Human Right Law Coursework (Final Year LLB Law) Essay

Human Right Law Coursework (Final Year LLB Law) - Essay Example It is in this context that the concept of ‘living instrument’ is often challenged by critics under the scepticism that considering present conditions may be contradictory and evidently different from the set guidelines and regimes followed by state courts; thus raising perplexities and conflicts amid the beneficiaries and the law enforcers. Emphasising this scepticism concerning the effectiveness of the living instrument, Brenda Hale (Baroness Hale of Richmond), stated in her lecture on â€Å"Common law and Convention law: the limits to interpretation† that the living instrument incorporated by the court of Strasbourg should have certain limits and it should not be unstoppable such as the beanstalk grown from â€Å"magic beans†2. Contextually, the primary intention of the essay will be to evaluate the past decisions of cases laid by the Strasbourg Court and critically assess the limits stated by Lady Hale in the context. The essay will also evaluate the cha nces or the probability of introducing any limits in the use of the living instrument in the Strasbourg Court. Discussion Living Instrument The ‘living instrument doctrine’ is often regarded as one of the founding principles of the Strasbourg case-law. Based on this principle, the conflicts registered in the ECHR are interpreted in the light of present day condition. In general terms, the aspect of a living instrument can be explained as an approach of the ECHR to consider the present day conditions while making a decision rather than what the drafters thought way back in the conventional era. This idea of the court is often regarded as â€Å"dynamic or evaluative†, which is however criticised as directly contradictory to the concept of ‘originalism’3. It will be crucial to mention that since the convention is considered and practiced as a living instrument, it is bound to consider only the present day conditions in order to ensure the practicality a nd effectiveness of the ECHR4. This particular notion adopted by ECHR, as a living instrument, can be comprehensively understood with reference to the cases of Mata Estevez v Spain (2001) and Schalk and Kopf v Austria (2010). For example, in the case of Mata Estevez v Spain (2001), the Strasbourg Court disapproved that the relationship between same-sex couples falls within the principles of Article 8 (â€Å"Right to respect for private and family life†) of ECHR and thus cannot be considered to be under the family scope to be entitled for the related human rights. However, in the case of Schalk and Kopf v Austria (2010), the court approved the relationship of same sex couples to be applicable under the principle of Article 8 of ECHR. In this case, the court considered the present day condition where same sex couples are treated and accepted with utmost respect in the society5. Strictly following the principle of ‘living instrument’ can give rise to various drawbac ks in the law enforcement procedure, which has become the base of continuing debate on the effectiveness of