A quantitative textual approach to the European Consensus Method of interpretation in the European Court of Human Rights
Denise Traber, with Jon Slapin, Nicole Baerg, Vassilis P. Tzevelekos, Panos Kapotas, Kushtrim Istrefi, Hauke Licht, Julia Maynard
The European Court of Human Rights (ECtHR) is the last-word adjudicator in human rights protection in Europe. The Court has developed a method of interpretation, European consensus (EuC), which it can use to adjudicate morally, politically or socially sensitive issues. With this method, the Court assesses whether the common practice of European states, international actors, and other authorities leads to the emergence of new human rights standards. EuC allows the ECtHR to build standards in socially sensitive areas such as religious dress and social minorities protection.
Despite its importance, there is little clarity on the meaning and function of EuC in legal scholarship. To remedy this, our study will take a pluri-disciplinary approach to define EuC and measure its use in ECtHR case law. By applying computational text analysis techniques often used in quantitative political science, we will construct and validate new measures of EuC. Our innovation is that we combine expert human coding of legal texts done by human rights lawyers and computational approaches from social science for textual data. Our new measures will allow the team to determine both the nature and also the level of consensus in each judgment as well as identify the language that indicates consensus analysis in the first place.
Once we have constructed these new measures, we will use them to test important questions in the literature such as whether the ECtHR is more likely to find consensus when human rights standards emerge in one set of countries rather than another, whether certain countries are more likely to disagree with a new emerging consensus as determined by the Court, whose views are reflected in consensus judgments, and finally, how consensus functions within the ECtHR system.