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[p277] The Court,
composed as above,
after deliberation,
having regard to Articles 31, 40 and 41 of the Statute,
having regard to Articles 35 and 57 of the Rules of Court,
Makes the following Order:
AS REGARDS THE PROCEDURE AND THE FACTS:
[1] Whereas, by an application dated July 18th, 1932, transmitted to the
Court by the Norwegian Charge d'affaires at The Hague by a letter of the
same date, the Norwegian Government has instituted proceedings against the
Danish Government concerning the legal status of certain parts of the
South-Eastern territory of Greenland; [p278]
[2] Whereas it is stated in the application that, "by a Royal Decree of July
12th, 1932, the Royal Norwegian Government has placed the South-Eastern
territory of Greenland situated between latitudes 63º 40' and 60º 30' North
under the sovereignty of Norway"; as "this step was taken to protect
Norwegian interests, since the Danish Government had previously informed the
Norwegian Government that it had invested the leader of a Danish expedition
to these territories with police powers which were intended by the Danish
Government to be exercised, not only over Danish subjects but also over
Norwegian subjects"; as "the Norwegian Government considers it necessary at
the same time to ask the Court to order interim measures of protection in
accordance with Article 41 of the Statute of the Court (see also Article 57
of the Rules)"; and as, in support of this opinion, which is based on
certain statements which have appeared in the Danish Press, it is alleged
that "there is serious reason to fear that the Danish Government may proceed
to acts of violence against Norwegian nationals .... residing and exercising
their calling in the territory" in question;
[3] Whereas the application requests the Court, not only "to give judgment
to the effect that the placing of the South-Eastern territory of Greenland
between latitudes 63º 40' and 60º 30' North under the sovereignty of Norway
— effected by the Royal Decree of July 12th, 1932 — is legally valid, and
that accordingly the said territory is subject to the sovereignty of
Norway", but also "to decide forthwith to order the Danish Government, as an
interim measure of protection, to abstain in the said territory from any
coercive measure directed against Norwegian nationals";
[4] Whereas, nevertheless, in his letter of July 18th, 1932, transmitting
the application to the Court, the Norwegian Charge d'affaires at The Hague
requested the Court, in pursuance of instructions from his Government, "to
defer its decision upon the request for interim measures of protection,
should the Danish Government inform the Court that it will not adopt
coercive measures"; [p279]
[5] Whereas, on the other hand, by a letter also dated July 18th, 1932, the
Danish Minister at The Hague transmitted to the Court an application
submitting to the Court a dispute between the Danish Government and the
Norwegian Government concerning Greenland;
[6] Whereas the aforesaid application refers to the Royal Proclamation dated
July 12th, 1932, by which "the Norwegian Government declared that it had
proceeded to occupy the territory situated between latitudes 63º 40' and 60º
30' North on the East coast of Greenland"; as the application requests the
Court "to give judgment to the effect that the promulgation of the
above-mentioned declaration of occupation and any steps taken in this
respect by the Norwegian Government constitute a violation of the existing
legal situation and are accordingly illegal and null and void"; and as,
finally, it is stated in the application that "the Danish Government
reserves the right to apply to the Court, under Article 41 of the Statute
and Article 57 of the Rules of Court, should circumstances require it, for
the indication of interim measures for the protection of the Danish
Government's rights";
[7] Whereas, by a note dated July 22nd, 1932, signed by the Danish Minister
at The Hague, the Danish Government communicated to the Court its
observations on the afore-mentioned letter of the Norwegian Charge
d'affaires at The Hague; as in its note the Danish Government declares that
"the Norwegian application for interim measures of protection" "is without
any justification"; and as it is alleged in support of this opinion that
"neither last year nor in the present year has anything whatever occurred
which could justify the Norwegian action" and that "the Danish Government
could not be held responsible" for the statements which had appeared in the
Danish Press and which were adduced by the Norwegian Government;
[8] Whereas, in consequence, the Danish Government asks the Court "to
dismiss the Norwegian request for interim measures of protection as being
purposeless and groundless"; as, furthermore, in its note of July 22nd, the
Danish Government "points out that it has reserved its right to apply to the
Court for the indication of interim measures of protection in case the
persons whom the Norwegian Government has [p280] invested with powers, which
the Danish Government regards as entirely illegal and consequently as
non-existent, or other individuals, should act in a manner prejudicial to
the legislation for the protection of the Eskimos living in the territory
covered by the latest declaration of occupation, or if other incidents
should supervene"; as, however, no application has been made in virtue of
this reservation;
[9] Whereas the said observations of the Danish Government were duly
communicated to the Norwegian Government without giving rise to any action
on the part of that Government;
[10] Whereas, by the terms of Article 57 of its Rules, "the Court shall only
indicate measures of protection after giving the Parties an opportunity of
presenting their observations on the subject";
[11] Whereas the Court decided, after deliberation, on July 22nd, 1932,
(a) to hold a public hearing on July 28th, 1932, when an opportunity would
be afforded to the Parties of submitting orally their observations to the
Court, such observations to be briefly summarized in a document handed in at
the hearing;
(b) to admit, for the purposes of the proceedings on the Norwegian request
for the indication of interim measures of protection, the judges ad hoc duly
appointed by the Parties, "having regard to the fact that in this case the
presence of judges ad hoc is not inconsistent with the urgent nature of
interim measures of protection";
[12] Whereas the Parties, availing themselves of their right under Article
31 of the Statute — the applicability of which to this case had been
recognized by the Court — had appointed judges ad hoc for the purposes of
the proceedings instituted by the applications of July 18th, 1932; as the
Norwegian Government had appointed for that purpose M. Benjamin Vogt,
Norwegian Minister in London, and the Danish Government M. Herluf Zahle,
Danish Minister at Berlin;
Whereas the Parties had chosen as their representatives before the Court for
the purposes of the said proceedings, [p281]
the Norwegian Government:
Agent: M. Bull, Norwegian Charge d'affaires at The Hague; Agents and
Advocates: MM. Arne Sunde, Advocate of the Norwegian Supreme Court, former
Minister of Justice, and Per Rygh, Advocate of the Supreme Court; Counsel
and Advocate: M. Gilbert Charles Gidel, Professor at the Faculty of Law of
the University of Paris and the Ecole libre des Sciences politques; Expert:
M. Adolf Hoel, Professor at the University of Oslo;
and
the Danish Government:
Agent: M. de Scavenius, Danish Minister at The Hague; Agent, Counsel and
Advocate: M. K. Steglich-Petersen, Advocate of the Supreme Court of Denmark;
Counsel and Advocate: M. Gustav Rasmussen, Doctor of Law, of the Ministry
for Foreign Affairs at Copenhagen;
[13] Whereas on July 28th, 1932, the Court heard statements, a reply and a
rejoinder presented by MM. Rygh, Sunde, Steglich-Petersen and Rasmussen, and
duly received from the Agents of the Parties the summaries of the said
statements which it had called for;
[14] Whereas, according to M. Rygh's statement, the object of the Norwegian
request for the indication of interim measures of protection was to cause
the Danish Government "to abstain from any measures of violence or force
against Norwegian nationals" in the territory in question;
[15] Whereas M. Sunde pointed out in his statement that the object of the
Norwegian request was "to prevent regrettable events which it might be
impossible to make good simply by the payment of an indemnity or by
compensation or restitution in some other material form"; as he added that
in the view of the Norwegian Government "its action is justified morally,
legally and also politically, and the interim measures which it asks the
Court to indicate are in the circumstances the best means of preventing any
regrettable incidents"; and as, lastly, according to him, "there is no doubt
that the Court can comply with this request, its jurisdiction not being
limited by the Statute or by the Rules of Court"; [p282]
[16] Whereas, at the conclusion of his speech, M. Sunde made a declaration
on behalf of the Norwegian Government, the relevant portion of which reads
as follows:
"....Norway is of opinion that the two Parties should, pending the Court's
decision, mutually respect each other's point of view. Norway, animated by
the feelings of respect which are due to the Court, declares herself
entirely prepared for her part to observe the attitude defined above, and to
abstain in the said territory from the use of any force against the other
Party, its nationals, their property and their rights.
The Norwegian Government accordingly agrees that the request for the
indication of interim measures of protection which it formulated in its
application of July 18th, 1932, should be understood as referring equally to
both Parties to the present proceedings."
[17] Whereas, according to the statement by M. Steglich-Petersen, "the
Norwegian request for provisional measures has no foundation in Article 41
of the Statute and Article 57 of the Rules" — which deal only with the
preservation of the rights of one or other Party — seeing that, according to
him, Norway possesses no right in the territory in question capable of
forming the subject of a measure of protection; as, according to this same
statement, the Norwegian request contemplates rather the prevention of
incidents "likely to aggravate or extend the dispute", but as the obligation
to avoid such incidents is an independent obligation for the Parties, both
of whom have accepted the "General Act for Conciliation, Judicial Settlement
and Arbitration" of September 26th, 1928; as, moreover, according to the
statement of M. Steglich-Petersen, the Norwegian Government had not
established that there was any real danger of incidents occurring; as,
lastly, the said statement concluded by requesting the Court to "dismiss the
application of the Norwegian Government of July 18th, 1932, for provisional
measures under Article 41 of the Statute and Article 57 of the Rules";
[18] Whereas M. Rasmussen concluded his statement by asking the Court "to
declare the request for interim measures submitted by the Norwegian
Government to be without justification"; [p283]
[19] Whereas it is common ground
(1) that there are in the territory covered by the applications of July
18th, 1932, a few Norwegian nationals, the members of two hunting
expeditions; that one of these Norwegian nationals is invested by his
Government with police powers;
(2) that two Danish expeditions, consisting of a relatively large number of
persons including some invested with police powers, are on their way to, or
have already arrived in, the said territory;
[20] Whereas Norway claims that there are in the territory in question no
native inhabitants or nationals of countries other than Denmark or Norway;
as this fact is however disputed by Denmark;
[21] Whereas, according to Norway, owing to the topographical conditions of
the territory in question, it is inevitable that "the Norwegians and Danes
residing or working on this coast should frequently meet one another"; as
however, according to Denmark, "it is a question of immense areas and very
few persons, which will mean in practice that the Danish authorities and the
Norwegian subjects concerned will only meet each other very rarely and quite
accidentally";
[22] Whereas Denmark has maintained and Norway has not denied that Danish
and Norwegian nationals, respectively invested by their Governments with
police powers, were simultaneously present in another part of Eastern
Greenland in 1931, and that no incidents resulted therefrom;
THE LAW,
[23] As to Article 41 of the Statute:
[24] Whereas, according to Article 41 of the Statute, "the Court shall have
the power to indicate, if it considers that circumstances so require, any
provisional measures which ought to be taken to reserve the respective
rights of either Party";
[25] Whereas it is in principle arguable that such a power on the part of
the Court exists only in respect of a dispute [p284] already submitted to
it; but as the Court is not now called upon to decide this question
concerning the interpretation of its powers, since there has already been
regularly submitted to it — either by Denmark or by Norway, or by both — a
dispute between Norway and Denmark concerning the legal status of the
South-Eastern territory of Greenland; as this dispute arises out of the
above-mentioned Royal Norwegian Decree of July 12th, 1932; and as the
subject of the dispute is the legal validity of the occupation proclaimed in
the said Royal Decree, "Norway being of opinion that the occupation is valid
and lawful, whilst Denmark holds the opposite view";
[26] Whereas, moreover, the Court is satisfied that it may proceed to
indicate interim measures of protection both at the request of the Parties
(or of one of them) and proprio motu; but as the Norwegian request for
interim measures of protection must first be examined, leaving the question
whether measures should if necessary be indicated proprio motu to be
determined subsequently;
[27] As to the Norwegian request for interim measures of protection:
Whereas, with reference to the Norwegian request, the Court has ruled that
"the Object of the measures of interim protection contemplated by the
Statute of the Court is to preserve the respective rights of the Parties
pending the decision of the Court", in so far, that is, as the damage
threatening these rights would be irreparable in fact or in law;
[28] Whereas, however, it has been argued that, under Article 41 of the
Statute, the Court is also competent to indicate interim measures of
protection for the sole purpose of preventing regrettable events and
unfortunate incidents;
[29] Whereas, in the present case, there is no occasion for the Court to
take a final stand upon this controversy as to interpretation, seeing that,
from either point of view, it arrives at the same result;
[30] Whereas, in fact, from the standpoint previously adopted by the Court
it is to be observed that the Norwegian request for the indication of
interim measures of protection as formulated both in the application of July
18th and at the hearing [p285] of July 28th, 1932, is not based on the plea
that the action which the Norwegian Government asks the Court to prevent
would prejudice some recognized or alleged Norwegian right;
[31] Whereas, moreover, the incidents which the Norwegian Government aims at
preventing cannot in any event, or to any degree, affect the existence or
value of the sovereign rights claimed by Norway over the territory in
question, were these rights to be duly recognized by the Court in its future
judgment on the merits of the dispute; and as these are the only rights
which might enter into account;
[32] Whereas, accordingly, so far as concerns the Norwegian request for the
indication of interim measures of protection, no Norwegian rights the
protection of which might require the indication of such measures, are in
issue;
[33] Whereas, even adopting the broader interpretation of Article 41 of the
Statute, there would seem to be no occasion to fear that the incidents
contemplated by the Norwegian request will actually occur;
[34] Whereas, in its note of July 22nd, 1932, the Danish Government has in
fact declared that it will "maintain .... as it has hitherto done" its
attitude of "allowing Norwegian subjects every freedom to engage in their
callings on the East coast of Greenland afforded them by this Convention" (scil.
the Danish-Norwegian Convention of July 9th, 1924, concerning Eastern
Greenland); as, according to the statement made in Court by M. Steglich-Petersen,
this attitude also covers Norwegians formally invested with police powers;
as, according to the same statement, the Danish Prime Minister has publicly
stated "that he dissociates himself from all kinds of retaliatory measures";
finally, as, according to M. Rasmussen's statement, "so long as Norwegian
nationals sojourning in the zone contemplated by the Norwegian request,
under the terms of the 1924 Convention, do not themselves provoke incidents,
there is no reason to suppose that such incidents will arise"; [p286]
[35] Whereas, on the other hand, according to the announcement made by M.
Rygh at the hearing on July 28th, the Norwegian Government has given the
Norwegian national invested with police powers in the territory in question
instructions to the following effect:
"After having conferred with the Ministry of Justice, you are informed that
your police powers which extend also to foreigners must be exercised with
the utmost tact. Particular consideration must be shown to Danish nationals.
No obstacle must be placed in the way of Danish expeditions which keep
within the terms of the Convention of 1924 concerning Eastern Greenland, a
Convention which remains in force. The Ministry reminds you of the
importance, from the point of view of the international position of Norway,
of avoiding complications. In case any special difficulties arise you will
ask for instructions by telegraph. You are requested to acknowledge the
receipt of these instructions by telegram."
[36] Similarly, whereas the declaration made on behalf of the Norwegian
Government by M. Sunde at the same hearing and reproduced above contains the
following passage:
"Norway, animated by the feelings of respect which are due to the Court,
declares herself entirely prepared for her part to .... abstain in the said
territory from the use of any force against the other Party, its nationals,
their property and their rights";
[37] Whereas, doubtless, on the one hand, the Danish declarations reproduced
above have always been accompanied by reservations regarding the taking by
the Danish authorities of action designed to ensure the maintenance of order
in the territory in question, in regard both to the native population and to
foreigners, as also the observance of the legislation for the protection of
the Eskimos; and as, on the other hand, the Norwegian declaration of July
28th, which was made on the assumption that the Court would comply with the
Norwegian request for the indication of measures of protection, presupposes
reciprocity;
[38] Whereas, however, even in this form, these declarations, taken
together, are indicative of the existence in responsible circles in both
countries of a state of mind and of intentions which are eminently
reassuring; [p287]
[39] Whereas, moreover, these intentions having been officially proclaimed
before the Court, the latter must not and cannot presume that the two
Governments concerned might act otherwise than in conformity with the
intentions thus expressed;
[40] Whereas, furthermore, the Convention concerning Eastern Greenland
concluded between Denmark and Norway on July 9th, 1924, which remains in
force, constitutes the law between the Parties in so far as concerns the
territory in question; as, according to the final protocol signed at
Christiania on January 28th, 1924, by the Danish and Norwegian delegations
entrusted with the drawing up of the said Convention, the object of the
latter is precisely to "prevent a dispute arising in regard to points likely
to give rise to a dispute"; this Convention, which deals mainly with
questions regarding hunting, fishing, "taking possession of land for some
useful purpose", and scientific and humanitarian work, presupposes (Art. 3,
para. 2) that Danish and Norwegian nationals in the territories covered by
the Convention (including the territory covered by the Royal Norwegian
Decree of July 12th, 1932) are, as regards hunting and fishing, subject to
the legislation of their respective countries;
[41] Whereas, finally, the dispute respecting the legal status of the
South-Eastern territory or Greenland has been specifically submitted to the
Court by the applications of July 18th, 1932, so that no act on the part of
the said Governments in the territory in question can have any effect
whatever as regards the legal situation which the Court is called upon to
define; as, accordingly, the Parties can have no interest in causing acts to
be performed likely to give rise to incidents;
[42] Whereas, under these conditions, and apart from the question whether
any Norwegian rights the preservation of which would require the indication
of interim measures of protection are or are not in issue, the circumstances
mentioned in the Norwegian request and in the oral statements subsequently
made do not require such measures to be taken;
As to indication by the Court proprio motu of interim measures of
protection:
[43] Whereas, on the other hand, the Court must consider whether or not
there is ground for proceeding, proprio motu, [p288] to indicate interim
measures of protection in connection with the two applications of July 18th,
1932, independently of the Norwegian request to that effect;
Whereas the Court intends now to deal simply and solely with the dispute
concerning the sovereignty over the portions of South-Eastern Greenland
covered by the Royal Norwegian Decree of July 12th, 1932, and arising out of
that Decree;
[44] Whereas the rights which it might be necessary to protect in connection
with the proceedings instituted on July 18th, 1932, concerning South-Eastern
Greenland are, accordingly, solely such sovereign rights as the Court might,
in giving judgment on the merits, recognize as appertaining to one or other
of the Parties;
[45] Whereas, at the hearing on July 28th, 1932, M. Steglich-Petersen
stated, on behalf of the Danish Government, "that in accordance with the
natural regard" due to the Court, his Government does "not intend, as long
as the case is pending before the Court, to take any measures that are
calculated to change the legal status of the territory which is the subject
of the case";
[46] Whereas, on the same occasion, M. Sunde stated, on behalf of the
Norwegian Government, that, in the view of this Government, "the two Parties
should, pending the Court's decision, mutually respect each other's point of
view";
[47] Whereas, having regard to the character of the alleged rights in
question, considered in relation to the natural characteristics of the
territory in issue, even "measures calculated to change the legal status of
the territory" could not, according to the information now at the Court's
disposal, affect the value of such alleged rights, once the Court in its
judgment on the merits had recognized them as appertaining to one or other
of the Parties, and as, in any case, the consequences of such measures would
not, in point of fact, be irreparable;
[48] Whereas, moreover, both Parties are bound by the "General Act for
Conciliation, Judicial Settlement and Arbitration" signed at Geneva on
September 26th, 1928; as by the terms of paragraph 3 of Article 33 of the
said Act "the Parties undertake" in particular "to abstain from measures
likely to [p289] aggravate or extend the dispute"; as the interpretation and
application of that clause are subject to the compulsory jurisdiction of the
Court; and as, in consequence, in the event of any infringement of these
alleged rights, a legal remedy would be available, even independently of the
acceptance by the Parties of the optional clause referred to in Article 36,
paragraph 2, of the Statute;
[49] Whereas, in these circumstances, the safeguarding of the alleged rights
in question does not at present require that the Court should, proprio motu,
indicate any provisional measures of protection,
[50] The Court
(1) dismisses the request of the Norwegian Government, dated July 18th,
1932, for the indication of interim measures of protection;
(2) reserves its right subsequently to consider whether circumstances have
arisen requiring the indication of provisional measures in accordance with
Article 41 of the Statute.
[51] Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this third day of August, one thousand nine hundred
and thirty-two, in four copies, one of which shall be deposited in the
archives of the Court and the others transmitted to the Royal Norwegian
Government, to the Royal Danish Government and to the Council of the League
of Nations respectively.
(Signed) M. Adatci,
President of the Court.
(Signed) Å. Hammarskjöld,
Registrar of the Court.
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