The External Effects of National ECHR Judgments

Abstract

In their jurisprudence on the rights flowing from the European Convention on Human Rights (ECHR), national courts in Europe define their relationship with the Convention system and its authoritative arbiter, the European Court of Human Rights at Strasbourg. This is, however, more than a bilateral relationship. Increasingly national courts in Europe, in their ECHR jurisprudence, consider the external effects of their judgments, as their judgments may be used by national courts from other jurisdictions. A supreme or constitutional court cannot claim that their national system represent such high standards of democracy and rule of law that it need not abide by a ruling by the European Court, considering that this argument may be followed in jurisdictions of lower standards and threaten the convention system. Courts increasingly take into account what could be called a Kantian element: the extent to which their ruling may be universalized, and applied by other courts in their relation to the ECHR. The article argues that this universalist approach is correct in normative terms, and that national courts ought to go even further in taking this Kantian element onboard in their ECHR jurisprudence.