How (Difficult Is It) to Build Consensus on (European) Consensus?

Abstract

This is the introductory chapter of an edited collection on the European consensus (EuC) method of interpretation within the system of protection of the European Convention on Human Rights. The use of this method raises two interconnected sets of questions: the first concerns the conceptualization, delimitation and function of EuC; the second relates to the value of EuC in the context of (international) human rights adjudication. These two sets of questions broadly correspond to the first and second Parts of the book, respectively, although the borders between the two are inevitably porous. The third Part of the book explores the transfer-ability of EuC in other juridical contexts or its comparability with potentially analogous methods employed in different legal systems within and outside Europe, both at the national and the inter/supra-national level. The chapter starts by offering a brief overview of EuC, with the express caveat that its aim is not to convey certainties as to the ‘what’ and the ‘how’ of EuC. As such, the outline offered in the chapter leaves several questions unanswered and should be read with a critical eye. As all aspects of EuC are open to competing and often conflicting interpretations, any attempt to draw a conceptual map can (and should) be open to challenge. To that end, the outline is primarily designed to raise some of (the very many) questions pertaining to the function, evaluation and transfer-ability of EuC. Section 3 endeavors to explain why any attempt to build consensus on EuC is bound to face significant hurdles and to identify the causes of the diverging academic opinions on EuC. It also offers a justification of the authors’ (partial) ‘agnosticism’ vis-a-vis EuC and of their reluctance to provide a more detailed overview of its role and function in this introductory chapter. Section 4 describes the contribution the book aspires to make and lays down signposts to guide readers through the structure and the main questions discussed in each of the book’s three Parts. Section 5 concludes by acknowledging the limits and limitations of the book, while issuing a rallying call for more research on (European) consensus in human rights adjudication.