In recent days, the President’s pronouncements about needing “Greenland for national security,” and the White House’s refusal to take military action off the table, have, as the headlines in the Wall Street Journal put it, “spread alarm among allies.”  This post will examine the status of Greenland, security issues, the law, and the policy to help you make your own decision about this issue.

Status of Greenland

A highly informative “explainer” about Greenland’s status is available here.  It points out that notwithstanding that the Inuit people first settled Greenland 2,500 years ago, Denmark took it as a colony in the 18th century.  In 1953, without consulting Greenland, the island shifted from a colony to a formal Danish territory.  Greenland has considerable autonomy over local matters, but foreign affairs and defense are handled by Denmark. 

In theory, Greenland can become independent, but that requires a referendum and the approval of the Danish parliament.  However, “[r]elations have been strained [with the indigenous Inuit] by revelations of historical misconduct. In the 1950s, Danish authorities forcibly relocated Inuit to larger towns, marginalising the practices and languages of indigenous people who make up almost 90% of the population.”

Could the US do what Denmark did to the Inuit and just occupy Greenland?  Some might offer a convoluted theory about the vast amount of territory in Greenland that is uninhabited by anybody (and likely never has been) as being terra nullis, and therefore subject to the “doctrine of discovery.” (Discussed with approval by the Supreme Court in the 1823 case of Johnson v. McIntosh.)

However, the Cornell Law School Institute observes:

Nowadays, the world as viewed by international law is considered to be a finite world, because no land is open to state occupation (no terra nullius left), so this question no longer arises today. However, in 1792 Thomas Jefferson asserted that the doctrine of discovery was international, and therefore was applicable to the U.S. government. Today, the doctrine of discovery is still mentioned in [connection with allegations of] American Imperialism and in regards to the treatment of indigenous people.

It might not be precisely true that there is “no terra nullius left” (see, e.g., here), it is nevertheless hard to see how the world community would accept this rather antiquated (but still extant) theory in the context of Greenland.

Why is Greenland important to the US?

Britannica provides this succinct summary:

The United States is interested in Greenland, the world’s largest island, because of its strategic location at the intersection of North America, Europe, and the Arctic, making it crucial for military security and movement across the northern Atlantic. As geopolitical competition with Russia and China intensifies, U.S. officials are increasingly focused on preventing adversaries from gaining a lasting foothold in the region. The primary concern is Russian naval and missile activity, with Chinese naval activity and investment in Arctic infrastructure treated as a secondary but growing risk.

In addition, Greenland has mineral riches.  As the Center for Strategic and International Studies (CSIS) reported yesterday: 

Greenland ranks eighth in the world for rare earth reserves, with 1.5 million tons, and is home to two rare earth deposits that are among the largest in the world: Kvanefjeld and Tanbreez. Still, no rare earth mining has taken place on the island to date. The harsh Arctic climate is prohibitive to mining activities on most of the island throughout much of the calendar year. Only 20 percent of Greenland is ice-free, and temperatures can reach below –40 degrees Fahrenheit. However, melting ice caps amid warming global temperatures are opening access to additional mineral resources as well as new shipping and transportation routes, potentially turning Greenland into a viable mining partner.

Denmark and, critically, Greenland’s leaders have repeatedly said that while they are not for sale, they are “open for business” and willing to consider commercial deals.

A year ago, when President-elect Trump was talking about buying Greenland, former NATO Commander (and my war college classmate!) retired Admiral Jim Stavridis was reported by The Hill as saying this about a possible purchase:

“It’s not a crazy idea. … We could do an awful lot in terms of business, investment, box out the Russians, box out the Chinese, and work very closely with Greenland,” he told [a] radio host..

Stavridis said he thinks Greenland is a “strategic goldmine for the United States,” expressing support for Trump’s idea.

“It sits at the very top of the North Atlantic. It protects approaches to our own country. … It’s geographically very important. It’s full of strategic minerals, rare earth, probably a lot of gold. It’s got a lot of natural resources,” he said earlier in the interview.

“It doesn’t have to become the 51st state, but it can certainly be an economic objective for us,” he added.

US military presence

Greenland has a history of hosting U.S. forces dating to World War II.  During the Cold War there were important bases for bombers and fighters, as well as for meteorological striations.  US troops totaled nearly 10,000 until declining in the post-Cold War world to about 200 today.   

Last April, Tom Nichols, the scholar-turned-journalist whom I’ve known and respected for many years, contacted me about an article he was writing for The Atlantic about Greenland and possible U.S. military action there.  He included some of what I provided in his excellent (and prescient!) article, which can be found here.

I thought it might be helpful for you to see my full input at that time in response to his question about the legality of orders the military might receive regarding Greenland.  I started with the basics:

Military orders are presumed to be lawful.  The Manual for Court-Martial puts it this way:

An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.  This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (Emphasis added.)

The 1951 U.S.-Denmark agreement allows the two countries to designate “defense areas” that they “agree to be necessary for the development of the defense of Greenland and the rest of the North Atlantic Treaty area.”  Once such a defense area is designated, the agreement gives the U.S. certain entitlements, including:

(b) Without prejudice to the sovereignty of the Kingdom of Denmark over such defense area and the natural right of the competent Danish authorities to free movement everywhere in Greenland, the Government of the United States of America, without compensation to the Government of the Kingdom of Denmark, shall be entitled within such defense area and the air spaces and waters adjacent thereto:

(i) to improve and generally to fit the area for military use;

(ii) to construct, install, maintain, and operate facilities and equipment, including meteorological and communications facilities and equipment, and to store supplies;

(iii) to station and house personnel and to provide for their health, recreation and welfare;

(iv) to provide for the protection and internal security of the area;

(v) to establish and maintain postal facilities and commissary stores;

(vi) to control landings, takeoffs, anchorages, moorings, movements, and operation of ships, aircraft, and water-borne craft and vehicles, with due respect for the responsibilities of the Government of the Kingdom of Denmark in regard to shipping and aviation;

(vii) to improve and deepen harbors, channels, entrances, and anchorages.

I can’t imagine that Denmark would agree to any new “defense areas” at this time.  However, it would seem that the U.S.’s Pituffik Space Base is set in an existing “defense area,” and while the base itself might be small, I don’t know how large the “defense area” on which it is placed might be.  In addition, there may be other defense areas that were agreed upon in the past. 

Thus, an order deploying large numbers of US troops to Greenland might be characterized as one permitted by the terms of the 1951 agreement.   In my view, that would be a gross misreading of the agreement in these circumstances, but there may be enough uncertainty for many to conclude that the inference of lawfulness applies. 

Moreover, now that the top military lawyers tasked to provide “independent legal advice” have been fired, would there be any senior level lawyers in the Pentagon willing to challenge the legitimacy of the order? 

In short, because of the potential ambiguity, as well as the inference of lawfulness, I would not necessarily count on the military disobeying, en masse, orders to deploy to Greenland.  (Notably, Presidents have given the military unlawful orders in the past – see here). 

To be sure, there is no transfer of sovereignty to the US  simply by deploying American troops to a designated defense area, but moving a large number of troops to Greenland might be a show of force aimed at establishing a fait accompli of some kind.  Of course, that doesn’t make it right.

The military ought not be put in the middle of something like this.  Congress needs to get involved.  (The courts tend to avoid these kinds of national security issues citing the “political question ” doctrine and other justiciability  concepts.)

On Wednesday, the New York Times said:

Analysts said that if the United States tried to use the defense pact as a fig leaf to send in a lot of troops and try to occupy Greenland, that wouldn’t be legal either.

According to the 2004 amendment, the United States is supposed to consult with Denmark and Greenland before it makes “any significant changes” in its military operations on the island. The 2004 amendment, which was signed by Gen. Colin L. Powell, who was then the secretary of state, explicitly recognizes Greenland as “an equal part of the Kingdom of Denmark.”

That’s not quite right. The text of the 2004 Amendment is available here; it merely states that the US will “consult with and inform” the Danes and the Greenlanders.  I don’t read that as a veto power.   I agree with those who say the U.S. can pretty much get what it needs for its security without using force.  

Off ramp?  

The most intriguing discussion of possible resolution of this situation is that reported by John Vandiver in the Stars & Stripes.  Here’s what he said:

I find the saber-rattling about the possible use of military force to be simply another negotiation technique of the type the White House seems to favor these days.  In my view, the odds of a military confrontation with Denmark (or NATO) are zero.

After all, the U.S. just completed a deal to see $730 million military equipment to Denmark in December.  Even more: this week, yes, this week, the U.S. approved a $45 million sale of Hellfire missiles to Denmark.  National Security Advisor/Secretary of State Marco Rubio insists that president Trump was talking about buying Greenland, not invading it.

Thoughtful people can cool the rhetoric.  It was refreshing to read this today:

The head of NATO’s forces in Europe, US General Alexus Grynkewich, said on Jan 9 the military alliance is far from being in “a crisis”, following President Donald Trump’s threats to bring Greenland under US control.

“There’s been no impact on my work at the military level up to this point… I would just say that we’re ready to defend every inch of alliance territory still today,” Gen Grynkewich told reporters during a visit to Finland.

“So, I see us as far from being in a crisis right now,” he added.

Of course, there is a lot of hard negotiating ahead.  The Northern Corridor Doctrine will likely not fully satisfy any of the parties in the near term, but wise deal-makers will think strategically.  If they do, the Doctrine may be a great starting pint for serious discussion.  This internecine squabbling between the U.S. and its NATO allies only favors the enemies of America, NATO, and, critically, Greenland itself.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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