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Paper read at the Symposium on “Politics and Law – Energy and Environment in the Far North,” held at the Norwegian Academy of Science and Letters on 24 January 2007 The Status under International Law of the Maritime Areas around Svalbard D. H. Anderson My subject is the status of the maritime areas in the High North, and the interpretation of the Spitsbergen Treaty of 1920 after 87 Years. The subject has been a source of controversy since 1970: how to interpret and apply the Spitsbergen Treaty in the light of the developments in the law of the sea? My views differ in some respects from those previously set out by Norwegian Government. As a guest here, I will try to explain my thinking and to do so in diplomatic terms. In 1900, the archipelago was terra nullius and uncertainties arose, e.g. over coal mining. Under international law, sovereignty over terra nullius is normally acquired by means of peaceful occupation and administration. Norway’s sovereignty was acquired in a different way. Sovereignty was conferred on Norway by a collective decision of a number of states. This decision was cast in the form of a Treaty. According to the British White Paper, the title of the instrument was “Treaty concerning the Status of Spitsbergen and conferring the Sovereignty on Norway.”1 The Treaty did two things: it defined and regulated a new status for the archipelago and it conferred sovereignty on Norway. The Treaty opened the way for Norway to assume administration and ended the previous uncertainties when it entered into force This paper contains personal opinions that do not engage any institution with which the writer was previously associated. 1 UK Treaty Series No. 18 (1924), Cmd. 2092. This title may have reflected the British Government’s attitude towards the Treaty at the time. The title of the instrument in the League of Nations Treaty Series is simply “Treaty concerning the Archipelago of Spitsbergen.” (2 LNTS 7). 1 in 1925, but subsequent developments have given rise to the new questions that are under examination today.2 I will begin by looking briefly at the main terms of the Treaty. The intentions of the parties are often set out in the preamble. According to the preamble to the Treaty, the negotiating states were- “Desirous, while recognising the sovereignty of Norway over the Archipelago of Spitsbergen, including Bear Island, of seeing these territories provided with an equitable regime, in order to assure their development and peaceful utilisation.” Norway’s sovereignty over the territories (the French text uses “région”) went hand in hand with a special regime (“un régime équitable propre à en assurer la mise en valeur et l’utilisation pacifique”) for them. This “regime”3 made Svalbard distinct from the remainder of Norway. It was to be distinct in several important respects, including economic and administrative matters. The regime was to be “equitable” (a slightly puzzling word here; I will revert). The regime was aimed at ensuring the development and the peaceful utilisation of Spitsbergen. The Treaty has 10 numbered articles and some unnumbered final clauses. According to article 1, the states parties undertook to recognize Norway’s sovereignty over the territories. This recognition was “subject to the stipulations of the present Treaty.” Sovereignty was to be “full and absolute” (“pleine et entière”) and in the same breath it was to be “subject to” some “stipulations” of a far-reaching character. Contrary to some suggestions, the Treaty did not adopt the format of laying down a rule of 2 In simple terms, Norway considers that the Treaty of Paris applies to the land and the territorial sea; some of the other states parties consider it also applies to the fisheries zone and continental shelf. 3 “Regime” is a strong term, meaning a system of government. The regime, as laid down by the Treaty, has international elements, although no mechanism for review by the states parties of its operation was provided. 2 sovereignty to which exceptions were made. Norway’s sovereignty and the stipulations are both provided for in the same sentence. Following the lines of the French text, the parties recognised Norway’s sovereignty under the conditions (“dans les conditions”) stipulated in the treaty. The wording of article 1 reads like a carefully constructed diplomatic formula, constituting a “package deal.” The other parties abandoned their own potential claims to sovereignty. They also gave up the position that the territories were terra nullius surrounded by high seas where the freedoms of the seas applied. In exchange, they acquired the benefit of the regime, including notably rights of access for their nationals. The British policy in 1920 was to preserve as much as possible of the status of terra nullius, consistent with Norway’s new role as sovereign. Norway gained sovereignty but it was subject to the stipulations of the Treaty, notably the terms of articles 2 to 9. Sovereignty was full and absolute in the sense that any question that was not regulated in the treaty, such as extradition, was to be covered by Norway’s sovereignty. At the same time, those questions that were addressed in the Treaty were to be regulated in accordance with those stipulations, and not by the application of the rule of sovereignty. This was the “equitable regime” mentioned in the preamble: each party gave something and received something in return, making for a fair and balanced result. It was equitable as between Norway and the other parties. According to articles 2 and 3, rights of access were retained, both to the territories and to their territorial waters, for nationals of the contracting parties. These rights related to the resources in and around the territories and their waters. Access before 1920 had been enjoyed on the basis that the territories were terra nullius, the whole of 3 the surrounding waters being high seas. A good measure of access would continue under articles 2 and 3 as rights under a treaty, and subject to its terms and conditions. By the second paragraph of article 2, Norway was entitled to decree suitable measures for the conservation and management of the fauna and flora and to apply them on a non-discriminatory basis. As regards non-living resources, article 8 obliged the Norwegian authorities to provide mining regulations for the territories and to communicate a draft to the other parties before the Treaty’s entry into force. The draft regulations were tacitly approved by the other contracting parties without modification.4 Article 8 also limited the amounts of duties and taxes, and required them to be devoted to Svalbard – major restrictions on economic sovereignty. Article 9 imposed restrictions on naval bases and fortifications. This short summary shows that the rights and obligations differed as between Norway on the one hand and all the other Contracting parties on the other. 4 The entry into force of the Treaty was linked to the entry into force of the mining regulations. In accordance with the law of treaties, the mining regulations formed part of the total package which was the Treaty of Paris. 4 The Geographical Scope of the Treaty of Paris The parties to the Treaty of Paris are in agreement that it applies to the islands just as they were specified in 1920. However, the parties have adopted different positions regarding the question of the Treaty’s application to maritime areas around the islands. I will look at the different areas in turn. 1. Land: The Identification of the Islands The Treaty applies to the Spitsbergen archipelago, including Bear Island. The islands and rocks are identified by reference to two lines of latitude and two of longitude, forming a “box.” This was a standard method of identifying islands in old treaties, especially in colonial practice. These boxes did not have a jurisdictional purpose and they did not have wider significance in regard to the waters between the islands. The normal rules of international law applied to such waters within the box. The sides of the box do not create any sort of jurisdictional boundary. Some states in Asia and the Pacific have sought to advance claims to sovereignty or jurisdictional zones based on boxes, but these claims have not been accepted by many other states. 2. Territorial Waters A basic principle of the law of the sea is that the land dominates the sea.5 Sovereignty over the coast generates maritime rights and jurisdiction. As stated in 1909 in the Grisbadarna case,6 “Le territoire maritime est une dependence nécessaire d’un territoire terrestre” or “Maritime territory is an essential appurtenance of land territory…” Sovereignty over land territory automatically extends to the territorial sea over which the coastal state also enjoys sovereignty. Accordingly, article 1 should be 5 Dictum of the ICJ in the Fisheries case 1953. 6 Grisbadarna case, Hague Court Reports (1916), p. 121, at p. 127. 5 interpreted as applying to the territorial waters even though they were not mentioned, with the result that the other parties also recognised Norway’s sovereignty over the territorial waters around each island, subject to the Treaty’s regime. Articles 2 and 3 refer explicitly to territorial waters. In 1920, Norway claimed 4 miles, measured from the low-water line along the coasts of every island and from lines across bays. The maritime waters behind the baseline had the status of internal waters. As a result, the Treaty applied to the totality of the maritime areas known to international law in 1920. In 1970, Norway prescribed the baselines around the archipelago, joining the outermost headlands and off-shore islands.7 New straight baselines were defined by a Royal Decree in 2001.

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