Abstract
Some years ago the author published in Clunet an article on the recognition and enforcement of foreign judgments in the Nordic States.1 The aim of the present article is to bring that former paper up to date as far as Norway is concerned. In the first section some developments among the Scandinavian States will be treated. The second section will deal with a treaty with the United Kingdom and the third and last section with the European Court of Human Rights.
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References
Edvard Hambro, „Recognition and Enforcement of Foreign Judgment in the Nordic Countries,” 84, Journal du Droit international (Clunet) 1957, pp. 908–947.
See article by Ekeberg in I, Le Nord, 1938, pp. 82 ff. and Mateucci in Liber A micorum of congratulations to Algot Bagge, Stockholm 1956.
See article by Max Sørensen in Revue générale de droit international public, 1955, pp. 63–64.
Treaty of Collaboration between Denmark, Finland, Iceland, Norway and Sweden of 23 March, 1962, Published in Overenskomster med Fremmede Stater, 1962, pp. 402 ff. It entered into force after deposit of all the ratifications on the first of July the same year. Also published in the Treaty Series of the United Nations vol. 434, pp. 144 ff. as Treaty No. 6262.
The oldest one is the Nordisk Tidsskrift for Retsvidenskap. Later we have had the Acta Scandinavica juris gentium, a Nordic collection of judgments and Archives in the fields of Air law and Maritime law.
League of Nations Treaties Series, Vol. CXXXIX pp. 165 ff.
See here particularly in Norwegian Parliamentary papers, Ot. prpr. nr. 35, 1947.
Printed in Overenskomster med fremmede stater, 1949, pp. 86 ff. and in the Treaty Series of the United Nations, Vol. 27, pp. 117 ff. as Treaty No. 403.
Article 26 of the Constitution states, after an amendment in 1931: „The King shall have the right to assemble troops, to commence war in the defence of the Kingdom and to make peace, to conclude and denounce treaties, and to send and receive diplomatic envoys. Treaties on matters of special importance, and, in any case, treaties the implementation of which, according to the Constitution, necessitates a new law or a decision on the part of the Storting, shall not be binding until the Storting has given its consent thereunto.”
See St. Prp. no. 59 of 1948 and Innst. S. No. 104 of same year.
Edvard Hambro, „The Theory of the Transformation of International Law into National Law in Norwegian Law,” in Engel (Ed.) Law, State and International Legal Order, Essays in Honour of Hans Kelsen, Knoxville, Tennessee, 1964, pp. 97 ff.
Edvard Hambro, „Some remarks about the relations between municipal law and international law in Norway,” 19, Acta Scandinavica Iuris Gentium, 1959, pp. 3 ff.
Innst. O. nr. 241, 1947.
Innst. O. nr. 29, 1948.
Ot. prp. nr. 35, 1947.
I myself have written some papers on this problem. See e.g. my article in 5, Western political Quarterly 1952, No. 1.
It is in itself worthy of note that Sweden, having been a neutral during that conflict, still consented to this stipulation.
See following Norwegian Parliamentary papers: Ot. prp. Nr. 13, 1962 – 63. As annex is attached Innstilling fra Straffelovsrâdet om Fullbyrdelse av nordiske dommer på straff m. v. Innst. O. XXI 1962–63. Debates in Odelstinget 1963 pp. 30 ff. Besl. O. nr. 4 1963–64. Debates in Lagtinget same year pp. 2 ff. It might be added that the Norwegian Parliament is elected as a one chamber Parliament but divides in two, Lagting and Odelsting, for legislation.
The author whowas then a member of Parliament was the chief spokesman for this point of view, which gathered the majority in the judicial committee but was defeated on the floor of parliament.
This question has also been discussed before an international forum in relation to another country. The Permanent Court of International Justice had to deal with the penal law of Danzig, P. C. I. J. Ser. A/B No. 65.
It is not possible to discuss in this paper all the new rules concerning internment in hospitals etc. which may infringe upon the freedom of the individual in the interest of society. Such measures are not meant as punishment, but can be very dangerous in this particular respect.
It is not necessary to discuss the question of minimum standards of penal law in the international community in this connection. It is well known that a State may protect its own citizens against unusual or cruel treatment abroad also in the field of penal law and administration.
We leave out here the question of extradition. If a person is extradited to Norway and judged by a Norwegian tribunal the problem does not arise. I will not deal with the Scandinavian laws and treaties of extradition which I have done already in many papers which need not be quoted here.
The principle of judicial review of legislation is not fixed in any constitutional provision, but in constitutional customary law. However, the Supreme Court — and that it is the one court of importance in this connection — is very cautious in this respect.
St. prpr. nr. 6 1960–61 and Innst. S. nr. 15 for the same year. The final decision by Parliament was made on November 11, 1962.
No. 6107 in United Nations Treaties Series, Vol. 424, pp. 173 ff.
See Cheshire, Private International Law, Seventh Edition, London, 1965, p. 542 and Dicey’s, Conflict of Laws, Seventh Edition, London, 1958, pp. 1046 ff.
St. prpr. nr. 10, 1061–62. and Innst. S. nr. 34 of same year adopted unanimously on January first, 1962.
The present author was the rapporteur for this treaty.
Iceland did not participate in these negotiations, but no explanation of this is furnished by the Parliamentary papers. The reason was that Iceland at that time could not send a delegation.
The Norwegian Declaration will be found in 19, Yearbook, 1964–1965 of the International Court of Justice, at page 58 and the British ibidem p. 66.
Three of the most significant contributions in Norway are by Andenaes in Lovog Rett, 1965, pp. 49 ff., Castberg in Tidsskrift for Rettsvitenskap, 1965, pp. 385 and Wold in Legal Essays, A Tribute to Frede Castberg, Oslo, 1963, pp. 353 ff.
St. prpr. No. 83, 1951, Innst. S. 289 from same year and debate in Stortingstidende pp. 2515. See also St. Prp. No. 104 for 1955.
Previously also Jews were excluded from Norway under the same article in the Constitution. Jews meant then people of the Jewish faith.
I hope to be able in the near future to contribute a paper on the whole problem of the international aspect of freedom of religion in Norway.
Article 32.(1) If the question is not referred to the Court in accordance with Article 48 of this Convention within a period of three months from the date of the transmission of the Report to the Committee of Ministers, the Committee of Ministers shall decide by a majority of two-thirds of the members entitled to sit on the Committee whether there has been a violation of the Convention. (2) In the affirmative case the Committee of Ministers shall prescribe a period during which the High Contracting Party concerned must take the measures required by the decision of the Committee of Ministers. (3) If the High Contracting Party concerned has not taken satisfactory measures within the prescribed period, the Committee of Ministers shall decide by the majority provided for in paragraph (1) above what effect shall be given to its original decision and shall publish the Report. (4) The High Contracting Parties undertake to regard as binding on them any decision which the Committee of Ministers may take in application of the preceding paragraphs.
Article 25. (1) The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognizes the Competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right. (2) Such declarations may be made for a specific period. (3) The declarations shall be deposited with the Secretary-General of the Council of Europe who shall transmit copies thereof to the High Contracting Parties and publish them. (4) The Commission shall only exercise the powers provided for in this Article when at least six High Contracting Parties are bound by declarations made in accordance with the preceding paragraphs.
It may perhaps be allowed to state that it seems as if the Ministry of Foreign Affairs on the whole is inclined to be more positive and internationally minded than the Ministry of Justice which acts more like the watch dog for Norwegian interests.
St. prpr. no. 104, 1955, Innst. S. nr. 222, Consent given by Parliament on November 11, 1955.
Article 46. (1) Any of the High Contracting Parties may at any time declare that it recognise as compulsory ipso facto and without special agreement the jurisdiction of the Court in all matters concerning the interpretation and application of the present Convention. (2) The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain other High Contracting Parties or for a specified period. (3) These declarations shall be deposited with the Secretary-General of the Council of Europe who shall transmit copies thereof to the High Contracting Parties.
See i. a. the articles mentioned in footnote on p. 130 above. The author had also recommended this step in articles and speeches.
Forhandlinger i Stortinget, pp. 2473 ff.
The whole question of the treatment meted out to collaborators, traitors etc. during the war has given raise to many debates in Parliament and much litterature, but cannot be dealt with in this paper.
Stortingets Forhandlinger, p. 2303, 1963.
Stortingets Forhandlinger, 1964, p. 2648. The representative is the same as the author of the present paper.
St. prp. Nr. 112, 1963–64.
Nearly all matters treated in Parliament are referred to one of the standing committees. One of them combines the treatment of foreign affairs with the treatment of constitutional affairs.
Innst. S. nr. 215, 1963–64.
June 4th, 1964, Forhandlinger, p. 3341.
See my article in 12, Archiv des Völkerrechts, 1965, pp. 369 ff.
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© 1968 Martinus Nijhoff, The Hague, Netherlands
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Hambro, E. (1968). Norwegian Attitude to International and foreign Judgments. Recent Developments. In: Mélanges Offerts à Juraj Andrassy. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-3486-4_9
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