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    Dissenting Opinion by M. Anzilotti

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    [Translation.]
    Being unable wholly to concur in the present judgment, and having regard to the importance of the case and of the principles of law involved, I feel it my duty. to avail myself of my right under the Court’s Statute and to indicate as briefly as possible my standpoint in regard to this dispute.

    1.—In the first place, I dissent with regard to the manner in which the question referred to the Court has been approached.

    The dispute is one between Denmark and Norway regarding the sovereignty over a territory in Eastern Greenland. Denmark’s position in Greenland formed the subject of a request addressed by the Danish Government to the Norwegian Government in July 1919, and of a declaration on the part of the latter Government accepted by the Danish Government. Accordingly, in my view, the first thing to be done was to decide whether this constituted a valid agreement between the two Governments ; if so, the rule to be applied for the solution of the dispute should first and foremost have been sought in this agreement.

    I am quite aware that this was not the line taken by the Parties, one of whom desired to take advantage of the present proceedings in order to attempt to establish his sovereignty over all Greenland, and, accordingly, had every interest in presenting the request addressed to the Norwegian Government, and other similar overtures, in the light of a preconceived theory, whilst it was to the other’s interest to show that the declaration made on his behalf in 1919 was devoid of any importance. That, however, should not have prevented the Court from rectifying the position in accordance with the principles of law and the rules of its own Statute.

    I speak only of the Danish request in 1919 and of the declaration made in response thereto because, in my view, that is the only agreement between the two countries—assuming, of course, that there was an agreement—which concerns the question submitted to the Court. As regards the Convention of July 9th, 1924, concerning Eastern Greenland, I hold, with the judgment, that the notes exchanged the same day between the Danish and Norwegian Governments render it impossible to adduce any argument from that Convention in support of the contentions of either Party.

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    2. —The important point in the present proceedings is, of course, the request made to the Norwegian Government by the Danish Government and the former’s declaration.

    The request addressed to the Norwegian Government was, however, only one of several similar overtures on the part of the Danish Government addressed, from the end of 1915 onwards, to a number of States with a view to defining and securing its position in Greenland. It is scarcely possible rightly to appreciate the request with which we are concerned unless we consider it in conjunction with the whole series of overtures of which it formed part, more especially since, as we shall presently see, the request addressed to the Norwegian Government, as a result of which the declaration was made, reproduced the terms of a declaration obtained by the Danish Government from another State.

    This is the point of view from which I shall briefly consider the overtures in question, in regard to which I am definitely at variance with the Court. In order to avoid repetition, I shall leave aside for the moment the request addressed to the Norwegian Government : I shall devote special attention to that, after I have defined the meaning and effect of the overtures made by the Danish Government to other States.

    3. —The best way of appreciating these overtures is, in my view, to allow the documents relating to them to speak for themselves. Though the attitude adopted by the Danish Government is, in a sense, the most important factor, the answer given by the foreign governments must also be noted, either because it shows how the Danish request was understood, or because the Danish Government, in accepting these answers without observations or reservations, showed that it accepted the interpretation placed by the other Government upon its request.

    It seems that the Danish Government raised the question of its sovereignty over all Greenland for the first time in connection with the negotiations regarding the cession of the Danish West Indies to the United States of America. We do not know how the Danish Government first approached the American Government : a proposal was made by the latter Government (see Danish Government’s Case) which was solely concerned with securing the principle of the open door and was not accepted by the Danish Government.

    But in the memorandum handed to the Secretary of State on December 27th, 1915, the Danish Minister in Washington, after stating that "it was desirable that the Danish Government should extend its care by the suzerainty of the State to include the whole of Greenland", added that he had been

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    "instructed" by his Government "to say that the Danish Government would very much desire to receive the binding promise of the American Government that no objection would be raised to the said extension of the care and suzerainty of Denmark to the whole of Greenland" (Annexes to Norwegian Government’s Counter-Case, No. 38).

    The American Government’s declaration of August 4th, 1916, is. to the effect that "the Government of the United States of America will not object to the Danish Government extending their political and economic interest to the whole of Greenland" (Annexes to the Danish Government’s Reply, No. 170). The terms of this declaration deviate from those of the request ; but it is certain that the declaration was construed by the Danish Government as a promise not to object to the extension of Danish sovereignty. This emerges from several documents ; but the report of the Minister for Foreign Affairs to the King, dated August 1st, 1916— reproduced under No. 165 of the Annexes to the Danish Government’s Reply—appears to me to be absolutely decisive in this respect. In his report, the Foreign Minister says :

    "Finally, it appears to me most important that the United States of America have offered to make, simultaneously with the signature of a convention, an official declaration to the effect that the Government of the United States of America will not object to the Danish Government extending their sovereignty to include the whole of Greenland...."

    This is especially worthy of note because, in all the overtures successively undertaken by it, the Danish Government expressly referred to the request made to the United States of America ; the American declaration was submitted to the other governments as a model for the declaration asked of them.

    The overtures to the other Powers—as I have said, I am leaving aside for the moment the request addressed to the Norwegian Government—were only made later and when it was no longer possible for the question to be brought before the Peace Conference. On March 2nd, 1920, the Danish Minister for Foreign Affairs sent to the Danish Ministers in London, Paris, Tokyo and Rome, instructions which were to serve as a basis for overtures to the respective governments.

    In these instructions (Annexes to the Danish Government’s Reply, No. 170), after outlining Danish activities in Greenland since 1721, and after observing that several parts of that country had been effectively occupied on behalf of Denmark, but

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    that "formal possession of Greenland as a whole had not been taken", the Minister for Foreign Affairs goes on to say that, "having regard to Danish sentiment in this matter and in the interest of the Eskimos, it would be desirable that the Danish Government should be enabled to extend its care, by means of its sovereignty, over the whole of Greenland".

    The instructions next describe the request made to the United States of America and reproduce the terms of the declaration made by the American Government. They conclude by requesting the Danish representative "to endeavour to obtain.... the Government’s.... official recognition of Danish sovereignty over all Greenland", and they add that "the best way of obtaining such recognition from.... would, in the Foreign Minister’s opinion, be for the.... Government to make a declaration corresponding to that made by the American Government". The import attached to that declaration by the Danish Government has already been seen.

    In the note transmitted on March 16th, 1920, to the British Secretary of State for Foreign Affairs (Annexes to the Danish Government’s Reply, No. 171), we read : "I have accordingly been instructed to submit to His Britannic Majesty’s Government a request for the official recognition of His Danish Majesty’s sovereignty over the whole of Greenland. In view of my Government’s opinion, such recognition might be given in the same way as the Government of the United States of America recognized in 1916...."

    To this note was attached a memorandum which, pursuant to the instructions received, gave an account of the historical relations between Denmark and Greenland and set out the other considerations militating in favour of the request. The memorandum concluded with the following paragraph :

    "Danish explorers have visited practically the whole of uninhabited Greenland and made maps of the country, but no formal occupation of the whole of Greenland has actually taken place. In view of Danish sentiments in this matter as well as the interest of the Esquimau population, it would be desirable if the Danish Government could extend its activity by proclaiming its sovereignty over the entire territory of Greenland."

    The notes to the Italian Government, on March 17th, 1920 (Annexes to the Danish Government’s Reply, No. 173), to the French Government, on March 20th, 1920 (ib., No. 174), to the Japanese Government, on May 12th, 1920 (ib., No. 175), and to the Swedish Government, on January 13th, 1921 (ib., No. 177), together with the documents annexed to them, though containing some differences in wording, all reproduce the same essential ideas, that is to say that, ever since the beginning

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    of the XVIIIth century, Denmark has been founding colonies.in Greenland, but that formal possession has not been taken of the whole of Greenland in the name of the Crown of Denmark ; that it is desirable that Denmark should be enabled to extend her sovereignty and, thereby, her care to the whole of Greenland ; finally, that the recognition of Danish sovereignty might take the form of a declaration similar to that made by the United States of America, the terms of which are given in each case.

    On two occasions, however, the Danish Government deviated from this standpoint and contended that the recognition sought was in respect of a situation already existing and long since established : this it did, first, in the note which the Danish Minister in London, on the basis of the instructions received by him from the Foreign Minister (Annexes to the Danish Government’s Reply, No. 176), addressed to the British Government on July 20th, 1920 (Danish Government’s Case), and secondly, in the note addressed by the Danish Minister at Christiania to the Norwegian Government on December 19th, 1921 (Annexes to Danish Government’s Case, No. 91). It is therefore necessary to see in what circumstances this attitude was adopted.

    The note of July 20th, 1920, to the British Government is a reply to that Government’s note of May 19th (Danish Government’s Case) : in the latter note, the Foreign Office stated that they were prepared officially to recognize Danish sovereignty over Greenland, provided that Denmark gave the British Empire a right of pre-emption in the event of the sale of the island. It was to avoid this condition, which had met with determined opposition from the United States of America, that the Danish Government adopted the attitude expressed in the note in question.

    As regards the note of December 19th, 1921, that document was in reply to the note of November 2nd, in which the Norwegian Minister tor Foreign Affairs informed the Danish Government that the Norwegian Government had not recognized, and could not consent to recognize, an extension of Danish sovereignty over Greenland, involving a corresponding extension of the Monopoly, and the resulting extinction of the fishing and hunting operations hitherto conducted by Norwegians in the parts of Greenland in question and in the adjacent waters.

    It should be observed that the Danish Government affirmed the pre-existence of its sovereignty over all Greenland when it was necessary to do this in order to refute claims which it was unable or unwilling to admit ; apart from such cases, it confined itself to asking for a recognition of an extension of its

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    sovereignty. It is therefore difficult to consider the two notes of July 20th, 1920, and December 19th, 1921, as representing the standpoint adopted by the Danish Government in approaching foreign governments in regard to its position in Greenland ; to do so would indeed set these two documents in manifest contradiction with the direct, definite, and concordant statements which appear in all the other documents.

    The only conclusion which I find it possible to derive from the two notes in question is that, at that moment, the Danish Government was perfectly aware of the possibility of adopting either attitude : viz. that of affirming an already existing sovereignty, and requesting its recognition, or that of urging reasons in support of an extension of its sovereignty, and requesting the recognition of this extension. It elected to adopt the latter attitude and only resorted to the former in the course of a discussion and to avoid conditions or limitations which it felt unable to accept.

    The majority of the replies from the interested States show that it was, in truth, in that sense that the governments understood the request made to them by the Danish Government, and that what they agreed to recognize was the extension of Danish sovereignty over the whole of Greenland.

    Thus, the French reply, dated March 31st, 1920, says that "the Government of the Republic will not object to the Danish Government extending its sovereignty over the whole of Greenland in the manner indicated in the American note of August 4th, 1916" (Danish Case).

    The Japanese reply, dated June 24th, 1920, is worded as follows : "I have the further honour to declare herewith on behalf of the Imperial Government that they have no objection to the Danish Government extending their political and economic interests to the whole of Greenland." (ib.)

    The Italian Government’s reply, dated June 29th, 1920, states that "the Royal Government will have no difficulty in recognizing the sovereignty of Denmark over Greenland" (ib.). In my opinion, it is beyond all doubt that what is contemplated here is a future recognition, i.e. a recognition which will not be refused whenever Danish sovereignty has been extended to the whole of Greenland.

    The British and Swedish replies alone—the former, no doubt, as a result of the Danish note of July 20th, 1920— appear to contemplate a recognition independent of any future events : the British reply, dated September 6th, 1920, states that "His Majesty’s Government recognize His Danish Majesty’s

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    sovereignty over Greenland" (Danish Case) ; and the Swedish reply, dated January 28th, 1921, declares that ".... His Majesty’s Government, as from this date, has recognized the sovereignty of Denmark over the whole of Greenland" (ib.). But there is nothing in these replies to indicate that these Governments believed that they were confirming an already existing sovereignty. The fact that the British Government felt justified in appending to its recognition a reservation in regard to its right to be consulted in case the Danish Government should contemplate alienating this territory, appears rather to point to ah opposite conclusion.

    I am therefore of opinion that, if one reads the documents as they stand, giving the words the sense which they naturally bear in the context, one is inevitably led to the conclusion that the Danish Government was making a distinction between the colonized districts of Greenland and the other parts of the country, and that what it was requesting from the States whom it approached was, not the recognition of an already existing sovereignty, but the recognition of the right to extend its sovereignty to the whole of Greenland.

    4.—Such, in my opinion, is the conclusion which emerges from the text of the documents.

    It remains to be seen whether this conclusion is inexplicable or inconsistent, having regard to the position of Denmark in Greenland at the moment when the overtures were made. It is in this connection that the historical question of Danish sovereignty in Greenland arises in the present suit ; a literal interpretation fails where it would lead to absurd or inconsistent results.

    Two facts in particular merit attention.

    First, the existence of an ancient claim to sovereignty Over the country known as Greenland, a claim unconnected either with the extent of the colonization of the country, or even with a more or less accurate geographical demarcation thereof.

    It is agreed that the origin of this claim resides in the authority which the ancient kings of Norway had acquired over the political organization which inhabitants of Iceland, of Norwegian origin, had founded at the end of the Xth century in South-West Greenland and which, at first independent, did homage to the King of Norway in 1261 and became tributary to the Kingdom of Norway. This species of suzerainty fitted in with the notion of an exclusive dominion of the kings of Norway over the seas and lands of the North and afforded the basis for a claim which was neither limited to the territory occupied by the tributary State nor subject to the condition that that State should continue to exist.

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    It was, no doubt, as a consequence of this claim that, some two centuries after the political organization in Greenland had " been destroyed by the Eskimos, and practically all communication with Greenland had ceased, the kings of the Danish-Norwegian Union announced the intention of re-establishing the old relations with "the Country of Greenland belonging to Our Kingdom of Norway" ; or described themselves as "hereditary sovereigns of Greenland" ; or spoke of "Our Country of Greenland", etc.

    Again, this historic claim manifests itself in legislation or in treaties relating to’ Greenland as a whole. The animus possidendi, of which so much has been said in these proceedings, is, at bottom, nothing else than the old claim on the basis of which, first the kings of Denmark and Norway and later the kings of Denmark, did not hesitate to act as sovereigns of Greenland when opportunity offered itself.

    The other fact deserving of attention is the disproportion between the claim to sovereignty over all Greenland and the effective exercise of that sovereignty.

    I am prepared to admit that the Danish Government has proved that, on some occasions, laws have been promulgated which, according to their meaning and tenour, were not limited to the colonized parts of Greenland ; I also concede that frequently the Danish-Norwegian Union or Denmark have acted, in relation to foreign States, as though their sovereignty covered all parts of Greenland alike.

    But that is all that can be conceded to the Danish standpoint. It is undeniable and it has not been denied—and that in my view is the essential point—that in this respect there was a profound difference between the colonized regions of Greenland and the remainder thereof ; for, whereas in the colonies there was a regular administration and a judicial organization, in the remainder of Greenland there were perhaps laws in force but no authority to enforce them : in fact—and this is a circumstance as exceptional as it is significant—no officials had even been appointed competent to decide disputes or to apply and ensure respect for the law.

    For a long time, the disproportion to which I have referred was not of much importance. This was the case not merely because the requirements of international law were then smaller, but also, and above all, because the title to sovereignty existed independently of its exercise : the Danish-Norwegian or Danish kings did not claim to be sovereigns of Greenland because they exercised authority over that country ; they exercised authority over it because they claimed to be the hereditary sovereigns of the country. From this point of view, and having regard to the natural conditions

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    prevailing in Greenland, I unhesitatingly admit that Danish-Norwegian or Danish sovereignty was manifested in a manner satisfying to requirements of international law, in the sense that sovereignty over all Greenland was neither compromised nor lost. It is however obvious that this position is only tenable if one postulates the existence of a title to sovereignty antecedent to the so-called second colonization and if the validity of that title is established.

    The situation however evolved in an entirely contrary direction.

    Historic claims to dominion over whole regions—claims which had, formerly, played an important part in the allocation of territorial sovereignty:—lost weight and were gradually abandoned even by the States which had relied upon them. International law established an ever closer connection between the existence of sovereignty and the effective exercise thereof, and States successfully disputed any claim not accompanied by such exercise.

    Furthermore, the natural conditions prevailing in Greenland and their importance changed appreciably as a result of technical improvements in navigation which opened up to human activities a part of that country, especially the East coast, which previously, although known, had been practically inaccessible.

    Accordingly, the question of Danish sovereignty over Greenland presented itself in a new light.

    For, if the notion of a historical sovereignty arising from the old Norwegian claims be discarded, Denmark’s title to sovereignty over Greenland must necessarily be sought in a taking of possession effected since 1721. But in that case it is a question of the occupation of a terra nullius. To say that the title resides in possession and not in occupation is a verbal quibble, for possession of a territory which formerly belonged neither to the State possessing it nor to any other State is nothing else than occupation considered at a moment subsequent to the original act of occupying.

    In short, either the so-called second colonization is the manifestation of a pre-existing sovereignty and the title to this sovereignty must be established and shown to be valid; or else Greenland, in 1721, was a terra nullius and we have before us an occupation which must be appraised in accordance with the rules governing occupation.

    The historical development of Denmark’s position in Greenland in the XIXth century was bound to give rise to this problem. Accordingly, it is easy to understand the anxiety which became evident with respect to parts of Greenland which

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    had not yet been effectively occupied. The attention of the Danish Government was repeatedly drawn from different sides to the possibility of disputes and to the danger of uncolonized territories in Greenland being occupied by other States. Of course these were private opinions, though in some cases they emanated from particularly competent sources ; it is not to be expected that the Government itself should cast doubt upon its sovereignty before having decided what it ought to do. It should however be noted that the Government itself was not altogether free from anxiety on the point. I find a striking proof of this in Article 2 of the concession granted to Mr. J. W. Tayler on June 7th, 1863, in which it is expressly stipulated that any settlement—colony, post, mine, or similar establishment—which the concessionnaire might create north or south of latitude 65°, is to come under the sovereignty of the Danish Crown and to be subject to the Danish laws ; it is difficult to understand that in granting a concession to a foreigner in a territory which it regards as indisputably subject to its sovereignty, a State should concern itself with the possibility of the concessionnaire taking possession of the territory in the name of his own sovereign.

    Again, the fact that the Danish Government had doubts as to the soundness of its claim to sovereignty over certain parts of Greenland is proved by the very overtures which it made. A proceeding of this kind is explicable only when the government which resorts to it thinks it necessary to safeguard a doubtful or unsettled position. Accordingly it is a proceeding which, so far as I am aware, has not been often resorted to. A single precedent has been cited: the recognition of Swiss neutrality by Article 433 of the Treaty of Versailles. But it has been forgotten that the purpose of that Article was not to recognize Switzerland’s neutrality which no one disputed, but something quite different : the intention was on the one hand to secure approval of the abrogation of certain provisions affecting Swiss neutrality, and on the other hand to place on record that the guarantees stipulated in favour of Switzerland in 1815 constituted "international obligations for the maintenance of peace", in order to make it possible for that country to enter the League of Nations.

    Denmark’s historical position in Greenland had thus been reconsidered in the light of the principles of international law now in force and of the new situation existing in fact, and there was a demand for action which would eliminate any danger by means of the taking of effective possession of the territories not yet occupied.

    Accordingly, when, in 1915, the Danish Government considered that the time had come to settle the question, it definitely took up the attitude suggested to it by the present

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    state of international law. Historical claims were abandoned ; all the documents point to the year 1721 as the commencement of Danish dominion in Greenland. A definite distinction is made between the parts of Greenland of which effective possession has been taken—in regard to which no question arises—and the other parts of which possession has not been formally taken but over which it would nevertheless be just and desirable that Denmark should be enabled to extend her sovereignty. And it was in order to obtain recognition of this extension that the Danish Government approached the governments of the States which it regarded as specially interested.

    Everything fits and forms a coherent whole in the overtures made by the Danish Government ; and the conclusion which emerges from the text of the documents, far from being inexplicable or inconsistent with the historical development of Denmark’s position in Greenland, is the clear and natural outcome thereof.

    5.—Of all the overtures made by the Danish Government, the only one which directly concerns us and with which I intend to deal hereafter is that made in July 1919 to the Norwegian Government.

    First and foremost, this overture differs from the others by reason of the circumstances in which it was made. The request to the United States of America was made in connection with the cession of the Danish West Indies, and its aim was to obtain a declaration which would accompany the signature of the Convention. The overtures to the other Powers were made when it was impossible for the Greenland question to be settled by the Peace Conference ; their object was to secure declarations which would take the place of a settlement by the Conference and would close the question as between Denmark and the State approached.

    On the other hand, it was precisely with a view to submitting this question to the Peace Conference, and having it settled by the Committee which was dealing with Spitzbergen, that the Danish Government approached the Norwegian Government.

    In a letter dated at Copenhagen July 12th, 1919 (see Annexes to the Danish Case, No. 84), the Minister for Foreign Affairs instructed the Danish Minister at Christiania to inform the Norwegian Minister for Foreign Affairs that the question of Spitzbergen was shortly to be examined by a Committee of the Peace Conference, composed of one American, one British, one French and one Italian delegate, and that there was every reason to believe that the Danish Government would in the near future receive an invitation to bring its point of view on 68

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    this question to the notice of the Committee. "The Danish Government"—says the letter—"will be prepared to renew before this Committee the unofficial assurance already given to the Norwegian Government regarding the attitude of Denmark in the question of Spitzbergen, namely, that Denmark, having no special interests at stake in Spitzbergen, would raise no objection to the claims of Norway."

    Then came two paragraphs in which the object of the request to be made to the Norwegian Minister for Foreign Affairs is set forth in the following terms :

    "Nevertheless, I would ask you in the course of the conversation to bring out clearly that the Danish Government has, for a certain number of years, been anxious to obtain the recognition by all the interested Powers of Denmark’s sovereignty over the whole of Greenland, and that it intends to place that question before the above-mentioned Committee. In the course of the negotiations with the United States of America concerning the cession of the Danish West Indies, the Danish Government has already raised the question of such a recognition by the United States, and had succeeded in obtaining from the latter, simultaneously with the conclusion of the Convention for the cession of the islands in question, a declaration to the effect that the United States of America would not object to the Danish Government extending its political and economic interests to the whole of Greenland.

    I would ask you to explain to the Norwegian Minister for Foreign Affairs that the Danish Government is confident that it will meet with no difficulties on the part of the Norwegian Government with regard to such an extension."

    Two days later, the Danish Minister at Christiania had the conversation, which he had been instructed to seek, with the Norwegian Minister for Foreign Affairs, M. Ihlen. The subject of this conversation was recorded by M. Ihlen in a minute, a French translation of which is given under No. 205 of the Annexes to the Norwegian Government’s Rejoinder : neither the accuracy of the minute, nor that of the translation, has been challenged.

    The minute was to the following effect :

    "The Danish Minister to-day informed me that his Government had heard from Paris that the Spitzbergen question would be dealt with by a Committee of four members (American, British, French, and Italian). Should this Committee question the Danish Government, the latter would be prepared to answer that Denmark had no interests in Spitzbergen and that Denmark had no reason to oppose Norway’s wishes in regard to the settlement of the question.

    Further, the Danish Minister informed me of the following :

    The Danish Government has for several years been concerned with the question of obtaining recognition of Danish sovereignty over all Greenland from all the Powers concerned, and they intend

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    simultaneously to submit this question to the Committee. In the course of the negotiations with the United States of America concerning the cession of the Danish West Indies, the Danish Government raised this question in so far as concerned recognition by the United States Government, and it obtained from the latter, simultaneously with the conclusion of the Convention regarding the cession of the islands referred to, a declaration to the effect that the United States would not raise any objection to the extension by the Danish Government of its political and economic interests to the whole of Greenland.

    The Danish Government confidently expected that the Norwegian Government would make no difficulty in connection with the settlement of this matter. I replied that the question would be considered."

    The reply was given on July 22nd, eight days later ; it is recorded as follows in a further minute by M. Ihlen :

    "I to-day informed the Danish Minister that the Norwegian Government would make no difficulty in connection with the settlement of this matter."

    The Danish Minister informed his Government of the reply in a despatch, of the same date, in which he stated that M. Ihlen, Minister for Foreign Affairs, had informed him on that day that "the plans of the Royal Government concerning Danish sovereignty over the whole of Greenland—mentioned in your despatch of 12th instant—will meet with no difficulty on the part of Norway" (Annexes to the Danish Case, No. 85).

    The above are the principal documents relating to the Danish Government’s request to the Norwegian Government, and to the latter’s reply.

    In this connection two questions arise :

    (a Did the two Governments agree upon anything ? and upon what ?

    (b) If so, was the agreement valid ?

    6.—There appears no doubt that, in the opinion of the Danish Government, there was a connection between the attitude which that Government was prepared to adopt in the Spitzbergen question, and that which it was asking the Norwegian Government to adopt in the Greenland question.

    I do not, however, think one can go so far as to say—as is now contended by the Danish Government—that there was a regular reciprocal do ut des contract, in which the declaration that the last-named Government was prepared to make— and which it actually made before the Committee of the Peace Conference—was to constitute the counter-part of the undertaking which it was asking Norway to give.

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    That was, it is true, the idea suggested by the Danish Minister at Paris, in his note of July 11th, 1919 (Danish Case). But the instructions which the Danish Minister for Foreign Affairs sent on July 12th to the Danish Minister at Christiania (see above), and which resulted in his conversation with the Norwegian Minister for Foreign Affairs, appear to have been conceived and drawn up in rather a different spirit. The reason probably lies in the fact—which was recalled in the instructions—that the Danish Government had already given the Norwegian Government an unofficial assurance that, as Denmark had no interests contrary to those of Norway in the Spitzbergen question, she would raise no objection to the latter’s demands. There is nothing in these instructions that suggests the idea of asking the Norwegian Government for a counter-concession ; the declaration concerning Spitzbergen, which the Danish Government was proposing to "repeat" before the Committee, is indicated rather as an opportunity for making an equivalent request to the Norwegian Government. The words "nevertheless, I would ask you, in the course of the conversation, to bring out...." convey just that idea.

    Everything points to the conclusion that it was in that sense that the Danish Minister at Christiania interpreted his instructions. The minute drawn up by M. Ihlen certainly does not convey the idea of an alleged do ut des contract ; on the other hand, if one compares this minute with the Danish instructions of July 12th, the two documents are seen to be in complete accord with one another. I have little doubt that the word "further" which, in M. Ihlen’s minute, separates the part of the conversation concerning Spitzbergen from the part concerning Greenland, represents exactly what took place ; for what the Danish Minister had been instructed to do was "to bring out, in the course of the conversation", the aspirations which his Government entertained with regard to Greenland.

    I therefore hold that no do ut des contract was proposed by the Danish Government. But even were it otherwise, there is nothing to show that M. Ihlen realized that the statement which the Norwegian Government was being asked to give was to be the counter-part of the declaration which the Danish Government was promising to make in regard to Spitzbergen. The request made to the Norwegian Government is therefore, in this respect, on the same plane as those addressed to the other Powers.

    This request was that the Norwegian Government should not make any difficulties in the settlement of the Greenland question—which the Danish Government was proposing to submit, together with that of Spitzbergen, to the Committee of the

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    Peace Conference. The settlement contemplated by the Danish Government was clearly not just any settlement : it was a settlement on the lines indicated in the Danish Minister’s communication, namely, that no opposition would be made "to the Danish Government extending its political and economic interests to the whole of Greenland".

    It follows that when the Norwegian Minister for Foreign Affairs informed the Danish Minister, on July 22nd, that "the Norwegian Government would make no difficulty in the settlement of this matter", that signified that the Norwegian Government would not object to the Danish Government extending its political and economic interests to the whole of Greenland. It has already been shown (see No. 3 above) that, in the eyes of the Danish Government, "the extension of political and economic interests" signified, at any rate in the first place, "the extension of sovereignty". There is no reason to doubt that this was also the sense in which the Norwegian Minister for Foreign Affairs understood the Danish request. That view is, indeed, confirmed by the subsequent documents, which show that the Norwegian objections were not aimed at the extension of Danish sovereignty, but at an extension of sovereignty involving a corresponding extension of the monopoly ; the extension of sovereignty was, therefore, common ground : I would refer in particular to the private letter from M. Ræstad, Norwegian Minister for Foreign Affairs, to M. Kruse, Danish Minister at Christiania, dated July 20th, 1921 (Annexes to the Norwegian Government’s Rejoinder, No. 209), and to the Norwegian note of November 2nd of the same year (Annexes to the Danish Government’s Case, No. 89).

    The question whether the so-called Ihlen declaration was merely a provisional indication (Norwegian contention) or a definitive undertaking (Danish contention) has been debated at length. In my view there has been a good deal of exaggeration on both sides.

    There is no doubt that the declaration was requested, and granted, with a future settlement in view. The Norwegian Government could, therefore, well be under the impression that the possibility of upholding its interests, and ensuring adequate safeguards for them, still remained open to it. It would be going beyond the intention of the Parties—or, at any rate, of one of them—if the agreement resulting from the Ihlen declaration were to be regarded as a complete and final settlement of the Greenland question between Denmark and Norway. In this respect, the Norwegian declaration differs unmistakably from those which the Danish Government obtained from other Powers, and which are complete in themselves.

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    There was, nevertheless, one point on which agreement had been reached between the Parties, and which may definitively be regarded as common ground for the future settlement. That point was not the recognition of an already-existing Danish sovereignty : that contention of the Danish Government is refuted by all the documents. The point on which the Danish Government’s request and the Norwegian Government’s reply are in accord is that the latter Government shall not make any difficulties in a settlement of the question which would enable the Danish Government to extend its political and economic interests, that is to say, its sovereignty, to the whole of Greenland. In regard to this point, the Norwegian declaration is of the same nature as those of the other Powers. Norway doubtless retained the possibility of upholding her interests, provided always that she refrained from opposing the extension of Danish sovereignty to the whole of Greenland.

    7.—The outcome of all this is therefore an agreement, concluded between the Danish Minister at Christiania, on behalf of the Danish Government, and the Norwegian Minister for Foreign Affairs, on behalf of the Norwegian Government, by means of purely verbal declarations.

    The validity of this agreement has been questioned, having regard, in the first place, to its verbal form, and to the competence of the Minister for Foreign Affairs.

    As regards the form, it should be noted, to begin with, that as both Parties are agreed as to the existence and tenor of these declarations, the question of proof does not arise. Moreover, there does not seem to be any rule of international law requiring that agreements of this kind must necessarily be in writing, in order to be valid.

    The question of the competence of the Minister for Foreign Affairs is closely connected with the contents of the agreement in question ; and these have already been determined.

    No arbitral or judicial decision relating to the international competence of a Minister for Foreign Affairs has been brought to the knowledge of the Court ; nor has this question been exhaustively treated by legal authorities. In my opinion, it must be recognized that the constant and general practice of States has been to invest the Minister for Foreign Affairs— the direct agent of the chief. of the State—with authority to make statements on current affairs to foreign diplomatic representatives, and in particular to inform them as to the attitude which the government, in whose name he speaks, will adopt in a given question. Declarations of this kind are binding upon the State.

    As regards the question whether Norwegian constitutional law authorized the Minister for Foreign Affairs to make the

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    declaration, that is a point which, in my opinion, does not concern the Danish Government : it was M. Ihlen’s duty to refrain from giving his reply until he had obtained any assent that might be requisite under the Norwegian laws.

    A question of a totally different kind is whether the declaration of the Norwegian Minister for Foreign Affairs was vitiated, owing to a mistake on a material point, i.e. because it was made in ignorance of the fact that the extension of Danish sovereignty would involve a corresponding extension of the monopoly and of the régime of exclusion.

    It is manifest that the régime of exclusion, by rendering hunting and fishing operations impossible in the territorial waters and on the coasts of Greenland, might be gravely detrimental to Norwegian interests. The documents submitted to the Court clearly show that the difficulties raised by the Norwegian Government in 1921—when the Danish Government requested it to repeat in writing the verbal declaration it had given in 1919—were not aimed at the extension of sovereignty itself, but at the régime of exclusion which would result from the extension of sovereignty.

    It should also be noted that this point—which was expressly mentioned in the communications made to the other Powers— was not referred to in the verbal communication made by the Danish Minister at Christiania to the Norwegian Minister for Foreign Affairs. The allusion to economic interests, in conjunction with political interests, could not be considered as a sufficient indication of something so specific as the régime of exclusion.

    My own opinion is that there was no mistake at all, and that the Danish Government’s silence on the so-called monopoly question, and the absence of any observation or reservation in regard to it in M. Ihlen’s reply, are easily accounted for by the character of this overture, which was made with a future settlement in view. But even accepting, for a moment, the supposition that M. Ihlen was mistaken as to the results which might ensue from an extension of Danish sovereignty, it must be admitted that this mistake was not such as to entail the nullity of the agreement. If a mistake is pleaded it must be of an excusable character ; and one can scarcely believe that a government could be ignorant of the legitimate consequences following upon an extension of sovereignty ; I would add that, of all the governments in the world, that of Norway was the least likely to be ignorant of the Danish methods of administration in Greenland, or of the part played therein by the monopoly system and the régime of exclusion.

    The foregoing is merely by way of supposition, because, as I have said, I am strongly inclined to think that there

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    was no mistake, and that the silence observed on this point, both by the Danish and Norwegian Governments, is attributable to the very nature of the declarations made by the two Parties. In regard to the other Powers, the situation of the Danish Government was different, as it was asking them for declarations which would definitively settle the question. On the other hand, it is easy to understand that the Norwegian Government should have thought it unnecessary to dwell particularly on this point, since the whole question was going to be brought up and examined on a later occasion.

    This leads me to the last question which arises in connection with the binding character of the agreement of 1919 ; viz. whether the breaking off of the negotiations by the Danish Government in 1921 entitled the Norwegian Government to consider itself released from its undertaking.

    The agreement was concluded with a view to the settlement of the Greenland question by the Peace Conference. This method of dealing with the question, which was suggested by the Danish Government for reasons of expediency, does not, however, appear to have been an essential condition of the Norwegian Government’s assent to the Danish request. The Norwegian Government has never contended that the declaration made on its behalf to the Danish Government had lost its value because that Government did not submit the question to the Peace Conference but, instead of doing so, made overtures to individual Powers.

    On the other hand, it was essential that there should be a settlement. Norway had only given her assent to the Danish Government’s desire to extend its sovereignty to the whole of Greenland with a view to a future settlement of the question, when she would have an opportunity of urging her interests and demanding that they should be equitably safeguarded. I am, accordingly, of opinion that, if the Danish Government had really claimed to abide by the agreement of 1919 and to consider it as a final and complete settlement of the question, and if it had refused to negotiate or to take the Norwegian demands into consideration, it would have been acting in a sense contrary to the agreement itself and the Norwegian Government would have been entitled to declare itself released from its engagement.

    This was not, however, what occurred. The impression which, I think, emerges from a perusal of the diplomatic correspondence between the two Governments, from 1921 onwards, is rather that the Danish Government was prepared—saving its right of sovereignty—to do its utmost to safeguard the Norwegian hunting and fishing interests on the eastern coast of Greenland. It is true that it was the Danish Government

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    that broke off the negotiations—perhaps somewhat abruptly— in 1921 ; but it is equally true that these negotiations were resumed, and it is admitted that the Convention of 1924 went a long way to meet the wishes of the Norwegian Government.

    In these circumstances, I consider that the agreement, which was validly concluded in 1919, has retained its force.

    8.—It is consequently on the basis of that agreement which, as between the Parties, has precedence over general law, that the dispute ought to have been decided.

    The results which flow from this agreement may be summarized as follows :

    (а) As Denmark admitted to Norway in 1919 that there were parts of Greenland which were not yet subject to her sovereignty, she could not now adduce a sovereignty over the whole of Greenland, existing prior to that date. As the territory affected by the Norwegian declaration of occupation of July 10th, 1931, is indubitably one of the parts of Greenland which—according to the Danish Government’s position in 1919—were not subject to Danish sovereignty, that territory must be considered as a terra nullius, unless Denmark could be shown to have extended her sovereignty to it by acts subsequent to 1919, and in conformity with international law ; but no such fact has been adduced by the Danish Government.

    (b) As Norway had undertaken not to oppose the extension of Danish sovereignty over the whole of Greenland, she was, before everything else, bound not to occupy any part of this region herself, thereby making it impossible for Danish sovereignty to be extended to it.

    All that now remains is to apply the consequences of the agreement of 1919 to the submissions of the two Parties.

    The Danish Government asks the Court to give judgment to the effect "that the promulgation by the Norwegian Government of the declaration of occupation of July 10th, 1931, and any steps taken in this respect by the Norwegian Government, constitute a violation of the existing legal situation and are consequently unlawful and invalid".

    As the Norwegian occupation was effected in violation of an undertaking validly assumed, it constitutes a violation of the existing legal situation, and it is therefore unlawful : within those limits the Court should, therefore, have acceded to the Danish Government’s submission.

    On the other hand, regarding the question from the standpoint that I have taken, and apart from certain other questions

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    which I do not propose to examine, the Court could not have declared the occupation invalid, if the term "invalid" signifies "null and void". A legal act is only non-existent if it lacks certain elements which are essential to its existence. Such would be the occupation of territory belonging to another State, because the status of a terra nullius is an essential factor to enable the occupation to serve as a means of acquiring territorial sovereignty. But this does not hold good in the case of the occupation of a terra nullius by a sovereign State in conformity with international law, merely because the occupying State had undertaken not to occupy it. Accordingly, it would have been for the Norwegian Government to revoke the occupation unlawfully carried out, without prejudice to the Danish Government’s right to apply to the Court, as reparation for the unlawful act, to place this obligation on record (Judgment No. 13, p. 47).

    The Norwegian Government, in its turn, has submitted the following counter-claim :

    "that Denmark does not possess sovereignty over Eirik Raudes Land ;

    that Norway has acquired sovereignty over Eirik Raudes Land".

    In my view, it follows from the whole of the written and oral proceedings that the first paragraph is designed to supply the ground for the second and that, accordingly, there is only one claim the aim of which is to obtain a declaration from the Court that the occupation effected by the Norwegian Government is lawful and valid. This claim should, in my view, be rejected, for an unlawful act cannot serve as the basis of an action at law.

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