the Royal Danish Government, represented by M. de Scavenius, Danish Minister at The Hague, and M. K. Steglich-Petersen, Advocate at the Supreme Court of Denmark, as Agents,.
the Royal Norwegian Government, represented by M. Jens Bull, Counsellor of Legation, as Agent, and by MM. Arne Sunde and Per Rygh, Advocates at the Supreme Court of Norway, as Agents and Counsel,
composed as above,
delivers the following judgment :
By an Application instituting proceedings, filed with the Registry of the Court on July 12th, 1931, in accordance with Article 40 of the Statute and Article 35 of the Rules of Court, the Royal Danish Government, relying on the optional clause of Article 36, paragraph 2, of the Statute, brought before the Permanent Court of International Justice a suit against the Royal Norwegian Government on the ground that the latter Government had, on July 10th, 1931, published a proclamation declaring that it had proceeded to occupy certain territories in Eastern Greenland, which, in the contention of the Danish Government, were subject to the sovereignty of the Crown of Denmark. The Application, after thus indicating the subject of the dispute, proceeds, subject to the subsequent presentation of any cases, counter-cases and any other documents or evidence, to formulate the claim by asking the Court for judgment to the effect that "the promulgation of the above-mentioned declaration of occupation and any steps taken in this respect by the Norwegian Government constitute a violation of the existing legal situation and are accordingly unlawful and invalid".
Further, the Danish Government, in the Application, reserves the right, in the first place, to apply to the Court, should circumstances require it, for the indication of interim measures for the protection of its rights and, in the second place, to ask the Court to decide as to the nature of the reparation due to the Danish Government in consequence of the Norwegian Government's act of which it complains.
On July 13th, 1931, notice of the Application was given to the Norwegian Government ; on July 14th, the communications
As the Court included upon the Bench no judge of the nationality of the Parties, the Danish and Norwegian Governments availed themselves of their right, under Article 31 of the Statute, each to appoint a judge ad hoc.
By an Order made on August 6th, 1931, the Court fixed the times for the presentation of the Case, Counter-Case, Reply and Rejoinder in the suit, in accordance with a proposal made jointly by the Parties’ Agents on August 4th, 1931. By an Order made on June 18th, 1932, at the request of the Danish Government, the time-limit originally fixed for the presentation of the Reply was extended, and the Norwegian Government was given the right to ask for a corresponding extension of the time-limit fixed for the Rejoinder ; the latter Government availed itself of this right, and accordingly the time-limit last mentioned expired on October 14th, 1932. The various documents of the written proceedings having been duly filed within the time-limits as finally fixed, the suit thus became ready for hearing on October 14th, 1932.
In the Danish Case, the Danish Government, in conformity with Article 40 of the Rules of Court, asks, as stated in the Application, for judgment to the effect that
"the promulgation of the declaration of occupation above mentioned and any steps taken in this connection by the Norwegian Government constitute a violation of the existing legal situation and are accordingly unlawful and invalid".
Under the same Article of the Rules of Court, the Norwegian Government, in its Counter-Case, asks for judgment to the effect that
"Denmark has no sovereignty over Eirik Raudes Land ;
Norway has acquired the sovereignty over Eirik Raudes Land ;
The Danish Government should bear the costs incurred by the Norwegian Government in this case".
The Danish Government, in its Reply, repeats the submissions made in its Case, but also prays the Court to reject the submission made in the Norwegian Counter-Case and to adjudge
"that the Norwegian. Government shall bear the costs incurred by the Danish Government in this case".
In the course of a series of public sittings held between November 21st, 1932, and February 7th, 1933, the Court heard the statements, replies, rejoinders and observations presented by :
MM. Bceg, as Advocate, Gustav Rasmussen, as Deputy-Advocate, M. Steglich-Petersen, Agent, and by M. Charles de Visscher, as Advocate and Counsel, on behalf of Denmark, and MM. Per Rygh and Arne Sunde, Agents and Counsel, and by M. Gilbert Gidel, as Counsel and Advocate, on behalf of Norway.
At the conclusion of the respective statements, the Parties’ Agents presented the submissions of the Governments represented by them as follows :
M. de Scavenius, on behalf of the Danish Government :
"May it please the Court,
To reject as unfounded the three submissions in the Norwegian Counter-Case of March 12th and 15th, 1932 ;
To give judgment to the effect that the declaration of occupation promulgated by the Norwegian Government on July 10th, 1931, and any steps taken in this connection by that Government, constitute a violation of the existing legal situation and are, accordingly, unlawful and invalid ;
To decide that the Norwegian Government shall bear the costs incurred by the Danish Government in this case."
M. Bull, on behalf of the Norwegian Government :
"May it please the Court,
To reject the submissions presented by the Danish Government ;
To adjudge and declare that Denmark has no sovereignty over Eirik Raudes Land ;
That Norway has acquired the sovereignty over Eirik Raudes Land ;
That the Danish Government shall bear the costs incurred by the Norwegian Government in this case."
A large number of documents, including memorials or opinions on special points, and maps were filed on behalf of each of the Parties, either as annexes to the documents of the written proceedings or in the course of the hearings.
The Agent and Counsel for the Norwegian Government, in the course of his oral rejoinder, adduced certain new documents, whereupon the Agent for the Danish Government, invoking Articles 48 and 52 of the Statute, prayed the Court to refuse to accept "the fresh facts adduced in the rejoinder". The point having thus been raised, and having regard also to certain reservations made on behalf of Norway respecting fresh documents used in the Danish oral reply, the Court
The submission of the case being in all respects regular, these are the circumstances in which the Court is now called upon to give judgment.
According to the royal Norwegian proclamation of 10 July 1931, which gave rise to the present dispute, the "country" the "taking possession" of which "is officially confirmed" and which is "placed under Norwegian sovereignty" is "situated between Carlsberg Fjord on the South and Bessel Fjord on the North, in Eastern Greenland", and extends from latitude 71° 30' to 75° 40' N.
By "Eastern Greenland" is meant the eastern coast of Greenland.
It must have been intended that on the eastern side the sea and on the western side the "Inland Ice" should constitute the limits of the area occupied under the proclamation of July 10th, though the proclamation itself is silent on the subject. Indeed, Counsel for the Danish Government was disposed to criticize the validity of the proclamation because of the absence of any western limit of the occupation. This is a point, however, which in view of the conclusions reached by the Court need not be pursued.
Greenland, which extends from latitude 59° 46' to 83° 39' N. and from longitude 73° to 10° 33' W., and the southernmost point of which is in about longitude 63° W. of Greenwich, has a total area of about 2,200,000 square kilometres ; five sixths of this area are covered by the "Inland Ice", so that only a narrow strip of varying width along the coasts is free of permanent ice. It should be added that only in the last years of the XIXth century was it definitely established that Greenland is not connected by land with the other parts of the continent of America, i.e. that Greenland is an island.
According to the information supplied to the Court by the Parties, it was about the year 900 A. D. that Greenland was discovered. The country was colonized about a century later. The best known of the colonists was Eric the Red, who was an inhabitant of Iceland of Norwegian origin ; it was at that time that two settlements called Eystribygd and Vestribygd were founded towards the southern end of the western coast. These settlements appear to have existed as an independent State for some time, but became tributary to the kingdom of Norway in the XIIIth century. These settlements had disappeared before 1300.
Information as to these early Nordic settlements and as to the extent to which the settlers dominated the remainder of the country is very scanty. It seems clear that the settlers made hunting journeys far to the North on the western coast, and records exist of at least one expedition to places on the East coast. The historian, or saga writer, Sturla Thordarson tells (about 1261) how the men of Greenland undertook to pay tribute, and how, for every man murdered, a fine should be payable to the King whether the dead man was a Norwegian or a Greenlander and whether killed in the settlements or in the districts to which people went for the summer even as far North as under the Pole Star.
In 1380, the kingdoms of Norway and Denmark were united under the same Crown ; the character of this union, which lasted until 1814, changed to some extent in the course of time, more particularly as a result of the centralization at Copenhagen of the administration of the various countries which were under the sovereignty of the Dano-Norwegian Crown. This evolution seems to have obliterated to some extent the separation which had existed between them from a constitutional standpoint. On the other hand, there is nothing to show that during this period Greenland, in so far as it constituted a dependency of the Crown, should not be regarded as a Norwegian possession.
The disappearance of the Nordic colonies did not put an end to the King’s pretensions to the sovereignty over Greenland.
The Norwegian Counter-Case describes the succeeding period as an era of unsuccessful efforts on the part of the Catholic Church, of the Kings of Norway and Denmark and of their subjects, to renew relations with the Norwegian colonies of
Similarly, foreign countries appear to have acquiesced in the claims of the King of Denmark. Both the States-General of the United Provinces in 1631 and the King of France in 1636 intimated that they did not dispute the claims ; and, by the Treaty of Lund of September 27th, 1679 (7th Secret Article), Sweden recognized the ancient rights and claims of the King of Denmark over Greenland and the adjacent seas and coasts.
It is alleged on behalf of Norway that at this time the word "Greenland" was used to denote all the countries bordering on the seas to the North, including Spitzbergen and Nova Zembla, as well as what is now called Greenland. It appears that at this date there were in Spitzbergen no native inhabitants, so that when mention is made of Eskimos brought back from Greenland, as happened in 1605, it must be the Greenland in the narrower sense that is referred to.
Though at this time no colonies or settlements existed in Greenland, contact with it was not entirely lost, because the waters surrounding it, especially on the East coast, were regularly visited by whalers, and the maps of the period show that the existence and the general configuration of Greenland, including the East coast, were by no means unknown.
At the beginning of the XVIIIth century, closer relations were once more established between Greenland and the countries whence the former European settlements on its coasts had originated. In 1721, the pastor Hans Egede, of Bergen in Norway, formed a "Greenland Company", went to Greenland as a missionary and founded a new colony there, which was soon followed by other settlements. In 1723, this Company was granted a concession placing at its disposal for twenty-five years "the whole country of Greenland"—the King simply reserving his "sovereignty, absolutnm dominium and hereditary
Severin’s concession finally expired in 1750. In the following year, a concession was granted to the already existing "General Trading Company" of Copenhagen. The exclusive privileges to be enjoyed by the Company were enforced by an Ordinance of March 26th, 1751, enacting penalties against persons acting in breach of the concession in terms very similar to those of the Ordinance of 1740. Another Ordinance of April 22nd, 1758, confirmed the previous one, but extended its scope by including, in addition to the "Colonies and factories already established or subsequently to be established", "other ports and localities in general without differentiation or exception".
In 1774, the State itself once more took over the Greenland trade, which it administered by means of an autonomous "Board", and the King, on March 18th, 1776, issued an Ordinance, which is still in force and which repeats the provisions of the previous instruments in very similar terms. The concessions previously granted to private persons were bestowed upon a privileged Trading Administration. Since then the Greenland trade has been a monopoly of the State of Denmark. In 1781, "Regulations" were made dividing "the country" into a northern and a southern district ; the "inspectors" set over these districts were not only entrusted with the supervision of the monopoly’s trade, but were also given powers of general administration.
During this period, settlements were established described as colonies, factories or stations, along the West coast between
In the contention of Norway, the above-mentioned instruments, when they speak of Greenland in general, mean the colonized part of the West coast referred to above ; Denmark, on the contrary, maintains that the expressions in question relate to Greenland in the geographical sense of the word, i.e. to the whole island of Greenland.
The Napoleonic era profoundly affected the international status of the Scandinavian countries, and also that of Greenland. After Sweden had ceded Finland to Russia (1809), the policy of the Allies against France made it possible for Sweden to obtain the cession of the kingdom of Norway which until then had been united to Denmark, who had supported France. By a series of conventions concluded in 1812 and 1813, Russia, Great Britain and Prussia supported Sweden’s aspirations. After the Franco-Danish alliance had been renewed on July 10th, 1813, and war had broken out between Denmark, on the one hand, and Sweden and her allies, on the other, the battle of Leipzig (October 1813) led to the triumph of the Allied cause and the Swedish army compelled Denmark to sign the Peace Treaty of Kiel, dated January 14th, 1814, the fourth Article of which provided for the cession to Sweden of the kingdom of Norway, excluding however Greenland, the Faeroe Isles and Iceland.
The two relevant paragraphs of Article 4 of the Treaty of Kiel run as follows1 :
" Article IV . —His Majesty the King of Denmark, for himself and his successors, renounces for ever and irrevocably all his rights and claims on the kingdom of Norway, together with possession of the Bishopricks and Dioceses of Christian-sand, Bergenhuus, Aggerhuus, and Drontheim, besides Nord-land and Finmark, as far as the frontiers of the Russian empire.
These bishopricks, dioceses, and provinces, constituting the kingdom of Norway, with their inhabitants, towns, harbours, fortresses, villages, and islands, along the whole coast of that kingdom, together with their dependencies (Greenland, the Ferroe Isles, and Iceland, excepted) ; as well as all privileges, rights, and emoluments there belonging, shall belong in full and sovereign property to the King of Sweden, and make one with his united kingdom."
In the course of the XIXth century and the early years of the XXth, the coasts of Greenland were entirely explored. For the purposes of the present case, it is only necessary to note two dates : first, in 1822 the Scottish whaler Scoresby made the first landing by a European in the territory covered by the Norwegian declaration of occupation ; secondly, about 1900, thanks to the voyages of the American Peary, the insular character of Greenland was established. It is admitted by Norway that from the time of Scoresby’s landing the East coast forms part of the known portion of Greenland.
Several Danish expeditions explored portions of the non-colonized part of Greenland during the XIXth century ; first in 1829-1830, the Graah expedition explored the East coast south of Angmagssalik. Approximately the same part of the East coast was again explored in 1883-1885 by the Holm expedition which led, after some years, to the colonization, in 1894, Angmagssalik. The Ryder expedition in 18911892 explored Scoresby Sound and the coast to the north of this fjord, i.e. a part of the coast occupied by Norway in 1931. In 1898-1900, the Amdrup expedition explored the very inaccessible coast between Angmagssalik and a point near the southern limit of the territory occupied in 1931. In 1906-1908, the "Danmark Expedition" explored the whole of the equally difficult East coast north of a point near the northern end of the territory occupied in 1931 and northwards to the point reached by Peary when he explored the coast from the western side. In 1926-1927, the Lauge Koch expedition explored the coast between Scoresby Sound and Danmarkshavn comprising the whole of the territory occupied in 1931. It results from this short summary that the whole East coast has been explored by Danish expeditions. There were, in addition, many non-Danish expeditions.
In 1863, the Danish Government granted to Mr. J. W. Tayler, an Englishman, an exclusive concession for thirty years to enable him to establish on the East coast of Green-
The Tayler concession led to no practical result.? The concessionnaire was not able to establish any stations on the East coast.
Between 1854 and 1886, applications were made to the Danish Government for the grant of several other concessions for the erection of telegraph-lines in or across Greenland, or for the grant of mining concessions. Some of these were granted, some were refused. They all use the term "Greenland" without qualification, and one at least provides for a survey for a telegraph-line across Greenland from the eastern to the western coast. These concessions also led to no practical result.
In 1894, at Angmagssalik, in latitude 65° 36' N., the first Danish settlement on the East coast was established. In accordance with the provisions of the Ordinance of 1776, mention of which has already been made, the foundation of this "mission and trading station" was "made public" by a Decree of October 10th, 1894, notice of which was given to the Minister for Foreign Affairs of Sweden and Norway by a note from the Danish Minister at Stockholm ; notice of the Decree was also given to the governments of some other States. The papers in connection with the establishment of this settlement have also been laid before the Court and are of some importance, as will subsequently appear.
As regards the limits of the colonized territory on the West coast of Greenland, these were already in 1814 held to extend from latitude 60° to latitude 73° N. These limits, which had already been established by the Ordinance of March 18th, 1776, were confirmed by a Proclamation ("Notice to Mariners") of May 8th, 1884. On March 8th, 1905, however, a fresh Proclamation was published to the effect that "the Danish colonies on the West coast of Greenland... extend from latitude 60° to latitude 74° 30' N.". Notice of the Proclamation was given on November 29th, 1905, to the Norwegian Minister
In 1909, a private Danish society established a mission station on the Northwest coast of Greenland, at Cape York, in latitude 76° 32' N. ; in the following year, a trading and research station known as "Thule" was founded in the same locality by Danish explorers. Apparently, no notice of the foundation of these stations was given to the Powers. Finally, in 1925, another Danish trading and mission station was established on the East coast at Scoresby Sound, in about latitude 70° 30' N. No special notice was given of the establishment of this station.
In 1905, a Decree was issued by the Danish Minister of the Interior, fixing the limits of the territorial waters round Greenland. The limits within which the fishing was stated to be reserved for Danish subjects were to be drawn at a distance of three marine miles along the whole coast of Greenland.
In 1908, a law was promulgated by Denmark relating to the administration of Greenland. The colonies on the West coast were divided into two districts, a northern and a southern.
In 1921, a Decree was issued, running as follows2:
"In pursuance of His Majesty’s authority dated the 6th instant, and with reference to the Royal Ordinance of March 18th, 1776, 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 Administration of Greenland.
Done at the Ministry of the Interior, May 10th, 1921."
Reference to these Decrees must again be made later.
Throughout this period and up to the present time, the practice of the Danish Government in concluding bilateral commercial conventions or when participating in multilateral conventions relating to economic questions—such as those concluded since 1921 under the auspices of the League of Nations—has been to secure the insertion of a stipulation excepting Greenland from the operation of the convention. Only in one case—that of the conventions concluded with Japan on February 12th, 1912—is the exception or the reservation otherwise than in favour of "Greenland" or the "territory of Greenland" without qualification ; in the conventions with Japan, the exception is in favour of "the Danish colonies in Greenland".
With particular regard to the territory covered by the Norwegian declaration of occupation of July 10th, 1931, certain circumstances invoked by the Parties concerning the exploitation of the country are to be noted.
In 1919, the "Eastern Greenland Company" was founded at Copenhagen ; this was a limited company with extensive resources at its disposal, and its aim was to conduct hunting operations in the zone between Scoresby Sound and Germaniahavn (latitude 70° 30' to 77° N.). The resources of this company, which built a number of houses and hunting cabins in the district in order that its hunters might winter there, were exhausted by 1924 and its operations ceased. The Danish Government, which had taken over the company’s stations, conceded the use of them to a new hunting company founded in 1929, the Nanok Company, which carried on the operations of the former company. The Nanok Company’s principal station is equipped with wireless.
As regards Norwegian activities, in addition to visits to the East coast paid periodically during the summer from 1889 onwards, expeditions wintered in the territory in question in 1908 and 1909, and again in 1922 and in 1926 and the ensuing years. The expedition of 1922 established a provisional wireless station at Mygg-Bukta (Mackenzie Bay), but the Danish Government made a protest immediately against its erection. Owing to the loss of a ship, this station ceased
During the XIXth century, while the Danish Government made a practice of excluding "Greenland", without qualification, from the commercial conventions it concluded and in other ways acted upon the assumption that Danish sovereignty extended to the whole of Greenland, opinions were occasionally expressed by private persons in Denmark interested in Greenland to the effect that the absence of effective occupation of the uncolonized parts exposed the territory to the risk of permanent occupation by some foreign State. Thus, in 1823, after the landing of Scoresby on the East coast, a M. Wormskjbld—who was a naturalist and an expert in Greenland affairs—was consulted by the Danish Minister of State and addressed to him a letter indicating the weakness of the Danish position and the contentions which a foreign Power might adduce in favour of a right to occupy the eastern coast. It was, perhaps, as a result of this communication from M. Wormskjold that in 1829 the expedition mentioned above under a naval officer named Graah was sent to visit the East coast ; but no policy of colonization was then initiated.
Interest in Greenland, however, was gradually increasing in Denmark, and in 1878 the Danish Government set up a Commission for the study of the natural and ethnographic phenomena of Greenland. This Commission has published a large number of volumes containing reports on many questions connected with Greenland, including the results of the scientific and exploring and cartographic expeditions to the country.
At the beginning of the present century, opinion again began to be manifested in favour of the more effective occupation of the uncolonized areas in Greenland, in order that the risk of foreign settlement might be obviated.
During the Great War of 1914 to 1918, Denmark by treaty ceded to the United States of America her West Indian Islands —the Danish Antilles—and, during the negotiations for the conclusion of the treaty, broached to the American Secretary of State—
On July 12th, 1919, the Danish Minister for Foreign Affairs instructed the Danish Minister at Christiania that a Committee had just been constituted at the Peace Conference "for the purpose of considering the claims that may be put forward by different countries to Spitzbergen", and that the Danish Government would be prepared to renew before this Committee the unofficial assurance already given (on April 2nd, 1919) to the Norwegian Government, according to which Denmark, having no special interests at stake in Spitzbergen, would raise no objection to Norway’s claims upon that archipelago. In making this statement to the Norwegian Minister for Foreign Affairs, the Danish Minister was to point out "that the Danish Government had been anxious for some years past to obtain the recognition by all the interested Powers of Denmark’s sovereignty over the whole of Greenland, and that she intended to place that question before the above-mentioned Committee" ; and, further, that the Danish Government felt confident that the extension of its political and economic interests to the whole of Greenland "would not encounter any difficulties on the part of the Norwegian Government".
On July 14th, 1919, the Danish Minister saw M. Ihlen, the Norwegian Minister for Foreign Affairs, who merely replied on this occasion "that the question would be considered". The Norwegian Minister recorded his conversation with the Danish representative in a minute, the accuracy of which has not been disputed by the Danish Government. On July 22nd following, M. Ihlen made a statement to the Danish Minister to the effect "that the Norwegian Government would not make any difficulties in the settlement of this question" (i.e. the question raised on July 14th by the Danish Government). These are the words recorded in the minute by M. Ihlen himself. According to the report made by the Danish Minister to his own Government, M. Ihlen’s words were 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". It is this
In 1920, the Danish Government approached the Governments in London, Paris, Rome and Tokyo with a view to obtaining assurances from these Governments on the subject of the recognition of Denmark’s sovereignty over the whole of Greenland. Each of those Governments replied in terms which satisfied the Danish Government-—which thereupon, in 1921, approached the Swedish and Norwegian Governments as the only other Governments interested. The communication to the Swedish Government was dated January 13th, and that to the Norwegian Government January 18 th.
The Swedish Government made no difficulty. The Norwegian Government was not prepared to adopt the same attitude unless it received an undertaking from the Danish Government that the liberty of hunting and fishing on the East coast (outside the limits of the colony of Angmagssalik), which Norwegians had hitherto enjoyed, should not be interfered with. This undertaking the Danish Government was unwilling to give, as it alleges that it would have involved a reversal of the policy which Denmark had hitherto followed of endeavouring to shield the Eskimo people of Greenland on grounds of health from uncontrolled contact with white races ; such a policy could not be maintained unless control could be exercised over those having access to the territory.
The terms of the correspondence in which the Danish Government sought and received assurances from the interested Powers as to Denmark’s position in Greenland, are so important that they will be discussed in detail later.
As regards the discussion with the Norwegian Government : as soon as it became clear that the Norwegian Government was unwilling to give the desired assurances, the Danish Government, in May 1921, instructed its Minister at Christiania that no further application was to be made and said that it would rest content with the verbal undertaking given by M. Ihlen in 1919. The Decree of May 10th, 1921, referred to above, was then issued. The reason given for acting somewhat hastily was that May 12th was the 200th anniversary of the day when Hans Egede sailed from Bergen to found his colonies in Greenland and the occasion was to be marked by suitable solemnities.
During the latter half of the year 1921 and during the two succeeding years, diplomatic correspondence continued
On the Danish side there was evinced willingness to make every effort to satisfy the desire of the Norwegian Government that Norwegians should be able to continue to fish and hunt on the East coast of Greenland but a determination not to give way on the claim to sovereignty. On the Norwegian side it was gradually made clear that, in the opinion of the Norwegian Government, the uncolonized part of the East coast of Greenland was a terra nullius, and that Denmark’s political aspirations could only be met if it involved no sacrifice of Norwegian economic interests. This disagreement, however, on the point of principle as to the status of the territory did not exclude a mutual desire to find a practical solution of the fishing and hunting questions.
On July 13th, 1923, the Norwegian Minister for Foreign Affairs informed the Danish Minister at Christiania that, on the 7th of that month, the Storting had passed a resolution calling on the Norwegian Government "to invite the Danish Government to enter into negotiations on the question of Greenland, the said negotiations to be conducted on a free basis between representatives specially appointed for that purpose by the two countries". The Danish Government accepted the invitation (note of July 30th, 1923) ; the two Governments agreed that the negotiations would have the effect of suspending the exchange of views through diplomatic channels, but that, in case they proved unsuccessful, the legal situation would remain unaffected.
Negotiations began in September 1923. In their early stages, they covered the Greenland question generally, but as they progressed, points on which no agreement could be reached were eliminated. On January 28th, 1924, the negotiations resulted in the approval of a draft agreement, which the delegations recommended for adoption by their respective Governments. On July 9th, 1924, the latter signed a Convention applicable to the whole eastern coast of Greenland, excepting the district of Angmagssalik (and, in a certain eventuality, that of Scoresby Sound) ; the Convention was to come into force as from July 10th, 1924, for a first period of twenty years.
Under Article 2, ships were to have free access to the East coast, and their crews and persons on board were given the right to land, to winter in the territory and
During the year 1925, the British and French Governments requested the Danish Government to grant most-favourednation treatment—i.e, the treatment accorded to Norwegian subjects by the Convention of July 9th, 1924—to their respec-five subjects in Eastern Greenland. Denmark granted these requests, and the arrangements concluded on the subject took the form of two exchanges of notes (notes of April 23rd and June 4th, 1925, and of October 12th and 19th, 1925). When Norway learned of these exchanges of notes, she drew the attention of Great Britain and France, on September 25th and November 2nd, 1925, to the fact that "she had not recognized Danish sovereignty over the whole of Greenland" ; the Norwegian Government caused the Danish Government to be informed of this step. Similar communications were also made by the Norwegian Government to all the other Powers whom it regarded as being interested.
Subsequently, the question of Danish sovereignty over the eastern coast of Greenland appears not to have been raised for nearly five years. But, in the summer of 1930, the Norwegian Government conferred police powers on certain Norwegian nationals "for the inspection of the Norwegian hunting stations in Eastern Greenland". Denmark became uneasy at this action, and intimated to the Norwegian Government, at first verbally, and afterwards—on December 26th, 1930—in writing, that she could not countenance the granting of regular police powers to Norwegian nationals in territories situated in Greenland, seeing that these territories were, in the Danish view, subject to Danish sovereignty. On January 6th, 1931, the Norwegian Government replied that, in accordance with the standpoint which it had reserved in its note of July 9th, 1924, Eastern Greenland constituted a terra nullius, and that, consequently, it was "fully entitled" to invest Norwegian nationals in this territory with police powers in respect of Norwegian nationals and other persons domiciled in Norway.
The year 1930 also witnessed the inauguration by Denmark of a "three years plan" for scientific research in "the central part of Eastern Greenland, i.e. the district between Scoresby
It is in these events of 1930, and in the reactions which they provoked, that the immediate origin of the present dispute is to be sought.
On March 11th, 1931, the Danish Government replied to the Norwegian observations on the "three years plan", and on March 14th it informed the Norwegian Government, linking the question of police powers to that of the "three years" expedition, "that it thought it necessary, in accordance with the point of view expressed by the Danish Government in its note of July 9th, 1924, in connection with this expedition to provide for police supervision, with powers extending to all persons in the territory in question in Eastern Greenland". A prolonged diplomatic discussion ensued, during which it seemed as if the Governments were inclining towards an agreement to refrain from raising during the life of the Convention of 1924 questions concerning the differences on matters of principle which had not been settled by that Convention, in order to ensure a peaceful development of the situation in Eastern Greenland. On June 30th, the Norwegian Government requested the Danish Minister at Oslo to confirm that the Danish Government was agreed that, during the life of the Convention, no police authority, whether Norwegian or Danish, should be established in Eastern Greenland, and that no other act of sovereignty should be accomplished therein by Norway or by Denmark.
The Danish reply, which was given on July 3rd, was in the negative. The Danish Government held that the proposed arrangement would go beyond the limits of the Convention of 1924, and would moreover constitute a recognition of the contention upheld by Norway in 1924 (the terra nullius theory) and would be inconsistent with the fundamental standpoint maintained at that time by Denmark (theory of Danish
The Danish Government replied to this suggestion by a note of July 10th, which contains the following passage :
"The Danish'Government does not intend, in the course of the examination of the case, to take any surprise action, or any step calculated to modify the existing situation at law, provided always that Norway refrains from any step which would necessitate action on the part of Denmark. The Danish Government naturally presumes that the Norwegian Government, for its part, likewise intends to refrain from any such action. The Danish Government is, however, of opinion that the judgment should be given on the basis of the general situation, as it has evolved during a long period of time, and is unable to believe that action taken by either side, in the present preparatory stage of the case, or during its examination, could in any way influence the judgment. It regards the Norwegian Government’s declaration, that the situation existing on July 1st should form the basis of the decision, as evidence that the said Government concurs that no action taken during the examination of the case could possess decisive importance. For the rest, the Danish Government holds that it must be left to the Court to decide what considerations of law or of fact must be taken into account for a decision of the case1."
The Danish Government further proposed in the same note that the Special Agreement should be drawn up "by direct negotiations between representatives appointed for that purpose".
In the meanwhile, on June 28th, 1931, certain Norwegian hunters had hoisted the flag of Norway in Mackenzie Bay in Eastern Greenland, and announced that they had occupied the territory lying between Carlsberg Fjord, to the South, and Bessel Fjord, to the North, in the name of the King of Norway. In reply to a Danish enquiry, occasioned by this
The Danish note of July 10th, already mentioned, had been preceded on July 5th and 6th by an exchange of views between the Danish Minister at Oslo and the Norwegian Minister for Foreign Affairs in reference to a Danish suggestion that, during the negotiations for the proposed Special Agreement, Denmark would not take any surprise action capable of modifying the existing situation at law, or resort to any tactical measures. It is argued, on behalf of Denmark, that this offer was manifestly made subject to reciprocity, and that an agreement was reached in that sense. On behalf of Norway, the opposite contention is maintained.
Finally, on July 10th, 1931, in a note verbale addressed by the Norwegian Minister for Foreign Affairs to the Danish Minister at Oslo, the Norwegian Government stated that, "having regard to the legal position of Norway in the proceedings before the Court", it "had felt obliged to proceed, in virtue of a Royal Resolution of the same date, to the occupation of the territories in Eastern Greenland situated between latitude 71° 30’ and 75° 40' N." The Royal Resolution in question was worded as follows :
"1. The occupation of the country in Eastern Greenland between Carlsberg Fjord on the south and Bessel Fjord on the north, carried out on June 27th, 1931, is officially confirmed, so far as concerns the territory extending from latitude 71° 30' to latitude 75° 40’ N., and the said territory is placed under Norwegian sovereignty.
2. Messrs. Hallvard Devold and Herman Andresen are invested with police powers in the aforesaid territory, viz., M. Devold in respect of the district south of Clavering Fjord and M. Andresen in respect of the district to the north of the said fjord1."
The territory covered by this Resolution was denominated by Norway "Eirik Raudes Land".
The contents of the Resolution were notified to the Powers whom Norway regarded as being interested.
The two principal propositions advanced by the Danish Government will each be considered in turn.
The Danish claim is not founded upon any particular act of occupation but alleges—to use the phrase employed in the Palmas Island decision of the Permanent Court of Arbitration, April 4th, 1928—a title "founded on the peaceful and continuous display of State authority over the island". It is based upon the view that Denmark now enjoys all the rights which the King of Denmark and Norway enjoyed over Greenland up till 1814. Both the existence and the extent of these rights must therefore be considered, as well as the Danish claim to sovereignty since that date.
It must be borne in mind, however, that as the critical date is July 10th, 1931, it is not necessary that sovereignty over Greenland should have existed throughout the period during which the Danish Government maintains that it was in being. Even if the material submitted to the Court might be thought insufficient to establish the existence of that sovereignty during the earlier periods, this would not exclude a finding that it is sufficient to establish a valid title in the period immediately preceding the occupation.
Before proceeding to consider in detail the evidence submitted to the Court, it may be well to state that 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, involves two elements each of which must be shown
The word "conquest" is not an appropriate phrase, even if it is assumed that it was fighting with the Eskimos which led to the downfall of the settlements. Conquest only operates as a cause of loss of sovereignty when there is 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. The principle does not apply in a case where a settlement has been established in a distant country and its inhabitants are massacred by the aboriginal population. Nor is the fact of "conquest" established. It is known now that the settlements must have disappeared at an early date, but at the time there seems to have been a belief that despite the loss of contact and the loss of knowledge of the whereabouts of the settlements one or both of them would again be discovered and found to contain the descendants of the early settlers.
As regards voluntary abandonment, there is nothing to show any definite renunciation on the part of the kings of Norway or Denmark.
During the first two centuries or so after the settlements perished, there seems to have been no intercourse with Greenland, and knowledge of it diminished ; but the tradition of the King’s rights lived on, and in the early part of the XVIIth century a revival of interest in Greenland on the part both of the King and of his people took place.
That period was an era of adventure and exploration. The example set by the navigators of foreign countries was inspiring, and a desire arose in Norway and Denmark to recover the territory which had been subject to the sovereignty of the King’s ancestors in the past. The expeditions sent out in 1605 and 1606 under Lindenow to "Our Country of Greenland", the efforts to assure respect on the part of foreign Powers for the King’s rights there and the claim to exclude foreigners from the Greenland trade all show that the King considered that in his dealings with Greenland he was dealing with a country with respect to which he had a special position superior to that of any other Power. This special position can only have been derived from the sovereign rights which accrued to the King of Norway from the submission made to him by the early Nordic settlers and which descended to the Danish-Norwegian kings. It must have covered the territory which is known as Greenland to-day, because the country was inhabited. The expedition in 1605 brought back some of the inhabitants, whereas Spitzbergen was admittedly uninhabited. Lastly, as there were at this date no colonies or
That the King’s claims amounted merely to pretensions is clear, for he had no permanent contact with the country, he was exercising no authority there. The claims, however, were not disputed. No other Power was putting forward any claim to territorial sovereignty in Greenland, and in the absence of any competing claim the King’s pretensions to be the sovereign of Greenland subsisted.
After the founding of Hans Egede’s colonies in 1721, there is in part at least of Greenland a manifestation and exercise of sovereign rights. Consequently, both the elements necessary to establish a valid title to sovereignty—the intention and the exercise—were present, but the question arises as to how far the operation of these elements extended.
The King’s pretensions to sovereignty which existed at the time of the foundation of the colonies are sufficient to demonstrate the intention, and, as said above, these were not limited to any particular part of the country.
Was the exercise of sovereign rights such as to confer a valid title to sovereignty over the whole country ? The founding of the colonies was accompanied by the grant of a monopoly of the trade, and before long legislation was found to be necessary to protect and enforce the monopoly. In the earlier Ordinances of 1740-1751, issued at the time when Jacob Severin was the grantee of the monopoly, the prohibition of trading was restricted to the colonies, but those Ordinances also contained a prohibition of injurious treatment of the Greenlanders, and this was not limited to the colonies but operated in Greenland as a whole. Furthermore, the prohibition of trading was to apply not only in the existing colonies but in any future colonies which might be established. 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 right in virtue of which the enactments were issued cannot have been restricted to the limits of the colonies.
The Ordinance of 1758 and that of 1776 (which is still in force) also operated beyond the limits of the colonies : under these Ordinances, the prohibition on trading is no longer restricted to the colonies but is to apply "in all places whatever". This extension in the area of the monopoly is reflected in the terms of the commercial treaties of the period. The
There is nothing to show that the word "Greenland" is not used all through the Ordinance in the same sense. The Ordinance is issued by the King as Hereditary Sovereign of Greenland. It has been shown above that the rights and pretensions which the King derived from his ancestors as kings of Norway were not limited to any particular part of Greenland, because no colonies existed at the time, but extended to the whole country. Again, the colonies are described as colonies established in Greenland, so that the colonies and Greenland cannot have coincided. Lastly, the trading prohibition which the Ordinance enacts is no longer, as in 1740 and 1751, limited to the colonies, but extends to every place on land or sea within four miles of the coast, and is now grouped with the prohibition against violence to the Greenlanders which in the previous Ordinances operated throughout Greenland and was not limited to the colonies. An examination of this Ordinance alone is enough to disprove the contention that the word "Greenland" in these legislative and administrative acts of the XVIIIth century means only the colonized area.
It has also been argued on behalf of Norway that "Greenland" as used in documents of this period cannot have been intended to include the East coast because at the time the East coast was unknown. An examination however of the maps of the XVIIth and XVIIIth centuries shows that the general features and configuration of the East coast of Greenland were known to the cartographers. Even if no evidence of any landings on the coast have been produced, the ships which hunted whales in the waters to the East of Greenland sighted the land at intervals and gave names to the prominent features which were observed. Indeed, "Greenland" as a geographical term was even more used in connection with the East coast than with the West coast, as the term "Straat Davis" was often used to describe the West coast, or colonized area, of Greenland.
The conclusion to which the Court is led is that, bearing in mind the absence of any claim to sovereignty by another Power, and the Arctic and inaccessible character of the uncolonized
Up to the date of the Treaty of Kiel of 1814, the rights which the King possessed over Greenland were enjoyed by him as King of Norway. It was as a Norwegian possession that Greenland was dealt with in Article 4 of that Treaty, whereby the King ceded to the King of Sweden the Kingdom of Norway, "la Groënlande... non comprise...". The result of the Treaty was that what had been a Norwegian possession remained with the King of Denmark and became for the future a Danish possession. Except in this respect, the Treaty of Kiel did not affect or extend the King’s rights over Greenland.
In order to establish the Danish contention that Denmark has exercised in fact sovereignty over all Greenland for a long time, Counsel for Denmark have laid stress on the long series of conventions—mostly commercial in character—which have been concluded by Denmark and in which, with the concurrence of the other contracting Party, a stipulation has been inserted to the effect that the convention shall not apply to Greenland. In the case of multilateral treaties, the stipulation usually takes the form of a Danish reserve at the time of signature. In date, these conventions cover the period from 1782 onwards. As pointed out in the earlier part of the judgment, the exclusion of Greenland is, with one exception, made without qualification. In that case alone it is "the Danish colonies in Greenland" to which the treaty is not to apply. In many of these cases, the wording is quite specific ; for instance, Article 6 of the Treaty of 1826 with the United States of America : "The present Convention shall not apply to the Northern possessions of His Majesty the King of Denmark, that is to say Iceland, the Færö Islands and Greenland..."
The importance of these treaties is that they show a willingness on the part of the States with which Denmark has contracted to admit her right to exclude Greenland. To some of these treaties, Norway has herself been a Party, and these must be dealt with later because they are relied on by Denmark as constituting binding admissions by Norway that Greenland is subject to Danish sovereignty. For the purpose of the present argument, the importance of these conventions, with whatever States they have been concluded, is due to the
It has been contended on behalf of Norway that no importance should be attached to these conventions because, when they were concluded, the Parties had no such question in mind as whether Danish sovereignty was limited or not to the colonies, and whether in consequence "Greenland" meant more than the colonized area. Both as to these conventions, and also as to the Treaty of Kiel, Counsel for Norway adhere to the contention that the word "Greenland" is used in the sense of the area comprised within the colonies.
It is true that when they conclude a commercial convention, States are not dealing with such questions as the extent of their respective territories, but the usual object of a commercial convention is to give to each of the Parties facilities for trade and navigation in the territories of the other ; consequently, the area within which such facilities are, or are not, accorded is a point of some importance. It is a question on which disputes may arise if there is any uncertainty. If the Parties were agreed that the treaty was not to apply in a particular area and the area is only designated by name, the natural conclusion is that no difference existed between them as to the extent of the area which that name covered. The Court is therefore once more led back to the question as to what the contracting Parties meant when they excluded "Greenland". The natural meaning of the term is its geographical meaning as shown in the maps. If it is argued on behalf of Norway that these treaties use the term "Greenland" in some special sense, it is for her to establish it, and it is not decisive in this respect that the northern part of Greenland was still unknown. She has not succeeded in showing that in these treaties the word "Greenland" means only the colonized area.
To the extent that these treaties constitute evidence of recognition of her sovereignty over Greenland in general, Denmark is entitled to rely upon them.
These treaties may also be regarded as demonstrating sufficiently Denmark’s will and intention to exercise sovereignty over Greenland. There remains the question whether during this period, i.e. 1814 to 1915, she exercised authority in the uncolonized area sufficiently to give her a valid claim to sovereignty therein. In their arguments, Counsel for Denmark have relied chiefly on the concession granted in 1863 to Tayler of exclusive rights on the East coast for trading, hunting, 34
Among the documents connected with the grant of this concession which have been submitted to the Court is the report submitted to the King for his approval by the Minister of the Interior, and it is interesting to note that it states as a matter free from all doubt that Danish sovereignty exists over the East coast of Greenland :
"En tout cas, les résultats auxquels cette tentative pourrait conduire présenteraient un intérêt scientifique assez important, et, pourvu que l’on prenne les garanties nécessaires tant en ce qui concerne la souveraineté de Votre Majesté sur cette partie du Groënland — que personne ne conteste — et pour la protection des Groënlandais qui y habitent et qui, par suite, doivent être considérés comme les sujets de Votre Majesté, l’octroi d’une autorisation de ce genre à ceux qui possèdent les qualités et l’énergie nécessaires pour tenter la réalisation d’une pareille entreprise pourra certainement être accordé sans aucune hésitation1."
Counsel for Norway have pointed to Article 2 in the concession, which provides that the establishments created by the concessionnaires were to be placed under the sovereignty of the Crown of Denmark and to be subject to Danish law—and have argued that the grant of a concession in these terms is itself evidence that the Danish Government realized that Danish sovereignty did not extend to this part of Greenland. The explanation however is simple. Tayler was an Englishman. The Danish Government were aware that people in Denmark, such as M. Wormskjöld, had been afraid that foreign Powers would attempt to make settlements on the East coast, and Article 2 was intended to make sure that the settlements established by Tayler should not be made the basis of a claim of occupation and sovereignty by the King of England.
The concessions granted for the erection of telegraph lines and the legislation fixing the limits of territorial waters in
In view of the above facts, when taken in conjunction with the legislation she had enacted applicable to Greenland generally, the numerous treaties in which Denmark, with the concurrence of the other contracting Party, provided for the non-application of the treaty to Greenland in general, and the absence of all claim to sovereignty over Greenland by any other Power, Denmark must be regarded as having displayed during this period of 1814 to 1915 her authority over the uncolonized part of the country to a degree sufficient to confer a valid title to the sovereignty.
The applications which the Danish Government addressed to foreign governments between 1915 and 1921, seeking the recognition of Denmark’s position in Greenland, have played so large a part in the arguments addressed to the Court that it is necessary to deal with them in some detail. The point at issue between the Parties is whether Denmark was seeking a recognition of an existing sovereignty extending over all Greenland, as has been urged by her Counsel, or, as maintained by Counsel on behalf of Norway, whether she was trying to persuade the Powers to agree to an extension of her sovereignty to territory which did not as yet belong to her:
The terms used in the correspondence between the Danish Government and the foreign governments concerned relating to these applications are not always clear ; sometimes a particular phrase or expression seems to afford a strong argument in favour of the view held by one Party in the dispute and another phrase or expression, emanating from the same side and perhaps even in the same note, may be consistent only with the opposite view.
The Court has come to the conclusion that in judging the effect of these notes too much importance must not be attached to particular expressions here and there. The correspondence must be judged as a whole. One reason for this is that in some cases the notes were written by individual Danish diplomatic representatives, and, though no doubt they were based on the instructions these Ministers received, some variation must be expected and allowed for in the terms they used.
There can be no doubt that an expression such as "extension of sovereignty", which figures in two or three of the most important documents on the Danish side, if taken by
Before analysing the important documents in this correspondence, it is well to repeat what has been said above as to the existence in Denmark of opinions held by well-qualified persons, such as M. Wormskjöld, that owing to the absence of any effective occupation on the eastern coast of Greenland, some foreign Power might attempt to establish a settlement and might thereby acquire the sovereignty over the territory for itself.
While this was the opinion which had been expressed by private persons, the Government had, whenever it was necessary for it to express an opinion, enunciated the view that there was no doubt as to the existence of the Danish sovereignty over the East coast of Greenland.
A sentence has already been quoted from the report to the King in 1863, asking for approval of the Tayler concession. Similarly, in the report submitted to the King in connection with the founding of the colony of Angmagssalik in 1894, the Minister of the Interior says :
"Bien que, jusqu’à présent, il n’ait été établi des colonies danoises que sur la côte occidentale du Groënland, la souveraineté de l’État danois n’est pas restreinte à cette partie du pays, et le Gouvernement danois a, lorsque l’occasion s’en est présentée, exercé et affirmé sa souveraineté sur la côte orientale du pays1."
Given this divergence of view between the Government opinion on the one side, and the opinion of private persons on the other, it is quite natural that at a time such as that of the Great War and the Peace Conference which followed it, when many territorial changes were taking place, the Danish Government should think the moment favourable for endeavouring to
The first country to be approached was the United States of America, and the moment chosen was that of the negotiation of the treaty for the cession of the Danish Antilles. It seems probable that the negotiations about Greenland were in part conducted verbally, but the memorandum addressed to the United States Government on December 27th, 1915, by the Danish Minister at Washington is not helpful to the Danish case. It is by no means clear, and it uses the phrase "extension of the care and suzerainty of Denmark to the whole of Greenland1". On the other hand, if what the Parties had in mind was consent by the United States Government to Denmark’s acquiring sovereignty over parts of Greenland which had hitherto been terrae nullius, it seems incredible that any competent draughtsman would use so complicated a phrase as that proposed by the United States Government for insertion in the Antilles Treaty: "... The United States will not object to the claim of Denmark to take such measures of control and protection in Greenland as she may deem proper and necessary to safeguard and advance these interests" (i.e. the political and economic interests of Denmark in Greenland).
The phrase used in the American declaration as ultimately signed was that the United States Government "... will not object to the Danish Government extending their political and economic interests to the whole of Greenland", a phrase which is not inconsistent with either thesis. On the other hand, when submitting the Antilles Treaty, together with the above declaration as to Greenland, for the royal ratification, the Danish Minister for Foreign Affairs treats the declaration as involving American consent to an extension of sovereignty.
Early in July 1919, the Danish Minister for Foreign Affairs learned from the Danish Minister in Paris that the Spitzbergen question was to come before a Committee of the Peace Conference.
Instructions were thereupon issued, on July 12th, 1919, to the Danish Minister at Christiania to make to the Norwegian Minister for Foreign Affairs a communication to the effect that a Committee had just been constituted at the Peace Conference "for the purpose of considering the claims that may be put forward by different countries to Spitzbergen", and that the Danish Government would be prepared to renew before this Committee the unofficial assurance already given to the Norwegian Government, according to which Denmark, having no special interests at stake in Spitzbergen, would raise no objection to Norway’s claims upon that archipelago. In making this statement to the Norwegian Minister for Foreign Affairs, the Danish Minister was to point out "that the Danish Government had been anxious for some years past to obtain the recognition by all the interested Powers of Denmark’s sovereignty over the whole of Greenland and that it intended to place that question before the above-mentioned Committee" ; that the Government of the U.S.A. had made a declaration that that Government would not oppose the extension of Danish political and economic interests over all Greenland ; and further that the Danish Government counted on the Norwegian Government not making any difficulties with regard to such an extension.
When, on July 14th, 1919, the Danish Minister saw the Norwegian Minister for Foreign Affairs, M. Ihlen, the latter merely replied "that the question would be considered". The Norwegian Minister for Foreign Affairs recorded his conversation with the Danish representative in a minute, the accuracy of which has not been disputed by the Danish Government. On July 22nd following, the Minister for Foreign Affairs, after informing his colleagues of the Norwegian Cabinet, made a statement to the Danish Minister to the effect "that the Norwegian Government would not make any difficulties
The Danish Government were not able to bring the question before the Peace Conference in 1919. The matter was therefore taken up with the governments individually, instructions being sent to the Danish Ministers in London, Paris, Rome and Tokyo on March 2nd, 1920, to address communications to the Governments to which they were accredited. These instructions described at length the work which Denmark had accomplished in Greenland and mentioned the colonies she had founded. Then follows an admission that no formal "prise de possession" had been taken of all Greenland and a statement is made that it is desirable that Denmark should extend its "sollicitude par sa souveraineté sur le Groënland tout entier". The text of the American declaration is set out and the instructions go on to say that, having got the American declaration, Denmark proposes also to obtain recognition by other Powers of Danish sovereignty over all Greenland, and the Minister concerned is therefore to ask for official recognition of Danish sovereignty over all Greenland. It is suggested that the form in which such recognition might be given would be a declaration corresponding to that made by the United States Government. It will be seen that, in these instructions, the Danish Minister for Foreign Affairs treats recognition of Danish sovereignty over all Greenland and a statement that there is no objection to the Danish Government extending its political and economic interests to the whole of Greenland as meaning the same thing.
Each of the Ministers concerned thereupon addressed himself to the Government to which he was accredited, following in his own way the tenour of the instructions he had received.
In reply, the French Government sent a note to the effect that it would make no objection to the Danish Government extending its sovereignty to all Greenland, as contemplated in the American declaration.
The Italian Government says that they will have no difficulty in recognizing Danish sovereignty over Greenland.
The British Government (after some preliminary correspondence with a view to securing a right of pre-emption over the country), recognizes Danish sovereignty over Greenland.
These notes all appear to have been written upon the assumption that they were complying with what the Danish Government had asked for, despite the diversity of their contents.
The British note, it is true, was written in slightly more favourable circumstances, because the Foreign Office had had the advantage of a further communication from the Danish Government in which the Danish view had been explained more clearly. The British Government had at first tried to secure a right of pre-emption over Greenland as a condition of its recognition of Danish sovereignty. This the Danish Government refused in a note on July 20th, 1920, in which it makes its point of view clear. The note says that the Danish occupation of Greenland dated back to 1721, since when Greenland had been treated uninterruptedly as a Danish colony, and that the Danish "suzerainty" had never been questioned by any other foreign Power. The note went on to say that the request which had been made by the Danish Government must therefore be regarded as dictated by a desire to obtain "formal recognition of an existing status sanctioned by prescriptive right".
Thus it will be seen that as soon as one of the Powers to whom application had been made indicates a desire to obtain some return for the grant of what had been asked, the Danish Government replies with a note setting out the legal basis of its claim to sovereignty in Greenland on lines similar to those which it has followed in the present case. With the legal position thus made clear, the British Government gave the desired recognition to Danish sovereignty and only asked that, in view of the proximity of Greenland to Canada, the British Government should be consulted if the Danish Government ever contemplated the alienation of the territory.
Early in 1921 the Danish Government approached the Swedish and Norwegian Governments with similar requests for recognition of Danish sovereignty.
The note addressed to the Swedish Government on January 13th, 1921, follows the lines of those addressed to the four
The memorandum addressed to the Norwegian Government by the Danish Legation at Christiania on January 18th, 1921, was conceived on somewhat different lines. It repeats the Danish desire to obtain recognition by the Powers concerned of Danish sovereignty over the whole of that country, and the fact that it had not been possible to bring the question before the Peace Conference in Paris. The communication then refers to the declaration made by the United States Government, the successful applications to the four Powers and the Danish decision to address corresponding requests to the Norwegian and Swedish Governments. Mention is made of Spitzbergen and of how Denmark had said, in 1919, that she would not oppose the Norwegian claims there and that she reckoned on an extension of Danish sovereignty in Greenland not meeting with difficulties on the part of Norway. Reference is then made to the Ihlen declaration, and it is said that as this had only been verbal Denmark would now like to have a written confirmation of it. The memorandum concludes by asking for a written statement that the Norwegian Government recognized Danish sovereignty over all Greenland.
This memorandum has been analysed in some detail because it is the document chiefly relied on by the Norwegian Counsel in maintaining that what Denmark sought to obtain was an extension of her sovereignty to the non-colonized part of Greenland in the sense that it implied that no such sovereignty existed at the moment. It is true that, as stated in the memorandum itself, the word "extension" is used, but it is used in connection with the attitude which Denmark had adopted in 1919. If however the communication made in 1919 to the Norwegian Government is examined, it will be found to be more consistent with the view that the Danish desire was to obtain the recognition of an existing sovereignty. As said above, too much importance must not be attached to some of these individual phrases and expressions when taken apart from their context. Words such as "reconnaissance expresse de la souveraineté du Groënland dans son entier" are more applicable to an existing sovereignty than to describe an agreement to an extension. Nor must it be forgotten that the date of this communication was six months later than the note of July 20th, 1920, to the Foreign Office in London, which sets out the Danish position with reasonable precision.
After a certain time, during which the communication of January 18th remained unanswered officially, but during which some unofficial communications passed, a note from the Norwegian Government, dated November 2nd, 1921, dealing with the Decrees of May 10th and June 16th of that year, stated that the Norwegian Government had not recognized, and could not recognize, an extension of Danish sovereignty which would involve a corresponding extension of the monopoly and result in the suppression of the hunting and fishing activities of the Norwegians in the parts of Greenland in question.
Confronted with an attitude which did not satisfy it, the Danish Government expounded—as it had done to the British Government in July 1920—its view of the situation in law, and in its note of December 19th, 1921, affirms that Danish sovereignty has no need of any renewed recognition by the Norwegian Government and asserts that this sovereignty has for a long time found expression in a series of international documents and legislative enactments, of which the contents have been brought to the knowledge of the countries concerned and to which no objection has ever been made.
The Danish Government thus enunciates once more the view expressed in 1863 and in 1894, and in the note to the Foreign Office in July 1920, that it already possessed sovereignty over all Greenland.
If that was the view which the Danish Government held before, during and at the close of these applications to the Powers, its action in approaching them in the way it did must certainly have been intended to ensure that those Powers should accept the point of view maintained by the Danish Government, namely, that sovereignty already existed over all Greenland, and not to persuade them to agree that a part of Greenland not previously under Danish sovereignty should now be brought thereunder. Their object was to ensure that those Powers would not attempt themselves to take possession of any non-
In these circumstances, there can be no ground for holding that, by the attitude which the Danish Government adopted, it admitted that it possessed no sovereignty over the uncolonized part of Greenland, nor for holding that it is estopped from claiming, as it claims in the present case, that Denmark possesses an old established sovereignty over all Greenland.
The period subsequent to the date when the Danish Government issued the Decree of May 10th, 1921, referred to above, witnessed a considerable increase in the activity of the Danish Government on the eastern coast of Greenland.
That Decree was followed by the Decree of June 16th of the same year concerning navigation in the seas round Greenland and declaring that the whole of the coasts and islands were closed to Danish and to foreign ships. Though the stringency of this measure was relaxed when the Convention of 1924 was concluded, the exclusion of all shipping remains the rule except in so far as access is authorized by treaty or decree or special authorization.
In 1925, legislation was enacted regulating the hunting and fishing, and in the same year Greenland was divided into provinces by a law which declared that all commercial activity was reserved to the Danish State.
This legislation with regard to hunting and fishing, and the law dividing the country into provinces, are noteworthy, as are also the admission of 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.
These were all cases in which the Danish Government was exercising governmental functions in connection with the territory now under dispute.
The character of these Danish acts is not altered by the protests or reserves which, from time to time, were made by the Norwegian Government.
These acts, coupled with the activities of the Danish hunting expeditions which were supported by the Danish Government, the increase in the number of scientific expeditions
It follows from the above that the Court is satisfied that Denmark has succeeded in establishing her contention that at the critical date, namely, July 10th, 1931, she possessed a valid title to the sovereignty over all Greenland.
This finding constitutes by itself sufficient reason for holding that the occupation of July 10th, 1931, and any steps taken in this connection by the Norwegian Government, were illegal and invalid.
The Court will now consider the second Danish proposition that Norway had given certain undertakings which recognized Danish sovereignty over all Greenland. These undertakings have been fully discussed by the two Parties, and in three cases the Court considers that undertakings were given.
1. In the first place, the Court holds that, at the time of the termination of the Union between Denmark and Norway (1814 to 1819), Norway undertook not to dispute Danish sovereignty over Greenland.
In the early part of this judgment, it has been recalled that when the King of Denmark was obliged to renounce, in favour of the King of Sweden, his kingdom of Norway, Article 4 of the Treaty of Kiel of January 4th, 1814, excepted from that renunciation Greenland, the Faroes and Iceland.
In order to effect the settlement—which was mainly of a financial character—rendered necessary by the separation of Norway from Denmark, Norwegian commissioners were appointed at the end of 1814 to confer with Danish commissioners. The solution of the questions to which the separation of the two countries gave rise was not easy. When, as early as 1816, Denmark began to fear that the conferences held at Copenhagen between the Danish and Norwegian commissioners would prove fruitless, the Danish Cabinet approached the Allied Powers. This step led to a Conference between these Powers which held its first meetings in London in July and August 1818. On the basis of a report of this Conference, the Congress of Aix-la-Chapelle decided, on November 13th, 1818, to make representations to the King of Sweden and Norway in order to ensure that the terms of the Treaty of Kiel were
It was then that the King of Sweden and Norway reverted to the question of the former Norwegian possessions of which Greenland was one.
The Norwegian commissioner at Copenhagen—M. Holst—was instructed on January 7th, 1819, formally to claim the restitution of the Faroes, Iceland and Greenland "as being possessions which had formerly belonged to the Kingdom of Norway". The instructions given to M. Holst referred to the fact that the "extraordinary Storting of 1814 had, in a most humble address, petitioned His Majesty to take the necessary steps to secure the restitution to the Kingdom of Norway of the Faroe Islands, Iceland and Greenland, possessions which for centuries were an integral part of that kingdom". This claim was presented to the Conference at Copenhagen on February 5th, 1819, and met with a point blank refusal on the Danish side. On learning of this refusal, the Minister for Foreign Affairs of Sweden and Norway, on February 23rd, 1819, authorized the Norwegian commissioner at Copenhagen to withdraw the claim. M. Holst did so in a declaration which he made on March 27th, 1819, and the original French text of which should be given here :
"Il est notoire que le Prince Chrétien Frédéric1 a provoqué de la part de la Représentation Nationale de la Norvège assemblée à Eidsvold, une protestation formelle contre le Traité de Kiel, qui assurait au Roi2 la Souveraineté sur la Norvège. Une constitution des plus libérales étant intervenue, la Représentation Nationale ayant, par une élection libre et spontanée, offert au Roi la Couronne de Norvège sous la condition expresse d’accepter la nouvelle constitution ; et le Roi y ayant donné Son assentiment, et étant par là devenu Roi constitutionnel, au lieu de Souverain absolu, comme II devait l’être conformément au Traité de Kiel, il en est résulté pour S. M. l’obligation d’avoir égard aux adresses que Lui présente le Stor-Thing dans les formes prescrites par la Loi. Or, le StorThing s’étant adressé au Roi mon Auguste Souverain à l’effet d’engager S. M. à faire les démarches nécessaires pour que les îles de Faeroe, l’Islande et la Groenlande fussent restituées par le Dannemarc pour être réunies au Royaume de Norvège : le Roi n’a pu Se dispenser de satisfaire, sur ce point, aux vœux exprimés par l’assemblée nationale. En remplissant ce devoir selon la teneur littérale de l’adresse du Stor-Thing, l’intention n’a jamais été de lier cette question à celle de la liquidation en général, ni d’entraver en aucune manière la marche régulière d’une négociation que S. M. désire sincèrement de voir terminée à la satisfaction commune des
The last sentence of this declaration brings out not only the financial element in the claim for the restitution of the possessions in question but also, and above all, the fact that the claim was definitely withdrawn.
Moreover, in March 1819, the Minister for Foreign Affairs of Sweden and Norway communicated to the British Minister at Stockholm a request for the mediation of the Prince Regent of Great Britain in the matter in regard to which the Cabinets of Stockholm and Copenhagen were still at variance, and said that the King of Sweden and Norway abandoned on behalf of Norway all claim to the Faroe Islands, Iceland and Greenland.
In a note dated May 28th, 1819, the Minister for Foreign Affairs of Sweden and Norway once more wrote to the British Minister at Stockholm that the King of Sweden and Norway agreed to "renounce in favour of the Crown of Denmark... the claims of this country [Norway] in respect of Iceland, Greenland and the Faroe Islands".
This renunciation found expression in the conclusions reached by a conference at Stockholm. With the British Minister in that capital acting as mediator, the conference prepared for signature by the King of Denmark and by the King of Sweden and Norway, in his capacity as King of Norway, the Convention of September 1st, 1819, which finally settled the difficulties.
Article 9 of this Convention1 states that "everything in connection with the Treaty of Kiel in general and with its
The Court holds that, in consequence of the various undertakings resulting from the separation of Norway and Denmark and culminating in Article 9 of the Convention of September 1st, 1819, Norway has recognized Danish sovereignty over the whole of Greenland and consequently cannot proceed to the occupation of any part thereof.
2. A second series of undertakings by Norway, recognizing Danish sovereignty over Greenland, is afforded by various bilateral agreements concluded by Norway with Denmark, and by various multilateral agreements to which both Denmark and Norway were contracting Parties, in which Greenland has been described as a Danish colony or as forming part of Denmark or in which Denmark has been allowed to exclude Greenland from the operation of the agreement.
The first of these agreements is the Commercial Treaty concluded between Denmark and the United Kingdoms of Sweden and Norway on November 2nd, 1826, a Treaty for which provision was made in Article 23 of the Treaty of Kiel. Article 5 of that Treaty reads as follows : "The respective colonies of the two High Contracting Parties, including in the case of Denmark, Greenland, Iceland, and the Faroe Isles, shall be specially excepted from the provisions of the four preceding articles, which shall only be applicable to the Kingdom of Denmark, the Duchies of Slesvig, Holstein and Lauenbourg of the one part, and to the Kingdoms of Sweden and Norway, of the other part."
Among more modern agreements may be quoted, as examples, the stipulations in the Universal Postal Conventions of 1920, 1924 and 1929, which say that : "The following shall be considered as belonging to the Universal Postal Union :... (c) the Faroe Isles and Greenland, as being part of Denmark."
It has already been said that when the Treaty of 1826 speaks of "Greenland", this can only denote Greenland in the sense, for example, of Article 4 of the Treaty of Kiel, i.e. the whole of Greenland. The same applies to the Danish-Norwegian Agreements, referred to above, which followed the Treaty of 1826. In accepting these bilateral and multilateral agreements as binding upon herself, Norway reaffirmed
3. In addition to the engagements dealt with above, the Ihlen declaration, viz. the reply given by M. Ihlen, the Norwegian Minister for Foreign Affairs, to the Danish Minister on July 22nd, 1919, must also be considered.
This declaration by M. Ihlen has been relied on by Counsel for Denmark as a recognition of an existing Danish sovereignty in Greenland. The Court is unable to accept this point of view. A careful examination of the words used and of the circumstances in which they were used, as well as of the subsequent developments, shows that M. Ihlen cannot have meant to be giving then and there a definitive recognition of Danish sovereignty over Greenland, and shows also that he cannot have been understood by the Danish Government at the time as having done so. In the text of M. Ihlen’s minute, submitted by the Norwegian Government, which has not been disputed by the Danish Government, the phrase used by M. Ihlen is couched in the future tense : "ne fera, pas de difficultés" ; he had been informed that it was at the Peace Conference that the Danish Government intended to bring up the question : and two years later—when assurances had been received from the Principal Allied Powers—the Danish Government made a further application to the Norwegian Government to obtain the recognition which they desired of Danish sovereignty over all Greenland.
Nevertheless, the point which must now be considered is whether the Ihlen declaration—even if not constituting a definitive recognition of Danish sovereignty—did not constitute an engagement obliging Norway to refrain from occupying any part of Greenland.
The Danish request and M. Ihlen’s reply were recorded by him in a minute, worded as follows1:
"I. The Danish Minister informed me to-day that his Government has heard from Paris that the question of Spitzbergen will be examined by a Commission of four members (American, British, French, Italian). If the Danish Government is questioned by this Commission, it is prepared to reply that Denmark has no interests in Spitzbergen, and that it has no reason to oppose the
Furthermore, the Danish Minister made the following statement :
The Danish Government has for some years past been anxious to obtain the recognition of all the interested Powers of Denmark’s sovereignty over the whole of Greenland, and it proposes to place this question before the above-mentioned Committee at the same time. During the negotiations with the U.S.A. over the cession of the Danish West Indies, the Danish Government raised this question in so far as concerns recognition by the Government of the U.S.A., and it succeeded in inducing the latter to agree that, concurrently with the conclusion of a convention regarding the cession of the said islands, it would make a declaration to the effect that the Government of the U.S.A. would not object to the Danish Government extending their political and economic interests to the whole of Greenland.
The Danish Government is confident (he added) that the Norwegian Government will not make any difficulties in the settlement of this question.
I replied that the question would be examined.
"II. To-day I informed the Danish Minister that the Norwegian Government would not make any difficulties in the settlement of this question. 22/7—19 Ih."
The incident has, therefore, reference, first to the attitude to be observed by Denmark before the Committee of the Peace Conference at Paris in regard to Spitzbergen, this attitude being that Denmark would not "oppose the wishes of Norway in regard to the settlement of this question" ; as is known, these wishes related to the sovereignty over Spitzbergen. Secondly, the request showed that "the Danish Government was confident that the Norwegian Government would not make any difficulty" in the settlement of the Greenland question ; the aims that Denmark had in view in regard to the last-named island were to secure the "recognition by all the Powers concerned of Danish sovereignty over the whole of Greenland", and that there should be no opposition "to the Danish Government extending their political and economic interests to the whole of Greenland". It is clear from the relevant Danish documents which preceded the Danish Minister’s démarche at Christiania on July 14th, 1919, that the Danish attitude in the Spitzbergen question and the Norwegian attitude in the Greenland question were regarded in Denmark as interdependent, and this interdependence appears to be reflected also in M. Ihlen’s minute of the interview. Even if this interdependence—which, in view of the affirmative reply of the Norwegian Government, in whose name the Minister for Foreign Affairs was speaking, would have created a bilateral engagement—is not held to have been established, it can hardly
From the foregoing, it results that the Court is unable to regard the Ihlen declaration of July 22nd, 1919, otherwise than as unconditional and definitive.
The standpoint adopted by Norway led her in 1921 to refuse a written confirmation of the Ihlen declaration, when such confirmation was requested by Denmark in the note from her Minister at Christiania on January 18th, 1921.
Thus, after the issue by Denmark of the Decree of May 10th, 1921, which introduced the régime of exclusion for the whole of Greenland, M. Ræstad, the Minister for Foreign Affairs, informed the Danish Minister at Christiania, unofficially, on July 20th, 1921, that "the Norwegian Government has not recognized and cannot consent to recognize an extension of Danish sovereignty over Greenland which would involve a corresponding extension of the Danish monopoly, since the result would be the extinction of the economic activities, and particularly the hunting and fishing operations hitherto pursued without hindrance by Norwegians in the parts of Greenland and in the Greenland waters in question" ; this was confirmed in the official Norwegian note of November 2nd, 1921, which has been referred to earlier in this judgment. The régime of exclusion, which—according to the Norwegian Government’s argument—could not have been foreseen by it, was sufficient to justify—according to such argument—the change in its attitude.
It follows from what has already been said that the Court is unable to adopt this reasoning.
The Court readily understands that Norway should feel concern for the interests of the Norwegian hunters and fishermen on the East coast of Greenland ; but it cannot forget, in this connection, that as early as December 1921, Denmark announced her willingness to do everything in her power to make arrangements to safeguard Norwegian subjects against any loss they might incur as a result of the Decree of May 10th, 1921 (letter from the Danish Minister at Christiania dated December 19th, 1921, to the Norwegian Minister for Foreign Affairs). The Convention of July 9th, 1924, was a confirmation of Denmark’s friendly disposition in respect of these Norwegian hunting and fishing interests.
What the Court cannot regard as being in accordance with the undertaking of July 22nd, 1919, is the endeavour to replace an unconditional and definitive undertaking by one which was subject to reservations : and what it is even more difficult for the Court to admit is that, notwithstanding the undertaking of July 22nd, 1919, by which she promised to refrain
The Court is unable to read into the words of the Ihlen declaration "in the settlement of this question" (i.e. the Greenland question) a condition which would render the promise to refrain from making any difficulties inoperative should a settlement not be reached. The promise was unconditional and definitive. It was so understood by the Norwegian Minister for Foreign Affairs when he told the Danish Minister at Christiania-on November 7th, 1919, that "it was a pleasure to Norway to recognize Danish sovereignty over Greenland" (dispatch from the Danish Minister at Christiania to the Danish Minister for Foreign Affairs of November 8th, 1919). It was also in the same sense that the Danish Minister at Christiania had understood the Ihlen declaration, when he informed the Danish Minister for Foreign Affairs on July 22nd, 1919, that M. Ihlen had told him "that the plans of the Royal Government in regard to the sovereignty of Denmark over the whole of Greenland would not encounter any difficulties on the part of Norway".
It follows that, as a result of the undertaking involved in the Ihlen declaration of July 22nd, 1919, Norway is under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland.
Denmark has maintained that the Convention of July 9th, 1924, already referred to above, excludes any right on the part of Norway to occupy a part of Greenland.
In this connection it should be noted that when Norway initiated negotiations in 1923, on the question of Greenland, the negotiations were intended to cover the whole problem of Greenland, and primarily the legal status of the eastern coast. But when it was found impossible to reconcile the Danish theory of sovereignty and the Norwegian theory of a terra nullius, it became necessary to confine the negotiations to an arrangement on certain matters which it was possible to regulate, while leaving the legal status of the uncolonized
Finally, Denmark has maintained that, under certain provisions of the Covenant of the League of Nations, of the General Act of conciliation, judicial settlement and arbitration of 1928 and of conventions between Denmark and Norway for the pacific settlement of disputes, Norway is likewise bound to abstain from occupying any part of Greenland ; it is also maintained that the same result ensues from two agreements said to have been arrived at by the two Parties at the beginning of July 1931, in the course of the exchange of views which preceded the occupation of July 10th, and of which an account has been given in the early part of this judgment.
In view of the conclusion reached by the Court, there is no need for these questions to be considered.
Each Party has prayed the Court to order the other Party to pay the costs in the present case. The Court, however, holds that there is no need in the present case to deviate from the general rule laid down in Article 64 of the Statute, namely, that each Party will bear its own costs.
by twelve votes to two,
(1) decides that the declaration of occupation promulgated by the Norwegian Government on July ioth, 1931, and any steps taken in this respect by that Government, constitute a violation of the existing legal situation and are accordingly unlawful and invalid ;
(2) rejects the opposing submissions of the Norwegian Government ;
(3) declares that there is no need to deviate from the general rule laid down in Article 64 of the Statute that each Party will bear its own costs.
Done in French and English, the English text being authoritative, at the Peace Palace, The Hague, this fifth day of April, one thousand nine hundred and thirty-three, in three copies, one of which shall be placed in the archives of the Court and the others delivered to the Agents of the Government of His Majesty the King of Denmark and of the Government of His Majesty the King of Norway respectively.
M. Anzilotti, Judge, and M. Vogt, Judge ad hoc, declare that they are unable to concur in the judgment given by the Court and, availing themselves of the right conferred on them by Article 57 of the Statute, append to the judgment the dissenting opinions which follow.
MM. Schücking and Wang, Judges, whilst concurring in the judgment, have appended thereto the observations which follow.
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