In his latest book, Georgios A. Serghides, Judge and Section Vice-President at the European Court of Human Rights (hereinafter, the “Court”), delves into the interpretation and application of the European Convention on Human Rights (hereinafter: the “Convention”), in light of the principle of effectiveness (hereinafter: the “principle”).
Content and Main Findings
Judge Serghides observes two main characteristics of the principle of effectiveness. First of all, it is a method of interpretation. On the other hand, it is a norm of international law inherent in each Convention provision. This is where the author brings in a rather new element. The majority doctrine and the Court itself usually treats the principle as a method of interpretation, putting forward that it requires the interpretation which best guarantees the effectiveness of a treaty, considering that the drafters meant for the norm to be applied.
In its capacity as a method of interpretation, the principle of effectiveness requires for the Convention provisions in question to be interpreted to give the fullest weight and effect consistent with its natural and ordinary meaning and in its context as well as with its object and purposes. In other words, the Convention should be interpreted in such a manner that it guarantees are rendered practical and effective, rather than being theoretical and illusory, for the applicant.
According to Article 31 (1) of the Vienna Convention on the Law of Treaties, a treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in its light its object and purpose. On this, Serghides argues that the elements of interpretation named in Article 31 (1) of the Vienna Convention of the Laws of Treaties are the ordinary meaning and the object and purpose of the treaty as well as, albeit of a different nature, good faith and effectiveness, which refer to the manner in which the first two elements should be interpreted. In this vein, Judge Serghides compares the Convention to a human being, with the element of effectiveness being everywhere, in its sold, body and mind.
Judge Serghides postulates that the capacity of the principle of effectiveness as a norm of public international law finds its source in each Convention provision; that norm of public international law exists as an element as well as the raison d’être. Through this, the principle, as an inherent part of the norm, achieves its object by way of giving effect to the international legal rule. As Judge Serghides states, treaties are not drafted without the intention that their provisions should operate with effectiveness relating to their scope. He thus considers that “effectiveness” is an indispensable capacity, or an inherent element of an international legal rule.
Here, I disagree with Judge Serghides. Taking into account my experience where I have actively participated in the conclusions of international agreement and multilateral treaties, as a senior legal adviser, I am of the view that indeed international treaties are drafted with their provisions should operate with effectiveness relating to their scope. As the Vienna Convention of the Law on Treaties stipulates that the treaty must be interpreted in light of their object and purpose. Therefore, the interpretation of the object of purpose must necessarily must be complemented by using the principle of effectiveness.
As set out in the book, the principle of effectiveness as a norm of international law follows the three significant innovations that the Convention has introduced in international law: the right for individual petitions before the Court (Article 34 of the ECHR), the system of collective guarantees provided as regards inter-state disputes (Article 33 of the ECHR), and the mechanism to resolve complaints, either by settlement or, if necessary, by adjudication through the Court (Article 39 of the ECHR). Other Convention provisions, such as Article 1 and 13, are evoked in this respect.
The author suggests that the Court should, when referring to the principle, adopt the distinction between the two capacities and clarify that it is using the principle both as a norm and as a method of interpretation. In this regard, the author argues that when applying the principle of effectiveness, as an international norm, an inherent element of a Convention norm, it is indispensable to take into consideration its capacity as a method of interpretation. Elaborating this argument, Judge Serghides argues in his concurring opinion in Muhammad and Muhammad v. Romania (no. 80982/12, 15 October 2020, § 18) that the principle as a method of interpretation would not fulfil its task if it were to be employed such as to assist in interpreting and applying a norm of effectiveness in a Convention provision which was, in the first place, misconstrued as to its nature and content, e.g. by considering the right as a qualified right when it is an absolute right. In other words, in such a case, the principle as a method would work against the principle as a norm, resulting in a breach of the respective right.
Furthermore, Judge Serghides sets out, that the principle as a method of interpretation would lose its strength and importance without its existence as an international law or Convention norm. he summarises the inter-relationship between the two identified capacities as follows: because the legal rule is to be effective (its use as a “norm”), it should be interpreted as such (its use as a “method”).
Having laid down the above framework of his book, Judge Serghides goes on the analyse the Court’s case-law in respect to the principle of effectiveness. He identifies in respect to the principle of effectiveness. He identifies three categories of manners in which the Court applies the principle: “direct and nominal”, “indirect and non-nominal”, as well as “implied application of the principle”.
The author goes on to recognise the principle as the source of two Convention doctrines, namely the doctrine of the State’s positive obligations to secure human rights on the other hand, and the doctrine that the Convention is a living instrument and it should be interpreted in the light of present-day conditions on the other hand.
The second part of the book turns out to the operational framework of the principle by demonstrating its polyvalent nature and action from two perspectives, having regard to its dual nature, harmonising and defensive, and its action at all stages of the procedure including the implementation of the Court’s judgements.
Judge Serghides impressively demonstrates, the principle of effectiveness is of central importance in the entirety of the Court’s work, from preliminary proceedings to implementation. Judge Serghides pays detailed attention to the Court’s respective case-law, scrutinizing it carefully and systematically. One of his main points of critique is that the Court does not describe the principle as a norm of public international law inherent in all Convention provisions in the judgements, but merely treats it as a method of interpretation. This happens regularly not so clearly and explicitly.