Subnational,Island,Jurisdiction:Uncertain,Actors,in,Law,and,International,Relations

Adam Grydehøj

Abstract:Subnational island jurisdictions (SNIJs) often possess exceptionally high levels of jurisdictional capacity (the ability to plan and implement policy).This sometimes leads to the creation of uncertainty in international relations.Foreign States may not know whether to address the national government or SNIJ government regarding certain policy areas,with legal and practical powers often being in conflict.This paper suggests that neither legal nor practical powers can be ignored,and States must balance carefully different interests and legal frameworks when undertaking foreign policy that affects an SNIJ belonging to another country.

Key Words:International relations;Islands;Jurisdictional capacity;Subnational island jurisdictions (SNIJs)

Relations between States are governed by law,custom,shared expectations,fear of opprobrium,hope for benefit,and sometimes coercion and force.Scholars take a variety of approaches to analyse why States act the way they do in the international arena.

National governments are important actors in world politics,but they are not the only actors.There are established channels,mechanisms,and customs for interaction between subnational State actors.These tend not to be legally problematic or particularly troublesome for national governments.Generally speaking,because national governments and subnational governments tend to engage in different kinds of activities from one another,with different kinds of partners,there is limited scope for confusion and contestation about the appropriate roles for these actors internationally.

Challenges do,however,sometimes arise,and there is a particular category of subnational territory that is perhaps exceptionally prone to prompting difficult questions when it comes to their international activities.These are subnational island jurisdictions (SNIJs),that is,subnational territories that possess their own government and administration (hereafter,simply “government”) and that consist wholly or significantly of one or more islands.

Subnational governments are not unusual in themselves.Nearly every country in the world,including some of the world’s smallest and least-populous States,possesses one or more levels of government and administration below the national level.For example,Niue,a Pacific island country with a population of scarcely 1600,has both a national assembly and nine village-level councils.Antigua and Barbuda,an archipelagic Caribbean country with under 100,000 residents,possesses not just a national parliament and six parishes on Antigua proper but also the two dependencies of Redonda and Barbuda,the latter of which has its own council and is thus an SNIJ of a small island developing State (SIDS).

What makes SNIJs special with regard to world politics? They are special,because,relative to other subnational jurisdictions in a given country,SNIJs tend to possess heightenedde factoand/orde jurejurisdictional capacity.Jurisdictional capacity is a jurisdiction’s ability to plan and implement policy.1Godfrey Baldacchino,Jurisdictional Self-Reliance for Small Island Territories:Considering the Partition of Cyprus,The Round Table,Vol.91:365,p.352 (2002).

SNIJs tend to possess heightened jurisdictional capacity for two interrelated reasons.First,small islands are especially likely to be regarded (by both islanders and by people elsewhere) as possessing unique or distinctive cultures and communities.2Owe Ronström,Remoteness,Islands and Islandness, Island Studies Journal,Vol.16:2,p.270-297 (2021);Adam Grydehøj,Yas Nadarajah &Ulunnguaq Markussen,Islands of Indigeneity:Cultural Distinction,Indigenous Territory and Island Spatiality,Area,Vol.52:1,p.14-22 (2020).Islands are (rightly or wrongly) likely to be assumed to possess exceptional connections between people and place.That is,island communities are more likely to be distinguished from those of the mainland,and communities within the island are more likely to be assumed to have much in common with one another,resulting in a tendency to allow jurisdictional boundaries to follow an island’s or archipelago’s borders.

Second,small islands often have smaller populations,smaller economic sizes,and more difficult transport connections relative to mainland subnational jurisdictions in the same country.If the goal is for the island to possess the same level of development and public service quality as mainland subnational jurisdictions,this will usually necessitate a larger subnational government and administration relative to the island’s population and economic size.3Adam Grydehøj,Decolonising the Economy in Micropolities:Rents,Government Spending and Infrastructure Development in Kalaallit Nunaat (Greenland),Small States and Territories,Vol.1:1,p.69-94 (2018);Adam Grydehøj,Making the Most of Smallness:Economic Policy in Microstates and Sub-National Island Jurisdictions.Space and Polity,Vol.15:3,p.183-196 (2011).That is,subnational island jurisdictions simply tend to have exceptional power in the context of the local socioeconomic system.

A sense of cultural distinction from the mainland and the presence of a distinct and powerful subnational government encourage one another.When an island community feels that it has distinct needs and interests from those of the mainland,it is more likely to pursue policies that diverge from those of the mainland as well as to construct a machinery of governance that allows it to pursue these policies.By the same token,a powerful subnational island government is better able to intervene in the local interest,which over time will create a gap between the ways in which governance processes are carried out in island and mainland jurisdictions.4Adam Grydehøj,Challenges to Local Government Innovation:Legal and Institutional Impediments to the Exercise of Innovative Economic Development Policy by Subnational Jurisdictions, European Journal of Spatial Development,Vol.11:1,p.1-21 (2013).This is particularly likely to occur in island territories that are located a considerable difference from their national mainlands.5Godfrey Baldacchino,How Far Can One Go? How Distance Matters in Island Development,Island Studies Journal,Vol.15:1,p.25-42 (2020).In some political systems and in some geographical circumstances,this sense of distinction remains at ade factolevel,in the realm of practice.Elsewhere,it results in the national government granting specialde jurepowers to some of its SNIJs.Whether an SNIJ develops greaterde factopowers depends in part on whether itsde jurejurisdictional capacity meets the perceived needs of the island community.6Adam Grydehøj,Toward Subnational Democracies of Scale:Tensions between Democratic Legitimacy,Legality,and Effective Governance,Geopolitics,Vol.21:1,p.22-42 (2016).

Thus,for example,Denmark possesses a large number of small islands.The least populated of these are simply included in larger municipalities,but the Danish government has nevertheless erred on the side of providing small islands with their own municipalities when possible.The five least populous of the country’s 98 municipalities are all small islands:Læsø,Fanø,Samsø,Ærø,and Langeland.In addition,and of particular importance to the present paper,the Kingdom of Denmark also includes two autonomous SNIJs:Greenland and Faroe.The former of these was previously colonised by Denmark and possesses an Indigenous population,but both Greenland and Faroe are regarded by Denmark and regard themselves as possessing distinct cultures.The autonomous SNIJ governments and administrations are themselves broken down into various municipalities.

Greenland and Faroe are each included in the Kingdom of Denmark under their own self-government arrangements,possessing special arrays of powers and responsibilities.However,there are a large number of SNIJs around the world that possessde jureautonomy,de factoheightened jurisdictional capacity,or often a combination of the two.Examples include (but are certainly not limited to):Aruba,Cayman Islands,Falkland Islands,Guam,Guernsey,Isle of Man,Jeju,Macao,New Caledonia,Puerto Rico,Shetland,Zanzibar,and Åland.One might even consider “asymmetric power-sharing arrangements” that involve a decrease inde jurejurisdictional capacity that is counterbalanced by a rise inde factojurisdictional capacity,7Kathleen Stuart,A Listing of the World’s Populated Sub-National Island Jurisdictions,in Godfrey Baldacchino &Kathleen Stuart eds.,Pulling Strings:Policy Insights for Prince Edward Island from Other Sub-National Island Jurisdictions,University of Prince Edward Island,2008,p.174-185.for instance in the cases of Svalbard and Christiansø (Ertholmene),two examples of island communities that arede juredirectly administered by national government bodies and that,as a result,possess exceptionally powerful informal local governance structures.

Many SNIJs straddle the line between ordinary subnational jurisdictions and independent States.This does notmerelycome down to the SNIJs possessing exceptionally high jurisdictional capacity;it also comes down to many independent SIDS being exceptionally weak.However,much they may be said to ‘punch above their weight’ in the international arena,8Thomas H.Eriksen,Implications of Runaway Globalisation in the Seychelles.Small States&Territories,Vol.3:1,p.9-20 (2020);Godfrey Baldacchino,Mainstreaming the Study of Small States and Territories,Small States and Territories,Vol.1:1,p.3-16 (2018).SIDS have limitedde factocapacity when it comes to pursuing inter-State relations,whether in terms of military,economic,or environmental concerns.In addition,both SNIJs and SIDS are frequently located in border zones or in oceanic spaces characterised by unclear or contested jurisdiction.It is thus that SNIJs and SIDS often find themselves playing quite similar roles in world politics,something that cannot be said of most mainland subnational jurisdictions relative to independent States.

The question becomes:How should foreign States engage with SNIJs that are highly autonomous in either law or practice? When it comes to the legal division of responsibilities between national governments and SNIJs,foreign policy is one policy area that is nearly always retained at the national level.There is thus no question as to which level of government a foreign State actor should address itself when seeking to engage with an island territory regarding formal treatymaking,military issues,or other policy areas that are unambiguously a matter of foreign policy and inter-State relations.However,there are many other circumstances and interest areas in which the national government of foreign State would be acting correctly to address the SNIJ government directly.

This can be seen from the case of Greenland.The national government in Denmark holds unambiguous authority over Greenland’s foreign policy and a number of specialised legal areas,but otherwise decision-making powers are located with the SNIJ’s own government.9Adam Grydehøj,Unravelling Economic Dependence and Independence in Relation to Island Sovereignty:The Case of Kalaallit Nunaat (Greenland),Island Studies Journal,Vol.15:1,p.89-112 (2020).In recent years,disputes have arisen between the governments of Greenland and Denmark regarding whether Denmark possesses the authority to intervene in Greenland concerning issues that are not a matter of Greenland’s foreign policy but that the Danish government deems to be risks to Denmark’s national security.For example,in 2016,the Danish government secretly scuppered the sale of a disused military facility in Greenland to a Chinese mining company,which potentially hindered industrial development in the SNIJ.10Martin Breum,Analyse:Stoppede Danmarks statsminister kinesisk opkøb i Grønland?,High North News (19 December 2016),https://www.highnorthnews.com/nb/analysestoppede-danmarks-statsminister-kinesisk-opkob-i-gronland.(in Danish)In 2018,Denmark similarly intervened to prevent a Chinese construction company from being selected to build new airports in Greenland,an issue that prompted open conflict between Danish and Greenlandic politicians.11Adam Grydehøj et al.,Practicing Decolonial Political Geography:Island Perspectives on Neocolonialism and the China Threat Discourse, Political Geography,Vol.85:1,2021,https://doi.org/10.1016/j.polgeo.2020.102330.In both cases,the Chinese companies in question were seeking to enter the Greenlandic market on business grounds (rather than as part of China’s foreign policy),and the Greenlandic government seemed to be correct in its interpretation of the law,namely that the SNIJ had the authority to make decisions concerning Chinese commercial activities in Greenland.The Chinese commercial motivations did not,however,prevent the Danish government from perceiving a security threat.

This 2018 dispute contributed to an enhanced interest of the United States in Greenland,eventually leading to then-president Donald Trump’s suggestion in August 2019 that the United States should buy Greenland from Denmark.12Johannes Mohr,China in the Arctic and the Case of Greenland,in Joachim Weber ed.,Handbook on Geopolitics and Security in the Arctic,Springer,2020,p.113-129.Trump’s statements were roundly condemned by Danish politicians,and there was no real interest on the Greenlandic side in the SNIJ being sold to the United States.However,these exchanges marked the start of a charm offensive by the United States,directed at Greenland.This has resulted in the United States’s national government funding and running a number of research programmes in Greenland,a move that has been broadly welcomed by Greenlandic politicians but has caused discomfort and prompted angry reactions across Denmark’s political spectrum.The United States’s interventions in Greenland clearly do not clash with the legally mandated division of responsibilities between Denmark and Greenland,as research and natural resources are unambiguously Greenlandic areas of responsibility.Because the United States is an ally of Denmark,the Danish government would also have difficulty justifying an intervention on national security grounds.

Similar contestations in legal and practical capacity to engage with foreign States can be seen in many other highly autonomous SNIJs.Examples include Faroe’s decision to export fish to Russia,despite such exports being covered by European Union sanctions13Martin Breum,Protecting its Booming Fish Exports,the Faroe Islands Refuse to Support EU and US Sanctions against Russia,Arctic Today (11Sept 2018),https://www.arctictoday.com/protecting-booming-fish-exports-faroe-islands-refuse-support-eu-us-sanctions-russia/.and uncertainty regarding Chinese development support to SNIJs in the Pacific.14ZHANG Denghua,China in the Pacific and Traditional Powers’ New Pacific Policies:Concerns,Responses and Trends,Security Challenges,Vol.16:1,p.78-93 (2020).

It is thus that the national government responsible for foreign policy involving an SNIJ must approach similar kinds of engagement with that SNIJ differently,depending on the current State of affairs in world politics and regardless of the actual legal situation.The same is true for foreign State actors,which must balance the risks of offending a national government by engaging directly with its SNIJ government or being seen as overbearing and patronising by a SNIJ government that is eager to maintain its legal rights.There is no absolute right or wrong answer here,and a flexible approach may be necessary for dealing with SNIJs that hold high levels of jurisdictional capacity:engaging with the national government on some issues and with the SNIJ government on others,in an attempt to keep both sides feeling respected and listened to.

Above all,it is necessary to bear in mind that highly autonomous SNIJs are not a fluke or flaw in the international political system.They have often arisen as a means by which national governments can assuage local demands for more power and responsibility on (often distant) islands.The creation of ambiguity regarding an SNIJ’s powers is in this sense a price that national governments are often willing to pay in order to mitigate against island communities demanding even more powers or ultimately political independence.That is,while the foreign policy grey zones and uncertainties surrounding SNIJs may sometimes occasion discomfort for national governments,this discomfort will often be the lesser of two evils.Foreign States that err on the side of caution by engaging with national governments concerning issues that are properly within an SNIJ’s jurisdictional capacity may not always be doing the national government a favour in the long run,for doing so calls into question the strength of the legal frameworks that support the SNIJ-national government relationship.