DECISIONS OF INTERNATIONAL COURTS AND TRIBUNALS - II. GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS, A, B & C v IRELAND, DECISION OF 17 DECEMBER 2010

摘要

The use of 'European consensus' as a decision-making mechanism of the European Court of Human Rights has been condemned and praised in almost equal measure, On the one hand, some scholars argue that the way in which so-called 'consensus' is identified is generally unsound and lacking in rigour. It is also claimed that European consensus is overly subjective in its nature and, in any case, that it undermines the principle that the Convention has an autonomous meaning determined by the Court and separate to what member States do or interpret it as meaning. On the other hand there are scholars who, while often concerned with the suboptimal methodology adopted in identifying and using European consensus in the decisions of the Court, recognize the method's potential to increase the legitimacy of the Court and its function as a mechanism for the progressive liberalization of the European public order. This reflects the fact that, generally speaking, European consensus has been applied in order to establish an expanded scope of protection for the Convention in areas not expressly mentioned within it or contemplated at the time of its drafting, on the basis that there is an identifiable trend (although, in strict linguistic terms, not an actual 'consensus') among other European States to protect the alleged right. Although respondent States had occasionally attempted to justify their derogation from the European consensus or trend on the basis of an internal consensus - understood as a generally held moral value or judgement within the State in question - those attempts had been unsuccessful prior to the important decision of the Grand Chamber in A, B & C v Ireland. In that case, the Court found that Ireland's extremely restrictive stance on the availability of abortion was justifiable and compatible with the Convention on the basis of an alleged internal consensus (in favour of a very restrictive abortion regime in Ireland) that trumped the European consensus (evidencing a much more liberalized abortion regime). In this article, we argue that the proposition that an internal consensus could 'trump' European consensus is troubling from a constitutionalist perspective.