Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces
Abstract This article examines the impact of the protection against discrimination guarantee in family law cases that raise questions related to private international law. The steady incorporation of international human rights protection against gender discrimination into positive Norwegian law impl...
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| Format: | Article |
| Language: | English |
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Scandinavian University Press
2016-01-01
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| Series: | Oslo Law Review |
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| Online Access: | https://www.idunn.no/oslo_law_review/2016/01/harmonising_human_rights_law_and_private_international_law_ |
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| author | Tone Linn Wærstad |
| author_facet | Tone Linn Wærstad |
| author_sort | Tone Linn Wærstad |
| collection | DOAJ |
| description | Abstract
This article examines the impact of the protection against discrimination guarantee in family law cases that raise questions related to private international law. The steady incorporation of international human rights protection against gender discrimination into positive Norwegian law implies a stronger focus on human rights in legal cases in which private international law is applied. The focus of the article is on the ordre public reservation as a means of harmonising private international law rules and human rights rules. This is illustrated by assessing the interpretation of the ordre public reservation in the recognition of foreign talaq divorces in Norway. This interpretation rests on human rights law, as it has been understood and implemented in Norwegian law, in legal scholarship and by administrative authorities. The findings suggest that the one-sided focus on connection in private international law should be altered to align better with the unilateral protection against discrimination that follows from international human rights law. Accordingly, the strong focus on the result in the assessment of the ordre public reservation should be altered to capture more fully the procedural and underlying regulations informing cases of a discriminatory nature. |
| format | Article |
| id | doaj-art-c19fc64a9d0b40c6a8c77ff64d2d3186 |
| institution | OA Journals |
| issn | 2387-3299 |
| language | English |
| publishDate | 2016-01-01 |
| publisher | Scandinavian University Press |
| record_format | Article |
| series | Oslo Law Review |
| spelling | doaj-art-c19fc64a9d0b40c6a8c77ff64d2d31862025-08-20T01:55:39ZengScandinavian University PressOslo Law Review2387-32992016-01-013517110.5617/oslaw394718948693Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign DivorcesTone Linn WærstadAbstract This article examines the impact of the protection against discrimination guarantee in family law cases that raise questions related to private international law. The steady incorporation of international human rights protection against gender discrimination into positive Norwegian law implies a stronger focus on human rights in legal cases in which private international law is applied. The focus of the article is on the ordre public reservation as a means of harmonising private international law rules and human rights rules. This is illustrated by assessing the interpretation of the ordre public reservation in the recognition of foreign talaq divorces in Norway. This interpretation rests on human rights law, as it has been understood and implemented in Norwegian law, in legal scholarship and by administrative authorities. The findings suggest that the one-sided focus on connection in private international law should be altered to align better with the unilateral protection against discrimination that follows from international human rights law. Accordingly, the strong focus on the result in the assessment of the ordre public reservation should be altered to capture more fully the procedural and underlying regulations informing cases of a discriminatory nature.https://www.idunn.no/oslo_law_review/2016/01/harmonising_human_rights_law_and_private_international_law_International human rightsprivate international lawadministrative lawprotection against discriminationordre publicMuslim divorce |
| spellingShingle | Tone Linn Wærstad Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces Oslo Law Review International human rights private international law administrative law protection against discrimination ordre public Muslim divorce |
| title | Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces |
| title_full | Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces |
| title_fullStr | Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces |
| title_full_unstemmed | Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces |
| title_short | Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces |
| title_sort | harmonising human rights law and private international law through the ordre public reservation the example of the norwegian regulation of the recognition of foreign divorces |
| topic | International human rights private international law administrative law protection against discrimination ordre public Muslim divorce |
| url | https://www.idunn.no/oslo_law_review/2016/01/harmonising_human_rights_law_and_private_international_law_ |
| work_keys_str_mv | AT tonelinnwærstad harmonisinghumanrightslawandprivateinternationallawthroughtheordrepublicreservationtheexampleofthenorwegianregulationoftherecognitionofforeigndivorces |