Explaining national judicial attention to international human rights: How the Supreme Court of Norway uses the European Convention of Human Rights

How do national supreme courts engage with the European Convention on Human Rights (ECHR) and its caselaw? From a doctrinal perspective, a substantial literature has addressed how national courts have applied the ECHR in the domestic setting. However, we lack systematic empirical knowledge about the factors that shape how national courts apply and develop the ECHR. Judicial attention to the ECHR in national courts is likely to be produced through complex interactions between individual applicants, national political and legal systems, and the ECtHR (Keller & Stone Sweet, 678). This complex of interactions potentially involves systemic pathologies generating rights violations; gaps in domestic rights protection; the resources and politico-legal opportunities available to potential litigants; jurisprudential developments in the ECtHR; and the preferences of individual judges. Contributing to determining how domestic judicial attention to the ECHR is influenced by these complex interactions, this paper empirically assesses ECHR citation patterns on the Supreme Court of Norway (SCoN) from 1970 to 2015. We develop a theoretical argument linking changes in citation patterns to domestic institutional developments, the ECtHR’s evolving caselaw, and the backgrounds of individual judges. Specifically, we examine how judicial attention to the ECHR covaries with discretionary docket control and incorporation of the ECHR into national law; ECtHR judgments finding against Norway or its neighbouring Nordic states; and the professional background of SCoN judges, such as prior careers in academia or government administration. To test our argument, we perform a time-series analysis on a dataset combining ECHR litigation in SCoN, measuring both total citations of the ECHR and citations of specific ECHR articles, and key ECtHR judgments involving Norway or its proximate states.