The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights

42 Fordham International Law Journal 765 (2019)

iCourts Working Paper Series No. 141

34 Pages Posted: 14 Sep 2018 Last revised: 10 Mar 2019

See all articles by Shai Dothan

Shai Dothan

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: August 30, 2018

Abstract

The Vienna Convention on the Law of Treaties sets the rules of treaty interpretation in articles 31-33. Yet these rules are quite vague, and they leave a lot of room for judicial discretion. The European Court of Human Rights (ECHR) has developed its own version of these rules of interpretation — a version that tracks the three traditional approaches to treaty interpretation: the textual approach, the subjective approach, and the teleological approach. Looking at the practice of the ECHR through the lens of these three traditional approaches highlights the logic of some of the court's interpretive choices, including its doctrine of deference: the Margin of Appreciation.

Keywords: Treaty Interpretation, European Court of Human Rights, Judicial Deference

JEL Classification: K33

Suggested Citation

Dothan, Shai, The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights (August 30, 2018). 42 Fordham International Law Journal 765 (2019), iCourts Working Paper Series No. 141 , Available at SSRN: https://ssrn.com/abstract=3241331 or http://dx.doi.org/10.2139/ssrn.3241331

Shai Dothan (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
2,418
Abstract Views
8,994
Rank
9,978
PlumX Metrics