The principles of effectiveness and subsidiarity offer important guidance to the ECtHR. In interpreting the terms and notions of the various Convention provisions and in assessing the interference and justification of interferences, the Court further makes use of a number of other general principles and starting points. This chapter explains the most important of these principles, connecting them with the two main principles of effectiveness and subsidiarity. Attention is paid to the relevance of the rules of interpretation provided by the Vienna Convention on the Law of Treaties and the special nature of the Convention as a ‘law-making treaty’. Subsequently, three principles are discussed that are of importance to the interpretation and determination of scope of the Convention. These are the notion that the ECHR is a ‘living instrument’, which must be interpreted in an evolutive and dynamic manner, the principle that the Convention should be interpreted in line with the underlying values of the Convention (‘meta-teleological interpretation’ in light of the principles of human dignity, personal autonomy, democracy, and pluralism) and the principle of autonomous interpretation.

The Convention contains an inherent tension between, the one hand, the aim to provide effective protection of Convention rights and, on the other hand, the need for the ECtHR to allow sufficient freedom to the States and respect their special abilities and powers to make choices and decisions, also in light of the inherent indeterminacy of the Convention provisions. It is against this backdrop that the Court has developed its famous yet complex margin of appreciation doctrine, on which this chapter is focused. Insight is given into the development of this doctrine in the Court’s case law, its main rationale and functions, and the types of cases where the doctrine is (and is not) applied. In addition, the main factors determining the scope of the margin and their interaction are explained (common ground facter, better placed factor, nature and intensity of the interference). Finally, some attention is paid to the difference between doctrine and reality in the Court’s case law.

The fundamental rights laid down in the Convention can generally be classified as civil and political rights and liberties. These oblige the States to abstain from undue interference with the Convention rights and freedoms and therefore are called ‘negative obligations’. At the same time, the Court has recognised that States have so-called ‘positive’ obligations to provide effective protection of the Convention rights. The Court’s recognition and development of positive obligations has significantly contributed to the overall strength and scope of the protection offered by the Convention. This chapter focuses on the ways in which the Court generally defines positive obligations, i.e. applying the fair balance test, the reasonable knowledge and means test, an effectiveness-based test, and a test based on the Court’s own precedents. The Chapter further discusses different types of positive obligations - in particular substantive, preventive and procedural positive obligations - and the relation between positive and negative obligations. In addition, the incorporation of social and economic rights in the Convention through positive obligations is addressed.

This chapter discusses several key aspects and basics of the European Convention on Human Rights. First, it explains two main principles underlying the ECHR system as a whole: the principle of effective protection of fundamental rights and the principle of subsidiarity. In addition, the double role of the Court within the Convention system is set out, which is to offer individual redress or individual justice when Convention rights have been violated on the national level, and to clarify Convention rights standards (which is the Court’s constitutional role). The Chapter further addresses the three main stages of the Court’s review, which correspond to the structure of most of the Convention rights: (1) deciding on the applicability and interpretation of a Convention right; (2) determining if there is an interference with the right; (3) reviewing whether a justification can be given for this interference. Finally, a typology is provided of Convention rights according to the possibilities for restricting these rights, e.g. paying attention to absolute, non-derobable rights and distinguishing between different types derogable rights.