The European Journal of Empirical Legal Studies just published an article I have co-authored with the eminent Jon Kåre Skiple. The article examines how judges on the Supreme Court of Norway attend to fundamental rights claims based on the Constitution and international human rights law sources.
The paper starts from the observation that many fundamental rights are protected by overlapping national and international legal frameworks. For instance, the right to a fair trial is protected by §95 of the Constitution of Norway, Article 6 of the European Convention on Human Rights (ECHR) as well as Article 9.1 of the International Covenant on Civil and Political Rights. So when litigants claim such fundamental rights by reference to such overlapping legal sources, how do judges engage with the resulting complexity?
We expect judges to engage differently with fundamental rights legal sources to avoid unnecessary workload, because dealing with fundamental rights claims is time-consuming per se. Moreover, we expect that judges wish to convince key audiences about the legal quality of their rulings. Specifically, supreme court judges are likely to seek to avoid having their judgments reviewed by the European Court of Human Rights, which has stronger accountability mechanisms and a larger body of case law relevant to Norway, compared to UN human rights treaty bodies.
Testing this argument, the article analyses how the Supreme Court engages with fundamental rights claims litigants base on the Constitution, the ECHR and a set of UN human rights treaties from 2008 to 2023. This period allows us to examine the effects of a 2014 constitutional amendment which introduced a new human rights chapter modeled on the IHRL conventions Norway had ratified and incorporated.
Yet our results suggest the reform did not have the intended effect of giving the constitution pride of place in fundamental rights jurisprudence: After the amendment, litigants have tended more often to base their fundamental rights claims on both the Constitution and the ECHR, and in such cases, the Court usually engages more with the latter. Apparently, the legal stock and authority of the ECtHR do matter for how judges attend to claimants’ fundamental rights arguments.
Here’s the abstract:
Given that fundamental rights are protected by both constitutional and international human rights law, how do judges handle the resulting complexity? Despite scholarly debate about the multilayered, overlapping codification of fundamental rights, few studies have examined empirically how domestic judges engage with different sources of fundamental rights law when writing judicial opinions. We propose that when litigants invoke fundamental rights in national courts, judges engage differentially with fundamental rights laws to avoid unnecessary workload and to convince key audiences about the legal quality of their rulings. To test our arguments, we analyse how the Norwegian Supreme Court engages with litigants’ fundamental rights claims based on the Norwegian Constitution, the European Convention on Human Rights (ECHR) and United Nations (UN) human rights treaties from 2008 to 2023, before and after a 2014 constitutional amendment. Using a novel dataset of 221 fundamental rights decisions that measures levels of engagement with litigants’ claims, we find that judges engage more extensively with the ECHR than with UN conventions and the Constitution. This pattern is consistent across multiple types of rights and decisional settings and highlights the challenge of revitalizing constitutional jurisprudence in settings where an authoritative international court exercises supranational constitutional review.
EJELS is diamond open access, so the article is free to read for anyone.
Skiple, J. K., & Schaffer, J. K. (2026). Bringing Rights Back Home? How Judges Handle Multilayered Constitutional and International Human Rights Laws on the Supreme Court of Norway. European Journal of Empirical Legal Studies, 3(1). https://doi.org/10.62355/ejels.55649