This article analyses the European Court of Human Rights’ use of the concepts of ‘European consensus’ and ‘margin of appreciation’ in light of their effects on minority rights. Normative justifications and objections to the Court’s use of the doctrines are outlined. Through an exploration of the Court’s jurisprudence on minority rights within the European Convention on Human Rights framework, the article illustrates that the Court’s opaque approach to its use of the doctrines can lead to a dilution of the protection of minority rights. The article concludes that it will thus be crucial for the Court to provide safeguards for any future use of these interpretive tools in cases where minority rights are at stake.
This article embarks on a critical discussion of the European Court of Human Rights’ (“ECtHR”) use of European consensus (“EuC”) and the margin of appreciation (“MoA”) in light of its effect on minority rights. The two concepts are firstly defined and situated in context. Thereafter, normative justifications and objections to the use of EuC in determining the width of the MoA are outlined. The article does not provide a thorough review of the Court’s general case law on minority rights. Rather, it highlights a lack of clarity in the Court’s application of EuC and MoA and the consequences flowing from this. This is illustrated through a line of cases regarding the rights of transgender persons, Roma children and Muslim women. The article concludes that while there is some value in the ECtHR’s current approach, it will nonetheless be important for the Court to develop a consistent and rigorous methodology for the application of the doctrines in cases regarding minority rights. This is crucial for the Court to maintain its role as guardian of the European human rights regime.
The Contours of the Interpretive Tools
The MoA refers to “the room for manoeuvre Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations” under the European Convention on Human Rights (“ECHR”).1 The EuC refers to “the level of uniformity present in the legal frameworks of the member States of the Council of Europe on a particular topic”.2 The Court uses EuC to justify a wide MoA afforded to Member States in the absence of consensus, and advance new standards where there is a clear trend present across Member States.
The tools are mostly used at the third stage of review of qualified rights – following the first two stages, which require any interference with qualified rights to be prescribed by law and in pursuit of a legitimate aim. A key question at the third stage is the degree of deference the Court ought to afford states in determining whether a particular interference with a right is necessary in a democratic society to protect the legitimate aims listed in the ECHR. In general, where there is a lack of an EuC, the Court will afford a broader MoA to Member States, and vice versa. Further, the scope of the MoA afforded directly relates to the strictness of review: the wider the margin, the less strict the scrutiny by the Court, and vice versa.3 Thus, the existence of an EuC is the determining factor for the Court when defining the scope of the MoA.4
The Normative Foundation
The question to be addressed at the outset is whether the Court’s use of an EuC to determine the width of the MoA can be normatively justified. A central role of the ECtHR is to correct injustices perpetrated by the majority against minorities.5 Indeed, the Court has declared that part of its mandate is to protect individuals from infringements of Convention rights “grounded upon a predisposed bias on the part of a […] majority against a […] minority”.6 This invites the question of which interpretive tools are appropriate to employ in fulfilling this mandate. In evaluating whether EuC is an appropriate tool, two competing elements are emphasised: firstly, the importance of the expansion of the protection traditionally afforded under a Convention right by the Court to vulnerable minority groups, and secondly, the recognition that the impact of such a progressive interpretation is grounded in the Court’s legitimacy vis-à-vis Member States.
Objections to EuC stem from the Court’s mandate of safeguarding minority rights. Minorities are often barred from equal participation in the democratic process domestically – it is therefore important for the ECtHR to serve as a “countermajoritarian check”.7 Critics have highlighted the inherent contradiction in the ECtHR resorting to a quantitative exercise in determining the EuC, particularly where the applicant belongs to a minority group.8 In light of the Court’s mandate, reliance on EuC seems “counterintuitive, if not problematic, when determining the rights of unpopular social groups and minorities”.9
The Court must exercise caution in applying the doctrines in the context of minority rights. Lodging a complaint to the ECtHR can be the only recourse to justice a minority has when the rights of its members are not protected domestically. Indeed, affording states a wide MoA on the basis of a lack of a uniform approach might deprive a minority of human rights protection, since the institution established to promote their rights will be relying on the same majoritarian bias that the group is seeking to reverse. For groups that have experienced widespread, systemic abuses of their rights, the EuC seems to be a counterproductive tool to determine their rights.
In defence of the doctrine, it is argued that the use of EuC is justified, as it aids the Court in preserving its legitimacy. The Court operates under the principle of subsidiarity, which “determines its role as secondary to […] national legal orders […] that have the primary responsibility of implementing and interpreting the Convention”.10 A state in disagreement of a judgment can, in principle, choose not to renew the right of individual petition, withdraw from the Convention, or express its discontent through failing to or delaying its compliance with a judgment. The Court is faced with a difficult task: it must reverse rights-abusive practices of Contracting States whilst preserving its legitimacy.11 With the surge of criticism that the Court “has frequently exceeded its mandate”,12 consensus-based interpretation can provide a means to legitimise the Court’s judgments and ensure their enforcement.13 For the Court to guard the European human rights regime, its legitimacy must be preserved. Otherwise, the Court’s decisions will have a limited practical effect within domestic legal systems and the substantive protection of human rights will effectively be removed.
Finally, the use of EuC in determining the scope of the MoA has been justified on the basis that the Court can rely on the doctrines to interpret the Convention progressively and strengthen minority rights. As contended by Tzevelekos and Dzehtsiarou, when minority rights are at stake in a given case, the Court has a compelling justification to use the tools with greater flexibility and enhance the protection of minority rights.14 Such an approach can render the tools normatively compatible with the two competing accounts on the role of EuC in minority rights cases. However, as it is more likely that a consensus exists against a minority when examining minority rights under the lens of EuC, the danger exists that the Court’s application of the tools can stifle minority rights. It is therefore pertinent that the Court adopts this approach – namely, relying on the doctrines to strengthen minority rights – uniformly across cases concerning minority groups.
The Court’s Approach: Opaque or Clear?
To illustrate the Court’s approach to EuC and MoA, the article focuses on application of the doctrines in cases concerning three minority groups where the Court has adopted substantively different approaches: the rights of transgender persons, Roma children, and Muslim women.
The Court’s opaque approach can be illustrated in a line of cases concerning the rights of transgender persons. The line begins with Rees, 15 regarding the legal recognition of the sexual identity of post-operative transsexual individuals. The Court found that an EuC was not present, as there was “little common ground between the Contracting States in this area and that […] the law appear[ed] to be in a transitional state”.16 Consequently, the Court afforded the state a wide MoA.17 The Court recognised the severity of the consequences caused by a lack of legal recognition of this group of persons’ identity.18Despite this, the Court held that the lack of an EuC outweighed the interest in applying strict review of the State’s infringement of their rights under Article 8. The Court, however, warned states to keep this area of the law “under review”19 and adapt their legislation accordingly.
In the cases of Cossey 20 and Sheffield,21 the Court reaffirmed its position in Rees. The majority found that developments in the legislation of Member States was not enough for the Court to determine that an EuC was now present.22 While this was in line with its reasoning in Rees, the Court failed to signal what specifically within the field the states ought to keep under review to update legislation in line with the Convention. The dissenting opinion of Judge Martiens reveals a disagreement between the judges on this point. Judge Martiens found that the existence of an EuC on the matter was strongly reinforced by the increased consensus from five to fourteen Contracting States, along with supporting resolutions by “the Parliamentary Assembly of the Council of Europe and the European Parliament recommending that reclassification of the sex of a post-operative transsexual be made legally possible”.23 The disagreement between judges highlights the lack of a clear set of criteria for the determination of EuC. This lack of clarity resulted in the Court widening the MoA and refraining from applying strict review to strengthen this category of persons’ rights.
The turning point in the case law was Goodwin,24 where the Court officially narrowed the MoA for Member States on the legal recognition of the sexual identity of post-operative transsexual individuals. The determining factor was, once again, EuC. The Court found that there was still a lack of “a common European approach”.25 Despite this being the main factor preventing the Court from taking a step forward in the protection of transgender rights in the aforementioned cases, the Court turned its approach on its head. The Court attached “less importance to the lack of” an EuC “than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals”.26 It is clear that the Court has neither developed, nor is bound by, any strict criteria in applying the doctrines.
The breakthrough of the Goodwin judgement does not mark the end of the saga. As confirmed in Goodwin: while the Court found that EuC existed regarding the legal recognition of the new sexual identity of post-operative transsexuals, the Court did not find that EuC was present regarding states’ determination of the conditions to such recognition.27 Requirements set out by states for legal recognition varied and most of these criteria were criticised, including for undermining individual autonomy.28 In A.P., Garçon,29 the Court examined the compatibility of the ECHR requirements for gender recognition of an “irreversible change in appearance”, interpreted as compulsory sterilisation,30 and the mandatory diagnosis of “gender identity disorder”. The Court found that a common approach was not present on the subject, as states were divided regarding the sterility requirement.31 Nevertheless, the Court relied on a trend emerging in recent years towards abolishing the condition.32 Despite the lack of a strong EuC on the subject, the Court found the trend to be a sufficient basis on which to narrow the MoA. The Court therefore employed strict review of the applicant’s rights and ruled that the compulsory sterilisation requirement violated the applicants’ Article 8 rights.33
As mandatory sex reassignment surgery interferes with physical integrity to a similar extent as forced sterilisation, a logical next step in this evolution would have been to find such a requirement to violate Article 8 in the case of X v FYROM.34 The requirement of mandatory sex reassignment bars transgender, genderfluid, non-binary and other genderqueer persons who choose not to or are unable to undergo sex reassignment surgery from gender recognition. In their dissenting opinion, judges Pejchal and Wojtyczek criticised the judgement of Garçon for finding that a ‘trend’ was sufficient to narrow the MoA. They argued that such an analysis was a typical sign of “judicial activism”.35 Because of the disagreements within the Court on the proper application of EuC, the Court “refused to examine the applicant’s claim that mandatory sex reassignment surgery as a requirement for gender recognition […] violated Article 8”.36
The Court in Goodwin identified three hallmarks of proper decision-making, all vital to uphold the rule of law: “legal certainty, foreseeability and equality”.37 Ironically, the Court’s approach to the application of the doctrines violates all three. Throughout the ECtHR’s jurisprudence on transgender rights, the Court has failed to sufficiently determine the scope and proper application of EuC despite the vital role this tool has played. Lack of legal certainty and foreseeability flows from this. Disagreements about EuC resulted in “the Court’s reluctance to directly address pathologizing conditions for legal gender recognition”,38 thus aggravating existing vulnerabilities of this minority group.
The Court’s Opaque Approach: Strengthening or Diluting Minority Rights?
Does the Court’s opaque approach to EuC undermine or reinforce the Court’s ability to enforce the protection of minority rights? Philosophers from Aristotle to Hart have recognized that all systems of law must negotiate a fundamental tension between legal certainty and flexibility.39 The Court’s lack of a clear methodology in its application of EuC has enabled the Court to employ the doctrine with full flexibility.40 Dzehtsiarou argues that the Court is aware of the limitations to their use of the doctrine, and that where minority rights are at stake, the Court has convincing justification to use the tool with greater flexibility or lessen the weight placed on it.41 Flexibility can allow the Court to take progressive steps for minority rights, even in situations where an EuC is not conclusively present.
The flexibility of the doctrines has indeed enabled the Court to rely on EuC to determine the applicants’ minority status to narrow the MoA of states and consequently enhance their protection under the Convention. This can be illustrated through the case of Oršuš.42 The application concerned Roma children’s right to education.43 Roma children were placed in separate classes in Croatia on account of their lack of proficiency in Croatian language. The Courtnoted an emerging consensus amongst Member States recognising the “special needs of minorities and an obligation to protect their security, identity and lifestyle”.44 The Court relied on EuC to determine the status of the applicants as members of a minority group. This enabled the Court to narrow the MoA and exercise intense scrutiny of the measure. The flexibility of the tool allowed “the Court space for manoeuvre”45 in its application of EuC, and to strengthen the rights of a vulnerable minority group.
However, the lack of a clear approach in the application of EuC in cases regarding minority rights has stripped the Court of the necessary constraints in its application of the doctrines in this realm. As illustrated by the case of SAS,46 EuC has been used to the detriment of minority rights without sufficient justification. The case concerned a French blanket ban prohibiting the covering of one’s face in public. The Court recognised that the measure interfered with the rights of a minority group, namely “Muslim women who choose to manifest their religion through wearing religious attire”.47 The Court noted that, “from a strictly normative standpoint”,48 France was in a minority position in Europe as few Member States had imposed such a blanket ban. However, the Court found that because such a blanket ban had been the subject of debate in some Member States, which was proof of a lack of an EuC against the ban,49 and France was afforded a wide MoA.50 As noted by the dissenting opinion, “it is difficult to understand why the majority [were] not prepared to accept the existence” of an EuC against the ban,51 when “an overwhelming majority, [had] not deemed it necessary to legislate in this area”, and thus “a very strong indicator for a European consensus” against the ban existed.52In contrast to its reasoning in the Oršuš case, the Court did not rely on the EuC to invite closer scrutiny in light of the applicant’s minority status. Rather, the determination of EuC formed part of the foundation on which the Court held that the ban was proportionate to the aim pursued, rendering it necessary in a democratic society, and thus that the interference with this minority group’s rights was justified.53 It is clear that the danger exists that the flexibility of the tool can weaken the Court’s ability to protect minority groups from discriminatory, majoritarian measures of Member States.
Safeguards for the Future of the European Human Rights Regime
The Brighton Declaration,54 today reflected in the 2018 Copenhagen Declaration 55 and Protocol 15, which enshrines subsidiarity and the MoA in the preamble of the ECHR, signals that the “centre of gravity of the Convention system” will “be lower than it is today, closer temporally and spatially to all Europeans”.56 It is clear that EuC and the MoA will play a vital role for the future of the ECtHR in shifting the focus to a “shared responsibility”.57 It is therefore important to provide safeguards to the future use of these tools.
Against a backdrop of the rising threats of climate change, nuclear weapons and the COVID-19 pandemic, one does not have to imagine a consensus or trend developing in Europe where personal liberties are restricted in the interests of national security or public safety and health. It is therefore crucial that the advancement of minority rights in the Court’s jurisprudence is not “inextricably linked to majoritarian consent expressed through EuC” and that infringements of rights are rigorously scrutinised by the Court.58 The failure to articulate with precision the scope and function of EuC poses a potentially grave threat to the ECtHR’s role as the arbiter of European human rights, particularly of minorities.
The time has come to develop a consistent and rigorous methodology for the application of EuC in cases regarding minority rights. If the Court accepts the need to narrow the MoA where minority rights are involved, a clearer test must be developed of the appropriate relationship between EuC and minority protection. This will ensure a consistent approach across cases regarding the rights of minority groups. Alternatively, where the Court departs from this approach, it must provide convincing analysis in its reasoning for the necessity of this. The Court must strive to develop clear, general principles for weighing the competing elements of the EuC and the MoA doctrines in cases where minority rights are at stake. Such safeguards must be in place to ensure that EuC is applied with careful consideration of minority rights across the Court’s jurisprudence.
The string of cases regarding transgender rights is glaring proof of the Court’s opaque approach in applying the doctrines of EuC and MoA, underlined by the ongoing disagreement within the Court and the lack of constraint which the Court’s application of EuC in earlier cases proved to have on its approach in subsequent cases. This approach has enabled the Court to take progressive steps in the fight for minority rights, as illustrated by the cases of Goodwin, Garçon and Oršuš. However, the Court’s approach has also resulted in a dilution of minority rights, as illustrated in the cases of SAS and X v FYROM. The article recognises that the Court’s approach has enabled it to mitigate disagreements within the Court and navigate the tension between operating under the principle of subsidiarity and the role it has reserved for itself in securing the rights of marginalised groups. However, it is concluded that the Court must develop a clearer methodology to underpin its use of the doctrines in order to ensure that minority rights are strengthened rather than diluted. The appropriate application of the doctrines in cases regarding minority rights must be clearly defined and consistently adopted across the Court’s jurisprudence. Transparency, legal certainty and equity – key facets of the Court’s process legitimacy – are safeguards that must be kept in place. Only then can judges of the ECtHR “hold firm the compass of morality, guiding the communal ship towards more enlightened standards, [whilst] taking into account the prevailing winds and sea conditions”,59 and reinforce its crucial role in securing minority rights protection across Europe.
 Steven Greer, ‘The margin of appreciation: interpretation and discretion under the European Convention on Human Rights’ (Council of Europe Publishing 2000)); Howard Charles Your, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijhoff Publishers 1996) 13.
 Council of Europe, ‘Interpretive mechanisms of ECHR case-law: the concept of European consensus’ (2020) < https://www.coe.int/en/web/help/article-echr-case-law> accessed 8 March 2021.
 Howard Charles Your, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence ( Martinus Nijhoff Publishers 1996) 13, 194-195.
 Dimitrios Kagiaros, ‘When to use European Consensus: Assisting the differential treatment of minority groups by the European Court of Human Rights’ in Panos Kapotas and Vassilis P. Tzevelekos (eds), Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond (Cambridge University Press 2019) 283.
 Smith and Grady v the United Kingdom App nos 33985/96 and 33986/96 (ECtHR, 27 September 1999) at ; L. and V v Austria App nos 39392/98 and 39829/98 (ECtHR, 9 January 2003) at ; Identoba and others v Georgia App no 73235/12, (ECtHR, 12 May 2015).
 John Stuart Mill, On Liberty (The Library Of Liberal Arts) (Arya Publishing 1859) 7.
 Kagiaros (n 5) 310.
 Kagiaros (n 5) 283.
 Bernadette Rainey, Elizabeth Wicks and Clare Ovey and Jacobs White, The European Convention on Human Rights (OUP 2014) 85.
 Airey v Ireland App no 6289/73 (ECtHR, 9 October 1979).
 David Cameron, ‘The European Court of Human Rights’ (London, 2012) «https://www.theguardian.com/law/2012/jan/25/cameron-speech-european-court-human-rights-full» accessed 14 December 2019.
 Kagiaros (n 5) 310.
 Vassillis P Tzevelekos and Kantsantsin Dzehtsiarou, ‘International Custom Making And The ECtHR’s European Consensus Method Of Interpretation’ (2016) 16 European Yearbook on Human Rights 325.
 Rees v United Kingdom App no 9532/81 (ECtHR, 17 October 1986) (Rees).
 ibid .
 ibid .
 ibid , .
 ibid , .
 Cossey v United Kingdom App no 10843/84 (ECtHR, 27 September 1990) (Cossey).
 Sheffield and Horsham v United Kingdom App no 22985/93 and 23390/94 (ECtHR, 30 July 1998) (Sheffield).
 ibid , ; Cossey (n 20) .
 ibid  (Judge Martiens dissenting).
 Goodwin v. United Kingdom App no 28957/95 (ECtHR, 27 March 1996) (Goodwin).
 ibid .
 ibid .
 ibid .
 Council of Europe Commissioner for Human Rights, ‘Human Rights and Gender Identity’ (29 July 2009) CommDH/IssuePaper(2009)2 «https://www.coe.int/en/web/sogi/rec-2010-5» accessed 14 December 2019; The Council of Europe Committee of Ministers, ‘Recommendation of the Committee of Ministers to Member States on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity’ (31 March 2010) CM/Rec(2010)5 «https://rm.coe.int/16806da753» accessed 14 December 2019; Council of Europe Parliamentary Assembly, ‘Discrimination Against Transgender People in Europe’ (22 April 2015) Resolution 2048 <https://www.refworld.org/docid/55b242e94.html > accessed 14 December 2019.
 AP, Garcon and Nicot v France App nos 79885/12, 52471/13 and 52596/13 (ECtHR, 6 April 2017).
 ibid .
 ibid .
 ibid , .
 ibid .
 X v the Former Yugoslav Republic of Macedonia App no 29683/16 (ECtHR, 17 Jan 2019) (X).
 ibid .
 Mariam Gaiparashvili and Sarah Schoentjes, ‘X V. FYROM: A Circumspect Compromise On Trans* Rights?’ (Strasbourg Observers, 2 April 2019) https://strasbourgobservers.com/2019/04/02/x-v-fyrom-a-circumspect-compromise-about-trans-rights/ accessed 13 December 2019.
 Goodwin (n 24) .
 Gaiparashvili and Schoentjes (n 36).
 Aristotle, Nichomachaean Ethics (WD Ross tr, Batoche Books 1999) 88, 89; HLA Hart, The Concept Of Law (2nd edn, OUP 1994) 130.
 Kanstantsin Dzehtsiarou, European Consensus And The Legitimacy Of The European Court Of Human Rights (Cambridge University Press 2015) 125.
 Oršuš and others v Croatia App no 15766/03 (ECtHR, 16 March 2010) (Oršuš).
 Article 2 of protocol no. 1, taken in conjunction with Article 14 of the European Convention on Human Rights.
 Oršuš (n 42) .
 Dzehtsiarou (n 40) 125.
 * SAS v France* App no 43835/11 (ECHR, 1 July 2014) (SAS).
 ibid .
 ibid .
 ibid .
 ibid .
 ibid .
 ibid .
 ibid , .
 High Level Conference on the Future of the European Court of Human Rights ‘Brighton Declaration’ (20 April 2012) «https://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf» accessed 14 December 2019.
 .High Level Conference meeting in Copenhagen, ‘Copenhagen Declaration’ (13 April 2018) «https://www.echr.coe.int/Documents/Copenhagen_Declaration_ENG.pdf» accessed 13 March 2021.
 Dean Spielmann, ‘Whither the Margin of Appreciation’ (2014) 67 Current Legal Problems 49, 65.
 High-Level Conference on the ‘Implementation of the European Convention on Human Rights, Our Shared Responsibility’‘Brussels Declaration’ (27 March 2015) «https://www.echr.coe.int/Documents/Brussels_Declaration_ENG.pdf» accessed 8 March 2021.
 Kagiaros (n 5) 17.
 Eyal Benvenisti, ‘Margin Of Appreciation, Consensus And International Standards’ (1999) 31 New York University Journal of International Law and Politics 852.