention system further, this chapter discusses two guiding Convention principles: the principle of effectiveness (Section 2) and the principle of subsidiarity (Section 3), which play an important role in the interpretation and application of the Convention and the functioning of the Convention system as a whole. This is further explained below by providing a general background to the effectiveness and subsidiarity principle and discussing different manifestations of these principles, including the no fourth-instance court doctrine, the margin of appreciation doctrine, and procedural review.

PRINCIPLE OF EFFECTIVENESS

In the Belgian Linguistic case of 1968 the Court held that the general aim of the Convention is ‘to provide effective protection of fundamental rights’.1 Eleven years later, in Airey, the Court articulated the principle of effectiveness for the first time, holding that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. Ever since, the Court has used this formula in its judgments. In Scoppola (No. 2) the Court even held that ‘[i]t is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective’.

Thus, the effectiveness principle plays an important role in guiding the interpretation and application of the Convention. In practice, this has resulted in a broad interpretation of Convention rights and a narrow interpretation of their exceptions and restrictions. The ‘living instrument doctrine’, which finds its basis in the effectiveness principle, plays an important role in this regard. This doctrine entails that the Court interprets the Convention ‘in the light of present-day conditions’ and enables it to keep up with changing (technological or social) conditions in the Convention States. As such, it is a tool for the Court to provide effective protection of Convention rights. By applying the living instrument doctrine, the Court has, for example, extended the scope of Article 4 ECHR to human trafficking and the scope of Article 8 ECHR to gender identity and environmental issues. In addition to being a basis for a broad interpretation of Convention rights, the principle of effectiveness has been an important foundation for the development and recognition of positive obligations for States to protect Convention rights. This is further explained in Part II (Chapter 5), in which the concept of (horizontal) positive obligations is discussed in detail.