Treaty Interpretation at the European Court of Human Rights

Popa, Liliana E.

doi:10.1007/978-3-319-65488-1_5

Liliana E. Popa²

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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.

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Notes

1.
The ECtHR is a permanent, full-time court with compulsory jurisdiction over all member states to which aggrieved individuals enjoy direct access, and its judgments are binding in all the Council of Europe member states (including Russia, Turkey), and all European Union member States (see Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, ETS No. 155).
2.
Mowbray (2005).
3.
Voeten (2010). Based on statistics, the author found that the ECtHR has issued more than 10,000 judgments over the period of 50 years.
4.
See on this point Pauwelyn and Elsig (2011).
5.
Heard (1997).
6.
Id.
7.
Id.
8.
Lauterpacht (1950), p. 61.
9.
Universal Declaration of Human Rights (1948).
10.
Id.
11.
Henkin et al. (1999), p. 3 (see Preamble of the Universal Declaration of Human Rights).
12.
The International Covenant on Civil and Political Rights (ICCPR) is as a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, in force from 23 March 1976, and also The International Covenant on Economic, Social and Cultural Rights (CESCR), which opened for signature on December 19, 1966 in New York, and came into force on January 3, 1976.
13.
The European Convention on Human Rights - Convention for Protection of Human Rights and Fundamental Freedoms (1950).
14.
See European Court of Human Rights (online at PICT).
15.
Henkin et al. (1999), p. 3.
16.
Bermann et al. (2002), p. 208. According to the authors, most members of the Council of Europe, including all EU member states have incorporated the Convention into their domestic legal systems. Parties to the Convention agree to accept and be bound by the judgments of the Court.
17.
See e.g. Case of Mamatkulov and Askarov v. Turkey, (Applications no. 46827/99 and 46951/99), Judgment of 4 February 2005, Strasbourg), para 100; Ireland v. the United Kingdom (18 January 1978, Series A no. 25), para 154.
18.
See Shelton (2002), p. 304.
19.
See Preamble of the American Convention of Human Rights (Adopted at the Inter-American Specialized Conference on Human Rights, San Jose, Costa Rica, 22 November 1960).
20.
African Charter on Human Rights and Peoples’ Rights was adopted at Nairobi in 1981, and entered into force in 1987; Arab Charter was adopted by the Council of the League of Arab States on 22 May 2004, entered into force in March 2008; and the ASEAN Charter as a constitution for the Association of Southeast Asian Nations adopted on 13 November 2007.
21.
Fitzmaurice (2013). In this respect, M. Fitzmaurice cites the ICJ Advisory Opinion in Reservations to the Genocide Convention (1951) where the Court refers for the first time to ‘non-reciprocal’ or ‘unilateral international humanitarian obligations’ included in the Genocide Convention.
22.
Id.
23.
Carozza (2008), pp. 931–932.
24.
Id.
25.
Id.
26.
Id.
27.
Id.
28.
Id. M. Fitzmaurice notes that it is generally admitted that ‘human rights instruments require a more expansive attitude toward their interpretation than has been applied when interpreting of other types of international law treaties’.
29.
Id.
30.
Arato (2011), p. 11 (emphasis added).
31.
Letsas (2010a), p. 267.
32.
Id.
33.
Id, p. 268.
34.
Letsas (2012), p. 23.
35.
Id.
36.
Id (emphasis added).
37.
Article 17 of the ECHR provides for Prohibition of abuse of rights:

Nothing in this Convention may be interpreted as implying for any State, group or person any rights to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth therein or at their limitation to a greater extent than is provided for the Convention.

Article 18 provides for Limitation on use of restrictions on rights:

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
38.
Fitzmaurice (2013). The author also refers to Article 29 of the American Convention of Human Rights (providing for ‘Restrictions Regarding Interpretation’), and Article 60 and 61 of the African Charter (providing for ‘Applicable Principles’).
39.
Id.
40.
See Preamble of the American Convention of Human Rights, as also Preamble of the African Charter on Human Rights and Peoples’ Rights.
41.
Letsas (2012), p. 3. See also on this aspect Fitzmaurice (2013).
42.
Letsas (2010b), p. 268 (emphasis added).
43.
Letsas (2012), pp. 23–24.
44.
Id, p. 2.
45.
Id, p. 3.
46.
Id.
47.
Id. In Letsas’ view ‘interpretation’ used by the ECtHR means any general normative proposition which the Court has systematically endorsed in its case law, in relation to either the nature of treaty interpretation or the nature of human rights treaty interpretation.
48.
Harris et al. (2014), p. 8.
49.
In Fitzmaurice (2013), the author explains that such positions are possible due to two reasons: one is because the VCLT rules of interpretation are themselves far from being clear and fluid in their relationship to each other, and the other is because the concept of human rights and the treaty formulations of the rights are frequently general, vague, and subjective.
50.
Id.
51.
Id.
52.
Id.
53.
See Yin (2003), p. 11 (emphasis added) (According to Yin the explanatory case study deals with ‘how’ or ‘why’ questions).
54.
ILC (1964), p. 4.
55.
Case of Lawless v. Ireland (No. 3), (Application no. 332/57), Judgment (Merits), Strasbourg, 1 July 1961. Lawless was the first lawsuit taken by a private citizen against a state, and brought into operation the provisions of the Convention by inaugurating the precedent for individuals to appear for the first time as party before the ECtHR.
56.
See e.g. O’Boyle (1998), p. 715. The author mentions Greece v. United Kingdom, App. No. 176/56, 2 Yearbook European Commission on Human Rights 174 (1959), as the first case when the ECtHR used the doctrine of ‘margin of appreciation’. See also the application of ‘margin of appreciation’ along with customary rules of interpretation (an approach based on the ‘ordinary meaning’ of the terms in their ‘context’, and according to the ‘object and purpose’) in Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ v. Belgium, (Application no 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64), Judgment, Strasbourg, 9 February, 1967.
57.
Article 5 (art. 5) of the Convention reads as follows:

(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision of his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
58.
Article 15 of the ECHR provides for measures of derogation from Convention‘s obligations in time of emergencies by the High Contracting parties.
59.
Lawless (No. 3) (1961).
60.
Id (emphasis added).
61.
Id, para 14.
62.
Constitution of the Maritime Safety Committee of the Inter-governmental Maritime Consultative Organization (IMCO), Advisory Opinion of 8 June 1960, I.C.J. Rep. 1960, 15, p. 160 (see this case analysed in Chap. 4 of this book).
63.
Id. The ICJ added: ‘One context at which the Court looks, is, of course, the other parts of the treaty. That is, it reads the treaty, and particular articles thereof, as a whole’ (emphasis added).
64.
Lawless (No. 3) (1961), para 14.
65.
Id.
66.
Id.
67.
Id, para 11.
68.
IMCO (1960).
69.
Lawless (No. 3) (1961), para 11.
70.
Id, para 12.
71.
See Chap. 4 of this book for the analysis of the Ambatielos Case (Greece v. United Kingdom), ICJ, Preliminary objections, Judgment of July 1st, 1952, p. 24 (emphasis added).
72.
Lawless (No. 3) (1961), para 11.
73.
Id.
74.
Id.
75.
Id, para 14.
76.
Id.
77.
See O’Boyle (1998), p. 715, for comments on this aspect.
78.
Id, paras 28–30. See also on this point the Individual Opinion of Judge Maridakis in the Lawless case.
79.
Id, para 14. The Court’s emphasis on the textualist method can clearly be observed when it repeatedly indicates the plain and ordinary meaning of the terms of Article 5, as, for example, ‘... paragraph 3 (art. 5-3) stipulates categorically that “everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge …” and “shall be entitled to trial within a reasonable time”’; ‘whereas it plainly entails the obligation to bring everyone arrested or detained in any of the circumstances contemplated by the provisions of paragraph 1 (c) (art. 5-1-c) before a judge for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits’; ‘whereas such is the plain and natural meaning of the wording of both paragraph 1 (c) and paragraph 3 of Article 5 (art. 5-1-c, art. 5-3)...’.
80.
See a similar approach of interpretation in Case relating to certain aspects of the laws on the use of languages in education in Belgium v. Belgium, (Merits), Appl. No. 1474/62; 1677/62; 1691/62; 1769/63, 1994/63; 2126/64, Judgment of 23 July, 1968.
81.
E.g. Exchange of Greek and Turkish Population (Lausanne Convention VI, January 30th, 1923, Article 2), Advisory Opinion, PCIJ, Series B, No. 10, 1925; Question Concerning the Acquisition of Polish Nationality, Advisory Opinion of 15 September 1923, Series B, PCIJ, No. 7. ( see Chap. 4 for analysis of these cases).
82.
Tobin (2010), p. 13.
83.
Id, p. 14.
84.
Id.
85.
See e.g. Orakhelashvili (2003), p. 534.
86.
Case of Wemhoff v. Germany, (Application of 2122/64), ECtHR, Judgment of 27 June 1968.
87.
Article 5(3) of the Convention provides:

Everyone arrested or detained in accordance with the provisions of paragraph 1 of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Article 6(1) provides:

in the determining of civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by the law.
88.
Wemhoff (1968), para 5.
89.
Id, para 4.
90.
Id. The Court mentions that Article 6(1) poses questions of interpretation similar to those raised in Article 5(3), in particular, regarding the term ‘time’.
91.
Id.
92.
Id.
93.
Mavrommatis Palestine Concessions Case (Greece v. Britain), Judgment of 30 August, PCIJ, Ser A, No. 2, 1924, p. 19. (the terms in Article 11 (which in the original versions contrasted) of the Mandate of Palestine: a) public ownership or control of the natural resources of the country or of the public works, services and utilities).
94.
Wemhoff (1968), para 8.
95.
Id (emphasis added).
96.
See Case of Golder v. United Kingdom (Application no. 4451/70, ECtHR, Judgment of 21 February, 1975), discussed below.
97.
Gardiner (2008), p. 17. The author mentions in this regard the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) Judgment, [1991] ICJ Reports 53.
98.
Tzevelekos (2009), p. 627.
99.
Id. Generally, this Article refers to sources external to the treaty which may include other treaties, customary rules or general principles of law relevant in its interpretation.
100.
See Chap. 3 of this book on this aspect.
101.
McInerney-Lankford (2012), p. 617. See, e.g., a recent case on this matter: Raban v. Romania (Application no. 25437/08), Judgment Strasbourg, 26 October 2010. The ECtHR made an explicit resort in this case (para 28) to Article 31(3) (c) of the VCLT: ‘The Convention cannot be interpreted in a vacuum, but, in accordance with Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties (1969), account is to be taken of any relevant rules of international law applicable to the Contracting Parties (Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II).’
102.
Id.
103.
Sheeran (2014), p. 92.
104.
Id, p. 82.
105.
The most relevant example is Legal Consequences for States of the Continued Presence of South Africa in Namibia, (Advisory Opinion, 1971, I.C.J., 16, 31), where the ICJ held that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of its interpretation’.
106.
Resort of the ECtHR to Article 31(3) (c) VCLT could be seen in recent cases, e.g., in: Case of Oleynikov v. Russia, Appl. No. 36703104, Judgment, Strasbourg, 14 March, 2013, at para 56; Case of Nada v. Switzerland, Appl. No. 10593108, Strasbourg, 12 September, 2012, para 169; Case of Hirsi Jamaa and others v. Italy, App. no. 27765/09, Judgment, Strasbourg, 23 February, 2012, at para 70; Case of Cudak v. Lithuania(GC), Appl. No. 15869/02, Judgment, 23 March, 2010, at para 56; Fabris v. France, Judgment (Merits), Appl. No. 16574108, Strasbourg, 7 February, 2013; Case of Raban v. Romania, (Application no. 25437/08), Judgment Strasbourg, 26 October 2010, at para 28; Manoilescu and Dobrescu v. Romania and Russia, Appl. no. 60861/00, Strasbourg, 3 March, 2005, at para 70, Case of Al-Adsani v. The United Kingdom, Appl. no. 35763/97, Judgment Strasbourg, 21 November 2001, para 55; Case of Selmouni v. France, Appl. no. 25803/940), Judgment, Strasbourg, 28 July 1999, para 95. There are more other cases in which the ECtHR resorts indirectly (not technically to the Vienna rules) to Article 31(3) (c) of the VCLT, such as is the Case of Al-Skeini and others v. United Kingdom (Application no. 55721/07), Judgment, Strasbourg, 7 July 2011.
107.
See on this discussion, e.g., Yearbook of International Law Commission (Summary Records on the sixteen session, A/CN.4/SER.1 A/1964, p. 116), in which Verdross claims the relation of human rights law to international law. Verdross admits that ‘the treaty is created by States, the human rights derived from the treaty itself’. He added that ‘it was unnecessary to say that treaties could act on individuals through the State, because that was the normal process’ and because ‘individuals could posse international rights or obligations and were consequently subject of international law’.
108.
Cases of De Wilde, Ooms and Verssyp (‘Vagrancy’) v. Belgium (Article 50), (Merits), (Application no. 2832/66;2835/66; 2899/66), ECtHR, Judgment of 10 March 1972, paras 1, 10 and 12. The three persons were in detention for the suppression of vagrancy and begging, by decisions on 19 April 1966, 21 December 1965 and respective 4 November 1965.
109.
Id.
110.
Id, para 18. Article 50 of the Convention provides:

If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.
111.
Id, para 16. These rules, as well as the resort to the textualist/contextualist and subjective methods of interpretation are revealed in the following Court’s statement: ‘If the draftsmen of the Convention had meant to make the admissibility of claims for “just satisfaction” subordinate to the prior exercise of domestic remedies they would have taken care to specify this in Article 50 (art. 50) as they did in Article 26 (art. 26), combined with Article 27 (3) (art. 27-3), in respect of petitions addressed to the Commission. In the absence of such an explicit indication of their intention, the Court cannot take the view that Article 50 (art. 50) enunciates in substance the same rule as Article 26 (art. 26).’
112.
Id. The effectiveness principle and the ‘object and purpose’ rule, which implies the application of the teleological method of interpretation are clearly evidenced when the Court holds that ‘if the victim, after exhausting in vain the domestic remedies before complaining at Strasbourg of a violation of his rights, were obliged to do so a second time before being able to obtain from the Court just satisfaction, the total length of the procedure instituted by the Convention would scarcely be in keeping with the idea of the effective protection of Human Rights. Such a requirement would lead to a situation incompatible with the aim and object of the Convention.’
113.
Id.
114.
Id, para 16.
115.
Id, para 93. See for more detail on the ‘margin of appreciation’ doctrine, George Letsas’ ‘The interpretation of the European Convention of Human Rights’ (2007), p. 89. The author notes that certain clauses in the ECHR (Arts. 8–11) and other international human rights documents provide for state authorities’ interference with the exercise of a right in pursuit of legitimate aims (i.e. national security, public safety, economic well-being, prevention of crime etc). Regarded as clauses of ‘accommodation’ or ‘limitation’, Letsas observes that these clauses ‘leave states a “power” or “margin” of appreciation to interfere with those Convention freedoms’, but this interference is ‘impermissible if the conditions set out in the second paragraph of arts 8-11 are met’.
116.
See e.g. Icelandic Human Rights centre, Interpretation of Human Rights Treaties (available on line at: http://www.humanrights.is/).
117.
Id. In particular, the study mentions Soering v. United Kingdom (161 EctHR, ser. A, 7 July 1989, para 87, p. 7). In this case the ECtHR held that ‘the principles for interpretation of human rights treaties upon which have been relied the European and Inter-American Court of Human Rights do not differ substantially from the methods of treaty interpretation, which are available under general international law, especially if it is assumed that the VCLT is not a complete codification of the customary international law on treaties, including its norms on treaty interpretation’.
118.
Fitzmaurice (2013). M. Fitzmaurice mentions the ECtHR’s contribution to the development of concepts such as the ‘proportionality’, ‘margin of appreciation’ concepts, ‘common values’ or ‘commonly accepted standards’, which allows this Court to interpret the ECHR provisions as common European values and in the context of other instruments of international law (under Article 31(3)(c) of the VCLT) binding or non-binding.
119.
Id.
120.
Id.
121.
Letsas (2012), p. 2.
122.
Id, p. 5.
123.
Letsas (2007), p. 84. See more on the ECtHR’s practice on the ‘margin of appreciation’ doctrine, e.g., in Henkin et al. (1999), pp. 561–575, discussing in particular the Handyside v. United Kingdom case, European Court of Human Rights, 1976; Macdonald (1993); or in the Buckley v. United Kingdom case, European Court of Human Rights, 1996.
124.
Letsas (2012), p. 7 (emphasis added).
125.
Id, p. 84.
126.
Id. According to Letsas, the ECtHR has specified that, for a number of rights to have an autonomous meaning (e.g., criminal charge, civil rights and obligations, association, victim, lawful detention, etc), they must be interpreted ‘in the context of the Convention and not on the basis of their meaning in domestic law’.
127.
Id.
128.
Id (emphasis added).
129.
Bakircioglu (2007), p. 711. ‘Judicial discretion’, in the author’s view, is when ‘a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solution’.
130.
Id. Bakircioglu states that this doctrine being designed as to provide flexibility in solving conflicts emerging from diverse social, political, cultural and legal traditions of the Contracting States within the European context.
131.
Letsas (2012), p. 14.
132.
Id.
133.
Case of Golder v. United Kingdom, (Application no. 4451/70), ECtHR, Judgment of 21 February, 1975.
134.
Letsas (2012), p. 4 (Golder is used in dozens of application at the ECtHR).
135.
Id.
136.
See also Fitzmaurice (2013) for the approach of interpretation in Golder.
137.
Article 6 (1) provides:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
138.
Golder (1975), p. 4. The applicant complained of interference with his right to a fair and public determination of his civil rights and obligations under Article 6 of the Convention but faced the difficulty that, without legal help, he had been unable to initiate a proceeding to which his fair trial right could attach. Despite this difficulty his application succeeded.
139.
Id, para 29. The Court specifically recalled that ‘for the interpretation of the European Convention account is to be taken of those Articles subject, where appropriate, to “any relevant rules of the organization” – the Council of Europe – within which it has adopted (Article 5 of the Vienna Convention)’.
140.
Id, para 4. For example, the Court invokes Lawless (No. 3) (1961), see supra note 55; Delcourt (Delcourt v. Belgium) judgment of 17 January 1970, Series A no. 11; Wemhoff (1968), see supra note 86.
141.
Id, para 29.
142.
Id.
143.
Id, para 32.
144.
Id, para 17.
145.
Id.
146.
Id.
147.
Id, para 33. The Court invokes Neumeister’s judgment of 27 June 1968, Series A no. 8, p. 43, para 23; Matznetter judgment of 10 November 1969, Series A no. 10, p. 35, para 13; De Wilde, Ooms and Versyp, supra note 108.
148.
Id, para 34.
149.
Id.
150.
Id.
151.
Id.
152.
Id, para 35. See, for a similar (evolutive interpretation) approach based on Article 31(3)(c) of the VCLT, the Case of Selmouni v. France 9 (Application no. 25803/940), Judgment, Strasbourg, 28 July 1999. Since the ECtHR found in Selmouni the right under Article 3 not to be subjected to torture or degrading treatment or punishment being formulated in general terms, as also Article 6 of the Convention providing in part for the right for everyone to a hearing within a reasonable time by a tribunal, the Court had to look at external sources, and take also into consideration the evolution of international law. In doing so, the Court looked for a more concrete meaning of the term ‘torture’ to reiterate its absolute prohibition (Article 3); for there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies (Article 6). See also similarity with Case of Al-Adsani v. The United Kingdom (Application no. 35763/97), Judgment Strasbourg, 21 November 2001. The ECtHR reiterated in this case (at p. 17, para 55) that:

the Convention has to be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties of 23 May 1969, and that Article 31 § 3 (c) of that treaty indicates that account is to be taken of any relevant rules of international law applicable in the relations between the parties’.

However, by failing to consider ‘torture’ Al-Adsani as an act of sovereignty of State, accepting it as jus cogens, peremptory norm, and that a state must exercise their rights in accordance with their specific obligations under international law, the ECtHR acted in the detriment of an evolutionist interpretation, in the light of the object and purpose of the Convention, and the Convention as a “living instrument”.
153.
Id. The ECtHR adds that it makes no sense ‘that Article 6 para 1 … should describe in detail the procedural guarantees afforded to parties in a pending lawsuit’ and that read in its context provides for the inclusion under its umbrella ‘rights’ not specifically enumerated, such as the right to access counsel in order to formulate a civil complaint, a principle of international law invoked in the case of Golder.
154.
Fisheries Case (United Kingdom v. Norway), Judgment of 18 December, ICJ, 1951, para 132 (emphasis added).
155.
Legal consequences for states of the continued presence of South Africa in Namibia (South West Africa), Advisory Opinion, ICJ, 1971, p. 32, para 53. The ICJ added that the interpretation of an instrument governing the institution of mandate (instituted in 1919) ‘cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law’.
156.
Golder (1975), para 30.
157.
Id (emphasis added).
158.
Id.
159.
Id, para 29 (emphasis added).
160.
Id, para 36.
161.
Id, para 35.
162.
Haya de la Torre, Judgment of 13 June, I.C.J. Reports 1951, p. 14. See Chap. 4 of this book for this case analysis.
163.
See Tyrer v. the United Kingdom (Application nr. 5856/72), Judgment, Strasbourg, 25 April, 1978, for a comparison with the Golder case regarding the application of the customary rules of interpretation performed by the ECtHR. One could notice that in Tyrer, which is decided after Golder, the ECtHR approached an interpretation, however, in a different manner, by not (expressly) explaining and justifying the application of the VCLT’s general rules of interpretation, although the Court resorted to these rules. The reason for such a tactic in Tyrer could be due both to the confidence of the Court in a direct applicability of the VCLT rules of interpretation without explanation, as they already were established in Golder, and to its intention to emphasise more in this case the evolutionist interpretation it promoted regarding the Human Rights Convention, expressly stating (at p. 15, para 38) that ‘[t]he Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions…’.
164.
See for a similar reliance on the travaux preparatoire that supports a textualist approach, examples of the ICJ’s practice, e.g., Aegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J., p. 3; Border and Transborder Armed Actions (Nicar. v. Hond.), 1988 I.C.J., 69 (Jurisdiction of the Court and Admissibility of the Application), reprinted in 28 I.L.M. 338 (l989).
165.
See for this point, e.g., Fitzmaurice (2013).
166.
Case of Witold Litwa v. Poland (Application no. 26629/95), Strasbourg, Judgment of 4 April, 2000.
167.
Id, para 58.
168.
Letsas (2007), pp. 85–86 (emphasis added).
169.
Id. In order to find out the limits of the Convention rights, as Letsas notes, the Court has used the proportionality principle (by far the most important and most demanding criterion) in order to ascertain whether the limitation of a right was permissible under the Convention.
170.
Article 5 (1) of the Convention provides:
1. 1.
  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
1. (a)
  the lawful detention of a person after conviction by a competent court;
2. (b)
  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
3. (c)
  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
4. (d)
  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
5. (e)
  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
6. (f)
  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
171.
Witold (2000), supra note 166, para 57 (emphasis added). The Court invokes Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 24, § 51 et seq., and Lithgow and Others v. the United Kingdom, Judgment of 8 July 1986, Series A no. 102, pp. 47–48, § 114 in fine, and p. 49, § 117.
172.
Id, para 59.
173.
Competence of the General Assembly for the Admission of a State to the United Nations, (Second Admissions Case) (1950), I.C.J. Reports, p. 8; Case concerning the territorial dispute (Libyan Arab Jamahirya v. Chad), Judgment of 3 February 1994, p. 20.
174.
Witold (2000), para 59.
175.
Id, para 51.
176.
Id. The Court admits that the term ‘alcoholics’ within Article 5 § 1 of the Convention ‘is found in a context that includes a reference to several other categories of individuals, that is, persons spreading infectious diseases, persons of unsound mind, drug addicts and vagrants’.
177.
Id, para 61.
178.
Id, para 63.
179.
Id.
180.
Id, para 53.
181.
Id, para 64.
182.
Id, para 62. The Court states that ‘in the text of Article 5 there is nothing to suggest that this provision prevents that measure from being applied by the State to an individual abusing alcohol, in order to limit the harm caused by alcohol to himself and the public, or to prevent dangerous behaviour after drinking’.
183.
Id, para 77.
184.
Id, see for a discussion in this light the Concurring opinion of Judge Bonello in this case.
185.
Id, para 51.
186.
Id, para 59. The Court relies on the Vagrancy (1972), see supra note 108, and the Winterwerp v. the Netherlands, Judgment of 24 October 1979, Series A no. 33, pp. 16–17, § 37.
187.
Id, para 78.
188.
Scheinin (2009), p. 27.
189.
McDougal (1967), p. 998. The author considers also that these rules are ‘so impossible of effective application that a sophisticated decision-maker can easily escape their putative limits’.
190.
Letsas (2012), p. 14. Letsas explains this aspect by using the term ‘truism’ as ‘something should be interpreted as it should be interpreted, or an interpreter’s got to do what an interpreter’s got to do’.
191.
Tobin (2010), p. 19.
192.
Id.
193.
Case of Catan and Others v. Moldova and Russia (Applications nos. 43370/04, 8252/05 and 18454/06), Judgment Strasbourg, 19 October 2012. See also, e.g., the recent Case of M. and others v. Italy and Bulgaria, (Appl. no. 40020/03, Judgment, Strasbourg, 31 July, 2012, para 146)—where the ECtHR similarly adopted an express holistic approach (text, context, object and purpose, context of the whole treaty, pursuant to Article 31(1) and (2) of the VCLT).
194.
Ilascu and others v Moldova and Russia (GC), App. No. 48787/99, Judgment, 8 July 2004; Cyprus v. Turkey, App. 25781/94, 10 May 2001, ECtHR, p. 25.
195.
Catan and Others (2012), paras 74–75.
196.
Id. The ECtHR relies on the ICJ cases such as Legal consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council resolution 276 (1970); the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (2007), in which the ICJ invoked the Military and Paramilitary Activities in and against Nicaragua (1986) case.
197.
Catan and Others (2012).
198.
(Which was not of use and also unrecognised outside Transdniestria). According to Article 12 of the MRT ‘Constitution’, the official languages within the MRT are ‘Moldavian’, Russian and Ukrainian. Article 6 of the ‘MRT Law on languages’, which was adopted on 8 September 1992, states that, for all purposes, ‘Moldavian’ must be written with the Cyrillic alphabet. The ‘law’ provides further that use of the Latin alphabet may amount to an offence.
199.
Article 1 of the ECHR provides:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.
200.
Catan and Others (2012), paras 102–107—for the Court’s arguments related to the exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. The Court relies on its relevant past decisions such as Case of Loizidou v. Turkey (Preliminary Objections), Application no. 15318/89, Judgment of 23 March, 1995; Case of Al-Skeini and others v. United Kingdom (Application no. 55721/07), Judgment, Strasbourg, 7 July 2011; Bankovic v. Belgium and Others, Application no. 52207/99, The European Court of Human Rights, sitting as a Grand Chamber (Admissibility), 24 October and 12 December 2001; Ilascu and others v. Moldova and Russia (GC), App. No. 48787/99, Judgment, 8 July 2004; Cyprus v. Turkey, App. 25781/94, 10 May 2001, ECtHR; Ivatoc and Others v. Moldova and Russia, no. 23687, 15 November, 2011.
201.
Id, para 106. The exception which the Court underlines occurs when, as a consequence of lawful or unlawful military action, and when a Contracting State exercises effective control of an area outside that national territory, whether this control ‘is to be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration’.
202.
See for comparison with cases such as Bankovic, Ilascu, Loizidou.
203.
See Al-Skeini and Others (2011), supra note 200. The ECtHR strongly relied in Al-Skeini on the approach it adopted in Ilaşcu and Others (2004) in respect of Articles 1 and 2 of the Convention. Also the Court relied in Al-Skeini on a rich body of case law such as: Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161; Banković and Others v. Belgium and Others [GC] (dec.), no. 52207/99, § 66, ECHR 2001-XII; Güleç v. Turkey, 27 July 1998, § 81, Reports of Judgments and Decisions 1998-IV; Ergi v. Turkey, 28 July 1998, §§ 79 and 82, Reports 1998-IV; Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 85–90, 309–320, and 326–330, 6 April 2004; Isayeva v. Russia, no. 57950/00, §§ 180 and 210, 24 February 2005; Kanlibaş v.Turkey, no. 32444/96, §§ 39–51, 8 December 2005; as also on the ICJ practice such as The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (9 July 2004) (para 102); Armed Activities on the Territory of the Congo (Democratic Republic of Congo (DRC) v. Uganda), ICJ, 19 December 2005.
204.
Catan and Others (2012), para 109. See also, e.g., the recent Al-Skeini case for a similar argument. The Court intended in Al-Skeini to clarify that the provisions of the Convention did not apply in abstracto, or in ‘vacuum’, but in accord with logic, the spirit and purpose of the Convention, as also with international law. Unlike in Bankovic, the ECtHR performed in Al-Skeini a normative and moral judgment when holding (at p. 27) that ‘[i]t was inconceivable that the drafters of the Convention should have considered that the prospective responsibilities of States should be confined to violations perpetrated on their own territory’ and (at p. 56) that ‘one principle which emerged from the case law of the ICJ inter alia’, in accordance to which ‘once situation was qualified as an occupation within the meaning of international humanitarian law, there was a strong presumption of “jurisdiction” for the purpose of the application of human rights...’.
205.
Id, para 103. The ECtHR invokes in this regard Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161; Banković and Others v. Belgium and Others [GC] (dec.), no. 52207/99, § 66, ECHR 2001-XII).
206.
Article 2 of Protocol No. 1 to the ECHR provides:

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
207.
Catan and Others (2012), para 136. The Court relies on its own precedents such as Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, § 52; Folgerø and Others v. Norway [GC], no. 15472/02, § 84, ECHR 2007-III; Lautsi and Others v. Italy [GC], no. 30814/06, § 60, ECHR 2011 (extracts); Cyprus v. Turkey [GC], no. 25781/94, § 278, ECHR 2001-IV.
208.
Id (emphasis added). The Court invokes: Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X; Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 54, 15 March 2012.
209.
Competence of the International Labour Organization in regard to International Regulation of the Conditions of Labour of Persons Employed in Agriculture, Advisory Opinion, CIJ, Ser. B, No. 2&3, 1922, para 24. A similar contextualist approach could also be illustrated in the ICJ’s practice, e.g., in: Competence of General Assembly for the Admission of a State to the United Nation (1950), supra note 173. The ICJ held in this case: ‘It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such an interpretation would had to something unreasonable or absurd.’ Also, a holistic approach is clear illustrated in the Ambatielos Case (Greece v. the United Kingdom), Merits: Obligation to Arbitrate, ICJ, Rep. 10, Judgment of May 19, 1953—where in the purpose to determine the obligation of the United Kingdom to accept arbitration, the ICJ considered the words ‘claims … based on the provisions of the … Treaty of 1886 “within the Declaration of 1926, insufficiently clear as to not be read in the context of the whole Treaty of 1886...”’ (emphasis added).
210.
Catan and Others (2012), para 136 (emphasis added). In supporting this approach, the Court relies on its relevant past decisions in Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, ECHR 2008; Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008; Rantsev v. Cyprus and Russia, no. 25965/04, §§ 273–274, ECHR 2010 (extracts).
211.
See a similar approach taken by the ECtHR, e.g., in the recent Al-Skeini case (see supra note 200, para 129). In this case the ECtHR took into account ‘the relevant rules of international law’ pursuant to Article 31(3)(c) VCLT. The Court did so as to find whether international law contains a general rule that could apply to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries, and if such a rule existed, whether it could be determined with reference to the particular facts of the case in question under Article 1 of the Convention. Consequently, by relying on the relevant ICJ practice related to the application of human rights, the ECtHR found, for example, ‘one principle which emerged from the case law of the ICJ inter alia’, in accordance to which ‘once situation was qualified as an occupation within the meaning of international humanitarian law, there was a strong presumption of “jurisdiction” for the purpose of the application of human rights...’.
212.
Catan and Others (2012), para 136.
213.
Id. The Court supports the teleological approach relying on its case law, e.g., Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161; and Artico v. Italy, 13 May 1980, § 33, Series A no. 37.
214.
Id, paras 105–106.
215.
It relies this approach on its own past decision in the Belgian Linguistic Case (No. 2), and making use of the rule of “ordinary meaning of the terms in their context”, the Court finds in the present case that: “[b]y binding themselves, in the first sentence of Article 2 of Protocol No. 1, not to “deny the right to education”, the Contracting States guarantee to anyone within their jurisdiction a right of access to educational institutions existing at a given time.
216.
Catan and Others (2012), para 137.
217.
Id.
218.
Id.
219.
Id, para 136.
220.
Id, para 140.
221.
Id.
222.
Id, para 143 (schools where children were forced to be sent by the measures imposed by the ‘MRT’, ‘where they would face the disadvantage of pursuing their entire secondary education in a combination of language and alphabet which they consider artificial and which is unrecognised anywhere else in the world, using teaching materials produced in Soviet times or, alternatively, subjecting their children to long journeys and/or substandard facilities, harassment and intimidation’).
223.
Id.
224.
See a similar approach, e.g., in Case of Lautsi and others v. Italy, Application nr. 30814/06, Judgment, Strasbourg, 18 March 2011. In this case the Court proved fidelity to the customary rules (provided a holistic interpretation, although not using a technical description by directly referring to the VCLT) while applying its own developed rules in addition.
225.
Tobin (2010), p. 5.
226.
Id, p. 15.
227.
Fitzmaurice and Merkouris (2010), p. 185 (emphasis added).
228.
Bankovic v. Belgium and Others, Application no. 52207/99, The European Court of Human Rights, sitting as a Grand Chamber (Admissibility), 24 October and 12 December 2001.
229.
Article 1 of the Convention reads as follows:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.
230.
In the Libyan Arab Jamhirya/Chad and Kasikili/Sedudu cases (discussed in Chap. 4 of this book) the Court resolved the ambiguities in the text of the treaties at issue by adopting in addition the teleological method, and providing a holistic interpretation.
231.
Case of Loizidou v. Turkey (Preliminary Objection), Application no. 15318/89, Judgment of 23 March, 1995, para 62.
232.
Id.
233.
The ‘subsequent practice’ rule was confirmed by the ICJ, for example, in the following cases: Corfu Channel, (United Kingdom of Great Britain and Northern Ireland v. Albania) (Merits), Judgment of April 9th, 1949, ICJ, Rap. 4, 18, p. 25. Or in its earlier practice, e.g., in Arbitral Award Made by the King of Spain on 23 December 1906, Judgment, I.C.J. Reports 1960, pp. 206–207; Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, pp. 33–35; Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, pp. 157, 160–161, and 172–175. Also, the Court has had occasion to apply this rule several times recently, e.g., in Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, pp. 69–70, para 48; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J Reports 1992, pp. 582–586, paras. 373–380, and p. 586, para 380; Territorial Dispute (Libyan Arab Jamahirya v. Chad), Judgment, I.C.J. Reports 1994, pp. 21–22, para 41; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 18, para 33.
234.
Bankovic (2001). The Court invokes Loizidou (preliminary objections).
235.
Id, para 62.
236.
Id, para 57.
237.
Id, para 59. The Court relies on international law sources such as: Mann (1964, 1984); Bernhardt (1997), pp. 55–59; Meng (1987); Jennings and Watts (1992), para 137; Dupuy (1998), p. 61; Brownlie (1998), pp. 287–301 and 312–314.
238.
Id, para 62.
239.
Id, paras 65–58.
240.
Id, para 61.
241.
Id, para 63 (‘with a view to expanding the Convention’s application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the Contracting States’).
242.
Id, para 65.
243.
Id, para 63.
244.
Id, para 75. Article 1 of each of these Conventions (‘the Geneva Conventions 1949’) requires the Contracting Parties to undertake ‘to respect and to ensure respect for the present Convention in all circumstances’.
245.
Id, para 64.
246.
Id, para 80.
247.
The applicants filled the application, invoking Article 2 (the right to life), Article 10 (freedom of expression) and Article 13 (the right to an effective remedy) of the Convention.
248.
Toufayan (2005), pp. 22–23.
249.
Mowbray (2005), pp. 58–59.
250.
Id.
251.
Fitzmaurice (2013). See, for example, in this respect Al-Adsani v. United Kingdom, Judgment of 21 November 2001, ECHR 2001-XI, p. 79. In Al-Adsani, the ECtHR relied on Article 31(3)(c) VCLT to find whether the rules of state immunity might conflict with the right of access of court under Article 6(1) of the ECHR, and decided by majority to give effect to state immunity.
252.
Kamminga (2008), p. 9. Kamminga gives as example the emphasis put by the Court on the object and purpose of a treaty (under Article 31(1) of the VCLT) in Wemhoff.
253.
Tyrer v. the United Kingdom, supra note 163, para 31. This case is important for the reason that the ECtHR fully admitted and explicitly declared the ‘living instrument’ doctrine. It held: ‘The Court also recall that the Convention is a living instrument which as the Commission rightly stressed, must be interpreted in the light of present day conditions.’
254.
Loizidou (1995).
255.
For Article 1 of the Convention, see supra note 229.
256.
The provisions at issue in this case were Article 25 and Article 46 of the Convention regarding the unconditional acceptance of the Court’s jurisdiction which the parties to this Convention may make.
Article 25 of the Convention provides:
1. 1.
  The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Parties receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.
2. 2.
  Such declarations may be made for a specific period.
Article 46 provides:
1. 1.
  Any of the High Contracting Parties may at any time declare that it recognises as compulsory ipso facto and without special agreement the jurisdiction of the Court in all matters concerning the interpretation and application of the Convention.
2. 2.
  The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain other High Contracting Parties or for a specified period.
3. 3.
  These declarations shall be deposited with the Secretary General of the Council of Europe who shall transmit copies thereof to the High Contracting Parties.
257.
Loizidou (1995), para 61.
258.
Id.
259.
Id, para 77. According to the scholarship the Strasbourg organs have been consistently willing to interpret the Convention as a ‘living instrument’, creating the possibility that obligations can be understood in a manner not necessarily foreseen by the drafters.
260.
Id, para 71.
261.
Id, para 78.
262.
Id, para 82. The Government of Turkey submitted that ‘the drafting history of the Convention reveals that Article 36 of the Statute served as a model for Article 46 …of the Convention’.
263.
Id, para 84. The Court invokes Ireland v. the United Kingdom, Application no. 5310/71, Judgment of 18 January 1978, Series A no. 25, p. 90, para 239.
264.
Id.
265.
Id, paras 73 and 89 (emphasis added).
266.
Id, para 85.
267.
See Al-Skeini, supra note 200.
268.
Milanovic (2011), p. 50. Similar reservations in respect of the fragmentation of the international law vis-a-vis ‘state responsibility’ provoked by ECtHR in Loizidou could be inferred also from other authors’ comments on ECtHR’s contribution to state responsibility doctrine such as De Frouville (2010), p. 269, who argued that ‘contrary to what was suggested by James Crawford, the “Loizidou judgment of the European Court of Human Rights are not on the same level as the Nicaragua judgment”, since Loizidou, unlike ICJ’s Nicaragua, dealt with a definition of a “de facto” organ of state’.
269.
The recent case Fabris v. France (Judgment (Merits), Appl. No. 16574108, Strasbourg, 7 February, 2013), reaffirms the constitutional force of the Court’s judgments and the Court’s jurisdiction to verify whether a State Party has complied with the obligations imposed on it by one of the Court’s judgments, as Loizidou brought full recognition of the Court as ‘Europe’s Constitutional Court’, whose task could not be endangered by States Parties exercising their right of reservation.
270.
See e.g. Wilde (2005), p. 117—discussing the special character of the ECHR and the European Convention of Human Rights as a ‘living instrument’.
271.
Demir and Baykara, supra note 210, para 68. See on this point, e.g., Fitzmaurice (2013), mentioning the Golder and Demir and Baykara cases, as fundamentally in illustrating the ECtHR’s general approach to interpretation. For example, the ECtHR held in the recent Demir and Baykara case (2008) that ‘[i] has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein’, and it ‘can and must take into account elements of international law other than the Convention’.
272.
See Case of Al-Adsani, supra note 251, para 55.
273.
Id. The ECtHR seemed not to give prevalence to that number of legal authorities which affirmed that ‘the prohibition of torture has attained the status of a peremptory norm or jus cogens’.
274.
Case of Mamatkulov and Askarov v. Turkey, Applications no. 46827/99 and 46951/99, Strasbourg, Judgment of 4 February 2005.
275.
The Court invokes the Al-Adsani case.
276.
Judgment of 6 February 2003.
277.
Mamatkulov and Askarov (2005), para 99. Article 34 of the Convention provides:

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.
278.
Rule 39 of the Rules of the ECtHR provides:
1. 1.
  The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.
2. 2.
  Notice of these measures shall be given to the Committee of Ministers.
3. 3.
  The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.
279.
Mamatkulov and Askarov (2005), para 100.
280.
Id, para 101.
281.
Id (emphasis added). The Court invokes Loizidou, see supra note 254; Soering v. the United Kingdom, Judgment of 7 July 1989, Series A no. 161, and, mutatis mutandis, Klass and Others v. Germany, Judgment of 6 September 1978, Series A no. 28, p. 18, § 34.
282.
Id, para 103.
283.
Id, para 111. The Court also finds that the United Nations Committee against Torture has considered the issue of a State Party’s failure to comply with interim measures on a number of occasions.
284.
Id.
285.
Id. See Al-Adsani, supra note 251.
286.
Id, para 55. See Chap. 3 for comments on Al-Adsani from the perspective of ‘systemic integration’.
287.
Id, para 114.
288.
Id, para 123.
289.
Id, para 117. LaGrand (Germany v. the United States of America), ICJ, Judgment of 27 June 2001. In this regard the ECtHR also invokes Avena and other Mexican nationals (Mexico v. the United States of America), ICJ, 31 March 2004, and in Nicaragua v. the United States of America, ICJ, 27 June 1986, p. 136, para 271. In Nicaragua the ICJ held: ‘The question thus arises whether Article XXI similarly affords a defence to a claim under customary international law based on allegation of conduct depriving the Treaty of its object and purpose if such conduct can be shown to be “measures … necessary to protect” essential security interests.’
290.
Id, para 47. The ECtHR invokes the Order of 13 September 1993 in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), ICJ, 1993. Also, the ECtHR notes that, measures designed to avoid aggravating or extending disputes have frequently been indicated in the ICJ’s practice with the purpose of being implemented, such as in: Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 19 73, ICJ Reports 1973, p. 106; Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 142; Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 11, para 32, point 1 A; Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996-II), pp. 22–23, para 41, and p. 24, para 49 (1).
291.
Id, para 124.
292.
Id, para 117.
293.
Id, para 122 (emphasis added).
294.
Id, para 125.
295.
Id, para 121 (emphasis added). The Court based here on Tyrer, see supra note 163, and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI. Although the ECtHR admits in Mamatkulov and Askarov that the ICJ and the other international bodies operate under different treaty provisions to those of the Court itself (ECtHR), it concludes that those bodies ‘have confirmed in their reasoning in recent decisions that the preservation of the asserted rights of the parties in the face of the risk of irreparable damage represents an essential objective of interim measures in international law’.
296.
Letsas (2012), p. 19 (emphasis added).
297.
Id.
298.
Fitzmaurice (2013).
299.
Case of Stoll v. Switzerland, Application no. 69698/01, Strasbourg [GC], Judgment of 10 December 2007.
300.
Id. See Dissenting opinion of Judge Zabrebelsky joined by judges Lorenzen, Fura-Sandstrom, Jaeger and Popovic, relying on a rich body of the Court (ECtHR) case law: Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24; The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 59, Series A no. 30; Lingens v. Austria, 8 July 1986, §§ 39–41, Series A no. 103; Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998-VI; and Steel and Morris v. the United Kingdom, No. 68416/01, § 87, ECHR 2005-II. The dissenting judges concluded (at para 105) that ‘the criterion for assessing whether interference is necessary in a democratic society must be whether it corresponds to a “pressing social need”’, that ‘the authorities have only a limited margin of appreciation’ in this sphere and that ‘[t]he most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken … by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern’.
301.
Id.
302.
Mr. Stoll was sentenced to a fine of 800 Swiss francs (520 euros) for publishing ‘official confidential deliberations’ within the meaning of Article 293 of the Criminal Code.
303.
Article 10 of the Convention provides:
1. 1.
  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. 2.
  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
304.
Stoll (2007), para 57.
305.
Id, para 59.
306.
Id.
307.
Id.
308.
Id. LaGrand (Germany v. the United States of America), Judgment of 27 June 2001, I.C.J. Reports 2001, p. 101.
309.
Id, para 101.
310.
Id, para 60 (emphasis added). The Court invokes its own precedents, e.g., Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 48, Series A no. 30; James a n d Others v. the United Kingdom, 21 February 1986, § 42, Series A no. 98).
311.
Id, para 61 (emphasis added).
312.
Id, para 105.
313.
Id, para 63.
314.
Id. See Dissenting Opinion of this case. The dissenting judges argued that the fact that the journalist focused his remarks on the ambassador, who did not complain as a result, should not be relevant for the Court’s perspective.
315.
Id, para 104. The Court states (at para 105) that: ‘Where freedom of the “press” is at stake, the authorities have only a limited margin of appreciation to decide whether a “pressing social need” exists.’ The Court based on its own precedent such as Tyrer, see supra note 163; Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Vo v. France [GC], no. 53924/00, § 82, ECHR 2004-VIII; Mamatkulov and Askarov, see supra note 274.
316.
LaGrand, supra note 308, para 102. The ICJ found in this case that ‘[t]he object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein …’.
317.
Article 31 paragraph 2, of the VCLT provides:

The context for the purpose of interpretation of a treaty shall comprise in addition to the text, including its preamble and annexes ….
318.
Stoll (2007), para 104.
319.
Id.
320.
Kamminga (2008).
321.
Letsas (2010a, b), p. 268.
322.
See Pegorier (2013).
323.
See Bankovic, Stoll, Witold discussed in this chapter, or also Al-Adsani (mentioned succinctly).
324.
I.e. on the issue of ‘jurisdiction’ under Article 1 of the Convention in, e.g., Loizidou, Bankovic, Catan.
325.
See Rozakis (2005), p. 5.
326.
See the case of Stoll (2007), para 104.
327.
In Bankovic, Stoll, Witold (in certain degree), or Al-Adsani (also in disregarding the fundamental principle of effectiveness which flows from the requirements of Article 31 of the VCLT).
328.
See, e.g., the recent cases at the ECtHR: Catan, Al-Skeini, or the older case of Loizidou (comparing with the Bankovic case) concerning the issue of ‘jurisdiction’ under Article 1 of the ECHR, where the Court applied the exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory. For example, in Al-Skeini (2011) the ECtHR performed a normative and moral judgment of interpreting Article 1 of the Convention in accord with its own evolutive interpretation path. The ECtHR held (at para 128) that ‘[i]t was inconceivable that the drafters of the Convention should have considered that the prospective responsibilities of States should be confined to violations perpetrated on their own territory’. The Court had repeatedly regarded to the Convention’s special character as an instrument for human rights protection, citing in this support its own precedents (e.g., Al-Skeini and Others, Ilaşcu and Others; Güleç; Ahmet Özkan and Others; Isayeva; Kanlibaş).
329.
Sparse in citing other international courts, the ECtHR has proved, however, to be influenced by other international courts, e.g., the IACHR, ICJ, ECJ, ICTY. See illustration of this aspect, e.g., in Case of Mamatkulov and Askarov (2005), Case of Stoll (2007), Case of Catan (2012) discussed in this chapter. For ‘cross-fertilization’ discussion, see, e.g., Sands (1998); Kamminga (2008), observing that ‘the borrowing process is of course facilitated by the fact that an increasing number of ICJ judges and members are themselves former members of international human rights bodies’.
330.
The ECtHR has referred to the ICJ case law mostly for rules on treaty interpretation, but also for other matters of international law such as temporal jurisdiction in Blečić v. Croatia, App. no. 59532/00, Judgment of 8 Mar. 2006, para 47.
331.
See Voeten (2010), pp. 19–24. The author claims that ‘the analysis of ECtHR citations reveals that while the court is reluctant to formally acknowledge the influence of other courts, external case-law does play a role in its deliberations’. An interesting statistical finding of Voeten reveals that from 7319 ECtHR judgments, made before October 2006, 29 cases or 4% of cases cited one or more decisions of foreign constitutional courts or international courts, which shows that the ECtHR is not a ‘self-contained’ regime and does not tend to adjudicate exclusively in its own separate way. Also Voeten found that there were 46 cases (at the ECtHR) in which one or more separate opinions referenced an external decision. This finding is all the more remarkable given that only 17% of all cases were accompanied by a separate opinion.
332.
See in this regard, e.g., cases of Mamatkulov and Askarov, or Catan discussed in this chapter; the opinion of the ILC (2006); McInerney-Lankford (2012).
333.
See illustration of this aspect, e.g., in the Catan case, discussed in this chapter, or the situation when the ECtHR invokes other cases in which it applied the Vienna rules of treaty interpretation, such as Golder—a landmark decision, often cited by the ECtHR in cases without needing further to provide in those cases a similar express or detailed description/explanation of the application of the Vienna rules.
334.
See Letsas (2010a, b, 2012). According to Letsas, the evolutive interpretation of the ECHR is ‘understood as the moral reading of the Convention’.
335.
See Letsas (2007), p. 72 (emphasis added).
336.
See on this aspect e.g. Letsas (2007, 2010a, b, 2012), Fitzmaurice (2013), Heard (1997), Carozza (2008), Shelton (2002).

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Liliana E. Popa

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Popa, L.E. (2018). Treaty Interpretation at the European Court of Human Rights. In: Patterns of Treaty Interpretation as Anti-Fragmentation Tools. Springer, Cham. https://doi.org/10.1007/978-3-319-65488-1_5

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