The European consensus analysis in the ECHR: gay and transsexual rights cases

Abstract

This thesis investigates the theoretical and practical aspects of the European consensus analysis used by the European Court of Human Rights. It examines the role of the consensusbased approach in the light of the different modes of interpretation, and elaborates on the main elements required for establishing a common European approach. The gay and transsexual rights cases are assessed against this general framework. The case-studies focus on the application of the European consensus analysis in three main areas: the decriminalization of consensual homosexual acts, the family rights of gay and transsexual couples, and the rights of post-operative transsexuals. On the basis of the conclusions drawn from the case-studies the paper discusses the impact of the European consensus inquiry on the legitimacy of the Court. The central argument is that the application of the European consensus results in the violation of several rule-of-law principles, i.e. predictability, foreseeability and consistency. At the same time the thesis challenges the argument that the European consensus is merely a rhetorical tool, which allows the Court to avoid the charges of overreaching activism.