In a new paper published in “The Asian Yearbook of Human Rights and Humanitarian Law”, Postdoctoral Researcher Yordan Nugraha examines how the ECHR assesses interpretations of rights that are based on a majoritarian sentiment.
The paper, published in October 2024 in ‘The Asian Yearbook of Human Rights and Humanitarian Law’, highlights the European Court of Human Rights’ use of "European consensus" – the general agreement among European states – as reflecting a pan-European majoritarian approach. Dr. Nugraha, however, also highlights how the Court's approach has varied in relation to domestic majoritarian sentiment. For example, in cases related to abortion, the Court has deferred to a country’s majority view that supports restrictions. Conversely, it has rejected the use of majoritarian sentiment to justify restrictions on the rights of sexual minorities.
The study further demonstrates how the recent 'procedural turn' of the Court has led to a new Strasbourg-style majoritarian approach to human rights. Under this new approach, the Court is more likely to defer to reasoned and thoughtful internal consensus, as long as the decision-making process behind it sufficiently takes the European Convention on Human Rights and the case law of the Court into account and balances all the relevant interests.
The Author Manuscript is available here.
Ignatius Yordan Nugraha is a postdoctoral researcher at the Centre for Fundamental Rights, working on the project ‘Deep Impact through Soft Jurisprudence? The Contribution of United Nations Treaty Body Case Law to the Development of International Human Rights Law’. He obtained his doctorate degree at Hasselt University on 30 January 2024 with a thesis titled ‘Understanding Conflicts between Constitutions and International Human Rights Law: Sexual Minority Rights as a Case Study’.
About the author:
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Ignatius Yordan Nugraha, Postdoctoral Researcher, Centre for Fundamental Rights