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~ 1 ~ ANALYTICAL SUMMARY LEGAL STATUS OF EASTERN GREENLAND

Judgment of 5 April 1933 (Series A/B, No. 53)

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 ANALYTICAL SUMMARY

LEGAL STATUS OF EASTERN GREENLAND

Judgment of 5 April 1933 (Series A/B, No. 53)
Aida Bektasheva

(LLM in European and International Business Law, University of the Miskolc

2019-2020)

PARTIES: Denmark v. Norway

THE STATEMENT: Norwegian Minister was claimed to be binding by Denmark. This case
concerned a dispute between Denmark and Norway over sovereignty in Eastern Greenland.

INTRODUCTION
Significant difference between the Arctic and the Antarctic – that of sovereignty. Seven
countries have made claims to Antarctic territory and at the adoption of the Treaty in 1959 these
claimants, plus the US and the Soviet Union, agreed to “freeze” their claims during the life of the
Treaty. The resulting compromise, has been the means through which the world has witnessed
50 years of cooperation, peace and science in Antarctica.

“Proof” of sovereignty:
 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 to exist: the intention and will to act as sovereign, and some actual
exercise or display of such authority’;
 intent and will must be by the state claiming sovereignty and no other, and certain forms
of activity rank higher than others, eg. exercising criminal jurisdiction.

Greenland, handed down by the Permanent Court of Inter- national Justice (PCIJ) in 1933, is
frequently cited as an assertion of the principle that effective occupation in the Polar Regions
requires relatively little actual exercise of sovereign rights1.

Interterritorial law has assumed a new importance since 1933. Far from underlying Roman
doctrine of “terra nullius”, as incorporated into classical international law, was carried forward
by the PCIJ. Furthermore, it is still the basis of the present legal norm governing the possible
acquisition or even further use-of unoccupied regions. “Terra nullius” may be defined as
territory incapable of effective occupation by any nation. That is to say, no nation can
realistically exercise sovereignty over a region remaining in a state of nature. 2

1
ROTHWELL, D., The polar regions and the development of international law. Cambridge: Cambridge University
Press, 1996
2
Paul Gormley W. , The Eastern Greenalnd Case in Historical Perspective, 1966
~1~
Feature of this case was till 1931 there was no claim by any sovereign other than Denmark to the
sovereignty over Greenland 3.
Permanent Court of International Justice (PCIJ) in Eastern Greenland case applied intertemporal
law and thus analysed the facts of the case with respect to the doctrine of effective occupation
and the then modes of acquisition of territory4.

Dispute over the sovereignty of East Greenland, a controversy of long standing between
Denmark and Norway approaches a solution. Danish Government against the Royal Norwegian
Government over the legal status of certain territories in Eastern Greenland.

On July 10th, 1931 was published a proclamation declaring that it had proceeded to occupy
certain territories in Eastern Greenland by Norway , which, in the contention of the Danish
Government, were subject to the sovereignty of the Crown of Denmark. On July 12th, 1931
Royal Danish Government brought before the Permanent Court of International Justice (PCIJ) a
suit against the Royal Norwegian Government. Moreover, 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. 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.

A 1924-convention settled several of the Denmark-Norway discrepancies and guaranteed

Norwegian fishing and hunting rights, without prejudice to sensitive jurisdictional
issues. However, Norwegian pressure groups ensured that the convention failed, which resulted
in the 1933-dispute before the Permanent Court of International Justice (PCIJ) 5.

On July 14th 1931, the communications was provided for in Article 40 of the Statute and Article
36 of the Rules of Court were despatched and were sent to all States entitled to appear before the
Court, including the United States of America.

I was personally interested in this case, because this year I heard a lot about Greenland,
especially how USA’s President offered to buy it according to sources of the Wall Street Journal,
at official meetings and in a close circle, Trump asked advisers whether the US can legally
acquire Greenland with special attention to the huge natural resources and geopolitical
importance of the Danish territory located between the North Atlantic and Arctic oceans. The
President even asked White house lawyers to look into the legal aspects of a possible deal.
Greenland is the largest island on Earth, most of which is covered with ice. The population of the
territory is about 56 thousand people. The northernmost USA military base is located in the
Greenland. I decided to study and see from the point of view of international law how the issues
of occupation and sovereignty were resolved at that time.

Both parties in the dispute based many of their arguments on historical evidence, most notably
the records of a series of diplomatic overtures to other states made by Denmark between 1915
3
PREUSS, L. The dispute between Denmark and Norway over the sovereignty of East Greenland. American
Journal of International Law, 1 932, 26(3):469-487.
4
Cassese, Antonio, International Law, Oxford University Press: London, 2005
5
Norwegian Promemoria of 6. January 1931 Denmark rejects the Norwegian declaration on policing authority in
East Greenland (see Danish Verbal Note to Norway of 14 March 1931, referring to a similar note of 9 July 1924 –
annexed to the 1924-treaty. National Archive, Box 25 Ministry of Fiskeries, Norway Svalbard- and Polar council
1930–1933
~2~
and 1921. These documents, the Norwegians argued, showed that the Danes themselves did not
believe that they had sovereignty over the entire island. The Danes, on the other hand, contended
that their sovereignty dated back to the Middle Ages. The Court found the Danish arguments
more convincing. However, the dissenting opinion of Justice Dionisio Anzilotti upheld the
Norwegian interpretation.

HISTORY OF THE CASE

Greenland, the climate and character of which are those of an Arctic country, was—according to
the information supplied to the Court—discovered about the year 900 A. D. 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 1500.

In 1380, the kingdoms of Norway and Denmark were united under the same Crown; the
constitutional character of this union, which lasted until 1814, changed to some extent in the
course of time.

On June 28th, 1931, some Norwegian hunters 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.

On January 14th, 1814, the King of Denmark was compelled to sign the Peace Treaty of Kiel,
the fourth article of which provided for the cession to the King of Sweden of the Kingdom of
Norway, excluding however Greenland, the Faroe Islands and Iceland. At the end of 1814 the
necessary steps were taken with a view to the complete liquidation of all matters arising out of
the Union between Denmark and Norway. After protracted negotiations, this liquidation was
effected by the Convention signed at Stockholm on September 1st, 1819, between Denmark of
the one part and the United Kingdoms of Sweden and Norway of the other part. In the course of
the XIXth century and the early years of the XXth, the coasts of Greenland were entirely
explored. In 1822, the Scottish whaler Scoresby made the first landing by a European in the
territory in dispute. About 1900, the insular character of Greenland was established. The whole
of the east coast was explored by Danish expeditions, and there were in addition many non-
Danish expeditions6.

In 1894, at Angmagssalik (lat. 65° 36’ K.), the first Danish settlement on the east coast was
established.

6
Summaries of Judgments, Advisory opinions and orders of the Permanent Court of international Justice, United
Nations ∙ New York, 2012
~3~
Оn May 10th, 1921, a Danish decree was issued to the effect 309 that trading, mission and
hunting stations having been established by Denmark on the east and west coasts of Greenland,
the whole of that country was henceforth linked up with the Danish colonies and stations, under
the authority of the Danish Administration.

RELEVANT FACTS7

Year 900 A. D Greenland discovered as climate Arctic country.

in 1721 Settlements were founded on the west coast by the pastor Hans Egede, of
Bergen, in Norway. C
April 22nd, 1758 Concessions were granted to various individuals or companies comprising
a prohibition applicable to all other persons of trading and navigation in
Greenland contrary to their terms. This prohibition applied in respect of
“colonies and factories already established or subsequently to be
established”, and likewise “other ports and localities
in general without differentiation or exception”.
In 1774 The State having itself once more taken over the Greenland trade, which it
administered by means of an autonomous “Board”, the King.
March 18th, 1776 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. According
to the Ordinance of March 18th, 1776, the “colonies and factories” then
existing on the west coast extended from latitude 60° to 73° N.
January 14th, The King of Denmark was compelled to sign the Peace Treaty of Kiel, the
1814 fourth article of which provided for the cession to the King of Sweden of
the Kingdom of Norway, excluding however Greenland, the Faroe Islands
and Iceland.

Ever since 1814 and up to the present time, the practice of the Danish
Government, when concluding bilateral commercial conventions or when
participating in multilateral conventions relating to economic questions,
has been to secure the insertion of a stipulation excepting “Greenland” or
the “Territory of Greenland”—without further qualification—from the
operation of the convention.
In 1822 The Scottish whaler Scoresby made the first landing by a European.
About 1900 The insular character of Greenland was established. The whole of the east
coast was explored by Danish expeditions, and there were in addition
many non-Danish expeditions
On August 4th, The United States, at the request of Denmark, signed a declaration to the
1916 Effect that they would not object to the Danish Government extending
their political and economic interests to the whole of Greenland.
On July 12th, In making this statement to the Norwegian Minister for Foreign Affairs,
1919 the Danish Minister was to point out

7
Summaries of Judgments, Advisory opinions and orders of the Permanent Court of international Justice, United
Nations ∙ New York, 2012
~4~
 “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”, 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”.
In 1920 The Danish Government approached the Governments in London, Paris,
and 1921 Rome,
Tokyo and Stockholm with a view to obtaining assurances from them on
the subject of the recognition of Denmark’s sovereignty over the whole of
Greenland. Each of these Governments replied in terms which satisfied
the Danish Government.
On July 9th, Nevertheless, on the Danish side there was evinced willingness to make
1924 every effort to satisfy the desire of the Norwegian Government that
Norwegians should be able to continue to fish and to hunt on the east
coast of Greenland, but a determination not to give way on the claim to
sovereignty.
Questions of hunting and fishing resulted in the signature between Danish
and Norwegian, Convention applicable to the eastern coast of Greenland.
In 1930 The Norwegian Government conferred police powers on certain
Norwegiannationals “for the inspection of the Norwegian hunting stations
in Eastern Greenland”. This evoked protest on the part of Denmark,
seeing that, in the Danish view, these territories were subject
to Danish sovereignty. Denmark had “three years’ plan” for scientific
research in the central part of Eastern Greenland. In 1931, the Danish
Government stated that it thought it necessary, in connection with this
expedition, to provide for police supervision, with powers
extending to all persons in the territory in question in Eastern Greenland.
The Norwegian Government urged that the Danish “three years’ plan”
should not be carried out in such a way as to conflict with the provisions
of the Convention concerning Eastern Greenland or with the legitimate
interests of the
Norwegian hunters in that country.
On June 28th, Certain Norwegian hunters had carried out the unofficial occupation
1931 already mentioned which, on July 10th, was followed by the Norwegian
Government’s official proclamation of occupation.
In June 1931, a group of Norwegians raised their national flag at
Mackenzie Bay, and on 1 0 July, a royal proclamation formally claimed
the eastern coast between 71°30' N and 75°40' N, giving it the name Eirik
Raudes Land. Denmark immediately took the case to the PCIJ

THE LAW AND COURT

The Application instituting proceedings was filed with the Registry on July 12th, 1931. It was
based on the optional clause of Article 36; paragraph 2, of the Court’s Statute and pointed out
that the territories covered by the Norwegian Government’s proclamation of July 10th, 1931,
announcing their occupation were, in the contention of the Danish Government, subject to the
sovereignty of the Crown of Denmark. The Application, after thus indicating the subject of the
~5~
dispute, formulated 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” 8.

Acts of symbolic 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 within a reasonable
period of time else the title would be forfeited.

The main Danish argument The main Norwegian argument

Danish claim is founded on the
contention that the area occupied was, at the
time of the occupation, subject to Danish
sovereignty, since that area is part of
Greenland and at the time of the occupation
Danish sovereignty existed over
all Greenland. In support of this contention, the
Danish Government advances two
propositions. The first is that the sovereignty
which Denmark now enjoys over Greenland
has existed for a long time, has been
continuously and peacefully exercised and,
until the present dispute, has not been
contested by any Power. The second
proposition is that Norway has by treaty or
otherwise herself recognized Danish
sovereignty over Greenland as a whole and
therefore cannot now dispute it. The Danish
Government also relies on the Ihlen
Declaration which, it maintains, debars
Norway from proceeding to any occupation
of territory in Greenland, and likewise on
certain other undertakings entered into by
Norway.
The Norwegian Government, on the other
hand, submits that the area occupied was, at
the time of the occupation, terra nullius; its
contention being, indeed, that the area in
question lay outside the limits of the Danish
colonies in Greenland and that Danish
sovereignty extended no further than the
limits of those colonies. Norway also maintains
that the attitude which Denmark adopted
between 1915 and 1921, when she addressed
herself to various Powers in order to obtain a
recognition of her position in Greenland, was
inconsistent with a claim to be already in
possession of the sovereignty
311 over all Greenland, and that in the
circumstances she is now estopped from
alleging a long-established sovereignty over
the whole country.
Norway argues that in the legislative and
administrative acts of this period, the word
“Greenland” was not used in the geographical
sense but meant only the colonies or the
colonized area on the west coast. In the view of
the Court, that is a point as to which the burden
of proof lies on Norway; but
that country, it holds, has not succeeded in
establishing her contention: in the eyes of the
Court, it is clear that the operation of these
legislative measures was not confined to the
colonies. 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

8
Case,Legal Status of Eastern Greenland,PCIJ, Ser. A./B., No. 53, 1933

~6~
 uncolonized parts of the country, the King of
Denmark and Norway, during the period from
the founding of the colonies by Hans Egede in
1721 up to 1814, displayed his authority to an
extent sufficient to give his country a valid
claim to sovereignty and that his rights over
Greenland were not limited to the colonized
area.

With regard to the period following the Treaty of Kiel—the result of which was that what had
been a Norwegian possession remained with the King of Denmark and became for the future a
Danish possession—Denmark relies inter alia on the long series of conventions—mostly
commercial in character— which have been concluded by her 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. Norway has argued that in these conventions also the
word “Greenland” only means the colonized area; but the Court holds that she has not succeeded
in proving this contention and that, 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.

The Danish contention that Denmark possessed full and entire sovereignty over the whole of
Greenland and that Norway had recognized that sovereignty, and the Norwegian contention that
all the parts of Greenland which had not been occupied in such a manner as to bring them
effectively under the administration of the Danish Government, were in the condition of terrae
nullius.

Simultaneously with the Convention, notes were signed by each Government to the effect that in
signing the Convention it reserved its opinion on questions concerning Greenland not dealt with
in the Convention. The chief points that these notes had in view were: the Danish contention that
Denmark possessed full and entire sovereignty over the whole of Greenland and that Norway
had recognized that sovereignty, and the Norwegian contention that all the parts of Greenland
which had not been occupied in such a manner as to bring them effectively under the
administration of the Danish Government, were in the condition of terrae nullius and that if they
ceased to be terrae nullius, they must pass under Norwegian sovereignty9.

THE COURT'S DECISION

The Court began by observing that because the critical date was 10 July 1931, it was not
"necessary that sover- eignty over Greenland should have existed throughout the period during
which the Danish Government maintains that it was in being." Nevertheless, it went on to fully
uphold all of Denmark's historical claims. The Court concluded that in the 13th and 14th
centuries, because fines were to be paid to the King of Norway for killings that took place

9
Preuss, Lawrence., The Dispute Between Denmark and Norway Over the Sovereignty of
Eastern Greenland 26 American Journal of International Law 469 (1932).

~7~
outside the colonies, "[s]o far as it is possible to apply modern terminology" to the situation,
Norwegian rights "amounted to sovereignty" and "were not limited" to the settlements. During
the period between the loss of contact with the colonists and the resettlement of 1 72 1 , the
claims of the Danish-Norwegian monarchy "amounted merely to pretensions," but in the absence
of any claims by other nations, even pretensions carried some weight.

As for the Danish diplomatic correspondence with other nations during the years 1915-21, it was
certainly true that the expression "extension of sovereignty" was used, and that this expression,
"if taken by itself," would be "very difficult to reconcile" with Danish claims to long- standing
sovereignty over the entire island. However, the Court had decided that "too much importance
must not be attached to particular expressions here and there." The different expressions used in
the various notes were undoubtedly the result of the fact that they were not all drafted by the
same individual. The Court was satisfied that the aim of the Danish government throughout the
period in question was "to secure ... an assurance from each of the foreign governments
concerned that it accepted the Danish point of view that all Greenland was already subject to
Danish sovereignty and was therefore content to see an extension of Denmark's activities to the
uncolonized parts of Greenland." The Court conceded that "well-qualified private persons" in
Denmark had expressed the opinion that in the absence of effective occupation on the east coast,
the area remained a terra nullius. However, there was no evidence to show that the Danish
government itself had ever held this view. According to the Court, the government made its
overtures in order to have foreign states acknowledge Denmark's already existing sovereignty, so
that any doubts there might be on this subject at home or abroad would be remove 10.

Union between Denmark and Norway (1814–1819), Norway undertook not to dispute Danish
sovereignty over Greenland. In the course of the negotiations following upon the dissolution of
the Union between Denmark and Norway, the restitution of Greenland to Norway was claimed,
but the claim was withdrawn and the King of Sweden and Norway renounced in the name of the
latter country all claims in respect of the Faroe Islands, Iceland and Greenland.

Article 4 of the Treaty of Kiel means the whole of Greenland, the Court holds that in
consequence of the various undertakings resulting from the separation of Norway and Denmark
andculminating in Article 9 of the Convention of September 1st, 1819, Norway has recognized
Danish sovereignty over all Greenland.

Multilateral agreements Denmark and Norway were contracting Parties. In these agreements,
concluded since 1826, Greenland is described as a Danish colony or as forming part of Denmark,
or Denmark is allowed to exclude Greenland from the operation of the agreement. In accepting
these bilateral and multilateral agreements as binding upon herself, Norway reaffirmed that she
recognized the whole of Greenland as Danish.

PCIJ rejected the argument of Denmark that the declaration is recognition of existing Danish
sovereignty. On careful examination of the circumstances and the words used it cannot be
inferred that the declaration is a definitive recognition of its sovereignty. However, the Court
based on the relevant material concluded that the Norwegian attitude in Greenland and Danish

10 10
Case,Legal Status of Eastern Greenland,PCIJ, Ser. A./B., No. 53, 1933

~8~
attitude in the Spitzbergen are interdependent. The affirmative reply by the Minister had the
ability of creating a bilateral engagement. Even if there is no such engagement, what Norway
desired from Denmark regarding Spitzbegen is similar to Denmark’s wish from Norway. Hence
the reply by Mr. Ihlen on July 22nd, 1919 is definitely affirmative.

The PCIJ made the reply of Mr. Ihlen binding on the Norwegian Government by stating
that:“The Court considers it beyond all dispute that a reply of this nature given by the Minister
for Foreign Affairs on behalf of his Government in response to a request by the diplomatic
representative of a foreign Power, in regard to a question falling within his province, is binding
upon the country to which the Minister belongs”. However, it is not clear which facts contributed
for characterizing it a reply of this nature.

Court considers the Ihlen Declaration. In this connection, it does not accept the Danish view that
this amounted to recognition of an existing Danish sovereignty in Greenland. But it holds that
the declaration, even if not constituting a definitive recognition of Danish sovereignty, is an
engagement obliging Norway to refrain from occupying any part of Greenland.

Court does not admit the Norwegian objection that the Minister’s declaration,
Though unconditional and definitive in form, cannot be relied upon against Norway because, if
the Norwegian Minister had been warned of the Danish Government’s intention to extend the
gime of exclusion to the whole of Greenland, his answer would—it is argued—have been
different. The Court finds it difficult to believe that Norway could not have foreseen the
extension of the monopoly. Accordingly, the Court does not agree that the Decree of May 10th,
1921, introducing the rйgime of exclusion for all Greenland, justified Norway in changing her
attitude. In regard to this particular point, it recalls 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 issue of the Decree, and
that the Convention of July 9th, 1924, was a confirmation of Denmark’s friendly disposition in
respect of these Norwegian hunting and fishing interests.

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 11.

11
LawTeacher, Legal Status of Eastern Greenland November 2013. online available from:
https://www.lawteacher.net/free-law-essays/english-legal-system/legal-status-of-eastern-greenland.php?vref=1

~9~
DISSENTING OPINION OF JUDGE

Anzilotti opened with an expression of his fundamental disagreement with the way the Court
had approached the case. In his mind, the key issue was the Ihlen declaration, and the Danish
request to Norway in 1919 was "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." Therefore, it was not possible "rightly to
appreciate the request with which we are con- cerned unless we consider it in conjunction with
the whole series of overtures of which it formed part". The focal point of Anzilotti' s analysis
was therefore the diplomatic correspondence from the period 1915-21. He noted that the Danes
"had every interest in presenting the request addressed to the Norwegian Government, and other
similar overtures, in the light of a preconceived theory" . Unlike his colleagues, who dismissed
the expression "extension of sovereignty" as not characteristic of the correspondence as a whole,
Anzilotti preferred to study the documents in chronological order, carefully noting variations in
wording, and considering the possible reasons for any changes. In his view, the language used in
the various replies was crucial, indicating as it did how the governments addressed under- stood
the Danish request.

Anzilotti could easily understand why the Danish gov-ernment felt anxiety about the parts of
Greenland that had not been effectively occupied. It was certainly not in the government's
interest to make any public acknowledge- ment of its concerns, and Anzilotti felt that no
significance should be attached to the fact that it had not done so. That serious doubts had
existed in Copenhagen was "proved by the very overtures which [Denmark] 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." As Anzilotti pointed out, action of this type had "not
been often resorted to." That the Danes should ask other countries to consent to an extension of
their sovereignty was "the clear and natural outcome" of the "historical development of
Denmark's position in Greenland." Anzilotti concluded that, while the Ihlen declaration was
indeed binding on Norway, and the Nor- wegian occupation was therefore unlawful, "[because]
Denmark admitted to Norway in 1 9 1 9 that there were parts of Greenland which were not yet
subject to her sover eignty, she could not now adduce a sovereignty over the whole of
Greenland, existing prior to that date

M. Anzilotti concludes that either the so-called second colonization is the manifestation of a
preexisting 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 there is an occupation which must be
appraised in accordance with the rules governing occupation.

MM . Schcking and Wang fully concur in the Court’s conclusions that the Norwegian
occupation is unlawful and invalid, but nevertheless find it necessary to make some reservations
regarding some of the reasons which are given in support of them. They state that, even if all the
circumstances, taken together, conferred a presumptive title upon Denmark, the history of the
diplomatic overtures undertaken by Denmark between 1915 and 1921 in order to obtain
recognition of her sovereignty over the whole of Greenland, proves that, at that time, Denmark
herself did not maintain towards the other interested Powers the theory of an already existing
Danish sovereignty over the whole country. They therefore feel compelled to place a different
construction upon the Danish overtures to the Powers, namely, that Denmark was desirous of
~ 10 ~
extending her sovereignty to the whole of Greenland, with the assent of the States chiefly
interested.

After having recalled some historical facts concerning Greenland, M. Vogt starts his
consideration with the legal consequences of the overtures made by the Danish Government to
various Powers between 1915 and 1921. In his view, all these expressions convey the same idea,
namely, that Denmark had not hitherto possessed sovereignty over all Greenland. The parts of
Greenland which have not been brought under the Danish Greenland Administration and of
which possession has not been effectively or even formally taken, cannot be regarded as under
Danish sovereignty.

CONCLUSION

The Danish Government contended that Norway had given certain undertakings recognizing its
sovereignty over Greenland to the effect12.

 After termination of the Union between Denmark and Norway in 1814, the latter undertook
not to contend the Danish claim of sovereignty over Greenland. PCIJ held that as a result of
various undertaking resulting from the separation and culminating in Article 9 of the
convention of September 1st, 1819, concluded that Norway acknowledged Danish
sovereignty and consequently it cannot occupy of any part thereof.
 International Agreements: In many bilateral and multilateral agreements concluded between
Denmark and other countries including Norway, Greenland was described as part of
Denmark and has been excluded at the instance of the latter from operation of the
agreements. By ratifying such agreements, it is followed that Norway recognized whole of
Greenland as part of Denmark.
 Ihlen Declaration: One of the bases for the Denmark’s claim was the statement made by
Foreign Minister of Norway Mr. Ihlen in July, 1919 would render their claim for
sovereignty futile. Norway contented that his statement would not bind the Norwegian
Government as it lacked requisite authority.

Following are the arguments of Norway13:

 Ihlen’s declaration is a mere diplomatic assurance of the benevolent attitude of the

Norwegian Government in the event of subsequent negotiations concerning a definitive
settlement; that
 A verbal declaration is not internationally binding, especially when it would involve the
renunciation of important national interests; that
 Ihlen could not bind Norway by such a statement, since international law attaches legal force
only to those acts of a foreign minister which fall within his constitutional competence; and
that

12
LawTeacher, Legal Status of Eastern Greenland November 2013. online available from:
https://www.lawteacher.net/free-law-essays/english-legal-system/legal-status-of-eastern-greenland.php?vref=1
13
LawTeacher, Legal Status of Eastern Greenland November 2013. online available from:
https://www.lawteacher.net/free-law-essays/english-legal-system/legal-status-of-eastern-greenland.php?vref=1

~ 11 ~
 The Danish recognition of Norwegian sovereignty over Spitzbergen did not constitute a quid
pro quo, in that Denmark did not possess in Spitzbergen interests comparable to those of
Norway in East Greenland.

It would be highly unreasonable for international law to apply the criteria for effective
occupation as stringently in the polar regions as it does in the temperate zones. When taken in a
broad context, the Court's decision was the right one. Nevertheless, the historical evidence
should now be evaluated more critically than the Court chose to do at the time. Anzilotti' s
careful, systematic study of the facts at his disposal deserves the attention of legal schol- ars.
And, in terms of the historical record, too easy an acceptance of the idea that the Court' s
decision was founded on a carefully balanced appreciation of all the relevant facts would be a
serious error.

~ 12 ~
 ~ 13 ~

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