In Defence of Expansive Interpretation in the European Court of Human Rights

Dothan, Shai

doi:10.7574/cjicl.03.02.149

Cited by 23 publications

(6 citation statements)

References 15 publications

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“…Over time, these display ever more faults and "lacunae," as they are instruments that are far from perfect." 51 The MoA doctrine remains a useful doctrine for the court to manage its judicial authority, 52 like other "avoidance doctrines" such as non-justiciability or the political question doctrine. It has the qualities of the accordion, and thus can be contracted or released ad-hoc to fit almost any set of factors.…”

Section: Resultsmentioning

confidence: 99%

The Margin of Appreciation, Subsidiarity and Global Challenges to Democracy

Benveniśtî¹

2018

Journal of International Dispute Settlement

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Much of the academic debate concerning the function of the Margin of Appreciation (MoA) doctrine is based on the assumption that democracy works more or less well and therefore any impugned domestic policy merits respect. The role of the European Court of Human Rights (ECtHR) should therefore be secondary, confined to the rare situations when the democratic process fails and the national courts refrain from rescuing it. This debate assumes that the causes of democratic failures are internal, or that domestic decision-making processes are sufficiently resilient to outside pressure. This is obviously wrong, and more so today than in any other time in the history of the modern state. The aim of this essay is to explore these external challenges to democracy and their implications to the role of the ECtHR in protecting human rights. These responses demonstrate the limits of the MoA doctrine and highlight its alternative, subsidiarity, as a superior doctrine to manage the interface between the domestic and the European components of the European human rights regime.

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Section: Resultsmentioning

confidence: 99%

The Margin of Appreciation, Subsidiarity and Global Challenges to Democracy

Benveniśtî¹

2018

Journal of International Dispute Settlement

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“…70 However, we think that both tendencies can be explained by suggesting that human rights lawyers tend to be less formalistic than their counterparts. Teleological interpretation is often considered to be a more expansive and less formalistic interpretive method than other interpretive methods 71 as does the support for the corrective approach to the VCLT rules. Both positions give the interpreter more discretion and lend support to the perception of human rights lawyers as result-driven jurists.…”

Section: A General Discussionmentioning

confidence: 99%

Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts

Shereshevsky

Noah

2017

European Journal of International Law

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Ample research has demonstrated that exposure to inadmissible evidence affects decision making in criminal and civil cases. However, the difficulty of ignoring information in the context of legal interpretation has not been examined yet. Our study addresses the possible effects that exposure to preparatory work has on the interpretation of treaties. In the present article, we examine the ability of students enrolled in international law courses and of international law experts to ignore preparatory work when they are not allowed to use it. We found that exposure to preparatory work affected the students' interpretation of treaties, while no such effect was found among the experts. These results reaffirm the practical relevance of the debate over the hierarchy between the rules of treaty interpretation. In particular, our study demonstrates that preparatory work can play a significant role in decision making, depending on the legal rule that applies to the use of such materials. More generally, our study suggests that legal interpretation by students and experts is qualitatively different and that international law experts might be better able than non-experts to discount irrelevant information in the process of treaty interpretation.

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“…103 Dothan expands this argument further, averring that international courts have to take into account political considerations and make compromises to suit them all the time. 104 Consequently, an international court will favour a more restrictive as opposed to an expansive or even teleological hermeneutic when it needs to gain support and confidence from the very states that established it.…”

Section: Making Capital Out Of Textual-formalism?mentioning

confidence: 99%

Defining the Scope of Free Movement of Citizens in the East African Community: The East African Court of Justice and its Interpretive Approach

Nalule

2018

J. Afr. law

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Free movement of persons is one of the core tenets of the East African Community (EAC) common market, making it seem like a purely economic project. However the EAC ultimately aims to constitute itself as a political federation. This article argues that the free movement of persons within the EAC should be interpreted in broad terms with the aim of asserting it as a fundamental right of EAC citizens. Such an interpretation should be championed by the East African Court of Justice, whose mandate is the interpretation and application of community law. The court, however, seems to prefer a narrow, textual and cautious interpretive approach that may not necessarily advance the EAC's broader objectives. A human rights-oriented interpretive approach might just be the key to realizing a progressive transformation in the rationalization of the right to free movement within the EAC.

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In Defence of Expansive Interpretation in the European Court of Human Rights

Cited by 23 publications

References 15 publications

The Margin of Appreciation, Subsidiarity and Global Challenges to Democracy

The Margin of Appreciation, Subsidiarity and Global Challenges to Democracy

Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts

Defining the Scope of Free Movement of Citizens in the East African Community: The East African Court of Justice and its Interpretive Approach

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