The Danish Institute for Human Rights and the Copenhagen Declaration – a Reply to Helga Molbæk-Steensig

In her blog post “Is Something Rotten in the State of Denmark?” (VerfBlog 2018/4/26), Helga Molbæk-Steensig analyses the making of the Copenhagen Declaration; the most important outcome of the Danish chairmanship of the Committee of Ministers of the Council of Europe. Molbæk-Steensig agrees with most commentators that the declaration does not reflect the Danish government’s “strong discourse of sovereignty and democratic deficit in the Danish debate“.

We certainly agree on this point, but we cannot agree with Molbæk-Steensig when she claims that we – Denmark’s national human rights institution – played a passive, or even negative, role during the making of the declaration. We especially disagree when Molbæk-Steensig implies that we somehow legitimise a far-right narrative designed to limit the system of human rights protection in Europe or subscribe to a reductionist concept of democracy.

In fact, our active involvement in initiating and facilitating discussions has arguably contributed to a declaration, which in a number of ways strengthens the European system of human rights protection and, markedly, avoids following a populist path. We are mandated to provide advice to the Danish Government and Parliament on human rights matters, and our activities related to the drafting process have, in full, accorded with that mandate.

Commitment to democratic dialogue

The Danish Human Rights Institute is of course deeply committed to the protection and promotion of human rights. We feel a strong sense of obligation to participate in the contemporary debate on the future of the European Court of Human Rights – and of human rights in general. It is the position of the institute, as confirmed by its Board of Directors, that we aim to safeguard democratic institutions, protect the independence of courts and the rule of law, and maintain that human rights apply to all human beings.

We believe that Europe needs a strong international human rights system based on the integrity and authority of the European Convention and the European Court of Human Rights. The Court has played a crucial role in the development of modern Europe. The Court is a unique guarantor of human rights and it has played, and continues to play, a pivotal role in the successful development of new aspects of human rights law.

However, the dire political reality of contemporary Europe is that the political winds are changing, and that the authority of the Court is being challenged. The Court’s president, Guido Raimondi, put it as follows in a speech held in Nijmegen in November 2016. Having addressed the serious challenge of the Court’s case-load, Raimondi continued:

“The second challenge is of a different nature. It is essentially a political one. The challenge is to the very idea of the Convention system. It questions the authority, and even the legitimacy of the European Court of Human Rights. You will no doubt remember how, a few years ago, the European Court was under high-profile attack from certain countries and certain quarters. If this is less visible now, it is only because other, bigger targets are being pursued, meaning the whole European project. But the challenge to Strasbourg remains. It takes aim at what is said to be a judicial activism at the European level, over-reaching by a judicial European institution, over-riding national democracy and over-turning national decisions.”

It is too often forgotten, or simply ignored, that the European system of human rights protection is facing resistance. The Danish Institute for Human Rights believe that this challenge has to be taken seriously. It would be irresponsible of us not to take the critique seriously – even when the critique goes too far.

We believe that we – as Denmark’s national human rights institution – have an obligation to future proof the system by securing an ongoing political ownership of the Convention and the Court. If the European politicians distance themselves from the human rights system, the system may eventually break down. Before that happens, we have to defend the system by initiating and qualifying, not shying away from, political debate.

We also think that it should not be forgotten that the Court has been one of the key drivers of the ongoing debate on its role. In 2003, then president Luzius Wildhaber proposed a reform agenda arguing that the Court should be enabled to focus its resources and deliver far fewer judgments. Wildhaber’s ideas did not, at the time, gain political traction.

In 2009, then president Jean-Paul Costa proposed that a major political conference be held to articulate a new commitment to the Court. Costa found this to be the best way of giving the Court a reaffirmed legitimacy and a clarified mandate. The Interlaken process followed and the Danish Government decided, in 2016, to take stock of the development – and to pursue its own political agenda within the framework of the ongoing debate.

Protection the Court against far-reaching proposals

The Danish Government’s motivation was, as spelled out by Molbæk-Steensig, in part motivated by the perceived unreasonableness of the developing practice in Europe and Denmark in respect of expulsion of criminal foreigners. The Government’s discourse was at times harsh, and the political debate in Denmark witnessed the emergence of rather radical propositions, including various ideas promoted by professor Mads Bryde Andersen, who argued e.g. that Denmark could simply ignore the Court’s judgments as other states seem at times to do. As anyone familiar with the public debate in Denmark will know, we clearly advocated against far reaching ideas. We expressly agreed with General Secretary of the Council of Europe, Thorbjørn Jagland, who warned against a nationalistic and populist narrative that could undermine the European institutions.

Clearly, the debate on the future of the human rights system is not an easy one. The institute decided, on the basis of a very thorough debate in the Board of Directors, to support the ongoing reform-process as delineated in the 2012 Brighton Declaration.

In this regard, we further emphasised that the Council of Europe should step up its efforts to address the Court’s case-load, just as ways should be found to further secure the authority of the Court. We clearly stated that we could not support a roll back in the level of human rights protection, just as we warned against any process entailing a renegotiating and deterioration of rights. Readers familiar with the Danish language are referred to our various interventions in Danish media, in particular the op-ed of 28 March 2017 in daily Politiken.

The Copenhagen Declaration

The Copenhagen Declaration addresses, in essence, seven issues in a fair and balanced manner.

1. States reaffirm their deep commitment to the Convention (para 1) and point to implementation and execution of judgments as the most important issues (paras 12-18 and 19-25).
2. States recognised their part of the shared responsibility (§§ 6-11) and point to the need for democratic ownership of the Convention (paras 10 and 33).
3. States support the Court’s development of the principle of subsidiarity (paras 26-32), including the practice developed in judgments such as von Hannover and Ndidi (para 28.c).
4. States stress the need for dialogue and aim in particular to increase third party interventions (paras 33-41).
5. States highlights the caseload as a continued cause for serious concern and promotes the analysis of the Court’s caseload (para 42-54), which had – in our view unfortunately – not been a priority of the Steering Committee until now.
6. States supported the further development of the procedures regarding election of judges (paras 55-62).
7. States reaffirmed the importance of EU accession (§ 63).

We have used our mandate as Denmark’s national human rights institution to promote an agenda of improved human rights protection. In particular, we helped the Danish government organise two international conferences in April and November 2017 aimed at fleshing out the practical and realistic ways forward. A number of academics as well as civil society organisations participated in these events, as did members of the steering Committee and other civil servants as well as judges of the Court. Professor Mikael Rask Madsen of the University of Copenhagen was another key advisor in these matters.

Helga Molbæk-Steensig rightly points out that “the Copenhagen Declaration has turned out to be a lot less dramatic than the original draft”. We believe that this is in part due to our efforts, including by way of advisory services on legal matters provided to the Danish Government. There is “nothing rotten” about that.

Kind regards,

Dorthe Elise Svinth, Chairman, and Jonas Christoffersen, Executive Director