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The Unique Legal Status of an Arctic Archipelago

This article is part of a series on Russian interests in the Arctic. Russia's Arctic policies and postures are often misunderstood, overblown, or underrated because they take place in a complex regional context and result from complex internal politics. Every second month, Morgane Fert-Malka contributes with an analysis, interview, or book review shedding light on this central Arctic player.

By Morgane Fert-Malka and Troy Bouffard

When Norway issued petroleum exploration licenses for the seabed off the coast of Svalbard, an archipelago in the Barents Sea, in January 2015, it prompted sharp protest by Russian officials. Moscow claimed Oslo had no exclusive rights to these maritime areas. Shortly after, Russian Deputy Prime Minister Dmitri Rogozin paid a deliberately unscheduled visit to the archipelago. The trip, an implicit assertion that his EU and Norwegian travel ban did not apply to Svalbard, provoked much concern among foreign ministry officials in Norway.

The Svalbard archipelago, positioned between mainland Norway and the North Pole, enjoys a unique status defined in the 1920 Svalbard Treaty (originally Treaty of Spitsbergen). The instrument grants Norway sovereignty over Svalbard, but requires that the archipelago and its territorial waters remain a demilitarized and free economic zone for all signatory parties, now numbering 45 states.

For decades, the treaty was a useful, if idiosyncratic, compromise. It allowed Svalbard to become an international hub of scientific research, mostly protected from external tensions. Russia has long been one of the main stakeholders on the archipelago. Throughout the Cold War, Svalbard was the only Western territory with a Soviet presence. This situation continues to inform Moscow’s views, even as the Russian community on the islands has dwindled. 

In recent years, competing claims have arisen due to Svalbard’s singular situation, creating an anomaly in the otherwise cooperative framework of Arctic politics. For about a decade, Arctic experts have effectively debunked myths of a new “gold rush” or conflict over resources, territory, and navigation rights throughout the High North. The region has emerged as an example of successful cooperation and innovative governance. But the “Svalbard problem” encapsulates some of the most complex issues related to international law, regional governance, and interstate relations—issues that existing mechanisms may be unable to resolve, and that must be addressed before alarmist and escalatory rhetoric gains traction.

Diverging Interpretations

Russia routinely questions Norway’s application of the Svalbard Treaty in regard to mining, fisheries, and civilian safety infrastructure. This only illustrates a larger problem: The treaty was drafted decades before the emergence of contemporary maritime law and under very different technological, ecological, and global economic conditions. In 1920, legal notions of continental shelves and 200-nautical-mile exclusive economic zones (EEZ) did not exist. The treaty’s inadequacies are now allowing tensions to develop not only between Norway and Russia, but also between Norway and its Western partners, including the European Union.

Most treaty partners claim that the principles of free and non-discriminatory access outlined in the Svalbard Treaty extend beyond the “territorial waters” mentioned without specification in the 1920 text to those maritime areas now defined in modern maritime law; in contrast, Oslo maintains that these principles only apply to the more narrowly defined area established by the treaty. Outside this area, in the EEZ and on the continental shelf, Norway asserts full, unqualified sovereignty.

Norway, Russia, and other interested parties have long been aware of the legal ambiguity. But recently the issue became pressing, as climate change, as well as economic and technological developments, prompted them to act on their diverging interpretations.

Signs of Escalation

A snow crab-fishing dispute between Norway and the EU could have far-reaching implications for other claims concerning Svalbard. After the EU issued licenses to harvest snow crabs around Svalbard in 2013, Norway declared the move illegal and, in 2015, issued a fishing ban with exemptions for select Norwegian vessels. Enforcement of the ban continues: In 2017, Norway arrested and fined a Latvian vessel trawling under an EU license, prompting furious protest from EU officials and the fishery lobby. EU crab fishing in the area is now effectively frozen, as vessels avoid the area for fear of arrest. In a separate case in 2016, Norwegian authorities seized a Lithuanian vessel harvesting snow crabs in international waters farther off the archipelago’s coast. The decision was overturned by a Norwegian court.

These cases could have an impact beyond fishing rights: Snow crabs, classified as a sedentary species, have the same status as mineral resources, according to contemporary international law. Thus, legal rulings about crabs may establish precedent for access to the subsoil of this hydrocarbon-rich area.

This dispute with the EU adds to the pressure Norway faces from its eastern neighbor. For decades, Russia has supported the operations of its state-owned mining company Arktikugol and maintained a Russian workforce on the archipelago. But the Russian state cares less about profit than about asserting its access rights as granted by the Treaty. Russian officials have made efforts in recent years to raise the visibility of Svalbard with their domestic audience. In October 2017, a (probably deliberate) leak in the Russian media revealed that the Ministry of Defense considers Norway’s “attempt at establishing absolute sovereignty on the Svalbard archipelago and the adjacent 200-nautical-mile zone” as a direct threat to Russia and as grounds to reintroduce “force [as a] factor of international relations.” Although the leak was likely meant to be diplomatic signaling, and, as such, its significance should not be overplayed, it does indicate the issue’s salience in Moscow.

A Strain on Arctic Relations

Even as these disagreements persist, there may be no real push to clarify Svalbard’s status. In times of peace, states are often happy to navigate legal ambiguity to pursue their parochial interests. In spite of very real tensions, Norway and Russia each have a long history of letting the other act as they will on Svalbard, while issuing official protests in order to secure future legal claims. Both players understand the rules of this long-standing game. Though they have vastly different political systems and strategic outlooks, Norway and Russia are intensely socialized to one another and maintain a functional bilateral relationship. This relationship, which necessarily involves the occasional exchange of acrimonious diplomatic statements, has conditioned the lasting success of the Svalbard Treaty.

Therefore, the deterioration of the geopolitical situation in the region, and the attending evolution of Norwegian-Russian relations, may undermine the stability of the Svalbard arrangement. The Arctic Council, UNCLOS, and other institutions lack the tools to deal with the Svalbard problem—a situation they were not built to address. Strategic considerations loom large. The loud Russian protest when NATO decided to hold its Parliamentary Assembly meeting on Svalbard in early 2017 is but one example of the confusion that reigns about the meaning of the archipelago’s demilitarized position, as well as its potential role in hard-power games.

The situation could evolve in one of three directions. In the first, all interested parties would initiate a partial or total renegotiation of the Svalbard Treaty with an aim to eliminate its ambiguities and loopholes, taking into account developments in international law and regional governance since 1920. In the second scenario, the outstanding questions would be addressed through arbitration or litigation, in a court with international jurisdiction. The third possibility is that the states will not address their disputes through established channels, but take a more confrontational course, perhaps leading to sharper diplomatic tensions.

Further developments will depend above all on Norway’s and Russia’s respective strategies. Oslo will need to consider the strength of its legal positions and what it is ready to concede. Russia’s next moves will depend on how it defines its interests on the archipelago, and what actions it is ready to take to protect or further these interests. In any case, Svalbard will be worth keeping an eye on, if not two, in the coming years. If disagreements are not addressed peacefully, Svalbard would be the first instance of an escalating Arctic dispute that both international law and regional governance frameworks failed to keep in check.

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Morgane Fert-Malka is a French freelance political analyst based in Moscow, Saint Petersburg, and Copenhagen. She focuses on Russia's Arctic policies and on international relations in the Arctic. In addition to her doctoral research on Russian decision-making processes in the Arctic, she is committed to deciphering the complex and fascinating issues of international Arctic governance for the broadest possible audience. Twitter: @CuriousArctic.

Troy J. Bouffard, MSG, U.S. Army (Ret.) is full-time faculty at the University of Alaska Fairbanks in the School of Management. Additionally, he is a Department of Defense contractor with USNORTHCOM and the Alaskan Command, providing comprehensive Arctic regional studies, analysis, and other activities.

[Photo courtesy of sian_meades]

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