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4 Legal framework

4 Legal framework

4.1 The Svalbard Treaty

4.1.1 The Treaty and Norway's exercise of authority

Norwegian sovereignty over Svalbard was recognized in the Svalbard Treaty of 9 February 1920. The Svalbard Treaty encompasses all the islands between 10° and 35° E longitude, and 74° and 81° N latitude and applies to the land territory, internal waters and territorial waters within a distance of approximately 4 nautical miles.

The Treaty entered into force on 14 August 1925. The archipelago was incorporated into the Kingdom of Norway by the Act of 17 July 1925 relating to Svalbard.

The effective exercise of authority over a long period of time combined with the fact that Norwegian sovereignty has not been challenged by other states forms an independent basis in public international law for Norwegian sovereignty over the area. This is of importance in international law in relation to states other than those that are parties to the Svalbard Treaty.

It is an accepted principle of international law relating to treaty interpretation that any significant restriction of sovereignty over land territory must be clearly based on a treaty. Such provisions are to be interpreted on the basis of their natural linguistic meaning. In cases of doubt, the interpretation that entails the least restriction of the exercise of authority is to be adopted. Article 1 of the Treaty grants Norway the full and absolute sovereignty over the archipelago, and the Treaty does not provide for any general restriction of Norway's sovereignty. Therefore, unless otherwise specifically provided in the Treaty, Norway has complete jurisdiction in accordance with the general rules of public international law.

Only States Parties to the Treaty may claim special rights for their nationals, companies, etc. The Treaty does not grant any rights to states that are not contracting parties or to private legal persons.

As of May 1999, 39 states have acceded to the Svalbard Treaty. Russia has succeeded the Soviet Union as a party to the Treaty. Iceland acceded to the Svalbard Treaty in 1994, and this was the first new accession since 1930.

Report No. 39 (1974-75) to the Storting concerning Svalbard provides a general review of the Svalbard Treaty and the Mining Code for Spitsbergen (Svalbard) of 7 August 1925. Report No. 40 (1985-86) to the Storting concerning Svalbard gives a more detailed account of legal questions relating to the territorial scope of the Svalbard Treaty, the continental shelf and fisheries jurisdiction, baselines to the east of Svalbard, the prohibition set out in Article 9 of the Svalbard Treaty against using Svalbard for warlike purposes, the application of Norwegian legislation to Svalbard, the Mining Code and property rights on Svalbard.

In the following some essential points concerning the provisions of the Svalbard Treaty will be elucidated. A number of issues that have been of particular interest since the previous report to the Storting will also be mentioned.

4.1.2 The principle of non-discrimination

The Svalbard Treaty entails certain specific restrictions on the exercise of Norwegian authority, particularly regarding non-discrimination in certain areas between nationals and companies of states of the contracting parties.

Provisions on non-discrimination are set out in Article 2 on equal rights of fishing and hunting on Svalbard, Article 3 on equal liberty of access and entry into Svalbard for any reason or object and under the same conditions of equality to exercise and practise all maritime, industrial, mining and commercial operations, and Article 7 on equal treatment with regard to methods of acquisition, enjoyment and exercise of the right of ownership of property, including mineral rights.

The requirement of equal treatment entails a prohibition against discrimination on the basis of nationality or national affiliation, i.e., the nationals, companies, etc., of other contracting parties may not be treated worse than Norwegian nationals. Nor may there be any discrimination between nationals of other contracting parties. Only a state that maintains that its rights have been violated may put forward a claim or complaint on the basis of international law.

The obligation of non-discrimination on grounds of nationality ("equal right") does not preclude prohibitions against or regulation of activities. Nor does it entail any prohibition against differential treatment on grounds of other objective criteria than nationality.

By virtue of its sovereignty over Svalbard, Norway has both an obligation and a right to manage the area in accordance with the principles of the Treaty, e.g. concerning the management of flora and fauna. The Svalbard Treaty presupposes that Norway also exercises its general legislative authority with regard to areas where the Treaty sets out special conditions for certain kinds of economic activity, and makes compliance with local statutes and regulations a condition for exercising the rights laid down in the Treaty.

The requirement of non-discrimination applies to the economic activities specified in the Treaty. Where other kinds of activities are concerned, the Treaty does not afford any special rights to nationals of the other contracting parties. This means that measures in areas that are not specifically listed in the Treaty and that favour Norwegian nationals or otherwise discriminate between nationals of contracting parties may be carried out without hindrance of the Svalbard Treaty.

The nationals and companies of the contracting parties do not have any special right to engage in research on Svalbard. Article 5, second paragraph, of the Treaty establishes that conventions shall be concluded laying down the conditions under which scientific investigations may be conducted on Svalbard. No such convention has been concluded. As long as no such convention exists, it is the Norwegian authorities, by virtue of their sovereignty, that make decisions on research activities.

4.1.3 Taxes, dues and duties

Article 8, second and third paragraphs, of the Svalbard Treaty provides that taxes, dues and duties levied on Svalbard shall be devoted exclusively to Svalbard and shall not exceed what is required for the archipelago.

This means that taxes, dues and duties must be entered as revenue in the Svalbard budget, or possibly as a separate item in the particular agency's budget and referred to in the Svalbard budget.

The restrictions set out in Article 8, second and third paragraphs, do not apply to payment for public services. Payment may be required for public services when based on legal authority. Nor do these restrictions apply to private services, and payment may be required based on agreement.

4.1.4 Article 9 of the Svalbard Treaty

Norway's full and absolute sovereignty over Svalbard under international law also applies to military activity and presence. However, Article 9 of the Svalbard Treaty imposes clear limits on the military activity Norway may engage in on the archipelago. The provision imposes a general prohibition against using Svalbard for warlike purposes and a specific prohibition against establishing naval bases or constructing fortifications. The prohibition against establishing naval bases or constructing fortifications is also made clear in Norway's note of 30 November 1951 to the Soviet Union, which was a response to the Soviet protest against the integration of Svalbard into the NATO defence system. The note reads as follows:

“In accordance with the obligations Norway has undertaken through the (Svalbard) Treaty, the Norwegian Government has not estab-lished, nor will it establish, any military fortification or base whatsoever on the Svalbard archipelago or Bjørnøya. Nor will it allow any other state to do so.”

Article 9 does not entail an absolute prohibition against Norwegian military activity on Svalbard. Norwegian naval vessels and coast guard vessels calling at ports, military aircraft landing and the presence of Norwegian military personnel in uniform are not violations of the Treaty. Naval vessels have been calling at Svalbard ever since Norwegian administration was established on the archipelago. Nor is calling up conscripts for military service a violation of the provisions of the Treaty. Norway is not precluded from implementing defence measures in time of war. Moreover, the principle of Norway's full and absolute sovereignty over Svalbard applies to foreign military activity on Svalbard, cf. Article 1.

Norwegian policy has been designed to ensure proper compliance with the Treaty and a restrictive practice as regards Norwegian military activities on 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.

As regards the use of the airport on Svalbard, independently of the Treaty there is a self-imposed restriction in the form of a declaration made by Norway in 1971 to all the contracting parties in connection with the decision to build the airport. According to the declaration, the airport is to be "reserved exclusively for civil aviation". In practice, the Norwegian authorities have interpreted this to mean that the purpose of the flight is decisive. Aircraft involved in military missions have not been permitted to use the airport. On the other hand, the declaration does not preclude registered military aircraft from using the airport in connection with civil assignments. The declaration also states that the airport is to be open to all contracting parties and their nationals as further agreed with the Norwegian aviation authorities. In 1974 Norway and the Soviet Union concluded an agreement on the use of the airport by Soviet aircraft. This agreement is still in force between Norway and Russia after the dissolution of the Soviet Union.

The prohibition set out in Article 9 of the Treaty is not regarded as precluding coastguard vessels from frequently calling at the archipelago. Nor are there any conclusive objections to the needs of the coastguard being taken into account in an overall assessment of future infrastructure needs on Svalbard. The problem must be viewed in connection with the need for expanding emergency preparedness in the Barents Sea and the areas around Svalbard. The northern areas have become increasingly important in a resource policy, environmental and research context. For example, there is a growing risk of pollution in the area.

4.2 International agreements of particular interest

All of the international agreements to which Norway has acceded also apply to Svalbard subject to any special exception.

The GATT Agreement

As regards the former General Agreement on Tariffs and Trade (GATT), which entered into force on 1 January 1948, Norway did not enter any reservation with regard to Svalbard. Non-discrimination and the reduction/elimination of tariff and trade barriers are key aims of the GATT Agreement. The GATT rules accord to all intents and purposes with the non-discrimination requirement of the Svalbard Treaty.

In practice, the GATT Agreement has had little significance on Svalbard. According to the Customs Act, Svalbard is outside the Norwegian customs area. Therefore, goods imported to Norway from Svalbard are subject to customs clearance. Goods originating on Svalbard are exempt from duty according to the provisions of the tariff schedule. Svalbard is in practice a duty-free area.

The WTO Agreement

No general reservation with regard to Svalbard was entered in connection with the Agreement establishing the World Trade Organization (WTO Agreement), which entered into force on 1 January 1995. This was also the case with the subsidies agreement.

Agreement on Government Procurement

Norway entered the following reservation in the Schedule to the Agreement on Government Procurement:

“Norway reserves its position with regard to the application of this Agreement to Svalbard, Jan Mayen Island and Norway's Antarctic possessions.”

General Agreement on Trade in Services

In the General Agreement on Trade in Services (GATS), which entered into force at the same time as the WTO Agreement, Norway entered the following reservation in the Schedule:

“Norway reserves its rights to revert with a clar-ification with respect to the application of the General Agreement on Trade in Services to Svalbard (the Archipelago of Spitsbergen) in the context of the laws and regulations prevailing there.”

A more detailed account of the application of the WTO Agreement and appurtenant agreements on Svalbard is to be found on page 170 of Proposition No. 65 (1993-94) to the Storting on the result of the Uruguay Round (1986-1993) and on consent to ratification of the Agreement establishing the World Trade Organization (WTO), etc.

The EEA Agreement

When Norway ratified the EEA Agreement, Svalbard was excluded from its application pursuant to Protocol 40 to the agreement. 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.

The EU Agreement

The way in which Svalbard was dealt with in connection with the EU negotiations is also of interest in this context. During the membership negotiations with the European Communities (EC) in 1972, an exception was made for Svalbard in the Accession Agreement. This was done because of the special conditions ensuing from Norway's international legal obligations under the Svalbard Treaty. If EC legislation had been applied to the archipelago, the relationship to the parties to the Svalbard Treaty that were not members of the European Communities would have had to be clarified on the basis of the principle of non-discrimination in those areas where this principle applies. Also during the membership negotiations with the EU in 1994, Norway and the EU agreed that Svalbard should be excepted from membership of the EU. A separate protocol (Protocol 7) to the Act of Accession on Svalbard was negotiated which, in Article 1, laid down that the treaties on which the European Union is founded do not apply to Svalbard.

4.3 Principles governing the applica- tion of legislation on Svalbard

The Act relating to Svalbard, section 2

By virtue of its sovereignty, Norway may make all legislation that applies to the mainland applicable to Svalbard. The only limitation is that the legislation must not conflict with the provisions of the Svalbard Treaty.

The basis for the application of Norwegian legislation to Svalbard is laid down in section 2 of Act of 17 July 1925 No. 11 relating to Svalbard, which reads:

“Norwegian civil and penal law and the Norwegian legislation relating to the administration of justice apply to Svalbard, where nothing to the contrary has been provided. Other statutory provisions do not apply to Svalbard unless specifically provided.”

The wording "specifically provided" in section 2 of the Svalbard Act has traditionally been interpreted to mean that there must be some explicit basis in the text if a specific Act is to apply to Svalbard. Explicit statements in the travaux prépara-toires have to some extent been considered sufficient. On the other hand, wording such as "in the kingdom", "Norwegian territory" and similar formulations have not in themselves been considered sufficient to establish that the Act also applies to Svalbard.

In a decision published in Norwegian Supreme Court Reports 1996, p. 624, the Supreme Court has stated that section 2 cannot "entail any formal requirement in relation to subsequent legislation in the sense that the Act may only be applicable to Svalbard if this is explicitly stated in the text."

It must, however, be asserted that according to current law, clear and weighty arguments are required in order to conclude that an Act is applicable to Svalbard when it is not explicitly so stated in the text.

The question of amending the formal statutory basis in section 2 of the Act relating to Svalbard and the requirement concerning specific provisions were dealt with in the previous two reports on Svalbard. Report No. 39 (1974-75) concerning Svalbard, page 44, reads as follows:

“In considering the application of legislation in Svalbard, a point to take into account is that the enforcement possibilities are restricted by the area's size, pattern of population settlement and state of communications. It is therefore natural that it is particularly those acts and provisions which have a bearing on governing the course of development in Svalbard that are made applicable for the area.”

As regards legislative policy on Svalbard, Report No. 40 (1985-86) to the Storting (page 7) reads as follows:

“The statutes and regulations which ought to apply to Svalbard are determined on a case to case basis.”

The question of changing the legislative practice has become even more relevant because of the normalization of the Longyearbyen community.

Section 2 of the Act relating to Svalbard and the requirement of specific provision pose a particular challenge to the lawmakers in assessing the relationship to Svalbard. In the Government's view, this acts as a safeguard against any violations of the Svalbard Treaty and as encouragement to assess practical needs and means of enforcement in relation to the communities and legal persons on Svalbard. Admittedly, under the current system, any lack of vigilance on the part of the lawmakers may lead to the legislation being inapplicable to the archipelago. This may be unfortunate in relation to specific matters, but it can be subsequently remedied by means of legislative amendments.

If the opposite basis were to be adopted, i.e. that public law legislation were to be made applicable to Svalbard without the requirement of specific provision, any lack of vigilance could result in a Norwegian provision being unintentionally made applicable, possibly resulting in a violation of international law and/or detrimental effects on foreign policy. These flaws could arise in relation to formal statutes, but especially in connection with delegated legislation in the form of regulations. Today regulation is largely done through legislative powers which are delegated to the administration. A high standard of carefulness and suitable control procedures at several levels in the government administration will have to be maintained at the same time as more extensive implementation is required.

The Government will maintain the current basis in section 2 of the Act relating to Svalbard whereby Norwegian legislation other than civil and penal law and the Norwegian legislation relating to the administration of justice, apply to Svalbard only when specifically provided. The Ministry of Justice will issue guidelines on law-making and recommend the terminology that should be used if a statute is to apply to Svalbard.

The question of the application of Norwegian legislation to Svalbard has largely been determined on the basis of expediency and the need for the statute in question, cf. Report No. 40 (1985-86) to the Storting. The Government will therefore continue to follow this legislative practice in matters where decisive importance is attached to the need for the particular statute on Svalbard and the distinctive geographical, climatic and administrative conditions on Svalbard.

Scope of geographic application

Another principle has been that legislation for Svalbard is applicable and equally enforceable for the entire archipelago. However, since the Act relating to Svalbard was enacted, and particularly during the years since Report No. 40 (1985-86) to the Storting was written, there have been changes in areas that may have significance for this legislative practice. Certain communities, Longyearbyen in particular, have undergone a pronounced change. Longyearbyen is now an established family community, and a wide range of services are provided. Communication with the mainland is good as regards both transport and computer and telecommunications services. Therefore, it is no longer so obvious that statutes should not be made applicable to Svalbard because they are not relevant. This applies particularly to legislation that imposes obligations, such as various forms of commercial legislation or legislation that entitles one to various forms of benefits, for example in the social welfare area.

As Longyearbyen has developed into a more "normal" community, it has proved desirable in an increasing number of cases to make statutes applicable to Svalbard due to the changing conditions in Longyearbyen.

At the same time, the other communities have not developed in the same way. This has raised the question whether it should be permitted to make exceptions to the general rule that all legislation is to apply to the entire archipelago and be equally enforceable in all the communities on Svalbard.

The extensive regulation that is taking place in Norway in connection with adaptation to the EEA, for example in the technical field, is not automatically pursued in the case of Svalbard. This is because it is not always desirable to impose these requirements on foreign enterprises, which are based on their own national standards. An example is the CE marking of products. This is a dilemma for the Norwegian authorities, not least because of the desire to maintain the same technical standard for equipment used by Norwegian enterprises on the archipelago as on the mainland.

In some areas, the Norwegian authorities have in practice pursued a somewhat less stringent enforcement policy as regards certain types of legislation. However, the criterion has been that the minimum requirements imposed by Norwegian legislation have been complied with in the practical implementation. This is due to reasons of expediency and is done in areas in which it would not be natural for the inhabitants of a foreign community on the archipelago to be covered by a similar type of legislation.

The Government will continue to follow the basic principle that the legislation applicable to Svalbard shall apply to the entire archipelago. Developments in Longyearbyen may entail a special need to introduce rules that are neither necessary nor expedient elsewhere on the archipelago. In certain areas that are already subject to regulation through the Mining Code, the adoption of some-what different standards in the various communities on Svalbard will in practice continue to be accepted. However, Norway's obligations according to international law in the areas in question must be fulfilled. In accordance with the above, the Norwegian authorities have, within the scope of the Treaty and out of consideration for local conditions, also sanctioned the making of regulations designed for activities or inhabitants in geographically limited areas. The Government will continue this practice insofar as it is considered necessary on the basis of local needs.

4.4 Section 4 of the Act relating to Svalbard - enabling provision

Because of special conditions, there has often been a need for certain modifications in a statute before it can be made applicable to Svalbard. Section 4 of the Act relating to Svalbard empowers the King to issue general regulations in a number of legal areas that have been considered especially important for the administration of Svalbard, and where it has traditionally been necessary to lay down a separate set of regulations in the area, e.g. because conditions on Svalbard in these legal areas have differed considerably from those on the mainland for geographical, administrative or other reasons. Examples of this are rules concerning hunting, trapping, fishing, the protection of animals, plants, natural formations, tracts of land and antiquities, the church, school and shipping. In addition, several statutes provide for separate regulations regarding Svalbard.

In many respects, the administration of Svalbard is carried out in accordance with regulations that are laid down on the basis of powers granted by the Storting, and where the King's authority to lay down regulations is delegated to the competent ministry and, in a number of cases, further to a lower level of the public administration. This is a phenomenon that is also found on the mainland, but that perhaps - for practical reasons - in certain main areas, such as the preservation of the natural environment and cultural remains, has spread more extensively on Svalbard than on the mainland.

The Government attaches great importance to the administration of Svalbard having the broad support of the Storting. The regulations laid down for Svalbard are therefore often based on statutory provisions that already apply to the mainland, but are adapted as necessary to take account of local conditions and comply precisely with the Svalbard Treaty. Furthermore, all draft regulations concerning Svalbard are submitted to the Interministerial Committee on Polar Affairs to ensure that legislation concerning Svalbard is in accordance with the Government's policy towards the archipelago, including the objectives set out in previous reports and other documents submitted to and dealt with by the Storting.

In future, the Government intends to submit legislative propositions to the Storting in the form of statutes insofar as this is expedient. In Official Norwegian Report (NOU) 1999:21 Act relating to environmental protection on Svalbard, it has been proposed that the provisions concerning protection of the natural environment and cultural remains on Svalbard, which is perhaps the legal area that has been most extensively governed by regulations, should be regulated by statute, cf. a more detailed account of this subject in section 6.3.1 Main elements of the Government's follow-up.

4.5 Commercial and company legislation

In recent years, there has been a rapid increase in the number of businesses established on Svalbard. For example, approximately 130 enterprises are registered with business addresses in Longyearbyen. This has brought to the fore the need to clarify the degree to which commercial and company legislation applies to enterprises on Svalbard. Key legislation in this context includes the company Acts and accounting and auditing legislation, which contain provisions concerning the establishment, dissolution and operation of companies engaged in commercial activities.

Commercial and company legislation contains provisions relating both to private law and to public law and generally does not include provisions concerning their application to Svalbard. There are also statutory provisions that are somewhere in between provisions relating to public law and those relating to the administration of justice. Otherwise commercial and company legislation contains provisions that refer to and in effect require provisions of this type. This is the case, for example, with the Companies Acts, which refer inter alia to the Act relating to the register of business enterprises.

The main purpose of the public law provisions laid down in commercial and company legislation is to safeguard the interests of the public authorities for control and enforcement purposes.

As a general principle, the Government will assert that the same rules ought to apply to commercial activities on Svalbard as elsewhere in Norway as regards the establishment, dissolution and operation of commercial companies. This means, for example, that the question whether Norwegian or foreign law is to be applied is determined in accordance with the same principles as those applicable to companies operating on the mainland. Nonetheless, the legislation must be modified somewhat to take account of local conditions, for example as regards other legislation that is not made applicable to Svalbard and the absence of certain administrative units. Moreover, Svalbard's status under international law and the conditions to be observed with regard to the enforcement of Norwegian legislation on the archipelago also necessitate special modifications, particularly as regards the application of accounting and auditing legislation to the various foreign enterprises on the archipelago. This has already been prescribed as regards taxation and accounting questions in sections 4 to 8 of Act of 29 November 1996 No. 68 relating to tax payable to Svalbard.

Certain foreign establishments on Svalbard are engaged in special activities that justify the use of a form of accounting deviating somewhat from the normal as a basis for calculating taxes. This is the case, e.g., with the Russian enterprises. A practice has been established of determining the income of these taxpayers on a somewhat deviating basis, by permitting these enterprises to submit somewhat less detailed accounts as long as they are sufficient to show that they have not made a profit and provide a sufficient basis for determining an export duty for coal in accordance with Act No.11 of 17 July 1925. If the various enterprises should operate at a profit, they too will be required to submit more detailed accounts.

In the light of this, the Government will draw up separate provisions concerning the scope of application of key commercial and company legislation on Svalbard. Enabling provisions have already been laid down with regard to some of the statutes, for example, the new Companies Act, the Accounting Act and the Act relating to the Central Coordinating Register for Legal Entities. In the case of other statutes, separate statutory provisions will have to be proposed to the Storting.

4.6 The Working Environment Act

Section 3 of the Act relating to Svalbard provides that legislation concerning the working environment shall apply to Svalbard with such amendments as the King may lay down out of regard for local conditions. The King's authority to make special provisions is related to such restrictions and exceptions as are necessary because of the geographical, climatic or administrative conditions on Svalbard. Royal Decree of 24 June 1977 lays down temporary special provisions on worker protection and the working environment on Svalbard. These special provisions are mainly related to Svalbard's distinctive administrative system.

The EEA Agreement requires the member states to implement minimum rules in the field of working environment and labour law. Despite the fact that the EEA Agreement does not apply to Svalbard, in the implementation of EEA rules in the said field which, according to section 3 of the Svalbard Act, shall also apply to Svalbard, it was found that there was little need for special exceptions for Svalbard.

The Government intends to draw up permanent working environment provisions for Svalbard. The Ministry of Local Government and Labour (now the Ministry of Local Government and Regional Development) has appointed a working group to examine the application of the Working Environment Act to Svalbard. The group will soon complete its work.

4.7 The authority of the Ombudsman for Public Administration on Svalbard

The normalization of the community on Svalbard, particularly in Longyearbyen, has brought to the fore the question whether the Public Administration Ombudsman system applies to Svalbard.

Act of 22 January 1962 No. 8 concerning the Ombudsman for Public Administration does not contain any explicit provision that the Act applies to Svalbard, cf. section 2 of the Act relating to Svalbard and the principle set out therein. The Ministry of Justice has considered the question and concluded that the Ombudsman Act does apply to Svalbard.

In a report of 1997 concerning the Ombudsman for Public Administration, Document No. 4 (1997-98), page 10, the Ombudsman states as follows:

“Occasionally the question arises whether the Ombudsman system applies to Svalbard. So far it has not been necessary to make a decision on this question in dealing with our day-to-day ad-ministrative proceedings. Nonetheless, I have had reason to consider the question as a matter of principle and have concluded that my sphere of authority also includes this part of the realm.

The Ombudsman system is now enshrined in Article 75, litra l, of the Constitution, and the Constitution applies to Svalbard. The Ombudsman Act applies to `the public administration and all who are engaged in its service'. The consistency of the legal system indicates that the same power of controlling the administration must apply to Svalbard as elsewhere in the realm.”

The Government agrees with these observations and asserts that the Act also applies to Svalbard.