European Consensus and the Evolutive Interpretation of the European Convention on Human Rights

German Law Journal, Vol. 12, pp. 1730-1745, 2011

16 Pages Posted: 31 Oct 2011

Date Written: October, 30 2011

Abstract

It is widely accepted that evolutive interpretation is necessary to keep European human rights effective and up to date. This concept supposes that the rules the European Court of Human Rights (ECtHR) applies can be changed over time. These changes, no matter how necessary they are, undermine the procedural legitimacy of the judgments. European consensus is a tool of interpretation that adds predictability and consistency into the case law. European consensus, while limiting the ECtHR’s ability to change, is not absolute and can be disregarded by the ECtHR if there are reasons for doing so.

This paper illustrates two extreme points of view on the legitimacy of evolutive interpretation and European consensus. Lord Hoffmann argues that the ECtHR is lacking legitimacy to dynamically interpret the norms of the European Convention on Human Rights (ECHR) up to the inclusion of new rights; the ECtHR should only reflect what the Contracting Parties consented to. Judge Zupančič of the ECtHR maintains that European consensus and the State’s consent are much less relevant for the decision-making process in the ECtHR. The paper aims to find a middle ground between these two extremes. It is argued that European consensus has a legitimizing potential to support the contested legitimacy of evolutive interpretation.

Keywords: European Court of Human Rights, evolutive interpretation, European consensus, European Convention on Human Rights, legitimacy

Suggested Citation

Dzehtsiarou, Kanstantsin, European Consensus and the Evolutive Interpretation of the European Convention on Human Rights (October, 30 2011). German Law Journal, Vol. 12, pp. 1730-1745, 2011, Available at SSRN: https://ssrn.com/abstract=1951371

Kanstantsin Dzehtsiarou (Contact Author)

University of Liverpool ( email )

Brownlow Hill
Liverpool, L69 3BX
United Kingdom

HOME PAGE: http://https://www.liv.ac.uk/law/staff/kanstantsin-dzehtsiarou/

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