Greenland and US Annexation Threats

No matter whether or not the US administration’s renewed risk to annex Greenland materializes, its a number of authorized ramifications warrant severe evaluation below public worldwide legislation and inside the EU authorized order as mediated by Danish home legislation. President Trump has not solely refused to rule out the usage of army power to amass Greenland however has additionally repeatedly doubled down on his annexation ambitions, reworking what would possibly as soon as have been dismissed as rhetorical provocation into a reputable geopolitical situation.

The authorized complexity is unprecedented exactly as a result of a number of frameworks intersect, and their precise interpretation stays undefined. Worldwide legislation prohibits the acquisition of territory via power or the specter of power (Article 2(4) UN Constitution), but the brink at which financial stress constitutes illegal coercion stays contested. NATO allies are dedicated to the peaceable settlement of disputes (Article 1 of the North Atlantic Treaty), however the treaty offers no steering on easy methods to reply when one ally threatens one other’s territorial integrity. EU legislation provides an additional layer: Article 42(7) TEU mandates mutual support and help (“by all of the means of their energy, in accordance with Article 51 of the United Nations Constitution”), elevating the unresolved query whether or not and the way this obligation applies to Danish territory mendacity outdoors the EU’s territorial scope, and notably whether or not financial coercion, nonetheless extreme, can represent “armed aggression” inside the which means of the Constitution’s self-defense framework.

Greenland itself complicates the image additional. Whereas Denmark retains sovereignty, the 2009 Self-Authorities Act acknowledges Greenlanders as a individuals below worldwide legislation with a proper to self-determination. This raises foundational questions on whose consent is legally required for territorial switch, whether or not self-determination permits territorial switch to a 3rd state relatively than solely independence (or continued affiliation with Denmark), and the way such claims work together with the precept of territorial integrity and the prohibition on coerced consent.

Past doctrine lie questions of enforcement and response. May Denmark invoke Article 42(7) TEU, and what would “support and help by all of the means of their energy” require when the supply of the risk can also be a NATO ally and the muse of European collective protection? What roles may the ICJ, the UN Basic Meeting, or non-recognition doctrines realistically play given the US’ veto energy within the Safety Council and withdrawal from obligatory ICJ jurisdiction? To what extent may financial countermeasures be justified below the legislation of state duty as responses to internationally wrongful acts, and would they continue to be suitable with WTO obligations or qualify as justified exceptions? Home constitutional constraints, be it in Denmark or Greenland, add yet one more layer of complexity.

This Verfassungsblog Highlight brings collectively authorized consultants to deal with these intersecting questions throughout worldwide legislation, EU constitutional legislation, NATO obligations, and Danish constitutional necessities. Whereas present commentary has examined remoted points of the Greenland query (and a burgeoning checklist of feedback is rising), complete evaluation of how these authorized regimes work together – and of the concrete response choices they supply – stays largely absent. The urgency lies not in predicting whether or not annexation will happen, however in clarifying the authorized frameworks that may govern such a situation, the obligations they impose, and the mechanisms they supply for prevention and response.

This introductory contribution focuses on Greenland’s authorized standing below worldwide legislation and EU legislation within the gentle of Danish home legislation. Different substantive questions, reminiscent of whether or not worldwide legislation prohibits the strategies the US threatens to make use of, whether or not Article 42(7) TEU’s mutual protection clause applies, what enforcement mechanisms exist, shall be addressed by subsequent contributions. This contribution establishes the required authorized basis.

Greenland’s Authorized Standing

Any evaluation of the authorized implications of potential US annexation should start with (i) Greenland’s standing below worldwide legislation, (ii) EU legislation, and (iii) Danish constitutional legislation. This standing determines which authorized frameworks apply to such a situation, whose consent territorial switch would legally require, and what obligations it will set off for third states.

Worldwide Regulation: Danish Sovereignty with Acknowledged Self-Willpower

Greenland is just not a sovereign state and possesses no unbiased worldwide authorized persona. It’s geographically categorized as a part of North America however owing to its historic ties with Denmark, formalised via Danish colonial administration starting within the early eighteenth century- it’s typically perceived as European. As a part of the Kingdom of Denmark (Rigsfællesskabet), a state comprising Denmark, the Faroe Islands (a 3rd nation within the EU context), and Greenland (an EU abroad nation and territory), Denmark retains full sovereignty over Greenland below worldwide legislation – because the ICJ confirmed in 1933. This consists of unique competence over international affairs, protection, safety coverage, and the conclusion of treaties with protection or international coverage implications. Beneath worldwide legislation, any territorial switch requires the sovereign state’s consent.

Nevertheless, the 2009 Act on Greenland Self-Authorities (changing the 1979 Dwelling Rule Act) acknowledges in its preamble “that the individuals of Greenland is a individuals pursuant to worldwide legislation with the correct of self-determination”. This constitutes the primary specific recognition in Danish laws of Greenlanders as a definite individuals holding self-determination rights. The Act transfers substantial competences to Greenland’s parliament (Inatsisartut) and authorities, together with pure sources, subsurface rights, and mineral extraction –  economically vital given Greenland’s uncommon earth deposits and hydrocarbon potential. Denmark retains competence over constitutional affairs, financial coverage, international affairs, protection, and serves as the ultimate court docket of enchantment via the Danish Supreme Court docket.

Part 21 of the Self-Authorities Act establishes a process for independence: “Selections on Greenland’s independence shall be taken by the individuals of Greenland”. If the Greenlandic parliament initiates independence negotiations and a majority of Greenlanders approve in a referendum, Part 21 commits Denmark to respect this determination and negotiate independence phrases. Critically, the Act contemplates solely two outcomes: continued affiliation with Denmark or independence, not the switch to a 3rd sovereign. Whether or not the acknowledged proper to self-determination extends to voluntary subordination to a brand new sovereign energy stays legally unresolved. The 1970 Declaration on Pleasant Relations, extensively considered an authoritative interpretation of basic UN Constitution ideas and reflecting customary worldwide legislation, identifies modes for realizing self-determination as “the institution of a sovereign and unbiased State, the free affiliation or integration with an unbiased State or the emergence into every other political standing freely decided by a individuals”. Nevertheless, state apply and ICJ jurisprudence have predominantly interpreted these modalities in decolonization contexts, as pathways from dependent or colonial standing to self-governance via independence, continued affiliation with the previous administering energy, or integration with that energy. Whereas just a few contested instances exist the place territories have modified sovereign allegiance (reminiscent of Western New Guinea’s switch to Indonesia in 1963 or Northern Mariana Islands’ integration with the US in 1986), whether or not voluntary switch to a significant energy with no prior constitutional or administrative connection constitutes a respectable train of self-determination lacks clear precedent in worldwide legislation and stays doctrinally contested.

This confirms that regardless of being “one of many important ideas of latest worldwide legislation” – as established by the ICJ in East Timor (Portugal v Australia) -, the precept of self-determination additionally stays one of the vital unsettled norms in worldwide legislation particularly when utilized past the colonial context, and it has been described as ‘tormented by an extra of indeterminacy each by way of scope and content material’

EU Regulation: OCT Standing and Territorial Scope Questions

Greenland’s relationship with the European Union is sui generis and is primarily mediated via Denmark. Having been first recognised as a former colony of Denmark, Greenland maintained formal relations with the EU since 1973, when, within the aftermath of Denmark’s accession to the European Communities (EC), Greenland was included as a part of Danish territory. But, it’s price noting that through the 1972 Danish referendum on EC membership, Greenland was not afforded the prospect to carry a separate referendum. Had it finished so, the outcome would have been adverse, as a transparent majority of Greenlanders—roughly 70 per cent—voted towards EC membership.

Following rising tensions over fisheries coverage, primarily Greenland’s financial lifeline, a 1982 consultative and non-binding referendum resulted in 52% voting to depart the EEC. In consequence, in 1985, Greenland grew to become the primary territory to ‘exit’ from the European Communities via a negotiated authorized course of and remained the one instance till Brexit. Legally talking, it was not a ‘withdrawal’ as Greenland was not a Member State of the EU however was, and stays, a part of an EU Member State, Denmark. The exit from the EC happened within the type of a discount of the territorial jurisdiction of the Treaties via a Treaty change ratified by all Member States. The referendum sought to find out whether or not the EC Treaties ought to proceed to use in Greenland, and never tackle the potential transition to an OCT standing. But, attributable to its former standing as a colony, its geographical distance from the EU and in keeping with Greenland’s needs, each developments happened. Greenland grew to become an ‘related abroad territory’ (Article 204 TFEU) with particular preparations with the EU, notably with regard to fisheries (it’s given entry to the one marketplace for fisheries’ merchandise in return for EU fishermen’s entry to Greenland waters (Protocol 34 to the Treaties)). This standing offers particular affiliation, together with growth cooperation, duty-free market entry for Greenlandic merchandise, and participation in sure EU packages, however excludes Greenland from EU main legislation’s utility, together with the Widespread International and Safety Coverage (CFSP) and Widespread Safety and Defence Coverage (CSDP). Greenlanders retain EU citizenship via their Danish nationality, however don’t reside in EU territory for treaty functions.

This OCT standing raises a vital authorized query revolving across the so known as EU’s “mutual help clause” (additionally known as mutual protection clause): When Article 42(7) TEU (an assault on one is an assault on all) refers to armed aggression “on [a Member State’s] territory” does this embody Danish sovereign territory that withdrew from the EU in 1985 and holds OCT standing? The prevailing interpretation suggests Article 42(7) covers territories to which EU legislation applies however not OCTs listed in Annex II. That is the place held by Bob Deen, Dick Zandee, Adája Stoetman at Clingendael, Federica Fazio, Hermann-Josef Blanke and Stelio Mangiameli.  Nevertheless, this slender studying is contested as: “its territory” in worldwide authorized utilization encompasses all sovereign territory of a Member State, and excluding OCTs would create a harmful hole in collective protection, permitting adversaries to focus on Member States’ peripheral territories with impunity.  Proponents of this broader interpretation embody Ulla Neergaard (right here and right here), and Dimitry Kochenov. The query stays unresolved within the absence of authoritative interpretation by the Court docket of Justice or definitive state apply, and shall be additional explored by different contributors to this Highlight. It’s price recalling, lastly, that the mutual help clause has been invoked solely as soon as since its introduction by the Lisbon Treaty in 2009, when France activated it following the terrorist assaults (on the Bataclan) in Paris in 2015. Furthermore, the query concerning the potential penalties of 1 NATO ally invoking the EU mutual help clause towards one other is just not new: it was first raised by the then Greek international minister in response to a possible confrontation with Turkey.

Danish Constitutional Regulation: Twin Consent and Procedural Necessities

Beneath Danish constitutional legislation, any territorial cession would require compliance with procedures for constitutional amendments and doubtlessly referenda below the Danish Structure (Grundloven), although the exact necessities stay topic to interpretation given Greenland’s distinctive self-government standing. The Structure doesn’t explicitly tackle territorial cession, creating uncertainty as as to if such a basic change would require the process below Part 88 (constitutional modification, requiring two successive parliamentary votes with an intervening election and a confirmatory referendum) or whether or not abnormal legislative motion with a professional majority would possibly suffice.

What’s clearer is the framework established by Greenland’s self-government preparations. As anticipated, the Self-Authorities Act of 2009 (Selvstyreloven), which outmoded the 1979 Dwelling Rule Act, establishes in Part 21 that if Greenland’s individuals determine in favour of independence, negotiations shall start between the Danish Authorities and Naalakkersuisut (the Greenlandic authorities) concerning the introduction of independence.

This creates a dual-consent structure: Denmark retains sovereignty and should act via its constitutional procedures, whereas Greenland holds what quantities to a veto over basic adjustments to its political standing via its self-government establishments.

Whether or not a switch to a 3rd state would require the identical procedures as independence, or whether or not such a switch is legally contemplated in any respect, stays ambiguous, because the Act explicitly addresses solely independence or continued affiliation. The authorized structure established in 1979 and refined in 2009 was designed for a binary selection: deeper integration with Denmark or eventual independence. Switch to a 3rd sovereign energy merely doesn’t seem within the constitutional framework, elevating the query of whether or not such a switch falls outdoors the legally permissible workout routines of self-determination below Danish legislation.

The interplay between these home constitutional necessities and worldwide legislation ideas on coerced consent shall be explored by subsequent contributions inspecting the validity of consent obtained below duress. The vital query is whether or not constitutional procedures, referenda, parliamentary votes, and negotiations between Danish and Greenlandic authorities can perform meaningfully when subjected to overwhelming exterior financial or army stress. Does excessive coercion render constitutional procedures mere formalities incapable of validating what worldwide legislation prohibits? Or can constitutional legislation preserve its integrity and gatekeeping perform even below duress?

Conclusions

This contribution strived to pin down a number of foundational factors for the authorized questions raised by America’s risk of annexation, no matter its kind, of Greenland. The contributions that observe construct on such a framework to look at these substantive questions in depth. What emerges clearly from this foundational evaluation is that Greenland’s distinctive standing, concurrently a Danish sovereign territory, a self-governing entity with acknowledged self-determination rights, an OCT outdoors the EU’s geographical scope, and an Arctic territory of immense strategic significance, creates authorized ambiguities exactly the place readability is most wanted. The query of how worldwide legislation, EU legislation, and Danish constitutional legislation would reply to coercive and even consensual annexation makes an attempt requires cautious examination.