Russian Ship Arrested on Svalbard: "The Svalbard Treaty Does Not Grant Immunity"

The arrest of the Russian vessel "Professor Molchanov" in Barentsburg, Svalbard, has prompted strong reactions from Russia. 

Among other things, Norway's ambassador to Moscow has been summoned, while Russia's embassy in Norway has described the arrest as "a politically motivated violation of international law."

Trust Arktikugol, Russia's company in Svalbard, believes the arrest may constitute a breach of Article 3 of the Svalbard Treaty and is considering appealing to the court, the company's Norwegian lawyer Arnt Angell told Svalbardposten.

Article 3 guarantees citizens of all countries that have signed the Svalbard Treaty equal rights of access to and stay in the territorial waters, fjords and ports, regardless of reason or purpose.

"They shall there be permitted to carry on without impediment all kinds of maritime, industrial, mining and commercial operations on a footing of absolute equality, subject to the observance of local laws and regulations," the treaty states. 

"Does not override Norwegian law"

High North News has spoken to several researchers who point out that the Svalbard Treaty does not override Norwegian law. 

"Norway has sovereignty over Svalbard. Svalbard is subject to Norwegian law. It is not the case that the Svalbard Treaty takes precedence over or overrides Norwegian law, and when Norway has implemented a ruling from the international court in The Hague, it must also be complied with there."

This is emphasised to HNN by Andreas Østhagen, Research Director for Arctic and Ocean Politics, at the Fridtjof Nansen Institute in Norway. 

The ruling referred to by Østhagen is the judgement of an arbitration tribunal in The Hague, which ordered Russia to pay USD 4.2 billion in compensation to the Ukrainian state-owned energy company Naftogaz for assets expropriated by Russia in 2014. 

The arbitral award had previously been recognised as enforceable in Norway.

"This is another important step towards restoring justice for Russia’s unlawful seizure of Naftogaz assets in Crimea. Russia cannot evade responsibility simply by refusing to comply with an international arbitral award," says Naftogaz Acting CEO Sergii Fedorenko in a previous press release.

"We will continue to pursue Russian assets around the world until the compensation awarded to Naftogaz and other Naftogaz Group companies is paid," he added. 

Equal treatment, not immunity 

Øystein Jensen, Research Professor, at the Fridtjof Nansen Institute, is also clear that Article 3 in itself does not provide immunity from ordinary law enforcement.

"The treaty protects equal treatment; it does not establish a general legal sanctuary for assets belonging to a state. Thus, Article 3 gives Russia the right to equal treatment, not the right to special treatment or immunity from Norwegian law enforcement," Jensen emphasises. 

"Therefore, the Svalbard Treaty, including its Article 3, is an additional argument rather than the actual focal point of the case," he adds.

"Russia/Arktikugol may argue that the arrest interferes with equal access to maritime and commercial activities. However, in practice, they would then have to demonstrate that Russia or Russian actors are treated less favourably than other treaty parties."

Not about Svalbard

The researchers Østhagen and Jensen further make it clear that the case is, in principle, neither about the Svalbard Treaty nor Svalbard. 

"Overall, in my view, this is primarily a case concerning enforcement and state immunity, not a Svalbard Treaty case, although Svalbard as the venue makes it politically highly sensitive," says Jensen.

He believes that state immunity will become a central legal issue if Russia takes the matter further, and says that the factual question of what the vessel is used for may be of great significance in the case.

"The case also illustrates a broader point about the enforcement of international law: Even though there is no international ‘world police force’, a state that fails to comply with international decisions may face very concrete consequences when state-owned assets are located within the jurisdiction of other states," says Jensen. 

"Not a party"

The Russian vessel "Professor Molchanov" is docked in Barentsburg, where it was arrested last week. 

The Governor of Svalbard arrested the vessel following an order from the Nord-Troms and Senja District Court, acting in a role equivalent to that of a bailiff on the Norwegian mainland. 

"It is important to emphasise that this is a civil dispute to which neither the Norwegian state nor the Governor of Svalbard is a party," Governor of Svalbard Lars Fause told High North News.

"This is a case between Naftogaz and Russia. Norway is not a party to the case and was not aware of it until after the decision to arrest the vessel had been made," Communications Adviser Andreas Bondevik at the Ministry of Justice and Public Security also told Aftenposten. 

The core of the conflict

In the broader picture, Østhagen at the Fridtjof Nansen Institute points out that one should keep in mind that Russia sees itself as being in an indirect war with the West.

"Everything we do is interpreted as an attack on Russia. And here, there is also the matter of directly taking over Russian state assets, a vessel, which has not, in principle, done anything wrong. It is therefore understandable that Russia reacts, because it believes that it is our support for Ukraine and this Ukrainian company, Naftogaz, that is the problem," he says, continuing:

"The core of the conflict here is that Russia has invaded another country, and subsequently refuses to take responsibility for both that action and its consequences. This is not really about Svalbard. But Svalbard provides a context that could cause the case to escalate further. The question is how far Russia will take this."

The Russian Embassy in Norway writes on its Facebook page that lawyers representing the Russian side have begun preparing the corresponding appeal to the Norwegian court.

High North News has been in contact with the Nord-Troms and Senja District Court, which stated on Tuesday afternoon that no request for a subsequent oral proceedings in the case had been received.