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					 CENTER FOR HUMAN RIGHTS AND GLOBAL JUSTICE WORKING PAPER
                      NUMBER 2, 2005




                       MARK TOUFAYAN

HUMAN R IGHTS TREATY INTERPRETATION : A P OSTMODERN
       ACCOUNT OF ITS CLAIM TO “SPECIALITY”




              NYU School of Law • New York, NY 10012
          No part of this paper may be reproduced in any form
                    without permission of the author.
     HUMAN R IGHTS T REATY INTERPRETATION : A POSTMODERN
           ACCOUNT OF ITS CLAIM TO “S PECIALITY”




                                           © MARK TOUFAYAN
                             Legal Officer, International Labour Organization
                                 Author email: mtoufayan@hotmail.com




The Center for Human Rights and Global Justice was established in 2002 to stimulate cutting edge scholarship and
to make original and constructive contributions to on-going policy debates in the field of human rights. By
emphasizing interdisciplinary analyses, the Center's programs seek to situate international human rights law in the
broader context of the political, jurisprudential, economic, sociological, historical, anthropological and other
influences that shape it and determine its impact. The Center’s Faculty Director is Philip Alston, its Executive
Director is Smita Narula, and its Research Director is Margaret Satterthwaite. CHRGJ thanks Stephanie Welch for
copyediting and formatting this paper.




                                                       ii
                                             Abstract


This paper explores from a postmodernist perspective a question that remains largely neglected

in both human rights scholarship and “mainstream legal literature”: is there a special régime for

the interpretation of human rights treaties that fundamentally differs from the interpretation of

other treaties? In its broadest sense this question, as posed, is part of a wider ongoing debate as to

the potential “fragmentation” of international law—one that has been encouraged particularly by

the development of specific legal regimes endowed with dispute settlement mechanisms. The

author argues that contrary to the view prevailing today among commentators, human rights

treaty interpretation does not follow a deductive logic where conflicting arguments are compared

and weighed one against the other. Rather, a holistic process takes place where different

arguments are read in a way that they are channelled toward a common interpretation. The author

explains this explicit holistic process through an examination of the work of the International

Law Commission on the codification of the law of treaties and the jurisprudence of the European

Court of Human Rights. The paper concludes that the greatest challenge of the teaching and

practice of international human rights law today is not so much to overcome postmodern

anxieties about the “speciality” of human rights treaties, which are by and large unjustified, as to

recognize and respect holism in human rights interpretation while maximizing its efficiency in

ensuring the protection of the fundamental rights of individuals.




                                                iii
CHRGJ Working Paper No. 2, 2005                                                                        1



I.      Introduction

International law, like modern art, is a universe of multiple significations and messages. 1 It is
indeed messages that delegates at conferences convey to the public when they negotiate and draft
international agreements. 2 Similarly, it is of a message that one speaks when a judge interprets a
treaty and renders his decision. The communicative nature of international law is so evident and
essential to its development that it may seem quite surprising that this discipline, unlike
linguistics and literature, has only in recent years been the target of postmodernist thought. 3 Yet
if we acknowledge that postmodernism is this trend stemming from the demystification of
modernity and which challenges its epistemological postulates and the ambitiousness of the
questions it purports to solve, it was to be expected that it would attack the universe of
international law, with its claims to cohesion and unity and to a purported mission civilisatrice
vis-à-vis states, individuals and non-state entities. 4 Postmodernism thus poses a dual challenge to
international law: the first to legal centralism and the second to legal epistemology. It would
therefore be somewhat simplistic to claim that its normative content can be apprehended through
a process by which a judge would choose a rule of interpretation and apply it to a given case in a
mechanical fashion. 5

It is to a reflection on precisely this type of considerations that this paper is devoted. It considers
why some of the leading cases in international human rights law have been decided in a certain
way and by what techniques of interpretation and legal argumentation judges have given support
to their decisions. The goal is to shed light on the issue of the extent to which it can be defended
that human rights treaties dictate particular meaning because of their subject matter. Put another
way; is there a special régime6 for the interpretation of human rights treaties that fundamentally
differs from the interpretation of other treaties?

1
  See generally, S. Beaulac, The Power of Language in the Making of International Law (2004); Kritsiotis, “The
Power of International Law as Language,” 34:2 Cal. West. L.R. (1998) 397 and Salmon, “Langage et Pouvoir en
Droit International,” in L. Ingber (ed), Le langage du droit (1991) 316 (exemplifying the power exerted by the
communicative language of international law in international relations). See also Berman, “Modernism, Nationalism
and the Rhetoric of Reconstruction,” 4 Yale J.L. & Human. (1992) 351 (concerning the relationship between the
languages of international law and modern art).
2
  The communicative nature of the language and discourse of international legal agreements has been emphasized by
the public policy-oriented approach of the New Haven School of McDougal, Laswell and Miller. See M. McDougal
et al., The International Interpretation of International Agreements and World Public Order. Principles of Content
and Procedure (1994) xi. See also generally, Reisman, “International Lawmaking: A Process of Communication,”
75 Am. Soc. of Int’l L. Proc. (1981) 101, at 105 et seq.
3
  For an account of a “postmodern” international law through recent trends in critical legal studies, see Carthy,
“Critical International Law: Recent Trends in the Theory of International Law,” 2 EJIL (1991) 1. See also Paulus,
“International Law after Postmodernism: Towards Renewal or Decline of International Law?,” 14 Leiden J. Int’l L.
(2001) 727.
4
  M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002) 4-5
(describing the identity of international lawyers as “civilizer” of international and transnational interactions).
5
  I. Sinclair, The Vienna Convention on the Law of Treaties (1984) 153 (“Interpretation is a process involving the
deployment of analytical and other skills: it cannot be reduced to a few propositions capable of purely automatic
application in all circumstances”). See also H. Kelsen, Pure Theory of Law (2nd ed., 1967) 348 (arguing that
“[i]nterpretation, therefore, is an intellectual activity, which accompanies the process of law application in its
advance from a higher to a lower level”) and G. Schwarzenberger, International Law and Order (1971) 116.
6
  The standard definition of “international regimes,” offered by Stephen Krasner, is a set of “principles, rules
and decision-making procedures around which actor expectations converge in a given issue area.” See
Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables,” 36:2 Int’l. Org.
CHRGJ Working Paper No. 2, 2005                                                                              2




This question, of major doctrinal and practical significance, remains largely neglected in the
literature. Textbooks of international law and on the law of treaties abound with references to the
“means,” “rules,” “principles” or “methods” of interpretation without any attempt being made to
study the phenomenology of treaty interpretation in relation to human rights treaties. Human
rights scholarship, for its part, is narrowly focused in terms of the issues with which it is
concerned and for that reason has tended to attract a cast of academic exponents whose vision
and range of concerns is also limited. Emphasis is laid on the different interpretations courts have
given to the scope and content of specific rights without questioning the reasons for these
differing interpretations. 7 It therefore seems apposite to critically analyze the structure of
reasoning in human rights interpretation, and even more so since the various ways courts and
tribunals conceptualize “rights,” and the basis for their reasoning, shape much contemporary
social phenomena and debates about what state, individual and group identities are, how they are
formed and how they affect international law and politics. 8

Upon serious reflection, I came to realize that contrary to the view prevailing today among
commentators, this process had nothing to do with deductive logic or an analytical process where
various arguments were carefully compared and weighed against each other. It rather appeared to
me that when appreciating one argument, the interpreter had in mind all the others and if
ultimately this was the one he retained, he made the others bend or rearranged them in such a
way that they all converged in the same direction. 9 More than teleological, human rights
interpretation has thus appeared to me to be holistic in nature. In the second part of this paper, I
bring out the holistic character of this interpretive process through an examination of the work of

(Spring 1982) 185, at 185. On the application of the concept of international regimes to human rights, see
mainly the following works: Moravcsik, “Explaining International Human Rights Regimes: Liberal Theory
and Western Europe,” 1(2) European Journal of International Relations (1995) 157 and, from the same
author, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe,” 45:2 Int’l. Org.
(Spring 2000) 217; Donnelly, “International Human Rights: A Regime Analysis,” 40:3 Int’l. Org. (Summer
1986) 599.
7
  See Alston, “The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence
(book review),” 14:3 EJIL (2003) 615, at 616 (arguing that “… the most interesting and perplexing question which
such a volume provokes … is to what extent is it valid to mix … within the space of a single integrated volume,
interpretations from a huge range of courts interpreting a diverse range of international instruments or national
constitutional or other provisions without being able to situate or contextualize any of the interpretations.”
8
  Judges have been criticized for their alleged tendency to not only take their experience, preferences, and opinions
to be general, uncontroversial and even an expression of suffering or disadvantage, but to represent these as general
legal norms. See R. Dworkin, Law’s Empire (1986) 218, 404-406 (arguing that legal coherence in interpretation is
sometimes frustrated by democratic principles such as the separation of branches of government and legislative
supremacy). Benvenisti argues however that national courts have traditionally been wary to apply international legal
norms in domestic law from fear of constraining executive action in international relations. See Benvenisti, ‘Judges
and Foreign Affairs: A Comment on the Institut de Droit International’s Resolution on ‘The Activities of National
Courts and the International Relations of their State’’, 5 EJIL (1994) 423, at 424-427 and his ‘Judicial Misgivings
Regarding the Application of International Law: An Analysis of Attitudes of National Courts’, 4 EJIL (1993) 159.
9
  A somewhat more nuanced view is defended by Dailler and Pellet who state:
         Il paraît peu douteux que les juges et arbitres se considèrent comme libres de recourir aux méthodes
         d’interprétation qui leur paraissent les plus appropriées au cas d’espèce qui leur est soumis; toutefois,
         soucieux de ménager les susceptibilités nationales des États souverains parties au litige, ils utilisent souvent
         concurremment les moyens et règles décrits ci-dessus de façon à obtenir la confirmation de l’interprétation
         à laquelle les conduit l’application d’une méthode donnée, par l’utilisation d’une autre.
See P. Dailler and A. Pellet, Droit International Public (6th ed., 1999) 262-263.
CHRGJ Working Paper No. 2, 2005                                                                            3



the International Law Commission (ILC) on the codification of the law of treaties (Section A)
and the practical operation of this process in human rights jurisprudence (Section B). It is argued
that treaties of a lawmaking character exemplify different social rationalities and identity
conceptions of their authors and interpreters that holism accommodates, and there is
consequently little reason to consider holism a characteristic of the interpretative methodology
applied solely to human rights treaties. There would therefore seem to be nothing “special” about
this specific category of treaties that would justify a departure from general law, thus confirming
their anchoring in the very fabric of general international law.

II.     The Stakes of Human Rights Treaty Interpretation

As a necessary first step in the analysis, one might make the obvious point that what
characterizes “human rights treaties”—as opposed to environmental or trade agreements—as a
category is that they have, as their humanitarian ideal, the protection of the interests of
individuals rather than States. This, however, is not sufficiently explanatory. Numerous treaties
can indeed be said to have such an objective, including international labor conventions, 10
“humanitarian law treaties”11 and treaties concerned with diplomatic or consular protection. 12
The same could be said of the argument that the peculiarity of “human rights treaties” stems
from the fact that they provide for the recognition of individual legal “rights.” Once again, it is
clear that such “rights”—loosely referred to here as “rights of access to justice”—are recognized
in a much wider range of treaties than simply those concerned strictly with “human rights.” 13
Unless arguments as to the specificity of “human rights treaties” as a category are entirely ill-
conceived, it seems clear that neither of these characteristics alone sufficiently explains why
these treaties are increasingly regarded as being of a “special” nature. Rather, it would seem that

10
   See Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 1948;
Convention (No. 98) Concerning the Application of the Principles to Organize and to Bargain Collectively, 1949;
Convention (No. 29) Concerning Forced Labour, 1930; Convention (No. 105) concerning the Abolition of Forced
Labour, 1957; Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation, 1958;
Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value,
1951; Convention (No. 138) concerning Minimum Age for Admission to Employment, 1973; Convention (No. 182)
Concerning Worst Forms of Child Labour, 1999 (the so-called “fundamental” International Labour Organization
(ILO) conventions). The text of these instruments is available online at http://www.ilo.org. For a view that ILO
conventions establish human rights standards, see P. Alston (ed.), Labour Rights as Human Rights (Oxford: Oxford
University Press, 2005) (forthcoming).
11
   Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
12 August 1949, 75 UNTS 31; Geneva Convention for the Amelioration of the Armed Forces at Sea, 12 August
1949, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS
135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS
287; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II), 8 June 1977, 16 ILM 1442.
12
   See for example, Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 262, Article 36. On the
interpretation of the convention as ensuring protection for the rights of “individuals,” see the recent judgment of the
International Court of Justice in LaGrand (Germany v. United States of America), ICJ Reports (2001) 466 at paras.
77, 89.
13
   See for example, Charter of the United Nations, 26 June 1945, Can. T.S. 1955 No. 7, Article 87(b); UN Economic
Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access
to Justice in Environmental Matters, 25 June 1998, Article 9, text available online at
http://www.unece.org/env/pp/documents/cep43e.pdf; Treaty on European Union, Art. 230.
CHRGJ Working Paper No. 2, 2005                                                                            4



it is their non-reciprocal character that is the key to this riddle. 14 By this I mean a limited
category of treaties whose purpose is to recognize and protect individual human rights in a way
that is independent of the question of nationality link, or of the acceptance of similar obligations
by any other particular state party. 15

Because of this peculiarity, it has often been suggested that the general principles governing the
application and effect of treaties ought to be modified, or perhaps even discarded, when dealing
with human rights treaties. 16 Thus, Sir Arnold McNair once mused at the fact that we must “free
ourselves from the traditional notion that the instrument known as the treaty is governed by a
single set of rules, however inadequate, and set ourselves to study the greatly differing legal
character of the several kinds of treaties and to frame rules appropriate to the character of each
kind.” 17 This idea has already had repercussions in some areas of international law, such as the
law governing reservations to treaties. 18 It raises the questio n whether human rights law has a
“special” status within the general corpus of international law because of its characteristics, and,
if so, how that peculiarity should be expressed and given recognition. 19 In its broadest sense this

14
   See Craven, “Legal Differentiation and the Concept of the Human Rights Treaty in International Law,” 11:3 EJIL
(2000) 489, at 497, 504-513; Provost, “Reciprocity in Human Rights and Humanitarian Law,” 65 BYIL (1994) 383,
at 383-385.
15
   Treaties that fall within this category presumptively include, among others, the International Covenant on Civil
and Political Rights, December 19, 1966, 999 UNTS 171, (1967) 6 ILM 368; the International Covenant on
Economic, Social and Cultural Rights, December 19, 1966, 993 UNTS 3; the International Convention on the
Rights of the Child, November 20, 1989, 28 ILM 1456; the International Convention on the Elimination of All
Forms of Racial Discrimination, January 4, 1969, 660 UNTS 195; the Convention on the Elimination of All Forms
of Discrimination Against Women, December 18, 1979, 19 ILM 33; the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, 1984, (1985) 24 ILM 535; the European Convention on
Human Rights and Fundamental Freedoms, 1950, 213 UNTS 221 [hereinafter ECHR] and the Inter-American
Convention on Human Rights, 1969, (1981) 9 ILM 59.
16
   This is implied in many essays in L.A.N.M. Barnhoorn and K. Wellens (eds), Diversity in secondary rules and the
unity of international law (1995) and, particularly, the contribution by Vierdag, at 138-142.
17
   McNair, “The Functions and Differing Legal Character of Treaties,” 11 BYIL (1930) 100, at 106. See also
Matscher, “Methods of Interpretation of the Convention,” in R. St-J. Macdonald, F. Matscher and H. Petzold (eds),
The European System for the Protection of Human Rights (1993) 66 and Reuter, “Le Traité International, Acte et
Norme,” 32 Archives de philosophie du droit (1987) 117, at 121 (arguing that “It is true to say that the more
pronounced is the legislative nature of the treaty the more it becomes detached from the consensual mechanisms
which gave rise to it, at least as far as interpretation is concerned” (my translations)). It is noteworthy that McNair
focused on the differential application of traditional rules pertaining to the formation, validity, interpretation and
discharge of treaties depending on whether they are characterized as contractual or law-making, and not whether
they deal with a particular subject-matter. He later detracted from his initial stance, stating that “[o]n the whole,
however, this distinction, however attractive, does not appear to have borne much fruit.” See A. McNair, The Law of
Treaties (1961) 366.
18
   See General Comment 24(52), 2 November 1994, 52nd Sess., U.N. Doc. CCPR/C/21/Rev.1/Add.6, at paras. 17-18;
and “First, Second and Third Reports on Reservations to Treaties by Mr. Alain Pellet, Special Rapporteur” in
Yearbook of the International Law Commission, New York, 1995 (UN Doc. A/CN.4/470 (and Corr.1 and 2)); 1996
(UN Doc. A/CN.4/477 and Add.1); 1998 (UN Doc. A/CN.4.491 and Corr.1), respectively. See also L. Lijnzaad,
Reservations to UN Human Rights Treaties: Ratify and Ruin? (1995); Higgins, “Human Rights: Some Questions of
Integrity,” 52 Mil. L. Rev. (1989) 1; Redgwell, “Reservations to Treaties and Human Rights Committee General
Comment No.24 (52),” 46 ICLQ (1997) 390; Shelton, “State Practice on Reservations to Human Rights Treaties,” 1
Can. HR YB. (1983) 205.
19
   See the current work of Pierre-Marie Dupuy on “The Unity of the International Legal Order” which has been
concretized in his manual Droit international public (6th ed., 2002) and in the General Course of Public International
Law delivered at the Hague Academy of International Law in 2000: “L’Unité de l’Ordre Juridique International.
Cours Général de droit international public,” 297 RCADI (2003) 9, at 428-479 in particular. See also Chinkin,
CHRGJ Working Paper No. 2, 2005                                                                            5



question, as posed, is part of a wider ongoing debate within the ILC as to the potential
“fragmentation” of international law—one that has been encouraged by the development of
specific treaty regimes endowed with dispute settlement mechanisms. 20 Yet even if this much
heralded need for differential application of traditional treaty rules depending on the subject
matter of the instruments appears to have been more asserted than proven in reality, it ultimately
raises a broader, more fundamental philosophical debate about the nature of “human rights”
which exceeds the scope of this paper. I propose instead to address this issue from a somewhat
different angle by examining whether there is something peculiar about the interpretative
methodology applied to human rights treaties. 21

A)       A Methodological Challenge to Article 31 of the Vienna Convention on the Law of
         Treaties?

In its most general sense, international legal doctrine is characteristically reticent to recognize the
peculiarities of human rights conventions as a specific class of treaties. International human
rights law, as a subject, is almost universally understood as a distinctive sub-discipline of the
broader, more general, and apparently subject-neutral international law. 22 Of course, like many
other “sub-disciplines,” human rights law may (and by and large does) embody certain



“Human Rights: Specialized Regime or General International Law?,” XI-4 Collected Courses of the Academy of
European Law (2002) (forthcoming) and the observations by Alain Pellet in Société française pour le droit
international, La protection des droits de l’homme et l’évolution du droit international. Colloque de Strasbourg
(1998) 294-298 (“L’unité et la fragmentation du droit international”).
20
   See the ‘Study on the “Function and scope of the lex specialis rule and the question of ‘self-contained regimes’:
Preliminary Report by Mr. Martti Koskenniemi, Chairman of the Study Group”
(ILC(LVI)/SG/FIL/CCCRD.1/Add.1) (unpublished text; on file with the Codification Division of the Office of
Legal Affairs of the United Nations) [hereinafter Koskenniemi Preliminary Report]. See also Koskenniemi,
Fragmentation of International Law. Topic (a): The function and scope of the lex specialis rule and the question of
‘self-contained regimes’: An outline, available at http://www.un.org/law/ilc/sessions/55/fragmentation_outline.pdf .
21
   For the view that there should be a special method of interpretation of human rights treaties, where a provision
thereof is ambiguous, so that a tribunal would resolve doubts in the direction of greater protections for the claimant,
see J.S. Davidson, The Inter-American Human Rights System (1996) 77 et seq.; J.G. Merrils, The Development of
International Law by the European Court of Human Rights (2nd ed., 1993) Chapters 4-5 (on methods of
interpretation and principle of effectiveness); Bernhardt, “Thoughts on the Interpretation of Human Rights Treaties,”
in F. Matscher and H. Petzold, Protecting Human Rights: The European Dimension, Studies in Honour of Gérard J.
Wiarda (1988) 65-71 (arguing that human rights treaties are to be interpreted in an objective and dynamic manner,
to strike a fair balance between individual and community interests); Cançado Trindade, “Coexistence and
Coordination of Mechanisms of Protection of Human Rights,” 202 RCADI (1987) 9, at 91-112 (Part III, The Proper
Interpretation of Human Rights Treaties) (observing that international human rights bodies converge in stressing the
“distinctive character” of human rights treaties, so that their interpretation and coordination of mechanisms for their
imple mentation “cannot operate to the detriment of the individual (alleged victims) concerned,” and that dynamic
and evolutionary interpretation should be favoured); Vasak, “Les Principes Fondamentaux d’Interprétation et
d’Application des Droits de l’Homme,” in G.M. Abi-Saab et al. (eds), Boutros Boutros-Ghali, amicorum
discipulorumque liber: paix, développement, démocratie (vol. 2, 1998) 1417. Buergenthal, “The European and Inter-
American Human Rights Courts: Beneficial Interaction,” in P. Mahoney et al. (eds.), Protecting Human Rights: The
European Perspective (2000) 127.
22
   For commentators taking such an “integrationist” approach in relation to human rights treaties and general
international law, see Caflisch and Cançado Trindade, “Les conventions américaine et européenne des droits de
l’homme et le droit international général,” 108 RGDIP (2004) 5, at 60-61; Cohen-Jonathan, “Cour européenne des
droits de l’homme et droit international général (1998-1999),” 45 Ann. fr. dr. int. (1999) 767, at 767.
CHRGJ Working Paper No. 2, 2005                                                                                6



assumptions and suppositions that demand special recognition. 23 But even while affirming the
“peculiarities” of such sub-disciplines, legal doctrine traditionally maintains a sense of the
similitude of subject areas (human rights, environment, trade, law of the sea, space law, etc.). 24
This is particularly true in relation to those parts of international law regarded as “structural” in
nature such as treaty law.

The diffidence of general international law as regards the so-called “speciality” of human rights
treaties is indeed well- reflected in the provisions of the Vienna Convention on the Law of
Treaties on interpretation. 25 The Convention self-consciously attempts to enunciate principles
that are applicable to all types of treaties (whether bilateral, multilateral, law- making,
contractual, dispositive or constitutive). 26 It does not differentiate in any explicit way between
23
   In recent years, there has been a growing appreciation that the development of human rights norms and processes
must necessarily be reflected in the forms and structures of general international law. The concepts of erga omnes
obligations and jus cogens rules are prime examples of the developments in the structure of international law whose
recognition has been informed by an overriding concern for human rights. The same may be said for the ILC’s work
in relation to state responsibility and state succession, and of the recent state practice in the field of recognition and
(humanitarian) intervention. Yet, some commentators such as Brownlie and Pellet have been quite critical of an
international law which gives too much emphasis on the “speciality” of “human rights law.” See I. Brownlie,
Principles of Public International Law (6th ed., 2003) 529-530 and, from the same author, “Problems of
Specialization,” in B. Cheng (ed), International Law: Teaching and Practice (1982) 109; A. Pellet, “‘Droit de
l’hommisme’ et droit international (‘Human Rightism’ and International Law),” The Gilberto Amado Memorial
Lecture, 18 July 2000 (UN International Law Commission 2000) (unpublished text; on file with the Codification
Division of the Office of Legal Affairs of the United Nations).
24
   See Simma, “International Human Rights and General International Law: A Comparative Analysis,” IV-2
Collected Courses of the Academy of European Law (1993) 163, at 164-165. In the Legality of the Threat or Use of
Nuclear Weapons case, (1996) ICJ Rep. 3, at paras. 24, 27, 34, 37, 51, however, the ICJ resorted to a checkered-
board approach to the various fields within international law.
25
   23 May 1969, 1155 UNTS 331 [hereinafter VCLT]. The text of Article 31 provides:

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comp rise, in addition to the text, including its
preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of
the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and
accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its
provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding
its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
26
   Wessel has recently applied relational contract theory to treaty interpretation and made the interesting claim that
because treaties govern situations of varying levels of interaction between partners with vastly different
relationships, they should not be interpreted according to the same set of rules. See Wessel, “Relational Contract
Theory and Treaty Interpretation: End-Game Treaties v. Dynamic Obligations,” 60 NYU Ann. Surv. Am. L. (2004)
149. The adequacy of the “private law” ethos of such a contractarian theory when dealing with the particular
category of human rights treaties (where, as we shall see, the focus is not on a reciprocal exchange of rights and
CHRGJ Working Paper No. 2, 2005                                                                               7



groups of treaties by reference to their subject matter, 27 nor is any mention made of the
application of treaties to individuals. 28 Instead, flexibility appears to be built into the regime by
means of a liberal use of the qualification that the principles be applied “in the light of” the
object and purpose of the treaty concerned. 29 Thus, as is the case for the interpretation of any
other treaty, the structure of reasoning in human rights interpretation may rest on the following
five bases, each of which corresponds to a well-recognized interpretive canon or strategy:

(1)      the treaty text, associated with the textual or grammatical method which focuses on the
         text itself as the expression of the common will of the parties;

(2)      the legislative history, associated with the subjective or historical method which seeks to
         extract the “real” intentions of the drafters and, consequently, encourages recourse to
         travaux préparatoires;

(3)      the context, associated with the contextual or systematic method which appreciates the
         meaning of terms in their nearer and wider context;

(4)      the object and purpose, associated with the teleological or functional method which
         concentrates on the object and purpose of the treaty and will, if necessary, transcend the
         confines of the text; and

(5)      logic, associated with the logical method which favors rational techniques of reasoning
         and such abstract legal principles as per analogiam, a contrario, contra proferentem,
         ejusdem generis, etc. 30


obligations between States) is in my view questionable; it certainly deserves more extensive consideration on
another occasion. On the classical account of the treaty/contract analogy in interpretation and its limitations, see H.
Lauterpacht, Private Law Sources and Analogies of International Law (1927) 155-181.
27
   P. Malanczuk, Akehurst’s Modern Introduction to International Law (1997) 130; Frankowska, “The Vienna
Convention on the Law of Treaties Before United States Courts,” 28 Va. J. Int’l L. (1988) 281, at 285.
28
   “Third Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur” in Yearbook of the
International Law Commission 1964, vol. II, at 57, New York, 1965 (UN Doc. A/CN.4/SER.A/1964/Add.1
(65.V.2)); Schwelb, “The Law of Treaties and Human Rights,” in M. Reisman and B. Weston (eds), Towards World
Order and Human Dignity: Essays in Honour of Myres S McDougal (1976) 263, at 266-272.
29
   See the observations of the United Kingdom, the United States and France on the Human Rights Committee’s
General Comment 24 on reservations to human rights treaties in 3 (1996) IHRR 261, at 265; 4 (1997) IHRR 6. The
UK, in particular, responded in the following terms: “The United Kingdom does not […] believe that rules different
from those foreshadowed by the International Court and in due course embodied in the Vienna Convention on the
Law of Treaties are required to enable the international community to cope with reservations to human rights
treaties. The correct approach is rather to apply the general rules relating to reservations laid down in the Vienna
Convention in a manner which takes full account of the particular characteristics of the treaty in question.” See 3
(1996) IHRR 261, at 261-261, para. 4. See also Bernhardt, supra note 21, at 70-71.
30
   This classification corresponds to a large extent to the current state of international law on the subject. See Jacobs,
“Varieties of Approaches to Treaty Interpretation: With Special Reference to the Draft Convention on the Law of
Treaties Before the Vienna Diplomatic Conference” (1969) 18 ICLQ 318; E. Yambrusic, Treaty Interpretation:
Theory and Reality (1987); Sinclair, “Vienna Conference on the Law of Treaties,” 19 ICLQ (1970) 47, at 61;
McNair, The Law of Treaties, supra note 17, at 343;. The so-called method of “restrictive interpretation” is not,
however, among the interpretive methods accepted in international law and is not supported by the VCLT. On this
point, see I. Brownlie, Principles of Public International Law (5th ed., 1998) 636. For the most influential American
contribution to the literature, see McDougal et al., supra note 2.
CHRGJ Working Paper No. 2, 2005                                                                            8



From a purely rational point of view or one of analytic logic, it may happen that when
interpreting a human rights treaty contradictory arguments arise within each of these five
categories (for example a textual argument opposed to another textual argument) or between one
category and another (for example a textual argument opposed to an historical one). 31 A so-
called methodology of “human rights accounting,” if I may use this expression, would suggest to
attribute a numerical value (positive or negative) to each of the arguments within a single
category and then make the sum of these values to obtain a “result by category”: thus, for
instance, in the “historical” category, the sum may give a negative result, namely a dominating
argumentative force against one party’s position. Each category would then see itself attributed a
“coefficient of relevance,” in other words a numerical value expressing its importance in the
final decision. Each “result by category” would then be multiplied by the coefficient of relevance
belonging to it to obtain the “composed result by category.” It would finally be necessary to
make the sum of all these “composed results by category” to determine what is the decision to be
made; a positive sum would signify the victory of one party while a negative sum, that of the
other.

This conceptualization of human rights treaty interpretation would make it however impossible
for the interpreter to make the decision he has to render. Indeed, the axial paradigm referred to
above can be mentally represented as follows: an argument of a certain type can logically meet
an opposing argument only if the latter is of the same type. Yet depending on the criterion
retained to operate a classification (reason or morality, for example), the conclusion stemming
from an argumentative axis A may be that it is rational to do X whereas the one taken from an
argumentative axis B, that it is unjust to do so.32 One cannot logically compare these two
arguments unless one knows in relation to what he compares them. If reason, for example, is the
element of reference, a “Kantian” objection to the effect that torturing someone to elicit
information that may save thousands of lives in danger is immoral could not frustrate the
conclusion that it is rational. But such an objection may be relevant in the decision concerning
the legality of this act. Thus, when the interpreter asks himself which construction he or she will
give to a particular provision, the se argumentative axes become confused and intermingled.

Quite apart from the difficulty of knowing by virtue of which criterion an argument would be
better than another or a category more important than another, such “balancing”33 does not at all
appear to be contemplated by Article 31 of the VCLT. The work of the ILC rather seems to
suggest that the interpreter weighs one type of argument having in mind all the others and, after
having made the necessary trade-offs to maintain the coherence of the whole, makes them
converge in the same direction. 34 As Fallon writes, albeit regarding a “constructivist coherence
theory” of U.S. constitutional interpretation:

31
   McNair, The Law of Treaties, supra note 17, at 365.
32
   The potential for conflicting arguments to arise in such cases is well-illustrated by the recent discussions on the
question whether the prohibition against torture or cruel, inhuman and degrading treatment or punishment precludes
resort to aggressive techniques of interrogation to elicit information which would potentially disclose the existence
of a threat of a “terrorist attack” on an entire community. On this tension, see the article by Alan Gewirth, “Are
there Absolute Rights?,” 31 no. 122, The Philosophical Quarterly (1981) 1.
33
   This is how Fallon qualifies the process of constitutional interpretation in U.S. constitutional law. Fallon, “A
Constructivist Coherence Theory of Constitutional Interpretation,” 100 Harv. L. Rev. (1987) 1189, at 1228.
34
   Hilary Putnam thus states regarding the readjustment of meaning: “[a]s Quine puts it, truth by stipulation is not an
enduring trait of sentences. When the statements in our network of belief have to be modified, we have ‘trade-offs’
CHRGJ Working Paper No. 2, 2005                                                                               9




         [a] provisional conclusion may be reached as to the balance of argument within each
         factor; perhaps more commonly, the decision making process will have a gestalt- like
         quality, in which each category is considered with all of the others in mind. But if the
         conclusions fail to cohere into a uniform prescription for how the case or issue ought to
         be resolved, then one or all of the individual conclusions may be re-examined, and the
         results adjusted insofar as plausible within the prevailing conventions of constitutional
         analysis, in an effort to achieve a uniform outcome. 35

There can indeed be no doubt in my mind as to the relative position which Article 31 and its
travaux préparatoires attribute to the “ordinary meaning of the words” and the other means of
interpretation in that provision. 36 Their parity and unity within each paragraph, and within the
article as a whole, is stressed by the manner in which all four paragraphs are linked together, and
by the use of the singular in the title “General Rule of Interpretation.”37 No one single means
dominates the others and the order chosen in Article 31 is that of logic, proceeding from the
intrinsic to the extrinsic, from the immediate to the remote, the “ordinary meaning” being merely
a natural starting point. 38 In this sense, the rules of treaty interpretation give us no constructive
guidance as to the attitude a judge will take when confronted with a particular interpretation
problem. 39 The suitability of the various means of interpretation for use in any given case will
hinge on a variety of considerations which first have to be subjectively appreciated by the
interpreter of the document: the particular arrangement of the words and sentences, their relation
to each other and to the other parts of the document, the general nature and subject matter of the
document, the circumstances in which it was drawn, etc. 40 The ILC Commentaries on the Draft
Articles provisionally adopted at the Vienna Conference in 1966 absolutely confirm these views:

         The Commission … intended to indicate that the application of the means of
         interpretation in the article would be a single combined operation. All the various
         elements as they were present in any given case, would be thrown into the crucible, and
         their interaction would give the legally relevant interpretation … the Commission desired
         to emphasize that the process of interpretation is a unity and that the provisions of the
         article form a single, closely integrated rule. 41

to make; and what the best trade-off is in a given context cannot be determined by consulting the traditional
‘definitions’ of terms .” See H. Putnam, Representation and Reality (1988) 10 (emphasis added).
35
   Fallon, supra note 33, at 1240. The author’s comments on the judicial process of constitutional interpretation are
equally relevant to the interpretation of human rights treaties, for both involve the construction of broadly worded
propositions of law tending to guarantee minimum rights and liberties to individuals.
36
   Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur le droit des traités,” 151 RCADI (1976-
III) 1, at 26.
37
   Report of the International Law Commission on its eighteenth session, 4 May to 19 July 1966 (UN Doc.
A/6309/Rev.1) in Yearbook of the International Law Commission, 1966, vol. II, at 219, para. 8 and 221, para. 12.
See also the comments of Mr. Reuter, ibid., vol. I, Part 2 at 188, para. 39 and 195, para. 21; Mr. de Luna, ibid., vol.
I, Part 2 at 185, para. 6 and Mr. Rosenne, ibid., vol. I, Part 2 at 186, para. 22.
38
   Report of the International Law Commission on its eighteenth session, vol. II, ibid., at 220, para. 9. See also the
comments of Mr. Reuter, ibid., vol. I, Part 2, at 188, para. 38 and Mr. Yasseen, ibid., vol. I, Part 2, at 197, para. 50.
39
   Sinclair, supra note 5, at 114.
40
   See P. Reuter, Introduction to the Law of Treaties, trans. by J. Mico and P. Haggenmacher (1989) 76, para. 148;
C. de Visscher, Problèmes d’interprétation judiciaire en droit international public (1963) 70.
41
   Report of the International Law Commission on its eighteenth session, vol. II, supra note 37, at 218, 219, para. 8,
220, para. 11. See also the comments in the ILC of Special Rapporteur Waldock, ibid., vol. I, Part 2, at 267, at para.
CHRGJ Working Paper No. 2, 2005                                                                            10




The Vienna Convention rules on interpretation do not therefore reflect an attempt to assess the
relative value and weight of the various elements to be taken into account in the process of
interpretation but rather to describe that process itself. We can further see how, at least in theory,
the process of human rights treaty interpretation, far from being the accounting of raw
interpretive data or the prioritization of certain interpretive means over others is in reality a
holistic construct. This is precisely what I wish to illustrate in the next section by looking at
certain examples, arguably some of the most significant, drawn from human rights jurisprudence.
The purpose of this exercise is to counter two propositions: (1) that in actual fact, states and
courts have come to see in Article 31 a predominance of the treaty text and a relatively
subsidiary position of other interpretive means which will be weighed against each other and
employed at the discretion of the interpreter, namely if the treaty text is not clear; 42 and (2) that
in the case of human rights treaties, courts have essentially relied on a teleological interpretation
so as to empower individuals. 43 The question of whether a special régime in the interpretation of
human rights treaties has emerged in practice arises here as Article 5 of the VCLT provides that
general rules of treaty interpretation apply without prejudice to the “rules of the organization”
within which these treaties have been adopted, which also include the practice of the
organization’s organs. It should be understood however that my analysis here will be intra-
systemic and thus will not leave the confines of the classical legal system. It is only in the third
part of this paper that I will attempt to push things further on the epistemological level and make
this system explode, so to speak.

B)      A “Special” Régime in Treaty Interpretation?: A View from within the Judiciary

International human rights tribunals devote the essence of their time at making value judgments
on intractable questions about the human condition, in the sense that the latter are ontologically
refractory to deductive logic reasoning. One can even say that if such questions find their way
before these tribunals, it is more often than not precisely because they have no answer upstream
from the decision to be rendered. The general tendency detected on the part of these courts is to
infuse human rights treaties with beliefs, biases, blind spots and prejudices about what it means




96 and of Mr. Rosenne, Briggs, Ago, Jiménez de Aréchaga, de Luna, Reuter, El-Erian, Tsuruoka and Yasseen, ibid.,
vol. I, Part 2, at 186-198. Many authors who participated as delegates of their countries in the 1968-1969 Vienna
Conference on the Law of Treaties share this view in their writings. See Yasseen, supra note 36, at 74-75; Sinclair,
supra note 5, at 73-76; Reuter, ibid., at 73-77; T.O. Elias, The Modern Law of Treaties (1974) 74-75. See also S.
Sur, L’interprétation en droit international public (1974) 273.
42
   This view is defended, among others, by M.E. Villiger, Customary international law and treaties (1985) 337 and
references therein, and V.D. Degan, L’interprétation des accords en droit international (1963) 25-48. Richard Falk
has criticized the ILC articles on treaty interpretation in that their so-called “textual predisposition” rests on “an
essentially misleading view of language and communication.” See Falk, “On Treaty Interpretation and the New
Haven Approach: Achievements and Prospects,” 8 Va. J. Int’l L. (1967) 323, at 343. See also McDougal, “The
International Law Commission’s Draft Articles upon Interpretation of Treaties: Textuality Revividus?,” 61 AJIL
(1967) 992 and McDougal et al., supra note 2, at 223 et seq.
43
   See for example, Wachsmann, “Les méthodes d’interprétation des conventions internationales relatives à la
protection des droits de l’homme,” in Société française pour le droit international, La protection des droits de
l’homme et l’évolution du droit international. Colloque de Strasbourg (1998) 171-174, 186; and Simma, supra note
24, at 184-193.
CHRGJ Working Paper No. 2, 2005                                                                            11



to be a “human being.”44 Because of the inherent subjectivity of any judicial system designed to
regulate and mediate relations between individuals and the state, it is of utmost importance to
take a step back and subject international human rights decisions to a searching scrutiny, to ask
hard questions about their tendencies to emphasize certain interests, exalt particular groups and
order society in predetermined or preconceived ways. 45 The reasoning process underlying the
various decisions and discourses of these courts—ways of framing, conceptualizing and talking
about human rights in treaty interpretation—must therefore be examined.

In many ways, the rich case law of the European Court of Human Rights (“ECtHR”) on the
interpretation of the ECHR provides an interesting lens through which to analyze this process.
Indeed, the Court’s jurisprudence has recognized the importance of the special nature of the
Convention obligations and has interpreted and applied a number of its substantive and
procedural provisions accordingly. 46 This has become possible through the use of methods of
treaty interpretation in specific ways, dictated by the character of the Convention obligations
and, as a corollary, a particular conception by the Strasbourg organ of its judicial role in relation
to it. 47 The Court’s approach to the interpretation and application of the Convention thus raises
questions of legal hermeneutics far more complex than one might at first suppose, and it might
be fair to say that in this respect the Court has on occasion carried out its task in a somewhat
over-simplified manner. Having said that, casting our juristic gaze on the ECtHR cannot
dispense us on a later day from a critical analysis of decisions of other tribunals engaged in
human rights adjudication, and from an investigation whether the interpretive process
characteristic of ECtHR decisions can be generalized. 48

44
   See the advisory opinions of the Inter-American Court of Human Rights (IACtHR) cited by Wachsmann, which
clearly illustrate the adherence by the Court to a natural law philosophy of individual liberalism. See ibid., at 173-
174.
45
   See generally, Kennedy, “The International Human Rights Movement: Part of the Problem?,” 15 Harv. Hum. R J.
(2001) 101.
46
   In Ireland v. United Kingdom, ECHR (1978), Series A, No. 25, at 90-91 (para. 239); 58 (1980) ILR 188, at 291,
the ECtHR thus emphasized that “[u]nlike international treaties of the classical kind, the Convention comprises
more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual,
bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘collective
enforcement.’”
47
   In Wemhoff v. Germany, ECHR (1968), Series A, No. 7, para. 8, the Court indeed held that it was necessary “to
seek the interpretation that is most appropriate in order to realize the aim and achieve the object of the treaty, not
that which would restrict to the greatest possible degree the obligations undertaken by the Parties.” In Loizidou v.
Turkey (Preliminary Objections), (text reproduced in 38 Yearbook of the European Court of Human Rights (1995)
245, 16 Human Rights Law Journal (1995) 15, the Court further stated at 23, paras. 71-72:
“… 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.”
On the so-called technique of “evolutive treaty interpretation”—that the interpretation of a text should follow
evolving tendencies in State and society—and the judicial role in human rights treaty interpretation, see Bernhardt,
“Evolutive Treaty Interpretation, Especially of the European Convention of Human Rights,” 42 Germ. Y.B. Int’l L.
(1999) 14, at 22; Jacot-Guillarmod, “Règles, méthodes et principes d’interprétation de la Cour européenne des droits
de l’homme,” in L.-E. Pettiti, R. Decaux and P.-H. Imbert, La Convention européenne des droits de l’homme.
Commentaire article par article (1995) 41.
48
   That the ECtHR’s approach is not an idiosyncratic aspect of the ECHR is suggested by the parallel attitudes
                                       an
within the IACtHR and the UN Hum Rights Committee. See on this point, Waschsmann, supra note 43. On the
similarity of developments in the case law of the two regional human rights tribunals, see Gros Espiell, “La
Convention américaine et la convention européenne des droits de l’homme. Analyse comparative,” 218 RCADI
(1989) 167, at 376-381; Bernhardt, supra note 21, at 65.
CHRGJ Working Paper No. 2, 2005                                                                              12




1.       Bias in international human rights law: a conceptual sketch

Before moving to specific examples of holism and bias at work in the case law of the ECtHR, 49
let me first explain what I mean by the latter term. The genesis of my thinking about how bias
permeates the judic ial process of human rights treaty interpretation derives from my reading of
French social theorist Roland Barthes’ Eiffel Tower essay. 50 In some, perhaps trivial sense, all
discourse (and thinking for that matter) is biased in favor of one group, party, person, or identity,
usually but not necessarily in favor of the interpreter, the client, or the special interest being
represented. Like Barthes’ inhabitant of Paris ascending the Eiffel Tower, international lawyers
and academics exist within the structural constraints and presuppositions of the international
legal regime. 51 Once the sightseer attains the summit and looks down from the tower’s apex,
there is a transformation of the landscape. The city of Paris is seen in a particular way, an
idiosyncratic vie wing, mediated by the viewer’s position within the tower, its height, location
and, most importantly, by the experience of the viewer as a person “inside” the tower’s structure.

In much the same way, the judge- interpreter is conditioned to see the “territory” of international
human rights law in preconditioned, predetermined and idiosyncratic ways. As Barthes
comments, the viewer upon looking over the city landscape expects to see certain landmarks,
anticipates seeing the historical Paris populated with va rious indicators and remembrances of the
city’s past. 52 When, for some reason, the landmarks are not present, invisible, obscured or
otherwise not apparent, the mind of the viewer necessarily “fills in” the gaps created by the
lacunae of his experience. This is a natural process, an automatic and usually unnoticed and
subconscious one, whereby our experience is made whole by the insertion of our fantasies. Our
fantasy of the perceived Paris is made to match the reality of the expected Paris, the pre-existing
Paris residing like a spectre of normalcy beneath the curtain of our conscious minds.

Through the thought-experiment of Barthes, we can therefore see the manifestation of non-trivial
bias. This bias is (usually) unseen and unappreciated by the speaker and this is where difficulties
arise. More than that, it is here that the discourse of international human rights law can become
dangerous and counterproductive. In fact, actors within the international community, within the
matrix of international human rights law, can confront their prejudices which exist for them
outside the tower, but are generally prevented from confronting such prejudices which exist
instead as a priori constructs part and parcel of the tower’s structure. This is so because the

49
   The difficulty of carrying out such a task should not be underestimated. This is so because the Court’s case-law is
largely casuistic and only occasionally contains statements capable of general application. Further, the Convention
institutions rarely disclose the methods of interpretation they have used. This, arguably, is a consequence of both the
“judicial self-restraint” followed by the Court and the fact that considerations of legal doctrine play a much smaller
part in Strasbourg case-law than they do in domestic law. See on this point, van der Meersh, “Les méthodes
d’interprétation de la Cour européenne des droits de l’homme,” in D. Turp and G. Beaudoin (eds), Perspectives
canadiennes et européennes des droits de l’homme. Actes des journées strasbourgeoises de l’Institut canadien
d’études juridiques supérieures (1986) 192; F.G. Jacobs, The European Court of Human Rights (1975) 15.
50
   R. Barthes, A Barthes Reader (1983) 236.
51
   See generally, Kennedy, “The Disciplines of International Law and Policy,” 12 Leiden J. Int’l L. (1999) 1. Philip
Allott similarly argues that the international system is one of “international aristocracy” in which bureaucrats and, to
a lesser extent, academics try to invent rules and principles for all to advance their own projects. See Allott, “Kant or
Won’t: Theory and Moral Responsibility,” 23 Review of International Studies (1997) 339.
52
   Barthes, supra note 50.
CHRGJ Working Paper No. 2, 2005                                                                                 13



perception of “outside” bias is often achieved when there is temporal distance between the usage
of a rule and its formation. When enough time has passed and society has changed, it becomes
easier to recognize the biases inherent in, for example, the international legal rules supporting
colonialism, slavery or the slave trade. The orthodoxies of preceding generations can thus
become the heresies of their successors. 53

Bias, however, can also be discerned more readily when there is a plurality of voices clamoring
for attention. There is, therefore, perhaps a better chance to uncover biases and blind spots when
a variety of alternative narratives are competing to tell the story of international human rights
law, as opposed to a narrow range of “official” stories which are received without questioning
and perceived as authoritative doctrine. 54 In this sense, the chances for achieving a more
unbiased, just and fair conception of international human rights law has arguably been increased
in modern times by the more recent, latest incarnation of this body of law. As it moves from a
monolithic, top-down, rules-based model to a more circular, bottom- up, sociological conception,
international human rights law becomes more porous, transparent and amenable to change, as
more voices are raised and more perspectives explored and integrated into one’s own web of
inter-connecting relationships and beliefs.

2.       Holism and bias in the “European Human Rights Tradition”

Let us now turn to an examination of how the judicial process of human rights treaty
interpretation operates in the practice of the ECtHR. But first, a caveat. I am aware that from the
point of view of a general theory of law, one could object generally to the interpretive
methodology of the ECtHR on the ground that the individual techniques used are not all methods
of interpretation, but rather ways of incorporating certain specific criteria in interpretation, or
more tendencies in interpretation; it is, indeed, not altogether possible to classify these criteria in
terms of the classic canons of interpretation described above. 55 However, and contrary to the

53
   As Charles Taylor has noted, groups, like individuals, construct their identities—their self-worth and self-
conceptions—based largely on others’ recognition or absence thereof. A people’s search for recognition may
therefore be described in a way as a mirror created and maintained by the international community upon which the
group can view their own identity and reality. See Taylor, “The Politics of Recognition,” in A. Gutmann (ed),
Multicultarism: Examining the Politics of Recognition (1994) 25 and also Howard, “Dignity, Community and
Human Rights,” in A. An-Na’im (ed), Human Rights in Cross-Cultural Perspective (1991) 81. Hence the
importance of uncovering biases in the discourse of international human rights law is fundamental to allowing
groups and individuals to fully develop and evolve because their development and actualization is not dependent
merely on their own actions and perceptions alone.
54
   It is the pretension of universalist liberalism to restrain polivocality by giving to one voice a pervasive authorial
function. The discovery of the fact of discursive partiality, for its part, has come to be progressive. It is to recognize,
to borrow the words of cultural anthropologist James Clifford, that “[…] there is no longer any place of overview
(mountaintop) from which to map human ways of life, no Archimedian point from which to present the world.
Mountains are in constant motion.” See J. Clifford (ed), Writing Culture. The Poetics and Politics of Ethnography
(1986) 22. See also Koskenniemi, “Legal Universalism: Between Power and Morality in the World of States,” in S.
Cheng (ed), Law, Justice and Power. Between Reason and Will (2002) 63 (cautioning that the universalist voice of
human rights, which should undoubtedly be heard, may also echo imperial concerns, and even more so when it is
spoken from high positions in institutions that administer flexible standards that leave the final decision always to
those speakers themselves).
55
   For a view defending the technique of evolutive interpretation using the interpretative methods of the VCLT, see
Sörensen, “Les droits inscrits en 1950 dans la CEDH ont-ils la même signification en 1975?,” in Actes du 4ème
Colloque international sur la CEDH (1976) 88 et seq.
CHRGJ Working Paper No. 2, 2005                                                                               14



wealth of literature existing on the topic (to which it would simply be impossible to refer here in
any detail), my intention is not to offer a systematic analysis of the interpretative methods used
by the Court, but rather to demonstrate in a purely empirical and descriptive manner how the
Court goes about interpretation of the ECHR. This descriptive work will be useful not only to the
task of formulating an answer to the question posed in the introduction to this article, but also to
my concluding reflections in Part 3, which are nourished by epistemology.

         2.1.     The case of Golder

A first fascinating case, and perhaps one of the most controversial ones ever decided by the
Court, is Golder v. United Kingdom.56 In that case, the Court had to determine the proper scope
of Article 6(1) of the Convention, which provides in part:

         In the determination of his civil rights and obligations or of any criminal charge against
         him, everyone is entitled to a fair and public hearing within a reasonable time by an
         independent and impartial tribunal established by law ….

Prima facie, this provision would appear to guarantee certain defined procedural safeguards for
persons engaged in national court proceedings when such proceedings are admitted and opened
in and by national law. This is the first textual argument. The alternative, assuredly weaker
argument is that the provision confers a right of access to the courts. It is noteworthy that in its
strict terms, the provision does not provide for the latter option. Nevertheless, the Court decided
to retain it. After stating its willingness to apply the rules set out in Articles 31 to 33 of the
VCLT, it clarified the holistic nature of the interpretive process mandated by the Vienna
Convention. 57 But what is more interesting is that the Court went beyond merely paying lip
service to this descriptive statement and applied it to its reasoning in the case. This can be
illustrated by a few salient passages from the judgment.

First, the Court exposed what it believed to be the ordinary meaning of the terms of Article 6(1)
in their context by observing that the provision “enumerates rights which are distinct but stem
from the same basic idea and whic h, taken together, make up a single right not specifically
defined in the narrower sense of the term.” 58 Its duty was to ascertain by means of interpretation
whether access to the courts constituted one factor or aspect of this right. 59 The Court went on to


56
   ECHR (1975), Series A, No. 18, (1975) 57 ILR 201.
57
   Ibid., at 214. According to Ost, the judgment in Golder was the one where “se met en place, de façon explicite,
une doctrine générale de l’interprétation.” See Ost, “Originalité des méthodes d’interprétation de la Cour européenne
des droits de l’homme,” in M. Delmas-Marty (ed), Raisonner la raison d’État. Vers une Europe des droits de
l’homme (1989) 410. Similarly, the IACtHR has explained:
“This method of interpretation respects the principle of the primacy of the text, that is, the application of objective
criteria of interpretation. In the case of human rights treaties, moreover, objective criteria of interpretation that look
to the texts themselves are more appropriate than subjective criteria that seek to ascertain only the intent of the
Parties.”
See Restrictions to the Death Penalty (Arts. 4(2) and 4(4) of the American Convention on Human Rights), Advisory
Opinion OC-3/83, September 8, 1983, Inter-Am. Ct. H.R. (Ser. A) No. 3 (1983), at para. 50.
58
   Golder, ibid., at 213.
59
   Ibid. This is not entirely wrong, but prompts the following questions, as Judge Fitzmaurice perceptively noted in
his dissenting opinion (at 246, footnote 18): “What is the basic idea from which the enumerated rights stem?” and
CHRGJ Working Paper No. 2, 2005                                                                              15



deal with the argument advanced by the Government of the United Kingdom that the expressions
“fair and public hearing” and “within a reasonable time” clearly presupposed proceedings
pending before a court. Here, the Court relied on pure logic and rational thinking, stating that
“[w]hile the right to a fair, public and expeditious judicial procedure can assuredly apply only to
proceedings in being, it does not, however, necessarily follow that a right to the very institution
of such proceedings is thereby excluded.” 60 The Court further noted that the Preamble of the
Convention states the resolve of the signatory Governments having a common heritage of
political traditions, ideals, freedom and the rule of law “to take the first steps for the collective
enforcement of certain of the rights stated in the Universal Declaration of Human Rights.”
Despite the fact that the preamble did not include the rule of law in the object and purpose of the
Convention, but simply pointed to it as one of the features of the common heritage of the
Member States of the Council of Europe, the Court sought to utilize this reference in the
interpretation of Article 6(1). 61 Finally, it observed that the principle whereby a civil claim must
be capable of being submitted to a judge, as well as the one forbidding the denial of justice,
ranked as two of the universally “recognized” fundamental principles of law, and found that
Article 6(1) must be read in light of these principles. 62 Seeing no need to examine the travaux
préparatoires, it conc luded:

         It would be inconceivable … that Article 6 para. 1 (art. 6-1) should describe in detail the
         procedural guarantees afforded to parties in a pending lawsuit and should not first protect
         that which alone makes it in fact possible to benefit from such guarantees, that is, access
         to a court. The fair, public and expeditious characteristics of judicial proceedings are of
         no value at all if there are no judicial proceedings.

         Taking all the preceding considerations together, it follows that the right of access
         constitutes an element which is inherent in the right stated by Article 6 para. 1 (art. 6-1).
         This is not an extensive interpretation forcing new obligations on the Contracting States:
         it is based on the very terms of the first sentence of Article 6 para. 1 (art. 6-1) read in its
         context and having regard to the object and purpose of the Convention, a lawmaking
         treaty (see the Wemhoff judgment of 27 June 1968, Series A no. 7, p. 23, para. 8), and to
         general principles of law. 63

At risk of sounding ove rly critical, the argument in the first paragraph of this citation is not one
which is logically compelling. 64 The three judges dissenting on this point certainly saw the

“What is meant by the allusions to a definition ‘in the narrower sense of the term’? Narrower than what? And what
would be the ‘broader’ sense?.”
60
   Ibid., at 215. On this passage, it is difficult to deny the force of Judge Fitzmaurice’s following comment in his
dissenting opinion: “The judgment also abounds in the type of logical fallacy that derives B from A because A does
not in terms exclude B. But non-exclusion is not ipso facto inclusion. The latter still remains to be demonstrated.”
See ibid., at 249.
61
   Ibid., at 217. Judge Fitzmaurice pointed out that the reference to “first steps” and “certain rights” in the preamble
convey a compelling implication that the right of access to the courts would not necessarily be included among the
rights protected by the Convention: Ibid., at 256. For a trenchant criticism of the decision of the ECtHR in the
Golder case, see Mann, “Britain’s Bill of Rights,” 94 L.Q.R. (1978) 512.
62
   Golder, ibid., at 218.
63
   Ibid. (emphasis added).
64
   As Judge Fitzmaurice perceptively noted in his dissenting opinion: “It might perhaps seem natural that procedural
guarantees of this kind should ‘first’ be preceded by a protection of the right of access: the fact remains that, in
CHRGJ Working Paper No. 2, 2005                                                                              16



decision as a step of major significance and gave a number of reasons for thinking that in reading
a right of access to justice into Article 6(1), the Court had engaged in judicial legislation. 65

My present remarks do not aim however at criticizing or being ironical about the Court’s
decision. Rather, I simply want to bring out the holistic aspect of the Court’s interpretation and
highlight the fact that it is hardly in analytical or logico-deductive terms that it presents itself but
rather as an approach where all is in all and where it is less the parts that make up the whole than
the converse. Here, it appears to me that it is really around the argument based on the
Convention’s preamble that everything revolves. The Court made the necessary adjustments so
that the other arguments went in the same direction as its bias in the specific case in favor of
effective collective enforcement of the basic human rights of individuals. This argument
obviously colors the textual argument and gives legitimacy both to the argument based on the
“ordinary meaning of the terms in their context” and to the one based on logic and rational
choice: in the first case, by suggesting implicitly that there is an underlying idea of “fairness to
the individual” from which all enumerated and non-enumerated rights in Article 6(1) stem; in the
second case by suggesting—here expressly—that if Article 6(1) were to exclude the right of
access to courts, it would be open to a State to abolish its courts altogether. 66 Certainly, to read a
right to access to courts in a provision by means of reference to “clues” of the desirability of its
existence derived from other parts of the Convention is not that common and can uneasily rest on
the text of Article 6(1):67 it is a mix of textual, contextual, teleological, logical and (perhaps)
pragmatic approaches. 68

         2.2.     The case of Johnston




terms, they are not, and that the inference that they must be deemed so to be is at best a possible and in no way a
necessary one; - for it is a perfectly conceivable situation that a right of access to the courts should not necessarily
always be afforded, or should be limited to certain cases, or excluded in certain cases, but that where it is afforded
there should be safeguards as to the character of the ensuing proceedings.” See ibid., at 247.
65
   The thrust of their argument was that according to the Preamble, the Contracting States had drawn up the
Convention to protect “certain of the Rights stated in the Universal Declaration,” those being, according to Article 1,
“the rights and freedoms defined in Section 1 of the Convention.” It followed that the Court’s powers were limited
to the application of the rights as so defined and could not be extended to other unstated rights by means of what
Judge Verdross called “clues” to their existence derived from other parts of the Convention. See ibid., at 224. It is
important to note that this approach did not have the effect of excluding the possibility of implied rights altogether,
for, as one judge stated, rights which were necessary inferences could be implied. This, however, leaves open the
question of which inferences are “necessary” in a given case.
66
   Golder, supra note 56 at 217.
67
   The Court’s reasoning is one that not only infects how we think o f human rights treaties as “treaties,” but also
how we think of the human rights contained therein. Is, for example, a violation of an individual right to be
determined by the extent to which it offends a naturalistic notion of “human dignity,” or by non-compliance with
specifically defined legal obligations? Are we, in other words, able to speak about hunger or poverty as a violation
of human rights per se, or only to the extent that it is linked to a failure to comply with specific conventional
obligations? A similar disjunction between rights and obligations is apparent in case where state obligations appear
to exceed the “naturalistic” content of the right concerned, for example in cases of reparation for violation of the
right to life.
68
   For other cases where the Strasbourg court has found unstated rights in the ECHR based on similar reasoning, see
Dudgeon v. United Kingdom, ECHR (1981), Series A, No. 45 (consenting adult homosexuality) and Campbell v.
United Kingdom, ECHR (1982), Series A, No. 48 (corporal punishment of schoolchildren).
CHRGJ Working Paper No. 2, 2005                                                                           17



A second interesting case, but where the Court adopted an approach contrary to the one taken in
Golder, is Johnston v. Ireland. 69 The issue there was whether a right to divorce could be deduced
from Article 12 of the Convention (“right to marry and found a family”). It had been argued that
the Convention and its protocols had to be interpreted in light on present day conditions in
Members States. Yet, having examined the travaux préparatoires of the Convention which
indicated a deliberate omission of this right, 70 the Court found that it “cannot, by means of an
evolutive interpretation, derive from these instruments a right that was not included therein at the
outset.”71 It then went on to consider Article 8 of the treaty (the right to private and family life):

         Article 8, with its somewhat vague notion of “respect” of family life, might appear to
         lend itself more readily to an evolutive interpretation than does Article 12. Nevertheless,
         the Convention must be read as a whole and the Court does not consider that a right to
         divorce, which it has found to be excluded from Article 12, can, with consistency, be
         derived from Article 8, a provision of more general purpose and scope. 72

Thus, having concluded that a right to divorce had been deliberately excluded from Article 12
(argument based on the travaux préparatoires), the Court was cautious not to reintroduce it
through the back door, if I may say so. Here, the textual argument was aligned on the other
arguments, namely those based on the object and purpose of the treaty (teleological argument),
the legislative history (historical argument) and the coherence of the entire document (contextual
argument), and the Court made the necessary adjustments. Considering that the Court had
followed the opposite reasoning in Golder more than ten years earlier—though in both cases it
applied a holistic approach to interpretation—this case illustrates well in my view the plasticity
of human rights adjudication. 73

         2.3.    The case of Tyrer and Article 3 of the ECHR

The colorability of a treaty text in the presence of a hard case is also well- illustrated by Tyrer v.
United Kingdom.74 The question there was whether the birching (corporal punishment) of a
juvenile delinquent in the Isle of Man violated Article 3 of the ECHR, which protects individuals
against “torture or inhuman or degrading treatment or punishment.” Having concluded that the
facts of the particular case did not reveal that the applicant underwent suffering of the level
inherent in the notions of “torture” and “inhuman punishment,”75 the Court turned to the question
whether he was subjected to a “degrading punishment.” It first rejected the textual or
grammatical argument, stating: “[i]t would be absurd to hold that judicial punishment generally,
by reason of its usual and perhaps almost inevitable element of humiliation, is ‘degrading’ within



69
   Judgment of 18 December 1986; (1987) 9 EHRR 203.
70
   Ibid., at para. 52.
71
   Ibid., at para. 53.
72
   Ibid., at para. 57.
73
   Without this “movement” of detraction from the approach adopted in Golder, the Court would have to have
admitted, at least implicitly, that it is occupying a high ground from which it could afford some “objectivist”
interpretation.
74
   ECHR (1978), Series A, No. 26; (1979-1980) 2 EHRR 1.
75
   Ibid., at para. 29.
CHRGJ Working Paper No. 2, 2005                                                                               18



the meaning of Article 3 (art. 3).”76 This led the Court to read into that provision the following
criterion:

         … in order for a punishment to be “degrading” and in breach of Article 3 (art. 3), the
         humiliation or debasement involved must attain a particular level and must in any event
         be other than that usual element of humiliation referred to in the preceding subparagraph.
         The assessment is, in the nature of things, relative: it depends on all the circumstances of
         the case and, in particular, on the nature and context of the punishment itself and the
         manner and method of its execution.77

What is significant however in the Court’s interpretative methodology is that after opting for an
evolutive interpretation and proposing the oft-cited metaphor of the Convention as “a living tree
which must be interpreted in the light of present-day conditions,”78 it returned immediately to the
text of Article 3. Without even conceding that it was no longer making an evolutive reading of
that provision, and without paying attention to the Attorney General’s arguments about the
manner and method of execution of the birching inflicted on the applicant—despite its pledge
that it must consider all the circumstances of the applicant’s punishment, 79 the Court stated:

         The very nature of judicial corporal punishment is that it involves one human being
         inflicting physical violence on another human being. Furthermore, it is institutionalised
         violence, that is in the present case violence permitted by the law, ordered by the judicial
         authorities of the State and carried out by the police authorities of the State … Thus,
         although the applicant did not suffer any severe or long-lasting physical effects, his
         punishment —whereby he was treated as an object in the power of the authorities—
         constituted an assault on precisely that which it is one of the main purposes of Article 3
         (art. 3) to protect, namely a person's dignity and physical integrity. Neither can it be
         excluded that the punishment may have had adverse psychological effects. 80

As Judge Fitmaurice remarked in his dissenting opinion, the Court’s ultimate conclusion that the
“level” of “humiliation or debasement involved” was attained in the punishment inflicted on the
applicant when he was a boy was not in fact—though it purported to be—related to the actual
circumstances of the punishment; it rather amounted to a finding that any judicial corporal
punishment meted out to a juvenile inherently involves, as such, an unacceptable level of



76
   Ibid., at para. 30. Judge Fitzmaurice drew attention in paragraph 12 of his Separate Opinion in the Ireland v.
United Kingdom case, supra note 46, to the fact that
“since Article 3 (art. 3) of the Convention does not define or explain in any way the terms it contains (‘torture or ...
inhuman or degrading treatment or punishment’), an expression such as ‘within the meaning of Article 3 (art. 3)’
lacks all significance, as the Article ascribes no meaning to these terms. Any meaning to be given to them must
come from outside. In these circumstances, it is the Court itself that has to impart a meaning. This is perfectly
acceptable—indeed inevitable. But then it should not be implied that the meaning thus imparted is to be found in
Article 3 (art. 3) itself, for it is not. A more correct description would be ‘contrary to’ or ‘according to the presumed
intention of’ Article 3 (art. 3).”
77
   Tyrer, ibid., at para. 30 (emphasis added).
78
   Ibid., at para. 31.
79
   Ibid., at para. 33.
80
   Ibid. (emphasis added).
CHRGJ Working Paper No. 2, 2005                                                                              19



degradation. 81 Thus, though the Court held that “degrading treatment or punishment” is a relative
notion, dependent on the circumstances of the case, it went on to give it an absolute and
monolithic character which, on a literal reading of Article 3, it appears to have. 82 It is quite clear
in these circumstances that the textual argument was colored by the argument based on the object
and purpose of Article 3; it even became an historical argument in that it lets one infer that the
drafters of the Convention could only have intended that the conclusion reached by the Court be
embodied in the concept of “degrading punishment.”

Though there are many other examples of the holistic interpretation of the Convention by the
Strasbourg Court, the best one remains in my view that of Article 3. 83 Indeed, if we compare the
text of this provision with the product of the interpretation given to it, we realize that the text
comes very close to a metaphor: it suggests meanings more than it actually conveys. 84 And even
if it refers to three distinct yet polysemous concepts, it is not solely on the basis of the ordinary
or grammatical meaning of the words used that the ECtHR has interpreted them. Schematically,
this is what the Court has read in Art. 3:

•        For a conduct to be embraced by the prohibition of torture, it must “attain a minimum
         level of severity.”85 It was the intention that the Convention, with its distinction between
         torture and inhuman treatment, should by the first of these terms attach a special stigma
         to deliberate inhuman treatment causing very serious and cruel suffering (teleological
         method). 86

•        The notion of “inhuman treatment” covers at least such treatment as deliberately causes
         severe suffering, mental or physical, which, in the particular situation, is unjustifiable
         (teleological method). The notion of “degrading treatment” requires the presence of gross
81
   For a discussion of Judge Fitzmaurice’s distinctive approach to Art. 3, see Merrills, “Sir Gerald Fitzmaurice’s
contribution to the jurisprudence of the European Court of Human Rights,” 53 BYIL (1982) 119. See also J.P.
Marguénard, La Cour européenne des droits de l’Homme (2nd ed., 2002) 54.
82
   C. Ovey and R.C.A. White, Jacobs and White. European Convention on Human Rights (3rd ed., 2002) 79. The
authors endorse the Court’s position on the absoluteness of the prohibition in Art. 3. For a critique of the concept of
“absolute rights” in Art. 3, see Addo and Grief, “Does Article 3 of The European Convention on Human Rights
Enshrine Absolute Rights?,” 9:3 EJIL (1998) 510.
83
   Addo and Grief have argued that there are clear “operational” policies underlying the decisions of the ECtHR on
Art. 3 which differ from one dimension of “subject category” (for example, a “detention case,” a “corporal
punishment case,” etc.) to another. They further point out that this does not exhaust the judicial reasoning involved
in Art. 3 cases for the provision encompasses not only different categories of case but also different levels of harm
involving different thresholds of suffering and intention, which necessitates a further assessment. See Addo and
Grief, “Is there a Policy behind the Decisions and Judgments relating to Article 3 of the European Court of Human
Rights?,” 20:2 European Law Review (1995) 178.
84
   The metaphorical nature of Article 3 is in fact a characteristic of most provisions contained in the ECHR. For
example, the limitation clauses in Articles 8(2)-11(2), which allow restrictions of some rights “in accordance with
law” and which are “necessary in a democratic society” simply evoke the idea of restrictions to be justified and
which must be acceptable within the democratic societies of the Member States of the Council of Europe. The
drafters of the treaty chose to use these specific terms and formulations rather than others as their common usage
does not correspond to a well-defined level of predictability. Consequently, the three-pronged test developed by the
ECtHR in Sunday Times Newspaper and Others v. United Kingdom, ECHR (1979), Series A., No. 30; (1979-1980)
2 EHRR 245, at para. 48, was not read in these provisions by the Court but rather projected in them and made their
alter ego by jurisprudential construction.
85
   Ireland v. U.K., supra note 46, at para. 162 and Tyrer v. U.K., supra note 74, at para. 30.
86
   Aksoy v. Turkey, Judgment of 18 December 1996, (1997) 23 EHRR 553, at para. 63.
CHRGJ Working Paper No. 2, 2005                                                                         20



        humiliation or debasement before others or being driven to act against will or conscience
        (textual method). 87

•       In every case, the determination of whether there has been torture, inhuman or degrading
        treatment must be decided in light of all the circumstances of the case, taking into
        account all the factors relevant to such a determination (teleological method). 88

What is striking in all of this, of course, is the importance of teleology and the appeal to a
particularly liberal (and biased) conception of human values and feelings. But this is not what is
most significant in the ECtHR’s approach. This appeal, the Court had recourse to it when
attempting to ascribe meaning to the terms “torture” and “inhuman treatment or punishment,” but
decided not to do the same with respect to the concept of “degrading treatment or punishment.”
The latter notion has rather been fleshed out on the basis of the ordinary or grammatical meaning
of the word “degrading.” Why so? Presumably because it would have been quite difficult to give
meaning to this word by simply resorting to the idea that what distinguishes “inhuman” from
“degrading” treatment or punishment is merely a question of degree of severity of harm caused
to the victim (which is precisely the reasoning used by the Court to distinguish between “torture”
and “inhuman treatment,” the former being an aggravated form of the latter). 89 Thus, the Court
resorted to the textual method for the specific purpose at hand, and this is why what is most
striking in the Court’s interpretive démarche, it is less its teleological than its holistic aspect. In
other words, the Court decided to retain the textual argument having all of the others in mind,
and it is really the whole that composes its parts rather than the converse, as most people have a
tendency to believe.

3.      Interim conclusion

The foregoing analysis illustrates two essential points. First, the ECtHR has not conceived the
ECHR as a “self-contained regime” in the sense that recourse to general rules of treaty
interpretation would have been prevented by the specificities of the treaty. 90 Thus, Article 62 of
the Convention, which provides that “the High Contracting Parties undertake not to submit a
dispute concerning the interpretation and application of the Convention to any method of
settlement other than those provided for therein,” does not seek in any way to exclude general
international law but simply precludes resort by a Member State to a dispute settlement


87
   The Greek case, Report of the Commission of 5 November 1969, (1969) 12 Yearbook of the European
Commission of Human Rights 186, at 186. The report of the Commission was endorsed in subsequent judgments of
the ECtHR.
88
   Tyrer v. U.K., supra note 74, at para. 30.
89
   See Ovey and White, supra note 82 at 63; F. Sudre, Droit international et européen des droits de l’homme (2002)
187.
90
   See Caflisch and Cançado Trindade, supra note 22, at 9-22; Koskenniemi Preliminary Report, supra note 20, at
22, para. 146. Dupuy notes —rightly in my view—that the reference to the rules of treaty interpretation codified in
the VCLT has been useful to mechanisms of control of the applicability of conventional systems (he cites the
Appellate Body of the World Trade Organization (WTO), but his claim is equally applicable to the ECtHR) to
manifest their attachment to general international law and at the same time condemn the thesis according to which
we should see in such systems so-called “self-contained regimes,” owing their authority only to their “specificity”
and—what is erroneously deduced from the former—autonomy . See Dupuy, Droit international public, supra note
19, at 307.
CHRGJ Working Paper No. 2, 2005                                                                             21



mechanism other that the ECtHR. 91 Secondly, within the framework of general law, the latter has
not adopted a hierarchical approach to the application of the guidelines set out in Article 31 of
the VCLT, which could have led one to think that there are indeed “special rules and techniques”
of interpretation and administration when it comes to human rights treaties. 92 Rather, the Court
has viewed the task of interpretation as a single yet complex operation, though reference to the
object and purpose of a particular provision in the context of the Convention as a whole has been
the most influential (or biased) consideration in its reasoning. 93

To be sure, some “rules” of treaty interpretation have a specific utility in human rights
adjudication and human rights bodies such as the ECtHR may and have, from time to time,
referred to certain “governing principles.”94 But that is a far cry from any supposition that human
rights treaties can only be understood within that framework, or indeed that they have no salience
otherwise. Holism in treaty interpretation does not exclude the emergence of a specific “human
rights ethos” or even a “European human rights tradition”95 —just like it may be possible to
discern a specific “trade” or “WTO ethos” in the interpretation of the WTO agreements. 96 The
functional predisposition of human rights treaty regimes serves to identify and articulate specific
interests and preferences that serve in turn to direct the administration of the relevant substantive
and procedural rules. 97 Therefore, their so-called claim to “speciality” operates less as a
constraint on the interpreter of these treaties as a specific project, functionally oriented. Thus

91
   Simma similarly argues that it would be difficult to maintain that human rights treaties intend to establish self-
contained regimes for they do not include provisions barring recourse to general international law outside the treaty
system. See Simma, “Self-Contained Regimes,” 16 Neth. Y.B. Int’l L. (1985) 111, at 129-135.
92
   For a contrary view which holds that there is an “established trend” in the interpretation of human rights treaties
and in the methods of interpretation which assume priority in all cases, see Orakhelasvili, “Restrictive Interpretation
of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights,” 14:3 EJIL (2003)
529, at 533 et seq.
93
   G. Cohen-Jonathan, La Convention Européenne des Droits de l’Homme (1989) 194 ; Caflisch and Cançado
Trindade, supra note 22, at 21-22. The ECtHR’s restrictive construction of the Convention’s provisions in the recent
cases of Al-Adsani v. United Kingdom and Bank ovic v. Belgium et al., based on juridical factors external to the
Convention’s terms (rule on sovereign immunities of states, for example), indicates however some trends which
depart from the general reliance on the object and purpose of the Convention. For the text of these decisions, see
respectively Judgment of 21 November 2001, 34 EHRR 11 (2002), 123 ILR (2001) 24 and Judgment No. 52207/99
of 12 December 2001, 123 ILR (2003) 108, both of which are available on the Court’s website:
http://www.echr.coe.int. For a view that the case-law of the Court evidences the coexistence of these two trends
which it would be wrong to lock into rigid frames, see Golsong, “Interpreting the European Convention on Human
Rights Beyond the Confines of the Vienna Convention on the Law of Treaties,” in Macdonald, Matscher and
Petzold, supra note 17, at 147.
94
   See for example the passages in Wemhoff and Loizidou quoted above, supra note 47.
95
    One can recall in this sense the identification by the Strasbourg Court of the existence of a “European public
order (ordre public) for the protection of individual human beings” in Loizidou, supra note 47, at para. 93, a legal
order whose specificities can arguably be attributed only to something like a “European tradition” in the protection
of and respect for human rights. See also on this point Alston and Weiler, “An ‘Ever Closer Union’ in need of a
Human Rights Policy: The European Union and Human Rights,” 9:4 EJIL (1998) 658, at 686.
96
   In a sociological sense, “human rights law” may thus be said to express a particular social rationality, which may
clash generally, or in specific cases, with the trade rationality of “trade law” or the environmental rationality of
“environmental law.” See the Koskenniemi Preliminary Report, supra note 20, at 7, para. 115.
97
   See Koskenniemi and Leino, “Fragmentation of International Law? Postmodern Anxieties,” Leiden. J. Int’l L.
(2002) 553, at 559-562, 570; Dupuy, “L’Unité de l’Ordre Juridique International,” supra note 19, at 429. See also
Scott, “Diverse Persuasion(s): From Rhetoric to Representation (and Back Again
to Rhetoric) in International Human Rights Interpretation” in P. Alston (ed.), Human Rights: The International
Legal Context (2005) (forthcoming).
CHRGJ Working Paper No. 2, 2005                                                                           22



understood, “speciality” becomes a misnomer in the sense that there is nothing “special,” much
less pathological about a process of treaty interpretation that would give expression at different
times and places to legitimate and strongly felt concerns about the protection of human rights
and even regionalism. International law is not in crisis. Its communicative nature, far from
signalling the imminent demise of the system, is actually the hallmark of its maturity.

III.    Outlook: Towards a “constructionist” theory of human rights treaty
        interpretation

I began this paper by underscoring that international law is a universe of significations, of
messages, that it essentially communicates meaning. My reflections being almost completed, it is
worth returning briefly to this point.

Commentators on the discourses running through various human rights decisions rendered by
courts have thus noted that the language of “human rights,” “human dignity” and “equality” in
human rights treaties serves to reflect and reinforce dominant, hierarchical structures and
naturalizes the position of those in power who decide what is best for the “we.”98 These authors
make the point that it is the language of human rights arguments that ultimately matters because
language not only communicates social meaning, but, by circumscribing the ways in which
communication takes place, also constructs meaning. 99

The interpretation of human rights treaties is of course a question of meaning, but is it
necessarily a question of language? My remarks on holism running throughout this article were
aimed above all at contesting this premise and attempting to explain why a plurality of possible
interpretations in huma n rights cases exists. 100 Interpretation is first and foremost a question of
perception and belief and it is impossible to become aware of all the elements leading to the
construction of a particular judicial decision. It is our perception of everyday usage by others of
terms such as “the right to life, liberty and security of the person” that allows us to “understand”
what is communicated through a treaty text and to construct meaning, and not the text itself. The
regularity of the usage observed and the extent to which it can be harmonized with the
interpreter’s network of beliefs and biases is therefore more important for our understanding of
human rights normativity than the specific artefact (treaty text, custom, rule of interpretation,
judicial precedent, etc.) or argument serving as an intermediary. 101

Nonetheless, legal scholars have long contended that in any interpretive dispute, the range of
possible arguments that can be deployed is not infinite. 102 Even a “deconstructionist” like Martti

98
   Kennedy, supra note 45, at 101. See also D. Kennedy, A Critique of Adjudication (1997) 305 and, more generally,
T. Risse-Kappen, S. Ropp and K. Sikkink, The Power of Human Rights: International Norms and Domestic Change
(1999).
99
   P. Allott, Eunomia- New Order for a New World (1990) 9.
100
    Kratochwil makes the point that attempting to show that there are single right answers in hard cases is virtually
impossible, because in a pluralist environment (such as in human rights matters) values are deeply contested. See
Kratochwil, “How Do Norms Matter?,” in M. Byers (ed), The Role of law in international politics: Essays in
international relations and international law (2000) 42.
101
    Here, I refer to Quine’s idea that meaning is use. See W.V.O. Quine, Word and Object (1960) 32 et seq.
102
    A. Chayes and A.H Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995)
119; Schachter, “International Law in Theory and Practice. General Course of Public International Law,” 178
CHRGJ Working Paper No. 2, 2005                                                                                  23



Koskenniemi notes that legal arguments form patterns and that there is a limited set of arguments
that can acceptably be invoked to jus tify a solution. 103 If human rights treaty interpretation is
indeed deductive as this view seems to suggest, judges would be entirely constrained by existing
presuppositions as to the “nature” of international human rights law as a whole and incapable of
influencing the general shape or tenor of these presuppositions. But human rights treaty
interpretation, just like the interpretation of any legal text, cannot be done in closed circuits or
within a clearly defined frame. As my above analysis of the Tyrer case has demonstrated, what is
a “cruel, inhuman or degrading treatment or punishment ” cannot be made explicit without having
recourse to some personal feeling. 104 The concept of equality may vary tremendously according
to its philosophical and political roots in a given community. 105 A judicial decision on economic,
social and cultural rights can hardly be understood without taking into account economic,
historical and identity conceptions of the decision- maker. 106 Even when his attention is drawn to
certain words or arguments, the judge is not a linguist, but an actor. It is neither the subject
matter of the treaty text nor any particular argument that constrains and constructs, but the
interpreter himself. 107 The conceptualization of human rights treaty interpretation referred to
above cannot therefore account for his action: if this were the case, he would simply not act.

From this perspective, human rights normativity becomes similar to a work of art, a sort of
shifting intellectual sculpture where the materials used by one person are almost never identical
to those that another sees or uses. Yet the major part of this individual sculpture and the
constraints operating in the creation process, like a canvas woven according to one’s network of
beliefs, remain swallowed up in the artist and are, for this very reason, impossible to describe. 108
The treaty text and rules of interpretation being merely some of the materials with which the

RCADI (1982) 21, at 46. Sunstein makes the same point about domestic legal interpretation. See C. Sunstein, Legal
Reasoning and Political Conflict (1996) 13.
103
    See M. Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument (1989) 48 and,
from the same author, “The Place of Law in Collective Security,” 17 Mich. J. Int’l L. (1996) 455, at 478.
104
    This was perhaps even more clearly apparent in the Ireland v. UK case, supra note 46. The Court, to the surprise
of many, concluded that the five techniques for interrogating detained persons in depth (consisting of covering their
heads with hoods, obliging them to stand for long periods against a wall with the limbs outstretched, subjecting them
to intense noise, depriving them of sleep, and feeding them on a diet of bread and water) did not amount to torture,
though they did constitute inhuman and degrading treatment. Several judges in the minority concluded however that
the five techniques amounted to torture and the British Judge, Sir Gerald Fitzmaurice, in a powerful dissenting
opinion, concluded that they did not even amount to inhuman and degrading treatment.
105
    See for instance the emphasis laid by the Supreme Court of Canada on the protection of a person’s human dignity
as the core concept embodied in the right to equality safeguarded under Article 15 of the Canadian Charter of
Rights and Freedoms in Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497, at para. 51.
106
    One can grasp this easily by examining the following two cases from the South African Constitutional Court:
Government of South Africa v. Grootboom, Case CCT/11/00 (SACC), available online at
http://www.concourt.gov.za/judgment.php?case_id=11987 and Minister of Health v. Treatment Action Campaign,
Case CCT/8/02, 2002 (5) SA 721 (SACC); 2002 (10 BCLR 1033 (SACC).
107
    Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties,” 26
BYIL (1949) 48, at 53. The cla im of “illegitimacy” of such institutions as the European and Inter-American Courts
made by a growing number of states and non-state entities for their overly progressive initiatives and consequences
of their decisions lies at the base of the need for text ualists to create a belief that judges are constrained by the treaty
text.
108
    Kratochwil, supra note 100, at 66 (arguing that the causal connection between norms and behavior is not one of
mechanics but where “[w]e reconstruct a situation, view it from the perspective of the actor, and impute purposes
and values based on the evidence provided by the actor himself (although not necessarily limited to his own
testimony). This, in turn, provides us with an intelligible account of the reasons for acting …”).
CHRGJ Working Paper No. 2, 2005                                                                               24



latter will construct his or her action, the biggest challenge of the teaching and practice of
international human rights law, as that of any other area of law, is to harmonize the weft of
insinuations and beliefs of students, professors, practitioners and claimants, to lean towards the
creation of a common narrative. 109 This is also the daunting task of any individual faced with the
interpretation of an artefact to which he or she attributes normative usefulness. The great
challenge today is therefore not so much to overcome postmodern anxieties about the
“speciality” of human rights treaties as to recognize and respect the holism and
“constructionism” inherent in human rights interpretation while maximizing its efficiency in
ensuring the protection of the fundamental rights of individuals.




109
    Vagts thus claims that non-governmental parties such as private attorneys and law professors, respectively
through their advice to clients in litigation and their teaching and writings, inform others about their authoritative
views on meaning, without any attempt being made for a dialogue among the different actors engaged in the
interpretive process. See Vagts, “Treaty Interpretation and the New American Ways of Law Reading,” 4 EJIL
(1993) 472, at 483-484.