European Consensus

Dzehtsiarou, Kanstantsin

doi:10.1017/9781108564779.003

Cited by 3 publications

(4 citation statements)

References 6 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…Furthermore, the states may not have intended to elaborate or confirm a rule or practice, but rather to establish a one‐off policy to address a particular concern or trade‐off. Even Judge Spielmann, a former President of the ECtHR, notes that the Court lacks relevant information about the legislative histories and how the policies operate in various jurisdictions (Dzehtsiarou, 2019, p. 41).…”

Section: The Value Of Judicial Review With a ‘Margin Of Appreciation’...mentioning

confidence: 99%

“…A further concern is that the threshold number of states required for a ‘consensus’ various drastically across cases (Dzehtsiarou, 2019). Former President of the Court Judge Wildhaber recognizes that on this point the “Court's case‐law is in some respects fluid and even fuzzy” (Wildhaber & Hjartarson, 2013, p. 262).…”

Section: The Value Of Judicial Review With a ‘Margin Of Appreciation’...mentioning

confidence: 99%

See 1 more Smart Citation

In defense of deference: International human rights as standards of review

Føllesdal

2021

Journal of Social Philosophy

View full text Add to dashboard Cite

Many well-functioning democracies defer to regional human rights courts about how they treat their inhabitants. In turn, these international judges sometimes defer to the domestic courts' assessment. What are we to make of this reciprocal deference?The relationship seems fraught with problems: Unaccountable and distant legal experts sometimes-but not always-set aside democratic decisions about complex societal challenges, for the sake of vague legal human rights. Indeed, it is the judges themselves who interpret and develop these rights, in practice taking on legislative tasks. Somewhat surprisingly, the deference of such international courts (ICs) to states fuels further concerns about 'juristocracy': the practices of deference are said to be so opaque that strong states do as they will, while the weak human rights courts adjudicate as they must. Does the mutual deference of democratic states and human rights courts collide with both the Scylla of permitting states to violate human rights and the Charybdis of juristocracy-or can the practices of deference avoid both?Considerations of comparative epistemic expertise of domestic bodies in democracies and international judges may help resolve some of these concerns, or so I argue in the case of the European Court of Human Rights (ECtHR) which reviews states' compliance with the European Convention on Human Rights (ECHR). The Court is criticized when it rules against states-e.g., concerning the UK's blanket ban on prisoners' right to vote (Hirst V. The United Kingdom (No. 2), 2005). And the Court is criticized when it defers to states, such as when it accepted France's and Belgium's bans on veils justified as necessary to uphold conditions for 'living together' (

show abstract

Section: The Value Of Judicial Review With a ‘Margin Of Appreciation’...mentioning

confidence: 99%

Section: The Value Of Judicial Review With a ‘Margin Of Appreciation’...mentioning

confidence: 99%

In defense of deference: International human rights as standards of review

Føllesdal

2021

Journal of Social Philosophy

View full text Add to dashboard Cite

show abstract

“…Although EuC has been part of the ECtHR's interpretative arsenal for quite some time, 65 it did not attract significant academic interest until relatively recently. Admittedly, there is a growing body of academic literature on the question of evolutive/dynamic interpretation of human 64 The significance of integration in this respect is also emphasised by the former Vice President of the ECHR, Judge C. Rozakis 70 there is a relative scarcity of studies with a particular focus on EuC, given its theoretical importance and its immediate practical impact on the shaping of European human rights standards.…”

Section: An Ambitious Mapping Exercise: Structure and Contents Of Thementioning

confidence: 99%

How (Difficult Is It) to Build Consensus on (European) Consensus?

Kapotas

Tzevelekos

2019

SSRN Journal

View full text Add to dashboard Cite

The Consensus 'Game' 'Consensus' is a 'riddle, wrapped in a mystery, inside an enigma'. 1 It has various meanings, 2 is used in miscellaneous contexts and for a variety of purposes, and may therefore perform diverse roles. The core component that remains constant across its different definitions, conceptions and uses is the existence of some sort of agreement that enables the 'making' of a decision. Yet, the precise nature and extent of the agreement that underpins consensus is elusive. It spans from anything between a broad, shared understanding (in the sense of concurrence, like-mindedness or general opinion) to (explicit or implied) unanimity that entails a veto power for anyone who participates in the consensus-making process. Different shades of consensus exist between the two extremes of this continuum, depending on the 'looseness' or 'rigidity' of the rules of its formation. The pluralism or ambiguitydepending on one's point of viewin the conceptualisation of consensus is but one of the complexities with which it is fraught. Even if one were to ignore or avoid the definitional pitfalls, consensus cannot become fully operational as a decision-making tool unless the 'rules of the game' have been established: who are the eligible 'players', what are the conditions of validity for its formulation, what is the effect of a consensus/no-consensus outcome, and who is the arbiter of the outcome, that is, who has the authority to recognise the 1 This famous turn of phrase is borrowed from Winston Churchill, who used it in a BBC radio broadcast on 1st October 1939 to describe Russia's unpredictable reactions. See www.churchill-society-london.org.uk/RusnEnig.html. 2 See the chapters contained in Part I of this book, and especially Chapters 4 and 8 by C. Djeffal and S. Douglas-Scott, respectively.  existence of consensus? Clarity in outlining these 'contours' of consensus translates into (legal) certainty on its modus operandi and its outputs. The 'contours', of course, are arguably as important as its definition, as together they are necessary conditions for the functionality of consensus and for its effectiveness. Consensus as a decision-making tool, therefore, encapsulates a paradox: its ability to operate effectively is predicated on the existence of consensus 3 on its meaning and on the layout of its 'contours'. And this inevitably requires an authority 4 that will set the rules of the 'game'. Speaking of games, the allure of consensus apparently transcends the boundaries of academic discourse, judging from the homonymous board game that relies on the assumption that in any given group of people, even the most trivial question is bound to attract a variety of different responses. 5 The rules of the board game are simple. Each player must vote which of the nouns on their common list best matches the adjective on the board. The answer favoured by the majority of players wins. Thus, in the 'Consensus' game, the majority rules 6 and the designer of the game is the authority that defines the meaning, function and purp...

show abstract

“…number of articles 69 and the notable exception of Dzehtsiarou's recent monograph, 70 there is a relative scarcity of studies with a particular focus on EuC, given its theoretical importance and its immediate practical impact on the shaping of European human rights standards.…”

mentioning

confidence: 99%

How (Difficult Is It) to Build Consensus on (European) Consensus?

Kapotas¹,

Tzevelekos²

2019

SSRN Journal

View full text Add to dashboard Cite

    .  Introduction: The Consensus 'Game''Consensus' is a 'riddle, wrapped in a mystery, inside an enigma'. 1 It has various meanings, 2 is used in miscellaneous contexts and for a variety of purposes, and may therefore perform diverse roles. The core component that remains constant across its different definitions, conceptions and uses is the existence of some sort of agreement that enables the 'making' of a decision. Yet, the precise nature and extent of the agreement that underpins consensus is elusive. It spans from anything between a broad, shared understanding (in the sense of concurrence, like-mindedness or general opinion) to (explicit or implied) unanimity that entails a veto power for anyone who participates in the consensus-making process. Different shades of consensus exist between the two extremes of this continuum, depending on the 'looseness' or 'rigidity' of the rules of its formation.The pluralism or ambiguitydepending on one's point of viewin the conceptualisation of consensus is but one of the complexities with which it is fraught. Even if one were to ignore or avoid the definitional pitfalls, consensus cannot become fully operational as a decision-making tool unless the 'rules of the game' have been established: who are the eligible 'players', what are the conditions of validity for its formulation, what is the effect of a consensus/no-consensus outcome, and who is the arbiter of the outcome, that is, who has the authority to recognise the 1 This famous turn of phrase is borrowed from Winston Churchill, who used it in a BBC radio broadcast on 1st October 1939 to describe Russia's unpredictable reactions. See www.churchill-society-london.org.uk/RusnEnig.html. 2 See the chapters contained in Part I of this book, and especially Chapters 4 and 8 by C. Djeffal and S. Douglas-Scott, respectively.

show abstract

European Consensus

Cited by 3 publications

References 6 publications

In defense of deference: International human rights as standards of review

In defense of deference: International human rights as standards of review

How (Difficult Is It) to Build Consensus on (European) Consensus?

How (Difficult Is It) to Build Consensus on (European) Consensus?

Contact Info

Product

Resources

About