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

20 Austrian Review of International and European Law (2018/2015) 125

17 Pages Posted: 21 Aug 2018

See all articles by Ralph R. A. Janik

Ralph R. A. Janik

University of Vienna - Section for International Law & International Relations; Webster University - Vienna Campus

Date Written: July 13, 2018

Abstract

This paper is a response to Karl Zemanek's article on "Court-Generated State practice" and his elaborations on the dogmatic questions arising from instances when the European Court of Human Rights (ECtHR) goes beyond states' actual interpretation and application of the European Convention on Human Rights (ECHR). After all, the Court may thereby itself induce state practice. The relationship between state practice and jurisprudential application of the ECHR is thus turned upside down. Apart from the examples identified by professor Zemanek, this article elaborates on the tension between the ECtHR's judicial powers and the states' willingness to adhere to its judgments in sensitive matters. While the court has emphasized the absoluteness of Article 3 on torture, inhumane or degrading treatment and the resulting non-refoulement obligations, it has been more reluctant to interfere with states' rights to regulate Islamic clothing or invoke a state of emergency. Oscillating between non-compliance and overstretching its powers, the impact of the current political crises on European human rights standards will keep lawyers busy for the unforeseeable future.

Keywords: Human Rights, Refugee Law, Expulsion, European Court of Human Rights, Non Refoulement, Torture, Inhumane Treatment, Degrading Treatment, State of Emergency, Religion, Burka

Suggested Citation

Janik, Ralph R. A., How Many Divisions Does the European Court of Human Rights Have? Compliance and Legitimacy in Times of Crisis (July 13, 2018). 20 Austrian Review of International and European Law (2018/2015) 125. Available at SSRN: https://ssrn.com/abstract=3213348

Ralph R. A. Janik (Contact Author)

University of Vienna - Section for International Law & International Relations ( email )

Schottenbastei 10-16
Vienna, 1010
Austria

Webster University - Vienna Campus ( email )

Berchtoldgase 1
Vienna, 1220
Austria

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