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6020 results in European government, politics and policy

Page 99 of 301

  • 7 - How the ECtHR’s Use of European Consensus Considerations Allows Legitimacy Concerns to Delimit Its Mandate

  • 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 141-166

  • Summary

    This contribution has two interrelated aims. First, it seeks to contribute to the discussion about the conceptualisation of European consensus in the broad sense of the term, touching on questions about the what (does European consensus refer to?), where (does it feature?), how (is it used by the Court?), and why (is it used in this way?). Second, it invites critical reflections on the legitimacy quest of international courts, as informed by the balance of powers between a supranational court and the contracting States, and on how this impacts on the courts’ mandate. Special regard is due to the European Court of Human Rights’ interpretation techniques and its margin of appreciation doctrine. Having regard to a range of prominent judgments, the argument is made that the Court – in the absence of an explicit theory on the meaning and measurement of European consensus – shapes the strength of European consensus so as to shape the width of the margin of appreciation, following the Court’s perception of what States will accept. Ultimately, this contribution ponders what can be considered an acceptable role for European consensus in human rights review, balancing the Court’s mandate and its legitimacy concerns.

  • 13 - When to Use European Consensus

  • 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 283-310

  • Summary

    The use of European consensus to interpret the European Convention on Human Rights has generated criticism for, inter alia, being a tool that may disadvantage applicants belonging to minorities – a concern that is particularly relevant in Article 14 cases. The chapter argues that the weight the Court places on European consensus in such discrimination cases has been inconsistent. While in some cases the Court takes full advantage of the flexibility of the consensus tool to reinforce the minority status of the applicants and to narrow the margin of appreciation, in others, the existence or lack of consensus is seemingly the sole determining factor to the outcome of the application. The chapter employs the case law on discrimination against Roma as an example of the former approach, and same-sex marriage cases as evidence of the latter. After comparing these two approaches and identifying the inconsistencies in the application of consensus, the paper argues that the relationship between consensus and the minority status of the applicant must be better defined and more consistently applied across judgments that relate to minorities.

  • 5 - The Consensus Argument in NGOs’ Amicus Curiae Briefs

  • 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 96-119

  • Summary

    This contribution looks at the use of the ‘consensus’ argument in 140 amicus curiae briefs submitted by non-governmental organisations (NGOs) to the Grand Chamber of the European Court of Human Rights. The analysis reveals that a ‘consensus’ argument is often wielded with creativity in their submissions, both regarding the types of consensus and the sources on which they are based. NGOs’ briefs, therefore, contribute to a further expansion of different types of consensus manifestations. Considering the multiple criticisms levelled at the consensus argument, this contribution also observes that NGOs’ briefs sometimes lack methodological rigour and rarely provide for a justification as to the relevance of the consensus argument. This might come as a surprise, coming from actors generally thought as putting forward a universalist understanding of human rights, and this chapter proposes a few hypotheses by way of explanation.

  • 12 - Can European Consensus Encourage Acceptance of the European Convention on Human Rights in the United Kingdom?

  • 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 258-282

  • Summary

    European consensus is increasingly used by the European Court of Human Rights in its judgments concerning the United Kingdom. It is assumed that this method of decision-making increases the legitimacy of the Court’s judgments and assists with implementation at the national level. In this chapter this assumption is subjected to close examination and it is revealed that consensus-based reasoning has little impact on legitimacy or acceptance where the issue is highly politicised. There is also the danger that overuse of consensus-based reasoning by the Court may alienate traditional supporters of the Court and lead some to question its legitimacy and continuing usefulness.

Building Consensus on European Consensus
  • Judicial Interpretation of Human Rights in Europe and Beyond
  • Edited by Panos Kapotas, Vassilis P. Tzevelekos
  • Published online:
    04 January 2019
    Print publication:
    17 January 2019
  • Should prisoners have voting rights? Should terminally ill patients have a right to assisted suicide? Should same-sex couples have a right to marry and adopt? The book examines how such questions can be resolved within the framework of the European Convention of Human Rights. 'European consensus' is a tool of interpretation used by the European Court of Human Rights as a means to identify evolution in the laws and practices of national legal systems when addressing morally sensitive or politically controversial human rights questions. If European consensus exists, the Court can establish new human rights standards that will be binding across European states. The chapters of the book are structured around three themes: a) conceptualisation of European consensus, its modus operandi and its effects; b) critical evaluation of its legitimacy and of its outputs; c) comparison with similar methods of judicial interpretation in other legal systems.

Page 99 of 301