President Donald Trump has suggested that Denmark’s claim to Greenland is doubtful, reflecting the public musings of his Deputy Chief of Staff Stephen Miller. Rather than the ‘niceties of international law,’ Miller added, the issue should be determined according to the power relations among nations and their security needs.
President Trump has now amplified that sense, insisting in an interview with The New York Times that international law has little relevance for him. What counts instead is his own sense of morality, he asserted, adding somewhat incongruously that ‘I don’t need international law’ as he is not looking to hurt people. Instead, the threat or even use of force appears to be a bargaining tool in pursuit of US national and security interests, along with his increasing reputation for unpredictability.
The Greenland episode may teach him differently. While Denmark is no match for the US in military terms, it does hold good title to the island, along with the right to self-determination of the local population. In this instance, international law does play an important strategic role, balancing the relative power of both sides.
The united and strong European response to US threats against Denmark – a brand leader in compliance with international law along with other Nordic states – offers an indication that others remain committed to the international rule of law and will, eventually, be willing to speak up in favour of an international system governed by rules and principles that by and large yield stability and security for all, whether weak or strong.
In opting out of this consensus, the US risks assuming the position of a rogue state within the international system. It seems unlikely that Denmark, or others, will in the future be keen to come to agreements or settlements with a state that so openly claims the right to disregard what has been agreed as a matter of law.
1721
The Danish claim is unimpeachable. It reaches back into the 18th century. Then, territories that had not yet been colonially occupied were considered ‘terra nullius ’ – lands belonging to no one, irrespective of the fact that indigenous populations had lived there for millennia. Title would be founded on ‘discovery,’ taking possession and then effective administration of the claimed territory.
Denmark can point to the arrival of missionary Hans Egede on the island in 1721. It claims to have administered the islands ever since. International law accepts that evidence of the actual effective occupation can be light where the territory is remote and inhospitable.
In view of the complicated relationship between Denmark and Norway at the time, and some Norwegian activity in Eastern Greenland later on, Oslo challenged the Danish claim early in the 20th century.
However, the Permanent Court of International Justice ruled in 1933 that Norway’s Foreign Minister Nils Claus Ihlen had given up any claim to Greenland. He had declared in 1919 that the Danish claim ‘would be met with no difficulties on the part of Norway’.
Second World War
The US took over the defence of Greenland during the Second World War. However, this did not affect sovereignty over the island. After the war, Denmark was pressed into listing Greenland as a ‘non-self-governing territory’ – a colony – with the United Nations.
However, in 1953, Denmark informed the United Nations that Greenland had now become an integral part of the Kingdom, with constitutional representation in the Danish parliament and other benefits. Hence, its colonial status had ended.
The UN General Assembly determined in Resolution 849 (IX) that ‘Greenland freely decided on its integration within the Kingdom of Denmark on an equal constitutional and administrative basis with the other parts of Denmark.’
This result has been universally accepted. However, since then, campaigners have argued that the indigenous population of Greenland did not approve this move in a referendum.
In resolution 849 (IX), the General Assembly in fact expressly commended the participation of Greenland representatives in the process. Still, it adopted another resolution immediately afterwards, Resolution 850 (IX), emphasizing in general terms the need to validate a decision on integration with a colonial power through an expression of the will of the people.
Self-government
Any doubts have, however, been removed by Denmark which has progressively increased the level of self-government for Greenland, first in the Home Rule Act of 1979 and then in the Self-Government Act of 2009. This latter instrument was approved in a Greenland referendum by a majority of 75.5 per cent.
The Self-Government Act transfers virtually all powers of governance to the Greenland local authorities, with the exception of defence, monetary policy and external relations. In fact, Greenland can even conclude treaties independently of Denmark. However, this does not extend to agreements affecting its status within Denmark.
Crucially, the Act recognizes Greenland as a self-determination unit. It can freely decide to change its status through a referendum among its population of around 57,000. If there is a decision in favour of independence, negotiations with Denmark about the terms of the divorce would need to follow. The results would then need to be endorsed by the Danish parliament, which retains authority to approve any change to the territory of Denmark.
This process is in accordance with international legal procedures on implementing a right to self-determination enshrined in domestic, constitutional law or practice. This includes the criteria enunciated in the important pronouncement of the Canadian Supreme Court on Quebec. Like the UK in relation to the Scottish referendum of 2014, Denmark has committed itself to implementing a decision favouring independence through legislative action.
The US is no stranger to large purchases of land from other sovereigns, having acquired Louisiana from France, Florida and the Philippines from Spain and Alaska from Russia. Denmark, too, transferred the Danish East Indies, now the US Virgin Islands, to the US in 1916.
Previous US attempts to buy Greenland
In fact, the US has attempted to buy Greenland on repeated occasions over the past centuries, most notably in 1946, when President Truman offered $100 million in gold – a colossal sum at the time. Then as now, Denmark refused.
But the true value of the episode is that it destroys any possible US opposition to the Danish title. Why would it offer a king’s ransom to Denmark, if it did not believe that Denmark was the rightful sovereign, entitled to dispose the island?
In fact, there is even stronger evidence. In the 1951 Defense of Greenland Agreement with Denmark, the US unambiguously recognizes ‘the sovereignty of the Kingdom of Denmark’ over Greenland. In the updated agreement of 2004, the US expressly notes the change of the status of the territory from colony to that of an ‘equal part of the Kingdom of Denmark,’ precluding any US challenge to the lawfulness of that change of 1953.
If the US has no entitlement to Greenland, it may be guilty of bullying, but this does not yet amount to an unlawful threat of the use of force in violation of the UN Charter. This would require a specific threat of invasion unless Copenhagen complies with US demands for a transfer of sovereignty.