Memorandum by Mr. Ralph W. S. Hill of the Office of the Legal Adviser
A question is raised as to whether this Government can send a consular officer to Greenland.
The Convention of Friendship, Commerce and Navigation between the United States and Denmark of 18261 which, with the exception of Article V, is still in force between the two countries, provides in Articles VIII and IX as follows:
- (Art. VIII) “To make more effectual the protection which the United States and His Danish Majesty shall afford in future to the navigation and commerce of their respective citizens and subjects, they agree mutually to receive and admit Consuls and Vice-Consuls in all the ports open to foreign commerce, who shall enjoy in them all the rights, privileges and immunities of the Consuls and Vice-Consuls of the most favoured nation, each contracting party, however, remaining at liberty to except those ports and places in which the admission and residence of such Consuls may not seem convenient.”
- (Art. IX) “In order that the Consuls and Vice-Consuls of the contracting parties may enjoy the rights, privileges and immunities which belong to them by their public character, they shall, before entering on the exercise of their functions, exhibit their commission or patent in due form to the Government to which they are accredited; and having obtained their exequatur, which shall be granted gratis, they shall be held and considered as such by all the authorities, magistrates and inhabitants in the consular district in which they reside.”
These treaty provisions, which are binding upon the two countries, regulate the manner in which their respective consular officers may be sent and received. It will be observed under Article IX that in order for consuls or vice consuls to enjoy their rights, privileges and immunities, they must, before entering upon the exercise of their functions, exhibit their commission or patent in due form to the Government [Page 344]to which they are accredited and that having obtained their exequatur, they shall be considered “as such” by the authorities, et cetera, in the district in which they reside. In other words, before an American consular officer in Danish territory to which consuls may be sent can enter into his consular functions, his commission must be submitted to the appropriate authorities of the Danish Government and an exequatur issued to him.
By article VIII the two parties agree mutually to receive consuls and vice consuls in all ports “open to foreign commerce”. It is further agreed that each party remains at liberty to except those ports and places in which admission and residence of consuls may not be convenient. It is apparent, therefore, that the United States has specifically recognized by treaty that Denmark, as well as this Government, may reserve ports and places to which consuls may not be sent. Furthermore, Article VI of the Convention expressly provides that the Convention shall not apply to the northern possessions of Denmark including, among others, Greenland, and reserves the right to regulate the direct intercourse with these possessions and places. Therefore, it seems that the United States has by treaty recognized the right of Denmark to regulate direct intercourse with Greenland.
It is understood from information furnished by the European Division that Greenland is a Danish colony and that its trade is a monopoly of Denmark, its ports not being open to foreign commerce. In this connection, reference may be made to an inquiry made of the Danish Minister of Foreign Affairs by the American Chargé d’Affaires at Copenhagen on August 17, 1939,2 acting under instructions from the Department, as to whether the consular jurisdiction of the American Consul General at Copenhagen was recognized as extending over Greenland. In reply, the Minister of Foreign Affairs, in a note dated August 22, 1939,2 stated that the said functions in the opinion of the Ministry did not extend over Greenland. The Minister also stated that “trade with Greenland is a Danish Government monopoly” and added that “it is the sentiment of the Ministry that it is incompatible with the special situation of Greenland resulting from this fact and from the rules in force for travelling to and in Greenland to extend consular functions over Greenland.”
In view of the foregoing treaty provisions and the status of Greenland, it is believed that an American consular officer could not formally function in Greenland without the assent of the Danish Government being obtained, with which we continue to maintain diplomatic relations.[Page 345]
It might be possible, should the exigencies of a situation require, for this Government to send someone informally to Greenland where, so long as he was not sent out by the authorities he could remain and perform such functions as may be permitted there by these authorities.