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Consensus, Stasis, Evolution: Reconstructing Argumentative Patterns in Evolutive ECHR Jurisprudence

Author: Djeffal, C.
Published in: Kapotas, P., & Tzevelekos, V. (Eds.), Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond (pp. 71-95). Cambridge, United Kingdom: Cambridge University Press (forthcoming).
Year: 2019
Type: Book contributions and chapters

This article shows how the consensus doctrine of the European Court of Human Rights works in the context of the Court’s living in-strument approach. It is an analytical inquiry looking at definition, function, ascertainment, and outcome of the consensus doctrine. It also provides a constructive critique of how the European Court of Human Rights applies and justifies the doctrine. It is suggested that with a few adjustments, the Court could use the consensus doctrine in a way that is even more convincing and fits its role of stating the law as it is while developing it progressive-ly at the same time. The doctrine of consensus as applied by the Court contains normative elements that should be dealt with in an open fashion. The Court should rely on the object and purpose of the treaty in a transparent manner. A concept that could inspire the jurisprudence of the Court is opinio iuris hominis. This concept is aimed at giving more weight to state prac-tice that evidences the intent to act motivated by and in accordance with human rights. The Court should also make a conscious decision as to whether it wishes to apply the consensus doctrine in the context of interpretation as opposed to the context of balancing.

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