In my foreword to the monograph by Dr Bjorn Arp, currently a fellow at the Center on International Commercial Arbitration at American University Washington College of Law (Las minorías nacionales y su protección en Europa, Madrid 2008, Ed. Centro de Estudios Políticos y Constitucionales, pp. xiii–xviii), I took stock of my work as a research director for various young professors whose academic careers I had the opportunity to supervise at several Spanish universities.
I admit that I have always been particularly interested in two major areas of public international law, namely, the law of international responsibility and the powers and competences of states. Indeed, this interest has led me to supervise seven doctoral theses on these subjects. However, under the right circumstances, I have not spurned the chance to supervise work in other fast-growing fields as well, such as international human rights law, as the aforementioned work proves. The same could largely be said for the present monograph by Dr Pascual-Vives, for which I have the honour of writing the foreword. In both cases, particularly in light of the known risks of taking on possible dogmas and ideological biases in the study of human rights, I have tried to instil in the authors the need for strict application of the inductive or empirical method in the study of the corresponding legal institutions, as well as for rigorous analysis of codification processes and international practice in general, especially of the relevant case law.
With regard to the present monograph, I can say that Dr Pascual-Vives was both willing and able to apply this research credo to the letter, even if it sometimes meant criticising the designs and challenging the clearly dysfunctional inertia of certain judgments issued by international regional human rights courts and tribunals, which at times have acted like courts of cassation. The exhaustive research conducted by Dr Pascual-Vives, who benefited from the generous support from the European Commission through the Erasmus+ programme, is testament to his intellectual maturity. It has also earned him this magnificent edition of his work, published by Brill/Martinus Nijhoff, whom I would like to thank for the excellent reception they have given us.
With regard to the subject matter, briefly, this work proposes that the risks arising from the sectoralization of public international law can be combatted through the use of well-established legal categories in the international legal system, which are the keystones to systematic unity. Building on this idea, the work examines how the ECtHR and the IACtHR frequently rely on the concept of consensus to interpret regional human rights treaties.
Most international courts and tribunals use a consensualist approach, as explained in part 1, to determine the law applicable to a dispute. This approach allows for an evolutive interpretation of regional human rights treaties. However, it also makes it possible to rule out such interpretations at times, invoking the concept of the national margin of appreciation. The monograph is structured in keeping with this reasoning. Part 2 looks at the grounds on which the ECtHR and the IACtHR have based this evolutive interpretation of regional human rights treaties. Part 3, on the other hand, seeks to systematise how regional human rights courts and tribunals invoke the concept of the national margin of appreciation to adopt decisions more respectful of the principle of state sovereignty.
This work shows how the mechanisms used by the ECtHR and the IACtHR to identify that consensus (consensus generalis) or the absence thereof largely depend on the specific circumstances of the European and American regional subsystems. In Europe, the interplay between the Council of Europe and the European Union has enriched citizens’ legal heritage. In the Americas, the General Assembly of the oas has promoted the development of certain fundamental rights, even in the absence of a (substantive) consensus amongst its Member States.
In some cases, the concept of consensus has been set aside or relegated to a secondary plane in the case law of regional human rights courts and tribunals. In these precedents, the ECtHR and the IACtHR issue decisions that expand the legal heritage of individuals without sufficient support in state practice. Such cases evidence a certain drift (which the author calls ‘overstep’) towards the protection of human rights. Whilst this drift may be quite commendable politically, it can put the unity of the international legal system at risk. The consideration of the right to due process as a rule of jus cogens in the American subsystem, but not in the European one, exemplifies this contradiction perfectly. It is more the result of judicial activism than of a calm objective study of state practice.
In this regard, it should not be forgotten that regional human rights courts and tribunals are international courts, not courts of cassation. Their operation, therefore, must be guided by the parameters, techniques, and categories of public international law. Mismanagement by these jurisdictional bodies of their powers can erode their legitimacy and, in the medium term, undermine the enormous progress made in international human rights law in the last fifty years.
In closing, in light of the content and conclusions of this rigorous and thought-provoking monograph, I am confident that Dr Pascual-Vives has a bright academic future. I encourage him to persevere in his scientific endeavours as honestly and fruitfully as he has done to date.
Dr. Dr. Carlos Jiménez Piernas
Professor of Public International Law and International Relations (University of Alcalá)
Head of the International Legal Office (Spanish Ministry of Foreign Affairs, European Union and Cooperation)