How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in Times of Crisis

How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in... 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 http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Austrian Review of International and European Law Online Brill

How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in Times of Crisis

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
eISSN
1573-6512
D.O.I.
10.1163/15736512-00000009
Publisher site
See Article on Publisher Site

Abstract

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

Journal

Austrian Review of International and European Law OnlineBrill

Published: May 7, 2018

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