The Use of Consensus Arguments in Transnational Judicial Decision-Making: Confirming or Jeopardising Universal Human Rights

Abstract

It is interesting to note that highest regional or national courts may focus on consensus within their legal system when interpreting human rights provisions, while at times they also consider the conformity with other legal systems. This paper discusses the use of consensus arguments by the European Court of Human Rights (ECtHR), the US Supreme Court and the Supreme Court of Canada, and explores whether this use supports and confirms or jeopardises the universality of human rights. Firstly, the paper outlines the conceptual framework for the analysis, addressing the context in which the three courts operate as well as the connection between the ideas of universality and consensus and the judicial use of comparative law. Secondly, the paper exposes and discusses seemingly conflicting signals concerning the value of ‘consensus’ and ‘universality of human rights’ in the jurisprudence of these influential Courts. The ECtHR’s acknowledgement that it needs to consider international law and the related consensus supports universality of human rights, while granting the contracting states a margin of appreciation seems to jeopardise it. Furthermore, linking strict scrutiny to a strong consensus arguably strengthens universality of rights, while coupling weak scrutiny to low consensus further undermines it. In the Supreme Courts of the US and Canada, the optional reference to international opinion and foreign law (including the ECtHR judgments) can inform domestic judicial decision-making, thus confirming the universality of human rights. However, the controversy in the US Supreme Court clarifies that the use of foreign sources can induce a defence of national fundamental values, thus strengthening the argument against universal human rights. A close analysis of selected leading judgments will enable identifying the degree to which the overall jurisprudence of the three Courts confirms or jeopardises the universality of human rights.