Arato on the ECtHR's use of VCLT

The Constitutional Transformation of International Organizations Through Treaty Interpretation: The ECtHR's Expansive Use of VCLT 31(3)(C)

Julian Arato

New York University School of Law


October 30, 2011


Abstract:     
This paper is about the constitutional transformation of international organizations. More specifically, the focus is on how the constituted judicial organs of such organizations develop and transform their constitutions through interpretation. In other words this paper examines these bodies’ reliance upon the externally codified law of treaty interpretation in interpreting their own constituent instruments, and the transformative effects of their use of such techniques on their constitutions. The analysis is confined to the use of a single technique of interpretation (Article 31(3)(c) of the Vienna Convention on the Law of Treaties ), by one particular organization (the European Court of Human Rights), in a single major case – Demir & Baykara v. Turkey (2008). I argue that the case illustrates two distinct forms of constitutional transformation: (1) the Court relies on 31(3)(c) to interpret the substantive rights of the Convention as evolutive over time in light of sources external to the Convention; and (2) the Court gives 31(3)(c) itself an astonishingly broad construction, to justify considering an extraordinary array of external sources – thereby, more reflexively, transforming its own material competence to develop the Convention on the basis of developments outside of the Convention.

This working paper was prepared for presentation at the inaugural Research Forum of the American Society of International Law, ASIL Midyear Meeting, UCLA (Nov. 3-5, 2011).

Number of Pages in PDF File: 33

Keywords: International Organizations, Treaty Interpretation, Constitutional Theory

 

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1951547