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6020 results in European government, politics and policy

Page 98 of 301

  • 4 - Consensus, Stasis, Evolution

  • from Part I - Understanding European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 71-95

  • Summary

    What is the doctrine of consensus as applied by the European Court of Human Rights and how does it relate to the Court’s ‘living instrument doctrine’? This question is addressed in this chapter by paying attention to the definition, the function, the ascertainment and the outcome of the consensus doctrine. Among the many insights this chapter offers, two can be highlighted. First, the concept of opinio juris hominis is introduced in order to qualify a special kind of consensus that is directly related to human rights issues. This consensus carries more weight as it directly establishes a common understanding regarding a human rights issue. It is argued that the Court should continue to restrict the doctrine of consensus to questions of balancing and not to extend it to the interpretation of texts. The chapter demonstrates that Article 31, Section 3 of the Vienna Convention on the Law of Treaties offers all tools to deal with questions of interpretation. Other questions, such as whether differential treatment can be justified or whether a measure impacting upon human rights is necessary in a democratic society, can be dealt with by the consensus doctrine.

  • 16 - National Consensus and the Eighth Amendment

  • from Part III - Consensus Analysis Outside the ECHR System
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 364-391

  • Summary

    The European consensus doctrine employed by the European Court of Human Rights (ECtHR) has been considered as unclear, imprecise and inconsistent. This is problematic in terms of the principles of transparency, clarity and legal certainty. This paper argues that the United States Supreme Court conceptualises consensus analysis in a more consistent manner in consulting ‘national consensus’ in its Eighth Amendment jurisprudence. It identifies the causes for differences between the two courts from which it draws lessons the ECtHR could learn. These causes are structural in nature and originate in innate organisational differences between the two courts. These differences include the number of applications brought before the courts, the number of cases in the docket, the number of sitting judges and their tenure, and the rules on the composition of judicial formations. The paper concludes that there are two non-mutually exclusive courses of action that could be taken to ensure that the European consensus doctrine becomes more clear and consistent. First, the structural shortcomings of the ECtHR could be rectified through structural change in the makeup of its judicial review. Second, change could be achieved organically, through case law, if the permanent members of the Grand Chamber afforded the issue more attention.

  • 6 - Determining the Content of the European Consensus Concept

  • from Part I - Understanding European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 120-140

  • Summary

    This chapter focuses on various connections between the European consensus (EuC) concept and language. It argues, in particular, that scholars’ general perception of language and of using language heavily rests on the ‘Platonic’ assumption that there must always be something in common to all entities that we ordinarily subsume under the same generic name. The assumption is, however, misleading. As the chapter explains, things, properties or facts do usually not get their name on account of their essential characteristics, but on the basis of similarities and affinities that link them to other things, properties or facts bearing the same name. Accordingly, objects allegedly falling under the so-called EuC concept do not necessarily have any common element or essence justifying our practice to denote them by the same term and it is therefore futile to aim the investigation in this direction. The general criticism of the concept, including the so-called anti-majoritarian argument, must be rejected for the same reason.

  • 17 - Levels of Generality in the Comparative Reasoning of the European Court of Human Rights and the European Court of Justice

  • from Part III - Consensus Analysis Outside the ECHR System
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 392-420

  • Summary

    This chapter compares the way in which the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) make use of vertically comparative references – as part of the ‘European consensus’ argument and in developing general principles, respectively. It argues that the two courts are situated within different cultures of adjudication connected, inter alia, to the courts’ style of reasoning and their institutional context. The ECJ’s culture of adjudication allows it to be less sensitive to differences among the European Union’s Member States, which coheres with its use of comparative references at a relative high level of generality. This helps to explain, for example, why it has been reluctant to apply more specific forms of comparative argument in interpreting the Charter of Fundamental Rights, as its Article 52(4) might otherwise suggest. Conversely, the ECtHR’s culture of adjudication involves more sensitivity to differences among the States parties – to the point that it is sometimes accused of abdicating its role to set meaningful human rights standards because of this sensitivity. The chapter concludes by sketching a normative framework that would mitigate such criticism, based on the Rawlsian notion of a ‘reflective equilibrium’, which would integrate different levels of generality into the ECtHR’s comparative reasoning.

  • 18 - Consensus as Challenge and Retraction of Rights

  • from Part III - Consensus Analysis Outside the ECHR System
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 421-447

  • Summary

    The European Court of Human Rights invokes consensus primarily to identify a threshold for extending the margin of appreciation or, conversely, reserving substantive interpretative authority at central judicial level. In that context, consensus is a determinant of the relevant law. In contrast, for European Union (EU) citizenship law, consensus arguably presents a challenge to how rights are protected. Citizenship case law on the conditions governing access to social benefits is used as an illustration of legal change with consequences of rights retraction to investigate the legal considerations that should apply in such situations. Irrespective of what specific rights are being looked at, or whether in European Convention on Human Rights or EU law, there is a shared challenge: how to manage fundamental questioning of and uncertainty around the purpose of institutions beyond the State? In the project of shaping rights over time, an important theme therefore bonds the work of the Strasbourg and Luxembourg courts; it is no easy task to determine when consensus amounts to the exercise of leadership, on the one hand, or to its abrogation, on the other. However, it is also argued that consensus is not the appropriate tool to resolve this critical question.

  • 14 - When the European Court of Human Rights Decides Not to Decide

  • from Part II - Appraising European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 311-334

  • Summary

    Referendum-emergent constitutional provisions pose particular challenges for international human rights law. Domestic law is primarily a matter for States, and its provisions do not and cannot excuse non-compliance with international obligations. However, when those domestic laws are not only in the national constitution but placed there by referendum of the People, clear questions of legitimacy arise in assessing their compliance with international obligations. Taking the case of A, B & C v. Ireland as its central focus, this chapter shows how such provisions raise questions for European consensus. It argues that, rather than guide the Court in its difficult and delicate task of evolving the Convention in respect of abortion, this case shows how European consensus can be a mechanism of avoiding making decisions on difficult questions and deferring to the ‘will of the People’ in domestic States, whether that is directly expressed through referendum or obliquely through primary legislation.

  • 10 - Constructive Consensus and Domestic Democracy

  • from Part II - Appraising European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 210-235

  • Summary

    This chapter analyses the legitimacy dimension of the European Court of Human Rights’ (ECtHR’s) consensus method. It pays particular attention to cases in which consensus established by a progressive Court is rather ‘constructive’. The argument relies on two models of legitimation developed by legal scholars specifically for the democratic legitimation of international and domestic courts, a ‘formal model’ and a ‘control model’. These models also provide an explanation for significant patterns identified in the ECtHR’s case law. In a number of cases, in which European consensus plays a decisive role in the Court’s reasoning, the ECtHR also refers to procedural criteria in order to determine the range of the margin of appreciation. The chapter argues that European consensus and a procedural approach to the margin of appreciation complement each other. A combined legitimation strategy, comprising European consensus and a procedural approach to the margin of appreciation opens up spaces for democratic contestation and deliberation. However, shaping its partners in a constitutional dialogue in order to increase its own legitimacy is certainly a bold move by the Court, and not without practical and normative problems.

  • 8 - Borges’ Pierre Menard, Author of the Quixote and the Idea of a European Consensus

  • from Part I - Understanding European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 167-186

  • Summary

    This chapter examines aspects of the European consensus, taking as its starting point Jorge Luis Borges’ intriguing parable, Pierre Menard, Author of the Quixote. The story is about (the fictional) Menard’s seemingly impossible and preposterous, but ultimately successfully realised, exercise of rewriting Cervantes’ Don Quixote in the twentieth century. Applied to human rights, it provides a valuable insight. For it suggests that the universal appeal that certain cultural norms (in our case, human rights) possess is partly explained by the very fact that divergent cultures and histories can somehow simultaneously converge on the same understandings. Human rights norms may be the product of diverse and varied cultural, historical and legal systems. Yet the different legal resources in the Member States of the European Convention may nonetheless provide a basis for a consensus. Consensus implies some sort of accord, but there are many ways to reach an accord, and all sorts of interesting and stimulating questions, including literary ones, such as those of Borges, to be asked about this process.

  • 11 - The European Consensus Doctrine and the ECtHR Quest for Public Confidence

  • from Part II - Appraising European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 236-257

  • Summary

    A search for the term ‘public confidence’ in the database of the European Court of Human Rights (ECtHR) reveals that the Court speaks time after time on the judiciary’s need for public confidence in order to function properly. In this chapter, it is explained that this view reflects a new understanding – first detected in the US Supreme Court – of the source of judicial legitimacy. Rather than adhering to the traditional understanding of judicial legitimacy in terms of expertise, the ECtHR understands its source of legitimacy in terms of enduring public support. This explanation of the ECtHR’s understanding of its legitimacy exposes a new function of the European consensus doctrine. Beyond functioning as a tool of decision-making and as a tool to enhance the acceptability of the ECtHR’s judgments, the European consensus also functions as a mechanism that helps to monitor and maintain the ECtHR’s public confidence. As long as there is a European consensus on the legal positions adopted in most ECtHR judgments, public resistance to the Court would be minimal. The chapter concludes with a discussion of the tension between maintaining the ECtHR’s public confidence and its mission to further promote the cause of human rights.

  • 3 - Consensus in the Legitimacy-Building Era of the European Court of Human Rights

  • from Part I - Understanding European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 42-70

  • Summary

    This chapter addresses the role that ‘consensus’ played in the development of the European Convention on Human Rights in the period up to the late 1990s. Its main focus is upon the case law; however, a running theme will also be how consensus played a broader role, in terms of there being a political will, or consensus, amongst the Convention States – those upon whose consent the progress of the Convention rested – to see the Convention develop. That political consensus was arguably grounded upon a shared vision and commitment of the States toward the idea of the European human rights supervision project. This ‘political consensus’ was in itself a vital ingredient for the success of the Convention system, projecting it forward.

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

  • from Part II - Appraising European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 189-209

  • 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.

  • 2 - European Consensus

  • from Part I - Understanding European Consensus
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 29-41

  • Summary

    This short introductory chapter to Part I analyses the new approaches to European consensus offered in the chapters of this Part of the book. It tries to systematise the key questions raised in the chapters and it critically considers the foundations of these approaches. In this summary, how the authors of the chapters define consensus is examined, what value they see in this method of interpretation, how it interferes with other tools of interpretation of the Convention and ultimately how consensus impacts the legitimacy of the European Court of Human Rights.

  • 15 - The Inter-American Court of Human Rights’ Tentative Search for Latin American Consensus

  • from Part III - Consensus Analysis Outside the ECHR System
  • Edited by Panos Kapotas, University of Portsmouth, Vassilis P. Tzevelekos, University of Liverpool
  • Book:
    Building Consensus on European Consensus
    Published online:
    04 January 2019
    Print publication:
    17 January 2019, pp 337-363

  • Summary

    This chapter examines the Inter-American Court of Human Rights’ practice with respect to consensus interpretation. Contrasted with the well-settled practice of the European Court of Human Rights, one can see that the Inter-American Court’s practice seems to rely on consensus when it supports a progressive, teleological interpretation of human rights, rather than being primarily a legitimacy-building device. The chapter argues that the Inter-American Court’s selective engagement eliminates the latter possibilities of the consensus method of interpretation. Instead, the Court’s seeking legitimacy not from State parties, but other stakeholders, does not seem particularly concerned with legitimacy costs (even if it probably should).

Page 98 of 301