Judicial Deference Allows European Consensus to Emerge

27 Pages Posted: 6 Nov 2017 Last revised: 7 Feb 2018

Shai Dothan

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: April 23, 2015

Abstract

The European Court of Human Rights (ECHR) searches for human rights policies that are adopted by the majority of the countries in Europe. Using a doctrine known as "emerging consensus," the court then imposes these policies as an international legal obligation on all the countries under its jurisdiction. But the ECHR sometimes defers to countries, even if their policies fall short of the standard accepted by most of the countries in Europe. This deference is accomplished by using the so-called "margin of appreciation" doctrine. Naturally, emerging consensus and margin of appreciation are often conceived as competing doctrines: the more there is of one, the less there is of another. This article suggests a novel rationale for the emerging consensus doctrine: the doctrine can allow the ECHR to make good policies by drawing on the independent decision-making of many similar countries. In light of that, the article demonstrates that a correct application of the margin of appreciation doctrine actually helps emerging consensus reach optimal results by giving countries an incentive to make their policies independently.

Keywords: European Court of Human Rights, Margin of Appreciation, Emerging Consensus, Jury Theorem.

Suggested Citation

Dothan, Shai, Judicial Deference Allows European Consensus to Emerge (April 23, 2015). Chicago Journal of International Law, Vol. 18, p. 392, 2018; iCourts Working Paper Series No. 22. Available at SSRN: https://ssrn.com/abstract=2597949 or http://dx.doi.org/10.2139/ssrn.2597949

Shai Dothan (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

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