self governance

University of Copenhagen, Faculty of Law, Centre for Enterprise Liability (CEVIA)
Arctic Conference: Exploitation of Natural Resources in Greenland Responsibilities and Liabilities - Thursday 11 September 2014
Greenland between dependence and independence –
the concept of "self governance"
Per Vestergaard Pedersen, Partner, LETT Law Firm
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Greenland and Kingdom of Denmark
▪ The world's largest island.
▪ Most northern land area – less than 730 km from the North Pole.
▪ Total land area: 2.2 million km2 (compare Denmark: 42,915 km2).
▪ Land area coved by Greenland ice sheet: 1.8 million km2.
▪ Land area not coved by Greenland ice sheet: 0.4 million km2.
▪ Population: 56,000 inhabitants.
▪ Kingdom of Denmark (5.6 million inhabitants) ("Danish Realm",
"Commonwealth of the Realm" or "Community of the Realm") comprises
three parts or entities:
▪ Denmark
▪ Greenland
▪ Faroe Islands
▪ EU: Denmark is member. Greenland and Faroe Islands are not.
▪ WTO: Kingdom of Denmark is member.
▪ Bilateral investment treaties (BITs) with Kingdom of Denmark: Greenland
generally is not covered.
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Greenland and the world map
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Greenland and the Arctic map
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Historical overview
• Greenland has been inhabited (at least most of the time) for at least the last 4,500 years.
• Before the 10th century some Paleo-Eskimo (pre-Inuit) peoples inhabited some parts of Greenland.
• In the 10th century Norsemen (Vikings) from mainly Iceland and Norway came to and settled in southern Greenland.
• In the 13th century the Norsemen (Vikings) in Greenland submitted to the rule of the Kingdom of Norway which in 1380
entered into a personal union with the Kingdom of Denmark.
• In the 13th century Inuit peoples came to and settled in some parts of Greenland.
• In the 15th century the Norsemen (Vikings) and their settlements apparently disappeared from Greenland.
• In the early 18th century people from Denmark, Norway and certain other states came to and settled in Greenland,
mostly in colonies (for example the Norwegian-Danish missionary Hans Egede who came and settled in 1721).
• In 1814 the personal union between the Kingdom of Denmark and the Kingdom of Norway was dissolved and
Greenland which were a Norwegian colony were transferred to Denmark and became a Danish colony.
• In 1953 Greenland ceased to be a Danish colony and became a part of the Kingdom of Denmark (the Danish
Realm) and comprised by the Constitutional Act of Kingdom of Denmark of 5 June 1953.
• 1 May 1979 the Danish "Act on Greenland Home Rule" (of 29 November 1978) entered into force. Greenland
obtained so-called "home rule" by the transfer and access to transfer of legislative (regulatory) and
governmental (administrative) powers in relation to certain matters from the Danish Parliament and
Government to the Greenland Home Rule Parliament and Home Rule Government.
• 21 June 2009 the Danish "Act on Greenland Self-Government" (Act no. 473 of 12 June 2009) entered into
force. Greenland has "self-government" and the legislative and governmental powers in specific areas of
responsibility transferred from Denmark (the Danish state) to the Greenland Self-Government.
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Greenland's right to self-determination under international law
and national law
• The people of Greenland is a people pursuant to international law and has a right to self-determination
pursuant to international law. Accordingly, the people of Greenland may act as a people pursuant to international
law and exercise its right to self-determination and other rights pursuant to international law.
• These rights of the people of Greenland are recognised by the agreement on Greenland self-government
which was made between the Greenland Government and the Danish Government "as equal partners" and
was part of the basis for the making and passing in 2009 of the Danish "Act on Greenland Self-Government".
• These rights are also recognised in national law by the Danish "Act on Greenland Self-Government":
• Preamble to the Act (unofficial translation):
"Recognising that the people of Greenland is a people pursuant to international law with the right of
self-determination, the Act is based on a wish to foster equality and mutual respect in the
partnership between Denmark and Greenland. Accordingly, the Act is based on an agreement
between the Greenland Government and the Danish Government as equal partners."
• Section 21 of the Act on "Greenland's access to independence" (unofficial translation):
"21. (1) Decision regarding Greenland’s independence shall be taken by the people of Greenland.
(2) If decision is taken pursuant to subsection (1), negotiations shall commence between the Danish
Government and the Greenland Government with a view to the introduction of independence for Greenland.
(3) An agreement between the Greenland Government and the Danish Government regarding the
introduction of independence for Greenland shall be concluded with the consent of the Greenland Parliament
and shall be endorsed by a referendum in Greenland. The agreement shall, furthermore, be concluded with
the consent of the Danish Parliament.
(4) Independence for Greenland shall imply that Greenland assumes sovereignty over the Greenland
territory."
Greenland legislative, executive and judicial powers under the
Self-Government Act
• Under the Danish Act on Greenland Self-Government (Act no. 473 of 12 June 2009), the Greenland Parliament
exercises the legislative power and the Greenland Government exercises the executive (governmental) power
in areas of responsibility which have been or are transferred from the Danish state to the Greenland SelfGovernment. Further, courts of law which are established by the Greenland Self-Government will exercise
judicial power in all areas of responsibility.
• This is stated in section 1 on the Greenland Self-Government authorities and the courts (unofficial translation):
"1. The Greenland Self-Government authorities shall exercise legislative and executive power in the fields of
responsibility taken over. Courts of law that are established by the Self-Government authorities shall exercise
judicial power in Greenland in all fields of responsibility. Accordingly, the legislative power shall lie with the
Greenland Parliament, the executive power with the Greenland Government and the judicial power with the
courts of law."
• When the Self-Government Act entered into force on 21 June 2009, many and substantial areas of responsibility had
already been transferred from Denmark to Greenland.
• Under sections 2-4 of the Act, the Greenland Self-Government may determine that many other areas of responsibility
also shall be transferred from the Danish state to the Greenland Self-Government. These areas of responsibility are
listed in two lists set out in the schedule to the Act. Other areas of responsibility which only concerns Greenland may
also be transferred if this is agreed between the Greenland Government and the Danish Government.
• Under section 19 of the Act, a dispute between the Greenland Self-Government and Denmark regarding their
respective powers (authorities) may be brought before and settled by a special dispute resolution board composes of
two members appointed by Greenland, two members appointed by Denmark and three members appointed by the
President of the Supreme Court among the judges of the Supreme Court.
Economic relations between the Greenland Self-Government
and Denmark
• Regulated by sections 5-10 of the Self-Government Act.
• Annual grant of subsidy of DKK 3.4 billion (2009 amount) from Denmark to Greenland. See section 5.
• Greenland shall finance areas of responsibility transferred from Denmark to Greenland under sections 2-4. See
section 6.
• Specific revenues from mineral resource activities shall accrue to Greenland. See section 7.
• If specific revenues from mineral resource activities accrue to Greenland in a year in an amount exceeding DKK 75
million (2009 amount), half of the exceeding amount shall be deducted from the annual subsidy grant from Denmark to
Greenland. See section 8.
• If the annual subsidy grant from Denmark to Greenland in a year is reduced to nil (zero), Greenland and Denmark
shall negotiate and seek to agree whether Denmark shall continue to pay an annual subsidy grant to Greenland and
whether Greenland shall continue to receive revenues from mineral resource activities. In case no agreement is
reached, Denmark shall not pay any annual subsidy grant to Greenland and Greenland shall receive all future
revenues from mineral resource activities. See section 8 and the comments thereto in the bill which was passed as the
Act.
Opinions as to non-transferable areas of responsibility and to
powers in relation to foreign, security and defence policies
• The Danish Government is of the opinion that a few areas of responsibility may not be transferred from Denmark to
Greenland and that this follows from a consideration of the interests of the "Community of the Realm" (the Kingdom of
Denmark) and/or from a few particular provisions of the Constitutional Act of the Kingdom of Denmark.
• According to this opinion, the following areas of responsibility may not be transferred: (1) The constitution. (2)
Nationality of persons. (3) The Supreme Court. (4) Foreign policy, security policy and defence policy. (5) Currency
policy and monetary policy.
• This opinion of the Danish Government is stated in section 4.5 of the general comments to the bill which was passed
as the Self-Government Act. In section 4.5, it is also stated by the Danish Government that the Self-Government
Commission generally based its work on this opinion, but with the understanding that some members of the
commission did not share this opinion of the Danish Government.
• In relation to this opinion, the Danish Government generally speaking seems to hold the following opinions:
• In relation to section 3 of the Constitutional Act which provides that the Danish Parliament (jointly with the Danish
Government) has the legislative power and that the Danish Government has the executive power: The provisions on
these powers of the "Danish Parliament" and the "Danish Government" may be interpreted and applied as
meaning the "Greenland Parliament" and the "Greenland Government" in relation to the many and
substantive areas of responsibility which have been or may be transferred from Denmark to Greenland.
• In relation to section 19 of the Constitutional Act which generally provides that the Danish Government (to some
extent in concurrence with the Danish Parliament) has the power to act on behalf of the Kingdom of Denmark in
relation to international matters, including foreign, security and defence policies: The provisions on these powers of
the "Danish Government" and the "Danish Parliament" may not be interpreted and applied as meaning the
"Greenland Government" and the "Greenland Parliament" in relation to any of the said international matters
concerning Greenland only, not even in relation to such matter regarding international trade or general
foreign policy other than security policy and defence policy.
Comments to opinions as to non-transferable powers in relation
to foreign, security and defence policies
• In relation to the possible transfer of legislative and executive powers to Greenland and the Faroe Island, respectively:
• The Danish Government's interpretation and application of section 3 of the Constitutional Act have been
different and changed substantially over the years, even though section 3 has not been changed.
• Many examples of this, including the following (just to mention two) : (1) Mineral resources area. (2) International
matters and foreign policy other that security and defence.
• In relation to the possible transfer of legislative and executive powers, on the one hand, and powers in relation to
international matters and international policy other that security and defence policies, on the other hand, to the Faroe
Islands and Greenland, respectively:
• Danish Government's interpretation and application of the provisions on the powers of the "Danish Parliament" and
the "Danish Government" are substantially different in relation to section 3 and section 19 of the Constitutional Act.
• These differences apparently seem to be based not so much on the wording or main purposes of the said provisions
but rather on certain legal theories and principles which initially have been developed in relation to the divisions of
powers between the Danish Parliament and the Danish Government.
• These legal theories and principles may also to some extent be relevant in relation to the divisions of powers
between the Greenland Parliament and the Greenland Government but generally are not relevant in relation to the
allocation and possible transfer of powers between Denmark and Greenland.
• Greenland Self-Government's legislative and executive powers and powers in relation to international matters as
regards: (1) International trade in general. (2) WTO and similar organisations and agreements.
• Fisheries dispute between the Faroe Islands and the EU is an example of: (1) Different foreign and trade policies
of the Faroe Islands and Denmark. (2) Their different legal positions and claims and actions under international law.
(3) The fact that the Kingdom of Denmark sometimes has and need to have and pursue two (or even three) different
foreign and trade policies, for example one for Greenland or the Faroe Islands and another for Denmark.
Mineral resources area (minerals, oil and gas)
• The legislative and executive (governmental) powers in the mineral resource area were transferred from Denmark to
Greenland with effect from 1 January 2010. These powers in the mineral resources area comprise, among others, the
regulation and granting of licences for prospecting and exploration for and exploitation of oil, gas and minerals.
• The Greenland Self-Government has the proprietary right to deal with and explore and exploit all mineral resources in
Greenland. Minerals resources comprise minerals and hydrocarbons (oil and gas).
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Maps of exploration and exploitation licences
Mineral exploration and exploitation
Mine
licences
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Hydrocarbon (oil and gas) exploration
licences
International matters (foreign affairs) and related international
powers (competences)
• Sections 11-16 of the Greenland Self-Government Act contain provisions on international matters (foreign affairs),
including international powers and competences.
• Pursuant to section 11(1), the Greenland Government may act in international matters (affairs) as laid down in
sections 11-16 of the Act and in agreements with the Danish Government.
• Section 11(2) provides that the Greenland Government and the Danish Government shall cooperate in international
matters with a view to safeguarding the interests of Greenland as well as the general interests of the Kingdom of
Denmark.
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Main Rule
”
12. (1) [The Greenland Government] may, on behalf of the
[Community of the] Realm, negotiate and conclude agreements
under international law with foreign states and international
organisations, including administrative agreements which
exclusively concern Greenland and entirely relate to fields of
responsibility taken over.
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Thursday, 18 September 2014
Exception
”
12. (4) Agreements under international law affecting the defence
and security policy as well as agreements under international
law which are to apply to Denmark, or which are negotiated
within an international organisation of which the Kingdom of
Denmark is a member shall be negotiated and concluded
according to the rules laid down in section 13.
Generally, the main rule in section 12(1) applies to the mineral resource area
But some different views on the Greenland Self-Government's international competence
in relation to the mineral resources area, including the possible effect of section 12(4)
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Thursday, 18 September 2014
Exception
”
13. (1) The [Danish] Government shall inform [the Greenland
Government] before negotiations are initiated regarding agreements
under international law which are of particular importance to Greenland
(…).
(2) In matters which exclusively concern Greenland, the [Danish]
Government may authorise [the Greenland Government] to conduct the
negotiations, with the cooperation of the Foreign Service.
(3)(…)
(4) Agreements under international law which are of particular
importance to Greenland must, before they are concluded or
terminated, be submitted to [the Greenland Government] for comments.
(…)
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Obligations pursuant to international law and agreements
”
16. (1) [The] Greenland Self-Government authorities shall be
subject to the obligations that arise out of agreements under
international law and other international rules which are at any
time binding on the [Community of the] Realm.
(2) Measures under consideration by the Self-Government
authorities which would be of substantial importance for the
foreign relations of the [Community of the] Realm, including
participation by the [Community of the] Realm in international
cooperation, shall be negotiated with the [Danish] Government
before any decision is taken.
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Thursday, 18 September 2014
Contact information:
Per Vestergaard Pedersen, Partner
LETT Law Firm P/S
Raadhuspladsen 4
1550 Copenhagen V
Denmark
E-mail: [email protected]
Phone: +45 33 34 03 48
Mobile: +45 30 35 40 34
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Indsæt dato
Copenhagen
Aarhus
Raadhuspladsen 4
DK-1550 Copenhagen V
DK-8000 Aarhus C
Vester Allé 4
LETT Law Firm P/S, CVR 35 20 93 52, [email protected]
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