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A.M.Oreshenkov Features of the Sovereignty of Norway Above

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A.M.Oreshenkov Features of the Sovereignty of Norway Above A.M.Oreshenkov Features of the sovereignty of Norway above Spitsbergen under the Parisian treaty of 1920. Modern international legal position of Spitsbergen is considered as a phenomenon in international law. It has been granted to the archipelago and separately located Bear Island on the basis of the Parisian treaty developed at the Versailles peace conference in 1920. The treaty on Spitsbergen defines the state appurtenance of the land territories located between 10° and 35° eastern longitude, 74° and 81° northern longitude, also provides creation of an international legal régime (preamble and article 1) on them. According to article 1 countries-participants of the Parisian treaty have agreed to recognize the sovereignty of Norway above these land territories on the conditions established in the treaty. These conditions stated in a number of articles of the treaty about Spitsbergen, provide, in particular, that Norway besides an establishment of the sovereignty above the archipelago will create for nationals of countries-participants of this agreement an international legal treatment of acquisition of the right of ownership on landed property, including mineral rights. Article 7 of the treaty about Spitsbergen says: ”With regard to methods of acquisition, enjoyment and exercise of the right of ownership of property, including mineral rights, in the territories specified in Article 1, Norway undertakes to grant to all nationals of the High Contracting Parties treatment based on complete equality and in conformity with the stipulations of the present Treaty. Expropriation may be resorted to only on grounds of public utility and on payment of proper compensation”1. Article 7 plays a key role in definition of volume of the rights of private persons and companies about which the countries-participants of the treaty have agreed at the establishment of a regime of Spitsbergen. By consideration of volume 1 ”St. prp. nr. 36 (1924). Om godkjennelse av traktaten om Spitsbergen (Svalbard)”, Oslo, Utenriksdepartement, s.33. 2 of these rights it is important to take into account two moments. Firstly, mineral rights are a component of the right of ownership of property and, secondly, the right of ownership on land not only acquires, but also recognizes according to article 7 of the treaty on Spitsbergen (it will be considered below). According to provisions of this article for exercise of mineral rights is necessary presence of the right of ownership of property, right on minerals and right to be engaged in mining operations. Creation of a uniform treatment of acquisition of landed property, including mineral rights, complicated occupation of some land by private persons and companies before the signature of the treaty about Spitsbergen. The right of these persons on land and their depths, including the right to be engaged in any kind of economic and scientific activity within the limits of land, has not been made documentary out because of the lack of the legislation and authorities on the archipelago in connection with that Spitsbergen since 1872 had the status of ”the territory for common use withdrawn from the sphere of spreading of the state sovereignty”2. During the international conferences past in Oslo in 1910-1914 and devoted to giving of regulated character to regime of Spitsbergen, the question on the maintenance of the right on land – the property right or the right of use – had disputable character. Under the Parisian treaty of 1920 this question is solved according to article 7 within the framework of the treatment of acquisition of the right of ownership of property specified in this article. The treaty about Spitsbergen provides, that nationals of countries- participants of this agreement, including the persons which occupied land before the signature of the Parisian treaty and acquired the mineral rights according to norms of the international custom, acquired the right of ownership on landed properties, including mineral rights, on the basis of article 7. Article 6 of the Parisian treaty says: ”Subject to the provisions of the present Article, acquired rights of nationals of the High Contracting Parties shall be 2 R.V.Dekanozov ”International legal position of Spitsbergen”, Sverdlovsk, the Dissertation on competition of a scientific degree of the candidate of jurisprudence, 1966, p. 139. 3 recognised. Claims arising from taking possession or from occupation of land before the signature of the present Treaty, shall be dealt with in accordance with the Annex hereto, which will have the same force and effect, as the present Treaty”3. In the basis of this article lays the theory of ”acquired rights” having many supporters in Great Britain, France and USA, that is just in those countries which have participated active in development of the treaty about Spitsbergen. According to this theory an individual or an organization acquire subjective rights according to effective rules of law. ”After that... the state cannot declare such actions illegal any more and cancel the acquired subjective rights. As such rights have arisen, i.e. have been acquired by individuals or organizations, they should be protected within the framework of legal system of other country. The subsequent changes which have come in legal system of their înative landî, have no value for other legal system. It should protect them in that form in what they have arisen”4. Consequent realization of principles of the named theory within the framework of regime of Spitsbergen means a recognition of the acquired rights and their protection by the Norwegian state in that form in what they have arisen. And it, in turn, does necessary to have a clear idea about what represented the acquired rights belonging to private persons and companies, which occupied land according to norms of the international common law before carrying of the treaty into effect.5 Thus it is necessary to take into account, that understanding about recognition of the rights of private persons and companies within the framework of regime of Spitsbergen represents the certain complexity, and in the scientific literature in general there are no researches on this question. The treaty provides a recognition of the acquired rights according to article 6 and their transformation in the framework of a treaty regime of Spitsbergen by 3 ”St. prp. nr. 36 (1924)...”, s.32-33. 4 A.A.Rubanov ”Theoretical bases of the international interaction of national legal systems”, Moscow, ”Science”, 1984, p. 109-110. 5 The question on what the acquired rights of the persons which have occupied land before carrying of the treaty about Spitsbergen into effect represent, in the compressed form is considered above. The rights acquired according to norms of the international common law had not only private persons and the companies which have occupied land before the signature of the treaty about Spitsbergen, but also the Dutch company ”Nespiko” which has occupied ground areas Barentsburg and Bohemanflya after the signature of the treaty, but before its carrying into effect. 4 adjustment of claims of the persons which have occupied land before the signature of the Parisian treaty, on conditions of the annex to this agreement. Provisions of article 6 could be realized only under condition of their observance by the countries which have signed the treaty of 1920. The treaty on Spitsbergen does not provide, that according to article 6 the right of ownership on the occupied land shall be acquired or recognized. The third paragraph of article 2 of the treaty about Spitsbergen contains the following direction: ”Les occupants dont les droits seront reconnus selon les termes des articles 6 et 7...” (French) – ”Occupiers of land whose rights have been recognised in accordance with the terms of Articles 6 and 7...” (English)6. In this phrase the important role plays correct understanding of the time form of a verb "to recognize".7 Verb ”to recognize” in the French text of the treaty is applied in future time in the form of a Passive Voice ”seront reconnus”, and in English – in present perfect time in the form of a Passive Voice ”have been recognised”. ”The verb in present time of group Perfect designates the action already made during the previous period till the moment of speech, but having direct connection with the present moment”8. The direction of article 2 of the treaty on Spitsbergen provides a recognition of the acquired rights belonging to persons occupied land before the signature of this treaty, according to article 6 and a recognition of the acquiring right of ownership of property, including mineral rights, for any occupier of land in the territories, specified in article 1 of the Parisian treaty, according to article 7 of this treaty. The presumption, that the persons which have occupied land before the signature of the Parisian treaty, did not acquired, and them have been only recognized the rights specified in article 7 of the treaty on Spitsbergen, is equal to the statement that Norway has undertaken to establish a treatment of acquisition of 6 ”St. prp. nr. 36 (1924)...”, s.29. 7 This question is detailed by A.M.Oreshenkov in article ”The comparative terminological analysis of some documents on Spitsbergen”, ”Moscow journal of international law”, 1996, No. 1. 8 N.A.Bonk, G.A.Koty, N.A.Lukjanova ”Textbook of English language”, Moscow, ”Dekont + - GIS”, 2000, part 1, p.572 5 the rights specified in article 7, only on that part of land territory of the archipelago which remain free after settlement of the question about the acquired rights of the persons specified in article 6 of the treaty on Spitsbergen. With regard to methods of acquisition of the right of ownership of property, including mineral rights, the Parisian treaty does not carry out any difference between persons which have occupied land before the signature of the treaty and which have the right to make the same after it’s carrying into effect.
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