13.2.1 European Court of Human Rights

Let me first begin with the European Court of Human Rights. Since its early days, the Court has maintained that its authority to interpret proceeds from an international treaty with a special legal character, that is, a law-making or normative treaty, which has a particular objective and purpose – the protection of human rights in Europe. Already in 1978, the Court’s judgment in Ireland v the United Kingdom was very clear about the character of the Convention system and indicated a distinct sequitur it drew from it, that is:

The Court in effect affirms the erga omnes character of the ECHR. One of the most powerful consequences the ECtHR has drawn from the special character of the Convention goes back to the Belilos v SwitzerlandFootnote ⁴ and Loizidou v Turkey (preliminary objections) case law. In the course of the latter case, the Court had to determine whether Turkey had the right to territorially limit its acceptance of the competence of the Commission and the Court by submitting a declaration that excluded its responsibility over the possible human rights violations in the territory of Northern Cyprus. The Court decided that such a declaration/reservation was invalid and set it aside. In coming to that conclusion, the Court interpreted the relevant articles of the Convention following the general rule of the interpretation of treaties:

The assertion above appears in paragraph 73 of the judgment. It is supported by preceding statements. For example, paragraph 72 affirms that:

A point before restates the living instrument doctrine:

This reasoning can be genuinely understood to mean that there are additional principles to the criterion of the object and purpose of the Convention that impact the interpretation carried out by the Court. Such an understanding of the Court’s case law is indeed confirmed by the Court itself and by legal doctrine.

It has been suggested that notions such as living instrument, European consensus, and the practical and effective protection of individual rights do not square well with Article 31 of the Vienna Convention on the Law of Treaties (VCLT). However, when examined in detail and in proper context, one begins to wonder whether there is more unity than divergence after all.

The above-quoted Loizidou passages bring up the element of time and the special object and purpose of the Convention and juxtapose these notions against State consent expressed forty years earlier. None of that is new to general international law. The International Court of Justice’s (ICJ) Namibia Advisory opinion on the mandate system, determined as a ‘sacred trust for civilization’, assumed that the content of the mandate was evolutionary and not static.Footnote ⁸ The Namibia dicta is one of the most important expressions of the intertemporal rule in international law. It confirms the conclusion reached in the International Law Commission (ILC) during the preparation of the VCLT. As put by the Special Rapporteur De Arechaga at the time:

In the absence of the intent of the parties to the ECHR to cut it in stone, as it were, it is by definition a living instrument since its object is real human relations, which are evolutive in character, and the purpose of the Convention system is to ensure their effective protection. These observations are helpful in explaining the developments in the Convention’s material content over time. There is still a question of the proper interpretation that detects this evolution, and I will address it after commenting on the competence of the Court.

At this stage, I would like to address the consequences that the ECtHR drew in Belilos and Loizidou concerning its competence in examining the reservations to the Convention with reference to the Convention’s object and purpose, since presuming any automaticity regarding competence of the adjudication body and procedure based in intertemporal rule would indeed be highly delicate. As we know, this question has been present in the international law debate and separate opinions of the ICJ judges since the beginning of the modern era of international law. It has led to extensive work of the ILC on the question of the effects of reservations to treaties with relevant guidelines adopted back in 2011, which resolved most of the misunderstandings.Footnote ¹⁰ One of the most significant developments in this work was the ILC’s recognition that, given their object and purpose, human rights treaties (and a few others) form a set of interdependent, indivisible, and interrelated rights and obligations. Based on such an understanding of the object and purpose, reservations that offend this purpose are impermissible by definition and void ab initio. Courts or treaty-monitoring bodies have the competence to determine impermissible reservations, which fall outside the scope of the VCLT. Therefore, the mechanism of reservations and objections is not even applicable. Consequently, it stems from this that the whole law of treaties is based on States entering into their treaty obligation in good faith, and the courts are competent to say when that has not been the case. This approach does not upset the very idea of State consent and does not arbitrarily extend the powers of courts or monitoring committees. In its work on reservations, the ILC in fact provided an explanation of what good faith in the light of object and purpose means.

The paragraphs 75 to 89 of the Loizidou judgment regarding preliminary objections serve as a school-book example of how the Court applies a general rule of interpretation of treaties to establish the ordinary meaning of the concept of a ‘reservation to the Convention’ in view of the object and purpose of this Convention within the context of subsequent practice of States and in view of other relevant rules of international law (in this case, the ICJ Statute and the notion of jurisdiction). After all of the steps, the Court came to the conclusion that:

It still begs the question of whether this method is correct since it arguably limited State consent, which that State expressed when accepting the jurisdiction of a monitoring body. We may still have some unease with Courts and monitoring bodies coming to such bold conclusions, especially in such an area of international law which, as I noted earlier, evolves constantly. Indeed, such case law begs a question whether the States incorporate within the scope of the principle of good faith the understanding that a treaty of a normative character may evolve over time. Various international and national courts have replied in affirmative to this question. State practice largely appears to accept that.

Whatever legal consequences the courts draw within their competence when confronted with different and oftentimes delicate legal questions, the clarity and consistency of the method underpinning the reasoning cannot be underestimated. The tension that comes with teleological interpretation, to which the criterion of the object and purpose of a treaty invites the interpreter to resort to, is inevitable and even more so when applied over time.

In the Brownlie’s Principles of Public International Law, James Crawford pointed out that ‘[t]his may involve a judicial implementation of purposes in a fashion not contemplated by the parties. The teleological approach has many pitfalls, not least its overt “legislative” character’.Footnote ¹² As has been recalled, the evolutive or progressive interpretation is closely linked with the teleological approach and is very much part of the ECtHR’s toolbox. Crawford cautioned when noting that the ECtHR ‘has preferred an effective and “evolutionary” approach in applying the ECHR’.Footnote ¹³ He pointed out that this approach suffers the defect that ‘the ILC did not adopt the principle, considering that as a matter of existing law it was reflected sufficiently in the doctrine of interpretation in good faith in accordance with the ordinary meaning of the text’.Footnote ¹⁴ Indeed, as noted above with reference to the Loizidou case law, the ECtHR disclosed what, in terms of good faith, the acceptance of the competence of the former Commission and the Court by Turkey meant. But in doing so, the Court resorted to notions such as living instrument and the principle of effective rights protection, suggesting an evolutive or teleological interpretation of the Convention. Arguably, it could have arrived at the same result without the need to resort to such notions.

Since the judgment in Tyrer v the United Kingdom, we know that the Court will be influenced by ‘the developments and commonly accepted standards’ in the Member States of the Council of Europe. In other words, the Court searches for European consensus, which consensus prompts the evolutive interpretation of the Convention. The scholarly debate has been coming to grips with this method from different perspectives. Firstly, the lack of ‘further details as to its origins, advantages, and disadvantages’ of European consensus as grounds for evolutive interpretation has been subjected to the criticism and argument that the Court engages in judicial activism.Footnote ¹⁵ This indicates the problem attributed to the evolutive interpretation of treaties, that is, the risk of overshadowing State consent, thus giving rise to legitimacy issues, which indeed goes back to Crawford’s point referred to earlier.

Secondly, the ECtHR has been criticised for its evolutive interpretation of the Convention because it has allegedly led to casuistic case law. Thirdly, this interpretation has been used as an example within the fragmentation debate.

I have also looked at European consensus in my scholarly work, and the observations I would like to share are the following. The Court’s use of the VCLT may suggest that the notions of European consensus and living instrument could be seen as relevant steps, albeit termed differently, within Article 31(3) of the VCLT, which incorporates developments in State practice subsequent to the adoption of a treaty or other relevant rules of international law into a general rule of interpretation of treaties. It is true, however, that not all judgments necessarily use the clearest language as to what subsequent practice is, what other relevant rules are, and in what manner they form part of the Court’s interpretation of the Convention. I have come to a few conclusions, based on the language in Demir and Baykara v Turkey case,Footnote ¹⁶ in which the Court recognised that it may not be too concerned as to whether the State has ratified the treaty or whether the common domestic practices emerge specifically in the application of the European Convention, as the wording of Article 31 (3) would indicate. The Court thus is interested in seeing the common developments and trends relevant to the scope of the European Convention without necessarily identifying the binding character of these developments and practices. In other words, while Article 31 of the VCLT offers a frame of reference for the Court as such, the Court has followed the method of interpretation with certain flexibility.Footnote ¹⁷

Naturally, the question that has preoccupied the States and the scholarship is whether such flexibility remains within the scope of a general rule of interpretation of treaties.Footnote ¹⁸ It is to be noted that the ILC Special Rapporteur Georg Nolte, while generally accepting the Court’s approach, nevertheless noted that:

The analysis of Georg Nolte coincides with my own analysis. The broad and rough assessments or flexibility with which the general rule of interpretation of treaties is applied by the EctHR has its risks and the principle of legal certainty should guide the Court as much as the principle of effective protection of rights. The balance is the key.

The Court’s case law also entails cases in which the Court does not refer to European consensus and remains purely within the context of Article 31 (3) (c) or (b) of the VCLT, suggesting that European consensus may be something else than the notions contained in points (c) and (b).

In Hassan v the United Kingdom, the Court, albeit rather exceptionally, decided to consider subsequent State practice in the application of the Convention and followed Article 31 (3) (b) of the VCLT. This case was about the deprivation of liberty of a young man by the British armed forces during active hostilities in Iraq following its occupation in 2003. Article 5 of the ECHR does not contain the internment of civilians during armed hostilities among the permitted exceptions from the right to liberty. The Court was faced with a threefold question. First, it had to address the question of the relationship between the ECHR and international humanitarian law (IHL). Secondly, it had to decide whether the Contracting Parties, when exercising their powers under IHL, had to have made a derogation from the ECHR under Article 15 of the Convention. Finally, the Court had to assess whether any subsequent State practice would provide any relevant indications as to the first two issues.Footnote ²⁰

The Court, therefore, had the opportunity to provide its view concerning the impact of subsequent State practice on otherwise a very clear text of Article 5 of the Convention. The Court pronounced as follows:

The Court reiterates that subsequent practice of the Convention States is relevant for the evolutive interpretation of the Convention even to the point of establishing the modification of this treaty. This raises the question of whether the Court means an agreement to interpret the existing text or rather a new agreed rule going beyond the treaty. The language of the above passage is somewhat unclear and can appear to go beyond the limits of the general rule of interpretation of treaties, which rule does not open the door for changing the treaty.Footnote ²² Such a situation is a reminder of the importance of providing more clarity in the reasoning based on the general rule of interpretation, which in turn assists in ensuring legal certainty.

The above judicial practice shows that the most difficult part in interpreting an international rule remains the determination of the ‘ordinary meaning to be interpreted in good faith’. In other words, one can never really know till the very end of the relevant interpretation how the parties understood the terms and concepts of a legal provision. Therefore, the subsequent practice of the parties and other relevant rules are vital elements for interpretation, providing at least some solid ground to stand on when trying to interpret what the parties really meant, especially after some time has passed. I can also agree with another crucial point made by James Crawford, who argued that ‘the doctrine of ordinary meaning involves only a presumption: a meaning other than the ordinary meaning may be established, but the proponent of the special meaning has a burden of proof’.Footnote ²³

As I suggested, the issue is not with the method or a general rule as such. Although the ECtHR, over the decades, has felt the need to develop new concepts such as European consensus, the Convention as a living instrument, etc., I do not see that these developments contradict the basic structure and logic of the interpretation of an international treaty that create interdependent obligations among the Constracting Parties. But the Court has to be aware that the risks are there.

13.2.2 The Court of Justice

The ECJ, similar to national constitutional courts, has a somewhat more complex task when it comes to the application of international law, as it stands at a crossroads between international law and EU constitutional law. It may be recalled that, in the words of Joseph HH Weiler: ‘Van Gend en Loos not only shaped the legal order; it constituted that order’Footnote ²⁴ as ‘a new legal order of international law’. The Court of Justice has ever since attempted to live up to the definition provided by Van Gend en Loos by trying to disclose and delineate what is new about this autonomous legal order which order too continues to evolve.Footnote ²⁵ The general principles, such as autonomy and primacy of the EU legal order, effectiveness or equivalence of the EU law, mutual trust and loyal cooperation, whose source is a mixture of judicial and legislative determination, are essential to the autonomous constitutional character of this legal order.

As the case law of the Court of Justice confirms, this dual character of the EU legal order, that is, international law foundations with constitutional law effects, is crucial to understanding and conceptualising the possibilities and the manner in which synergies with international law take place. It is the proper understanding of the unique character of the EU legal order and the purposes of the Union set forth in the TEU and TFEU that lies at the basis of drawing a distinction between the ECHR system as an integral part of international law and the EU legal order and their relations to international law, respectively.

More specifically, after entering into force, international agreements agreed upon and ratified by the Union with third States or international organisations form ‘an integral part of the [Community] legal order’.Footnote ²⁶ Nevertheless, such international agreements are subordinate to primary law.Footnote ²⁷ As stated by the Court in Opinion 2/15, given the primacy of the TEU and TFEU ‘over acts adopted on their basis, those acts, including agreements concluded by the European Union with third States, derive their legitimacy from those Treaties and cannot, (…), have an impact on the meaning or scope of the Treaties’ provisions’.Footnote ²⁸ In other words, international agreements ‘cannot “affect” rules of primary EU law or “alter their scope”’.Footnote ²⁹

Such international agreements concluded by the Union must be compatible not only with the Treaties but also with relevant customary international law and other binding rules of international law. The Court relies in this respect on Article 3(5) TEU, according to which the Union contributes to the strict observance and development of international law.Footnote ³⁰ In particular, the Court recalls the Union’s obligation to exercise its own powers in compliance with the principles and standards of international law, as well as the rules resulting from international conventions (which are binding on the Union), which involves monitoring the compatibility of agreements concluded by the Union with general international law.Footnote ³¹

On the basis of Article 216, point 2, TFEU, according to which agreements are binding on the institutions, the Court examines the compatibility of institutions acts with international law.Footnote ³² Thus, an appeal for annulment can be brought against an act of secondary law contrary to an international agreement.Footnote ³³ These features of the EU legal system exemplify that international law is woven into the fabric of EU constitutional law and indeed the principles of the relationship between the EU law and international law speak in favour of a kind of monist outlook.

The concrete impact of international agreements within the judicial order of the European Union is primarily dependent on their ‘invocability’. In the judgment in ATAA, the Court indicated that if private persons were to invoke international agreements in support of their subjective rights, they must meet these criteria:

• The Union must be bound by an international agreement;

• the nature and the structure of the international agreement must allow an examination of validity to be challenged;

• ‘the provisions of that treaty which are relied upon for the purpose of examining the validity of the act of European Union law appear, as regards to their content, to be unconditional and sufficiently precise’.Footnote ³⁴

In other words, the Court has clarified the concept of a self-executing international treaty for the purposes of the EU legal system through the principle of their invocability. But even in the absence of the invocability and direct effect, the Court has emphasised that ‘EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law’.Footnote ³⁵ The obligation of interpretation in conformity with applicable international law arises from the primacy of international agreements concluded by the Union and the international conventions entered into by the Union over the secondary law and the EU’s loyalty to international law.Footnote ³⁶

The principle of interpretation in conformity with international agreements and conventions is not limited to secondary law and their interpretation by the EU judiciary; it also concerns the national judiciaries in the EU Member States.Footnote ³⁷ Accordingly, in the Slovak Brown Bear judgment, the Court evaluated Article 9(3) of the Aarhus Convention, which aims to limit the legal hurdles faced by organisations and individuals working towards environmental protection by making access to information, participation in decision-making, and access to judicial remedies easier. This case reviewed whether the Aarhus Convention could have direct effect also as a matter of EU law. This was not so, but the Court clearly ruled that the Convention requires the Member States to provide for effective procedural arrangements at national levels in the environmental litigation. In this regard, the Court based itself on the necessity to assure effective judicial protection in the areas covered by Union’s environmental law. Consequently, national courts must ensure that their interpretation of national law is in conformity with the objectives of Article 9(3) of the Aarhus Convention to the fullest extent possible.Footnote ³⁸

Concerning the methods of interpreting international agreements, the Court emphasises that an international treaty must be interpreted according to the terms in which it was drafted, as well as in the light of its objectives. The Court resorts to Article 31 of the VCLT, specifying that a ‘treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose’.Footnote ³⁹

The Union is a powerful actor that can support the effectiveness of international law through the interpretation of the EU law in conformity with binding international rules and by taking into account and getting an inspiration from the international legal system to the extent that it is compatible with the objectives of the EU Treaties and the Union’s competences.

To sum up, international treaties that the EU as a subject of international law has accepted become part of the EU legal system and, in the hierarchy of legal sources, are above secondary law. These treaties are interpreted based on the general rule of interpretation of international treaties. Moreover, the Court uses among its own methods of interpretation of EU law the contextual interpretation method, which allows the Court to take into account other rules of international law, especially the ius cogens rules. The Court also resorts to the principle of interpretation in conformity to mitigate possible backlash if the interpretation of the EU’s legal act might indicate issues of invalidity of such an act.

However, there is case law that may appear to jeopardise not only the monist view of the EU legal order but also some of the structures of the international legal system. The obvious cases to be mentioned which have been subject to extensive doctrinal analysis are Kadi, Opinion 2/13, and Achmea judgments.Footnote ⁴⁰

First, as it derives from the above, the constitutional order that the EU has constructed is protective of its autonomous character based on its constitutional values, which, as Article 52, paragraph 3, second sentence, of the EU Fundamental Rights Charter in the field of human rights confirms, may indeed be higher than the minimum international standard, including that provided for in the ECHR. It is, therefore, that the Kadi case and Opinion 2/13 have to be seen as an ultimate protection of the European view of governance based on indivisibility and inviolability of the rule of law, separation of powers, fair trial, human rights, and democracy. No compromises are permitted within this constitutional order, which ought to be reflected in all EU Member States’ constitutional orders. In the Kadi context, the Court answered that the enforcement of individual international responsibility couldn’t compromise the value of a fair trial. Second, in Opinion 2/13, the Court was concerned about the coherence of its own legal order, which it has the ultimate responsibility for. Again, a normal reaction from a constitutional court wanting to avoid different standards emerging within its legal system through a door over which it has no full control. Achmea, in the area of international investment dispute settlement, follows the same logic, even if in this case, both states were EU Member States. However, the dispute settlement body concerned did not qualify under Article 267 TFEU as a tribunal that would be entitled to ask for a preliminary ruling from the Court of Justice. It is, therefore, that following well-established case law with regard to the Benelux Court of Justice or the EFTA Court, the Court of Justice did not accept that adjudication on matters falling within the EU law could be done by a court that is not part of the institutional structure of the EU legal order, as that ‘may undermine the autonomy of the [Community] legal order in pursuing its own particular objectives’.Footnote ⁴¹ It is therefore that the logic of the EU legal order is different from the logic of international legal system. On the one hand, the EU law is open to international law and complies with it as a matter of principle. On the other hand, based on the common values set forth in Article 2 TEU that reflect the very identity of the Union and in view of internal coherence of the rules and mechanisms of the EU, it protects this coherence and clearly impacts the international legal system in return.

However, one of the most prominent examples of how the EU engages with international treaties and other relevant rules of international law concerns the cases regarding the status of the Sahrawi people of Western Sahara and several agreements concluded between the European Union and the Kingdom of Morocco. I would like to briefly comment on the Court’s position in the judgment on appeal subsequent to the General Court’s judgment, which, upon the application of the Front Polisario, had annulled the association agreement between the EU and Morocco. This agreement did not expressly exclude Western Sahara from its scope and the submission in front of the General Court was that such agreement is contrary to the right to self-determination, Article 73 of the UN Charter, provisions in the Convention on the Law and Sea, the duty of the international community to stop ‘serious breaches of a peremptory norm of international law, not to recognise and illegal situation resulting from such a breach, and not to provide assistance for the commission of an internationally wrongful act’. The Court recalled that:

The Court recognised that the Association Agreement could not extend to include the people of Western Sahara. The Union could not have intended to violate relevant international law. In the case, the Court referenced the ICJ Advisory Opinion on Western Sahara, reaffirming that Western Sahara had a personality that was distinct from the ‘territory of the Kingdom of Morocco’, and could, therefore, not be ‘included within the territorial scope of’ neither the Kingdom nor the agreement.Footnote ⁴³ Applying Article 31(3)(c) of the VCLT, the Court stipulated that the ‘relevant rules of international law applicable in the relations between parties’ must be taken into account during the course of interpretation.Footnote ⁴⁴ In this context, the Court recalled that the people of Western Sahara had the right to self-determination. The key issue was the interpretation of the notion of ‘territory’ in the Association Agreement. The Court pointed out that ‘the adjective “its” preceding the term “territory”’, that is, ‘its territory’ refers to a ‘geographical space’ in which a ‘State exercises [its] full powers’. According to the VCLT and international practice, if ‘a treaty is intended to apply not only to the territory of a State but also beyond that territory, that treaty expressly provides for it’.Footnote ⁴⁵ Since this did not emanate from the Agreement, this Agreement could not be taken to mean that Western Sahara is part of Morocco’s territory. The opposite would be in contradiction to the right to self-determination of the people of Western Sahara. Moreover, ‘[t]he customary rule codified in Article 29 of the VCLT thus also, a priori, precluded Western Sahara from being regarded as coming within the territorial scope of the Association Agreement’.Footnote ⁴⁶

The Court did diverge with the General Court, stating that ‘the principle of the relative effect of treaties had to be taken into account in such an interpretation, since the application to Western Sahara of the Association Agreement, […] would have led to that agreement affecting a “third party” [i.e. the people of Western Sahara]’.Footnote ⁴⁷ Their designation as a ‘third party’ might have meant that they could be ‘incorporated’ into the Agreement if they so desired, but the Court proceedings clearly showed a lack of consent from the people of Western Sahara.Footnote ⁴⁸

In conclusion, the Court states:

The Court maintained in force the EU and Morocco Agreement based on the principle of rational legislator, which is a common principle of constitutional law and which probably, in the case of Agreements with Morocco, translates into a good faith principle. The EU could not be considered to have meant to affect the status of Western Sahara under international law unless it is proven otherwise. But the onus is on the party alleging it. In other words, the trade and other important relations between the Union and Morocco were preserved, while the principles of international law relevant to the rights of the people of Western Sahara were also complied with through the proper use of a general rule of interpretation of a treaty. The object and purpose of the Agreement comprised respect for international law and the context referred to the right to self-determination and consent of being bound by treaties that affect the self-determination entity. This judgment and the line of case law exemplifies the complexity of the ECJ’s application of international law.