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5 - The Consensus Argument in NGOs’ Amicus Curiae Briefs

Defending Minorities through a Creatively Used Majoritarian Argument

from Part I - Understanding European Consensus

Published online by Cambridge University Press:  04 January 2019

Panos Kapotas
Affiliation:
University of Portsmouth
Vassilis P. Tzevelekos
Affiliation:
University of Liverpool
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Summary

This contribution looks at the use of the ‘consensus’ argument in 140 amicus curiae briefs submitted by non-governmental organisations (NGOs) to the Grand Chamber of the European Court of Human Rights. The analysis reveals that a ‘consensus’ argument is often wielded with creativity in their submissions, both regarding the types of consensus and the sources on which they are based. NGOs’ briefs, therefore, contribute to a further expansion of different types of consensus manifestations. Considering the multiple criticisms levelled at the consensus argument, this contribution also observes that NGOs’ briefs sometimes lack methodological rigour and rarely provide for a justification as to the relevance of the consensus argument. This might come as a surprise, coming from actors generally thought as putting forward a universalist understanding of human rights, and this chapter proposes a few hypotheses by way of explanation.
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Chapter
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Building Consensus on European Consensus
Judicial Interpretation of Human Rights in Europe and Beyond
, pp. 96 - 119
Publisher: Cambridge University Press
Print publication year: 2019

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