We recently discussed the Norwegian government’s (Norway) decision to halt the purchase and sale of Søre Fagerfjord, a 60-square-kilometre private tract of land in the pristine wilderness of the Svalbard Islands, by Chinese investors due to strategic national security concerns.
We also examined how an ‘old’ treaty like the Svalbard Treaty is struggling to keep pace with modern geopolitical realities. The interests at stake today are indeed significantly different from those that existed when it was originally drafted, and the legal framework provided by this document of fundamental importance for international relations in this sensitive Arctic region is in danger of becoming obsolete.
In an unexpected turn of events, however, the issue has resurfaced. Various legal experts, including several well-known Norwegian university professors, have now spoken out against the government’s decision to stop the sale of the land, deeming it unlawful under the terms of the infamous treaty.
Norway, as a sovereign nation, felt it had the right to prevent the sale of Søre Fagerfjord to foreign entities, despite various sources arguing its apparent strategic and economic insignificance. The government’s concern stemmed from the possibility that this remote Arctic region might, in the future – perhaps decades or even more from now – acquire an importance yet unimaginable.
However, legal experts and law professors from the University of Oslo, including prominent figures such as Mads Andenæs and Geir Ulfstein, among the world’s most renowned authorities of the Svalbard Treaty, have challenged this decision. They argue that the government’s action violates the Svalbard Treaty, particularly Article 7, which guarantees equal rights to acquire property for all signatories. We quote it below:
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.
The issue at hand is indeed fascinating, as it involves a sovereign state potentially restricting freedoms explicitly recognised in an international treaty, citing national security concerns. This situation could potentially escalate to the International Court of Justice in The Hague, which hasn’t been consulted on Svalbard Treaty issues since 1993. Legal experts suggest that such a development would pose significant challenges for the Norwegian government.
The Norwegian government, however, maintains that its decision does not violate the Treaty, arguing that it’s merely a matter of interpretation. Fredrik Sejersted, the Attorney General of the Kingdom of Norway, who was involved in the case as a legal representative for the Ministry of Trade and Industry, summoned by Minister Myrseth, asserts that the decision falls within the treaty’s boundaries. He insists that Article 7 does not specifically regulate this case, where the government imposes restrictions on a sale of land and its current owners, requiring them to notify
and obtain formal approval before selling.
The issue is complex and is becoming more and more significant. According to statements by other actors involved in the case, if it eventually goes to the International Court of Justice and the Court finds in favour of the owners rather than the Norwegian government, this could have serious repercussions that are now ‘difficult to predict’ on regional stability.
The treaty signatories with whom Norway has no direct relationship in terms of cooperation could be the first to question Norway’s governance of the Archipelago. They might use a possible ICJ decision unfavourable to Norway as a precedent to prove its bad faith, potentially going so far as to question its sovereignty.
Tommaso Bontempi
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