Starting point of interpretation – general principles of interpretation of treatiesinterpretation of treaties

III Table of cases

3. Second phase of transition of the legal culture – development of the meaning of the Convention

3.3 Starting point of interpretation – general principles of interpretation of treatiesinterpretation of treaties

It is typical of international treaties that they constitute political compromises, which may sometimes lead to ambiguous wordings that may be difficult to understand and to be translated into other languages. Or, sometimes treaty provisions may contain terms or concepts that are not familiar or are not used in some legal systems. In such cases, domestic courts inevitably need to interpret the provisions in question. Although treaties such as the European Convention on Human Rights, which is not meant to be only applied between the states parties to it but also by the state party in relation to natural persons residing within its jurisdiction, should be drafted as precisely as possible, it is characteristic of the European Convention on Human Rights to use general formulations that are applicable to various types of cases where the individual circumstances of the case are different. On the one hand, such formulations allow flexibility in the interpretation of the Convention, to take into account changes in society and legal thinking, but on the other hand, they are a challenge for the courts interpreting them. In establishing the meaning of a treaty provision, a court may resort to different principles and methods of interpretation as in respect of any provisions of law, such as historical interpretation (on the basis of “travaux préparatoires”), literal interpretation, teleological interpretation and/or contextual interpretation. One should remember, however, that the Rules of Court of the European Court of Human Rights do not contain provisions on the acceptable sources of law or the rules or principles of interpretation. Therefore those have become established through the case law. The Court has resorted, on the one hand, to the general principles of interpretation of international treaties and, on the other hand, to the general principles of interpreta-tion of law as recognised by the States parties. It is observed in the foregoing that the States parties have, however, agreed on a great degree of independence for the Court in the Convention.

As regards the interpretation of international treaties applicable to the European Convention on Human Rights, the guiding principles are those found in the Vienna

Convention on the Law of Treaties. Articles 31 and 32 of the Vienna Convention provide for the general rules and supplementary means of interpretation of treaty provisions. According to Article 31(1),

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Article 31, paragraph 2, of the Vienna Convention further defines ‘context’ as follows:

The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument relating to the treaty.

In respect of the European Convention on Human Rights, context in the light of the foregoing provisions would include the text of the Convention and additional Protocol No. 1, as well as subsequent additional protocols which are considered to constitute an integral part of the Convention upon their ratification by the parties. In the light of theories of discourse analysis, the provisions of Article 31, paragraph 2, appear to coincide with the idea of internal context. As regards external elements, Article 31, paragraph 3, of the Vienna Convention further provides as follows:

There shall be taken into account, together with the context:

a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

c) any relevant rules of international law applicable in the relations between the parties.

Those provisions would, in terms of discourse analysis, fall within the concept of external elements. The parties to the European Convention on Human Rights have not concluded any specific agreements regarding its interpretation, but have agreed through the provisions of the Convention on the establishment of the European Court of Human Rights. According to Article 32, paragraph 1, of the European Convention on Human Rights, “the jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47”⁴⁵⁴. Thus, Article 32, paragraph 1, of the European Convention on Human Rights constitutes an agreement between the parties regarding the interpretation of the treaty within the meaning of the Vienna Convention on the Law of Treaties. As regards the main principles of interpretation under the Vienna Convention, including the ordinary meaning to be given to the terms of the treaty in their context, and the object and purpose of the treaty, the European Court of Human Rights has referred to those principles on several occasions⁴⁵⁵. The Court has also, on occasion, been confronted with the question of applicability of other international conventions, referred to in Article 31, paragraph 3 subparagraph (c), of the Vienna Convention on the Law of Treaties, such as the United Nations Conven-tion on the Law of the Sea.⁴⁵⁶ It is perhaps more common, however, for the Court to refer to other human rights instruments such as the Convention on the Rights of the Child. In the case of Saadi v. the United Kingdom, among others, the Court also took a position on the applicability of general principles of international law.⁴⁵⁷ As is pointed out by Ost & van de Kerchove, the development of the Court’s doctrine of interpreta-tion began already with its first judgment in the Lawless case, although in their view

454 The articles referred to provide for inter-state applications, individual applications and advisory opinions. Under Article 32, paragraph 2, “in the event of dispute as to whether the Court has jurisdiction, the Court shall decide”. Thus, the role given to the European Court of Human Rights is rather independent.

455 The Court has stated this, among others, in the case of Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, §§ 29 and 30, thus already before the entry into force of the Vienna Convention. The Court has referred to the Vienna Convention e.g. in the cases of James and Others v. the United Kingdom, judgment of 21 February 1986, Series A No. 98, § 64, Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A No. 102 § 117, and Cruz Varas and Others v. Sweden, judgment of 20 March 1991, Series A No. 201, § 100, and Saadi v.

the United Kingdom, Grand Chamber judgment of 29 January 2008, §§ 61 and 62. In the latter case, the Court explicitly stated that “in ascertaining the Convention meaning of this phrase, it will, as always, be guided by Articles 31 to 33 of the Vienna Convention on the Law of Treaties”

(§ 61).

456 See Medvedyev v. France, Grand Chamber judgment of 29 March 2010, Reports of Judgments and Decisions 2010.

457 Saadi v. the United Kingdom, Grand Chamber Judgment of 29 January 2008, Reports of Judg-ments and Decisions 2008, § 62. In the Court’s words, “the Court must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties”.

the first clear statement of the doctrine can be found in the Golder judgment.⁴⁵⁸ The foregoing would give reason to state that the case law constitutes an external element of argumentation. However, it is argued in this thesis that it should rather be treated as an internal element of argumentation.

The aforementioned main rule in Article 31, paragraph 1, of the Vienna Convention is useful where the authentic texts of the treaty do not contain divergences, or where the divergences are insignificant for the outcome of the reading of the treaty provi-sions. However, as is pointed out by Hakapää, although the language used should mean what is stated, it may sometimes be difficult to establish the ordinary meaning of the expressions used in the treaty⁴⁵⁹. Also, the way in which expressions are understood in different legal systems may differ even significantly. The Vienna Convention on the Law of Treaties further allows a special meaning to be given to a treaty provision. Ac-cording to Article 31, paragraph 4:

A special meaning shall be given to a term if it is established that the parties so intended.

That provision is interesting in the light of the case law of the European Court of Human Rights in that the Court interprets the meaning of the Convention provisions rather independently. Although it is not that clear what the parties have intended in respect of special meanings to be given to terms used in the Convention, the Eu-ropean Court of Human Rights appears to resort to that possibility. If the Court’s interpretative practice was to be criticised for one reason or another, its practice of giving Convention provisions an independent or autonomous meaning could be a source of criticism, although the jurisdiction given to the Court in Article 32 of the European Convention on Human Rights is extensive and, when understood in the widest possible sense, should be considered to cover the possibility in Article 31, paragraph 4, of the Vienna Convention on the Law of Treaties. Even if not criticised, the idea of independent or autonomous meaning is an element creating challenges for the national legal systems. That element of interpretation is addressed in more detail in section 3.4.10 below.

The Vienna Convention on the Law of Treaties also provides for further rules of interpretation. According to Article 32 of the Convention:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to

458 Ost & van de Kerchove 1989, p. 253, refers to Lawless v. Ireland, judgment of 1 July 1961, Series A no. 3, and Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18.

459 Hakapää 2008, p. 31.

confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

a) leaves the meaning ambiguous or obscure; or

b) leads to a result which is manifestly absurd or unreasonable.

Those options are even more clearly external elements of justification than those provided for in Article 31, paragraph 3. When looking into the wording of Article 32, one may note that although it mentions specifically the preparatory work of the treaty and the circumstances of its conclusion, it is not exhaustive but provides for flex-ibility in treaty interpretation. In terms of discourse analysis, that calls for resorting to subjective elements of interpretation. The European Court of Human Rights has also used the flexibility allowed by the Vienna Convention on the Law of Treaties in treaty interpretation. For example, in the so-called Belgian language dispute, the European Court of Human Rights not only underlined the need to read both language versions together, but also resorted to supplementary means of interpretation as, although the general objective and purpose of Article 14 of the Convention was to prohibit discrimination, it does not require to forbid any difference in treatment that would lead to an absurd result. Thus, the Court declined an extensive interpretation of the provision.⁴⁶⁰ In addition, the Court referred to the need to read Article 14 in the light of other relevant provisions, i.e. in that case Article 2 of Protocol 1⁴⁶¹. On occasion, the Court may decline to take the provisions of Article 14 into account, in case it has found a breach of another substantive provision of the Convention, in which case it

460 Case ”relating to certain aspects of the laws on the use of languages in education in Belgium (Application n^o 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64) judgment of 23 July 1968, Series A No. 6, § 10, reads as follows: “In spite of the very general wording of the French version (“sans distinction aucune”), Article 14 (art. 14) does not forbid every difference in treatment in the ex-ercise of the rights and freedoms recognised. This version must be read in the light of the more restrictive text of the English version (“without discrimination”). In addition, and in particular, one would reach absurd results were one to give Article 14 (art. 14) an interpretation as wide as that which the French version seems to imply. One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised.

The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted.”

461 Ibid. § 11. This approach has been confirmed e.g. in the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May1985 (Plenary), A94, § 71.

resorts to a more restrictive interpretation⁴⁶². However, the interpretation of provisions of law or a treaty is a continuous process in which it may be difficult to strictly separate the various rules of interpretation, but in the same way as in discourse analysis, both objective and subjective elements of interpretation interact. According to Germer, the drafters of the Vienna Convention did not even intend to draw a strict line between the authentic elements of interpretation in Article 31 and the supplementary means of interpretation in Article 32 but intended them to operate in a single combined pro-cess. Furthermore, the supplementary means of interpretation may be used to confirm the meaning resulting from the application of Article 31.⁴⁶³ As is explained below in more detail, the European Court of Human Rights has also developed a practice of combining the various rules and principles of interpretation, despite that the emphasis may be given to an individual rule.

The Vienna Convention also provides for special rules of interpretation of treaties authenticated in two or more languages, which is thus of relevance for the interpreta-tion of the European Conveninterpreta-tion on Human Rights. According to Article 33:

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic text discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

The foregoing provisions mean that the European Convention on Human Rights is equally authentic in both English and French, and those language versions are presumed to have the same meaning. On the one hand, given that only two language versions are

462 See e.g. Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A No. 45, § 67, and Airey v. Ireland, judgment of 9 October 1979, Series A no. 32 , § 30.

463 Germer 1970, p. 419.

authentic, there are potentially not so many significant discrepancies between the two language versions that would give reason to systematically compare them, which pre-sumption is confirmed by that the Court only seldom needs to resort to comparing the language versions although it has on occasion done so. On the other hand, comparison between language versions may be a supporting element of interpretation of the Con-vention provision in case of doubt, even if there are not as such discrepancies between them. It is also worth reminding that the plurilingual nature of a treaty should not be over-emphasised. As is observed by Germer, among other authorities, the problems of interpretation that are related to plurilingual treaties are not essentially different from those arising from treaties with only one authentic text. A judge interpreting a treaty must always look for the meaning which the parties intended to give to the terms of the treaty.⁴⁶⁴ For the purposes of reconciling the divergent language versions, Hardy makes a distinction between several methods available: mere comparison of texts, ref-erence to the context, refref-erence to documentary evidence of how the discrepancy has occurred, if available, and reference to preparatory work⁴⁶⁵. It may be presumed that these methods are in practice applied together, and the European Court of Human Rights has on occasion resorted to comparison and references to the context. Hardy further suggests other methods of conciliating authentic language versions, of which perhaps reference to the original language version is the most convincing one.⁴⁶⁶ The European Court of Human Rights has not taken a position on which language version would be the original one, but has treated them on an equal footing. The reference to the original language version would indeed be particularly useful in the case of treaties which have more than two authentic language versions.

It is recalled again that there are only two authentic language versions to be com-pared, and the problem of predictability of interpretation does not relate so much to divergence between them but rather to other elements relating to the interpretation of the Convention. Thus, the principles in Article 33 of the Vienna Convention on the Law of Treaties should not be emphasised despite that the Court has on occasion resorted to comparing the two language versions. It is not surprising that the Court has resorted to a larger extent to other means of interpretation instead of comparison.

However, in the case of the European Convention on Human Rights, the parties to the Convention have delegated the power of interpretation to the European Court of Human Rights whose interpretations are binding on the States, and the Court has developed additional rules and principles of interpretation. The aforementioned prin-ciples set out in the Vienna Convention on the Law of Treaties apply to the European Convention on Human Rights as general principles interpretation, which constitute

464 Germer 1970, p. 425 and 426.

465 For details, see Hardy 1962, p. 82-98.

466 For details, see Hardy 1962, p. 98-106.

the basis for developing the language of the Convention and for the transition of the legal culture of protecting human rights both at the European and at the national level. In the following, an analysis is made of how the European Court of Human Rights has applied those principles and the additional rules and principles developed for interpreting the Convention in its case law, in an effort to assess to what extent the meaning of the Convention provisions has evolved and what type of a transition

In document European Convention on Human Rights and transition of the legal culture : reception of the argumentation of the European Court of Human Rights by the Finnish supreme jurisdictions (sivua 165-172)