General legal framework

• Author: Løvdal, Lene
• Pages: 16-17

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1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the

promotion of equality

The Norwegian Constitution has a general claus e protecting against discrimination, Article

98, and a general human rights clause, Article 92.

Article 98 of the Constitution reads: ‘All p eople are equal under the law. No huma n being

must be subject to unfair o r disproportional differential treatment .’54 The provision

mentions no particular grounds of discrimination, groups or characteristics.

Article 92 of the Constitution states that:

‘The authorities of the State shall respect and ensure the human righ ts as they are

expressed in this Constitution and in the treatie s concerning h uman rights that are

binding for Norway.’

A Supreme Court judgment clarified that Article 92 of the Con stitution is not a clause that

incorporates human rights conventions in Norwegian law, but obliges authorities to

enforce human rights conventions at the level they are implem ented in Norwegian law.5 5

The Human Rights Act56 incorporates a number of imp ortant treaties on h uman rights -

including the International Convention on Elimination of All Forms for Discrimination of

Women (CEDAW) - into the domestic legal system on a general basis in which the

conventions prevail over any other conflicting statutory provision.57 The International

Convention on Elimination of All Forms f or Racial Discrimination (ICERD) is not

incorporated into the Human Rights Act, but in to the Equality and Anti-Discrimination Act

(GEADA), the legal consequence being that ICERD does not prevail over other statutory

provisions in case of conflict, but has to be decided through interpretation. The UN CRPD

(the Di sability Convent ion) was ratifi ed on 3 July 2013.58 It is not incorporated into t he

Equality and Anti-Discrimination Act (GEADA) or any other Norwegian law. Howeve r, the

Equality and Anti -Discrimination Ombudsman i s responsibl e for the supervision of the

national implementation of the convention, similar to the national su pervisory system of

the ICERD and CEDAW.59

These provisions apply to all areas covered by the directives. Their material scope is

broader than those of the directives.

54 See https://www.stortinget.no/globalassets/pdf/english/constitutionenglish.pdf. The preparatory works to

the constitutional clause are found in Dok 16 (2011-2012) Report on Human Rights in the Constitution from

the Constitutional Committee to the Storting (Parliament), Chapter 6, see

http://www.stortinget.no/Global/pdf/Dokumentserien/2011-2012/dok16-201112.pdf.

55 See Supreme Court, HR-2016-2554-P and HR-2016-2591-A of 20 December 2016, para 47. The latter case

concerned the question whether a woman with a psychosocial disability (diagnosed paranoid schizophrenia)

should be deprived of her legal capacity relating to her finances if the conditions for this were fulfilled in

accordance with the Guardianship Act, Article 22. The Supreme Court found that the conditions to deprive

the woman of a capacity to handle her own finances were fulfilled, even though this might be contrary to

Article 12 of the CRPD. This is because of the Norwegian ‘interpretative declaration’ in relation to CRPD

Article 12 (judgment, para. 58), and also because the CRPD is not incorporated into Norwegian law. An

interesting observation is made in para. 63, in which it is stated that as long as the declaration made by

Norway in relation to Article 12 is upheld by the legislature, the courts must abide by this even if it is in

breach of international law.

56 Act relating to the status of human rights in Norwegian law of 21 May 1999 No. 30 (Menneskerettsloven).

57 The International Convention on Racial Discrimination is incorporated in the Anti-Discrimination Act (ADA),

but the convention will in conflicting cases not automatically prevail. The failure to include the ICERD in the

Human Rights Act has been repeatedly criticised by the NGOs working on anti-discrimination.

58 See Prop. 106 S (2011–2012) Proposition to the Stortinget (proposal for Parliamentary resolution) on

Consent to ratification of the UN Convention of 13 December 2006 on the Rights of Persons with Disabilities

and Prop 105 L 2011-2012 on Changes to the Anti-Discrimination Ombud Act on the supervision of

implementation of the UN Convention on the Rights of Persons with Disabilities.

59 Equality Ombud (2016) ‘Strategy of the Ombud (2017-2022)’, at https://www.ldo.no/nyheiter-og-

fag/brosjyrar-og-publikasjonar/Arsrapporter/arsmelding-2016/sammendrag-strategi/.