Interpretation of Human Rights Treaties

1. Interpretation of Human Rights Treaties The relevance of goodfaith

2. The goodfaithrequirement • ”Everytreaty in force is bindingupon theparties to it and must be performed by themin goodfaith.” (VCLT Art. 26) • ”A treatyshall be interpretedin goodfaith in accordance with the ordinarymeaning to be given to the terms of the treaty in theircontext and in the light of itsobject and purpose.” (VCLT Art. 31 § 1) • ”One of the basicprinciplesgoverning the creation and performance of legal obligations, whatevertheirsource, is the principle of goodfaith. Trust and confidenceare inherent in international cooperation …” (Nuclear Tests Case, 1974, § 46)

3. The explanatoryside of goodfaith • The goodfaithrequirementexplains the ruleslaiddown in Arts. 31-33 of the VCLT • The ultimate end of the interpretation process: • To determine the communicative intention of the treatyparties • Partiesmeans all parties to a treaty, not only ”negociatingstates” • Howcan the addressee of an utterancedetermine the communicative intention of an utterer? • Only by assuming that the uttereractrationally, i.e. by conforming to particular standards of communication

4. Communicativeassumptions • Treaty parties arranged: • So that the treaty conforms to the lexicon, grammar and pragmatic rules of the language used for every authenticated version of it • So that no part of the treaty comes out as redundant • So that the application of the treaty results in the realization of its object and purpose • So that their sovereign freedom be favoured • So that the treaty corresponds to whatever can be inferred from the subsequent practice developed in its application, rather than to whatever can be inferred from its preparatory work

5. Rules of interpretation • Rule (1): If a treaty uses elements of conventional language (such as for instance words, grammatical structures, or pragmatic features), the treaty shall be understood in accordance with the rules of that language. • Rule (2): If one of the two possible ordinary meanings of a treaty provision makes a part of the treaty redundant, whereas the other ordinary meaning does not, then the latter meaning shall be adopted. • Rule (3): If one of the two possible ordinary meanings of a treaty provision helps attain the object and purpose of the treaty, whereas the other ordinary meaning does not, then the former meaning shall be adopted. • Rule (4): If one of the two possible ordinary meanings of a treaty provision helps favouring the sovereign freedom of states, whereas the other ordinary meaning does not, then the former meaning shall be adopted. • Rule (5): Rule (2) shall be applied prior to Rule (4), insofar as this does not either leave the meaning of the treaty ambiguous or obscure, or leads to a manifestly absurd or unreasonable result.

6. Articles 31-33 provide a framework • Helplaw-applying agents resolvemany, but not all, issues of interpretation • Someissues still have to be resolved at the discretion of law-applying agents themselves • The extension of a means of interpretation • The relationshipbetween a means and an interpretedtreaty • The priority of rules of interpretation

7. The normative side of goodfaith • The goodfaithrequirementadds to the normativity of the ruleslaiddown in Arts. 31-33 of the VCLT

8. Winterwerp • ”Nooneshall be deprived of his libertysave in the followingcases and in accordance with a procedureprescribed by law: ... (e) the lawfuldetention … of persons of unsound mind” (ECHR Art. 5 § 1) • “The Convention does not state what is to be understood by the words ‘persons of unsound mind’. This term is not one that can be given a definitive interpretation: … it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society’s attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more wide-spread.” (§ 37) • ”[T]he Convention is a living instrument which must be interpreted in the light of present-dayconditions” (Soering, § 102)

9. Kasikili/Sedudu Island • In Southwest Africa the sphere in which the exercise of influence is reserved to Germany is bounded: … [t]o the east by a line commencing at the above-named point … ; [the line] runs eastward along that parallel [i.e. the 18th parallel of south latiitude] till it reaches the river Chobe, and descends the centre of the main channel [in the German agreement text: “imThalweg des Hauptlaufes”] of that river to its junction with the Zambesi, where it terminates.” (Art. 3 § 2) • “The Court further notes that at the time of the conclusion of the 1890 Treaty, it may be that the terms “centre of the [main] channel” and “Thalweg des Hauptlaufes” were used interchangeably.” (§ 25)

10. Guinea – Guinea-Bissau Maritime Delimitation • Article I: • “In Guinea, the boundary separating the Portuguese possessions from the French possessions will follow, in accordance with the course indicated on Map number 1 attached to the present Convention …” • Article III: • “In the Congo region, the boundary between Portuguese possessions and French possessions will follow, in accordance with the course outlined in Map number 2 attached to the present Convention, a line which will start …”

11. Guinea – Guinea-Bissau Maritime Delimitation • “Shall belong to Portugal all islands located between the Cape Roxo meridian, the coast and the southern limit represented by a line which will follow the thalweg of the Cajet River, and go in a southwesterly direction through the Pilots’ Pass to reach 10° 40’ north latitude, which it will follow up to the Cape Roxo meridian.” (Art. 1) • “[T]he frequent use of the term possessions and territory in the text of the Convention proves that the colonial possessions of France and Portugal in West Africa were its object; but the complete absence of the words waters, sea, maritime or territorial sea is a clear sign that essentially land possessions were involved.” (§ 56)

12. Sigurjónsson • ”Everyone has the right to … freedom of association with others” (Art. 11) • “[A] large number of domestic systems contain safeguards which, in one way or another, guarantee the negative aspect of the freedom of association, that is the freedom not to join or to withdraw from an association. A growing measure of common ground has emerged in this area also at the international level … • “Article 11 para. 2 of the Community Charter of the Fundamental Social Rights of Workers, adopted … on 9 December 1989, provides that every employer and every worker shall have the freedom to join or not to join professional organisations or trade unions” • “[O]n 24 September 1991 the Parliamentary Assembly of the Council of Europe unanimously adopted a recommendation … to insert a sentence to this effect into Article 5 of the 1961 European Social Charter” • “[A]ccording to the practice of … the International Labour Office (ILO), union security measures imposed by law, notably by making union membership compulsory, would be incompatible with Conventions Nos. 87 and 98” (§ 35)

13. Border and TransborderArmedActions (Nicaragua v. Honduras) • In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them …” (Art. XXXI) • When the conciliation procedure previously established in the present Treaty or by agreement of the parties does not lead to a solution, and the said parties have not agreed upon an arbitral procedure, either of them shall be entitled to have recourse to the International Court of Justice …” (Art. XXXII) • “Honduras’s interpretation would … imply that the commitment, at first sight firm and unconditional, set forth in Article XXXI would, in fact, be emptied of all content if, for any reason, the dispute were not subjected to prior conciliation.” (§ 46)

14. Soering • Parties arranged so that the meaning of Article 3 continuously corresponds to whatever can be inferred from the subsequent practice developed in the application of this provision, in this case the national penal policy of the European states. • Parties arranged so that Article 3 comes out as logically consistent with Article 2. • “Protocol No. 6 shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement.”

15. James and Others • Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (ECHR AP No. 1, Art. 1) • Parties arranged so that Article 1 of Protocol 1 comes out as logically consistent with Article 5 of this same Protocol and with Article 1 of the Convention. • Parties arranged so that no part of Protocol 1 comes out as redundant. • “As to Article 1 (art. 1) of the Convention, it is true that under most provisions of the Convention and its Protocols nationals and non-nationals enjoy the same protection but this does not exclude exceptions as far as this may be indicated in a particular text (see, for example, Articles 4 para. 3 (b), 5 para. 1 (f) and 16 of the Convention, Articles 3 and 4 of Protocol No. 4) (art. 4-3-b, art. 5-1-f, art. 16, P4-3, P4-4).” (§ 62)

16. The normative side of goodfaith • What is the legal status of the goodfaithrequirement? • Does it imply an obligation under international lawto interpret in goodfaith?

17. The goodfaithinterpretation of human rights treaties • What is so specialabout the interpretation of human rights? • If so, what is the difference? • Andwhatdistinguishing feature or features of human rights treatiescouldpossiblyexplain this difference?