The Limits of the Evolutive Interpretation of the European Court of Human Rights: Sovereignty, Legitimacy and Effectiveness

Abstract

The evolutive interpretation has over time led to a gradual expansion of the rights provided for in the Convention. In this regard, the study of the limits of such an interpretation makes it possible to establish the legality of the relevant evolutive judgments. The author attempts to analyze three elements that affect the limits of evolutionary interpretation: state sovereignty, the legitimacy of evolutive judgments and their effectiveness. The main attention is paid to the case-law and legal positions of the European Court of Human Rights, revealing the limits of such an interpretation, as well as doctrinal opinions in terms of criticism of evolutive interpretation. In particular, the opinions of scientists are highlighted that such an interpretation creates obligations that exceed those initially assumed by the States parties to the Convention, and that the Strasbourg Court risks becoming a court of "fourth instance". The author points out that there is a tendency to strengthen the role of national approaches to the interpretation of human rights and reduce the importance of evolutive interpretation. The combination of the European consensus and the freedom of discretion contributes to increasing the legitimacy of evolutionary rulings. It was stressed that in seeking consensus, the Court should seek to involve as many member States of the Council of Europe as possible in this process in order to promote closer identification with the Convention. In conclusion, it is noted that the use of a consensus approach and the doctrine of freedom of discretion today allow the European Court of Human Rights to preserve the limits of evolutionary interpretation and protect itself from excessive judicial activism.