Judicial Deference Allows European Consensus to Emerge

Abstract

The European Court of Human Rights (ECHR) searches for human rights policies that are adopted by the majority of the countries in Europe. Using a doctrine known as "emerging consensus," the court then imposes these policies as an international legal obligation on all the countries under its jurisdiction. But the ECHR sometimes defers to countries, even if their policies fall short of the standard accepted by most of the countries in Europe. This deference is accomplished by using the so-called "margin of appreciation" doctrine. Naturally, emerging consensus and margin of appreciation are often conceived as competing doctrines: the more there is of one, the less there is of another. This article suggests a novel rationale for the emerging consensus doctrine: the doctrine can allow the ECHR to make good policies by drawing on the independent decision-making of many similar countries. In light of that, the article demonstrates that a correct application of the margin of appreciation doctrine actually helps emerging consensus reach optimal results by giving countries an incentive to make their policies independently.

The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights

“…136 When the states forfeit their Margin of Appreciation, the ECHR often follows Emerging Consensus, 137 thereby fulfilling the purpose of the Convention. 138…”

Saving the International Justice Regime

“…This can take a variety of forms, from dejudicializing hot-button topics that could spark backlash to watering down judgments to induce compliance. 73 Throughout the case studies presented in the following chapters, I highlight the ways in which the tribunals, their supporters, and their umbrella organizations prevent and react to backlash politics.…”

A New Philosophy for the Margin of Appreciation and European Consensus

“…These doctrines could be explained in terms of other normative considerations: for example, under the circumstances of disagreement and uncertainty, the ECtHR could have a reason to defer to the outcomes of more representative processes; 148 or there could be reasons to sacrifice the protection of human rights in a specific case to avoid a possible backlash that could undermine such protection more generally. 149 The key to the objection is the distinction between the justificatory grounds of the Court's deference and the justificatory grounds of human rights. 150 However, while the objection is based on a plausible account of the reasons for deference, it is not sufficiently sensitive to the nature of legal judgments.…”