Human rights law is embedded in the broader field of international law, and therefore, in general, the rules for interpretation applicable under international law similarly apply to human rights treaties. In general, the principles of interpretation of international treaties contained in the Vienna Convention on the Law of Treaties (VCLT) are considered to be the customary international law principles of treaty interpretation. However, the interpretation of human rights treaties requires that the specific characteristics of these treaties be taken into account.
The rules for treaty interpretation are contained in Articles 31 to 33 of the VCLT. The principal provision for treaty interpretation is found in Article 31(1) VCLT and contains a number of elements. First, a treaty shall be interpreted in ‘good faith’. This rule stresses the importance of the principle of good faith contained in Article 26 VCLT and applies it to the process of treaty interpretation. Further, a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty (literal interpretation), in their context, that is to say, upon a systematic view of the whole treaty (systematic interpretation). Moreover, this shall be done in light of the object and purpose of the treaty (teleological interpretation). Paragraph 2 of Article 31 provides that for the purpose of interpreting a treaty, the ‘context’ of a treaty includes not only the text but also its preamble and annexes, any agreement or instrument in connection with the conclusion of the treaty and any subsequent agreement and practice regarding its interpretation. Paragraph 3 provides any relevant rules of international law applicable in relations between the parties shall be taken into account along with the context.
Article 32 VCLT provides that recourse may be had to supplementary means of interpretation in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 ‘leaves the meaning ambiguous or obscure’ or ‘leads to a result which is manifestly absurd or unreasonable’. According to Article 32, the supplementary means of interpretation include the preparatory work of the treaty and the circumstances of its conclusion. It is of particular importance that under the VCLT, the travaux préparatoires are only a supplementary means of interpretation. As has been established by the International Court of Justice, treaties should be interpreted and applied within the framework of the legal system prevailing at the time of the interpretation, rather than at the time of the drafting or adoption of the text. Thus, in the interpretation of human rights treaties, the intention of the drafters does not generally play a major part. For example, it is by no means rare to find decisions of the European Court of Human Rights that are contrary to the express intentions of the drafters.
A. The specific object and purpose of human rights treaties
It is well established that the rules for treaty interpretation provide the framework for interpreting human rights treaties. This is apparent in the jurisprudence of the major human rights supervisory bodies. The Human Rights Committee as well as the regional human rights courts have expressly noted that the rules of interpretation set out in the VCLT contain the relevant international law principles for interpretation. However, as stated above, the application of these rules does not resolve all the problems of treaty interpretation because the rules of the VCLT are not unequivocal. Moreover, the interpretation of human rights treaties requires that the specific characteristics of human rights treaties be taken into account. Already in 1951, the International Court of Justice noted the special character of human rights treaties. For example, in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the International Court of Justice stated that the parties to such instruments do not have any individual advantages or disadvantages nor interests of their own, but merely a common interest.
One aspect that distinguishes human rights treaties from other international treaties relates to duties of states parties. Human rights treaties are agreements between states which grant specific rights to individuals who are not themselves parties to the instruments, but for whom the correlative duties fall primarily on states. In its second Advisory Opinion, the Inter-American Court in 1982 explained this special feature of the human rights instruments with clarity, emphasising that:
Modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting states. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other states, but towards all individuals within their jurisdiction [...].
The European Commission of Human Rights applied the same approach in the case ofAustria v. Italy:
[T]he obligations undertaken by the High Contracting Parties in the European Convention are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringements by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves.
This specific human rights-centred interpretation is also apparent in the jurisprudence of the European Court of Human Rights. In Wemhoff v. Federal Republic of Germany, the Court noted that because the Convention is a ‘law-making treaty, it is [...] necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty’.
There are other general legal principles for interpretation that should also be considered, such as the interpretative principle that limitation provisions shall be construed and applied in a restrictive way.
In sum, the object and purpose of human rights treaties plays a central and crucial role in their interpretation. The specific object and purpose of human rights treaties is the protection of the individual human person. This not only justifies but also compels interpretation and application of the provisions of human rights instruments in a consistent manner. This object and purpose requires that we take into account, at a minimum, the three following principles:
1. THE EFFECTIVENESS RULE
Because the overriding function of human rights treaties is the protection of individuals’ rights, it seems clear that their interpretation should make that protection effective. As the Inter-American Court has noted,
[t]he object and purpose of the American Convention is the effective protection of human rights. The Convention must, therefore, be interpreted so as to give it its full meaning and to enable the system for the protection of human rights entrusted to the Commission and the Court to attain its ‘appropriate effects’.
The application of this principle is evident in the case-law of the European Court ofHuman Rights:
In interpreting the Convention, regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms [...]. [T]hus the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (Soering Judgment of the ECtHR). (Emphasis added).
2. THE EVOLUTIVE INTERPRETATION
The protection of individuals also requires an evolutive interpretation of human rights treaties. Human rights are not static and therefore effective protection of these rights involves taking into account developments in law and society. The necessity of taking into account the changes occurring in society and in law has often been emphasised by the European Court of Human Rights, which has frequently underlined that the Convention is a ‘living instrument, which must be interpreted in the light of present day conditions’.
It is again worth noting that, as with the effectiveness principle, the importance of the evolutive interpretation is the consequence of the overriding object and purpose of human rights treaties. The interpretation of the text in light of the object and purpose (Article 31 VCLT) is required to make human rights provisions ‘practical and effective’ and to take into account ‘present-day conditions’ for the protection of the individual. This is clear, for example, in Loizidou v. Turkey, where the European Court held:
That the Convention is a living instrument which must be interpreted in the light of present day conditions is firmly rooted in the Court’s case-law [...]. It follows that these provisions cannot be interpreted solely in accordance with the intentions of their authors as expressed more than forty years ago.
Subsequently the Court added that ‘the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective [...].’
The Inter-American Court also applies the principle of evolutive interpretation. The Court itself has explained in an advisory opinion on the interpretation of the American Declaration of the Rights and Duties of Man that in the interpretation process:
It is appropriate to look to the Inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948. (Advisory Opinion OC-10/89 July 14, 1989,).
More recently, the Inter-American Court has made express mention of the jurisprudence of the European Court of Human Rights and indicated that ‘human rights treaties are living instruments, the interpretation of which must evolve over time in view of existing circumstances.’ (Mayagna (Sumo) Awas Tingni Community v. Nicaragua).
3. THE RULE OF AUTONOMOUS INTERPRETATION
Closely related to the rule of evolutive interpretation is the rule of autonomous interpretation, which can best be explained with two examples: A property right in human rights law is not automatically a property right as defined in national law; under human rights law its concept might be much broader. Similarly, a wrongdoing is not automatically a criminal offence because it has been defined as such in a national criminal code. The Inter-American and European human rights courts have insisted on their autonomy in interpreting the meaning of the terms in their respective conventions. In the case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Inter-American Court of Human Rights explained the concept and the close relationship with the rule of evolutive interpretation:
The terms of an international human rights treaty have an autonomous meaning, for which reason they cannot be made equivalent to the meaning given to them in domestic law. Furthermore, such human rights treaties are live instruments whose interpretation must adapt to the evolution of the times and, specifically, to current living conditions. [...] no provision may be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party.
The logic and importance of the concept of autonomous interpretation was explained by the European Court of Human Rights in the case of Engel v. The Netherlands:
If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a “mixed” offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 [articles providing minimum rights to those who are charged of a criminal offence] would be subordinated to their sovereign will. Latitude extending thus far might lead to results incompatible with the purpose and object of the Convention.
Notably, with the terms included in the articles defining fair trial, the Inter-American and European Courts have, on several occasions, applied the rule of autonomous interpretation in defining, for instance, what the concepts ‘penalty’ and ‘witness’ entail.