76

DISSENTING OPINION OF M. ANZILOTTI.

[Translation. |

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

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

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

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

I speak only of the Danish request in 1919 and of the
declaration made in response thereto because, in my view,
that is the only agreement between the two countries—assuming,
of course, that there was an agreement—which concerns the
question submitted to the Court. As regards the Convention of
July oth, 1024, concerning Eastern Greenland, I hold, with
the judgment, that the notes exchanged the same day between
the Danish and Norwegian Governments render it impossible to
adduce any argument from that Convention in support of
the contentions of either Party.

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DISSENTING OPINION OF M. ANZILOTTI 77

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

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

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

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

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

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

8 59
DISSENTING OPINION OF M. ANZILOTTI 78

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

The American Government’s declaration of August 4th,
1916, is to the effect that ‘the Government of the United .
States of America will not object to the Danish Government
extending their political and economic interest to the whole
of Greenland” (Annexes to the Danish Government’s Reply,
No. 170). The terms of this declaration deviate from those
of the request; but it is certain that the declaration was
construed by the Danish Government as a promise not to
object to the extension of Danish sovereignty. This emerges
from several documents; but the report of the Minister
for Foreign Affairs to the King, dated August rst, r916—
reproduced under No. 165 of the Annexes to the Danish
Government’s Reply—appears to me to be absolutely decisive
in this respect. In his report, the Foreign Minister says:

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

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

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

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

60
DISSENTING OPINION OF M. ANZILOTTI 79

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

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

In the note transmitted on March x6th, 1920, to the British
Secretary of State for Foreign Affairs (Annexes to the Danish
Government’s Reply, No. 171), we read: “I have accordingly
been instructed to submit to His Britannic Majesty’s Govern-
ment a request for the official recognition of His Danish
Majesty’s sovereignty over the whole of Greenland. In view
of my Government’s opinion, such recognition might bé given
in the same way as the Government of the United States of
America. recognized in 1916...”

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

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

The notes to the Italian Government, on March 17th, 1920
(Annexes to the Danish Government’s Reply, No. 173), to the
French Government, on March 2oth, 1920 (2b., No. 174), to the
Japanese Government, on May 12th, 1920 (1b., No. 175), and
to the Swedish Government, on January 33th, 1921 (.,
No. 177), together with the documents annexed to them, though
containing some differences in wording, all reproduce the same
essential ideas, that is to say that, ever since the beginning

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DISSENTING OPINION OF M. ANZILOTTI 80

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

On two occasions, however, the Danish Government deviated
from this standpoint and contended that the recognition sought
was in respect of a situation already existing and long since
established: this it did, first, in the note which the Danish
Minister in London, on the basis of the instructions received
by him from the Foreign Minister (Annexes to the Danish
Government’s Reply, No. 176), addressed to the British
Government on July 2oth, 1920 (Danish Government’s Case),
and secondly, in the note addressed by the Danish Minister at
Christiania to the Norwegian Government on December roth,
1921 (Annexes to Danish Government’s Case, No. 9x). It is
therefore necessary to see in what circumstances this attitude
was adopted.

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

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

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

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DISSENTING OPINION OF M. ANZILOTTI 81

sovereignty. It is therefore difficult to consider the two notes
of July zoth, 1920, and December rgth, 1921, as representing
the standpoint adopted by the Danish Government in approach- .
ing foreign governments in regard to its position in Green-
land: to do so would indeed set these two documents in
manifest contradiction with the direct, definite, and concordant
statements which appear in all the other documents. |

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

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

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

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

The Italian Government’s reply, dated June 2gth, 1920,
states that ‘the Royal Government will have no difficulty in
recognizing the sovereignty of Denmark over Greenland” (zd.).
In my opinion, it is beyond all doubt that what is contem-
plated here is a future recognition, i.e. a recognition which
will not be refused whenever Danish sovereignty has been
extended to the whole of Greenland.

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

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DISSENTING OPINION OF M. ANZILOTTI 82

sovereignty over Greenland’? (Danish Case); and the Swedish
reply, dated January 28th, 1021, declares that “.... His
Majesty’s Government, as from this date, has recognized the
sovereignty of Denmark over the whole of Greenland” (:b.).
But there is nothing in these replies to indicate that these
Governments believed that they were confirming an already
existing sovereignty. The fact that the British Government
felt justified in appending to its recognition a reservation in
regard to its right to be consulted in case the Danish Govern-
ment should contemplate alienating this territory, appears
rather to point to an opposite conclusion.

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

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

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

Two facts in particular merit attention.

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

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

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DISSENTING OPINION OF M. ANZILOTTI 83

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

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

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

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

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

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

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DISSENTING OPINION OF M. ANZILOTTI 84

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

The situation however evolved in an entirely contrary
direction. |

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

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

Accordingly, the question of Danish sovereignty over Green-
land presented itself in a new light.

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

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

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

66
DISSENTING. OPINION OF M. ANZILOTTI 85.

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

Again, the fact that the Danish Government had doubts
as to the soundness of its claim to sovereignty over certain
parts of Greenland is proved by the very overtures which
it made. A proceeding of this kind is explicable only when
the government which resorts to it thinks it necessary to
safeguard a doubtful or unsettled position. Accordingly it
is a proceeding which, so far as I am aware, has not been
often resorted to. A single precedent has been cited: the
‘recognition of Swiss neutrality by Article 435 of the Treaty
of Versailles. But it has been forgotten that the purpose
of that Article was not to recognize Switzerland’s neutrality
which no one disputed, but something quite different: the
intention was on the one hand to secure approval of the
‘abrogation of certain provisions affecting Swiss neutrality,
and on the other hand to place on record that the guarantees
stipulated in favour of Switzerland in 1815 constituted ‘“‘inter-
national obligations for the maintenance of peace’’, in order to
make it possible for that country to enter the League of Nations.

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

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

9 67
DISSENTING OPINION OF M. ANZILOTTI 86

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

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

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

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

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

In a letter dated at Copenhagen July r2th, 1919 (see Annexes
to the Danish Case, No. 84), the Minister for Foreign Affairs
instructed the Danish Minister at Christiania to inform the
Norwegian Minister for Foreign Affairs that the question of
Spitzbergen was shortly to be examined by a Committee of the
Peace Conference, composed of one American, one British,
one French and one Italian delegate, and that there was every
reason to believe that the Danish Government would in the
near future receive an invitation to bring its point of view on

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DISSENTING OPINION OF M. ANZILOTTI 87

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

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

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

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

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

The minute was to the following effect :

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

Further, the Danish Minister informed me of the following:

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

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DISSENTING OPINION OF M. ANZILOTTI 88

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

The Danish Government confidently expected that the Norwegian
Government would make no difficulty in connection with the settle-
ment of this matter. I replied that the question would be consid-
ered.”’

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

“TI to-day informed the Danish Minister that the Norwegian
Government would make no difficulty in connection with the settle-
ment of this matter.”

The Danish Minister informed his Government of the reply
in a despatch, of the same date, in which he stated that
M. Ihlen, Minister for Foreign Affairs, had informed him on
that day that “the plans of the Royal Government concerning
Danish sovereignty over the whole of Greenland—mentioned
in your despatch of r2th instant—will meet with no difficulty
on the part of Norway” (Annexes to the Danish Case, No. 85).

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

In this connection two questions arise:

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

(0) If so, was the agreement valid?

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

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

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DISSENTING OPINION OF M. ANZILOTTI 89

That was, it is true, the idea suggested by the Danish
Minister at Paris, in his note of July x1th, 1919 (Danish
Case). But the instructions which the Danish Minister for
Foreign Affairs sent on July rath to the Danish Minister at
Christiania (see above), and which resulted in his conversation
with the Norwegian Minister for Foreign Affairs, appear to
have been conceived and drawn up in rather a different
spirit. The reason probably lies in the fact—which was
recalled in the instructions—that the Danish Government had
already given. the Norwegian Government an unofficial assu-
rance that, as Denmark had no interests contrary to those
of Norway in the Spitzbergen question, she would raise no
objection to the latter’s demands. There is nothing in these
instructions that suggests the idea of asking the Norwegian
Government for a counter-concession; the declaration con-
cerning Spitzbergen, which the Danish Government was
proposing to “repeat” before the Committee, is indicated
rather as an opportunity for making an equivalent request
to the Norwegian Government. The words ‘nevertheless, I
would ask you, in the course of the conversation, to bring
out.” convey just that idea.

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

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

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

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DISSENTING OPINION OF M. ANZILOTTI go

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

It follows that when the Norwegian Minister for Foreign
Affairs informed the Danish Minister, on July 22nd, that “the
Norwegian Government would make no difficulty in the settle-
ment of this matter’, that signified that the Norwegian Govern-
ment would not object to the Danish Government extending
its political and economic interests to the whole of Greenland.
It has already been shown (see No. 3 above) that, in the eyes
of the Danish Government, ‘the extension of political and
economic interests’ signified, at any rate in the first place,
“the extension of sovereignty”. There is no reason to doubt
that this was also the sense in which the Norwegian Minister
for Foreign Affairs understood the Danish request. That view
is, indeed, confirmed by the subsequent documents, which
show that the Norwegian objections were not aimed at the
extension of Danish sovereignty, but at an extension of
sovereignty involving a corresponding extension of the mono-
poly; the extension of sovereignty was, therefore, common
ground: I would refer in particular to the private letter from
M. Restad, Norwegian Minister for Foreign Affairs, to
M. Kruse, Danish Minister at Christiania, dated July 2oth, 1927
(Annexes to the Norwegian Government’s Rejoinder, No. 209),
and to the Norwegian note of November 2nd of the same year
(Annexes to the Danish Government’s Case, No. 80).

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

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

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DISSENTING OPINION OF M. ANZILOTTI Or

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

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

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

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

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

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

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

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DISSENTING OPINION OF M. ANZILOTTI 9Z

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

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

It is manifest that the régime of exclusion, by rendering
hunting and fishing operations impossible in the territorial
waters and on the coasts of Greenland, might be gravely
detrimental to Norwegian interests. The documents submitted
to the Court clearly show that the difficulties raised by the
Norwegian Government in 192I—when the Danish Govern-
ment requested it to repeat in writing the verbal declaration
it had given in IgIg9—were not aimed at the extension of
sovereignty itself, but at the régime of exclusion which would
result from the extension of sovereignty.

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

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

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

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DISSENTING OPINION OF M. ANZILOTTI 93

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

This leads me to the last question which arises in connec-
tion with the binding character of the agreement of rg19;
viz. whether the breaking off of the negotiations by the Danish
Government in 1921 entitled the Norwegian Government to
consider itself released from its undertaking.

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

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

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

10 75
DISSENTING OPINION OF M. ANZILOTTI 94.

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

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

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

The results which flow from this agreement may be sum-
marized as follows:

(a) As Denmark admitted to Norway in 1919 that there
were parts of Greenland which were not yet subject to her
sovereignty, she could not now. adduce a sovereignty over
the whole of Greenland, existing prior to that date. As the
territory affected by the Norwegian declaration of occupation
of July roth, 19371, is indubitably one of the parts of Green-
land which—according to the Danish Government’s position
in 1919—were not subject to Danish sovereignty, that terri-
tory must be considered as a terra nullius, unless Denmark
could be shown to have extended her sovereignty to it by
acts subsequent to 1919, and in conformity with international
law; but no such fact has been adduced by the Danish
Government.

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

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

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

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

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

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DISSENTING OPINION OF M. ANZILOTTI 95

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

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

“that Denmark does not possess sovereignty over Eirik Raudes
Land ;
that Norway has acquired sovereignty over Eirik Raudes Land”.

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

(Signed) D. ANZILOTTI.

77