Hans Andrias Sølvará
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Færøernes statsretlige stilling i historisk belysning – mellem selvstyre og selvbestemmelse
Title: The Constitutional position of the Faroe Islands from a historical point of view – between self-government and self-determination. The article aims to outline the constitutional position of the Faroe Islands from the Norse Settlement to the present day discussions on home rule and the exercise of self-determination. On a higher level, the article seek to reveal the political forces that determined the constitutional alignment of the Faroe Islands to external political powers, understanding each period on its own terms. On a more specific level, the aim is to depict any special status, compared to other entities, that the Faroe Islands might have had, first, in relation to the Norwegian, then Danish-Norwegian, and then the Danish Realm.
The Faroe Islands were organised as an independent land by the Norse Settlers arriving on isles around the year 800. The constitutional traditions that the settlers brought with them were the same as in present day Norway. There, a number of Things (assemblies) had governed their respective regions since the fifth century A.D. The Things were in political terms gradually replaced by the supremacy of the Norwegian Kings, whose power rose slowly but surely from the end of the tenth century to the latter half of the twelfth century. The Thing had two prime tasks, first, to adjudicate in controversies between the inhabitants, and secondly, to decide matters of a more general nature. The Faroese Thing has certainly been legislating as the tradition allowed, indicated by a clear reference to “Your own Law Book” when a new Norwegian Code was promulgated in the Faroes around 1270, after the Norwegian King had gained the upper hand in Faroe. The Faroe Islands were an independent land not exceptional in the Middle Ages, the polities at the time were very decentralised and not states in the modern sense, as they lacked the institutions of central government. The Faroe Islands seem to have been viewed as a Tax Land, i.e. a land that was paying tribute to the Norwegian King and was within his sphere of influence, but not an integrated part of his proper Realm. Denmark and Norway were dynastically united in 1380, but continued to be administered as two different states, for instance, in the seventeenth century getting each their own written constitution called The King’s Act and their own code, the Danish Code and the Norwegian Code respectively.
The Faroe Islands were treated as part of the Norwegian Realm, but as the difference between the two Kingdoms became more blurred, the Faroes were increasingly ruled from Denmark. After the loss of Norway, the Danish regime promulgated the principle that no laws were to apply to the Faroes unless specifically promulgated there at the advice of the Governor, thus, the special and separate jurisdictional status of the Faroe Islands continued. The Danish constitution, the Basic Law of 1849, was promulgated in the Faroes. Unlike the Icelanders, no Faroese seem to have opposed this at the time. Indeed, the first Faroese member of the Danish Parliament spoke of the horror of noting that the King’s Act had not been officially replaced when he visited the Faroes in 1849. Much later, some criticism was raced that the Faroese had not had their saying in the promulgation of the Basic Law.
The special status of the Faroe Islands continued to be developed with the restoration of the Faroese Thing and its growing influence. This development had the effect that the Danish Government in principle acknowledged the Faroese People the right to self-determenation in 1930. During the Second World War, the Thing got increasing influence, and a referendum in 1946 showed a majority in favour of independence from Denmark at the end of the War. The result end the aftermath of the referendum were somewhat controversial and in the end the Faroe Islands were granted a status of Home Rule.
The author examines contemporary views on the Home Rule status, especially pertaining to discussion whether the Faroe Islands had established a relationship based on treaty or agreement, thus creating a federate relationship of some status under international law, or, alternatively, the Danish notion of the unitary state could be upheld, at the relationship be characterised as one of delegation of powers. The author concludes that although the Faroese People according to all international criteria can be identified as a Nation, that in principle has the right to self-determination, it is unlikely that the International Community will intervene directly into Danish State matters to ensure that Faroese self-determination is respected. Ultimately, the question is more one of the will to exercise self-determination than the right to do so.