Paper Titles & Abstracts

The European consensus argument has been deployed by the European Court of Human Rights (ECtHR) in its reasoning in a relatively large number of important cases. There is European consensus if a significant number of the Contracting Parties to the Convention adopts certain legislation or follows similar legal practice. In such cases it is highly likely that the ECtHR will hold that the law which differs from European consensus violates the European Convention. In order to establish European consensus, the ECtHR compares laws and practices of the Contracting Parties, including their obligations under international treaties. This paper seeks to answer the question of whether a Contracting Party can justifiably claim that it has to protect its identity against European consensus.This paper looks at three possible arguments which can justify departure from European consensus. Firstly, internal consensus is sometimes appreciated as a limit to European consensus. Internal consensus exists if people of a particular Contracting Party are clearly in favour of certain restrictions on human rights. Such internal consensus is sometimes called "trumping consensus". Secondly, it is sometimes argued that historical and political particularities can justify departure from European consensus. For example, if a Contracting Party is in transition from dictatorship to democracy this Contracting Party can be allowed some restrictions which divert from European consensus. Finally, the paper questions whether cultural or religious particularities of a respondent State can justify trumping European consensus.