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

Shai Dothan

Keywords: Convention for the Protection of Human Rights and Fundamental Freedoms; European Court of Human Rights; treaty interpretation; human rights

The European Court of Human Rights applies a series of interpretive techniques that systematically expand states' human rights obligations far beyond the obligations states took upon themselves by ratifying the Convention for the Protection of Human Rights and Fundamental Freedoms. Some commentators argue that this practice is illegitimate because states represent their citizens and their decision not to undertake certain human rights obligations should be respected. This paper argues that expansive interpretation is nonetheless legitimate in two important situations which often occur in the international arena. First, in situations where most states would have subscribed to the additional obligation but for a minority of states that use their veto power to prevent an amendment of the Convention, expansive interpretation will bring the states' actions into better alignment with their own desires and the desires of their citizens. Second, in situations where democratic failures lead states to misrepresent the interests of individuals affected by their human rights policies, expansive interpretation can help align the policies of states with the true interests of the citizens they represent. Although the paper does not provide a general justification for expansive interpretation, it does suggest that in certain limited contexts where the conditions identified above hold, it might well serve the goals of international law and international courts.

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