What does the 1920 Svalbard Treaty say about North Korea today?
North Korea's signature of a century-old treaty granting legal rights in an Arctic archipelago is a striking diplomatic move for an isolated State increasingly at odds with the global community.
After signing in January the 1920 Treaty Concerning the Archipelago of Spitsbergen ('Svalbard Treaty')—which placed the world's northernmost permanent civilian settlement under Norwegian sovereignty while granting equal fishing, hunting, industrial, maritime, and mining rights to nationals of all Contracting Parties—North Korea's official news agency observed that the move provided the State with "an international legal guarantee for conducting economic activities and scientific researches in the Svalbard Islands".
Although sources in some Contracting Parties (such as the Russian Geographical Society) have reiterated verbatim this interpretation of the DPRK's treaty rights, the Norwegian Foreign Ministry has rejected the notion that the Svalbard Treaty regulates research. The Ministry's statement has been translated to declare that "the ratification of the treaty gives no such exclusive rights" without the consent of Norwegian authorities. According to the Ministry's statement, the Contracting Parties have not yet received official notice of North Korea's accession from the French government, which Article 10 of the Treaty designates as the depositary for ratifications.
A frosty welcome
While it is thus uncertain at this stage whether North Korea has duly submitted its instrument of accession, calls to expel the State from the Treaty have already arisen following its most recent long-range missile launch.
Such calls may be not only premature, but also misguided. According to the Vienna Convention on the Law of Treaties, which reflects customary international law, Contracting Parties may suspend the operation of a treaty as between themselves and a defaulting State only through unanimous vote. It is difficult to envisage China (which succeeded the exiled Republic of China's membership in the Svalbard Treaty) consenting to its peninsular ally's treaty expulsion. Under Article 60 of the Vienna Convention, such expulsion would also require that the rocket launch had violated "a provision essential to the accomplishment of the object or purpose of the treaty".
This would be a difficult needle to thread in a treaty concerning the peaceful use of a far-removed territory, and whose primary obligation—the recognition of Norway's sovereignty over the islands—has long since been implicitly accepted by all States, regardless of membership in the Svalbard Treaty. The Treaty itself does not include any express terms which would alter this analysis, nor does it provide in its Annex for binding dispute resolution of any issues other than "claims to land which had been made to any Government before the signature of the present Treaty".
Several possible motives
North Korea's prospective entry as the 42nd Contracting Party to the Svalbard Treaty would open a new theatre in its relationship with South Korea, which acceded to the treaty in 2012 and which has since published its first governmental Arctic policy overview. Following South Korea to the poles is not new for the DPRK: it acceded to the Antarctic Treaty in 1987, two months after its neighbour.
The North's official statement regarding its signature of the Svalbard Treaty refers to the archipelago's rich mineral wealth and fish stocks, suggesting other potential reasons for accession. The unique status of Svalbard under the Treaty may confirm the strategic value of its natural resources to North Korea at a time of extensive economic sanctions through UN, EU, and State laws.
Perhaps no Contracting Party to the Svalbard Treaty has made greater use of its resource exploitation rights than Russia, which since early Soviet days has supported the coal town of Barentsburg (pop. 471) through a State-owned mining company and the world's northernmost diplomatic mission. Although global fuel and commodity prices have reduced the viability of Russian mining in Svalbard, a robust North Korean operation could help to support the State's energy consumption. While North Korea does not currently possess an Arctic icebreaker, increased access to the Northern Sea Route due to climate change could improve the feasibility of such efforts.
North Korea may also seek to protect its vulnerable food supply through streamlined access to the Svalbard Global Seed Vault. The DPRK is one of several States which have stored thousands of crop seeds in what has been called "the world's most important room". The Crop Trust, a Bonn-based international organisation which oversees the Vault, currently supports maize and rice preservation projects in conjunction with the Pyongyang Crop Genetic Resources Institute.
The high stakes of a few words
Although a North Korean outpost in Svalbard could alleviate the State's food shortage by increasing access to rich fisheries, the extent of this access is a legally thorny issue. Norway interprets the Svalbard Treaty as providing equal rights to resources on land and within Svalbard's territorial sea. Some Contracting Parties to the Svalbard Treaty, however, have argued that the Treaty provides equal exploitation rights to fisheries and mineral resources in the islands' broader 'exclusive economic zone' and subjacent continental shelf, which extend 200 nautical miles from shore under current customary international law (as reflected in the 1982 UN Convention on the Law of the Sea), and which would otherwise rest solely with Norway as sovereign of the archipelago.
Article 2 of the Svalbard Treaty states that "[s]hips and nationals of all the High Contracting Parties shall enjoy equally the rights of fishing and hunting in the territories [...] and in their territorial waters". While the customary reach of a territorial sea has expanded from three to twelve nautical miles since the Treaty was drafted, the 'exclusive economic zone' is a distinct and fundamentally modern concept whose customary status was denied by the International Court of Justice (ICJ) as late as 1974 (when the UK defeated Iceland's extensive fisheries regulations).
Therefore, Contracting Parties to the Svalbard Treaty who wish to fish or conduct drilling in this region without Oslo's consent must rely on an evolutionary interpretation of the treaty—in other words, that it implicitly governs concepts which did not exist at the time it was drafted. Should North Korea join Russia in taking this view, it may find analogical support in the Aegean Sea dispute between Greece and Turkey, in which the ICJ construed the term 'territorial' in a 1928 treaty as encompassing the current legal extent of the continental shelf.
Norway on the defensive
Distinct from the issue of the Svalbard Treaty's outward reach is that of its upward reach. While Article 9 of the Treaty forbids construction activity "for warlike purposes", critics such as military-intelligence journalist Bård Wormdal have questioned whether Norway has breached the treaty by operating a satellite receiving station in Svalbard that received spy satellite data for use in military operations in Iraq and Afghanistan.
For North Korea, the most pressing challenge in interpreting this dusty treaty may be the scope of Norway's authority to govern Svalbard's borders. Oslo enacted transit regulations in 2015 in response to a surprise visit to Barentsburg by Dimitry Rogozin, Russia's commissioner for Arctic issues and the subject of travel bans due to his suspected role as a power player in the Crimean annexation. In turn, Moscow has argued that the travel ban violates the spirit of the Svalbard Treaty. As officials linked to North Korea's nuclear programme have received similar sanctions, the DPRK may be expected to adopt Russia's position in the hopes of closely monitoring any mining it undertakes in Svalbard.
While North Korea's prospective accession to the Treaty has managed to spark both sober reflection on the rapid growth of Arctic strategic interests and tabloid chatter over a pending invasion of Europe, the heavily sanctioned nation faces significant logistical hurdles in achieving even benign objectives in Svalbard. Nevertheless, the State's accession may incentivise Russia to financially support a North Korean settlement, providing an eager ally in any Russian efforts to bend the Treaty's ambiguities toward its own legal interpretations. Despite the suspicion attending its every move, North Korea's accession to the Svalbard Treaty may recall that belligerence and rhetoric do not preclude its basic diplomatic capacities as a State: not only its longstanding call for a peace treaty with the US, but also more creative efforts to prosper.
- On treaty expulsion, see Jan Klabbers & Asa Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward Elgar 2011); Lea Brilmayer & Isaias Yemane Tesfalidet, 'Treaty Denunciation and 'Withdrawal' from Customary International Law: An Erroneous Analogy with Dangerous Consequences', Yale Law Journal, vol. 120 (2011).
- On the legal status of waters surrounding Svalbard, see David H. Anderson, 'Politics and Law—Energy and Environment in the Far North', Norwegian Academy of Science and Letters [Symposium], 24 January 2007; Sarah Wolf, 'Svalbard's Maritime Zones, their Status under International Law and Current and Future Disputes', SWP Berlin, Scenarios Working Paper FG 2, 2013/Nr. 02, January 2013.
- On evolutionary treaty interpretation, see Anthony D'Amato, 'International Law, Intertemporal Problems', Max Planck Encyclopedia of Public International Law (1992); Eirik Bjorge, The Evolutionary Interpretation of Treaties (Oxford University Press 2014).