The European Convention on Human Rights: Copenhagen Declaration 2018

The Copenhagen Declaration 2018 is a non-binding road map for the Council of Europe with respect to the European Convention on Human Rights. It was agreed by the 47 members of the Council of Europe during Denmark’s chairmanship of the Committee of Ministers from November 2017 to May 2018. The Danish government’s position was to push for greater sovereignty for the individual member states and less influence of the European Court of Human Rights. These demands were, however, not included in the final version of the Declaration.

2019.04.26 | Nicola Anne Witcombe

A view of the skyline of the Danish capital Copenhagen which gave its name to the Copenhagen Declaration negotiated during Denmark's presidency of the Council of Europe in 2017/2018. Photo: Alessandro Bellone, Unsplash.

Denmark, Norway and Sweden were founding members of the Council of Europe when it was set up in 1947. Iceland and Finland joined later (in respectively 1950 and 1989). The Council of Europe is an international organisation which aims to uphold human rights and democracy, and is the founder of the European Court of Human Rights.

What is the Copenhagen Declaration?

The Copenhagen Declaration is an eight-page statement agreed by the representatives of the 47 Council of Europe countries’ governments at a conference in Copenhagen on 12 and 13 April 2018. The conference was entitled 'Continued Reform of the European Human Rights Convention System – Better Balance, Improved Protection'. Like previous declarations, the Declaration sets out a road map for the future work with respect to the European human rights system.

What did the Danish government want out of their presidency of the Council of Europe? National sovereignty vs supranational systems

The chairmanship was seen as an opportunity to play out domestic political concerns (that is, the political will for more sovereignty) in a European context. The Danish Minister of Justice at the time, Søren Pape Poulsen, stated that reform of the Convention system was at the centre of the chairmanship:

“It will be a priority for the Danish chairmanship to shed light on how we handle the challenge resulting from the fact that the European Court of Human Rights… increasingly has influence on policy areas of critical importance to member States and their populations. It must be ensured that there is a sufficient ongoing dialogue, including at policy level, on the development of human rights.”

The debate on national sovereignty and how much (or little) influence European bodies should be permitted had, as elsewhere, already been going on for some time. Prior to the UK’s referendum on membership of the EU in 2016, a majority of Danish citizens voted ‘no’ in a referendum on whether the Danish parliament should have the power to ‘opt-in’ to more European rules (such as Europol). This was against the backdrop that, although Denmark remains a member of the European Union, it has had a number of opt-outs to EU cooperation since 1993.

The Danish debate on sovereignty culminated around Danish judgments which stopped the deportation of foreign criminals. For example, in 2016, the Government wished to deport a Croatian national due to his criminal activity, but was prevented from doing so by the Danish Supreme Court. The court found that his deportation would constitute a disproportionate interference in his right to respect for family life, a principle found in the European Convention of Human Rights. While the judgment was made by a Danish court, blame was put at the door of the European human rights system. The judgment was deemed unacceptable by some politicians and an invasion of Denmark's sovereignty. It is not known with any certainty whether this influenced specific wording in the initial draft of the Copenhagen Declaration singling out immigration as a topic which should be placed within the domestic rather than the European realm.

In 2016, the Danish Supreme court found against the Government which sought to deport a foreign national due to his criminal activity, as it constituted a disproportionate interference in his right to respect for family life. This was one of several cases seen as exemplifying the struggle between national sovereignty and supranational bodies. Photo: Colourbox.

In November 2016 a group of political parties entered into an agreement to review the way that judgments from European Court of Human Rights were being interpreted. The group included the Danish People's Party (Dansk Folkeparti), which held a large number of mandates in the Danish parliament (37 out of 179), and had long declared its scepticism for international conventions and particularly the European Convention on Human Rights. It also included the Government coalition parties which, since 28 November 2016, were the Liberal Party (Venstre), Liberal Alliance, and the Conservative Party (Det Konservative Folkeparti) (which had respectively 34, 13 and 6 mandates out of 179).

There were other domestic reasons for the first stringent draft, which were connected to the arguably populist political agenda to a lesser extent. For example, some legal commentators emphasised the need to rid the court of its backlog of cases (over 55,000 in 2018) in order for it to function effectively. They also suggested that channels other than litigation should be used to improve human rights, arguing that dialogue between states and the European Council of Human Rights is key. Additionally, it was suggested that institutions founded decades ago need renewed legitimisation from the states that agreed them.

On the other hand, in a poll of nearly 1000 Danish citizens undertaken in 2017, 73% of those surveyed supported Denmark’s continuing membership of the Convention. Claus von Barnekov, former Ambassador to the Council of Europe and Advisor to ‘the Danish Helsinki Committee on Human Rights’, represented these alternative views in a newspaper commentary, as did a number of civil society actors who were present at the negotiations prior to the agreement of the Copenhagen Declaration. A key purpose of institutions such as the European Court of Human Rights is to hold states to account with respect to universally accepted principles of conduct towards individual citizens. Without the European human rights system, states such as Turkey, Russia and Hungary would be even less accountable with respect to human rights abuses. Not pandering to a populist agenda is also important as crucial protection should not be at the political behest of the majority, but should be enshrined as inalienable. Proponents of this view suggested that what stands in the way of doing more for human rights in Europe is, in fact, that domestic courts sometimes fail to respect human rights standards. This forces complaints to be escalated to the overburdened European Court of Human Rights.

Negotiating the final draft

Legal commentators agree that the final version was watered down considerably from the initial Danish position paper. Some of the content does indeed echo the original intentions of the Danish government. It stated for example that "[states are] committed to reviewing the effectiveness of the ... system", and it openly acknowledged that a reform process was being undertaken. However, such wording was similarly used in the wording of previous declarations, even as far back as one decided at Interlaken in 2010.

The final Copenhagen Declaration set out the primary responsibility of states to secure rights and freedoms. To some extent this echoes the domestic politics of nations who want to maintain sovereignty, like Denmark. However, this is also a well-known legal principle at the European level, the principle of subsidiarity, and is a recognised way of ensuring that supra-national bodies can function effectively, namely, by dealing only with cases that are not dealt with adequately at the state level.

Similarly, the declaration reaffirmed that states have a margin of appreciation in which to interpret the Convention. This can again be seen as appeasing domestic concerns when it allows for a range of responses based on national laws and circumstances. But, this too has always been a crucial principle of the workings of the European human rights system and, while there is an element of flexibility, the 'margin' is smaller or greater depending on how fundamental the human right at stake is.

The wording of the Copenhagen Declaration generally reinforces the principle that states’ ability to interpret European human rights law does in fact remain under the supervision of the European Court of Human Rights. The wish of the Danish government to have a less strict review from the court with respect to immigration cases did not make it into the final version.

The final product is an example of political compromise, like other national and international agreements and laws. It came about as a result of taking into account the views and opinions of the other members of the Council of Europe during negotiations. Additionally, the influence of civil society organisations could also be named as they were included in the review process and conferences. Their position is by and large to defend the European human rights system on behalf of the communities they represent.  

Should the Nordic states

be 'alone in the world'?

In his argument in support of the European human rights system, Claus von Barnekov, a Dane and Ambassador to the Council of Europe, uses a vivid image from the iconic and well-loved Danish children’s book ('Palle Alene i Verden' [Palle Alone in the World]). Whether this analogy is correct or not, it is clear that the debate with respect to sovereignty and supranational powers will continue for sometime to come.  The story in brief: Palle, a small boy, wakes up one day and his parents are gone. He goes down the street and there is nobody around. He is delighted that he can take all the chocolate that he can eat from the shop, and drive a tram; there is no-one to tell him not to. However, soon, Palle realises that he does not like being alone in the world, he cannot do everything himself. He crashes the tram, waking up with relief to find it was all a dream.  

Picture: Glydendal, available on their website of front covers.

The Copenhagen Declaration in more detail

The text of the declaration generally reaffirms the current status quo in relation to states, namely, that states must provide an effective remedy to complaints about human rights abuses at the national level; that they must execute what is set out in the decisions of the European Court of Human Rights; and, that they are generally able to interpret decisions made by the court within ‘a margin of appreciation’, under the supervision of the Court. The declaration is divided into statements under the following headings:

  • Effective national implementation – the responsibility of States. This section covers aspects to do with the responsibility of states to provide an effective remedy to complaints of human rights violations at the national level.
  • Execution of judgments – a key obligation. This is about the obligation of states to carry out what the European Court of Human Rights sets out in its judgments, which could include for example a recommendation to change domestic laws so that they conform with the Convention.
  • European supervision – the role of the Court. This relates to the fact that countries have the right to interpret the law and subsequent case law from the European Court of Human Rights fairly widely as they are best placed to consider local needs and conditions. This depends how fundamental the breach of human rights is, however.
  • Interaction between the national and European level – the need for dialogue. Discussion between states and the Court was considered important, including for example the system whereby states can ask for the Court’s opinion on the interpretation or application of rights under the European Convention on Human Rights. (This is set out in an appended document to the Convention called a protocol, Protocol 16).
  • The caseload challenge – the need for further action. This is about the large backlog of cases at the European Court of Human rights.
  • The selection and election of judges – the importance of co-operation.
  • Accession by the European Union. This concerns ensuring closer working and mutual recognition of legal judgments between the European Court of Human Rights (organised by the Council of Europe) and the European Court of Justice (organised by the European Union). 
  • Further measures, and General and final provisions.

Further reading:

  • Claus von Barnekow, Kamp om konventionerne: Det er dig, der er skævt på den, Mads Bryde [Fight on the Conventions: It is you who has the distorted view, Mads Bryde], in altinget.dk, 22 March 2018.
  • I. Koch, K. Røberg, S Schaumburg-Muller and J Vedsted-Hansen (eds.) Human rights and the division of power (Århus universitetsforlag; 2004).
  • J. Gerards and S. Lambrecht, The final Copenhagen Declaration: fundamentally improved with a few remaining caveats in strasbourgobservers.com (18 April 2018). 
  • Jacques Hartmann, Der er faktisk folkelig opbakning til menneskerettigihederskonvention [There is actually backing for the European Convention of Human Rights] (Politiken newspaper, 7 September 2017).
  • Mickael Rask Madsen and Jonas Christoffersen, The European Court of Human Rights’ View of the Draft Copenhagen Declaration in EJIL blog (23 February 2018).

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