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The European Convention on Human Rights and General International Law$
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Anne van Aaken and Iulia Motoc

Print publication date: 2018

Print ISBN-13: 9780198830009

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780198830009.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 09 December 2019

Evolutive Interpretation in the Light of Other International Instruments

Evolutive Interpretation in the Light of Other International Instruments

Law and Legitimacy

Chapter:
(p.83) 4 Evolutive Interpretation in the Light of Other International Instruments
Source:
The European Convention on Human Rights and General International Law
Author(s):

Geir Ulfstein

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198830009.003.0005

This chapter discusses how the European Court of Human Rights uses international instruments in its evolutive interpretation of the European Convention on Human Rights. It is argued that the Court, in its use of such instruments, goes beyond the bounds of the 1969 Vienna Convention on the Law of Treaties Article 31(3)(b) (subsequent practice) and (c) (systemic interpretation) and uses the instruments as guidance in giving effect to the original intention of the parties based on Article 31(1) (evolutive intention). However, this is not made clear in the Court’s reasoning. Moreover, the Court prefers extensive discretion in how it should use such instruments in its evolutive interpretation. This makes the Court vulnerable to allegations of extrajudicial approaches and activism. Therefore, certain guidelines for the interpretational use of international instruments are proposed.

Keywords:   interpretation, treaties, human rights, courts, European Convention on Human Rights

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