The margin of appreciation doctrine and the interpretation of the European Convention on Human Rights as a living instrument

The significance of the margin of appreciation doctrine has been underscored recently with the adoption of Protocol No 15 which calls for the inclusion of the terms ‘margin of appreciation’ and ‘subsidiarity’ in the Preamble of the European Convention on Human Rights. This development reflects the disquiet amongst member States to the Convention that the doctrine is not being given enough weight by the European Court of Human Rights in the determination of cases before it. One of the interpretive tools that is perceived to be having a negative effect on the margin of appreciation is the living instrument doctrine which has been blamed for narrowing the margin of appreciation afforded to States. This thesis brings an original contribution to the literature in this area by considering the interaction between the margin of appreciation and living instrument doctrines in the case law of the Court. The contribution is achieved in two ways: (a) methodologically: through the methodology adopted which is a combination of the quantitative method of descriptive statistics and the qualitative method of doctrinal textual analysis; (b) substantively: through the systematic examination of the case law of the Court from January 1979 to December 2016 in which both the margin of appreciation and living instrument doctrines are present. The lens of the relationship between rights and duties is applied to the case analysis. The case analysis is used to draw conclusions on the nature of the relationship and whether living instrument arguments are superseding the margin of appreciation doctrine where there is conflict. The results of the case analysis also shows distinctions in the interpretive approaches of the Court at the admissibility and compliance stages. The overall results of the study show that there are a variety of ways in which interaction takes place between both doctrines and the nature of both doctrines will continue to require a close interaction between the Court and the State parties in their compliance with obligations under the Convention.