Can the Living Instrument Doctrine Be Reversed?

On 15 May 2026, the Committee of Ministers of the Council of Europe (CoE), meeting at ministerial level in Chişinău (Republic of Moldova), adopted a declaration in which the European Court of Human Rights (‘the Court’) was called upon to recalibrate the standard of human rights protection in the field of migration policy. Much has been written about the initial ‘letter of the nine’, in which nine governments openly criticised the Court’s migration case law, and about the ‘declaration of 27’ going into the same direction but having a much more disruptive potential, due to the large number of governments opposing the Court (see, e.g., here and here). 

In the following, I will not comment on whether this was an undue interference with the Court’s independence (see the initial reaction of the CoE Secretary General) or a kind of ‘backlash’ or ‘pushback’ (see here, here). In one way or another, the Court will have to react to the Chişinău declaration. And I am sure it will take it very seriously, not least because it was adopted at the highest political level (ministers of foreign affairs) by consensus. Rather, I will concentrate on one particular aspect, namely, whether there is a role to play for the living instrument doctrine in the recalibration of human rights standards. Put bluntly: Can the living instrument doctrine be used with the aim of decreasing, rather than increasing, the protection of human rights?

The living instrument doctrine in the Chişinău declaration

The Chişinău declaration, though only discretely and indirectly, advocates for a new understanding of the living instrument doctrine. The doctrine appears twice in the whole text (paras 12, 40). Para. 12 reads as follows:

The Court authoritatively interprets the Convention in accordance with relevant norms and principles of public international law, and, in particular, in the light of the Vienna Convention on the Law of Treaties. The Convention is interpreted as a living instrument, giving appropriate consideration to present-day conditions, which ensures its applicability in response to novel challenges.

As has been noted correctly (here), the direct reference to the Vienna Convention on the Law of Treaties (VCLT) and the indirect reference to the Refugee Convention might be understood as inviting the Court to be stricter in the interpretation of the Convention in migration cases. For present purposes, the reference to the living instrument doctrine is more pertinent. At first sight, the wording appears as a confirmation of well-established case law – and thus as an endorsement of the Court’s position. But note the apposition: ‘which ensures its applicability in response to novel challenges’. The subtext is that Europe is currently facing an unprecedented influx in migration and that in order to cope with these ‘novel challenges’, the understanding of human rights must be accommodated. In other words: the human rights protection of migrants must be downsized. The same logic appears at para 40:

The Convention is a living instrument: it is interpreted in the light of present-day realities and remains applicable in response to novel challenges. It does not operate in a vacuum: when assessing the compliance of State authorities with their obligations, the concrete context in which they act forms part of the overall assessment required under the Convention. …

Note the ambiguity of the text: The fact that the living instrument doctrine ‘remains applicable in response to novel challenges’ might be interpreted as endorsing the Court’s evolutive (and human rights-friendly) interpretation. But it might also be read in the opposite direction, in particular when combined with the admonition that the Court’s interpretation ‘does not operate in a vacuum’. It is submitted here that this is the understanding which the critical States had in mind.

The origins of the living instrument doctrine

This novel understanding of the living instrument doctrine clearly deviates from its original function. Originally, the doctrine was developed in order to increase, rather than decrease, human rights protection. In the seminal Tyrer judgment, the Court relied on the Convention’s character as a living instrument in order to conclude that corporal punishment inflicted on a pupil in the Isle of Man was a form of degrading treatment within the meaning of Article 3 of the Convention (para. 31).

More than that, there is a remarkable line of case law where the living instrument doctrine is linked with ‘the increasingly high standard being required in the area of the protection of human rights and fundamental liberties … and inevitably requir[ing] greater firmness in assessing breaches of the fundamental values of democratic societies’. This line of jurisprudence begins with Selmouni (para. 101) where the Court held that certain acts which previously had been characterised as ‘inhuman and degrading treatment’ should now be interpreted as ‘torture’. Its current endpoint is the KlimaSeniorinnen judgment (para. 434) where the Court adapted and applied the Convention to the challenges of climate change. All these examples demonstrate that at least so far, the Court’s understanding has been that the living instrument doctrine should lead to an increase in human rights protection.

Techniques of decreasing human rights protection

However, if changes in societal circumstances and in moral values might lead to an increase in human rights protection, it is fair to ask whether this doctrine should not also work in the opposite direction. Maybe, the Court so far has simply felt no necessity to engage with it in order to decrease human rights protection. Before addressing this point more closely, it seems advisable to ask what other techniques or mechanisms exist under the Convention to decrease human rights protection in the face of change of societal circumstances.

One technique that immediately springs to mind is Article 15 of the Convention. If the life of the nation is threatened by acts of war or another public emergency, the level of human rights protection may be lowered. This is, however, subject to procedural and substantive safeguards: In procedural terms, the respective government must make a formal declaration to the CoE Secretary General in which the state of emergency is declared, in order to ensure legal certainty. In substantive terms, the derogation is subject to a strict proportionality test, and some derogations are excluded altogether, e.g. regarding Article 3 of the Convention. One might ask whether Article 15 of the Convention should not be understood, a contrario, as excluding a lowering of human rights standards in ‘normal’ times.

Such an approach, however, would appear too inflexible. Another technique that allows the Court to take account of changing societal circumstances is the balancing exercise within the proportionality test. As is well-known, most (not all!) Convention articles allow for a balancing of competing interests of the affected individual on the one hand and of the society as a whole on the other hand (most notably para. 2 of Articles 8 to 11 of the Convention). It is noteworthy that under the COVID-19 pandemic, only ten CoE Member States had made a declaration under Article 15 of the Convention. This did not prevent the Court from taking the factual circumstances into account in proceedings against States that had made no such declaration. In Bielau, for instance, it accepted that a practising doctor could be fined for making scientifically untenable statements about ineffectiveness of vaccines. Consequently, the Court found no violation of Article 10 of the Convention, and there was no need to engage in a discussion about the fact that the Austrian State had made no derogation under Article 15 of the Convention.

It is submitted that the proportionality test is the main avenue for the Court to take account of changing societal circumstances. Yet, it must not be overlooked that the balancing exercise primarily concerns the application of the Convention standards to the concrete case. It does not concern a regression in Convention standards as such. Therefore, a mere rebalancing under the umbrella of the proportionality test might not be enough to silence criticism of the Court’s case law in migration matters.

Explicit and implicit changes of case law

Sometimes, the Court is ready to explicitly give up previous case law. Such a change in case law might be induced by factual changes in society. In Bayatyan, for example, the Court departed from the previous case law of the Commission and accepted that the right to conscientious objection should be protected under Article 9 of the Convention. In this regard, it relied on the overwhelming majority of CoE Member States which in the meantime had introduced a right to conscientious objection in their national laws (paras 98 et seq.). As can be seen from this example, the case law was modified so as to enhance, rather than reduce, human rights protection. But it would seem that as a matter of principle, the Court is not prevented from modifying its case law even to the detriment of individual applicants. 

More often, however, such a modification will take place implicitly, without formally giving up previous case law. Typically, this is done by the technique of distinguishing the case under consideration from previous cases. Take, e.g., the case of M.N. and Others where the Court decided that the Belgian State had not exercised ‘jurisdiction’ within the meaning of Article 1 of the Convention through its consular staff in Beirut (paras 96 et seq.). It distinguished the case from its former Banković ruling where it had held that ‘other recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad’ (para. 73). This may be regarded as a tacit change in case law. Unlike what was found with regard to the proportionality principle, the explicit or implicit change in case law might lead to a reduction of the Convention standards as such.

The living instrument doctrine: a one-way street?

Against this backdrop, how does one respond to the initial question? Can the living instrument doctrine be used to the detriment of the individual applicant? First, it has become clear that the Court has the means at its disposal for recalibrating individual liberties and societal interests in the face of a societal change in circumstances. Within the existing human rights standard, such a recalibration might take place under the umbrella of the proportionality test. If, by contrast, the Court intends to modify the so-far existing human rights standard, it has the option of changing its case law – either explicitly or by implication.

The living instrument doctrine has no role to play within this context. To argue that the human rights standard has to be decreased because, alas, attitudes in European society have changed is wholly unpersuasive. Human rights are by their very nature countermajoritarian: it is their function to protect the individual against interference that is regarded as legitimate by the majority in society. Seen through this lens, there is nothing wrong with increasing the protection of the individual if the majority in society holds this appropriate. This is what the living instrument doctrine is all about. But decreasing an established level of protection on account of a change of societal acceptance would run counter to the very essence of human rights protection.

In addition, allowing for a decrease in human rights protection on account of a change of societal circumstances would call into question the normative value of human rights. It would lead to a somewhat absurd consequence: the more States are breaching their existing obligations under the Convention, the easier it would be prospectively to decrease human rights standards. It is not by coincidence that under the VCLT, a fundamental change of circumstances absolves States parties from their treaty obligations only under the strictest conditions (Article 62 VCLT). As was rightly noted here, the whole Chişinău process shows characteristics of an Article 62 VCLT argument (see also para. 16 of the declaration: ‘unforeseen at the time the Convention was drafted’).

This is not to say that human rights standards should be regarded as set in stone once and for all. It is the Court that has the power, under Article 32 of the Convention, to recalibrate the protection of human rights. But it needs compelling reasons to do so. A mere change in societal acceptance will not be sufficient for that purpose. In this sense, the living instrument doctrine might aptly be characterised as a one-way street. The Court is well-advised not to follow the nudging of the Chişinău declaration, and instead go in the opposite direction. Otherwise, the impression might be that human rights have become a bargaining chip in the struggle for the Court’s own survival. And this would be devastating for the Court’s credibility.