Harmonising Human Rights Law and Private International Law through the Ordre Public Reservation: the example of the Norwegian Regulation of the Recognition of Foreign Divorces

2.2.1 Introduction

In light of the demographic development Norway has seen over the last few decades, human rights questions arise that also have relevance for private international law. In a world where people move, travel, marry and divorce across borders in ever-increasing numbers, the relevance of private international law has risen accordingly. Statistics show a large increase in immigration to Norway from Asian and African countries based on family reunification.¹¹ Compared to Norway, many of these countries have significantly different legal systems in terms of the protection they offer against discrimination.¹² This is interesting because when both the number and the character of marriages with connections to other legal cultures increase, vulnerable parties in these marriages risk having their rights violated.¹³

From a legal viewpoint, the steady incorporation of international human rights protection against discrimination based on gender into positive Norwegian law necessitates a stronger focus on human rights in legal cases concerning private international law.

Furthermore, there is reason to highlight the strong formal status of the right to protection against discrimination in the Norwegian legal system, both in the Constitution¹⁴ (section 98) and in the Human Rights Act, and how that right applies to ordinary law. The Human Rights Act section 3 reads: ‘The provisions of the conventions and protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them’.¹⁵ Therefore, in a Norwegian legal context, human rights law – and CEDAW is one of the incorporated conventions – should be applied independently in relevant private international law cases.¹⁶ In the next paragraph (2.2.2), the right to protection against discrimination in CEDAW will be presented, followed by an examination of the challenges that this poses and the potential this right has in relation to private international law (2.2.3).

2.2.2 The prohibition against discrimination guarantee in CEDAW

The main elements of the protection against discrimination guarantee based on gender require elucidation. Prohibited discrimination against women is defined in CEDAW Article 1 as ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose’ of violating a woman’s human rights. The concept consists of two main types (direct and indirect discrimination), referred to in the definition as ‘purpose’ and ‘effect’.

Direct discrimination is when a person, on prohibited grounds, is treated worse than another is treated, was treated, or will be treated, in a comparable situation.¹⁷ Direct discrimination entails the meting out of differential treatment without an objective and reasonable justification.¹⁸ Direct discrimination is prohibited in all international human rights conventions, which state that there shall not be differential treatment on the basis of certain specified grounds such as sex, race, sexual orientation or religion.¹⁹ Indirect discrimination, on the other hand, is when an otherwise neutral treatment disadvantages people in practice who share a characteristic, such as sex, race, sexual orientation or religion, which constitutes a prohibited ground.

The wording of CEDAW Article 1 refers to the whole spectrum of human rights: both in the civil and political area as well as in the arena of economic, social and cultural rights. Furthermore, there is, in line with Article 3, an additional obligation for states parties to ensure the full development and advancement of women ‘for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men’. The protection against discrimination guarantee is thereby both broad and finely meshed. And it is further developed in the prohibition against structural discrimination and gender stereotypes in CEDAW Articles 2(f) and 5(a).

The concept of structural discrimination denotes structures such as ‘laws, regulations, customs and practices which constitute discrimination against women’ as mentioned in the CEDAW Convention Article 2(f). Furthermore, Article 5(a) states that state parties shall take all appropriate measures:

to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

The starting point for the prohibition against structural discrimination is thus taken to be the foundation of discrimination – where the assumed difference in character between individual acts and structures that cause discrimination is decisive for how discrimination should best be understood. The aim is to make progress towards the elimination of discrimination.

The concept of structural discrimination is important for understanding the character of discrimination. It illuminates the underlying forms of discrimination that otherwise may have remained invisible, were the direct and indirect tests to be applied alone. It also facilitates a more general and societal analysis of the nature and scope of discrimination. In my view, the concept of structural discrimination should therefore be applied in tandem with the direct/indirect tests. It is useful because of its attention to underlying structures, which are often the sources for discrimination. The CEDAW Committee has, on several occasions, found violations of Article 5(a) in individual views. These judgements demonstrate the usefulness of the concept of structural discrimination. Where intrinsic structures are present in cases concerning women, they become visible through the lens of Article 5(a) (as well as the more general Articles 2(d–f)).²⁰

The right to protection against discrimination in marriage and family life is asserted specifically in CEDAW Article 16, which includes a general demand for states parties to eliminate discrimination within marriage and family life. This is followed by a list of specific demands the states parties must meet. Alternative (c) prohibits discrimination against women upon the dissolution of marriage, stating that:

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(c) the same rights and responsibilities during marriage and at its dissolution.

Article 16, read in conjunction with the general provisions in Articles 1–5, as highlighted above, provides the normative framework for the further examination below of the impact of the assessment of the ordre public reservation in Norwegian family law.

2.2.3 Challenges in applying the protection of discrimination guarantee in private international law frameworks and concepts

3.1.1 Regulation of foreign divorces in Norwegian law

A case of recognition of a foreign divorce in Norway arises when a marriage – that has been contracted or recognised in Norway – is dissolved in a foreign country and recognition for the divorce is sought in Norway.³⁹

The starting point in Norwegian law is that a foreign divorce is recognised.⁴⁰ This general unwritten rule was codified specifically regarding foreign divorces in 1978 through the Foreign Divorce Act.⁴¹ The law was a result of the ratification of the Hague Convention on the Recognition of Divorces and Legal Separations.⁴²

The question of the recognition of foreign divorces is therefore regulated by international law through both international private law regulations as well as international human rights law. Article 10 of The Hague Convention contains an ordre public reservation which is formulated, as is common in the Hague conventions, as a narrow exception; in that the contracting states may refuse recognition when ‘such recognition is manifestly incompatible with their public policy’ (‘ordre public’). Furthermore, there is a separate section for the refusal of recognition based on procedural grounds in Article 8 of the Convention. It is possible, therefore, to apply the protection against discrimination guarantee, as stated in international human rights law, in the interpretations of the reservation clauses of the Hague Convention. However, the Convention was drafted prior to the UN’s Women’s Convention and before the theme of women’s human rights was put on the international human rights agenda, and there has been (in Norway, as elsewhere) little focus on human rights regulations in the assessments of the ordre public reservation. The ordre public reservation is a dynamic category, however, and this means that in principle there is no obstacle to considering these human rights as part of the ordre public.⁴³

According to section 1 of the Norwegian Foreign Divorce Act (which incorporates the Hague Convention into Norwegian law), a divorce or separation obtained in a foreign country that has binding force there is also valid in Norway, in so far as at least one of the spouses had either domicile, residence or citizenship in the foreign state when the case for divorce was admitted there.

As regards the Foreign Divorce Act section 1 therefore, a valid talaq divorce from a foreign country would be valid as long as the attachment requirements in section 1 were fulfilled. The main rule in section 1 is modified in section 2, which states that a ‘[f]oreign divorce is not valid in the realm if this would appear manifestly offensive to Norwegian public policy (ordre public)’ (author’s translation).⁴⁴

The decisive question therefore is whether a talaq divorce should not be recognised because it is ‘manifestly offensive’ to the ordre public reservation.

Normally, it is the result of the foreign rule that must be assessed as far as the ordre public reservation is concerned. This is a well-established rule that is recognised both internationally and in Norwegian law.⁴⁵ This doctrine makes it necessary to look at each case separately, since it is not the rule itself that is of the essence, but the result that the rule is used to justify.⁴⁶ This starting point is modified, however, when it comes to certain aspects of procedural law when the foreign decision is produced by unacceptable procedural rules. This is in line with an ordre public reservation demanding that the principle of due process be upheld.⁴⁷As will be further explained below, it is often the underlying reasons for the talaq divorce as well as procedural elements of how the talaq divorce is regulated, rather than the direct result of the regulation of talaq divorce, that is problematic when compared to the Norwegian public order.

Moreover, the attachment of the case to Norway is normally seen as crucial to the ordre public assessment in general: the case in hand must have an attachment to Norway.⁴⁸ However, this line of reasoning does not always correspond well with the principle of universal application in human rights law, as will be further examined below.

3.1.2 Administrative practice regarding the recognition of foreign divorces

In addition to a traditional legal analysis of the situation, I have examined the actual administrative practice of the recognition of foreign divorces at the County Governor of Oslo and Akershus (CGOA): in Norway, the County Governors are the delegated authority that decides whether a foreign divorce is valid.⁴⁹

The research was carried out by examining all of the case files involving the recognition of divorces that had been decided on at the CGOA over the previous five year period. There were only a few cases relating to Pakistani divorces; approximately two each year out of a total case load of approximately 400 annual cases. However, these cases raised important questions relating to the protection against discrimination guarantee.

Furthermore, an important legal document in relation to the assessment made by the County Governor in these cases is Circular 19/2004 concerning the application of the Foreign Divorce Act.⁵⁰ Circulars are guidance documents from the governing ministry regarding the interpretation of laws and regulations. The circulars possess little interpretative weight, but may still have a considerable impact on administrative practice concerning the laws and regulations. Circular 19/2004 examines the talaq cases that are more closely related to the ordre public. The administrative practice of the County Governor is in accordance with the guidelines of the circular on this point. These materials (the law, the circular and the administrative practice) constitute the subject of the next section, where the procedure for the recognition of talaq divorces in Norway is analysed closely in the light of the right to protection against discrimination.

3.2.1 Introduction

The examination of the regulation and practice of the talaq divorce in the Pakistani legal system, presented earlier, indicates that there is considerable insecurity around a woman’s right to protection against discrimination and the right to a fair trial in Pakistani talaq divorce proceedings. Moreover, there are practical barriers for women to divorce and features of the procedure of divorce are problematic. This highlights the importance of examining the situation of the women involved in divorce cases from Pakistan in order to gain information about the risk for discrimination in each case.

The problematic features of the talaq divorce have traditionally not been regarded as sufficient reason not to recognise the divorce in Norwegian law, however. The preparatory works of the Foreign Divorce Act consider that, as a main rule, the talaq divorce should be recognised.⁵¹ However, this was modified in Circular 19/2004, and administrative practice changed in certain respects. It is to these issues I now turn.

Two themes arise in what follows. Firstly, I examine the elements that have been given decisive weight in the assessment of the ordre public in the recognition procedure; that is, the parties’ connection to Norway and consideration of the procedural guarantees of the underlying foreign divorce case. Secondly, I examine more closely the procedural guarantees afforded to women in the recognition cases in Norway. The lack of procedural guarantees in these recognition cases (guarantees that are normally granted to parties to administrative cases in Norwegian law) is examined for its effects on the correctness of the ordre public assessment of the foreign divorce.

3.2.2 The focus on the attachment of the parties to Norway

Circular 19/2004 considers the attachment the parties have to Norway as the most important factor when deciding whether a talaq divorce should not be recognised due to the Norwegian ordre public.⁵² A strong attachment indicates that the talaq divorce should be struck down as contradictory to the Norwegian ordre public, whereas a weak attachment points towards its recognition. Additionally, it is stated that every case must be considered from different aspects. It is difficult to make an exhaustive list of these, but a factor such as how long the different spouses have lived in Norway and Pakistan is seen to be decisive.

Such an explicit and overarching focus on attachment in the assessment of the ordre public reservation has been criticised in private international law scholarship.⁵³ This attachment doctrine – known in private international law theory as the doctrine of ‘relative territoriality’ of ordre public – has been regarded as unsatisfactory, because, for example, the nature of fundamental principles should be independent of the criterion of geographical connection.⁵⁴ Theories within human rights law, namely the doctrine of the universality of human rights and the nature and scope of obligations of member states to human rights conventions, underline the arguments behind this critique.

In general, the focus on geographical connection does not correspond well with the basic idea that those who are most vulnerable must receive extra attention in order for their rights to be adequately secured.⁵⁵ The longer a woman has stayed in Norway, the more likely it is she speaks Norwegian and is acquainted with her rights according to the Norwegian legal system and society. In view of such a picture, and in view of the state’s obligation to fulfil the human rights of women without discrimination based on gender, the decisiveness of the attachment criterion in the assessment of the ordre public reservation in section 2 of the Foreign Divorce Act is problematic.

Norway, as a state party to different human rights conventions, has a responsibility for its actions, even when those actions have consequences outside of Norway. Most relevant to this issue of how far state obligations reach, are CEDAW Article 2 and ICCPR Article 2. The CEDAW Committee General Recommendation no 28 (2010) para 12 states: ‘States parties are responsible for all their actions affecting human rights, regardless of whether the affected persons are in their territory.’ This is also the understanding of the UN Human Rights Committee concerning the ICCPR, as stated in General Comment no 31.⁵⁶

3.2.3 The procedural ordre public reservation

Furthermore, the procedural ordre public reservation is of relevance to the recognition of talaq divorces because such divorces often come into being without due process. Women may not have access to the relevant information and—unlike men—cannot dispute the divorce.⁵⁷ The Hague Convention has a separate article (Article 8) concerning the procedural ordre public:

If, in the light of all the circumstances, adequate steps were not taken to give notice of the proceedings for a divorce or legal separation to the respondent, or if he was not afforded a sufficient opportunity to present his case, the divorce or legal separation may be refused recognition.

The two procedural elements that are required are therefore the right to be notified of the proceedings for the divorce and the right to contradiction. The talaq divorce has, in legal documents and legal literature, been looked upon as problematic in this regard.⁵⁸ Proceedings of the Pakistani system may contradict the right to protection against discrimination and the principles of due process. This shows that it is necessary to look at each case in its own right to determine whether it is contradictory to the ordre public norm.

Circular 19/2004 recognises that a legal system containing the talaq divorce is contradictory to general rules for administrative and court procedures, such as the principle of contradiction, procedural notification, the right to appeal and other rights of the party [partsrettigheter].⁵⁹ However, notwithstanding these denials of due process, it is the attachment of the parties to Norway that is seen as the essential element when deciding whether the divorce should still be recognised.

The question arises as to whether the divorce itself is contradictory to the ordre public – because it is reserved for men only, and there is no equivalent access to divorce granted to women in the Pakistani legal system.⁶⁰ Due to its inherently discriminatory nature, the Pakistani talaq divorce should still be discussed in relation to the ordre public reservation. Otherwise, how could the basic underlying principle of the Norwegian ordre public of non-discrimination be upheld in these cases?

This indicates that the doctrine of looking solely at the result of the case in hand or whether the rules of due process have been fulfilled is not adequate. After all, the ordre public reservation is supposed to uphold basic values underpinning the legal system, of which the protection against discrimination constitutes a central part. It is important to consider that other indirect results from the decision, not normally regarded as relevant for the assessment of the ordre public, may in fact be crucial in determining whether the protection against discrimination guarantee has been upheld.

There is a parallel line of reasoning that has been applied in another field of law – that of commercial arbitration. This concerns the ordre public doctrine with regards to the principle of immorality and its effects in private international law. The underlying idea is that an arbitral award that gives effect to an illegal contract may still be deemed to violate the ordre public, even though the direct effect of the award is simply to move money from one party to another and in itself is not in conflict with the ordre public.⁶¹

Applying this reasoning to the recognition of talaq divorces by Norwegian authorities, one may look upon such divorces as an acknowledgment of men’s unique access to divorce, which in turn may contribute to upholding social norms that women are less worthy of a divorce than men.⁶² These social conceptions of men and women are in stark contrast to the gender stereotypes that Norwegian authorities, according to CEDAW Articles 2(f) and 5(a), are obliged to combat with all appropriate measures.

3.2.4 Procedural guarantees afforded in the recognition procedure

An examination of the case files, as well as empirical data on women who have been taken back to their country of origin and left there against their will, reveals a palpable need to see the situation of the individual woman more fully in order to decide if the ordre public reservation should be invoked in divorce recognition cases.

In this lies a demand to ensure that the woman’s rights, both according to internal Norwegian law and human rights law that Norway is party to, are respected. We also need to determine whether there are specific aspects of the cases in question that contravene the prohibition against discrimination.⁶³ However, when examining the guidelines in Circular 19/2004, which actual administrative practice follows, it becomes clear that women who are parties to Pakistani talaq divorces and who no longer reside in Norway, will be given no party rights to the case, as is customary in administrative law cases.

The Public Administration Act contains specific procedural requirements concerning party rights: the party’s right to advance notification, the right to acquaint themselves with the documents in the case, the right to be notified about the administrative decision and the right to appeal, for instance. However, these rights are severely limited when it comes to the other spouse in cases of the recognition of foreign divorces.

In Circular 19/2004 (18), it is simply stated that it is seen as ‘obviously unnecessary’ to notify the other spouse of the case, when the divorce in question is final in the country where it has been issued.⁶⁴ Additionally, it is stated that it has not normally been seen as necessary to notify the other spouse of the divorce recognition decision either.⁶⁵ The responsible ministry maintains that these exemptions to party rights are made because it would be ‘obviously unnecessary’ to notify the other party and furthermore that the decision ‘does not cause any harm or inconvenience to the party concerned’.⁶⁶ No further reasons are given to substantiate these assessments.

This means that the wife, in practice, is not able to challenge the foreign case when it ‘travels’ to Norway as an acknowledgment case. Indeed, she will have no notification of the case whatsoever. This nullifies the means by which Norwegian authorities can determine whether the ordre public reservation in the Foreign Divorce Act should be applied. As previously noted, often the divorce is not struck down as contradictory to the ordre public because of the assumed lack of attachment of the wife to Norway. She is regarded as having made a change of domicile due to the move back to Pakistan, whereas in reality there may have been no change of domicile, as the move may not have happened voluntarily. Therefore, the lack of information about the situation of the wife may result in an incorrect assessment of the ordre public reservation, despite the authorities faithfully following the original guidelines of Circular 19/2004 on this matter.

A notification of the case would enable the wife to pursue the rights she has according to Norwegian law. Such a notification would enable the wife to contact the County Governor’s officials, who have an independent duty to help her safeguard her own interests in the best possible way. Such steps may include her right to come back to Norway, to secure an independent stay permit, rights regarding the partition of assets in the Norwegian legal system, opportunities to get in contact with the police or other agencies – to report violence, for instance. The County Governor could direct her towards other government agencies or branches, such as the Norwegian Embassy in Pakistan or the Directorate of Immigration (UDI), which might provide her with assistance and information regarding her rights.

These omissions indicate that the reasoning for exempting party rights in these cases – based on this not being to the party’s disadvantage – is incorrect.