Oldal 331 [331]
OCR
REVISITING THE EUROPEAN CONSENSUS IN LIGHT OF THE VCLT judgments do no assess the commonalities identified in the domestic laws openly under Article 31(3) b) of the VCLT, it may be argued that the Court is indeed relying on subsequent practice to some extent. The consensus is understood “as a tool that can bring forward a particular human rights problem from the margin of appreciation and trigger evolutive interpretation”, or in other words, it can bridge the gap between the margin of appreciation and the dynamic interpretation of the Convention.“ If there is a consensus on an issue, the margin of appreciation becomes narrower, and the Court applies a stricter scrutiny to the actions of the domestic authorities. If the matter concerns the interpretation of the scope of a right, ideally the consensus results in a dynamic approach. While the link between subsequent practice and evolutive interpretation does not call for further explanation, it is necessary to note the key differences between the two notions.” The evolutive interpretation of the ECHR derives from the ‘object and purpose’ of the treaty and is based on the original intent of the parties, while subsequent practice is linked to ‘context’ and presupposes a later — subsequent — intent.* References to the European consensus in the case-law do not constitute a homogeneous group, the various labels applied by the Court cover different modalities: the more ‘conservative’ notions, such as European consensus,” common European standard? or common European approach" are more demanding, i.e. entail the presumption of a broad agreement among the member states in addressing a particular issue, and have a different impact on the interpretation of the ECHR than those describing an emerging consensus or a trend, be that European? or international." 18 Kanstantin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights, Cambridge, CUP, 2015, 24. ® Yutaka Arai-Takahashi, Ihe Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, Antwerp, Intersentia, 2002, 199. See also: Ineta Ziemele, European Consensus and International Law, in Anne van Aaken and Iulia Motoc, The European Convention on Human Rights and General International Law, Oxford, OUP, 2017, 23-40, 24. Julian Arato, Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences, The Law and Practice of International Courts and Tribunals 9 (2010), 443-494. 2 Alekseyev v. Russia 4916/07; 25924/08; 14599/09 (21/10/2010), para 83. 53 Shtukaturov v. Russia 44009/05 (27/03/2008), para 95. 5 Sheffield and Horsham v. the United Kingdom [GC] 22985/93; 233390/94 (30/06/1998), para 57. 55 Vallianatos and Others v. Greece [GC] 29381/09; 32684/09 (07/00/2013), ECHR 2013-VI 131, para 91. 56 Christine Goodwin v. the United Kingdom [GC] 28957/95 (11/07/2002), ECHR 2002-VI 1, para 85. + 329 +
