The Consensus Method of Interpretation by the Inter-American Court of Human Rights

• Author: Lucas Lixinski
• Position: Senior Lecturer, Faculty of Law, University of New South Wales
• Pages: 65-95

65

(2017) 3(1) CJCCL

e Consensus Method of

Interpretation by the Inter-

American Court of Human Rights

Lucas Lixinski*

is article examines treaty interpretation based on consensus, or the idea that legal

or political practice that is not directly related to a treaty can be used in interpreting

it, or at least in granting more discretion to States Parties. e practice of the Inter-

American Court of Human Rights, contrasted with the well-settled practice of the

European Court of Human Rights, reveals that consensus interpretation plays an

important role in entrenching the legitimacy of international human rights courts.

e Inter-American Court’s practice seems to rely on consensus when it supports a

progressive, teleological interpretation of human rights. e article argues that this

selective engagement eliminates the legitimacy-building possibilities of the consensus

method of interpretation, but that the Inter-American Court, in seeking legitimacy not

from States Parties, but other stakeholders, does not seem particularly concerned with

legitimacy costs (even if it probably should).

* Senior Lecturer, Faculty of Law, UNSW Australia. PhD in International

Law, European University Institute. I am very thankful to Vassilis

Tzevelekos for the invitation to write this piece, and to the feedback of

colleagues at UNSW Law Sta Seminar series for their input. All errors

remain my own.

66

Lixinski, e Consensus Method of Interpretation by the IACtHR

I. I

II. C  I L

III. C  C L

IV. C  D P

V. C  L

VI. C

I. Introduction

International human rights tribunals, in interpreting the treaties that

delegate competence to them in cases brought by individuals, often

resort to a number of tools. ese tools are frequently described in the

Vienna Convention on the Law of Treaties1 [“Vienna Convention”]. Most

notably among these is interpretation based on the object and purpose of

the human rights treaty. But teleological interpretation of the text using

intrinsic tools does not always yield the answers the human rights body

needs, particularly in new areas of social activity. In these situations,

human rights bodies, particularly the European Court of Human Rights

(“ECtHR”), have referred to “consensus” as a method of interpretation.

Consensus interpretation mediates tensions between dierent types

of interpretation, even if it has fallen under the shadows of the margin of

appreciation attributed to States.2 ere are ve key categories of consensus

interpretation in the ECtHR jurisprudence: (1) consensus among States

Parties of the Council of Europe; (2) international consensus identied

by international treaties; (3) internal consensus within a State; (4) expert

consensus; and (5) consensus among ECtHR judges.3 Tyrer v United

Kingdom4 is the case that started the use of consensus as a means for

1. 23 May 1969, 1155 UNTS 331 art 18 (entered into force 27 January

1980) [Vienna Convention].

2. Kanstantsin Dzehtsiarou, “European Consensus: a way of reasoning”

(2009) University College Dublin Law, Working Paper No 11/2009.

3. Ibid.

4. (1978), ECHR (Ser A) 24, 2 EHRR 1.