Editorial Note

In Nordic public discourse, human rights have for a long time been considered as “uncontroversial”, reflecting “the good”, noble virtues and uncontested values. If this ever was the case, it has changed. Human rights are today provoking controversies in the Nordic societies. In fact, human rights values are at the centre – often at the crossfire - of political and moral debates. A recent example is the Norwegian process of constitutional review (as a prelude to the 200 years anniversary of the 1814 Constitution two years ahead). The Norwegian constitution has been weak in terms of explicit human rights protection. However, a Parliamentary Select Committee has suggested significant reforms that may strengthen the position of human rights in Norway as constitutional rights. To the surprise of many, this is provoking heated debate about – in particular – economic and social human rights and their status as constitutional rights. Critics (from the Left and the Right) ask if economic and social rights really are judiciable? And (echoing the so-called Democracy and Power Audit completed a few years ago) it is asked whether these rights are undermining the power and scope of democratic institutions, and margins of political power? Are they undermining or limiting “democratic processes and institutions”? Why, it is asked, should “unaccountable courts” decide on such “political matters” as implementation of social and economic rights?

Equally, decisions by the European Human Rights Court provoke contention and outcry. In a recent decision by the Court in a case concerning the impossibility of landowners to increase rents to people leasing their land, cf. Lindheim and Others v. Norway, the Court held that there had been a violation of Article 1 of the European Convention (on protection of property). Another case often referred to as the “Crucifix case” (Lautsi v. Italy), where the Grand Chamber changed a previous decision by the Second Section of the Court, ruled that it has not found any evidence ‘that the display of such symbols [the Christian Crucifix] on classroom walls might have an influence on pupils’. These and other cases have provoked questions about the “legitimacy” of Court decisions, and whether universal interpretations of human rights (across legal and political cultures) are at all possible (and even desirable).

The Nordic Journal of Human Rights takes great interest in these debates and controversies. Our task is not to present “a position” or “solutions”, but rather to encourage academic research and debates that may bring more intellectual rigour and understanding to these and related issues. We indeed encourage authors in the Nordic communities – and beyond! - to contribute to these legally demanding, politically important and morally contested fields of inquiry.

The Issue you now hold in your hand (or read on your screen) contains three articles that address issues of human rights controversy. In her study ‘Why (not) Commit? Norway, Sweden, Finland and the ILO Convention 169’, Anne Julie Semb addresses the seemingly legal anomaly that three comparatively similar Nordic countries differ significantly in their attitude towards ratification of this key human rights instrument for the protection of indigenous people. Due to obvious similarities in political culture and social structure, and the fact that the indigenous people, the Sami, are living in all three countries, one might have expected a similar attitude towards Convention 169. But this is not at all the case – and Semb discusses different hypotheses to explain this state of affairs, and reflects on the likelihood that the two non-ratifiers (Sweden and Finland) will ratify in the near future.

In the second article, Eeva Nykänen, discusses ambiguities of refugee protection in Finland. She argues that the interpretation and application of eligibility criteria in the Finnish administrative practice (on which grounds should anyone be considered eligible as a refugee) is unclear and leaves too much space for extra-legal considerations. This vagueness of legal concepts should be rectified, and in doing this it should be made consistent with the criteria for subsidiary protection of refugees applied by other EU states bound by the EU Qualification Directive. She argues, in other words, for a more consistent, transparent and universal interpretation and practice of the criteria for eligibility of refugees, and hence, their rights protection.

The last essay of this Issue presents a fascinating and interesting case study of a judicial review of religious freedom in Indonesia, and how this freedom recently has been interpreted by the Indonesian Constitutional Court. In ‘Constitutional Review of the Indonesian Blasphemy Law’, Axel Tømte, reviews the process of the case and the Court’s arguments, and provides a contextual interpretation of the decision. Hence, the article aims to shed light on how religious freedom is legally interpreted and understood in the second biggest Muslim state in the world, which might challenge (attempts at) a universal interpretation.

The three articles presented demonstrate very well the interpretative challenges and contested nature of human rights principles in the Nordic societies and beyond. In sum, they may help continue our search for better arguments, based on empirical research, on how to enhance human rights understandings and handling of normative and political challenges in today’s world. We welcome further submissions on such issues and challenges.

The Editors