Chapter

Treaty Interpretation, Current State Practice,and Other International Law Influences on the Practice of Deference

Andrew Legg

in The Margin of Appreciation in International Human Rights Law

Published in print July 2012 | ISBN: 9780199650453
Published online September 2012 | e-ISBN: 9780191741173 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199650453.003.0005

Series: Oxford Monographs in International Law

Treaty Interpretation, Current State Practice,and Other International Law Influences on the Practice of Deference

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This chapter assesses the current practice of states (“consensus”) as another factor affecting the margin of appreciation. It is controversial amongst commentators, some of whom regard it as a distraction when selecting standards. However, the consensus factor is justified on the basis of state consent, the sovereign equality of states, and the Vienna Convention on the Law of Treaties, particularly Article 31(3)(b). Since human rights treaties have a special status (they provide standards of protection to individuals) interpretation based on state practice can only be relevant as an indicator of where differing standards might be appropriate. The “consensus” factor need not be measured with precision. The chapter considers the role of interpretative concepts such as “evolutive interpretation”, “autonomous meanings”, and “conventionality control”. It discusses deference to other international norms (e.g., customary international law, jus cogens, obligations erga omnes), institutions and organisations (e.g., the UN Security Council, the European Community).

Keywords: consensus; treaty interpretation; sovereign equality; evolutive interpretation; autonomous meanings; conventionality control; jus cogens; erga omnes obligations

Chapter.  22368 words. 

Subjects: Public International Law

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