Res Interpretata, Erga Omnes Effect, and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the ECtHR
(2017) 28 European Journal of International Law
Posted: 18 Mar 2017
Date Written: March 16, 2017
This article argues that Articles 1, 19 and 32 ECHR provide for a principle of res interpretata, which has also been confirmed in the ECtHR’s case-law. 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 operationalised 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 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 introducing such an effect. After analysing the relevant case-law and explaining the nuances of the Court’s different approaches to incentivising domestic courts on one hand and domestic policymakers on the other, the extent to which the obligations imposed on states through the principle of res interpretata can reach will be also elaborated. 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 ECHR of having the last say on both the interpretation and application of Convention rights, the article concludes with a relatively positive assessment of the developments discussed.
Keywords: European Court of Human Rights, res interpretata, margin of appreciation, erga omnes, procedural review
Suggested Citation: Suggested Citation