<By Malcolm Langford, NCHR, Faculty of law, University of Oslo>
Russia’s Vladimir Putin is not the only world leader rattling the saber in a manner that revives Cold War memories. The largest governing party in Norway, the centre-right Høyre, is also doing its best job at firing up good old-fashioned ideological divides.
As Norwegian parliamentarians meet to vote on a major overhaul of the Constitution on its 200-year anniversary, Høyre’s discourse and position on human rights has shifted from one of contemporary pragmatism to shrill ideology.
It is a stand that replicates the discourse of leading Western states during the height of the Cold War period. Anything that sniffed of communism and socialism was rigorously opposed.
On the inclusion of economic, social and cultural rights, Høyre’s Tetzschner has stated: “When it comes to these secondary rights which the Labour Party demands, it is Høyre’s position that they do not concern human rights in any meaningful sense. The Constitution shall regulate and limit the state’s power in order to avoid harm to individuals”.
This position caught many by surprise. The drafting commission was led by Inge Lønning from Høyre. The commission, with a dissent from the populist FRP member, had proposed the inclusion of a delineated but holistic set of rights.
However, Tetzschner and others have reached into the past for a gladbag of arguments to knock economic, social and cultural rights out of the constitutional reform process.
It is a strange move: the aim of the process was to modernise the constitution. As Figure 1 shows, states across all regions of the world have been moving rapidly to include social and civil rights in their constitutions. Indeed, in the wake of the Cold War, the entire international community reaffirmed in the 1993 Vienna Declaration that all rights were indivisible and universal.
And , as Figure 2 shows, the dominant trend at the domestic level has been to make these social rights subject to judicial review.
Many commentators in Norway have attacked Høyre’s position. It ignores the fact that all rights carry positive and resource-based obligations, it undermines Norway’s existing treaty commitments, and hampers Norwegian foreign policy.
Practically, there are some groups in Norway who can legitimately complain that their social rights are denied or at times overlooked. However, the generosity of the social welfare state means that there is no risk of excessive litigation.
Most surprising is Tetzschner’s view that social rights are not justiciable, capable of being applied by courts. He should get out a little more.
In the last three decades, there has been a veritable transformation in the legal jurisprudence on economic, social and cultural rights. In countries as diverse as Finland, Portugal, Colombia, Latvia, Nepal and South Africa, courts have applied the rights to concrete cases.
The jurisprudence is far from Tetzschner’s fear that courts would be involved in the nitty-gritty of deciding policy and resource allocation. Instead, courts have developed a range of nuanced approaches.[i]
For instance, courts intervene to set the parameters of policy-making rather they making policy or allocating resources. The consequence is judgments often focus on ensuring that a minimum core of the right is realized, an adequate plan has been developed to realize the rights, or that programmes and laws do not discriminate.
For instance, in the early 1973 case of Robinson v Cahill, the Supreme Court of New Jersey stated that the authorities had considerable flexibility in achieving the constitutional right to education but “the end product must be what the Constitution commands.”
Of course there is a room for debate over how far courts should go. You can only look to the scholarly journals for commentary and debate. But a mere casual observer can see that the most active courts are present in countries with high and persistent levels of inequality. Courts in states with developed welfare states tend to be, and rightly so, much more cautious and selective in their interventions.
With some horse-trading in parliament, it appears that one social right will make into the constitution: the right to education. That might be viewed as progress but keep in mind that every American state put the right to education in their constitution in the 19th Century. And as historians have now discovered, social rights were among the first rights championed, as far back as the 12th century.
Norway was seeking to modernize its constitution for the 21st Century but instead it seems stuck somewhere in the mid 20th or 19th Century.
[i] See M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008); ICJ, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: International Commission of Jurists, 2008).
Notes on the figures:
Figure 1: The source of the original data is the CCP Data Set http://www.comparativeconstitutionsproject.org/ In order to transform it into times series data, it was determined whether for each year a constitution (dated by its most significant recent reform; usually at a time of democratic or post-colonial transition) included the particular right. As the recognition of some rights may be through earlier amendments to the constitution there is likely to be a margin of error. However, the overall trend is fairly clear.
Figure 2: R2 = 0.03 for figure 2A, R2 = 0.05 for Figure 2B (2) In Figure 1.4B, the year of constitutional adoption was presumed to be the year of ICESCR incorporation though this was adjusted in one case to a later date.