Minority Rights between the European Consensus

This article is written by a master student and reflects their individual perspectives and opinions. It does not constitute an official representation of the Raoul Wallenberg Institute. The content provided here is for educational and informational purposes only, and readers should be aware that it does not necessarily align with the official position of the institute. Readers are encouraged to independently verify information and seek guidance from appropriate academic authorities when necessary. The authors bear full responsibility for the content presented in this blog and any potential consequences resulting from it.

This article was written by Emīlija Branda. Emīlija is a lawyer and a human rights activist from Latvia. She holds a bachelor’s degree from the University of Latvia and is currently a student in the master’s program International Human Rights Law at Lund University.

What is the European Consensus?

The European consensus is a term used to describe one of the interpretative mechanisms of the European Court of Human Rights (ECtHR). The European consensus “refers to the level of uniformity present in the legal frameworks of the member states of the Council of Europe on a particular topic”. The European consensus is largely connected with the margin of appreciation left to states – the operating space which states enjoy in fulfilling their obligations under the European Convention on Human Rights (ECHR). The extensive case-law of the ECtHR has established that a less uniform stance between the states leaves a larger margin of appreciation. Consequently, when there is higher uniformity, the room for operating is constrained.

As a result, the determination of the scale of uniformity between the Council of Europe member states can result in various outcomes:

  • in case of non-uniformity, it may establish a wide margin of appreciation in favor to the state and potentially serving as a compelling argument for a non-violation;
  • in case of uniformity, it may establish a narrow margin of appreciation in favor to the applicant, indicating a violation;
  • in case of uniformity, the presence of consensus may be overturned when state-specific circumstances are demonstrated to be paramount.

Interestingly, when determining the European consensus, the ECtHR tends to use terms such as “common European standard”, “general trend” or “trend”. This suggests that the ECtHR is less concerned with establishing complete uniformity across all Council of Europe member states and more focused on discerning a generally consistent stance within a majority of these states. Given the diverse traditions and varying social, cultural, and religious norms among the 46 member states, achieving complete uniformity is rare. However, instances of such uniformity do arise, as exemplified in Ünal Tekeli v Turkey. In this case, the ECtHR determined that Turkey stood as the last member state “which legally imposes – even where the couple prefers an alternative arrangement – the husband’s name as the couple’s surname and thus the automatic loss of the woman’s own surname upon her marriage”. Generally, uniformity between all states can be determined on a principal level regarding, for instance, the principle of the child’s best interests.

Consensus, Legitimacy and Minority Rights

The European consensus is a component of the living instrument doctrine. The living instrument doctrine indicates that the ECHR is a living instrument that changes overtime; this change is driven by the advancements and changes in society. Some authors have stated, in connection with the living instrument doctrine, that the ECtHR by resorting to the European consensus grants legitimacy to the ECHR’s interpretation vis-à-vis the member states. As Jens Theilen notes: “this approach to consensus sees it as a strategic move to deal with the non-ideal conditions and power constellations within which the ECtHR finds itself”. Furthermore, consensus is conceptualized as an ever-evolving and renewed form of consent to the ECHR, fundamentally rooted in the principle of state consent and, seemingly, the deliberative understanding of human rights.

The argument conceptualizing consensus as a source of legitimacy has emerged in response to perceived instances of  “judicial activism” within ECtHR judgments. This activism is often identified when the enforcement of ECtHR rulings necessitates legislative changes that may conflict with the stance taken by the respondent state. This is especially evident in cases where the ECtHR has broadened the interpretation of a right, expanding its scope beyond what was previously considered within the protection of the ECHR. It has been observed by Kanstantsin Dzehtsiarou that “European consensus is not normally deployed in cases where the law in question falls within the commonly accepted standards. Much more often, European consensus is deployed if the law or practice under consideration by the Court deviates from consensus.” Ostensibly, the argument for consensus as a source for legitimacy is mobilized as a protective shield for the potential resistance of member states in regards to the enforcement of the ECtHR’s judgements that diverge from the prevailing regional or national understanding.

In the broad sense, the European consensus seeks the majority’s “acceptance”. The case-law of the ECtHR has demonstrated that the mere absence of a European consensus forms a central argument for finding a non-violation and denying the recognition of a specific right to the applicant. For example, in Sheffield and Horsham v UK, the absence of a right to legally recognize a sex change was not deemed a violation due to the lack of a European consensus. Similarly, in Mata Estevez v Spain and Schalk and Kopf v Austria, a long-term partnership between same-sex partners did not impose a positive obligation to legally recognize their relationship. However, these decisions were later overturned when a consensus was established, as seen in Christine Goodwin v UK (where the ECtHR referred to an “international trend” in USA, Singapore, Canada, Israel, South Africa, New Zealand) and Fedotova and Others v Russia. Consequently, the prevailing majority’s viewpoint significantly influences our interpretation of human rights.

In light of this, it prompts us to question whether a system that heavily relies on the opinions of the majority is even compatible with the objective of human rights and their universality. Human rights law emerged as a response to the atrocities of World War II, seemingly marking the “renaissance” of natural law –  a law that serves as a guiding scale on making decisions as rational and moral creatures. For that, the existing human rights documents were crafted for limiting the arbitrariness of state action to ensure equal rights for all – the majority and minority alike.

Interestingly, the ECtHR has established as early as in the 1980 in Artico v Italy that “it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority” and has continued to enforce this notion (see, Sekmadienis LTD v Lithuania). However, the European consensus is contradictory to this as it strictly relies on a comparative analysis of the existing legislation in member states and the determination of the majority. Therefore, in cases of minority rights where consensus is the core argument for the non-recognition of the right in question, in essence, the judgment is grounded in the majority’s acceptance of minority rights. The outcomes of Sheffield and Horsham, Christine Goodwin, Schalk and Kopf, Fedotova and Others, which covered minority rights issues, are just some examples where the majority position was the basis for the recognition or, on the contrary, non-recognition of minority rights.

It should be highlighted that minorities are frequently subjected to unequal treatment and face challenges in influencing legal changes or representing their interests in the legislative process. The application of consensus by the ECtHR involves examining the prevailing view in a state’s legal system, but it often overlooks the power dynamics between minorities and the majority. Consequently, consensus perpetuates prevailing perspectives in Europe without justifying why the majority stance in a given situation is not oppressive or unlawful. Moreover, minority rights issues most often diverge from “commonly accepted standards”, therefore, ECtHR cases on minority rights are more susceptible to the application of the European consensus.

For instance, the former ECtHR Judge Župančič is in agreement with the view that “the difference between a court and a democratic parliament is not that you decide by virtue of simple majority but you decide by criteria which are independent of the preferences of the majority.” He continues to compare European consensus with a medical issue “imagine that we have a medical council dealing with a particular medical issue – cancer. We have surgeons, dermatologists, and other medical specialists – consilium. They debate over the issue. They may not arrive to consensus. Somebody may disagree whether there is cancer or there is no cancer. The issue is not whether we have consensus or not – the issue is whether there is cancer or not. [..] The issue is not who is in the majority or what the majority’s view is. We start from the assumption that what we are dealing with is something objective with pertains to the sense of justice: logic, cognitive analysis rather than simply a prevailing view of the judges or even more prevailing view of the states they come from.”

In light of Judge Župančič’s perspective, it becomes evident that the crux of human rights issues lies in their inherent objectivity and the sense of justice. Contrary to the ECtHR’s current view, Župančič suggests that the focus should not be on establishing consensus as an end in itself but rather on addressing the matter at hand objectively with no particular weight given to the majority view. He highlights logic, cognitive analysis, and justice as guiding principles that reflect the need to move beyond the constraints imposed by a consensus-driven model. In reevaluating the application of the European consensus, one must consider its limitations in the actual reality of minority rights. By embracing a framework that prioritizes the inherent justice of each case that can deviate from the prevailing view, the ECtHR could contribute to a more equitable and rights-centric European legal landscape.


In conclusion, the ECtHR’s application of European consensus examines the prevailing views in European legal systems; it tends to overlook the intricate power dynamics between minorities and the majority. The challenges faced by minorities include unequal treatment and limited influence in legal processes or representation within legislative processes. Consequently, the reliance on consensus perpetuates prevailing perspectives in Europe without examining why the majority stance in a given situation is not oppressive or unlawful. Moreover, minority rights issues frequently diverge from “commonly accepted standards”, therefore, rendering ECtHR cases on minority rights more susceptible to the application of the European consensus.


Council of Europe. Interpretative Mechanisms of ECHR Case-Law: the Concept of European Consensus. Available: https://www.coe.int/en/web/help/article-echr-case-law.

Dzehtsiarou K. European Consensus and the Legitimacy of the European Court of Human Rights. Cambridge: Cambridge University Press, 2015.

Dzehtsiarou K. European Consensus and the Evolutive Interpretation the European Convention on Human Rights. German Law Journal, Vol. 12, 2011.

Kleinlein T. Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control. The European Journal of International Law Vol. 28, No. 3, 2017.

Letsas G. A Theory of Interpretation of the European Convention on Human Rights. Oxford: Oxford University Press, 2007.

Morsink J. World War Two and the Universal Declaration, Human Rights Quarterly Vol. 15, No. 2, 1993.

Theilen J. European Consensus between Strategy and Principle. Baden: Nomos, 2021.

Featured image: by Tingey Injury Law Firm

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