Elina Pekkarinen, Doctoral student, University of Tampere
The question of whether consensus as an interpretative principle of the ECtHR can be regarded as legitimate depends significantly on how we perceive the relationship between consensus and the idea of objective moral elements in legal action and jurisprudence. Consequently, the question of legitimacy does not solely relate to the ECtHR and the member States of the Council of Europe. Instead, the question of whether consensus is a legitimate interpretative tool relates to a wider issue of morality and law. To examine the legitimacy of consensus principle we have to first editorialize what kind of relationship morality and (European) human rights have. I argue in this paper that morality is objective, human rights are moral rights, and because human rights are objective moral rights, consensus as a sole interpretative principle is insufficient to legitimize the interpretation of the ECtHR. However, before approaching my main thesis, which is linked to the objectivity of universal moral human rights, it is justifiable first to examine briefly how consensus as an interpretative principle of the ECtHR has been perceived. I am not aiming to exhaustively define consensus as an interpretative principle of the ECtHR, because the definition itself is an ambiguous one and therefore the definition alone would exceed my remit.
The preliminary definition of consensus
As I mentioned, the definition of consensus is ambiguous. However, it can be generally said that the consensus principle refers primarily to commonly accepted values and procedures that the ECtHR has acknowledged. This preliminary definition raises more questions than it answers. The main questions relating to consensus are the following:
- Can all rights be subjected to consensus evaluation?
- From whose viewpoint does consensus stem from?
- How has consensus changed in the history of the ECtHR? It is crucial to acknowledge that consensus cannot be successfully conceptualized without the margin of appreciation, because – among other interpretative principles – consensus is a concrete tool that brings the margin of appreciation forward. The significance of the margin of appreciation can be understood as a systemic objective that attaches national courts to the Convention regime and obligates national courts to commit to the ways of evaluation the Convention regime requires. It has been argued, however, that the margin of appreciation is a threat to the rule of law and also to the protection of human rights.
- The questions presented above cannot be answered in this context. Their main point is to illustrate the complexity of evaluating consensus. It is evident that the consensus principle – as the ECtHR has constructed it – is rather fluid, and as such, it is not formulaic. Consensus nevertheless should include not only the consensus identification itself, but also a comprehensive evaluation of the factors that are linked to the recognition of consensus. This is substantive because evaluating consensus is not something passive, but rather an active choice that is closely connected to the ECtHR’s interpretive ethic.
Human rights and objective morality
The idea of a European consensus seems at least intuitively a relativist way of perceiving human rights. I defend the idea that human rights are universal even though universal human rights necessarily contain a relativist element. This relativist element is attached fixedly to the question of multicultural universality. According to Jack Donnelly, one of the main purposes of universal human rights is to protect the free choices of free individuals and justify as well as apply in practice these rights in the way in which they are rooted to the histories and experiences of individuals. Human rights should also include elements of these cultures. This relativist element, however, does not make human rights relativistic in a doctrinal sense. The discussion between universalism and relativism is intertwined with the idea of morality.
Alexy claims that human rights are by nature moral, universal, fundamental abstract rights that take priority over all other norms. From my point of view, it seems that in order for human rights to be at the same time moral, universal, fundamental, abstract, and prior rights, the morality that is embedded in these human rights has to be objective by nature. In my view, the moral objectivity of human rights stands for the endeavour to achieve the utmost truth and correctness, and therefore it does not necessarily mean that there is an unequivocal conceptual and substantive understanding of these rights.
Alexy highlights that the precondition for rights to exist is the validity of the aforementioned rights. Alexy also argues that moral rights are only valid if they are justifiable. Hence, the existence of human rights as moral rights is dependent on their justifiability. Thus, according to Alexy, rights only exist when they are valid, and in the case of human rights, validity requires justifiability. If rights are not justifiable, they are not valid. If rights are not valid, they do not exist. Therefore, it can be concluded that only moral rights can exist, because rights of a non-moral nature do not meet the criteria of justifiability and validity.
The justifiability of norms is nevertheless often contested, and as I see it, the problematic relationship of consensus and objective moral norms is closely linked in particular through the idea of the justification of rights. The relationship between these two concepts is problematic because the assessment of consensus is to a large extent also a balancing act.
“A mere consensus between the signatories of the European Convention on Human Rights is not principally adequate proof of the universality of the human rights standard that has been set”
International treaties concerning human rights contain moral values that drive the execution of human rights in a certain direction. This direction is – as I see it – a more correct human rights standard. A mere consensus between the signatories of the European Convention on Human Rights is not principally adequate proof of the universality of the human rights standard that has been set. In this respect, the idea that national authorities are better placed to decide questions that relate to morals is difficult to legitimize, especially when having to take into account the moral duty of the ECtHR as the protector of human rights. Letsas notes that piecemeal evolution of the ECtHR standards – that is, based on consensus – “according to how many States have abandoned moralistic preferences in the different areas of national law deeply offends the values of legality and equality”.
Consensus, the right to interpret, and the legitimacy of the interpretation
As I noted above, universality is not a synonym for consensus. Therefore, questions on the authority of the ECtHR cannot be the explaining factor of consensus and the legitimacy of the court’s case law. The court’s authority and the legitimacy of its case law should arise from the act of joining the Convention rather than from the sovereignty of the member States.
“the reasons that lie behind the consensus argumentation and its sources should be explicitly shown”
If consensus is to be used as a justified interpretative principle of the court, it is not enough to assess whose consensus is in question. From the point of view of fundamental moral human rights, the reasons that lie behind the consensus argumentation and its sources should be explicitly shown. This is especially important because the assessment of consensus is not something implicit or given, but an active choice of the court. The restriction of a right cannot be justified just because there is no a uniform European conception about its extent. It is crucial to note however, that I am not implying here that consensus would be the only aspect being assessed in the reasoning of the court. Nevertheless, the main problem with using consensus as a way to indicate the extent of the margin of appreciation is the moral reading of the Convention rights that the assessment of consensus often lacks. Even though the choice to use consensus as an interpretative tool of the court is always an active one, the fluidity of the consensus principle makes it difficult to legitimize. Brauch criticizes consensus because it offers little analytical precision. He also claims that consensus is not an effective predictor of how the court will resolve any particular case.
I mentioned above that it has been reasoned that the margin of appreciation attaches national courts to the Convention regime and obligates national courts to commit to the ways of evaluation required by the Convention regime. However, what ways of evaluation should national courts tie themselves to? Let us turn to Alexy’s conception of human rights: they are moral, universal, fundamental abstract rights that take priority over all other norms. Which interpretational principles would in the best and most correct way secure the fulfilment of human rights? It would seem intuitively justifiable to argue that the abstractness of both human rights and the moral foundation of such rights demands concrete interpretational principles that originate directly from the national legal States themselves. This argument would support the idea that consensus, as an interpretative principle, should act as a legitimizing tool for the ECtHR’s case law. However, concrete interpretational principles that are strongly based on the national legal States and their human rights standards cannot form a solid basis for human rights, and their moral foundation is inherently abstract. Human rights are abstract, so the interpretation of these rights should be based on abstract moral arguments, because factual interpretation should always be justified with a non-factual explanation. In this respect, consensus cannot act as a legitimizing principle for the ECtHR.
 Dzehtsiarou, Kanstantsin. “European Consensus: a way of reasoning?” University College Dublin Law Research Paper No. 11/2009, 28th May 2009.
 Spielmann, Dean. “Whither the Margin of Appreciation?” UCL Current Legal Problems lecture, 20th March 2014, p. 1.
 Ibid., p. 12.
 See Brauch, Jeffrey A. “The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law”, Columbia Journal of European Law, Vol. 11, 2005, pp. 113–150.
 See Donnelly. Jack. Human Rights in Theory and Practice. Cornell University Press. Ithaca 2013, p. 104.
 See, for example, Donnelly, Jack. Human Rights in Theory and Practice. Cornell University Press. Ithaca 2013, p. 115.
 See Alexy, Robert. “Law, Morality and the Existence of Human Rights”, Ratio Juris, 25 (1), March 2012, pp. 2–14 (p. 10).
 Ibid., p. 124.
 About the discussion between different types of legitimacy, see Letsas 2009, pp. 15–17.
 Brauch, Jeffrey A. “The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law”, Columbia Journal of European Law, Vol. 11, 2005, pp. 113–150 (p. 138).
 Letsas, George. “Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer”, The European Journal of International Law, 2010, pp. 509–541 (pp. 534–535).
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