Volumen de madera comercial

In the previous section, it was argued that in order to establish an evolutive interpreta- tion one or more interpretation methods are needed. Often evolutive interpretation is linked to comparative interpretation.98_{On the basis of the literature on the Court’s}

interpretative methods, it would seem reasonable to conclude that other interpretation methods only play a limited role in the context of evolutive interpretation.99 _Even

though it is not often mentioned as a relevant method in establishing an evolutive interpretation, micro-teleological interpretation could in theory play a role as well

98 Mahony (1990), p. 73-74; Prebensen (2000), p. 1128.

99 Some authors argue that the consensus only serves as a rhetorical instrument and that the ECtHR is not really interested in an evolution towards a common standard. Letsas (2007), p. 79.

Principle of evolutive interpretation

in establishing an evolutive interpretation.100_{Through the course of time the object}

and purpose of a provision might change and thus an evolutive approach can be supported by a changed understanding of the object and purpose of a specific provi- sion. In that case the evolutive approach would be supported by a teleological inter- pretation and not a comparative interpretation. Despite the fact that a case law analysis should reveal the actual practice of the ECtHR in establishing an evolutive interpreta- tion, it seems warranted to conclude for now that comparative interpretation plays the main part in this regard and not teleological interpretation.

The next question is then how comparative interpretation can be used by the Court as an instrument to establish an evolutive interpretation. Most authors claim that the ECtHR relies on the internal component of comparative interpretation to find a consensus among the Contracting States.101 _{Attention has already been devoted to}

the fact that it is not clear how the ECtHR employs references to an internal con- sensus.102 _{The most important concern for the present discussion is that it is not}

clear when there is a sufficient consensus for an evolutive interpretation. Is a majority of Contracting States sufficient or is there another requirement? This is also an aspect that can be analyzed in the Court’s case law.

Assuming that the ECtHR does rely on a consensus to establish an evolutive approach, this can be criticized from a perspective of the need for substantial reasoning in fundamental rights cases. Behind the reliance on conditions in the Contracting States to establish an evolutive interpretation lies a presumed respect for state sover- eignty.103_{In the view of one author this respect can be motivated by the following}

consideration: ‘it is better to defer to state consent which is a valid source of state obligation than to allow individual judges to impose new obligations upon sovereign states’.104_{This argument resembles the argument in the national context that judges}

should in some cases defer to the democratic legislator, who has a stronger legitimacy than the courts to determine ‘new’ rights and obligations. However, LETSAShas argued

that this is not a valid argument in the context of fundamental rights.105_{The content}

of fundamental rights in his view should not be determined by sovereign states and the eventuality of their agreement or disagreement on certain issues, but on the basis

100 See Chapter 5 for a discussion of micro-teleological interpretation.

101 The authors do not qualify their description as internal comparative interpretation, but it does boil down to that type of comparative interpretation. See: Bernhardt (1999), p. 20; Mahoney (2000), p. 69; Rigaux (1998), p. 41; Helfer (1993), p. 135. For a description of internal comparative interpretation, see Chapter 6.

102 A number of practical concerns on the practice of invoking consensus arguments have been noted in section 6.1.6.2.

103 See section 6.1.4. on comparative interpretation. 104 Letsas (2007), p. 72.

105 Letsas (2007), p. 73.

Chapter 7

of substantive arguments.106_{Therefore, according to LETSAS, consensus should not}

play a role in determining an evolutive interpretation. He has even argued that in the reasoning of the ECtHR an internal consensus does not really determine the evolutive interpretation. In his view, the ECtHR establishes the evolutive interpretation by looking for a ‘moral truth of ECHR rights’. In LETSAS’ view this conclusion can be

drawn for three reasons.107 _{First of all, he argues that the ECtHR does not take a}

comparative study seriously, which would have been the case, in his view, if they did fully rely on a consensus. Secondly, he argues that the reasoning of the ECtHR is based on substantive arguments and not arguments based on a common denominator. Finally, he argues that the ECtHR emphasizes the value of an evolutive approach by arguing that it leads to ‘a better understanding of ECHR rights’.108 _{These three}

factors lead LETSASto conclude that the ECtHR does not rely on the common de-

nominator when establishing an evolutive approach. This is interesting in the light of the view taken by different authors, who claim that evolutive interpretation is based on comparative interpretation. It will be interesting to see if the ECtHR itself pays attention to this specific issue of the reasonableness of using a comparative approach to establish evolutive interpretation, either expressly or implicitly (i.e. by just using comparative interpretation without showing evident concern for the lack of substantive reasoning). This particular aspect will therefore be part of the case law analysis in Chapter 11.