How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in Times of Crisis Ralph Janik I. Introduction Professor Zemanek’s elaborations on what he identiﬁ es as ‘Court Generated State Practice’ raises a somewhat underexplored doctrinal issue: The ‘creati- vity of the ECtHR’s interpretative practice’, in particular when it comes to setting standards absent the lack of a European consensus, and the resulting to modiﬁ cations of obligations under the European Convention on Human Rights (ECHR). To a certain extent, the European Court of Human Rights (ECtHR) is effectively turning the interrelationship between state practice and the court as an interpretative organ on its head: As ECHR member states will adapt to ﬁ ndings of the ECtHR, they will ultimately modify its obligations: […] a self-induced process because a signiﬁ cant number of adaptions enables the Court to claim them as evidence of the new understanding of the respective provision of the ECHR and hence as state practice, thereby transforming what was initially a speciﬁ c interpretation into a modiﬁ ed obligation. These notions also require a careful consideration of the limits of the ECtHR and its jurisprudence. Like all international courts, it often needs
Austrian Review of International and European Law Online – Brill
Published: May 7, 2018
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