Evolutive interpretation: reflections on evolution, morality, and the complexity of consensus

The article analyzes the evolutionary method of interpretation through the prism of national practices and the key in-ternational cases that have influenced the spread of this method of interpretation. It also analyzes the contradictory aspects of the justification of consensus. It is noted that the “living instrument” doctrine received its initial development in international law due to the ideas of “intertemporal law” (international arbitration), the “living Constitution” (USA, Germany), the principle of “contemporanity” (United Nations International Law Commission), and the “living tree” doc-trine (Canada). Each new case has clarified the methodology of international courts’ application of evolutive interpreta-tion. The line of development and implementation of this method of interpretation in the practices of the International Court of Justice of the United Nations, the Inter-American Commission on Human Rights, and some universal human rights treaty bodies is analyzed. A significant part of the analysis is devoted to the case law of the European Court of Human Rights (ECtHR), which has succeeded most in developing the “living instrument” doctrine and evolutive inter-pretation. When analyzing the consequences of moral interpretation in the case-law of the ECtHR, vertical and hori-zontal consequences are highlighted. As to the role of Russia, it is predicted that despite the increase in the number of evolutive judgments in the practices of international courts, the percentage of evolutionary cases in the ECtHR will de-crease due to the termination of Russia’s membership in the Council of Europe and to the strengthening of the princi-ple of subsidiarity. Problematic aspects of the application of the consensus doctrine include the lack of both a clear quantitative standard necessary to achieve consensus among States and consistency in its application. Special attention is paid to the tendency of deliberate “crystallization” of soft law by the ECtHR in substantiating the regulatory frame-work of the European consensus. The Strasbourg Court continues to expand the limits of the normativity of consensus, including norms of a recommendatory nature. It is noted that references to sources of soft law within the framework of evolutive judgments raise the important question of the legitimacy of such acts, since States are required to implement a decision based, among other things, on non-binding norms.