(In)fexibility of Territorial and Material Jurisdiction of the European Court of Human Rights

What is it about?

The European Court of Human Rights has consistently applied the ‘living instrument’ doctrine, interpreting the European Convention on Human Rights in light of contemporary legal and societal developments. This dynamic interpretation method has the potential to create tension with regard to the boundaries of state consent, particularly regarding the extent to which states accepted the obligations under the Convention. This paper examines the extent to which this interpretative approach has influenced the Court’s determination of its territorial and subject-matter jurisdiction. By assessing key jurisprudence, it explores how the Court has sought to ensure that the rights enshrined in the Convention remain practical and effective while respecting its structural constraints. In particular, this paper examines how the Court has maintained a primarily territorial scope when assessing its jurisdiction, recognising limited exceptions where states exercise effective control beyond their borders. Similarly, regarding subject-matter jurisdiction, this paper examines how the Court has refrained from expanding its remit beyond the rights explicitly enshrined in the European Convention, reaffirming that any substantive development remains a matter for the Member States through formal treaty amendment. This paper concludes that while the living instrument doctrine entails some flexibility in terms of interpretation, it does not justify jurisdictional expansion, reinforcing the principle that international judicial authority remains subject to state consent.

Featured Image

Photo by Jorge Fernández Salas on Unsplash

Photo by Jorge Fernández Salas on Unsplash