Oldal 333 [333]
OCR
REVISITING THE EUROPEAN CONSENSUS IN LIGHT OF THE VCLT of the consensus inguiry under subseguent practice and distinguishing their normative value on objective grounds, i.e. how consistent and common the state practice is, would add democratic legitimacy to its use: ultimately the solution elevated to the level of the Convention would verifiably originate from the member states. This approach is not new to the Court. In Bayatyan v. Armenia the Grand Chamber overruled the Convention organs’ prior case-law on conscientious objection to military service — among others — on the basis that “there was nearly a consensus among all Council of Europe member States”.®* If one accepts — as Nolte submitted — that member states are aware of their obligations under the ECHR when they legislate on a certain issue and their actions follow from a “bona fide understanding of [their] obligations”, embracing a standard deriving from national laws — pending that it is widely shared — with reference to subsequent practice leading to an evolutive interpretation is not at odds with state consent. BIBLIOGRAPHY ARAI-TAKAHASHI, Yutaka, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, Antwerp, Intersentia, 2002. ARATO, Julian, 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. BossuyT, Marc, 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. BUGA, Irina, Modifications of Treaties by Subsequent Practice, Oxford, OUP, 2018. DZEHTSIAROU, Kanstantin, European Consensus and the Legitimacy of the European Court of Human Rights, Cambridge, CUP, 2015. Forowicz, Magdalena, The Reception of International Law in the European Court of Human Rights, Oxford, OUP, 2010. GARDINER, Richard, The Vienna Convention Rules on Treaty Interpretation, in Duncan B. Hollis (ed), The Oxford Guide to Treaties, Oxford, OUP, 2012, 475-506. GARDINER, Richard, Treaty Interpretation, Oxford, OUP, 2015. GERARDS, Janneke, The European Court of Human Rights and National Courts: Giving Shape to the Notion of ‘Shared Responsibility’ in Janneke Gerards — Joseph Fleuren (ed), Implementation of the European Convention on Human 6% Bayatyan v. Armenia [GC] 23459/03 (07/07/2011), ECHR 2011-IV 1. + 331 *
