UN Treaty Bodies and their Implications for Norwegian Law
By Tori Loven Kirkebø, Research Assistant, PluriCourts
Monday Nov. 9 2015, PluriCourts had the pleasure of hosting the second annual Ryssdal Seminar. The seminar takes its name from - and honors the legacy of - Rolf Ryssdal, former Chief Justice of the Norwegian Supreme Court and president of the European Court of Human Rights.
As a judge, Ryssdal was a pioneer in Norwegian and international law. This was reflected in the theme of this year’s seminar on the implications of the practice by UN treaty bodies for Norwegian law. Considering Ryssdal’s position as a judge, the seminar targets Norwegian judges, but also contributes to bringing judges, practitioners, civil society and academics together in a discussion. After an official opening by Geir Ulfstein – director of PluriCourts – Kirsten Sandberg gave a detailed presentation on the operations of the UN Treaty Bodies. Sandberg is currently serving her second term as member of the Committee on the Rights of the Child. After presenting the audience with an overview of the treaty body system, Sandberg elaborated on the type of work the treaty bodies does, and how Norway operates within the system. Given her position as a member of the Committee on the CRC, Sandberg gave valuable insight into how the treaty bodies work, what considerations they make, and how the different actors participate.
Following the presentation on the functions of the treaty bodies, the discussion moved towards how the domestic courts are and could be working with practice from the international human rights system. Geir Ulfstein presented how the Norwegian Supreme Court works with and interprets decisions from the treaty body system. Reflecting on the different characteristics of the international human rights system, the weight of legal sources they establish, and key decisions from the Norwegian court system he described the current approach of the Supreme Court and made recommendations on how one might consider and improve the use of international human rights practice in domestic courts.
Emphasizing that part of the challenge with utilizing international treaties and the work of treaty bodies or international courts in the Norwegian court system is the lack of knowledge, Cecilie Østensen Berglund gave a thorough introduction to the use of international databases on human rights decisions. Østensen Berglund works as a judge at Borgarting Lagmannsrett and was recently elected as director of the board of the National Institution for Human Rights in Norway. She particularly emphasized HUDOC – a database holding decisions from the European Court of Human Rights - and the jurisprudence including the general comments of the treaty bodies found on the webpage of the Office of the High Commissioner for Human Rights (OHCHR). She discussed how judges are familiarized with the human rights treaties and possible challenges one faces when using them.
Turning to the point of view of the practicing lawyers, Anders Ryssdal discussed whether or not the treaty bodies are “a lawyer’s best friend.” Ryssdal is a practicing lawyer with experience of bringing cases before Norwegian courts as well as UN treaty bodies. He argued that changes in applicable law to a large extent rely on lawyers, de-emphasizing the role of, amongst others, academia. The variety of treaty bodies also gives the lawyers a certain leeway on strategically choosing a treaty body that can cater the needs in the case.
Following the presentation by Ryssdal, Christian Reusch, from the the office of the Attorney General, presented the challenge of working with the treaty bodies. He questioned the legitimacy of the treaty bodies – as opposed to the European Court of Human Rights -, and the predictability of their findings. He indicated that these bodies are less concerned with formal procedures and admissibility issues, and tend to be more activist-oriented in their substantive interpretation.
Sivilombudsmannen (the civil ombudsman), Aage Thor Falkanger, talked about the complex set of international organs to relate to. He believed that it was generally beneficial to be challenged by these organs. There might be opposing outcomes from the organs, but this was not usually the case.
The discussions were wrapped up by a final panel with representatives from academia, the courts and practitioners. The first speaker was Hans Petter Graver, dean at the faculty of law at the University of Oslo. Reflecting on the previous presentations, Graver expressed disappointments with Ryssdal’s conclusion that academia was less central in the development of applicable law. He further remarked that UN treaty body documents may serve as sources of law, but what does it means that the practice should be given ‘significant weight’, as required by the Norwegian Supreme Court. A dilemma is also to what extent such practice is used by the court without being first presented to the parties.
Graver’s comments were followed by Mette Yvonne Larsen, member of “Menneskerettighetsutvalget” (the human rights committee) of the Norwegian Association of Lawyers and practicing lawyer. Larsen emphasized that the Norwegian Supreme Court had revolutionized the juvenile justice system. She linked the development within the Supreme Court to the General Comment 10 on juvenile justice from the Committee on the Convention for the Rights of the Child as well as a 2013 EU directive on the issue (Directive 2013/48/EU).
Finally, Aasne Julsrud, judge at Oslo Tingrett pointed to the concern of lack of knowledge of the international human rights system – both for lawyers and for judges. A consequence of the lack of knowledge is that the conventions are not commonly applied by either party and that when they are applied the arguments are not sufficiently reasoned.