Rulings of the European Court of Human Rights as a legal argument in Norwegian law compared to German

The main problem of my thesis is whether the influence on Norwegian legal argumentation currently afforded the rulings of the European Court of Human Rights by Norwegian legal practitioners, is fully justified. Is it possible that the obligations entered into by the ratification of the European Convention of Human Rights leaves more room for national-specific considerations than what is currently presumed by legal practitioners? And if so, should we take full advantage of this room for manouvering, in order to protect our national standards, or should we be as loyal to Strasbourg as we possibly can within the restraints of our own legal methodology? Exploring the advantages and disadvantages of both options, the goal is to determine whether the present-day approach needs adjustment in one or other direction.

To answer these questions, I will start by outlining the framework of our international obligations by means of conventional treaty interpretation. Next, I will present the legal position of the Convention in Norway, and - out of consideration for any foreign readers - give a brief introduction into Norwegian legal methodology This will lead up to an investigation of the patterns of legal argumentation adopted by the Supreme Court with the purpose of determining the place of Strasbourg rulings in Norwegian legal argumentation.

The German approach to ECtHR rulings appears fundamentally different from the Norwegian, insofar as the ECtHR rulings seem to figure less prominently in German legal argumentation. As this does not trigger any sanctions from the Council of Europe, it seems Germany nevertheless fullfills her obligations under the Convention. I therefore presume that a comparison with German law will further illuminate the extent of our obligations, and thereby the space for national-specific considerations.

To keep the project manageable, the analysis of German and Norwegian legal argumentation will be limited to two areas of law: protection of personality rights, where the provisions of the ECHR have a direct parallell in the German Basic Law, and procedural rights, where there is no such direct parallell. The amount of German case-law means that the area of comparizon may have to be narrowed down further.

Finally, based on how the Norwegian Supreme Court and its German counterparts utilizes ECtHR rulings in their argumentation, I seek to answer the question of whether certain parameters indicate that a change in Norwegian argumentation patterns is necessary and/or desirable. Relevant parameters are, for instance, considerations of fundamental principles of legal methodology, the legitimacy of the law, the "rule of law"-principle (rettsstat/ Rechtsstaat) and costitutional law principles. The limitation on the state's freedom to act, constituted by the obligations dictated in the ECHR, must also be taken into account.

To facilitate communication, discussion and comments across borders, the thesis will be written in English. The project will be completed in 2012. Tutors are professor Jørgen Aall and associate professor Synne S. Mæhle, both of the University of Bergen.