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

from Part II - Appraising European Consensus

Published online by Cambridge University Press:  04 January 2019

Panos Kapotas
Affiliation:
University of Portsmouth
Vassilis P. Tzevelekos
Affiliation:
University of Liverpool
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Summary

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 by such a consensus. A consensus may lead the Court to restrict the margin of discretion it accords a respondent State, or subject it to stricter scrutiny. The chapter 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.
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Chapter
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Building Consensus on European Consensus
Judicial Interpretation of Human Rights in Europe and Beyond
, pp. 189 - 209
Publisher: Cambridge University Press
Print publication year: 2019

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