Better signposts or better walking sticks? How to improve the “Emerging European Consensus” doctrine of the European Court of Human Rights - and Why?
Human Rights Seminar with Co-director Andreas Føllesdal
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 paper 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 grous.
The Human Rights Seminars are a forum to discuss ongoing work and recent publications for researchers working on human rights issues. The aim is to create a fora for exchanging ideas, generate discussions, and get feedback from other human rights scholars. The human rights seminars are linked to the human rights researchers at PluriCourts, but open to everyone that is interested. These seminars are a continuation of the MultiRights lunches.