Strasbourg's interpretive ethic: Lessons for the international lawyer

European Journal of International Law

Volumn 21, Issue 3, 2010, Pages 509-541

  Letsas, George ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 78149363483     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq056     Document Type: Article

References (123)

1. On 18 Sept. 2008, the Court delivered its 10,000th judgment.
2. I once mentioned to a judge of the European Court of Human Rights (ECtHR) that I was writing a book on the interpretation of the ECHR; he looked at me very puzzled and said, 'It must be a very long book!'.
3. See D. Harris, M. O'Boyle, E. Bates, and C. Buckley, Harris, O'Boyle & Warbrick, Law of the European Convention on Human Rights (2nd edn, 2009).
4. A. Mowbray, Cases and Materials on the European Convention on Human Rights (2nd edn, 2007).
5. C. Ovey and R.C.A. White, Jacobs & White, The European Convention on Human Rights (4th edn, 2006).
6. Throughout the article, I shall use 'Court' and 'Convention' to refer to the ECtHR and the ECHR respectively, unless indicated otherwise.
7. See, e.g., C. Evans, Freedom of Religion under the European Convention on Human Rights (2001).
8. S. Stavros, The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights (1993).
9. See, e.g., M. Emberland, The Human Rights of Companies: Exploring the Structure of the ECHR Protection (2006).
10. A. Mowbray, The Development of Positive Obligation under the European Convention on Human Rights by the European Court of Human Rights (2004).
11. The distinction between theories of rights and theories of judicial review and the focus on the legitimacy of judicial review as a separate normative question from that of the moral foundations of rights has attracted wider attention following Waldron's seminal piece, 'A Rights-based Critique of Constitutional Rights', 13 Oxford J Legal Studies (1993) 18 and his subsequent work.
12. I have made some of these arguments at greater length in A Theory of Interpretation of the European Convention on Human Rights (2nd edn, 2009). Parts of sects 2, 4, and 5 of this article draw on chs 2 and 3 of that book.
13. On the general idea of interpretivism in law see Stavropoulos, 'Interpretivist Theories of Law', in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (autumn 2008 edn), available at: plato.stanford.edu/archives/fall2008/entries/law-interpretivist/.
14. The VCLT has been cited in no more than 60 out of the 10,000+ judgments which the ECtHR has delivered.
15. See R. Bork, The Tempting of America (1989), at 143-160.
16. Scalia, 'Originalism: The Lesser Evil', 57 U Cincinnati L Rev (1989) 849.
17. Scalia, 'Common Law Courts in a Civil Law System', in A. Scalia, A Matter of Interpretation (ed. A. Gutman, 1997), at 3.
18. Gray, 'Do We have an Unwritten Constitution?', 27 Stanford L Rev (1975) 703.
19. Lyons, 'Constitutional Interpretation and Original Meaning', 4 Social Philosophy and Policy (1986) 85.
20. Brest, 'The Misconceived Quest for the Original Understanding', 60 Boston UL Rev (1980) 204, at 208.
21. Perry, 'Interpretivism, Freedom of Expression and Equal Protection', 42 Ohio State LJ (1981) 261.
22. I should note here that textualism, at least as advanced by Scalia, is also a form of intentionalism: it directs us to the intentions of the public at the time of enactment. The difference between the two lies in the group of people, whose intentions the interpreter aims to discover: textualism is directed at the community at large, whereas intentionalism is directed at the drafters.
23. I shall use these two words interchangeably. Another synonymous term, used in Continental Europe is 'canon'.
24. Golder v. United Kingdom, Series A No. 18, 1 EHRR (1979-1980) 524.
25. I shall here ignore a third category of ECHR cases, raising issues to do with differences in meaning between authentic languages under Art. 33 VCLT, because this category is not directly relevant for the purposes of this article. On this see Brogan and others v. United Kingdom, 11 EHRR (1989) 117.
26. Sunday Times v. United Kingdom, Series A No. 30, 2 EHRR (1979-1980) 245.
27. Tyrer v. United Kingdom, Series A No. 26, 2 EHRR (1979-1980) 1.
28. Engel and Others v. Netherlands (1976), Series A No. 22, 1 EHRR (1979-1980) 647.
29. On the distinction between enumerated and unenumerated rights see R. Dworkin, Life's Dominion (1993), at 129.
30. See also Witold Litwa v. Poland, 33 EHRR (2001) 1267, at paras 58-59 where the Court noted that '[T]he sequence in which those elements are listed in Article 31 of the Vienna Convention regulates, however, the order which the process of interpretation of the treaty should follow. That process must start from ascertaining the ordinary meaning of the terms of a treaty - in their context and in the light of its object and purpose, as laid down in paragraph 1 of Article 31'.
31. The Court added that there was no need to resort to supplementary means of interpretation.
32. 'It is hardly possible to establish what really were the intentions of the contracting States under this head; but that of course is all the more reason for not subjecting them to obligations which do not result clearly from the Convention, or at least in a manner free from reasonable doubt.'.
33. Compare Lord Hoffmann's similar views in Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others [2006] UKHL 26, [2006] 2 WLR 1424, at para. 63.
34. Separate opinion in National Union of Belgian Police v. Belgium, 1 EHRR (1979-1980) 578, at para 7.
35. 'The 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. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.'.
36. Matthews v. United Kingdom, 30 EHRR (1999) 361, at para. 39 (emphasis added).
37. Young, James and Webster v. United Kingdom, Series A No. 44, 11 EHRR (1989) 439.
38. Report of 30 June 1950 of the Conference of Senior Officials, Collected Edn of the 'Travaux Préparatoires', iv, at 262.
39. The Court was as always careful to find a violation in the particular case, not regarding closed shops in general, and to note that compulsion to join a particular trade union may not always be contrary to the Convention.
40. Dissenting opinion of Judge Sorensen, joined by Judges Thor Vilhjalmsson and Lagergren, at para. 4.
41. Feldbrugge v. Netherlands, Series A No. 99, 8 EHRR (1986) 425.
42. Deumeland v. Germany, Series A No. 100, 8 EHRR (1986) 448.
43. Airey v. Ireland, Series A No. 32, 2 EHRR (1979-1980) 305.
44. On the interpretive techniques of the Appellate Body of the WTO see the article by Isabelle Van Damme in this volume.
45. Two notable exceptions to the Court's interpretive ethic are Johnston v. Ireland, Series A No. 112, 9 EHRR (1987) 203.
46. Bankovic and others v. Belgium and Others, Admissibility Decision of 12 December 2001, 44 EHRR (2007) SE5. Both contained references to the VCLT and to preparatory works. In Johnston the Court reasoned that the ordinary meaning of the term 'right to marry' in Art. 12 ECHR does not include the right to divorce and that preparatory works confirm this interpretation. In the admissibility decision in Bankovic, the Court - sitting as a Grand Chamber - had to decide whether NATO's bombing campaign in Former Yugoslavia fell within the jurisdiction of contracting states under Art. 1 ECHR. In an unfamiliar fashion and instead of sticking to its preferred method of 'evolutive interpretation' the Court rushed into invoking Arts 31-32 VCLT, including the relevance of preparatory works.
47. See Waite and Kennedy v. Germany, 30 EHRR (1999) 261.
48. See Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, 42 EHRR (2006) 1.
49. Al-Adsani v. United Kingdom, 34 EHRR (2002) 11.
50. Foggarty v. United Kingdom, 34 EHRR (2002) 12.
51. Ireland, 34 EHRR (2002) 13.
52. See the analysis in Voyiakis, 'Access to Court v State Immunity', 52 Int'l Comp LQ (2003) 297.
53. See Saadi v. United Kingdom (Grand Chamber), 47 EHRR (2008) 17. In paras 26-40, the Court referred to a number of international human rights treaties, declarations, reports, and guidelines.
54. Demir and Baykara v. Turkey (2008), 48 EHRR (2009) 54.
55. See the extensive analysis by the Court in paras 69-86.
56. Oneryildiz v. Turkey, 41 EHRR (2005) 20.
57. Russian Conservative Party of Entrepreneurs v. Russia, 46 EHRR (2007) 863.
58. Bekos and Koutropoulos v. Greece, 41 ECHR (2005) 840.
59. Sørensen and Rasmussen v. Denmark, 46 EHRR (2006) 572.
60. Christine Goodwin v. United Kingdom, 35 EHRR (2002) 447.
61. Glass v. United Kingdom, 39 EHRR (2004) 15.
62. Taskin and Others v. Turkey, 42 EHRR (2005) 50.
63. Siliadin v. France, 43 EHRR (2006) 16.
64. On the 'integrated approach' to interpretation according to which the interpretation of civil rights documents, and the ECHR in particular, should integrate the existence of social rights treaties and materials, see Mantouvalou, 'Work and Private Life: Sidabras and Dziautas v. Lithuania', 30 Eur L Rev (2005), 573.
65. App. No. 25965/04, Rantsev v. Cyprus and Russia, Judgment of 7 Jan. 2010, available at.
66. Engel and Others v. the Netherlands, Series A No. 22.
67. Art. 6 ECHR reads as follows: '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.'.
68. The Court does not explain whether the classification is made with the specific intention of circumventing the Convention guarantees or whether the circumvention is a mere consequence of such a classification. It does imply though that this distinction is not important. What matters is whether the Convention guarantees have been circumvented as matter of fact, regardless of whether states intended so.
69. A few paras later the Court expressed this concern as follows: 'If the Contracting Parties were able at their discretion to classify an offence as disciplinary instead of criminal. .. the operation of the fundamental clauses of art. 6 and 7 would be subordinated to their sovereign will.' The Court found this fear to be a legitimate one according to the provisions of the Convention, something which, if tolerated, would lead to 'results incompatible with the purpose and object of the Convention'.
70. App. No. 3134/67 etc., Twenty One Detained Persons v. Germany, EComHR, Dec. 6 Apr. 1968, 27 Coll 97, at para. 4 (emphasis added).
71. Demicoli v. Malta, 14 EHRR (1992) 47.
72. O{double-acute}ztürk v. Germany, 6 EHRR (1984) 409.
73. Campbell and Fell v. United Kingdom, Series A No. 80, 7 EHRR (1985) 165.
74. Ravnsborg v. Sweden, Series A No. 283-B, 10 EHRR (1994) 38.
75. App. No. 4618/70, X v. Germany, EComHR, Dec. 21 Mar. 1972.
76. König v. Germany, Series A No. 27.
77. Sporrong and Lö nnroth v. Sweden, 5 EHRR (1983) 35.
78. Gasus Dosier- und Fordertechnik GmbH v. Netherlands, 20 EHRR (1995) 403.
79. Pressos Compania Navera S.A. and others v. Belgium, 21 EHRR (1996) 301.
80. Matos e Silva, Lda., and others v. Portugal, 24 EHRR (1997) 573.
81. Iatridis v. Greece, 30 EHRR (2000) 97.
82. Beyeler v. Italy, 33 EHRR (2001) 52.
83. Former King of Greece v Greece, 33 EHRR (2001) 21.
84. App. No. 20652/92, Djavit An v. Turkey, EComHR, 40 EHRR (2003) 1002.
85. App. Nos 25088/94, 28331/95, & 28443/95, Chassagnou and Others v. France, 29 EHRR (1999) 615.
86. App. No. 32441/96, Karakurt v. Austria, Dec. 14 Sept. 1999.
87. App. No. 29121/95, Asselbourg and 78 others and Greenpeace Association-Luxembourg v. Luxembourg, Dec. 29 June 1999.
88. Pellegrin v. France, 31 EHRR (2001) 26.
89. Frydlender v. France, 31 EHRR (2001) 52.
90. Eriksen v. Norway, 29 EHRR (2000) 328.
91. Khatun and 180 others v. United Kingdom, EComHR, 26 EHRR (1998) CD12.
92. App. No. 22942/93, R. L. v. The Netherlands, EComHR, Dec.18 May 1995, available at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=666324&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.
93. Judge Van Dijk Dissenting in Sheffield and Horsham v. United Kingdom, 27 EHRR (1999) 163.
94. For a full analysis of autonomous concepts see Letsas, 'The Truth in Autonomous Concepts: How to Interpret the ECHR', EJIL (2004) 279.
95. App. No. 6833/74, Marckx v Belgium, 2 EHRR (1979-1980) 330.
96. See, e.g., Guzzardi v. Italy, 3 EHRR (1981) 333.
97. Dudgeon v. United Kingdom, 4 EHRR (1982) 149, at para. 60.
98. See, e.g., Guzzardi v. Italy, 3 EHRR (1981) 333.
99. Dudgeon v. United Kingdom, 4 EHRR (1982) 149, at para. 60.
100. See, e.g., Guzzardi v. Italy, 3 EHRR (1981) 333.
101. Dudgeon v. United Kingdom, 4 EHRR (1982) 149, at para. 60.
102. If anyone wants to defend the claim that the word 'purpose' in the VCLT does not mean 'point' or 'value' as I suggest, but rather refers to, say, the 'intended aims' of states parties, then I would reply that the claim does assume that treaties have a point in the light of which they must be interpreted and that the defender of the claim takes this point to be the serving of the intended aims of states parties.
103. See L. Wittgenstein, Philosophical Investigations, The Revised German Text with a Revised English Translation (trans. G.E.M. Anscombe, 2001), at 68, para. 198.
104. 'Any interpretation still hangs in the air along with what it interprets, and cannot give it any support. Interpretations by themselves do not determine meaning.'.
105. As Nicos Stavropoulos puts it, 'It is generally impossible for any descriptive facts of practice, alone, to determine their own normative significance and therefore to determine a rule.' I am indebted to his 'Why Principles?', available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1023758, at 10.
106. I am here drawing heavily on G.A. Cohen's splendid piece, 'Facts and Principles', 31 Philosophy and Public Affairs (2003) 211.
107. So as to avoid a widespread misunderstanding of this abstract claim, I should stress that it differs from the banal claim - very popular outside analytic legal philosophy - that interpreters are routinely influenced by their biases, prejudices, ideology etc. One should not confuse the normative question of what reasons apply to one's actions with the empirical question of what motivates someone to act in a particular way.
108. I do not intend to propose this normative proposition as a complete theory of the morality of treaty law-making. Apart from obvious parallels with the morality of promising, the morality of treaty law-making must also take into account the reasons for respecting the autonomy of states. See sect. 7 on the purpose of human rights treaties.
109. For an insightful discussion of moral objectivity in the context of international law see Voyiakis, 'International Law and the Objectivity of Value', 22 Leiden J Int'l L (2009) 51.
110. That rule-scepticism and rule-formalism are not the only alternatives from which to choose in giving an account of legal interpretation was noted by H.L.A. Hart as early as 1961.
111. See his The Concept of Law (2nd edn, 1997), at ch. 7.
112. The distinction between abstract and concrete intentions is taken from Dworkin.
113. Dworkin, 'Comment', in Scalia, A Matter of interpretation, at 115.
114. Greer, 'What's Wrong with the ECHR?', 30 Human Rts Q (2008) 680.
115. Also called, 'interpretive' intentions: see Dworkin, A Matter of Principle, 5, at 52.
116. Dworkin argues that in the case of the American constitution we may invoke various facts in support of this claim: that the rights are framed in abstract rather concrete wording and that the drafters could not have thought their views were the final ones in moral matters.
117. I shall ignore here difficulties with identifying group intentions.
118. Dworkin, A Matter of Principle, at 54.
119. That is not to say, of course, that it is not premised at all on moral principles (e.g., principles of promising which govern contract law). It is just not premised on an abstract moral right the content of which is the same as the content of the legal right. Nor do I mean to imply that legal rights are not moral rights, in the sense that it is morally justifiable to respect and enforce them.
120. The idea that human rights are those moral norms the violation of which warrants some kind of intervention by other states has come to be called the 'political' conception of human rights and is attributed to John Rawls and Joseph Raz. See Raz, 'Human Rights without Foundations', in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (2010), at ch. 15.
121. The political conception of human rights is contrasted with the 'orthodox' conception according to which human rights are universal moral entitlements which people have by virtue of being human and which are discoverable through natural reason: see Tasioulas, 'Taking Rights out of Human Rights', forthcoming in Ethics (2010).
122. Consider, e.g., that in the ECHR public morals constitute a legitimate aim for limiting rights such as freedom of expression and the right to private life.
123. In Hatton v. United Kingdom, 34 (2002) EHRR 1, the ECtHR held that the liberty to sleep at night free from noise interference is part of a person's right to private life.