The constrained politics of the Svalbard offshore area

The complexity that follows from mutual linkage between variables has been highlighted by several scholars, pointing to foreign policy-making as a balancing act between external factors and domestic context [8, pp. 271–273]. For instance, Glenn Snyder and Paul Diesing [9, pp. 510–524] see crisis bargaining as interplay between external interstate bargaining and internal bargaining. The “agent–structure debate” within international relations theory has also illuminated the interdependence of states (as agents) and the international system (as structures) [10], [11], [12], [13]. A similar argument may be applied, mutatis mutandis, to Norwegian behavior and the policies of other states. As demonstrated in studies of diplomatic correspondence, Norwegian behavior in the Svalbard offshore area affects the international context in which Norway operates [4]. While a broad tradition of foreign policy analysis assumes foreign policy to be best understood as a product of domestic factors [14], [15], it is widely argued that the policies of one particular state cannot be fully explained by pointing to internal dynamics. Any state, however powerful, is part of an international structure that will constrain its behavior. Kenneth Waltz, challenging those who explain foreign policy exclusively in terms of causes at the national level of analysis, points to international structure as “the constraints that confine all states” [16, p. 122]. In an anarchic world each state would see others as potential threats to peace and stability, and the interests and capabilities of others would thus be taken into account in its foreign policy conduct.

Waltz recognizes that actually isolating and weighing the effects of external factors on state behavior “is a serious, and seemingly inescapable, limitation of systemic theories of international politics” [17, p. 343]. In his assessment of structural realism, Robert Keohane concludes that there is a need for further studies of internal–external interactions [18, p. 191]. With this theoretical backdrop, this study examines how Norwegian behavior, as it unfolds in the Svalbard offshore area, is externally constrained, i.e. restricted by the policies of foreign powers.

The study examines the impact of external factors on four aspects of Norwegian governance in the Svalbard maritime zones, from governmental policy and legislation to law enforcement and public prosecution. It does not measure impact or effect, but identifies whether and how Norway's behavior is constrained by the policies of foreign powers. Any identification of such causal linkage would suggest that Norway is indeed affected by the international row over legal rights in the Svalbard offshore area, and, moreover, imply that the controversy is viewed as a potential threat to peace and stability if Norwegian behavior were not modified.

External factors relevant to Norwegian decision-making are manifested in the conflicting policies of foreign powers, as already implied. However, the study does not specify or define the foreign policies of other states beyond offering a background account of the international conflict, and can accordingly not account for whether the behavior of Norway is curbed by the expressed views, assumed interests, inferred motives or power capabilities of other states—or a combination of the above. Hence the scope of the study is only to identify any constraint on Norwegian behavior that can be attributed to an international rather than domestic context.

To identify any constraints on Norwegian behavior in Svalbard waters, a broad case-study methodology is applied [19]. A number of sources are probed, and evidence includes data obtained through intensive, elite or specialized interviews of key Norwegian decision-makers [20, p. 205], white papers, legislation, legal cases, annual reports, public statistics, and diplomatic correspondence, as well as verbal and written statements and secondary sources.

Conflicts over jurisdiction in the areas outside Svalbard originate from the unclear scope of the 1920 Treaty Concerning the Archipelago of Spitsbergen (hereinafter the Svalbard Treaty) [21], a multinational agreement that confers “the full and absolute sovereignty” over the archipelago to Norway [21, Article 1] but is ambiguous as to what maritime zones its stipulations apply. Treaty articles securing extensive rights to nationals of all contracting parties are said to apply to the territories and their “waters” [21, Articles 2 and 3]. International rights under the treaty include equal entitlements to mining, fishing, and other commercial activities. The Svalbard Treaty's equivocal reference to territorial “waters” follows from its creation prior to law of the sea developments that placed extensive zones, i.e. the continental shelf and the 200-mile exclusive economic zone, under the jurisdiction of the coastal state.

While Norway holds that the provisions of the Svalbard Treaty only apply to the land and sea territory, its stipulations thus being irrelevant for the continental shelf and the 200-mile zone outside the territorial limits, other states argue that the Treaty provides them with extensive rights also beyond the territorial sea. Some hold that Norway has no authority in the waters outside the archipelago. Spain and Iceland have disputed Norway's right to exercise jurisdiction in the Svalbard waters and have signalled their readiness to refer the case to the International Court of Justice [22], [23], [24]. Others again, protesting against Norwegian legislation for the area, have threatened to take “necessary measures” [25] or “similar actions” [26] to safeguard their interests in these waters. Russia deployed the destroyer Severomorsk to the area in 2002, a move that apparently challenged Norway's exercise of jurisdiction in the 200-mile zone of Svalbard [27]. The European Union, although not a party to the Svalbard Treaty, demanded a halt to Norwegian enforcement practices in 2004 and reserved its right to “take any action it deems appropriate to safeguard its rights and interests”, after the Norwegian Coast Guard arrested Spanish trawlers for violating Norwegian regulations [28].