Interpretation and Application of the European Convention on Human Right in the Broader Context of International Law: Myth or Reality?

Abstract

The European Court of Human Rights (the Court) has progressively developed a method of interpretation of the European Convention of Human Rights which takes into account the evolving normative environment of international law. This methodology has been summarized by the Grand Chamber of the Court in the Demir and Baykara judgment. This chapter identifies two rationales for the Court’s approach: “systemic integration”, as it may be considered a tool to ensure coherence in a fragmented system of international law, and “evolutive interpretation”, as far as it underpins with objective standards the adaptation of its interpretation to the evolving social and legal context. It then analyses two critical aspects of the Court’s approach. On the one hand, it underlines the unnecessary use by the Court of expressions denoting its willingness to deviate from generally accepted rules on treaty interpretation, as codified by the Vienna Convention on the Law of Treaties. On the other hand, it brings a few examples of the inconsistent application of this interpretative approach. It concludes by observing that, if the practice of relying on “other” international law to interpret the Convention is a “reality”, its contribution to the unity of international law and to the enhancement in consistency and predictability of the Court’s jurisprudence remains, to a large extent, a “myth”.