In the wake of various controversial judgments by the European Court of Human Rights (ECtHR), criticism of Strasbourg seems more widespread than ever before. While this may suggest that the Court’s legitimacy is at risk, it will be argued here that tensions between the Court and the Member States are an inevitable corollary of the Court’s mandate.
According to the Brighton Declaration, the Court ‘acts as a safeguard for violations that have not been remedied at the national level’. In other words, the Court’s function is to perform a supranational check on the human rights record of the Member States. After World War II, it was considered that a supranational human rights review is desirable in order to keep national authorities in check, and for this reason the Strasbourg Court was empowered to review the policies of Member State institutions, including their democratically legitimized parliaments. The execution of this mandate in a relevant manner makes regular clashes with Member States inevitable.
Nonetheless, the fact that the Court’s task is conducive to regular disagreement with Member States does not mean that it can override national decisions without a convincing justification. Especially in cases concerning controversial matters, ‘on which opinions within a democratic society may reasonably differ widely’, the Court needs to provide a thorough explanation when it determines that a domestic interpretation of a certain human rights obligation does not satisfy Convention standards. If not, Member States will contest the legitimacy of the Court’s decision.
Consequently, the crucial question for the Court is how to navigate between irrelevance and illegitimacy. Over the years, the Court has developed numerous concepts in order to do so, including the principle of subsidiarity, the margin of appreciation and the concept of the European consensus. Of all these different concepts, it seems that the latter is the most reliable tool used by the Court. It entails that whenever the Court discerns a variety of practices among the Member States, it will be inclined to acquit the respondent state. Conversely, when the respondent deviates from a well-established consensus among the other states, the finding of a violation will be more likely.
The Court’s use of the European consensus has been criticized for many reasons. Critics have wondered whether Member states should not be allowed to develop their own particular understanding of human rights norms, in accordance with their culture and traditions. Even the Court itself has acknowledged that Member States have a certain right to diversity. Nonetheless, the European consensus gives the Court some concrete guidance in defining the scope of Convention provisions in controversial matters. Even though the approach implies a certain degree of universalism and harmonization, it concords with the original view of the Member States that national human rights compliance needs some degree of international supervision.