Greenland: Government of Denmark is bluffing (updated)

MIkael Hertig, M of SC Pol

Lars Løkke Rasmussen is bluffing when he threatens the Government of Greenland with eliminating “Bloktilskud”

 

Abstract

Both by a debate in the Danish Folketing  in may and later repeated at a common “Rigsmøde” between the prime ministers of Denmark, Faroe Islands and Greenland the Danish Prime Minister has threatened the Greenlandish Government and Parliament (Naalakkersuisut, Inatsisartut)  that the Danish Government would rapidly withdraw the granted “bloktilskud”  to Greenland worth ½ Bn €. But this amount is directly mentioned in the law of Greenlandic Self Rule. This law, this article claims, can only be changed bilaterally. The threatenings therefore seems not founded by a deep understanding of the existing legal conditions. It seems merely political bluff and threatening than proper law understanding, Hertig states.

The article was updated July 10 2017. The update has legal character and deals with to sections in Act of Greenlandic Self Rule.

The conclusion remains after this unchanged.

 

 

Background

In november 2016 the Greenlandic Parliament (Inatsisartut)  and Government (Naalakkersuisut) decided to establish a Committee for developing a proposition for a separate Greenlandic constitution.

The idea is to develop a pathway leading sooner or later to full Greenlandic sovereignty – and hereby to describe what this means.

Greenlands actual constitutional position could best be described as a hybride between colony and sovereignty.  In 1953, a new Danish Constitution (Grundlov) defined Greenland as a Danish County, thus giving the Greenlanders freedom rights and right to choose two members of the Danish Parliament.   The idea was danification of the indigenous iniuit-mixed people rather than to give Greenland status as  free country.

This assimilation policy more or less  lead to failures. (1) During the 1970ies this lead to massive protests.  In 1979, Greenland attained Home Rule, and in 2009 Self Government.  Self Government is organized as a government and a parliament. According to the Danish law (Selvstyreloven) Foreign Policy, Security and Defence still is under Danish Control.
Some areas: Police, court, occupational health, and about 15 others still are ruled from Copenhagen.

According the Danish  law, Greenland receives 3,7 bn DKK pr year as support. (“bloktilskud”)
This finances 36 % of public spending. It is a  widespread hypothesis that Greenland’s economy would collapse without these grants.

The Danish Government wants Greenland kept in a position las this. Naalakkersuisut wants to move out of Danish rule when the economy becomes self supporting.

The Danish Priime Minister has threatened the Greenlandic Government withdrawal of the “bloktilskud”. However, the Danish Government cannot unilatterally change the Lov om Grønlands Selvstyre.  So this seems just political intimidation rather than legal based argumentation.

 

The initiative to establish Constitutional Committee in Greenland.

A new government was established november 2016. The coalition agreement initial statement:

“Greenland is irreversibly on its way to independence, and this process requires not only political stability, but also national unity. The parties agree to submit proposals for a new constitution at the end of this legislative term. The combined work for independence will be best served by the broadest and most representative coalition. Siumut, Inuit Ataqatigiit and Partii Naleraq have hence decided to collaborate for the remainder …..”  (2)

The Danish Governments attitude to the Greenlandic Constitutional Committee

 

The Danish attitude to Greenland’s work on independence is far from supportive.  So, at a debate in the Danish Parliament  May 23 2017 (Folketinget) the Prime Minister declared that

the upcoming Greenlandic constitution has to respect Grundloven [Danish constitution] , as long as Greenland is a part of the Rigsfællesskabet.” (3)

This may seem evident. But as a matter of fact, the idea is that any plan leading Greenland in some sort of way out of its post-colonial hybride relation to Denmark will raise the question of the immediate constitutional condition and thus at least threaten the Danish  grants to Greenland – also in a period where Greenland not yet formally has left “Rigsfællesskabet”.

Lars Løkke Rasmussen added this to his statement:

 

“By the way I expect the establishing of a dialogue between the Naalakkersuisoq  (minister)   for Independence and the Danish Minister of Legal Affairs if a need for negotiations between oyur governments occurs” (4)

Such a statement looks rather reliable. However, following a time line it is obvious that the threat of a Danish negative reaction seems to be registered just under the surface.

The well reputed specialist in Arctis, journalist and author, Martin Breum puts in this way:

“Greenland is currently preparing a constitution with the risc of coming into conflict with the Danish Grundlov   by pointing at independence from Kingdom of Denmark [Rigsfællesskabet]. In this case the Danish grants will be in danger, the Prime Minister says.”  (5)

The Danish attitude implies that Greenland cannot even think or plan anything in direction of Greenland as a sovereign state without immidiately bringing the Danish grants and other supportive financing at stake. The sword of withdrawing supportive financing may be drawn at any stage in the process.

Thus, Breum concludes:

 

“It is difficult to recognize how the commission now can meet both the political ambitions in Greenland and at the same time being compliant with the frames set by the Danish government.”  (6) (Breum, 2017)

Danish legal skills: a shut up gun?

Denmark is sticking to a policy  of being this type of hybride between colony and full  autonomy both to Greenland and the Faroe Islands. The position is to maintain some degree of control.

It is obvious that according to legal skills the Danish Ministry of Law is superior to the Naalakkersuisut. This of course leaves some room for legal manipulation.

At the common meeting “Rigsmøde” (Prime ministers from the United Kingdom of Denmark)  Lars Løkke Rasmussen warned Kim Kielsen, Greenlandic chair of government, what happened to the government of the Faroe Islands as they tried the same:

 

“The Prime Minister reminded himself in May how the Faroers had learn the rules of the game in the hard way. In 2000 they pledged for a 12 year long transition to independence. They were met with a tough answer: If you continue following this way, your grants will lapse within four years. This message made the negotiations break down.” (Breum, 2017)

It seems to me that this procedure just is disguised as some sort of  legal statement. At the time the message was given it was not the only proper legal approach.  If Denmark would, a softer negotiation profile would have been possible.

Furthermore, the Greenlandic approach seems to me divided in two steps. One – let us call it the preparation time, the constitutional framework remains unchanged. A later one has to do with the transition to full sovereignty.

To threaten Greenland at this early stage of the commisssion’s work almost looks like intervention in Naalakkersuisuts and the Greenlandic Parliament’s (Inatsiasartut’s) internal affairs.  In terms of the political variant of Decision Analysis, it is a common understanding that to optimize influence it is best to intrude as early as possible.

The territory of Greenland is of strategic importance to the United States because of radars and bases protecting the North American continent. It seems of course convenient to having Denmark as stooge.  Denmark has to control Greenlandic territory; or at least: if Greenland is becoming independent, the question of defending America will arise in a new way. It may be understandable that Denmark (in some kind of understanding with US and Canada) doesn’t want to risc this.  See,my article on the security squeeze.

Anyhow, the Danish position must be seen as an energic try to prevent a dialogue about Greenland’s position in the future. Among this, of course, also a modernization of the relationship between the until now almost former colonial power – and Greenland. Greenland, in it’s turn continues to consider itself a Danish hybride between a colony and an independent state.

When this topic of independence turns up, just like Brexit it will at this time demand intense negotiations. But before this, Denmark just could let the Greenlanders having their political freedom to formulate their positions. Denmark should do so. Bot the Danish Government doesn’t.

The constitutional question

Denmark, according to this, has no legal solely legal right to intervene as here. Unless it wants to be seen as a colonial power.  Which in fact it claims not to be.

Prime Minister Lars Løkke Rasmussen seems to assume – like some of the specialists in Danish Constitutional Law at about 1950 – that the Laws of Selvstyre for Faroe Islands and  Greenland could be withdrawn unilaterally by the Danish Parliament. This was explained by the idea that the transfer of rights to produce locale law should rely solely on a delegation from Parliament (Folketing) and Danish Government. This point of view was maybe relevant until the first Greenlandic Home rule law was given. It has been intensively discussed. As the Greenlandic of Home Rule reminds of that of the Faroe Islands according to the Grundlov of 1953, the delegation approach was already doubted  by specialists. Thus this approach was already denied in1969 and repeated in a later edition in 1979  (7)

“The political bodies implementing this law undoubtedly must have realized that the law could not at a later stage be changed  or waived unilaterally by the ‘riget’ ( Danish Folketing and Government) against the will of the Faroe authorities. ”   (Sørensen 1969 and 1979 p 52 )

The incompleteness of Grundloven was intensely described in a Danish dissertion by Frederik Harhoff (8).

 

“The idea of the alternative is that home rule legislation occupies a special position at a level between common law and constitution (242). “At the process passing the home rule laws in the Parliament it has been presupposed  that no solution could be implemented unless  beforehand accepted by  respectively the Faroe and Greenlandic negotiation bodies. …..Thirdly, when the arrangements rely on agreements they can only be changed  through an equivalent agreement.”  (Harhoff 1993 257-258)

Almost the same position is shared by Zahle (9) (Zahle 2004):

“The conclusion must therefore be that Danmark cannot unilaterally challenge the principles of home rule according to the agreements without consent or at least negotiations with the respective home rule government or the local people.”

There seems to be general agreement among these specialists that the Faroe Law of Hjemmestyre and the Greenlandic Selvstyrelov cannot be withdrawn without bilateral approvement from the respective local parilaments and governments.  The same point of view was represented in  Spierman O (10).

 

 

The Act of Self Rule

Process in case of dispute

Greenland attained Self Rule i 2009. The preparations made were to read in “Grønlandsk-Dansk Selvstyrekommissionens betænkning  (11) The law can be found  here.  (12)

 

In case of a legal or constitutional dispute, a settlement procedure is described in section 19 of the Act:  (13)

 “If the Self-Government of Greenland and the government authorities are in doubt of questions about the competence of the authorities in relation to the governmental authorities, the (Danish) Government or Naalakkersuisut may decide to refer the question to a board consisting of two members nominated by the Danish government , 2 members appointed by Naalakkersuisut, as well as 3 of the Supreme President appointed Supreme Court judges, out of which is appointed as Chairman.
Subsection 2. Are the 4 members appointed by the (Danish) Government and Naalakkersuisut agreed, the case is finally settled. If not, the case is decided by the 3 Supreme Court judges.
Subsection 3. The board may decide to suspend the decision or decision submitted to the board until the decision of the board is made. “

 

The procedure is mandatory. If one of the Governments raise a question of doubt the procedure must be followed.
If the governmental representatives agree the High Court Judges don’t have to join. The section 3 question of suspension of acttion might, according to the threat made by Lars Løkke Rasmussen, postpone the consequences until a final decision was made. If the representatives disagree, the judges will take over.

The point according to the actual situation is that this procedure itself confirms the constitutional conclusion mentioned above. A decision of this sort must be bilateral.

Process leading to independence

Section 21 describes the process leading to Greenlandic sovereignty. (14)

“Section 21. Decision on Greenland’s independence is taken by Greenlandic people.
Subsection  2. Decisions taken pursuant to subsection 1, negotiations between the government and Naalakkersuisut will open to begin the process of  implementing independence for Greenland.
Subsection  3. An agreement between Naalakkersuisut and the Government on the implementation of independence for Greenland must be concluded with the consent of Inatsisartut and must be approved by a referendum in Greenland. The agreement shall also be concluded with the consent of the Folketing.
Subsection 4. Independence for Greenland implies that Greenland takes over the sovereignty over Greenland.

According to this section, it should be very clear that the initiative to open a process leading to independence must come from the Greenlandic people. It also means that the real  power to intervene such a process seems  almost reduced to zero. During the following sentences it is in details described how to approach and proceed this proces.
A special case might occur if the Danish Folketing at a late stage of the process, that means after the referendum refuses to accept Greenland’s leaving the Danish Empire (Rigsfællesskabet).

This might be some sort of a challenge to the Danes. But according to international law, such a Danish formal consent is not necessary.

 

Conclusion

The threat of withdrawing the Bloktilskud  (Grant mentioned in Selvstyreloven) – Greenland  has no legal basis. The size of the grant is mentioned directly in the law as § 5. (11). As demonstrated, a change in this law presupposes Greenlandic consent.
Government of Greenland could just ignore these threats and continue the work designing a future policy with direction independency.

Footnotes:

1: Bryld, Tine: I den bedste mening, Danish, Gyldendal 2010 272 p.
2: Naalakkersuisuts website http://naalakkersuisut.gl/en/Naalakkersuisut/Koalitionsaftale
3: Folketingstidende 23. maj 2017 (F22) p 49
4: Ibid
5: Information, Danish newspaper, june 17 2017   
6: Ibid.
7: Sørensen, Max  1969: Statsforfatningsret Juristforbundets Forlag  431 pages; Sørensen Max  and Germer, Peter: Statsforfatningsret 1979, Jutistforbundets Forlag  454 pages:
“Der kan næppe være tvivl om, at det for de politiske instanser, der har medvirket til lovens vedtagelse og gennemførelse, har stået helt klart, at den ikke senere kunne ændres eller fraviges ensidigt af rigets organer imod de færøske myndigheders ønske.”
8: Harhoff, F, “Rigsfællesskabet” 1993, Klim, 578 pages. Chapter 7, p 241-77  “Alternativet går ud på,  at hjemmestyrelovene indtager  en forfatningsretlig særstilling på et niveau mellem lov og grundlov.” (242)   “Det har ved  hjemmestyrelovenes vedtagelse i Rigsdagen – Folketinget været forudsat. at der ikke kunne gennemføres en ordning, der ikke på forhånd var accepteret af henholdsvis de færøske og grønlandske forhandlingsdelegationer….. For det tredje, at når ordningerne hviler på aftale, kan de fremdeles kun ændres gennem en tilsvarende aftale” (257-58)
9: Zahle H, Dansk Forfatningsret I, Chr. Ejlers Forlag 2004, 441 p. :
“Konklusionen må derfor være, at Danmark ikke ensidigt kan anfægte selvstyreprincipperne i de tilvejebragte ordninger uden tilslutning fra eller i det mindste forhandling med det pågældende hjemmestyre eller den lokale befolkning, …” (119)
10: Spiermann O, “Danmarks Rige i forfatningsretlig belysning”, Jurist- og Økonomforbundets Forlag 2007, 178 pages. Namely pp 77-88 “Uigenkaldelighed”.

11: Grønlandsk-Dansk Selvstyrekommissions Betænkning  om Selvstyre i Grønland, april 2008.
12: Lov om Grønlands Selvstyre
13: “§ 19. Opstår der mellem Grønlands Selvstyre og rigsmyndighederne tvivlsspørgsmål om selvstyrets kompetence i forhold til rigsmyndighederne, kan regeringen eller Naalakkersuisut beslutte at forelægge spørgsmålet for et nævn, der består af 2 medlemmer, der udpeges af den danske regering, 2 medlemmer, der udpeges af Naalakkersuisut, samt 3 af Højesterets præsident udpegede højesteretsdommere, af hvilke den ene udpeges som formand.
Stk. 2. Er de 4 medlemmer, der er udpeget af regeringen og Naalakkersuisut, enige, er sagen endelig afgjort. I modsat fald afgøres sagen af de 3 højesteretsdommere.
Stk. 3. Nævnet kan beslutte at suspendere den vedtagelse eller beslutning, som er forelagt nævnet, indtil nævnets afgørelse foreligger.”

14:
“Grønlands adgang til selvstændighed
§ 21. Beslutning om Grønlands selvstændighed træffes af det grønlandske folk.
Stk. 2. Træffes beslutning efter stk. 1, indledes der forhandlinger mellem regeringen og Naalakkersuisut med henblik på gennemførelse af selvstændighed for Grønland.
Stk. 3. En aftale mellem Naalakkersuisut og regeringen om gennemførelse af selvstændighed for Grønland skal indgås med samtykke fra Inatsisartut og skal godkendes ved en folkeafstemning i Grønland. Aftalen skabl endvidere indgås med samtykke fra Folketinget.
Stk. 4. Selvstændighed for Grønland indebærer, at Grønland overtager højhedsretten over Grønland.

 

 

 

 

 

 

 

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