New Haven School, Textuality and Dynamic Interpretation

I found comments of Richard Gardiner on the New Haven School very useful and indeed I ask myself frequently a question as to its continuing salience. I have recently researched the issue of dynamic interpretation of treaties in particular in relation to the practice of the European Court of Human Rights. The Tyrer and the Golder cases are generally treated as the leading cases illustrating the dynamic interpretation of treaties by the ECtHR.  In the latter case the (now defunct) Commssion said as follows: ‘[t]he overriding function of the Commission is to protect the rights of individuals and not to lay down as between States mutual obligations which are to be restrictively interpreted having regard to the sovereignty of those States. On the contrary the role of the Convention and the function of its interpretation is to make the protection of the individual effective’.

In broad brushstrokes it may be said that the main gist of the arguments supporting and promoting the interpretative methods adopted by the ECtHR is a special nature (subject-matter) of the European Convention on Human Rights. It was stated that the ECHR is more than a “common standard of achievement”, but imposes on the Parties a body of legal principles to which they have to conform, compliance with which is at times ensured by the machinery set up under the Convention. When the case is brought before the Court, the fundamental function of this machinery is to ascertain whether the national law conforms to the provisions of the Convention. It has been suggested that under the regime of the ECHR, the reliance upon classical tenets of international law such as nationality and reciprocity is unnecessary.  Although the Convention itself is drafted in the traditional form of a treaty, from the point of view of substance its “law transcends the traditional boundaries drawn between international law and domestic law. In short, the Convention is sui generis”, is neither international nor domestic although it comprises of both elements. The argument further is developed that the Convention’s law is not simply a law applied by the Court (and previously the Commission).  On the one hand, the Committee of Ministers of the Council of Europe also apply it, as well as, on the other hand the doctrinal (theoretical) background for the interpretative methods of the ECtHR was elucidated in many Judgements of the Court, as well as numerous publications.

My hypothesis is that such an approach to intepretation may have doctrinal roots in the New Haven School as it was stated:    

‘The main objective of an agreement is to project a common policy with the respect of future distribution of values and the purpose of  interpretation is to discern the shared expectations of the Parties, which may be adjusted by the interpretator to the goals of public order, including human dignity, which realisation the authors encourage. The authors formulated as follows the main objective of  interpretation:

 [t]he primary, distinctive goal stipulates that decision-makers undertake a disciplined, responsible effort to ascertain the genuine shared expectations of the particular parties to an agreement. This link with fundamental policy is clear: to defend the dignity of man is to respect his choices and not, save for overriding common interest, to impose the choices of others upon him.  

(M.McDougal, H.Laswell and J.C. Miller, The Interpretation of Agreements and World Public Order: Principles of Content and Procedure, (New Haven, London: Yale University Press, 1967).  See a very critical analysis of this theory: G.Fitzmaurice, “Vae Victis or Woe to the Negotiator? Your Treaty of Our Interpretation of It” (review essay), 65 AJIL (1971), pp. 358-73).

The establishment of a common order which is not only legal but based on common moral standards, is what the European Court of Human Rights is attempting to do in its jurisrudence. In my view, the importance of the New Haven Theory of interpretation is embodied, at least to a certain extent in the practice of the Court (which of course was subject to very ascerbic criticism of Fitzmaurice, in his Opinions during his term as a Judge of this Court).