The European Court of Human Rights has expressed that a State cannot rely on its positive obligations under the European Convention on Human Rights in order to justify the detention of individuals, unless the detention falls within one of the grounds listed in Article 5.1. The Court has also interpreted these grounds very narrowly, leaving little room for preventive detention. While this is ordinarily a commendable position, it may potentially be too rigid in specific situations where there is a conflict between one individual’s right to liberty and other individuals’ or the community’s interests under Article 2 on the right to life or Article 3 on the prohibition against torture. This article inquires whether the Court should instead adopt a more flexible approach where it searches for a ‘fair balance’ between Article 5 and Articles 2 and 3.
{"title":"Detention for Protection: Searching for a ‘Fair Balance’ between the Restrictions on Preventive Detention and the Obligation to Protect Individuals","authors":"Kjetil Mujezinović Larsen","doi":"10.5617/OSLAW2349","DOIUrl":"https://doi.org/10.5617/OSLAW2349","url":null,"abstract":"The European Court of Human Rights has expressed that a State cannot rely on its positive obligations under the European Convention on Human Rights in order to justify the detention of individuals, unless the detention falls within one of the grounds listed in Article 5.1. The Court has also interpreted these grounds very narrowly, leaving little room for preventive detention. While this is ordinarily a commendable position, it may potentially be too rigid in specific situations where there is a conflict between one individual’s right to liberty and other individuals’ or the community’s interests under Article 2 on the right to life or Article 3 on the prohibition against torture. This article inquires whether the Court should instead adopt a more flexible approach where it searches for a ‘fair balance’ between Article 5 and Articles 2 and 3.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"1-22"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43381997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
State-centric law appears ill equipped to meet human rights’ emancipatory promise in an increasingly pluralistic, unequal world facing climate change. ‘Climate justice’ has become a counterpoint to hegemonic statist, neoliberal climate approaches. However, few studies address the confluence of competing norms (including rights), power relations and multiple actors in shaping, contesting and reinterpreting climate justice in specific contexts, despite burgeoning human rights and legal pluralism research. This article explores legal pluralism’s potential for understanding rights’ roles in climate justice through examining Norway. Legal pluralism reveals how Norwegian ‘translators’ vernacularise transnational climate justice aspects, including international climate law and policy, into relevant movement frames, but within unequal power relations and hegemonic processes. These translators balance encouragement and critique of Norway’s high-profile international climate positioning, finding spaces within hegemonic discourses where movements can turn prevalent global, statist frames inward, decentering climate discourses by highlighting Norway’s structural links to climate injustice, particularly its petroleum industry. Rights are used in varying ways in both disaggregating diagnostic frames and stressing more prognostic, transformative visions. Increasingly, climate justice and Norwegian ‘ klimarettferdighet ’ [climate justice] discourses move from a focus on countering international, statist discourses to domestic distribution and economic transitions. This combines climate justice with Norwegian civic participatory and social democratic norms of active civil society and social movement involvement in socioeconomic transformations, providing potentially resonant frames for tackling climate change.
{"title":"Legal Pluralism and Human Rights in the Idea of Climate Justice","authors":"A. D. Fisher","doi":"10.5617/OSLAW2766","DOIUrl":"https://doi.org/10.5617/OSLAW2766","url":null,"abstract":"State-centric law appears ill equipped to meet human rights’ emancipatory promise in an increasingly pluralistic, unequal world facing climate change. ‘Climate justice’ has become a counterpoint to hegemonic statist, neoliberal climate approaches. However, few studies address the confluence of competing norms (including rights), power relations and multiple actors in shaping, contesting and reinterpreting climate justice in specific contexts, despite burgeoning human rights and legal pluralism research. This article explores legal pluralism’s potential for understanding rights’ roles in climate justice through examining Norway. Legal pluralism reveals how Norwegian ‘translators’ vernacularise transnational climate justice aspects, including international climate law and policy, into relevant movement frames, but within unequal power relations and hegemonic processes. These translators balance encouragement and critique of Norway’s high-profile international climate positioning, finding spaces within hegemonic discourses where movements can turn prevalent global, statist frames inward, decentering climate discourses by highlighting Norway’s structural links to climate injustice, particularly its petroleum industry. Rights are used in varying ways in both disaggregating diagnostic frames and stressing more prognostic, transformative visions. Increasingly, climate justice and Norwegian ‘ klimarettferdighet ’ [climate justice] discourses move from a focus on countering international, statist discourses to domestic distribution and economic transitions. This combines climate justice with Norwegian civic participatory and social democratic norms of active civil society and social movement involvement in socioeconomic transformations, providing potentially resonant frames for tackling climate change.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"200-224"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45942172","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The principle of exhaustion, or the first sale doctrine (US), in copyright means that once a copy of a work is put on the market with the consent of the right holder he or she will not be entitled to control the further distribution of the copy. It is well settled that the exhaustion rule applies to the distribution of tangible copies (books, CDs, DVDs etc), but its application to the online context is controversial. In the UsedSoft case (case C-128/11) the Court of Justice of the European Union nevertheless applied the exhaustion rule of the Computer Software Directive to a situation where ‘used licenses’ of computer software were passed on to third parties enabling them to download the software from the right holder’s website. The article discusses the legal premises and the policy implications of the decision, contrasting it also to the ReDigi decision of the US District Court of the Southern District of New York.
{"title":"Legally Flawed but Politically Sound? Digital Exhaustion of Copyright in Europe after UsedSoft","authors":"Ole-Andreas Rognstad","doi":"10.5617/OSLAW977","DOIUrl":"https://doi.org/10.5617/OSLAW977","url":null,"abstract":"The principle of exhaustion, or the first sale doctrine (US), in copyright means that once a copy of a work is put on the market with the consent of the right holder he or she will not be entitled to control the further distribution of the copy. It is well settled that the exhaustion rule applies to the distribution of tangible copies (books, CDs, DVDs etc), but its application to the online context is controversial. In the UsedSoft case (case C-128/11) the Court of Justice of the European Union nevertheless applied the exhaustion rule of the Computer Software Directive to a situation where ‘used licenses’ of computer software were passed on to third parties enabling them to download the software from the right holder’s website. The article discusses the legal premises and the policy implications of the decision, contrasting it also to the ReDigi decision of the US District Court of the Southern District of New York.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"1 1","pages":"1-19"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44210857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The treatment of women in the frame of Islam has become subject to lively debate, lately concentrated in domains of the West where Islamic law seeks recognition without Islam being the prevailing creed. The discussions often are focused on concerns whether Muslim women are confronted with discriminative treatment and impediments to their access to justice. In this context, Greece occupies a unique position. Greece constitutes the only European State that recognises officially a special Islamic jurisdiction. In Thrace, Mufti tribunals are considered the cornerstone of application of Islamic law and administration of Islamic justice. However, this regime has been repeatedly criticised for failing to safeguard Muslim women’s rights. This article engages with the legal treatment of the women who belong to the Muslim Minority of Western Thrace. It examines the ways in which this religious normative regime affects their access to justice and the potential impacts that are generated from their subjection to the authority of the system thereof. The analysis is based on a methodology that combines the study of domestic and international legal scholarship with insights that were drawn from the study on representative case law of the local Sharia courts and of the competent civil courts.
{"title":"The Legal Treatment of Muslim Minority Women under the Rule of Islamic Law in Greek Thrace","authors":"İlker Tsavousoglou","doi":"10.5617/OSLAW2769","DOIUrl":"https://doi.org/10.5617/OSLAW2769","url":null,"abstract":"The treatment of women in the frame of Islam has become subject to lively debate, lately concentrated in domains of the West where Islamic law seeks recognition without Islam being the prevailing creed. The discussions often are focused on concerns whether Muslim women are confronted with discriminative treatment and impediments to their access to justice. In this context, Greece occupies a unique position. Greece constitutes the only European State that recognises officially a special Islamic jurisdiction. In Thrace, Mufti tribunals are considered the cornerstone of application of Islamic law and administration of Islamic justice. However, this regime has been repeatedly criticised for failing to safeguard Muslim women’s rights. This article engages with the legal treatment of the women who belong to the Muslim Minority of Western Thrace. It examines the ways in which this religious normative regime affects their access to justice and the potential impacts that are generated from their subjection to the authority of the system thereof. The analysis is based on a methodology that combines the study of domestic and international legal scholarship with insights that were drawn from the study on representative case law of the local Sharia courts and of the competent civil courts.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"241-262"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49061305","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sociologically and normatively, the concept of legal pluralism presupposes a ‘legal system’ or a ‘law-like’ normative order displaying a distinctive structure (eg an institutionalised system of rules and sanctions) whose boundaries can be determined and distinguished from others (or from non-law). Legal pluralism thereby presupposes that the boundaries between those entities are cognisable (descriptively or normatively) and distinguish large-scale entities (‘system’, ‘order’, ‘layer’, etc). In this article, I argue that this overlapping concept of legal pluralism is inapplicable to human rights law either descriptively or normatively (with particular emphasis on the European Convention on Human Rights (ECHR). Normatively, recent philosophical literature suggests that human rights (law) may be endorsed by a variety of moralities (eg collectivistic) that make it safe from the critique of parochialism , legal or moral. Descriptively, European human rights law has never been legally depicted as an autonomous and complete legal order in the vein of EU law as held by the European Court of Justice in Van Gend en Loos. This is explained by the structural principle of subsidiarity shaping the complementing roles of the European Court of Human Rights (ECtHR) in reviewing state practices and national courts in applying the ECHR. How shall we then understand the point (if any) of legal pluralism in the context of European human rights law? I argue that one first needs to uncover the link between legal and moral pluralism and therefore ‘pierce’ the large-scale boundaries premised in the conventional concept of legal pluralism. I show how pluralism is used in the reasoning of the ECtHR to justify its authority over national courts, so that the distinction between legal ‘orders’ or ‘systems’ is contingent upon the normative role that moral pluralism plays in justifying the duties correlative to human rights.
从社会学和规范学角度来看，法律多元主义的概念预设了一个“法律体系”或“类似法律”的规范秩序，显示出一种独特的结构（如规则和制裁的制度化体系），其边界可以确定并与其他人（或非法律）区分开。因此，法律多元主义假定这些实体之间的边界是可识别的（描述性或规范性的），并区分大型实体（“系统”、“秩序”、“层次”等）。在这篇文章中，我认为，法律多元主义这一重叠概念无论在描述上还是在规范上都不适用于人权法（特别强调《欧洲人权公约》）。从规范上讲，最近的哲学文献表明，人权（法律）可能得到各种道德（如集体主义）的支持，使其免受法律或道德狭隘主义的批评。可以描述的是，欧洲人权法从未被法律描述为一种独立和完整的法律秩序，就像欧洲法院在Van Gend en Loos所认为的那样。这可以通过辅助性的结构原则来解释，该原则塑造了欧洲人权法院（ECtHR）在审查国家实践和国家法院在适用《欧洲人权公约》方面的补充作用。那么，在欧洲人权法的背景下，我们如何理解法律多元化的意义（如果有的话）？我认为，首先需要揭示法律多元主义和道德多元主义之间的联系，从而“刺破”传统法律多元论概念所预设的大规模界限。我展示了在欧洲人权法院的推理中，多元主义是如何被用来证明其对国家法院的权威的，因此法律“命令”和“制度”之间的区别取决于道德多元主义在证明与人权相关的义务方面所起的规范作用。
{"title":"Legal and Moral Pluralism: A Rejoinder (in European Human Rights Law)","authors":"A. Zysset","doi":"10.5617/OSLAW2765","DOIUrl":"https://doi.org/10.5617/OSLAW2765","url":null,"abstract":"Sociologically and normatively, the concept of legal pluralism presupposes a ‘legal system’ or a ‘law-like’ normative order displaying a distinctive structure (eg an institutionalised system of rules and sanctions) whose boundaries can be determined and distinguished from others (or from non-law). Legal pluralism thereby presupposes that the boundaries between those entities are cognisable (descriptively or normatively) and distinguish large-scale entities (‘system’, ‘order’, ‘layer’, etc). In this article, I argue that this overlapping concept of legal pluralism is inapplicable to human rights law either descriptively or normatively (with particular emphasis on the European Convention on Human Rights (ECHR). Normatively, recent philosophical literature suggests that human rights (law) may be endorsed by a variety of moralities (eg collectivistic) that make it safe from the critique of parochialism , legal or moral. Descriptively, European human rights law has never been legally depicted as an autonomous and complete legal order in the vein of EU law as held by the European Court of Justice in Van Gend en Loos. This is explained by the structural principle of subsidiarity shaping the complementing roles of the European Court of Human Rights (ECtHR) in reviewing state practices and national courts in applying the ECHR. How shall we then understand the point (if any) of legal pluralism in the context of European human rights law? I argue that one first needs to uncover the link between legal and moral pluralism and therefore ‘pierce’ the large-scale boundaries premised in the conventional concept of legal pluralism. I show how pluralism is used in the reasoning of the ECtHR to justify its authority over national courts, so that the distinction between legal ‘orders’ or ‘systems’ is contingent upon the normative role that moral pluralism plays in justifying the duties correlative to human rights.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"176-199"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42893628","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Every year millions of people are forced to flee their homes in the context of climate change and disasters. Their needs and rights are unclear. This paper presents and discusses some findings from a socio-legal case study exploring the rights of disaster-affected Somalis and Ethiopians in Yemen. The first main findings relate to the challenges that Ethiopians faced in accessing, and succeeding with, the formal asylum process. This is discussed in light of legal aid theory and research as well as research on credibility assessments. Another category of findings relates to interactions of local, religious law and international law. This is discussed in light of legal pluralism, which helps in identifying an emancipatory potential. While complex, dynamic and dependant on regional politics and other factors, the way Islamic law was applied — and influenced other bodies of law — seemed to ensure better protection than the 1951 Refugee Convention alone. This potential should be further explored and possibly expanded in order to strengthen the rights of people displaced in the context of climate change and disasters more generally.
{"title":"Disasters and Refugee Protection: A Socio-legal Case Study from Yemen","authors":"V. Kolmannskog","doi":"10.5617/OSLAW2768","DOIUrl":"https://doi.org/10.5617/OSLAW2768","url":null,"abstract":"Every year millions of people are forced to flee their homes in the context of climate change and disasters. Their needs and rights are unclear. This paper presents and discusses some findings from a socio-legal case study exploring the rights of disaster-affected Somalis and Ethiopians in Yemen. The first main findings relate to the challenges that Ethiopians faced in accessing, and succeeding with, the formal asylum process. This is discussed in light of legal aid theory and research as well as research on credibility assessments. Another category of findings relates to interactions of local, religious law and international law. This is discussed in light of legal pluralism, which helps in identifying an emancipatory potential. While complex, dynamic and dependant on regional politics and other factors, the way Islamic law was applied — and influenced other bodies of law — seemed to ensure better protection than the 1951 Refugee Convention alone. This potential should be further explored and possibly expanded in order to strengthen the rights of people displaced in the context of climate change and disasters more generally.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"225-240"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45347070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ordoliberalism is a German school of economic thought that advocates regulating the free market economic based on a set of state imposed rules guaranteed by the economic constitution to impose a competitive order in society. It proposes an alternative method to pure laissez-faire and state planned economy for the better regulation of the market economy by having as goals the protection of the competitive process and individual freedom. In this article I submit that ordoliberalism, an indigenous European competition policy, is an adequate economic and analytical tool to base the practice and decision making of competition law a. My aim is twofold: contribute to the discussion on what ordoliberalism is in general and in particular concerning competition policy, and offer a new perspective on an ordoliberal-oriented competition policy.
{"title":"Competition Law Through an Ordoliberal Lens","authors":"Ignacio Herrera Anchustegui","doi":"10.5617/OSLAW2568","DOIUrl":"https://doi.org/10.5617/OSLAW2568","url":null,"abstract":"Ordoliberalism is a German school of economic thought that advocates regulating the free market economic based on a set of state imposed rules guaranteed by the economic constitution to impose a competitive order in society. It proposes an alternative method to pure laissez-faire and state planned economy for the better regulation of the market economy by having as goals the protection of the competitive process and individual freedom. In this article I submit that ordoliberalism, an indigenous European competition policy, is an adequate economic and analytical tool to base the practice and decision making of competition law a. My aim is twofold: contribute to the discussion on what ordoliberalism is in general and in particular concerning competition policy, and offer a new perspective on an ordoliberal-oriented competition policy.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"139-174"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48164490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article aims to demonstrate and identify principles derived from primary legislation which govern European contract law. This demonstration is based on the consubstantial relationship, rooted in a market-oriented conception of Europe, which exists between principles set up by the European Union Treaties and those implicitly contained in secondary legislation. However, the view taken here is that not all ‘primary principles’ are shaped to integrate secondary legislation dealing with contract law. Only proportionality, effectiveness and, to some extent,non-discrimination prove appropriate in the context of contract law. The first part of the article supports the view that these principles have been used to remedy limits in European legislature competences in contract law. Part two takes the view that the principles have been used by the European Court of Justice as a tool of contractual policy making.
{"title":"The European Court of Justice and General Principles Derived from the Acquis Communautaire","authors":"Élise Poillot","doi":"10.5617/OSLAW980","DOIUrl":"https://doi.org/10.5617/OSLAW980","url":null,"abstract":"This article aims to demonstrate and identify principles derived from primary legislation which govern European contract law. This demonstration is based on the consubstantial relationship, rooted in a market-oriented conception of Europe, which exists between principles set up by the European Union Treaties and those implicitly contained in secondary legislation. However, the view taken here is that not all ‘primary principles’ are shaped to integrate secondary legislation dealing with contract law. Only proportionality, effectiveness and, to some extent,non-discrimination prove appropriate in the context of contract law. The first part of the article supports the view that these principles have been used to remedy limits in European legislature competences in contract law. Part two takes the view that the principles have been used by the European Court of Justice as a tool of contractual policy making.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"1 1","pages":"67-77"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43913313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A number of scholars have argued that addressing the significant environmental problems we face today is not merely a matter of finding technical or technological solutions, it also requires that we interrogate our assumptions about the nature of our own humanness and come to terms with what this means for how we behave towards nature. This paper argues that human rights courts engage in questions of human nature and value through their use of the concept of ‘human dignity’ and, as a result, it is a concept that may have an important role to play in human rights cases of an environmental nature. Historically, however, dignity is a concept concerned with the superiority of humanity to the rest of nature, and one thought to be anthropocentric and antithetical to environmental concerns. This paper considers whether human dignity might nevertheless have a beneficial role to play in environmental adjudication by considering its role in legal adjudication from a pragmatic perspective. This paper considers an approach to dignity proposed by Jeff Malpas – one that sees humans as embedded in and constituted by place – and examines whether this approach might impact on the course of judicial reasoning in environmental cases.
{"title":"The Place of Human Dignity in Environmental Adjudication","authors":"D. Townsend","doi":"10.5617/OSLAW3946","DOIUrl":"https://doi.org/10.5617/OSLAW3946","url":null,"abstract":"A number of scholars have argued that addressing the significant environmental problems we face today is not merely a matter of finding technical or technological solutions, it also requires that we interrogate our assumptions about the nature of our own humanness and come to terms with what this means for how we behave towards nature. This paper argues that human rights courts engage in questions of human nature and value through their use of the concept of ‘human dignity’ and, as a result, it is a concept that may have an important role to play in human rights cases of an environmental nature. Historically, however, dignity is a concept concerned with the superiority of humanity to the rest of nature, and one thought to be anthropocentric and antithetical to environmental concerns. This paper considers whether human dignity might nevertheless have a beneficial role to play in environmental adjudication by considering its role in legal adjudication from a pragmatic perspective. This paper considers an approach to dignity proposed by Jeff Malpas – one that sees humans as embedded in and constituted by place – and examines whether this approach might impact on the course of judicial reasoning in environmental cases.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"3 1","pages":"27-50"},"PeriodicalIF":0.0,"publicationDate":"2017-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48489234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the impact of the protection against discrimination guarantee in family law cases that raise questions related to private international law. The steady incorporation of international human rights protection against gender discrimination into positive Norwegian law implies a stronger focus on human rights in legal cases in which private international law is applied. The focus of the article is on the ordre public reservation as a means of harmonising private international law rules and human rights rules. This is illustrated by assessing the interpretation of the ordre public reservation in the recognition of foreign talaq divorces in Norway. This interpretation rests on human rights law, as it has been understood and implemented in Norwegian law, in legal scholarship and by administrative authorities. The findings suggest that the one-sided focus on connection in private international law should be altered to align better with the unilateral protection against discrimination that follows from international human rights law. Accordingly, the strong focus on the result in the assessment of the ordre public reservation should be altered to capture more fully the procedural and underlying regulations informing cases of a discriminatory nature.
{"title":"Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces","authors":"Tone Linn Wærstad","doi":"10.5617/OSLAW3947","DOIUrl":"https://doi.org/10.5617/OSLAW3947","url":null,"abstract":"This article examines the impact of the protection against discrimination guarantee in family law cases that raise questions related to private international law. The steady incorporation of international human rights protection against gender discrimination into positive Norwegian law implies a stronger focus on human rights in legal cases in which private international law is applied. The focus of the article is on the ordre public reservation as a means of harmonising private international law rules and human rights rules. This is illustrated by assessing the interpretation of the ordre public reservation in the recognition of foreign talaq divorces in Norway. This interpretation rests on human rights law, as it has been understood and implemented in Norwegian law, in legal scholarship and by administrative authorities. The findings suggest that the one-sided focus on connection in private international law should be altered to align better with the unilateral protection against discrimination that follows from international human rights law. Accordingly, the strong focus on the result in the assessment of the ordre public reservation should be altered to capture more fully the procedural and underlying regulations informing cases of a discriminatory nature.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"3 1","pages":"51-71"},"PeriodicalIF":0.0,"publicationDate":"2017-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42388824","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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