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.

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-à-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.

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'.

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.