Supplementary means of interpretation

Under Article 32 of the Vienna Convention on the Law of Treaties, supplementary means of interpretation are resorted to when the interpretation under the main rules leave the meaning ambiguous or obscure or where it leads to a result which is manifestly absurd or unreasonable. The preparatory work of the treaty are mentioned specifically as such supplementary means, in addition to the circumstances of its conclusion. As regards the case law of the European Court of Human Rights, travaux préparatoires have been referred to on occasion explicitly with reference to Article 32 of the Vienna Convention. For example, in the James and Others case, the Court reasoned exception-ally profoundly on the need to consult the preparatory work:

Confronted with a text whose interpretation has given rise to such disagreement, the Court considers it proper to have recourse to the travaux préparatoires as a sup-plementary means of interpretation (see Article 32 of the Vienna Convention on the Law of Treaties).

Examination of the travaux préparatoires reveals that the express reference to a right to compensation contained in earlier drafts of Article 1 (P1-1) was excluded, notably in the face of opposition on the part of the United Kingdom and other States. The mention of the general principles of international law was subsequently included and was the subject of several statements to the effect that they protected only foreigners.

Thus, when the German Government stated that they could accept the text provided that it was explicitly recognised that those principles involved the obligation to pay compensation in the event of expropriation, the Swedish delegation pointed out that those principles only applied to relations between a State and non-nationals. And it was then agreed, at the request of the German and Belgian delegations, that “the general principles of international law, in their present connotation, entailed the obligation to pay compensation to non-nationals in cases of expropriation” (emphasis added).

Above all, in their Resolution (52) 1 of 19 March 1952 approving the text of the Protocol and opening it for signature, the Committee of Ministers expressly stated that, “as regards Article 1 (P1-1), the general principles of international law in their present connotation entail the obligation to pay compensation to non-nationals in cases of expropriation” (emphasis added). Having regard to the negotiating history as a whole, the Court considers that this Resolution must be taken as a clear indication that the reference to the general principles of international law was not intended to extend to nationals.

The travaux préparatoires accordingly do not support the interpretation for which the applicants contended.⁵⁰⁰

An analysis of the foregoing fragment of discourse discloses that the Court placed considerable weight on the intention of the parties in the light of the travaux prépara-toires. The reference to them may also be made less extensively. In the case of Johnston and Others v. Ireland, the Court referred to the travaux préparatoires to seek further support for the interpretation that the protection of the right to marry under Article 12 intentionally excludes the right to divorce, as follows:

[…] Moreover, the foregoing interpretation of Article 12 (art. 12) is consistent with its object and purpose as revealed by the travaux préparatoires. The text of Article 12 (art. 12) was based on that of Article 16 of the Universal Declaration of Human Rights, paragraph 1 of which reads:

“Men and women of full age, without any limitation due to race, nationality or reli-gion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”⁵⁰¹

This is an example of those provisions where intentional derogation has been made from the international instrument serving as the model for the Convention (“dissolu-tion” has been excluded), but the first phrase in the foregoing fragment of discourse indicates that the travaux préparatoires were merely used to support the interpretation already made by the Court. On occasion, the Court may also explicitly note that there is no need to consult the preparatory work to establish the meaning of the provision. In the Lawless case, the Court found, approving the Commission’s line of reasoning, that there was no need to resort to the preparatory work when the wording of the provi-sion was sufficiently clear.⁵⁰² The Court, however, only seldom refers to the “travaux préparatoires” of the Convention to support the general rules of interpretation under the Vienna Convention on the Law of Treaties⁵⁰³. The approach of the European Court

500 James and Others v. the United Kingdom, judgment of 21 February 1986, Series A 98, § 64.

501 Johnston and Others v. Ireland, plenary judgment of 18 December 1986, Series A 112, § 52.

502 Lawless v. Ireland, judgment of 1 July 1961, Series A 3, § 11. The Commission considered that it was not permissible to do so, finding that this was a well-established rule concerning the in-terpretation of international treaties. In support of its reasoning, the Commission had, however, resorted to the preparatory work and to a comparison of the two authentic language versions of the Convention, noting that no support for the Government’s submissions was received from the preparatory work. See also White & Ovey 2010, p. 66 and 67.

503 See Matscher 1998, p. 19.

of Justice to preparatory work in respect of the founding Treaties seems to be rather similar in that they are only seldom referred to.⁵⁰⁴

As Danelius observes, there is a good reason for the European Court of Human Rights not to refer to the preparatory work. It is characteristic of the European Court of Human Rights to apply a dynamic approach to the interpretation of the Convention, taking into account the development of society and changes in legal thinking in the States parties⁵⁰⁵, and in view of the nature of the Convention as a living instrument⁵⁰⁶. There is some truth in that statement. It is unclear, in the light of the preparatory work of the Convention whether the parties have intended to go as far as the Court has gone.

However, in the light of the preamble to the Convention and its preparatory work there has been a clear intention to go further at the European level, when compared with the international instruments, and the responsibility for interpretation has intentionally been transferred to the European Court of Human Rights. A considerable part of the provisions refer to national laws, and nor are those static.

There are also other supplementary means of interpretation available, although it may be difficult to say whether they should rather be included in the concept of con-text. For example, in assessing whether the situation in a certain State is in compliance with the provisions of the Convention, the Court may compare it with the situation in other States parties to the Convention. For example, in the case of Vogt v. Germany, the Court assessed the requirement of political loyalty imposed on civil servants, by comparing its existence with other States as well as other parts of Germany as follows:

[…] Another relevant consideration is that at the material time a similarly strict duty of loyalty does not seem to have been imposed in any other member State of the Council of Europe, whilst even within Germany the duty was not construed and implemented in the same manner throughout the country; a considerable number of Länder did not consider activities such as are in issue here incompatible with that duty. ⁵⁰⁷

In that fragment of discourse, the Court uses external elements of argumentation in negative linguistic terms, stating that something does not exist in the light of ex-ternal sources of argumentation. Such negative linguistic statement has also been used for example in the case of Maaouia v. France, when determining whether exclusion orders should be classified as criminal law sanctions within the meaning of Article

504 Arnull 1998, p. 120 and 121.

505 Danelius 2012, p. 50.

506 See e.g. the judgments in the cases of Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A 26, § 31, and Matthews v. United Kingdom, Grand Chamber judgment of 18 February 1999, Reports of Judgments and Decisions 1999-I, § 39.

507 Vogt v. Germany, Grand Chamber judgment of 26 September 1995, Series A 323, § 59.

5, paragraph 1, of the Convention, in which the Court sought further support for its interpretation by reasoning as follows:

On that subject, the Court notes that, in general, exclusion orders are not classified as criminal within the member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6

§ 1. The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either […] ⁵⁰⁸

Thus, in that case, the Court carried out comparison between the criminal law systems and legislations of the member States. An analysis of the discourse reveals that although it is apparent from the text that the Court has resorted to comparison, it is difficult to analyse how exactly the comparison has taken place on the basis of the foregoing two fragments of discourse. According to Pellonpää & al., comparison be-tween different legal systems by the Court is not always systematic⁵⁰⁹, which statement finds support in case law. Comparison may also take place between the two language versions of the Convention, in accordance with the special rules in Article 33 of the Vienna Convention on the Law of Treaties. For example, in the case of Wemhoff v.

Germany, the Court reasoned as follows:

The Court cannot accept this restrictive interpretation. It is true that the English text of the Convention allows such an interpretation. The word “trial”, which appears there on two occasions, refers to the whole of the proceedings before the court, not just their beginning; the words “entitled to trial” are not necessarily to be equated with “entitled to be brought to trial”, although in the context “pending trial” seems to require release before the trial considered as a whole, that is, before its opening.

But while the English text permits two interpretations the French version, which is of equal authority, allows only one. According to it the obligation to release an accused person within a reasonable time continues until that person has been “jugée”, that is, until the day of the judgment that terminates the trial. Moreover, he must be released

508 See Maaouia v. France, Grand Chamber judgment of 5 October 2000, Reports of Judgments and Decisions 2000-X , § 39. Vogt v. Germany, Grand Chamber judgment of 26 September 1995, Series A 323, § 59,

509 Pellonpää & al. 2012, p. 293.

“pendant la procédure”, a very broad expression which indubitably covers both the trial and the investigation.

Thus confronted with two versions of a treaty which are equally authentic but not exactly the same, the Court must, following established international law precedents, interpret them in a way that will reconcile them as far as possible. […].⁵¹⁰

Thus, the Court used the method of reconciliation between the language versions as referred to in the Vienna Convention. Comparison between language versions is not usual, and has mainly taken place in some early case law. Whereas the comparison between the two language versions of the Convention represents an internal element of argumentation, relating to the narrower concept of context, the comparison of developments in the States parties represents a wider context, an external perspective of argumentation in the same way as other international instruments or provisions of international law. Senden, on the one hand, has presented some criticism concerning the use of comparison by the Court, finding that there is obscurity in how the Court has reached a conclusion on the existence of consensus or common tradition in some cases, whereas in others it has not found enough support for its existence.⁵¹¹ The analysis made of the foregoing fragments of discourse appears to support at least to some extent that criticism. Senden has, on the other hand, considered that although it might be desirable to see more transparent and revealing interpretative conclusions in the case law of the European Court of Human Rights, it often means a more substantive approach, which could in turn result in resistance from states that do not agree with such a substantive approach.⁵¹² Kiikeri considers the comparative method used by the European Court of Human Rights more pluralistic than the one applied by the European Court of Justice, demonstrating a variety of comparative interpretations to the same subject. Nevertheless, he also points out that the European Court of Human Rights tends to rather use the comparative method in support of conservative views. Thus, the comparative method has, in the view of Kiikeri, only seldom been used by the Court to justify a change in legal interpretation. The comparative method is closely related to those situations where the Court has afforded the respondent State a wide margin of appreciation, i.e. has decided that the national authorities are in a better position to assess the situation.⁵¹³ That statement also finds support from an overview of the Court’s case law as a whole.

However, there are also examples of such judgments in which comparison indicates

510 Wemhoff v. Germany, judgment of 27 June 1968, Series A 7, §§ 7 and 8.

511 Senden 2011, p. 395.

512 Senden 2011, p. 403. Thus, her main conclusion has been that it is difficult to suggest any concrete improvements to be made, given the complicated multilevel context in which the Court operates (Ibid.).

513 Kiikeri 2001, p. 185-187.

changes in the legal culture, for example in the aforementioned cases under Article 8.

The case of Christine Goodwin v. the United Kingdom illustrates that kind of a situation:

[…] There have been major social changes in the institution of marriage since the adop-tion of the Convenadop-tion as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court has found above, under Article 8 of the Convention, that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative trans-sexual. There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender. The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women […] ⁵¹⁴

In the light of that judgment, the Court has resorted to both comparing social changes, developments of medicine and science and changes of legislation, as well as developments in other international instruments, to support its finding that the right to marriage between men and women should today be considered to also belong to such couples in which one of the spouses has a reassigned gender, thus extending the scope of the provision. That kind of expanding discourse further has links with certain other principles of interpretation, such as the principle of effective protection. The comparative method has the potential of demonstrating transition of the legal culture of protecting fundamental rights and human rights, although the Court has perhaps resorted to it less than it could. Thus, on the basis of an analysis of the comparative elements alone, it would be difficult to draw definitive conclusions.