97

DISSENTING OPINION BY M. VOGT.
[Translation.]

According to the Saga, Gunnbjérn Ulvsson, who left Nor-
way for Iceland, about the year goo, was driven westwards
by a storm. He saw a large country and some islands to
the West and subsequently succeeded in reaching Iceland.
Later, two inhabitants of Iceland set out to search for the
islands seen by Gunnbjérn and, according to the Saga, they
reached Greenland and passed the winter there.

Eirik Raude (Eric the Red) is, however, generally regarded
as the discoverer of Greenland; he was born in Norway
about 950 and left for Iceland about 970. About 980 he
went to Greenland. He reached the habitable region on
the South-West, spent three winters there and visited the
West coast from Cape Farvel to a point far to the North.
He it was who named the country “Greenland’’.

In 984, Eirik Raude began the colonization of the South-
West coast. The inhabitants of Iceland who accompanied
him were of recent Norwegian origin, the colonization of Ice-
land by Norwegians having begun in 870. It is not easy to
fix the precise date from which it may be said that Iceland
became a distinct State. During the ensuing period, immi-
gration to Greenland continued from Iceland and Norway.

As regards communications between Greenland and other
countries, these were directed partly towards Iceland, but
mainly towards Norway, whence came the goods which the
settlers needed.

In 12671, the Greenlanders submitted: themselves of their
own free will to the King of Norway, who promised to main-
tain regular navigation to the colonies in Greenland.

This regular navigation, which was essential to the Green-
landers, ceased in 1410 and thus isolated, the settlers suc-
cumbed in the course of the xvth century to the rigours of
the climate and the attacks of native Eskimos from the North
who destroyed the colonies.

In the following centuries, some expeditions set out for
Greenland, but no regular communications were established
and no colonization undertaken.

Only at the beginning of the xvirith century were regular
communications with Greenland re-established, after the Nor-
wegian Pastor Hans Egede had succeeded in forming the
Greenland Company of Bergen. In 1723, the King of Norway
and Denmark, in the concession granted to this company,

79
DISSENTING OPINION BY M. VOGT 08

expressed his intention of re-establishing the old commercial
intercourse between Norway and ‘‘the country of Greenland
belonging to Our Kingdom of Norway’. Hans Egede left
for Greenland in 1721 and, in the same year, founded the first
colony there. This marked the beginning of the second Nor-
wegian colonization of Greenland, which gradually extended in
the course of the xvirith century. The colonies thus estab-
lished remained Norwegian possessions until 1814, when the
King of Denmark and Norway, by the Treaty of Kiel, ceded
the kingdom of Norway to the King of Sweden—‘‘Greenland,
the Ferroe Isles and Iceland excepted”.

The Treaty of Kiel was concluded on January r4th, 1814,
and ratifications were exchangedon February oth, 1814 In
an open letter, dated January x8th, 1814, King Frederick VI
released his Norwegian subjects from their oath of allegiance.
Norway maintained that her union with Denmark was dis-
solved by this letter. The Norwegian nation did not recog-
nize the Treaty of Kiel as binding upon them ; they held that
it was not within the power of a king to cede a nation, against
its will, to another king. Accordingly, the Norwegian nation
assumed for itself full sovereignty. A union between Norway
and Sweden was concluded on November 4th, 1814. On the
roth of the same month, the Swedish Minister for Foreign
Affairs wrote as follows in instructions addressed to Swedish
diplomatic representatives abroad: ‘We owe the union of
Norway to Sweden not to the provisions of the Treaty of
Kiel but to the trust of the Norwegian nation.”

*

The main question in the case before the Court is that of
Danish sovereignty over the disputed territory, and this ques-
tion has generally been presented in the course of the proceed-
ings as the question of Danish sovereignty over Greenland
as a whole.

In approaching this question, we must in the first place
consider the legal consequences of the overtures made by the
Danish Government to various Powers between 1915 and 19217.

The standpoint of the Danish Government in the question of
Danish sovereignty was defined in a report made on August Ist,
1916, to His Majesty the King of Denmark by his Minister
for Foreign Affairs. This report contains the following: ‘Finally,
it appears to me most important that the United States of
America have offered to make, simultaneously with the sign-
ature of a convention [concerning the Danish West Indies], an
official declaration to the effect that the Government of the
United States of America would not object to the Danish Govern=
ment extending their sovereignty to include the whole of

80
DISSENTING OPINION BY M. VOGT 99

Greenland ; such a step would afford valuable support to the
future development and maintenance of Danish interests in the
possession in question...”

In the documents submitted, we find the expressions used
by Denmark in her representations to foreign governments
with a view to securing the extension of Danish sovereignty
to all Greenland. These expressions vary. The instructions
of March 2nd, 1920, given by the Danish Minister for Foreign
Affairs, contain the following: “It is desirable that the Danish
Government should extend its care, by means of its sovereignty,
to the whole of Greenland.’ By this expression the Danish
Government indicated what may be called the substantial
motive of its overtures. The ostensible reason is stated as
follows: ‘“Having got this declaration [that of the United
States of America], it [the Danish Government] proposes also
to obtain recognition by other Powers of Danish sovereignty
over Greenland’, and again: “I request you therefore to en-
deavour to obtain from the Italian [British, etc.] Government
official recognition of Danish sovereignty over all Greenland.”
In the same instructions, the Danish Government informed its
Ministers abroad that “effective possession” has been taken
“in the name of Denmark” of a certain district in Greenland
which had been ‘outside the districts hitherto under the Danish
administration’, and again “that formal possession of Greenland
as a whole has not been taken”. An instruction of July rath,
1919, issued by the Danish Minister for Foreign Affairs to
the Danish Minister at Oslo contains the following sentence:
“I will, on the other hand, ask you? to bring out in the course
of the conversation that the Danish Government has for some
years past 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” (at Paris).

All these expressions convey the same idea, namely, that
Denmark had not hitherto possessed sovereignty over all Green-
land. The parts of Greenland which have not been brought
under the Danish Greenland Administration and of which pos-
session has not been effectively or even formally taken, cannot
be regarded as under Danish sovereignty. For this reason the
notes despatched by the Danish Ministers, who had received
these instructions, all contain expressions such as “extend her
sovereignty to all Greenland’’; ‘‘extend her care, by means of
her sovereignty, to all Greenland’’; or, “extension of Danish

1 The Danish text reads as follows: “De bedes imidlertid under samtalen
fremheve....”

81
DISSENTING OPINION BY M, VOGT I00

sovereignty to the whole of Greenland’. There is no trace of
the despatch of any rebuke or correction to the Danish Minis-
ters abroad who, in carrying out their instructions, used the
expressions “extend’’, or ‘extension of”, “Danish sovereignty’.
In point of fact, these Ministers merely gave accurate expres-
sion to the idea embodied in the instructions themselves. The
last note is that of January, 1921, to the Norwegian Govern-
ment. In this we read: “The Danish Government also reck-
oned on an extension of Danish sovereignty to all Greenland
not meeting with difficulties on the part of Norway.” This
reference to the request made verbally in 1919 makes no quali-
fication as regards the expression ‘extension of sovereignty”’.

Already in December 1915, the Danish Minister in Washington,
in a note to the United States Secretary of State, had
spoken of ‘the extension of the care and suzerainty of Den-
mark to the whole of Greenland’, and the Danish Minister
in Paris, in his note to the French Government in 1920, used
the words: “extend her sovereignty to all Greenland”.

If the Danish Government had believed that such expres-
sions were not correct, it would no doubt have taken every
care to warn its Ministers abroad to avoid making use of the
words which have been quoted above.

The replies of the governments whom Denmark had approach-
ed also show, for the most part, that these governments
considered that what was desired was a future extension of
Danish sovereignty. I would also refer in this connection
to the history of the Danish-American negotiations concerning
the sale of the Antilles, as related by Charles Callan Tansill
in a recent work: The Purchase of the Danish West Indtes.

It is true that on various occasions, in the xixth century,
the Danish Government had expressed its conviction, in Den-
mark, that the sovereignty over the whole of Greenland belonged
to Denmark.

On the other hand, during the same century, there had been
no small number of official acts and declarations which revealed
an opposite. conviction. Thus, the expedition of Graah
(1829-1830), which acted ‘‘under instructions from the King”,
and the expeditions of Holm (1883-1885) and Ryder (x189I-
1892) organized by the Danish State, were all commanded by
officers of the Royal Danish Navy; and all three of them
took possession of lands on the East coast in the name

82
DISSENTING OPINION BY M. VOGT IOT

of the King. These formal acts of occupation did not produce
any legal effects ; but they are clear evidence that the Danish
Government was not convinced that it possessed sovereignty
over the whole of Greenland. This attitude was also expressed
by the Danish Minister of Marine at a meeting of the
Folketing, in the session of 1880-1881, in a speech which he
made on the exploration of the East coast of Greenland. On
that occasion the Minister said: “It is in every way natural
that a part of the coast lying so near to the colonies belonging
to the Danish Crown should be explored at the initiative
of Denmark....”

The Holm expedition had been organized by the Commission
for the Exploration of Greenland. This Commission wrote to
the Ministry of Marine concerning the explorations which it
behoved Denmark to undertake “in regard to territories, which
are in part subject to the Danish State, and in part adjacent
to the territories that are subject”. The Government followed
the advice of the Commission. There is nothing to show
that it did not accept the argument mentioned above.

In a report submitted to the King of Denmark by the
Minister of the Interior, in connection with the Tayler con-
cession, granted in 1863, the Minister points out that no one
disputed Danish sovereignty on the East coast of Greenland.
In the same report it is also emphasized that Mr. Tayler
“undertakes to take possession in Your Majesty’s name of
any new part of the coast which may be reached by the
expedition....”. The actual concession stipulates that ‘‘any station

. shall come under the sovereignty of the Danish Crown....”.

Such contradictions cannot be regarded as evidence of a
definite attitude, or of a firm conviction.

At the beginning of the present century, we have to note
the law of May 27th, 1908, which lays down, inter ala:

6

Southern Greenland comprises the country situated
between Cape Farewell and the Nordre-Streem-Fiord, including
the latter: Northern Greenland includes the remainder of
the Danish territory on the western coast...’

In a note to the British Government, dated July 2oth,
1920, the Danish Government maintains that Danish sov-
ereignty over all Greenland was acquired “by prescriptive
right”. This note was occasioned by the fear lest a dispute
might arise on the question of pre-emption between two of
the Great Powers whom Denmark had approached. In a
despatch dated December 21st, 1921, the Norwegian Minister
at Copenhagen had reported, as a result of overtures made
by him to the Danish Government, that the last-named
Government ‘‘has refused, out of deference for America, to

II 83
DISSENTING OPINION BY M. VOGT . 102

accept the demand of Great Britain for a right of pre-emp-
tion, in case Denmark should desire, in the future, to alienate
Greenland. The British Government then contented itself
with reserving its right to be informed in case Denmark
should ever contemplate thus alienating Greenland. And if I
have rightly understood, Denmark must be regarded as having
accepted that reservation.” The. argument put forward .in
the note of July z2o0th,+ 1920, by Denmark, finding herself
in a difficult diplomatic position, to the effect that she pos-
sessed an ancient sovereignty, acquired by prescriptive right,
cannot be allowed very much weight.

The most eminent Danish jurists of recent: times have
maintained that the Danish possessions in Greenland were
limited, and they have spoken of an effective occupation, or |
taking into possession, in such a way as to be valid in inter-
national law, as being a necessary basis for Danish sovereignty.

The declarations of x915 to Ig2r were. declarations freely
made, so to speak, to the community of nations. In thus
officially declaring to a certain number of Powers that it
did not yet possess sovereignty over the whole of Greenland,
the Danish Government debarred itself from claiming to
possess an ancient sovereignty over the whole of Greenland.
To concede the right of a government to put forward claims
to an ancient sovereignty, only a few years after that very
government has solemnly proclaimed that it did not possess
that sovereignty, would be to open the door to instability in
international affairs.

*

It is next necessary to consider whether Denmark acquired
sovereignty over the territory in dispute, subsequently to rg2r.

It is clear that Denmark had the animus possidendi during
that period; but did she have the corpus possessionis ? The
region in question is one where the citizens of another nation
have engaged in fairly regular activities, certainly since, and
probably long before, r889—“‘a favourite resort of the Norwegian
hunters’—-without Denmark having attempted to exercise
sovereignty over those foreigners. And these activities conti-
nued, even after the proclamation of June 16th, 1921, under
' which the whole of the coasts and adjoining islands of Green-
land were closed to ships of foreign nationality. It is a
territory, the sovereignty over which is disputed, a territory
which was visited in 1930 by a Danish official expedition
under the command of a Danish naval officer, without any
action whatever being taken by him in regard to the serious :

84
DISSENTING OPINION BY M. VOGT 103

accusations brought by a Danish company against the Nor-
wegian hunters in the district. He did not even interrogate
the accused persons. It is a territory, forming part of the
areas which M. Christensen, the former Danish Prime Minister,
in a speech in defence of the Convention of 1924, referred to
in the following words:

“As we have no warships in Greenland waters, nor any police-
force capable of expelling them fie. the Norwegian hunters], we
have no means of intervening.”

That statement still held good in July 1931.

It has been argued on behalf of the Danish Government
that the administrators of Angmagssalik and Scoresby Sound,
whose jurisdiction has not been delimited by any geographical
boundaries, have been since 1894 (?), and are still, the local
representatives of the Danish State in Eastern Greenland.
This assertion has been contested on behalf of Norway:
it has been pointed out that the officials in those two sta-
tions are in no way entitled to exercise official authority,
and that in fact they never have attempted to exercise any
kind of authority, outside the very limited districts entrusted
to their administration.

The Danish Government has not produced any document
conferring the alleged authority, outside the two stations in
question, upon the above-mentioned. officials. Two facts
should be noted: (xz) the officials mentioned by the Danish
Government are employés of the Monopoly, pastors, and tele-
graphists ; (2) Denmark undertook, in the Protocol signed on
January 28th, 1924, at the closure of the negotiations for
the Convention of July gth, 1924, to trace the boundaries
of the two above-mentioned colonies according to the custom-
ary rules (cf. the Ordinance of March 26th, 1751). The said
Protocol, in making an express reference to the Ordinance of
March 26th, 1751, indicates that the boundaries of the sta-
tions are situated, speaking generally, at a distance of fifteen
miles on either hand. Considering these circumstances and
the geographical situation, it is difficult to understand what
governmental authority the employés of the Monopoly, the
pastors and telegraphists of Angmagssalik and Scoresby Sound
can possibly possess in Eirik Raudes Land.

My conclusion is that Denmark has not proved the corpus
possessionis in respect of the territory in question, nor has she
proved an “inchoate title”.

85
DISSENTING OPINION BY M. VOGT 104

*

I am led by the circumstances to examine the question
of the extent of Danish sovereignty over Greenland from
another point of view.

What is the origin of that sovereignty ?

Until 1814, Greenland was a Norwegian dependency ; it is
therefore necessary to determine what was that Greenland
which Denmark retained for herself at the dissolution of the
union between the two kingdoms.

The instructions sent to some of the Danish Ministers
abroad by. the Minister for Foreign Affairs at Copenhagen, on
March and, 1920, begin with the words: ‘Danish enterprise
in Greenland had its origin in x1721.” In pursuance of those
-instructions, these Ministers presented memoranda to the different
governments, in such terms as: ‘Danish enterprise in Green-
land was initiated in 1721”; “l'œuvre danoise au Groénland
a été imtiée depuis déjà 1721”; “Vactivité civilisatrice des
Danois dans le Groënland a commencé en 1721”; “the beginning
of Denmark’s penetration into Greenland took place in the
year 1721’. Especially clear is the following declaration:
“The taking into possession of Greenland by Denmark dates
from a period as far distant as 1721.” The latter passage is
quoted from the instructions issued by the Minister for Foreign
Affairs on July 7th, 1920, and the information was trans-
mitted to the British Government in the following form: “The
occupation of Greenland by Denmark took place as far back
as 1721.’ This decisive statement is contained in the instruc-
tions, and in a diplomatic note, written with the express object
of emphasizing the fact that Danish sovereignty went back
to an ancient date. A letter, dated April 29th, 1021, from
the Danish Minister at Oslo to the Norwegian Minister for
Foreign Affairs, contains the words: “The Danish Government
being about to celebrate the zooth anniversary of the attach-
ment of Greenland to Denmark...”

When these documents speak of Denmark, this must really
be understood to mean Norway, or—if it is. preferred—the
King of the two United Kingdoms, in his capacity as King of
Norway. In any case, for the present purpose, it suffices to
note that the sovereignty which Denmark invokes only goes
back—according to the solemn declarations made by the
Danish Government to foreign Powers—as far as the year 1721.
During the proceedings, the Danish Government has used
expressions such as: “the Danish Government is entitled to
adduce an uninterrupted occupation of two hundred years”,
and “the Danish State has exercised sovereignty over all
Greenland for two hundred years’. These expressions are not

86
DISSENTING OPINION BY M. VOGT 105

without importance, although the Danish Government has,
in other passages, sought to base its sovereignty on a more
ancient historical foundation.

Christian IV was the most remarkable of the kings of Denmark
and Norway and took more interest than any of them in the coun-
tries in the northern seas. In his “Fiscal Letter’ of April Ist,
1606, he writes as follows: “Greenland, which is a member
[of Norway], which belongs by right to the Crown of Norway
and which in the days of some of Our beloved ancestors,
Kings of Denmark and Norway, by abandonment or other
unfortunate circumstances, was separated and cut off, with
the rights and profits attaching thereto, from the Crown of
Norway.” It was, however, the avowed intention of the
King to restore this country to the Norwegian Crown.

When, in 1616, the Dutch captains took possession of the
western coast between the 6oth and 66th degree of north
latitude on behalf of the States-General, Christian IV main-
tained a passive attitude. His successor, Frederick III,
granted a concession in 1652, “seeing that the aforesaid
country of Greenland was a dependency of our Kingdom of
Norway’. In a despatch dated January 13th, 1844, the
Danish Ministry for Foreign Affairs wrote: “After ‘old Green-
land’ [in other words, the East coast], which had been dis-
covered by Norwegians and Icelanders at the end of the
xth century, had been entirely abandoned at the beginning
of the xvth century, all relations with that country ceased,
until King Christian IV decided to send ships to endeavour
to rediscover the eastern coast....”

The somewhat vague claims of the Danish-Norwegian kings
found expression in terms such as “hereditary sovereign of
Greenland” and “Our country of Greenland’, etc. Thus, in
the charter granted to the Greenland Company of Bergen
on February 5th, 1723, the King declared his intention of
re- establishing the ancient commercial relations between Nor-
way and “the country of Greenland belonging to our King-
dom of Norway....”. But no very great importance can be
attached to claims of such a nature.

Even admitting that an ancient sovereignty is not forfeited
by dereliction, unless the animus is abandoned as well as
the corpus possessionis, it must be conceded that the sover-
eignty could not be still in being some centuries after the
extermination of the ancient colonists and the cessation of
communications.

The second colonization of Greenland, under the direction
of the Pastor Hans Egede, was a Norwegian enterprise. In
his numerous petitions Hans Egede recalled the fact that
Greenland had been a dependency of the Kingdom of Norway.
The Bergen Company, which sent Egede to Greenland, declared

87
DISSENTING OPINION BY M. VOGT 106

its object to be that. ‘this country which has been so
long deserted and has been left in the hands of savages may,
in course of time .... be restored to Your Majesty....”. In
connection with the petitions of the Bergen Company, the
Principal Secretary of the Danish Chancellory stated, in an
Opinion presented about the end of 1722, that “.... the country
[that is Greenland] has for a great number of years been
res derelicta....’’.

It accordingly follows that the sovereignty which Denmark
now possesses in Greenland is based upon the Norwegian
colonization at the beginning of the xvirith century.

*

From a purely historical standpoint, it was sought to
base the claim for sovereignty on the fact that Greenland
had, in ancient times, been a country belonging to Norway.
But, according to the custom then prevalent in matters of
colonization, the sovereignty was in reality restricted, after the
second colonization, to certain areas surrounding the factories
or stations successively established. The same system was also
employed by the Monarch of the two kingdoms in dealing with
possessions in the Indies and Africa. In regard to possessions
in those parts of the world, the King also granted charters
for colonies which might hereafter be established.

The system which it was sought to apply in Greenland
consisted, from 1721 onwards, in successively extending the
colonized territory, with a consequent extension of the terri-
tory under governmental administration, thus again, in turn,
‘extending the sovereignty of Denmark. This system has
been described on various occasions by the Danish Govern-
ment. I will content myself with two examples.

The Danish Ministry of the Interior (Directorate of Green-
land Colonies) in a letter, dated November 3rd, 1916, to the
Parliamentary Commission for the Danish West Indies, refers
to the establishment of the Angmagssalik station in 1804
and explains how, by a Proclamation dated March 8th, 1905,
it had been “announced that the Danish establishments
henceforward extended as far as latitude 74° 30’ N.; that is to
say that the sovereignty of Denmark and the régime of
exclusion have accordingly been extended over a fresh zone,
one degree and a half of latitude in width”. The Ministry’s
letter continues in the following terms: ‘‘These two regions,
which have been incorporated at a relatively recent date, are
universally recognized as being subject to Danish sovereignty ;
in any case, no objection has ever been raised in any
quarter against this view; and it would perhaps be possible
to maintain that Danish sovereignty could always continue

88
DISSENTING OPINION BY M. VOGT 107

to be extended to all places where there are Danish establish-
ments, that is to say—since a trading and mission station
has now been founded by private initiative at Cape York—
to every inhabited part of Greenland.”

In the instructions issued on March 2nd, 1920, by the Min-
istry for Foreign Affairs at Copenhagen to a number of Danish
Ministers in foreign countries, the following passage occurs:

“As has been mentioned above, Denmark established colonies in
Greenland as early as the beginning of the xvuith century. Later
on, when it was found that Eskimos were also living outside the
districts hitherto subject to the Danish administration, namely, at
Cape York, Denmark extended her missionary enterprise and com-
mercial activities to those regions and, by reason of that fact, these
territories of Greenland have also been effectively taken into posses-
sion on behalf ot Denmark.”

A study of the Ordinances, etc., of the xvirith century
relating to Greenland, confirms the accuracy of the descrip-
tion, thus given by the Danish Government, of the system of
colonization and administration.

Denmark has endeavoured, during the proceedings, to draw
a distinction between the sovereignty itself, and the exercise
of sovereignty by the Danish administration. But, if Den-
mark believed that she possessed a sovereignty, valid in inter-
national law, over the whole of Greenland, she ought to have
prohibited trading with Greenland to all other nations; she
ought to have taken steps to combat the foreign trade which
she said was prohibited. But the history of the colonization
shows that Denmark did not believe herself entitled to proceed
in this way.

The Department of Police and Trade had stated in a
proposal to the King, dated February 28th, 1721: “.... for
we humbly submit that it would be imprudent to enact such
a prohibition before Your Majesty’s subjects have really taken
the country into possession....”.

In regard to a concession for trading with Greenland, the
Principal Secretary of the Royal Danish Chancellory wrote on
February 20th, 1740: “.... the last article should, moreover, be
drawn in such a way as to show that His Majesty authorizes
Severin alone to trade with the Greenland colonies, whether
already established or hereafter to be established, and that
neither His Majesty’s subjects nor foreigners may engage in
trade within a given distance from the said colonies, seeing
that it is evidently impossible to prohibit foreigners or others
from trading in the Davis Strait so long as they do not
approach nearer to the colonies than may be declared permis-
sible for them”. The concession was modified and restricted
in conformity with this proposal.

89
DISSENTING OPINION BY M. VOGT 108

The documents filed with the Court show that the Danish
Government did not know any legal method of preventing
trade with foreigners other than the establishment of a chain
of colonies.

The Ordinance of April 9th, 1740, provides that if any
person venture ‘‘to trade in the colonies already established
or hereafter to be established, in Our Country of Greenland”
as also within the boundaries fixed for them, ‘‘and similarly if
any person venture, in any part of Greenland whatsoever, by
sea or by land, to despoil the Greenlanders or to do them
violence the offenders” shall be “punished by seizure and con-
fiscation”. This Ordinance, which provides for the protection
of the Eskimos, even outside the boundaries of the colonies,
has been relied on as proof of the existence of a corpus
possessionis. As a fact, however, this Ordinance is based upon
a memorial. of Severin, in which the latter proposes measures
to prevent the Greenlanders from being despoiled or molested,
offenders being liable “according to the nature of the offence
[to be] duly punished as pirates’.

The punishment of acts of piracy by the crews of ships
did not require the existence of sovereignty in the places
where such acts had been perpetrated. And piracy might take
place either by sea or by land. (Pradier-Fodéré: “It matters
little whether the act of brigandage is perpetrated on the high
seas or on the coasts, in order to determine its character 1.’’)

It is interesting to cite the following paragraph in the pro-
posal submitted to the King on April 1st, 1740: “In Severin’s
project it is stated that no person may, under pain of confis-
cation of his ship and its cargo, do any wrong or prejudice
to the Greenlanders; but as the word wrong is of a rather
general character, and might be construed in too wide a sense,
the Commissioners have contented themselves with proclaiming
that if anyone should despoil the Greenlanders or use any
flagrant violence against them, his vessel shall be seized for
confiscation.” Here again it is clearly a question of piracy.

The Danish Government has adduced an instruction drawn
up in 1737, in the following terms:

“He must warn all foreign merchants and all whalers, to

refrain, .... from depriving the Greenlanders at any point

either of blubber or fish...., this being contrary not only

to our Absolutum Dominium, but also to the law of Nations ;

and, furthermore, Dutch subjects who act in this way are

Uiolating the attached Ordinance made in 1720 by the States-
General.”

1 This subject has been fully dealt with by Paul Stiel in his book Der
Tatbestand der Pivaterie, etc. (Leipzig, 1905). Reference may also be made
to the report to the Council of the League of Nations, C. 196. M. 70.
1927. V., page 204.

90
DISSENTING OPINION BY M. VOGT 109

In acting in the manner described in the colonies, the
Dutch were doubtless infringing “our Absolntum Dominium”.
But the fact that the instructions make reference to the law
of nations and also to a Dutch Ordinance seems to prove
that the Copenhagen Government was not founding itself on
the idea of a Danish sovereignty extending to the whole of
Greenland.

In 1753, the General Greenland Trading Company wrote:
“Although the place [on the coast of Greenland] where these
vessels are said to have been abandoned (so far as is known
to us) is not subject to Your Majesty’s sovereign dominium....”
The King ordered that no steps should be taken to seize the
ships in question.

The Ordinance of April 22nd, 1758, has been adduced by
the Danish Government as evidence that, since that date,
foreigners were prohibited from trading anywhere in Green- ‘
land. But if this Ordinance is compared with that of 1751,
the text of which it was desired to modify, it is seen that no
substantial modification was intended; and a memorial of
the Trading Company, dated March 30th, 1759, describes the
Ordinance of 1758 ag “‘concerning the prohibition of trading
in Davis Strait”, in other words, on the colonized western
coast.

The Ordinance of March 18th, 1776, maintains the principle
that the establishment of stations must be effective, and must
be published, as in the past. The first article speaks of the
Trading Monopoly and of navigation “in the colonies and
factories established, or hereafter to be established, in Green-
land and the islands appertaining thereto, in Davis Strait
and Disco Bay, as also in other ports and places in that
region...” The article declares. that the colonies and factories
“extend at present between lat. 60 and 73 N.”, and it prohibits
trade and navigation “in the aforesaid country”.

In 1921, the Danish Government informed a certain number
of foreign governments that the Ordinance of 1776 prohibited
access to the Greenland coast “both as regards colonies and
factories already established and those which may hereafter
be created”. This interpretation of the Ordinance in the
sense that the prohibition of access only applied to . the
colonies has been maintained by the Danish Government
during the present proceedings. But in that case the con-
clusion follows that “the aforesaid country” in that Ordinance
only signified the colonized western coast; and a study of
the Ordinance of 1776 gives the impression that it is based
on the notion of a sovereignty only extending to the colonized
territory. .

12 gi
DISSENTING OPINION BY M. VOGT IIO

The Rescript of April 17th, 1782, refers in the introduction
to “two royal inspectors designated for Greenland....”. It begins
with the following words: “As it has been humbly pointed
out in your letter of March 6th last to our Danish Chancellory
that there is no judicial authority in Our country of Green-
land....”. And further on: “We have graciously deigned. to
appoint two covenanted officials in this country as inspectors
of trade and fisheries, one for the Northern colonies and
one for the Southern colonies’; and again further: “the
aforesaid two inspectors, each one in respect of the part of
the country entrusted to him...

A report of November 1787 from the Royal Greenland Trade
mentions that His Majesty has been pleased “‘to divide the
country into two inspectorates’. A report of the Royal
Greenland Trade Commission of 1790 speaks of “‘two inspec-
tors who are to be regarded as the only public authorities
in the country’, and in the same year another report of
the said Commission mentions that the two inspectors have
to ‘watch over the territorial rights of Your Majesty”.

‘Lastly, by a Royal Resolution of March 23rd, 1803, the
King appointed MM. Motzfeldt and Myhlemphort ‘‘Inspectors of
Colonies and Whaling, the former in Northern Greenland and
the latter in Southern Greenland’.

The administration of these two inspectors, who were the
only representatives of the State in Greenland, continued to
be definitely limited to the colonized districts, the boundaries
of which were fixed.

The system of gradual extension of sovereignty by means
of the extension of colonization and administration was con-
sistently followed, and, in 1921, it again found expression in
the Decree of May 10th which lays down ‘that the whole
country is henceforward attached to the Danish colonies and
stations and to the Danish administration of Greenland 1”?
(“.... que tout le pays est désormais rattaché aux colonies et
stations danoises et à l'administration danoise du Groénland)’’.

What happened in 1921, it is contended on behalf of Den-
mark, was merely that ‘the whole country was attached to
the special organization, the office at Copenhagen which deals

1 The (French) translation given above was filed by the Norwegian Govern-
ment. The translation submitted by the Danish Government was as fol-
lows: “.… l’ensemble du pays est désormais vattaché aux colonies et stations
danoises sous l'autorité de l'administration danoise du Groënland” (‘.... the
whole of the country is henceforth attached. to the Danish colonies and
stations under the authority of the Danish administration of Greenland’’).
In view of these two different translations, it seems advisable to give the
original Danish text: “.... af hele Landet herejter er inddraget under de danske
Kolonier og Stationer og den danske Styrelse af Gronland’’.

92
DISSENTING OPINION BY M. VOGT III

effect by several of the contracting Parties to such treaties
with Greenland affairs, in other words: it was merely a
question of domestic administration”. Nevertheless, the Decree
of May roth, 1921, was notified to foreign Powers. Even
accepting the construction now placed on this text by Den-
mark, it seems difficult to admit that a State can have had
effective possession of vast territories—even in the Arctic
regions—which were subject neither to the central adminis-
tration nor to the local administration instituted for the
colony, of which these vast territories are alleged to form part ;
territories of this kind, elsewhere, are expressly subject to the
different organs of the competent administration, sometimes to
several authorities (civil, military, judicial); even if there are
parts of the territory which have never been visited by the
authorities, there exists however a competent authority for
these territories who can act, if circumstances require it.

It follows from the foregoing that the Greenland which up
to 1814 was a possession of Norway, and which in I814
became a Danish possession—that is to say the Greenland
referred to in the Treaty of Kiel and during the Norwegian-
Danish negotiations concerning the financial settlement—was
not the whole of Greenland in the geographical sense of the
present day. It could only be, and it was only, the Green-
land over which the Monarch of the two united kingdoms had
exercised—and over which he consequently possessed—effec-
tive sovereignty, in other words, the colonized districts sub-
ject to the administration of the Sovereign. That being so, it
is unnecessary to dwell further on the scope of the Treaty of
Kiel and of the subsequent financial settlement.

*

In regard to the numerous treaties in which the Danish
Government inserted an exception in regard to Greenland, the
following considerations call for attention:

If these treaties can be adduced as evidence that the
respective contracting States recognized Danish sovereignty
over the whole of Greenland, in virtue of the exception thus
inserted by Denmark, how can one account for the fact that
the Danish Government itself, in the years 1915-1921, approached
a certain number of these very same States with an express
request for their recognition? And how can one account for
the fact that these States did not then reply that they had
already granted this recognition by the conclusion of one or
other of these treaties? The true explanation is, perhaps, that
at the same time when the treaties of commerce, etc., were
concluded, none of these foreign Powers was thinking—
owing to the nature of the case—of the area which might
be covered by the term ‘Greenland’. Statements to that

93
DISSENTING OPINION BY M. VOGT II2

effect by several of the contracting Parties to such treaties
concluded with Denmark were indeed produced to the Court.

*

As regards the conversations which took place on July 14th
and 22nd, 1919, between M. Krag, the Danish Minister at
Oslo, and M. Thlen, the Norwegian Minister for Foreign
Affairs, there is in existence a record, accepted by both Par-
ties, in the form of notes bearing the initials of M. Ihlen.

The notes are in the following terms, according to the
Norwegian Government’s translation:

“T. Le ministre de Danemark m'a communiqué . aujourd’hui
que son Gouvernement a été avisé de Paris que la question du
Spitzberg sera examinée par une commission de quatre membres
(américain, britannique, frangais et italien), Au cas ot le Gouver-
nement danois serait interrogé par cette commission, il est prét
. à répondre que le Danemark n'a pas d'intérêts au Spitzberg et
qu'il n’a aucune raison de s'opposer aux désirs de la Norvège
touchant le règlement de cette question.

En outre, le ministre de Danemark a communiqué ce qui suit:

Le Gouvernement danois s’est pendant plusieurs années occupé
de la question d’obtenir la reconnaissance, par toutes les Puissances
intéressées, de la souveraineté du Danemark sur l’ensemble du
Groënland, et il se propose de soumettre cette question, simul-
tanément, à ladite commission. Au cours des négociations avec
les États-Unis d’Amérique concernant Ja cession des Antilles
danoises, le Gouvernement danois a soulevé cette question en
ce qui concernait la reconnaissance par le Gouvernement des
Etats-Unis, et il a obtenu que celui-ci, concurremment avec la
conclusion de la convention relative à la cession desdites îles,
donnat une déclaration dans laquelle il est dit que les Etats-Unis
ne s’opposeraient pas à ce que le Gouvernement danois étendit
a Vensemble du Groénland ses intéréts politiques et économiques.

Le Gouvernement danois compte (a-t-il dit) que le Gouverne-
ment norvégien ne fera pas de difficultés au réglement de cette
affaire. J’ai répondu que la question sera examinée.

14/7 — 19 th.”
“TI. “J'ai dit aujourd’hui au ministre de Danemark que le:

Gouvernement norvégien ne ferait pas de difficultés au règlement
de cette affaire.

22/7 — 19 Ib.?”
1 Translation from the French text supplied by Norway:

“I. 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 pre-
pared to answer that Denmark had no interests in Spitzbergen and that
Denmark had no reason to oppose Norway’s wishes in regard to the settle-
ment 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

94

DISSENTING OPINION BY M. VOGT II3

The translation filed by the Danish Government does not
differ substantially, or in any essential particular, from the
above. In place of the words “au règlement de cette affaire”
(“in the settlement of this matter”), the Danish translation
has: “au sujet du véglement de cette affaire” (“in connection
with the settlement of this matter’). It should be noted
that the word “simultanément” (à ladite commission) (‘“‘simul-
taneously .... to the Committee) does not appear in the
instructions sent to M. Krag.

On July 22nd, the Danish Minister reported to his Minister
for Foreign Affairs in the following terms:

“I “have the honour to report that M. Ihlen, the Minister for
Foreign Affairs, informed me to-day that the plans of the Royal
Government respecting Danish sovereignty over the whole of Green-
land—mentioned in your despatch of the rath instant—would meet
with no difficulties on the part of Norway.”

To appreciate the nature and scope of these conversations,
it is necessary to consider the following facts which emerge
from the evidence produced :

The Danish Government’s overtures to the various other
Powers, during the years IgI5 to Ig2I, were in writing,
whereas it approached the Norwegian Government in 1919
orally.

In the negotiations with the United States of America in
1916, Denmark expressly reserved her right to the conti-
nuance of the monopoly. There is no proof that this was
mentioned to M. Ihlen.

In the overtures in writing to the other Powers, the mono-
poly system is expressly described; in the brief request
addressed verbally to Norway in 1919, the extension of this

from all the Powers concerned, and they intend 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 Govern-
ment of its political and economic interests to the whole of Greenland.
“The Danish Government confidently expected (he said) that the Norwegian
Government would make no difficulty in connection with the settlement
of this matter. I replied that the question would be considered.
14/7—19 Ih.”

“TI. I to-day informed the Danish Minister that the Norwegian. Govern-
ment would make no difficulty in the settlement of this matter.
22/7—19 Th.”

95
DISSENTING OPINION BY M. VOGT IT4

system was not mentioned. M. Krag spoke of the Danish
Government’s anxiety to obtain recognition by all interested
Powers ‘‘of Denmark’s sovereignty” over all Greenland; he
described how ‘this question” had been raised with the
United States and he gave the American reply to the effect
that the United States would not oppose the extension of
Danish political and economic interests over all Greenland.
M. Ihlen could not, from these general expressions, and
without any explanation or special knowledge, draw the
inference that this meant the extension of the monopoly.

On Denmark’s side, it has been maintained, in the course
of the proceedings, that. the overtures to certain Powers
between 1915 and 1921 were designed to obtain recognition
. of sovereignty and also of future measures for the welfare of
the Eskimos, ie. the monopoly system; so far as can be
observed, nothing was said regarding the extension of the
monopoly in the conversation with M. Ihlen ; on the contrary,
M. Ihlen’s minutes and the instructions given to M. Krag and
the latter’s despatch to his Government after M. Ihlen’s answer,
all alike only refer to the question of sovereignty.

The important Greenland Society of Copenhagen, in a letter
to the Danish Government on November 2nd, 1916, had said
with regard to the coastal area between Germanialand and
Cape Dalton (an area which includes Eirik Raudes Land) that
“it is a favourite resort of Norwegian hunters who almost
every year engage in hunting there both at sea and on land” ;
and the Society emphasized that ‘‘the State of Denmark must
exercise sufficient foresight to secure these regions as soon as
possible’.

The brief minutes kept by M. Ihlen are the only record
made in the Norwegian Ministry for Foreign Affairs of the
Danish démarche of 1919. and of M. Ihlen’s reply.

During the Dano-Norwegian negotiations for the settlement
of this matter, the Danish Government closed the coasts of
Greenland which had hitherto been open, a measure directed
particularly against Norwegians; by this measure the Danish
Government broke off the negotiations.

Thus, in 1919, the Danish Government was fully aware of
the Norwegian interests in Eastern Greenland. At the same ©
time, the aim of the démarches undertaken by it was an
extension of the monopoly the consequences of which were
bound to be most serious for Norwegian interests.

The Danish Minister in Paris, on July tith, 1919, had

suggested to his Government that Denmark’s attitude in the
96
DISSENTING OPINION BY M. VOGT TI5

Spitzbergen question should be based on that of the Norwe-
gian Government in regard to Denmark’s request for recog-
nition of Danish sovereignty over Greenland. Nothing was said
to M. Ihlen regarding any such linking together of the two
questions, nor did the instructions to M. Krag contain anything
on the point. In these instructions we read: “T will, on the other
hand, ask you to bring out in the course of the conversation”,
etc. If what was desired was an arrangement on the principle of
do ut des in regard to the questions of sovereignty, it should
have been expressly stated. The Danish Minister at Oslo
begins, on the contrary, by stating unreservedly that the
Danish Government, should it be questioned on the point,
would be ‘“willing to reply that Denmark has no interests in
Spitzbergen and has no reason for opposing Norway’s aspira-
tions regarding the settlement of this question”.

Moreover, the Danish Minister for Foreign Affairs had already
stated unreservedly on April 1st, 1919, to the Norwegian
Minister at Copenhagen, that Denmark had no interest conflicting
with those of Norway in Spitzbergen ; in view of this unofficial
statement, it would have been difficult for M. Ihlen to con-
ceive, in July of the same year, that there was any question
of an agreement of some sort on the principle of do ut des.
It has in no way been proved that M. Ihlen knew—as has been
alleged—that Denmark, when intending to adopt an attitude
favourable to Norway in the Spitzbergen question at the Peace
Conference, was relying upon his declaration. M. Ihlen expressly
denied it in a statement made by him on July 4th, 1923,
protesting against certain assertions made in Denmark. In this
statement, M. Ihlen expresses himself as follows:

“On one of the last days of March, 1919, the Norwegian Minister
for Foreign Affairs telegraphed to the Norwegian Minister at
Copenhagen asking him to explain to the Danish Foreign Minister
the reasons militating in favour of the attachment of Spitzbergen
to Norway, and to express the hope that Denmark would take
a favourable view of the matter. In conformity with these tele-
graphic instructions, the Norwegian Minister had a conversation
with M. Scavenius, Foreign Minister, on the subject of Spitz-
bergen, on April rst, 1919. In a despatch of April 2nd regarding
this conversation, the Norwegian Minister reported that M. Sca-
venius had at once declared that the Danish Government would be
altogether favourable to the union of Spitzbergen with Norway.
Denmark herself had no interest in that region conflicting with
those of Norway, and the Danish Government fully recognized
the weight of the geographical and economic arguments in favour
of uniting these islands with Norway, and considered this as
the most practical settlement. Not a word was said about Green-
land in this conversation.

97
DISSENTING OPINION BY M. VOGT 116

The démarche made to me by the Danish Minister at Oslo
and alluded to by M. Scavenius did not take place until some
months later, on July r4th, 1919. During this conversation, the
questions of Spitzbergen and Greenland were both discussed, but
I can say with certainty that Monsieur Krag, the Danish
Minister, did not on this occasion place any conditions upon the
Danish Government’s favourable attitude in the question of Spitz
bergen. There is therefore no justification for speaking of the
conclusion of a contract.’

In view of the undeniable fact that Denmark had no interest
in Spitzbergen, I should not have considered it equitable
to attribute to the Danish Government an intention of pro-
posing, in July 1919, any such bargain on the do ut des prin-
ciple. In point of fact, the Spitzbergen Treaty guaranteed
all rights to every Power, including Denmark, whereas Nor-
way, by recognizing Danish sovereignty, would have run the
risk of sacrificing all her rights in Greenland.

It is very probable that M. Ihlen was, generally speaking,
well disposed owing to the Spitzbergen question, and doubt-
less he favourably regarded Denmark’s desire to approach
the Committee of four members at Paris. M. Ihlen also
gave evidence of his favourable attitude at a visit paid to
him by the new Danish Minister at Oslo in November of the
same year; in the course of this visit, M. Ihlen—according
to a report of the Danish Minister—said that “it was a
pleasure for Norway to recognize Denmark’s sovereignty over
Greenland”. This was an official courtesy visit and too much
importance must not be attached to the way in which the
remark quoted is worded in the report; but in any case it
proves M. Ihlen’s attitude.

It has not been proved that the Krag-Ihlen conversations
linked together the Greenland and Spitzbergen questions in
a manner possessing any real legal significance; and the facts
above mentioned militate against the theory that M. Ihlen
must have realized the existence of a close connection of this
kind. During the year 1927, the Danish Government mentioned
to the Norwegian Government the benevolent attitude shown
by Denmark in the Spitzbergen question. But only in a note
at the beginning of 1923, was the theory that the two questions
were interdependent—as maintained before the Court—put
forward to Norway. Nevertheless, it is to be observed that
this interdependence was not referred to in the Protocol of
Closure of the Dano-Norwegian negotiations of January 28th,
1924, in which the Danish delegation expressly referred to the
Thien declaration as binding upon Norway.

98
DISSENTING OPINION BY M. VOGT II7

The correspondence with the Danish Minister in Paris was
known to the Danish Government and the Danish Minister
at Oslo, but unknown to M. Thlen. The Danish authorities,
having this correspondence in mind, gradually conceived an
idea of the import of the brief conversations with M. Ihlen,
differing from the idea which M. Ihlen himself could have
had, as he was unaware of the suggestions put forward regard-
ing the interdependence of the two questions of sovereignty.

It appears from the information supplied during the pro-
ceedings that the conversation of July r4th, 1919, was the
first notice that the Norwegian Government had of Denmark’s
aspirations. Thus, M. Ihlen was unprepared for the question ;
he mentioned the matter verbally and unofficially to his
colleagues, but no decision was taken by the Government. It
also appears from the information produced that M. Ihlen
made no enquiries into the question of Norwegian interests
in Eastern Greenland; he was not thinking of them when he
gave his verbal answer on July 22nd, 1910.

Norwegian hunters and fishermen had for a considerable
period engaged in their pursuits in Eastern Greenland,
unquestioned and unhindered by Denmark. Accordingly, it is
to be supposed that the Norwegian authorities had no know-
ledge of any grievance on the part of these Norwegian nationals.
Moreover, the Danish Government for its part had never
taken exception to these Norwegian activities and, in these
circumstances, it is easy to understand that these activities
should not at once have occurred to the minds of members
of the Norwegian Government ; this also explains how it was
that the fundamental interests of Norwegians, the questions of
law here in issue, the possible extension of the monopoly
and of the régime of exclusion to a region where no Eskimos
existed, had not at this time been examined by the Norwegian
Government. Norway had had no administrative connection
with Greenland for more than a century; and the traditions
of this connection were no longer familiar to the Norwegian
administration in 1919.

M. Ihlen gave his verbal answer a week after he had been
approached, whereas the declaration of the United States of
America on August 4th, 1916, was made after lengthy nego-
tiations. The United States were directly interested in Davis
Strait, and there can be no doubt that there had been inter-
course between Americans and the Eskimos -living along the
West coast of Greenland. |

It is true that the Norwegian Government, in the course
of the proceedings, produced a document dating from 1916
from which it appears that the Danish administration was
then contemplating the application of the régime of exclusion

13 99
DISSENTING OPINION BY M. VOGT 118

to the whole of Greenland. Nevertheless, the dispute between
the two Parties began some years after M. Ihlen’s declar-
ation, and it seems very unlikely that, prior to M. Ihlen’s
reply, there was any knowledge in Norway of documents
relating to the administration of Greenland and still less likely
that such documents had been studied.

If the Danish Government had approached Norway in
writing as she did the other Powers, the documents would
have been submitted to the competent authorities in Norway
and the matter would in all probability have taken a different
turn.

It might be said that M. Ihlen was guilty of negligence
on this occasion; but this criticism applies more strongly to
the Danish Government in the same connection. When it is
remembered that the action of the Danish Government was,
at all events in part, the outcome of Norwegian activity in
Eastern Greenland and that the attention of the Danish
Government had been specially drawn, shortly before, to these
Norwegian interests, and again when it is remembered that
the question concerned aspirations and plans conceived by
Denmark, it is reasonable to say that there was more serious
negligence on the part of the Danish Government than on
that of the Norwegian Government, which was unprepared
for the Danish démarche and did not regard its reply as a
definitive settlement of the matter.

It appears that the object of the conversations of July 14th
and 22nd, 1919, between M. Ihlen and M. Krag was, so
far as Denmark was concerned, to obtain a final and
binding promise; but, in that case, the form of the Danish
démarche leaves much to be desired. The outcome was a
verbal answer given by the Norwegian Minister for Foreign
Affairs, without any discussion between the two Governments
upon the substance of the question and without the question
having been examined in Norway. The responsibility for this
fatal omission rests first and foremost upon Denmark.

M. Ihlen, it is true, when making his declaration of
July 22nd, was speaking on behalf of the Norwegian Govern-
ment and promised that Norway would raise no difficulty in
the future settlement of this matter. Such a promise made
by the Minister for Foreign Affairs is, in principle, valid and
binding. But in the present case there are special circum-
stances. M. [hlen, when making his declaration, was labouring
under a fundamental and excusable misapprehension. I would
refer to M. Restad’s letter of July 20th, 1921, to the Danish
Minister at Oslo: “.... I have now received a communication
from Ihlen, whence it appears—as I thought—that, in
his conversation with M. Krag, he did not give it to be
understood that Norway would agree to the new territory

100
DISSENTING OPINION BY M. VOGT IIg

being placed under the Danish Monopoly.” This misappre-
hension on the part.of M. Ihlen was, in the first place, due
to the fact that the Danish request had been made verbally
and was not accompanied by the information given to the
other Powers regarding the extension of the monopoly and
régime of exclusion, which was, as subsequently explained by
Denmark, the real object of the démarche. This object was
explained in a note addressed on December rgth, 1921, by
the Danish Minister at Oslo to the Norwegian Ministry for
Foreign Affairs. In that note it is explained that the words
used in the American reply and quoted by M. Krag to
M. Ihlen: “.... to the Danish Government extending their
political and economic interests to the whole of Greenland’,
contemplated precisely the extension to the whole of Green-
land of the special regulations in question, i.e. the regulations
of the monopoly and régime of exclusion.

A promise given under such conditions has not the same
value as a promise which is not tainted by an error or defect.

M. Ihblen’s declaration clearly related to a future settle-
ment of the matter between the two Governments. Obviously,
the Danish Government, which was well aware of the Nor-
wegian interests on the East coast of Greenland, realized that
the future settlement must necessarily cover these interests ;
it would be contrary to common sense to contend that
the Norwegian interests could be put on one side during the
settlement in regard to which the Norwegian Minister for
Foreign Affairs had promised not to place difficulties in the
way of the Danish aspirations. The undertaking thus given
was, in the nature of things, based on the idea of reciprocity.
The two Parties were bound, after the Ihlen-Krag conversa-
tions, mutually to refrain from making difficulties when the
time came to effect a settlement between them. ,

Norway was honouring M. Ihlen’s promise when Denmark
suddenly broke off the negotiations for a mutual settlement.

On May 6th, 1921, the Danish Government obtained a royal
decision by virtue of which it attached all Greenland to the
Danish colonies and factories and to the Danish administration
of Greenland. Even at this date, when the Danish Government
had thus decided to break off all negotiations, the Norwegian
Government still preserved its conciliatory attitude. On May 7th,
the Norwegian Minister for Foreign Affairs, who was entirely
ignorant of the Danish decision of May 6th, suggested to the
Danish Minister at Oslo the following arrangement: the Nor-
wegian Government was to make a declaration corresponding
approximately to that of the American Government and
would, at the same time, in a separate note, point out that

IOI
DISSENTING OPINION BY M. VOGT . 20

this declaration was made subject to the reservation that
Norway did not abandon the rights above mentioned (namely,
the fishing and hunting rights of Norwegians). He added
that the Norwegian Government would doubtless favourably
consider any method which would lead to a settlement such
as has been indicated above; he did not attach so much
importance to the question of form.

On May roth, the Danish Government formally broke off the
negotiations in progress with the Norwegian Government by
means of the following note sent by the Danish Minister at Oslo:

“With regard to the Greenland question, I have received from
the Ministry for Foreign Affairs a telegram, the terms of wich I
venture to transmit to you:

‘The Ministry for Foreign Affairs does not desire any further
démarche to be made with a view to obtaining from the Norwe-
gian Government a written declaration, but desires to rest content
with the promise already made verbally on behalf of Norway.’”’

The reason for this unexpected action was that the Nor-
wegian Government, which was fully within its rights, wished
to settle the matter of Norwegian economic interests at the
same time as the question of sovereignty.

By a letter of July 2nd, the Danish Minister at Oslo
informed the Norwegian Minister for Foreign Affairs that the
whole of Greenland was closed.

By this rupture of the Dano-Norwegian negotiations, Den-
mark abolished the arrangement made with M. IThlen, and
the promise of the Norwegian Minister for Foreign Affairs
thereby ceased to be binding. Denmark’s failure to fulfil
the implicit obligation resulting for her from the Krag-Ihlen
agreement, gave the other Party the right to declare himself
released from his undertaking.

This was what happened.

Eighteen days after the notification of the closing of the
whole of Greenland, M. Restad, the Norwegian Minister for
Foreign Affairs, wrote to the Danish Minister in the following
terms :

“You will no doubt have to reckon with the fact that the
present Norwegian Government, like its predecessor, in agreement
with the opinion of other responsible circles, is unable to accept
an extension of Danish sovereignty over Greenland involving a
corresponding extension of the monopoly, to the detriment of
Norwegian interests.’”’

The Danish Government has argued before the Court that,
by this letter, Norway was not contesting the sovereignty of
Denmark over the whole of Greenland. The accuracy of this
allegation cannot be admitted. The Danish Government, in
its overtures to foreign Powers, had linked the question of

102
DISSENTING OPINION BY M. VOGT I2I

sovereignty and that of the monopoly so closely together that
it is impossible to treat them as separate in this connection.
The Danish Government had spoken of an extension of sover-
eignty, while—according to its own statement—it had in mind,
from beginning to end, the extension of the monopoly system.
In a memorandum, dated January x8th, 1021, from the Danish
Legation at Oslo to the Norwegian Minister for Foreign Affairs,
a description is given of the overtures made to the Great
Powers; it contains the following passage: “The Ministry
accordingly sent instructions, at the beginning of last March,
to its Ministers in. London, Paris, Rome and Tokyo, to
endeavour to obtain official recognition by the Governments in
question of Danish sovereignty over the whole of Greenland
urging, in support of the request, the actual position of Den-
mark in relation to Greenland; the best method of according
this recognition would, in the opinion of the Danish Govern-
ment, be for the said Governments to make declarations corre-
sponding to that already given by the United States.” But
during the present proceedings, the Danish Government has
laid considerable stress on the fact that the American reply
contained a definite and specific reference to the system of
monopoly, which Denmark was proposing to continue and to
develop. In the instructions sent to the Danish Ministers
abroad, this inseparable inter-connection, this unity in dualism,
was brought out by the words: “it is desirable that the
Danish Government should extend its care [for the Eskimos,
by means of the monopoly] by means of its sovereignty over
the whole of Greenland.”

The first overture, which was made verbally to the Norwe-
gian Government in July 1919, only touched on the question
of the recognition of sovereignty; and the second overture,
which was made in writing on January 18th, 1921, was also
concerned with the question of sovereignty, ‘‘an extension of
Danish sovereignty to the whole of Greenland’. But, as has
been already said, a later Danish note of December roth, 19217,
revealed that what was actually aimed at was the extension
of the monopoly system as well.

M. Iblen gave his reply without realizing this inseparable
inter-connection, and indeed without being able to suspect
its existence. However, when this connection became clear to
M. Restad, the latter stated that Norway could not accept
such a request for recognition by Denmark. The request
sought indeed to obtain everything: sovereignty plus monopoly,
monopoly plus sovereignty, ‘“‘[an extension of its] care by
means of its sovereignty’, That was indeed the object which
the Danish request had throughout had in view, and it was
this. request that Norway refused to accede to. M. Restad’s

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no was a rejection of the request for recognition of Danish
sovereignty, in the form in which it appeared when all
its aspects had been fully revealed. M. Restad’s letter of
July 2oth, 1921, contains, for that reason, a refusal to recognize
this sovereignty over the whole of Greenland, the recognition
of which Denmark had endeavoured by her overtures to obtain.

In this connection, some importance attaches to the fact
that in both the overtures made to the Norwegian Govern-
ment in 1910 and r92I—and not least in the latter of
these overtures—the Danish Government had shown that
it did not regard itself as possessing sovereignty over the
whole of Greenland. The conviction thus implanted in the mind
of the Norwegian Government led to certain consequences.

When one considers in succession the incomplete form of
the request made to M. Ihlen, the light which was sub-
sequently thrown on the plan for the extension of the mono-
poly and the régime of exclusion, the not very conciliatory
attitude of the Danish Government, when the Norwegian
Government desired to have a settlement of Norwegian econo-
mic interests in conjunction. with the recognition of Danish
sovereignty, and lastly, the Danish decision to close Eastern
Greenland on the ground, as was alleged, that Norway had
recognized the extension of Danish sovereignty, one is driven
to the conclusion that it would be contrary to all justice that,
after the rupture of the negotiations by Denmark in 1921,
Norway should still be regarded as bound by M. [fhlen’s
promise, and obliged to refrain from making difficulties in a
future settlement between the two countries.

It is necessary here to mention another fact which is of
some importance in this connection. By a declaration made
to the Danish Government on September 6th, 1920, the
British Government had reserved its right to be consulted, in
case Denmark should contemplate selling Greenland. This
British reservation, which was not rejected by the Danish
Government, was not communicated to the Norwegian Govern-
ment, to whom it presented, without doubt, considerable impor-
tance.

Keeping in view the realities of the case, I am thus led
to the conclusion that the Krag-Ihlen arrangement had lost
its binding force in Igai.

Since that time, the Norwegian Government has unceas-
ingly maintained that Denmark only possesses sovereignty
over a part of Greenland, and that Norway has not recognized
a Danish sovereignty extending to the whole country.

Nevertheless, in a note dated July 13th, 1923, the Norwe-
gian Government declared that it was prepared to enter into

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DISSENTING OPINION BY M. VOGT 123

fresh negotiations on ‘‘an entirely free basis”. The Norwegian
conception was given very definite expression in the Protocol
of Closure of the Danish-Norwegian negotiations, dated
January 28th, 1924. The Norwegian delegation declared therein
that all parts of Greenland, which were not effectively under
Danish administration, were terra nullius.

Accordingly, the Norwegian Government has consistently
maintained, ever since the breaking off of the negotiations
by the Danish Government in 1921, that it is not bound by
the Krag-Ihlen arrangement.

The reasons which I have set forth above lead me to
accept the submissions presented by the Norwegian Govern-
ment in regard to sovereignty, and for these reasons conse-
quently prevent me, to my regret, from signing the judgment
which the Court has delivered. I am, however, in agreement
with the conclusion of the judgment which deals with the
costs of the proceedings.

(Signed) BENJAMIN Vocr.

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