No Consensus on Consensus

(2013) 33 HRLJ 248–263

18 Pages Posted: 22 Feb 2014 Last revised: 23 Feb 2014

See all articles by Luzius Wildhaber

Luzius Wildhaber

University of Basel

Arnaldur Hjartarson

University of Iceland

Stephen Donnelly

Faculty of Advocates

Date Written: December 31, 2013

Abstract

This paper analyses the role of consensus among states in the case-law of the European Court of Human Rights. It first presents a brief overview of the origins and the development of the present approach to consensus analysis before discussing the diverging concepts and theoretical explanations of European consensus. The focus of the paper is then on the normative and dogmatic bases of consensus analysis, reaching from European and extra-European domestic legal systems to treaties, judgments of international courts, and soft law. This is followed by a brief inquiry into how binding consensus ought to be. The final parts of the analysis set out the results of our survey of the mechanics of consensus analysis as practised by the ECtHR. We conclude that consensus analysis has a sound basis in both principle and pragmatism.

Keywords: Human rights, international law

Suggested Citation

Wildhaber, Luzius and Hjartarson, Arnaldur and Donnelly, Stephen, No Consensus on Consensus (December 31, 2013). (2013) 33 HRLJ 248–263. Available at SSRN: https://ssrn.com/abstract=2398955

Luzius Wildhaber

University of Basel ( email )

Petersplatz 1
Basel, CH-4003
Switzerland

Arnaldur Hjartarson

University of Iceland ( email )

Iceland

Stephen Donnelly (Contact Author)

Faculty of Advocates ( email )

Parliament House
Edinburgh, Scotland EH1 1RF
United Kingdom

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