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Talk:Living instrument doctrine

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Did you know nomination

[edit]
The following is an archived discussion of the DYK nomination of the article below. Please do not modify this page. Subsequent comments should be made on the appropriate discussion page (such as this nomination's talk page, the article's talk page or Wikipedia talk:Did you know), unless there is consensus to re-open the discussion at this page. No further edits should be made to this page.

The result was: promoted by Yoninah (talk) 15:41, 25 November 2020 (UTC)[reply]

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Created by Buidhe (talk). Self-nominated at 04:05, 18 October 2020 (UTC).[reply]


General: Article is new enough and long enough

Policy compliance:

Hook: Hook has been verified by provided inline citation
QPQ: Done.

Overall: This article was new enough when nominated, is easily long enough (~5,800 chars), and has no other eligibility problems that I can see. The QPQ review looks good. I see no signs of plagiarism from online sources; the hits on the Earwig tool are all from direct quotations that are appropriately attributed in the article. As a note, "differential treatment" currently redirects to "discrimination", which is wikilinked later in the same sentence; perhaps you're anticipating a future split? If not, the first link can probably be cut. As a suggestion not related to this review, it seems to me that this article should probably link to Living document (and should probably form the basis for a new section in that article!). The sourcing is thorough and of high quality. All the proposed hooks are supported by citations in the article; I find ALT0 the most punchy and efficient.

I'm a bit concerned about neutrality in the "Reception" section: the article as it now stands has five out of six sentences in this section expressing support for the "living instrument" approach, and the one sentence that documents opposition is immediately followed by a "However," seeming to indicate that it is rebutted by the next sentence. I have a hunch that there are many, many voices out there in opposition to this approach to jurisprudence (because, in my native jurisdiction, this question is extremely controversial). Surely a bit more space can and probably should be given to the dissenting voices? Other than that, everything looks good. Well done! Bryan Rutherford (talk) 17:29, 29 October 2020 (UTC)[reply]

  • Why did you cross out two of the hooks? Is there anything wrong with them?
Just to indicate my preference. I can undo it, if you like; I'm not sure what the convention is on such things. -Bryan Rutherford (talk) 01:08, 3 November 2020 (UTC)[reply]
  • The ECHR is not a living document according to the definition given—"a document that is continually edited and updated", such as Wikipedia—it has never been amended, unless you count the protocols.
Fair enough, forget I suggested it. -Bryan Rutherford (talk) 01:08, 3 November 2020 (UTC)[reply]
  • Differential treatment is treatment of different groups, eg. longer maternity than paternity leave, which is determined not to constitute discrimination. It is a notable topic in its own right.
As I said, a reason to keep them both linked would be if you anticipate that they will at some future point be distinct articles. -Bryan Rutherford (talk) 01:08, 3 November 2020 (UTC)[reply]
  • As for reception, I did a thorough search in English language papers published in Google Scholar and those I am able to access are not critical of the doctrine. As far as I can tell, most of the criticism of the doctrine per se comes from a couple of member countries but considering that there are 47 countries in the CoE, this viewpoint shouldn't be given undue weight. (t · c) buidhe 00:32, 31 October 2020 (UTC)[reply]
I immediately see confirmation in the documents that there is significant controversy surrounding the doctrine. The Webber thesis you've included in "Further reading" opens with the assertion that "the European Court of Human Rights and the Convention itself have come in for stern criticism from a diverse array of stakeholders. Of particular controversy is the Court’s utilisation of the Living instrument doctrine." I see mentioned for example here: "in Marckx v Belgium (1979) 2 EHRR 330, Sir Gerald Fitzmaurice in his dissenting judgment criticized the application of judge-made law in the realm of international adjudication which relies on state consent," meaning that at least one judge in the court itself has publicly expressed concern. Or, this document offers itself as "a rebuttal of prominent criticisms directed against the ‘living instrument’ interpretative approach"; it would be nice to have some of those prominent criticisms summarized in this article. -Bryan Rutherford (talk) 01:08, 3 November 2020 (UTC)[reply]
If you look a bit closer, Theil's paper criticizes views held by some in the UK, which is only one of the countries in the CoE, although it is overrepresented in English sources (as opposed to commentary written in German or French). The UK is one of the member countries most critical of the ECHR system; its views should not be given undue weight. Yes, doctrine is controversial *in the UK* but not in most of the countries over which the ECHR has jurisdiction. The thesis is published by a UK university and focuses on UK criticisms of the court. I don't see what one dissent in a case 40 years ago (not coincidentally by the UK judge) matters since it has not been followed by the court in later cases. What you are asking is for the article to reflect anglophone bias.
In addition, this is a start class article. It is not required to cover all viewpoints or arguments.(t · c) buidhe 01:48, 3 November 2020 (UTC)[reply]
If the doctrine is quite controversial in the UK and nowhere else, then the article should say so, documenting British criticisms; in fact, you've already quoted a non-British voice (Dutch) criticizing the doctrine as excessively activist, so perhaps the controversy is more of a North Sea phenomenon? As to the last, neutrality is "a fundamental principle of Wikipedia and ... one of Wikipedia's three core content policies" and is a bedrock requirement for all live content in Wikipedia, as well as being explicitly listed as DYK criterion 4a: "Articles ... that ... promote one side of an ongoing dispute should be avoided." The article certainly shouldn't "reflect" a view critical of the doctrine, but it does need to document that such views exist and have been expressed and published. The wording changes you've already made help to reduce the article's appearance of taking sides (particularly the removal of the "However," following the one sentence about critical views). -Bryan Rutherford (talk) 04:04, 3 November 2020 (UTC)[reply]
@Buidhe: Just to be clear for the admins, this article is good on all criteria except neutrality. If, as the nominator indicates, the doctrine is controversial in certain countries but "not in most of the countries over which the ECHR has jurisdiction", then that would be a great way to summarize the doctrine's reception in the article, along with supporting citations. Once a neutral summary of the situation is present in the article, then it will be ready to run. -Bryan Rutherford (talk) 19:58, 10 November 2020 (UTC)[reply]
  • I pinged the nominator, who states that fulfilling the directions for what the reviewer considers NPOV would itself create an issue of undue weight to the perspectives he wants to be elaborated on. The article already discusses prominent criticisms of the doctrine. If Bryan Rutherford is not willing to approve the article as is, we need a new reviewer. Thanks, Yoninah (talk) 20:38, 22 November 2020 (UTC)[reply]
As the article now stands, it reads to me as clearly advocating for the doctrine and downplaying any criticism. A second reviewer is welcome to weigh in. -Bryan Rutherford (talk) 20:52, 22 November 2020 (UTC)[reply]
Anbother opinion: I agree that the article sounds like it is advocating for "Living instrument doctrine", particularly in Origin and effects sections. The Reception section itself is neutral enough. The quotes are the major non-neutral text in this article. Somehow these should be de-emphasised, even if they are important in the origin. Graeme Bartlett (talk) 23:45, 24 November 2020 (UTC)[reply]
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