The Davos Trap on Greenland

The dispute about Greenland has been conducted by the US as a zero-sum game. Either ‘ownership’ over Greenland would be handed over to Washington, or else economic sanctions or worse would be applied to Denmark and her European allies. It was all or nothing until earlier this week. 

There is a general sense that NATO Secretary-General Mark Rutte managed to orchestrate a face-saving climbdown for Mr Trump while at the Davos World Economic Forum. Suddenly, on Wednesday, the US President announced that he was no longer threatening the use of force to capture Greenland. A little later, he added that the Greenland issue was solved.

It appears that there has at least been a compromise about basic principles for a settlement, to be followed by a more detailed framework agreement yet to be negotiated. The key step in reaching the compromise was, it appears, is the application of the precedent of the UK Cyprus sovereign bases. This may turn out to be a significant mistake for all sides.

No Possibility of Sale or Transfer of all of Greenland

The US strategy of confrontation could not ever have succeeded. Denmark simply did not have the authority to dispose of all of Greenland, even if it had wanted to (which was emphatically not the case). 

Any change to the territory of Denmark requires the approval of the Folketing, or parliament. However, even if Greenland was simply a piece of Danish territory without a constitutional special status, it is no longer internationally permissible to transfer inhabited territory from one sovereign to another without popular endorsement by the local population. Since the practice of territorial and even population exchanges before and after World War I, it has become established that a plebiscite among the population concerned would be required. And the Greenlanders oppose a transfer to US sovereignty by an estimated majority of 85 per cent.

But the rights of the people of Greenland are of an even higher order than those of a population segment faced with territorial change. The modern law on self-determination is involved.

Greenland is a Self-determination Entity

Greenland was originally registered as a ‘non-self-governing territory’ with the UN (a colony in other words). This means that the people of Greenland had the right to self-determination. They could opt for full integration with Denmark, looser association or independence.

In 1954, Denmark informed the UN that Greenland had become a regular part of the Danish realm, on an equal constitutional and administrative basis with the other parts of Denmark. In Resolution 849 (IX) the UN General Assembly confirmed that ‘the people of Greenland have freely exercised their right to self-determination,’ noting with satisfaction ‘the achievement of self-government by the people of Greenland.’ Accordingly, the UN  terminated the status of the territory as a non-self-governing territory. 

Having exercised the right to self-determination, this would ordinarily mean that Greenland had lost its right to opt for a change in status. Still, some in Greenland assert that the local population had not been sufficiently involved in the decision to join Denmark and that the right to colonial self-determination persists. 

However, by 2009, Denmark and Greenland adopted the Act of Greenland Self-Government in which Copenhagen enhanced the status of Greenland again. The act was endorsed by a majority of 75.5 per cent of eligible Greenlanders. In the act, Greenland gains potential access to independence if the people of Greenland chose that path in a referendum. 

Accordingly, it is the people of Greenland alone that must decide on the future of the territory. This entitlement is so strongly rooted in the international system and in the Danish constitutional order that even an irate US President cannot overrule it.

Blunt Pressure Was Counter-productive

Under the Act on Self-Government, the people of Greenland can only opt for independence. There is no provision for choosing immediately to join another state.

Of course, independence, should the people of Greenland wish it, could potentially lead to subsequent integration or association with the US. However, blunt pressure exercised towards this end was unlikely to sway the people of Greenland. Rather, it would be necessary to show respect for the independent character of the Greenlanders and their indigenous culture, along with the financial incentives that have been mooted.

The strategy of maximum pressure on Denmark has not only led its government to resist, but it impelled many in Greenland to ally more closely with Copenhagen. Denmark, as a state, has full access to the international system and its mechanisms and is acting as their protector. 

Whether an independent Greenland standing alone would have been able to resist unwanted integration with the US is now subject to some doubt. This fact may have set the independence campaign in Greenland back. In any event, it certainly has made it less likely that the population would opt to join the US after potential independence.

Pushing an Open Door

Where strategic minerals are concerned, the disposal of Greenland’s natural resources no longer lies in the hands of the Danish government. According to the Self-government Act of 2009, the Greenland authorities alone exercise authority where exploration and exploitation of strategic minerals is concerned. 

The Greenland authorities have expressed themselves as being entirely open to cooperation with US enterprises in advancing the exploitation of rare earth minerals, provided the environment is not endangered in the process. Despite the loud noises from Washington, there are no major Russian or Chinese concerns actively mining the frozen wastes of Greenland.

Where security is concerned, the 1951Defence Agreement between the US and Denmark was updated in 2004 to accommodate Greenland’s assumption of wide-ranging autonomy. This preserves the option of significantly enhancing the US military presence in Greenland, subject only to consultation with Denmark and Greenland.

It should be noted, however, that the US presence in Greenland is very clearly tied to NATO and ‘the well-being in the North Atlantic Treaty area.’ This is to be achieved ‘in accordance with NATO plans.’ Hence, maintaining the security interests of the US in relation to Greenland is very clearly linked to serving the common security interests of the NATO partners. This link was at risk of being broken. Accordingly, Mark Rutte was entitled to intervene.

Europe Finally Found its Voice

Earlier in January, US President Trump indicated that his government will only comply with international law when it aligns with his personal moral compass or with US interests, After having been diplomatically silent on a number of previous occasions of US violations of international law, including recently the armed intervention in Venezuela, Europe has now drawn a line in the snow when it comes to protecting the territorial integrity of a EU and NATO member. 

It became clear that more US pressure, including tariffs, might launch a trade war and threaten the integrity of NATO, but it would not bring a solution to the Greenland issue any closer. Hence, only negotiations could offer a way out.

The Cyprus Precedent as the Way Out

The solution envisaged for the framework agreement appears to be to transfer only a modest part of Greenland to the US, rather than the entire territory. In analogy to the sovereign base territories of the UK in Cyprus, the US might acquire sovereign title to its principal military base area in Greenland. 

When Cyprus was released into independence in 1960, it was agreed that two significant areas on Cyprus, amounting to about 3 per cent of its territory, would remain under the sovereignty of the United Kingdom. The UK has maintained important military bases at Akrotori and Dhekeli ever since.

Cyprus argues that according to a UK declaration, London’s authority is limited to exercising the military functions associated with the bases. The UK claims full, sovereign rights over the two areas. Unlike other overseas territories, however, the two areas are administered under the authority of the Ministry of Defence and not the Foreign, Commonwealth and Development Office.

As the areas are large, they include significant numbers of civilians. The UK Commander cooperates with Cyprus officials in delivering civilian functions and services to them and in ensuring that the law applicable to them in the base areas tracks Cypriot legal provision where possible.

Presumably no such issues would arise in relation to the Greenland base area. Even if this is extended in terms of numbers, size and deployment of US service-members and equipment, the sparsely populated nature of Greenland suggests that there would be few if any locals falling under US jurisdiction. 

This, of course, is the crucial difference between the proposed settlement on Greenland and most other cases: Generally, the local state retains sovereignty over the territory on which a base is located. However, it agrees not to exercise its own jurisdiction over it and instead allows the foreign state to apply its own. 

This would be a limitation attaching to Greenland territory, but not a full loss of sovereignty over the base area. 

Insistence on Sovereignty, Instead of Rights

In demanding actual sovereignty at least over the base area, President Trump has therefore pressed Denmark into a rather unusual concession. He asserts that any solution to the crisis (he has provoked) must result in a solution that is not only permanent, but that involves actual acquisition of title to territory. As he has argued in relation to the acquisition and defence of all of Greenland: No state would go to war over a land it has merely leased. 

However, excising a portion of Greenland by transferring it to a foreign sovereign before the people of the island have exercised their right to self-determination through a referendum on independence could give rise to legal issues. Cyprus offers a warning. Some argue that the UK bases are a vestige of colonialism and must be given up. Until they are surrendered, the argument goes, colonial self-determination in relation to the UK has not fully taken place.

Self-determination and the Chagos Island Precedent

Another warning stems from the recent developments relating to the Chagos Islands. In 1965 the UK removed the Chagos Islands from Mauritius before granting independence to that colonial territory in 1968.

In an Advisory Opinion of 2019, the International Court of Justice ruled that this violated the right to self-determination of Mauritius. It made this finding, despite the fact that the UK had obtained agreement from a senior delegation from Mauritius before excising the islands, much as Greenland might now be involved in discussions about excising the base area. The Court found that, before independence, the delegation was still under the influence of the UK government and that Mauritius had therefore not validly consented to the loss of the islands.

The UK decided to follow the pronouncement of the Court, although it was not legally binding—an act that has just been identified as ‘very stupid’ by the US President. The UK exchanged its claim to sovereignty over the Chagos Islands for a long-term lease, allowing the US, in turn, to retain its critical base on Diego Garcia for at least 99 years.

Should Greenland ever opt for independence, it might advance a similar argument, seeking to regain sovereignty over the US base areas (without necessarily expelling the US from them.) It might argue that it once was a colony of Denmark and, despite the present extensive self-government arrangements, that it essentially still remains one. Hence, like Mauritius, it should regain any territory alienated by Denmark before independence, even if this occurred with the agreement of its own officials, once it gains independence.

Copenhagen and Washington might answer that Greenland already exercised its colonial right to self-determination when it integrated with Denmark in 1954, as confirmed in UN General Assembly in Resolution 849 (IX). This would mean that the right to colonial self-determination, which can only be exercised once, has been exhausted. 

International vs Constitutional Law on Self-determination

Instead of a continued right to colonial self-determination, the US and Copenhagen might assert that the rights presently enjoyed by the people of Greenland are more limited than colonial self-determination. These rights are not based in an entitlement to de-colonization in international law, but in a voluntary grant provided by Denmark in the Act on Greenland Self-Government. The act provides for the possibility of independence should the people of Greenland opt for it, but it might perhaps not include the right to territorial unity and integrity that attaches to a colonial self-determination claim administered by the United Nations.

In fact, this argument would be quite controversial. But in any event, the people of Greenland can point to the preamble of the Act on Self-government, which expressly recognizes the people of Greenland as ‘a people pursuant to international law with the right of self-determination.’ This might suggest that all aspects of the international right to self-determination, rather than a more limited version under Danish constitutional law, apply to them. This might raise doubts about the validity of the alienation of sovereignty over the base areas just before possible independence, should independence occur.

The Road not Taken

There would have been a simpler alternative had the US not insisted on acquiring sovereign title over the base or bases. The alternative would have been simply to confirm that the existing base arrangements of 1951 and 2004 are indeed permanent and that this arrangement will be inherited by Greenland, should it ever become independent. This would have been a permissible limitation of sovereignty, or servitude in legal language, granting rights to another state, without taking away sovereignty. Those rights would permanently attach to a piece of territory and survive even a change in sovereign, or independence of the territory in question. This includes cases where claims to self-determination are involved. 

If this grant of right had been confirmed by the Greenland authorities, who need to be part of any settlement under Danish constitutional provisions in any event, the potential legal problems involved in alienating the base areas through the transfer of sovereignty that is now being proposed, would not have arisen.

Other Risks

There are some other issues that the acquisition of sovereignty over the base areas by the US does not remove. Perhaps the most critical point for the US is to prevent any other state from acquiring Greenland as a whole, soon with the US sovereign bases on the ground, posing a direct threat to the US. This could occur either by hostile takeover or through agreement with an independent Greenland. 

The best guarantee against an armed invasion by another state is in fact provided by virtue of the existing membership of Denmark in NATO. Through the NATO treaty, all its members, together with the US, are committed to the defence of its territory, including Greenland. This commitment could be enhanced by NATO and in particular the US and Denmark, increasing their defence cooperation, and their military presence and preparedness, where Greenland is concerned. 

But what would happen if Greenland becomes independent? Denmark and the US would need to help ensure that NATO accepts Greenland as a new member from the moment of independence, continuing the present protective umbrella.

Of course, Greenland might decide to merge with another state after it has achieved independence, even with foreign sovereign US bases on its territory.   True, it is difficult to foresee the Greenlanders opting to join Russia or China, but the US might demand guarantees on this point. 

Additional Limits on Greenland’s Potential Sovereignty

Greenland would likely have to limit its newfound sovereignty, should it go for independence. It may have to undertake not to merge with any state. The agreed exception would be the possibility of associating or integrating with the US should the Greenland population wish it at some point in the future. 

The US might also wish to assure that Greenland will never grant basing rights to third states, especially China or Russia, or special rights of maritime access to Arctic waters under its jurisdiction, should it become independent. Similarly, it might wish to include in the framework agreement provisions providing for privileged US access to the strategic resources on the island, should their exploitation become viable, or at least to exclude Russia and China from gaining significant access.

Framing a Framework Agreement

In short, any resolution of the crisis that focuses on the transfer of sovereignty of the base territories may cause legal issues and friction with the Greenland authorities in the longer-term future. On the other hand, that solution does not actually address the US concerns relating to an increase of Russian and Chinese military presence and strategic influence in the area.

That said, if the sides have committed to the establishment of sovereign bases for the US, it is likely too late to reverse that agreement. But the US will presumably insist on more safeguards and concessions. 

It will also be important to ensure that Greenland fully participates in the negotiations and signs on to the outcome. This may help avoid some of the legal issues noted above, although it will not remove those risks entirely.

This article will appear in Danish language in the Danish newspaper  Politikken and a short version may be published by Chatham House.