Bringing Rights Back Home? How Judges Handle Multilayered Constitutional and International Human Rights Laws on the Supreme Court of Norway

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.