Constitutional Protection of National Minorities' Rights in Norway: Does It Matter?

Abstract

Rights of national minorities are not yet explicitly included in the Norwegian Constitution. However, since 1994, the Constitution of 1814 has included a general reference to human rights treaties. The Framework Convention on the Protection of the Rights of National Minorities is among the treaties Norway has ratified, and could as such be seen as being referred to in the Constitution. One of the suggested changes in the Constitution for its 200th Anniversary in 2014¹ paradoxically implied removing the 1994 constitutional reference to international human rights treaties (§ 110c until 13 May 2014), and by the same token, the sole reference to the rights of national minorities. Norwegian history reveals that – until recent times – groups who currently enjoy recognition as national minorities have previously experienced harsh assimilation policies, not least in the case of the Tater/Romani people. The persecution and exclusion of Jews, especially in the years after the inclusion of a prohibition against Jews in the Constitution of 1814, provides another example of repressive policies against national minorities. The constitutional reference to international human rights alone cannot protect against the persecution or discrimination of minorities, but it can remind us of the state's duty to respect and ensure human rights as defined by international treaties. Experiences from other countries also reveal that there is a general need for the democratically elected majority to limit its power in order to refrain from temptations to violate the rights of minorities or other inhabitants. The Constitution provides an opportunity for dealing with this fundamental democratic dilemma. The authors therefore welcome that on 13 May 2014, after considerable debate both between and within political parties, the parliament decided by a qualified majority to include the reference to human rights treaties in the opening paragraph of the new chapter on human rights of the Constitution (§ 92 which replaces §110c): “The State shall respect and secure human rights as enshrined in this Constitution and in human rights treaties which Norway is part of.”

Notes

1. Document 16 2011–2012 “Rapport til Stortingets presidentskap fra Menneskerettighetsutvalget om menneskerettigheter i Grunnloven” (19 December 2011) on the new §92, the main paragraph of the suggested new constitutional chapter on human rights.

2. Document 16 2011–2012, compare Document 12:30 (2011–2012), Document 12:31 (2011–2012).

3. Subjective identification is sufficient for recognition as a national minority in Norway. St. Meld. 15 (2000–2001).

4. This latter criterion excludes ethnic groups that are in a numeric minority situation but nevertheless in power, such as the whites during the apartheid regime in South Africa. See K Kjeldstadli, “Statens politikk overfor minoriteter – historisk og i dag”, in Ø. Kopperud, V. Moe & V. K. Banik (eds), Utenfor det etablerte (HL-senteret, Oslo, 2011), pp. 113–130.

5. European Framework Convention for the Protection of National Minorities (1993).

6. St. Meld. 15 (2000–2001).

7. St.prp. nr. 80 (1997–1998) and St. Meld. 15 (2000–2001).

8. Indigenous peoples are defined as the people that originally lived on the territory of a modern nation state, and do as such enjoy a fuller set of group rights than national minorities. First of all this may include particular rights to the use of parts of the territory where they have traditionally lived, which has been and still is conceived to be of fundamental importance to their particular way of life. National minorities do not have any such land rights. Instead, certain institutional arrangements may be warranted in order to help preserve the basis for the cultural identity of a national minority and/or awareness and knowledge of the assimilation policies or other violations the national minority has experienced.

9. St.prp. nr. 80 (1997–1998) and St. Meld. 15 (2000–2001).

10. Mosaiske trossamfund, with congregations in Oslo and Trondheim.

11. Hence, the Tater/Romani have an even longer history in Norway than the Gypsies/Roma people.

12. A Minken, Tatere I Norden før 1850. Sosio-økonomiske og etniske fortolkningsmodeller (Universitetet I Tromsø, Tromsø, 2009).

13. Norsk romani-/taterpolitikk : fortid, nåtid, fremtid. En menneskerettslig vurdering av hovedtrekk i norsk politikk i forhold til romanifolket/taterne (Den norske helsingforskomité, Oslo, 2009). See also B Hvinden (ed), Romanifolket og det norske samfunnet: følgene av hundre års politikk for en nasjonal minoritet (Fagbokforlaget, Bergen, 2000), . The Jews were, as mentioned above, excluded from the country in the first half of the 18th century, and again persecuted and deported during the Second World War. But also in the years between these two harshest periods, Jews experienced discrimination in various ways, compare e.g. JO Johansen, Det hendte også her (Cappelen, Oslo, 1984).

14. K Kjeldstadli, “Statens politikk overfor minoriteter – historisk og i dag”, in Ø. Kopperud, V. Moe & V. K. Banik (eds), Utenfor det etablerte (HL-senteret, 2011),.

15. This assimilation policy also affected the Kvens in the north, in particular in the latter half of the 18th century, since they were conceived to be a security threat due to their historical close ties to Finland. K Kjeldstadli, “Statens politikk overfor minoriteter – historisk og i dag”, in Ø. Kopperud, V. Moe & V. K. Banik (eds), Utenfor det etablerte (HL-senteret, 2011), .

16. E Smith, Konstitusjonelt demokrati (Fagbokforlaget, Bergen, 2009).

17. The Constitution was written as Norway reclaimed its independence following the union with Denmark from 1381 to 1814, and before entering into a union with Sweden from 1814 to 1905. Although the Monarchy was upheld by the Constitution of 1814, the National assembly (Storting), which would be directly elected by citizens, was among the new political bodies established by the Constitution. According to the 1814 Constitution, the National assembly should have legislative power and decide on taxation and state budgets. The establishment of the Storting indicated a clear break with the tradition of an absolute monarchy. It was – as well as the writing of the Constitution itself – inspired by the idea of sovereignty which had gained increasing impact particularly since the breakthrough of parliamentarianism in the last decades of the 19th century. The personal power and legal competence of the King were gradually reduced, granting more power to the government. With the development of parliamentarianism, the powers of the government were also reduced, making it dependent on the elected Storting rather than the King.

18. All changes to the written Constitution are made in a language similar to that of the original text of 1814, making it difficult for the public to distinguish between the original and new articles. In total, approximately two thirds of the original 1814 articles have been changed or replaced, compare E Smith, Konstitusjonelt demokrati (Fagbokforlaget, Bergen, 2009).

19. In the Constitution of 1814, §50, the right for men – above the age of 25 – to vote in parliamentary elections was first limited to state officials and those owning or renting “matriculated” land or other property of a certain size, and thus paying tax. An exception was, however, made in article 50(b), section 2 of the Constitution in 1821, in effect giving the same right also to Sami men in the north (“those living in Finmarken”) who did not own “matriculated” land, but had a long-standing right to use of land there for their herding: “Stemmeberettigede ere kun de norske Borgere, som have fyldt 25 Aar, have været bosatte i Landet i fem Aar, opholde sig der, og enten: a. ere, eller have været, Embedsmænd; b. paa Landet eie, eller, paa længre Tid end fem Aar, have bygslet matriculeret Jord; De som i Finmarken have været Rettighedsmænd i 5 Aar, og fyldt deres 25 Aar, bør, ligesaavel som de, der eie eller bruge matriculeret Jord, have Stemmerettighed.c. ere Kjøbstadsborgere, eller i Kjøbstad eller Ladested eie Gaard eller Grund, hvis Værdi i det mindste er 300 Rbdlr.” Many Jews residing in Norway after 1851 had property and consequently also received the right to vote. Until the general right to vote was introduced (for men in 1898 and for women in 1913), the right to vote did not in practice apply to the many Tater/Romani people who owned neither land nor other property. However, one may argue that this was similar to the situation of other poor, although, in some instances the Tater/Romani people experienced discrimination on the basis of their ethnicity and culture – both by the municipal authorities and the inhabitants of the local community – such as when trying to buy land or other property, compare an unpublished paper written for the Tater/Romani commission (Møystad 2013).

20. B Furre, Sant og visst: Artiklar, foredrag og preiker (Samlaget, Oslo, 1997).

21. In 2012, this section was moved to para 16 instead, as a part of the constitutional changes in paragraphs concerning state relations to religion.

22. A similar situation occurred in France in the making of the Declaration of Human Rights in 1789. There was a suggestion to include a general clause on equality before the law for all inhabitants. Questions then arose regarding what implications such a clause could have for legislation towards Jews in certain French regions, such as Alsace, where they did not enjoy the same rights as others. The result was that the general principle of equality before the law was not included, compare R Badinter, Libres et Egaux. L’émancipation des Juifs sous la Révolution française (1789–1791) (Fayard, , 1989).

23. Paragraph 2, section 1 of the 1814 Constitution confirmed the status of the Evangelical-Lutheran religion as the “public religion of the state”. In section 2 it underlined the duty of parents belonging to that religion to raise their children in the same faith. These sections were amended in 2012. Finally, in section 3, it excluded Jesuits, monastic orders and Jews from entering the Kingdom (“Den evangelisk-lutherske Religion forbliver Statens offentlige Religion. De Indvaanere, der bekjende seg til den, ere forpligtede til at opdrage sine Børn i samme. Jesuitter og Munkeordener maae ikke taales. Jøder ere fremdeles udelukkede fra Adgang til Riget”). A constitutional right to the free exercise of religion would also have probably made it necessary to amend the so-called “Konventikkelplakaten” from 1741, which likewise prohibited Christian (including Protestant) minorities outside the Evangelical-Lutheran state church to assemble and organise to practice their religion. This law was not changed until 1842.

24. Compare “Christian V Act of 1687.

25. F Ulvund, Fridomens grenser. Handhevinga av “jødeparagrafen” 1814–1820 (Scandinavian Academic Press, , 2014 forthcoming).

26. European Convention on Fundamental Human Rights and Freedoms of 1950 (Council of Europe). Norway ratified the Convention, though it first had to make a formal reservation to its para 9 on the right to freedom of religion or belief, due to the prohibition against Jesuits to enter the Kingdom. Parliament then decided to remove the prohibition.

27. “Det paaligger Statens Myndigheder at respektere og sikre Menneskerettighederne.Nærmere Bestemmelser om Gjennemførelsen af Traktater herom fastsættes ved Lov.”

28. International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR).

29. Convention on the Rights of the Child (1989) and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1976).

30. “Det paaligger Statens Myndigheter at lægge Forholdene til Rette for at den samiske Folkegruppe kan sikre og udvikle sit Sprog, sin Kultur og sit Samfundsliv.” In 1992, para 110b was added, stating the duty of the state to secure a “healthy environment” both for the inhabitants today and for coming generations “Enhver har Ret til et Milieu som sikrer Sundhed og til en Natur hvis Produktionsævne og Mangfold bevares. Naturens Ressourcer skulle disponeres ud fra en langsigtig og alsidig Betragtning, der ivaretager denne Ret ogsaa for Efterslægten”.

31. After Norway's ratification of the Framework Convention on the Protection of National Minorities (FCNM) in 1999, Norway put into place various models of economic compensation for national minority groups and individuals belonging to these groups for past assimilation policies where discrimination and human rights violations took place. Examples of compensation include establishing a fund for the Sami, a fund for the promotion of the Tater/Romani people's culture and a permanent exhibition on their history and culture at the Glomdalsmuseum, a Centre for the Kven culture and one for the Forest Finns. After the ratification of the FCNM, the Council of Europe Advisory committee on the FCNM has issued three opinions on Norway. In these opinions, the Advisory committee makes clear that there are still several challenges relating to the protection of the rights of national minorities in Norway, e.g. in relation to the Tater/Romani people. For instance, the committee refers in its 2011 opinion to experiences of discrimination in camping places and lack of recourses for the Equality and Non-discrimination Ombud (Likestillings- og diskrimineringsombudet) to follow up and help prevent this and other forms of discrimination of national minorities. The committee also refers in its 2011 opinion to challenges in relation to accommodation of the needs of the Roma and the Romani/Tater children in public schools. The committee also pointed at weaknesses in the systems for individual compensation for Tater/Romani persons for their experiences. The appointment of the Tater/Romani commission in 2011 may be seen as a way of responding to this critique, as well as to suggestions for establishing such a commission by various national actors, e.g. the Helsinki committee and the Tater/Romani organisations.

32. Constitutional amendments require, according to article 112, a two thirds majority. Furthermore, suggestions for constitutional changes must be presented in written form before a parliamentary election, and will be decided by the new parliament (both within the first three years of the four year session): “Viser Erfaring, at nogen Del af denne Kongeriget Norges Grundlov bør forandres, skal Forslaget derom fremsættes paa første, andet eller tredie Storthing efter et nyt Valg og kundgjøres ved Trykken. Men det tilkommer først det første, andet eller tredie Storthing efter næste Valg at bestemme, om den foreslaaede Forandring bør finde Sted eller ei. Dog maa saadan Forandring aldrig modsige denne Grundlovs Principer, men alene angaa Modifikationer i enkelte Bestemmelser, der ikke forandre denne Konstitutions Aand, og bør to Trediedele af Storthinget være enige i saadan Forandring. En saaledes vedtagen Grundlovsbestemmelse underskrives af Storthingets Præsident og Sekretær og sendes Kongen til Kundgjørelse ved Trykken som gjældende Bestemmelse i Kongeriget Norges Grundlov”. The underlying idea behind this procedure is that the people shall be given time to form and state their opinion on constitutional changes through their votes in parliamentary elections.

33. These changes were a part of the constitutional reform aiming to change the relationship between the state and the majority religion. Paragraph 2, section 1 on the Evangelical-Lutheran religion as the official religion of the state was amended, and section 2, on the right to free exercise of religion, was moved to para 16. This was also was amended to include a new section stating that the Evangelical-Lutheran Church remains Norway's “Folk Church” and that it shall, “as such” receive state support, as shall other faiths and life-stance communities.

34. See above.

35. See Innst. 169 S (2012–2013).

36. Document 16 2011–2012.

37. A new §92, compare Document 16 2011–2012.

38. Document 16 2011–2012, at 66–67.

39. Document 16 2011–2012, at 67: “Det paaligger Statens Myndigheder at respektere og sikre Menneskerettighederne saaledes som de er nedfældede i denne Grunnlov og I for Norge bindende Traktater herom.”

40. Compare article 112 of the Constitution (see footnote 31).

41. Document 12:30 (2011–2012), Document 12:31 (2011–2012). In addition to these alternatives, Parliament may keep the current formulation of §110c and just change the provision number in order to make it a part of the suggested new human rights chapter E.

42. “Det påligger statens myndigheder at respektere den enkeltes kulturelle identitet, og legge forholdene til rette for at den enkelte kan delta i kulturaktiviteter og oppleve et mangfold av kulturuttrykk”, compare §107 in the suggested new list of human rights, Document 16 2011–2012 (at 259).

43. B Hvinden (ed), Romanifolket og det norske samfunnet: følgene av hundre års politikk for en nasjonal minoritet (Fagbokforlaget, Bergen, 2000), .

44. P Haave: Sterilisering av tatere 1934–77. En historisk undersøkelse av lov og praksis (Norges Forskningsråd, Oslo 2000).

45. These rights are for instance enshrined in the ICCPR (respectively articles 8, 17, 23 and 27), and most of them also in the ECHR.

46. “På vegne av norske myndigheter beklager jeg sterkt fortidas overgrep. Noe lignende må aldri skje igjen. Norske myndigheter har mye å skamme seg over ovenfor romanifolket.” This regret and apology was repeated in the white paper on national minorities in 2000. St.Meld. nr. 15 (2000–2001) Nasjonale minoritetar i Noreg – Om statleg politikk ovenfor jødar, kvener, rom, romanifolket og skogsfinnar. As a part of its compensation for violations in the past against the Tater/Romani people, the government of Norway financed a permanent Exhibition (“Latjo Drom” at Glomdalsmuseet) of the Tater/Romani culture and history in Norway, to help preserve the basis for their cultural identity as a national minority, and awareness and knowledge of the assimilation policies or other violations endured.

47. The Center for Studies of Holocaust and Religious Minorities (Senter for studier av Holocaust og livssynsminoriteter/HL-senteret) was established by this funding (“Jødebooppgjøret”)

48. The actions of the democratically elected Nazi Government in Germany before and during the Second World War may be one of the worst and clearest examples on the dangers of a procedural and majoritarian democracy without constitutional protection or other implementation of fundamental human rights, including the rights of minorities. Roma/Gypsies and Jews were the groups particularly affected by the fascist regime during the Second World War. New research indicates that there were also some Tater/Romani people that were among those deported from Norway to Germany during the war, compare P Haave, “Om forholdene under den tyske okkupasjonen av Norge” (unpublished paper written for the Tater/Romani Commission, 2013).

49. Modern democracy is – or at least should be – more than majority rule. “Demos” means people, and that includes all inhabitants, the majority and the minorities, as well as those without the resources or will to express how they wish to identify themselves.