[Congressional Record (Bound Edition), Volume 148 (2002), Part 15]
[Extensions of Remarks]
[Pages 21162-21164]
[From the U.S. Government Publishing Office, www.gpo.gov]




 A SCANDINAVIAN PERSPECTIVE ON CONSTITUTIONAL AND INTERNATIONAL HUMAN 
                                 RIGHTS

                                 ______
                                 

                            HON. TOM LANTOS

                             of california

                    in the house of representatives

                      Wednesday, October 16, 2002

  Mr. LANTOS. Mr. Speaker, I rise today to share with our colleagues in 
the US House of Representatives a speech given by the former Norwegian 
Supreme Court Chief Justice; the Honorable Carsten Smith to the 
Congressional Friends of Norway Caucus on Thursday, September 26. In 
his speech Chief Justice Smith outlined a Scandinavian perspective on 
Constitutional and International Human Rights--a highly relevant topic 
in light of the post-September 11 era. While the legal development in 
our country and Europe have not been completely congruent, Chief 
Justice Smith's thoughtful comments deserve bear examination.
  Chief Justice Smith, who has served on the Norwegian Supreme Court 
from 1987 until his retirement in 2001 and served as the Courts Chief 
Justice since 1991, has had a distinguished and impressive legal career 
for close to half a decade, and is considered a legend in the Norwegian 
legal community.
  Carsten Smith, who was born in Oslo in 1932, received his law degree 
from the University of Oslo in 1956 and earned his doctorate in law 
shortly thereafter. He is married to Mrs. Lucy Smith, also a 
distinguished professor of law at the University of Oslo, and they have 
three children.
  Carsten Smith was appointed Professor of Law at the University of 
Oslo in 1964. During his life-long career at the University, Chief 
Justice Smith has served in a number of positions. He served as the 
Dean of the Faculty of Law, and the President of the University of 
Oslo. Chief Justice Smith has also published a large number of articles 
and books in the field of international law, constitutional law, 
administrative and private law. Chief Justice Smith is also the 
recipient of numerous academic memberships and honors as well as the 
Commander and Knight of several Orders.
  Throughout his career Chief Justice Smith worked tirelessly on 
advancing the rights of minorities and human rights, and chaired both 
the Saami Rights Commission and the Commission on Human Rights in 
Norwegian legislation.
  Mr. Speaker, I commend Chief Justice Carsten Smith for his 
outstanding career in the legal field, and ask that Chief Justice 
Smith's speech be placed in the Record.

  Scandinavian Perspective on Constitutional and International Human 
                                 Rights

               (By Norwegian Chief Justice Carsten Smith)

       The United States Supreme Court has for a long period been 
     a source of inspiration for European legal thinking, 
     including my own work, even though one may disagree with 
     specific decisions. During my time both as a law professor 
     and as a judge I have eagerly studied literature on this 
     Court, and referred to it so often, that this fact was even 
     commented on by the Attorney General in a public speech on my 
     retirement from the Bench.
       The theme today will in the first place be how judicial 
     review of the constitutionality

[[Page 21163]]

     of legislation--a principle created by the US Supreme Court--
     has taken roots across the Atlantic. Moreover, I shall show 
     how this review in the last decades--and especially the most 
     recent years--has been enlarged to also embrace the 
     conformity of legislation with treaty-based human rights. In 
     the title of the speech the concept of human rights is used 
     to cover constitutional civil rights and liberties as well as 
     international rights and freedoms.
       While speaking about judicial constitutional review here in 
     the United States might have the character of preaching to 
     the Pope, the extension of the review of legislation, 
     requiring its compliance with human rights conventions, might 
     be regarded as a further development spearheaded by Europe. 
     One may consider this either as an extension of the original 
     United States constitutional law concept, or as a European 
     development in contrast to American constitutionalism. It 
     concerns the responsibility for implementation of treaty-
     based human rights on the national arena. The constitutional 
     civil rights and liberties have been supplemented with 
     international human rights and freedoms, and the power to 
     give binding interpretation of the main convention--the 
     European Convention on Human Rights--has been transferred to 
     the European Court of Human Rights in Strasbourg.
       Norway's Constitution of 1814 is the oldest written 
     constitution in Europe still in effect today, probably the 
     second oldest worldwide next to the United States 
     Constitution. The Norwegian practice of judicial review is 
     also the oldest in Europe, perhaps the second oldest 
     worldwide next to the United States practice. The 
     Constitution makes no explicit mention of judicial review, 
     quite in conformity with European constitutional thinking of 
     that period. This review arose--as in the United States--from 
     the practice of the Supreme Court itself.
       The United States Supreme Court's decision in Marbury 
     versus Madison represents one of the landmark cases in 
     Western legal thinking. The closest comparable Norwegian 
     decision was a case between a naval officer and the naval 
     authorities of 1866. It was the Chief Justice who raised the 
     issue of judicial review and gave the answer in the most 
     unambiguous way, namely--and you can almost hear the voice of 
     John Marshall--``that inasmuch as the courts of law cannot be 
     required to judge according to both laws simultaneously, they 
     must necessarily give priority to the Constitution''.
       This Norwegian constitutional adjudication remained a 
     relatively well-kept secret in an international perspective, 
     effectively protected by linguistic barriers. For more than 
     fifty years the Norwegian court practice formed a single and 
     secret bridgehead in Europe of the US legal model. The 
     further international development was of limited significance 
     until after World War II, but when it came, it came hard and 
     fast. After 1945 Germany and Italy set up constitutional 
     courts, followed by a widespread blossoming of successive 
     similar courts throughout Europe--particularly after the fall 
     of the communist regimes.
       The pendulum has been swinging in Norwegian practice 
     through the generations--as in the United States--between 
     judicial activism and restraint. This might be a theme in 
     itself. But let me mention how these judicial review powers 
     became a spiritual weapon used by the Supreme Court in 
     wartime.
       After two months of fighting in 1940, the King with the 
     government withdrew to London and continued their war effort 
     from there. The Supreme Court remained in Norway, but came 
     soon into conflict with the German leader of the occupying 
     forces, who declared in a threatening way that it was outside 
     the jurisdiction of the Court to review the decisions of the 
     occupying authorities. The Court answered that under 
     constitutional law the Norwegian courts had a legal duty to 
     review the validity of all laws and administrative orders, 
     and in the same way they were entitled to review the validity 
     under international law of orders issued by the organs of the 
     occupying forces.
       As a protest against this interference all the members of 
     the Supreme Court resigned their offices, an action that 
     fueled the people's sentiment for resistance, and the Chief 
     Justice subsequently became leader of both the civilian and 
     military resistance movement.
       In the decades after the war the Court has on a number of 
     occasions made use of its powers, and legal theory has used 
     the term renaissance in conjunction with judicial review.
       But now also a supplementing of this review can be achieved 
     by applying the European Convention on Human Rights from 1950 
     and the two United Nations Covenants from 1966. In 1999 the 
     Norwegian Parliament passed an Act--called the Human Rights 
     Act--that incorporated these three most basic conventions on 
     human rights into Norwegian law. At the same time, the Act 
     reinforced these rights through a priority clause whereby, in 
     the event of conflict with other legislation, the provisions 
     of these three conventions are to take priority over the 
     legislation. By this enlargement of the judicial review there 
     has been a certain transfer of power--some would say 
     considerable--from the executive to the judiciary; and at the 
     same time from the national to the European judiciary.
       All the members of the Council of Europe, more than forty, 
     have now incorporated the European Convention on Human 
     Rights. Even in England that has no written constitution and 
     where the constitutional structure is based on the 
     sovereignty of Parliament, their Human Rights Act of 1998 
     empowers the courts to determine whether a provision of 
     legislation is compatible with a Convention right. After 
     Russia also joined the Council, the European Court of Human 
     Rights in Strasbourg has now an area of jurisdiction spanning 
     from the Atlantic to the Pacific. I emphasize that this is 
     not the Court of the European Union in Luxembourg, as Norway 
     has twice doggedly refused to become a member of that union.
       A leading Norwegian decision of June 2000 laid down 
     unanimously that the national courts must apply the result of 
     an interpretation of the Convention even if established 
     national legislation or practice will be set aside. Some 
     further decisions in May this year have even emphasized the 
     trend of moving the judicial power more towards Strasbourg.
       The cases concerned--what some may find surprising in this 
     field of law--certain taxation matters. It has been a long-
     term administrative practice, built on statutory law, that 
     the tax authorities may, in case of fraudulent information 
     from the taxpayer, impose an additional tax of thirty to 
     sixty percent. At the same time the courts may, by way of 
     ordinary criminal trial, pronounce a sentence either before 
     or after the administrative decision. This has gone on 
     through the years without any objection from the legal 
     milieu, as the tax reaction was regarded to be a civil, non-
     criminal, sanction. However, on the basis of very recent 
     Strasbourg decisions the Supreme Court now found this to be a 
     double criminal liability for the same actions and in breach 
     of the convention rules on the right not to be tried or 
     punished twice for the same offence.
       These decisions will probably have a wide range effect as a 
     step in the march towards Strasbourg. The Supreme Court 
     decisions interfered rather profoundly in a lawful 
     established national administration, and moreover, the 
     decisions were not based on a clear precedent from the 
     European Court, but merely on the reasoning of cases not 
     quite parallel.
       It is also of importance in this respect that a human 
     rights text should be construed as such. This means that it 
     shall not be interpreted as an ordinary treaty rule, where 
     the principle of state sovereignty may have some impact, but 
     shall be effectively regarded as a defence of the individual 
     against the state.
       Where is then the borderline for the Strasbourg impact?
       The Court of Norway has drawn the guideline that in cases 
     of legal doubt the values and traditions of our own society 
     should be maintained in the decisions, thereby furthering a 
     dialogue between the national courts and the European one. 
     The Strasbourg Court has also developed a principle of the 
     national courts' ``margin of appreciation''. But there seems 
     to be a tendency of narrowing the area of this dialogue and 
     this margin.
       From a national standpoint one has thus to pay a certain 
     price for a judicial review based on an international court's 
     interpretation. The various national cultures represented on 
     the bench in Strasbourg may tend to place different views on 
     the reading of the convention. In some cases the national 
     legal circles may find themselves astonished--even somewhat 
     angry--when they experience that established national 
     practice suddenly is considered to be in breach of human 
     rights. However, in my view this is a price one has to pay as 
     contribution to a system that implies building of guarantees 
     for individuals all over Europe. There is the risk that one 
     will have to import certain legal elements that are foreign 
     to national legal thinking. But the gain is great for the 
     people in Europe as a whole--not the least in east Europe--
     seen in relation to the core elements of the rights, such as 
     fair trial and freedom of the press.
       A legal thriller in the years to come will be the Supreme 
     Court's use of the two United Nations Covenants that is 
     incorporated in addition to the European Convention, also 
     with priority over ordinary legislation. When incorporating 
     also the Covenants--with such priority--Norway has taken a 
     step further than most European states. The Covenant on Civil 
     and Political Rights is much of the same composition as the 
     European Convention, whereas the one on Economic, Social and 
     Cultural Rights contains provisions dealing in general terms 
     with many areas of society, including workplace, health and 
     social services, as well as education. Before the Act was 
     passed, some critics complained that incorporation of this 
     convention into national law would mean that the courts were 
     responsible for the use of resources in these areas, 
     particularly since the rights are formulated in such vague 
     terms.
       Take for instance Article 9 that recognizes the right of 
     everyone to social security, including social insurance, or 
     Article 13, which stipulates that higher education, shall be 
     made equally accessible to all, on the basis

[[Page 21164]]

     of capacity, by every appropriate means. There are likewise 
     other rules, which formulate what the covenant itself terms 
     as ``rights.''
       The national courts have certainly been given considerable 
     responsibility in this connection. The court interpretation 
     will decide whether the rather broad formulas are to be read 
     primarily as political guidelines--as political aims--or as 
     legal means constituting individual rights.
       The civil rights in the Constitution have usually been 
     named ``citizens' rights'', but can also be invoked by non-
     citizens in our courts. After World War II it became a 
     question to what extent German war criminals were protected 
     by the constitutional guarantees. In a famous case the 
     Supreme Court found that the constitutional guarantees should 
     not be interpreted in the normal strict sense when applied to 
     enemies who broke into the country and committed crimes in 
     breach of international law. One of the dissenting justices 
     warned strongly against this reasoning and looked back to the 
     beginning of the nineteenth century when the Constitution was 
     drafted. ``The Constitution'', he said, ``was created in a 
     period of war and revolution--nor was terrorism unknown.'' In 
     his opinion, which later on is considered as a proud 
     expression of Norwegian rule of law, he underlined that the 
     individual rights--the civil rights--have their primary 
     importance particularly in difficult and extraordinary 
     situations.
       Today the general opinion in Norwegian legal circles would 
     be in conformity with this minority opinion fifty years ago. 
     One would say that human rights are--according to European 
     thinking--the travelling companions that support every human 
     being, from the first cry to the last sigh. In my official 
     farewell speech in the Court earlier this year I said that 
     human rights protect not only ordinary citizens, but also 
     fraudulent taxpayers, even terrorists.
       The decision related to war criminals concerned the use of 
     death penalty, which we later eliminated. One of the 
     additional protocols to the European Convention declares that 
     this penalty shall be abolished. As a representative of the 
     Supreme Court in meetings in China with Chinese colleagues I 
     have on several occasions emphasized this principle. I have 
     then used the wording--when explaining our position--that we 
     consider the death penalty to belong to a stage in 
     development of society that one nowadays should have passed.
       This protocol--which is now law of the land--will probably 
     prohibit the executive from extraditing a foreign criminal, 
     even a terrorist, if he or she will be under a threat of 
     death penalty in the foreign court.
       Now a concluding observation drawn on around a hundred and 
     fifty years of constitutional review and a few years of 
     convention based review.
       Even though the review principle has encountered resistance 
     at times, both in Parliament and in public debate, it has 
     slowly taken root over the generations as an important 
     element in the three branches of government. Today we are 
     witnessing a new leap forward for international human rights. 
     We may all take part in that process. This is a field of law 
     where all citizens have an important function: to advance 
     profound analyses, constructive debates and fair solutions.

     

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