On 2 September, Norwegian authorities detained Russian state-owned research vessel Professor Molchanov at Barentsburg in Spitsbergen (Svalbard), following a lawsuit filed by Ukraine’s Naftogaz.
At first sight, the detention of the Russian research vessel appears as a routine event in Norway’s long-standing strategy to oust Russia from Spitsbergen and establish absolute sovereignty of the archipelago—free from the legal restrictions stipulated by the 1920 Spitsbergen (Svalbard) Treaty. At closer sight, it opens a loophole for expropriating Russian property on the archipelago. But more importantly, trying to accommodate the current geopolitical situation to its national legal proceedings and violating the 1920 Treaty by placing national law above international law, Norway has driven itself into a legal trap.
Article 32 of the 1982 UN Convention on the Law of the Sea (UNCLOS) states that state-owned vessels operated for non-commercial purposes enjoy sovereign immunity from foreign jurisdiction. Naftogaz, long pursuing Russian assets, claims that the research vessel’s visits to Spitsbergen had predominantly commercial purposes.
Norway portrays the incident as a purely technical matter based on national legislation. According to the Norwegian Ministry of Justice, its decision followed the 2023 ruling of the Permanent Court of Arbitration in the Hague as an enforcement of an approximately $4.22bn arbitral award from the Russian Federation to Naftogaz for its Crimean assets. The order for the enforcement of this ruling was issued by the District Court of Nord-Troms and Senja (in Tromsø, mainland Norway), and the Governor of Svalbard acted as a regular enforcer.
This seemingly flawless normative scheme falls apart when examined from the perspective of the basic principles of international law.
Norway’s sovereignty over Spitsbergen is based on the 1920 Spitsbergen Treaty—an international treaty that provides for the creation of a special international legal regime on the archipelago’s land territory and in its territorial waters. Essentially, the Treaty provides for the creation of a territorial enclave, similar to the Kaliningrad region but, unlike in the latter case, does not generate its own continental shelf and exclusive economic zone in the adjacent maritime areas.
The 1982 UN Convention assumes that a state has full sovereignty over its ports. However, under the 1920 Spitsbergen Treaty, Norway does not have such absolute rights and, accordingly, has no legal basis for applying the provisions of the Convention in the archipelago’s ports. Article 3 of the Spitsbergen Treaty states: “The nationals of all the High Contracting Parties shall have equal liberty of access and entry for any reason or object whatever to the waters, fjords and ports of the territories specified in Article 1; subject to the observance of local laws and regulations, they may carry on there without impediment all maritime, industrial, mining and commercial operations on a footing of absolute equality”.
It follows from this stipulation of the Treaty that:
The Russian research vessel did not violate the law on the archipelago, which means that its detention is a direct violation of the powers granted to Norway by the parties to the Spitsbergen Treaty.
Furthermore, the third paragraph of Article 3 of the Treaty reads: “Notwithstanding any rules relating to coasting trade which may be in force in Norway, ships of the High Contracting Parties going to or coming from the territories specified in Article 1 shall have the right to put into Norwegian ports.” This provision thus distinguishes between the archipelago’s local ports and ports on the Norwegian mainland, as well as between laws pertaining to the archipelago and those regulations that may be in force on the Norwegian mainland—the national legislation of the mainland, which incorporates the provisions of international agreements to which Norway is a party.
Claims that the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, known as the New York Convention and ostensibly forming the legal basis for the detention of the Professor Molchanov vessel, and the UNCLOS are applicable to Svalbard because they are “merely part of Norwegian law” are inconsistent with the provisions of § 2, Part II of the Svalbard Act, which states: “Other legal provisions do not apply in Svalbard unless expressly provided”.
In the Norwegian legal system, an international treaty has no legal force for authorities until the Storting (parliament) passes a special law incorporating it or transforming it into national legislation, after which the treaty acquires the force of national law. The 1958 New York Convention was incorporated into Norwegian law through the Arbitration Act and the Enforcement Act. The 1982 UN Convention was incorporated through a series of laws, including the Maritime Boundary Act and the Act on the Management of Living Marine Resources. Upon ratification, these conventions became part of Norwegian law. When ratifying them, Norway made no reservations regarding their applicability to Spitsbergen, a territory with a special international legal regime.
The application of Norwegian national laws incorporating the provisions of international treaties immediately creates a conflict with Article 3 of the 1920 Treaty, which permits application of only local archipelago-related laws, but prohibits imposing restrictions on commercial and research navigation by Norway’s international obligations to third parties (whether the UN or Naftogaz) valid exclusively for the mainland.
In cases of collision of norms, the fundamental principle of international law—Pacta sunt servanda (Treaties must be observed)—takes unconditional effect. This is enshrined in Article 26 of the 1969 Vienna Convention on the Law of Treaties and reinforced by Article 27 of the same Convention, which states: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
By placing the procedural code of the continental part of the country and the material claims of the Ukrainian company above Article 3 of the 1920 Treaty, Norway committed an internationally unlawful act.
For the Russian side, this incident means disrupted scientific programs, canceled expedition tours, and other losses. Therefore, in accordance with Article 31 of Responsibility of States for Internationally Wrongful Acts, codified by the UN International Law Commission and approved by UNGA Resolution 56/83 in 2001, Norway, as the offending state, is obligated to fully compensate for the caused damage.
In accordance with Article 36 of the ILC Act, Moscow has the right to lay financial claims to the Kingdom of Norway for:
The detention of the Professor Molchanov has also exposed long-standing problems in Russia’s legal approach to areas outside its sovereignty and a catastrophic imbalance in the parties’ legal preparedness.
Norway has a well-honed legal apparatus. For decades, Oslo has been deliberately and proactively using legal and administrative mechanisms to systematically emasculate the provisions of the 1920 Treaty and gradually strengthen its sovereignty. Every action has meticulously been calculated at the level of regulations and instructions for local implementers.
Since the Treaty’s very inception, beginning with the prior international agreement known as the Mining Regulations for Svalbard, Norway has actively employed manipulative legal and terminological engineering in developing the Treaty’s provisions. Specifically, it clearly used these methods to emasculate the provisions of Article 7 of the Treaty, which regulates the rights of the contracting parties to the archipelago’s natural resources.[1]
As for Russia, it could confront the Norwegian systemic rulemaking machine by accumulated academic knowledge, but for some inexplicable reason it lies idle. Russia has a robust research base,[2] but the results of fundamental applied research conducted by Russian scientists on the Spitsbergen track have been ignored for years.
Russian government agencies still lack a clear understanding that the legal response to the Norwegians’ actions should be symmetrical, systemic, and proactive, rather than belatedly reactive.
The incident with the Professor Molchanov vessel cries out for institutional change—it is time Russia moved from ad hoc reactions to continuous legal monitoring. For example, by establishing a permanent position for a leading international lawyer on Spitsbergen within the state-owned trust Arktikugol, which would monitor Norwegian lawmaking in real time, follow Oslo’s court practice, and promptly provide authorities with ready-made legal advice before another Russian vessel is arrested or a similar legal event occurs.
A similarly deficient legal policy is observed in the delimitation in the Arctic Ocean, to which Spitsbergen is directly related.[3] An analysis of the concluded bilateral treaties on delimitation in the Arctic and of national applications to the UN Commission on the Limits of the Continental Shelf shows that, before submitting applications with geological claims to the Arctic Ocean shelf, Russia should have established a permanent situation center at a dedicated research institute of the Russian Academy of Sciences. This has still not been done.
International law is a formidable weapon, and its proper use must be a powerful tool for protecting Russia’s national interests in the Arctic and other areas beyond its territorial sovereignty. Russia’s legally ineffective management, in the face the Ministry for the Development of the Russian Far East, has unwittingly opened a loophole for Norway to arrest the Professor Molchanov vessel, which may serve as a precedent for further confiscation of Arktikugol’s assets on the archipelago, which occupies a significant position in the geopolitical balance of power.
By detaining the Russian research vessel, Norwegian authorities have opened Pandora’s Box. If Spitsbergen becomes a testing ground for forced recovery of assets in geopolitical disputes involving third parties, its special international legal regime will be significantly damaged. Today, Oslo arrested a Russian research vessel following a lawsuit filed by Kyiv. Tomorrow, on the same grounds, courts in mainland Norway will begin detaining American, Iranian, Chinese, or Taiwanese vessels in Spitsbergen ports, following lawsuits filed by third parties. To avoid turning this international outpost into a zone of permanent legal chaos, Norway’s judicial system must return to the legal framework and immediately release the Professor Molchanov.
And it is time Russia learnt to use the expertise of its legal scholars and transform it into the competences of institutions that could effectively protect its national interests.
Login