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. In 2003, Norway extended the breadth of the territorial sea around Svalbard from 4 to 12 miles.8 These changes were sovereign acts of Norway, implementing and benefiting from changes in the general law of the sea. The three changes increased the extent of both the internal waters and the territorial sea, converting into territorial sea areas that had previously been high seas where the freedoms of the seas applied. The Treaty of 1920 must now be interpreted as applying to the territorial sea not as it was in 1920 but rather as it is today. The term “territorial waters” in the Treaty is fluid or, as lawyers say, ambulatory. The rights of access provided for in articles 2 and 3 of the Treaty apply to the extended territorial waters.
7 Royal Decree of 25 September 1970: Limits in the Seas No. 39. 8 Act of 27 June 2003, in UN Document Law of the Sea Bulletin No. 54 (2004).
6 2. The Continental Shelf
From a geological standpoint, the Spitsbergen archipelago stands on a continental shelf. Sometime between 1945 and 1964, international law developed the legal concept of the continental shelf.9 Naturally, no mention was made in the Treaty of
1920 of a concept unknown to the statesmen of the time. Coastal states enjoy
exclusive sovereign rights and jurisdiction beyond the territorial sea over the adjacent
continental shelf for the purpose of exploring it and exploiting its natural resources –
notably gravel, oil and gas. The rights are inherent in sovereignty. The coastal state is
not required to claim sovereign rights over the continental shelf or to exercise them.
Such rights arise automatically by operation of international law. Whenever they
arise, they extinguish other states’ rights to take resources as part of the freedom of
the high seas. In the words of the ICJ, these rights “exist ipso facto and ab initio, by
virtue of sovereignty over the land, and an extension of it …”10 In the same case, the
Court said “The continental shelf is, by definition, an area physically extending the
territory of most coastal states into a species of platform.”11 In a later case involving
Greece, the Court stated that “…continental shelf rights are legally both an emanation from and an automatic adjunct of territorial sovereignty of the coastal State.” In another passage, the Court stated that “The territorial regime…of a coastal State comprises ipso jure the rights of exploration and exploitation over the continental shelf to which it is entitled under international law.” The Court found that a dispute about the continental shelf related to “the territorial status of Greece” within the
9 The Truman Proclamation was issued in 1945 and the Convention on the Continental Shelf entered into force in 1964. 10 North Sea Continental Shelf cases, ICJ Reports 1969, p. 3, at p. 22 (paragraph 19). 11 Loc. cit. p.51, paragraph 95.
7 meaning of a formal treaty declaration made by Greece.12 In other words, the continental shelf was assimilated to territory in this context.
It has been argued that the continental shelf all around Svalbard is a natural prolongation of the Norwegian mainland and that Svalbard does not have a continental shelf. With respect, I find this a rather problematic argument. The islands are large - bigger than some independent states – and they are all more than 200 miles from the mainland. The islands have their own natural prolongation. They also have their own regime – one that applies to the exploitation of natural resources. When it comes to establishing maritime boundaries, the first step in the normal process followed by both negotiators and international courts is to identify the basepoints on the headlands and outermost islands of the two sides from which to construct a provisional equidistance line. In the case of the Spitsbergen archipelago, these basepoints lie not on the Norwegian mainland but rather on or off the western coasts of West Spitsbergen towards Greenland and on the eastern coasts of Hopen, Kong
Karls Land and Kvitoya towards the nearest basepoints in Russia. The boundary
Agreement of 20 February 2006 between Denmark (Greenland) and Norway
(Svalbard) appears to be based on the method of equidistance between the nearest basepoints in Greenland and Svalbard.
In accordance with article 76 of the UN Convention on the Law of the Sea, claims to the continental shelf beyond 200 miles became legitimate in principle, subject to two conditions: first, the submission to the Commission on the Limits of the Continental
Shelf of scientific data about the natural prolongation in areas beyond 200 miles, and
12 Aegean Sea Continental Shelf case, ICJ Reports 1978, p. 3, at p. 36 (paragraph 86).
8 secondly the sharing of revenue from this outer continental shelf through the
International Seabed Authority according to a formula in the LOS Convention.
Norway has recently made a submission, including a claim to an area in the Western
Nansen Basin more than 200 miles from the basepoints on the north coast of North
East Island in the Spitsbergen archipelago.13 The recent practice in agreeing the
boundary with Greenland and in submitting this claim are consistent with the
proposition that the archipelago does have a continental shelf separate from that of the
mainland.
It has also been argued that Norway cannot negotiate with Norway for a maritime
boundary between the continental mainland and the Svalbard archipelago. This too I
find unpersuasive. Several other states (especially federal states) have the same
problem. They have overcome it by administrative means, usually (but not invariably)
by applying the rules of international law by analogy. An example is provided by
Canada which has divided the continental shelf between its coastal Provinces. Also,
an arbitral tribunal between Newfoundland and Nova Scotia applied the rules of
international law by analogy. The UK has also established maritime boundaries between Anguilla and the British Virgin Islands, between Guernsey and Jersey, and between the Isle of Man, England and Scotland.14 As we shall see shortly, Norway
has defined a fisheries zone around the archipelago in which the regime is very
different from that applying in the zone around the mainland. Perhaps something
analogous could be done for the continental shelf?
13 Executive Summary, section 7.2 (available on the DOALOS/CLCS website). 14 These latter boundaries include older examples ( S.I. 1987/2197 and S.I. 1987/2198) where the rules of international law were not applied by way of analogy.
9 3. The Fisheries Zone and the Exclusive Economic Zone
The concept of the fisheries zone beyond the territorial sea over which the coastal
state is entitled to exercise a measure of jurisdiction in order to manage and conserve
stocks became part of international law on the basis of state practice in the mid-
1970s.15 Norway as sovereign has created the Fisheries Protection Zone, a type of fisheries zone, in the waters around the archipelago. This zone extends to a maximum of 200 nautical miles from Svalbard’s baselines and has defined limits. It is distinct from the Norwegian Exclusive Economic Zone (EEZ) which extends to the full 200 nm to the north of the North Cape towards Bear Island. The concept of the EEZ, extending to a maximum of 200 miles, in which the coastal state enjoys sovereign rights and jurisdiction over both living and non-living resources, became part of international law on the basis of state practice around 1977.
Once again, the negotiators of 1920 could not possibly foresee these major developments in the law of the sea that have come about during the latter part of the
20th Century. Different views have been advanced regarding the status of the maritime areas around Svalbard. Do the provisions of the Treaty apply to the continental shelf and the fisheries protection zone around the archipelago? In particular, do articles 1, 2, 3, 7 and 8 apply?
15 This was confirmed by the ICJ’s decision of 1974 in the Fisheries Jurisdiction cases brought by the UK and Germany against Iceland: ICJ Reports 1974, p.3, at p. 23, paragraph 52 (UK). Fisheries zones still exist even though the term does not appear in the UN Convention on the Law of the Sea: they are similar in some ways to EEZs but involve less extensive coastal state jurisdiction.
10 The Interpretation of Treaties, especially old treaties
Treaties are important documents that are carefully drafted by states-men and -
women, often with the active participation of lawyers! There are some general
principles or rules governing the process of interpreting all treaties, old or new. The
task of the interpreter was described in McNair’s Law of Treaties16 as being to give effect “to the expressed intention of the parties, that is, their intention as expressed in the words used by them in the light of the surrounding circumstances.” According to the Vienna Convention on the Law of Treaties of 1969, treaties have to be interpreted in good faith by giving the ordinary meaning of the words used in their context and in the light of the treaty’s object and purpose. The emphasis is upon the actual words used, in the original languages of the signed version. If, as in this case, there are two
17 languages, they are presumed to carry the same meaning.
In the fourth part of a White Paper about Svalbard, the Norwegian Ministry of Justice
included the following:
“It is an accepted principle of international law relating to treaty interpretation that any significant restriction of sovereignty over land territory must be clearly based on a treaty. Such provisions are to be interpreted on the basis of their natural linguistic meaning. In case of doubt, the interpretation that entails the least restriction of the exercise of authority is to be adopted. Article 1 of the Treaty grants Norway the full and absolute sovereignty over the archipelago, and the Treaty does not provide for any general restriction of Norway’s sovereignty. Therefore, unless otherwise specifically provided in the Treaty, Norway has complete
16 A.D.McNair, Law of Treaties 1961. 17 The context is made up of the articles, the preamble and annexes, and any document made by a party in connexion with the conclusion of a treaty and accepted by the others as an instrument related to the treaty. It is also appropriate to take account of any subsequent practice which shows an agreed interpretation, as well as any relevant rules of international law applicable in the relations between the parties. If the application of these principles still leaves doubts about the true meaning of a particular treaty, recourse may be had to the circumstances of its conclusion or the records of the Conference that did the preparatory work.
11 jurisdiction in accordance with the general rules of public international law.”18
With respect, this statement is not without some controversy. Let me explain, on the
basis of doctrine, case-law, and Conventional law:-
1. The rule of “least restriction on sovereignty” was rejected by Lord McNair, who
wrote:
“It is difficult to defend the rule on a basis of logic. Every treaty obligation limits the sovereign powers of a State. With rare exceptions, a treaty imposes obligations on both parties; ... if a so-called rule of interpretation is applied to restrict the obligation of one party ... it reduces the reciprocal benefit ... due to the other party... which seems to me absurd.” 19
2. In the Lac Lanoux arbitration in 1957, the Tribunal stated: “[i]t has been contended …that (certain) modifications should be strictly construed because they are in derogation from sovereignty. The tribunal could not recognise such an absolute rule of construction.”
3. The principle does not appear in the Vienna Convention on the Law of Treaties of
1969.
4. In the “Iron Rhine” arbitration of 2005, the tribunal noted that fact and added:
“The object and purpose of a treaty, taken together with the intentions of the parties, are the prevailing elements for interpretation. Indeed, it has been noted in the literature that a too rigorous application of the principle of restrictive interpretation might be inconsistent with the primary purpose of the treaty (see Jennings and Watts, Oppenheim’s International Law, 9th edition (1992) at p. 1279).”
In interpreting a treaty of 1839, the tribunal found that its task was to determine
Belgium’s rights and the Netherlands’ obligations-
“not by invocation of the principle of restrictive interpretation but rather by examining – using normal rules of interpretation identified in articles 31 and 32 of the Vienna Convention – exactly what rights have been afforded to Belgium.”20
These four points show that doctrine, recent case-law and Conventional law consistently run counter to the White Paper’s legal argument. The approach to
18 Available on http://odin.dep.no/jd/english/doc/white_paper/012001-040007/hov004-bu.html (visited 24 October 2006). 19 A. D. McNair, Law of Treaties 1961, Appendix A, p.765. 20 The decision has been posted on the website of the Permanent Court of Arbitration.
12 interpretation is now based on the principles of the Vienna Convention, even if the treaty under consideration was concluded before 1969. According to this approach, the task is to identify the rights and obligations of Norway and those of the other parties by interpreting the words used in their context and in the light of the object and purpose of the treaty, or (to borrow Lord McNair’s formula) by giving effect to the intention of the parties “as expressed in the words used by them in the light of the surrounding circumstances.”
13 Conclusions
First, the rights and obligations of the parties should be ascertained by examining the terms of the Treaty, using the normal rules of interpretation indicated in leading scholarly works, some recent decisions by courts and tribunals, the Vienna
Convention on the Law of Treaties of 1969 and the practice of states in applying the
Vienna Convention.
Secondly, all the maritime spaces around the archipelago - territorial sea, fisheries protection zone and continental shelf - are legally distinct from the comparable maritime spaces around the mainland.
Thirdly, the intention of the negotiating states in 1920 can be discerned from the terms of the Treaty they concluded. The expressed intention was to provide
Spitsbergen with an “equitable regime” in order to ensure its development and utilisation. This intention was realised by conferring full and absolute sovereignty on
Norway. However, this sovereignty was subject from its inception to some stipulations. As well as providing for measures of economic and political autonomy, the stipulations in articles 2 and 3 also converted some elements of the previous regime of terra nullius into rights under the Treaty - rights that were to be enjoyed by the nationals of the other parties. Today, Norway’s full sovereignty is the basis for the maritime rights that have arisen since 1920 by operation of international law: sovereignty over land now generates greater maritime sovereignty. The generation of these new rights had the incidental effect of extinguishing freedoms of the seas, including maritime rights of other States and their nationals in the waters concerned.
Since Norway’s territorial sovereignty over Svalbard was always subject to the
14 stipulations, logic indicates that the post-1920 maritime sovereignty should be subject to similar stipulations in so as far as they are capable of being applied to the maritime spaces in question. The “equitable regime” should retain the balance between
Norway’s full and absolute sovereignty and the stipulations in favour of the other
States Parties.
For these reasons, in my opinion, the Treaty as a whole should now be interpreted in the light of the current situation.21 In particular, articles 2, 3 7 and 8 should be interpreted as applying mutatis mutandis to the extended territorial waters, the continental shelf and the fisheries zone around the archipelago. 22 For instance,
Norway’s conservation measures for the Fisheries Protection Zone can be seen in the light of the second paragraph of article 2. To adopt a different interpretation would mean that Norway had greater rights beyond the territorial sea than within it - and even on the land. That would be a strange result: in the law of the sea, rights diminish, not increase, as one moves outwards from the coast.
The foregoing survey of the legal issues indicates that Svalbard does have a continental shelf, as well as the fisheries zone, to both of which the whole of the
Treaty of 1920 applies. Norway has the sovereign rights of the coastal state in relation to the shelf and jurisdiction over the fisheries zone, subject to the Treaty’s restrictions and conditions, including the economic rights of the other contracting parties. Other
21 The process of interpreting the Treaty as applying to these new areas is consistent with the dictum of the Grisbadarna tribunal about the nature of the territorial sea and several dicta of the International Court of Justice in the North Sea Continental Shelf cases and the Aegean Sea case concerning the nature of the continental shelf as a “territorial extension.” 22 On this interpretation, other States’ maritime rights (extinguished when Norway’s new rights arose by operation of international law) were converted into rights under the Treaty in a manner analogous to the conversion of rights carried out by the Treaty of Paris when the archipelago ceased to be terra nullius.
15 contracting parties do not have sovereign rights or jurisdiction there under the general law of the sea: instead, in my opinion, they have the right to have the equitable regime contained in the Treaty of 1920 applied to the new maritime areas which appertain to the Spitsbergen archipelago in accordance with the law of the sea.
Clearly, many practical questions may have to be discussed between Norway and the other States parties. That is beyond the scope of this paper.
The interpretation of old treaties is never an easy matter and I look forward to hearing and studying the opinions of others, including other speakers today.
25 January 2007
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