3 Framework under international law
3.1 Basis for Norwegian sovereignty
Norwegian sovereignty over Svalbard is undisputed. Sovereignty means that a state has exclusive dominion over its territory and the exclusive right to exercise authority there, e.g. with regard to passing and enforcing laws and other rules. Norway’s sovereignty is confirmed in the Svalbard Treaty and pursuant to general international law by tacit acceptance on the part of the other states. For that reason, all states – regardless of whether they are parties to the Svalbard Treaty – have an obligation to respect Norwegian sovereignty over Svalbard in the same manner as over the other parts of Norway.
3.1.1 The Svalbard Treaty
The Treaty of 9 February 1920 concerning Spitsbergen (the Svalbard Treaty) recognises Norwegian sovereignty over Svalbard. It entered into force on 14 August 1925, from which date Svalbard became an indivisible and inalienable part of the Kingdom of Norway through a separate act of law, the Svalbard Act (Act No. 11 of 17 July 1925). The Svalbard Treaty currently has 40 signatories (“High Contracting Parties”).
In addition to restrictions on taxation and military activity in the archipelago, the Svalbard Treaty contains a number of provisions concerning the treatment of foreign nationals. Under the Treaty Norway has assumed an obligation under international law to treat equally nationals and companies from signatory countries in certain areas enumerated in the Treaty. Since the Treaty is an agreement under international law, only the signatory parties (states) may demand equal treatment by Norway on behalf of their nationals and companies. Since nationals and companies themselves are private legal persons, they cannot demand equal treatment directly from Norway on the basis of the Svalbard Treaty as an agreement under international law. The same applies to states that are not parties to the Treaty.
All private legal persons in Svalbard – natural persons and corporate bodies – must adhere to Norwegian rules and administration in the same manner as on the mainland.
A general assessment of the Svalbard Treaty was also provided in previous Reports to the Storting on Svalbard. The same applies to the Mining Code, which provides rules on the right to explore for, acquire and exploit natural deposits. Reference in this regard is made to Report No. 39 (1974 – 75) to the Storting concerning Svalbard, Report No. 40 (1985 – 86) to the Storting, Svalbard, and Report No. 9 (1999 – 2000) to the Storting, Svalbard. Report No. 40 (1985 – 86) to the Storting, Svalbard, contains a detailed discussion of legal issues, including those concerning the territorial scope of the Svalbard Treaty, the Norwegian continental shelf and fisheries jurisdiction and the baselines on the eastern side of Svalbard.
3.1.2 The outcome of negotiations and the significance of Norwegian sovereignty
The Svalbard Treaty came about as a result of negotiations during the Paris Peace Conference after the First World War in 1919. Previously Svalbard had been viewed by many states as so-called terra nullius, territory over which no state had sovereignty. The growing economic activity in Svalbard at the beginning of the 1900s necessitated a clarification of the archipelago’s status. Prior to the First World War Norway held three international conferences at which the possibility of joint governance of the archipelago was discussed, but no agreement on this could be reached. Norway brought its case before the peace negotiations in 1919, arguing that the only “satisfactory and lasting solution would be to return the archipelago to Norway”. At the same time Norway indicated that it had no objections to granting certain rights to foreign nationals. Various proposed solutions were discussed. The commission dealing with the case rejected a proposal whereby Norway would only administer Svalbard on behalf of the international community. Instead the committee voted unanimously to recognise full Norwegian sovereignty over Svalbard on certain conditions. This is essential for the understanding and interpretation of the Svalbard Treaty.
The outcome of negotiations is reflected in Article 1 of the Svalbard Treaty, which recognises Norway’s “full and absolute sovereignty” over Svalbard. Norway has full control over Svalbard in accordance with the ordinary rules of international law. Certain international law limitations have been laid down in the Svalbard Treaty. Beyond these limitations, the Norwegian government has the same authority and may use the same instruments as in the rest of the country. This ensues from the wording itself and from the general principle of international law relating to treaty interpretation that restrictions on sovereignty must be explicitly authorised by the treaty. For that reason Norwegian sovereignty forms the basis for resolving – through legislation or other actions – all matters not affected by the Treaty, either because they are not mentioned in it or because they are not encompassed by the limitations on the actual exercise of authority under international law that are laid down in it.
Norway has the exclusive right to pass and enforce laws and other regulation for Svalbard. In the same way as on the mainland, the Norwegian authorities may regulate, permit, set conditions for, monitor and prohibit activities of any kind. This power to regulate ensues from sovereignty as such, but it is also presupposed directly in several provisions of the Treaty, e.g. Article 2 concerning nature preservation. For maritime, industrial, mining and commercial operations as mentioned in Article 3, it is even expressly stated that local laws and regulations must be observed.
Norway has an exclusive right to exercise authority over all nationals and companies – Norwegian as well as foreign – on the entire territory of Svalbard, on land, at sea and in the air. No other state may exercise governmental authority in Svalbard, not even vis-à-vis their own citizens. Such an exercise of authority would infringe Norwegian sovereignty.
Sovereignty and the fact that Svalbard is a part of the Kingdom mean that unless a special exemption is made, all international law agreements Norway enters into apply to Svalbard. Such an exemption has been made, for example, for the EEA Agreement, cf. section 3.2.1.
3.1.3 Principles of interpretation
In line with ordinary international law principles governing the interpretation of treaties, the Svalbard Treaty shall primarily be interpreted on the basis of the terms and expressions in the actual text. The point of departure for interpretation is the ordinary linguistic understanding of the terms and expressions, placed in their context in the Treaty. Moreover, one of the main objectives of the Treaty is to achieve final clarification of all outstanding issues of international law by recognising Norwegian sovereignty. This also provides predictability and clarity to the other signatories as well.
The original texts of the Treaty are French and English. It is these versions that are determinative for the legal content of the Treaty. These texts are the basis for the interpretation of the rights and obligations set forth in the Treaty, and no translations, not even into Norwegian, may be accorded weight in interpreting the Treaty.
3.1.4 Geographic scope of application
In the Svalbard Treaty, Svalbard is defined as “all the islands situated between 10 degrees and 35 degrees longitude East of Greenwich and between 74 degrees and 81 degrees North…together with all islands great or small and rocks appertaining thereto”. The wording makes clear that only the actual islands within these coordinates are covered, i.e. land territory, and not surrounding waters. However, as a consequence of sovereignty over Svalbard’s land territory, the actual territorial waters around the archipelago are included, i.e. the internal waters and territorial sea out to 12 nautical miles and the airspace above it. The wording of some provisions of the Treaty expressly makes clear that they pertain both to land territory and territorial waters.
3.1.5 Treaty limitations on the exercise of authority
Article 1 of the Svalbard Treaty recognises Norwegian sovereignty on the terms set forth in the Treaty. Limitations have not been placed on sovereignty as such, but on how Norwegian authority may be exercised in certain specifically defined areas. Thus, Norway has an exclusive right to exercise authority in these areas as well. The restrictions pertain especially to three matters: requirements for equal treatment, collection of taxes and duties and military matters.
a) Equal treatment/non-discrimination
Under the Svalbard Treaty Norway has an obligation to ensure equal rights for nationals and companies from signatory nations in areas defined in the Treaty itself. This is a requirement of non-discrimination on the basis of nationality for persons and national affiliation for companies. This covers, among other things, hunting and fishing, access and entry, the engaging in certain types of industrial activity, and property rights, including mineral rights.
Nationals or companies from signatory states may not be in a disadvantaged position compared to Norwegian nationals or companies in these areas, and there may be no discrimination between nationals and companies from signatory states. Although the Treaty entails a prohibition against discrimination on the basis of nationality in specified areas, it does not entail unlimited or unconditional liberty for anyone to engage in activity in these areas. The equal treatment rule is not an obstacle to regulating or, if necessary prohibiting, an activity for other reasons. The right to issue such regulations ensues from Norway’s sovereignty. The Treaty itself presupposes observance of local law and regulations as a condition for exercising some of the rights that the Treaty sets forth, e.g. in Article 3 concerning certain kinds of economic activity. Nor does the requirement for non-discrimination apply to all types of activity in Svalbard, but only to the areas specifically set forth in Articles 2 and 3 of the Treaty. Hunting and fishing, maritime, industrial, mining and commercial enterprises are covered by the requirement for equal treatment. What in a particular instance is covered by the requirement for equal treatment must be considered case-by-case on the basis of an interpretation of the Treaty, in accordance with the principles inter alia concerning wording and context mentioned above.
b) Taxes, duties, etc.
Pursuant to Article 8 first paragraph of the Svalbard Treaty, Norway is obligated to adopt mining regulations that may not by way of taxes or charges of any kind grant privileges, monopolies or other favours for the benefit of the Norwegian state or nationals of any signatory state. Pursuant to the wording this applies only to mining activities. Norway laid down such a mining code in the Royal Decree of 7 August 1925, in which the principle of equal treatment is enshrined in Section 2. It ensues from Article 8 second paragraph of the Svalbard Treaty, that taxes, dues and duties may be imposed in Svalbard only if they are necessary. Such taxes, dues and duties “shall be devoted exclusively to” Svalbard and may not be used for purposes on the mainland or for e.g. development aid. Even so, as long as the effect of the use of these revenues occurs in Svalbard, it ensues from the wording and intent that the actual spending of tax revenues may occur other places, e.g. on purchases on the mainland of equipment etc. to be used in Svalbard.
The purpose of this taxation is the needs in Svalbard, and it is a matter of discretion what these may be. Administration, public services and infrastructure, such as airports and search and rescue services are needs that justify such taxation. It is also assumed that previous deficits in the Svalbard budgets may be covered by such taxation, since these are central government expenditures for operations, measures, investment etc., that have exclusively been devoted to Svalbard.
The limitations in Article 8 second paragraph do not cover payment for public services when there is authorisation to require such payment. Nor is payment for private services pursuant to contract covered by the limitations.
According to Article 8 third paragraph, Norway may levy an export duty on exports of minerals, and there are instructions for determining how much the duty may be in relation to the quantity exported.
c) Use for warlike purposes and other military matters
In principle, Norway has full right of control in the military and defence field in virtue of its sovereignty. Nevertheless, Article 9 of the Svalbard Treaty sets out limitations on the exercise of sovereignty with regard to creating – or allowing the establishment of – naval bases, constructing fortifications and the use of Svalbard for warlike purposes. These limitations – in particular the prohibition against use for warlike purposes – must be viewed in light of the preamble of the Treaty. Here the parties state that in recognising Norwegian sovereignty they wish for Svalbard to be “provided with an equitable regime” to ensure its development and peaceful utilisation.
In virtue of its sovereignty, Norway has a special duty to ensure that no one violates the prohibition against using Svalbard for warlike purposes, which is general and applies to all signatories. However, the provision is not a prohibition against all military activity. It addresses acts of war or activities for the purpose of waging war. Thus, defensive actions and other such military measures are not covered by the wording. This affects the core of sovereignty, and for that reason this provision is interpreted strictly.
The prohibition against naval bases means that no permanent military installation may be established for the purpose of stationing and providing military vessels with supplies or services that are normally offered at a naval base. However, the provision is no obstacle to the Norwegian Coast Guard and other vessels on port calls in Svalbard receiving services and supplies from civilian suppliers as needed.
The prohibition against fortification addresses particular physical structures that are reinforced to withstand attack and also usually equipped with artillery positions. For this reason it does not affect any and every installation or structure of a military nature or significance.
There is therefore no blanket prohibition against all Norwegian military activity in Svalbard. For example, calls by Norwegian naval vessels or Coast Guard ships or visits by Armed Forces’ aircraft or military personnel do not infringe the Treaty and are in keeping with long-established practice. Moreover, Norway may individually and collectively implement defensive measures in wartime or if there is a threat of war.
Norwegian policy has been designed to ensure proper compliance with the Treaty and a restrictive practice as regards Norwegian military activities in Svalbard. In dealing with this question in practice, particular emphasis has been placed on factors such as frequency and duration, the nature of the units and whether there is a real need for carrying out the operation. For example, in view of the duties the Norwegian Coast Guard has in the waters around Svalbard, frequent calls by Coast Guard vessels are natural.
Moreover, in a declaration in 1971 to the signatories, Norway stated that the airport in Longyearbyen “is to be reserved exclusively for civil aviation”. The declaration is a self-imposed restriction and was issued independently of the Svalbard Treaty. The purpose of the flight is crucial for determining what is to be regarded as “civil aviation”. Thus, military aircraft on civilian missions are given permission to use the airport, e.g. Armed Forces aircraft in connection with search and rescue operations and Coast Guard missions.
All foreign military activity in Svalbard is prohibited and would entail a gross infringement of sovereignty. Unless they involve innocent passage through territorial waters, foreign military and civilian government vessels wishing to enter Norwegian territorial waters around Svalbard must apply well in advance for diplomatic clearance. The same applies to calls at ports in Svalbard and landings at airports. The requirement for such clearance ensues from ordinary international law, but for the sake of clarity is also laid down in Regulations of 2 May 1997 concerning access and entry to Norwegian territory in peacetime for foreign military and civilian government vessels. The Norwegian authorities follow very restrictive practice with regard to granting such clearance.
3.1.6 Research and other matters
The Svalbard Treaty does not regulate research. However, Article 5 second paragraph has a provision whereby conventions shall be concluded to lay down the conditions for conducting scientific research. The provision says nothing about which conditions shall apply, nor was it ever followed up. It is therefore up to the Norwegian authorities, in virtue of sovereignty, to lay down the regulations of research activity that are deemed appropriate.
The same applies to other matters not affected by the Treaty. The Norwegian authorities regulate and administer these areas in virtue of Norwegian sovereignty. To the extent the Norwegian authorities should choose to lay down rules in these areas or otherwise exercise equal treatment, this is done for reasons other than being so obligated under the Svalbard Treaty.
3.2 International agreements of particular importance to Svalbard
All of the international agreements by which Norway is bound also apply to Svalbard subject to any special exception.
3.2.1 The EEA Agreement and the agreement with the EU
When Norway ratified the EEA (European Economic Area) Agreement in 1992, Svalbard was excluded from its application. The reason was the special circumstances ensuing from Norway’s obligations under international law under the Svalbard Treaty. For rules pursuant to Norway’s obligations under the EEA Agreement to apply to the archipelago, the relationship to parties to the Svalbard Treaty that are not members of the EEA would have to be clarified on account of the principle of non-discrimination in the areas where this principle applies. However, the Free Trade Agreements between Norway and the European Economic Community and the Convention establishing the European Free Trade Association continue to apply to Svalbard. Free trade in goods is of great significance for Norway’s export of coal from Svalbard to Europe.
During the membership negotiations with the European Communities (EC, now the European Union, EU) in 1972, an exception was made for Svalbard in the Accession Agreement. Also during the membership negotiations with the EU in 1994, Norway and the EU agreed that Svalbard should be exempted from membership of the EU. A separate protocol to the Act of Accession on Svalbard was negotiated which stipulated in Article 1 that the treaties on which the European Union is founded do not apply to Svalbard.
3.2.2 The WTO Agreement, including GATT and GATS
In connection with the entry into force of the agreement to set up the World Trade Organisation (WTO) on 1 January 1995, no general reservations concerning Svalbard were made, nor in the subsidiary agreement. The WTO was created on the basis of the previously concluded General Agreement on Tariffs and Trade (GATT), which entered into force on 1 January 1948. GATT does not contain reservations for Svalbard either. The prime objectives of GATT is non-discrimination and reduction and elimination of tariff and trade barriers, and in all its essentials the agreement harmonises with the Svalbard Treaty’s requirement for non-discrimination.
In practice, GATT has not had any particular significance for Svalbard, because pursuant to the Customs Act (Act No. 119 of 21 December 2007 relating to customs and the importation of goods) Svalbard is outside the Norwegian customs area. Therefore, goods imported to Norway from Svalbard are subject to customs clearance. Goods originating in Svalbard are exempt from duty according to the provisions of the tariff schedule. Svalbard is in practice a duty-free area.
In the General Agreement on Trade in Services (GATS), which entered into force simultaneously with the WTO Agreement, Norway reserved the right to clarify at a later date the agreement’s application in Svalbard in view of the laws and rules applying there. A more detailed account of the application of the WTO Agreement and appurtenant agreements in Svalbard is to be found on page 170 of Proposition No. 65 (1993 – 1994) to the Storting on the outcome of the Uruguay Round (1986 – 1993) and on consent to ratification of the Agreement establishing the World Trade Organization (WTO), etc.
3.2.3 The Schengen Agreement
The Schengen Agreement was established in 1985 and currently has 26 European member states. The purpose of the agreement is to replace border posts and border controls between member states with controls on the area’s external borders. Because Article 3 of the Svalbard Treaty gives all nationals equal liberty of access and entry to Svalbard, the archipelago is not covered by this agreement. For more on the Schengen Agreement, see Chap. 5 Legislation.