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July 01, 2016

The European Court of Human Rights: A Living Instrument as Applied to Homosexuality

By Christine Byron

The European Convention on Human Rights (ECHR) is considered vital in providing the rights contained in the Convention to 800 million people within the 47 States of the Council of Europe. Nevertheless, the European Court of Human Rights’ interpretation of the ECHR appears strange to a common lawyer as is generally true for all international courts: It is not bound by precedent.1 The fact that international courts are not bound by precedent, in the same way as courts in a common law system are so bound, does not imply that the European Court of Human Rights (ECtHR) will not refer to earlier cases and apply the same approach to the case before it. Although the ECtHR is an international court, it is still a court, and if it approached every case differently without any logical explanation, its judgments would not be respected.

An important question then is: How should an international court, created by a multilateral treaty, be interpreted? An international lawyer would expect a multilateral treaty to be interpreted in line with the 1969 Vienna Convention on the Law of Treaties,2 but this treaty has only played a minor role in the interpretation of the ECHR.3 It was necessary, therefore, for the ECHR to develop its own method of development of its case law. The current method of interpretation of the ECHR has its roots in the court’s decision in Golder v. United Kingdom, a decision that, ironically, is one of the few in which the court made reference to the Vienna Convention on the Law of Treaties.4 Despite the fact that the Vienna Convention was not in force at the time of the decision, the court accepted that articles 31–33 of the Convention (on treaty interpretation) were “generally accepted principles” of international law.5 The court carried out its reasoning in the case, based purely on the “object and purpose” of the ECHR as a whole, notably not referring to the interpretation of the text that had been intended by the drafters at the time of the adoption of the ECHR.6 If the ECtHR had taken that approach, it would have had the effect of freezing the interpretation of the human rights of the ECHR at the standard understood in the early 1950s. The fact that the court took an approach more likely to result in case development at a fairly early stage in the court’s history was likely due to the unique character of the ECHR as a human rights instrument. Unlike many multilateral treaties on trading issues, the ECHR is not concerned with the exchange of benefits between states, but instead, as Mowbray, one of the leading British human rights scholars, declares, it “proclaim[s] solemn principles for the humane treatment of the inhabitants of the participating States.”7

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