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The Eastern Greenland Case (Denmark vs Norway) conventions relating to economic questions had excluded Greenland from the

operation of such conventions to secure the insertion of a stipulation.


A suit was instituted before the Permanent Court of International Justice
(hereinafter PCIJ) by Royal Danish Government against the Royal Norwegian Meanwhile Norway in apart from expeditions to the East coast from 1889
Government over the legal status of certain territories in Eastern Greenland. onwards, an expedition in 1922 resulted in establishing a provisional wireless
Cause of Action for the dispute arose when Norwegian Government on July station at Mygg-Bukta to which Denmark lodged its protect immediately
10th, 1931 proclaimed that it proceeded to occupy certain territories of Eastern against such erection. Latter, large number of houses and cabins of Norwegian
Greenland which as contented by Denmark are subject to sovereignty of origin were built.
Crown of Denmark.
On July 10th, 1931 by a Norwegian Royal Resolution the King of Norway
Established Facts of the Case as per the submissions of the Parties before the declared the occupation of the country in Eastern Greenland between
Court are as follows: Carlsberg Fjord on the south and Bessel Fjord on the north. (cause of dispute)

It is established that Greenland was discovered around 900 A.D. It was Intertemporal Law
colonized 100 years later. Eric the Red of the Norwegian origin was the best
know colonist. At that time two settlements called Eystribygd and Vestribygd The doctrine of intertemporal law states that the crystallisation of a right must
existed as an independent State for some time; however, latter they became be analysed through the application of international law as it existed at the
tributary to the kingdom of Norway in the 13th century. These settlements point in time when the right arose. Hence, if a dispute regarding sovereignty
disappeared before 1500. over a certain territory arose in the 18th century, international law as it existed
then must be applied to analyse the factual matrix. In the Clipperton Island
From 1814 to 1380 the Kingdoms of Norway and Denmark were united by the arbitration, a dispute arose between France and Mexico and through the
same Crown. Despite disappearance of the early settlements the sovereignty application of intertemporal law of the 18th century, arrived at the conclusion
of the Crown was not doubted. Treaty of Lund of September 27th, 1697 where that symbolic annexation, or a first and decisive act of sovereignty, was a valid
Sweden recognized the rights of ancient rights and claims of the King of means of acquiring territory. In Island of palmas case intertemporal law of the
Denmark over Greenland is an apt example. 19th century was applied by Judge Huber, the sole arbitrator in the proceedings
and through the application of intertemporal law it was held that mere
An autonomous “Board” was constituted by the King in 1774 to administer the discovery, conferring an inchoate title, was not an accepted means of
trade activities in Greenland. The State of Denmark had monopoly over the acquiring sovereignty over a parcel of territory but was in fact effective
trade activities in Greenland. This resulted in establishing colonies, factories or occupation, or actual occupation and administration over the territory.
stations along the West coast latter efforts to reach the East coast were not
successful. Norway contented that Greenland in general mean the colonized The court in the instant case applied intertemporal law and thus analysed the
part of the West coast and where as Denmark viewed Greenland as facts of the case with respect to the doctrine of effective occupation and the
encompassing whole island of Greenland. then modes of acquisition of territory.

After a war that broke out between Denmark and Sweden and her allies, Critical Date
Denmark was made to sign the Peace Treaty of Kiel in 1814 according to which
the Kingdom of Norway, excluding Greenland, the Faeroe Isles and Iceland, In certain cases of dispute vis-à-vis territorial sovereignty, there arises a point in
was seceded to Sweden. In the 19th century Greenland witnessed lot of Danish time wherein the rights and stances of the parties have crystallised to such an
expeditions. Danish Government was approached for permission to carryon extent that no action they take beyond that particular date will alter their legal
trade or establish stations etc. In 1905 the Danish Minister issued a decree position. A critical date of crystallisation of a dispute is sometimes determined,
specifying the limits of the territorial waters around Greenland. Denmark the events occurring after which are not considered in determining title. This is
promulgated a law concerning the administration of Greenland in 1908 and with a view to exclude from judicial consideration unilateral actions of parties
colonies on the West coast were divided into Northern and Southern districts. seeking to strengthen their respective positions in the dispute.
On December 27th, 1915 the United States as a quid pro quo to Denmark’s Acts undertaken after the critical date shall not be taken into consideration,
cession of West Indian Islands declared that it would not object to the Danish unless such acts are a normal continuation of prior acts and are not undertaken
Government extending their political and economic interests to the whole of for the purpose of improving the legal position of the party relying on them.
Greenland. The Danish government in bilateral or multilateral commercial However, in case of disputes concerning current title over a territory the critical
date is irrelevant. In the Minquiers and Ecrehos Case, the court held that while corps possession, the objective element, is the actual steps that have been
the critical date has an important role to play, in certain cases it is irrelevant. taken to further that intention.
Therefore the court did not consider the critical date in that dispute but
however emphasized on its importance. Corpus possessionis includes the actual possession and administration over the
territory concerned. Administration has to be for a reasonable period of time
In the Eastern Greenland case, the Danish Government contended that the though. In the territorial dispute between Burkina Faso and Mali, the court held
date on which Danish sovereignty should have existed is July 10th, 1931 in order that “some twenty years is far too short a time to establish a title”.
to make the Norwegian declaration meaningless. The PCIJ considered the
Norwegian proclamation on July 10th, 1931 as the critical date. It held that it is However, if the territory is “highly inaccessible” or is “located upon the high
sufficient [for Denmark] to establish that valid title in the period immediately seas” then the threshold of corpus possessionis is minimal. Furthermore, if the
preceding the occupation. territory is not populated too the threshold is very low.

For a valid title, it is not needed to establish sovereignty over Greenland Eastern Greenland Case:
throughout the period before the critical date. Despite the material adduced One of the distinguishing feature of this case was till 1931 there was no claim by
to the Court is thought to be insufficient to establish the existence of that any sovereign other than Denmark to the sovereignty over Greenland.
sovereignty during earlier periods or otherwise, what is relevant for consideration
is the finding that who has sovereignty immediately preceding the occupation. Danish Government placed reliance on Palmas Island decision of the
Permanent Court of Arbitration which stated that a title “founded on the
Territorial Sovereignty peaceful and continuous display of State authority over the island”. It stressed
Theoretical Framework on various conventions and treaties ratified by the Denmark with other countries
where a stipulation for non-application of such convention over Greenland was
The passage of intertemporal law has been a varied one through the centuries. inserted to demonstrate that other nations admitted that Denmark has right to
Changes and alterations have taken place at various points in time, as the laws exclude Greenland.
of acquisition of territorial sovereignty evolved. At one point in time, prior to the
1700s, mere discovery was sufficient to establish a complete title over a parcel These treaties are sufficient to establish Denmark’s will and intention to act
of territory. exercise sovereignty. From the facts stated above i.e. legislations on Greenland
for administration, various treaties ratified, concessions granted for erection of
However, during the 1700s, discovery was opined to have transferred an telegraph lines, fixing limits on territorial waters, etc are manifestations of the
inchoate title coupled with acts of symbolic annexation. Acts of symbolic exercise of sovereign authority.
annexation included the planting of a flag as stated by Judge Huber in the
Island of Palmas case. However, this inchoate title had to be consolidated Regarding uncertainty over sovereignty during 1814 to 1915, the Court said that
within a reasonable period of time else the title would be forfeited. taking into account the above facts and circumstances Denmark should be
regarded as having displayed her sovereign authority. Despite considering just
During the 1700s, though state practice accepted symbolic annexation as the the period from 1921 to 1931 the Court concluded that Denmark regarded itself
accepted means of obtaining sovereignty, jurists in their writings, however, as possessing sovereignty over Greenland.
demanded that effective occupation be the requisite mode for acquiring
territory. However, it was not until the 19th century that widespread state The PCIJ after it was satisfied about the valid title to the sovereignty over
practice accepted effective occupation as the mode of acquiring territory. Greenland at the critical date adjudged the contention in favour of the Danish
Effective occupation had two requirements: Government. It said having regard to a pattern of activity between 1921 and
1931, including the enforcement by legislation of a state trade monopoly, the
1. Animus occupandi granting of trading, mining, and other concessions, the exercise of
governmental functions and administration, and the making of numerous
2. Corpus possesionis treaties in the terms of which Danish rights over Greenland were explicit. The
Animus occupandi, or animus possidendi is the will to act as sovereign over a Norwegian occupation was illegal and invalid, since Denmark, at the very least
particular territory and is the subjective element of effective occupation and in the 10 years previous to the Norwegian occupation, had ‘displayed and
exercised her sovereign rights to an extent sufficient to constitute a valid title to
sovereignty’.
Undertakings of Norway & Ihlen Declaration as Mr. Ihlen’s in ability to foresee the consequences of his actions cannot be a
valid ground.
The Danish Government contended that Norway had given certain
undertakings recognizing its sovereignty over Greenland to the effect. Following are the arguments of Norway:

1. After termination of the Union between Denmark and Norway in 1814, 1. Ihlen’s declaration is a mere diplomatic assurance of the benevolent
the latter undertook not to contend the Danish claim of sovereignty attitude of the Norwegian Government in the event of subsequent
over Greenland. PCIJ held that as a result of various undertaking negotiations concerning a definitive settlement; that
resulting from the separation and culminating in Article 9 of the
convention of September 1st, 1819, concluded that Norway 2. A verbal declaration is not internationally binding, especially when it
acknowledged Danish sovereignty and consequently it cannot occupy would involve the renunciation of important national interests; that
of any part thereof. 3. Ihlen could not bind Norway by such a statement, since international
2. International Agreements: In many bilateral and multilateral law attaches legal force only to those acts of a foreign minister which
agreements concluded between Denmark and other countries fall within his constitutional competence; and that
including Norway, Greenland was described as part of Denmark and 4. The Danish recognition of Norwegian sovereignty over Spitzbergen did
has been excluded at the instance of the latter from operation of the not constitute a quid pro quo, in that Denmark did not possess in
agreements. By ratifying such agreements, it is followed that Norway Spitzbergen interests comparable to those of Norway in East Greenland.
recognized whole of Greenland as part of Denmark.
PCIJ rejected the argument of Denmark that the declaration is recognition of
3. Ihlen Declaration: One of the bases for the Denmark’s claim was the existing Danish sovereignty. On careful examination of the circumstances and
statement made by Foreign Minister of Norway Mr. Ihlen in July, 1919 the words used it cannot be inferred that the declaration is a definitive
would render their claim for sovereignty futile. Norway contented that recognition of its sovereignty. However, the Court based on the relevant
his statement would not bind the Norwegian Government as it lacked material concluded that the Norwegian attitude in Greenland and Danish
requisite authority. attitude in the Spitzbergen are interdependent. The affirmative reply by the
The Danish Minister at Chirstiania under the instruction of Danish Minister for Minister had the ability of creating a bilateral engagement. Even if there is no
Foreign Affairs on July 12th, 1919 renewed before a Committee constituted at such engagement, what Norway desired from Denmark regarding Spitzbegen
the Peace Conference “for the purpose of considering the claims that may be is similar to Denmark’s wish from Norway. Hence the reply by Mr. Ihlen on July
put forward by different countries to Spitzbergen” the unofficial assurance given 22nd, 1919 is definitely affirmative.
to the Norwegian Government on April 2nd, 1919 stating that Denmark has no The PCIJ made the reply of Mr. Ihlen binding on the Norwegian Government by
special interests at stake in Spitzbergen and they would not raise any objections stating that:
to its claims. At this occasion the Minister took the liberty and stated that
recognition of Denmark’s political and economic interest to the whole of “The Court considers it beyond all dispute that a reply of this nature given by the
Greenland “would not encounter any difficulties on the part of the Norwegian Minister for Foreign Affairs on behalf of his Government in response to a request
Government”. To this Mr. Ihlen, replied by stating that the Plans of the Royal by the diplomatic representative of a foreign Power, in regard to a question
[Danish] Government respecting Danish sovereignty over the whole of falling within his province, is binding upon the country to which the Minister
Greenland… would meet with no difficulties on the part of Norway”. belongs”

Denmark contented relying on this declaration claimed recognition of an However, it is not clear which facts contributed for characterizing it a reply of
existing Danish sovereignty. this nature.

Norway contented that Mr. Ihlen was in error as to the effect of his statement Dissenting Opinion Of Judge Anzilotti
and the consent was therefore invalid. Norway maintained that Mr. Ihlen had
the knowledge of the consequences of extension of Danish sovereignty i.e., He observed that the international competence of a Minister for Foreign Affairs
elimination of Norwegian right over fishing and hunting. Therefore, Mr. Ilhen has has neither brought to the knowledge of the Court previously nor there are any
not consented to such declaration. The Court did not entertain this argument settled legal authorities. Minister of Foreign Affairs is direct agent of the chief of
the State authorised to represent the State. Statement made his authority is
binding upon the State.

Any mistake pleaded should be of an excusable character

“But even accepting for a moment, the supposition that Mr. Ihlen was mistaken
as to the results which might ensue from an extension of Danish sovereignty it
must be admitted that this mistake was not such as to entail the nullity of the
agreement. If a mistake is pleaded it must be of an excusable character; and
one can scarcely believe that a government could be ignorant of the
legitimate consequences following upon the extension of sovereignty…
Norway was the least likely to be ignorant of the Danish methods of
administration in Greenland, or of the part played therein by the monopoly
system.”

Conclusion

PCIJ by twelve votes to two adjudged that the promulgation by the Norwegian
Government on July 10th, 1931 on occupation over Greenland and any steps
in furtherance of the declaration would amount to violation of existing legal
situation and are accordingly unlawful and invalid. To ascertain the legal status
of Eastern Greenland, the PCJ relied on the following premises:

1. The continuous and peaceful exercise of sovereignty over Greenland


resulted in the title towards Denmark.

2. The Court made the Ihlen declaration binding thereby conferring the
sovereignty to Denmark.

The Eastern Greenland case has reiterated the principles of International law
laid down in Clipperton Island arbitration and Island of Palmas/Miangas
arbitration. Furthermore this has influenced the decision in the recent case
concerning sovereignty over Pulau ligitan and Pulau sipadan, a contentious
case between Indonesia and Malaysia where in the Court ruled in favour of the
latter after relying on the decision and reasoning of the Eastern Greenland
case.

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