Does the ECHR constitute the most effective implementation instrument for the regional protection of human rights?

The ECHR emerged at a critical moment in European History. Europe had just dealt with a catastrophic war and the ECHR was enshrined with the objective of safeguarding the democratic character of Western Europe against totalitarian regimes by alarming the Member States when human rights violations occurred. The political objectives behind the adoption of the ECHR led to the protection of 12 civil and political rights. However, this list has been criticised as being too narrow and constrained, irrespective of the wide range of protocols subsequent to the Convention which barely protect any additional rights and are, mostly, of procedural nature. The narrowness of the ECHR can be said to have been compensated through the interpretation techniques adopted by the European Court on Human Rights (ECtHR). The Court adopts an expansive interpretation of rights, or the ‘living instrument doctrine’, which was first recognised in the case of Tyrer v United Kingdom. This doctrine has led to an impressive expansion on the nature of the rights. For example, in Selmouni v France the Court interpreted the Article 11 right to association in a way which expanded this positive right to a negative right to not be compelled to enter an association.The protection of what was already a narrow list of rights in Europe is further limited by derogations. In times of emergency, states can restrict individual rights after following a strictly regulated process. Even though derogations might weaken the ECHR by enabling states to deviate when treaty compliance is needed the most, their advantages should not be overlooked. Firstly, they reduce uncertainty by enforcing a regulated framework under which derogations are allowed. This permits international supervision by subjecting states to a narrowly calibrated system thereby ensuring that the right to derogate is not abused. Secondly, they create the necessary leeway for the encouragement of more states to ratify the Treaty which promotes the effectiveness of the system by widening the acceptance of its jurisdiction.This analysis suggests that the effectiveness of the ECHR cannot be determined through an isolated view on the quantity of rights protected. The discussion on the matter needs to examine the efficiency of its institutions and enforcement mechanisms.