Oldal 328 [328]
OCR
ESZTER POLGÁRI the existence of such a right was supported by the growing measure of common ground that had emerged in the given area".?é The case-law confirms that the Vienna rules are flexible enough to accommodate the methods and doctrines invoked in the interpretation of the ECHR, and the ‘special character’ of the Convention” has not resulted in the development of a competing interpretative framework; the Court merely puts emphasis on effectiveness and a dynamic approach to the text over the traditional international law principles of state consent and restrictive interpretation of state obligations. SUBSEQUENT PRACTICE Article 31 (3) adds further sources that need to be taken into account together with the ‘context’ when establishing the ordinary meaning of a term. Subsequent agreements and practice constitute “forms of authentic interpretation whereby all parties themselves agree on (or at least accept) the interpretation of treaty terms by means which are extrinsic to the treaty”.** As Villiger noted authentic interpretation offers “ex hypothesi” the right interpretation and consequently it is conclusive to the ordinary meaning.”” In the ECHR case-law subsequent agreements contained in Article 31 (3) a) do not play a significant role, there is no judgment that would refer to them beyond the citation of the Vienna rules. Subsequent practice, on the other hand, has been invoked by the Court explicitly and — as it will be explained below — implicitly more frequently. In order to assess whether the case-law of the ECtHR is in harmony with the VCLT’s provision on subsequent practice, a brief overview of the rule is indispensable. ‘Practice’ itself covers a great number of positive actions, in public international law it would simply encompass “what states do in their relations to one another”.*! Some argue that subsequent practice must be consistent, common and concordant,” and it has to be acquiesced in by other parties, otherwise it will remain a supplementary means of interpretation under Article 32 of the VCLT.* 26 Ibid, para 137. 2” For an explanation of the peculiarities of the ECHR see for example: Ireland v. the United Kingdom 5310/71 (18/01/1978), A25, para 239. Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden, Martinus Nijhoff, 2009, 429. 29 Ibid, 326. 3° VCLT Article 31 (3) c). 3 [rina Buga, Modifications of Treaties by Subsequent Practice, Oxford, OUP, 2018, 23. 3 Tan M. Sinclair, The Vienna Convention on the Law of Treaties, Manchester, MUP, 1984, 137. 33 28 Georg Nolte, First Report on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation (19 March 2013), UN doc A/CN.4/660, para 118. s 326 "
