Resilience amidst restraint. The ECtHR’s living instrument doctrine as a mechanism of democratic resilience in the shadow of the Chișinău Declaration

Abstract

This thesis dives into the European Court of Human Rights’ ‘living instrument’ doctrine as a mechanism of democratic resilience amidst critical political backlash from Contracting States. Focusing on the critical fault line of migration, the essay covers the structural tensions between the Court’s dynamic and progressive interpretation of the provisions in the European Convention on Human Rights and strong State demands for judicial restraint. This conflict escalated dramatically following the May 2025 ‘Letter of Nine,’ a political statement by 9 Member States’ leaders challenging the ECtHR's interpretative authority in migration governance, which later expanded into a December 2025 Joint Statement signed by 27 States. This political pushback ultimately culminated in the unanimous adoption of the May 2026 Chișinău Declaration by the Committee of Ministers. It is through the analysis of foundational jurisprudence under Articles 3 and 8 ECHR, alongside Protocol No. 4, that the research tracks how the Court historically expanded non-refoulement protections, qualified deportation powers, and regulated border pushbacks. However, contemporary security narratives surrounding the ‘instrumentalization’ of migration and ‘hybrid warfare’ are pushing the Court toward a phenomenon of legal exceptionalism. The Chișinău Declaration attempted to reconcile these tensions by reaffirming the standing of the ECHR framework while simultaneously institutionalizing political pressure through a fixation on the principle of subsidiarity and process-based review. Ultimately, this thesis assesses whether the living instrument doctrine will survive as a tool of progressive judicial resilience or succumb to an unprecedented ‘evolutive regression’ that narrows human rights protections to appease sovereign States.