Shai Dothan, associate professor in iCourts, has published a new article entitled: Judicial Deference Allows European Consensus to Emerge. The article is a heavily updated version of a previous working paper that is also forthcoming in Chicago Journal of International Law.
The European Court of Human Rights (ECHR) searches for human rights policies that are adopted by the majority of the countries in Europe. Using a doctrine known as “emerging consensus,” the court then imposes these policies as an international legal obligation on all the countries under its jurisdiction. But the ECHR sometimes defers to countries, even if their policies fall short of the standard accepted by most of the countries in Europe. This deference is accomplished by using the so-called “margin of appreciation” doctrine. Naturally, emerging consensus and margin of appreciation are often conceived as competing doctrines: the more there is of one, the less there is of another. This paper suggests a novel rationale for the emerging consensus doctrine: the doctrine can allow the ECHR to make good policies by drawing on the independent decision-making of many similar countries. In light of that, the paper demonstrates that a correct application of the margin of appreciation doctrine actually helps emerging consensus reach optimal results, by giving countries an incentive to make their policies independently.
The full article can be accessed here.