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
Date Written: July 13, 2018
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
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