Book Review

Most scholars of the European Convention on Human Rights (ECHR or the Convention) are by now familiar with the concept of ‘European consensus’, a comparative method of interpretation developed by the European Court of Human Rights (ECtHR or ‘the Court’) that has been attracting growing scholarly attention in recent years. At the same time, there is still no clarity about the precise meaning of European consensus and the ways in which it is deployed, which is largely due to the fact that the ECtHR has not defined it or devised any evident methodology for its application. In Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond, Panos Kapotas and Vassilis P. Tzevelekos have edited 19 much-needed contributions exploring this enigmatic concept.

The volume is divided into three parts. Part I is devoted to a conceptualization of European consensus, that is, to a better understanding of what it means and how it functions, as well as its history. Part II evaluates the Court’s practice, grappling with it from a normative perspective and gauging its relationship to the legitimacy of the Court and its case law. Part III then looks beyond the Council of Europe and compares the ECtHR’s consensus argumentation with that of other bodies, including the Inter-American Court of Human Rights (IACtHR), the Court of Justice of the European Union (CJEU) and the United States Supreme Court (SCOTUS). These parts inform each other: for example, contributors to Parts I and II make comparisons to other adjudicators (Douglas-Scott, Kleinlein), most of the chapters are at least partly devoted to determining what consensus means and does and discussions of legitimacy are by no means limited to Part II (Bates, Henrard, Lixinski). While it is unfortunately not possible to summarize all 19 contributions individually here, the following will set out some of the main points discussed throughout the volume and some of the key insights to be gleaned.

The volume makes plain that European consensus can go by a range of different terms (including ‘consistency with prevailing European practice’, ‘growing tendency’, ‘general trend’ or ‘common ground’). As a result, a number of contributors grapple with determining what, precisely, constitutes European consensus. Djeffal writes of a ‘shared practice of the parties to the treaty’ and creates a rising cascade of relevant agreement, from lack of consensus to full-blown European consensus (p. 77). To Lixinski, consensus relates to the search for ‘common denominators in domestic human rights practice’ (p. 337). For Amos and Kukavica, any reference to international and comparative materials seems to constitute an application of the European consensus doctrine (pp. 262 and 369). Across the board, however, contributors defer to the comprehensive typology created elsewhere by Dzehtsiarou who—preceding his contribution to this volume—described consensus as relating to commonalities (albeit not unanimity) in four main regards: (a) in the States’ domestic laws; (b) in international treaties and documents; (c) inside a State party; or (d) among experts, with only the first being truly ‘European’ consensus and with the first two iterations being the most common.¹

The volume maps a number of different functions that European consensus can have in the Court’s case law. Henrard, for example, notes that it can pave the way for establishing autonomous concepts, for adopting a new or more progressive interpretation of rights and for tailoring the width of the margin of appreciation (p. 147). Føllesdal describes consensus as both a ‘source for dynamic interpretation’ and a ‘mechanism of self-restraint by the Court’ (pp. 191–2). Both he and Kleinlein also see it as a way of testing, within the context of the margin of appreciation, whether a domestic legislative process has met procedural requirements. As it stands today, Dzehtsiarou describes the concept as ‘a middle ground between the margin of appreciation and evolutive interpretation’ (p. 38, and seconded by Kleinlein, p. 219).

Consensus-based reasoning, it emerges, allows the Court to advance its interpretation of the Convention without stepping too far ahead of the majority of States, thereby helping it to avoid backlash and bolstering its legitimacy. At its best, this allows the Court to perform deference to its subsidiarity and defuse allegations of judicial activism while progressively interpreting the Convention and responding to new issues as they come about. A State that does not adhere to a widely accepted approach is thereby treated as an outlier and brought into the fold (Henrard, pp. 149–50), although this does not happen in every case (De Londras). Authors also discuss the idea of ‘emerging consensus’, which the Court may flag to create ‘productive contestation’ by States (Kleinlein, p. 234) as well as to give domestic authorities a degree of predictability about upcoming changes in its approach and thereby avoid confrontations and backlash (Føllesdal, pp. 205–206).

As good as this does sound, concerns about the Court’s consensus reasoning are nevertheless a leitmotif of the volume. One of the main fears voiced by the contributors is that, by linking the width of the State’s margin of appreciation and its willingness to change its practice to the strength of a European consensus, the Court may be abdicating its proper role (pp. 149, 162–3, 183–4). This relates to the ‘anti-majoritarian’ argument made by several contributors, that is, the argument that, given the anti-majoritarian nature of human rights, appeals to a majority of European opinion is counter-intuitive and problematic (Vetrovski, pp. 132–3; Bassok, pp. 252–5; de Londras, pp. 329–30; and especially Kagiaros, pp. 283–310).

In this regard, Kagiaros discusses a concrete example of how the Court can use European consensus to tie certain minority rights to majoritarian consent, namely in same-sex marriage cases. He notes that the persuasive value of a European consensus is reduced in certain minority rights cases, for example, those concerning Roma children, because of their recognized need for protection and vulnerability (pp. 283–310). However, he demonstrates this does not apply equally to all minority groups and specifically not to what the Court calls ‘sexual minorities’ and, as a result, the European consensus approach blocks progress on same-sex marriage (pp. 286, 305).

This raises another concern, namely that of regression (that is, backsliding or leveling down) if majoritarian consent to minority rights is withdrawn (Kagiaros, p. 305; Van den Eynde, pp. 116–17). A number of authors seem convinced that the Court could avoid backsliding if it came to it, seeing consensus as a ‘rebuttable presumption’ (Dzehtsiarou, p. 36; Djeffal, pp. 90–1; Van den Eynde, p. 118). Others note the Court’s ability to manipulate the result of a consensus analysis if need be, citing the flexibility of the concept and its lack of clear method (Henrard, p. 143). However, there is obviously no guarantee in this regard. Shuibhne, in her chapter on the CJEU’s citizenship law jurisprudence, documents an example of consensus-based regression in rights protection (p. 442). Again, as Kagiaros convincingly shows, while consensus may be flexible and rebuttable, the ECtHR nonetheless struggles to rebut this presumption in certain morally contested contexts (pp. 305, 343).

Where the ECtHR does choose to ignore a consensus, the resulting judgment may not be particularly convincing from an individual rights perspective, as De Londras shows. She discusses an instance in which it sidestepped a rights-friendly European consensus in favor of domestic law. In the case in question, A, B and C v Ireland,² precedence was given to a referendum-based Irish constitutional provision relating to abortion, which was seen as reflecting the deeply held moral beliefs of the Irish people, over a European consensus (pp. 311–33). In a similar vein, Amos discusses instances in which the Court seems to have bent to the will of the State through its approach to consensus (p. 273). The fact that such outcomes are possible indicates the Court’s lack of a principled approach to consensus.

The (excessive) flexibility of the European consensus approach is a recurring finding in the volume as a number of contributors highlight the malleability of consensus, the Court’s willingness to ignore it under certain circumstances and the ways in which phrasing, sampling and the level of abstraction affect the outcome of a consensus analysis (Djeffal, pp. 85–6; Van den Eynde, p. 105; Henrard, pp. 151–2; Føllesdal, pp. 196 and 203–4). When it comes to the Court’s lack of a discernible methodology, contributors note the range of sources considered, the States surveyed and the relative proportion of States that must subscribe to a given development in order to constitute a consensus (Djeffal, Henrard). In some cases, the Court is seen as shaping—or, less generously put, manipulating—a consensus by turning to jurisdictions outside the Council of Europe to obtain the results it seeks, while in other instances it inexplicably fails to take the same approach (pp. 154–5). Føllesdal’s introductory comments to Part II, which sum up the Court’s approach to consensus as ‘walking sticks that support what the majority of judges wanted to conclude anyway’ (p. 190), therefore ring true. The efforts of the Research Division of the Registry to professionalize consensus do not seem to have done away with these methodological concerns (pp. 37, 98–9, 193–4).

On the question of whether European consensus bolsters the ECtHR’s legitimacy, the volume’s response is rather ambiguous. Contributors put forward various arguments, ranging from a historical one (Bates) to one based on sociological legitimacy (Bassok), to the idea of consensus as a sort of tacit consent by States to new developments in the Court’s case law (Kagiaros, Føllesdal, Kleinlein) and to an epistemic argument (Føllesdal). The volume shows that, at least at one point, consensus did reinforce the Court’s legitimacy. Bates, in his chapter on the history of the concept, considers that consensus played a role during the ‘legitimacy-building era’ that preceded the establishment of the permanent Court. He links the idea that the Court upholds shared values but ‘was not designed to promote social reform’ to its success and to the creation of a permanent Court (pp. 53, 59). He argues, in this context, that the Convention was not meant to ‘aim for the best possible human rights policies, especially when European democracies could reasonably disagree on what the best policies should be’ (p. 50). Bates’s thorough historical analysis leads Gearty, in his conclusion to the volume, to find that ‘[c]onsensus is what has made our Convention possible and what keeps its show on the road’ (p. 450).

Various contributors also argue that, after the advent of the permanent Court, consensus continues to matter for the Court’s legitimacy. For example, Kleinlein considers that it can lead to dialogue, remedy the Court’s democratic legitimacy deficit and bring about a domestic culture of justification. However, other authors show that consensus-based reasoning can also undermine the Court’s legitimacy from an applicant or non-governmental organisation perspective where it is used inconsistently or fails to adequately protect applicants (Kagiaros, De Londras) or where it is perceived as catering to the demands of States (Amos).

Assuming that the consensus approach is here to stay and accepting that the Court’s approach to it is methodologically unsound, inconsistent and unpredictable (as the contributors to the volume do), the obvious question is as follows: how can this be remedied, and to where can the Court turn for inspiration? The volume offers a number of comparisons to other systems, in effect determining whether there is a consensus among the adjudicators surveyed in terms of their approach to consensus. It finds that there is not and that each adjudicator has adopted an approach to consensus that is tailored to its adjudicatory culture and its structural and institutional context.

First, the volume turns to the Americas. Lixinski notes that the IACtHR also conducts dynamic interpretation and that it is often more progressive than the ECtHR, but that it rarely uses consensus arguments. When it does refer to consensus, the IACtHR aims not at preventing backlash from States, but at legitimizing the Court’s judgments in the eyes of outside sources (p. 363). In his chapter, Kukavica discusses the SCOTUS, finding that it is doctrinally more consistent in its conceptualization of consensus than the ECtHR and arguing that the reasons for this are structural. He cites the ECtHR’s workload, its large number of judges and the rules for composing judicial formations as possible explanations for its unpredictable approach to consensus (pp. 387–8).

Two chapters also compare the ECtHR’s approach to that of the CJEU, and they both find that while the two courts take different approaches to consensus, they are plagued by similar problems. Shuibhne, in her chapter, zooms in on the CJEU’s citizenship law jurisprudence and finds that both the CJEU and the ECtHR approach consensus in ways that are overly flexible, risk arbitrariness and entail the possibility of manipulating a consensus to reach a desired outcome (p. 441). In their chapter, Theilen likewise finds that both courts conceptualize consensus (which they understand as ‘vertically comparative’ reasoning) in problematic ways. This is due, they argue, to the adjudicatory cultures of the two courts. The CJEU is focused on harmonization and less sensitive to differences among State parties; when it relies on consensus, it refers to broad principles found in domestic law and directs itself at the EU’s own institutions, meaning that less is required in terms of a performance of deference (pp. 398, 402, 408–9). Injecting some of the generality of the CJEU’s approach into the ECtHR’s case law would, Theilen argues, potentially enable a ‘judicial reflective equilibrium’ in the Rawlsian sense, transcending the autonomous-comparative binary (p. 419).

Given the above, how are we, the readers, to evaluate the ECtHR’s approach to consensus? The contributors seem to understand that the Court wants to move forward but to do so without making too many waves. In their various ways, the chapters all concern this balance between progress and backlash.

Some contributors evaluate the Court’s approach rather positively. Gearty, in his concluding chapter, making a case for evolutive interpretation over original intent, notes the role of consensus in creating the improved and expanded rights protection brought about by the living instrument approach. He argues that ‘a dynamic, evolving consensus has been the midwife helping to give birth to these new, expanded rights’ (p. 458). In his chapter, Kleinlein argues that European consensus complements the turn towards a procedural approach to the margin of appreciation: both ‘serve to gauge the correct degree of flexibility in the ECtHR’s approach’ (p. 222), and together they can lead to productive dialogue between States and the Court.

However, as other chapters demonstrate, this enthusiasm should be tempered. Certainly, there may be a price for ‘getting ahead of or disregarding the politics of the day’ (p. 453), but there is also a price for hitting the brakes on progress until enough States are on board. While the ECtHR’s consensus approach may assuage backlash and restrain the Court, it does so in the context of cases affecting real individuals, who have often waited years for relief and for whom Strasbourg is a last resort. Blithe descriptions of the ECHR’s interpretation as ‘a shared enterprise of the Court and the State’ (p. 223) or the finding that moving ‘[f]orwards is more fun’ (pp. 456–7) do not reflect this. In this regard it is difficult to overstate the importance of focusing on what is at stake for applicants (as opposed to the Court), in the vein of Kagiaros’s excellent chapter.

Some authors are particularly pessimistic. For example, Amos writes that ‘[t]hose looking for a novel or “dangerous” new direction in human rights jurisprudence should perhaps no longer look to the ECtHR’ (p. 282). In other words, she argues, the Court has struck a poor balance between progress and backlash. In this regard, it is relevant to recall that, even where progressive judgments prompt backlash, not all authors see this as a bad thing. Instead, they argue that these reactions may lead to dialogue (Kleinlein, pp. 211, 228) or generate legitimacy from a user perspective (Amos, p. 275).

The editors’ self-proclaimed aim for this volume is to ‘ignite and fuel the process of building consensus on [European consensus]’ (p. 18). The need for this process has been clearly demonstrated in their comprehensive volume. To shed light on European consensus—that is, how and why it is used, what it does and how it could be improved—the contributors keep their fingers firmly on the pulse of current debates concerning the ECtHR. This includes engagement with its legitimacy, as well as the relationship with other doctrines, for example, the procedural turn to the margin of appreciation, evolutive interpretation and the identification of autonomous concepts. Questions remain: for example, it is possible to ask whether every comparative argument made by the Court falls under European consensus, or whether consensus is the same thing as identifying regional customary international law (pp. 23 and 349). The volume provides food for further thought in this and other regards, as it contains diverging answers to certain questions, such as whether the Court can successfully avoid regression based on a (change in) consensus or whether European consensus means that states implicitly consent to a given development (pp. 219, 202–5).

While it does not create a consensus on consensus—a task that, despite the title, was not the volume’s aim, and one that in any event is better left to the Court—the volume maps, discusses and proposes innovative solutions to open questions. It deals with foundational issues concerning consensus (its role and definition and the applicable methodology), discusses its relationship to the Court’s legitimacy and evaluates it relative to the approaches of other adjudicators. No human rights instrument can be interpreted in a vacuum, and how, when and why comparative arguments are made can have far-reaching consequences. This volume represents a much-needed step forward in determining what this means at the ECtHR and unraveling the enigma that is European consensus.

Footnotes