In my first post on the Draft Copenhagen Declaration I limited my focus to the first part of the same, highlighting the overarching philosophy of the Draft. I now offer some broader comments (still focussing on the first half of the Declaration).
The general narrative of the Draft Declaration is that ’improved protection’ will be obtained by achieving ‘better balance’, in terms of the distribution of powers which the Draft proposes to endorse, which involves an emphasis on Strasbourg’s mainly residual role.
That fits with the various speeches made by members of the Danish government, which preceded publication of the Draft. It is well known, however, that the backdrop was one of political frustration with, and criticism of Strasbourg by the Danish government. Going back, concern was expressed about the ‘living instrument’ doctrine, and general criticism directed at Strasbourg law, especially in relation to immigration matters (and, in particular, a domestic case constraining deportation, which obtained some notoriety). Some of the speeches allude to this.
As such, it is valid to at least ask questions about the inspiration for the Draft Declaration, and its ‘better balance’/ ‘improved protection’ agenda.
- Has the Danish government’s (to some extent, politically-inspired) frustrations with the Convention clouded its assessment of what needs to be done, and is that reflected in the content of the Draft (without questioning the good faith nature of the initiative overall)?
- As such, to what extent is the Draft Declaration a genuine contribution to the reform debate, of enduring significance, as it purports to be?
I respectfully suggest that, if the Draft Declaration is to fit more comfortably with the second of these, then the emphasis, tone and message communicated by it needs reconsideration. Why? Continue reading