II. Grand Chamber of the European Court of Human Rights, A, B & C v Ireland, Decision of 17 December 2010

de Londras, Fiona; Dzehtsiarou, Kanstantsin

Abstract

The use of ‘European consensus’ as a decision-making mechanism of the European Court of Human Rights has been condemned and praised in almost equal measure.1 On the one hand, some scholars argue that the way in which so-called ‘consensus’ is identified is generally unsound and lacking in rigour.2 It is also claimed that European consensus is overly subjective in its nature3 and, in any case, that it undermines the principle that the Convention has an autonomous meaning determined by the Court and separate to what member States do or interpret it as meaning.4 On the other hand there are scholars who, while often concerned with the suboptimal methodology adopted in identifying and using European consensus in the decisions of the Court, recognize the method's potential to increase the legitimacy of the Court and its function as a mechanism for the progressive liberalization of the European public order.5 This reflects the fact that, generally speaking, European consensus has been applied in order to establish an expanded scope of protection for the Convention in areas not expressly mentioned within it or contemplated at the time of its drafting, on the basis that there is an identifiable trend (although, in strict linguistic terms, not an actual ‘consensus’) among other European States to protect the alleged right.

Citation

de Londras, F., & Dzehtsiarou, K. (2013). II. Grand Chamber of the European Court of Human Rights, A, B & C v Ireland, Decision of 17 December 2010. International and Comparative Law Quarterly, 62(1), 250-262. https://doi.org/10.1017/s0020589312000620

• Journal Article Type: Article
• Publication Date: Jan 1, 2013
• Deposit Date: Sep 21, 2012
• Publicly Available Date: Feb 22, 2013
• Journal: International and Comparative Law Quarterly
• Print ISSN: 0020-5893
• Electronic ISSN: 1471-6895
• Publisher: British Institute of International and Comparative Law
• Peer Reviewed: Peer Reviewed
• Volume: 62
• Issue: 1
• Pages: 250-262
• DOI: https://doi.org/10.1017/s0020589312000620