September 23, 2025
By dr. Akiko Ejima
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To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog.
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‘At the time of enactment of the Act on Special Cases, the majority of countries that had established procedures for making changes in recognition of gender status under laws and regulations set loss of fertility as a requirement for the aforementioned change. After that, the WHO and other organizations issued a joint statement that expressed their opposition to the loss of fertility as a requirement in 2014, and the European Court of Human Rights rendered its judgment that such a requirement violated the European Convention on Human Rights in 2017. And at present, the number of countries that do not require the loss of fertility has increased considerably, mainly in Western countries.’ (Excerpt from the majority opinion of the judgment of the Supreme Court of Japan, 25 October 2023 (the APGID No.2 Case))
In recent decades, the internationalization of constitutional law has progressed in multiple forms. Courts increasingly cite foreign judgments, borrow doctrinal concepts, or rely on international human rights law as persuasive authority. Among these transnational sources, the case law of the European Court of Human Rights (ECtHR) occupies a special position. Despite being a regional court, whose jurisdiction is formally limited to the member states of the Council of Europe, its jurisprudence has exerted a significant influence well beyond Europe.
This article examines the global—and potentially universal—character of the jurisprudence of the ECtHR by examining its influence on the decisions of apex courts outside Europe. In recent years, apex courts from non-Member States, including the Supreme Court of Japan (SCJ) and the Constitutional Court of Korea (CCK), have increasingly engaged with Strasbourg jurisprudence in their reasoning. In light of this emerging trend, the paper begins by analysing specific cases in which the SCJ and the CCK have referred to ECtHR case law, addressing several key questions: What motivates courts outside of Europe to refer to ECtHR jurisprudence? What legal and political functions do these references serve? Do they enhance or undermine the legitimacy of domestic constitutional adjudication?
Subsequently, the article analyses the merits and challenges associated with cross-border judicial references. Further, the article evaluates the ECtHR’s initiatives to disseminate its case law through mechanisms such as the Knowledge Sharing platform (ECHR-KS) and the establishment of the Superior Courts Network. It assesses the significance of judicial dialogue that transcends national borders, arguing that these efforts are meaningful not only for Member States of the Council of Europe but also for non-Member States, such as Japan and South Korea.
Before tackling the main questions, this section introduces the Supreme Court of Japan and the Constitutional Court of Korea and compares the two courts, both of which were born in newly established democracies in the second half of the 20th century.
The Supreme Court of Japan (SCJ) was established in 1947 under the postwar Constitution which – on the model of the US system – grants it and lower courts the authority to invalidate legislation in concrete cases (Article 81). The Court consists of a Chief Judge and 14 judges: The Chief Judge is designated by the Cabinet and appointed by the Emperor, while other judges are appointed by the Cabinet.
Under Article 41 of the Courts Act, judges must be at least forty years old and possess distinguished insight and profound legal knowledge; the retirement age is seventy. Appointees traditionally come from diverse professional backgrounds, and include judges, prosecutors, lawyers, academics, and senior officials. By convention, each group is allotted a certain number of seats (e.g., six for the judiciary, two for the prosecution), with candidates proposed by the relevant institutions, though the actual selection process remains opaque.
Historically cautious, the SCJ has declared only thirteen statutes unconstitutional. However, recent decisions suggest a gradual shift toward a more active role in constitutional adjudication.
In 1988, the CCK was established as an independent constitutional body pursuant to the 1987 constitutional amendment after the democratization. Its mandate includes adjudicating on the constitutionality of laws, impeachment, the dissolution of a political party, disputes between the State agencies, between State agencies and local governments, and between local governments and constitutional complaints as prescribed by Act (Article 111 of the Constitution of the Republic of Korea).
The Court is composed of nine justices. Although all are formally appointed by the President of the CCK, their nomination is structured to ensure a balance of powers: three justices are nominated by the President, three by the National Assembly, and three by the Chief Justice of the Supreme Court. The term of office of the adjudicators of the Constitution Court shall be six years and they may be reappointed as prescribed by law (Article 112 of the Constitution of the Republic of Korea).
Moreover, the CCK has been one of the most trusted constitutional institutions by the Korean people. The two instances of presidential impeachment to this date show its authority and trust. According to a poll, 81 percent of the Korean people accepted the CCK’s latest decision of impeachment of the President.
In general, comparative constitutional legal study has been active in Japan and South Korea. The SCJ and the CCK have been eager to learn from older courts as they lacked knowledge and experience. One effective way to do so has been to send selected young judges to study at European or North American academic institutions.
In the case of Japan, there is an arrangement that a young Japanese judge works as a councillor at the Consulate-General of Japan at Strasbourg. The judge plays a unique role to provide the essential Strasbourg case law to the SCJ and to provide the essential Japanese SCJ case law to the Venice Commission. The same judge also sits in the meeting of the Joint Council on Constitutional Justice of the Venice Commission.
The CCK has created a system to support comparative research by establishing the Constitutional Research Institute. The Constitutional Court employs individuals holding doctoral degrees in law as constitutional researchers, tasking them with the investigation and analysis of issues relevant to the deliberation and adjudication of cases. Since September 2007, the Court has also appointed university professors as academic advisors to conduct research and provide expert insight on particularly complex or significant legal questions.
One of the most important structural differences is that the CCK is a constitutional court which is established to deal with constitutional questions while the SCJ is an ordinary court whose principal task is to solve legal conflicts by applying the law. This difference may explain the difference of the attitude of each court beyond its national borders. South Korea is a member state of the Venice Commission (Council of Europe), while Japan is an observer state. The CCK took an initiative to hold the World Conference on Constitutional Justice (WCCJ) at Seoul with the support of the Venice Commission in 2014. The president of the CCK at that time announced the Seoul Communique to argue for the Asian Human Rights Court. Furthermore, the CCK played a pivotal role to establish the Asian Association of Constitutional Court and Equivalences (AACC). On the other hand, the SCJ hesitates to participate in the above WCCJ and the AACC because of its own perception that the SCJ is not a constitutional court.
The SCJ’s references had been implicit until 2013. Judges and law clerks who supported judges had consulted foreign law and case law (particularly the US and German case law) but did not explicitly refer to or cite them. However, the recent judgments clearly show that they changed their attitude.
The Children Born out of Wedlock Case (2013) is a game changer case. Article 900 of the Civil Code discriminated against children born out of wedlock in terms of legal allocation of inheritance. Children born out of wedlock could obtain only half of the allocation given to children born to a married couple. This Article was used when inheritance disputes were brought to courts. In the 2013 case, the plaintiff (a child born out of wedlock) argued that Article 900 violated Article 14 (equality under the law) of the Constitution. Previously the SCJ denied unconstitutionality in a different case in 1995. However, the SCJ admitted the necessity of revisiting the constitutional question by referring to various elements. One of them is the reforms of French and German laws. It should be emphasized that the French reform was realised because of the ECtHR’s Mazurek v France. The text of the judgment did not explicitly refer to the judgment of Mazurek v France. Later, a SCJ judge, Katsumi Chiba confided that it was useful to see how the proportionality principle was used by the ECtHR in Mazurek v France when he met the former President of the ECtHR, Jean-Paul Costa who visited the SCJ in 2013. It is also intriguing to mention that the origin of the discriminatory clause is French Civil Code which Japan transplanted in the end of 19th century.
After a brief silence, the SCJ came back with a more explicit reference. The Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (APGID) was enacted in 2003 to enable persons with gender identity disorder to change their gender on the family register if they met certain conditions required by the APGID. If persons with gender identity disorder wanted to change gender on the family register, they needed to undergo physical surgery to meet the conditions.
While Article 3, paragraph (1), item (iv) of the APGID (hereinafter referred to as the ‘Provision’) provides that the person ‘has no reproductive glands or the person’s reproductive glands have permanently lost function,’ it is understood that in order to fall under the Provision, it is necessary to undergo gonadectomy surgery (surgery to remove the testicles or ovaries as internal genitals) unless there are circumstances such as where all gonadal function has been permanently lost due to the administration of anticancer drugs or other reasons.
A trans person who had not undergone the surgery appealed to the SCJ by arguing that the Provision violates Article 13 (right to pursuit of happiness) and Article 14 (equality under the law) of the Constitution (the APGID No.1 Case). In 2019, the Petty Bench of the SCJ denied unconstitutionality of the provision by admitting legislative discretion. However, a joint concurring opinion (two judges) emphasized that it was time to reconsider its reasonableness by referring to foreign law and international law, including ‘a 2017 judgment of the European Court of Human Rights’. The judgment was about the case of A.P. Garçon and Nicot v France. Had one more judge joined this concurring opinion, it could have transferred the case to the Grand Bench.
In 2023, just four years after the above Petty Bench judgement, another case went to the SCJ again (the APGID No.2 Case).The appeal was transferred to the Grand Bench which finally held the requirement unconstitutional, referring to international opinions, including the WHO and the ECtHR (see the citation in the beginning of this article). It is for the first time that the majority opinion of the SCJ referred to a judgment of a non-Japanese court since 1958 when the SCJ referred to Marbury v Madison to argue that ‘Article 81 of the Constitution of Japan is characterized by the fact that it codifies, in explicit terms, the power of judicial review that had been established through the interpretation of the United States Constitution’ (judgment of 7 July 1948, 2(8) Saikō Saibansho Keiji Hanreishu 801).
In South Korea, the 1994 Public Official Election Act (the POEA) which denied the prisoner’s right to vote. The CCK formerly denied unconstitutionality of the Act in 2004 and 2009. However, in 2014, the CCK, by a vote of eight to one, held the POEA to be unconstitutional. In order to tackle the question, the CCK explored the comparative and international examples including Hirst v the United Kingdom (No. 2):
The countries which limit prisoners’ right to vote, however, have been extensively reconsidering such restriction. In Canada, which had long limited the right to vote of prisoners, all prisoners now enjoy the right to vote after its Supreme Court held the restriction unconstitutional in 1993 and 2002. The Supreme Court of South Africa also rendered the decision of unconstitutionality against a provision that deprives all prisoners of their right to vote in 2004. Under the England laws, all kinds of prisoners cannot exercise their right to vote, but the European Court of Human Rights, in 2005, declared that monolithic and blanket restriction on the right to vote, which is the core right under the European Convention on Human Rights, was in violation of Article 3 of the Protocol 1 to the European Convention on Human Rights. The Australian Supreme Court held unconstitutional a provision restricting the right to vote of all kinds of prisoners in 2007, and the French Constitutional Council in 2010 decided that a provision that prevented a person who was found guilty of specific crimes such as illegal collection and acceptance of bribe from exercising the voting right violated the Constitution.
Interestingly, there has been a dialogue-like relationship between the Korean legislature and the CCK. The Parliament amended the elections law which the CCK accepted as constitutional.
The same issue is now being deliberated at the SCJ. Therefore, multiple exchanges could occur: The one between the CCK and the ECtHR, the one between the SCJ and the ECtHR and the one between the CCK and SCJ. The outcome (the judgment) remains to be seen.
29 August 2024, the CCK ruled that Article 8(1) of the Framework Act on Carbon Neutrality and Green Growth was unconstitutional due to its failure to stipulate specific greenhouse gas reduction targets for the period from 2031 to 2049. In this ruling, the CCK referred to Verein KlimaSeniorinnen Schweiz and others v. Switzerland. This reference was quickly recognized by the President of the ECtHR.
This landmark judgment marks Asia’s first climate litigation case, underscoring the judiciary’s role in upholding intergenerational justice and environmental responsibility. The Court emphasized the importance of a consistent and foreseeable pace of progression in climate action, warning that leaving long-term reduction goals entirely to administrative discretion risks discontinuity, undermines the objective of gradual decarbonization, shifts undue burdens onto future generations, and ultimately threatens the attainment of carbon neutrality.
What are the merits and challenges for Asian apex courts and people in referring to the ECtHR case law and foreign or international jurisprudence?
First, such references serve the practical function of gathering and exchanging information. When judges face unfamiliar or complex issues, they may look to analogous cases decided elsewhere—particularly by courts with recognized authority or operating in systems with strong comparative links to Japan or South Korea.
Second, many legal and social issues arise at different times across jurisdictions. For example, LGBTQI+ rights have only recently gained visibility in Japan, whereas Europe and the United States have addressed them for decades. Referring to foreign experiences enables domestic actors to benefit from more developed perspectives.
Third, human rights violations often affect minorities who cannot easily secure protection through majoritarian processes. Because minorities exist in all societies, the universal character of rights justifies looking beyond national borders. International jurisprudence can provide minority groups with alternative avenues for recognition, while helping domestic courts prepare for emerging issues.
Fourth, once an issue is recognized internationally, it is less likely to be forgotten. Domestic debates may lose momentum, but international bodies—such as treaty committees or the Council of Europe—ensure sustained engagement. Domestic courts can draw upon this external attention to move human rights issues forward rather than ignoring them.
Fifth, in cases where a state is on the verge of committing serious human rights violations, international organizations and foreign governments may serve as external checks. The possibility of international scrutiny or intervention can act as a deterrent. In this regard, references to international legal standards and foreign precedents can reinforce domestic legal arguments and offer normative support for the protection of human rights. In such a situation, the domestic court can strengthen its role as defender of human rights with the support of international courts.
Lastly, numerous human rights issues remain unidentified or insufficiently recognized. For instance, while artificial intelligence has become a prominent topic of discussion in recent years, technologies such as ChatGPT did not exist a decade ago, and the Internet itself is a relatively recent development. Across the globe, certain countries or regions are often quicker than others to detect and begin addressing these emerging challenges. Moreover, the broader the scope of coverage, the more likely it is that a given issue will be rendered visible in some part of it. In other words, there is a significant difference between conducting an inquiry into a population of several million and one encompassing 700 million. The Strasbourg case law works as a harbinger to detect human rights violations.
Nevertheless, the doctrine of the margin of appreciation presents a significant interpretive challenge for those engaging with ECtHR case law from outside the European context. As the Strasbourg jurisprudence increasingly gains traction as a source of global human rights law, it becomes essential to critically examine how this body of law should be understood, adapted, and applied in diverse legal and cultural settings beyond Europe. Furthermore, the legitimacy of judicial reliance on foreign case law or on jurisprudence grounded in treaties to which Japan nor South Korea is not a party remains a matter that warrants further critical examination, both from the perspective of constitutional interpretation and from that of democratic legitimacy.
The ECtHR’s efforts for Members States to implement the ECHR and execute the ECtHR’s judgments are also useful for outsiders.
Compared to the case law of foreign courts, the jurisprudence of the ECtHR is generally more accessible and comprehensible for non-European States and people. This can be attributed to the Court’s deliberate efforts to ensure clarity and accessibility, particularly in light of its jurisdiction over 46 Member States, including more recent entrants to the system.
In particular, the Knowledge Sharing (KS) platform—introduced as a response to the increasing number of individual applications and to instances of non-compliance with ECtHR judgments—offers benefits that extend beyond Europe. Non-member states, too, can derive value not only from the substantive outcomes of the Court’s jurisprudence but also from the institutional processes and strategies the Court has adopted to enhance the effectiveness of the ECHR. These efforts may serve as a model for countries considering the development of regional human rights mechanisms. Furthermore, experiences under that scheme of the Superior Courts Network are inspiring for non-Member States.
Strasbourg case law and the lived experiences of individuals under the ECHR resonate far beyond Europe, enriching global human rights discourse. Reciprocal engagement between European and non-European jurisdictions strengthens both practice and understanding.
Although Asia lacks a comprehensive regional human rights treaty, gradual progress is evident in national protection mechanisms. Cooperation with the European system offers valuable opportunities to enhance implementation and to build stronger legal and institutional frameworks. As in medical research, where validity grows with diverse clinical data, human rights advance through engagement with a wide range of experiences. Ignoring the challenges faced by Europe’s 700 million people—or the lessons they provide—would risk overlooking essential insights for global human rights development.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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