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A Legitimacy Perspective on Court Generated State Practice

A Legitimacy Perspective on Court Generated State Practice On the Legitimacy of Court Generated State Practice A Legitimacy Perspective on Court Generated State Practice Christina Binder I. Introduction Karl Zemanek’s article refers to the jurisprudence of the European Court of Human Rights (ECtHR) as a prime example for ‘court generated state practice’, namely when the dynamic interpretation of the ECtHR exceeds the wording of the European Convention on Human Rights (ECHR). In doing so, Karl Zemanek adopts a classic law of treaties’ perspective: To what extent is the ECtHR’s dynamic interpretation of the Convention based on the rules of treaty interpretation (Articles 31 et seq. of the Vienna Convention on the Law of Treaties (VCLT)) and may thus be understood as based on ‘subsequent practice in the application of the treaty’ in the meaning of Article 31(3)(b) VCLT? What are possible justifi cations for ‘interpretations’ which reach further than the VCLT’s rules of treaty interpretation since they exceed the wording of the ECHR without fi rm basis in the practice of the treaty parties? And, respectively, what is the value of any practice which is induced (or generated) by the ECtHR’s interpretation, i.e. of ‘court generated state practice’? Christina Binder is Professor of International Law and International http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Austrian Review of International and European Law Online Brill

A Legitimacy Perspective on Court Generated State Practice

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
eISSN
1573-6512
DOI
10.1163/15736512-00000008
Publisher site
See Article on Publisher Site

Abstract

On the Legitimacy of Court Generated State Practice A Legitimacy Perspective on Court Generated State Practice Christina Binder I. Introduction Karl Zemanek’s article refers to the jurisprudence of the European Court of Human Rights (ECtHR) as a prime example for ‘court generated state practice’, namely when the dynamic interpretation of the ECtHR exceeds the wording of the European Convention on Human Rights (ECHR). In doing so, Karl Zemanek adopts a classic law of treaties’ perspective: To what extent is the ECtHR’s dynamic interpretation of the Convention based on the rules of treaty interpretation (Articles 31 et seq. of the Vienna Convention on the Law of Treaties (VCLT)) and may thus be understood as based on ‘subsequent practice in the application of the treaty’ in the meaning of Article 31(3)(b) VCLT? What are possible justifi cations for ‘interpretations’ which reach further than the VCLT’s rules of treaty interpretation since they exceed the wording of the ECHR without fi rm basis in the practice of the treaty parties? And, respectively, what is the value of any practice which is induced (or generated) by the ECtHR’s interpretation, i.e. of ‘court generated state practice’? Christina Binder is Professor of International Law and International

Journal

Austrian Review of International and European Law OnlineBrill

Published: May 7, 2018

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