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(cont'd)
III. CENTRAL AMERICA: SPANISH COLONIALISM (VARIANT I) (116 - 144)
IV. THE SOUTHERN CONE: SPANISH COLONIALISM (VARIANT II) (145 - 170)
V. NORTHERN EUROPE: THE LIMITATIONS OF A "CONSTRUCTIVE ARRANGEMENT" (171 - 209)
III. CENTRAL AMERICA SPANISH COLONIALISM (VARIANT I)
116. Regarding Central America, the Special Rapporteur has chosen two different kinds of situations: (a) the first related to the treaty relationship between the Miskito Indians and the British in present-day Nicaragua; (b) the second referring to Kuna Yala, that is, an autonomous territory of the Kuna in Panama.
Nicaragua
117. The territory corresponding to present-day Nicaragua was subjected to two types of colonial influence, British on the Atlantic coast and Spanish on the Pacific coast. Spanish colonization was based on forced assimilation and resulted in the annihilation of the pre-Columbian structures through violence and enslavement. Conversely, the British applied their usual colonial policy of indirect rule, fostering alliances with certain indigenous peoples.
118. The first English arrivals on Nicaragua's Atlantic coast came about through the activities of the Providence Island Company, which was established in 1630 to promote English trade in the Caribbean. Trade posts were built and relations between the traders and the indigenous people evolved more or less along the profitable lines established previously by English pirates. Great Britain placed a geopolitic rather than an economic interest on what was to become the Misquitia and sought to assert her influence by forming alliances and promoting trade with the local population, or rather with specific, well-chosen groups among whom the Miskito played a prominent role. Through their alliance with the British, the Miskito were put in a position of strength that allowed them eventually to dominate the entire Atlantic coast region. <53>
119. A distinctive feature of the Misquitia was the establishment of a monarchy. The historical interpretation of this institution has varied. Most probably, the Miskito used the figure of the king in a symbolic fashion, as a representative figure whose role was limited to maintaining good relations with the British settlers and, subsequently, the British colonial authorities. <54> The representativity and legitimacy of this monarchy was recognized for instance by the convention on military cooperation signed by the British in June 1720 at St. Jago de la Vega (Jamaica) with "His Majesty Jeremy, King of the Mosquito Indians". Similarly, the Spanish treated with the monarchy, for instance in the field of trade relations.
120. Resistance against Spanish domination led to the independence of Central America (1821) and the constitution of a federal republic in 1824. This federation disintegrated in 1838 into several republics corresponding approximately to the former provinces of the colonial empire. British influence on the Atlantic coast dates back to the early 1600s and came to an end in 1894 when the region in question was incorporated unilaterally into the Nicaraguan State. Until that time, and even beyond, both regions lived separately.
121. Nicaragua gained independence in 1838. In 1843, the Misquitia became a protectorate of Great Britain. In this context, the role of the Miskito monarchy started to decline. In the course of hostilities between Nicaragua and Great Britain, the Treaty of Managua was concluded (1860). In this treaty, which affects the Miskito as a third party, Great Britain recognized Nicaragua's sovereignty over all of the lands of the Miskito Indians without indigenous consent. By the same token, the Miskito monarchy was abolished and a sort of Miskito reserve was established (1860-1894).
122. In exchange for the recognition of her sovereignty, Nicaragua agreed to accord the Indians far-reaching autonomy, but did not live up to her promises. When Great Britain complained about violations of the Treaty of Managua, the conflict was transmitted to the Austrian Emperor Franz Josef for arbitration (1879). The decision rendered on 2 July 1881 clearly favoured the British position and Indian autonomy, by ruling that relations governed by international law had existed between Great Britain and the Miskito Indians.
123. Evidence having a bearing on the British Protectorate and the reserve era until incorporation of the Miskitia into the Nicaraguan State still warrants further analysis, especially with regard to the 1860 Treaty of Managua.
124. It should be noted, however, that until the 1950s, the de facto autonomy of the Atlantic coast was never explicitly challenged by the Nicaraguan State: no integration of its inhabitants into the national society was promoted, the indigenous peoples thus living in actual independence, which incorporation into Nicaragua had abolished de jure at the end of the nineteenth century.
125. In April 1996, the Special Rapporteur received from Augusto Willemsen Diaz, a well-known scholar on indigenous issues in Latin America, a substantial amount of materials documenting a series of steps in the process of domestication of the relations between the indigenous peoples of the Atlantic coast of Nicaragua and the post-independence Nicaraguan State. There has been no time, obviously, to carry out in-depth research on this. None the less, all the material received will be reviewed for the purpose of the conclusions and recommendations of the final report.
Panama
126. Some indigenous communities in Panama enjoy a degree of autonomy and have succeeded in gaining recognition of their land rights through national legislation, which otherwise ratified that these lands lie within the territorial jurisdiction of the Panamanian State. Most prominent among these indigenous communities are the Kuna of the Comarca of San Blas (or Kuna Yala), which encompasses some 40 islands scattered along the Caribbean coast, as well as a portion of the mainland. It must be noted, however, that the Comarca of San Blas does not encompass the totality of Kuna communities.
127. Panamanian law distinguishes between reserves and comarcas. A reserve is a system of collective and inalienable land tenure. A comarca is a system in which the collective land tenure is maintained, but also supplemented by a special administrative status, ideally smoothing the way towards the establishment of a distinct legal-political and administrative entity, which would find its place in the existing State structure.
128. The Kuna came into contact with Europeans at the beginning of the sixteenth century when the region corresponding to present-day Panama - especially around the Gulf of Darién - acquired strategic importance in the trade with Spain. From 1544 until independence from Spain in 1821, the central American States were part of the General Captaincy of Guatemala which depended directly on Madrid.
129. The centre of the Kuna territory lies in present-day Colombia, where one still finds Kuna villages. Kuna presence in the San Blas region is said to date back to the mid-nineteenth century. In the 1700s, the Kuna made alliances with Caribbean freebooters, especially in Jamaica. Between 1775 and 1789, together with the Jamaicans, the Kuna rose against the colonizer; they also attacked the mines exploited by Spain on the Gulf of Darién.
130. With the independence of Panama in 1821 and the constitution of the Central American Federation in 1824, the Kuna endeavoured to gain recognition of their sovereignty. Legislation passed in 1871 established the Comarca Tule Nega (the root Tule- refers to the Kuna individual), which spanned the present-day Panamanian-Colombian border. This area was governed by a commissary appointed by the State executive. His main task was to protect the Kuna against outside aggression.
131. It is generally held that, until the separation of Panama and Colombia in 1903, the Kuna were virtually independent, since they had not come under the control of the nation-State and were able to conduct their own foreign trade, especially with the British. <55> The independence of Panama from Colombia was made possible by the construction of the Panama Canal, which was built with United States support. Concerned with building a national - Panamanian - identity, the State promoted the Spanish heritage and language, and adopted policies of assimilation and integration of the countries' indigenous peoples. Among the measures adopted to this end from the early twentieth century on, one finds efforts to police trade in San Blas, to encourage missionary intervention (especially Jesuit), to enact laws to "civilize the Indians" by leasing out indigenous land to non-indigenous settlers, by forcing the Kuna to adopt sedentarized cultivation, and by intervening actively in Kuna culture through the churches and the national education system.
132. Between 1915 and 1925, the Comarca Tule Nega was gradually dismantled by the establishment of an administrative district (circunscripción) called San Blas, by banning the Kuna from engaging in foreign trade, and by leasing out land without seeking the consent of the Kuna, for example, to the mining company Vaccaro Brothers to exploit manganese and to the United Fruit Company to establish banana plantations.
133. The Kuna view the Revolución Dule as a crucial step in their struggle for autonomy and cultural identity. The principal result of the revolution was that the State of Panama abandoned its policy of forced assimilation.
134. In 1930, a large number of Kuna communities sent a joint petition to the Government, which called for individual voting rights and collective rights for the inhabitants of the district of San Blas. On 12 December 1930, Law No. 59 was enacted; it established a Kuna reserve that was replaced subsequently by a comarca (Law No. 2, of 16 September 1939). On that basis, Law No. 16 (19 February 1953), which is still in force, organized the Comarca of San Blas (Kuna Yala).
135. At present, Kuna everyday life evolves in two worlds, one governed by traditional Kuna institutions, the other embodied by State-provided services and mainstream society. Kuna traditional institutions are based on the community and can be found in each village where the political life centres around the assembly hall in which the village leaders (saila) gather daily to perform ritual songs and discuss village business. Their sessions are public, and each villager can voice an opinion. The saila are mostly elders endowed with specific ritual knowledge. They are accompanied by argarganas whose task is to translate into common language, for the general public, the traditional songs performed in ritual language. Apart from its ritual functions, the Kuna local congress tackles a variety of economic and administrative tasks and also renders justice. Decisions are made on the basis of consensus. There are also urban chapters of such congresses which group those Kuna who work or study in the city, while allowing them to maintain close ties with their native villages. Other Kuna institutions include traditional healers, and specialists of traditional subsistence activities, in particular horticulture.
136. Kuna local communities congregate in two central institutions. The General Congress of Kuna Culture groups the spiritual leaders of the communities; its main objective is to preserve and transmit the cultural and historical heritage of the Kuna. The Kuna General Congress is the central governing instance, presided by three grand chiefs from different regions of Kuna Yala. The Congress convenes several times a year and is made up of representatives of each community. It reaches most of its decisions by consensus and has competence in economic, political, administrative and judicial matters.
137. On the Panamanian side, the Kuna receives government services. They also deal with a direct representative of the executive, namely the intendant who, by law, has the power to approve or veto decisions taken by the Kuna General Congress. Furthermore, the Kuna elect three representatives to Parliament.
138. Kuna autonomy evolves within a complex institutional structure whose components may be in conflict depending on circumstance. While the Kuna General Congress represents Kuna traditional government and governs much of everyday life, a number of institutions representing mainstream Panamanian society are also present in the villages, especially through services provided by the State. The legal instruments governing this institutional set-up are: the national Constitution, Law No. 16 (1953) and the Carta Orgánica de los Indios de San Blas.
139. The Panamanian Constitution dates from 1972 and was revised in 1978, 1983 and 1991. It does not recognize any special rights to the country's indigenous communities, with one exception, namely article 116 referring to communal land tenure. This article guarantees to indigenous communities the necessary lands to achieve their economic and social welfare under collective property.
140. Law No. 16, enacted on 19 February 1953, entrenches a regime of autonomy for the Kuna of the Comarca de San Blas (Kuna Yala) and defines the extension of the Comarca. Furthermore, it establishes that the supreme authority within its borders is held by an intendant representing the State executive (art. 3), whose role is to enforce the law, supervise the Comarca's administration and registers, promote economic activities and the territory's development, and so forth. Regarding Kuna autonomy, the crucial provisions are contained in articles 11 (which provides for a form of political organization based on traditional Kuna chiefdom), 12 and 13 (which recognize Kuna jurisdiction and political institutions) and 21 (which allows the Kuna General Congress to approve, or disapprove, of individual or corporate development projects on Kuna land).
141. At present, the Kuna General Congress is seeking a revision of Law No. 16, which is mainly geared towards better recognition of Kuna political autonomy in relation to the Constitution of Panama, by establishing indigenous comarcas and State provinces on an equal footing.
142. The Carta Orgánica de los Indios de San Blas is viewed as the Kuna Constitution. It defines notably the powers and attributions of the traditional indigenous institutions, namely, the Kuna General Congress, local congresses, chie
143. Although Kuna autonomy has to function in relation to State institutions, it has the advantage of providing for the recognition of Kuna traditional institutions and of allowing the Kuna a measure of control over development projects in the autonomous territory, including exploitation of subsurface resources. <56>
144. But the State of Panama has not abandoned its initial goal of integrating and assimilating the indigenous peoples in general and the Kuna in particular. Furthermore, Kuna autonomy is granted through State legislation, while the State disposes of an array of legal means to ignore the opinions of the Kuna General Congress. Consequently, one can argue that the autonomous regime enjoyed by the Kuna at present and the limitations thereto are a good illustration of what is at stake in the ongoing debates on autonomy or self-government as opposed to indigenous self-determination.
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IV. THE SOUTHERN CONE SPANISH COLONIALISM (VARIANT II)
145. The indigenous people retained for study in Part IV are the Mapuche, now under both Chilean and Argentinian jurisdiction. One could also have chosen the indigenous peoples of the Gran Chaco (northern Argentina) such as the Toba and the Mocoví, since these are parties to a number of compacts concluded either with the colonial authorities or the Argentine State. The Special Rapporteur received copies of these compacts via the Asociación Indígena de la República Argentina (AIRA).
146. The State of Argentina made treaties with indigenous peoples in the context of the so-called conquista del desierto in the late 1800s, which initiated colonization proper after two crucial military expeditions: the Uriburu expedition of 1870 and the Victoria expedition of 1884. For example, the Spanish governor of Tucumán, Don Géronimo Matorras, made a treaty with the Toba and Mocoví in 1774, which recognized indigenous territories in the Chaco, banned slavery and other forms of bondage (including the encomienda) and provided for religious instruction and Spanish language teaching, as well as for facilitating the Indians' conversion to sedentary farming; the treaty also provided for assistance - notably horses - against the Abipone the indigenous signatories were at war with. In exchange for these benefits, the Indians submitted themselves to the Spanish Crown. The treaty also provided for "protectores de indios" to represent them in court. If the signatories proved their fidelity to the King, they received weapons to defend themselves against their enemies. More recently, in 1825 and 1864, the State of Argentina represented by the governor of the Province of Corrientes, Ferré, entered into two treaties reconfirming the territorial rights of the Mocoví and Toba.
147. Following the conquista del desierto and atrocities against the Toba people, the National Executive enacted a decree on 19 February 1924 which established a reserve of 100,000 hectares. This decree was not implemented; rather, provincial law No. 2.913 (art. 7) reduced the surface of this reserve by half and article 18 of the same law stipulated the public sale of indigenous land. <57>
148. The region also offers an example of a treaty affecting indigenous peoples as third parties, namely the Tratado de Permuta of 1750 between Spain and Portugal, which provided for the exchange of the seven most easterly Paraná missions (with some 30,000 inhabitants) for the town of Colonia do Sacramento. Jesuit missions had played an important role in the Argentine interior in the late seventeenth and early eighteenth century. This applies in particular also to the two dozen missions of the Upper Paraná, including about 50,000 Guaraní, Mocoví and other Indians. The Treaty of Permutation provoked a Jesuit revolt (but was declared null and void in 1759 after Charles III came to the throne in Spain). <58>
149. A large number of agreements made with the Mapuche (Renqueles or Ranqueles in the Argentinian context) have been brought to the attention of the Special Rapporteur. When Buenos Aires was made the viceregal seat in 1776, attempts began to fortify the border. In 1770, Governor Bucarelli had signed a peace treaty with Mapuche chiefs in order to obtain their recognition of the forts which had been built since 1776 in view of establishing a permanent boundary. In 1781, during the reign of the viceroy Vértiz and following military defeat of the Pehuenche of the Andes, a peace treaty was made, which guaranteed the signatories mutual recognition of their respective territories. Nevertheless, this treaty was quickly followed by renewed "punitive" expeditions against the Indians. In 1782, Vértiz signed another peace treaty with the Pehuenche.
150. Until 1828, the Argentine army conquered large tracts of land in the eastern pampa that were well suited to raising cattle; wealthy landlords supported these ventures and eventually took advantage of them through the foundation of haciendas. A number of forts were established (Independencia, Bahía Blanca, 25 de Mayo, Junín) to secure occupation. This push was accompanied by several attempts to conclude agreements with the Indians of the pampa, bringing them either to cede land or to accept formally forced territorial acquisitions by whites.
151. In 1833, Juan Manuel Rosas undertook a large-scale military expedition against the Indians inhabiting the pampa and northern Patagonia. The Mapuche suffered a number of defeats and the colonizers achieved complete victory. Nevertheless, the most fertile areas of the pampa west of Buenos Aires was conquered by the army. Rosas opted for keeping the Indians in check through regular provisions of cattle and merchandise.
152. Regarding the Mapuche, they waged a long war of resistance, especially in present-day Chile, against the Spanish invaders and territorial successors, the Government of Chile, the so-called Guerra de Arauco. The Mapuche succeeded in maintaining their political independence and territorial sovereignty for over three centuries after contact with Europeans, starting with the defeat of the Spanish army in the so-called Desastre de Curalabá (1598).
153. In the context of the Guerra de Arauco, parlamentos or peace conferences leading to oral or written agreements between the colonial authorities and the Mapuche played a crucial role. After Curalabá and the destruction of colonial establishments in Mapuche territory, Spain started to pursue a peace policy. The most important peace talks of the seventeenth century - which Frias Valenzuela has described as el siglo de los parlamentos <59> - were the Paces de Quilín of 1641, which established the Bío-Bío as the border between the Spanish colony and the Mapuche territory. This agreement served as a model for all subsequent agreements reached during the colonial era (the last of which was concluded at Negrete in 1803).
154. A number of agreements reached during parlamentos recognized Mapuche sovereignty and independence in the area extending south between the Bío-Bío and the Toltén rivers (however, by the same token the Mapuche lost an important section of their traditional territory lying north of the Bío-Bío). Moreover, both parties to the compacts agreed to the establishment of missions and trade relations. According to Bengoa, the independent Mapuche territory did not belong to the General Captaincy of Chile but rather had direct relations, as an independent nation, with the colony. <60>
155. Peace talks also took place all through the eighteenth century, many of these convened by the Governor of Chile and highly ritualized. <61> The Parlamento de Negrete of 1726 is considered as the prototype of Mapuche peace agreements. Its provisions included: recognition of the King of Spain, acceptance of the construction of Spanish forts along the southern shore of the Bío-Bío, receiving missionary instruction and accepting baptism, the maintenance of indigenous criminal jurisdiction and the banning of Spanish private ventures within the independent territory. <62>
156. On the other hand, parlamentos were also used as tools of colonization, as in the case of the so-called Parlamento de las Canoas convened in 1793 by Ambrosio O'Higgins (then Governor of Chile) with the Huilliche after the latter had risen against the colony in 1792 but were defeated. By this agreement, the Huilliche ceded important portions of their territory to the Spanish Crown and agreed to the establishment of missions.
157. During the liberation wars in Chile, the Mapuche became involved, willy-nilly, in the notorious guerra a muerte (1819-1822) and subsequently in the Chilean civil war of 1851. <63> In this back-and-forth, their bargaining position was not always strong.
158. Independent Chile inherited the Araucanian problem, since the Mapuche territory enjoyed a special status on the basis of the parlamentos entered into with Spanish colonial authorities until 1803, when the parlamento of Negrete recognized once again the Bío-Bío river as the border with the Mapuche. <64> But it took Chile 70 years to occupy and subjugate Araucania.
159. With the promotion of European settlement in the mid-nineteenth century, the agricultural frontier crossed the Bío-Bío and extended to the Malleco river, forcing large numbers of Mapuche families off their land. During the so-called pacification of Araucania (1866-1885), legislation was enacted to incorporate the Mapuche territory into the Chilean State.
160. In 1852, the province of Arauco was created as the Chilean outpost in the territory situated immediately south of the Bío-Bío river, the traditional border with the Mapuche, and inhabited at that time by a small number of Chilean farmers and military personnel. By the same token, the Chilean State assumed unilaterally jurisdiction over the new province and set out to "protect" and "civilize" its indigenous inhabitants.
161. In 1866, a law providing for the incorporation of Mapuche lands into the public domain was enacted. By the end of the nineteenth century, 9 million hectares had either been distributed in lots of 40 hectares to demobilized military personnel or allotted in lots of 500 hectares to settlers who were entrusted with the task of "protecting and civilizing" the indigenous communities established on their land, which meant, in particular, forcing the Indians to become sedentarized.
162. In 1885, the Mapuche were defeated and their territory occupied by the Chilean army, which had come home victorious from the Guerra del Pacífico with the Bolivian-Peruvian Confederation. Once military victory had been achieved, the Chilean State set out to dismember systematically Mapuche land holdings. The main role in this process was played by the Comisíon Radicadora de Indígenas created in 1883, which made a census of the Mapuche families and surveyed their agricultural and grazing lands to decide on how much land to allot a given family. Generally, less land than what extended families occupied was allocated, for only land permanently cultivated was taken into account. These became reducciones, for which each family received a title (título de merced).
163. Although these titles allowed the Mapuche to own their land communally, they actually contributed to dissolving Mapuche land holdings. For instance, one third of the Mapuche were not settled anywhere. This is notably the case of the Huilliche - or southern Mapuche established in the provinces of Osorno and Llanquihue - who hold their traditional lands illegally according to Chilean law. All in all, only 77,752 land titles were attributed during the period the Commission functioned (1883-1920). Furthermore, many Mapuche resented being settled on small reservations after having occupied traditionally a vast territory; the reservations cover little more than 6 per cent of both provinces (Arauca and Osorno) and are often situated on land of inferior quality for cultivation. Finally, people were arbitrarily grouped together under títulos de merced; often they came from different families and did not recognize the same chief.
164. The implementation of the settlement policy was much influenced by the North American experience. Cornelio Saavedra, the main military authority in Araucania, had succeeded in imposing the idea that in order to appropriate the lands of the Mapuche, several related measures had to be taken, namely, pacification of the territory by the army, railway construction to facilitate communication and transport, assumption of State monopoly regarding the acquisition and sale of land, and European immigration. <65> Thus the State declared itself sole owner of the land, while the Mapuche were denied all title, or rather had to acquire title from the State, as required by the law of 1866.
165. Starting in 1927, various laws were enacted with a view to fragmenting the Mapuche land holdings. These were subsequently incorporated into Decreto Supremo 4.111 (1931), which remained in effect until 1971 and resulted in the division of 832 communities for privatization. Its purpose was to allot fertile land to individuals determined to farm it, many of whom were not indigenous.
166. Ley 17.729 of 26 September 1972, promulgated under the Government of Unidad Popular with the input of Mapuche regional associations, attempted to stop this process of territorial fragmentation. It also provided for the recuperation of land lost or usurped and established the Institute for Indigenous Development. But it was assimilation legislation meant to promote the Indians' integration into the national community. These provisions were never properly implemented and were made null and void through legislation passed under the military dictatorship.
167. Recently, Chile adopted special legislation regarding the country's indigenous peoples (Ley indígena, 1993) whose relevance in connection with the issue of treaties, agreements and other constructive arrangements, as well as that of non-treaty peoples in present-day Chile, has just started to be assessed by the Special Rapporteur.
168. It is worth stressing in this connection that the question of domestication in the Chilean context has to date not been addressed in the literature consulted, although there are clear indications that some legislation passed in the second half of the nineteenth century had the effect of domesticating relations with the Mapuche - at least those of the territory situated south of the Bío-Bío river. This applies for example to the 1866 law providing for the incorporation of the territory south of the Bío-Bío in the public domain, as well as the various laws aimed at breaking up Mapuche land holdings (títulos de merced) and finally to the active promotion of European colonization carried out in violation of the agreements reached with the Mapuche - at least those regarding the territory south of the Bío-Bío.
169. In recent years, Mapuche organizations have taken considerable interest in the treaty issue. In particular, the Consejo de Todas Las Tierras (Aukiñ Wallmapu Ngulam) adopted a resolution during the fourth session of the Mapuche Tribunal held at Temuco/Chile from 28 to 30 March 1994, which recalls the historical significance of the agreements entered into by their forebears with the Spanish Crown and confirms the binding character of these agreements.
170. Since the very beginning of his mandate, the Special Rapporteur has received documentation, first from indigenous groups in Argentina (1988) and subsequently from Mapuche in Chile (1991). He appreciates the research work already carried out by the organizations involved, especially that of the Asociación Indígena de la República Argentina and the Consejo de Todas Las Tierras based in Chile, which will be extremely helpful to him when formulating his final conclusions, proposals and recommendations.[back to the table of contents]
V. NORTHERN EUROPE: THE LIMITATIONS OF A "CONSTRUCTIVE ARRANGEMENT"
171. Until quite recently, Greenland, more than 50 times the size of Denmark, was politically administered as an integral part of the smaller country. It has a population of some 55,000, the majority of whom are Inuit (approximately 85 per cent), compared to some 5 million inhabitants in metropolitan Denmark.
172. "Since the voyage of the Danish missionary Hans Egede to Greenland in 1721, Greenland has been considered a Danish colony." <66> In 1979, and according to the Chairman of the Commission on Home Rule for Greenland, things were as clear-cut as that. But, what took place in fact was a gradual expansion of Danish influence, which in the end covered the entire territory of Greenland.
173. The Norse presence dates back to the last quarter of the tenth century when Icelandic and Norwegian seafarers arrived on the south-west and west coasts. Their settlements came under the King of Norway in 1261. However, this early population perished before 1500. Scholars such as Gudmunder Alfredsson attribute this disappearance to a variety of factors, including armed conflicts with the Inuit and possibly the lack of communication and transport from Europe.
174. Although the Norse settlements were no more, Greenland remained, at least on paper, a Norwegian colony until 1814. That year Sweden and Norway ceded the Atlantic possessions of the latter to Denmark in the Treaty of Kiel.
175. Greenland was recolonized in the first half of the eighteenth century by Norwegian and Danish missionaries and merchants. It was the first time that the Greenlandic Inuit came under foreign domination. The rule continued, first in the form of royal instructions and, later, by legislation originating in Copenhagen which Alfredsson maintains, "were written and enacted by Danes, fraught with paternalistic attitudes, and certainly good for the maintaining and securing of continued Danish sovereignty over the island." <67>
176. As in many of the other regions discussed in this and previous reports, commerce was the motivating factor in going into and seeking domination over the territory in question. In 1721, Egede formed a "Greenland Company" and set off for that island, the largest in the world. A new colony was established on its west coast.
177. In 1723, the Greenland Company was granted a royal concession placing "the whole country of Greenland" at its disposal for a period of 25 years. Until 1774, the conduct of Greenland affairs was regulated through several concessions granted to different entities, which were all backed by royal ordinances protecting the respective trade monopolies. In 1774, the Danish authorities themselves established a trade monopoly with regard to Greenland, followed in 1781, by regulations dividing "the country" into a northern and a southern district, governed by "inspectors" who were not only entrusted with the supervision over the trade monopoly, but were also given powers of general administration.
178. After the Treaty of Kiel, the Danes maintained the trade monopoly over Greenland and granted concessions for the colonization of its east coast. However, it was not until 1894 that the first colony was established there. Up to 1921 more and more colonies were established on Greenland, accompanied by administrative decrees and ordinances, thus increasing the level of Danish authority over the island.
179. During and immediately after the First World War, the Danes sought recognition of their sovereignty over Greenland. An example of such "recognition" can be found in the 1916 United States declaration on the cession of the Danish West Indies (today the United States Virgin Islands):
"... the undersigned Secretary of State of the United States of America, duly authorized by his Government, has the honour to declare that the Government of the United States of America will not object to the Danish Government extending their political and economic interests to the whole of Greenland." <68>
180. France, Italy, the United Kingdom and Japan issued similar declarations in 1920, as did Sweden in 1921. The only country that refused to recognize Danish sovereignty over Greenland was Norway, which claimed to have certain economic interests on its east coast. Negotiations to resolve this dispute were fruitless. In the meantime, Danish authorities continued to make administrative regulations for Greenland, which met with "categorical reservations" from Norway.
181. In 1931, Danish sovereignty over Greenland was challenged by Norwegian decrees placing portions of eastern Greenland under Norwegian sovereignty, based on the assumption that they were terra nullius. The issue went to the Permanent Court of International Justice in 1933. In effect, the Court decision would confirm Danish sovereignty over the whole of Greenland on the basis of the intention and the will of Denmark to act as sovereign and the continuous manifestation of State activity. It has been argued that it could have well been possible for the Court to have ruled against the Danish claim of effective occupation, if that had been weighed against the claims of the native population, provided they had locus standi.
182. The Court, however, used the fact that Greenland was inhabited prior to colonization as an element in favour of Danish claims and, in passing, lightly assumed that early settlements perished because their "inhabitants were massacred by the aboriginal population". <69> In no way does the Court refer to the indigenous inhabitants as relevant actors in this case, nor were their wishes taken into consideration.
183. After the Court's ruling, there was no further disagreement as to the status of Greenland and in 1946 Denmark listed the island as a non-self-governing Territory under Chapter XI of the Charter of the United Nations.
184. In the 1860s, the Danes - for the purpose of increasing productivity - introduced limited native participation on local administrative boards. That system was slowly widened to the current home rule. It was only in 1920 that the Greenlanders gained seats on a committee entrusted with the drafting of a bill concerning the island's administration. <70> This practice has been retained since then, although the Greenlanders have consistently been disadvantaged members of such bodies up to and including the Home Rule Commission, which drafted legislation relating to the introduction of home rule.
185. The move from colonization to integration followed a shift in the administration of Greenland from Copenhagen to the establishment of local organs of government in the second half of the nineteenth century. It was only in January 1963, when the local Greenlandic governmental system was extended to include North and East Greenland, that the responsibilities of the Hunters' Council, under the Thule Act, were taken over by a municipal council and a local court (for more on the Thule Act, see paras. 198 and following, below).
186. In 1953 the Danish Constitution was revised. The Constitution was extended to Greenland, which thus became an integral part of the Danish Kingdom, with the same constitutional position as the other parts of the realm. In addition, Greenland obtained the right to send two representatives to the Parliament in Copenhagen.
187. This integration was approved by the General Assembly of the United Nations in resolution 849 (IX) of 22 November 1954 and Greenland was removed from the list of non-self-governing Territories. According to the same resolution, Greenlanders had exercised their right to self-determination, through integration with Denmark.
188. However, there are a number of arguments against this interpretation. First of all, the Greenlanders were not given much of a choice. The options were the status quo or integration. There was no mention of independence or of any other form of linkage.
189. Secondly, the Constitutional Commission that worked out the proposals for integration was composed of Danes only. It began work in the summer of 1952 and submitted its proposals in August of that year to the Greenlandic Provincial Council which swiftly approved them, in less than a month.
190. Thirdly, Greenland did not possess the type of local political institutions, such as those described in the Charter of the United Nations, that would have put Greenlanders in a better position to decide on their future, i.e. the Provincial Council was not a free political institution. Its composition and functions were regulated by Danish law. Its powers were mainly advisory and its chairman was the Danish Governor of Greenland. (Furthermore East and North Greenland had no delegates on the Provincial Council and their local councils, albeit representing a small part of the population, were not consulted on integration.)
191. Lastly, the population was not consulted. Contrary to the situation in Denmark, there was no referendum held in Greenland about the integration. Alfredsson writes of this situation:
"Considering that the incorporation of Greenland was intended to end the colonial status, one notes with regret certain flaws in the implementation of said changes on the national level; flaws which had to do with the continued employment of colonial practices to end the colonial system itself." <71>
192. All this leads many to conclude that the process of integration does not amount to the exercise of the right to self-determination of the Greenlandic population. In fact, this is corroborated by the mere installation of home rule, which gives a form of autonomy to the population and on which a referendum was held that showed considerable support for this arrangement. If the population had been content with integration as a Danish province, they would not have approved home rule.
193. The discussions between Greenlandic and Danish politicians and officials in the Home Rule Commission which led to introduction of limited autonomy called home rule in 1979, can in no way be described as an exercise of the right of self-determination.
194. The results of integration reduced the available options to a choice between the status quo and home rule. The process was again dominated by the Danish authorities through the use of the Danish language, through their expertise, and through their majority in and chairmanship of the Home Rule Commission. The whip of financial control hung in the air, the Greenland economy being subsidized by Danish contributions.
195. The outcome, the Greenland Home Rule Act, was a rearrangement of administrative practices in Greenland through the delegation of certain powers from Copenhagen. It was done by two acts of the Danish Parliament, one before and one after the advisory referendum in Greenland. These acts can be changed or cancelled at any time, according to Danish constitutional law, even without consulting the Greenlanders, by another act of the same Parliament where the Greenlanders have two representatives out of a total of 179.
196. While dismissing some criticism of home rule, former Greenland Minister of Social Affairs Henriette Rasmussen does admit "there is no doubt that the uncritical transfer of Danish administrative and legislative tradition might not have been the best for the big, scarcely populated island that is Greenland". <72> This transfer, she wrote, made it necessary, particularly in the administrative field, to import Danish academics as "experts". The result of bringing in Danish lawyers, economists, engineers, architects and construction workers who, "because of their familiarity with the European system, on the one hand, are really experts, but on the other are being located in a culture and a country that is totally strange to them ... can create some insecurity between the imported academic workforce and the Greenlandic local population and result in complaints that cannot be described as real conflicts since there also exists an interrelationship between the two groups, the imported workforce and the unemployed local population". Unemployment is high in urban areas and has a negative impact despite what Rasmussen describes as a "good social security system". She goes on to write that "some of the problems of poverty derive from the ban on aboriginal hunting products by other countries, especially the United States and the European Union". <73>
197. Rasmussen stresses that:
"In recent years ('the adolescence of Home Rule') Greenlandic politicians in the Parliament and Government have raised slogans such as: 'self-management at the grass-roots
She makes a point in mentioning that a dispute emerged when home rule was introduced and the pro-independence Inuit Atagatigiit party (the human or Inuit brotherhood), which opposed home rule as a colonial carry-over, demanded full and collective ownership over the land and its resources. However, in a plebiscite, the majority voted to approve home rule with "property limited to the land and the resources and a legislative power that did not include the judicial system and foreign relations". <74>
198. The 1933 ruling of the Permanent Court (see paras. 181-183 above) casts rather an odd light upon the behaviour of Danish officials with respect to Cape York, in what is now called the Thule district where the United States Thule Air Base is located. There was no colonization of this land by the Danes, but rather a contractual transfer to the Danish State.
199. In 1910, Knud Rasmussen, a Danish explorer, founded, with the consent of the Inughuit (local Inuit tribe), a private trading station, Cape York. When, in 1925, the Danish Parliament requested Rasmussen to place the Cape York district under Danish colonial authority, Rasmussen refused. From this it is clear that the Danish authorities did not regard themselves as having sovereignty over this area.
200. In 1927, Rasmussen and the Inughuit set up the Hunters' Council to settle relations and authority in the Cape York area. This Council adopted what is now known as the "Thule Act", which declares in its preamble that "all members of the Tribe constitute the society, and the society speaks through the Hunters' Council".
201. The "Thule Act" was ratified by Denmark on 8 September 1931. This meant that the Danes accepted the legislative power of the Hunters' Council.
202. On 4 May 1937 an agreement was concluded transferring the station to the Danish authorities. To interpret what this transfer represented, one should consider that what Rasmussen had acquired, namely a right to operate a trading station, was now transferred, by agreement, to the Danish authorities. In fact, the Danish Prime Minister stated in a note to the chairman of the Hunters' Council that "the takeover by the State of the trading station at Thule ... does not affect the present legal position of the district".
203. Thus what the State acquired was a limited set of rights to run a trading station, leaving all rights laid down in the Thule Act in the hands of the Inughuit.
204. From this it is clear that the Danish authorities did not consider the Cape York area to be terra nullius. Since all that was acquired was a limited set of rights to run a trading station, not sovereignty, all Danish actions overstepping the contents of this set of rights could be looked upon as an infringement of the Thule Act and the jurisdiction of the Inughuit.
205. In connection with this issue, the Greenlandic former minister of social affairs goes on to note how poorly the Home Rule Government fairs against large powers with conflicting interests.
"The facts surrounding the Thule Air Base and the resettlement of the local population in Qaanaaq, and the fact that the United States Air Force has violated agreements and has used the base as a deposit for atomic bombs, resulting in an air accident with one of the planes loaded with atomic bombs in 1968, reveals the weakness of the Law of the Home Rule Government in relation to powers such as the United States, and even the weakness of the Danish State, which has now raised concerted protests in Greenland and Denmark." <75>
206. The explosion of that B-52 bomber contaminated the area with plutonium. It was 19 hours after the accident before the news reached Denmark. The United States had deliberately held back the information since it feared the political consequences, the reason being that nuclear weapons were banned from Danish territory, and consequently from Greenland, during peacetime. Public opinion in Greenland and in Denmark was calmed down with assurances that this was a unique instance. Nevertheless, nothing was done for the Danish and Greenlandic workers who had to clean the contaminated area without any special protection. Some parts of the four hydrogen bombs involved were never found. Over the years hunters have observed various malformations in the seals and radioactive contamination is feared.
207. In a report released on 29 June 1995, the Government of Denmark admitted publicly that it had had knowledge that the United States had atomic bombs in Greenland. From the beginning of the 1950s and until the fatal accident in 1969, the B-52 bombers had flown thousands of flights over Greenland while carrying atomic weapons. In addition, the United States had had an atomic arms deposit in the Thule base.
208. The report revealed that then-Prime Minister of Denmark, H.C. Hansen, in 1957, without the knowledge of the Government of Denmark, had given the United States a silent "OK" of its atomic policy in Greenland. The Government of Denmark affirms in the report that, because of the secret agreement, the United States had acted in good faith. Nevertheless, there are many indications that Denmark wanted to absolve the United States and blame everything on the former prime minister. What really happened in November 1957 was that the United States, in deep secret, questioned the Prime Minister and the Minister for Foreign Affairs as to whether the Government wanted to be informed if the United States, in fulfilment of the defence treaty for Greenland, was stationing atomic bombs on the island.
209. In addition to these obvious limitations, the Home Rule Authorities' powers are restricted both by Danish national legislation and international agreements entered into by Denmark. Since the Danish Constitution has full effect in Greenland, all constitutional rules must be abided by by the Home Rule Authorities. For example, the power to conduct foreign policy is a constitutional prerogative of the Government of Denmark, and obligations arising out of treaties and other international rules binding on the Kingdom are also binding on the Home Rule Authorities.