Proportionality reasoning is an established form of legal argumentation under international human rights law, employed by the European Court of Human Rights and the United Nations (UN) human rights treaty bodies alike. However, relatively little has been written about its precise role and content in relation to equality norms. Proportionality scholars tend to draw on other examples to demonstrate how proportionality reasoning works in practice, and legal scholarship on equality and non-discrimination has not fully explored whether or how proportionality argumentation can assist us in distinguishing lawful state practices from unlawful ones. This article picks up these loose ends and develops a model of proportionality assessment tailored to the non-discrimination context. The model breaks down proportionality argumentation into a step-by-step process and sets out clear criteria to be fulfilled at each step. It illustrates the distinctive features of balancing as a part of discrimination analysis and provides useful guidance to national authorities tasked with such balancing. It is anchored in existing non-discrimination jurisprudence but structured so as to facilitate more predictable outcomes than existing justification tests.
The Norwegian social security scandal concerns the right to export sickness benefits pursuant to EU Regulation 883/2004 on the Coordination of Social Security Systems. The Regulation is binding in Norway due to its membership in the EEA Agreement. Nonetheless, the Regulation has been largely disregarded in that country, and thousands of social security claims have been rejected, as Norway’s Social Security Act requires continued presence in Norway to retain payable benefits. In this context, some hundred individuals have been sentenced to prison for welfare fraud because they stayed in another EU/EEA State and exported cash benefits in the absence of a prior authorisation from Norwegian authorities.
Yet, legal uncertainty seems to remain, and the exact scope of the scandal is still unclear. The paper discusses the reach and depth of the rights afforded by Regulation 883/2004. It argues that the Regulation’s main rules on equal treatment (Articles 4 and 5) and the main rule on free movement (Article 7) provide an unconditional right to export sickness benefits in cash. It also provides an account of the internal, systemic, and constitutional integrity of the Regulation, and the equilibrium between coordination and harmonisation.
This paper aims to determine what the proper role of the judiciary should be in developing climate change policy. It does so in light of the sometimes contentious relationship between ‘activist’ or ‘progressive’ judges and the doctrine of separation of powers. This relationship has a long history by which much of human rights law has been shaped. The paper analyses the court judgments in the cases of Urgenda v Kingdom of the Netherlands, Juliana v United States, and Friends of the Irish Environment v Ireland in order to identify how different legal systems view this relationship. The paper also considers the upcoming climate case in the Supreme Court of Norway. In particular, the question is asked whether the separation of powers in Europe and the United States is a doctrine mandating systems of power balance rather than of strict separation.
Drawing on the argumentation from the Urgenda judgment, the paper concludes that the protection and development of human rights should be the main concern in climate change litigation. The judiciary should accordingly take an important role in climate change policy-making in order for the state to comply with its duty to instigate emission limits.
Oslo Law Review
3-2020, volume 7
Oslo Law Review was established in 2014, and publishes research articles from all areas of legal scholarship, as well as interdisciplinary articles or articles that engage with law from the perspective of other related disciplines (e.g. political science, anthropology, sociology, linguistics and philosophy).
Professor Lee A. Bygrave, Department of Private Law, University of Oslo
Luca Tosoni, Norwegian Research Center for Computers and Law, Department of Private Law, University of Oslo
Professor Vidar Halvorsen, Department of Criminology and Sociology of Law, University of Oslo
Doctoral Research Fellow Anders Narvestad, Department of Public and International Law, University of Oslo
Professor Alla Pozdnakova, Scandinavian Institute of Maritime Law, University of Oslo
Professor Shaheen Sardar Ali, University of Warwick
Professor Bert Jaap Koops, University of Tilburg
Professor Elise Poillot, University of Luxembourg
Professor Giovanni Sartor, European University Institute/University of Bologna
Professor Emeritus Carsten Smith, University of Oslo
Professor Lawrence Solum, University of Virginia
Design and typesetting: Type-it AS, Trondheim
Cover design: Scandinavian University Press, Sissel Tjernstad
ISSN online: 2387-3299
The journal is published by Scandinavian University Press (Universitetsforlaget) on behalf of the Faculty of Law at the University of Oslo.