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two cases.


An update to the above survey in the Committee report was published by the electronic law journal Rettid of the Faculty of Law at the University of Aarhus, in 2005. This survey covered cases published by the Law Weekly (Ugeskrift for Retsvæsen) from no. 26/2001 until 15 Aug. 2005. The survey reported cases concerning the European Convention on Human Rights on p. 61-116; while other human rights conventions were reported on p. 116-119. Of the four cases reported under this heading, none – according to the summary – concerned the ICERD, even though one – the Thule case – actually was argued in part on both this Convention and ICCPR.


Both the Committee on the Elimination on Racial Discrimination and the Human Rights Committee have expressed their concern in concluding observations since 1996-2008 over actions in the Thule case “a particularly grave example of situations where populations, usually indigenous populations, have been removed from their territory” (CERD/C/SR/1785 para. 50), but where “the Danish courts had not given their arguments the weight they deserved (ibid). In the claims document in this case both the ICERD and the CCPR had been cited as “international sources of law” and the CERD General Recommendation XXXII on Indigenous Populations had been submitted during the hearings in the Supreme Court – and the taking of their traditional lands had been designated as a continuing violation. These references to unincorporated conventions were not, however, reflected by the Supreme Court. Yet following the suggestion by the Crown Counsel, the Court opted to put premium value on a non-binding Danish declaration upon ratification of yet a 3rd unincorporated Convention (ILO 169 art. 1) in order vest all human rights entitlement in the hands of the Home Rule Government, to the effect of preventing the Thule Tribe as a previously recognized entity, of any identity as a separate group capable of vindicating its traditional rights, despite the tribe’s own perception to the contrary (CCPR/C/DKN/CO/5 [2008] para. 13). Thus, the Supreme Court managed to put the indigenous Thule Tribe in ‘an adverse special status compared to the population at large” (reasons of the plenary of the Norwegian Supreme Court in the Mandalen Case (2001) which was also submitted to the Danish Supreme Court in the case to no avail, compare ICERD Art. 5(d)(v).)


Apart from the general overview of court practice from 1992-2005 a few concrete examples may add to the understanding of the comparatively weak position of unincorporated human rights conventions in Denmark and of the obstacles encountered when trying to argue these conventions against State policy and law.


In two unpublished judgements from the High Court, Western Division, the Crown counsel countered pleadings based on ILO human rights conventions that since the provision of the act was clear "it is without importance for determining the case, whether the conventions discussed may have been violated, since the conventions are not incorporated into Danish law."3


The argument is brought a little bit further by the Crown argument in a different case which also draws on CCPR, incl. art. 26: "It is, however, without importance for deciding the case, whether this convention may have been violated. [The Convention....] has not been incorporated in Danish law and thus cannot be applied directly before Danish court. The only legal effect of the Convention is, that in case of doubtful construction, the presumption is, that Danish

3unpubl. J. of 10 Dec. 1999, in case no. B-0268-99 and B-2144-97, Dansk Magisterforening som mandatar for X, v. Arbejdsmarkedsstyrelsen and Silkeborg Kommune respectively, at p. 2.

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