1. The principles of interpretation developed by the ECtHR + principle of subsidiarity Flashcards
What is the courts role when talking about the principles of interpretation?
The role of the Court is to interpret and apply the Convention i case-law.
Where does interpretation has its outcome?
The interpretation of the Convention has been dominated by a purposive approach, drawn from the principles of the Vienna Convention which permit the application of meanings which are consonant with the object and purpose of the treaty.
What are the general principles from international law in the Vienna Convention
Golder v. U.K
In Golder v. U.K, the Court had stated that Articles 31, 32, and 33 of the Vienna Convention should guide the Court in its interpretation of the Convention since those Articles were generally regarded as being declaratory of principles of customary international law.
What is Golder V U.K about? (interpretaion - most important
Golder v. U.K
is undoubtedly one of the most important cases in the history of the ECHR. It is not just that it contains the first and as yet most extensive discussion of the VCLT and the relevant rules of interpretation.
It is also the first major case in its early years where the old Court had to take a stance on what should be the general theory of interpreting the Convention and the relevance of textualism and intentionalism.
What says Art. 31 of the Vienna convention?
Art. 31 – 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 (text, preamble, and annexes) and in light of its object and purpose.
What says art. 32 of the Vienna convention
The article permits recourse to supplementary means (supl. fortolkningsmidler) of interpretation including the travaux preparatories (preparatory work) to confirm the meaning resulting from art. 31, and thus determine the meaning if a manifestly absurd result or ambiguity/vagueness derive.
What says art. 33 of the Vienna convention?
The article declares that when a treaty has been authenticated in two or more languages - as is the case with the Convention - 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.
The Convention is equally authentic in the English and in the French texts. Where these texts differ, the meaning which best reconcile the texts, having regard to the object and purpose of the treaty, must be adopted.
What does it mean when the court uses the ordinary meaning of the words in order to interpret provisions of the convention?
The Court has frequently used the ordinary meaning of the words in order to interpret provisions of the Convention.
This may involve reference to dictionaries to determine the ordinary and natural meaning of the words.
However, frequently the Convention uses terms which do not have identical scope in the national legal systems. Here a difficulty arises as to the precise scope of the Convention term.
Where common approaches or standards emerge from a comparative study, that meaning will be applied. Where common standards do not emerge, then a greater flexibility of standards is accepted which has come to known as ‘’the margin of appreciation’’.
An example with ordinary meaning is shown in the Pretty case, where the Court stated that right to life in art. 2 could not be read as including a right to die.
What is the distinction between ordinary meaning and contextual meaning of art. 31?
A good example of the distinction between ordinary meaning and contextual meaning is apparent in the case Witold Litwa v. Poland, where the Court noted that, in its common usage, the word ‘alcoholics’ denotes persons who are addicted to
alcohol but, within Art. 5(1), this term is found in a context that includes a reference to several other categories of individuals, namely persons spreading infectious diseases, persons of unsound mind, drug addicts, and vagrants, etc. T
The Court interpreted the article within its contextual meaning and not ordinary meaning, and thus concluded that the object and purpose of the provision could not be interpreted as only allowing the detention of alcoholics.
(How much should put into one word?)
How is the relation between interpretation of the convention and national law
The convention is interpreted independent.
This means that national law and interpretation does not have an essential impact on the interpretation of the ECHR, for example in Engel and others v. the Netherlands, where “criminal charge” was interpreted according to the ECHR and not the national law understanding.
How is context defined in art. 31 (2) of the Vienna convention?
Context is defined in Article 31 (2) of the Vienna Convention as the whole of the text together with its preamble and annexes, and any agreements related to the treaty made by all the parties in connection with the conclusion of the treaty.
Where does the use of context (alt til §) in Vienna convention art. 31 most arisen?
The use of context has most often arisen where applicants are faced with violations which are covered in some detail by provisions in a Protocol which has not been ratified by a respondent State.
In such cases the respondent State often seeks to argue that the whole matter is governed by the Protocol, while applicant will argue that aspects of their claim nevertheless fall within the Articles of the Convention which are in force against the respondent State.
In Stec and Others v. UK, the applicants claimed that a benefits scheme for injuries violated the Convention on the grounds of sex
discrimination since the policy differed for men and women in the United Kingdom. The Court considered it to be in the interests of the Convention as a whole that the autonomous concept of possessions in Article 1 of Protocol 1 should be interpreted in a manner which was consistent with the concept of pecuniary rights under Article 6(1). For this reason, it included both contributory and non-contributory social security benefits as within the definition of possessions. Nevertheless, in conclusion, the Court concluded that no violation had happened.
What does Vienna Covention Art. 31 say about = Object and purpose of cases
The Court stated in the Wemhoff case that is was necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties.
The interpretation of the Convention must therefore be ‘dynamic’ in the sense that it must be interpreted in the light of developments in social and political attitudes.
Its effects cannot be limited to the conceptions of the period when it was drafted or entered into force.
Perhaps the best example of the dynamic interpretation of the Convention can be found in the line of cases under art. 8 dealing with the rights of transsexuals to recognition of their gender identity.
Subsequent (efterfølgende) practice of contracting parties - Art. 31(3)(b) of vienna convention
In Al-Saadoon an Mufdhi v. United Kingdom, the Court recognised that the second sentence of art. 2 had been amended by State practice. The Court declared that ‘all but two member states have now signed Protocol no. 13’. This was a strongly indicative that art. 2 has been amended so as to prohibit the death penalty in all circumstances.
Vienna convention Art. 31(3)(c) – Use of relevant rules of international law
In Demir and Baykara v. Turkey, the Court stated that in defining the terms and notions in the Convention, it can and must take into account elements of international law other than the Convention, hereby elements by competent organs, and the practice of European States reflecting their common values. The Court further stated that it wasn’t necessary for the respondent state to have ratified all of it.
Even non-binding international sources may be taken into account by the Court when interpreting the Convention. Thus, in Vartic v. Romania, the Court drew attention to the non-binding recommendation of the Committee of Ministers on the European Prison rules.
Although, there is an extent. In Rail, Maritime and Transport Workers v. United Kingdom, the Court stated that relevant international law is merely a relevant consideration and not decisive.
