This article examines treaty interpretation based on consensus, or the idea that legal... Show moreThis article examines treaty interpretation based on consensus, or the idea that legal
or political practice that is not directly related to a treaty can be used in interpreting
it, or at least in granting more discretion to States Parties. The practice of the Inter-
American Court of Human Rights, contrasted with the well-settled practice of the
European Court of Human Rights, reveals that consensus interpretation plays an
important role in entrenching the legitimacy of international human rights courts.
The Inter-American Court’s practice seems to rely on consensus when it supports a
progressive, teleological interpretation of human rights. The article argues that this
selective engagement eliminates the legitimacy-building possibilities of the consensus
method of interpretation, but that the Inter-American Court, in seeking legitimacy not
from States Parties, but other stakeholders, does not seem particularly concerned with
legitimacy costs (even if it probably should). Not peer reviewed Show less
