Legal Status Of Eastern Greenland

Introduction
A suit was instituted before the Permanent Court of International Justice (hereinafter PCIJ)
by Royal Danish Government against the Royal Norwegian Government over the legal status
of certain territories in Eastern Greenland. Cause of Action for the dispute arose when
Norwegian Government on July 10th, 1931 proclaimed that it proceeded to occupy certain
territories of Eastern Greenland which as contented by Denmark are subject to sovereignty of
Crown of Denmark.
Established Facts of the Case as per the submissions of the Parties before the Court are as
follows:
It is established that Greenland was discovered around 900 A.D. It was colonized 100 years
later. Eric the Red of the Norwegian origin was the best know colonist. At that time two
settlements called Eystribygd and Vestribygd existed as an independent State for some time;
however, latter they became tributary to the kingdom of Norway in the 13th century. These
settlements disappeared before 1500.

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From 1814 to 1380 the Kingdoms of Norway and Denmark were united by the same Crown.
Despite disappearance of the early settlements the sovereignty of the Crown was not
doubted. Treaty of Lund of September 27th, 1697 where Sweden recognized the rights of
ancient rights and claims of the King of Denmark over Greenland is an apt example.
An autonomous Board was constituted by the King in 1774 to administer the trade
activities in Greenland. The State of Denmark had monopoly over the trade activities in
Greenland. This resulted in establishing colonies, factories or stations along the West coast
latter efforts to reach the East coast were not successful. Norway contented that Greenland in
general mean the colonized part of the West coast and where as Denmark viewed Greenland
as encompassing whole island of Greenland.
After a war that broke out between Denmark and Sweden and her allies, Denmark was made
to sign the Peace Treaty of Kiel in 1814 according to which the Kingdom of Norway,
excluding Greenland, the Faeroe Isles and Iceland, was seceded to Sweden. In the 19th
century Greenland witnessed lot of Danish expeditions. Danish Government was approached
for permission to carryon trade or establish stations etc. In 1905 the Danish Minister issued a
decree specifying the limits of the territorial waters around Greenland. Denmark promulgated
a law concerning the administration of Greenland in 1908 and colonies on the West coast
were divided into Northern and Southern districts. On December 27th, 1915 the United
States as a quid pro quo to Denmark's cession of West Indian Islands declared that it would
not object to the Danish Government extending their political and economic interests to the
whole of Greenland. The Danish government in bilateral or multilateral commercial
conventions relating to economic questions had excluded Greenland from the operation of
such conventions to secure the insertion of a stipulation.
Meanwhile Norway in apart from expeditions to the East coast from 1889 onwards, an
expedition in 1922 resulted in establishing a provisional wireless station at Mygg-Bukta to
which Denmark lodged its protect immediately against such erection. Latter, large number of
houses and cabins of Norwegian origin were built.
On July 10th, 1931 by a Norwegian Royal Resolution the King of Norway declared the
occupation of the country in Eastern Greenland between Carlsberg Fjord on the south and
Bessel Fjord on the north.

Intertemporal Law
The doctrine of intertemporal law states that the crystallisation of a right must be analysed
through the application of international law as it existed at the point in time when the right
arose. Hence, if a dispute regarding sovereignty over a certain territory arose in the 18th
century, international law as it existed then must be applied to analyse the factual matrix. In
the Clipperton Island arbitration, a dispute arose between France and Mexico and through the
application of intertemporal law of the 18th century, arrived at the conclusion that symbolic
annexation, or a first and decisive act of sovereignty, was a valid means of acquiring
territory. In Island of palmas case intertemporal law of the 19th century was applied by Judge
Huber, the sole arbitrator in the proceedings and through the application of intertemporal law
it was held that mere discovery, conferring an inchoate title, was not an accepted means of
acquiring sovereignty over a parcel of territory but was in fact effective occupation, or actual
occupation and administration over the territory.
The court in the instant case applied intertemporal law and thus analysed the facts of the case
with respect to the doctrine of effective occupation and the then modes of acquisition of
territory.

Critical Date
In certain cases of dispute vis--vis territorial sovereignty, there arises a point in time
wherein the rights and stances of the parties have crystallised to such an extent that no action
they take beyond that particular date will alter their legal position. A critical date of
crystallisation of a dispute is sometimes determined, the events occurring after which are not
considered in determining title. This is with a view to exclude from judicial consideration
unilateral actions of parties seeking to strengthen their respective positions in the dispute.
Acts undertaken after the critical date shall not be taken into consideration, unless such acts
are a normal continuation of prior acts and are not undertaken for the purpose of improving
the legal position of the party relying on them. However, in case of disputes concerning
current title over a territory the critical date is irrelevant. In the Minquiers and Ecrehos Case,
the court held that while the critical date has an important role to play, in certain cases it is
irrelevant. Therefore the court did not consider the critical date in that dispute but however
emphasised on its importance.

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In the Eastern Greenland case, the Danish Government contended that the date on which
Danish sovereignty should have existed is July 10th, 1931 in order to make the Norwegian
declaration meaningless. The PCIJ considered the Norwegian proclamation on July 10th,
1931 as the critical date. It held that it is sufficient [for Denmark] to establish that valid title
in the period immediately preceding the occupation.
For a valid title, it is not needed to establish sovereignty over Greenland throughout the
period before the critical date. Despite the material adduced to the Court is thought to be
insufficient to establish the existence of that sovereignty during earlier periods or otherwise,
what is relevant for consideration is the finding that who has sovereignty immediately
preceding the occupation.
Territorial Sovereignty

Theoretical Framework
The passage of intertemporal law has been a varied one through the centuries. Changes and
alterations have taken place at various points in time, as the laws of acquisition of territorial
sovereignty evolved. At one point in time, prior to the 1700s, mere discovery was sufficient
to establish a complete title over a parcel of territory.
However, during the 1700s, discovery was opined to have transferred an inchoate title
coupled with acts of symbolic annexation. Acts of symbolic annexation included the planting
of a flag as stated by Judge Huber in the Island of Palmas case. However, this inchoate title
had to be consolidated within a reasonable period of time else the title would be forfeited.
During the 1700s, though state practice accepted symbolic annexation as the accepted means
of obtaining sovereignty, jurists in their writings, however, demanded that effective
occupation be the requisite mode for acquiring territory. However, it was not until the 19th
century that widespread state practice accepted effective occupation as the mode of acquiring
territory. Effective occupation had two requirements:
1. Animus occupandi
2. Corpus possesionis
Animus occupandi, or animus possidendi is the will to act as sovereign over a particular
territory and is the subjective element of effective occupation and corps possession, the
objective element, is the actual steps that have been taken to further that intention.
Corpus possessionis includes the actual possession and administration over the territory
concerned. Administration has to be for a reasonable period of time though. In the territorial
dispute between Burkina Faso and Mali, the court held that some twenty years is far too
short a time to establish a title.
However, if the territory is highly inaccessible or is located upon the high seas then the
threshold of corpus possessionis is minimal. Furthermore, if the territory is not populated too
the threshold is very low.

Eastern Greenland Case:

One of the distinguishing feature of this case was till 1931 there was no claim by any
sovereign other than Denmark to the sovereignty over Greenland.
Danish Government placed reliance on Palmas Island decision of the Permanent Court of
Arbitration which stated that a title "founded on the peaceful and continuous display of State
authority over the island". It stressed on various conventions and treaties ratified by the
Denmark with other countries where a stipulation for non-application of such convention
over Greenland was inserted to demonstrate that other nations admitted that Denmark has
right to exclude Greenland.
These treaties are sufficient to establish Denmark's will and intention to act exercise
sovereignty. From the facts stated above i.e. legislations on Greenland for administration,
various treaties ratified, concessions granted for erection of telegraph lines, fixing limits on
territorial waters, etc are manifestations of the exercise of sovereign authority.
Regarding uncertainty over sovereignty during 1814 to 1915, the Court said that taking into
account the above facts and circumstances Denmark should be regarded as having displayed
her sovereign authority. Despite considering just the period from 1921 to 1931 the Court
concluded that Denmark regarded itself as possessing sovereignty over Greenland.
The PCIJ after it was satisfied about the valid title to the sovereignty over Greenland at the
critical date adjudged the contention in favour of the Danish Government. It said having
regard to a pattern of activity between 1921 and 1931, including the enforcement by
legislation of a state trade monopoly, the granting of trading, mining, and other concessions,
the exercise of governmental functions and administration, and the making of numerous
treaties in the terms of which Danish rights over Greenland were explicit. The Norwegian
occupation was illegal and invalid, since Denmark, at the very least in the 10 years previous
to the Norwegian occupation, had displayed and exercised her sovereign rights to an extent
sufficient to constitute a valid title to sovereignty'.

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Undertakings Of Norway & Ihlen Declaration

The Danish Government contended that Norway had given certain undertakings recognizing
its sovereignty over Greenland to the effect.
1. After termination of the Union between Denmark and Norway in 1814, the latter
undertook not to contend the Danish claim of sovereignty over Greenland. PCIJ held
that as a result of various undertaking resulting from the separation and culminating
in Article 9 of the convention of September 1st, 1819, concluded that Norway
acknowledged Danish sovereignty and consequently it cannot occupy of any part
thereof.
2. International Agreements: In many bilateral and multilateral agreements concluded
between Denmark and other countries including Norway, Greenland was described as
part of Denmark and has been excluded at the instance of the latter from operation of
 the agreements. By ratifying such agreements, it is followed that Norway recognized
whole of Greenland as part of Denmark.
3. Ihlen Declaration: One of the bases for the Denmark's claim was the statement made
by Foreign Minister of Norway Mr. Ihlen in July, 1919 would render their claim for
sovereignty futile. Norway contented that his statement would not bind the
Norwegian Government as it lacked requisite authority.
The Danish Minister at Chirstiania under the instruction of Danish Minister for Foreign
Affairs on July 12th, 1919 renewed before a Committee constituted at the Peace Conference
for the purpose of considering the claims that may be put forward by different countries to
Spitzbergen the unofficial assurance given to the Norwegian Government on April 2nd,
1919 stating that Denmark has no special interests at stake in Spitzbergen and they would not
raise any objections to its claims. At this occasion the Minister took the liberty and stated that
recognition of Denmark's political and economic interest to the whole of Greenland would
not encounter any difficulties on the part of the Norwegian Government. To this Mr. Ihlen,
replied by stating that the Plans of the Royal [Danish] Government respecting Danish
sovereignty over the whole of Greenland... would meet with no difficulties on the part of
Norway.
Denmark contented relying on this declaration claimed recognition of an existing Danish
sovereignty.
Norway contented that Mr. Ihlen was in error as to the effect of his statement and the consent
was therefore invalid. Norway maintained that Mr. Ihlen had the knowledge of the
consequences of extension of Danish sovereignty i.e., elimination of Norwegian right over
fishing and hunting. Therefore, Mr. Ilhen has not consented to such declaration. The Court
did not entertain this argument as Mr. Ihlen's in ability to foresee the consequences of his
actions cannot be a valid ground.
Following are the arguments of Norway:
1. Ihlen's declaration is a mere diplomatic assurance of the benevolent attitude of the
Norwegian Government in the event of subsequent negotiations concerning a
definitive settlement; that
2. A verbal declaration is not internationally binding, especially when it would involve
the renunciation of important national interests; that
3. Ihlen could not bind Norway by such a statement, since international law attaches
legal force only to those acts of a foreign minister which fall within his constitutional
competence; and that
4. The Danish recognition of Norwegian sovereignty over Spitzbergen did not constitute
a quid pro quo, in that Denmark did not possess in Spitzbergen interests comparable
to those of Norway in East Greenland.
PCIJ rejected the argument of Denmark that the declaration is recognition of existing Danish
sovereignty. On careful examination of the circumstances and the words used it cannot be
inferred that the declaration is a definitive recognition of its sovereignty. However, the Court
based on the relevant material concluded that the Norwegian attitude in Greenland and
Danish attitude in the Spitzbergen are interdependent. The affirmative reply by the Minister
had the ability of creating a bilateral engagement. Even if there is no such engagement, what
Norway desired from Denmark regarding Spitzbegen is similar to Denmark's wish from
Norway. Hence the reply by Mr. Ihlen on July 22nd, 1919 is definitely affirmative.
The PCIJ made the reply of Mr. Ihlen binding on the Norwegian Government by stating that:
The Court considers it beyond all dispute that a reply of this nature given by the Minister
for Foreign Affairs on behalf of his Government in response to a request by the diplomatic
representative of a foreign Power, in regard to a question falling within his province, is
binding upon the country to which the Minister belongs
However, it is not clear which facts contributed for characterizing it a reply of this nature.

Dissenting Opinion Of Judge Anzilotti

He observed that the international competence of a Minister for Foreign Affairs has neither
brought to the knowledge of the Court previously nor there are any settled legal authorities.
Minister of Foreign Affairs is direct agent of the chief of the State authorised to represent the
State. Statement made his authority is binding upon the State.
Any mistake pleaded should be of an excusable character
But even accepting for a moment, the supposition that Mr. Ihlen was mistaken as to the
results which might ensue from an extension of Danish sovereignty it must be admitted that
this mistake was not such as to entail the nullity of the agreement. If a mistake is pleaded it
must be of an excusable character; and one can scarcely believe that a government could be
ignorant of the legitimate consequences following upon the extension of sovereignty...
Norway was the least likely to be ignorant of the Danish methods of administration in
Greenland, or of the part played therein by the monopoly system.

Conclusion
PCIJ by twelve votes to two adjudged that the promulgation by the Norwegian Government
on July 10th, 1931 on occupation over Greenland and any steps in furtherance of the
declaration would amount to violation of existing legal situation and are accordingly
unlawful and invalid. To ascertain the legal status of Eastern Greenland, the PCJ relied on the
following premises:
1. The continuous and peaceful exercise of sovereignty over Greenland resulted in the
title towards Denmark.
2. The Court made the Ihlen declaration binding thereby conferring the sovereignty to
Denmark.
The Eastern Greenland case has reiterated the principles of International law laid down in
Clipperton Island arbitration and Island of Palmas/Miangas arbitration. Furthermore this has
influenced the decision in the recent case concerning sovereignty over Pulau ligitan and
Pulau sipadan, a contentious case between Indonesia and Malaysia where in the Court ruled
in favour of the latter after relying on the decision and reasoning of the Eastern Greenland
case.