Wildhaber, Hjartarson, & Donnelly: No Consensus on Consensus

Luzius Wildhaber (formerly, President, European Court of Human Rights), Arnaldur Hjartarson (Univ. of Iceland), & Stephen Donnelly (Univ. College London - Law) have posted No Consensus on Consensus (Human Rights Law Journal, Vol. 33, pp. 248–263, 2013). Here's the abstract:

This paper analyses the role of consensus among states in the case-law of the European Court of Human Rights. It first presents a brief overview of the origins and the development of the present approach to consensus analysis before discussing the diverging concepts and theoretical explanations of European consensus. The focus of the paper is then on the normative and dogmatic bases of consensus analysis, reaching from European and extra-European domestic legal systems to treaties, judgments of international courts, and soft law. This is followed by a brief inquiry into how binding consensus ought to be. The final parts of the analysis set out the results of our survey of the mechanics of consensus analysis as practised by the ECtHR. We conclude that consensus analysis has a sound basis in both principle and pragmatism.