Taking Economic, Social and Cultural Rights Seriously on the Faroe Islands

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Taking Economic, Social and Cultural Rights Seriously on the Faroe Islands

Introduction

The International Covenant on Economic, Social and Cultural Rights1 (ICESCR) is a

multilateral human rights treaty which was adopted by the United Nations General

Assembly (UNGA) 16. December 1966 and entered into force on 3. September 1976.

The ICESCR sets out to make the abstract content of the Universal Declaration of

Human Rights from 1948 more concrete for states to enforce in practice.2 In the

ICESCR states ‘undertake to take steps’3 to progressively realize economic, social and

cultural rights (ESCR) which is an open ended wording. To emphasise the

interdependence of ESCR and civil and political rights (CPR) the International

Covenant on Civil and Political Rights4 (ICCPR) was passed in the UNGA on exactly

the same day as the ICESCR. The ICCPR conversely requires states to ‘ensure’5 the

enforcement of civil and political rights (CPR) emphasising the importance of an

immediate effect. Both ICESCR and the ICCPR are legally binding for states.6

Moreover, all human rights should be understood as ‘universal, indivisible and

interdependent and interrelated’7 which means that both covenants are of equal

importance.

Denmark ratified the ICESCR in 1972 on behalf of the Faroe Islands. In contrast to

the ICCPR, the ICESCR is still not incorporated in Denmark nor on the Faroe Islands.

Although socio-economic standards within the Danish realm in general are considered

high, it is important to note that the Faroe Islands have different challenges than

1 International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December

1966, entered into force 3 January 1976) 993 UNTS 3 2 Rhona KM Smith, Textbook on International Human Rights (Sixth edition, Oxford University Press

2014). 44 3 ICESCR (n 1). Art. 2(1) 4 International Covenant on Civil and Political Rights (ICCPR) (adopted 16. December 1966, entered

into force 23 March 1976) 999 UNTS 171 5 ICCPR (n 4). Art. 2(1) 6 Smith (n 2). 43 7 Vienna Declaration and Programme of Action (published 12 July 1993) A/CONF.157/23

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Denmark with respect to ESCR. The Faroe Islands has namely under the Home Rule

Arrangement8 (HRA) from 1946 gained state-like qualities and established full

autonomy over most economic and social policy areas. Thereby the Faroe Islands has

an independent obligation to realize ESCR within autonomous policy areas.

Specifically §2(1) of the ICESCR provides that “Each State Party to the present

Covenant undertakes to take steps, individually and through international assistance

and co-operation, especially economic and technical, to the maximum of its available

resources, with a view to achieving progressively the full realization of the rights

recognized in the present Covenant by all appropriate means, including particularly

the adoption of legislative measure”.9 The progressive realization of ESCR on the

Faroe Islands is hindered for various reasons. Most notably the relevant legal

instruments which could ensure that steps are taken to fully realize ESCR are either

profoundly limited functionally or non-existent. It is therefore in reality the political

coalition in power, which has the responsibility to realize the obligations under

ICESCR. This is seemingly not sufficient and it will be argued that in order to realize

ESCR and maintain the standards, new human rights instruments are profoundly

needed on the Faroe Islands.

When the Faroe Islands attempted to found a sub-national constitution, which included

a bill of rights and thereby the protection of both CPR on ESCR, the Danish Ministry

of Justice (DMJ), interpreted this step as an attempt to secede from the Danish Realm.10

Therefore the obligations of the Faroes to realize ESCR is in addition limited by the

internal dynamics within the Danish realm. The Faroe Islands have to find a solution

to this, if the obligations are to be met. More importantly, this general and far-reaching

debate should not prohibit the realization of ESCR. It is important to note that it is

within the domestic constitutional framework of the Faroe Islands that a human rights

instrument is needed, and that a balance must be created within the Danish realm that

enables the emergence of human rights instruments on the Faroe Islands. It will

therefore be argued that the obligations of the Faroe Islands under §2(1) of the ICESCR

to ‘take steps’ towards the full realization of economic and social rights should not be

8 Færø Amts Kundgørelse Nr. 11 af 31.03.1948 af Lov om Færøernes Hjemmestyre. (HRA) 9 ICESCR (n 1). Art 2(1) 10 Kári á Rógvi and Bárður Larsen, ‘A New Faroese Constitution?–Faroe Islands between

Parliamentary Sovereignty and Sub-Sovereign Constitutionalism, between Statutory Positivism and

Pragmatic Reasoning’ (2012) 4 The Yearbook of Polar Law 341.

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limited by a restrictive interpretation of the domestic constitutional reality. In other

words, not the Danish realm, the Faroe Islands or any other authority should in effect

limit the attempts of the Faroe Islands to take steps to realize ESCR.

The first chapter will describe and analyse the obligations of the Faroe Islands under

the ICESCR from different perspectives. This will be done by explaining the

constitutional reality of the Faroe Islands domestically, within the Danish Realm and

the obligations under ICESCR. The first chapter will moreover emphasise the

obligation and need to realize a concrete ‘plan of action’, in particular for emergency

situations.

The second chapter will then analyse an attempt of the Faroe Islands to take steps

towards the realization of ESCR. This analysis will focus on the discourse relating to

a poverty alleviation project. It will be argued and illustrated that some important steps

taken to realize ESCR on the Faroes end up without legally binding force.

The third chapter will therefore discuss some potential solutions to this problem. It will

be suggested that the Faroe Islands should adopt a bill of rights which stands separate

to the rest of the domestic constitutional reality, such that it avoids any controversies

relating to the HRA 1948. This would hopefully ensure that the Faroe Islands takes

ESCR seriously, both in times of financial crisis and under political disagreement and

turmoil.

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1. Chapter

The Obligations of the Faroe Islands under the ICESCR

The ICESCR was ratified by Denmark on 6. June 197211. According to §29 in the

Vienna Convention on the Law of Treaties12 “unless a different intention appears from

the treaty or is otherwise established, a treaty is binding upon each party in respect of

its entire territory”. The Faroe Islands is legally an integral part of the Danish realm,

but before finally establishing that the ICESCR is binding for the Faroe Islands, the

following is important to note. The people of the Faroe Islands decided through a

referendum in 1946 to become an independent state. The Danish state approached this

decision by establishing the so called Home Rule Arrangement (HRA) of 1946, which

was meant to gradually and peacefully realize the Faroe Islands as a sovereign state.13

This meant that the ratification and implementation of international treaties in

Denmark does not immediately and directly apply to the Faroe Islands. The Danish

Ministry of Foreign Affairs (DMFA) clarifies that unless it is otherwise stated in a

treaty or convention, it is binding for ‘all parts of the empire’ reflecting the Danish

Basic Law §1.14 However as a general rule the DMFA should ensure that the treaty can

be implemented and enforced before the ratification of an international treaty in the

given area, the Faroe Islands or Greenland. If political will is not present in the given

area, the ratification should be put on hold.15 This is supported by the HRA 1948 §7(2)

which establishes that if an international treaty addresses ‘specific Faroese interests’16

the Faroese parliament shall consider the matter before the treaty again is given to the

11 ‘Bekendtgørelse Af International Konvention Af 16. December 1966 Om økonomiske, Sociale Og

Kulturelle Rettigheder’ <https://www.retsinformation.dk/forms/R0710.aspx?id=60835> accessed 3

September 2015. 12 Vienna Convention on the Law of Treaties (Published 23 May 1969, entered into force 27 January

1980) 1155 UNTS 331 13 Føroya Landsstýri, Hvítabók (Føroya landsstýri 1999). 104 14 ‘Vejledning Vedrørende Traktatindgåelse - 5. Forholdet til Færøerne og Grønland’

<http://um.dk/da/udenrigspolitik/folkeretten/dk-

traktater/vejledning%20vedroerende%20traktatindgaaelse/> accessed 10 June 2015. 15 Ibid, ‘Den Pragtiske Fremgangsmåde’. 16 HRA (n 8).

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Danish parliament. However, no ‘territorial reservation’17 was made for the Faroe

Islands when the ICESCR was ratified in 1972. Henceforth, the ICESCR has been

binding on the Faroe Islands since 1972.

In this context it has been argued by Mitens that the HRA 1948 establishes state-like

qualities for the Faroe Islands and that the HRA 1946 is on equal level with the Danish

Basic Law in autonomous policy areas.18 Conversely it was argued by Meyer that the

HRA was delegated from the Danish constitutional system.19 In contrast Haroff

expressed that the Faroe Islands has a unique status in the Danish realm, because of

the competencies under the HRA 1946, but that it was still under the Danish Basic

Law.20 The discussion about the HRA status in the Danish realm is however

inconclusive. The Danish high court in the case U.1988B.31 based a decision on

Faroese law and recognized unique lawgiving competencies on the Faroe Islands.21

This was however limited to matters, which were not sufficiently represented under

Danish law.22 In short, this gives the Faroe Islands independent obligations under the

ICESCR.

Accordingly, the Faroese authorities unilaterally amended the HRA 1946 by

establishing the Form of Government Act.23 The changes made have limited relevance

for the present discussion but the amendment of the HRA 1946 illustrates that

constitutional matters needed adaptation, which could become relevant again in

context of ESCR. More importantly the HRA 1948 enables the Faroe Islands to

establish autonomy over most policy areas except for foreign affairs, military and some

monetary policy areas which are to remain under Danish authority.24 The obligations

of the Faroes under ICESCR §2(1) to ‘take steps’ to realize ESCR are arguably

determined by the fact that the vast majority of economic and social policy areas have

17 UN Committee on Economic, Social and Cultural Rights (CESCR), Fifth Periodic Report

Submitted by State Parties under articles 16 and 17 of the Covenant – Denmark, (Published 28 April

2003) E/C.12/DNK/5 (CESCR Fifth Periodic Report: Denmark). Para 366 18 Edvard Mitens, ‘Færøernes Selvsyre’ [1950] Ugeskrift for Retsvæsen 89. 19 Poul Meyer, ‘Færøernes Selvstyre. En Imødegåelse’ [1950] Ugeskrift for Retsvæsen 200. 20 Frederik Harhoff, Rigsfællesskabet (1 ed., Klim 1993). 242 21 Torben Jensen, ‘Kompetencen at Afgøre Arbejdskonflikter På Færøerne’ [1988] Ugeskrift for

Retsvæsen 31. 34 22 ibid. 23 á Rógvi and Larsen (n 10). 342 24 Føroya Landsstýri (n 13). 64

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moved under the Faroese government.25 Notably, the judicial system is permanently

under Danish rule, so in short a harmonization in this context would arguably be

challenging.26 Although the Danish Basic Law ensures some human rights,27 the HRA

1948 delegates the autonomous competencies relevant for socio-economic policies

domestically on the Faroe Islands, which means that ESCR are in effect not ensured.

In practice, the Faroe Islands therefore has the obligations to realize ESCR under the

competencies drawn from the HRA 1946. However, the general constitutional

framework does not reflect these competencies necessary to live up to these

obligations. The ICESCR has in addition not been incorporated into neither Danish

nor Faroese legal system. It is important to not let disagreements regarding the HRA

1948 prohibit the obligated realization of ESCR on the Faroe Islands. It is therefore

necessary to interpret the Faroese constitutional reality such that any binding

obligations under the ICESCR are fully realized, while adjusting to the continuation

of this controversial topic. The discussion regarding the HRA 1948 is influential

politically which creates grounds for observing carefully that legal obligations are not

trumped by political interests.

The CESCR has described how international conventions, in particular the ICESCR,

becomes part of domestic law in Denmark: either by “’harmony of norms’ (i.e. special

measures are not considered necessary, because Danish law is already in conformity

with the convention)”,28 by “transforming the contents of the convention into Danish

legislation”29 or “incorporating the convention”.30 Neither in Denmark nor on the

Faroes have ESCR been enforced through courts. Nevertheless “conventions, etc., that

have not been specifically implemented, because harmony of norms has been

ascertained, can also be invoked before and applied by Danish courts and other law-

25 UN Human Rights Council, National report submitted in accordance with paragraph 15(a) of the

annex to Human Rights Council resolution 5/1 - Denmark (submitted 13 February 2011)

A/HRC/WG.6/11/DNK/1. (Danish submission to UPR 2011) Para 127-128 26 Føroya Landsstýri (n 13). 9 27 UN Committee on Economic, Social and Cultural Rights (CESCR), Addendum to the Fourth

Periodic Report Submitted by State Parties – Denmark (Published 28 April 2003) E/C.12/4/Add.12.

(CESCR Addendum to Fourth Periodic Report: Denmark). Para 34 28 The Committee on Economic, Social and Cultural Rights, List of Issues in relation to the fifth

periodic report of Denmark (E/C.12/DNK/5), adopted by the pre-sessional working group at its

fiftieth session (3-7 December 2012), Replies of Denmark (Published 7 June 2013)

E/C.12/DNK/Q/5/Add.1. 1 29 Ibid. 30 Ibid.

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applying authorities.”31 The Incorporation Committee did on these grounds not

recommend that the ICESCR should be incorporated in 1999. It was furthermore

argued that “further incorporation of human rights conventions should initially

concern only a limited number of conventions in order to allow for the attainment of a

better basis of experience”.32 Conversely “the Danish Supreme Court has stated that

non-incorporated treaties such as ICESCR do not have full effect in Danish Law”.33 In

short this leaves the status of the ICESCR in Denmark blurred.

For the Faroe Islands, different criteria apply as mentioned before, but otherwise the

same approaches of implementation remain relevant. Accordingly, the ICCPR 1966

and seven United Nations treaties have been adopted by the Faroe Islands.34 This

means that ESCR at least formally are to some extent protected by Faroese legislation.

The ICESCR is still not incorporated on the Faroe Islands which is arguably not in

accordance with the principles that human rights are universal, interdependent and

intertwined which has consistently been embraced and promoted in soft law35 by the

UN. Also, the ICESCR was announced publicly on the Faroe Islands only 23 years

after the Danish ratification, namely in 1999, and in an informal manner.36 Public

announcements are not influential legally for international laws, on the grounds that

they lay duties on states and not people. This procedure should arguably have been

performed simultaneously in Denmark and the Faroe Islands, both to inform the public

about the human rights enshrined in ICESCR and about the obligations of the state to

provide those human rights.

Moreover, the Faroese Ombudsman is mandated to supervise ‘the Faroese public

administration’37 and is able to make recommendations if deemed necessary. More

importantly the Ombudsman does not have the competency to enforce ESCR even if

the ICESCR was incorporated. This means that although recommendations from the

31 CESCR Addendum to Fourth Periodic Report: Denmark (n 26). Para 53-54 32 Ibid. Para 53 33 Danish Institute for Human Rights, ‘Parallel Report to CESCR - 5th Examination of Denmark’

(2013). 34 Human Rights Council, Report of the Working Group on the Universal Periodic Review – Denmark

(Published 11 July 2011) A/HRC/18/4. Para 29 35 VDPA 1993 (n 7). 36 ‘Bekendtgørelse Af International Konvention Af 16. December 1966 Om Økonomiske, Sociale Og

Kulturelle Rettigheder’ (1999) B Kunngerðarblaðið 82. 37 Løgting Act No. 60 on the Ombudsman of the Løgting 2000. <

http://lum.fo/Default.aspx?ID=10074 > (LUM)

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Ombudsman are generally heard and acknowledged, political decisions will trump

recommendations from the Ombudsman. Furthermore the Ombudsman shall not make

judicial recommendations that apply for the whole realm, the Faroese parliament and

bodies established under the Faroese parliament38. Given the fact that the Faroese

authorities have full autonomy over most social and economic policy areas, one could

pose the question whether this judicial principle is symmetrical and thereby whether it

applies to Danish courts in relation to developing ESCR on behalf of the Faroes. Until

case law in relation to ESCR has been developed, this matter remains speculative.

Nevertheless it has been argued that precedent cases in Denmark not necessarily reflect

the conditions on the Faroe Islands.39 This creates a suspicion that it is necessary to

approach the question regarding judicial symmetrical competencies with careful

consideration. This is arguably an important ‘lens’ through which the obligations of

the Faroe Islands to take steps to realize ESCR could be understood through if ESCR

will begin to develop judicially. However my personal experience researching for this

dissertation suggests that at the present moment legal cases and sources relating

specifically to the ICESCR on the Faroes are virtually non-existent. ESCR on the Faroe

Islands should therefore be analysed through other sources than through case law.

Overall, both courts and the Ombudsman have very limited competencies to enforce

ESCR with binding force. However it is arguably not sufficient for a constitutional

system to have the competences to enforce rights ‘on paper’ or ‘in principle’. Dworkin

argued regarding rights enshrined in the constitutional system in the USA that even if

“it adds something to the protection of moral rights against the government, it falls

short of guaranteeing these rights, or even establishing what they are”.40 It is

accordingly vital that the government takes rights seriously, especially because it

might require the sovereign decision maker to compromise his/her own interests in

favour of the rights holder, especially under exceptional circumstances. To clarify,

even if the Faroe Islands had a better established protection of ESCR rights, the

authorities could still choose to or not be able to enforce binding obligations to enforce

ESCR.

38 Ibid. Para 4(5) 39 Kári á Rógvi, ‘Precedence and Prejudice’ (2001) 1 Faroese Law Review 241. 40 Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013).

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The Icelandic recession of 2009 illustrates an important example where various ESCR

were not successfully protected by the Icelandic state. The Faroe Islands is both

historically, culturally, geographically and economically similar to Iceland. Iceland is

however different as it is a sovereign state, yet still this experience is arguably relevant

for the Faroes in terms of ESCR. The ICESCR was ratified by Iceland in 1979, is not

incorporated into domestic legislation, but to some extent protected in the Icelandic

Basic Law §76.41 In short, the right to health, education and social security were

violated as they included some of the first elements that were changed to deal with the

immense economic challenges of Iceland.42 Johnstone and Ámundardóttir establish

that “state parties have an obligation of conduct, implicit in article 2(1), to develop

plans of action to demonstrate how they intend to work towards realization of the

enumerated human rights”.43 This could ultimately contribute to upholding ESCR in

times of crisis. In the early 1990’s the Faroes were hit by a grave economic collapse

which was caused mainly of poor governance of the Faroese fishing industry,44 which

stood for an estimated 90% of the national income. Roughly 15% of the population

had to migrate from the Faroes, mainly because of lacking economic and social

facilities under the crisis. This illustrates why a ‘plan of action’ should be taken

seriously by states “regardless of the economic conditions”,45 and especially in

European countries where resource constrains generally are not as relevant as they are

outside Europe.46 This means that if an economic recession will materialize once more,

the people of the Faroe Islands should arguably learn from the Icelandic example in

respect of ESCR, and rather think of ESCR in a broader and more practical sense.

Accordingly the International Law Commission clarifies that the full realization of

ESCR “is an obligation of result, not of conduct”.47 Accordingly this is primarily a

practical matter while developing the general understanding of the legislation, words

and concepts enshrined in the ICESCR is important but arguably not an end in itself.

The CESCR General Comment 3 clarifies regarding §2(1) that the ‘steps’ should be

41 Rachael Lorna Johnstone and Aḥalheiḥur Ámundadóttir, ‘Defending Economic, Social and Cultural

Rights in Iceland’s Financial Crisis’ (2011) 3 The Yearbook of Polar Law 455. 42 ibid. 43 ibid. 44 Erling Isholm, Løgtingið 150 - 3. Bind (Løgtingið 2003). 45 Rachael Lorna Johnstone and Aðalheiður Ámundadóttir, ‘Human Rights in Crisis: Securing the

International Covenant on Economic, Social and Cultural Rights (ICESCR) in Economic Downturns’

(2013) 1 International Journal of Human Rights and Constitutional Studies 6. 46 ibid. 47 Johnstone and Ámundadóttir (n 41). 460

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“deliberate, concrete and targeted as clearly as possible towards meeting the

obligations recognized in the Covenant”.48 In particular it is the individual states’

responsibility to decide what is “most appropriate under the circumstances with respect

to each of the rights”.49 This is arguably relevant for the Faroe Islands, especially with

respect to the obligations under §2(1) of the ICESCR.

This is linked to the obligation of states to justify the intent of any given measures, or

lack of measures, through the CESCR reports.50 The first time the Faroe Islands

contributed to the Danish CESCR report was in 2009. The 2009 report does not address

or discuss in particular the Faroese obligations under §2(1), although other steps taken

to realize ESCR are discussed to varying degrees.51 Conversely the CESCR report from

2003 produced by the Danish administration described general challenges regarding

implementation of the ICESCR within the Realm, including the Faroe Islands. 52

However no particular steps taken by the Faroe Islands were included there. Given the

fact that the Faroese home rule has full autonomy on the majority of economic and

social areas, and that the Faroe Islands otherwise has been argued to have state-like

qualities,53 the Faroese understanding of its obligations under §2(1) of the ICESCR

should be addressed in the CESCR report. This could furthermore improve the

domestic and international understanding of the obligations of the Faroe Islands under

§2(1) of the ICESCR.

In short, the ICESCR has binding effect on the Faroe Islands. The ICESCR is however

yet to be implemented, either through incorporation, transformation or harmonization

of norms on the Faroe Islands. Recognizing the particular obligations of the Faroe

Islands under ICESCR is vital for realizing ESCR. Chapter 2 will analyse an attempt

of the Faroes attempts to realize ESCR under §2(1) of the ICESCR and furthermore

how the domestic constitutional reality limits the attempt to take steps.

48 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The

Nature of State Parties’ Obligations (Art. 2, Para. 1, of the Covenant) (Published 14 December 1990)

E/1991/23. (CESCR General Comment 3). Para 2 49 Ibid. Pt 4 50 Ibid. Pt 4 51 CESCR Fifth Periodic Report: Denmark (n 17). Para 365-532 52 CESCR Addendum to the Fourth Periodic Report: Denmark (n 28). Para 33-47 53 Mitens (n 18).

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2. Chapter

Attempting to realize ESCR on the Faroe Islands

There has been an influential political debate and some attempts to pass parliamentary

legislation on poverty alleviation and poverty thresholds on the Faroe Islands. In

contrast, Denmark has adopted a comprehensive development strategy called ‘The

Right to a Better Life’, whose objective is to combat poverty by embracing and

promoting the assumption that ‘universal and fundamental human rights serve as a

powerful means of redistribution’.54 The Faroe Islands moreover has no similar well-

planned or defined poverty alleviation strategy which necessarily reflects international

cooperation or principles. Rather political interests and NGO campaigns tend to guide

this process.

In order to analyse the obligations of the Faroe Islands to take steps towards realizing

ESCR it is necessary to conceptualize ESCR without case law and with a limited

number of legal materials. It is in this context argued by Sen that human rights can and

should be understood as ‘articulations of ethical demands’.55 There is an implicit

presumption that such ‘ethical claims will survive open and informed scrutiny’.56

Therefore rights, as ethical claims, can be located and analysed outside the legal

system as elements of other societal processes. ‘Whereas Bentham saw rights as a

“child of the law”, Hart’s view takes the form, in effect, of seeing some natural rights

as “parents of law”: they motivate and inspire legislation.’57 In respect to rights as

elements that ‘motivate and inspire legislation’ there are examples where the Faroe

Islands arguably in a rather vague sense ‘take steps’ towards realizing ESCR. This

process of progressively realizing ESCR is more informal and outside the scope of

recognized obligations and does not depend on human rights as a reference point.

Rather as Young argues, it is necessary to move away from the conception of human

54 Ministry of Foreign Affairs of Denmark, ‘The Right to a Better Life - Strategy for Denmark’s

Development Cooperation’ (2012). 1, 1 55 Amartya Sen, ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy & Public Affairs 315.

320 56 ibid. 320 57 ibid. 327

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rights as a ‘rhetoric of order’ and alternatively think of rights as an ‘energy source’.58

This also compliments the approach to analyse various non-legal elements which

‘inspire legislation’, especially because ESCR are not particularly ‘ordered’ on the

Faroe Islands.

Skogly argues that people in poverty live in “a reality where most rights are violated

most of the time”59 and that “this complex situation implies that it is impossible to

improve the overall human rights situation by tackling one violation at the time”.60

This comprehensive understanding of poverty is arguably useful to maintain when

analysing ESCR on the Faroes. To clarify, when analysing poverty one needs to

evaluate various factors relating to various rights. Accordingly Skogly highlights the

necessity to perceive ESCR as interdependent and interconnected: without the proper

implementation and fulfilment of the right to health, the right to education cannot be

sufficiently fulfilled and vice versa.61 In respect to poverty alleviation, ethical demands

should be understood in terms of interdependence and interconnectedness. It would

for example not be acceptable to alleviate people from monetary poverty and then

exclude them from public life.

On 24. February 2011 a proposal was presented in the Faroese parliament which

requests the minster of social affairs to establish a poverty threshold on the Faroes.62

According to this proposal the aim was ‘to legislate and establish the minimum amount

of money required for households to live in dignity’.63 This shows that the rights-holder

is the ‘household’, although no definition is given of a ‘household’. A household

generally represents an individual or group of individuals who share housing facilities.

To give a household the right for a life in dignity, does not necessarily give individuals

outside of the households the same rights. This can potentially exclude the parts of the

population, who don’t belong to households, for example homeless people or migrants.

As Pogge points out, the category of ‘poor’ can apply to all individuals64 as opposed

58 Katharine G Young, ‘the Minimum Core of Economic and Social Rights: A Concept in Search of

Content’ (2008) 33 Yale Journal of International Law. 113. 172 59 Sigrun I Skogly, ‘Is There a Right Not to Be Poor’ (2002) 2 Hum. Rts. L. Rev. 59. 75 60 ibid. 75 61 ibid. 76 62 Løgtingsmál nr. 85/2010: Uppskot til samtyktar um ásetan av fátækramarki 2010. 63 ibid. 64 Thomas Pogge, ‘Severe Poverty as a Violation of Negative Duties’ (2005) 19 Ethics and

International Affairs 55. 58

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to categories relating to race, gender or nationality which are more rigidly defined. On

this basis it is arguably necessary to include everybody, and thereby avoid using

undefined and potentially limiting categories such as the ‘household’, especially when

considering the principle of interdependence. Moreover §2(2) of the ICESCR states

that rights should be “exercised without discrimination of any kind as to race, colour,

sex, language, religion, political or other opinion, national or social origin, property,

birth or other status”. When ‘household’ is not defined, it is arguably unclear who is

included and who is excluded in this welfare provision. In the ‘Report on a Faroese

Poverty Line’ (RoP), which was researched and publish in 2014 by the Faroese

Ministry of Social Affairs, the household is more narrowly defined as a family with a

specific number of children.65 Accordingly this critique became more relevant and

arguably excludes some rights holders outside this category. However this has not been

established in practice.

After ongoing work and discussion on the proposal it was passed through parliament.

The right-holder was still the ‘household’. However the word ‘dignity’ had been

replaced by ‘basic living-standard’.66 Although neither of these concepts are well

defined, the focus of the discussion seems to change from the meaning of ‘dignity’ to

a question of basic needs. Setting economic and social standards according to basic

needs can be problematic. Young points out that setting requirements for basic needs

varies between different lifestyles and cultures.67 Moreover Young argues that it

depends on which particular ESCR one addresses, which specific method is used to

define the given standard. For example, the right to health is to greater extent

associated with dignity, while the right to education is connected to freedom, although

the same can be argued the other way around. Henceforth taking steps towards setting

a poverty threshold should not solely reflect one reference point such as either ‘dignity’

or ‘basic needs’. Rather conceptualizing the aim of the minimum threshold from

various perspectives would be preferable.

The RoP was as an important step towards legislating a poverty threshold.

Nevertheless, there are some critical notifications to be made regarding poverty

65 The Ministry of Social Affairs of the Faroe Islands, ‘Álit Um Føroyskt Fátækramark [transl.

“Report on a Faroese Poverty Line”]’ (2014). 66 Ibid. 67 Young (n 58). 131

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reduction on the Faroe Islands. The RoP defined ‘poverty’ as: “permanently limited

from living a life with the material resources, which are in accordance with publicly

acknowledged living-standards and lifestyles, and in which a person cannot

independently get out of the situation”.68 In comparison the CESCR statement on

poverty suggested a multi-dimensional definition of poverty: “Poverty may be defined

as a human condition characterized by sustained or chronic deprivation of the

resources, capabilities, choices, security and power necessary for the enjoyment of an

adequate standard of living and other civil, cultural, economic, political and social

rights”. 69 Which furthermore “reflects the indivisible and interdependent nature of all

human rights”.70 Accordingly it seems like the RoP’s definition of poverty does not

include a whole variety of elements relating to human rights standards. Merely

focusing on ‘resources’ excludes the focus on capabilities, choices, security, power

and other categories. Of course, this doesn’t mean that these elements necessarily are

excluded in practice. However this is arguably important to highlight because ESCR

are only to a limited extent enshrined in legal provisions and overall difficult to

enforce, as argued in chapter 1, it is important to observe poverty comprehensively

and multi-dimensionally. Moreover, the principles of interdependence and

interconnectivity should be recognized, when creating materials to serve as basis for

legislation. In effect, this was done to some extent in the RoP. When discussing the

definition of poverty the RoP mentions that social factors should be taken into

consideration.71 The report then explicitly states that this includes food, clothing and

the right to housing, which also is the basis for the poverty definition in the USA,72

while it is furthermore underlined that poverty is understood differently in

Scandinavian countries. In contrast, Fredman points out that in the USA “the Welfare

State provides means-tested assistance for the poor, while the middle classes make

their own private provision”.73 This means that because the middleclass is excluded

from welfare rights it tends to disapprove of such rights. In order to avoid the

68 The Ministry of Social Affairs of the Faroe Islands (n 65). 3 69 Statement by the UN Committee on Economic, Social and Cultural Rights (CESCR), Substantive

issues arising in the implementation of the International Covenant on Economic, Social and Cultural

Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights (Adopted 4

May 2001) E/C/.12/2001/10. (CESCR Statement on Poverty) Para 8 70 Ibid. 71 The Ministry of Social Affairs of the Faroe Islands (n 65). 13 72 ibid. 73 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford

University Press 2008). 233-234

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development of such unbalanced application of ESCR, it is important to use a

comprehensive definition of ‘poverty’. As such, all parts of society should in principle

be included while in reality not everybody would need welfare services. The purpose

of defining poverty through a multi-dimensional spectrum is accordingly to

successfully get rid of poverty – i.e. defining ‘poverty’ should not be an end in itself.

A narrow or minimalist focus on poverty can however potentially be effective, as it

can be easier to reach a consensus. Nevertheless, reaching consensus is similarly not a

goal in itself as it may be both “constitutive and destructive”.74 A firm normative

dimension found in universal human rights is necessary to prevent that ‘consensus’

doesn’t overlook factors that produce or reproduce poverty. This is especially relevant,

if the roots of poverty are derived from the general economic paradigm. Young argues

that if “the claim for the minimum core is made in order to increase the bundles of

commodities or consumption share of the disadvantaged”75 one might fail “to

challenge the underlying economic institutions which have produced the disadvantage

in the first place”.76 In order to identify the root cause of poverty the definition of

poverty should arguably address a more comprehensive list of concepts, for example

‘capabilities’, ‘choices’, ’security’ and ‘power’. Nevertheless, the meaning of these

concepts varies between contexts, where economic power is not necessarily political

power, which again may differ from physical power and so on. Ross argues that the

rhetoric of poverty is necessarily normative77 and that “our membership within the

community of law makes even silence a morally charged position”.78 There is an ethic

of ‘reader responsibility’: namely to ‘read with the largest measure of care,

imagination, and knowledge we can muster’.79 Henceforth it is also not in itself

sufficient to use comprehensive definitions, but one should remember the ethical

responsibility when reading, discussing and generally addressing issues of poverty.

In this context, the RoP used three models to analyse poverty. The first two were the

income-approach and the budget-approach, both using minimalist and material needs

74 Young (n 58). 145 75 ibid. 76 ibid. 77 Thomas Ross, ‘the Rhetoric of Poverty: Their Immorality, Our Helplessness’ (1990) 79

Georgetown Law Journal 1499. 1544 78 ibid. 1544 79 ibid. 1545

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and different elements of social factors to address poverty thresholds.80 However the

want-lack approach actually used a more comprehensive understanding of poverty,81

more similar to the one suggested by the CESCR. However the want-lack approach

was only superficially discussed in the RoP and then dismissed on the grounds that it

was too resource and work demanding. In particular, because poverty may be rooted

in complex political, economic and societal structures, this is arguably not acceptable.

Rather “while the common theme underlying poor people’s experiences is one of

powerlessness, human rights can empower individuals and communities”.82 In this

perspective ESCR were not sufficiently included, if one considers the RoP as a

potential source for the creation of legislation on the Faroe Islands.

The RoP was initiated because a broad range of different NGO’s put pressure and shed

light on the issue poverty on the Faroe Islands. A new social-care law was requested,

which in short is unbalanced and dates back to the 1960s.83 This suggests that resources

are limited in context of updating laws on the Faroe Islands which again may explain

why legislative preparatory work and comments are either very difficult to find or non-

existent. Because no practical result had been produced regarding poverty alleviation

in 2015, 4 years after the original proposal from 2011, ‘Í Menniskjum Góður Tokki’

and other NGO’s organized an anti-poverty campaign. The campaign called ‘Ímeðan

Vit Bíða’ (‘While We Are Waiting’), resulted in greater public awareness regarding

poverty and approximately 40.000£ were donated to anti-poverty ends. A bill was also

proposed which suggested that children in poverty, should get £150 extra per month.84

First, it should be noted that a monetary solution potentially also creates a simplistic

view on poverty, and a similar critique can be applied as to the narrow definition of

poverty in the RoP. Secondly, the working-committee which was created to administer

and adapt the £150 per month to children under the poverty threshold, was split into a

majority and a minority. Notably the majority opposed the proposal and was

represented by members of the right wing coalition, while the minority consisted

mainly left wing members of the opposition. The right wing majority argued that the

proposal should be dropped because it was too resource demanding to adapt the

80 The Ministry of Social Affairs of the Faroe Islands (n 65). 15-20 81 ibid. 25 82 CESCR Statement on Poverty (n 69). Para 6 83 Løgtingsmál nr. 85/2010: Uppskot til samtyktar um ásetan av fátækramarki (n 63). 84 Løgtingsmál nr. 157/2014: Uppskot til løgtingslóg um broyting í løgtingslóg um almenna forsorg

2015.

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institutions of the Ministry of Social Affairs to this.85 Sen argues about ESCR that in

the case of inadequate institutionalization “to work for institutional expansion or

reform can be a part of the obligations generated by the recognition of these rights”.86

Rather than using the institutional argument as an excuse to avoid alleviating poverty,

it should be recognized as an obligation to realize ESCR. Instead, although the left

wing minority of the committee highlighted the profound need for long term anti-

poverty strategies, the proposal was postponed. On 29. July 2015 a new election was

prematurely requested to take place on 1. September 2015, which means that the whole

anti-poverty project is temporarily stopped without any safe promise that it will

continue.

In this respect, the Faroese constitutional reality is not developed such that the

realization of the ESCR is ensured over time: the ICESCR is not incorporated and

other legal provisions are not effective enough as illustrated in chapter 1. The CESCR

clarifies that ESCR are “generally not be able to be achieved in a short period of

time”,87 which suggests that some long term mechanism is required to ensure ESCR

on the Faroes. Otherwise political interests will continuously trump the obligations of

the Faroes to realize ESCR, which evidently is what happened in respect to the poverty

alleviation project. The RoP can be used by future coalitions, but new projects may be

initiated and the current RoP project may not become influential legally. The CESCR

clarifies that it is not self-evident what is ‘appropriate’ for the particular state. In this

context Skogly maintains that because the right to not be poor is in some aspects not

efficient or achievable, then a solution could be that a “comprehensive approach to

human rights protection was adopted and implemented both by the official national

organs, the UN bodies, and also NGOs in the field”.88 Accordingly it would be possible

to prevent and monitor potential retrogressive measures relating to ESCR, which

notably is suggested by the CESCR.89 Again, it is important that such a step would not

be hindered by the controversy regarding the HRA 1946.

85 Álit til [transl. "committee comment"] løgtingsmáli nr. 157/2014: Uppskot til løgtingslóg um

broyting í løgtingslóg um almenna forsorg 2015. 86 Sen (n 55). 320 87 CESCR General Comment 3 (n 48). Para 9 88 Skogly (n 59). 75 89 CESCR General Comment 3 (n 48). Para 9

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In short, a poverty alleviation project has been proposed, initiated and at least

temporarily stopped. The RoP has shed light on the issue of poverty. The

understanding of poverty in the RoP is however too narrow and should include a more

comprehensive categorization of poverty. However poverty alleviation on the Faroe

Islands seems to be limited by the political process. Moreover the long term realization

of ESCR on the Faroes is determined by the domestic constitutional reality which is

limited by political decisions and interests and more importantly the lack of established

and relevant legal tools to ensure ESCR. Chapter 3 will discuss and analyse different

potential solutions and then finally suggest one potential solution.

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3. Chapter

Towards a Bill of Rights for the Faroe Islands

That the continuation of the poverty alleviation project was either temporarily or

permanently determined by the new election, is not unique for issues of poverty but

includes other projects relating to ESCR. Similarly, the new election was not the only

political event which could limit the process of realizing ESCR. Other unexpected

circumstances could in principle do so as well. There is notably no human rights

instrument established to prevent the Faroes Islands from ending in a similar crisis as

in the 1990s or the 2008 Financial Crisis, which again can cause the violation of a

whole range of ESCRs.

One way to deal with this issue could be for the Faroe Islands to become members of

the ICESCR Optional Protocol from 2013. In short, this would enable ‘individuals or

groups of individuals, under the jurisdiction of a State Party, claiming to be victims of

a violation of any of the economic, social and cultural rights set forth in the Covenant

by that State Party’90 to complain to the CESCR. However this would require Denmark

to sign, ratify or accede to the optional protocol, which in short means that the before

mentioned challenges regarding ESCR would still have to be dealt with within the

Danish Realm. Dennis and Stewart criticize the optional protocol by arguing that the

issues of ‘criteria, capacity, costs, and conflicts with other existing adjudicative

procedure’ would not be solved in respect to ESCR.91 Furthermore, no institution is

more competent to produce ‘relevant economic, demographic, and statistical data than

the government concerned, much less the time and ability to make more informed or

effective choices about the allocation of limited resources.92 In my opinion this reflects

the general picture within the Danish Realm. The controversy regarding the HRA 1948

and the Danish Basic Law is not well understood domestically and needs to be solved

by the relevant parties. Before that the optional protocol would have limited effect.

90 UN General Assembly, Optional Protocol to the International Covenant on Economic, Social and

Cultural Rights : resolution (Adopted 5 March 2009) A/RES/63/117 91 Michael J Dennis and David P Stewart, ‘Justiciability of Economic, Social, and Cultural Rights:

Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water,

Housing, and Health?’ (2004) 98 The American Journal of International Law 462. 515 92 ibid.

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This would in short not by itself get rid of the limitations of the Faroe Islands to realize

rights under ICESCR.

The United Kingdom is another example where the international human rights law has

been incorporated into domestic legislation, specifically through the Human Rights

Act (HRA) 1998. Von Bueren argues that the HRA 1998 undermines the fundamental

human rights principles of indivisibility and universality “by incorporating only civil

and political rights and excluding economic, social and cultural rights”.93 The Faroe

Islands has only incorporated the ICCPR which in a way reflects a similar pattern.

However, given that the HRA 1998 is relevant for UK courts, it should be noted that

the courts on the Faroe Islands are permanently under Danish rule. Although ESCR on

the Faroes in principle could be justiciable through Danish courts, this has never been

illustrated in practice. As put forward in chapter 1, one should be sceptical regarding

the question whether this would ensure the protection of ESCR on the Faroes,

especially when considering that most socio-economic policy areas are under the

competencies of the HRA 1948. Von Bueren argues that “to ignore the potential of the

HRA [1998] to alleviate poverty and vulnerability is to hide from the challenge and to

shun progressive developments both in other countries and in international human

rights law”.94 Similarly, the ICESCR could be incorporated into Faroese legislation

and thereby contribute to both short and long term poverty alleviation. However to

ensure that the steps taken towards full realization of ESCR, this is arguably not

sufficient, as it would still be determined by the controversies of the HRA 1946. The

Faroese Ministry of Internal Affairs established in 2011 that “a new procedure is

envisioned where every proposed piece of legislation must be explicitly assessed in

relation to the international obligations of the Faroes, primarily with regards to the

human rights instruments to which the Faroe Islands are party”.95 This is an important

method to promote human rights on the Faroe Islands and Von Bueren’s critique

regarding the lack of ESCR could arguably have been relevant in this example.

Nevertheless this project also falls victim to the same prioritization of political vested

interests as it amended quite frequently. Similarly, in 2005 the Faroe Islands

established a Ministry of Foreign Affairs, which addressed international human rights

93 Geraldine Van Bueren, ‘Including the Excluded: The Case for an Economic, Social and Cultural

Human Rights Act’ 10 Public Law 456. 456 94 ibid. 470 95 Danish submission to UPR 2011 (n 26). Para 130

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responsibilities, which first has been integrated into the prime-minister’s office and

now has been mentioned to be introduced again.96 This illustrates how frequently and

fundamentally the domestic constitutional reality can change from one coalition to the

next on the Faroe Islands. In short, this is not necessarily in itself negative, but it

certainly produces a challenge to realize ESCR for the Faroese authorities mainly due

to a lack of stability. Furthermore, the Limburg principles on implementation state that

“non-governmental organizations can play an important role in promoting the

implementation of the Covenant. This role should accordingly be facilitated at the

national as well as the international level”.97 The creation of a human rights institution

for the Faroe Islands was proposed on 27. May 2015 under the UPR hearing on human

rights, a public event organized before the submission to the UPR report.98 A human

rights institution has not been established on the Faroes yet, although both Denmark

and Greenland have one. Evidently, there is no existing constitutional or political force

which ultimately ensures that human rights are protected or at least progressively

realized on the Faroe Islands. However, a human rights institution would contribute to

establish the general assumption that human rights are not violated on the Faroe

Islands. This means that creating the human rights institution could be an important

step in the right direction. However more profound changes need to take place, because

such an institution would necessarily be dependent on political will.

In this respect, Chapman argues that monitoring the realization of ESCR would be

more efficient if the violation was more clearly defined. Chapman then illustrates two

situations which violate the obligations under §2(1) of the ICESCR and which

interestingly are strikingly similar to the situation of the Faroe Islands. The first is the

following: "In some Canadian court decisions and in recent Canadian constitutional

discussions, social and economic rights have been described as mere 'policy objectives'

of governments rather than as fundamental human rights. Provincial human rights

legislation has not always been applied in a manner which would provide improved

96 ‘Miðflokkurin Vil Nú Endurstovna Uttanríkisráðið’ (Kringvarp Føroya)

<http://kvf.fo/netvarp/uv/2015/06/27/miflokkurin-vil-n-endurstovna-uttanrkisri> accessed 4

September 2015. 97 UN Commission on Human Rights, ‘The Limburg Principles on the Implementation of the

International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly

122. 98 Margretha Nónklett, ‘UPR Hoyring Um Mannarættindi 27. Mai 2015 - Samandráttur’ (2015)

<http://www.lms.fo/media/6586/fr%C3%A1s%C3%B8gn-hoyring-um-mannar%C3%A6ttindi-

endaligt.pdf>.

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remedies against violations of social and economic rights".99 This could have been an

example of what courts could have shed light on in respect to the Faroe Islands. In this

regard it could be a challenge as the courts are under Danish rule, but this remains

speculative until case law is developed. As illustrated in chapter 2, ESCR are subject

to particular policy objectives that are completely determined by the political

coalitions. Moreover the poverty alleviation materials did in some aspects not reflect

the human rights standards promoted by the CESCR. As was put forward in Canada,

fundamental human rights should not depend on policy objectives, which arguably

also should be the case for the Faroe Islands. In this respect, the second example from

Chapman underlines some important violations under §2(1) of the ICESCR, which are

highly relevant for the Faroese constitutional reality: “The rights enumerated in the

Covenant are contained neither in the Constitution of Kenya nor in a separate bill of

rights, and have not been incorporated into Kenyan national law. Further, there is no

institution or national machinery with responsibility for overseeing implementation of

human rights in the country as the courts do not play an effective role in the

enforcement of human rights”.100 Kenya is notably different from the Faroes in various

aspects but these comments regarding the violation of §2(1) arguably reflect the

contemporary situation on the Faroe Islands. The Faroe Islands has not enshrined

ESCR in a constitution, nor in a separate bill of rights and has not incorporated ESCR

into domestic law or enforced ESCR in courts.

The Faroese authorities did attempt to create a sub-national constitution in the early

2000s, in which a comprehensive range of ESCR were enshrined within the second

section.101 However, the DMJ, by request of the Danish prime minister, commented

that the sub-national constitution was “de facto secession from the Realm”.102

Secession was not mentioned anywhere in the proposed sub-national constitution, not

even implicitly. Indeed “very deliberately, words with connotations to sovereignty and

secession such as ‘State’ were not used but stuck to the word ‘Land’, which historically

and continuously awakens sub-national associations”.103 Moreover, one aim of the sub-

99 Audrey R Chapman, ‘A“ Violations Approach” for Monitoring the International Covenant on

Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23. 50 100 ibid. 101 Jóan Pauli Joensen and Rúni Rasmussen, Stjórnarskipan Føroya (Stjórnarskipanarnevndin 2006)

<http://www.lms.fo/media/3626/alit_stjornarskipan_foroya.pdf>. accessed 15.07.2015 102 á Rógvi and Larsen (n 10). 343 103 ibid. 344

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national constitution was “to serve as a special vocabulary and structuring of public

debate”104 partially by promoting a human rights framework and “to create an internal

consensus on the subject of Faroese association to Denmark”. Interestingly there was

a broad political consensus on the content of the proposal, which generally is quite

uncommon on the Faroes. This could moreover have been used to in context of projects

such as the one on poverty alleviation, especially to avoid that particular vested

political interests determine a given discourse. According to á Rógvi and Larsen the

DMJ promoted an “imagined perception that a wish from the Faroese for their own

Constitution is a wish for the creation of their own (internationally recognised)

State”.105 Regardless of who is correct on this matter, ESCR are still not well and safely

founded on the Faroe Islands. It is in this sense that the domestic constitutional reality

should be interpreted such that ESCR are sufficiently protected. Such an attempt to

found a human rights instrument which embraced ESCR should in particular not have

been stopped due to such a restrictive interpretation of domestic constitutional reality.

In other words, the Faroe Islands has obligations to realize ESCR and without the tools

necessary to do so, political decisions will continue to trump ESCR, as illustrated in

chapter 2.

This reflects one potential reason that the Faroese situation reflects the same pattern as

in Kenya, namely that there is no ESCR enshrined in a constitution or a separate bill

of rights. The Faroe Islands should arguably attempt to create such a stabile foundation

for ESCR. The controversial discussion about the sub-national constitution should not

determine the status of ESCR. Moreover, a bill of rights resting on a composed and

stabile foundation, should arguably not be limited because of this enigma of

constitutional controversies. A bill of rights could enshrine ESCR, a multi-dimensional

definition of poverty and in general the human rights standards to overcome the

potentially changing will and interest of political coalitions. Most importantly, this

could ensure that the obligations of the Faroe Islands under §2(1) were not limited by

discussions about the domestic constitutional reality, as it could stand detached from

this discussion. If the bill of rights stood detached, rather than together with other

constitutional instruments, it could potentially become perceived as weak. It was

nevertheless pointed out by Dworkin that an institution of rights is “crucial, because it

104 ibid. 347 105 ibid. 347

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represents the majority’s promise to the minorities that their dignity and equality will

be respected. When the divisions amongst groups are most violent, then this gesture,

if law is to work, must be most sincere”.106 To recollect the crisis in Iceland in 2008

and on the Faroe Islands in the 1990’s, a bill of rights could in effect potentially

contribute to preventing crisis from happening, for example through structuring public

discourses such as the one on poverty alleviation, and more importantly by

emphasising that the Faroese authorities are taking ESCR seriously, both in stable and

unstable times. Of course this would again require the prioritization of political work

on the matter, consensus making, resources and research. However, a human rights

framework was created under the creation of a sub-national, which more importantly

still exists and by content is still completely relevant. This is an important fact,

especially if it would be opposed by arguments which claimed that this project would

be too expensive in terms of work and resources.

By adopting a bill of rights as separate from to the sub-national constitution it would

arguably have been important to highlight that the bill of rights did not necessarily

attempt to secede from the Danish realm, as according to the interpretation of the

DMH. Rather it should be highlighted that a bill of rights is in itself necessary for the

full realization of ESCR on the Faroes, and in general to uphold human rights

standards. If a project which addresses ESCR realization takes place is stopped

because of some event, for example the premature request for a new election, then a

bill of rights could constitute a certain continuation of the realization of ESCR. A bill

of rights would more likely make the Faroe Islands conduct a process to realize ESCR

and by informing people about the socio-economic right the people of Faroe Islands

have. Most importantly, a bill of rights standing separate to a sub-constitution would

ensure that the Faroe Islands more likely take ESCR seriously – both through conduct

and through results.

In short, the Faroe Islands could manage to progressively realize ESCR both by

acceding to the optional protocol of the ICESCR, by incorporating the ICESCR into

domestic legislation or by creating a human rights institution. However, the Faroese

parliament and the government have a join obligation to realize ESCR on the Faroe

Islands. At times the political process does, as illustrated in chapter 2, not manage to

106 Dworkin (n 41). 246

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respect its obligations. On these grounds it is necessary to establish a human rights

instrument. The attempt to create a sub-national constitution, which included a

comprehensive bill of rights, was limited by a restrictive interpretation of the domestic

constitutional reality. It is not only possible but also necessary to establish a bill of

rights, which aims at protecting ESCR. To make sure that such a bill of rights would

not be limited by controversial political discussions, it would arguably be a viable

solution to found it separate to the other constitutional instruments. As such, a bill of

rights standing separate would also give teeth to the ethical demands to live up to

ESCR, especially in times of crisis and political turmoil.

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Conclusion

The first chapter established that when Denmark ratified the ICESCR in 1972 it

became legally binding for the Faroe Islands. Nevertheless the HRA 1948 outlines that

if a matter has special interest for the Faroes, it has to be discussed in the Faroese

parliament before an answer is given back to the Danish parliament. The ratification

is then stopped if the answer is negative. In effect, international laws have no effect

unless they are incorporated. Under the HRA 1948 the Faroe Islands has established

autonomy over most socio-economic policy areas. Therefore the Faroe Islands have

different obligations to realize ESCR than Denmark has. There is however a

controversial discussion regarding the qualities of the Faroe Islands as a sovereign

state, which in some aspect blurs the obligations to realize ESCR. As the people of the

Faroe Islands experienced in the 1990s crisis and Iceland in 2008 recession, there is a

serious need for the Icelandic state and the Faroe Islands to live up to their obligations

in times of financial crisis. In comparison with the ICCPR, the ICESCR is not yet

incorporated and researching for this analysis suggests that it is nearly impossible to

find any explicit references to the ICESCR in legal cases or sources on the Faroe

Islands. Contributing to the CESCR reports could elaborate and develop the Faroe

Islands understanding of the obligations it has under the ICESCR and has to some

extent already done so. One way to meet challenges in times of crisis could be to create

a plan of action, which was suggested by Johnstone and Ámundardóttir in the context

of Iceland.

Chapter two then illustrates a poverty alleviation project which represents an attempt

of the Faroe Islands to take steps to realize ESCR under the ICESCR. This had to be

made by analysing materials which have the potential to form and shape legislation

relating to ESCR, partly because case law is practically non-existent. The focus on

poverty is primarily important because poverty is a broad phenomenon, in which

various rights are violated. Analysing poverty is therefore to some extent

representative for general approach to ESCR on the Faroes. Although the RoP created

an important focus on the issue of poverty, there was some important criticism to be

made. First, the definition of the rights holder was not well defined, and ended up being

limited to families with children. Anybody can become poor, so it is important to not

limit the right holders to a narrowly defined category of people. This can moreover

create a negative attitude towards ESCR, as seemingly is the case of welfare rights in

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the USA. Secondly, the definition of poverty used in the RoP was arguably too narrow

as it focused primarily on material needs. As the CESCR definition of poverty suggests

it should have included a multi-dimensional definition, which enabled more

comprehensive measures to alleviate poverty. Young pointed out the importance of

analysing the roots of poverty. The economic institutions which are used to alleviate

poverty with might also be the roots of poverty. Understanding poverty in a

comprehensive way is therefore vital. This shows that there are some challenges to

create materials that could inspire legislation and which also sufficiently uphold

human rights. Ultimately, a new parliamentary election was prematurely requested

which at least temporarily stopped the poverty alleviation project. There is no legal

guarantee that the work towards alleviating poverty on the Faroe Islands will continue.

The third chapter therefore suggests that a bill of rights should be established separate

to the constitutional framework. Á Rógvi and Larsen showed that the attempt to adopt

a sub-national constitution was limited by the DMJ’s opinion that this attempt was in

effect the same as secession. This severely limits the opportunities to establish a bill

of rights with a comprehensive framework of ESCR. Other possibilities exist such as

acceding to the optional protocol of the ICESCR, to incorporate the ICESCR and to

adopt a human rights institution. These possibilities are nevertheless limited to the

political decision making process and more importantly the limitations in relation to

creating the necessary constitutional instruments to realize ESCR. It is important to

keep in mind that while this process to ensure ESCR continues, there is constantly a

real chance that political discontinuation emerges. This could be when elections are

requested prematurely, which furthermore prohibits the realization of ESCR, or worse

still that the Faroe Islands ends in a financial crisis as in the 1990s. Even if the election

was not requested the discourse of the RoP lacked fundamental protection of human

rights, in particular reflecting the principles of universality and interdependence.

Accordingly it is vital that both the DMJ and domestic political forces on the Faroes

recognize the importance of a fundamental human rights instrument. The constant

chance for political discontinuation and emergency situations such as financial crisis

should oblige the Faroe Islands to take ESCR seriously. In addition, a bill of rights

could ensure that discourse relating to ESCR, such as the RoP, would reflect a content

more in accordance with international human rights. On these grounds the obligations

of the Faroe Islands under §2(1) of the ICESCR to ‘take steps’ towards the full

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realization of economic and social rights should not be limited by a restrictive

interpretation of the domestic constitutional reality. Adopting a bill of rights with a

comprehensive framework of both CPR and ESCR could arguably be an important

first step.

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