lunedì 29 dicembre 2014

The Use of Article 31(3)(C) of the VCLT in the Case Law of the ECTHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration

Vassilis P. Tzevelekos 


January 1, 2010

Michigan Journal of International Law, Vol. 31, 2010 

Although the ECtHR has been widely accused of being one of the specialized international courts that most frequently fragments international law, it also appears, at the same time, to apply Article 31(3)(c) VCLT more than any other. Recently, the ILC pointed to this Article and suggested that it introduces an autonomous method of interpretation, namely that of systemic integration, which is particularly useful against the normative fragmentation of international law. Yet the history of Article 31(3)(c) suggests that, outside systemic integration, this very same VCLT provision may also accommodate the dynamic method of interpretation. The main questions raised by this study concern the effectiveness of Article 31(3)(c) VCLT as an anti-fragmentation tool and the relationship between systemic integration and the dynamic method of interpretation. The reason for choosing the regime of the ECHR to test the function of Article 31(3)(c) has to do with its ‘special’ nature, as an international treaty that operates as a ‘quasi-constitution’ for the establishing of a regional public order. Given these characteristics, the test for Article 31(3)(c) is a demanding one.

The case-law of the ECtHR that gives effect to Article 31(3)(c) is divided into three main categories, corresponding to the situations in which: i. the norms of the ECHR are complementary to the ‘third’, extraneous, relevant norms of international law which, by the means of Article 31(3)(c), are integrated into the analysis of the Court; ii. the norms of the Convention come into conflict with other norms of international law; iii. for the Convention to produce its results, it is a prerequisite that the ECtHR resorts to general international law to provide answers to any preliminary questions that fall outside its subject-matter. Next to these three categories, the paper also examines the sui generis role that the ECtHR has reserved for Article 31(3)(c) in the case of institutional fragmentation.

The analysis demonstrates that when, first, the relevant rules of international law are complementary to the ECHR, these can very effectively be ‘absorbed’ by the latter, having an expanding effect on the semantic field of its substantive norms. In this case, systemic integration works in substance as a complement to the ‘special’ object and purpose of the Convention and converges with the dynamic method of interpretation. The effect of Article 31(3)(c) moves, in principle, towards the direction of reinforcing the Convention’s ‘special’ telos and, thus, rather than a proper systemic integration, it promotes a ‘pseudo’ one. If, on the contrary, there is a conflict between the relevant norms of international law and the ECHR, the systemic integration method of interpretation comes into play ipso facto. Its function cannot (and should not), however, extend beyond a simple ‘contact’ between the conflicting norms. Beyond this, there is no room for it to effectively promote the unity of international law. Rather, the systemic integration resigns this role in favour of the classic and well-known techniques that are usually used in the case of a conflict of norms. In the third case, the use of systemic integration has mainly been proven to facilitate the Court’s effort to legitimately give effect to the Convention’s telos. However, as the case-law of the Court clearly indicates, although systemic integration has indeed been proven to function effectively, no definitive answer may be given as to the effects that it produces, since these are always dependent on the will of the Court. Hence, although Article 31(3)(c) may often be of extreme help for the Convention to become effective, the very same Article may equally well be used by the Court in order for it to self-restraint its jurisdiction. Finally, as far the case of institutional fragmentation is concerned, it is difficult to draw conclusions on the basis of the relevant case-law. The impression given is that Article 31(3)(c) is used for purposes falling outside positive international law. What, however, is evident is that the effectiveness of systemic integration in the case of institutional fragmentation may well be limited by a number of imponderable external factors, such as the political dimensions of a case, and the balance of power between the various fora.

The more general impression given by the case-law of the ECtHR is that the latter enjoys ample selectiveness in its use of Article 31(3)(c). The systemic integration technique can only be as effective as the ECtHR wants it to be. In the end, the Court is the only one to decide how ‘special’ or integrated into the systemic ‘orthodoxy’ it wants its regime to be. Article 31(3)(c) may allow judicial activism no more or less than any other method of interpretation which promotes the object and purpose of a ‘special’ international treaty. This final remark also explains why, in the case of complementarity between the ECHR and the relevant norms of international law, the systemic integration and the dynamic techniques, do converge. However, the dynamic method of interpretation extends beyond that of systemic integration. This is the case especially when the normative sources of inspiration for the Judge of Strasbourg derive from orders other than the international one.
Number of Pages in PDF File: 70

Keywords: systemic integration. fragmentation of international law, Article 31(3)© VCLT, Vienna Convention on the Law of Treaties, evolutive interpretation, dynamic interpretation, ECHR, ECtHR

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