Closing down opportunities for members of the authoritarian axis is not always as easy as it looks.
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The Norwegian government decided in July to block the sale of a Manhattan-sized chunk of Svalbard, its Arctic archipelago.
Given that Russia has lately been using the Norwegian territory, which used to be home to a sizeable Soviet contingent of miners and their families, as a staging ground for geopolitically flavored stunts, it’s unsurprising that the Norwegian government saw the sale as a national security risk and gave itself the right to block buyers who might pose a threat to the country.
But now legal experts argue the Norwegian government has overstepped its authority. Norway’s dilemma dramatically illustrates the dilemma every Western government now faces: how to thwart nefarious activities by hostile countries while themselves abiding by the law.
Svalbard (formerly known as Spitsbergen, the archipelago’s main island) may not seem very big or very important, located as it is in the Arctic, with few residents –only some 2,600 of them — and far from the Norwegian mainland.
But the location on the edge of the Arctic Ocean gives Svalbard strategic significance, especially now that the race for Arctic supremacy is accelerating. It is key to protecting the High North and therefore of enormous importance not only to Norway but to the whole NATO alliance (even though it enjoys demilitarized status).
Svalbard belongs to Norway and is governed by the eponymous treaty, which was signed in 1920 and was previously known as the Spitsbergen Treaty. This stipulates that Svalbard, which had long belonged to no country, is Norwegian territory — but that it be demilitarized and that all signatory nations (which include not just Norway, Sweden, and Russia but a whole range of countries that today include China, Saudi Arabia, and the two Koreas) have access to it.
Even as various Russian notables have conducted provocative trips to Svalbard, and even as Russia and China have intensified their Arctic collaboration, Norway has diligently stuck to its obligations.
Then, in June, AS Kulspids went on sale. The little-known firm owns Svalbard’s private land, and that’s a whole lot of territory: “14,830 acres of pristine Arctic land located inside a fjord. A unique opportunity to acquire the company holding the last remaining privately owned land on Svalbard with significant environmental, scientific and economic importance,” the advertisement, by a London real-estate agency, reads.
That’s larger than Manhattan, and under the Svalbard Treaty’s rules, anyone from a signatory state (or indeed the signatory states themselves) has the right to buy it. With bids for the plot starting at €300m ($327m), the buyer of the uninhabited land will need to be extremely well-resourced.
“Although environmental laws likely will hinder mining activity at the property now up for sale, businesses like a satellite station might be built,” reports the Barents Observer, the must-read source for news on the High North.
Under such circumstances, it’s hardly surprising that Norway’s government decided to take action. On July 1, it announced that the sale of the plot would require government approval under Norway’s National Security Act.
The “owners . . . have expressed for a long time that they want to sell the property or the company and that they are open to selling to actors who can challenge Norwegian legislation on Svalbard. It could disrupt stability in the area, and potentially threaten Norwegian interests,” Trade and Industry Minister Cecilie Myrseth said in a statement.
There’s a complication, alas: the rule of law. Given Svalbard Treaty’s rules, it is legally questionable for the Norwegian government to give itself the right to block prospective buyers it doesn’t like. The Barents Observer reports that Norwegian legal scholars argue the government has overstepped its authority. “It is concerning that the authorities are now disregarding the limitations on Norwegian governmental authority in Svalbard,” Mads Andenæs, Professor of Law at the University of Oslo, told the news website.
This isn’t just about a northern archipelago. Other Western governments now face very similar dilemmas.
While our rivals and adversaries blatantly violate laws and treaties, our governments are bound by the rule of law. If the prospective buyer of the Manhattan-sized chunk of Svalbard turns out to be, say, a shady Chinese entity with no obvious need for land in the Arctic, what should the Norwegian government do?
Give itself the right to block the sale, as it has planned, or follow a permissive interpretation of the Svalbard Treaty?
There is no clear answer. What is clear, though, is that hostile states exploit our adherence to the rule of law. Imagine if a Western company tried to buy strategic territory in Russia or China on the open market and the two countries’ governments felt bound to accept the deal.
At the very least, every Western country needs a national conversation about the different shades in which today’s national security threats come.
Who knows? Perhaps that conversation would encourage the Svalbard landowners to reconsider their own responsibility for national security.
Elisabeth Braw is a Senior Fellow at the Atlantic Council and the author of the award-winning ‘Goodbye Globalization.’
Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.
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