legislation is in accordance with the convention."4 This essentially brings the position of the government back to the classic Danish dualist framework and rules of interpretation from before the incorporation of the European Human Rights convention.
In a case which reached the Supreme Court the applicant made claim based inter alia on ILO Convention 29, challenging the conditioning of receipt of social benefits on the performance of compulsory labour. The Supreme Court that the ‘activation’ program did not constitute forced or compulsory labour within the meaning of the European Convention on Human Rights, Art.4 and as for the ILO C.29 the Supreme Court in accordance with the High Court below noted, that the ILO conventions “are not directly applicable in Danish law in the sense, that they could result in setting aside the rules on activation in the active [social policy, our add.] law.”5
As a final example involving a claim under ICERD reference is made to a case pending before the Supreme Court which concerns the starting allowance. The CERD Committee addressed this issue in the substance in its recommendation 18 in its concluding observations in 2006. (We shall return to the substance of the matter below under article 5 (e). In this case the applicant in the rejoinder to the Supreme Court emphasized that the explanatory report to the relevant legislation in Parliament had stressed that Denmark’s international obligations under human rights conventions had to be respected, and therefore challenged the distinction made by the counsel for the Crown between incorporated and non-incorporated conventions. In the rejoinder by the Crown counsel of 21 May 2010, the Crown agreed that in the legislative process no distinction is made, whether these international rules are incorporated into Danish law or not. However, in an ambiguous statement the Crown added: “but there is not necessarily identity between the significance of international rules in connection with the preparation of a bill of law and the application of these rules during a court case, cf for this UfR.2006, p. 770H” (The citation refers to the Supreme Court decision in the preceding paragraph).6 DACoRD find it difficult, at best to understand this statement; under the Danish Constitution, Section 64, the Courts or the judges are charged alone with the application of the law. However, according to the Crown statement the courts should not apply the law and its preparatory legislative reports, but rather the law as the Government sees fit (?). The Government should be stopped from an argument that does not tie Danish authorities to a loyal and effective application of Denmark’s international obligations.
A recent Supreme Court judgment of 13 Jan. 2010 suggests a differential application of arguments regarding non-incorporated Conventions. The case concerned a refused family reunion in connection with the requirement of more aggregate ties to Denmark compared to any other country and the exemption from this rule for persons who had been Danish nationals for 28 years. On the question whether this rule is discriminatory to members of ethnic minorities (cf. CERD 2006 Concluding observations no. 15) the Supreme Court split 4 to 3 in favour of
4Counsel for the Crown/Kammeradvokaten, Processkrift A, dated 25 May 2000, to the High Court, Eastern Division in case no. B-0342-98.
5 Supreme Court judgment of 5 Dec 2005 in the Law Weekly UfR.2006, p. 770H at For the applicant’s submission see p. 777, the reasons of the High Court at p. 780 and S.Ct. at 781.
6 Supreme Court Case no. 159/2009 Rejoinder of the applicant , dated 15 April 2010, p. 8, and rejoinder of the Crown Counsel on behalf of both the Municipality in case, and the Ministry of Integration, dated 21 May 2010 at p. 4. The applicant lost in the High Court eastern Division.