International and regional courts are known to have varying tendencies, mostly due to the nature of their function as well as the type of particular topics they adjudicate upon. The ICJ, having general jurisdiction at the global level, is deemed, especially here, here, and here, to be rather conservative in its jurisprudence. It does not bend the law or normally engage in legal activism in its interpretation of international norms. The European Court of Human Rights, on the other hand, is a regional court and it does not have general jurisdiction, but jurisdiction on the application of Convention related matters. It stands to reason that an adjudicative body like the ICJ having universal and overarching reach appears more conservative than a regional court adjudicating upon human rights related issues in the liberal plane of Europe. The ECHR is deemed to be a “living legal instrument,” amounting to a dynamic interpretation of its provisions. Accordingly, the European Court views the Convention “in the light of the notions currently prevailing in democratic States.” This notion has been repeated in the Court’s case law, for instance here, here, and here. All the terms of a “living legal instrument”, “European standard”, and “dynamic interpretation” relate one another, in the sense that they all are based on a “European consensus” of human rights. This is also referred to as the “consensus model” in the doctrine.
The Court’s dynamic interpretation of human rights is increasingly seen as enhancing the protection of human rights and assigning the Court an active role in protection. However, this approach has been criticized in the doctrine. For example Judge Gyulumyan and Judge Fitzmaurice criticized for prejudicing state sovereignty of the contracting parties, positioning the Court as a political tool, and creating rights not found in the Convention in contravention of the contracting parties’ consent. For others, the Court assumes a passive role and refrains from establishing new standards of protection or acting as a legislator. Instead, it identifies the existing standard of protection mandated by the Convention based on the evolving nature of democratic societies. To position either for or against this interpretation of the Court, the inquiry arises: What does the “European standard” or “consensus on human rights” correspond to within the framework of international law?
To better understand the jurisdictional reach of the European Court, we need to take into consideration that it has jurisdiction over complaints, petitions, and advisory opinion requests within the scope of the European Convention on Human Rights. In that sense, it establishes a compulsory jurisdiction over the matters and rights provided for in the Convention, as affirmed by its Article 1. Accordingly, the applicable law in the Court’s jurisprudence is expectedly the Convention itself. It is imperative, however, to clarify that the Court retains authority to apply other pertinent provisions of international law. As a regional human rights mechanism established under an international treaty, it adheres to the principles outlined in Article 38 of the Statute of the International Court of Justice, which delineates the sources of international law. Thus, while the Court primarily operates within the framework of its founding treaty, it remains cognizant of and may draw upon other applicable norms and principles of international law when adjudicating cases. The legal basis of this is to be found in the law of treaties and treaty interpretation. The VCLT in its Article 31, provides that, as a general rule of interpretation, any subsequent agreement between the parties concerning the interpretation or the application of the treaty, along with any subsequent practice in its application that confirms the agreement of the parties regarding its interpretation, as well as any pertinent rules of international law governing the relations between the parties, must be taken into consideration. It should be noted that when interpreting the specific treaty provision in question, any other treaties and applicable norms of international law referred to must be those that bind the parties involved. This is an express condition within the VCLT provision, indicating that the subsequent agreement to be considered should be “between the parties”, and the relevant rules of international law should be applicable “between the parties”.
For the specific example of the ECHR, an a contrario reading of this condition suggests that the European Court may not consider other sources of international law in the interpretation of the ECHR between the two disputing parties, if one of the parties in question is not bound by this particular source. This was, at least, the Turkish argument in the Court’s Case of Demir and Baykara v Turkey of 2008. Demir and Baykara v Turkey is a landmark decision affirming the right to engage in collective bargaining and take collective action for such an end. The European Court, when interpreting Article 11 of the Convention, referred to instruments of international law, both universal and regional, that recognized the right of civil servants to form and join trade unions. It found that Article 11 was to be interpreted together with these subsequent documents and practice, and that it recognized the right of civil servants to form trade unions. Turkey, on the other hand, contended that by not being a party to the European Social Charter, it could not be kept responsible for violating its Articles 5 and 6 regarding the right to form and join organizations for the protection of their economic and social interests, as well as the right to bargain collectively. The European Court, however, did not uphold this argument, declaring that the Convention was never considered as the sole framework for the interpretation of the rights and freedoms therein. It further cited its jurisprudence such as the ‘Saadi’ and ‘Al-Adsani’ decisions, where it found that it should consider the relevant international laws applicable between the contracting parties; and explained that even the intrinsically non-binding instruments of the Council of Europe organs, such as its recommendations and resolutions could be used for the interpretation of the Convention. In doing so, the European Court relied on a “European standard”, or “European consensus” of human rights. It found that in interpreting the Convention, it could and should consider elements of international law beyond the Convention itself, even when the respondent state did not ratify all relevant instruments. This idea, accordingly, lies in the continuous evolution in norms and principles, indicating a common ground in the practice of European States reflecting common values.
As it can be understood, Demir and Baykara v Turkey is not the single judgment where the European Court had such a stance. In the Bayatyan v Armenia, the European Court found that even though its Article 4(3)(b) allowed contracting parties not to recognize conscientious objectors at the time of signature, the important developments in human rights at the European and international level since then formed a consensus regarding the right to conscientious objection and shifted the interpretation of Article 9. The judgment relied heavily on the “living instrument” doctrine, just as it did in its Marckx v Belgium judgment regarding the right to family.
The question arising from this doctrine would mainly concern state sovereignty, in relation to the Court’s jurisdiction. Reserving the right not to abide by certain provisions of a treaty when it is permissible, or the right not to be a party to a treaty altogether stems from state sovereignty. For the purposes of general international law, it is within the States’ discretion to be bound by norms, unless they are of customary nature. In that sense, claiming the existence of a “European consensus” to keep a state responsible for the application of a treaty it is not bound by might amount to an evasion of law, this time by a court (see here regarding the applicability of fraus legis principle in international state responsibility). Therefore, it is necessary to devise or explain the legal framework for this concept.
Professor Schabas, recognizes this model as the “regionalization of human rights law”. Accordingly, what the European Court does is simply developing different interpretative techniques that impact in the respective region. The Court affirms this position in its Tyrer v United Kingdom case, that the consensus model is used as means for interpretation. On one hand, while rejecting the idea of regional human rights custom, Professor Schabas also questions whether the regionalization of human rights and the interpretations brought forth by various regional instruments will ultimately form a body of regional customary rules. The remainder of this commentary will explore whether the consensus model corresponds to an interpretative method or is more akin to forming regional custom.
The Consensus Model as an Interpretative Method
The European Convention, as an international treaty concluded between states, is subject to the rules of treaty interpretation under the VCLT. Some disagree with the exclusive application of the VCLT in interpreting human rights treaties, due to the fact that its tools do not always respond well to human rights considerations, especially in newer social needs and changing understandings. In light of this view, the “consensus” model serves as a different method of interpretation to compensate for the inadequacy of the VCLT. It is difficult to find legal basis for this approach, as no special rule for interpreting human rights treaties has been expressly adopted in international law. On the contrary, VCLT Article 2(a) explains that within its scope of application, the term “treaty” does not make a distinction based on its particular designation, meaning that it would apply to human rights treaties. Further, methods of interpretation enlisted in Article 31 and so forth do respond to changing understandings and newer social needs, as they refer to subsequent practice and agreements relevant to the states’ understanding of the norms.
Therefore, given the absence of rules specifically addressing the interpretation of human rights treaties, VCLT Article 31 is applied. In this framework, “European consensus” could be classified under both Article 31(2) and (3), and as “agreement” or “subsequent practice”. To be able to resort to it as either reflecting “agreement relating to the treaty”, “any subsequent agreement” or “any subsequent practice”, it must include the party whose possible breach is under scrutiny. For example, if it is considered under “any agreement relating to the treaty”, the state in question must be bound by that particular agreement. The same necessity applies if it is considered under “any subsequent agreement regarding the interpretation of the treaty”. Similarly, if it is considered under “any subsequent practice”, the state in question must also demonstrate such practice as establishing its understanding of the provision.
Could the European Court be relying on VCLT Article 31 when referring to its consensus model? Its jurisprudence indicates the opposite, as exemplified above. The Court effectively nullifies the interpretive methods outlined in Article 31, as well as the requirement for the concerned state to be a party to these agreements, by relying on the consensus model. The Demir and Baykara v Turkey decision serves as an illustration of this approach.
The Consensus Model as Regional Custom
Professor Schabas points out the universal character of human rights law, especially from the public international law perspective: The existence of a “common standard” of universal human rights is highlighted in the 1993 Vienna Declaration and Programme of Action, and the Universal Periodic Review of the UN Human Rights Council also seems to evaluate human rights situations in member states based on a common universal standard, without regarding regional differences. To add on to Schabas’ findings, the ICJ’s reference to the precedents of regional courts, for example, its reference to the ECHR, ACHPR, and IACtHR in the Diallo case, as well as regional courts’ reference to one another further affirms their efforts to draw near to this common standard.
The universal character of human rights does not necessarily exclude the regional circumstances and necessities. Alongside the European Court, having adopted the margin of appreciation doctrine and its European consensus model for regional considerations, the Inter-American Court of Justice has similar tendencies. The practice of these regional instruments demonstrates the necessity for regional approaches in the application of human rights norms. The IACtHR also resorts to other treaties, and sources of law to signal towards the regional public opinion. Further, it is important to recognize that human rights are inherently not uniform. The codification of human rights has never stemmed from a uniform, universal ideology. Creation of the ICCPR and the ICESCR was a clear manifestation of differing post-war ideological divisions to human rights. In the following decades, the west has been criticized by the east for establishing hegemony in human rights discourse. Although this is part of a legal philosophy doctrine, such criticism is also a solid manifestation of different practices and understanding of human rights around the globe. There are effectively certain unresolved matters such as death penalty, which are considered as part of human rights in some regions, but not in others. The view that the European consensus may not be suitable for transplantation to other regional human rights contexts is widely supported. In light of the fact that different regional human rights instruments uphold varied interpretations and cater to regional necessities, and the differences ingrained at the very foundation of human rights understanding, stemming from cultural codes signify that there can indeed be a regional opinio juris and set of practice of human rights. This, of course, does not imply rejecting human rights, which are integral to customary law and jus cogens. However, the interpretation and implementation of individual rights will indeed be influenced by regional differences when defining the framework. Such a framework might manifest itself as regional custom. In the end, sticking to a strict universal standard and the rejection of regional custom of human rights might be problematic when considering the delicacy of the matter.
The European Court, in Demir and Baykara v Turkey, fails to touch upon the legitimacy issue surrounding its “interpretative method” of resorting to a European consensus but establishes it by default. Although human rights practitioners widely accept trends set forth by regional human rights instruments, a legal qualification aligning with the fundamental principles of public international law is essential to ensure compliance by member states, who often do challenge the Court’s legitimacy to the benefit of their sovereignty.
