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.
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.
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.
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:
- Animus occupandi
- 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.
- 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.
- 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.
- 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:
- 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
- A verbal declaration is not internationally binding, especially when it would involve the renunciation of important national interests; that
- 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
- 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.”
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:
- The continuous and peaceful exercise of sovereignty over Greenland resulted in the title towards Denmark.
- 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.
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- Cassese, Antonio, International Law (2nd ed., Oxford University Press: London, 2005).
- Crawford, James., The Creation of States in International Law (2nd ed., Oxford Clarendon Press: London, 2006).
- Goldie, L. F. E., The Critical Date, 12 International and Comparative Law Quarterly 1251 (1963).
- Harris, D.J., Cases and Materials on International Law (6th ed., Sweet & Maxwell: London, 2004).
- Higgins, Roselyn., Time and the Law: International Perspectives on an Old Problem 46 International and Comparative Law Quarterly 501 (1997).
- Jennings, Robert., & Watts, Arthur eds., Oppenhiem’s International Law (9th ed., Pearson Education: Delhi, 2003).
- Preuss, Lawrence., The Dispute Between Denmark and Norway Over the Sovereignty of Eastern Greenland 26 American Journal of International Law 469 (1932).
- Shaw, Malcolm N., International Law (6th ed., Cambridge University Press: Cambridge 2008).
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