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Introduction
A suit was instituted before the Permanent Court of International Justice (hereinafter PCIJ) by Royal
Danish Government against the Royal Norwegian Government over the legal status of certain territories in
Eastern Greenland. Cause of Action for the dispute arose when Norwegian Government on July 10th,
1931 proclaimed that it proceeded to occupy certain territories of Eastern Greenland which as contented
by Denmark are subject to sovereignty of Crown of Denmark.
Established Facts of the Case as per the submissions of the Parties before the Court are as follows:
It is established that Greenland was discovered around 900 A.D. It was colonized 100 years later. Eric the
Red of the Norwegian origin was the best know colonist. At that time two settlements called Eystribygd and
Vestribygd existed as an independent State for some time; however, latter they became tributary to the
kingdom of Norway in the 13th century. These settlements disappeared before 1500.
From 1814 to 1380 the Kingdoms of Norway and Denmark were united by the same Crown. Despite
disappearance of the early settlements the sovereignty of the Crown was not doubted. Treaty of Lund of
September 27th, 1697 where Sweden recognized the rights of ancient rights and claims of the King of
Denmark over Greenland is an apt example.
An autonomous Board was constituted by the King in 1774 to administer the trade activities in
Greenland. The State of Denmark had monopoly over the trade activities in Greenland. This resulted in
establishing colonies, factories or stations along the West coast latter efforts to reach the East coast were
not successful. Norway contented that Greenland in general mean the colonized part of the West coast
and where as Denmark viewed Greenland as encompassing whole island of Greenland.
After a war that broke out between Denmark and Sweden and her allies, Denmark was made to sign the
Peace Treaty of Kiel in 1814 according to which the Kingdom of Norway, excluding Greenland, the Faeroe
Isles and Iceland, was seceded to Sweden. In the 19th century Greenland witnessed lot of Danish
expeditions. Danish Government was approached for permission to carryon trade or establish stations etc.
In 1905 the Danish Minister issued a decree specifying the limits of the territorial waters around
Greenland. Denmark promulgated a law concerning the administration of Greenland in 1908 and colonies
on the West coast were divided into Northern and Southern districts. On December 27th, 1915 the United
States as a quid pro quo to Denmark's cession of West Indian Islands declared that it would not object to
the Danish Government extending their political and economic interests to the whole of Greenland. The
Danish government in bilateral or multilateral commercial conventions relating to economic questions had
excluded Greenland from the operation of such conventions to secure the insertion of a stipulation.
Meanwhile Norway in apart from expeditions to the East coast from 1889 onwards, an expedition in 1922
resulted in establishing a provisional wireless station at Mygg-Bukta to which Denmark lodged its protect
immediately against such erection. Latter, large number of houses and cabins of Norwegian origin were
built.
On July 10th, 1931 by a Norwegian Royal Resolution the King of Norway declared the occupation of the
country in Eastern Greenland between Carlsberg Fjord on the south and Bessel Fjord on the north.
Intertemporal Law
The doctrine of intertemporal law states that the crystallisation of a right must be analysed through the
application of international law as it existed at the point in time when the right arose. Hence, if a dispute
regarding sovereignty over a certain territory arose in the 18th century, international law as it existed then
must be applied to analyse the factual matrix. In the Clipperton Island arbitration, a dispute arose between
France and Mexico and through the application of intertemporal law of the 18th century, arrived at the
conclusion that symbolic annexation, or a first and decisive act of sovereignty, was a valid means of
acquiring territory. In Island of palmas case intertemporal law of the 19th century was applied by Judge
Huber, the sole arbitrator in the proceedings and through the application of intertemporal law it was held
that mere discovery, conferring an inchoate title, was not an accepted means of acquiring sovereignty over
a parcel of territory but was in fact effective occupation, or actual occupation and administration over the
territory.
The court in the instant case applied intertemporal law and thus analysed the facts of the case with respect
to the doctrine of effective occupation and the then modes of acquisition of territory.
Critical Date
In certain cases of dispute vis--vis territorial sovereignty, there arises a point in time wherein the rights
and stances of the parties have crystallised to such an extent that no action they take beyond that
particular date will alter their legal position. A critical date of crystallisation of a dispute is sometimes
determined, the events occurring after which are not considered in determining title. This is with a view to
exclude from judicial consideration unilateral actions of parties seeking to strengthen their respective
positions in the dispute.
Acts undertaken after the critical date shall not be taken into consideration, unless such acts are a normal
continuation of prior acts and are not undertaken for the purpose of improving the legal position of the party
relying on them. However, in case of disputes concerning current title over a territory the critical date is
irrelevant. In the Minquiers and Ecrehos Case, the court held that while the critical date has an important
role to play, in certain cases it is irrelevant. Therefore the court did not consider the critical date in that
dispute but however emphasised on its importance.
In the Eastern Greenland case, the Danish Government contended that the date on which Danish
sovereignty should have existed is July 10th, 1931 in order to make the Norwegian declaration
meaningless. The PCIJ considered the Norwegian proclamation on July 10th, 1931 as the critical date. It
held that it is sufficient [for Denmark] to establish that valid title in the period immediately preceding the
occupation.
For a valid title, it is not needed to establish sovereignty over Greenland throughout the period before the
critical date. Despite the material adduced to the Court is thought to be insufficient to establish the
existence of that sovereignty during earlier periods or otherwise, what is relevant for consideration is the
finding that who has sovereignty immediately preceding the occupation.
Territorial Sovereignty
Theoretical Framework
The passage of intertemporal law has been a varied one through the centuries. Changes and alterations
have taken place at various points in time, as the laws of acquisition of territorial sovereignty evolved. At
one point in time, prior to the 1700s, mere discovery was sufficient to establish a complete title over a
parcel of territory.
However, during the 1700s, discovery was opined to have transferred an inchoate title coupled with acts of
symbolic annexation. Acts of symbolic annexation included the planting of a flag as stated by Judge Huber
in the Island of Palmas case. However, this inchoate title had to be consolidated within a reasonable
period of time else the title would be forfeited.
During the 1700s, though state practice accepted symbolic annexation as the accepted means of
obtaining sovereignty, jurists in their writings, however, demanded that effective occupation be the
requisite mode for acquiring territory. However, it was not until the 19th century that widespread state
practice accepted effective occupation as the mode of acquiring territory. Effective occupation had two
requirements:
1. Animus occupandi
2. Corpus possesionis
Animus occupandi, or animus possidendi is the will to act as sovereign over a particular territory and is the
subjective element of effective occupation and corps possession, the objective element, is the actual steps
that have been taken to further that intention.
Corpus possessionis includes the actual possession and administration over the territory concerned.
Administration has to be for a reasonable period of time though. In the territorial dispute between Burkina
Faso and Mali, the court held that some twenty years is far too short a time to establish a title.
However, if the territory is highly inaccessible or is located upon the high seas then the threshold of
corpus possessionis is minimal. Furthermore, if the territory is not populated too the threshold is very low.
Greenland were explicit. The Norwegian occupation was illegal and invalid, since Denmark, at the very
least in the 10 years previous to the Norwegian occupation, had displayed and exercised her sovereign
rights to an extent sufficient to constitute a valid title to sovereignty'.
4. The Danish recognition of Norwegian sovereignty over Spitzbergen did not constitute a quid pro
quo, in that Denmark did not possess in Spitzbergen interests comparable to those of Norway in
East Greenland.
PCIJ rejected the argument of Denmark that the declaration is recognition of existing Danish sovereignty.
On careful examination of the circumstances and the words used it cannot be inferred that the declaration
is a definitive recognition of its sovereignty. However, the Court based on the relevant material concluded
that the Norwegian attitude in Greenland and Danish attitude in the Spitzbergen are interdependent. The
affirmative reply by the Minister had the ability of creating a bilateral engagement. Even if there is no such
engagement, what Norway desired from Denmark regarding Spitzbegen is similar to Denmark's wish from
Norway. Hence the reply by Mr. Ihlen on July 22nd, 1919 is definitely affirmative.
The PCIJ made the reply of Mr. Ihlen binding on the Norwegian Government by stating that:
The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign
Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign
Power, in regard to a question falling within his province, is binding upon the country to which the Minister
belongs
However, it is not clear which facts contributed for characterizing it a reply of this nature.
Conclusion
PCIJ by twelve votes to two adjudged that the promulgation by the Norwegian Government on July 10th,
1931 on occupation over Greenland and any steps in furtherance of the declaration would amount to
violation of existing legal situation and are accordingly unlawful and invalid. To ascertain the legal status of
Eastern Greenland, the PCJ relied on the following premises:
1. The continuous and peaceful exercise of sovereignty over Greenland resulted in the title towards
Denmark.
2. The Court made the Ihlen declaration binding thereby conferring the sovereignty to Denmark.
The Eastern Greenland case has reiterated the principles of International law laid down in Clipperton
Island arbitration and Island of Palmas/Miangas arbitration. Furthermore this has influenced the decision in
the recent case concerning sovereignty over Pulau ligitan and Pulau sipadan, a contentious case between
Indonesia and Malaysia where in the Court ruled in favour of the latter after relying on the decision and
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