Denmark

2. The state duty to protect human rights

2.1 UNGPs on the state duty to protect [page 10]

“The state can protect human rights by (not exhaustive):

• Enforcing laws (including law with extraterritorial implications) that enable rather than constrain businesses to respect human rights. …”

2.3 Actions taken 

Extraterritorial legislation [page 15]

“Direct extraterritorial legislation and enforcement includes criminal regimes that allow for prosecutions based on the nationality of the perpetrator no matter where the offence occurs. The Danish Government wishes to engage in the discussion on extraterritorial legislation as proclaimed in the UNGPs and as recommended by the Danish Council for CSR. Acknowledging the complexity of the issue, the Government has taken the following initiatives:

• At an international level the Danish Government actively promotes the discussion on extraterritorial legislation, in particular the need for joint solutions. The Government has recommended that the Council of Europe should take the lead on the issue of extraterritoriality. The Council of Europe would be an excellent point of departure for this discussion as it covers virtually the entire European continent and focuses on the protection of human rights. Furthermore the Council of Europe is already working on these issues through its Steering Committee for Human Rights.
• The Government has recommended that the second annual UN Forum on Business and Human Rights could focus on the issues of extraterritoriality as this is a challenge for every country to implement.”

2.4 Planned actions 

Extraterritorial legislation [page 16]

“To further engage in the issue of extraterritorial legislation, the Danish Government has planned the following initiative:

• At national level the Government will put together an inter-ministerial working group which will discuss the need for and feasibility of legislation with extraterritorial effect in areas of particular relevance. The group will look at what other countries have done and are doing in this area with the purpose of learning what works and what does not work. Finally, the group will examine the need for judicial prosecution of severe human rights impacts as recommended by the Danish Council for CSR.”

4. Access to remedy

4.2 Recommendations from the Council for CSR on access to judicial and nonjudicial remedy

Recommendations on judicial remedy [page 20]

“In terms of legislation with extraterritorial effect, the Council recommended that the Danish government, in addition to the international work, consider introducing relevant national legislation for particularly gross violations. A balance should be established between, on the one hand, the need to prosecute particularly gross violations and maintain an overwhelming sense of justice, and, on the other, the possibilities of examinating violations in practice.”

Appendix 1, GP 2 continued 

State Duty to Protect, Extraterritorial legislation [page 24]

“At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis. Within these parameters some human rights treaty bodies recommend that home States take steps to prevent abuse abroad by business enterprises within their jurisdiction….. Other approaches amount to direct extraterritorial legislation and enforcement. This includes criminal regimes that allow for prosecutions based on the nationality of the perpetrator no matter where the offence occurs. Various factors may contribute to the perceived and actual reasonableness of States’ actions, for example whether they are grounded in multilateral agreement.”

Status in Denmark, (initiatives implemented before the UN ratification of the Guiding Principles) [page 24-25]

“According to the Criminal Code, acts committed outside the Danish territory are subject to Danish criminal jurisdiction in certain specified cases. Criminal liability presupposes that the Danish pe-nal provision that may be violated also applies to acts committed abroad (extraterritorial applicability). The question of whether a penal provision has extraterritorial applicability is not generally regulated by law. Instead, the question depends on interpretation in each case of the particular penal provision. Generally, the penal provisions in the Criminal Code have extraterritorial applicability. Conversely, other penal provisions generally only apply to acts committed within the Danish territory.”

Initiatives taken or planned as a dedicated measure to implement the UNGPs (after the UN ratification of the Guiding Principles) [page 25]

“The Government has recommended to the Council of Europe that Drafting Group on the Human Rights and Business under the Council of Europe should take the lead on the issue of extraterritoriality. The Council of Europe would be an excellent point of departure for this discussion as it covers virtually the entire European continent and focuses on the protection of human rights. Furthermore, the Council of Europe is already working on these issues through its steering committee for human rights.

The Government has recommended that the second annual forum on Business and Human Rights could focus on the issues of extraterritoriality as this is a challenge for every country to implement individually.

The Government has put together an interministerial working group which will discuss the need for and feasibility of legislation with extraterritorial effect in areas of particular relevance. The group will look at what other countries have done and are doing in this area with the purpose of learning what works and what does not work. Finally, the group will examine the need for judicial prosecution of severe human rights impacts as recommended by the Danish Council for CSR.”

Appendix 1, GP 26

Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 34]

“At international level the Danish Government actively promotes the discussion of legislation with extraterritorial application, in particular the need for joint solutions (see UNGPs 2).”