Kanstantsin Dzehtsiarou and Conor O'Mahony

2013

March

Columbia Human Rights Law Review

Evolutive Interpretation of Rights Provisions: A Comparison of the European Court of Human Rights and the US Supreme Court

In Press

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44

2

309

365

A major challenge faced by courts called on to interpret rights provisions is how to adapt the interpretation of those provisions to changed circumstances and conditions in society. The nature of these challenges has led to deep disagreement in the US over whether the US Supreme Court should treat the US Constitution as a living constitution. In contrast, the European Court of Human Rights consistently takes the view that the European Convention on Human Rights is a living instrument and that its interpretation should evolve over time to reflect societal change. This settled position has allowed the Court to develop a judicial methodology for assessing whether it is appropriate to engage in such evolutive interpretation in a given case (albeit not without some controversy about some of the reasoning employed). By comparison, judicial methodology of evolutive interpretation is less developed in the US. Nonetheless, in a number of cases surrounding the death penalty and substantive due process in particular, the US Supreme Court has employed strikingly similar reasoning to the European Court of Human Rights, and this case law provides fertile ground for comparative analysis. This paper will compare and contrast the judicial methodology employed by the European Court of Human Rights and the US Supreme Court when engaging in evolutive interpretation of rights provisions. It will be argued that there is much common ground between the two approaches, and that a comparison between the two sheds light on how to resolve difficult questions concerning how states are counted in consensus analysis; the appropriateness of reliance on foreign and international law; and the question of whether evolutive interpretation is a one-way process where rights can be expanded but not restricted.

New York

0090-7944