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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.