A Community of Courts Based on a Shared Judicial Culture? Dutch Highest Court Judges and Their Engagement with the European Court of Human Rights

One dominant strand in the literature on the relationship between international and national law is the alleged shared identity among judges as ‘juridical citizens of the world’ and members of ‘a global community of courts’ (Slaughter 2003). National courts judges are portrayed as ‘juridical citizens of the world’ (Scott and Alston 2000), ‘worldly judges’ (Young 2009) or ‘agents of the international community’ (d’Aspremont 2012). These notions have been used to explain why and how national courts engage with international human rights treaties and decisions of international human rights courts and treaty bodies, or refrain from doing so. Implicit is an assumption that national courts not only appeal to a domestic audience when they engage with or even cite an international decision, but also an international one. Slaughter in particular has developed the theory of a common judicial identity that is based on a feeling of mutual recognition and an awareness of a ‘common enterprise’. She explained that courts engage with judgments of other courts in older and more established democracies in order to bind their country to a ‘community of states’. It remains, however, uncertain whether these theoretical postulations really matter on the ground. Several authors cast doubt upon these views, albeit not so much on the basis of actual (empirical) research. They argued that courts do not see themselves as ‘protector of equilibrium of the international society’, but are first and foremost national agents that also rule that international law must be consistent with taking the national constitution as a starting point and primarily using international law strategically to advance ‘domestic goals’ (Benvenisti and Downs 2009). Such views have become more widespread following the more recent phenomenon of backlash against international law, growing populism and rule of law backsliding. This paper fills this empirical gap and examines whether judges of the Dutch highest courts actually construe themselves as international judges when they deal with human rights cases in which the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) play a role. In order to answer this question, a structured case law analysis of judgments of the Dutch highest courts in the period 2021-2023 has been employed to reveal how, when and why national courts engage with ECtHR judgments. In addition, nineteen interviews were conducted with judges, law clerks and advocate-generals at the four highest Dutch courts. The Netherlands was chosen as a most likely case in terms of considerable engagement and the applicability of the ‘global community of courts’ explanation. The Dutch Constitution has been qualified as ‘one of the most völkerrechtsfreundliche’ constitution and international treaties receive a favourable reception in the Dutch legal order because of its monist approach and prohibition of constitutional review.