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Incrementalism at the European Court of Human Rights: A New Version of the Living Instrument Doctrine?



Saoirse Flattery is a BCL Candidate at the University of Oxford and LLB graduate of Trinity College Dublin. In her blog, Saoirse discusses how the European Court of Human Rights have used 'incrementalism' as a new version of the 'living instrument doctrine'. Saoirse achieves this by analysing the evolution and subsequent decline of the living instrument doctrine at the ECtHR and weighing the benefits and limits of incrementalism.

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A         INTRODUCTION

The European Court of Human Rights’ (‘ECtHR’) ‘living instrument’ doctrine has been a tool of great evolutive power in the decades since its creation. When the Court first elaborated this flexible approach to interpretation in 1978, it ensured the European Convention on Human Rights’ (‘ECHR’) longevity by allowing for the creative reinterpretation of existing rights in response to the ever-changing nature of human society.[1] In the years since, a legitimacy crisis and an ever-increasing caseload have led to a decline in the power of the ‘living instrument’ doctrine at the ECtHR, but the need for such dynamic evolution remains.[2] Hence, the reason for a stronger turn toward incrementalism, a strategic approach that the ECtHR uses to advance human rights in small steps through techniques such as analogous reasoning and particularisation.


In this blog, I will suggest that incrementalism at the ECtHR is a new version of the ‘living instrument’ doctrine in the sense that it aims to fulfil the same need for evolution of Convention rights, albeit at a more gradual pace and with greater predictability. In doing so, I will discuss the function and decline of the ‘living instrument’ doctrine (Section I), before demonstrating the relative benefits of incrementalism in an age of growing suspicion toward interventionism at the ECtHR (Section II). Yet, I also acknowledge the limits of incrementalism, in terms of addressing uncertainty and achieving rights protection under time-pressure (Section III). Ultimately, I conclude that while incrementalism can somewhat fulfil the role of the ‘living instrument’ doctrine, there is a need for both of these judicial techniques at the ECtHR.


B         EVOLUTION AT THE ECtHR THROUGH THE LIVING INSTRUMENT DOCTRINE

In order to understand how incrementalism can be seen as a ‘new version’ of the ‘living instrument’ doctrine, it is necessary to understand the function of the ‘living instrument’ doctrine and what led to its decline. The early ECtHR developed several general principles to allow for the dynamic evolution of Convention rights, including the ‘living instrument’ doctrine, which underlines that the Convention must be interpreted in accordance with ‘present-day conditions’.[3] From the late 1970s to the early 2000s, this doctrine was powerful in ensuring the continued relevance of the Convention to contemporary society, particularly when it came to the Court’s interpretation of Article 8.[4]


In order to identify ‘present-day conditions’ to justify the use of the ‘living instrument’ doctrine, the ECtHR originally tried to identify common standards in the laws and practices of Convention States. Yet, Letsas notes that many early ‘living instrument’ cases display an activist streak, wherein the ECtHR ruled against prevailing attitudes on morally sensitive issues in the respondent state, often with a level of unpredictability and without significant evidence of a European consensus.[5] Sometimes, they relied solely on an ‘emerging international trend’ as evidence of these ‘present-day conditions’.[6] However, in order to respect its subsidiary role and restrain intervention in particularly sensitive issues, the Court gradually began to apply the margin of appreciation doctrine, albeit in a somewhat uneven and unprincipled fashion.[7]


The heyday of the ‘living instrument’ doctrine was, however, constrained due to a number of factors. From the mid-2000s, politicians, political parties, and judges across Europe began to criticize the ECtHR, claiming that states agreed to uphold the rights as stated in the original text and did not sanction future developments implemented by an activist court.[8] The expansion in Convention membership meant that it was increasingly hard to find a ‘European consensus’ on matters relating to human rights. Moreover, Gerards cites significant resistance to the implementation of ECtHR decisions in national law, particularly in Russia and the UK.[9] Helfer and Voeten note that this brewing dissatisfaction culminated in the 2012 Brighton Declaration and later declarations and amendments to the Convention wherein states ‘collectively signalled that the ECtHR should give them greater deference’.[10] Since then, with the growth of the far-right, the political and social consensus in Europe has been moving in a regressive direction on many human rights issues.[11] At the same time, an ever-increasing caseload has harmed the viability of the ‘living instrument’ doctrine, with the most consequential cases less likely to see a resolution and growing pressure on judicial resources.[12]


Moreover, the ‘living instrument’ doctrine has been criticised for its legal legitimacy and adherence to the rule of law. Even pro-ECHR judges have urged the ECtHR to restrain its use. For instance, Baroness Hale suggested that the living instrument doctrine should not be seen as ‘an unstoppable beanstalk grown from a magic bean’.[13] She criticised the doctrine for its unpredictability, suggesting that evolutive developments should be consistent with the established principles of Convention jurisprudence.[14] Moreover, Letsas has suggested that the normative justification provided by the ECtHR for invocation of the ‘living instrument’ doctrine was weak, with virtually no explanation being provided when it originated in Tyrer or since.[15] Such critiques are not without merit. Many authors have argued convincingly for the legal legitimacy of the living instrument doctrine, for example, because it can claim democratic endorsement through States or by reference to the wording of the preamble.[16] Yet, the Court’s reluctance to elaborate upon the doctrinal justification for such a divisive doctrine renders it vulnerable to significant criticism from an ever-growing far-right and legal scholars who doubt its legitimacy.


C         EVOLUTION AT THE ECtHR THROUGH INCREMENTALISM

Hence, the need for a shift toward incrementalism, which can be seen as a more gradual and predictable version of the ‘living instrument’ doctrine in the sense that it fulfils a similar evolutive function. Having conducted quantitative research on ECtHR decisions, Gerards points to a shift in the approach of the ECtHR in recent years – nowadays, rather than pushing evolution by interpreting Convention rights expansively and then restraining their political and legal effects by granting wide margins of appreciation, the ECtHR has been pushing evolution primarily through incrementalism.[17] She writes that ‘[i]f the Court has to address a relatively new and potentially sensitive and divisive subject matter… it acts in a very cautious, incremental and circumscribed manner’.[18] To do so, it adopts restrained tactics such as analogous reasoning and particularisation (where judges accentuate the distinctive features of the facts before them to confine principles to the case at hand), while leaving the door open to future expansion. In this sense, the large, diverse caseload of the ECtHR actually serves incrementalism well as it can slowly build principles, case-by-case.[19] Finally, the ECtHR can make use of its incremental progress, by distilling ‘general principles’ from a series of cases. Gerards notes this approach, for instance, in relation to abortion rights decisions, where the Court initially only found a violation on procedural grounds in Tysia.[20] Then after building on this decision case-by-case, it eventually accepted that a prohibition of abortion sought for health reasons may violate Article 8 in ABC.[21] Here, the Court expressly noted that it was not pursuing the ‘living instrument’ approach, stating that ‘this is not a case of the use of consensus for interpretation of the Convention.’[22]


There are several reasons to praise this increasing use of incrementalism in the current context, particularly in comparison to the ‘living instrument’ doctrine. Koskenniemi posits that international human rights law is often caught between an apology for following the wishes of states and a tendency to prescribe utopic versions of what the law ought to be, detached from actual state practice.[23] Yet, I would argue that incrementalism could be seen as a healthy compromise between the two – neither overly deferential to states nor overly idealistic in prescribing a remedy that states will likely refuse to respect. Moreover, Koskenniemi explains that, in the international human rights sphere, methodological reasoning is often strategic and compliance is frequently achieved through various forms of persuasion.[24] Explicitly stating that the Court is evolving rights through the ‘living instrument’ doctrine is more likely to catch the attention of the political right who may discourage compliance and question the legitimacy of the Court. On the other hand, as Helfer and Voeten suggest, the increase in vague ECtHR decisions which tacitly overturn prior principles in a pro-applicant direction has been strategic; ‘the majority in such cases may have become more circumspect in justifying progressive rulings as a way to shield themselves from criticism by states that oppose a more expansionist Court.’[25]


Furthermore, it is arguable that incrementalism does not suffer from the same unpredictability which Baroness Hale found so worrying in the ‘living instrument’ doctrine. In contrast to the heavy-handed blows of the ‘living instrument’ doctrine, ‘incrementalism… allows for a process of slow socialisation into the Strasbourg conception of rights… it only demands limited changes at any given moment and also reacts to the evolution of domestic law.’[26] Thus, incrementalism tends to formulate practically-workable principles in a reactive, but restrained manner. By doing so, it attracts fewer complaints regarding its impact on the rule of law and predictability. Moreover, it does not suffer from the same normative justification critiques as the ‘living instrument’ doctrine since rather than invoking a specific doctrine, which would require justification, the ECtHR simply extends Convention rights tacitly by case-based reasoning. Moving Convention rights forward case-by-case also avoids the need for the constant invocation of the margin of appreciation doctrine, which suffers from coherence problems of its own.[27]


In an ECtHR which is dealing with the tail end of a legitimacy crisis, the strategic benefits and increased coherence associated with incrementalism are deeply valuable. Incrementalism can thus be seen as somewhat of a coping mechanism to continue evolving Convention rights in the face of an environment which is increasingly hostile to the ‘living instrument’ doctrine.


D         THE LIMITS OF INCREMENTALISM

Yet, it seems that while incrementalism can be perceived as a new version of the ‘living instrument’ doctrine in some senses, it is a poor replacement in others. Firstly, the small, tacit steps of incrementalism can fail to ensure the development of clear and unambiguous obligations in areas of significant uncertainty. Thus, King argues that incrementalism may be inappropriate when there is a great need for clarity as to the meaning of vague legal obligations.[28] He argues that in such a case, uncertainty simply promotes ‘chaos and unfairness for those citizens who require a clear statement of their rights.’[29] This is particularly well illustrated by the ECtHR’s incremental approach to the development of socio-economic rights, which has failed to elaborate the scope of the applicable rights and duties in a coherent or structured manner.[30] When it comes to socio-economic rights, the ECtHR often circumvents a discussion of whether a Convention right is at stake by ‘assuming’ the interest at stake is covered under the Convention, and usually finding no violation on a factual basis or on proportionality analysis.[31] When it does develop positive socio-economic obligations, they are usually only ‘to give effective protection to the rights of the complainant in the circumstances of the case’ or the Court relies artificially on extension of the explicit Convention rights, such as the right to a fair trial.[32] Moreover, since it tends not to engage substantively with the question of the positive scope of Convention obligations, Palmer has suggested that the jurisprudence of the ECtHR still reflects a conceptually outdated view of the positive–negative dichotomy of rights.[33]


This unprincipled development is harmful, particularly in terms of rights protection at a domestic level. For instance, in Ireland, judges are required to take account of ECtHR jurisprudence in their interpretation of Convention rights.[34] In Irish cases on housing rights, there has been significant uncertainty as to the level of positive protection afforded by Article 8, with the result that there has been a ‘chilling effect on high court judges’ who are reluctant to engage which the possibility of socio-economic rights in the ECHR.[35] Thus, I would argue that recourse to the ‘living instrument’ approach is warranted to increase certainty and underline the indivisibility of rights. Through this approach, the Court could explicitly acknowledge the fact that international legal scholarship has widely discredited the positive–negative dichotomy of rights and develop a coherent, principled, and explicit theory of the scope of socio-economic obligations in the ECtHR. While an incrementalist approach tends to attract less criticism, I would suggest that there is occasionally a need to ‘call a spade a spade’ in order to provide clear and unambiguous rights protections.


Moreover, an over-reliance on incrementalism could be gravely inadequate when dealing with a pressing crisis, such as climate change. King has explained that ‘[t]ime-sensitivity can override the allure of incrementalism. The best way to evaluate how to evacuate a ship will depend on whether it is sinking.’[36] As regards the state of our environment, our metaphorical ship is indeed ‘sinking’ in such a way that the fundamental rights of children and young people are severely threatened.[37] Thus, incrementalism must be considered in tandem with other strategies. In this sense, it is certainly positive that the ECtHR still makes use of the ‘living instrument’ doctrine in environmental and climate cases. As former president of the ECtHR, Robert Spano, observed, the living instrument doctrine is one of the prime elements which has allowed the Court to develop its current environmental case-law to recognise that the human rights of a person cannot be divorced from their ecological surroundings.[38] This evolution is still ongoing and the influence of the ‘living instrument’ doctrine is still evident, particularly in the concurring judgment of Judge Krenc in Pavlov in 2022, which advocated for a stronger focus on reliance on international material in environmental cases.[39] We are currently awaiting the ECtHR’s judgment in the highly significant climate rights case of Duarte Agostinho.[40] Given the fundamental threat posed by climate change and the urgency of the situation, this case is one in which it might be fitting to return to the heavy-handed blows of the ‘living instrument’ doctrine and take into account the activist interpretations of environmental rights by the United Nations, Inter-American and African human rights systems, as has been argued in a written submission by several NGOs and climate groups.[41]


E         CONCLUSION

Ultimately, there is much to be said for the ECtHR’s turn to incrementalism. In adopting a gradual, case-by-case approach to the evolution of Convention rights, it adapted to a hostile environment in which the suspect legitimacy and explicit activism of the ‘living instrument’ approach were faced with heavy criticism. Furthermore, this doctrine allowed the ECtHR to maintain the development of Convention rights when faced with an overwhelming caseload. In this way, incrementalism can be seen as a pragmatic and cautious version of the ‘living instrument’ doctrine, a vital adaptation, and a sensible coping mechanism. Yet, as I have shown above, an incrementalist approach is inappropriate when the Court is facing a pressing need for clarity or an urgent human rights crisis. As such, incrementalism cannot be seen as an out-and-out replacement for the ‘living instrument’ doctrine. Rather, incrementalism and the ‘living instrument’ doctrine should be viewed as complimentary mechanisms to achieve ‘the maintenance and further realisation of human rights and fundamental freedoms’,[42] particularly when it comes to the ECtHR’s response to a climate emergency which poses an unprecedented threat to human life and well-being.


[1] Tyrer v United Kingdom, App No 5856/72 (ECtHR, 25 April 1978); Tyrer v UK (1978) 2 EHRR 1; George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in A Føllesdal and others (eds) Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge University Press 2013) 141.

[2] Stefan Theil, ‘Is the 'Living Instrument” Approach of the European Court of Human Rights Compatible with the ECHR and International Law?’ (2017) 23(3) European Public Law 587, 590.

[3] Tyrer (n 1).

[4] Letsas (n 1) 143-145.

[5] Letsas (n 1) 145.

[6] Goodwin v United Kingdom, Application No 17488/90 (27 March 1996).

[7] Janneke Gerards, ‘Margin of Appreciation, Incrementalism and the European Court of Human Rights’ (2018) 18(3) Human Rights Law Review 495–515.

[8] Laurence R Helfer and Erik Voeten, ‘Walking Back Human Rights in Europe?’ (2020) 31(3) The European Journal of International Law 797, 798.

[9] Janneke Gerards, ‘The Prism of Fundamental Rights’ (2012) 8(2) European Constitutional Law Review 175.

[10] Helfer (n 8) 798.

[11] Helfer (n 8) 798.

[12] Paul Mahoney, ‘New Challenges for the European Court of Human Rights Resulting from the Expanding Case Load and Membership’ (2002) 21(1) Penn State International Law Review 101, 104.

[13] Baroness Hale, ‘Beanstalk or Living Instrument? How Tall Can the European Convention on Human Rights Grow?’ Gray’s Inn Reading 2011, 1. Accessed <https://www.gresham.ac.uk/watch-now/beanstalk-or-living-instrument-how-tall-can-european-convention-on-human(19 December 2023).

[14] ibid  8.

[15] Letsas (n 1) 143.

[16] See Theil (n 2), Letsas (n 1) for example.

[17] Gerards (n 7) 497.

[18] ibid 507.

[19] ibid 513.

[20] Tysia ̨c v Poland, App No 5410/03 (20 March 2007).

[21] A, B and C v Ireland, App No 25579/05 (ECHR, 16 December 2010).

[22] ibid para 7. 

[23] Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2nd ed, Cambridge University Press 2009) 9-15.

[24] Martti Koskenniemi, The Politics of International Law (Hart 2011) 299.

[25] Helfer (n 8) 826.

[26] Nico Krisch, 'The Open Architecture of European Human Rights Law' (2008) 71(2) The Modern Law Review 183, 214.

[27] Gerards (n 7) 498-506.

[28] Jeff King, Judging Social Rights (Cambridge University Press 2012) 294.

[29] ibid 294.

[30] Ellie Palmer, ‘Beyond Arbitrary Interference: the Right to a Home? Developing Socio-Economic Duties in the European Convention on Human Rights’ (2010) 61(3) Northern Ireland Legal Quarterly 225.

[31] See for example, Sentges v The Netherlands, App no 27677/02 (ECHR, 8 July 2003).

[32] Palmer (n 30) 227.

[33] ibid 227.

[34] European Convention on Human Rights Act 2003, s 4.

[35] Dáire McCormack-George and Conor Casey, ‘An Analysis of the Right to Shelter in Irish Law for Children and Adults’ [2015] 54 Irish Jurist 131, 151.

[36] King (n 28) at 293.

[37] United Nations, ‘Report of the Special Rapporteur on the Issue of Humans Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy, and Sustainable Environment’ (2019) A/74/161.

[38] Robert Spanos, ‘Should the European Court of Human Rights Become Europe’s Environmental and Climate Change Court?’ (2020) Conference on Human Rights for the Planet, Strasbourg, 2. Accessed <https://vidivaka.mk/istrazuvanja/wp-content/uploads/2021/01/Говор-ЕСЧП-Roberto-Spano.pdf> (19 December 2023).

[39] Pavlov and others v Russia, App no 31612/09 (ECHR, 11 October 2022).

[40] Claudia Duarte Agostinho and Others v Portugal and 32 Other States, App no 29371/20 (ECHR, (unsure of date).

[41] Written Submission on Behalf of The Extraterritorial Obligations Consortium and others, regarding Claudia Duarte Agostinho and Others v Portugal and 32 Other States, App no 29371/20, accessed <https://www.amnesty.org/en/wp-content/uploads/2021/05/EUR0140922021ENGLISH.pdf> (19  December 2023).

[42] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), Preamble. 

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