General Observations on the Status of the Convention.
Denmark is well known to the Committee as the Member State that has been dealt with most times according to the Convention Article 14 (individual communications). It is also the country where individual complainants have been most success full, since the Committee four times has declared Denmark in violation with the Convention. 1
In the Concluding observations on the 16th. And 17th reports of Denmark in August 2006 the Committee encouraged the Danish government to reconsider its decision not to incorporate the Convention in the domestic legal order, in order to give full effect to the provisions of the Convention (CERD/C/DEN/CO/17 para. 10). The Human Rights Committee agreed in 2008 and found that the “State Party should reconsider its consideration” (CCPR/C/DNK/CO/5 para. 6).
The Government in the report restated that the Convention is a relevant source of law and is applied by the courts and other law applying public authorities, and therefore the Government does not consider it legally necessary to incorporate the Convention: “Since it is not considered legally necessary, the Government does not find it politically desirable either.” (CERD/C/DEN/18-19 para. 24f).
The Government does not offer any insight into why it is not politically desirable to incorporate the Convention. The Government merely reiterates that the method of implementation is immaterial and that unincorporated conventions “can be and are in fact applied by Danish courts and other law-applying authorities, which is also clear from printed case law.“
DACoRD fails to see a convincing application of the Convention in practice, and notes that there might be some practical differences, however, in the way the question is considered in reporting to international monitoring bodies and in everyday, domestic life. DACoRD notes that is a persistent claim by the Danish authorities that incorporation only is of only pedagogical and psychological effect. The Government may, however, admit – as it did in its 3rd report to CCPR that incorporation would be of informative value to the citizens.
The subject is addressed in some detail in the Danish core document, dated 20 April 1995, where it is stated:
103. Denmark has a "dualist" system under which international agreements to which Denmark becomes a party are not automatically incorporated into domestic law. When Denmark wishes to adhere to an international agreement it must, therefore, ensure that its domestic law is in conformity with the agreement in question. It is, however, not disputed that international law, including conventions, are a relevant source of law in Denmark. Provisions of human rights conventions are accordingly applicable before the Danish courts and administrative authorities.
104. During the late 1970s and the 1980s a debate took place in Denmark about the status of certain human rights conventions in Danish law, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights (ECHR) due to these treaties' special character as human rights treaties as opposed to other international agreements. The impact of the ECHR in the legislative process and before domestic courts was rather limited for a long period and it was cast into doubt whether the dualist approach hindered effective use and appliance of the ECHR before domestic courts. ...The ECHR is incorporated as an ordinary statute.... thereby generating a high degree of awareness of the human rights principles. The incorporation can be seen
1 CERD case No. 10/1997; 16/1999; 34/2004; 40/2007.