International Custom Making and the ECtHR's European Consensus Method of Interpretation
European Yearbook on Human Rights, 2016, vol. 16, pp. 313-344.
30 Pages Posted: 7 Jul 2016
Date Written: July 6, 2016
European consensus (EuC) is a method of interpretation created by the European Court of Human Rights (ECtHR), which uses it to adjudicate cases involving morally/politically sensitive issues. The method consists of comparative analysis as a means for the identification of evolution in the practice of European states that reflects consensus about the emergence of human rights standards. If the Court finds consensus, it permits itself to establish pan-European standards that bind all states under its jurisdiction. The paper asks whether -- outside its actual function -- EuC may be employed to identify (regional) custom stemming from the practice of the European Convention of Human Rights signatories, that is, if EuC may be seen as a method for the identification of custom. To answer that question, the paper examines the function of EuC and compares it with custom. To escape the problem of the plurality of definitions of and perceptions about custom, the paper turns to the role of international judges and courts in the identification of custom, arguing that, although these do not make customary rules (i.e. judicial function is not constitutive of custom), they are in a position to drastically influence the definition of custom as a source of law. The conclusion reached is that, despite EuC’s sonorous similarities with custom, there are also significant differences between the two. EuC is not tantamount to custom. Yet, this could change if the ECtHR decided to define (regional) custom as coinciding with EuC. This is so because courts have the power and authority to shape the definition of custom.
Keywords: European consensus, European Convention on Human Rights, European Court of Human Rights, treaty interpretation, evolutive/dynamic interpretation, international customary law, law making, sources of international law, judicial function, state practice, regional/particular custom, rule of recognition
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