Page 326 [326]
OCR
ESZTER POLGÁRI deemed activist, and for this reason they are particularly prone to (often wellfounded) 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. s 324 «
