2.4 The European Court of Human Rights
Common law and the court hierarchy, statutory interpretation and judicial precedent are all peculiar to the domestic English law. The European Court of Human Rights operates in a different way. The rights in the European Convention on Human Rights are stated in general terms and are interpreted according to international legal principles. For example, Article 31(1) of the Vienna Convention on the Law of Treaties states:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
The European Court of Human Rights follows its own rules and procedures. Set up in 1959, it derives its authority from the ECHR. The number of judges is equal to the number of contracting states. There is no restriction on the number of judges of the same nationality. The judges do not sit in judgement in every case as the European Court of Human Rights is split into Committees and Chambers. Most decisions are reached by majority vote and judges hearing a case are able to give a separate opinion, whether concurring or dissenting. The ECHR is seen as a ‘living instrument’ so there is no doctrine of precedent. This allows for contemporary changes to be taken into account when interpreting a convention article. The European Court of Human Rights seeks to realise the objects and purpose of the ECHR subject to the doctrine of the margin of appreciation. The margin of appreciation is an international doctrine/concept and is not found under discussion in national courts. It allows states to accommodate their national traditions in applying the European Convention on Human Rights.