Celebrating 100 years of the Svalbard Treaty

Svalbard is part of our country, and this year we will be celebrating the 100th anniversary of the Svalbard Treaty. The Treaty confirmed Norway’s sovereignty over the archipelago. Today, Norway’s sovereignty is undisputed, and Svalbard is as much part of Norway as any region on the mainland. In 1920, it was important to resolve the question of sovereignty, not just for Norway, but also for everyone with interests in Svalbard in the early part of the century. The situation in the archipelago before 1920 has been likened to the ‘Wild West’, full of adventurers, coal miners, gold diggers and fortune hunters taking the law into their own hands. But once Norway’s sovereignty was formally recognised, it was possible to resolve property ownership issues and bring unregulated activities under control.

Many countries were concerned to ensure that the Svalbard Treaty did not put an end to all foreign activity in Svalbard. This was why the principle of equal treatment was enshrined in the Treaty. These provisions mean that, in certain areas, Norway is obliged to treat nationals and companies from states that are parties to the Treaty in the same way as Norwegian nationals and companies. They have, for example, an equal right of access and entry to the archipelago, and equal rights to engage in fishing and hunting and other commercial activities. Norway has given high priority to fulfilling these obligations under international law ever since the Treaty was signed. It is worth mentioning that the provisions on equal treatment in the Svalbard Treaty are far less extensive than the corresponding provisions of the EEA Agreement.

The provisions on equal treatment apply only to nationals and companies from states that are parties to the Treaty. Traditionally, however, Norwegian law in Svalbard has not made a distinction between nationals from contracting parties and nationals of other states. This means that people from a country like Thailand, for example, have enjoyed many of the same opportunities as citizens from states that are parties to the Treaty. In addition, Norway has chosen, for practical and administrative reasons, to adopt non-discriminatory legislation in areas where it does not have an obligation under the Treaty to do so.

The right to equal treatment is not the same as the right to resources. The Norwegian authorities can both regulate and prohibit activities, as long as there is no discrimination on the basis of nationality. This is particularly important when we take action to safeguard Svalbard’s vulnerable environment or share limited resources. At the same time, the Treaty does not preclude differential treatment on grounds other than nationality. For example, it is only people resident in Svalbard who are entitled to hunt reindeer in the archipelago. And only permanent residents of Svalbard are allowed to own cabins there. Likewise, only vessels from countries that have traditionally harvested prawns in the area are entitled to catch prawns in the territorial waters of Svalbard.

Certain states have challenged Norway’s interpretation of the Treaty’s provision on equal rights to engage in fishing and hunting. Under the Treaty, ships and nationals from states that are parties to the Treaty have equal rights to engage in fishing and hunting on land in Svalbard and in the territorial waters around the archipelago, i.e. up to 12 nautical miles from land.

Nevertheless, the EU has cited the Treaty’s principle of equal treatment when, for example, the EU member states Latvia and Lithuania have expressed an interest in harvesting snow crabs on the Norwegian continental shelf far beyond the territorial waters of Svalbard. But the wording of the Treaty is clear. The provisions on equal treatment apply only in Svalbard’s land areas and territorial waters. We see that certain other states could have a clear interest in advocating a more expansive interpretation to include areas beyond the territorial waters. However, any such interpretation would mean an expansion of their rights at Norway’s expense.

States that claim that the reference to territorial waters in the Treaty also includes sea areas outside the 12-nautical-mile limit are interpreting this provision in a way that is contrary to international law.  This is clear not only from the Svalbard Treaty, but also from the Law of the Sea and the Vienna Convention on the law of treaties.

The fact that there can be differing interpretations of the same provision of a treaty is a more general problem, and the Svalbard Treaty is a case in point. Misunderstandings or a lack of knowledge about the actual substance of the Treaty can also in some cases lead to unrealistic expectations or opinions about the Treaty’s significance for the interests of specific stakeholders.

The Norwegian authorities frequently receive questions from authorities and private individuals in other countries about how they should understand Norwegian law as it applies to Svalbard and Norway’s administration of the archipelago. These are answered by the relevant authority, in the form of letters or meetings, or sometimes through diplomatic channels.

Svalbard is part of Norway. Norway does not routinely consult with other countries about how it exercises authority over its own territory.

This year’s 100th anniversary of the Svalbard Treaty is a good time to put right any misunderstandings or clarify views that have gained currency despite the actual wording of the Treaty. By marking the fact that it is 100 years since the Treaty was signed on a February day in Paris, we are seeking to increase knowledge about the Treaty in the lead-up to 2025, when it will be 100 years since it entered into force and we will be able to celebrate Svalbard’s centenary as part of the Kingdom of Norway.

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Date of publication: 9 Feb 2020

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