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European Consensus as Integrative Doctrine of Treaty Interpretation: Joining Climate Science and International Law under the European Convention on Human Rights

Minnerop, Petra

Authors



Abstract

The “European Consensus” is a key doctrine in the jurisprudence of the European Court of Human Rights. It assists the Court in establishing an international human rights standards vis-à-vis a national margin of appreciation. This article argues that the consensus doctrine has two integrative functions. The first integrative function concerns the Court’s reference to an existing or absent scientific consensus, in cases that are open to scientific determination. The second integrative function relates to the elaborate account of state practice that accompanies the Court’s reasoning on European Consensus which this article explains under Article 31(3)(b) Vienna Convention on the Law of Treaties. On that basis, the article demonstrates how climate science and emerging legal practices shape a European Consensus that significantly narrows states’ discretion under the European Convention on Human Rights. Providing this analytical and conceptual groundwork is impactful for the response of international human rights law to anthropogenic climate change.

Journal Article Type Article
Acceptance Date Nov 8, 2021
Publication Date 2023
Deposit Date Nov 23, 2021
Journal Berkeley Journal of International Law
Print ISSN 1085-5718
Publisher University of California Press
Peer Reviewed Peer Reviewed
Volume 40
Issue 2
Pages 207-262
Public URL https://durham-repository.worktribe.com/output/1223522
Publisher URL https://www.berkeleyjournalofinternationallaw.com/current-issue