OCR
REVISITING THE EUROPEAN CONSENSUS IN LIGHT OF THE VCLT However, Special Rapporteur Nolte put forward a more permissive definition: in his view subsequent practice does not require the participation of all parties, “if it is ‘accepted’ by those parties not engaged in the practice, [it could] establish a sufficient agreement regarding the interpretation of a treaty”.** It is traditionally limited to state practice only, however, recently a wider interpretation has surfaced including — among others - the practice of UN treaty monitoring bodies as well.” Finally, the VCLT itself is silent on the potential modifying effect of such practice, but this possibility is undoubtedly recognized in international law.*f The review of the case-law of the ECtHR presents little evidence to the widespread explicit reliance on subsequent practice, but this shall not lead to the quick conclusion that the notion is wholly absent from the jurisprudence. The Court first considered the subsequent practice of the member states was Soering v. the United Kingdom" when it reviewed state practice in relation to capital punishment. It importantly noted: [slubsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 (art. 2-1) and hence to remove a textual limit on the scope for evolutive interpretation of Article 3 (art. 3).°* Since member states opted for “the normal method of amendment of the text in order to introduce a new obligation” even the special character of the Convention could not justify modifying the interpretation through dynamic interpretation.” This position was first revisited in Öcalan v. Turkey where the Grand Chamber endorsed the Chamber’s finding on abolishing death penalty in peace time." By that time all member states signed Protocol no. 6, three ratifications were awaited, though only Russia did not outlaw it domestically. On the basis of the strong support for Protocol no. 6, the Chamber concluded: “[s]uch a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 17." 34 Georg Nolte, Second Report on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation (26 March 2014) UN doc A/CN.4/671, para 60. % Magnus Killander, Interpreting Regional Human Rights Treaties, Revista SUR 7 (2010), 149-169. 36 Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights, Oxford, OUP, 2010, 37. 37 Soering v. the United Kingdom 14.038/88 (07/07/1989), A161. 38 Ibid, para 103. ” Ibid. © Ocalan v. Turkey [GC] 46221/99 (12/05/2005), ECHR 2005-IV 131. a Ibid, para 163. + 327 +