A Better Signpost, Not a Better Walking Stick: How to Evaluate the European Consensus Doctrine

Panos Kapotas and Vassilis Tzevelekos (eds.) On European Consensus (Cambridge: Cambridge University Press, 2018),

17 Pages Posted: 5 Mar 2018

Date Written: July 7, 2017

Abstract

One contested practice of the European Court of Human Rights is the role of an 'emerging European consensus,' concerning alleged common ground among the States. The Court sometimes defends its ‘dynamic interpretation’ of the European Convention on Human Rights (‘Convention’) by such a Consensus. A consensus may lead the Court to restrict the margin of discretion it accords an accused state, or subject it to stricter scrutiny.

The article assesses this consensus practice. A much needed specification of the practice should draw on a normative account of why and where the Court should draw on a consensus, if at all. Section 1 sketches the Consensus practice, section 2 identifies several vague aspects. Section 3 considers critically several arguments offered in its favour. The practice does not render the interpretation more democratic. And consensus toward one particular legislative solution is inappropriate. Consensus may however help discover hitherto unnoticed discrimination against groups.

Keywords: European Court of Human Rights, margin of appreciation, proportionality, human rights, European Consensus

Suggested Citation

Follesdal, Andreas, A Better Signpost, Not a Better Walking Stick: How to Evaluate the European Consensus Doctrine (July 7, 2017). Panos Kapotas and Vassilis Tzevelekos (eds.) On European Consensus (Cambridge: Cambridge University Press, 2018), . Available at SSRN: https://ssrn.com/abstract=3018772 or http://dx.doi.org/10.2139/ssrn.3018772

Andreas Follesdal (Contact Author)

Pluricourts ( email )

P.O. Box 6706
St. Olavs plass 5
0130 Oslo
Norway

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