Human Rights and Interpretation: Limits and Demands of Harmonizing Interpretation of International Law

© Springer International Publishing Switzerland 2015
Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_4

4. Human Rights and Interpretation: Limits and Demands of Harmonizing Interpretation of International Law

Julian Udich 

Bucerius Law School, Hamburg, Germany



Julian Udich

This article is based on a presentation held at the Trinational Georgian–German–French Research Workshop “The Influence of Human Rights on International Law”, 5–7 September 2012. Therefore, the general style of an oral presentation has been kept and the number of references limited.

4.1 Introduction

The issue of interpretation in public international law (PIL) has in recent years drawn considerable scholarly attention.1 A particular focus has been to develop interpretative methods to ameliorate the fragmentation of public international law.2 Therefore, as human rights law and other specialized branches are mostly considered to belong to one overarching system of public international law,3 interpretation of human rights might be affected by those other branches.

This contribution therefore explores which different demands such methods intended to counter fragmentation of international law impose on the very own rationales of human rights law treaties. Whoever applies the law faces potentially conflicting rules of interpretation and has to assign priority to interpretative objectives. As an example, the interpretation of the European Convention of Human Rights and Fundamental Freedoms (ECHR) by the European Court of Human Rights (ECtHR) is briefly outlined and contrasted with the approach of the International Law Commission (ILC) of “systemic integration” of PIL, to illustrate potential discrepancies. In particular, the idea of harmonizing interpretation and the object of human rights law to progressively increase the standard of protection for individuals might prove difficult to reconcile in certain circumstances (see Sect. 4.2).

In order to solve such differences, the theoretical background of interpretation in PIL requires attention: the concept proposed here distinguishes the positive rules of interpretation and those rules formed by “interpretive communities”,4 which might develop diverse rules within particular contexts, e.g., a certain human rights treaty. This concept permits to acknowledge different interpretative demands and emphasizes the responsibility of any applier of law to evaluate and decide on which demands to fulfill (see Sect. 4.3). This contribution thus aims to utilize this special case to illustrate a general point regarding different interpretive regimes and their interaction.

As a consequence, the concept described is applied to the interpretation of the ECHR to demonstrate to what extent the discretion of an applier of law permits him to pursue certain aims and in how far the ECtHR in particular might pursue his own interpretive approach in conformity with demands from general PIL (see Sect. 4.4).

4.2 The ILC’s “Systemic Integration” and the ECtHR’s Approach to Interpretation

In PIL, the multitude of treaties, customary rules, and law stemming from other sources has increased awareness towards coordination or harmonization of the law. As a result, the ILC has in its 2006 report on fragmentation5 proposed the concept of “systemic integration ”, which may be described as one among several approaches like “mutual supportiveness” to harmonize different rules of PIL.6 Those approaches share a similar rationale: when two norms are applicable at the same time, the interpretation of one norm shall acknowledge the other, its importance and relevance, and thus both norms are interpreted “against each other”.7 In principle, this mutual recognition might cause interdependencies between both norms.8 The ILC sought this principle enshrined in Art. 31(3)(c) Vienna Convention on the Law of Treaties (VCLT).9

At the same time, the ECHR is regarded by the ECtHR as a “living instrument ”, whose interpretation shall recognize the societal development towards a more comprehensive and higher standard of protection.10 Drawing from a strong teleological understanding, the court accepts the task to evolutive and progressive development of the Convention’s rights.

Without analyzing those two strands to interpretation in greater detail, some examples may be pointed out where discrepancies might arise: firstly, general PIL permits evolutive interpretation only as an exception, not the rule.11 A dynamic interpretation to the meaning of a treaty was though permissible by the International Court of Justice (ICJ) only if the parties indicated it, e.g., by usage of a “generic term”.12 This relationship between rule and exception is probably inversed by the ECtHR.13 Secondly, instances might arise where a harmonizing interpretation of the Convention with other branches of PIL might lower instead to increase the standard of protection offered—and consequently either the urge towards a more coherent legal system has to be rejected or the Conventions’ innermost purpose restricted.

Those examples shall only serve as illustrations that harmonizing interpretation might not always be implemented without friction. Thus, it should be analyzed in how far any applier of law is legally bound to follow a harmonizing interpretation or may rank it lower than other purposes.

4.3 Methods of Interpretation as Group Specific Rules

The interpretation of law has often been called “an art, not an exact science”.14 However, even though any applier of law might have certain discretion when interpreting the law, certain limits and constraints to the interpretive exercise exist. Due to the limited scope of this contribution, the following analysis limits itself to the interpretation of treaties under PIL.

4.3.1 The Nature of Interpretation and the Interpreter’s Role

What is the legal relevance of interpretation? Without attempting an in-depth discussion, the basic positions to this inquiry should be distinguished: the traditional position, coherent both with positivist and non-positivist concepts of law, would be that a treaty of PIL consists of a number of norms, which have an objectively determined scope and meaning.15 Thus, the task of interpretation is one of cognizing the existing meaning of a norm from the material presented, which in a treaty primarily is its text.16 As a consequence, one could in theory distinguish between “right” and “wrong” interpretations and “correct” or “incorrect” application of the rules of interpretation.

However, the premise that any norm has a pre-determined meaning is basically a fiction that does not hold up against the actual challenges of interpretation 17: if one really contended that any norm has an objectively predefined meaning, this would require states, when they adopt a treaty, to positively decide on any potential case this treaty might cover in future in detail. Yet this is not how treaties are actually concluded: regularly, ambiguous or vague terms are used to cover actual disagreement.18 From a more theoretical perspective, it is furthermore submitted that language inherently bears ambiguities and uncertainties.19 Hence, if a treaty is written in deliberately or necessarily uncertain or ambiguous language, why should one pretend that behind this treaty terms an objectively pre-determined norm remains hidden? As Kammerhofer persuasively concludes: “the norm is the text.”20

Based on this premise, the act of interpretation is no longer one of correctly cognizing the meaning of a norm but of constructing the meaning of a text.21 Thus, the function of rules and methods of interpretation changes: they no longer serve as guidance on how to identify the correct meaning of a norm but serve to define the discretion and leeway the applier of law has when he interprets the law.

Furthermore, interpretation necessarily becomes in a certain sense more subjective : if a subject of law, whether it is a court, a State, or an international organization, interprets the law, this interpretation can only purport to express one possible meaning of the law, not to identify the objective meaning. Consequently, any interpretation is primarily a statement by the utterer on how he understands the law without any binding effect on other subjects. An interpretation only in such cases has binding effect on other subjects, if a rule in the legal system conveys such authority to a certain subject—the most prominent examples are courts and tribunals, which issue binding decisions, yet binding only inter partes. 22 There is thus no formal binding effect of judgments beyond the parties of a dispute, even though, for example, Art. 38 (1)(d) Statute of the International Court of Justice regards them as “subsidiary means for the determination of rules of law.”

Nevertheless, even if interpretation has a subjective tendency to it, it is by no means arbitrary or relativistic: any court, any subject of law relies on persuasion of others in order to foster support to the interpretation chosen. A common ground to persuade other subjects of law are the rules and methods of interpretation any applier of law consequently has to adhere to, unless he can, on a political plane, fall back on other factors like individual power. However, generally all subjects of law purport to base their interpretive reasoning on those rules and methods of interpretation PIL provides.

4.3.2 Positive Rules of Interpretation and Interpretive Communities

The rules of interpretation thus exercise an important function to guide and limit the subjective interpretation of any applier of law and provide all subjects of law with common ground to depart from, when interpreting a treaty clause. The more carefully someone follows those rules, the higher are the chances—as a rule of thumb—to convince other subjects of the meaning ascribed to the treaty norm.

This naturally raises the questions how and by whom are the rules of interpretation to be determined? What is their nature, and what consequences result from their violations? A natural starting point should be the positive rules of interpretation enacted in Arts. 31–33 VCLT, which are supposedly accompanied by parallel customary law.23 It has been doubted in legal theory whether positive law should define rules of interpretation or whether those rules are beyond the reach of positive law.24 As matter of fact, Arts. 31–33 VCLT are positive law, in form of a treaty. Yet the doubts mentioned above hint at a problem: those rules can per definition not be all rules of interpretation as, for example, the text of Arts. 31–33 requires interpretation itself, which must be guided by certain rules as well.

Accordingly, it is submitted that those positive rules of interpretation are—within the scope of the Vienna Convention and probably beyond as “custom”—proper law, any subject of law is bound to when interpreting treaty law. Therefore, the extensive debates on interpretive methods should be considered not as deduction of more precise rules from those meager articles. On the contrary, a second level of interpretive rules exists, which is not written law, and one might dispute whether it is proper “positive” law at all.

Those rules of interpretation are defined by the legal subjects participating in the application of the law of a certain legal system, in our case, of PIL. This group of all legal subjects may be termed “interpretive community ”, a term used by Fish to describe a group with more or less coherent understandings of language etc.25 Without going into much detail on this concept, the idea was developed from the fact that language to certain persons is commonly understood in similar fashion, because of shared context, education, and perceptions.26 Thus, the concept developed by Fish would probably require far more coherent participants in PIL than arguably are present. However, the major common feature of all appliers of PIL is that their frame of reference is exactly this system of law—whenever someone interprets, he acts from a perspective within

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