Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control

European Journal of International Law 28 (2017) 3, 871–893

Posted: 17 Apr 2017 Last revised: 18 Jan 2018

Thomas Kleinlein

Friedrich-Schiller-University Jena; Goethe University Frankfurt - Cluster of Excellence Normative Orders

Date Written: January 31, 2017

Abstract

This article fathoms the contestability of a European Consensus and its significance for the legitimacy of the European Court of Human Rights (ECtHR). A ‘combined legitimation strategy’ of the ECtHR, comprising European Consensus and the new procedural approach to the margin of appreciation indicated by several judgments of the ECtHR, opens up spaces for democratic contestation and deliberation. Progressive, rights-friendly judgments that take a mere trend in ‘vanguard’ State Parties for a European Consensus will probably provoke domestic contestation in ‘laggard’ states. This potential backlash can be productive because it can subsequently impart additional legitimation on the ECtHR’s judgment. Procedural rationality control, in turn, ensures that this avenue of democratic legitimation is kept open and that there are institutional structures and processes to consider and balance human rights adequately in domestic debates. Combining consensus-based arguments with a procedural approach to the margin of appreciation reconciles the impact of a European Consensus and the need for democratic deliberation. High standards in domestic procedures can possibly rebut the presumption in favour of the solution adopted by the majority of Convention States. Potentially, this approach also allows democratic domestic law-making institutions to react to judgments of the ECtHR based on a European Consensus.

Keywords: European Court of Human Rights, Margin of Appreciation, Procedural Approach, European Consensus, Legitimation

JEL Classification: K33

Suggested Citation

Kleinlein, Thomas, Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control (January 31, 2017). European Journal of International Law 28 (2017) 3, 871–893. Available at SSRN: https://ssrn.com/abstract=2953195

Thomas Kleinlein (Contact Author)

Friedrich-Schiller-University Jena ( email )

Faculty of Law
Carl-Zeiss-Straße 3
Jena, Thuringa 07743
Germany

HOME PAGE: http://www.rewi.uni-jena.de/Kleinlein

Goethe University Frankfurt - Cluster of Excellence Normative Orders ( email )

Frankfurt am Main
Germany

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