Consensus-Based Interpretation of Regional Human Rights Treaties

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In Consensus-Based Interpretation of Regional Human Rights Treaties Francisco Pascual-Vives examines the central role played by the notion of consensus in the case law of the European and Inter-American Courts of Human Rights. As many other international courts and tribunals do, both regional human rights courts resort to this concept while undertaking an evolutive interpretation of the Rome Convention and the Pact of San José, respectively. The role exerted by the notion of consensus in this framework can be used not only to understand the evolving character of the rights and freedoms recognized by these international treaties, but also to reaffirm the international nature of these regional human rights courts.

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Biographical Note

Francisco Pascual-Vives, Ph.D., is Lecturer of Public international law (University of Alcalá). He focuses his research on the interplay between general international law and other legal sectors, such as European Union law, international investment law and human rights protection.

Table of contents

ForewordCarlos Jiménez Piernas Abbreviations Introduction 1 Object 2 Methodology and Sources of Knowledge 3 Structure PART 1 Theoretical Framework: Consensus, Sectorialization and Subsidiarity Introduction to Part 1 1 The Notion of Consensus in Public International Law  1 The Two-Fold Dimension of Consensus in Public International Law  2 A Focus on the Substantive Dimension of Consensus   2.1 International Court of Justice    2.1.1 A Consensualist Approach before the International Court of Justice    2.1.2 Evidence of Customary International Law    2.1.3 Customary Rules of International Human Rights Law and International Humanitarian Law   2.2 Regional International Courts and Tribunals    2.2.1 Court of Justice of the European Union    2.2.2 European Court of Human Rights   2.3 Sectorial International Courts and Tribunals 2 The Challenges Arising from the Specialization and Sectoralization of Public International Law  1 Coordination Tecniques: A Way to Navigate Through the System  2 Inter-Judicial Deference: An Antidote against Judicial Activism 3 Subsidiarity as a General Principle in International Human Rights Law  1 Conclusion of Regional Human Rights Treaties  2 Partial Suspension of Regional Human Rights Treaties  3 Enforcement of Judgments of Regional Human Rights Courts and Tribunals PART 2 Consensus and Evolutive Interpretation Introduction to Part 2 4 Evolutive Interpretation as a Method of Interpretation in Public International Law  1 The Temporal Element and the Law of Treaties   1.1 The Works of the International Law Commission   1.2 International Case Law Supporting the Principle of Contemporaneity  2 Evolutive Interpretation and the Law of Treaties  3 Evolutive Interpretation in International Case Law   3.1 International Court of Justice   3.2 Other International Courts and Tribunals   3.3 Regional Human Rights Courts and Tribunals 5 The Evolution of Regional Human Rights Treaties through the Notion of Consensus  1 Tension between Sovereignty and Cooperation   1.1 The Role of the Principle of Sovereignty   1.2 The Erosion of the Principle of Sovereignty    1.2.1 Searching for Consensus beyond Regional Human Rights Subsystems    1.2.2 Searching for Consensus within Regional Human Rights Subsystems     1.2.2.1 A Constitutionalist Approach     1.2.2.2 A Consensualist Approach  2 Tension between Universalism and Regionalism   2.1 Evidence of Consensus by Reference to Universal Practice    2.1.1 Participation in International Treaties as Evidence of a General Agreement    2.1.2 Non-Participation in International Treaties and the Principle of Systemic Integration   2.2 Evidence of Consensus by Reference to Regional Practice    2.2.1 Practice of the Council of Europe    2.2.2 Practice of the European Union    2.2.3 Practice of the Organization of American States  3 Tension between International and Constitutional Jurisdictions   3.1 Reinforcing the International Character of Regional Human Rights Courts and Tribunals   3.2 Guaranteeing the Unity of Public International Law and the Risks Posed by Judicial Activism    3.2.1 The Double Instance as a Formula to Strengthen the Unity of Public International Law    3.2.2 A First Risk of Fragmentation: Judicial Activism and Evolutive Interpretation    3.2.3 A Second Risk of Fragmentation: Judicial Activism and the Jurisdiction of Regional Human Rights Courts and Tribunals PART 3 Consensus and the National Margin of Appreciation Introduction to Part 3 6 Scope of the National Margin of Appreciation  1 The National Margin of Appreciation: An Indeterminate Concept   1.1 The Praetorian Origins of the National Margin of Appreciation   1.2 The Complex Systematization of the National Margin of Appreciation  2 The National Margin of Appreciation in International Case Law   2.1 International Court of Justice   2.2 International Tribunal for the Law of the Sea   2.3 Inter-State Arbitration   2.4 Court of Justice of the European Union   2.5 Investment Treaty Arbitration   2.6 World Trade Organization Panels   2.7 Preliminary Considerations: The National Margin of Appreciation as a Multifaceted Legal Concept  3 The Expansion of the National Margin of Appreciation in Regional Human Rights Subsystems 7 Intrinsic Circumstances Conditioning the National Margin of Appreciation  1 Legal Nature of the International Obligation   1.1 Peremptory or Dispositive Nature of the International Obligation   1.2 Positive or Negative Nature of the International Obligation  2 Public or Private Dimension of the Interests at Hand   2.1 Enhancing the Protection of Public Interests   2.2 Consequences of Conflicting or Overlapping Interests or Rights 8 Consensus as an Extrinsic Circumstance Conditioning the National Margin of Appreciation  1 Substantive Dimension of Consensus: The Backbone of Regional Human Rights Case Law   1.1 National Margin of Appreciation and Consensus Generalis   1.2 National Margin of Appreciation and the Absence of Consensus Generalis    1.2.1 Challenges Posed by an Evolutive Consensus: Right to Access to a Court and Jurisdictional Immunities    1.2.2 Respecting the Regulatory Power of the State in the Absence of Consensus: the Right to Express Religious Convictions, Neutrality and Secularism  2 Formal Dimension of Consensus: An Emerging Coordination Technique in Regional Human Rights Case Law Final Considerations Bibliography Table of Jurisprudence and Case Law Table of International Treaties Table of Authors Index

Readership

All interested in international human rights protection, how it evolves when regional human rights courts and tribunals invoke the method of evolutive interpretation and the notion of margin of appreciation.

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