Experts also Express Concerns about the Justiciability of Rights Enshrined in the Covenant
9 October 2019
The Committee on Economic, Social and Cultural Rights concluded today the review of the sixth periodic report of Denmark on measures taken to implement the provisions of the International Covenant on Economic, Social and Cultural Rights. Committee Experts highlighted various issues related to the reception of migrants and asylum seekers, such as access to health care, education and living conditions in “ghettos”. They raised concerns about the lack of justiciability of economic, social and cultural rights in Denmark.
Committee Experts said all people under the jurisdiction of the State should enjoy the rights enshrined in the Covenant. That included asylum seekers and refugees, as well as other migrants, even when their situation in the country was irregular. They expressed concerns about, inter alia, the disadvantaged position of children of immigrants in public schools; the ghettos, where two thirds of the population was of “non-Western” background; and the continuous reduction in the social benefits to migrants. They also stressed that, if the Government took economic, social and cultural rights seriously, it should make them justiciable, like other rights.
Ulf Melgaard, Head of the Department of International Law and Human Rights, Ministry of Foreign Affairs of Denmark, said that under the last Government, Denmark had dispensed with receiving United Nations quota refugees. According to a recent political understanding, this would now change. Hence, the Danish resettlement quota could be resumed in 2020 with a special focus on women and children. Another change under way related to the removal of a residency requirement for the entitlement to employment benefits that had been introduced by the former Government in 2018 to the effect that a person as a general rule should have lived 7 out of the past 12 years in Denmark or another European Union or EEA country to be eligible for unemployment benefits. After the removal this would no longer be a requirement.
In his concluding remarks, Mr. Melgaard thanked the Committee members. Denmark, Greenland and the Faroe Islands had come a long way in promoting economic, social and cultural rights. They remained cognizant that they still had issues to tackle and were therefore grateful for the Committee’s comments, questions and advice.
Heisoo Shin, Committee Expert and Rapporteur for Denmark, said the dialogue had been constructive. She thanked the delegation for providing straight answers. The Covenant rights still needed to be incorporated in Danish legislation. The Government needed to take a proactive role in progressively ensuring the full realization of rights enshrined in the Covenant for all people in the Kingdom of Denmark.
Renato Zerbini Ribeiro Leão, Committee Chairperson, concluded the meeting by saying that it had been a frank, constructive and fluid dialogue.
The delegation of Denmark consisted of representatives of the Ministry of Foreign Affairs, the Ministry of Environment and Food, the Ministry of Higher Education and Science, the Ministry of Justice, the Ministry of Health and Senior Citizens, the Ministry of Children and Education, the Ministry of Employment, the Ministry of Immigration and Integration, the Ministry of Transport and Housing, the Ministry of Foreign Affairs of Greenland, the Ministry of Foreign Affairs and Culture of the Faroe Islands, the Ministry of Social Affairs of the Faroe Islands, the Ministry of Health and the Interior of the Faroe Islands, and the Permanent Mission of Denmark to the United Nations Office at Geneva.
The Committee will next meet in public at 3 p.m. on Wednesday, 9 October, to review the third periodic report of Slovakia (E/C.12/SVK/3).
The Committee has before it the sixth periodic report of Denmark (E/C.12/DNK/6).
Presentation of the Report
ULF MELGAARD, Head of the Department of International Law and Human Rights,
Ministry of Foreign Affairs of Denmark, said Denmark had come a long way in the advancement of economic, social and cultural rights. The development of a strong and comprehensive Scandinavian welfare State had served as a vehicle for advancing these rights. The Danish society was characterized by a high level of evenly distributed wealth, a very low level of inequality and a high degree of trust – in other people and in institutions.
The delegation consisted of representatives from all of the three constituent parts of the Kingdom, that is representatives from the Government of Greenland and the Government of the Faroe Islands as well as of 10 ministries representing the Government of Denmark.
A new Danish Government had been formed by the Social Democratic Party on 27 July 2019, which had adopted a joint political understanding entitled “Fair Direction for Denmark”. This understanding addressed issues of climate change, social welfare, child-care, migration and education. It would lead to changes in Danish policies.
Under the last Government, Denmark had dispensed with receiving United Nations quota refugees. According to a recent political understanding, this would now change. Hence, the Danish resettlement quota could be resumed in 2020 with a special focus on women and children.
Another change underway related to the removal of a residency requirement for the entitlement to employment benefits that had been introduced by the former Government in 2018 to the effect that a person as a general rule should have lived 7 out of the past 12 years in Denmark or another European Union or EEA country to be eligible for unemployment benefits. After the removal this would no longer be a requirement.
The new Government was firmly committed to fighting poverty, not least child poverty. A national poverty threshold would therefore be reintroduced so development in poverty could be monitored.
A new act on cross-sectoral prohibition regarding discrimination of persons with disabilities had come into force on 1 July 2018. The new legislation prohibited discrimination outside the labour market for service providers.
The issue of domestic violence had also been at the centre of a series of new initiatives. A “national unit” combining the expertise of important civil society organizations had been set up in 2017.
The Danish Parliament in 2017 had unanimously approved a new human rights-based strategy for Denmark’s development policy and humanitarian action called the World 2030. The new Government was committed to continue the allocation of 0.7 per cent of its gross national income to international development assistance, as had all Danish governments in the past 40 years.
HANNA Í HORNI, Head of Section at the Ministry of Foreign Affairs and Culture of the Faroe Islands, said over the past years the Faroes had experienced great economic growth and with improved infrastructure, the Government had overcome many of the challenges otherwise associated with geographically remote and isolated societies, especially with regard to demography, i.e. brain drain and lack of women, youngsters and children. Furthermore, the Government had allocated more resources to ensure the implementation of the recommendations in the Government paper on integration from 2011. It had been decided to implement and follow the Common European Framework of reference for language in learning and teaching, as well as to strengthen and organize remedial classes and special education programmes in upper secondary schools across the country, including special educational programmes for young people with autism, and individual programmes for pupils with special needs in order to accomplish upper secondary school.
CATHERINA HVISTENDAHL, Head of Section, Ministry of Foreign Affairs of the Government of Greenland, said that in 2013, the Parliament of Greenland had passed the act on equality between the sexes. The act prohibited gender-based discrimination, including in the labour market, and thus placed great emphasis on ensuring that women and men had equal opportunities for influence and participation in the corporate world and labour market. In 2015 the Parliament of Greenland had agreed to the entry into force of the Danish Act on Parental Responsibility, ensuring the child a right to care and security. Children must be treated with respect and were not to be exposed to corporal punishment or other acts of insult.
First Round of Questions by Committee Experts
HEISOO SHIN, Committee Expert and Rapporteur for Denmark, said the incorporation of the Covenant’s rights in the Constitution and legislation would be beneficial. There had been few cases where the Covenant had been invoked before courts.
The Rapporteur recommended the withdrawal of Denmark’s reservation to article 7(d). Were people not allowed to be paid for leave on public holidays in Denmark? She requested information on the State's rationale on this issue as well as on the ratification of the Optional Protocol.
Denmark’s commitment to allocating 0.7 per cent of its gross national income to development assistance was highly commendable. Very few countries upheld their commitment in that regard. She inquired about the State’s contribution to the Green Climate Fund.
On business and human rights, she inquired about the reference criteria used to establish extraterritorial responsibility.
On non-discrimination, she asked if there were any plans to develop legislation covering grounds for discrimination that were currently left out.
There seemed to be no procedure for checking if draft laws were compliant with the Covenant, nor any national plans on human rights. Could the delegation comment on this?
The percentage of women elected to company boards was still low. There was a lack of data on this matter. What measures was the Government considering?
There were various types of violence against women. She requested information on data collection and efforts made to ensure that women had access to justice.
First Round of Responses by the Delegation
ULF MELGAARD, Head of the Department of International Law and Human Rights,
Ministry of Foreign Affairs of Denmark, said the Government had decided to almost double its contribution to the Green Climate Fund, bringing it to 800 million Danish Kronas. The decision was now being examined by Parliament.
The delegation explained that the general social infrastructure for child and elder care was quite comprehensive in Denmark. That was why unpaid care work was largely non-existent in Denmark.
The lion’s share of parental leave in Denmark was still taken by mothers; the distribution of parental leave was still unequal. This was partly due to stereotypical views of gender roles. The leave scheme was flexible, and families could distribute it as they saw fit. Unfortunately, these preferences often led to an uneven distribution.
Rules and regulations regarding remuneration and leave, and other matters related to work conditions were usually laid down in collective agreements, hence the Government’s reservation on article 7(d) of the Covenant. People were paid for public holidays leave, but related rules were established through the signing of collective bargaining agreements.
The Government was wary of measures that would shift power from the legislature to the judiciary. On the Optional Protocol, the Government found that a ratification could trigger the implementation of rights that would have macroeconomic ramifications. The Government held the position that democratically elected officials were best suited to make decisions on matters that had macroeconomic ramifications. The Government therefore did not intend to ratify the Optional Protocol.
Denmark had created an inter-ministerial human rights body to follow-up on recommendations and prepare national human rights reports. Draft reports were submitted to civil society for comments. The Government had not identified the need for a comprehensive human rights action plan.
The Government had cooperated with representatives from the recruitment industry to develop guidelines promoting the balanced representation of women and men. In that context, awareness raising campaigns had been launched.
On business and human rights, the Government expected that companies respected human rights principles in Denmark and abroad. Companies were obligated to report on their human rights record. For instances, details had to be provided on the due diligence processes put in place.
Follow-up Questions and Answers
An Expert said other rights enshrined in other covenants and conventions were vague such as the right not to be subjected to “arbitrary detention”. If the Government protected economic, social and cultural rights, they should be justiciable. Were the “shift power from the legislature to the judiciary” concerns not based on outdated, Cold War era notions?
HEISOO SHIN, Committee Expert and Rapporteur for Denmark, sought clarification on public holidays. Could workers take public holidays off and get paid?
The delegation said no one was against paying workers to go on leave on public holidays. Trade unions were, in fact, seeking to obtain more rights. However, removing the public holiday from collective agreements to enshrine it in legislation would disrupt the current delicate balance. It was the Danish model.
On the justiciability of rights enshrined in the Covenant, the Government did not find that it was a matter of distinguishing between, on the one hand, economic, social and cultural rights and, on the other hand, the other kinds of rights. Rather, it was a matter of legal tradition; what was at issue here was the difference between monist and dualist traditions. This did not mean that the Government did not take economic, social and cultural rights seriously; it merely meant that Denmark had chosen a different way to implement them. The cost of upholding human rights was not a consideration in this regard.
Second Round of Questions by Committee Experts
ZDZIS£AW KEDZIA, Committee Expert and Rapporteur for Denmark, requested information on the initiatives and labour market reforms that had been implemented to increase the labour force.
Why was there still a gender imbalance with regard to the impact of the decrease of unemployment?
The Rapporteur also inquired about the number of persons with disabilities that had been affected by restrictions to access the disability pension.
On the employment of refugees, he asked the delegation to provide more information on the “work from day one” notion mentioned in the replies to the list of issues and the integration training programme.
He asked the delegation why the low-end earners gender pay gap stood at 4 per cent whereas it reached 17 to 25 per cent for high-end earners. He also requested information on the process through which imprisonment could be imposed for bullying, including sexual harassment, and the number of victims who had been compensated.
How did the Government assess the protection of workers’ rights not covered by collective agreements?
Turning to the reforms and changes in social benefit schemes that had been carried out since 2013, the Rapporteur requested data, as well as information on human rights impact assessments, if any, that had been conducted. He also asked whether the State was considering implementing the social protection floor or a similar instrument to ensure adequate levels of social security for all persons under its jurisdiction.
Second Round of Responses by the Delegation
The delegation said the adjusted gender pay gap so far remained unexplained. The Government had recently commissioned a research analysis to dig deeper into the causes of this persisting gender pay gap. Along with the social partners, it was seeking to gain more knowledge of this issue; otherwise, it would be impossible to counteract it.
People who could work for less than 12 hours per week and whose work ability could be expected to improve in a relatively short time were given a flexi-job rather than a disability pension. In 2016, 52 per cent of persons with disabilities were employed. In 2014, that percentage stood at 42 per cent, approximately. This demonstrated that the employment rate for persons with disabilities had increased.
Employees usually received wages in line with collective agreements even if they were not covered by one. The trade unions took action against employers who did not have collective agreements. When social partners could not reach an agreement, the Government passed legislation based on past collective agreements. There was usually an annual increase of the minimum wage.
While income inequality was relatively low in Denmark, it had gone up in previous decades. A new poverty threshold would be established, on the basis of available data and careful analysis and consideration.
Only when refugees had a serious impediment, such as when they were clearly affected by a severe illness, were they not considered “job ready”. Not being able to speak Danish was no longer considered a sufficient basis to not be considered “job ready”. This was why the number of “job ready” refugees had gone up.
Third Round of Questions by Committee Experts
PETER SUNDAY OMOLOGBE EMUZE, Committee Expert and Rapporteur for Denmark, asked how the State party reconciled the provisions of the Covenant under article 10 with the postponement of family reunification for refugees who had obtained temporary residence pursuant to the Aliens Act.
He requested information on the State party’s efforts to ensure that housing remained affordable in the context of the increasing trend of acquisition of buildings by investors who could increase rent. How did it intend to address the issue of sufficient shelter capacity for homeless people left to find available shelter on their own? The Rapporteur also asked for further information on the “Ghetto Package” and the social housing area that had been labelled “Hard Ghetto”.
How did the State party reconcile the continuous reduction in the social benefits to migrants who had obtained a residency permit in Denmark with its constitutional provision that guaranteed support for anyone unable to support themselves or their family and stipulated that they were entitled to receive public assistance?
All people under the jurisdiction of the State should enjoy the rights enshrined in the Covenant. That included asylum seekers and refugees, as well as other migrants, even when their situation in the country was irregular. How did the restriction of access to public primary health care services and standard immunization beyond acute hospital treatment by undocumented children and infants meet the criteria of legitimacy and proportionality set forth in international law?
Another Expert asked about the integration benefit, noting that most receivers were from a non-Western background. This benefit provided for the transfer of amounts of money that were lower than those of welfare benefits. This increased the threat that receivers fall into poverty. He requested data on its impact, notably on Covenant rights. Were there any plans to modify it?
Third Round of Replies by the Delegation
The delegation said the Government wanted to remove the residency requirement, for the entitlement to employment benefit. This requirement was difficult to manage. The new Government, which was a minority Government, would have to find Parliamentary support to move forward with this change.
The disability pension reform aimed to get as many people as possible into the labour market. It did not mean that anyone who had been receiving could no longer do so; rather, the reform changed eligibility criteria for newcomers. It was not about moving people from the disability pension to other benefit schemes.
The integration benefit was significantly higher for parents. On its social impact, it should be noted that people that received this benefit also had access to the Danish public education institutions and could receive support for housing.
The Government was planning on changing the integration benefit scheme. A bill would be introduced to cancel the reduction of the benefit that had been due to be implemented in 2020.
In line with the Sustainable Development Goals, the Government was committed to reduce the number of people living in poverty in the country.
Fourth Round of Questions by Committee Experts
HEISOO SHIN, Committee Expert and Rapporteur for Denmark, noted that in both the Faroe Islands and Greenland, there were more men than women.
Did the Government of the Faroe Islands plan to establish a national human rights institution?
The Rapporteur asked for information on measures taken by the Government to enforce laws related to economic, social and cultural rights. How did the Greenlandic Equal Rights Council go about raising awareness on these matters? She also inquired about the Government’s plan to mitigate climate change.
ZDZIS£AW KEDZIA, Committee Expert and Rapporteur for Denmark, requested information on the gender pay gap and the high suicide rate in Greenland.
On Faroe Islands, he asked for more information on measures taken to address over-tourism.
PREETI SARAN, Committee Expert and Rapporteur for Denmark, said the Committee had expressed concerns about the disadvantaged position of children of immigrants and Roma in public schools, linked to socio-economic factors, compared to ethnic Danish pupils.
What percentage of the bilingual children from non-Western backgrounds left primary school with results that qualified them to proceed to higher education? What was the dropout rate of foreign-born students in comparison to the Danish born?
It had been brought to the Committee's attention that an estimated 60,000 people lived in 25 ghettos, where two thirds of the population was of “non-Western” background, and where learning of the Danish language was compulsory to qualify for State benefits. In contrast, parents who did not live in these areas were free to choose how to care for and educate their infants without the threat of welfare cuts. The requirement lasted until a mandatory language evaluation was carried out when the child was two or three years old. If the test was not passed, the child could not start school. Did this not violate the child’s right to education in keeping with the provisions of the Covenant?
The Rapporteur asked what specific steps had been taken to ensure an inclusive education for children with disabilities and specific training of teachers.
She drew the delegation’s attention to the high number of reported acts of rape and inquired about efforts made by the Government to include sexuality education in the school curriculum.
On the recognition of the Thule Tribe of Greenland, she sought clarification regarding the Government’s position on the applicability of the principle of cultural self-identification as a distinct indigenous community.
Could the delegation kindly share the Government’s recent policies and steps taken to ensure freedom of certain cultural rights and expressions, which were symbols of ethnic minorities, for example wearing a veil by Muslim women or a turban or a kirpan by the Sikhs?
Fourth Round of Replies by the Delegation
The delegation explained that the right to equal treatment act included a specific prohibition of sexual harassment, which had been strengthened. A work environment’s informality could no longer be invoked to exculpate behaviour that amounted to sexual harassment.
The authorities performed individual assessments to ensure that family reunification was granted prior to the three-year waiting period when circumstances dictated it. Between December 2015 and April 2018, 239 such permissions had been granted. Derogations to rules and regulations were possible when Denmark’s obligations under international human rights law so required.
After being granted a residence permit, each refugee was assigned to a municipality, which could provide the refugee with temporary or permanent housing. A maximum rent price was set for temporary accommodation. For permanent housing, refugees could apply to receive housing benefits if they found their rent to be too expensive.
By law, municipalities had various tools to address housing needs and homelessness. They could place tenants under special terms in social housing units. It was also possible to offer subsidized housing to citizens suffering from mental illnesses. In relation to the influx of migrants in 2018, additional funds had been allocated to housing to address the increased needs. The Government had approved 15 development plans for so-called “hard ghettos”, which would lead to the creation of 3,700 new homes.
Foreign nationals and asylum seekers without a legal stay did not have access to the Danish national health care scheme. Health care services were provided to them when certain conditions were met, notably when treatment was urgently needed. Such treatments were paid for by the Ministry of Immigration and Integration.
Follow-Up Questions and Responses
An Expert reiterated that it was unfortunate that the Government did not believe that economic, social and cultural rights were justiciable.
On justiciability, the delegation reiterated that the Government of Denmark was firmly committed to ensuring that all citizens enjoyed the social rights enshrined in the Covenant.
The “ghetto” was a legal term used to refer to social housing areas with more than 1,000 inhabitants that met certain criteria. The list of vulnerable areas was used as a tool to establish targets for Government funding and other measures. The Government wanted mixed residential areas as regards, inter alia, the makeup of the population.
Migrant families would benefit from the planned cancellation of the residency requirement for entitlement to employment benefits. Municipalities provided support to cover leisure activities for certain children and adolescents.
Parents with low income received discounts sometimes representing the total cost of day care. The new Government would seek to focus further on the first years of children’s lives, to improve opportunities for all.
The basic education in the Danish language that was offered to newcomers could be organized in many different ways, such as one-on-one classes, depending on the needs.
There were no tests in day-care facilities that could prevent children from accessing school. The mandatory language programme offered to children who were 2- or 3- years old could be halted at the request of the parent. When it was deemed that the child’s language skills were not appropriate, language development activities must be started.
The delegation assured that language assessment tests did not violate children’s right to education. In primary school, children that did not meet the requirements were kept at the first level while they acquired further language skills. Laws were in place to ensure that children from vulnerable background had access to day care.
On sexual education, teachers felt they did not have the competencies to broach sexuality in class. A joint national plan of action was being devised to address this issue and provide them with adequate training. It was expected to be completed in late 2019.
The penal legislation on rape was being reviewed to sufficiently reflect that all sexual acts must be consensual and voluntary.
On the national human rights institution in the Faroe Islands, the new Government had yet to take a position on the matter. Turning to over tourism, the delegation explained that tourism had been growing by 10 per cent every year on the Faroe Islands; there were now 110,000 persons visiting the islands yearly. There were only about 50,000 people living on the islands, the delegation recalled. New laws on conservation were being prepared to address issues generated by the increased number of tourists.
Answering questions on Greenland, the delegation said the Parliamentary Act on Equality between Men and Women ensured equal remuneration for work of equal value. Compensation could be awarded to employees and fines could be imposed on employers when this principle was contravened. The law established a reverse burden of proof in that regard.
On the recognition of the Thule Tribe of Greenland, the delegation explained that the Supreme Court, on 28 November 2003, had ruled that the Thule Tribe did not constitute a distinct tribal or indigenous people within or in addition to the Greenlandic people in the sense of the International Labour Organization Convention no. 169. The Government and Parliament of Greenland were led by indigenous peoples, and thus naturally paid due consideration to indigenous issues.
ULF MELGAARD, Head of the Department of International Law and Human Rights at the Ministry of Foreign Affairs of Denmark, thanked the Committee members. Denmark, Greenland and the Faroe Islands had come a long way in promoting economic, social and cultural rights. They remained cognizant that they still had issues to tackle and were therefore grateful for the Committee’s comments, questions and advice.
HEISOO SHIN, Committee Expert and Rapporteur for Denmark, said the dialogue had been constructive. She thanked the delegation for providing straight answers. The Covenant rights still needed to be incorporated in Danish legislation. The Government needed to take a proactive role in progressively ensuring the full realization of the rights enshrined in the Covenant for all people in the Kingdom of Denmark.
RENATO ZERBINI RIBEIRO LEÃO, Committee Chairperson, concluded the meeting by saying that it had been a frank, constructive and fluid dialogue.
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