Establishing Judicial Precedents Through Advisory Opinions of the European Court of Human Rights

Abstract

The recent practice of the European Court of Human Rights to follow, in its case law, legal statements made in the exercise of its new advisory competence pursuant to Additional Protocol No. 16 raises some considerable issues. The most important of such issues regards the possibility for principles of law established by the Strasbourg Court to be recognized as judicial precedents within the European Convention of Human Rights system, which is the object of this paper. For this purpose, the analysis will focus not only on the approach of the European Court of Human Rights, but also on that of the Italian judicial authorities, which developed a particularly innovative case law at this regard. Finally, it will also consider the experience of other international judicial bodies, in order to draw some general conclusions on the contribution of advisory opinions to the development of international law.