Focus: Human Rights and the ECHR

Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control

Abstract

This article explores the contestability of European consensus and its significance for the legitimacy of the European Court of Human Rights (ECtHR). The ECtHR’s combined legitimation strategy, comprising European consensus and the new procedural approach to the margin of appreciation, which has been seen in several judgments, opens up space for democratic contestation and deliberation. Progressive, rights-friendly judgments that consider a mere trend in ‘vanguard’ state parties as European consensus will probably provoke domestic contestation in ‘laggard’ states. This potential backlash can be productive because it can subsequently impart additional legitimation on the ECtHR’s judgments. Procedural rationality control ensures that this avenue of democratic legitimation is kept open and that there are institutional structures and processes to balance human rights adequately in domestic debates. Combining consensus-based arguments with a procedural approach to the margin of appreciation reconciles the impact of a European consensus and the need for democratic deliberation. High standards in domestic procedures can possibly rebut the presumption in favour of the solution adopted by the majority of Convention states. Potentially, this approach also allows democratic domestic law-making institutions to react to judgments of the ECtHR based on European consensus.