Erik Bjorge “National supreme courts and the development of ECHR rights” (2011) 9 (1) I-CON 5-31 (sub reqd)


The evolution of rights under the European Convention on Human Rights (ECHR) has in recent years engendered the question of
how far national supreme courts ought to go in interpreting the Convention standards evolutively. Should national courts,
in other words, play an active role in the development of the Convention, or must they defer this development to the Court?
Examining the jurisprudence of national supreme courts in the U.K., France, and Germany, the present article examines this
question both “normatively,” by way of looking at the external exigencies of the Strasbourg jurisprudence, and “descriptively,”
by way of looking at what in point of fact the national courts have done in this regard. The three national judiciaries studied
here have approached this in various ways. The common theme is that all three systems have gone very far in taking onboard
a national concept of the ECHR precept of “evolutive interpretation.”