Denmark’s Treaty-Making Process: Constitutional Foundations and International Commitments

Introduction

Denmark, as a constitutional monarchy with a long history of international engagement, provides a compelling case study for understanding the interplay between national constitutional frameworks and international legal commitments. The Danish treaty-making process is deeply rooted in its constitutional structure, which delineates the roles of the executive and legislative branches in entering into international agreements. This article explores the constitutional foundations of Denmark’s treaty-making powers, examines the country’s approach to the incorporation of international treaties into national law, and assesses its relationship with key international legal instruments such as the Vienna Convention on the Law of Treaties (VCLT) of 1969. By analyzing these elements, the article aims to provide a comprehensive overview of Denmark’s treaty-making process and offer insights for other states engaging in treaty negotiations with Denmark.

The discussion is structured as follows. First, the constitutional basis for treaty-making in Denmark is examined with reference to specific provisions of the Danish Constitution (Grundloven). Second, the article clarifies whether Denmark adheres to a monist or dualist approach in its treatment of international law and describes the mechanisms for translating treaties into national law. Third, Denmark’s relationship with the VCLT 1969 is analyzed, along with the implications of this relationship for other countries seeking to enter into treaties with Denmark. Finally, the article concludes with reflections on the broader significance of Denmark’s treaty-making practices in the context of international law.

Constitutional Foundations of Treaty-Making in Denmark

The Danish Constitution, adopted in 1953, serves as the primary legal framework governing the country’s political and legal systems, including its capacity to enter into international treaties. The Constitution explicitly delineates the roles and responsibilities of the different branches of government in the treaty-making process, ensuring a balance of power between the executive and legislative branches. The key provisions related to treaty-making are found in Sections 19 and 20 of the Constitution, which address the authority to enter into international obligations and the delegation of sovereignty, respectively.

Section 19: Authority to Enter into Treaties

Section 19 of the Danish Constitution establishes the fundamental authority for the executive branch to engage in international relations, including the negotiation and conclusion of treaties. Specifically, Section 19(1) states that “the King shall act on behalf of the Realm in international affairs,” but it qualifies this power by requiring that “without the consent of the Folketing [the Danish Parliament], the King shall not undertake any act whereby the territory of the Realm will be increased or decreased, nor shall he enter into any obligation which for fulfilment requires the concurrence of the Folketing, or which otherwise is of major importance” (Constitution of Denmark, 1953). This provision underscores the necessity of parliamentary oversight in significant treaty-making decisions, ensuring that the executive does not act unilaterally in matters of national importance.

The requirement for parliamentary consent in Section 19 reflects Denmark’s commitment to democratic principles, as it ensures that elected representatives have a say in international commitments that could affect national sovereignty or require legislative action for implementation. In practice, this means that while the government, led by the Prime Minister and the Minister for Foreign Affairs, typically negotiates treaties on behalf of the King (a ceremonial role in modern times), such agreements often need the approval of the Folketing if they involve significant obligations or changes to Danish law.

Section 19(2) further specifies that “except with the consent of the Folketing, the King shall not terminate any international treaty entered into with the consent of the Folketing” (Constitution of Denmark, 1953). This clause ensures continuity and stability in Denmark’s international commitments, preventing unilateral withdrawal from treaties without legislative approval. The involvement of the Folketing in both the conclusion and termination of significant treaties highlights the constitutional checks and balances embedded in Denmark’s treaty-making process.

Section 20: Delegation of Sovereignty

Section 20 of the Constitution addresses the delegation of powers to international organizations, a critical aspect of modern treaty-making given Denmark’s membership in entities such as the European Union (EU). This section states that “powers vested in the authorities of the Realm under this Constitution may, to the extent laid down by statute, be delegated to international authorities set up by mutual agreement with other states for the promotion of international rules of law and cooperation” (Constitution of Denmark, 1953). Furthermore, such delegation requires a five-sixths majority in the Folketing, or if that threshold is not met, a referendum must be held to secure public approval.

Section 20 is particularly relevant in the context of treaties that involve supranational commitments, such as those associated with EU membership. It reflects Denmark’s willingness to engage in international cooperation while maintaining strict constitutional safeguards to protect national sovereignty. For instance, Denmark’s accession to the Treaty of Maastricht in 1992, which deepened European integration, required a referendum under Section 20 due to the significant transfer of powers to EU institutions (Petersen, 2008). This constitutional provision ensures that the delegation of authority through treaties is subject to rigorous democratic scrutiny, either through a supermajority in parliament or direct public approval.

Together, Sections 19 and 20 of the Danish Constitution provide a robust framework for treaty-making, balancing executive initiative with legislative and, in some cases, public oversight. This framework ensures that Denmark’s entry into international agreements is conducted in a manner consistent with democratic principles and national interests.

Monist or Dualist Approach: Denmark’s Stance on International Law

A fundamental question in the study of treaty-making is whether a state adopts a monist or dualist approach to the relationship between international and national law. In a monist system, international law is directly applicable within the domestic legal order without the need for separate legislative action to incorporate treaties. In contrast, a dualist system treats international and national law as distinct, requiring specific legislative measures to transform international obligations into enforceable domestic law.

Denmark operates within a dualist framework, where treaties do not automatically become part of national law upon ratification. Instead, for a treaty to have legal effect within Denmark, it must be incorporated into domestic law through legislation passed by the Folketing. This approach is rooted in the principle of separation between international and national legal orders, a perspective historically prevalent in Scandinavian legal traditions (Bjørnskov & Voigt, 2014). While Denmark respects its international obligations under the principle of pacta sunt servanda (treaties must be observed), the direct application of treaties within the Danish legal system is contingent upon their transformation into national legislation.

Incorporation of Treaties into National Law

The process of incorporating treaties into Danish law typically involves the passage of an implementing statute by the Folketing. This legislative act translates the provisions of the treaty into the domestic legal framework, making them enforceable in Danish courts. For example, human rights treaties such as the European Convention on Human Rights (ECHR) have been incorporated into Danish law through specific legislation, notably Act No. 285 of 29 April 1992, which made the ECHR part of Danish law (Jensen, 2015). This act of incorporation allows Danish courts to directly apply the provisions of the ECHR in domestic cases, subject to the interpretations provided by the European Court of Human Rights.

In cases where a treaty has not been incorporated through legislation, its provisions may still influence Danish law indirectly. Danish courts often adopt a principle of interpretation known as “treaty-friendly construction,” whereby national laws are interpreted in a manner consistent with Denmark’s international obligations, to the extent possible without conflicting with existing statutes (Højgaard, 2010). However, unincorporated treaties do not have the force of law in Denmark and cannot be directly invoked as a basis for legal claims in domestic courts.

The dualist approach in Denmark provides a clear separation between international commitments and domestic legal obligations, ensuring that the Folketing retains control over the incorporation of treaties into national law. This system also reflects a cautious stance toward the potential supremacy of international law, prioritizing parliamentary sovereignty while still allowing for compliance with international commitments through legislative action.

Exceptions and Evolving Practices

While Denmark generally adheres to a dualist approach, certain exceptions and evolving practices are noteworthy, particularly in the context of EU law. Due to Denmark’s membership in the EU, certain EU treaties and regulations have direct effect within the Danish legal system under the principle of supremacy established by the Court of Justice of the European Union (CJEU). This represents a departure from the traditional dualist framework, as EU law can take precedence over conflicting national legislation without requiring specific incorporation (Wind, 2013). However, this exception applies only to EU law and does not alter Denmark’s broader dualist stance toward other international treaties.

Overall, Denmark’s dualist approach ensures that the incorporation of international treaties into national law remains a deliberate and democratic process, subject to the approval of the Folketing. This system strikes a balance between respecting international commitments and maintaining national control over domestic legal obligations.

Denmark and the Vienna Convention on the Law of Treaties (1969)

The Vienna Convention on the Law of Treaties (VCLT), adopted on 23 May 1969 and entered into force on 27 January 1980, is widely regarded as the authoritative international legal framework governing the formation, interpretation, and termination of treaties. Often referred to as the “treaty on treaties,” the VCLT codifies customary international law and provides a comprehensive set of rules for treaty-making among states (United Nations, 1969).

Denmark’s Status as a Party to the VCLT

Denmark is a party to the VCLT, having signed the convention on 23 May 1969 and ratified it on 1 June 1976. This commitment underscores Denmark’s dedication to conducting its treaty-making activities in accordance with internationally accepted standards. As a party to the VCLT, Denmark adheres to its provisions, including those related to the negotiation, conclusion, and interpretation of treaties, as well as the principles governing reservations, amendments, and termination of international agreements.

Denmark’s ratification of the VCLT is consistent with its broader approach to international law, characterized by a strong emphasis on rule-based cooperation and multilateralism. By being a party to the VCLT, Denmark signals to other states its intention to engage in treaty-making processes that are transparent, predictable, and aligned with customary international law. This is particularly significant given that many provisions of the VCLT are considered to reflect customary international law, binding even on states that are not parties to the convention (Sinclair, 1984).

Implications for Other Countries

Denmark’s status as a party to the VCLT has important implications for other countries seeking to enter into treaties with Denmark. First, it provides assurance that Denmark will adhere to the procedural and substantive norms outlined in the VCLT during treaty negotiations and implementation. For instance, under Article 26 of the VCLT, Denmark is bound by the principle of pacta sunt servanda, meaning that it will perform its treaty obligations in good faith. Similarly, Articles 31 and 32, which govern treaty interpretation, ensure that Denmark will interpret treaty provisions in accordance with their ordinary meaning, context, and purpose, providing predictability for treaty partners.

Second, other countries should be aware of Denmark’s dualist approach when negotiating treaties. Even though Denmark is a party to the VCLT and respects its international obligations, the domestic enforceability of a treaty within Denmark depends on its incorporation into national law. Therefore, treaty partners should anticipate that certain agreements may require legislative action by the Folketing to become effective in the Danish legal system. This process may introduce delays or additional conditions, particularly for treaties that involve significant changes to existing laws or the delegation of sovereignty.

Third, Denmark’s compliance with the VCLT offers a model for other states in terms of aligning national treaty-making processes with international standards. For countries that are not parties to the VCLT, such as the United States, engaging with Denmark can serve as an example of how adherence to the convention facilitates smoother and more predictable treaty negotiations. Even in cases where a treaty partner is not bound by the VCLT, Denmark’s commitment to its principles, many of which reflect customary international law, ensures a consistent and principled approach to treaty-making.

Challenges and Considerations

While Denmark’s adherence to the VCLT is generally a strength, it also poses certain challenges for treaty partners unfamiliar with the intricacies of Danish constitutional law. For example, the requirement for parliamentary consent under Section 19 of the Constitution may lead to delays in the ratification process, particularly for treaties deemed to be of “major importance.” Treaty partners should also be mindful of the political dynamics within Denmark, as public referendums may be required for treaties involving the delegation of powers under Section 20, especially in relation to EU matters.

Additionally, while the VCLT provides a common framework, disputes over treaty interpretation or implementation may still arise due to differences in national legal traditions or political priorities. In such cases, Denmark’s commitment to the VCLT ensures that mechanisms for dispute resolution, such as negotiation or recourse to international adjudication, are available and likely to be pursued in good faith.

Comparative Insights and Broader Implications

Denmark’s treaty-making process offers valuable insights for comparative analysis with other jurisdictions. For instance, in contrast to monist systems such as the Netherlands, where treaties can have direct effect upon ratification, Denmark’s dualist approach underscores the importance of legislative action in bridging the gap between international and national law. This difference highlights the diversity of approaches to treaty incorporation and the need for treaty partners to adapt their expectations based on the specific legal traditions of the state with which they are engaging.

Moreover, Denmark’s adherence to the VCLT aligns it with the majority of states that recognize the convention as a cornerstone of international legal practice. This alignment enhances Denmark’s credibility as a reliable treaty partner, particularly for smaller states or those with less developed legal frameworks for treaty-making. By modeling a process that combines constitutional rigor with international compliance, Denmark contributes to the stability and predictability of the global treaty regime.

At the same time, Denmark’s experience also raises broader questions about the challenges of reconciling national sovereignty with international commitments in an era of globalization. The constitutional requirement for parliamentary or public approval in significant treaty matters, while a democratic strength, can complicate timely engagement with international agreements, as seen in Denmark’s cautious approach to certain EU treaties. This tension between national control and international cooperation is a recurring theme in treaty-making and one that other states can learn from when structuring their own processes.

Conclusion

Denmark’s treaty-making process is firmly rooted in its constitutional framework, with Sections 19 and 20 of the 1953 Constitution providing clear guidelines for the negotiation, conclusion, and implementation of international agreements. The country’s dualist approach ensures that treaties are incorporated into national law through deliberate legislative action, maintaining a balance between international obligations and domestic sovereignty. As a party to the Vienna Convention on the Law of Treaties (1969), Denmark adheres to internationally recognized standards for treaty-making, offering predictability and reliability to its treaty partners.

For other countries, engaging with Denmark in treaty negotiations requires an understanding of both its constitutional requirements and its dualist legal tradition. While the VCLT provides a common framework for such engagements, the need for parliamentary consent and potential public referendums in Denmark may introduce unique considerations. Ultimately, Denmark’s treaty-making process serves as a model of how constitutional democracy and international cooperation can coexist, providing lessons for states seeking to harmonize national legal systems with the demands of global interconnectedness.

References

• Bjørnskov, C., & Voigt, S. (2014). Constitutional verbosity and social trust. Public Choice, 161(1-2), 91-112.
• Constitution of Denmark. (1953). Grundloven. Available at: https://www.thedanishparliament.dk/en/democracy/the-constitutional-act-of-denmark.
• Højgaard, L. (2010). Treaty interpretation in Danish courts. Scandinavian Studies in Law, 56, 123-145.
• Jensen, J. (2015). The incorporation of the European Convention on Human Rights into Danish law. Nordic Journal of International Law, 84(3), 221-240.
• Petersen, N. (2008). National referendums and EU integration: The case of Denmark. European Constitutional Law Review, 4(2), 301-322.
• Sinclair, I. (1984). The Vienna Convention on the Law of Treaties (2nd ed.). Manchester: Manchester University Press.
• United Nations. (1969). Vienna Convention on the Law of Treaties. Treaty Series, Vol. 1155, p. 331. Available at: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
• Wind, M. (2013). The Europeanization of Danish law: Supremacy and direct effect. Journal of European Public Policy, 20(5), 701-718.