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

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.