THE LEGAL BASIS FOR THE APPLICATION OF THE “LIVING INSTRUMENT” CONCEPT IN THE PRACTICE OF INTERNATIONAL HUMAN RIGHTS BODIES

The concept of a “living instrument” is an approach characteristic of the interpretative practice of many international human rights treaties and, in general, as argued in this article, does not go beyond the rules of interpretation enshrined in Art. 31—33 of the 1969 Vienna Convention on the Law of Treaties. The term “living instrument” is a metaphor that reflects the conceptual basis of this approach. According to this concept, treaties should be interpreted as adapting to the contemporary conditions of society. An analysis of the practice of international human rights bodies shows that they are often reluctant to argue the legal grounds for the application of the “living” method of interpretation. Following such a trend by international human rights bodies is met with corresponding criticism by the states, as well as in the academic environment. The article attempts to identify the legal grounds for the application of the “living instrument” concept by international human rights bodies. The analysis of the practice of interpretation of the international human rights treaties considered in the article allows us to identify several legal grounds for the application of the concept of a “living instrument”. Some international human rights bodies use as legal grounds the provisions directly enshrined in the text of the interpreted treaties, which directly or indirectly indicate the ability to adapt the treaty to modern conditions of society. At the same time, it should be noted that the absolute legal basis for the application of the concept of a “living instrument” is the external context of the treaty to be interpreted, to which reference is prescribed by article 31, paragraph 3, of the 1969 Vienna Convention on the Law of Treaties, which provides for the consideration of subsequent practice and agreements of the parties to treaties, as well as other rules of international law

“living instrument”, interpretation of international treaties, international human rights law, law of treaties, 1969 Vienna Convention, international human rights treaties, European Court of Human Rights, Human Rights Committee, Inter-American Court of Human Rights, object and purpose of treaty

Adzhiev A. H. The legal basis for the application of the “living instrument” concept in the practice of international human rights bodies. Biznes. Obrazovanie. Pravo = Business. Education. Law. 2023;2(63):280—285. DOI: 10.25683/VOLBI.2023.63.625.