European Consensus and International Law

Abstract

The concept of ‘European consensus’ is the creation of the European Court of Human Rights. Early on, the Court determined that the European Convention on Human Rights is a living instrument and that, in interpreting the Convention over time, the Court has to take the changing attitudes in societies into consideration. The European consensus is an element within the so-called evolutive interpretation of the Convention. Nevertheless, the details as to its origin and scope remain controversial and give rise, from time to time, to a criticism of the Court as to its use of the concept of European consensus in the case at hand. This chapter focuses on any possible analogy that the concept of European consensus may have to the sources of international law and its possible relationship with the general rule of interpretation of a treaty. This is done with the aim of providing the elements of reflection within the debate which claim that the Court, in interpreting the Convention, overshadows State consent on the scope and content of the Convention. The chapter concludes that, upon a closer look, the Court has resorted to European consensus largely within the confines of the general rule of interpretation of a treaty. The notion has denoted both subsequent State practice as well as new regional customary law. Clearer differentiation between these types of situation would help the Court avoid the criticism of too much evolutive interpretation.