CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ CONSENSUS ON HUMAN NATURE? THE CONCEPT OF EUROPEAN CONSENSUS … delicate societal issues which are connected directly to human nature and arise now in modern society, the assignment of the European Court of Human Rights should not be a search for a common denominator approach among member States to the Council of Europe but rather a search for the right substance and the heart of human rights protection. If we admit that the Court should have recourse to the human dignity concept in human nature issues and not to the technique of European consensus, on the one hand, and could apply this technique in “proper” evolutive interpretation cases, on the other hand, there arises a question of main importance. This is a question of finding a kind of sorting filter able to distinguish these two categories of issues. It is apparent that these two categories are not separated strictly and in an impermeable way. We may give examples of extremes: the right for prisoners to vote and euthanasia of minors. The right to vote for prisoners can be understood as dependent on political and societal perception evolving in time. Thus the “evolutive interpretation” is likely to go through the European consensus interpretative technique. Unlike this, the issue of euthanasia of minors falls under issues which cannot be apprehended by European consensus and come strictly under the concept of human dignity. There are a large number of issues which exist between these two extremes and which could prima facie fall under both regimes – evolutive interpretation through European consensus, or the concept of human dignity based on natural law. These are e.g. general issues of the protection of a fetus and related diagnostic issues, surrogacy, abortion issues, adoption by homosexual couples and, in general, the phenomenon of comparison of heterosexual couples and their position and protection in society with regard to homosexual couples and homosexual behavior generally, euthanasia and issues related to the sanctity of life. 6. Conclusion It was not the aim of this article to differentiate which kinds of issues or even rights arising from the European Convention on Human Rights come under the “European consensus” concept and which, to the contrary, under the concept of human dignity (human nature). This would amount to further deep research and reflection. The purpose of this article was to show simply that the interpretative technique of European consensus the Court uses and which might be apprehended as plausible as such should have limits based on the concept of human dignity. Human dignity as a general framework of human rights protection plays an important role in human rights adjudication. We claim that human dignity as a sort of framework and thus limit should be sufficient for discernment of issues which are based on societal changes and thus would require the use of European consensus.

de l’Article 8 de la Convention Européenne des droits de l’homme – Mélanges à l’honeur de Dean Spielmann, p. 256.

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