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The Validity of the Greenland Agreement

Published online by Cambridge University Press:  12 April 2017

Herbert W. Briggs
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Abstract

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Type
Editorial Comment
Information
American Journal of International Law , Volume 35 , Issue 3 , July 1941 , pp. 506 - 513
Copyright
Copyright © American Society of International Law 1941

References

1 For the text of the agreement, see Supplement to this Journal, p. 129, and Department of State Bulletin (hereafter cited as Bulletin), Vol. IV, No. 94 (April 12, 1941), pp. 445–447. For relevant documents, see ibid., pp. 443–448, and ibid., No. 95, pp. 469–471.

2 Bulletin, Vol. I, No. 9 (Aug. 26, 1939), pp. 163–164.

3 Department of State press release, April 14, 1941. Bulletin, Vol. IV, No. 95 (April 19, 1941), p. 469.

4 Bulletin, Vol. IV, No. 95, p. 471. The N. Y. Times quoted de Kauffmann as saying: “I am not prepared to take orders from the German Government. I represent Denmark and the King of Denmark here and nobody else. Denmark cannot be considered free as long as she is under the military control of a foreign power.” N. Y. Times, April 10, 1940, 12:4. The following day, after a conference with President Roosevelt at which (reported the N. Y. Times), problems relating to the military occupation of Denmark and the status of Greenland were discussed, Mr. de Kauffmann was reported as saying: “We agreed, of course, that Greenland belonged to the American continent”; and: “ I gathered from the President’s words that he would continue to recognize me as the representative of my country. I came here to represent my King and a free and independent people.” N. Y. Times, April 11. 1940, 1:3 and 7:1.

5 Bulletin, Vol. II, No. 42 (April 13, 1940), p. 373.

6 Ibid., Vol. II, No. 45 (May 4, 1940), p. 473.

7 Ibid., Vol. Ill, No. 55 (July 13, 1940), p. 25.

8 The Secretary of State to the Minister of Denmark, April 7, 1941. Ibid., Vol. IV, No. 94 (April 12, 1941), p. 448.

9 Ibid., p. 448. The Minister of Denmark to the Secretary of State, April 9, 1941.

10 Cf. Jules Basdevant, La conclusion et la redaction des traités et des instruments diplomatiques autres que les traites in 15 Hague Reeueil des Cours (1926), pp. 548 ff., 608 ff. See also Raoul Genet, Traité de Diplomatic et de Droit Diplomatique, Vol. I l l (1932), p. 413.

11 See, for example, Department of State, Executive Agreement Series, Nos. 161, 165, 169,173,175,177,178,183,184,188,189, 201. This is in no sense an exhaustive list, but is offered as an indication of current practice. In those executive agreements which are “effected by exchange of notes” nothing is ordinarily said about the diplomatic representative being “duly authorized” to conclude an agreement, as there is no instrument to be signed jointly. It is only rarely that an executive agreement makes any reference to the full powers of those who sign it. For examples, see Executive Agreements, Nos. 163, 164, and 180. In these cases, however, the agreement was ratified in each case by the parties other than the United States.

12 The Minister of Denmark to the Secretary of State, April 13, 1941. Department of State Bulletin, Vol. IV, No. 95 (April 19,1941), pp. 470–471. The statement of the Danish Foreign Office is translated in de Kauffmann’s note to Hull.

13 For an excellent treatment of the question of competence to bind a state to an international engagement, see Harvard Research in International Law, Draft Convention on the Law of Treaties, this Journal, Supplement, Vol. 29 (1935), pp. 992–1009. The Research concludes that “a state is not bound by a treaty made on its behalf by an organ or authority not competent under its law to conclude the treaty.” See also Charles Fairman, “Competence to Bind the State to an International Engagement,” this Journal, Vol. 30 (1936), pp. 439–162. Professor Fairman writes: “We may take it as our guiding principle that treaties are to be concluded by the competent authorities of the states or by their representatives, according to their internal law.” Loc. cit., p. 443. As to agreements by diplomatic representatives, he writes: “In principle, international law leaves it to each state to fix the competence of these representatives. An undertaking given in disregard of limitations disclosed or otherwise known does not bind. Limitations found to have been notorious might be deemed to have been known.” Loc. cit., p. 459.

14 Bulletin, ibid., p. 471.

15 Ibid. The Secretary of State to the Minister of Denmark, April 14, 1941.

16 Ibid., p. 470.

17 Whether (aside from Mr. de Kauffmann’s lack of authorization) the conclusion of the Greenland agreement was contrary to the Danish constitution the writer is not competent to judge. Article 18 of the present Danish Constitution (which was adopted June 5, 1915, and amended Sept. 10, 1920) is translated in Dareste, Les Constitutions Modemes, Vol. I (1928), p. 400, as follows :”Le roi ne pent, sans le consentemenl du Rigsdag, déclarer la guerre ni eonclure la paix, contracter ni rompre des alliances et des traités de commerce, céder aucune portion de territoire, ni contracter aucune obligation qui modifie les conditions actuelles du droit public.” Ralph Arnold, in his Treaty-Making Procedure—A Comparative Study of the Methods Obtaining in Different States (Oxford, 1933), p. 31, comments as follows on Danish practice: “Such treaties as do not, under Article 18, require the consent of the Rigsdag, do not as a rule come into force until after the King’s ratification, and this applies equally to those which, under this same Article, require the consent of the National Legislature. Many conventions and minor agreements, however (and this applies particularly to agreements concluded by a simple Exchange of Notes), are frequently concluded without subsequent ratification.”

18 Cf. H. Lauterpacht, Private Law Sources and Analogies of International Law (1927), p. 161, that “there are few questions in international law in which there is such a measure of common agreement as this, that duress, so far as States are concerned, does not invalidate a contract.” Cf. also Harvard Research, loc. cit., pp. 1151–3; remarks of Charles Henry Butler and Edgar Turlington, Proceedings of American Society of International Law (1932), p. 45 ff.; A. D. McNair, The Law of Treaties (1938), pp. 129-130.

19 C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States (1922), Vol. II, Sees. 690, 701, citing U. S. War Department, Rules of Land Warfare (1917), No. 304.

20 Cf. the discussion of the distinction between capacity and competence in Fairman, loc. cit., p. 440.

21 Bulletin, Vol. IV, No. 94 (April 12, 1941), p. 447. The Secretary of State to the Minister of Denmark, April 7, 1941.

22 Ibid., No. 95 (April 19, 1941), pp. 469–470. Press release of April 14.