The Position of and the Within the

Jùrgen Albñk Jensen*

The Danish Realm consists of three separate parts ± Denmark, Greenland and the Faroe Islands. The population of Denmark is a little more than five million, whereas the populations of Greenland and the Faroe Islands are about 50,000 each. This fact alone indicates that Denmark is the dominant part of the Realm. On the other hand, both Greenland and the Faroe Islands are separate entities with their own and language, and ± for Greenland ± also their own ethnic origin as part of the people. It is obvious that this situation involves a great potential for conflict, and, although it has been possible until now to adapt the relationship between the three parts of the Realm to the changing circumstances so that major conflicts have been avoided, there has in recent years been a growing feeling of in the two small parts of the realm ± especially in the Faroe Islands. The purpose of this article is to explain the position of the Faroe Islands and Greenland within the Danish Realm from a legal perspective. In the first part of the article, I will look at the historic relationship between Denmark and the two other parts of the Realm. In the second part of the article, I will discuss the details of the present constitutional arrangement between the three parts of the Realm, which can be characterized as a form of for Greenland and the Faroe Islands within a . In the final part of the article, I will discuss some of the constitutional problems that are connected with this arrangement, and the growing wish for full independence ± especially in the Faroe Islands.

* University of Aarhus, Denmark.

European Public Law, Volume 9, Issue 2 # Kluwer Law International, 2003. 170 RAPPORTS: DENMARK 171

The Historic RelationshipBetween Denmark and the Faroe Islands and Greenland

The relationship between Denmark and the Faroe Islands and Greenland respectively has evolved quite differently. The Faroe Islands were recognized as an integral part of the Danish Realm from the very first in 1849, which meant that the islands were represented in and that the civic rights of the Constitution were directly applicable in the islands. Although formally an equal part of the Realm, there has always been a feeling ± probably somewhat justified ± in the Faroe Islands that Denmark was in reality a sort of colonial power in the sense that all major decisions concerning the islands were taken in . During the Second World War, the connection between Denmark and the Faroe Islands was interrupted by the German occupation of Denmark ± followed by the British occupation of the Faroe Islands. This meant that the islands could in this period manage their own affairs without interference from Copenhagen, and this experience led to a surge in the claim for independence for the islands. After a tied referendum in 1946 and hard negotiations between the Danish Government and the Faroese authorities, agreement was reached on the introduction of home rule for the islands in 1948. The 1948 Act on Home Rule for the Faroe Islands is still the basis for the relationship between Denmark and the Faroe Islands, even after the introduction of a new Danish Constitution in 1953 in which the special status for the Faroe Islands as agreed upon in 1948 is not mentioned at all. Whereas the Faroe Islands had thus been a formally equal part of the Danish Realm in the whole democratic period, the situation was quite different for Greenland. Up until 1953, Greenland was a Danish colony ± a situation which for several reasons had become unacceptable at that time. In the period up to the Second World War, the Danish Government had tried to isolate Greenland from foreign influence and had left the Greenlandic population to live more or less as they had lived traditionally for centuries. This policy had been pursued because the Danish Government thought that modern influences would corrupt the traditional patterns of the Greenlandic society ± the policy was thus the result of a paternalistic wish to preserve the `noble savages'. However, reality did not correspond to this idyllic picture as modern influence was in fact present in the form of, for example, diseases connected to poverty (tuberculosis etc.). The isolation of Greenland was broken abruptly by the German occupation of Denmark, which overnight severed the connection to the Danish authorities in Copenhagen. In 1941, the Danish ambassador to Washington ± without the agreement of the still functioning Danish Government ± signed an agreement with the US Government which gave the US permission to build military facilities in Greenland. This meant that a great number of US officials came to live in Greenland, and the Greenlandic population for the first time had more than sporadic contact with foreigners and experienced the commodities of modern life. After the end of the war, formal Danish of Greenland was restored, 172 EUROPEAN PUBLIC LAW although US troops stayed in Greenland as a result of the 1941 agreement. The Danish Government soon realized that the pre-war status quo could not be reinstated, and after a visit by the Prime in 1948 to Greenland, when he saw the dismal conditions of the ordinary Greenlandic population, a programme of modernization was begun with general political support. The Danish relationship to Greenland was also put under pressure from the , as the UN demanded that Denmark should report to its committee on colonies on the made in Greenland. When a new Danish Constitution was passed in 1953, it was therefore natural to make Greenland an integral part of the Danish Realm. This manifested itself in a new Article 1 of the Constitution, which declared that the Constitution applied to all parts of the Danish Realm, which meant that the various rights and guarantees of the Constitution now applied also in Greenland. It was specified in other Articles of the Constitution that Greenland was from that time represented in Parliament by two members (like the Faroe Islands). In the period following 1953, the programme of modernization in Greenland was continued and, particularly in the 1960s, development was rapid. The Greenlandic population was in effect transported from the to the twentieth century in less than twenty-five years. This, of course, created great problems, for example in increased levels of crime, alcohol consumption and suicide. At the same time, the development policy was a success in the sense that health improved dramatically, the level of education rose, and living conditions in general improved to make it possible for the Greenlandic population to have access to the goods that are ordinarily part of modern life. At the beginning of the 1970s, a surge in nationalistic feelings occurred ± primarily in the young, educated section of the Greenlandic population. This led to a home rule arrangement in 1979 very similar to the one that had been in force in connection with the Faroe Islands since 1948. The basis for the relationship between Denmark and the Faroe Islands and Greenland is thus on the one hand Article 1 of the Constitution, which states the unity of the Danish Realm, and on the other hand the two home rule Acts, which to a large extent give the non-Danish parts of the Realm a special position within the Realm. Before dealing with the obvious tensions laid down in these potentially conflicting sets of rules, I will in the following section of the article give an outline of the way that the two home rule arrangements are functioning.

The Home Rule Arrangements for the Faroe Islands and Greenland in Practice

The home rule arrangements for both the Faroe Islands and Greenland are the results of negotiations between the Danish Government and representatives of the Faroese and Greenlandic populations respectively. The arrangements have been established by the passing of ordinary statutes by the Danish Parliament. RAPPORTS: DENMARK 173

Contrary to the tradition of Danish legislation, both statutes are preceded by a preamble, which stress the special nature of these pieces of legislation. The text of the preamble inter alia states: In recognition of the special position that the Faroe Islands [Greenland] occupy within the Realm ± nationally, historically and geographically ± Parliament has in agreement with the decision of the Faroese Lagting [Parliament] [Landsting in Greenland] passed . . . the following Act concerning the constitutional position of the Faroe Islands [Greenland] within the Realm . . . The home rule Acts establish that the authorities in the two home rule areas shall consist of a democratically elected local Parliament and a subject to the rules of parliamentarism. However, what distinguishes the home rule arrangements from other forms of local government in Denmark is, in particular, the fact that a number of subject areas have been handed over to regulation by the Faroese (Greenlandic) authorities in the sense that these authorities have both legislative and administrative authority within these areas. The decisions of the local in these areas are called home rule Acts and have the same legal effect as ordinary Danish Acts. The basic principle ± although somewhat modified in relation to Greenland ± for deciding which areas are considered to be subject to home rule is that the local authorities must finance these areas locally, and that areas can be transferred to home rule when the level of economic development makes it possible for the home rule authorities to appropriate the money needed for that area. Both the Faroese and Greenlandic economies are, however, supported by the Danish state by annual block grants ± the idea being that these grants shall be reduced when more areas are taken over by the home rule authorities. Since the passing of the home rule Acts, more and more areas have been transferred to home rule, but there are still a number of areas which are considered as `common affairs'. These include foreign policy (which follows directly from Article 19 of the Constitution), military matters and the judicial system. Regulations concerning common affairs are carried through by the ordinary Danish authorities, but the home rule Acts provide for the influence of the home rule authorities even in such matters. Legislation (and administrative regulation) which directly affects the home rule areas must be presented to the home rule authorities before being passed (if the regulation concerns the home rule areas exclusively ± for example, a special penal code for Greenland) or before being put into effect (if it affects the home rule areas, but is not exclusively applicable here). In both cases, the home rule authorities have a right to be heard, but the opinion of the home rule authorities does not bind the Danish authorities. Furthermore, there are a number of unofficial channels through which the home rule authorities can influence the Danish authorities, and the members elected to the Danish Parliament from the Faroe Islands and Greenland in many respects also function as spokesmen for their respective communities ± and thus at least indirectly for the home rule authorities. In the area of foreign policy ± which as mentioned above is by constitutional provision a common affair ± the influence of the home rule authorities is also secured 174 EUROPEAN PUBLIC LAW in different ways. If the home rule areas have special economic interests in a , they can demand that the Danish embassy in the relevant country employs a person who can take care of these interests. If a foreign policy matter directly concerns one of the home rule areas, the home rule Acts open up the possibility that the home rule authorities can negotiate directly with the foreign government with the assistance of the Danish Foreign Service. Finally, treaties etc. that the Danish Government enters into which have special relevance for Faroese or Greenlandic interests must be presented to the home rule authorities so that they can give their opinion of the proposed treaties before they are signed by the Danish Government.

Constitutional and Other Legal Problems of Home Rule

As noted above, there is a potential tension between the unitary state that is proclaimed in Article 1 of the Danish Constitution and the home rule arrangements that in reality leave most of the legislative and administrative powers to Faroese and Greenlandic authorities in their respective areas. Formally, the home rule arrangements were established by the passing of ordinary Danish parliamentary Acts that delegated the enumerated powers to the home rule authorities. The first constitutional problem is therefore whether the Danish Constitution allows for such far-reaching delegation at all, or whether this is a violation of Article 1 or other Articles of the Constitution. A second question is the present status of the home rule arrangements. If they are perceived as mere delegations from the Danish ± although of an especially far-reaching nature ± the logical consequence of that is that they can be revoked by the Danish legislature. This is of course a totally unacceptable result seen from the point of view of the home rule authorities and the communities (maybe even `peoples') that they represent. A closer examination of the status of the home rule arrangements is therefore needed. Finally, recent years have experienced a rise in the claim for full independence for the two small parts of the Danish Realm ± especially in the Faroe Islands, but also to a lesser extent in Greenland. This has given rise to a number of legal questions: are the people inhabiting the two non-Danish parts of the Realm separate peoples with an inherent right to govern their own affairs and thus a right to claim full independence if they should so wish? How can independence actually be achieved? Are changes of the Danish Constitution needed in order to grant the two home rule areas full independence? In the following, I will deal with these three ± interrelated ± problem areas.

Are the Home Rule Arrangements Constitutional?

It is generally acknowledged in Danish that the powers granted to the national authorities can to a certain extent be delegated to local authorities ± in RAPPORTS: DENMARK 175 fact the Constitution in Article 82 guarantees the existence of local government, but Article 82 also states that the scope and content of local government shall be established by (parliamentary) law. Such delegation can also include the right to `legislate' in the form of administrative orders etc. that are only applicable to a specific local government area. Article 1 of the Constitution thus does not guarantee that the state of law is the same in the whole Realm, and does not intend it to be so, either. The purpose of Article 1 is only to establish that the Constitution itself (including the principle of the rule of law and the civic liberties) ± contrary to the situation before 1953 ± is applicable to the whole Realm. Nor does Article 1 preclude the possibility that the powers given to some local government authorities may differ from those given to other local governments. Considering that the position of the Faroe Island and Greenland communities are quite different from other local communities in Denmark proper, it seems absolutely justified that the powers delegated to the home rule authorities are more far-reaching than those delegated to other Danish local government authorities. Even though Article 1 in itself does not preclude very far-reaching delegations to local government authorities, there are certain limits that must be observed in every delegation from the legislature if it is to be considered constitutional. First, the delegation must be limited to specific subject-matters, and, secondly, it must not be irrevocable. As regards the limitation in subject-matter, the tradition in Danish constitutional practice is to accept rather broad and vague descriptions of the delegated subject-matters. Thus, as the subject areas delegated to the home rule authorities are explicitly enumerated in the home rule Acts ± although in relatively broad categories ± and considering the special situation of the home rule areas, there seems to be no constitutional problems in this respect. The question of the revocability of the delegation touches on the subject discussed in the section below (whether the home rule arrangements can be repealed by an ordinary Danish parliamentary Act), and will be dealt with further in that connection. I will at this point just draw attention to the legal dilemma that this question raises: either the delegation can be revoked and is thus constitutional, but that would make the situation intolerable for the home rule authorities, or else the delegation is irrevocable, which would satisfy the home rule authorities, but would make it unconstitutional according to ordinary legal principles accepted in Danish law. The delegations laid down in the home rule Acts should also be compared to the claims of other Articles in the Constitution. Several Articles proclaim that a certain matter can only be regulated by law, and this is normally considered to imply a ban on delegation. The Article most relevant in respect to the home rule question is Article 43, which states that the imposition of can only be made by law. The Danish has in several decisions upheld the position that this means both that the relevant law must authorize that a is imposed at all, and also that the amount to be paid must appear from the law directly, and thus cannot be left to an administrative authority to decide. Nevertheless, there is general agreement that the home rule authorities have been delegated the power to impose taxes in their respective areas ± an authority which 176 EUROPEAN PUBLIC LAW could certainly not be delegated to ordinary Danish local government authorities. This stresses the special nature of the home rule arrangements as compared to other forms of local government. Although from a very formal point of view the delegation of the taxation power could be considered to be a violation of Article 43, this state of affairs was accepted as constitutional by the passing of the Constitution in 1953 ± it should be remembered that Faroese home rule had already been established in 1948. Had the `founding fathers' of the 1953 Constitution considered it to be unconstitutional, they would certainly have included an Article in the Constitution itself that would have allowed for the agreed home rule arrangement. The conclusion is therefore that, although some aspects of the established home rule arrangements may seem to be in violation of certain constitutional rules and principles, the special conditions of the Faroe Islands and Greenland allow for a very broad interpretation of the Constitution. The result is therefore that it is generally recognized that the present home rule arrangements are in fact constitutional.

Can the Home Rule Acts Be Repealed by the Danish Legislature Without the Consent of the Home Rule Authorities?

First, it should be stressed that this question does not for the moment have any practical relevance, as all political forces in Denmark agree that any change in the home rule arrangements must be based on the consent of the home rule authorities. Nevertheless, it makes sense to discuss the question from a legal point of view, as this political consensus might change. If, for example, major oil fields are found in the territorial sea of either of the two home rule areas ± as there are some hopes for ± it may be imagined that the Danish political authorities would not accept that the revenues from such fields went exclusively to the home rule authorities, and that they would change the home rule Acts accordingly. The traditional starting point for the discussion on whether the home rule arrangements can be changed (repealed) unilaterally by the Danish legislature by the passing of a new Act is the formal status of the home rule arrangements as explained in the section above. The powers of the home rule authorities are delegated by the Danish legislature, and they could therefore ± according to traditional theory on delegation ± be repealed by the same authority that delegated them. However, there are several special features connected to the home rule arrangements that make it natural to look at this traditional theory from a different perspective. First, the delegations in the home rule Acts are more far-reaching than ordinary delegations, and at least at some points are contrary to the text of the Danish Constitution (as noted above). This in itself indicates that traditional theory does not apply in full in this area. Further, it follows from the preambles to the home rule Acts that they are the result of negotiations between the Danish and Faroese and Greenlandic authorities. The mentioning of this fact in the preamble suggests that it was a prerequisite for the passing of the Acts, and that consequently changes in the Acts would also require the consent of the home rule authorities. Another way of RAPPORTS: DENMARK 177 putting this argument is to say that the home rule arrangements have the character of treaties between two independent peoples (see the next section below). Finally, the preambles also state that the Acts are intended to regulate the constitutional position of the relevant areas, which also makes it natural to consider the Acts as something more than ordinary parliamentary Acts. In conclusion, much can be said for considering the home rule Acts as more than ordinary Acts. By constitutional practice a situation has been established according to which the home rule Acts can be changed only with the consent of and after negotiations with the home rule authorities. This constitutional practice thus puts certain limitations on the ordinary legislative powers of Parliament. Not all constitutional scholars agree on this conclusion, even though it is certainly gaining ground within the legal community. Even those who still consider the home rule arrangements as ordinary delegations agree, however, that in practice it would be impossible for political reasons to change the Acts unilaterally. The difference is thus more of a theoretical than a practical nature.

Do the Faroe Islands and Greenland Have a Right to Full Independence?

The basic question to decide when considering the possible right to full independence is whether the population in the Faroe Islands and Greenland can be considered as separate peoples, as it follows from that, if this is the case, the principle of self-determination gives them a right to choose full independence. As mentioned in the introduction to this article, both the Faroese and the Greenlandic populations have their own languages and that are separate from the Danish culture, and they inhabit a limited and well-defined . Furthermore, the Greenlandic population is of a completely different ethnic origin to the Danish population. There is also no doubt that the inhabitants of both the Faroe Islands and Greenland consider themselves as separate peoples. Everything therefore points to recognizing both populations as separate peoples that have the right to self- determination. If at some point the population of either the Faroe Islands or Greenland should want to gain full independence, they would have a right to form their own nation. This is also the position of the Danish Government and Parliament. The problem is not the need to recognize the right to independence, but rather the need to agree on the terms of independence. This has been very clearly demonstrated by the negotiations that have taken place between the Faroese Government and the Danish authorities on the question in the period between 1998 and 2002. At the Faroese parliamentary election in 1998, parties that had as their ultimate aim the creation of a Faroese nation won the majority of seats and formed a coalition government. Soon after the election, negotiations were started with the Danish Government. As mentioned above, the Danish authorities were inclined to accept independence, but at the same time they made it clear to the Faroese Government that independence 178 EUROPEAN PUBLIC LAW would mean that the economic support for the islands would disappear within a fairly short period of time (four years was the Danish offer at the start of the negotiations). On the other hand, the Faroese Government wanted the economic grants to be phased out over a fifteen-year period. The Danish Government had broad political support behind its point of view, and an agreement was never reached on the issue. The Faroese Government at one point threatened to go on with the independence process unilaterally (and the Danish Government declared that it would not try to hinder such a process), but opinion polls showed very clearly that a majority of the Faroese population did not support independence under these conditions. The question was therefore left undecided before the Faroese general election in 2002. At the election, the government coalition lost its majority, but still retained half of the seats in Parliament. A new coalition government was formed with the parties of the former government and another , but this government does not have full independence as its official policy. All parties in the Faroe Islands agree, however, that a more advanced form of home rule should be aimed at, and the Danish Government has declared that it is willing to negotiate on a change in the home rule Act leading to that result. Similarly, there are also demands for more home rule in Greenland, and thus the outcome will probably be that new home rule Acts will be passed in the coming years that will lead to even greater self-determination than now. At least in the Faroe Islands, which are more economically developed than Greenland, a process seems to have been started that will eventually lead to some form of separate nation state ± possibly with some form of cooperation with Denmark in the form of, for example, a confederation or a federal state. The Danish Constitution would not have to be changed if one (or both) of the overseas wanted to be independent. Article 19 of the Constitution envisages the possibility that the government can conclude treaties diminishing the territory of the Realm, and such treaties only require the acceptance of Parliament to be ratified. Legally speaking, it would be a fairly simple process to grant one of the overseas territories independence. The Constitution explicitly mentions the Faroe Islands and Greenland in several Articles (e.g. in Article 28 where the representation of Greenland and the Faroe Islands in Parliament is fixed at two members for each area). There is general agreement that such Articles would not hinder the granting of independence in the sense that a constitutional amendment would be needed to remove such Articles from the Constitution before granting independence. The Articles in which the independent areas are mentioned would simply cease to have any practical relevance, and thus in practice be removed from the Constitution.