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

from Part I - Understanding European Consensus

Published online by Cambridge University Press:  04 January 2019

Panos Kapotas
Affiliation:
University of Portsmouth
Vassilis P. Tzevelekos
Affiliation:
University of Liverpool
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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.
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Building Consensus on European Consensus
Judicial Interpretation of Human Rights in Europe and Beyond
, pp. 141 - 166
Publisher: Cambridge University Press
Print publication year: 2019

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