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

This article examines the impact of the protection against discrimination guarantee in family law cases that raise questions related to private international law. The steady incorporation of international human rights protection against gender discrimination into positive Norwegian law implies a stronger focus on human rights in legal cases in which private international law is applied. The focus of the article is on the ordre public reservation as a means of harmonising private international law rules and human rights rules. This is illustrated by assessing the interpretation of the ordre public reservation in the recognition of foreign talaq divorces in Norway. This interpretation rests on human rights law, as it has been understood and implemented in Norwegian law, in legal scholarship and by administrative authorities. The findings suggest that the one-sided focus on connection in private international law should be altered to align better with the unilateral protection against discrimination that follows from international human rights law. Accordingly, the strong focus on the result in the assessment of the ordre public reservation should be altered to capture more fully the procedural and underlying regulations informing cases of a discriminatory nature.