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
Also read the publication:
Consequences of Arctic Thawing
