3 Framework under international law
3.1 Norwegian sovereignty
Norwegian sovereignty over Svalbard is undisputed. ‘Sovereignty’ refers to a state’s exclusive dominion over its territory and its exclusive right to exercise authority there, including the right to adopt and enforce laws and other rules. Norway’s sovereignty is confirmed in the Svalbard Treaty and in accordance with general international law by tacit acceptance on the part of the other states. For that reason, all states are obliged to respect Norwegian sovereignty over Svalbard in the same way they respect Norwegian sovereignty over the other parts of Norway.
Sovereignty over Svalbard applies not only to the land territory, but also to the territorial sea around the archipelago – that is, the internal waters and territorial sea extending to 12 nautical miles – and the airspace above.
As a consequence of this sovereignty, Norway has the exclusive right to exercise authority over all nationals and companies – Norwegian as well as foreign – throughout the territory. No other state may exercise authority in Svalbard. Such exercise of authority would infringe Norwegian sovereignty.
All private legal persons in Svalbard, both individuals and companies, must adhere to Norwegian rules and administration in the same manner as on the mainland.
International agreements that Norway has joined also apply to Svalbard unless specific exceptions apply. One such exception has been made for the EEA Agreement. The Svalbard Treaty is discussed in section 3.2, and some specific international agreements of particular importance to Svalbard in section 3.3.
3.2 The Svalbard Treaty
The Svalbard Treaty was signed on 9 February 1920 and entered into force on 14 August 1925. On that same date, Svalbard became an indivisible and inalienable part of the Kingdom of Norway through a separate act of law: the Act of 17 July 1925 No. 11, known as the Svalbard Act. The Svalbard Treaty is open to accession, and more than 40 parties have acceded to the Treaty to date.
The Treaty contains a number of provisions concerning the treatment of nationals and companies from the parties to the treaty. Under the Treaty, Norway has assumed a limited obligation under international law to treat equally nationals and companies from the parties to the treaty. This obligation applies to certain subject areas that are enumerated in the Treaty. The Treaty also sets forth limitations on taxation and military activity in the archipelago. Because the Treaty is an agreement under international law, only the parties (the states) may demand equal treatment by Norway on behalf of their nationals and companies.
The following sections present a review of the history of the Svalbard Treaty and a discussion of some of the Treaty’s provisions. A general assessment of the Svalbard Treaty was also provided in previous white papers regarding Svalbard. Reference in this regard is made to Report No. 39 (1974–1975) to the Storting, Report No. 40 (1985–1986) to the Storting, Report No. 9 (1999–2000) to the Storting, and Report No. 22 (2008–2009) to the Storting.
One of the main objectives of the Treaty was to achieve final clarification of all outstanding issues of international law through recognition of Norwegian sovereignty. This also provides predictability and clarity to the other parties to the Treaty.
3.2.2 A history of the negotiations
The Svalbard Treaty came about as a result of negotiations during the Paris Peace Conference after the First World War in 1919. The growing economic activity in Svalbard at the beginning of the 1900s necessitated clarification of the archipelago’s status. Prior to the First World War, Norway hosted three international conferences (the Kristiania conferences) to discuss the possibility of establishing international joint governance of the archipelago, with a view to addressing the growing need for regulation and control of coal mining operations. The idea was inspired by the British-French administration on the New Hebrides in the Pacific Ocean, an arrangement which was later criticised and eventually dissolved prior to the creation of the independent state of Vanuatu. At every turn, the proposals put forward at the Kristiania conferences were met with opposition, and were deemed not to be feasible. The outbreak of the First World War put a stop to further discussion.
Norway then 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 it was indicated that there would be no objections to granting certain rights to foreign nationals.
Textbox 3.1 From Norway’s presentation to the Supreme Council of the Paris Peace Conference on 10 April 1919
‘Now, the experience of the successive negotiations and the labours of the Conference of 1914 seem fully to have demonstrated that there are insurmountable difficulties in the way of settling an international administration for the islands of Spitsbergen and Bear Island, starting with the idea of terra nullius, and that the only satisfactory and permanent solution will be to return this archipelago to Norway.
‘This solution would in no way exclude an arrangement by which the present occupants would have the right to submit possible litigation relative to their property rights to the de-cision of an international tribunal. In the same way, the Norwegian Government would not object to the insertion of a clause on the future control of the mines of Spitsbergen in the agreement returning the islands to Norway.
‘The Norwegian Government is convinced that it is serving the interests of peace in submitting to the Conference this question, which has been for so long in litigation, and expresses the hope that all the Powers will agree to return this archipelago definitively to Norway, the only country which has ever exercised sovereign rights there.’
The issue was put on the conference agenda even though the archipelago had not been affected by military operations during the war. A key reason for doing so was the losses Norway had sustained during the war despite its neutrality. A significant part of its merchant fleet had been sunk, resulting in considerable loss of life and tonnage, while Norway had secured uninterrupted sea lines of communication and supply throughout the war. The great powers felt they owed a debt of gratitude to Norway, at the same time as they sympathised with the arguments Norway presented to the peace conference. US Secretary of State Lansing had previously indicated that final clarification of the issue of sovereignty over Svalbard in Norway’s favour would be included in the conditions for lasting peace in Europe. In 1919 Norwegian Foreign Minister Ihlen gave his assurance that Norway would not create any difficulties in the settlement of Denmark’s claim to Greenland. This was part of a mutual understanding with the Danes that Denmark would also refrain from creating difficulties over Norway’s claim to Svalbard.
Textbox 3.2 From the Report of the Spitsbergen Commission to the Supreme Council of the Peace Conference on 5 September 1919:
The archipelago being currently no man’s land, everyone agrees on the need to bring to an end this state of affairs, by providing it with a defined status. To this end, two solutions have been envisaged: The first solution proposed by various Powers and certain members of the Commission, consisted in granting to Norway a mandate under the League of Nations. A second solution, requested by Norway, consisted in attributing sovereignty over the archipelago to this Power subject to certain stipulated guarantees for the benefit of the other States. Considering the major interests that Norway has with regard to Spitsbergen, its proximity to the archipelago, and the advantage of a definitive solution, the Commission rallied unanimously behind the second system, which has met on no objections from any of the most directly interested Powers.
Various solutions were proposed and 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. In doing so, the conference rejected all notions that the territory should be administered by Norway on behalf of other states. Other states, moreover, were invited to accede to the treaty through a simple notification procedure. This provided a means of quickly winning broad support for final settlement of the issue of sovereignty. This is essential both for an understanding of the Svalbard Treaty and for its interpretation.
The outcome of the 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 normal rules of international law. The Svalbard Treaty stipulates certain limitations imposed by international law on Norway’s right to exercise authority. These are discussed in section 3.2.5 below.
The states that signed the Svalbard Treaty on 9 February 1920 were Norway, the United States, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Sweden. Several other states have subsequently acceded to the treaty. The Soviet Union formally recognised Norwegian sovereignty over the archipelago in an exchange of notes with Norway in 1924. The recognition was made without conditions, 11 years before the Soviet Union ratified the Treaty in 1935. As stated in the communication, the recognition meant the Soviet Union would not raise any future objections to the Treaty.
3.2.3 Principles of interpretation
Article 31 of the Vienna Convention on the Law of Treaties of 1969 specifies the general rules of interpretation for treaties. The provision states that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Norway is not a party to the Vienna Convention, but the rule of interpretation expresses customary law by which all states are bound.
The principles of international law for treaty interpretation provide a methodical approach based on the wording of the treaty, whereby provisions are read in context and are supported in other objective sources for the parties’ intentions. An expression may be given a special meaning – that is, a meaning that differs from ordinary usage in international state and treaty practice – only if it can be established that this was the intention of the parties.
Therefore, in line with ordinary principles of international law governing treaty interpretation, the Svalbard Treaty must primarily be interpreted on the basis of the terms and expressions in the actual text. The original texts of the Treaty are French and English. It is the wording in these versions that determine the legal content of the Treaty. These texts form the basis for interpreting the rights and obligations set forth in the Treaty, and no interpretative weight may be accorded to translations, not even one into Norwegian.
The point of departure for interpretation is the ordinary linguistic understanding of the terms and expressions, placed in their context in the Treaty. The wording in the Treaty explicitly states that Norway shall have full sovereignty. The wording and expressions contained in the Treaty also clearly indicate the geographical scope of application for the respective provisions.
3.2.4 Geographical scope of application
The Svalbard archipelago is defined geographically as all of the islands; great and small, and rocks between the geographical coordinates 10° and 35° E longitude and 74° and 81° N latitude. The wording makes clear that only the actual islands within these coordinates are covered; that is, the land territory, and not the surrounding waters.
It is clear from the wording of certain provisions in the Treaty that they apply both to land territory and to territorial waters.
At the time the Treaty entered into force, Norway had territorial sea extending to four nautical miles. Norway’s territorial sea was extended in 2004 to 12 nautical miles from the baseline. After that, the Treaty provisions applicable in territorial waters also became applicable in the area between four and 12 nautical miles.
The special rules stipulated in the Treaty do not apply on the continental shelf or in zones that were created in accordance with provisions in the United Nations Convention on Law of the Sea governing exclusive economic zones. This follows from the wording of the Treaty and is underpinned by the Treaty’s prehistory and by its development and system.
3.2.5 Treaty limitations on the exercise of authority
In Article 1 of the Svalbard Treaty, Norwegian sovereignty is recognised on the terms set forth in the Treaty. Limitations have not been placed on sovereignty as such, but rather 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.
Norway’s obligations under the Svalbard Treaty are linked especially to three issues. These involve requirements of equal treatment, collection of taxes and duties, and military matters.
Under the Svalbard Treaty, Norway has an obligation to ensure equal rights for nationals and companies from parties to the Treaty in areas defined in the Treaty. This is a requirement of non-discrimination based on nationality for persons and on national affiliation for companies. Among the areas covered are hunting and fishing, access to the archipelago, engaging in certain types of commercial and industrial activity, and property rights including mineral rights.
Nationals or companies from parties to the Treaty may not be placed at a disadvantage compared to Norwegian nationals or companies in these areas, and there may be no distinction made between nationals or companies from parties to the Treaty on the basis of nationality. Although the Treaty prohibits discrimination based on nationality in specified areas, it does not provide 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 Norwegian authorities are generally concerned with ensuring sound regulation of activities in Svalbard. This means that regulations applicable in Mainland-Norway must also be applied in Svalbard should developments in a given activity warrant it. In some cases more stringent regulations may be necessary in Svalbard to protect its vulnerable environment. Regulation of different forms of activity is discussed elsewhere in this white paper.
The Treaty itself presupposes observance of local regulations as a condition for exercising some of the rights specified in the Treaty; for example, in Article 3 concerning certain types of commercial activity.
Similarly, the requirement for non-discrimination does not 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 and maritime, industrial, mining and commercial operations are covered by the requirement for equal treatment. What the requirement for equal treatment covers from case to case must be determined on the basis of an interpretation of the Treaty, in accordance with the principles concerning, inter alia, wording and context as mentioned above.
To the extent which the Norwegian authorities stipulate regulations for or practice equal treatment in areas other than those mentioned in the Treaty, it is done so for reasons other than obligations under international law.
Taxes, duties, etc.
Pursuant to the first paragraph of Article 8 in the Svalbard Treaty, Norway is obliged to adopt what is known as a mining code. The Mining Code was laid down by the Royal Decree of 7 August 1925. It ensues from the second paragraph of Article 8 in the Svalbard Treaty that taxes, dues and duties may only be levied in Svalbard if there is a need to do so. According to the wording, Article 8 applies specifically to mining activities. Furthermore, such taxes, dues and duties must be used to the exclusive benefit of Svalbard, and may not be used for purposes on the mainland. However, 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 elsewhere, as in the case of purchases made on the mainland of equipment, etc. for use in Svalbard.
The purpose of this taxation is to meet needs in Svalbard, and such needs are determined by discretionary judgement. Administration, public services and infrastructure, such as airports and search and rescue services, are needs that warrant such taxation. Previous deficits in the Svalbard budgets may be covered by such taxation, since these are central government expenditures for operations, measures, investments, etc. that have exclusively benefited Svalbard.
The restrictions in the second paragraph of Article 8 do not cover payment for public services where there is legal basis to require payment for them. Nor is payment for private services supplied under contract covered by the restrictions.
Pursuant to Article 8, third paragraph, Norway may levy an export duty on exports of minerals, and instructions have been issued on how much duty is payable on quantities exported.
In practice, Norway has chosen to maintain a generally low level of taxes and duties in Svalbard, including for activities other than mining. This policy has contributed to the development of businesses and communities in Svalbard.
Use for warlike purposes, and other military matters
By virtue of its sovereignty, Norway also has full right of control of military and defence matters. Nevertheless, Article 9 of the Svalbard Treaty sets out limitations on Norway’s exercising its sovereignty with regard to establishing – or allowing to be established – naval bases, to constructing fortifications, and to using Svalbard for warlike purposes. These limitations – and particularly 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 assure its development and peaceful utilisation.
The prohibition against using Svalbard for warlike purposes is generally applicable and applies to all parties to the Treaty. By virtue of its sovereignty, Norway has a particular duty to ensure that no one violates this prohibition. Norwegian policy has been designed to ensure proper compliance with the Treaty and a restrictive practice with regard to Norwegian military activities in Svalbard.
Article 9 does not constitute a prohibition against all military activity. It pertains solely to acts of war or activities for the purpose of waging war, and to constructing naval bases or infrastructure that can be classified as fortifications. Defensive measures and other military measures are permitted. The archipelago is covered by provisions of the North Atlantic Treaty, including Article 5 concerning collective self-defence. Norway may individually and collectively implement defensive measures in wartime or under the threat of war.
The prohibition against fortification pertains to specific physical structures that are reinforced to withstand attack and that are usually equipped with artillery positions. Therefore, it does not affect all installations or structures of a military nature or significance.
The prohibition against naval bases means that no permanent military installation may be established for the purpose of stationing and provisioning military vessels with supplies or services normally offered at a naval base. However, the provision poses no obstacle to the Norwegian Coast Guard or other vessels making port calls in Svalbard to receive services and supplies from civilian suppliers as needed.
Visits by Norwegian naval vessels, Coast Guard vessels, Armed Forces’ aircraft or Norwegian military personnel do not infringe the Treaty and are in keeping with long-established practice. Norwegian policy has been designed to ensure proper compliance with the Treaty and a restrictive practice with regard to Norwegian military activities in Svalbard. Consideration of the issue of military visits to the archipelago has placed particular emphasis on aspects such as frequency and duration, type of unit, and the need to carry out operations. For example, frequent calls by Norwegian Coast Guard vessels are deemed natural, given the nature of their duties in the waters surrounding Svalbard.
All foreign military activity in Svalbard is prohibited, and would constitute gross infringement of Norwegian sovereignty. Unless they are involved in innocent passage through the territorial sea, foreign military and civilian government vessels wishing to enter the Norwegian territorial sea around Svalbard must apply well in advance for diplomatic clearance. The same applies to port calls in Svalbard and to aircraft overflights and landings at airports. The requirement for such clearance ensues from general international law, but for the sake of clarity is also laid down in the Regulations of 2 May 1997 concerning access and entry to Norwegian territory in peacetime for foreign military and civilian government vessels.
The Norwegian authorities practice a highly restrictive policy with regard to granting diplomatic clearance to foreign military aircraft and vessels. Foreign government craft with military purposes are not granted diplomatic clearance. Dispensation may be granted on certain conditions to foreign aircraft that are registered as military aircraft but are being used for civilian purposes. That may be the case, for example, when Norwegian authorities invite high-level representatives of foreign government authorities to Svalbard for civilian purposes and the use of scheduled or other civilian aircraft is impractical or impossible. An additional requirement is that government craft used in this way must have a civilian appearance.
In a declaration to the parties to the Treaty in 1971, Norway stated that the airport in Longyearbyen ‘is to be reserved exclusively for civil aviation’. This declaration was issued independently of the Svalbard Treaty and is a self-imposed restriction. The purpose of a flight will determine whether or not it is deemed ‘civil aviation’. Consequently, military aircraft on civilian missions may be granted permission to use the airport. Permission is granted, for example, to Norwegian Armed Forces aircraft in connection with search and rescue operations, coastguard operations and training flights for such operations.
The Svalbard Treaty does not regulate research activities. Nationals of the parties to the Treaty have neither a right nor equal right to conduct research activities in the archipelago.
Since the 1960s, Norwegian authorities have chosen to actively facilitate international polar research in Svalbard by, among other things, developing Ny-Ålesund as a research platform. Norwegian authorities wish to continue facilitating international research activity in Svalbard; see Chapter 8, ‘Knowledge, research and higher education’.
Research activities in Svalbard must be conducted in line with relevant Norwegian regulations, including the Svalbard Environmental Protection Act. This matter is discussed in more detail in Chapter 8.
Article 5 of the Treaty stipulates in the second paragraph that conventions shall be concluded to lay down the conditions for conducting scientific research. The provision says nothing about which conditions must apply; nor was it ever followed up. There has been an increase in the number of international cooperation agreements, projects and networks of significance for scientific research over the past decade. It is no longer relevant to negotiate separate agreements on the conditions for scientific research in the archipelago. It is therefore up to the Norwegian authorities, by virtue of Norway’s sovereignty, to regulate research activity.
3.3 International agreements
3.3.1 EEA Agreement and Schengen Agreement
When Norway ratified the EEA (European Economic Area) Agreement in 1992, Svalbard was excluded from its scope of application because of the special circumstances ensuing from Norway’s international legal obligations under the Svalbard Treaty. For rules stemming from Norway’s obligations under the EEA Agreement to apply to the archipelago, the relationship to Svalbard Treaty parties 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.
The Schengen Agreement was signed in 1985. The purpose of the agreement is to abolish border posts and border controls between member states and reinforce external border controls. Norway acceded to the Schengen Agreement in 1996. As a consequence of the provision in Article 3 of the Svalbard Treaty governing access, Svalbard is not covered by the agreement concerning association with the Schengen cooperation. For more information on Schengen, see section 5.3.3.
3.3.2 WTO Agreement and GATT Agreement
No general reservations concerning Svalbard were made in connection with the establishment of the World Trade Organization (WTO). 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. Similarly, GATT contains no reservations for Svalbard. Among GATT’s key objectives are non-discrimination and reduction and elimination of tariff and trade barriers, and in essence the agreement harmonises with the Svalbard Treaty’s requirement for non-discrimination.
In practice, GATT has had no special significance for Svalbard, because pursuant to the Act of 21 December 2007 No. 119 relating to customs duties and movement of goods (the Customs Act), Svalbard lies outside the Norwegian customs area. Therefore, goods imported to Norway from Svalbard are subject to customs clearance. Goods originating in Svalbard are exempt from customs duty according to the provisions of the customs tariff.
3.3.3 Sanctions adopted by the UN Security Council
The UN Security Council can with legally binding effect under international law impose sanctions that are on states, persons or entities. Norway has an obligation to implement such sanctions, an obligation that takes precedence over other obligations under international law. Such obligations apply as much for Svalbard as for the rest of Norway. The implementation of sanctions that include travel restrictions are discussed in more detail in section 5.3.4.