Consensus, Difference and Sexuality: Que(e)rying the European Court of Human Rights’ Concept of‘ European Consensus’

Law and Critique 32 (1):91-114 (2021)

Abstract

This paper provides a queer critique of the European Court of Human Rights’ use of ‘European consensus’ as a method of interpretation in cases concerning sexuality rights. It argues that by routinely invoking the notion of ‘consensus’ in such cases, the Court produces discourses and induces performances of sexuality and Europeanness that emphasise sameness and agreement, while simultaneously suppressing expressions of difference and dissent. As a result, this paper contends that the Court’s use of European consensus has ultimately functioned to uphold and sustain the heteronormative order that underpins both the European Convention on Human Rights and European society more generally. This is so, despite the role that European consensus has played in the Court’s recognition of ‘new’ rights for lesbian, gay and bisexual people under the ECHR. Drawing on insights from queer theory, as well as the work of Rancière and Foucault, this discussion is carried out through a close reading of Strasbourg cases relating to sexuality.

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