European Consensus: A Conservative and a Dynamic Force in European Human Rights Jurisprudence

ICL Journal ◽  
2018 ◽  
Vol 12 (1) ◽  
pp. 59-84
Author(s):  
Eszter Polgari
Keyword(s):  
Human Rights ◽  
The Other ◽  
Dynamic Force ◽  
Current State ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
Universal Human Rights ◽  
The One ◽  
Human Rights Standards

Abstract The European Court of Human Rights needs to find a balance between upholding diversity (and respecting sovereignty through the margin of appreciation doctrine) on the one hand, and the aspiration to set universal human rights standards, on the other. Responses to these opposing forces are reflected in various doctrines and methods of interpretation, judicial choices that often predetermine the outcome of a case. Through examples taken from the LGBT rights jurisprudence, the article explores how the competing notions of European consensus (a conservative one and a dynamic one) relate to other techniques of interpretation, and how they influence the decision-making of the Court. The article explains that the Court applies the notion of consensus in an arbitrary manner. While the conservative modalities of the consensus argument appear to constrain the Court and allow considerable leeway for domestic authorities, the dynamic notions facilitate the development of European human rights standards, even if it may not be evidenced convincingly by the practices of the member states. The article argues that in its current state, without a foreseeable and disciplined methodology, the consensus inquiry is not capable of building a bridge between the margin of appreciation and the dynamic interpretation.

scholarly journals II. GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS,A, B & C v IRELAND, DECISION OF 17 DECEMBER 2010

2013 ◽  
Vol 62 (1) ◽  
pp. 250-262 ◽  
Author(s):  
Fiona de Londras ◽  
Kanstantsin Dzehtsiarou
Keyword(s):  
Human Rights ◽  
The Other ◽  
Public Order ◽  
Linguistic Terms ◽  
European Consensus ◽  
European Court ◽  
European Public ◽  
The One ◽  
Grand Chamber ◽  
Scope Of Protection

The use of ‘European consensus’ as a decision-making mechanism of the European Court of Human Rights has been condemned and praised in almost equal measure.1On the one hand, some scholars argue that the way in which so-called ‘consensus’ is identified is generally unsound and lacking in rigour.2It is also claimed that European consensus is overly subjective in its nature3and, in any case, that it undermines the principle that the Convention has an autonomous meaning determined by the Court and separate to what member States do or interpret it as meaning.4On the other hand there are scholars who, while often concerned with the suboptimal methodology adopted in identifying and using European consensus in the decisions of the Court, recognize the method's potential to increase the legitimacy of the Court and its function as a mechanism for the progressive liberalization of the European public order.5This reflects the fact that, generally speaking, European consensus has been applied in order to establish an expanded scope of protection for the Convention in areas not expressly mentioned within it or contemplated at the time of its drafting, on the basis that there is an identifiable trend (although, in strict linguistic terms, not an actual ‘consensus’) among other European States to protect the alleged right.6

To Discriminate in Order to Fight Discrimination

2017 ◽  
Author(s):  
Dolores Morondo Taramundi
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
The Other ◽  
The United Kingdom ◽  
European Court ◽  
Main Technique ◽  
Antidiscrimination Law ◽  
The One ◽  
Paradoxical Results ◽  
Conflicts Of Rights

This chapter analyses arguments regarding conflicts of rights in the field of antidiscrimination law, which is a troublesome and less studied area of the growing literature on conflicts of rights. Through discussion of Ladele and McFarlane v. The United Kingdom, a case before the European Court of Human Rights, the chapter examines how the construction of this kind of controversy in terms of ‘competing rights’ or ‘conflicts of rights’ seems to produce paradoxical results. Assessment of these apparent difficulties leads the discussion in two different directions. On the one hand, some troubles come to light regarding the use of the conflict of rights frame itself in the field of antidiscrimination law, particularly in relation to the main technique (‘balancing of rights’) to solve them. On the other hand, some serious consequences of the conflict of rights frame on the development of the antidiscrimination theory of the ECtHR are unearthed.

Liability for Administrative Offences: Standards of European Court of Human Rights and the Current State of the Legislation on Administrative Offences in Russia

2018 ◽  
Vol 9 (1) ◽  
pp. 307
Author(s):  
Olga E. SHISHKINA ◽  
Olga V. HABIBULINA ◽  
Aleksandr F. REKHOVSKIY
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Economic Reforms ◽  
Criminal Sanctions ◽  
Current State ◽  
European Court ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
Procedural Safeguards ◽  
The One

Recently, there has been a substantial increase in the number of judgments delivered by the European Court of Human Rights with regard to the Russian Federation on the complaints filed by Russian citizens, including the complaints related to the liability for administrative offences. The characteristic tendency of the European Court of Human Rights to qualify administrative offences as criminal acts not only brings into focus the issue of ensuring procedural safeguards for individuals charged with administrative offences but also touches upon material aspects of the relation between criminal and administrative law-breaking in Russia as well as changes the traditional juristic view upon the essence of the legislation on administrative offence. Political and economic reforms of Perestroika and the first post-Soviet decade had a significant influence on the institution of administrative justice. Hence, on the one hand, its current state is caused by objective reasons. On the other hand, the legislator, having quite a broad discretion in determining whether to impose administrative or criminal sanctions in each particular case, has seriously blurred the material boundary between criminal and administrative offences. The problem of present-day legislation on administrative offences in Russia is a material hypertrophy of administrative liability together with continuous reduction of procedural safeguards and guarantees for individuals charged with administrative offences. The procedural norms of the existing Code of Administrative Offences of the Russian Federation cannot provide for the adversarial nature of the administrative trial due to the fact that the Code of Administrative Offences of the Russian Federation is not methodologically aimed at regulating administrative (judicial) proceedings.

5 Judgments and Efficacy

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
Foreign Relations ◽  
The Other ◽  
European Convention ◽  
Human Rights Violations ◽  
Council Of Europe ◽  
Daily News ◽  
European Court ◽  
General Rules ◽  
The One

This chapter evaluates the efficacy of the European Court of Human Rights (ECtHR). On the one hand, the European Convention on Human Rights (ECHR) system has had an amazing success in building up a constitutional order in Europe defining common values. Significant changes in the laws of all Member States were made; individual human rights violations were effectively remedied. On the other hand, Europe is far from being a human rights paradise. Even an average observer of daily news cannot avoid having the impression that in some States even the most basic human rights are not effectively guaranteed and that some so-called ‘democracies’ hide their disdain for individual rights behind lip services and promises to abide by the Convention, but in reality use membership in the Council of Europe only as a tool in foreign relations. The chapter then identifies the roles played by the Committee of Ministers, NGOs, and the Court in executing judgments on human rights violations. Article 46 para 1 ECHR obliges the parties to abide by the final judgment of the Court in any case to which they are parties. In line with the general rules of State responsibility, the Court interprets the obligations arising out of Convention violations as threefold: ‘to cease the breach, to make reparation for it and ensure non-repetition of similar violations in the future’.

scholarly journals A New Philosophy for the Margin of Appreciation and European Consensus

2021 ◽  
Author(s):  
Bosko Tripkovic
Keyword(s):  
Human Rights ◽  
Social Practices ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation

Abstract The article advances an anti-foundationalist account of the key doctrines of the European Court of Human Rights (ECtHR): the margin of appreciation (MoA) and European consensus (EuC). The first part of the article argues that anti-foundationalism, which understands the existence of human rights as ultimately dependent on social practices and their justification as based on a plurality of values, is a credible conception of human rights grounds. The second part contends that anti-foundationalism offers the best explanation of the MoA and EuC, without making the ECtHR’s practice less normatively appealing. These arguments challenge the dominant critiques of the MoA and EuC, which often assume, but rarely explicitly defend, a foundationalist understanding of human rights. While the ECtHR’s use of the MoA and EuC can be inadequate, this is not because it is mistaken about the grounds of human rights.

Ricorsi individuali alla Corte europea dei diritti umani riguardanti questioni giŕ esaminate o in corso di esame da parte di altri organismi internazionali di controllo

2012 ◽  
pp. 608-642
Author(s):  
Lorenza Mola
Keyword(s):  
Human Rights ◽  
Case Law ◽  
International Investment ◽  
The Other ◽  
Coordination Mechanism ◽  
Legal Person ◽  
European Court ◽  
Protection Of Human Rights ◽  
The One ◽  
The Individual

The paper deals with the case law of the European Commission of Human Rights and of the European Court of Human Rights on the admissibility of individual applications on matters already submitted to other international bodies, under Art. 35, para. 2, letter b) ECHR. It examines the relevant procedural aspects and reviews how the Strasbourg bodies have interpreted the criteria set in this clause, which coordinates parallel international proceedings on the same matters, i.e. (i) the identity of parties, grounds and facts; (ii) the concluded or concurrent exam of the claim within other international mechanisms of protection of human rights open to individuals; and (iii) the equivalent character of these other proceedings in relation to the procedure before the European Court of Human Rights. It does so, particularly with respect to two recent decisions concerning cases where parallel proceedings on the same matter were brought, in the one case, by the same person before the Court as well as to the attention of the EU Commission, and, in the other case, by a legal person before the Court and by its shareholders before international investment arbitral tribunals. It highlights that the ‘reformed' Court has normally followed the prior Commission's case law but has also developed a more systematic and qualified approach to each admissibility criterion as well as to the overall objective of such coordination mechanism, in order both to avoid a plurality of international procedures on the same matter, on the one hand, and to afford the individual an international means of enforcement of her/his rights, on the other hand.

3 Convention Law and Basic Doctrine

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Theoretical Models ◽  
Case Law ◽  
Stare Decisis ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
German Constitutional Law

This chapter examines the basic doctrine of the European Court of Human Rights (ECtHR). ‘Doctrine’ is a word the Court would rather avoid. The Court has preferred to develop ‘formula’ as a basis for discussing all relevant issues, formula which are repeated again and again, developed further in manifold scenarios, used as argumentation patterns, allowing to arrive at differentiated solutions, formula often linked to specific cases for which they were originally invented. With about 20,000 judgments, the case-law is rich and all-embracing and gives a lot of illustrative examples of how to understand these formula. What is called ‘basic doctrine’ is therefore something very specific. It cannot be compared to stare decisis in the British tradition or theoretical models in German constitutional law. Originating from a conglomerate of different legal cultures, the ECtHR has developed not only its own style, but also its own jurisprudential approach. If there is a ‘doctrine’, it denies being one. Yet, the non-doctrinal doctrine is very influential and has created notions such as ‘margin of appreciation’ and ‘European consensus’ which convey a certain message of the Court's mission and are widely discussed and disputed.

EFFECTIVE LIMITATIONS AND ILLUSORY RIGHTS: A COMMENT ON THE MOTHERS OF SREBRENICA DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS

2014 ◽  
Vol 23 (1) ◽  
pp. 269-286 ◽  
Author(s):  
Valentina Spiga
Keyword(s):  
Human Rights ◽  
International Organizations ◽  
Critical Review ◽  
The Other ◽  
Access To Justice ◽  
European Court ◽  
Alternative Means ◽  
The One ◽  
The Right ◽  
Right Of Access

The latest attempt by the relatives of the victims of the Srebrenica massacre to hold the UN accountable for the inaction of UNPROFOR while the Bosnian enclave was attacked has once again proven unsuccessful. In a unanimous decision in the Stichting Mothers of Srebrenica and others v. the Netherlands case, the European Court of Human Rights declared the application to be ill-founded, finding that the decision of Dutch courts to grant immunity to the UN did not violate the applicants’ right of access to a court. An intrinsic tension between two contemporary trends seems to be embodied in this recent decision. On the one hand the decision follows established and authoritative practice according to which a civil claim cannot override immunity from jurisdiction even though no alternative means of redress is available. On the other hand it conflicts with the growing emphasis placed on the right of access to justice and the right to remedy for victims of gross violations of human rights in the last decade. This note aims to provide a critical review of the decision, focusing on the “alternative means of remedy” test in cases involving the immunity of international organizations. In doing so, the note questions whether such a test must always be a prerequisite for the effective enjoyment of the right of access to a court.

Les enjeux de la corruption sur le continent américain: une réflexion sur le rôle du Système interaméricain de protection des droits humains dans la consolidation des politiques de lutte contre la corruption

2015 ◽  
Vol 52 ◽  
pp. 77-128
Author(s):  
ELISE HANSBURY ◽  
BERNARD DUHAIME
Keyword(s):  
Human Rights ◽  
International Institutions ◽  
The Other ◽  
American Continent ◽  
Regulatory Frameworks ◽  
Droits Humains ◽  
Protection Of Human Rights ◽  
Negative Impacts ◽  
The One ◽  
Human Rights Standards

AbstractInternational institutions involved in the fight against corruption and in the protection of human rights have evolved in isolation since their inception. However, recent studies have shown the need to integrate, within anti-corruption policies, an approach oriented towards the protection of human rights. This need flows from the negative impacts that institutionalized practices of corruption have on the enjoyment of human rights. The American continent is no exception to this reality: it is, on the one hand, struggling with grave problems of corruption that have important repercussions for the protection of human rights in the region. It has, on the other hand, institutional and regulatory frameworks related to the fight against corruption and the protection of human rights, which have evolved in parallel. This article therefore assesses the extent to which Inter-American human rights standards may effectively contribute to improving anti-corruption policies and strategies on the continent.

How Should the European Court of Human Rights Respond to Criticism?

2019 ◽  
pp. 172-180
Author(s):  
Geir Ulfstein
Keyword(s):  
Human Rights ◽  
Decision Makers ◽  
Hostile Environment ◽  
Human Rights Law ◽  
Effective Implementation ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation

This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Europe in an ever more hostile environment. It argues that the Court, in its effective interpretation, should avoid interfering in issues that are not of such a gravity to merit international supervision. In its evolutive interpretation, the Court should also clarify its use of a European consensus and abandon its unfettered discretion in using international legal instruments for this purpose. This could alleviate uneasiness with respect to the ECtHR as an activist Court. Moreover, the Court should treat states equally with respect to benefitting from the margin of appreciation. However, it is also essential for the Court to ensure that deference to domestic decision-makers does not undermine effective implementation of the ECHR.

Sign in / Sign up

Export Citation Format

Share Document