Wednesday 1 July 2009

Article on European Consensus in Case Law

A new working paper of the University College Dublin has just been posted on SSRN entitled 'European Consensus: A Way of Reasoning', authored by Kanstantsin Dzehtsiarou. This is the abstract:

The margin of appreciation is probably one of the most controversial and widely discussed concepts that has been developed by the European Court of Human Rights. A few books and hundreds of articles were written to justify or challenge the margin of appreciation. European consensus argument has always operated in the shadow of the wider concept of margin of appreciation. However European consensus is called to define the landmark signs capable to turn around the ECtHR reasoning. Moreover, European consensus goes far beyond mere determination of the scope of margin of appreciation. Different types of consensus argument assist in defining the meaning of vague conventional terms, approached as a common denominator for autonomous interpretation, measure proportionality of interference. The present article aims to conceptualise the notion of European consensus and structure the divergent references of this concept in the case-law of the European Court of Human Rights.