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ESZTER POLGÁRI From the perspective of subsequent practice only the ‘conservative’ notion of consensus may be relevant; it requires a broad convergence among the member states, i.e. an almost established legal consensus. Besson argues that the European consensus “corresponds to a form of subsequent State practice or interpretative custom of the ECHR” and it is based on state practice and opinio juris similarly to customary international law.*” However, as Ziemele notes, the ECtHR does not elaborate on what it means by consensus: subsequent practice or state practice coupled with opinio juris.°® This paper proposes that linking the ‘conservative’ notion of consensus unequivocally to subsequent practice would benefit the Court: the higher standards required by the Article 31 (3) b) of the VCLT could discipline the use of evolutive interpretation and inject methodological rigor into the consensus inquiry. The broader convergence assumed by subsequent practice would not rule out occasional references to a trend or emerging consensus. These forms of “hypothetical consensus” would remain supplementary means of interpretation within the meaning of the VCLT and may only be used to support interpretation based on other conventional methods and doctrines deriving from Article 31(1) of the VCLT.® Finally, it is important to differentiate between subsequent practice that results — as shown above — in the modification of the ECHR and subsequent practice that is relevant for the interpretation of the scope of the right or the assessment of compliance with the limitation clause. From the point of view of international law in the former case the original intent of the states favoring evolutive treaty interpretation is not sufficient, it needs to be supported by further evidence substantiating opinio juris in the traditional sense, or express state consent (e.g. the signature of the relevant protocol in the cases on abolishing capital punishment).* CONCLUSION Recourse to the consensus inquiry has been subject to widespread criticism primarily for the lack of methodological discipline.” Subsuming certain forms Samantha Besson, Comparative Law and Human Rights, in Mathias Reimann — Reinhardt Zimmermann, The Oxford Handbook of Comparative Law, Oxford, OUP, 2019, 1231-1232. Ziemele, European Consensus and International Law, 36. Letsas, Strasbourg’s Interpretive Ethic, 531. See also: Anja Seibert-Fohr, The Effect of Subsequent Practice on the European Convention on Human Rights. Considerations from a General International Law Perspective in Anne van Aaken — Iulia Motoc (ed), The European Convention on Human Rights and General International Law, Oxford, OUP, 2017, 61-82, 80-81. 61 Seibert-Fohr, The Effect of Subsequent Practice, 80. ® See for example: John L. Murray, ‘Consensus: Concordance, or Hegemony of the Majority?’ in Dialogue between Judges, Strasbourg, CoE, 2008, 39. + 330 ¢
