A rights based approach to legitimate human rights interpretation
Birgit Schlütter – 1st draft -
1. Introduction
About ten years ago, interpretation of human rights at the international level was mostly assessed as part of the welcoming trend of constitutionalisation of international law.[1] Recently, it appears that the interpretation of human rights by regional and international treaty bodies has become a matter of increasing concern. Either with regard to certain rights, or with regard to the overall performance of treaty bodies, scholars and states have worried that the interpretation of certain human rights may have intruded areas which belong to the national sphere.[2] Recent examples of this development are the Italian crucifix case before the ECtHR and the Poma Poma decision of the Human Rights Committee. Those worries raise questions about the legitimacy of the human rights bodies decisions, in particular about the legitimate interpretation of the rights in question of the ECHR, or the ICCPR. Have the human rights bodies taken interpretation to far? Is it thus about time for an overall framework which can provide more guidance to human rights interpretation? Generally, it appears that the more concerns have risen, the more diverse and specific international and regional human rights protection systems get over time. In the context of the ECHR, it is often mentioned that the Court has become a victim of its own success.
Scholars who have tackled some aspects of human rights interpretation in greater detail, claim that the concept of legitimacy may provide a framework to human rights interpretation. Yet, this concept is contested and there are few overall standards which can acutally provide for a legitimate interpretation of international human rights provisions. Writings on legitimacy are often concerned with the international institution itself, i.e. its composition, or constitution and only few contributions have assessed whether there are certain criteria which should determine the legitimacy of an institution’s respective output. There are even less contributions, which have focused on the output of interpretation, in particular. Most of the time, the rules of the Vienna Convention on the Law of Treaties of 1969 are considered to provide sufficient guidance.[3]
There is not doubt that the Vienna Convention on the Law of Treaties of 1969 may provide a certain standard procedure of interpretation. Yet, the rules enshrined in it leave much discretion to the judge and provide only a very broad roster of a legal interpretation. Moreover, it is not entirely clear, whether the convention may also appy to a treaty body’s further output or bind it in its everyday practice. The United Nations treaty bodies usually tackle individual complaints, individual recommendations upon state reports and General Comments. Should the Vienna Convention apply to each of these outputs? There are a few other standards which have been mentioned besides the Vienna Convention: the rule of law, consent, institutional practice, implied powers and intent.[4] But the authors who mentioned those additional criteria have refrained from explaining how these criteria would interact with the existing rules of the Vienna Convention and did not provide, for example, a concrete interpretation scheme. The UN treaty bodies and the European Court of Human Rights, on the other hand, have developed their own approach of when not to interpret the relevant human rights provisions of ‘their’ human right treaties, in order to leave it up to the national states to determine the individual content of a particular right. The two methodological approaches which the ECtHR and the UN treaty bodies have produced on that matter are the denial of justice approach and the margin of appreciation doctrine.
This contribution intends to evaluate the suggestions which have been made so far to provide guidance to human rights interpretation, both by international scholars and the UN treaty bodies. It aims at determining whether there actually are certain criteria, which could render a certain human rights interpretation more legitimate, if at all possible. The paper will first adress existing theories on legitimacy and assess whether they have already dealt with the issue of interpretation. Subsequently, the paper will assess, whether the approaches of the UN treaty bodies or the ECtHR may provide futher guidance on the issue of interpretation. In the following part, the paper will present an own approach to legitimate interpretation. It will argue that one of the standards developed by the UN treaty bodies -the denial of justice approach- does indeed have the potential of providing a further framework to human rights interpretation. The paper’s final part will further develop this denial of justice approach and apply it to two cases, in which the treaty bodies an the ECtHR have been criticised for applying too broad a standard of interpretation. Ultimately, the paper hopes that its approach can also have an impact on the general theory of legitimacy.
2. No theory of legitimate interpretation in force
a. General theories on the legimitate exercise of authority at the international level
i. focus either on the process
ii. or on the input or the output of international institutions
iii. current propositions do not fit the particular output of interpretation
One main reason for current theories not fitting human rights interpretation is that they mostly rely on abstractions from general decision-making processes at institutional level. However, decision-making processes vary and there are different levels of authority, which is exercised in the various decision-making processes.[5] Theories of legitimacy must take into account those variations and develop different criteria for those different decision-making processes. Judgment like decisions, like ECtHR judgments and the UN treaty bodies views would need a more elaborate approach to legitimacy than, for example, decisions at operational level which concern only internal affairs.
b. Speficic criteria: state consensus, implied powers, rule of law, etc.
So far, the theories have hardly ever developed a workable scheme which interacts with the existing rules on treaty interpretation as provided by the Vienna Convention on the Law of treaties. Thus, it is time to assess the individual criteria and evaluate, how they could add up to the rules of the VCLT, or differ from the general criteria which are already part of general legitimacy theories. This part will focus on the individual potential the criteria have for providing more legitimacy to human rights interpretations.
i. consensus
Most contributions refer to the consensus of states parties when assessing criteria which may posess a potential to provide legitimacy to decision making processes at international level. Considering present international realities, it is yet a weak proposition to relate consensus only back to the states members to a treaty. This applies, in particular, to the constitution and work of human rights treaty bodies. In their decision making processes, other actors than states become increasingly influential, in particular NGO’s and individual interest and lobby groups. Moreover, there are also certain international non-state actors, like the International Committee of the Red Cross, which exercise an increasing influence on international decision-making. Finally, also the decisions of international courts and tribunals are increasingly cited as an authority, even before human rights institutions.
ii. implied powers – effectiveness
Usually, the implied powers argument is employed in order to assess whether particular practices of an international institution still belong to its initial realm of competences. The doctrine is a direct outcome of the application of the principle of effectiveness. Still, it may not provide much guidance on the particular matter of interpretation. In this particular area of international law, institutions usually have potentially every authority to undertake any action not inconsistent with its charter.[6] Considering the work of the human rights treaty bodies, in particular, it is very difficult to make an argument against their proactice or progressive protection of human rights.
iii. rule of law
…
3. The approaches of the ECtHR and the UN Human rights treaty bodies: The margin of appreciation and denial of justice approach
a. Theories in themselves constitute methods to tackle state discretion, however, as they also apply at the level of the merits of a case, and can hence delimit human rights interpretation as such
b. Individual criteria of the margin of appreciation or denial of justice approach
i. Margin of appreciation
1. Consensus
2. Open ended norm
3. Reasonableness and proportionality
ii. Denial of justice
1. Denial of justice?
2. Reasonableness and proportionality
iii. Assessment
4. Criteria for a right based approach to legitimate human rights interpretation
a. Human rights provisions would have to bind international organisations/human rights bodies– current tendencies and future trends
b. What is a denial of justice? Criteria of a violation of Art. 14 ICCPR -
5. Potential of the approach to apply also to other situations in human rights adjudication – Two examples
c. The Italian crucifix case
d. The Poma Poma case
6. General applicability of the approach
[1] Alvarez, Legitimacy of international Organisations, 125.
[2] Norway citation. Kerstin Mechelem for the Work of the CESCR.
[3] Mechelem.
[4] Alvarez and Mechelem.
[5] Bodansky in Wolfrum.
[6] Compare Alvarez, 122.