Monday 20 June 2011

The Convention: a Beanstalk or a Tree?

Baroness Hale of Richmond, justice at the Supreme Court of the United Kingdom, delivered a lecture last Thursday with the intriguing title 'Beanstalk or Living Instrument? How Tall Can the ECHR Grow?'. It is a nuanced call to the European Court of Human Rights to be prudent: to avoid the ECHR to be turned into an ever-growing beanstalk - as in the fairy tale. In the lecture, baroness Hale deals with the various ways in which the living instrument doctrine has taken shape over the years and connects this to the issues national courts have to deal with. Rather than a beanstalk, she argues that the Convention should better be compared to a tree: grwoing but simultaneously rooted in a sufficient degree of predictability. She ends with a cautionary note:

As a supporter of the Convention and the work of the Strasbourg Court, my plea to them is to accept that there are some natural limits to the growth and development of the living tree. Otherwise I have a fear that their judgments, and those of the national courts which follow them, will increasingly be defied by our governments and Parliaments. This is a very rare phenomenon at present and long may it remain so.
See also the coverage and comments at the UK Human Rights Blog.

Hat tip to EM!