Focus: Human Rights and the ECHR

• Arnardóttir, Oddný Mjöll 1

Abstract

This article argues that Articles 1, 19 and 32 of the European Convention on Human Rights (ECHR) provide for a principle of res interpretata, which has also been confirmed in the case law of the European Court of Human Rights (ECtHR). This engenders a legal obligation under international law for the contracting states to take the full body of the Court’s case law into account when performing their obligations under the Convention. It further argues that the principle of res interpretata is confirmed and operationalized in the ECtHR’s more recent case law on the margin of appreciation, where the Court seeks to facilitate a more direct and timely involvement of its jurisprudence in the legal systems of the contracting states. Therefore, while the erga omnes effect for the judgments of the ECtHR is not expressly provided by the ECHR, the principle of res interpretata and the margin of appreciation doctrine de facto translate to introduce such an effect. After analysing the relevant case law and explaining the nuances of the Court’s different approaches to incentivizing domestic courts, on the one hand, and domestic policymakers, on the other, the article will elaborate on the extent to which the obligations imposed on states through the principle of res interpretata can reach. While pointing out some dangers inherent in the trends analysed, and cautioning the Court to be careful not to compromise its role under Article 32 of the ECHR of upholding the interpretation and application of Convention rights, the article concludes with a relatively positive assessment of the developments discussed.

• 1Professor of Human Rights Law, University of Iceland, Reykjavik, Iceland. Email: oddnyma@hi.is. This article is part of a research project on the margin of appreciation, funded by the Icelandic Research Fund. An earlier version was presented at conferences in Iceland and at the University of Copenhagen in April 2016. The author would like to thank the participants of the two conferences, including Guido Raimondi, president of the European Court of Human Rights (ECtHR), and Lawrence Early, jurisconsult to the ECtHR, and anonymous reviewers, for their constructive comments.