Rethinking European Consensus, Reimagining Human Rights

An interview with Jens T. Theilen, author of European Consensus between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication (Nomos, 2021). Questions by Natasa Mavronicola.

Natasa Mavronicola: First of all, congratulations on this exceptionally incisive and eloquent study on human rights (consensus) reasoning. I want to begin by inviting you to unpack what animates your examination of the (mis)use of consensus reasoning by the European Court of Human Rights (ECtHR). What led you to write this book?

Jens Theilen: Thank you very much! There is actually no easy answer to that question since my perspective shifted quite drastically over the course of writing the book. But what animates the final product is a concern with the ambivalence of human rights – they have emancipatory potential, but especially in their legal form they also contribute to stabilising a deeply unjust status quo. I am interested in that space of ambivalence and where it could take us, so I wanted to examine the way in which some forms of argument are established as the ECtHR’s standard approach and come to appear natural while other positions or approaches get discounted, for example, as ‘unrealistic’. European consensus is a particularly interesting case study, in that regard. For one thing, it is often understood as an ‘objective’ element within the ECtHR’s reasoning because it is based on a comparative overview of the states parties’ legal systems. At the same time, its use is said to contribute to the ECtHR’s legitimacy and thus takes on a sense of necessity so as to uphold the functioning of the European human rights system. In different but interlocking ways, both of these assumptions anchor the ECtHR to the status quo and thus restrict the imaginative space which human rights could open up.

NM: You analyse the ECtHR’s case-law over the course of several chapters, foregrounding different elements such as the number of states required to establish European consensus, the role of international law, the level of generality at which consensus is established, and the connection between consensus, autonomous interpretation, and the margin of appreciation. What was your main take-away from this analysis of the case-law?

JT: What stands out to me is the great flexibility inherent in how European consensus is used, because all the factors you mention can be and are in fact approached in several different ways. For example, in some judgments the ECtHR will require an almost unanimous tableau among the states parties to establish consensus, while in others even less than half the states parties are sufficient. International law will sometimes play an important role and sometimes not even be mentioned, even though relevant documents exist. Soft law can also be given a more or less prominent role, and so on and so forth. And to complicate things further, all these different elements can interact and come together in different ways.

Many voices in academic commentary see this as an aberration from how the ECtHR should properly be using consensus, and call for a more formalised and consistent approach. I think this is a mistake. For one thing, I understand the flexibility of European consensus to be an expression of normative tensions that are typical of human rights law – somewhat simplistically, we could say the tensions between individual rights and democratic decisions – so I don’t think the ECtHR would ever let itself be pinned down to, say, a definite number of states that would be sufficient to establish consensus. For another, such an approach would only serve to consolidate the idea that European consensus is particularly objective, whereas my interest is in making clear that the ECtHR itself shapes consensus, rather than merely finding it as a pre-given reality in the legal orders of the states parties.

NM: You unpack the ‘rein’ effect and the ‘spur’ effect of consensus reasoning by the ECtHR. In which of these two manifestations is the use of consensus most significant and problematic, and why?

JT: Well, the rein effect is certainly the manifestation that is more commonly challenged in academic commentary. This is the scenario in which the ECtHR identifies a lack of consensus among the states parties (or, less often, a consensus against the applicant), which constitutes an argument against finding a violation of the Convention. I suspect this is the more controversial use of European consensus since it stands in obvious contrast to the way many people think of human rights – as prepolitical rights which serve in particular to protect minorities against majority preferences. While I don’t share the corresponding liberal epistemology aimed at establishing ‘moral truth’, I do think that this is the more significant and hence more problematic manifestation of consensus in practice. The ECtHR’s case-law, sadly, contains plenty of examples in which the rein effect helps to legitimise majoritarian norms at the expense of minorities, especially in the area of gay rights and trans rights (e.g. Schalk and Kopf v. Austria, Hämäläinen v. Finland, and the restrictive prong of A.P., Garçon and Nicot v. France).

I would add two points, however. First, if we take seriously the ambivalence about human rights that I mentioned above, then we do need to be cautious of the spur effect of European consensus as well. In this scenario, consensus against the respondent state constitutes an argument in favour of finding a rights violation. This is often thought of as the more progressive side of the coin, and indeed in many cases it is. But more human rights are not always better, so the maximalist conception of human rights implied by the spur effect is also problematic in that it shifts the focus away from the foundational questions of how human rights relate to power and which direction the ECtHR’s case-law should develop in. An example of how such questions can productively be raised is the recent work critical of coercive and penal orientations in human rights law; we will return to that in more detail when discussing your own monograph.

The second point I would raise is that we need to be aware of how both the rein effect and the spur effect together constitute what is specific about European consensus – which is why I call it ‘Janus-faced’. I think that the sense of moving cautiously and incrementally in line with the states parties’ positions underlies much of the support for the use of consensus, so it is important to think both rein and spur effect together so as to understand the appeal of this form of argument.

NM: You argue that the ECtHR’s employment of consensus reasoning tends to conflate strategy and principle while obscuring the strategic considerations that inform it under a cloak of ‘objectivity’. You suggest that ‘strategic concessions… come at a high cost since the deviation from principle implies that justice is subordinated to power. It is precisely because of this cost that the dilemma of strategic concessions needs to be faced head-on, rather than obscured by conflating strategy and principle’. I agree with you that these issues come to a head, so to speak, when dealing with matters concerning minority rights, particularly where these matters are the subject of controversy given the structural force of prejudice and dominant groups’ attachment to a status quo that privileges them. Can you tell us a bit more about what it means for strategic concessions to be faced head-on?

JT: I highlight what Roni Mann calls the dilemma of strategic concessions because it casts a spotlight on the tensions between different justifications for the use of European consensus. This is also what I aim to capture in the book’s title: European consensus between strategy and principle. Minority rights are one area in which these tensions can manifest quite clearly. On the level of principle, most commentators will admit that consensus should not in and of itself be decisive of any given case. In response to liberal concerns about minority rights, lack of consensus might be conceptualised as one factor among others within the margin of appreciation, or as a rebuttable presumption. But there is also a strategic level to European consensus, in that its use is commonly presumed to enhance the ECtHR’s sociological legitimacy because it prevents judicial developments going beyond what would be acceptable to the states parties. As you say, minority rights are liable to be controversial – so a strategic rationale for using consensus would prompt the ECtHR to be cautious about rebutting a presumption established by lack of consensus.

Facing the dilemma of strategic concessions head-on, then, means grappling with the tension between strategy and principle. I think this is a hugely important issue because of how widespread and increasingly unquestioned the focus on upholding the ECtHR’s legitimacy and thus the acceptance of strategic concessions has become. The focus on retaining legitimacy – which is also in evidence for other courts but particularly pronounced and sometimes near-obsessive in the case of the ECtHR – may well be one of the main reasons for the ECtHR’s conservatism. Challenging it requires that we explicate the dilemma of strategic concessions and think about the kind of role the ECtHR should play vis-à-vis the states parties.

NM: You come – very methodically and persuasively – to the conclusion that ‘[b]y virtue of the way European consensus assigns normative force to the legal systems of the States parties as they currently stand, foregrounding it within the ECtHR’s reasoning not only carries a noticeable conservative lilt but also points away from critical engagement with current power structures both intra-nationally and transnationally within Europe’ (emphasis in the original, citations omitted). Where should this conclusion take us (‘us’ being open to your interpretation) and the Strasbourg Court, in your view?

JT: I’ll start with the second part of the question: where should my conclusions take the Strasbourg Court? The easy answer, I suppose, is that the ECtHR should rely less on European consensus. For all its flexibility, consensus-based reasoning is focussed on grouping states and identifying majorities, so it is notoriously difficult to use in a way that foregrounds alterity and might be disruptive of relations of oppression and marginalisation. Other forms of reasoning are more suited to critically engaging with power structures. In the book’s final chapter, I suggest using comparative law in a way which does not aim to identify consensus but rather to disrupt and denaturalise dominant assumptions about concepts such as gender, family, or religion.

But I do not think it is particularly helpful to think of this issue only in terms of which form of reasoning is preferable in the abstract. One of the main points I try to make throughout the book is that while different forms of reasoning might point in certain directions, they are ultimately used by the judges on the ECtHR to justify their decisions, and the impact of any argument depends on how it is used. This brings us back to the broader question of what role the ECtHR should play vis-à-vis the states parties: the kind of image which the Court has of itself will significantly influence the way it approaches its decisions. For example, if the current focus on the ECtHR’s legitimacy remains in place, then we could no doubt expect judgments which continue to defer to power whether lack of European consensus is mentioned or not. This is part of why I’m so taken by Corina’s account of vulnerability as a conduit for judicial empathy, as we discussed in the context of her book – it provides one way in which the judges of the ECtHR might shift their focus away from the relative formality of consensus and from concerns about legitimacy and instead approach decisions from within a mind-set attuned to marginalisation and inequality.

The other part of your question is more difficult. When I ponder where my conclusions should take ‘us’, I tend to think of this evocative ‘us’ as those working on human rights with broadly similar political commitments to myself – interested in social transformation beyond merely incremental adjustments to the status quo, in other words. From that perspective, it’s not enough to make suggestions for how the ECtHR could change its reasoning, its role or self-image. We also need to ask ourselves whether we want to pin our hopes of social transformation on the possibility of those changes within the ECtHR occurring – taking into account ‘not just abstract possibility, but real, historical possibility’, as Susan Marks puts it. I do not have a settled answer to that, but I do think we have reason to be sceptical as to the transformative potential of courts and, at an absolute minimum, should retain an awareness that human rights can be so much more than the shape given to them in their institutionalised form.

NM: Thank you very much for your responses. I have a lot more that I would love to discuss but perhaps it is time to wrap up and raise these topics in another forum. My final question is the ‘joker’ question that you yourself came up with in your questions to Corina: what is something about the book that you feel is important or that you’re proud of, but that might be missed or undervalued when people read it?

JT:  An important point that’s tucked away at the end of an admittedly rather long chapter is the question of how to think about sameness and difference within the Council of Europe. It’s surprisingly common, especially in attempts to justify the use of European consensus, to speak of European states as homogeneous. This raises a whole host of questions. Homogeneous in what way? Why and how should homogeneity matter in the context of European consensus, or in the context of human rights more generally? How does talk of homogeneity mask hierarchies between states, especially between those in Western and those in Eastern Europe? Is the image of a homogeneous Europe premised on (or does it contribute to constructing) an image of the non-European Other? With the exception of a brilliant article by Claerwen O’Hara, the nexus between European consensus and a specifically European identity has been insufficiently explored so far – so there is plenty of scope for further research.

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European Consensus between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication (Nomos, 2021) is available open access here.

A panel discussion on the topic of ‘Minimalism vs. maximalism? Challenges and future directions in the interpretation of the European Convention on Human Rights’ will take place on Wednesday, 8 June 2022 at 4 pm CET. It will feature Eva Brems (chair), Corina Heri, Natasa Mavronicola and Jens T. Theilen and pick up on themes covered in this symposium. You can register for the event here.