Foreign Policy Act of the Faroe Islands
Act No. 80 of May 14th 2005
on the Conclusion of Agreements under International Law by the Government of the Faroes
This Act is based upon a Treaty between the Government of the Faroes and the Government of Denmark as equivalent Parties.
(1) The Government of the Faroes may negotiate and conclude agreements under international law with foreign states and international organisations, including administrative agreements, which relate entirely to subject matters under the jurisdiction of the Authorities of the Faroes.
(2) Subsection (1) shall not apply to the negotiation and conclusion of agreements under international law, which concern both the Faroes and Greenland. Following a joint decision by the Government of the Faroes and the Government of Greenland, the two governments may, however, act jointly with respect to agreements under international law in accordance with the provisions of this Act.
(3) Agreements under international law which have been entered into in accordance with subsections 1 and 2, second sentence, may be terminated according to the same provisions.
(4) The provisions of subsections (1)-(3) shall not apply to agreements under international law affecting defence and security policy, or agreements which are to apply to Denmark or which are negotiated within an international organisation of which the Kingdom of Denmark is a member.
(5) The provisions of subsections (1)-(3) shall not limit the constitutional responsibility and powers of the Danish Authorities relating to the negotiation, conclusion and termination of agreements under international law including agreements, which are covered by subsections (1)-(3).
(1) Agreements under international law pursuant to Section 1 (1) shall be entered into on behalf of the State by the Government of the Faroes under the designation the Kingdom of Denmark in respect of the Faroes. Agreements under international law pursuant to Section 1 (2), second sentence, shall be entered into jointly by the Government of the Faroes and the Government of Greenland under the designation the Kingdom of Denmark in respect of the Faroes and Greenland. Other similar designations may, if necessary, be established pursuant to subsection (2), second sentence.
(2) The present Act presupposes close co-operation between the Government of the Faroes and the Government of Denmark in order that the overall interests of the Kingdom of Denmark should not be disregarded and that the Government of Denmark should be informed of intended negotiations, before these are commenced, and of the progression of the negotiations, before agreements under international law are entered into or terminated. The Government of Denmark shall lay down rules establishing the frameworks for co-operation following negotiations with the Government of the Faroes.
Section 8 (2) of the Act on Home Government of the Faroes shall be applied correspondingly in the appointment of representatives of the Government of the Faroes to diplomatic missions of the Kingdom of Denmark to attend to subject matters under the jurisdiction of the Authorities of the Faroes.
Where international organisations allow entities other than states and associations of states to attain membership in their own name, the Government of Denmark may, at the request of the Government of the Faroes, decide to apply or support an application for this purpose for the Faroes, where this is consistent with the constitutional status of the Faroes.
This Act comes into force on 29 July 2005.
1. General comments
In the Home Government Act section 5, subsection 2 stipulates that the Kingdom of Denmark is responsible for the foreign affairs of the Faroes. In section 5, subsection 1, it is stipulated that the Faroes should respect international law that is in effect in the country.
In addition to the above-mentioned provisions of section 5 are those of section 8. The most important subsection in section 8 is subsection 4, which stipulates that, with regard to special Faroese matters, and when it is not deemed to be inconsistent with the interests of the Kingdom of Denmark, the Danish Minister of Foreign Affairs may authorize Faroese representatives to conduct direct negotiations, if so requested, with the participation of the Danish foreign service.
As members of parliament well know, all political parties in the Faroese Parliament have since 1948 – doubtless without exception – desired the greatest possible Faroese influence in these matters. Increased competence in the area of foreign policy has particular significance as more and more areas of competence are assumed by the Faroes.
It makes no sense to have internal policy competence in an area for which there is not also the equivalent foreign policy competence, especially as globalization means that national law becomes increasingly subordinate to international law.
In addition, there is no doubt that enhanced Faroese foreign policy activities are a precondition for social development and economic growth within the country, as the influence of globalization increases.
During his address at the opening of the Danish Parliament on 1 October 2002, the Danish Prime Minister announced that Denmark was prepared to enter into negotiations with the Faroes and Greenland on a new division of competence with respect to foreign policy that would enable the Faroes and Greenland to play a significantly more active role in their own foreign affairs.
Based on this announcement, negotiations were entered into between the Faroes, Greenland and Denmark. The proposed legislation is the negotiated settlement resulting from exhaustive and difficult negotiations – and as the saying goes, every little bit helps.
Regarding the status of the proposal in terms of international and constitutional law, reference is made to the general comments to Parliamentary Bill number 91/2004: Proposal for an Act on the Assumption of Matters and Fields of Responsibility by the Faroese Authorities. As in that Bill, this proposed legislation also involves two parallel proposals, a Faroese and a Danish, each with its own comments. The Danish legislative proposal will be submitted to the Faroese Parliament as a recommendation to implement an act of the Kingdom of Denmark.
The overall advantages for the Faroes found in section 1, section 2, section 3 and section 4 in the proposed legislation in comparison to section 8 in the Home Government Act are set forth below:
- The Faroes will of their own accord have the authority to enter into negotiations with foreign states and international organisations, to conclude agreements and rescind said agreements related to all those areas for which the Faroes have exclusive competence, without seeking the consent of the Kingdom of Denmark. In other words, the foreign policy competence of the Faroes is now established by law rather than in ill-defined full powers from a Danish minister of foreign affairs. In this connection, it is worth noting that the customary practice whereby the Faroese Prime Minister co-signs international agreements with the Danish Foreign Minister will no longer apply. The practice will now be that the Faroese Prime Minister is the sole signatory for the Faroes to international agreements, or that the Faroese Prime Minister delegates the authority to sign such agreements.
- The Faroes can of their own accord have direct diplomatic interaction with foreign states and international organisations in all areas of exclusive competence, now that the former requirement for the participation of the Danish Foreign Service no longer applies.
- The Faroes may have diplomatic envoys in all foreign states and international organisations with respect to all areas of exclusive competence. The Home Government Act stipulates that Faroese envoys may only be accredited to those countries in which the Faroes have special commercial interests. The new law allows for a considerable expansion of scope in diplomatic activity, as the Faroes may now as a general rule designate envoys in all countries and international organisations in which the Kingdom of Denmark is represented.
- The Faroes may in certain circumstances enter into membership and associated membership of international organisations in their own name, when such organisations permit such membership pursuant to their own rules and when this is consistent with the constitutional status of the Faroes. To date, only the Kingdom of Denmark has been able to apply for such membership or associated membership on behalf of the Faroes. Now, the Faroes may themselves apply for membership. Pursuant to section 1, the Faroes may participate as a member of international organisations under the name of the Kingdom of Denmark, when Denmark is not a member. Pursuant to section 4, the Faroes may, however, participate as a member in their own name regardless of whether Denmark is a member.
To a certain extent, however, the practice set forth in section 5, subsection 2 and section 8, subsection 4 in the Home Government Act is maintained relevant to section 1, subsection 5 and section 2, subsection 2, respectively, in this proposed legislation.
The procedures laid down in section 8, subsection 4 of the Home Government Act, whereby the Faroes in each and every case were required to request a negotiating mandate from a Danish minister of foreign affairs, have led to difficulties and in many instances have damaged Faroese foreign affairs interests. Considerable time has elapsed before receiving a response, and in some instances no response at all has been received. Moreover, there have also often been delays in receiving confirmation of a result negotiated by the Faroes. Such delays have resulted in certain issues being more or less neglected entirely.
Section 8, subsection 4 of the Home Government Act is not rendered meaningless in comparison to the provisions set forth in section 1, subsection 1 in the proposed legislation. With regard to areas, which are not under the jurisdiction of the Faroese Authorities, the provisions of section 8, subsection 4 still apply.
The proposed legislation is the result of negotiations and subject to the approval of the parliaments of the Faroes and Denmark and has therefore not been submitted previously for comment and review in the Faroes.
The provisions in this law relate to relations with foreign states and international organisations. However, within the international community there are a multitude of organisations that are not created by states. Such international non-governmental organisations are normally established to promote specific areas of interest, such as sport and culture, between relevant national organisations within countries. The opportunity for Faroese national organisations to acquire membership in such non-governmental international organisations is not related to the provisions in this law. Nevertheless, it is conceivable that increased Faroese participation on the international scene pursuant to this law will also enhance the visibility of the Faroes in general, with the associated effect that international non-governmental organisations will be more favourably inclined towards membership applications from the Faroes.
The Faroese Parliament is advised that, after agreement was reached with the Government of Denmark regarding this proposed legislation, two other agreements related to foreign policy competence were concluded with the Government of Denmark in Fámjin on 29 March . One concerns administrative cooperation and the other collaboration on joint matters, including security and defence policy.
2. Consequences of the proposed legislation
The consequences of the proposed legislation can be divided into two areas, namely those consequences related to the full application of the law and those consequences related to the conclusion of international agreements pursuant to the law.
Regarding the former, the proposed legislation concerns the standing competence of the Faroes to negotiate directly with foreign states and international organisations, rather than having to seek a full power from Denmark in each separate case, As such, the legislation is not initially expected to have consequences such as:
- Fiscal consequences for the national treasury.
- Administrative consequences vis-à-vis the national government or the municipalities.
- Financial or administrative costs for the business sector.
- Environmental consequences.
- Consequences for special regions of the country.
- Social consequences for certain social groups or associations.
Eventually, however, the legislation will result in considerably more Faroese activity in foreign affairs which will generate greater demands in the administration, and in particular in the Faroese foreign service.
It is obvious that there will be consequences related to the conclusion of international agreements pursuant to the law. Such consequences will be brought to the attention of the Faroese Parliament when agreements are submitted to the Parliament for adoption pursuant to section 52, subsection 2 of the Constitution of the Faroes or when legislation to implement provisions of instruments under international law are submitted to the Parliament for adoption.
3. Specific comments
To Section 1, subsection 1:
This subsection stipulates that the Faroes can have unrestricted diplomatic interaction with foreign states and international organisations in order to negotiate and conclude international agreements, including administrative agreements relevant to all areas of exclusive competence. As international organisations are generally established through agreements under international law, the provision also encompasses Faroese membership in international organisations.
To Section 1, subsection 2:
This subsection stipulates that when Denmark is not a party to an agreement under international law or the European Union represents Denmark as a party to an international agreement, the Faroes and Greenland may, as has been the rule until now, become a joint party to the same international agreement under Danish leadership. On the other hand, the Faroes and Greenland may agree to act as a joint party to an agreement, independent of Denmark, under joint Faroese-Greenlandic leadership. The provision includes international organisations that are established through an agreement under international law. This provision does not prevent the Faroes and Greenland from maintaining their status as independent parties to NAMMCO and similar international organisations.
To Section 1, subsection 3:
This subsection stipulates that, just as the Faroes may conclude international agreements pursuant to subsection 1 and subsection 2, second sentence, they may also withdraw from such agreements pursuant to the same provisions.
To Section 1, subsection 4:
This subsection stipulates that the Faroes may not conclude agreements under international law related to defence and security policy. The provision does not however apply to agreements under international law related to security and defence policy when the other party to the agreement is not represented either by its foreign ministry or its defence ministry.
Similarly, this provision stipulates that the Faroes may not conclude agreements under international law that also extend to Denmark or which are concluded within organisations in which the Kingdom of Denmark is a member. However, it should be borne in mind that as the EU itself becomes a party to internationally binding agreements on behalf of its member states, this provision will not apply to such agreements. In other words, the law automatically extends the foreign policy competence of the Faroes in all areas of exclusive competence as corresponding foreign policy is further integrated within the EU.
To Section 1, subsection 5:
This subsection stipulates that the Danish Authorities continue to maintain their competence over foreign affairs. Article 5, subsection 2 in the Home Government Act can therefore continue to apply as modified according to this proposed legislation.
To Section 2, subsection 1:
This subsection outlines the title of the party to an agreement – the Faroes or the Faroes and Greenland jointly – when the provisions of section 1, subsection 1 or subsection 2, second sentence are implemented. At the same time this subsection provides for the possibility that the party to an agreement can go by other titles, depending on whether the agreement in question is concluded between states, governments, heads of state, ministers of foreign affairs or ambassadors.
To Section 2, subsection 2:
This subsection provides that, when the law is applied in practice, it should be done on the condition that the overall interests of the Kingdom of Denmark are not undermined. In order to ensure that this condition is respected, this subsection also outlines certain information commitments. In addition it is stipulated that details outlining cooperation between the Faroes and Denmark vis-à-vis this law will be subject to further negotiation between the countries.
To Section 3:
This section provides for the posting of Faroese envoys to all diplomatic missions of the Kingdom of Denmark in foreign states and international organisations. In addition, they may now promote the interests of the Faroes in all areas of exclusive competence. With this provision, section 8, subsection 2 of the Home Government Act is considerably expanded and enhanced such that the title shall be "envoy" rather than "assistant", and in contrast to the Home Government Act under which Faroese representatives were limited to dealing only with commercial interests, Faroese envoys may now deal with matters related to all areas of exclusive competence.
To Section 4:
This section stipulates that the Faroes may become a member or associated member of international organisations in their own right, where the international organisation admits entities other than states and organisations comprised of states as members or associated members in their own name. Upon request from the Faroese Government, the Danish Government can decide to submit the application for membership or associated membership for the Faroes or support a Faroese application for such membership, when this is consistent with the constitutional status of the Faroes.
To Section 5:
This section stipulates that the law shall enter into effect on 29 July 2005.
arrangement signifies a change as regards applicable practice, where the Minister of Foreign Affairs in accordance with Section 19 of the constitution in specific cases issues full powers to named responsible ministers, civil servants and others – including, according to the circumstances, members of the Government of the Faroes and its civil servants – to act on behalf of the Realm in connection with negotiation and entry into specific international-law agreements.
Re Section 1
Section 1 relates to international-law agreements. It also covers agreements on purely technical topics, which are negotiated and entered into by administrative authorities, known as administrative agreements. The Act does not apply to international co-operation, which is not of an international-law nature.
Section 1 (1) and (2), second sentence, cover all actions in international law relating to the negotiation and conclusion of agreements, including informal negotiations, which might be an element in larger sequences of negotiations. Specifically as regards the termination of agreements, it follows from subsection (3) that the Government of the Faroes pursuant to the provision may terminate agreements entered into by it pursuant to the Act. Insofar as entry into new agreements in accordance with Section 1 will require that old agreements entered into by the Danish authorities cease to apply, this may, depending on the circumstances, require the participation of the Danish authorities.
Section 1 only relates to international-law agreements, which lie entirely within areas where legislative and administrative authority has been transferred to the Faroese authorities. It is in this context immaterial whether the areas of responsibility concerned are regulated by the Faroese authorities pursuant to Sections 2, 3 or 9 of the Faroes Home Rule Act or whether such authority has been transferred pursuant to other Acts of the Folketing. Section 1 is thus not applicable in relation to agreements in which subjects, which fall outside areas where legislative and administrative authority has been transferred, are also included. The question of how detailed the assessment of this condition is to be must be settled in practice, where reasonable evaluations must be made in relation to the specific draft agreements to be negotiated.
International-law agreements, which cover both the Faroes and Greenland, do not fulfil the conditions of Section 1 (1), as they do not concern issues, which belong entirely under the areas of responsibility transferred to one part of the Realm. Accordingly it is explicitly stipulated in subsection 2, first sentence, that subsection 1 is not applicable to negotiation and conclusion of international-law agreements which relate to both the Faroes and Greenland. As it is desirable for the Government of the Faroes and the Greenland Government may negotiate and enter into such agreements according to the same principles as are laid down in Section 1 (1), the provision in subsection 2, second sentence, enables the two Governments to decide to negotiate and enter into such agreements provided that they act jointly. Application of this provision presupposes that the Folketing adopts a corresponding Act on the conclusion of international-law agreements by the Greenland Government. Such an Act is already submitted to the Folketing.
As far as the central formal steps on the commencement and closing of negotiations and entry into the agreement are concerned, the two Governments must act as a single party. This is necessary as the Danish Constitution assumes that the Kingdom of Denmark is one single subject in international law (one state), cf. the statements in the general remarks above on aspects of constitutional law.
If one of the Governments does not wish to utilise the option of acting jointly pursuant to Section 1 (2), second sentence, the negotiations will have to take place according to the rules applicable to date, i.e. with the assistance of the Foreign Service.
It follows from Section 1 (4) that the full powers does not apply to international law agreements affecting defence and security policy. In deciding whether a particular negotiation shall be considered affecting defence and security policy, considerable attention should be paid to whether the agreement is negotiated with the foreign-relations and defence authorities of the country concerned, or whether solely negotiations between the Government of the Faroes and other responsible authorities of foreign states such as environmental authorities or tax authorities are envisaged.
It further follows from Section 1 (4) that the arrangement does not apply to agreements, which are to apply to Denmark. This is because the Faroes cannot take part independently under the heading “Kingdom of Denmark in respect of the Faroes” in agreements, to which the Kingdom is already a party, cf. the statements above in the section on constitutional law.
Finally it follows from Section 1 (4) that Section 1 does not apply to international law agreements negotiated within an international organisation of which the Kingdom of Denmark is a member. Such international-law agreements will normally apply to Denmark. The authorisation will therefore already be inapplicable in most of these cases because of the participation of Denmark in the negotiations on the agreement (cf. above where the authorisation is not applicable to agreements which are to apply to Denmark). The special limitation of the authorisation in relation to agreements which are negotiated within an international organisation of which Denmark is a member becomes relevant where the EU, within an international organisation of which the Kingdom of Denmark and the other EU countries are members, represents all the Member States in the drafting of an international agreement and exercises the right of the Member States to vote. It should be noted for the sake of completeness that EU Member States with overseas territories the foreign relations of which they are responsible for, and which are not covered by the EU treaties, in such a situation in accordance with Declaration No. 25 to the Treaty of Maastricht may themselves act to safeguard the interests of an overseas territory, without harming the interests of the Community in the event of a conflict of interest which cannot be resolved.
Section 1 (5) clarifies that the Act does not limit the foreign-policy powers of the Minister of Foreign Affairs and the Danish authorities in relation to the Faroes. The Minister of Foreign Affairs continues to bear overall responsibility for the foreign policy of the Realm - including towards the Folketing – and fully retains his constitutional powers to conduct negotiations and enter into international-law agreements both for the Realm as a whole and for individual parts of the Realm in compliance with the rules applicable to consultation and involvement of the Government of the Faroes. The Government will also continue to negotiate and enter into agreements which are applicable to the Faroes in a large number of cases, not least multilateral agreements on health (WHO), food (FAO), culture (UNESCO) etc. The arrangement provided for in Section 1 thus differs decisively from that which applies to the transfer of legislative and administrative authority.
The provision in Section 1 cannot in itself ensure that other states approve the foreign-policy full powers contained in the provision. Depending on the circumstances, there may therefore continue to be a need for the Minister of Foreign Affairs to confer specific full powers on the members of the Government of the Faroes where this might be requested by the country or countries with which negotiations are to be conducted.
Treaties, which emerge as having been entered into between heads of states, will probably rarely or never fall within Section 1. However, should such a case arise it follows from the provision in Section 1 (5) that the Minister of Foreign Affairs must obtain a (royal) full power for the Chief Minister. The ratification procedure must, in that case, also take place through the Minister of Foreign Affairs.
If, as an exception, an agreement which falls within Section 1 requires the consent of the Folketing to be obtained, because it contains obligations of greater significance for the Realm, such consent will also have to be obtained by the Minister of Foreign Affairs, who will also be responsible for the involvement of the Foreign Policy Committee to the extent that this follows from the Constitution and the Foreign Policy Committee Act.
Re Section 2
Agreements, which are entered into pursuant to Section 1, are designated as agreements between either “the Kingdom of Denmark in respect of the Faroes” or “the Kingdom of Denmark in respect of the Faroes and Greenland”. These designations show that the Government of the Faroes and the Government of the Faroes and the Government of Greenland respectively act on behalf of the Realm and not as an independent subject of international law, cf. above under constitutional considerations. It is thus clear that even if the agreement concerned is only applicable to the Faroes or to the Faroes and Greenland, the whole Realm is bound by the agreement at the level of international law. Situations may possibly arise in which the negotiating partner wishes the title of the agreement to reflect the fact that it is an agreement at government or administrative level rather than at state level. Adapted versions must be used in the title in such cases. Such adapted versions may be established according to the rules in subsection 2.
It has been stated in the remarks above that the Government of the Faroes will not be able pursuant to the provision in Section 1 to undertake foreign-policy measures which are in conflict with the interests of the other parts of the Realm – including entry into agreements contrary to the general principles of the foreign policy of the Realm in the area concerned. According to the remarks on constitutional law, it will therefore be a precondition of an authorisation arrangement allowing the Government of the Faroes to act on behalf of the Realm in international affairs that an arrangement is established which ensures that the Government is sufficiently informed and consulted prior to actions pursuant to the Act.
The provision in Section 2 (2) establishes how these overall frameworks are created. It follows from the overall responsibility of the Minister of Foreign Affairs for the foreign policy of the country that it is incumbent upon the Minister of Foreign Affairs – on behalf of the Government – to establish such detailed rules following consultations with the Government of the Faroes. The Minister of Foreign Affairs must in the same way take decisions on the specific questions which might arise in on-going co-operation, for example whether an intended agreement falls entirely within areas where legislative and administrative authority has been transferred, cf. above under remarks re Section 1 (1), or whether an intended agreement affects security and defence policy, cf. above under the remarks on Section 1 (3).
The more detailed guidelines for co-operation on the Act are intended to be based as far as possible on the co-operation and consultation mechanisms already existing. At the political level the Minister of Foreign Affairs thus meets the Government of the Faroes at least once a year. The Permanent Secretary of State of the Ministry of Foreign Affairs also meets the Permanent Secretary of the Government of the Faroes at least once a year. In addition, there will be a need to designate contacts in the Government of the Faroes and in the Ministry of Foreign Affairs who are responsible for regular contact, including a flexible form of notification of the Danish authorities, for example in the electronic dispatch of forms. Finally the Advisor on Faroese affairs of the Ministry of Foreign Affairs will be able to take part as an observer in the negotiations of the Government of the Faroes pursuant to Section 1.
Re Section 3
Under this provision, it is proposed that Section 8 (2) of the Faroes Home Rule Act on the appointment of staff specifically to safeguard the commercial interests of the Faroes in Danish diplomatic missions be applied correspondingly to the appointment of representatives of the Government of the Faroes to diplomatic missions of the Kingdom of Denmark to attend to Faroese interests which entirely relate to areas where legislative and administrative authority has been transferred. This provision, following the wishes of the Government of the Faroes, extends and modernises the scope of Section 8 of the Home Rule Act. The employees concerned are accordingly designated as “representatives of the Government of the Faroes” instead of “staff members”. Their field of activity is changed from “the commercial interests of the Faroes” to “Faroese interests which entirely relate to areas of responsibility taken over”. This implies also that the range of Danish diplomatic missions to whom representatives of the Government of the Faroes may be employed are increased.
Re Section 4
The provision of Section 4 relates to those special cases in which international organisations provide an opportunity for entities other than states and associations of states to attain membership in their own name. It essentially covers associate membership, which typically applies to overseas areas, the foreign affairs of which are the responsibility of a Member State. It follows from the provision in Section 4 that the Government is prepared in specific cases – at the request of and in co-operation with the Government of the Faroes – to examine the specific options for Faroese membership in its own name of international organisations which are open to entities other than states or associations of states, and where appropriate to support such requests if this is consistent with the constitutional status of the Faroes.
Re Section 5
The Act came into force on 29 July 2005.