Article Title

A Unique International Problem’: The Svalbard Treaty, Equal Enjoyment, and Terra Nullius: Lessons of Territorial Temptation from History

Publication Title

Washington University Global Studies Law Review


The 1920 Svalbard Treaty conferred full and absolute sovereignty on Norway but paradoxically limited that sovereignty by conferring on states party to the treaty equal enjoyment and liberty of access provisions on Svalbard and in its territorial waters. Whether these provisions now extend to geographic areas adjacent to Svalbard’s territorial sea—specifically to Svalbard’s oil-rich continental shelf and abundant fishing stock of the superjacent waters of its Exclusive Economic Zone (EEZ)—is a matter of considerable debate. Norway repudiates the dynamic legal extension of the Svalbard Treaty to these geographic areas, which post-date the treaty; other Arctic stakeholders, notably Russia, disagree. This Article concentrates on the problematic meaning of full and absolute yet qualified sovereignty within the context of the Svalbard Treaty. Focusing on the factual and historical circumstances, or effectivités pertaining to the archipelago’s 400 year human history are of essential but limited use given competing historical narratives. Instead, this Article concentrates on the historical and legal development of the concept of terra nullius, a term more elusive than commonly thought, and the ways in which states historically made use of that concept to forward territorializing interests over Svalbard’s newly emerging resources, even when pronouncing or professing interest in shared or condominium-like resource management arrangements. In an age of rapid ice melt in the cryosphere, accompanied by emergent technology and increasing access to previously unavailable or uncontemplated resources, Svalbard’s extended geographical area challenges global governance regimes and presents a cautionary tale about territorial temptation in the High Arctic’s diminishing global commons.