The United States and Denmark have been embroiled in political tensions over President Donald Trump’s desire to acquire Greenland, possibly even by force. The Prime Minister of Denmark, Mette Frederiksen, has recently met some of her EU counterparts to gain their political support for preserving Denmark’s territorial integrity. The current status of Greenland and its historic evolvement have been aptly explained in this blog. The aim of this post is to analyse how contemporary international law governs territorial acquisition and alteration of territorial status. As already discussed in this blog, it appears to be rather obvious that a threat or actual use of force by the United States would have been prohibited by Article 2(4) of the UN Charter. What consequences would such an illegality have for territorial title, and how does international law regulate non-forceful (attempt at) territorial acquisition? These questions are addressed in light of the right of self-determination and Greenland’s potential path to independence, which has now become entangled with the United States’ ambition of territorial acquisition.
Dated concepts of territorial acquisition
International legal doctrine still often refers to discovery, occupation, conquest, cession and annexation as modes of acquiring territory. As I explain in my recent book, Territorial Status in International Law, these modes are largely anachronistic. They are incompatible with the UN Charter-era rules on the use of force and self-determination. As evidenced by Russia’s actions against Ukraine, some states still resort to conquest and even formalize annexation as a matter of domestic law, but such actions do not shift territorial title under international law. Conquest and annexation offend against the prohibition of aggression, a peremptory norm which triggers the customary obligation to withhold recognition, reflected in Article 41 ARSIWA. Occupation nowadays is a concept under international humanitarian law (IHL), which comes with certain rights and duties for the occupying power but does not shift territorial title.
Under some circumstances, cession could still be legal under international law. A transfer of territorial title by cession would need to be formalized by a treaty whereby similar considerations would apply as those discussed by Gregory Fox in the context of peace agreements. In particular, a treaty on cession would be invalid if the state relinquishing territorial title were coerced into doing so and/or such a transfer was in breach of a peremptory norm of international law. Besides aggression, which turns cession into conquest, cession becomes illegal when it results in denial of the right of self-determination—also widely regarded to be a peremptory norm.
The right of self-determination would be violated if Denmark ceded Greenland to the United States without popular support in Greenland in favour of such a transfer of territorial title, even if this were a completely peaceful process. Prime Minister Frederiksen is thus right in saying that ‘Greenland belongs to the Greenlanders’, as Greenland cannot be ceded without the consent of its people. Are there any limits to this position?
Could the Greenlanders freely choose to be ceded to the United States?
Pursuant to UN General Assembly Resolution 1541, Principle VI, Non-Self-Governing Territories in the sense of Chapter XI of the UN Charter can opt either for independence, or merger or another kind of free association with another state. While initially included on the List of Non-Self-Governing Territories, Greenland was removed from the list by the UN General Assembly Resolution 854 in 1954 after receiving a full constitutional status within the Kingdom of Denmark. The legal framework of Resolution 1541, therefore, does not apply to Greenland. In terms of international law, the constitutional arrangement for Greenland within Denmark follows the internal self-determination model: autonomy and self-government falling short of statehood. Under such circumstances, changes in territorial status primarily depend on domestic law as long as certain fundamental rules of international law (e.g. use of force, self-determination) are not violated.
The 2009 Act on Greenland Self-Government contains the provision entitled ‘Greenland’s Access to Independence’, which specifies how negotiations on independence can be initiated upon such a decision being taken by the people of Greenland. An agreement achieved in independence negotiations needs to be confirmed by referendum in Greenland and is subjected to consent by the parliaments of Greenland and Denmark. This regulation reflects the position of the Supreme Court of Canada in the Quebec case that in a democratic society, an expression of the will of the people in favour of independence cannot be ignored and may trigger an obligation to negotiate a future territorial status. The 2009 Act thus enables Greenland to trigger the independence process, albeit with some safety valves for Denmark. Should this process be followed, Greenland could become a state in a law-governed political process. This would put it in a position different from Catalonia in 2017, where the declaration of independence was unilateral.
But this is statehood, how about merger or association with another state?
As established earlier, the option of merger or association with another state does not apply under international law in this case, because Greenland does not fall within the scope of the rules enshrined in Resolution 1541. Denmark’s domestic legislation refers to independence of Greenland, not merger or association with another state. Any popular consultation on the change of legal status could thus only ask for independence. Comparative practice also suggests that referendum questions need to be unambiguous and clearly phrased (see here and here). It would be wrong to blur the question of independence with the possibility of merger or association with the United States. However, were Greenland to become independent on the basis of the 2009 Act, would any international or domestic rules prohibit subsequent association with the United States?
As a matter of general international law, such an outcome would not be prima facie illegal if it were confirmed by the will of the people. But the will of the people under international law is not absolute. It is not unprecedented in international practice that constitutive instruments of states, whether constitutions or international treaties, explicitly prohibit merger or association with another state (e.g. the Austrian State Treaty). It should be recalled that the 2009 Act does not provide for a self-executing path to independence but requires negotiations and, inter alia, approval from the Danish parliament. It is thus conceivable that the issue of non-association with another state could become a part of an agreement sought under the 2009 Act, should this path be chosen in the future.
Conclusion
In contemporary international law, territorial title can be neither created nor altered by the historic modes of territorial acquisition, such as occupation, conquest and annexation. Cession can be legal where it does not violate the right of self-determination and does not result from coercion. Since Greenland is not a Non-Self-Governing Territory in the sense of Chapter XI UN Charter, the option of merger or association with another state does not apply prima facie under international law. As a matter of domestic law, there exists a non-self-executing law-governed path to achieve an agreement on Greenland’s independence. These rules refer to independence, not merger or association with another state. In principle, Greenland could merge or associate with another state subsequently, after achieving independence. But independence would need to be negotiated with Denmark, and such negotiations could lead to binding stipulations prohibiting merger or association with the United States or any other state. Regardless of the applicable legal framework, the important question of self-determination for the people of Greenland and their potential path to independence has now become influenced by the United States’ territorial ambitions. Any negotiations on independence between Greenland and the central government of Denmark will not be able to avoid the broader geopolitical context.
