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REVISITING THE EUROPEAN CONSENSUS IN LIGHT OF THE VIENNA RULES ON TREATY INTERPRETATION ——o— ESZTER POLGÁRI The technigues and methods of interpretation meant to ensure that the interpretation of the ECHR remains up-to-date are oftentimes labelled as activist and triggered fierce opposition in member states. This piece proposes to ground one of the most contested tools used to enhance the protection within the framework of the Vienna rules on treaty interpretation, and it argues that understanding the European consensus inquiry as subsequent practice may increase its legitimacy and add a methodological discipline to its use. INTRODUCTION The European system created on the basis of the European Convention on Human Rights and Fundamental Freedoms [hereinafter: Convention or ECHR] is undoubtedly the most successful regime devoted to the protection of human rights. The rights in the Convention “are expressed in sparse and abstract universal terms”, which have been filled with content through interpretation by the European Court of Human Rights [hereinafter: ECtHR or Court]. The creative solutions adopted by the ECtHR have triggered considerable amount of critique and resistance both among judges and academics,? and the political backlash that followed certain judgments threatened to shake the foundation of the ECHR system.* Without elaborating in details on the various steps leading to Assistant professor and Chair ofthe Human Rights Program at the Department of Legal Studies, Central European University, Vienna, Austria. Steven Greer, The Interpretation ofthe European Convention on Human Rights: Universal Principle or Margin of Appreciation?, UCL Human Rights Review 3 (2010), 1-14. See among others: Marc Bossuyt, Is the European Court of Human Rights on a Slippery Slope?, in Spyridon Flogaities - Tom Zwart - Julie Fraser (ed), The European Court of Human Rights and its Discontents, Cheltenham, Edgar, 2013, 27-36. See for example: Sarah Lambrecht, Reforms to Lessen the Influence ofthe European Court of Human Rights: A Successful Strategy?, European Public Law 21 (2015), 257-284. + 322 +
