Interpretation of the European Convention on Human Rights

Does the right to life under article 2 ECHR include the right to terminate one's life? Does the right to private life under article 8 ECHR include the right to sleep at night free from airplane noise? Does the right to property under article 1 Protocol 1 ECHR entitle the former King of Greece to claim compensation for the expropriation of royal property, following a referendum? Do homosexual couples have a right to adopt under article 8 ECHR? This book looks at both how the European Convention on Human Rights has, and ought to, be interpreted. Unlike a purely doctrinal approach, it aims at proposing an evaluative theory of interpretation for the European Convention on Human Rights. And, unlike a purely normative account, it seeks to locate interpretive values within the history of the ECHR by surveying and analysing all the relevant judgements of the European Court of Human Rights. Consequently, the book discusses cases as much as it discusses philosophical theories, striking an appropriate balance between the two.

Examining how law should be interpreted and what legal rights individuals have, this book raises important questions of political morality that are both capable - and in need of - principled justification. George Letsas argues that evolutive interpretation does not refer to how most European member States now understand their obligations under the Convention but to how they should understand them given the egalitarian values that they share. He defends the idea of an emerging consensus combined with a theory of autonomous concepts as a way to provide the appropriate authority for the Court to adopt an egalitarian theory of human rights.

A Theory of Interpretation of the European Convention on Human Rights provides a philosophically informed study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-Americal legal, political and moral philosophy, the book also aims to provide a normative theory of the foundations of the ECHR rights.

Readership: Academics and advanced students of European human rights, jurisprudence, and philosophy.

George Letsas, Lecturer in Law, University College London.

1: Human Rights, Legality, and the ECHR
Introduction
Background to and a Very Brief History of Human Rights
No One-Size-Fots-All Theory of Human Rights
Human Rights as Conditions of Legitimacy
Human Rights, Legal Rights, and Interpretivism
Conclusion
2: Autonomous Concepts, Conventionalism, and Judicial Discretion
Introduction
The Emergence of Autonomous Concepts
Good-Faith Violations of the ECHR
A More Recent Example of an Autonomous Concept
Autonomous Concepts and Judicial Discretion
Need for Harmonization and Uniform Application?
Autonomous Concepts as Disagreement
Does Disagreement Entail Judicial Discretion
Possible Choices
3: The Semantic Sting and the ECHR
Intentionalism, Textualism, and Evolutive Interpretation
Introduction
Originalism in Constitutional Law
Golder v UK VCLT and the Case of Unenumerated Rights
After Golder: the ECHR as a Living Instrument
The Failures of Originalism
The Object and Purpose of the ECHR
Evolutive Interpretation: Truth Not Current Consensus
4: Two Concepts of the Margin of Appreciation
Introduction
Theories of International Human Rights Law
The Substantive Concept of the Margin of Appreciation
The Structural Concept of the Margin of Appreciation
Consensus and Public Morals
5: Liberal Principles of Human Rights Interpretation
Introduction
Rights, Interests, and Reasons
Liberal Egalitarian Theories of Rights: Rawls and Dworkin
Liberal Egalitarian Principples for the Interpretation of the Limitation Clauses
6: Public Morals, Consensus, and Rights Inflation: A Critque
Introduction
Public Morals and the Moralistic Preferences of the Majority
Consensus, Piecemeal Evolution, and Legality
Rights Inflation: Hatton and the Right to Sleep Well

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