International Human Rights in Constitutional Interpretation - The Case of Norway

Abstract

Norway is a dualist country, but several international human rights conventions, among them the European Convention on Human Rights (ECHR) were incorporated and given preference before Norwegian statutory law through the Human Rights Act of 1999. The result of this is that the ECHR and case law from the European Court of Human Rights (ECtHR) now play an important role in the interpretation of Norwegian law, not only as relevant sources of law, but as sources of significant weight. The Norwegian Constitution is lex superior to the Human Rights Act, and the relevance of international human rights on the level of Norwegian constitutional law is not clear. With a basis in the co-original history of the rights protected ECHR and the Norwegian Constitution, and through an assessment of the Travaux préparatoires of recent amendments to the Constitution, Supreme Court case law and legal theory on constitutional interpretation, this article argues that the ECHR is a relevant source of law on the constitutional level in Norway. Considering ECHR explicitly in adjudication concerning rights protected both at the European and the national constitutional level opens up legal argumentation in a way beneficial to assessments of what actual influence the ECHR has on different constitutional questions. As ECtHR case law on some rights overlapping with those protected by the Norwegian Constitution is more extensive and detailed than national case law, there is a tendency that courts use the ECHR as basis for legal decisions rather than the Norwegian Constitution. Opening legal argumentation at the constitutional level to the influx of the ECHR is consequently important also to the continued viability of the Norwegian Constitution.

Note: Downloadable document is in Norwegian.

Keywords: Dualism, international human rights conventions, European Convention on Human Rights (ECHR), incorporation, Norwegian Human Rights Act of 1999

JEL Classification: K33