The Svalbard Treaty and Norwegian Sovereignty

• Author: Øystein Jensen
• Pages: 120-145

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Citation: Øystein Jensen. “The Svalbard Treaty and Norwegian Sovereignty” Arctic Review on Law and Politics,

Vol. 11, 2020, pp. 82–107. http://dx.doi.org/10.23865/arctic.v11.2348

Arctic Review on Law and Politics

Vol. 11, 2020, pp. 82–107

82

*Correspondence to: Øystein Jensen, email: ojensen@fni.no

Peer-reviewed article

The Svalbard Treaty and Norwegian

Sovereignty

Øystein Jensen

University of South-Eastern Norway and Fridtjof Nansen Institute, Norway

Abstract

A hundred years ago on 9 February 2020, the Svalbard Treaty was adopted in Paris, granting

Norway her long-standing ambition: full and absolute sovereignty over the Svalbard archipelago.

After a brief review of the negotiations that preceded the Paris decision, this article examines

the main elements of the Treaty: Norwegian sovereignty, the principle of non-discrimination and

the ter ra nullius rights of other states, peaceful utilization, scientic research and environmental

protection. Focus then shifts to Norway’s policy towards Svalbard and the implementation of the

Treaty’s provisions: what have been the main lines of Norwegian Svalbard politics; what adminis-

trative structures have evolved; to what extent has Norwegian legislation been made applicable to

Svalbard? Importantly, the article also addresses how widespread changes in international law that

have taken place since 1920, particularly developments concerning the law of the sea, have brought

to the forefront controversial issues concerning the geographic scope of the Treaty’s application.

Keywords: Svalbard Treaty, sovereignty, non-discrimination, law of the sea

Responsible Editor: Nigel Bankes, Faculty of Law, University of Calgary, Canada

Received: May 2020; Accepted: June 2020; Published: December 2020

1 Introduction

The year 2020 marks a milestone in Norwegian polar history: on 9 February it

was 100 years since the Treaty concerning the Archipelago of Spitsbergen (hereafter:

Svalbard Treaty) was adopted in Paris.1 The Treaty recognizes Norway sovereignty

over the Svalbard archipelago – all islands, islets and reefs between 74° and 81° N

and 10° and 35° E. The Svalbard Treaty came into force on 14 August 1925. On the

same day, the Svalbard Act also entered into force,2 making Svalbard the northern-

most region of the Kingdom of Norway.

The Svalbard Treaty and Norwegian Sovereignty

83

Before the Svalbard Treaty, Svalbard was no man’s land in terms of interna-

tional law – terra nullius. Various nationalities had conducted hunting, shing

and mining on and around the archipelago, but Svalbard was not subject to any

state’s sovereignty. Norway had long shown interest in Svalbard; and after the

Swedish–Norwegian Union was dissolved in 1905, Norway initiated international

negotiations aimed at clarifying the international legal status of the archipelago.

However, the issue was not settled until after World War I, when the Allies con-

cluded that clarication of Svalbard’s international legal status was among the

prerequisites for lasting peace in Europe. The resultant Svalbard Treaty granted

Norway full and absolute sovereignty over this strategically important Arctic

archipelago.

The Treaty also establishes an international legal framework for the exercise of

Norwegian authority on Svalbard, with regulations on commercial activities and

taxation, as well as military activities and research. Further, citizens of all treaty

parties shall enjoy the same rights as Norwegians to engage in hunting, shing and

commercial activities on Svalbard. The Treaty is also one of the rst international

environmental protection agreements: Norway is to establish and enforce appro-

priate regulations to secure the animal and plant life found on Svalbard and in its

adjacent waters.

This article focuses on major legal issues related to the Svalbard Treaty at its 100th

anniversary. After a brief review of the negotiations leading up to the Paris decision

in Section 2, the main elements of the Treaty are examined in Section 3. Focus then

shifts to Norway’s policy towards Svalbard in Section 4. Section 5 discusses con-

troversies that have arisen between Norway and other states parties, including with

regard to the geographic scope of the Treaty’s application. Concluding remarks are

offered in Section 6.

2 Decision in Paris

In terms of international law, the Svalbard archipelago was no man’s land (ter ra

nullius) until the Treaty was adopted in 1920. The sovereignty issue was raised as

early as the 17th century, after armed clashes between several states over the capture

of whales and walrus in the sea around the islands. As whale and walrus hunting

declined, however, the sovereignty issue faded.3

The question of Svalbard’s international legal status re-emerged when, under the

Swedish–Norwegian Union (1814–1905), the authorities asked other states for their

views on a possible annexation of the archipelago. The question was quickly dropped

after Russia expressed its desire that the islands should remain terra nullius.4

In the 19th century, growing interest in coal extraction on Svalbard again raised

the issue of sovereignty. Should the Svalbard islands be subjected to one state’s

sovereignty, or should an international management regime be created for the

archipelago?5