CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ CONSENSUS ON HUMAN NATURE? THE CONCEPT OF EUROPEAN CONSENSUS … 5. Legitimacy of the European consensus In general legal theory we admit that legal norms are created and sourced from general consensus among the members of the society. 50 This is even more correct (and apparent) for rights and obligations arising from a common will among contracting States to an international treaty. 51 However, in the case of the ECtHR the consensus is rather seen as an interpretative tool then a method of creation of legal norms. As already mentioned, the Court has not totally accepted the method of interpretation laid down in the Vienna Convention on the Law of Treaties (Art. 31), and it opted instead for an evolutive interpretation with a suggestion that the Convention should be interpreted in present-day conditions. Letsas clarifies this when stressing that “the European Court has created its own labels for the interpretative techniques that it uses, such as ‘living-instrument’, ‘practical and effective rights’, ‘autonomous concepts’ etc.” 52 By doing so, the theory of interpretation of international treaties based on the doctrine of textualism and intentionalism has been overthrown. Currently, in cases which allude to some needs of interpretation, the Court resorts to the concept of European consensus. As previously mentioned, the technique of European consensus has been used by the Court in different societal situations which were, from the point of view of morality and ethics, rather delicate. In this type of case, the Court is not in the presence of situations which would clearly manifest a violation or non-violation of the Convention. Or in other words, situations which would fall in the “limits” of autonomous concepts 53 already derived by the Court in its jurisprudence. On the contrary, the Court is straddling non-violation and violation and is looking for some interpretative support. European consensus serves for it. The affirmation of the “common denominator” leads the Court to decide the violation; the lack of it gives way to a margin of appreciation for the States. It is not the purpose of this article to present an expert treatise on the technicalities of the creation, use and consequences of European consensus. 54 The aim is to 50 If the population exercises vis legislativa , potestas legislativa goes usually to a collective body, such as Parliament. 51 The theory of consensual basis is even promoted sometimes in the situation of the creation of international customary norms. See COMBACAU, Jean. SUR, Serge. Droit international public . 8e edition. Montchrestien. 2008, p. 55. 52 LETSAS, George. A theory of interpretation of the European Convention on Human Right . Oxford University Press. 2007, p. 59. 53 It is difficult to speak about any limits of autonomous concepts. As there are not, according to the Court, any precise limits of e.g. family life or private life. From the normative perspective, the Court is not extending these types of autonomous notions through interpretative methods, but rather assembling different pieces of these specific concepts. 54 For this see SURREL, Hélène. Pluralisme et recour au consensus dans la jurisprudence de la Cour Européenne des droits de l’homme. In: Michel LEVINET (dir.), Pluralisme et juges européens des droits de l’Homme , Bruxelles, Bruylant, 2010.

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