Constitutional Transformation in the ECtHR: Strasbourg's Expansive Recourse to External Rules of International Law

39 Pages Posted: 31 Oct 2011 Last revised: 1 Jun 2012

See all articles by Julian Arato

Julian Arato

University of Michigan Law School

Date Written: October 30, 2011


The European Court of Human Rights is a constituted judicial body, established by international treaty among the member States of the Council of Europe. Yet it can hardly be described as a static creature of the Parties. The Court has undergone dramatic constitutional change since its inception, resulting in an organization significantly more autonomous, independent, and robust in its maturity. Certain important changes have been achieved through formal amendment by the Parties. At the same time, however, the constitution of the ECtHR has undergone a quieter, informal kind of development – through the Court’s own practice in the discharge of its normal functions. Change of this latter type may be called constitutional transformation, by contrast to formal constitutional amendment. This paper is about the transformative effect of the Court’s approach to the interpretation of its constituent instrument, the ECHR. More specifically, the focus is on its approach to one particular technique of interpretation, codified at VCLT 31(3)(c) (providing for the consideration of external sources of international law). On the one hand, as is often recognized, the Court relies on the technique to ground a dramatic and evolutive mode of treaty interpretation – expanding the substantive rights of the Convention in light of sources external to it. Yet on the other hand, I want to suggest, the Court gives 31(3)(c) itself an astonishingly broad construction, to justify considering an extraordinary array of external sources – thereby expanding its own material competence to develop the Convention on the basis of developments outside of the Convention. This latter dimension of the Court’s interpretive approach, I argue, has brought about a genuine constitutional transformation.

This paper was originally prepared for presentation at the inaugural Research Forum of the American Society of International Law, ASIL Midyear Meeting, UCLA (Nov. 3-5, 2011).

Keywords: International Organizations, Treaty Interpretation, Constitutional Theory

Suggested Citation

Arato, Julian, Constitutional Transformation in the ECtHR: Strasbourg's Expansive Recourse to External Rules of International Law (October 30, 2011). Brooklyn Journal of International Law, Vol. 37, No. 2, 2012, Available at SSRN:

Julian Arato (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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