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The Case Concerning the Legal Status of Eastern Greenland

Published online by Cambridge University Press:  12 April 2017

Charles Cheney Hyde
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Editorial Comment
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American Journal of International Law , Volume 27 , Issue 4 , October 1933 , pp. 732 - 738
Copyright
Copyright © American Society of International Law 1933

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References

1 Publications, Permanent Court of International Justice, Series A/B, No. 53, p. 64. In 1931, the Danish Government by an Application instituted proceedings against the Norwegian Government in the Permanent Court of International Justice on the ground that the latter had on July 10, 1931, published a proclamation declaring that it had proceeded to occupy certain territories in Eastern Greenland, which, in the contention of the DanishGovernment, were subject to the sovereignty of the Crown of Denmark. The applicantasked the court for judgment to the effect that “the promulgation of the above-mentioneddeclaration of occupation and any steps taken in this connection by the Norwegian Governmentconstitute a violation of the existing legal situation and are accordingly unlawful andinvalid.”It may be greatly doubted whether, in view of the relevant facts, the judgmentthat was rendered, in harmony with the request of the applicant, necessitated a decision asto the sovereignty of Denmark over Eastern Greenland. (Cf. dissenting opinion of Judge Anzilotti, id., pp. 76–95). The real issue between the parties was whether Norway was in aposition with respect to Denmark, whereby it could lawfully make the declaration of occupationof which the latter made complaint. Norway, however, asked for a judgment to theeffect that Denmark has no sovereignty over Eirik Raudes Land (a portion of East Greenland),and the court proceeded to pass upon the existence and extent of the Danish sovereigntyover Greenland on the date mentioned, and also upon the attitude or undertakingsof Norway in relation to the Danish position.

2 Judgment of the court, id,., p. 27. Declared the Norwegian judge ad hoc,M. Vogt, in his dissenting opinion: “ In 1261, theGreenlanders submitted themselves of their own free will to the King of Norway, whopromised to maintain regular navigation to the colonies in Greenland.“ This regular navigation, which was essential to the Greenlanders, ceased in 1410 andthus isolated, the settlers succumbed in the course of the XVth century to the rigours of theclimate and the attacks of the native Eskimos from the North who destroyed the colonies.“ In the following centuries, some expeditions set out for Greenland, but no regular communicationswere established and no colonization undertaken.“Only at the beginning of the XVIIIth century were regular communications with Greenlandre-established, after the Norwegian Pastor Hans Egede had succeeded in forming theGreenland Company of Bergen.”(Id., p. 97.)

3 Id., p. 47. In this connection it was declared: “ In the period when the Nordic colonies founded by Eric the Red in the Xth century in Greenland were in existence, the modem notions as to territorial sovereignty had not come into being. It is unlikely that either thechiefs or the settlers in these colonies drew any sharp distinction between territory which wasand territory which was not subject to them. On the other hand, the undertaking (1261)recorded by Sturla Thordarson that fines should be paid to the King of Norway by the menof Greenland in respect of murders, whether the dead man was a Norwegian or a Greenlanderand whether killed in the settlement or even as far to the North as under the Pole Star,shows that the King of Norway's jurisdiction was not restricted to the confines of the twosettlements of Eystribygd and Vestribygd. So far as it is possible to apply modem terminologyto the rights and pretensions of the Kings of Norway in Greenland in the XHIthand XlVth centuries, the Court holds that at that date these rights amounted to sovereigntyand that they were not limited to the two settlements.” (Id., p. 46.) Cf. JudgeAnzilotti's, dissenting opinion, id., pp. 82–86. Google Scholar

4 Judgment of the court, id., p. 28. With reference to this period the court declared: “That the King ✀s claims amountedmerely to pretensions is clear, for he had no permanent contact with the country; he wasexercising no authority there. The claims, however, were not disputed. No other Powerwas putting forward any claim to territorial sovereignty in Greenland, and in the absenceof any competing claim the King's pretensions to be sovereign of Greenland subsisted.” (Id., p. 48.)

5 Id., p. 28.

6 Id., pp. 29–30.

7 Id., pp. 50–51.

8 Art. IV, id., p. 30.

9 Id., p. 31.

10 Id., p. 31, where the court took occasion to say: “About 1900, thanks to the voyages of the American Peary, the insular character of Greenland was established.”

11 Id., p. 32.

12 Id., pp. 32–33.

13 Id., p. 33. This decree was notified to the Powers, and was followed on June 16th, 1921, by a proclamation (notice to mariners) concerning navigation in the seas around Greenland, to the effect that the closing of the island to Danish and foreign ships extended to “the whole of the coasts and islands pertaining to Greenland.”(Id., p. 34.)

14 Id., p. 34. An exception was noted, however, in the case of a convention with Japan onFeb. 12, 1912. Id., p. 34.

15 Id., p. 46. The court said in this connection: “ It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases thetribunal has been satisfied with very little in the way of the actual exercise of sovereignrights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettledcountries.” (Id., p. 46.)

16 Id., p. 54.

17 Id., p. 62. Declared the court:“This legislation with regard to hunting and fishing,and the law dividing the country into provinces, are noteworthy, as are also the admissionof French and British nationals to most-favoured-nation treatment in Eastern Greenland,under notes exchanged between Denmark and the British and French Governments in 1925.” Id., p. 62. See also id., pp. 39-41.

18 Id., pp. 62–63, 63–64.

19 Id., p. 54.“The first country to be approached was the United States, and the moment chosen was that of the negotiation of the treaty for the cession of the Danish Antilles.”Id., p. 56. In proceeding to the signature of the treaty Secretary Lansing declared that' the Government of the United States of America will not object to the Danish Governmentextending their political and economic interests to the whole of Greenland.” U. S. Treaties,Vol.Ill , p. 2564; Publications, Permanent Court of International Justice, Series A/B, No.53, p. 56.

20 Id., pp. 55, 61–62. For discussions of the Danish diplomatic correspondence with the United States, Norway, France, Italy, Japan, Great Britain and Sweden, see id., pp. 56–62.

21 Id., p. 62. Judge Anzilotti derived a different conclusion from the Danish negotiations. He said: “ If one reads the documents as they stand, giving the words the sense which they naturallybear in the context, one is inevitably led to the conclusion that the Danish Governmentwas making a distinction between the colonized districts of Greenland and the other partsof the country, and that what it was requesting from the States whom it approached was,not the recognition of an already existing sovereignty, but the recognition of the right toextend its sovereignty to the whole of Greenland.” (Id., p. 82. Also id., pp. 77–81.)C/. dissenting opinion of Judge Vogt, id., pp. 98–102; and also his reference, id., pp.106–107, to letter of the Danish Ministry of the Interior, of Nov. 3, 1916, to the ParliamentaryCommission for the Danish West Indies.

22 Id., p. 73; also pp. 69–73. In his dissenting opinion, id., pp. 86–95, Judge Anzilotti took the position that by theIhlen declaration, which he regarded as producing a valid agreement, Norway had undertakennot to oppose the extension of Danish sovereignty over the whole of Greenland, andaccordingly was,“ before everything else,” bound not to occupy any part of the region, thereby making it impossible for Danish sovereignty to be extended to it; that the Norwegianoccupation, constituting a violation of the existing legal situation was, therefore, unlawful,and justifying, within those limits, an acceding by the court to the Danish Government'ssubmission. Inasmuch, however, as he regarded the place occupied by Norway to be retnullius, rather than under the sovereignty of Denmark, he was unable to regard the Norwegianconduct, although at variance with an undertaking towards Denmark, as withoutvalue. In a word, he regarded Norway as acquiring, in defiance of its obligation to Denmark,an original right of sovereignty over an area that was at the time res nullius. Whilethis did not mean that, as against Denmark, Norway could profit by its conduct, it was notinconsistent with the Norwegian submission, by way of counterclaim,“ that Denmark doesnot possess sovereignty over Erik Raudes Land,” and“ that Norway has acquired sovereigntyover Erik Raudes Land.” (Id., pp. 94r–95.)Cf. dissenting opinion of Judge Vogt, in relation to the Ihlen declaration, id., pp. 112–122.

23 Declared the court:“A second series of undertakings by Norway, recognizing the Danishsovereignty over Greenland, is afforded by various bilateral agreements concluded by Norway with Denmark, and by various multilateral agreements to which both Denmark andNorway were contracting parties, in which Greenland has been described as a Danish colonyor as forming part of Denmark or in which Denmark has been allowed to exclude Greenlandfrom the operation of the agreement.” (Id., p. 68.) In this connection attention wascalled to the Commercial Treaty between Denmark and the United Kingdoms of Swedenand Norway, of Nov. 2,1826, and to provisions in the Universal Postal Conventions of 1920,1924, and 1929. (Id., p. 68.)

24 To quote the language of the court:“One of the peculiar features of the present case isthat up to 1931 there was no claim by any Power other than Denmark to the sovereigntyover Greenland. Indeed, up till 1921, no Power disputed the Danish claim to sovereignty.”(Id., p. 46.)

25 Id., p. 50.

26 Cf. Observations by Jüdges Schiicking and Wang, id., p.96.