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ESZTER POLGÁRI
deemed activist, and for this reason they are particularly prone to (often well¬
founded) criticism. In order to counter the objections, this piece proposes to
reconceptualize the most contested tool used for ‘updating’ the ECHR, i.e. the
European consensus inquiry, in light of the rules on interpretation contained in
the Vienna Convention on the Law of Treaties [hereinafter: VCLT or Vienna rules].
It is submitted that understanding the consensus inquiry within the framework
of subsequent practice as laid out in in Art. 31 (3) b) could enhance its legitimacy
and acceptance by adding a normative basis for its use.
THE ROLE OF THE VCLT IN THE CASE-LAW
The general rules of interpretation for treaties are laid down in Articles 31 to 33
of the VCLT and these are considered to form part of customary international
law." According to the general rule contained in Article 31 (1) “(a) treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given
to terms of the treaty in their context and in light of its object and purpose”. The
provision follows the ‘crucible approach’, i.e. “[a]ll the various elements, so far as
they are present in any given case, would be thrown into the crucible and their
interaction would give the legally relevant interpretation”. ‘Context’ — as specified
in Article 31 (2) and (3) — and the ‘object and purpose’ of the treaty are “modifiers
to the ordinary meaning of a term which is being interpreted in the sense that
the ordinary meaning is to be identified in their light”.* ‘Context’ accommodates
both historical and forward-looking perspectives, and not only encompasses
agreements and instruments drawn up “in connexion with the conclusion of the
treaty” but reflects on subsequent agreements and practice as well.
Although the ECHR is an international treaty, explicit references to the VCLT
are scarce in the jurisprudence of the ECtHR. The infrequent mentions, however,
do not indicate — as Letsas argues — “that the VCLT has played very little role in
the ECHR case law”,’* to the contrary, the interpretative techniques and methods
Human Rights: International Protection versus National Restrictions, Dordrecht, Martinus
Nijhoff, 1991, 283-318, 310.
Richard Gardiner, The Vienna Convention Rules on Treaty Interpretation, in Duncan B.
Hollis (ed), The Oxford Guide to Treaties, Oxford, OUP, 2012, 475-506, 476.
Yearbook of the International Law Commission (1966) vol. II, 95. The use of the singular
rule was an intentional choice among the drafters, and this supports the ‘crucible’ approach.
See Gardiner, The Vienna Convention, 480.
B Richard Gardiner, Treaty Interpretation, Oxford, OUP, 2015, 211.
George Letsas, Strasbourg’s Interpretive Ethic: Lessons from the International Lawyer,
European Journal of International Law 21 (2010), 509-541, 512.
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