The Legal Status of Eastern Greenland Case

Dispute between DENMARK and NORWAY

Norway brought parts of the EASTCOAST which had not yet been occupied under DANISH GOVT in the condition of TERRAE NULLIUS and subsequently pass under NORWEGIAN sovereignty.

Regarding: sovereignty over territory in EASTERN GREENLAND

DENMARK – refer the question to PCIJ

Greenland" inhabited by indigenous Eskimos, was first discovered by Scandinavian explorers circa 900 A.D. Norwegian origin.

Norway issued a ROYAL proclamation: Occupation in the Eastern Greenland is officially confirmed and is placed under Norwegian sovereignty.

THE LEGAL STATUS OF EASTERN GREENLAND CASE

2 SETTLEMENTS (Eystribygd and Vestribygd) were founded at the southern end of the western coast and became tributary to Norway. 1380 – 1814 – KINGDOMS of Denmark and Norway were united under the same crown. Hans Edge – established the first permanent colony in 1721 Trading concessions and monopolies were granted and regulations were enacted. Article 4, Treaty of Kiel  Denmark was forced to cede the Kingdom of Norway to Sweden (excluding Greenland) AREA OF GREENLAND: 2,175,600 sq/kms [5/6 covered my Inland Ice) East coast remained virtually inaccessible by land or sea until the EXPEDITIONS OF THE 19th century.

Denmark wanted the proclamation to be declared in violation of existing legal situation. DANISH ASSERTION – Norwegian occupation was INVALID. 3 bases: 1. Denmark had enjoyed and had peacefully and continuously exercised an uncontested sovereignty over Greenland for a long time. 2. Norway had recognized DANISH sovereignty over the whole Greenland 3. Norway was estopped by QUID PRO QUO, a promise given by the Norwegian foreign minister to desert occupying any territory in Greenland. NORWAY: DANISH in Greenland was restricted to areas of its colonies and DENMARK was estopped from claiming that she possessed such a pre-existing sovereignty. IHLEN DECLARATION – minister

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19 century – discovered that Greenland was in fact an island, not connected by land. Scottish whaler Scoresby  fist landing on the EASTERN COAST Danish settlement at Angmagsslik  1st settlement on the same coast Hunt Between scoresby Sound and Germanishavn 1915 – Denmark began to seek explicit recognition of her potential claims to the EASTERN COAST OF GREENLAND a. b. c. d.

1st – United States – context of CESSION OF THE DANISH ANTILLES 2nd – Norway – context of Norwegian claims to Spitzbergen at Vesailles Peace Conference 3rd – United Kingdom, France, Italy and Japan 4th – Sweden and Norway

COURT: Accepted the Danish contentions and DENIED that Denmark was estopepd from claiming sovereignty. Hoped that Norway would make NO DIFFICULTY with regard to the Danish claim to Eastern Greenland IHLEN DECLARATION – NORWAY would be under an obligation to refrain from contesting Danish sovereignty over Greenland COURT: Evidently did not regard IHLEN as belonging to the category of estoppel It concluded that a Minister of Foreign Affairs, acting within the scope of his Country by a declaration or statement made to the representative of a foreign State. DISSENTING OPINION: (JUDGE ANZILOTTI) -

THIS RECOGNITION WAS GIVEB BY ALL THOSE ASKED  EXCEPT: NORWAY. Norway – assurances for Norwegian hunting and fishing interests on the East coast. Denmark was unwilling to give such assurances Denmark relied on the verbal undertaking NORWEGIAN FOREIGN MINISTER:

given

by the

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“Know all men that DANISH TRADING, MISSION AND HUNTING STATIONS have been established on the East and West coasts of Greenland with the result that the whole of that country is henceforth linked up with DANISH colonies and stations under the Authority of the DANISH ADMIN OF GREENLAND.” Diplomatic negotiations resulted in SIGNING of a CONVENTION IN 1924. (hunting and fishing) PIL – Greenland Case

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Thought it must be recognised that the Minister for Foreign Affairs- the direct agent of the chief of the state- with authority to make statements or current affairs to foreign diplomatic representatives, and in particular, to inform them as to the attitude which the government, in whose name he speaks, will adopt is a given question can make declarations of such a kind which are binding upon the state. No rule of inter- national law requiring that agreements of this kind must necessarily e in writing, in order to be valid' Should have done was to decide whether the Danish re uest of 1919 and the subsequent Ihlen declaration constituted as valid agreement between the two Governmcnts. No mistake as to the declaration by NFM o One can scarcely believe that a Government could be ignorant of the legitimate consequences following upon an e tension of sovereignty

ARGUMENT: July 10, 1931  critical date for the establishment of DANISH SOVEREIGNTY 1

PALMAS CASE: The Court defined very broadly the basic requirements for the establishment of such a title: a.

b.

There must be the intention and will to act as sovereign, and some actual exercise or display of such authority (although very little actual exercise of authority was necessary, especially in thinly populated or unsettled areas) and There must be no competing or stronger claim to sovereignty.

SAVIGNY: 2 ELEMENTS OF POSSESSION: 1. 2.

Physical control (corpus) Intention to possess (animus possidendi) a. Not merely to exclude others b. Intention to exclude c. Intention to hold as owner (animums domini) d. a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority

EACH COUNTRY’S CLAIM SHOULD BE CONSIDERED AS A WHOLE, IN FAVOR OF THE COUNTRY WHOSE CLAIM IS STRONGER. Up to 1931 – a. b.

There was no claim by any power other than DENMARK to the sovereignty of Greenland No power disputed the DANISH claim

The way of he actual exercise of sovereign rights provided that the other state could not make out a superior claim. Palmas and Greenland case: Whether concepts drawn from two awards relating to relatively small islands were applicable in all aspects to a big island. The Court did 110t therefore give any indication of how the settlements should be regarded a ' under Norwegian sovereignty at that date.

putting forward any claim to territorial sovereignty in Green- land, and in the absence of any competing claim the King's pretensions to be the sovereign of Greenland subsisted. The Court nevertheless relied legislation in general terms referring to Greenland as evidence of an exercise of sovereignty beyond the settlement -

Legislation is one of the most obvious forms of the exercise of sovereign power, and it is clear that the operation of these enactments was not restricted to the limits of the colonies. It therefore follows that the sovereign rights in virtue of which the enactments were issued cannot have been restricted to the limits of the colonies.

COURT: period from the founding of the colonies by Hans Egede in 1721 up to 1814 his authority to an extent sufficient to give his country a valid claim to sovereignty, and his rights over Greenland were not limited to the colonized area. This is not surprising in view of the indeterminate concept of "Greenland" before its coasts had been thoroughly explored. Even if the intentional had been present to exercise sovereignty over the whole of the area, there was an obvious disproportion between Corpus and animus. JUDGE SCHUCKING AND WANG – there were historic DANISH claims by Denmark and had not been seriously disputed by other States. BUT – the exact significance of the documents which should demonstrate the exercise of this sovereignty remains somewhat uncertain. GREENLAND – used as referred to the geographical meaning of the term as shown in the maps. POINT CONCERNING the burden of proof lies on NORWAY. Greenland not in its strict sense (colonies) NORWAY ARGUED  admin and legislative acts, Greenland was not used in the geographical sense, but only meant those colonized areas on the West Coast. Did not include East Coast, because it was unknown. COURT – it was already known in the 17th and 18th centuries. DENMARK DISPLAYED VALID TITLE TO THE SOVERIGNTY

It had been contended on behalf uf Norway that with the disappearance of the two nordic settlements of Eystribygd and Vestribygd during the 14th century, Norwegian sovereignty was lost and the whole of Greenland converted to terra nullius.

BASIS: AJ Tayler – concession granted to him to have exclusive rights to establish stations on the East coast for trading, hunting, mining etc which stations was to be placed under the sovereignty of the DANISH CROWN.

CONQUEST or VOLUNTARY ABANDONMENT

Difficult to see how a concession which existed merely on paper was never carried out, could affect this position.

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On one hand, the Court held that sovereignty had been lost neither by conquest nor by voluntary abandonment. CONQUEST - Only operates as a cause of loss of' sovereignty when there is a war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State. Destruction of a settlement cannot fail to have an effect on tide. The Court held that there was nothing to show any definite renunciation on the part of NORWAY

CONCESSIONS – manifestations of the exercise of sovereign authority SURVEY – eastern to western coast

ISSUE: WON Sovereignty had been lost

The effect of all the documents connected with he grant of the concession is to show that the King of Denmark was in a position to grant a valid monopoly on the East coast because his sovereign rights entitled him to do so, and that the concessionaires in England regarded the grant of monopoly as essential to the success of their projects and had no doubt as to the validity of the rights conferred

DISAPPEARANCE OF THE 1st COLONIES: No other Power was

1921 – 1931  there was GREATER DANISH legislative activity

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PIL – Greenland Case

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with regard to the East Coast. Kind of Denmark did not hesitate to act as sovereigns of Greenland when opportunity offered itself. CLAIM TO SOVEREIGNTY v. EFFECTIVE EXERCISE OF THAT SOVEREIGNTY

i.

Holst declaration (Mister of Foreign Affairs) ii. Bilateral and multilateral agreements (COLONY) iii. Ihlen Declaration (Norway debarred herself or under obligation to refrain from contesting a historic DAHNISH sovereignty

It has been shown that "Green- land" is a geographical area as denoted on maps unless proved otherwise by Norway. TITLE TO SOVEREIGNTY EXISTED INDEPENDENTLY OF ITS EXERCISE. JUDGE ANZILLOTI’S VIEW: Greenland in 1721 was a terra nullius and acts of occupation subsequent to that date must be judged according to contemporary requirements DECISION OF THE COURT: the principles of recognition of territorial claims and estoppel in particular, merit further attention. 1.

RECOGNITION a. The concept of recognition played a part in this case in two ways: i. first, the effect of recognition of Danish sovereignty over Greenland by third states was considered, both in the form of incidental 'recognition' in treaties dealing with other matters and in the more direct form of responses to the explicit request for recognition made by Denmark between 1915 and 1921; ii. second, the effect of recognition by Norway of Denmark's claims to the whole area of Greenland was also considered. b. France, Japan, Italy, Great Britain and Sweden show that they agreed to recognise that the Danish sovereignty extended to the whole of Greenland c. If it does Dot confer title, recognition affords at least in- direct or circumstantial evidence of a situation of fact, i.e. that a particular state is, because it is regarded by other states as administering, in fact administering a certain territory. d. Evidence of the exercise of sovereign rights e. Denmark possesses sovereignty over Greenland as a whole [and] to the extent that these treaties constitute evidence of recognition of her sovereignty over Greenland in general Denmark is entitled to rely upon them.

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ESTOPPEL a. In theory either recognition is 'constitutive' or 'declaratory in territorial disputes it may then be regarded as constitutive of title or declaratory of a pre-existing title. b. In the context of any individual disputes 'recognition' is perhaps best regarded not as having of itself substantive legal consequences but as evidence of a factual situation or as creating an estoppel. c. Until 1931 there was no claim by ANY STATE other than Denmark to Greenland d. Norwegian government as undertakings which recognized DANISH over all GREENLAND

PIL – Greenland Case

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