Die Konsensmethode des EGMR Eine kritische Bewertung mit Blick auf das völkerrechtliche Konsensund das innerstaatliche Demokratieprinzip

The method of consensus as practiced by the European Court of Human Rights implies an evolutive understanding of the Convention as a living instrument (1), relies on subsequent practice as a means of treaty interpretation (2), focusses on international documents in order to prove changing values (3), and may override a minority of contracting states which do not adhere to the common standard. The decisions in Demir and Baykara und Enerji Yapi-Yol Sen illustrate this method and its consequences: The ECHR ruled that the freedom of association (art. 11 ECHR) also included the right of public servants to collective bargaining and strike. The Court based this evolutive understandig of art. 11 ECHR on the European Social Charter and on several ILO-Conventions in particular despite the fact that not all of the contracting states (namely Turkey and Germany) had ratified these treaties. The article argues that the principle of consent as a foundation of Public International Law and its municipal corollary, the principle of democracy, may limit and influence the ECHR's method of consensus. Generally speaking, the Court's method plausibly supposes the Convention to refer dynamically to a common European standard of human right protection. However, the method needs to be elaborated and restricted. The ECHR should clearly separate its authoritative use of subsequent practice from a mere informational use of legal developments. Furthermore, the Court should establish criteria which define the absolute scope of conventional guarantees as opposed to those guarantees which are subject to changing standards. What's more, subsequent practice must primarily be established by considering the national practice within the member states, not regional or universal developments. Besides, the ECHR has to respect the wording of the Convention and to remain committed to its role as a court, i.e. to develop the law step by step as required by the case at hand and to avoid sweeping changes. Finally, the possibility to override a minority of states calls for certain mechanisms of minority protection. As a consequence, the Court may very well reach to the conclusion that art. 11 ECHR implies a right to strike even for public servants. The Court's current methodology, however, i.e. globally enumerating and referring to all existing international documents – universal or European, binding or non-binding – in order to motivate a certain reading of the Constitution is deficient. A more precise methodology of consensus, however, as suggested in this article, is to be welcomed.