CYIL vol. 7 (2016)

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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.

This is even more correct (and

apparent) for rights and obligations arising from a common will among contracting

States to an international treaty.

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.”

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

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.

The aim is to

If the population exercises

vis legislativa

potestas legislativa

goes usually to a collective body, such as

Parliament.

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.

LETSAS, George.

A theory of interpretation of the European Convention on Human Right

. Oxford

University Press. 2007, p. 59.

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.

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.