European Consensus: A Worthy Endeavour for the European Court of Human Rights?
| Author | Daniel Regan |
| Position | Senior Sophister LLB Candidate, Trinity College Dublin |
| Pages | 51-76 |
"EUROPEAN
CONSENSUS":
A
WORTHY
ENDEAVOUR
FOR
THE
EUROPEAN
COURT
OF
HUMAN
RIGHTS?
DANIEL REGAN*
The
aim
of
the
Council
of
Europe
is
the
achievement
of
greater
unity
between
its
members
and
...
one
of
the
methods
by
which
that
aim
is
to
be
pursued
is
the
maintenance
and
further
realisation
of
human
rights
and
fundamental
feedoms
...
which
...
are
best
maintained
on
the
one
hand
by
an
effective
political
democracy
and
on
the
other
by
a
common
understanding
and
observance
of
the
human
rights
upon
which
they
depend.
Introduction
The
European Convention
for
the
Protection
of
Human
Rights
and
Fundamental Freedoms
(ECHR)
is
widely
regarded
as
one
of
the
most
effective
and
successful
international instruments
for
the
protection
of
human
rights.
The
European
Court
of
Human
Rights
(ECtHR)
has
played
an
active role
in
fortifying
the
strength
of
the
Convention
in
this
regard.
The
jurisprudence
of
the
Court
has
enlightened
not
only
national
judges
throughout
the Council
of
Europe;
it
has
become
an
"indelible
source
of
inspiration"2
around
the globe.
The
high esteem
in
which
the
Court
is
held
has
not
only
been
a
result
of
the
quality
of
its
jurisprudence,
but
also
of
its
ability
to
provide practical
and
effective remedies
to
vulnerable individuals
who
seek
its
protection.
The
success
of
the Court
in
this
endeavour
is
largely
due to
its
strong
commitment
to
give
the
Convention
a
living
interpretation
and
to
read
the
rights
protected therein
in
light
of
present-day
conditions.
This
practice
has
been
essential
in
enabling
the
Court
to
further
realise
human
rights
and
fundamental
freedoms.
A
recurring theme
in
the
jurisprudence
of
the
Court
has
been
its
persistent
search for
a
"European
Consensus"
as
to
the
content
and scope
of
the
various
Convention
rights. When
faced
with
the
task
of
interpreting
a
Convention
provision
the
Court frequently examines
the
state
of
the
law
Senior
Sophister
LLB
Candidate,
Trinity
College
Dublin.
The
author
would
to
thank
Dr
Catherine
Donnelly
for her
comments
and
suggestions
on
this
article.
1
The
Preamble
to
the
European
Convention
of
Human Rights.
2
Eyal
Benvenisti, "Margin
of
Appreciation,
Consensus,
and
Unilateral
Standards"
(1998-
1999)
31
NYU
Journal
ofInternational
Law
and
Politics
843.
C
2011
Daniel Regan
and
Dublin
University
Law
Society
Trinity
College
Law
Review
in
the
Contracting
States
to
the
Convention.
It
does
this
with
the
aim
of
finding
a
common European understanding
of
the
right
in
question.
This
practice,
which
permeates
the
jurisprudence
of
the
Court,
is
premised
on
the
notion that
the
content
and
scope
of
the
rights
contained
in
the
Convention
are
relative
to
the
understanding
of
those rights
in
the
Contracting
States.
The
understanding
of
a
Convention
right
can
only
be
altered
where
there
is
a
European
Consensus
on
the
evolution
of
the
scope
of
the
right.
It
is
submitted
that
the practice
of
seeking
a
European
Consensus
is
incompatible
with
the
Convention's
aim
of
providing
protection
of
certain
fundamental
rights
enshrined
in
the
Universal
Declaration
of
Human
Rights.
3
In
order to
provide universal
protection
of
the
Convention
rights
and
to
give
the
Convention
a
fully
evolutive
interpretation,
it
would
be
preferable
for
the
Court
to
set
out
autonomous
standards
of
Convention
norms
and
abandon
its
search
for
consensus among
the
Contracting
States.
The
first section
of
this
article
highlights
the
procedural
frailties
of
the
consensus doctrine
and
its
susceptibility
to
manipulation
by
the Court;
the
second section
illustrates
the
consensus
doctrine's
capacity
to stifle
normative development
of
human
rights
standards
and
the
third
section
argues
that
searching
for
consensus
is
inappropriate
in
light
of
developments
in
international
law,
such
as
the
erosion
of
the
absolute
sovereignty
of
the
state and
the
universal application
of
human
rights.
The
fourth
and
final
section
of
the article
suggests
that
the Court
can
find
support
for
the
use
of
autonomous
standards
in
its
own
jurisprudence
and
in
the
case law
of
the
Court
of
Justice
of
the
European
Union
(CJEU),
lending
credence
to
the
argument
that
the
Court
must
abandon
the
consensus doctrine
and
instead
use
its
comparative
law
exercises
as
a
source
of
inspiration
in
developing
such
independent
understandings
of
Convention
rights.
Procedural
Flaws
in
the
Consensus
Doctrine
The
suggestion
that
there
are
serious
procedural
frailties endemic
in
the
search
for
a
European
Consensus
is
based
on
two
fundamental
problems
with
the
comparative procedures
of
the
Court.
The
first,
and
perhaps
most
critical
problem, with
the
doctrine
is
the
failure
of
the
Court
to
give
any
3
See
Preamble
to
the
Convention,
where
the
Contracting
States
proclaim
the
purpose
of
the
Convention
as
follows:
"Being
resolved,
as
the
governments
of
European
countries
which
are
likeminded
and
have
a
common heritage
of
political
traditions,
ideals,
freedom
and
the
rule
of
law,
to
take the
first
steps
for
the
collective
enforcement
of
certain
of
the Rights stated
in
the
Universal Declaration."
52 [Vol. 14
To continue reading
Request your trial