Manandhar, Timeela

Thielbörger, Pierre

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Una-Fjord-able: Why Trump cannot buyGreenlandPierre Thielbörger, Timeela Manandhar 2019-08-26T09:00:38Many people thought it was a belated April’s Fools joke: US media reported thatUS President Donald Trump is considering to purchase Greenland, currently anautonomous region of the Kingdom of Denmark. Since Mr. Trump tweeted thatgiven Denmark’ Prime Minister “would have no interest in discussing the purchaseof Greenland, I will be postponing our meeting (…) for another time…”, we knowthat the idea was dead serious. “Make America Great again” –this time in territorialterms? What would International Law (IL) have to say about such an idea?First, there is a long history of the US buying land from other States. Some importantexamples are the colony of Louisiana – a huge territory that today spreads over 14US States –  (purchased from France in 1803), Florida (purchased from Spain in1819), parts of Mexico (purchased in 1854) and Alaska (US purchase from Russia in1867). The US has also thought about purchasing Greenland before: once in 1867,after the Alaska-purchase with the goal to surround Canada with U.S. territory; 1917as part of the purchase of the Danish overseas colonies and again after World WarII, when President Truman offered 100 million Dollar for Greenland to build a militarybase there. Both offers were declined.Many reasons come to mind why Mr. Trump wants to purchase Greenland thistime: amongst them are its strategic location close to the Arctic, the proximity toRussia, and the valuable mineral resources that, given the melting ice, are becomingeasier to mine. So, while it is not crazy for Mr. Trump to have an interest in buyingGreenland – is it feasible under IL?Acquiring territory through a treaty or other kind of consent between the “ownerstate” and the new sovereign falls under the notion of cession. This includes the saleof territory, the redistribution of territory after wars (often regulated in peace treaties)or even territory as part of the dowry of a (monarch) ruler, as in the case of Bombay(given away by Portugal to the British in 1661 as part of the dowry of Catherine ofBraganza, who married Charles II).Until today, land deals are not uncommon. The nation of Kiribati, for instance, whosephysical existence is threatened by rising ocean levels, bought land in Fiji in 2014, asa last resort if their land becomes uninhabitable. Similarly, Tuvalu, another drowningisland State and already a nation highly endangered by natural disasters, hasconsidered similar purchases. However, in these cases the purchased territory wouldremain Fijian, with the residents of Kiribati becoming (if they give their consent)citizens of Fiji. There is indeed nothing in classical IL to prevent nations from cedingand acquiring territory as they see fit as long as the two States are in agreementabout such transfers (which, of course, Denmark and the US are currently not). Thetraditional view in international law is, in short: States are the subjects of international- 1 -law and they can negotiate and sign treaties to their liking, including treaties onterritory. Our conviction, however, is that this is an outdated understanding of IL.First, the above-mentioned previous attempted purchases by the US go backrather long in history. Notably they all happened before the establishment of theUN in 1945. In the meantime, the international legal order has moved on: fromthe exclusively State-centric Westphalian system to one that serves also, if notforemost, the interest of people and individuals. The right to self-determination(as recognized in Art 1 (2) UN Charter and in various other human rights treaties,and spelled out inter alia in the ICJ’s Advisory Opinion on Kosovo) has becomeone of the cornerstones of today’s IL. By virtue of this right, people can freelydetermine their political status and freely pursue their economic, social and culturaldevelopment. In a famous quote, President Wilson declared, “no right anywhereexists to hand peoples from sovereignty to sovereignty as if they were property”.Selling or exchanging inhabited territory, therefore, needs to be in alignment withthis principle of IL. In the case at hand, Greenlanders undoubtedly constitute apeople with the right to self-determination; a treaty on purchasing the territory ofGreenland without their consent would be a blatant violation of their right to self-determination. This is also reflected in Danish law: Since 1978, under the GreenlandHome Rule Act, Denmark has provided Greenland with substantial powers of self-government. Following a 2008 referendum, Denmark significantly widened thisautonomy through the 2009 Act on Greenland Self-Government. The Act expresslyrecognises the people of Greenland as “a people pursuant to international law withthe right to self-determination”. The 2009 Act also gives Greenland the right to enterinto international agreements on matters that only affect Greenland’s affairs andestablishes a process towards possible independence. This enhanced autonomywith a window for independence, strengthening within national law the internationalright to self-determination, would be rendered null and void if Denmark were to sellGreenland off to a different state without the consent of the Greenlandic people.Second, the change would mean a great loss for the Greenlandic people in terms oftheir human and indigenous rights. While the people living on the purchased territorywill not ipso facto become citizens of the successor state, generally, they will begranted citizenship (see Art. 5 1999 Draft Articles on Nationality of Natural Personsin relation to the Succession of States by the ILC). So a purchase of Greenlandby the US will most likely lead to the population becoming either full US citizens orcitizens with partial rights (as in the case of Puerto Rico) –at least, they will not fallunder the jurisdiction of Denmark anymore.Denmark, like many Scandinavian countries, has an excellent human rights record,both in terms of ratifying treaties and in respecting their agreed standards. Forinstance, while Denmark ratified the International Covenant on Economic, Social andCultural Rights (ICESCR) in 1972, – including rights important to the Greenlandicway of life such as the right to take part in cultural life (Art. 15 ICESCR) and theright to enjoy and utilize fully and freely their natural wealth and resources (Art. 25ICESCR)-, the US has always opposed the ICESCR. When voting on the rights ofindigenous people in the UN General Assembly in 2007, Denmark voted in favour(alongside 142 other States), while the US voted against (alongside only three other- 2 -States). Denmark ratified the ILO 169 Convention on Indigenous and Tribal Peoplein 1996 – the USA never did. Currently the people of Greenland have access to the(very effective) European Court of Human Rights system as the territorial scopeof the European Convention on Human Rights (and most of its protocols) extendsto Greenland. All of these human and indigenous rights protections would be lostfor the people of Greenland were they to become part of the US territory. Arguablyupholding the existing human rights framework is a very strong normative argumentagainst Denmark being even allowed to sell Greenland to the US – at least notwithout a positive vote of the Greenland population in favour of being transferred toUS jurisdiction.As we know from the Rolling Stones, „You can’t always get what you want” – alesson Mr Trump still struggles to learn. However, as Jagger continues, “if you trysome time, you ‘ll get what you need”. And Trump will certainly continue to try. Whatthe US needs more than ownership, is the right to use Greenland – both militarily(on top of the already existing US Air Force base) and economically (in terms ofdrilling rights) (an unexpected revival of Palin’s famous “drill, baby, drill” motto ifyou like). Though Trump might not be able to buy Greenland –he will certainly exertpressure on Denmark to grant him further rights. More pressure than was previouslyimaginable in US foreign politics and in an international system that still believesitself to be based on “the friendly relations between nations”. Pierre Thielboerger is Professor of German Public Law and Public InternationalLaw, and Executive Director of the Institute for International Law of Peace andArmed Conflict (IFHV) at Ruhr University Bochum. Timeela Manandhar is a doctoralcandidate at the IFHV and Ruhr University’s Faculty of Law. This post appears as part of a collaboration between the IFHV and theVölkerrechtsblog. Cite as: Pierre Thielboerger & Timeela Manandhar, “Una-Fjord-able: WhyTrump cannot buy Greenland”, Völkerrechtsblog, 26 August 2019.- 3 -

Una-Fjord-able: Why Trump cannot buy Greenland

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Una-Fjord-able: Why Trump cannot buy Greenland

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