Treaty Interpretation at the European Court of Human Rights

Abstract

This chapter examines the ways in which the European Court of Human Rights (ECtHR/Strasbourg Court) applies the customary rules of treaty interpretation. Based on analyses of cases decided by the ECtHR, it argues that the methods of approaching the customary rules of treaty interpretation by this specialised court did not differ prior to, and after, the adoption of the VCLT and have been applied in patterns similar to those of the ICJ. This uniform application of customary rules of interpretation by the ECtHR has contributed to enhancing the formation of these rules as customary and to expanding the understanding of the universal applicability of the VCLT general methodology of treaty interpretation (Articles 31–33). Moreover, the autonomous or specific concept doctrines (techniques) of interpretation developed by the Strasbourg Court do not appear to replace or impede the application of the customary rules of interpretation when this Court interprets the Convention (ECHR) provisions. However, the application of the customary rules of treaty interpretation appears to play an important role in shaping the ECtHR’s own treaty interpretative approach. The isolated cases when the ECtHR appears to deviate from the basic (standard) rule of interpretation provided by Article 31(1)(2) of the VCLT do not form an interpretative path, as the ECtHR has shown willingness to ‘revert’ after such decisions to an interpretative path that is more in line with the VCLT standard of interpretation and with its own previous approaches. The argument based on the examination of cases developed in this chapter thus provides an empirical response to the theoretical discussion related to the possible ‘self-contained’ nature of the human rights regimes. It allows for assessing whether the interpretative practice of the ECtHR could be a tool for unification of an alleged fragmented landscape of international law or it contributes to fragmentation in international law.