Advisory Opinion No. 2: a Slightly Bigger Rodent

Little over a year ago, I wrote a blog post discussing the Advisory Opinion No. 1 issued under Protocol No. 16, with the title “The mountain gave birth to a mouse”. Last week, the Grand Chamber of the European Court of Human Rights give birth to Advisory Opinion No. 2concerning the use of the ‘blanket reference’ or ‘legislation by reference’ technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the offence and the amended criminal law”, requested by the Armenian Constitutional Court. After a brief examination, my preliminary conclusion is that, this time, we’re dealing with a slightly bigger rodent – perhaps a rabbit but certainly not a capybara. In this contribution, I will discuss the new Advisory Opinion, focusing in particular on what further lessons can be drawn from it. The key takeaway from this blog post, compared to its predecessor, is that it provides a somewhat more meaningful contribution to the development of the case law. However, the messages given by the Court, regarding the kinds of questions it wants to respond to, are unlikely to spark a lot of enthusiasm among domestic courts to make use of the Advisory Opinion mechanism, potentially thwarting Protocol No. 16’s objective of encouraging judicial dialogue. Continue reading

The mountain gave birth to a mouse: the first Advisory Opinion under Protocol No. 16

On 10 April, the Grand Chamber of the European Court of Human Right adopted its first Advisory Opinion under the new Protocol No. 16 to the ECHR, which entered into force on 1 August last year. This Protocol, which has so far been ratified by twelve States, allows the “highest domestic courts” to request the European Court to give an Advisory Opinion on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. The objective of the Protocol is to “further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity.”

In this blog post, I will briefly discuss the content of this Advisory Opinion “concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother”, before turning to the question as to what lessons can more broadly be drawn from it regarding the kinds of policy choices the Court has to make when applying the Protocol 16 mechanism. Continue reading