The European Court of Human Rights’ Advisory Opinions Legally Affect Non-ratifying States: A Good Reason (From a Perspective of Constitutional Law) to Ratify Protocol No. 16 to the ECHR

Abstract

The hypothesis of the article is that advisory opinions of the European Court of Human Rights (ECtHR) under Protocol No. 16 to the European Convention on Human Rights (ECHR), although non-legally binding on the requesting court or tribunal, legally affect States, including those which have not ratified the Protocol. This will be demonstrated here conceptualizing the notion of ‘vertical’ non-binding effect of advisory opinions (i.e., that effect, regarding the requesting court or tribunal, under Article 5 of Protocol No. 16 which states that ‘Advisory opinions shall not be binding’) and the notion of their ‘horizontal’ legal effect (i.e., that ‘undeniable legal effect’ which comes from the fact that advisory opinions are ‘valid case-law’ which the ECtHR ‘would follow when ruling on potential subsequent individual application’). From a wider perspective of constitutional law, it will be then argued here that the producing of the aforementioned ‘horizontal’ effect constitutes a good reason for States to ratify Protocol No. 16 in light of judicial dialogue: non-ratifying States would be affected by them but at the same time there would be no opportunity for their highest courts or tribunals to contribute in creating that case-law via judicial dialogue (i.e., by requesting advisory opinions). Protocol No. 16, European Convention on Human Rights, ratification, advisory opinions, European Court of Human Rights, legally non-binding effect, requiring courts, caselaw, constitutional law, Constitutional Courts, judicial dialogue