Beyond Expansion or Restriction? Models of Interaction between the Living Instrument and Margin of Appreciation Doctrines and the Scope of the echr

Abstract

The living instrument doctrine of the European Court of Human Rights (ECtHR) is criticised as restricting the margin of appreciation of States and expanding the scope of the European Convention on Human Rights (echr). Systematic examination of this claim is usually overlooked in the context of the relationship between the admissibility and merits phase of ECtHR cases. This article considers this claim in the context of jurisdictional arguments on incompatibility ratione materiae (subject matter outside the scope of the Convention) and the link to the merits of the case. Case law of the ECtHR from January 1979 to December 2016 is assessed to elaborate four models of interaction between the margin of appreciation and living instrument doctrines. The article argues the need to go beyond consideration of expansion and restriction of the scope of the echr, and to assess the Court’s appetite for allocating new duties to States based upon the case arguments and positioning of living instrument and margin of appreciation doctrines.