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5 - Methods of Convention Interpretation

Published online by Cambridge University Press:  03 June 2023

Janneke Gerards
Affiliation:
Universiteit Utrecht, The Netherlands
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Summary

In many, if not most cases, the ECtHR relies on its own precedents in interpreting the Convention, but some cases may present the Court with new and difficult questions of interpretation. To answer these, the Court relies on a number of specific principles and methods of interpretation. The Court is guided in its work by several core principles, such as effectiveness, evolutive interpretation and autonomous interpretatio, but these are still relatively abstract in nature and they may not suffice to answer a concrete question of interpretation. For that reason, the Court often also relies on the methods of interpretation as described in the provisions of the Vienna Convention on the Law of Treaties, such as textual interpretation, interpretation in light of the travaux préparatoires and internally harmonising interpretation. This chapter discusses the Court’s use of these three methods. In addition to these methods, the Court has opted for a particular refinement of one of the Vienna Convention’s methods, which is consensus or common ground interpretation. This method and the various sources for the Court’s finding of a consensus are also discussed in this chapter.

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Publisher: Cambridge University Press
Print publication year: 2023

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References

Further Reading

Bernhardt, R. (1993). Thoughts on the Interpretation of Human Rights Treaties. In Macdonald, R.St.J. et al. (eds.), The European System for the Protection of Human Rights (Dordrecht: Nijhoff), pp. 6571Google Scholar
Dzehtsiarou, K. (2015). European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press)CrossRefGoogle Scholar
Greer, S. (2006). The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press)CrossRefGoogle Scholar
Van de Heyning, C. and Lawson, R.A. (2011). The EU as a Party to the European Convention of Human Rights: EU law and the European Court of Justice Case Law as Inspiration and Challenge to the European Court of Human Rights Jurisprudence. In Popelier, P. et al. (eds.), Human Rights Protection in the European Legal Order: The Interaction between the European and the National Courts (Antwerp: Intersentia), pp. 3564Google Scholar
Kapotas, P. and Tzevelekos, V. (eds.) (2018). Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond (Cambridge University Press)Google Scholar
Matscher, F. (1993). Methods of Interpretation of the Convention. In Macdonald, R.St.J., Matscher, F. and Petzold, H. (eds.), The European System for the Protection of Human Rights (Dordrecht: Nijhoff), pp. 6381Google Scholar
Mowbray, A. (2013). Between the Will of the Contracting Parties and the Needs of Today: Extending the Scope of Convention Rights and Freedoms Beyond What Could Have Been Foreseen by the Drafters of the ECHR. In Brems, E. and Gerards, J.H. (eds.), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press), pp. 1736Google Scholar
Senden, H.C.K. (2011). Interpretation of Fundamental Rights in a Multilevel Legal System: An Analysis of the European Court of Human Rights and the Court of Justice of the European Union (Antwerp: Intersentia)Google Scholar
Theilen, J. (2021). European Consensus Between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication (Baden-Baden: Nomos)Google Scholar

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