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Alastair Mowbray, The Creativity of the European Court of Human Rights, Human Rights Law Review, Volume 5, Issue 1, 2005, Pages 57–79, https://doi.org/10.1093/hrlrev/ngi003
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Abstract
This article discusses the creative role adopted by the European Court of Human Rights in the face of situations not envisaged by the drafters of the European Convention in the late 1940s, resulting from the inevitable evolution of societies and their changing ethical standards. Although the Vienna Convention on the Law of Treaties 1969 is a constant source of inspiration to the Court for the interpretation of the Convention, the article points to two new techniques of interpretation adopted by the Court, namely the ‘living instrument’ doctrine and the ‘practical and effective’ doctrine. An attempt is made to highlight the advantages and the weaknesses of both of these innovative interpretational approaches. Additionally, an assessment is made of how the Court has responded to present-day demands and maintained a balance between judicial creativity and respect for the role of member States as the key policy-makers in determining the scope of rights guaranteed by the Convention.
