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

Fordham International Law Journal, Forthcoming

iCourts Working Paper Series No. 141

33 Pages Posted: 14 Sep 2018 Last revised: 26 Sep 2018

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). Fordham International Law Journal, Forthcoming; 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

Register to save articles to
your library

Register

Paper statistics

Downloads
141
rank
192,787
Abstract Views
421
PlumX