Interpreting the ECHR in light of the increasingly high standards being required by human rights:Insights from social ontology

Wheatley, Steven (2023) Interpreting the ECHR in light of the increasingly high standards being required by human rights:Insights from social ontology. Human Rights Law Review. ISSN 1461-7781 (In Press)

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Abstract

This article looks to make sense of those cases where the ECtHR changes its position on interpretation in light of the increasingly high standards being required by human rights, when the Court applies the doctrine of evolutive interpretation to the ECHR’ object and purpose, as a Convention for the protection of ‘human rights’ (e.g., Selmouni v. France). This raises two questions: What do we mean when we speak about ‘human rights’? Can the demands of human rights can change over time? Looking to the insights from social ontology, we can think of human rights as a social institution, emerging with the adoption of the Universal Declaration of Human Rights and evolving with changes in human rights practices. Understood this way, reliance on the increasingly high standard doctrine becomes defensible when ECtHR judgments are consistent with evolving practices on human rights, and the moral values that underpin the UDHR.