More Learning from Denmark
Courts and administrative agencies that fail to note the relevance of human rights to their work? Administrators who refuse to cite on-point human rights law and focus only on domestic precedents? Welcome to Denmark!
But while Danish adjudicators’ approaches to human rights seem remarkably similar to those in the U.S., one professor has developed a new and promising critique of these blindered practices. Professor Ayo Naesborg-Andersen of the University of Southern Denmark has written a fascinating new study titled Human Rights in National Administrative Law: Dissemination of Knowledge of Human Rights through Administrative Decisions (Djof Publishing 2015), that takes the Danish administrative system to task, not because they are ignoring the law, but because they are failing in their responsibility to enhance the legal capability of their constituents.
In highly readable prose, Professor Naesborg-Andersen argues that human rights law entails not just dry, legal treaty text, but is also intended to enhance individual and group capacity toward legal capability and empowerment. Many treaties and other aspects of international human rights law explicitly mandate human rights education as part of the law’s implementation. Indeed, the UDHR itself admonishes in its final paragraph that “every individual and every organ of society . . . shall strive by teaching and education to promote respect for these rights and freedoms . . . ” Professor Naesborg-Andersen deftly ties these provisions to broader concepts of empowerment, including capability theory. She argues that ratification of human rights treaties necessarily entails communication with the populace concerning the treaties’ protections as part of this empowerment process. Among other things, she reviews the large-scale English and Welsh Social Justice Survey, which concluded, not surprisingly, that “Knowing your rights is not particularly important for achieving the desired object, if you obtain relevant advice. But those who know their rights beforehand are more likely to obtain relevant advice than those who do not know their rights.”
Having developed a theoretical underpinning to support integration of human rights norms into domestic law as a tool for expanding legal capacity, Naesborg-Andersen then conducts an exhaustive analysis of several aspects of Danish administrative law, specifically the decisions of the Danish Parliamentary Ombudsman and the Danish Equality Board. She develops a series of criteria to aid in searching the relevant decisions, and applies those criteria through several levels of analysis.
Among her observations is that the failure to acknowledge relevant human rights creates a vicious cycle. For example, the more the Ombudsman fails to cite human rights, the less relevant these rights seem to future litigants, and the less knowledge is built up within the Ombudsman’s own office regarding these rights.
At the end of the day, Naesborg-Andersen has to acknowledge that the fault for lack of comprehensive human rights knowledge in Danish society does not fall exclusively on the administrative justice system. Parliamentary debate, news stories, school lessons, could all further human rights knowledge and capability. But, she concludes, the Ombudsman and the Equality Board have a special obligation to “educate the general population about their work,” and “an integral part of their work is to further the legal capability of Denmark.” Unfortunately, as we have also seen in the U.S., the “lack of knowledge about human rights visible in the judgments can in itself suppress human rights from being considered applicable.” By considering the obligation of administrative agencies to enhance legal capability, Professor Naesborg-Andersen has pointed a route out of this disempowering loop.