[New publication] The European Court of Human Rights and its search for common values

In a new article in the European Convention on Human Rights Law Review, Asser Institute researcher Carl Emilio Lewis questions the European Court of Human Rights’ search for common values when interpreting the European Convention on Human Rights.  

A new article by Asser Institute researcher Carl Emilio Lewis delves into the role values play in the jurisprudence of the European Court of Human Rights (ECtHR, the court). It begins by highlighting how the court sees common values as relevant factors for interpreting the European Convention on Human Rights (ECHR). Yet, despite this, Lewis notes that the court does not provide a clear sign as to what it considers values to be. Nor does the court provide express guidance as to how and when state practice may evidence common values, and why this should then affect the interpretation of the ECtHR. 

To find guidance, the article considers the noticeable relationship between the concept of common values and the court's practice of ‘European consensus analysis’; a method involving a comparative analysis of state practice. Specifically, it explores the argument that European consensus analysis is a form of reasoning that can be employed to interpret the convention in line with the shared moral commitments of the member states of the ECHR. 

However, drawing from Margaret Gilbert's theory on shared values, Lewis cautions that a comparative analysis of state practice, alone, may not reveal the values that bind a collective in any meaningful sense. Therefore, Lewis argues that if the court does intend to turn to the strong moral commitments that bind the ECHR member states as a plural subject – their common values – and interpret the ECHR in light of them, then it ought to expand its method for doing so. 

Further research is needed to inform precisely how the court may best search for common values, and so enhance the legitimacy of ECtHR decisions that aim to draw them. 

Read the full article.