COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE AIB
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 53

STATUT JURIDIQUE DU GROËNLAND
ORIENTAL

ARRÊT DU 5 AVRIL 1933
XXVIme SESSION

1933

XXVIth SESSION
JUDGMENT OF APRIL 5th, 1933

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 53

LEGAL STATUS
OF EASTERN GREENLAND

SOCIÉTÉ D'ÉDITIONS A, W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY :
22

PERMANENT COURT OF INTERNATIONAL JUSTICE

1933.
April 5th.
General List :
No. 43.

TWENTY-SIXTH SESSION:

April 5th, 1933.

LEGAL STATUS
OF EASTERN GREENLAND

Norwegian declaration of occupation of July roth, 1931; its
legality and validity.

Danish title to sovereignty over Greenland resulting from à
continuous and peaceful exercise of the authority of. the State.
Facts establishing the will and intention to act as sovereign and the
display ov effective exercise of such authority (before 1915; after
1921).—Influence on this title of the steps taken by Denmark
between I915 and ro2x to obtain from the Powers recognition of
her -sovereigniy over all Greenland.

Engagements on the part of Norway involving recognition of
Danish sovereignty over Greenland, or an obligation not to dispute
that sovereigniy or not to occupy territory in Greenland: express
renunciation ; conclusion of international agreements implying
vecognition of Danish sovereignty: the “Ihlen declaration" (July
I9I9). .

Meaning of the term ‘“‘Greenland’’: colonized area or Greenland
as a whole. Burden of proof.

Treaty of Kiel of January r4th, 1814. Convention of Stockholm of
September Ist, 1819. Convention of Copenhagen of July oth, 1924,
and notes signed the same day by the Parties to the Convention.

JUDGMENT

Before: MM. Apatci, President; GUERRERO, Vice-President ;
Baron ROLIN-JAEQUEMYNS, Count RosTWoOROWSKI,
MM. FROMAGEOT, ANZILOTTI, URRUTIA, Sir CECIL Hurst,
MM. SCcHÜCkING, NEGULESCO, Jhr. van EYsINGA,
M. WaANG, Judges,; MM. Voct and ZAHLE, Judges ad hoc.

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LEGAL STATUS OF EASTERN GREENLAND 23

In the case concerning the legal status of certain territories
in Eastern Greenland,

between

the Royal Danish Government, represented by M. de Scave-
nius, Danish Minister at The Hague, and M. K. Steglich-
Petersen, Advocate at the Supreme Court of Denmark, as
Agents,

and

the Royal Norwegian Government, represented by M. Jens
Bull, Counsellor of Legation, as Agent, and by MM. Arne
Sunde and Per Rygh, Advocates at the Supreme Court of
Norway, as Agents and Counsel,

The Court,
composed as above,
delivers the following judgment :

By an Application instituting proceedings, filed with the
Registry of the Court on July 12th, 1931, in accordance with
Article 40 of the Statute and Article 35 of the Rules of Court,
the Royal Danish Government, relying on the optional clause
of Article 36, paragraph 2, of the Statute, brought before the
Permanent Court of International Justice a suit against the
Royal Norwegian Government on the ground that the latter
Government had, on July roth, 1931, published a proclama-
tion declaring that it had proceeded to occupy certain terri-
tories in Eastern Greenland, which, in the contention of the
Danish Government, were subject to the sovereignty of the
Crown of Denmark. The Application, after thus indicating
the subject of the dispute, proceeds, subject to the subsequent
presentation of any cases, counter-cases and any other docu-
ments or evidence, to formulate the claim by asking the Court
for judgment to the effect that “the promulgation of the
above-mentioned declaration of occupation and any steps
taken in this respect by the Norwegian Government constitute
a violation of the existing legal situation and are accordingly
unlawful and invalid’.

Further, the Danish Government, in the Application, reserves
the right, in the first place, to apply to the Court, should
circumstances. require it, for the indication of interim measures
for the protection of its rights and, in the second place, to
ask the Court to decide as to the nature of the reparation due
to the Danish Government in consequence of the Norwegian
Government’s act of which it complains.

On July 13th, 1931, notice of the Application was given to
the Norwegian Government ; on July r4th, the communications

5
LEGAL STATUS OF EASTERN GREENLAND | 24

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. | |

As the Court included upon the Bench no judge of the
nationality of the Parties, the Danish and Norwegian Govern-
ments availed themselves of their right, under Article 31..of
the Statute, each to appoint a judge ad hoc.

By an Order made on August 6th, 1931, the Court fixed
the times for the presentation of the Case, Counter-Case,
Reply and Rejoinder in the suit, in accordance with a propo-
sal made jointly by the Parties’ Agents on August 4th, 1931.
By an Order made on June 18th, 1932, at the request of
the Danish Government, the time-limit originally fixed for
the presentation of the Reply was extended, and the Nor-
wegian Government was given the right to ask for a
corresponding. extension of the time-limit fixed for the
Rejoinder ; the latter Government availed itself of this right,
and accordingly the time-limit last mentioned expired on
October r4th, 1932. The various documents of the written
proceedings having been duly filed within the time-limits as
finally fixed, the suit thus became ready for hearing on
October r4th, 1932.

' In the Danish Case, the Danish Government, in conformity
with Article 40 of the Rules of Court, asks, as stated in the
Application, for judgment to the effect that

“the promulgation of the declaration of occupation above men-
tioned and any steps taken in this connection by the Norwegian
Government constitute a violation of the existing legal situation
and are accordingly unlawful and invalid”.

Under the same Article of the Rules of Court, the Nor-
wegian Government, in its Counter-Case, asks for judgment to
the effect that

“Denmark has no sovereignty over Eirik Raudes Land;

Norway has acquired the sovereignty over Eirik Raudes Land ;
The Danish Government should bear the costs incurred by the
Norwegian Government in this case’.

The Danish Government, in its Reply, repeats the sub-
missions made in its Case, but also prays the Court to
reject the submission made in the Norwegian Counter-Case
and to adjudge

“that the Norwegian. Government shall bear the costs incurred by
the Danish Government in this case”.

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LEGAL STATUS OF EASTERN GREENLAND 25

The Norwegian Government repeats in its Rejoigder the
submissions made in its Counter-Case. .

In the course of a series of public sittings held between
November 21st, 1932, and February 7th, 1933, the Court
heard the statements, replies, rejoinders and observations
presented by : |

MM. Bœg, as Advocate, Gustav Rasmussen, as Deputy-
Advocate, M. Steglich-Petersen, Agent, and by M. Charles
de Visscher, as Advocate and Counsel, on behalf of Denmark,

and MM. Per Rygh and Arne Sunde, Agents and Counsel,
and by M. Gilbert Gidel, as Counsel and Advocate, on behalf
of Norway.

At the conclusion of the respective statements, the Parties’
Agents presented the submissions of the Governments repre-
sented by them as follows: |

M. de Scavenius, on behalf of the Danish Government :

“May it please the Court,
To reject as unfounded the three submissions in the Norwegian
Counter-Case of March 12th and 15th, 1932;

To give judgment to the effect that the declaration of occupation
promulgated by the Norwegian Government on July roth, 1931,
and any steps taken in this connection by that Government, con-
stitute a violation of the existing legal situation and are, accord-
ingly, unlawful and invalid ;

To decide that the Norwegian Government shall bear the costs
incurred by the Danish Government in this case.”

M. Bull, on behalf of the Norwegian Government :

“May it please the Court,

To reject the submissions presented by the Danish Government ;

To adjudge and declare that Denmark has no sovereignty over
Eirik Raudes Land;

That Norway has acquired the sovereignty over Eirik Raudes
Land ;

That the Danish Government shall bear the costs incurred by
the Norwegian Government in this case.”

A large number of documents, including memorials or
opinions on special points, and maps were filed on behalf
of each of the Parties, either as annexes to the documents of
the written proceedings or in the course of the hearings.

The Agent and Counsel for the Norwegian Government, in
the course of his oral rejoinder, adduced certain new docu-
ments, whereupon the Agent for the Danish Government,
invoking Articles 48 and 52 of the Statute, prayed the Court
to refuse to accept “‘the fresh facts adduced in the rejoinder’.
The point having thus been raised, and having regard also to
certain reservations made on behalf of Norway respecting
fresh documents used in the Danish oral reply, the Court

7
LEGAL STATUS OF EASTERN GREENLAND © 26

reserved the right to refuse the fresh documents produced
on either side in the oral reply and rejoinder and to
give the Danish Agent an opportunity of presenting obser-
vations on the fresh documents produced in the rejoinder.
M. Steglich-Petersen was in fact permitted to comment
on the documents in question and thereupon withdrew
his Government’s objection to this admission. Accord-
ingly, the Court declares that, in so far as the terms of
Article 52 of the Statute are applicable to the evidence
produced by one of the Parties to the case, the consent of the
other Party, which is required under that Article, may be
regarded as having been obtained.

The submission of the case being in all respects regular,
these are the circumstances in which the Court is now called
upon to give judgment.

*
* *

According to the royal Norwegian proclamation of July roth,
1931, which gave rise to the present dispute, the “country”
the “taking possession” of which “‘is officially confirmed” and
which is “placed under Norwegian sovereignty” is ‘situated
between Carlsberg Fjord on the South and Besse] Fjord on
the North, in Eastern Greenland’’, and extends from latitude
71° 30’ to 75° 40’ N. :

By “Eastern Greenland’ is meant the eastern coast of
Greenland. |

It must have been intended that on the eastern side the
sea and on the western side the ‘Inland Ice” should consti-
tute the limits of the area occupied under the proclamation
of July roth, though the proclamation itself is silent on the
subject. Indeed, Counsel for the Danish Government was
disposed to criticize the validity of the proclamation because
of the absence of any western limit of the occupation. This is
a point, however, which in view of the conclusions reached by
the Court need not be pursued.

Greenland, which extends from latitude 59° 46’ to 83° 39° N.
and from longitude 73° to 10° 33’ W., and the southernmost
point of which is in about longitude 63° W. of Greenwich, has
a total area of about 2,200,000 square kilometres; five sixths
of this area are covered by the “Inland Ice”, so that only a
narrow strip of varying width along the coasts is free of
permanent ice. It should be added that only in the last
years of the. xrxth century was it definitely established that
Greenland is not connected by land with the other parts of
the continent of America, i.e. that Greenland is an island.
LEGAL STATUS OF EASTERN GREENLAND 27

The climate and character of Greenland are those of an
Arctic country. The “Inland Ice” is difficult to traverse,
and parts of the coast—particularly of the East coast—are
for months together difficult of access owing to the influence
of the Polar current and the stormy winds on the icebergs
and the floe ice and owing to the frequent spells of bad
weather.

According to the information supplied to the Court by the
Parties, it was about the year goo A. D. that Greenland was
discovered. The country was colonized about a century later.
The best known of the colonists was Eric the Red, who was
an inhabitant of Iceland of Norwegian origin; it was at that
time that two settlements called Eystribygd and Vestribygd
were founded towards the southern end of the western coast.
‘These settlements appear to have existed as an independent
State for some time, but became tributary to the kingdom
of Norway in the xirith century. These settlements had
disappeared before 1500.

Information as to these early Nordic settlements and as
to the extent to which the settlers dominated the remainder
of the country is very scanty. It seems clear that the settlers
-made hunting journeys. far to the North on the western
coast, and records exist of at least one expedition to places
on the East coast. The historian, or saga writer, Sturla
Thordarson tells (about 1261) how the men of Greenland
undertook to pay tribute, and how, for every man murdered,
a fine should be payable to the King whether the dead man
was a Norwegian or a Greenlander and whether killed in the
settlements or in the districts to which people went for the
summer even as far North as under the Pole Star.

In 1380, the kingdoms of Norway and Denmark were united
under the same Crown; the character of this union, which
lasted until 1814, changed to some extent in the course of
time, more particularly as a result of the centralization at
Copenhagen of the administration of the various countries
which were under the sovereignty of the Dano-Norwegian
Crown. This evolution seems to have obliterated to some
extent the separation which had existed between them from a
constitutional standpoint. On the other hand, there is
nothing to show that during this period Greenland, in so far
as it constituted a dependency of the Crown, should not be
regarded as a Norwegian possession.

The disappearance of the Nordic colonies did not put an end
to the King’s pretensions to the sovereignty over Greenland.

The Norwegian Counter-Case describes the succeeding périod
as an era of unsuccessful efforts on the part of the Catholic
Church, of the Kings of Norway and Denmark and of their
subjects, to renew relations with the Norwegian colonies of

9
LEGAL STATUS OF EASTERN GREENLAND . 28

Western Greenland.. The passports delivered by the King to
the leader of two such expeditions—Godske Lindenow, a
Danish subject—at the beginning of the xvuth century
indicate the voyage as ‘ad terram nostram Grunlandiam”.
Some Eskimos brought back from Greenland in 1605 are
described by the King as “Our subjects’. In 1635, in a
letter addressed to the King of France, Christian IV de-
scribes Greenland as “a divis nostris antecessoribus Regibus
Norvegiæ ad Nos devoluta’. In 1636, the King gives a con-
cession to the Burgomaster and certain citizens of Copenhagen
for a monopoly of the navigation and trading in Greenland
and gives directions as to their dealing with “Notre pauvre peuple,
Nos sujets et habitants dudit pays’. In 1666, Frederick III
is said to have added a bear to the arms of the Danish
Monarchy as the emblem of Greenland.

Similarly, foreign countries appear to have acquiesced in
the claims of the King of Denmark. Both the States-General
of the United Provinces in 1631 and the King of France in
1636 intimated that they did not dispute the claims; and, by
the Treaty of Lund of September 27th, 1679 (7th Secret Article),
Sweden recognized the ancient rights and claims of the King
of Denmark over Greenland and the adjacent seas and coasts.

It is alleged on behalf of Norway that at this time the
word ‘“‘Greenland’’ was used to denote all the countries border-
ing on the seas to the North, including Spitzbergen and Nova
Zembla, as well as what is now called Greenland. It appears
that at this date there were in Spitzbergen no native inhabit-
ants, so that when mention is made of Eskimos brought
back from Greenland, as happened in 1605, it must be the
Greenland in the narrower sense that is referred to.

Though at this time no colonies or settlements existed in
Greenland, contact with it was not entirely lost, because the
waters surrounding it, especially on the East coast, were regu-
larly visited by whalers, and the maps of the period show
that the existence and the general configuration of Greenland,
including the East coast, were by no means unknown.

At the beginning of the xvirith century, closer relations
were once more established between Greenland and the coun-
tries whence the former European settlements on its coasts
had originated. In 1721, the pastor Hans Egede, of Bergen in
Norway, formed a “Greenland Company”, went to Greenland
as a missionary and founded a new colony there, which was
soon followed by other settlements. In 1723, this Company
was granted a concession placing at its disposal for twenty-
five years “the whole country of Greenland’”—the King simply
reserving his “sovereignty, absolutum dominium and hereditary

1 Translation supplied by the Danish Government.
Io
LEGAL STATUS OF EASTERN GREENLAND 29

rights’. The Company was, however, dissolved and, after an
interval during which the State itself took over the conduct
of Greenland affairs by means of a “Greenland Department”
attached to the Royal Chancellory, a fresh concession was
granted in 1734 to a certain Jacob Severin. In 1740, just
before the renewal of this concession—which comprised a
prohibition, applicable both to the King’s subjects and to
foreigners, of trading and navigation in Greenland contrary
to the terms of the concession—the King formed a ‘“Green-
land Commission” to which he entrusted matters arising out
of the concession. Furthermore, on the occasion of the rene-
wal of the concession, the King issued an Ordinance on April oth,
1740, prohibiting any person, whether a subject or a foreigner,
from doing business in breach of Severin’s concession in the
colonies already established in Greenland or to be established
thereafter, provided that the situation and limits of the
colonies (which were in general to extend to fifteen miles on
either side of each colony) were first published. The Ordi-
nance also prohibited all persons from robbing the Green-
landers or committing any acts of violence against them in
any place in Greenland, whether by land or sea.

Severin’s concession finally expired in 1750. In the follow-
ing year, a concession was granted to the already existing
“General Trading Company” of Copenhagen. The exclusive
privileges to be enjoyed by the Company were enforced by
an Ordinance of March 26th, 1751, enacting penalties against
persons acting in breach of the concession in terms very
similar to those of the Ordinance of 1740. Another Ordinance
of April 22nd, 1758, confirmed the previous one, but extended
its scope by including, in addition to the ‘Colonies and
factories already established or subsequently to be established”,
“other ports and localities in general without differentiation
or exception”.

In 1774, the State itself once more took over the Greenland
trade, which it administered by means of an autonomous
“Board”, and the King, on March 18th, 1776, issued an Ordi-
nance, which is still in force and which repeats the provi-
sions 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 Den-
mark. In 1781, ‘Regulations’ were made dividing ‘the
country” into a northern and a southern district ; the “‘inspec-
tors” set over these districts were not only entrusted with
the supervision of the monopoly’s trade, but were also given
powers of general administration.

During this period, settlements were established described
as colonies, factories or stations, along the West coast between

2 ‘ it
LEGAL STATUS OF EASTERN GREENLAND 30

latitude 60° 42’ and 72° 47’ N.; according to the Ordinance
of March 18th, 1776, the ‘Colonies and factories’? then exist-
ing extended from latitude 60° to 73° N. Attempts to reach
the East coast and effect a landing there were made from the
West coast of the island, but led to no results.

In the contention of Norway, the above-mentioned instru-
ments, when they speak of Greenland in general, mean the
colonized part of the West coast referred to above; Denmark,
on the contrary, maintains that the expressions in question
relate to Greenland in the geographical sense of the word,
i.e. to the whole island of Greenland.

The Napoleonic era profoundly affected the international
status of the Scandinavian countries, and also that of Green-
land. After Sweden had ceded Finland to Russia (180g), the
policy of the Allies against France made it possible for Sweden
to obtain the cession of the kingdom of Norway which until
then had been united to Denmark, who had supported France.
By a series of conventions concluded in 1812 and 1873,
Russia, Great Britain and Prussia supported Sweden’s aspira-
tions. After the Franco-Danish alliance had been renewed
on July roth, 1813, and war had broken out between Den-
mark, on the one hand, and Sweden and her allies, on the
other, the battle of Leipzig (October 1813) led to the
triumph of the Allied cause and the Swedish army com-
pelled Denmark to sign the Peace Treaty of Kiel, dated
January 14th, 1814, the fourth Article of which provided for
the cession to Sweden of the kingdom of Norway, excluding
however Greenland, the Færoe Isles and Iceland.

The two relevant paragraphs of Article 4 of the Treaty
of Kiel run as follows}:

“Article IV.—His Majesty the King of Denmark, for him-
self and his successors, renounces for ever and irrevocably all
his rights and claims on the kingdom of Norway, together
with possession of the Bishopricks and Dioceses of Christian-
sand, Bergenhuus, Aggerhuus, and Drontheim, besides Nord-
land and Finmark, as far as the frontiers of the Russian empire.

These bishopricks, dioceses,-and provinces, constituting the
kingdom of Norway, with their inhabitants, towns, harbours,
fortresses, villages, and islands, along the whole coast of that
kingdom, together with their dependencies (Greenland, the
Ferroe Isles, and Iceland, excepted); as well as all privileges,
rights, and emoluments there belonging, shall belong in full and
sovereign property to the King of Sweden, and make one
with his united kingdom.”

1 Translation as printed in the ‘Annual Register’ for 1814.
12

LEGAL STATUS OF EASTERN GREENLAND. 31

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 a
Convention signed at Stockholm on September 1st, 1870,
between Denmark of the one part and the United Kingdoms
of Sweden and Norway of the other part. It will be necessary,
in the later part of the present judgment, to revert to the
events of 1814 to 1819, as they are of special importance in
regard to the dispute concerning Greenland.

In the course of the xixth century and the early years
of the xxth, the coasts of Greenland were entirely explored.
For the purposes of the present case, it is only necessary to
note two dates: first, in 1822 the Scottish whaler Scoresby
made the first landing by a European in the territory covered
by the Norwegian declaration of occupation; secondly, about
1900, thanks to the voyages of the American Peary, the insu-
lar character of Greenland was established. It is admitted
by Norway that from the time of Scoresby’s landing the
East coast forms part of the known portion of Greenland.

Several Danish expeditions explored portions of the non-
colonized part of Greenland during the xixth century; first
in 1829-1830, the Graah expedition explored the East coast
south of Angmagssalik. Approximately the same part of the
East coast was again explored in 1883-1885 by the Holm
expedition which led, after some years, to the colonization,
in 1894, of Angmagssalik. The Ryder expedition in 1891-
1892 explored Scoresby Sound and the coast to the north
of this fjord, ie. a part of the coast occupied by Norway in
1931. In 1808-1900, the Amdrup expedition explored the
very inaccessible coast between Angmagssalik and a point
near the southern limit of the territory occupied in 1931.
In 1906-1908, the “Danmark Expedition” explored the whole
of the equally difficult East coast north of a point near the
northern end of the territory occupied in 1931 and north-
wards to the point reached by Peary when he explored the
coast from the western side. In 1926-1927, the Lauge Koch
expedition. explored the coast between Scoresby Sound and
Danmarkshavn comprising the whole of the territory occupied
in 1931. It results from this short summary that the whole
East coast has been explored by Danish expeditions. There
were, in addition, many non-Danish expeditions.

In 1863, the Danish Government granted to Mr. J. W. Tayler,
an Englishman, an exclusive concession for thirty years
to enable him to establish on the East coast of Green-

13
LEGAL STATUS OF EASTERN GREENLAND 32

land ‘‘stations for the purpose. of trading with the natives,
hunting, fishing, or working any metalliferous or other mineral-
bearing mines there discovered, or engaging in any other
business which he may consider to his advantage”; any sta-
tion of this kind which might thus be established “to the
north or south of the 65th degree of latitude North’ was to
be placed “under the sovereignty of the Danish Crown”.
All the papers with regard to the granting of the Tayler
concession have been submitted to the Court at the request
of the Norwegian Agent.

The Tayler concession led to no practical result: ‘The con-
cessionnaire was not able to establish any stations on the
East coast.

Between 1854 and 1886, applications were “made to the
Danish Government for the grant of several other concessions
for the erection of telegraph-lines in or across Greenland, or
for the grant of mining concessions. Some of these were
granted, some were refused. They all use the term ‘‘Green-
land” without qualification, and one at least provides for a
survey for a telegraph-line across Greenland from the eastern
‘to the western coast. These concessions also led to no prac-
tical result.

In 1894, at Angmagssalik, in latitude 65° 36’ N., the first
Danish settlement on the East coast was established. In
accordance with the provisions of the Ordinance of 1776,
mention of which has already been made, the foundation
of this ‘mission and trading station” was “made public”
by a Decree of October roth, 1894, notice of which was
given to the Minister for Foreign Affairs of Sweden and Nor-
way by a note from the Danish Minister at Stockholm ;
notice of the Decree was also given to the governments
of some other States. The papers in connection with the
establishment of this settlement have also been laid before
the Court and are of some importance, as will subsequently
appear.

As regards the limits of the colonized territory on the West
coast of Greenland, these were already in 1814 held to extend
from latitude 60° to latitude 73° N. These limits, which had
already been established by the Ordinance of March 18th,
1776, were confirmed by a Proclamation (“Notice to Mariners’)
of May 8th, 1884 On March 8th, 1905, however, a fresh
Proclamation was published to the effect that “the Danish
colonies on the West coast of Greenland .... extend from lati-
tude 60° to latitude 74° 30’ N.’’. Notice of the Proclamation
was given on November 2gth, 1905, to the Norwegian Minister

14
LEGAL STATUS OF EASTERN GREENLAND 33

for Foreign Affairs by the Danish Minister at Christiania‘;
it was observed, in the Danish note, that this involved an
extension by a degree and a half of the limit fixed in the
“Proclamation of 1884”.

In 1909, a private Danish society established a mission
station on the Northwest coast of Greenland, at Cape York, in
latitude 76° 32’ N.; in the following year, a trading and
research station known as “Thule” was founded in the same
locality by Danish explorers. Apparently, no notice of the
foundation of these stations was given to the Powers. Finally,
in 1925, another Danish trading and mission station was
established on the East coast at Scoresby Sound, in about
latitude 70° 30’ N. No special notice was given of the estab-
lishment of this station.

In 1905, a Decree was issued by the Danish Minister of
the Interior, fixing the limits of the territorial waters round
Greenland. The limits within which the fishing was stated
to be reserved for Danish subjects were to be drawn at a
distance of three marine miles along the whole coast of
Greenland. |

In 1908, a law was promulgated by Denmark relating to
the administration of Greenland. The colonies on the West
coast were divided into two districts, a northern and a
southern.

In 1921, a Decree was issued, running as follows ?:

“In pursuance of His Majesty’s authority dated the
6th instant, and with reference to the Royal Ordinance of
March 18th, 1776, know all men that Danish Trading, Mission and
Hunting Stations have been established on the. East and West
coasts of Greenland, with the result that the whole of that
country is henceforth linked up with Danish colonies and
stations under the authority of the Danish Administration
of Greenland.

Done at the Ministry of the Interior, May roth, 1921.”

1 The name of the capital of Norway was altered to Oslo on Janu-
ary ist, 1925. It is so described in the judgment in connection with events
subsequent to that date. |

2 Translation from the French text supplied by the Danish Government.
The translation supplied by the Norwegian Government reads as follows :

“In terms of His Majesty’s authority dated the 6th instant, and with
reference to the Royal Ordinance of March 18th, 1776, know all men
that Danish Trading, Mission and Hunting stations have been established
on the East and West coasts of Greenland, so that the whole of that
country is henceforth linked up with Danish colonies and stations and
with the Danish Administration of Greenland.

Done at the Ministry of the Interior, May oth, 1921.”
15
LEGAL STATUS OF EASTERN GREENLAND 34

This Decree was notified to the Powers during June and
July. It was followed on June 16th, 1921, by a Proclamation
(Notice to Mariners) concerning navigation in the seas around
Greenland, to the effect that the closing of the island to
Danish and foreign ships extended to “the whole of the
coasts and islands pertaining to Greenland”’.

Reference to these Decrees must again be made later.

Throughout this period and up to the present time, the
practice of the Danish Government in concluding bilateral
commercial conventions or when participating in multilateral
conventions relating to economic questions—such as those
concluded since 1921 under the auspices of the League of
Nations—has been to secure the insertion of a stipulation
excepting Greenland from the operation of the convention.
Only in one case—that of the conventions concluded with
Japan on February 12th, 1912—is the exception or the reser-
vation otherwise than in favour of “Greenland” or the “‘terri- _
tory of Greenland” without qualification ; in the conventions
with Japan, the exception is in favour of “the Danish colo-
nies in Greenland’.

With particular regard to the territory covered by the Nor-
wegian declaration of occupation of July roth, 1931, certain
circumstances invoked by the Parties concerning the exploita-
tion of the country are to be noted.

In 1919, the “Eastern Greenland Company” was founded
at Copenhagen; this was a limited company with extensive
resources at its disposal, and its aim was to conduct hunting
operations in the zone between Scoresby Sound and Germania-
havn (latitude 70° 30’ to 77° N.). The resources of this com-
pany, which built a number of houses and hunting cabins in
the district in order that its hunters might winter there, were
exhausted by 1924 and its operations ceased. The Danish
Government, which had taken over the company’s stations,
conceded the use of them to a new hunting company founded
in 1929, the Nanok Company, which carried on the operations
of the former company. The Nanok Company’s principal
station is equipped with wireless.

As regards Norwegian activities, in addition to visits to the
East coast paid periodically during the summer from 1889
onwards, expeditions wintered in the territory in question
in 1908 and rgo9, and again in 1922 and in 1926 and the
ensuing years. The expedition of 1922 established a provi-
sional wireless station at Mygg-Bukta (Mackenzie Bay), but
the Danish Government made a protest immediately against
its erection. Owing to the loss of a ship, this station ceased

16
LEGAL STATUS OF EASTERN GREENLAND 35

working in the following year. It began to function again in
1926, and since then this Mygg-Bukta station has been working
regularly. Since 1929 both hunting operations and the wireless
service have been carried on by a Norwegian company, the
Arktisk Neringsdrifit. The various Norwegian expeditions
also have built a large number of houses and cabins in the

disputed territory.

During the xixth century, while the Danish Government
made a practice of excluding “Greenland”, without qualifi-
cation, from the commercial conventions it concluded and in
other ways acted upon the assumption that Danish sovereignty
extended to the whole of Greenland, opinions were occasionally
expressed by private persons in Denmark interested in Green-
land to the effect that the absence of effective occupation
of the uncolonized parts exposed the territory to the risk
of permanent occupation by some foreign State. Thus, in
1823, after the landing of Scoresby on the East coast, a
M. Wormskjéld—who was a naturalist and an expert in Green-
land affairs—was consulted by the Danish Minister of State
and addressed to him a letter indicating the weakness of the
Danish position and the contentions which a foreign Power
might adduce in favour of a right to occupy the eastern coast.
It was, perhaps, as a result of this communication from
M. Wormskjéld that in 1829 the expedition mentioned above
under a naval officer named Graah was sent to visit the East
coast ; but no policy of colonization was then initiated.

Interest in Greenland, however, was gradually increasing
in Denmark, and in 1878 the Danish Government set up a
Commission for the study of the natural and ethnographic
phenomena of Greenland. This Commission has published a
large number of volumes containing reports on many questions
connected with Greenland, including the results of the scienti-
fic and exploring and cartographic expeditions to the country.

At the beginning of the present century, opinion again began
to be manifested in favour of the more effective occupation of
the uncolonized areas in Greenland, in order that the risk
of foreign settlement might be obviated.

During the Great War of 1914 to 1018, Denmark by treaty
ceded to the United States of America her West Indian Islands
—the Danish Antilles—and, during the negotiations for the conclu-
sion of the treaty, broached to the American Secretary of State—

17
LEGAL STATUS OF EASTERN GREENLAND 36

at first in conversation and subsequently, on December 27th,
1915, by a written communication—the question of the exten-
sion of Danish activities throughout all Greenland. As the
result, the United States signed on August 4th, 1916, the same
day as the treaty for the cession of the Antilles, a declaration
to the effect that the United States would not object to the
Danish Government extending their political and economic
interests to the whole of Greenland.

On July rath, 1919, the Danish Minister for Foreign Affairs
instructed the Danish Minister at Christiania that a Committee had
just been. constituted at the Peace Conference “‘for the purpose
of considering the claims that may be put forward by differ-
ent countries to Spitzbergen”’, and that the Danish Govern-
ment would be prepared to renew before this Committee the
unofficial assurance already given (on April 2nd, 19x9) to the
Norwegian Government, according to which Denmark, having
no special interests at stake in Spitzbergen, would raise no
objection to Norway’s claims upon that archipelago. In mak-
ing this statement to the Norwegian Minister for Foreign
Affairs, the Danish Minister was to point out “that the
Danish Government had been anxious for some years past to
obtain the recognition by all the interested Powers of Den-
mark’s sovereignty over the whole of Greenland, and that she
intended to place that question before the above-mentioned
Committee’; and, further, that the Danish Government felt
confident that the extension of its political and economic
interests to the whole of Greenland “would not encounter any
difficulties on the part of the Norwegian Government’.

On July r4th, 1919, the Danish Minister saw M. Ihlen, the
Norwegian Minister for Foreign Affairs, who merely replied on
this occasion “that the question would be considered”. The
Norwegian Minister recorded his conversation with the Danish
representative in a minute, the accuracy of which has
not been disputed by the Danish Government. On July 22nd
following, M. Ihlen made a statement to the Danish Minister
to the effect “that the Norwegian Government would not
make any difficulties in the settlement of this question” (i.e.
the question raised on July 14th by the Danish Government).
These are the words recorded in the minute by M. Ihlen
himself. According to the report made by the Danish
Minister to his own Government, M. Ihlen’s words were that
“the plans of the Royal [Danish] Government respecting
Danish sovereignty over the whole of Greenland .... would
meet with no difficulties on the part of Norway”. It is this

18
LEGAL STATUS OF EASTERN GREENLAND 37

statement by the Norwegian Minister for Foreign Affairs which
is described in this judgment as the “Thlen declaration”’.

In xg20, the Danish Government approached the Govern-
ments in London, Paris, Rome.and Tokyo with a view to
obtaining assurances from these Governments on the subject of
the recognition of Denmark’s sovereignty over the whole
of Greenland. Each of those Governments replied in terms
which satisfied the Danish Government—-which thereupon, in
Ig2I, approached the Swedish and Norwegian Governments
as the only other Governments interested. The communication
to the Swedish Government was dated January x3th, and
that to the Norwegian Government January 18th.

The Swedish Government made no difficulty. The Norwegian
Government was not prepared to adopt the same attitude
unless it received an undertaking from the Danish Govern-
ment that the liberty of hunting and fishing on the East
coast (outside the limits of the colony of Angmagssalik), which
Norwegians had hitherto enjoyed, should not be interfered
with. This undertaking the Danish Government was unwilling |
to give, as it alleges that it would have involved a reversal
of the policy which Denmark had hitherto followed of endeav-
ouring to shield the Eskimo people of Greenland on grounds
of health from uncontrolled contact with white races: such a
policy could not be maintained unless control could be exer-
cised over those having access to the territory.

The terms of the correspondence in which the Danish
Government sought and received assurances from the interested
Powers as to Denmark’s position in Greenland, are so important
that they will be discussed in detail later.

As regards the discussion with the Norwegian Government :
as soon as it became clear that the Norwegian Government
was unwilling to give the desired assurances, the Danish
Government, in May 1921, instructed its Minister at Christiania
that no further application was to be made and said that
it would rest content with the verbal undertaking given by
M. Ihlen in 1919. The Decree of May roth, r921, referred to
above, was then issued. The reason given for acting some-
what hastily was that May I2th was the zooth anniversary
of the day when Hans Egede sailed from Bergen to found
his colonies in Greenland and the occasion was to be marked
by suitable solemnities. |

During the latter half of the year 19217 and during the
two succeeding years, diplomatic correspondence continued

3 19
.: LEGAL STATUS OF EASTERN GREENLAND 38

between the Danish and Norwegian Governments. This
correspondence need not be described in detail. The general
effect of it is to show the points on which the two Govern-
ments were at issue.

On the Danish side there was evinced willingness to make
every effort to satisfy the desire of the Norwegian Govern-
ment that Norwegians should be able to continue to fish and
hunt on the East coast of Greenland but a determination not
to give way on the claim to sovereignty. On the Norwegian
side it was gradually made clear that, in the opinion of the
Norwegian Government, the uncolonized part of the East
coast of Greenland was a terra nullius, and that .Denmark’s
political aspirations could only be met if it involved no
sacrifice of Norwegian economic interests. This disagreement,
‘ however, on the point of principle as to the status of the
territory did not exclude a mutual desire to find a practical
solution of the fishing and hunting questions.

On July r3th, 1923, the Norwegian Minister for Foreign Affairs
informed the Danish Minister at Christiania that, on the 7th of
that month, the Storting had passed a resolution calling on the
Norwegian Government ‘to invite the Danish Government to
enter into negotiations on the question of Greenland, the said
negotiations to be conducted on a free basis between represen-
tatives specially appointed for that purpose by the two coun-
tries’. The Danish Government accepted the invitation (note
of July 30th, 1923); the two Governments agreed that the
negotiations would have the effect of suspending the exchange
of views through diplomatic channels, but that, in case they
proved unsuccessful, the legal.situation would remain unaffected.

Negotiations began in September 1923. In their early
stages, they covered the Greenland question generally, but
as they progressed, points on which no agreement could be
reached were eliminated: On January 28th, 1924, the negotia-
tions resulted in the approval of a draft agreement, which the
delegations recommended for adoption by their respective
Governments. On July goth, 1924, the latter signed a Conven-
tion applicable to the whole eastern coast of Greenland, except-
ing the district of Angmagssalik (and, in a certain eventuality,
that. of Scoresby Sound); the Convention was to come into
force as from July roth, 1924, for a first period of twenty
years.

Under Article 2, ships were to have free access to the
East coast, and their crews and persons on board were
given the right to land, to winter in the territory and

20
LEGAL STATUS OF EASTERN GREENLAND 39

to hunt and fish. Under Article 5, the erection of meteo-
rological, telegraphic and telephonic stations was authorized.

Simultaneously with the Convention, notes were signed by
each Government to the effect that it signed the Convention
in order to avoid disputes and to strengthen friendly relations
between the two Powers, and that it reserved its opinion on
questions concerning Greenland not dealt with in the Conven-
tion, so that by the Convention nothing was prejudged,
abandoned or lost.

It is apparent from the documents filed with the Court, :
in particular from the Protocol signed at the twelfth and last
meeting of the delegations held at Christiania on January 28th,
1924, that 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 Nor-
wegian contention that all the parts of Greenland which had
not been occupied in such a manner as to bring them effec-
tively under the administration of the Danish Government were
in the condition of fevre nullius, and that if they ceased. to
be terre nullius they must pass under Norwegian sovereignty.

On July 8th, 1924, the Danish Directorate of the Greenland
Colonies issued a Decree dated July 5th, adverting to the
Proclamation of June 16th, 1921, referred to above, and announ-
cing that the Danish Government would permit Danish vessels
and persons on board of them to navigate “until further
notice” to the territory (which was subsequently specified in
detail by the Convention of July goth), subject to conditions
which were identical with those laid down later in the Conven-
tion; the Decree added that the permission granted would
be applicable also to nationals, vessels and companies of
Iceland and of foreign nations with which the Danish Govern-
ment should conclude an agreement. This act occasioned reserva-
tions on the part of the Norwegian Government.

On April Ist, 1925, the Danish Government. promulgated a
law ‘on fishing and hunting in Greenland waters”, etc.; this
-was followed, on April 18th, by a law ‘concerning the adminis-
tration of Greenland’. The former law—which served as
the basis for a Proclamation (“Notice to Mariners’) dated
May 22nd, 1925, by the Greenland Directorate ‘‘on navigation
in the seas around Greenland’’—reserved this hunting and
fishing in Greenland waters exclusively for Danish subjects
(including Eskimos) settled in Greenland, and for persons
obtaining special licences, subject to the terms of the above-
mentioned Decree of July 5th, 1924 (which contains in sub-
stance the provisions of the Convention of the goth of that

2I
LEGAL STATUS OF EASTERN GREENLAND 40

month). The second law divided Greenland, from an adminis-
trative point of view, into three provinces, and laid down
that ‘‘all commercial activities in Greenland are reserved to
the Danish State under the direction of the Ministry of the
Interior”. On August 8th, 1925, Norway made “categorical
reservations” against the latter law, “in so far as it applies to
regions where the sovereignty of Denmark has not hitherto
been demonstrated’.

During the year 1925, the British and French Governments
requested the Danish Government to grant most-favoured-
nation treatment—i.e. the treatment accorded to. Norwegian
subjects by the Convention of July 9th, 1924—to ‘their respec-
tive subjects in Eastern Greenland. Denmark granted. these
requests, and the arrangements concluded on the subject took
the form of two exchanges of notes (notes of April 23rd and
June 4th, 1925, and of October rzth and rgth, 1925). When
Norway learned of these exchanges of notes, she drew the
attention of Great Britain and France, on September 25th and
November 2nd, 1925, to the fact that ‘‘she had not recognized
Danish sovereignty over the whole of Greenland’; the Norwe-
gian Government caused the Danish Government. to be informed
of this step. Similar communications were also made by
the Norwegian Government to all the other Powers whom it
regarded as being interested.

Subsequently, the question of Danish sovereignty over the
eastern coast of Greenland appears not to have been raised
for nearly five years. But, in the summer of 1930, the Nor-
wegian Government conferred police powers on certain Norwe-
gian nationals ‘‘for the inspection of the Norwegian hunting
stations in Eastern Greenland”. Denmark became uneasy at
this action, and intimated to the Norwegian Government, at
first verbally, and afterwards—on December 26th, 1930—in
writing, that she could not countenance the granting of regu-
lar police powers to Norwegian nationals in territories situated
in Greenland, seeing that these territories were, in the Danish
view, subject to Danish sovereignty. On January 6th, 1931,
the Norwegian Government replied that, in accordance with
the standpoint which it had reserved in its note of July oth,
1924, Eastern Greenland constituted a terra nullius, and that,
consequently, it was “fully entitled’ to invest Norwegian
nationals in this territory with police powers in respect of
Norwegian nationals and other persons domiciled in Norway.

The year 1930 also witnessed the inauguration by Denmark
of a “three years plan” for scientific research in “the central
part of Eastern Greenland, i.e. the district between Scoresby

22
LEGAL STATUS OF EASTERN GREENLAND 41

Sound and Danmarkshavn’. In a note dated February 20th,
1931, from the Norwegian Minister at Copenhagen to the
Danish Minister for Foreign Affairs, the Norwegian Govern-
ment pointed out that ‘this important enterprise, whose
object was not purely scientific but also had a practical aim
of colonization, would be operating in the portion of Eastern
Greenland which has been frequented for many years past by
Norwegian hunters .... and wheré there are Norwegian inter-
ests of particular importance”. The note further “strongly
urged the Danish Government, in the interests of both coun-
tries, to do everything in its power to ensure 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 Nor-
wegian hunters in that country”.

It is in these events of 1930, and in the reactions which
they provoked, that the immediate origin of the present dis-
pute is to be sought.

On March xith, 1931, the Danish Government replied to
the Norwegian observations on the “three years plan”, and on
March 14th it informed the Norwegian Government, linking
the question of police powers to that of the ‘‘three years”
expedition, ‘that it thought it necessary, in accordance with
the point of view expressed by the Danish Government in
its note of July gth, 1924, in connection with this expedition
to provide for police supervision, with powers extending to all
persons in the territory in question in Eastern Greenland”.
A prolonged diplomatic discussion ensued, during which it
seemed as if the Governments were inclining towards an agree-
ment to refrain from raising during the life of the Convention
of 1924 questions concerning the differences on matters of prin-
ciple which had not been settled by that Convention, in order
to ensure a peaceful development of the situation in Eastern
Greenland. On June 30th, the Norwegian Government request-
ed the Danish Minister at Oslo to confirm that the Danish
Government was agreed that, during the life of the Conven-
tion, no police authority, whether Norwegian or Danish, should
be established in Eastern Greenland, and that no other act of
sovereignty should be accomplished therein by Norway or by
Denmark.

The Danish reply, which was given on July 3rd, was in the
negative. The Danish Government held that the proposed
arrangement would go beyond the limits of the Convention of
1924, and would moreover constitute a recognition of the
contention upheld by Norway in 1924 (the éerra nullius theory)
and would be inconsistent with the fundamental standpoint
maintained at that time by Denmark (theory of Danish :

23
LEGAL STATUS OF EASTERN GREENLAND . 42

sovereignty over the whole of Greenland). In these circumstances,
the Danish Government preferred to seek a solution for the
existing differences in conciliation or in judicial settlement
by the Permanent Court of International Justice. The Norwe-
gian Government consented to submit the question to the
Court by a Special Agreement; it suggested, however, on
July 7th, that the Court should be asked “to adjudicate on the
basis of the situation, in fact and in law, as existing on
July rst, 1931”, and that in case the Court should find that
“Denmark had not acquired sovereignty over Greenland or
over part thereof’, the Danish Government would not oppose
“the acquisition by Norway of sovereignty over the regions in
question”.

The Danish Government replied to this suggestion by a note
of July roth, which contains the following passage:

“The Danish” Government does not intend, in the course of the
examination of the case, to take any surprise action, or any step
calculated to modify the existing situation at law, provided always
that Norway refrains from any step which would necessitate action
on the part of Denmark. The Danish Government naturally pre-
sumes that the Norwegian Government, for its part, likewise intends
to refrain from any such action. The Danish Government is, how-
ever, of opinion that the judgment should be given on the basis
of the general situation, as it has evolved during a long period of
time, and is unable to believe that action taken by either side, in
the present preparatory stage of the case, or during its examin-
ation, could in any way influence the judgment. It regards the
Norwegian Govérnment’s declaration, that the situation existing on
July ist should form the basis of the decision, as evidence that the
said Government concurs that no action taken during the examin-
ation of the case could possess decisive importance. For the rest,
the Danish Government holds that it must be left to the Court to
‘decide what. considerations of law or of fact must be taken into
account for a decision of the case?,”

The Danish Government further proposed in the same note
that the Special Agreement should be drawn up “by direct
negotiations between representatives appointed for that pur-
pose”.

In the meanwhile, on June 28th, 1031, certain Norwegian
hunters had hoisted the flag of Norway in Mackenzie Bay
in Eastern Greenland, and announced that they had occupied
the territory lying between Carlsberg Fjord, to the South,
and Bessel Fjord, to the North, in the name of the King of
Norway. In reply to a Danish enquiry, occasioned by this

1 Translation by the Registry from the French translation filed by the
Danish Government.

24
LEGAL STATUS OF EASTERN GREENLAND 43

news, the Norwegian Minister for Foreign Affairs stated, on
July rst, that more detailed information ‘would be obtained
from the persons who had carried out the occupation; that
the Government would then decide on its future attitude;
but that the occupation in question was ‘an entirely private
act, which will not influence our policy’. In its note of
July 3rd, referred to above, the Danish Government observed
that it had taken due note of this part of the Norwegian
Minister’s statement.

The Danish note of July roth, already mentioned, had been
preceded on July 5th and 6th by an exchange of views
between the Danish Minister at Oslo and the Norwegian
Minister for Foreign Affairs in reference to a Danish sugges-
tion that, during the negotiations for the proposed Special
Agreement, Denmark would not take any surprise action
capable of modifying the existing situation at law, or resort
to any tactical measures. It is argued, on behalf of Denmark,
that this offer was manifestly made subject to reciprocity,
and that an agreement was reached in that sense. On behalf
of Norway, the opposite contention is maintained.

Finally, on July roth, 1031, in a note verbale addressed
by the Norwegian Minister for Foreign Affairs to the Danish
Minister at Oslo, the Norwegian Government stated that,
“having regard to the legal position of Norway in the pro-
ceedings before the Court”, it “had felt obliged to proceed,
in virtue of a Royal Resolution of the same date, to the
occupation of the territories in Eastern Greenland situated
between latitude 71° 30’ and 75° 40’ N.” The Royal Reso-
lution in question was worded as follows:

ce

i. The occupation of the country in Eastern Greenland
between Carlsberg Fjord on the south and Bessel Fjord on the
north, carried out on June 27th, 1931, is officially confirmed, so
far as concerns the territory extending from latitude 71° 30° to
latitude 75° 40’ N., and the said territory is placed under Nor-
wegian sovereignty.

2. Messrs. Hallvard Devold and Herman Andresen are invested
with police powers in the aforesaid territory, viz., M. Devold
in respect of the district south of Clavering Fjord and
M. Andresen in respect of the district to the north of the said
fjord 1.”

The territory covered by this Resolution was denominated _
by Norway “Eirik Raudes Land”.

The contents of the Resolution were notified to the Powers
whom Norway regarded as being interested.

1 Translation by the Registry from the French translation filed by the
Norwegian Government.

25
LEGAL STATUS OF EASTERN GREENLAND 44

On the following day—July rrth, 1931—the Danish Govern-
ment informed the Norwegian Government that it had “sub-
mitted the question” on the same day “to the Permanent
Court of International Justice”. The Danish Application
instituting proceedings was filed with the Registry, as already
stated, on July 12th, 1931.

* * +

The Danish submission in the written pleading, that the
Norwegian occupation of July roth, 1931, is invalid, is
founded upon the contention that the area occupied was at
the time of the occupation subject to Danish sovereignty ;
that the area is part of Greenland, and at the time of the
occupation Danish sovereignty existed over all Greenland ;
consequently it could not be occupied by another Power.

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. This proposition Denmark sets out to establish
as a fact. 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 Norwegian submissions are that Denmark possessed
no sovereignty over the area which Norway occupied on
July roth, r93z, and that at the time of the occupation the
area was terra nuilius. Her contention is that the area lay
outside the limits of the Danish colonies in Greenland and
that Danish sovereignty extended no further than the limits
of these colonies.

Other contentions were also developed in the course of
the proceedings.

On the Danish side it was maintained that the promise
which in 191g the Norwegian Minister for Foreign Affairs,
speaking on behalf of his Government, gave to the diplo-
matic representative of the Danish Government at Chris-
tiania debarred Norway from proceeding to any occupation
of territory in Greenland, even if she had not by other acts
recognized an existing Danish sovereignty there.

In this connection Denmark has adduced certain other
undertakings: by Norway, eg. the international under-
takings entered into by that country for the pacific settle-
ment of her disputes with other countries in general, and
with Denmark in particular.

26
LEGAL STATUS.OF EASTERN GREENLAND | 45

On the Norwegian side it was maintained 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
over all Greenland, and that in the circumstances she is now
estopped from alleging a long established sovereignty over
the whole country.

The two principal propositions advanced -by the Danish
Government will each be considered in turn.

I.

’ The first Danish argument is that the Norwegian occupa-
tion of part of the East coast of Greenland is invalid because
Denmark has claimed and exercised sovereign rights over
Greenland as a whole for a long time and has obtained
thereby a valid title to sovereignty. The date at which such
Danish sovereignty must have existed in order to render the
Norwegian occupation invalid is the date at which the occu-
pation took place, viz., July roth, 1937.

The Danish claim is not founded upon any particular act
of occupation but alleges—to use the phrase employed in
the Palmas Island decision of the Permanent Court of Arbi-
tration, April 4th, 1928—a title “founded on the peaceful
and continuous display of State authority over the island”.
It is based upon the view that Denmark now enjoys all the
rights which the King of Denmark and Norway enjoyed over
Greenland up till 18r4. Both the existence and the extent
of these rights must therefore be considered, as well as the
Danish claim to sovereignty since that date.

It must be borne in mind, however, that as the critical
date is July roth, 1931, it is not necessary that sovereignty
over Greenland should have existed throughout the period
during which the Danish Government maintains that it was
in being. Even if the material submitted to the Court might
be thought insufficient to establish the existence of that sov-
ereignty during the earlier periods, this would not exclude a
finding that it is sufficient to establish a valid title in the
period immediately preceding the occupation.

Before proceeding to consider in detail the evidence sub-
mitted to the Court, it may be well to state that a claim to
sovereignty based not upon some particular act or title such
as a treaty of cession but merely upon continued display of
authority, involves two elements each of which must be shown

4 ; 27
LEGAL STATUS OF EASTERN GREENLAND 46

to exist: the intention and will to act as sovereign, and some
actual exercise or display of such authority.

Another circumstance which must be taken into account by
any tribunal which has to adjudicate upon a claim to sover-
eignty over a particular territory, is the extent to which the
sovereignty is also claimed by some other Power. In most of
the cases involving claims to territorial sovereignty which have
come before an international tribunal, there have been two
competing claims to the sovereignty, and the tribunal has had
to decide which of the two is the stronger. One of the
peculiar features of the present case is that up to 1931 there
was no claim by any Power other than Denmark to the sover-
eignty over Greenland. Indeed, up till 1921, no Power dis-
puted the Danish claim to sovereignty.

It is impossible to read the records of the decisions in cases
as to territorial sovereignty without observing that in many
cases the tribunal has been satisfied with very little in the
way of the actual exercise of sovereign rights, provided that
the other State could not make out a superior claim. This
is particularly true in the case of claims to sovereignty over
areas in thinly populated or unsettled countries.

In the period when the early Nordic colonies founded by
Eric the Red in the xth century in Greenland were in exist-
ence, the modern notions as to territorial sovereignty had not
come into being. It is unlikely that either the chiefs or the
settlers in these colonies drew any sharp distinction between
territory which was and territory which was not subject to them.
On the other hand, the undertaking (1261) recorded by Sturla
Thordarson that fines should be paid to the King of Norway
by the men of Greenland in respect of murders whether the
dead man was a Norwegian or a Greenlander and whether
killed in the settlement or even as far to the North as under
the Pole Star, shows that the King of Norway’s jurisdiction
was not restricted to the confines of the two settlements of
Eystribygd and Vestribygd. So far as it is possible to apply
modern terminology to the rights and pretensions of the kings
of Norway in Greenland in the xirith and xivth centuries,
the Court holds that at that date these rights amounted to
sovereignty and that they were not limited to the two settle-
ments.

It has been argued on behalf of Norway that after the
disappearance of the two Nordic settlements, Norwegian
sovereignty was lost and Greenland became a terra nullius.

28
LEGAL STATUS OF EASTERN GREENLAND 47

Conquest and voluntary abandonment are the grounds on which
this view is put forward.

The word ‘‘conquest” is not an appropriate phrase, even if
it is assumed that it was fighting with the Eskimos which led
to the downfall of the settlements. Conquest only operates
as a cause of loss of sovereignty when there is war between
two States and by reason of the defeat of one of them
sovereignty over territory passes from the loser to the vic-
torious State. The principle does not apply in a case where
a settlement has been established in a distant country and its
inhabitants are massacred by. the aboriginal population. Nor
is the fact of “conquest” established. It is known now that the
settlements must have disappeared at an early date, but at
the time there seems to have been a belief that despite the
loss of contact and the loss of knowledge of the whereabouts
of the settlements one or both of them would again be
discovered and found to contain the descendants of the early
settlers.

As regards voluntary abandonment, there is nothing to show
any definite renunciation on the part of the kings of Norway
or Denmark.

During the first two centuries or so after the settlements :
perished, there seems to have been no intercourse with Green-
land, and knowledge of it diminished; but the tradition of
the King’s rights lived on, and in the early part of the
xvutth century a revival of interest in Greenland on the part
both of the King and of his people took place.

That period was an era of adventure and exploration.
The example set by the navigators of foreign countries was
inspiring, and a desire arose in Norway and Denmark to
recover the territory which had been subject to the sovereignty
of the King’s ancestors in the past. The expeditions sent out
in 1605 and 1606 under Lindenow to “Our Country of Green-
land’, the efforts to assure respect on the part of foreign
Powers for the King’s rights there and the claim to exclude
foreigners from the Greenland trade all show that the King
considered that in his dealings with Greenland he was dealing
with a country with respect to which he had a special position
superior to that of any other Power. This special position
can only have been derived from the sovereign rights which
accrued to the King of Norway from the submission made to
him by the early Nordic settlers and which descended to the
Danish-Norwegian kings. It must have covered the territory
which is known as Greenland to-day, because the country
was inhabited. The expedition in 1605 brought back some
of the inhabitants, whereas Spitzbergen was admittedly unin-
habited. Lastly, as there were at this date no colonies or

29
LEGAL STATUS OF EASTERN GREENLAND 48

settlements in Greenland, the King’s claims cannot have been
limited to any particular places in the country.

That the King’s claims amounted merely to pretensions
is clear, for he had no permanent contact with the country,
he was exercising no authority there. The claims, however,
were not disputed. No other Power was putting forward any
claim to territorial sovereignty in Greenland, and in the
absence of any competing claim the King’s pretensions to be
the sovereign of Greenland subsisted.

After the founding of Hans Egede’s colonies in 1721, there
is in part at least of Greenland a manifestation and exercise
of sovereign rights. Consequently, both the elements neces-
sary to establish a valid title to sovereignty—the intention
and the exercise—were present, but the question arises as
to how far the. operation of these elements extended.

The King’s pretensions to sovereignty which existed at
the time of the foundation of the colonies are sufficient to
demonstrate the intention, and, as said above, these were
not limited to any particular part of the country.

Was the exercise of sovereign rights such as to confer
a valid title to sovereignty over the whole country? The
founding of the colonies was accompanied by the grant of
a monopoly of the trade, and before long legislation was
found to be necessary to protect and enforce the monopoly.
In the earlier Ordinances of 1740-1751, issued at the time
when Jacob Severin was the grantee of the monopoly, the
prohibition of trading was restricted to the colonies, but
those Ordinances also contained a prohibition of injurious
treatment of the Greenlanders, and this was not limited to
the colonies but operated in Greenland as a whole. Further-
more, the prohibition of trading was to apply not only in
the existing colonies but in any future colonies which might
be established. Legislation is one of the most obvious forms
of the exercise of sovereign power, and it is clear that the
operation of these enactments was not restricted to the
limits of the colonies. It therefore follows that the sovereign
right in virtue of which the enactments were issued cannot
have been restricted to the limits of the colonies.

The Ordinance of 1758 and that of 1776 (which is still in
force) also operated beyond the limits of the colonies: under
these Ordinances, the prohibition on trading is no longer re-
stricted to the colonies but is to apply “in all places what-
ever’. This extension in the area of the monopoly is reflected
in the terms of the commercial treaties of the period. The

30
LEGAL STATUS OF EASTERN GREENLAND 49

treaties before 1758 (those of 1742 between Denmark and
France, of 1748 between Denmark and the Two Sicilies and
of 1756 between Denmark and the Republic of Genoa) make
an exception for the trade “with His Majesty’s colonies in
Greenland”. The notes exchanged with Russia in 1782 relate
to “Greenland” in general.

Norway has argued that in the legislative and admin-
istrative acts of the xvuith century on which Denmark relies
as proof of the exercise of her sovereignty, the word “Green-
land” is not used in the geographical sense, but means only
the colonies or the colonized area on the West coast.

This is a point as. to which. the burden of proof lies on
Norway. The geographical meaning of the word “Greenland”,
i.e. the name which is habitually used in the maps to denom-
inate the whole island, must be regarded as the ordinary
meaning of the word. If it is alleged by one of the Parties
that some unusual or exceptional meaning is to be attributed
to it, it lies on that Party to establish its contention. In
the opinion of the Court, Norway has not succeeded in estab-
lishing her contention. It is not sufficient for her to show
that in many of these legislative and administrative acts
action was only to be taken in the colonies. Most of them
dealt with things which only happened in the colonies and
not in the rest of tue country. The fact that most of these
acts were concerned with what happened in the colonies
and that the colonies were all situated on the West coast
is not by itself sufficient ground for holding that the author-
ity in virtue of which the act was taken—whether legis-
lative or administrative—was also restricted to the colonized
area. Unless it was so restricted, it affords no ground for
interpreting the word “Greenland” in this restricted sense.

The terms of some of these documents give no support
to the Norwegian view. As shown above, the Ordinances of
1740, 1751, 1758 and 1776 purport to operate in Greenland
generally. If the terms of these Ordinances are examined
closely, they do not bear out the view that ‘‘Greenland” means
only the colonized area. In the Ordinance of 1758, for
instance, the word “Greenland” is used three times. First,
the Ordinance recites the concession held by the Company
“de naviguer et commercer seule dans les colonies par Nous
établies dans Notre pays de Groénland....”; then it recites
that the King has learned with great displeasure that certain
foreigners repair annually to Greenland “ ow, par un
commerce illicite auquel ils se livrent tant dans les ports
qu’en dehors, tls .... exercent toutes sortes de violences contre

31
LEGAL STATUS OF EASTERN GREENLAND 50

les habitants....”, and then the King, “comme souverain seigneur
héréditaire du Groënland et des îles en dépendant....”, proceeds
to re-enact and to extend the prohibitions contained in the
previous Ordinances 1.

There is nothing to show that the word ‘Greenland’ is
not used all through the Ordinance in the same sense. The
Ordinance is issued by the King as Hereditary Sovereign of
Greenland. It has been shown above that the rights and
pretensions which the King derived from his ancestors as
kings of Norway were not limited to any particular part of
Greenland, because no colonies existed at the time, but
extended to the whole country. Again, the colonies are
described as colonies established 7 Greenland, so that the
colonies and Greenland cannot have coincided. Lastly, the
trading prohibition which the Ordinance enacts is no longer,
as in 1740 and 1751, limited to the colonies, but extends to
every place on land or sea within four miles of the coast,
and is now grouped with the prohibition against violence to
the Greenlanders which in the previous Ordinances. operated
throughout Greenland and was not limited to the colonies.
An examination of this Ordinance alone is enough to disprove
the contention that the word ‘Greenland’ in these legislative
and administrative acts of the xvirith century means only
the colonized area.

It has also been argued on behalf of Norway that “Green-
land” as used in documents of this period cannot have been
intended to include the East coast because at the time
the East coast was unknown. An examination however of the
maps of the xvuth and xviith centuries shows that the
general features and configuration of the East coast of Green-
land were known to the cartographers. Even if no evidence of
any landings on the coast have been produced, the ships
which hunted whales in the waters to the East of Greenland
sighted the land at intervals and gave names to the promi-
nent features which were observed. Indeed, ‘‘Greenland” as a
geographical term was even more used in connection with the
East coast than with the West coast, as the term “Straat
Davis” was often used to describe the West coast, or colonized
area, of Greenland.

The conclusion to which the Court is led is that, bearing in
mind the absence of any claim to sovereignty by another Power,
and the Arctic and inaccessible character of the uncolonized

1 The texts in question have been officially submitted to the Court in
a French translation only.

32
LEGAL STATUS OF EASTERN GREENLAND 51

parts of the country, the King of Denmark and Norway dis-
played during the period from the founding of the colonies
by Hans Egede in 1721 up to 1814 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 colon-
ized area.

Up to the date of the Treaty of Kiel of 1814, the rights
which the King possessed over Greenland were enjoyed by
him as King of Norway. It was as a Norwegian possession
that Greenland was dealt with in Article 4 of that Treaty,.
whereby the King ceded to the King of Sweden the Kingdom
of Norway, “la Groénlande .... non comprise....”. The result
of the Treaty was that what had been a Norwegian posses-
sion remained with the King of Denmark and became for the
future a Danish possession. . Except in this respect, the Treaty
of Kiel did not affect or extend the King’s rights over Greenland.

In order to establish the Danish contention that Denmark
has exercised in fact sovereignty over all Greenland for a long
time, Counsel for Denmark have laid stress on the long series
of conventions—mostly commercial in character—which have
been concluded by Denmark and in which, with the concur-
rence of the other contracting Party, a stipulation has been
inserted to the effect that the convention shall not apply to
Greenland. In the case of multilateral treaties, the stipula-
tion usually takes the form of a Danish reserve at the time
of signature. In date, these conventions cover the period from
1782 onwards. As pointed out in the earlier part of the
judgment, the exclusion of Greenland is, with one exception,
made without qualification. In that case alone it is “the
Danish colonies in Greenland” to which the treaty is not to
apply. In many of these cases, the wording is quite specific ;
for instance, Article 6 of the Treaty of 1826 with the United
States of America: ‘The present Convention shall not apply to
the Northern possessions of His Majesty the King of Denmark,
that is to say Iceland, the Feré Islands and Greenland....”’

The importance of these treaties is that they show a willing-
ness on the part of the States with which Denmark has con-
tracted to admit her right to exclude Greenland. To some of
these treaties, Norway has herself been a Party, and these
must be dealt with later because they are relied on by Den-
mark as constituting binding admissions by Norway that Green-
land is subject to Danish sovereignty. For the purpose of the
present argument, the importance of these conventions, with
whatever States they have been concluded, is dué to the

33
LEGAL STATUS OF EASTERN GREENLAND 52

support which they lend to the Danish argument that Denmark
possesses sovereignty over Greenland as a whole.

It has been contended on behalf of Norway that no impor-
tance should be attached to these conventions because, when
they were concluded, the Parties had no such question in mind
as whether Danish sovereignty was limited or not to the
colonies, and whether in consequence ‘“‘Greenland” meant more
than the colonized area. Both as to these conventions, and
also as to the Treaty of Kiel, Counsel for Norway adhere to
the contention that the word “Greenland” is used in the sense
of the area comprised within the colonies.

It is true that when they conclude a commercial conven-
tion, States are not dealing with such questions as the
extent of their respective territories, but the usual object of
a commercial convention is to give to each of the Parties facili-
ties for trade and navigation in the territories of the other;
consequently, the area within which such facilities are, or are
not, accorded is a point of some importance. It is a question
on which disputes may arise if there is any uncertainty. If
the Parties were agreed that the treaty was not to. apply in
a particular area and the area is only designated by name, the
natural conclusion is that no difference existed between them
as to the extent of the area which that name covered. The
Court is therefore once more led back to the question as to
what the contracting Parties meant when they excluded ‘‘Green-
land”. The natural. meaning of the term is its geographical
meaning as shown in the maps. If it is argued on behalf of
Norway that these treaties use the term ‘“‘Greenland”’ in some
special sense, it is for her to establish it, and it is not deci-
sive in this respect that the northern part of Greenland was
still unknown. She has not succeeded in showing that in these
treaties the word ‘‘Greenland’”’ means only the colonized area.

To the extent that these treaties constitute evidence of recog-
nition of her sovereignty over Greenland in general, Denmark
is entitled to rely upon them.

These treaties may also be regarded as demonstrating suffi-
ciently Denmark’s will and intention to exercise sovereignty
over Greenland. There remains the question whether during
this period, ie. 1814 to 1915, she exercised authority in the
uncolonized area sufficiently to give her a valid claim to
sovereignty therein. In their arguments, Counsel for Denmark
have relied chiefly on the concession granted in 1863 to Tayler
of exclusive rights on the East coast for trading, hunting,

34
LEGAL STATUS OF EASTERN GREENLAND 53

mining, etc. The result of all the documents connected with
the grant of the concession is to show that, on the one side,
it was granted upon the footing that the King of Denmark
was in a position to grant a valid monopoly on the East
coast and that his sovereign rights entitled him to do so, and,
on the other, that the concessionnaires in England regarded
the grant of a monopoly as essential to the success of their
projects and had no doubt as to the validity of the rights
conferred.

Among the documents connected with the grant of this
concession which have been submitted to the Court is the
report submitted to the King for his approval by the Minister
of the Interior, and it is interesting to note that it states as
a matter free from all doubt that Danish sovereignty exists
over the East coast of Greenland:

“En tout cas, les résultats auxquels cette tentative pourrait
conduire présenteraient un intérêt scientifique assez important,
et, pourvu que l’on prenne les garanties nécessaires tant en ce
qui concerne la souveraineté de Votre Majesté sur cette partie
du Groénland — que personne ne conteste — et pour la protec-
tion des Groénlandais qui y habitent et qui, par suite, doivent
être considérés comme les sujets de Votre Majesté, l'octroi d’une
autorisation de ce genre à ceux qui possèdent les qualités et l’éner-
gie nécessaires pour tenter la réalisation d’une pareille entreprise
pourra certainement être accordé sans aucune hésitation 1.”

Counsel for Norway have pointed to Article 2 in the con-
cession, which provides that the establishments created by the
concessionnaires were to be placed under the sovereignty of the
Crown of Denmark and to be subject to Danish law—and
have argued that the grant of a concession in these terms is
itself evidence that the Danish Government realized that
Danish sovereignty did not extend to this part of Greenland.
The explanation however is simple. Tayler was an English-
man. The Danish Government were aware that people in
Denmark, such as M. Wormskjüld, had been afraid that
foreign Powers would attempt to make settlements on the
East coast, and Article 2 was intended to make sure that
the settlements established by Tayler should not be made the
basis of a claim of occupation and sovereignty by the King
of England.

“The concessions granted for the erection of telegraph lines
and the legislation fixing the limits of territorial waters in

1 French translation supplied by the Danish Government.

5 35
LEGAL STATUS OF EASTERN GREENLAND 54

1905 are also manifestations of the exercise of sovereign
authority. |

In view of the above facts, when taken in conjunction with
the legislation she had enacted applicable to Greenland gener-
ally, the numerous treaties in which Denmark, with the con-
currence of the other contracting Party, provided for the
non-application of the treaty to Greenland in general, and the
absence of all claim to sovereignty over Greenland by any
other Power, Denmark must be regarded as having displayed
during this period of 1814 to 1915 her authority over the
uncolonized part of the country to a degree sufficient to confer
a valid title to the sovereignty.

The applications which the Danish Government addressed
to foreign governments between 1915 and 1921, seeking the
recognition of Denmark’s position in Greenland, have played so
large a part in the arguments addressed to the Court that
it is necessary to deal with them in some detail. The point
at issue between the Parties is whether Denmark was seeking
a recognition of an existing sovereignty extending over all
Greenland, as has been urged by her Counsel, or, as main-
tained by Counsel on behalf of Norway, whether she was
trying to persuade the Powers to agree to an extension of
her sovereignty to territory which did not as yet belong to her:

The terms used in the correspondence between the Danish
Government and the foreign governments concerned relating
to these applications are not always clear ; sometimes a parti-
cular phrase or expression seems to afford a strong argument
in favour of the view held by one Party in the dispute and
another phrase or expression, emanating from the same side
and perhaps even in the same note, may be consistent only
with the opposite view.

The Court has come to the conclusion that in judging the
effect of these notes too much importance must not be attached
to particular expressions here and there. The correspondence
must be judged as a whole. One reason for this is that in
some cases the notes were written by individual Danish
diplomatic representatives, and, though no doubt they were
based on the instructions these Ministers received, some varia-
tion must be expected and allowed for in the terms they
used. |

There can be no doubt that an expression such as ‘‘exten-
sion of sovereignty’, which figures in two or three of the
most important documents on the Danish side, if taken by

36
LEGAL STATUS OF EASTERN GREENLAND 55

itself, is very difficult to reconcile with the view now upheld
by the Danish Government, that what that Government was
seeking in these applications was recognition of existing sover-
eignty and not consent to the acquisition of new sovereignty.
Nevertheless, the conclusion which the Court has reached is
that the view upheld by the Danish Government in the
present case is right and that the object which that Govern-
ment was endeavouring to secure was 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.

Before analysing the important documents in this corre-
spondence, it is well to repeat what has been said above as
to the existence in Denmark of opinions held by well-qualified
persons, such as M. Wormskjüld, that owing to the absence of
any effective occupation on the eastern coast of Greenland,
some foreign Power might attempt to establish a settlement
and might thereby acquire the sovereignty over the territory
for itself.

While this was the opinion which had been expressed by
private persons, the Government had, whenever it was neces-
sary for it to express an opinion, enunciated the view that
there was no doubt as to the existence of the Danish sover-
eignty over the East coast of Greenland.

A sentence has already been quoted from the report to the
King in 1863, asking for approval of the Tayler concession.
Similarly, in the report submitted to the King in connection
with the founding of the colony of Angmagssalik in 1894, the
Minister of the Interior says:

“Bien que, jusqu’à présent, il n’ait été établi des colonies danocises
que sur la côte occidentale du Groénland, la souveraineté de l’État
danois n’est pas restreinte à cette partie du pays, et le Gouver-
nement danois a, lorsque l’occasion s’en est présentée, exercé et
affirmé sa souveraineté sur la côte orientale du pays.”

Given this divergence of view between the Government
opinion on the one side, and the opinion of private persons on
the other, it is quite natural that at a time such as that of
the Great War and the Peace Conference which followed it, when
many territorial changes were taking place, the Danish Govern-
ment should think the moment favourable for endeavouring to

1 French translation supplied by the Danish Government.

37
LEGAL STATUS OF EASTERN GREENLAND 56

secure general recognition of its sovereignty over all Greenland.
If it took action for this purpose, however, it is most unlikely
that on the eve of doing so it would completely change the
point of view which it had previously enunciated and proceed
upon the footing that it had no right to sovereignty over the
uncolonized area and that it had now to acquire sovereignty
there for the first time. The Danish Government stood to
gain nothing by making any such change of opinion and would
seriously prejudice its position if it failed to secure the acknow-
ledgements it desired from foreign States.

The first country to be approached was the United States
of America, and the moment chosen was that of the negotia-
tion of the treaty for the cession of the Danish Antilles. It seems
probable that the negotiations about Greenland were in part
conducted verbally, but the memorandum addressed to the
United States Government on December 27th, 1915, by the
Danish Minister at Washington is not helpful to the Danish
case. It is by no means clear, and it uses the phrase ‘“‘exten-
sion of the care and suzerainty of Denmark to the whole of
Greenland 1”. On the other hand, if what the Parties had in
mind was consent by the United States Government to Den-
mark’s acquiring sovereignty over parts of Greenland which
had hitherto been tevre nullius, it seems incredible that any
competent draughtsman would use so complicated a phrase as
that proposed by the United States Government for insertion
in the Antilles Treaty: “.... The United States will not object to
the claim of Denmark to take such measures of control
and protection in Greenland as she may deem proper and
necessary to safeguard and advance these interests” (ie. the
political and economic interests of Denmark in Greenland).

The phrase used in the American declaration as ultimately
signed was that the United States Government “‘.... will not
object to the Danish Government extending their political and
economic interests to the whole of Greenland’, a phrase which
is not inconsistent with either thesis. On the other hand,
when submitting the Antilles Treaty, together with the above
declaration as to Greenland, for the royal ratification, the
Danish Minister for Foreign Affairs treats the declaration as
involving American consent to an extension of sovereignty.

1 English text supplied by the Danish Government.
38
LEGAL STATUS OF EASTERN GREENLAND 57

The next government to be approached was the Norwegian.
That Government had already manifested a desire to acquire
Spitzbergen, and in April 1919 the Danish Government had
given the Norwegian Government to understand that, as there
were no Danish interests in Spitzbergen which ran counter to
those of Norway, Denmark would not oppose the Norwegian
aspirations.

Early in July 1910, the Danish Minister for Foreign Affairs
learned from the Danish Minister in Paris that the Spitz-
bergen question was to come before a Committee of the Peace
Conference.

Instructions were thereupon issued, on July rath, 1910, to
the Danish Minister at Christiania to make to the Norwegian
Minister for Foreign Affairs a communication to the effect that
a Committee had just been constituted at the Peace Confer-
ence “for the purpose of considering the claims that may be
put forward by different countries to Spitzbergen’’, and that
the Danish Government would be prepared to renew before
this Committee the unofficial assurance already given to the
Norwegian Government, according to which Denmark, having
no special interests at stake in Spitzbergen, would raise no
objection to Norway’s claims upon that archipelago. In making
this statement to the Norwegian Minister for Foreign Affairs,
the Danish Minister was to point out “that the Danish Govern-
ment had been anxious for some years past to obtain the
recognition by all the interested Powers of Denmark’s sover-
eignty over the whole of Greenland and that it intended to
place that question before the above-mentioned Committee” ;
that the Government of the U.S.A. had made a declaration
that that Government would not oppose the extension of
Danish: political and economic interests over all Greenland ;
and further that the Danish Government counted on the
Norwegian Government not making.any difficulties with regard
to such an extension.

When, on July r4th, 1910, the Danish Minister saw the
Norwegian Minister for Foreign Affairs, M. Ihlen, the latter
merely replied “‘that the question would be considered”. The
Norwegian Minister for Foreign Affairs recorded his conver-
sation with the Danish representative in a minute, the
accuracy of which has not been disputed by the Danish Gov-
ernment. On July 22nd following, the Minister for Foreign
Affairs, after informing his colleagues of the Norwegian Cabinet,
made a statement to the Danish Minister to the effect “that
the Norwegian Government would not make any difficulties

39
LEGAL STATUS OF EASTERN GREENLAND 58

in the settlement of this question” (ie. the question raised on
July 14th by the Danish Government). These are the words
recorded in the minute by M. Ihlen himself. According to
the report made by the Danish Minister to his own Govern-
ment, M. Jhlen’s words were that “the plans of the Royal
[Danish] Government respecting Danish sovereignty over the
whole of Greenland .... would meet with no difficulties on the
part of Norway”.

The Danish Government were not able to bring the question
before the Peace Conference in 1019. The matter was there-
fore taken up with the governments individually, instructions
being sent to the Danish Ministers in London, Paris, Rome and
Tokyo on March 2nd, 1920, to address communications to the
Governments to which they were accredited. These instructions
described at length the work which Denmark had
accomplished in Greenland and mentioned the colonies she
had founded. Then follows an admission that no formal
“prise de possession” had been taken of all Greenland
aud a statement is made that it is desirable that Denmark
should extend its ‘“‘sollicitude par sa souveraineté sur le
Groënland tout entier”. The text of the American declar-
ation is set out and the instructions go on to say that, having
got the American declaration, Denmark proposes also to
obtain recognition by other Powers of Danish sovereignty over
all Greenland, and the Minister concerned is therefore to
ask for official recognition of Danish sovereignty over all
Greenland. It is suggested that the form in which such recog-
nition might be given would be a declaration corresponding
to that made by the United States Government. It will
be seen that, in these instructions, the Danish Minister for
Foreign Affairs treats recognition of Danish sovereignty over
all Greenland and a statement that there is no objection
to the Danish Government extending its political and economic
interests to the whole of Greenland as meaning the same thing.

Each of the Ministers concerned thereupon addressed him-
self to the Government to which he was accredited, following
in his own way the tenour of the instructions he had received.

In reply, the French Government sent a note to the effect
that it would make no objection to the Danish Government
extending its sovereignty to all Greenland, as contemplated
in the American declaration.

The Italian Government says that they will have no
difficulty in recognizing Danish sovereignty over Greenland.

40
LEGAL STATUS OF EASTERN GREENLAND 59

The Japanese Government says that they have no objection
to the Danish Government extending their political and
economic interests to the whole of Greenland.

The British Government (after some preliminary correspond-
ence with a view to securing a right of pre-emption over
the country), recognizes Danish sovereignty over Greenland.

These notes all appear to have been written upon the
assumption that they were complying with what the Danish
Government had asked for, despite the diversity of their
contents.

The British note, it is true, was written in slightly more
favourable circumstances, because the Foreign Office had had
the advantage of a further communication from the Danish
Government in which the Danish view had been explained
more clearly. The British Government had at first tried to
secure a right of pre-emption over Greenland as a condition
of its recognition of Danish sovereignty. This the Danish
Government refused in a note on July 2oth, 1920, in which
it makes its point of view clear. The note says that the
Danish occupation of Greenland dated back to 1721, since
when Greenland had been treated uninterruptedly as a Danish
colony, and that the Danish “suzerainty’” had never been
questioned by any other foreign Power. The note went on
to say that the request which had been made by the Danish
Government must therefore be regarded as dictated by a
desire to obtain “formal recognition of an existing status
sanctioned by prescriptive right”.

Thus it will be seen that as soon as one of the Powers
to whom application had been made indicates a desire to
obtain some return for the grant of what had been asked,
the Danish Government replies with a note setting out the
legal basis of its claim to sovereignty in Greenland on lines
similar to those which it has followed in the present case.
With the legal position thus made clear, the British Govern-
ment gave the desired recognition to Danish sovereignty and
only asked that, in view of the proximity of Greenland to
Canada, the British Government should be consulted if the
Danish Government ever contemplated the alienation of the
territory.

Early in 1921 the Danish Government approached the Swe-
dish and Norwegian Governments with similar requests for
recognition of Danish sovereignty.

The note addressed to the Swedish Government on Janu-
ary 13th, 1921, follows the lines of those addressed to the four

AI
LEGAL STATUS OF EASTERN GREENLAND 60

Powers in 1920, but adds that those Powers have recognized
Danish sovereignty over all Greenland.

The memorandum addressed to the Norwegian Government
by the Danish Legation at Christiania on January 18th, 1921,
was conceived. on somewhat different lines. It repeats the
Danish desire to obtain recognition by the Powers concerned
of Danish sovereignty over the whole of that country, and the
fact that it had not been possible to bring the question before
the Peace Conference in Paris. The communication then refers
to the declaration made by the United States Government, the
successful applications to the four Powers and the Danish
decision to address corresponding requests to the Norwegian
and Swedish Governments. Mention is made of Spitzbergen
and of how Denmark had said, in 1919, that she would not
oppose the Norwegian claims there and that she reckoned on
an extension of Danish sovereignty in Greenland not meeting
with difficulties on the part of Norway. Reference is then
made to the Jhlen declaration, and it is said that as this
had only been verbal Denmark would now like to have a
written confirmation of it. The memorandum concludes by
asking for a written statement that the Norwegian Govern-
ment recognized Danish sovereignty over all Greenland.

This memorandum has been analysed in some detail because
it is the document chiefly relied on by the Norwegian Coun-
sel in maintaining that what Denmark sought to obtain was
an extension of her sovereignty to the non-colonized part of
Greenland in the sense that it implied that no such sover-
eignty existed at the moment. It is true that, as stated in
the memorandum itself, the word ‘extension’ is used, but it
is used in connection with the attitude which Denmark had
adopted in 1919. If however the communication made in 1919
to the Norwegian Government is examined, it will be found to
be more consistent with the view that the Danish desire was
to obtain the recognition of an existing sovereignty. As said
above, too much importance must not be attached to some of
these individual phrases and expressions when taken apart
from their context. Words such as “reconnaissance expresse
de la souveraineté du Groënland dans son entier’ are more
applicable to an existing sovereignty than to describe an
agreement to an extension. Nor must it be forgotten that
the date of this communication was six months later than the
note of July 2oth, 1920, to the Foreign Office in London,
which sets out the Danish position with reasonable precision.

42
LEGAL STATUS OF EASTERN GREENLAND 6t

Nevertheless, it would seem that the Norwegian Government
must have understood the Danish communication as implying
an extension of sovereignty in the proper sense of the term,
and it was just this “extension”, ie. agreement to something
which did not yet exist, to which Norway was unwilling to
agree except on terms which would safeguard the opportunities
for hunting and fishing which Norwegians then enjoyed in
Eastern Greenland. The Norwegian Government therefore felt
unable to give the recognition which was asked for.

After a. certain time, during which the communication of
January r8th remained unanswered officially, but during which
some unofficial communications passed, a note from the Nor-
wegian Government, dated November 2nd, 1921, dealing with
the Decrees of May roth and June 16th of that year, stated
that the Norwegian Government had not recognized, and could
not recognize, an extension of Danish sovereignty which would
involve a corresponding extension of the monopoly and result
in the suppression of the hunting and fishing activities of the
Norwegians in the parts of Greenland in question.

Confronted with an attitude which did not satisfy it, the
Danish Government expounded—as it had done to the British
Government in July I9g20—its view of the situation in law,
and in its note of December Igth, 1921; affirms that Danish
sovereignty has no need of any renewed recognition by the
Norwegian Government. and asserts that this sovereignty has
for a long time found expression in a series of international
documents and legislative enactments, of which the contents
have been brought to the knowledge of the countries concerned
and to which no objection has ever been made.

The Danish Government thus enunciates once more the view ex-
pressed in 1863 and in 1894, and in the note to the Foreign Office in
July 1920, that it already possessed sovereignty over all Greenland.
If that was the view which the Danish Government held before,
during and at the close of these applications to the Powers,
its action in. approaching them in the way it did must certainly
have been intended to ensure that those Powers should accept
the point of view maintained by the Danish Government,
namely, that sovereignty already existed over all Greenland,
and not to persuade them to agree that a part of Greenland
not previously under Danish sovereignty should now be brought
thereunder. Their object was to ensure that those Powers
would not attempt themselves to take possession of any non-

6 43
LEGAL STATUS OF EASTERN GREENLAND 62

colonized part of Greenland. The method of achieving this |
object was to get the Powers to recognize an existing state
of fact.

In these circumstances, there can be no ground for holding
that, by the attitude which the Danish Government adopted,
it admitted that it possessed no sovereignty over the uncolon-
ized part of Greenland, nor for holding that it is estopped.
from claiming, as it claims in the present case, that Denmark
possesses an old established sovereignty over all Greenland.

*

The period subsequent to the date when the Danish Govern-
ment issued the Decree of May roth, 1921, referred to above,
witnessed a considerable increase in the activity of the Danish
Government on the eastern coast of Greenland.

That Decree was followed by the Decree of June 16th of
the same year concerning navigation in the seas round Green-
land and declaring that the whole of the coasts and islands
were closed to Danish and to foreign ships. Though the
stringency of this measure was relaxed when the Convention
of 1924 was concluded, the exclusion of all shipping remains
the rule except in so far as access is authorized by treaty or
decree or special authorization.

In 1925, legislation was enacted regulating. the hunting and
fishing, and in the same year Greenland was divided into
provinces by a law which declared that all commercial
activity was reserved to the Danish State.

This legislation with regard to hunting and fishing, and the
law dividing the country into provinces, are noteworthy, as
are also the admission of French and British nationals to
most-favoured-nation treatment in Eastern Greenland, under
notes exchanged between Denmark and the British and French
Governments in 1925.

These were all cases in which the Danish Government was
exercising governmental functions in connection with the
territory now under dispute.

The character of these Danish acts is not altered by the
protests or reserves which, from time to time, were made by
the Norwegian Government.

These acts, coupled with the activities of the Danish
hunting expeditions which were supported by the Danish Gov-
ernment, the increase in the number of scientific expeditions

44
LEGAL STATUS OF EASTERN GREENLAND 63

engaged in mapping and exploring the country with the
authorization and encouragement of the Government, even
though the expeditions may have been organized by non-
official institutions, the occasions on which the Godthaab, a
vessel belonging to the State and placed at one time under
the command of a naval officer, was sent to the East coast
on inspection duty, the issue of permits by the Danish
authorities, under regulations issued in 1930, to persons
visiting the eastern coast of Greenland, show to a sufficient
extent—even when separated from the history of the preceding
periods—the two elements necessary to establish a valid title
to sovereignty, namely: the intention and will to exercise such
sovereignty and the manifestation of State activity.

The conclusion of the 1924 Convention with Norway, to
which reference must again be made later, though signed by
that State on the footing that she maintained her point of
view as to the territorial status of Eastern Greenland (terra
nullius) and that the conclusion of the Convention did not
prejudice her point of view, does not exclude the right of
Denmark to maintain her point of view that she was entitled
to and was in fact enjoying sovereignty over all Greenland,
nor does it exclude her right to show that the elements which
go to establish a valid claim to sovereignty were both present.

Except for the verbal change that the phrase “éerritoire de
Groénland”’ is more often employed than ‘“Groénland’’, the
commercial arrangements concluded by Denmark during this
period continue to provide that, on the Danish side, the agree-
ment is not to apply to Greenland, showing thereby that the States
with which Denmark was concluding these agreements were
not disposed to dispute her claim to be sovereign over the
area which the agreement denominates as Greenland. As also
is the case with regard to the previous periods, it lies on Nor-
way to show that the word ‘‘Greenland” in these agreements
is used in some special sense which does not include the un-
colonized part of the East coast, and in the opinion of the
Court Norway has not shown that this is so.

Even if the period from 1921 to July roth, 1931, is taken
by itself and without reference to the preceding periods, the
conclusion reached by the Court is that during this time
Denmark regarded herself as possessing sovereignty over all
Greenland and displayed and exercised her sovereign rights to
an extent sufficient to constitute a valid title to sovereignty.
When considered in conjunction with the facts of the pre-

45
LEGAL STATUS OF EASTERN GREENLAND 64

ceding periods, the case in favour of Denmark is confirmed and
strengthened.

It follows from the above that the Court is satisfied that
Denmark has succeeded in establishing her contention that at
the critical date, namely, July roth, 1931, she possessed a
valid title to the sovereignty over all Greenland.

This finding constitutes by itself sufficient reason for holding
that the occupation of July roth, r93r, and any steps taken
in this connection by the Norwegian Government, were illegal
and invalid.

II.

The Court will now consider the second Danish proposition
that Norway had given certain undertakings which recognized
Danish sovereignty over all Greenland. These undertakings
have been fully discussed by the two Parties, and in three
cases the Court considers that undertakings were given.

*

1. In the first place, the Court holds that, at the time of
the termination of the Union between Denmark and Norway
(1814 to 18:9), Norway undertook not to dispute Danish sover-
eignty over Greenland.

In the early part of this judgment, it has been recalled
that when the King of Denmark was obliged to renounce, in
favour of the King of Sweden, his kingdom of Norway, Article 4
of the Treaty of Kiel of January r4th, 1814, excepted from
that renunciation Greenland, the Faroes and Iceland.

In order to effect the settlement—which was mainly of a
financial character—rendered necessary by the separation of
Norway from Denmark, Norwegian commissioners were appointed
at the end of r8r4 to confer with Danish commissioners.
The solution of the questions to which the separation of the
two countries gave rise was not easy. When, as early as 18r6,
Denmark began to fear that the conferences held at Copen-
hagen between the Danish and Norwegian commissioners would
prove fruitless, the Danish Cabinet approached the Allied
Powers. This step led to a Conference between these Powers
which held its first meetings in London in July and August
1818. On the basis of a report of this Conference, the Con-
gress of Aix-la-Chapelle decided, on November 13th, 1818, to
make representations to the King of Sweden and Norway in
order to ensure that the terms of the Treaty of Kiel were

46

LEGAL STATUS OF EASTERN GREENLAND 65

complied with so far as regards the portion of the debt of the
Danish-Norwegian monarchy for which Norway was to be
responsible.

It was then that the King of Sweden and Norway reverted
to the question of the former Norwegian possessions of which
Greenland was one.

The Norwegian commissioner at Copenhagen—M. Holst—was
instructed on January 7th, 1810, formally to claim the resti-
tution of the Faroes, Iceland and Greenland ‘as being
possessions which had formerly belonged to the Kingdom of
Norway”. The instructions given to M. Holst referred to
the fact that the ‘extraordinary Storting of 1814 had, in a
most humble address, petitioned His Majesty to take the
necessary steps to secure the restitution to the Kingdom of
Norway of the Faroe Islands, Iceland and Greenland, pos-
sessions which for centuries were an integral part of that
kingdom’’. This claim was presented to the Conference at Copen-
hagen on February 5th, r8r9g, and met with a point blank
refusal on the Danish side. On learning of this refusal, the
Minister for Foreign Affairs of Sweden and Norway, on Febru-
ary 23rd, 1819, authorized the Norwegian commissioner at
Copenhagen to withdraw the claim. M. Holst did so in a
declaration which he made on March 27th, 1810, and the
original French text of which should be given here:

“Jl est notoire que le Prince Chrétien Frédéric! a provoqué de
la part de la Représentation Nationale de la Norvège assemblée
à Eidsvold, une protestation formelle contre le. Traité de Kiel,
qui assurait au Roi? la Souveraineté sur la Norvège. Une constitu-
tion des plus libérales étant intervenue, la Représentation Nationale
ayant, par une élection libre et spontanée, offert au Roi la Couronne
de Norvège sous la condition expresse d'accepter la nouvelle consti-
tution; et le Roi y ayant donné Son assentiment, et étant par là
devenu Roi constitutionnel, au lieu de Souverain absolu, comme Il
devait l'être conformément au Traité de Kiel, il en est résulté
pour S.M. l'obligation d’avoir égard aux adresses que Lui présente
le Stor-Thing dans les formes prescrites par la Loi. Or, le Stor-
Thing s'étant adressé au Roi mon Auguste Souverain à l'effet d’en-
gager S. M. à faire les démarches nécessaires pour que les îles
de Faeroe, l'Islande et la Groenlande fussent restituées par le
Dannemarc pour être réunies au Royaume de Norvège: le Roi
n’a pu Se dispenser de satisfaire, sur ce point, aux vœux exprimés
par l'assemblée nationale. En remplissant ce devoir selon la teneur
littérale de l'adresse du Stor-Thing, l'intention n’a jamais été de
lier cette question à celle de la liquidation en général, ni d’entraver
en aucune manière la marche régulière d'une négociation que S. M.
désire sincèrement de voir terminée à la satisfaction commune des

1 The Governor of Norway.
2 The King of Sweden.

47
LEGAL STATUS OF EASTERN GREENLAND 66

deux parties intéressées. Lorsqu'il est question de la séparation
politique de deux Etats, dont les intérêts se sont trouvés. amal-
gamés par une union de plusieurs siècles, il serait impossible
d'éviter des sacrifices de part et d'autre, et le Roi Se borne en
cette occasion d’énoncer Sa conviction certaine que, dans le cours
de cette liquidation et lorsqu'il s’agira de balancer les ressources
respectives des deux Etats, on pourra facilement tomber d'accord
sur les moyens de compenser la perte qu'a faite en cette occasion
la Norvège de ses colonies dans la mer du Nord.”

The last sentence of this declaration brings out not only
the financial element in the claim for the restitution of
the possessions in question but also, and above all, the fact
that the claim was definitely withdrawn.

Moreover, in March r8x9, the Minister for Foreign Affairs
of Sweden and Norway communicated to the British Minister
at Stockholm a request for the mediation of the Prince
Regent of Great Britain in the matter in regard to which
the Cabinets of Stockholm and Copenhagen were still at
variance, and said that the King of Sweden and Norway
abandoned on behalf of Norway all claim to the Faroe Islands,
Iceland and Greenland.

In a note dated May 28th, 1819, the Minister for Foreign
Affairs of Sweden and Norway once more wrote to the
British Minister at Stockholm that the King of Sweden and
‘Norway agreed to “renounce in favour of the Crown of
Denmark .... the claims of this country [Norway] in respect
of Iceland, Greenland and the Faroe Islands”.

This renunciation found expression in the conclusions reached
by a conference at Stockholm. With the British Minister in that
capital acting as mediator, the conference prepared for signature
by the King of Denmark and by the King of Sweden and Norway,
in his capacity as King of Norway, the Convention of Sep-
tember rst, 1819, which finally settled the difficulties.

Article 9 of this Convention! states that “everything in
connection with the Treaty of Kiel in general and with its

1 This Article runs as follows:

“Article neuf. — Tout ce qui concerne le Traité de Kiel en général,
et nommément Son Sixiéme Article, étant ainsi envisagé comme entiére-
ment réglé, Sa Majesté le Roi de Suéde et de Norvége, et Sa Majesté
le Roi de Dannemarc déclarent qu’aucun payment ultérieur, hormis ce
qui est stipulé actuellement, ne sera soit à titre dudit Traité, soit
pour cause de l’ancienne Union entre la Norvège et le Dannemarc, exigé
de part et d’autre; ni par le Gouvernement Norvégien du Gouverne-
ment Danois ou des Sujets Danois; ni par le Gouvernement Danois
du Gouvernement Norvégien ou des Sujets Norvégiens ; de même qu’au-
cune prétention, qui, à ce titre, ou pour cette cause, a pu être avancée
jusqu'à présent des deux côtés, ne sera désormais prise en considéra-.
tion ou mise en discussion, qu’en tant qu’elle s'accorde avec les termes,
et les principes de cette Convention, qui annulle de fait et de droit
toute redevance ultérieure de part et d’autre.”’

48
LEGAL STATUS OF EASTERN GREENLAND 67

sixth article! [the financial article] in particular” is completely
settled. There can be no doubt that the words “everything
in connection with the Treaty of Kiel in general” cover also
Article 4 of the Treaty which mentions Greenland and that
they are incompatible with the Norwegian argument to the
effect that the Convention of September 1st, 1819, only
relates to the financial settlement between Denmark and
Norway. In this connection, it may be observed that it
is true that the first draft convention drawn up by the
Danish Commissioners at Copenhagen on July 16th, 1870,
including Article VI of that draft, which corresponds to
Article 9 of the Convention of September rst, 1819, only
related to financial matters. Article VI of this draft ran

-as follows: “Everything in connection with the execution ~
of Article 6 [the financial article] of the Treaty of Kiel
being regarded as settled by the above points...” Article VI of

the Danish draft was however amended on August 23rd, 1819,
when a new draft was submitted to the Stockholm Confer-
ence by the Danish plenipotentiary and the British mediator.
This second draft extended the scope of Article VI of the
original Danish draft of July 16th, 1819, so that it now said
that not only Article 6 of the Treaty of Kiel was to be
regarded as completely settled, but “Everything in connec-
tion with the Treaty of Kiel in general and with its sixth
article in particular’. This change, which was maintained
in Article 9 of the Convention, finally disposes not only of

‘1 Translation as printed in the “Annual Register” for 1814:

“Article VI. As the whcle debt of the Danish Monarchy is contracted, as well
upon Norway as the other parts of the kingdom, so his Majesty the King
of Sweden binds himself, as Sovereign of Norway, to be responsible for a
part of that debt, proportioned to the population and revenue of Norway.

By public debt is to be understood that which has been contracted by
the Danish Government, both at home and abroad. The latter consists
of Royal and State obligations, bankbills, and paper money formerly
issued under Royal authority, and now circulating in both kingdoms.

An exact account of this debt, such as it was on the Ist of Janu-
ary 1814, shall be taken by Commissioners appointed to that effect by
both Crowns, and shall be calculated upon a just division of the popu-
lation and revenues of the kingdoms of Norway and Denmark. These
Commissioners shall meet at Copenhagen, within one month after the
exchange of the ratification of this treaty, and shall bring this affair
to a conclusion as speedily as possible, and at least before the expira-
tion of the present year; with this understanding, however, that the
King of Sweden, as Sovereign of Norway, shall be responsible for no
other portion of the debt contracted by Denmark, than that for which
Norway was liable before its separation.”

49
LEGAL STATUS OF EASTERN GREENLAND 68

the financial questions dealt with in Article 6 of the Treaty
of Kiel but of all questions mentioned in the Treaty, and there-
fore also of the territorial questions in Article 4, which leaves
Greenland to Denmark. As has already been explained,
“Greenland” in Article 4 of the Treaty of Kiel means the
whole of Greenland.

The Court holds that, in consequence of the various. under-
takings resulting from the separation of. Norway and Denmark
and culminating in Article 9 of the Convention of September ist,
1819, Norway has recognized Danish sovereignty over the
whole of Greenland and consequently cannot proceed to the
occupation of any part thereof.

*

2. A second series of undertakings by Norway, recognizing
Danish sovereignty over Greenland, is afforded by various
bilateral agreements concluded by Norway with Denmark, and
by various multilateral agreements to which both Denmark .
and Norway were contracting Parties, in which Greenland has
been described as a Danish colony or as forming part of
Denmark or in which Denmark has been allowed to exclude
Greenland from the operation of the agreement.

The first of these agreements is the Commercial Treaty
concluded between Denmark and the United Kingdoms of
Sweden and Norway on November 2nd, 1826, a Treaty for
which provision was made in Article 23 of the Treaty of Kiel.
Article 5 of that Treaty reads as follows: “The respective
colonies of the two High Contracting Parties, including in
the case of Denmark, Greenland, Iceland, and the Faroe
Isles, shall be specially excepted from the provisions of the
four preceding articles, which shall only be applicable to the
Kingdom of Denmark, the Duchies of Slesvig, Holstein and
Lauenbourg of the one part, and to the Kingdoms of Sweden
and Norway, of the other part.”

Among more modern agreements may be quoted, as examples,
the stipulations in the Universal Postal Conventions of 1920,
1924 and 1929, which say that:. ‘The following shall be
considered as belonging to the Universal Postal Union: .... (c) the
Faroe Isles and Greenland, as being part of Denmark.”

It has already been said that when the Treaty of 1826
speaks of “Greenland”, this can only denote Greenland in the
sense, for example, of Article 4 of the Treaty of Kiel, ie. the
whole of Greenland. The same applies to the Danish-
Norwegian Agreements, referred to above, which followed the
Treaty of 1826. In accepting these bilateral and multilat-
eral agreements as binding upon herself, Norway reaffirmed

50:
LEGAL STATUS OF EASTERN GREENLAND 69

that she recognized the whole of Greenland as Danish;
and thereby she has debarred herself from contesting Danish
sovereignty over the whole of Greenland, and, in conse-
quence, from proceeding to occupy any part of it.

*

3. In addition to the engagements dealt with above, the
Thlen declaration, viz. the reply given by M. Ihlen, the
Norwegian Minister for Foreign Affairs, to the Danish Minister
on July 22nd, 1919, must also be considered.

This declaration by M. Ihlen has been relied on by Counsel
for Denmark as a recognition of an existing Danish sovereignty
in Greenland. The Court is unable to accept this point of
view. A careful examination of the words used and of the
circumstances in which they were. used, as well as of the
subsequent developments, shows that M. Ihlen cannot have
meant to be giving then and there a definitive recognition
of Danish sovereignty over Greenland, and shows also that he
cannot have been understood by the Danish Government at
the time as having done so. In the text of M. Ihlen’s
minute, submitted by the Norwegian Government, which has
not been disputed by the Danish Government, the phrase
used by M. Ihlen is couched in the future tense: “ne fera
pas de difficultés” ; he had been informed that it was at the
Peace Conference that the Danish Government intended to
bring up the question: and two years later—when assurances
had been received from the Principal Allied Powers—the
Danish Government made a further application to the Nor-
wegian Government to obtain the recognition which they
desired of Danish sovereignty over all Greenland.

Nevertheless, the point which must now be considered is
whether the Ihlen declaration—even if not constituting a
definitive recognition of Danish sovereignty—did not constitute
an engagement obliging Norway to refrain from occupying
any part of Greenland.

The Danish request and M. Ihlen’s reply were recorded
by him in a minute, worded as follows!:

“I. The Danish Minister informed me to-day that his Govern-
ment has heard from Paris that the question of Spitzbergen will
be examined by a Commission of four members (American, Bri-
tish, French, Italian). If the Danish Government is questioned
by this Commission, it is prepared to reply that Denmark has no
interests in Spitzbergen, and that it has no reason to oppose the

1 Translation from a French text supplied by Norway.

7 51
LEGAL STATUS OF EASTERN GREENLAND 70

wishes of Norway in regard to the settlement of this question.

Furthermore, the Danish Minister made the following statement :

The Danish Government has for some years past been anxious
to obtain the recognition of all the interested Powers of Denmark’s
sovereignty over the whole of Greenland, and it proposes to place
this question before the above-mentioned Committee at the same
time. During the negotiations with the U.S.A. over the cession
of the Danish West Indies, the Danish Government raised this
question in so far as. concerns recognition by the Government of
the U.S.A., and it succeeded in inducing the latter to. agree that,
concurrently with the conclusion of a convention regarding the
cession of the said islands, it would make a declaration to the
effect that the Government of the U.S.A. would not object to
the Danish Government extending their political and economic
interests to the whole of Greenland.

The Danish Government is confident (he added) that the Nor-
wegian Government will not make any difficulties in the settlement
of this question.

I replied that the question would be. examined.

14/7—19 Ih.”

“II. To-day I informed the Danish Minister that the Norwegian
Government would not make any difficulties in the settlement of
this question. 22/7—19 Ih.”

The incident has, therefore, reference, first to the attitude
to be observed by Denmark before the Committee of the Peace
Conference at Paris in regard to Spitzbergen, this attitude
being that Denmark would not “oppose the wishes of Norway
in regard to the settlement of this question’; as is known,
these wishes related to the sovereignty over Spitzbergen.
Secondly, the request showed that “the Danish Government
was confident that the Norwegian Government would not make
any difficulty’ in the settlement of the Greenland question ;
the aims that Denmark had in view in regard to the last-
named island were to secure the “recognition by all the
Powers concerned of Danish sovereignty over the whole of Green-
land”, and that there should be no opposition “to the Danish
Government extending their political and economic interests
to the whole of Greenland’. It is clear from the relevant
Danish documents which preceded the Danish Minister’s
démarche at Christiania on July 14th, 1919, that the Danish
attitude in the Spitzbergen question and the Norwegian atti- .
tude in the Greenland question were regarded in Denmark
as interdependent, and this interdependence appears to be
reflected also in M. Ihlen’s minute of the interview. Even if
this interdependence—which, in view of the affirmative reply
of the Norwegian Government, in whose name the Minister for
Foreign Affairs was speaking, would have created a bilateral
engagement—is not held to have been established, it can hardly

52
LEGAL STATUS OF EASTERN GREENLAND vat

be denied that what Denmark was asking of Norway (‘not
to make any difficulties in the settlement of the [Greenland]
question”) was equivalent to what she was indicating her
readiness to concede in the Spitzbergen question (to refrain
from opposing “‘the wishes of Norway in regard to the settle-
ment of this question”). What Denmark desired to obtain
from Norway was that the latter should do nothing to obstruct
the Danish plans in regard to -Greenland. The declaration
which the Minister for Foreign Affairs gave on July 22nd,
1919, on behalf of the Norwegian Government, was definitely
affirmative: “I told the Danish Minister to-day that the Nor-
wegian Government would not make any difficulty in the
settlement of this question.”

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.

Norway has objected that the Danish Government’s inten-
tion to extend the monopoly régime to the whole of Greenland
was not mentioned in the Danish request of July 14th, 1919,
as is alleged to have been done at a later date in the commu-
nications addressed to the interested Powers in 1920 and 1921;
and it is argued that if the Norwegian Government had been
warned of this intention, the declaration of the Minister for
Foreign Affairs would have been in the negative; and that,
in consequence, the declaration, though unconditional and defi-
nitive in form, cannot be relied on against Norway.

The Court cannot admit this objection. It seems difficult
to believe that Norway could not have foreseen the extension
of the monopoly, in view of the fact that the United States of

_America, which had received in 1915 a request similar to that
made to Norway on July 14th, 1919, had understood perfectly
well that the Danish plans in regard to the uncolonized parts
of Greenland involved an extension of the monopoly régime
—although this was not mentioned in the Danish request at
Washington—and had for that very reason at first demanded
the maintenance of the “open door”. It is all the more diffi-
cult for the Court to accept the Norwegian argument on this
point because the monopoly, in Greenland, is an institution
which traces its origin to the Dano-Norwegian administration
in the xvirith century. It is also noteworthy that Norway
has adduced a document of an official character, dated Novem-
ber 3rd, 1916 (viz., the letter from the Danish Minister of the
Interior (Directorate of Greenland Colonies) to the Parliament-
ary Committee for the Danish West Indies), from which it
appears that the Danish administration was at. that time

53
LEGAL STATUS OF EASTERN GREENLAND 72

contemplating the application of the régime of exclusion to
the whole area of Greenland. The word “exclusion”? is more
correct in this context than “monopoly”, but this in no way affects
the argument.

From the foregoing, it results that the Court is unable to
regard the Ihlen declaration of July 22nd, rgrg, otherwise than
as unconditional and definitive.

The standpoint adopted by Norway led her in 19271 to refuse
a written confirmation of the Ihlen declaration, when such
confirmation was requested by Denmark in the note from her
Minister at Christiania on January 18th, 1921.

Thus, after the issue by Denmark of the Decree of May roth,
1921, which introduced the régime of exclusion for the whole
of Greenland, M. Restad, the Minister for Foreign Affairs,
informed the Danish Minister at Christiania, unofficially, on
July 2oth, 1921, that “the Norwegian Government has not
recognized and cannot consent to recognize an extension of
Danish sovereignty over Greenland which would involve a cor-
responding extension of the Danish monopoly, since the result
would be the extinction of the economic activities, and parti-
cularly the hunting and fishing operations hitherto pursued
without hindrance by Norwegians in the parts of Greenland
and in the Greenland waters in question”; this was confirmed
in the official Norwegian note of November 2nd, 1921, which
has been referred to earlier in this judgment. The régime of
exclusion, which—according to the Norwegian Government’s
argument—could not have been foreseen by it, was sufficient to
justify—according to such argument—the change in its attitude.

It follows from what has already been said that the Court
is unable to adopt this reasoning.

The Court readily understands that Norway should feel
concern for the interests of the Norwegian hunters and fisher-
men on the East coast of Greenland: but it cannot forget, in
this connection, that as early as December 1921, Denmark
announced her willingness to do everything in her power to
make arrangements to safeguard Norwegian subjects against
any loss they might incur as a result of the Decree of
May roth, 1921 (letter from the Danish Minister at Christiania
dated December r19th, 1921, to the Norwegian Minister for
Foreign Affairs). The Convention of July gth, 1924, was a
confirmation of Denmark’s friendly disposition in respect
of these Norwegian hunting and fishing interests.

What the Court cannot regard as being in accordance with
the undertaking of July 22nd, 1919, is the endeavour to replace
an unconditional and definitive undertaking by one which
was subject to reservations: and what it is even more diffi-
cult for the Court to admit is that, notwithstanding the under-
taking of July 22nd, 1919, by which she promised to refrain

54

LEGAL STATUS OF EASTERN GREENLAND — 73

from making difficulties in the settlement of the Greenland
question, Norway should have stipulated that “Eastern Green-
land must be Norwegian”. This pretension was already appar-
ent at the end of a letter of January 12th, 1923, from the
Norwegian Minister at Copenhagen to the Danish Minister for
Foreign Affairs; and it was enunciated very definitely on Sep-
tember 28th, 1923, in the minutes of the sixth meeting of the
Conference which drew up the Convention of July gth, 1924,
and again in the Protocol signed on January 28th, 1924,
referred to above.

The Court is unable to read into the words of the Ihlen
declaration “in the settlement of this question” (i.e. the Green-
land question) a condition which would render the promise to
refrain from making any difficulties inoperative should a settle-
ment not be reached. The promise was unconditional and
definitive. It was so understood by the Norwegian Minister
for Foreign Affairs when he told the Danish Minister at Chris-
tiania~ on November 7th, 1910, that “it was a pleasure to
Norway to recognize Danish sovereignty over Greenland”
(dispatch from the Danish Minister at Christiania to the Danish
Minister for Foreign Affairs of November 8th, Igr9). It was
also in the same sense that the Danish Minister at Christiania
had understood the Ihlen declaration, when he informed the
Danish Minister for Foreign Affairs on July 22nd, 1919, that
M. Ihlen had told him ‘‘that the plans of the Royal Govern-
ment in regard to the sovereignty of Denmark over the whole
of Greenland would not encounter any difficulties on the part
of Norway’.

It follows that, as a result of the undertaking involved
in the Ihlen declaration of July 22nd, 1919, Norway is under
an obligation to refrain from contesting Danish sovereignty
over Greenland as a whole, and a fortiort to refrain from
occupying a part of Greenland.

ie

Denmark has maintained that the Convention of July oth,
1924, already referred to above, excludes any right on the
part of Norway to occupy a part of Greenland.

In this connection it should be noted that when Norway
initiated negotiations in 1923, on the question of Greenland,
the negotiations were intended to cover the whole problem
of Greenland, and primarily the legal status of the eastern
coast. But when it was found impossible to reconcile the
Danish theory of sovereignty and the Norwegian theory of a
terra nullius, it became necessary to confine the negotiations
to an arrangement on certain matters which it was possible
to regulate, while leaving the legal status of the uncolonized

55
LEGAL STATUS OF EASTERN GREENLAND 74

part of the island undefined. The matters in question were
the right of sojourn, of taking possession of land for user,
the right of hunting and fishing and of establishing telegraph
stations and other installations in Eastern Greenland. These
were interests which Norway was, as is known, much con-
cerned to uphold. In order to make it quite clear that the
Convention only covered a limited part of the whole question
of Greenland, the Parties exchanged identic notes, on the same —
day as the signature of the Convention, declaring that each
reserved its fundamental standpoint on questions concerning
Greenland not dealt with in the Convention, so that nothing was
prejudged, nothing abandoned or lost thereby. The question of
the sovereignty and that of the terra nullius—to mention that
point alone—were thus left entirely outside the Convention of
July oth, 1924, and the Court finds that neither Denmark nor
Norway can derive support from the Convention for their
fundamental standpoints on the legal status of the territory
covered by the Convention: viz., Danish sovereignty, or
terra nullius, respectively. And, in truth, Norway has never
argued that she was entitled to derive any such argument
from the Convention.

Finally, Denmark has maintained that, under certain pro-
visions.of the Covenant of the League of Nations, of the Gen-
eral Act of conciliation, judicial settlement and arbitration
of 1928 and of conventions between Denmark and Norway
for the pacific settlement of disputes, Norway is likewise
bound to abstain from occupying any part of Greenland ;
it is also maintained that the same result ensues from two
agreements said to have been arrived at by the two Parties
at the beginning of July 1931, in the course of the exchange
of views which preceded the occupation of July roth, and of
which an account has been given in the early part of this
judgment.

In view of the conclusion reached by the Court, there is
no need for these questions to be considered.

Each Party has prayed the Court to order the other Party
to pay the costs in the present case. The Court, however,
holds that there is no need in the present case to deviate
from the. general rule laid down in Article 64 of the Statute,
namely, that each Party will bear its own costs.

56
LEGAL STATUS OF EASTERN GREENLAND 75

FOR THESE REASONS,
The Court,
by twelve votes to two,

(x) decides that the declaration of occupation promul-
gated by the Norwegian Government on July roth, 1931,
and any steps taken in this respect by that Government,
constitute a violation of the existing legal situation and
are accordingly unlawful and invalid ;

(2) rejects the opposing submissions of the Norwegian
Government ;

(3) declares that there is no need to deviate from the
general rule laid down in Article 64 of the Statute that
each Party will bear its own costs.

Done in French and English, the English text being authori-
tative, at the Peace Palace, The Hague, this fifth day of
April, one thousand nine hundred and thirty-three, in three
copies, one of which shall be placed in the archives of the
Court and the others delivered to the Agents of the Govern-
ment of His Majesty the King of Denmark and of the Govern-
ment of His Majesty the King of Norway respectively.

(Signed) M. ADATCI,
President.

(Signed) À. HAMMARSKJÜLD,
Registrar.

M. AnziLoTrTi, Judge, and M. Voct, Judge ad hoc, declare
that they are unable to concur in the judgment given by the
Court and, availing themselves of the right conferred on
them by Article 57 of the Statute, append to the judgment
the dissenting opinions which follow.

MM. Scutcxinc and Wane, Judges, whilst concurring in
the judgment, have appended thereto the observations which
follow.

(Initialled) M. A.
(Initialled) À. H.

57