Agne Cepinskyte
Ph.D., Political Risk Analyst
Norway
agne@cepinskyte.com
EU and NATO states imposed a series of restrictive measures against Russia following its invasion of Ukraine in February 2022, thereby manifesting the international community’s resolve to weaken the aggressor economically and pressure it into changing malignant behaviour — the core goal of sanctions. However, the Russian government, largely due to global wariness of conflict escalation, secured some exemptions from sanctions. One such exemption is the Norwegian Arctic archipelago of Svalbard, where Russia enjoys special rights.
When Norway closed its ports for boats sailing under Russian flag, it made Svalbard an exception, allowing access to the port of Barentsburg for fishing boats, research vessels, ships delivering medicines, food and even those exporting coal, thus demonstrating respect for the equal treatment principle enshrined in the 1920 Svalbard Treaty. Nonetheless, the closure of mainland ports and border disrupted the previous Russian practice of transporting freight to Russian settlements in Svalbard by road via the Storskog border checkpoint to the port of Tromsø before being delivered to Barentsburg by Norwegian container ships — the route being less expensive than accessing the archipelago directly from Russia by air or sea, which still remained available options.
Russian authorities described the closure of Norwegian mainland ports and border as a blockade, invoking breaches of international commitments, citing humanitarian and human rights violations of Russian citizens in Svalbard and threatening with retaliatory measures. Oslo succumbed to the Kremlin’s intimidation, eventually permitting Russian goods destined for the archipelago to cross the Storskog border checkpoint, subject to examination by Norwegian authorities. Such a concession did not prompt any positive change in Russia’s policy. On the contrary, the Russian government prohibited internationally-registered vehicles, including those registered in Norway, from crossing the border to Russia through Storskog.
Moreover, the Russian Foreign Ministry accused Norway of an increased military presence in Svalbard, referring to a coast guard vessel that had entered Longyearbyen before sailing towards the coast of Barentsburg – the only operating Russian coal mine settlement on the archipelago, and one that, like the rest of the territory, is under the jurisdiction of Norway. Such a denunciation came two months after a Russian state-owned ship paraded the Russian and Soviet Navy flags along the same shore of Barentsburg, thereby once again displaying the hypocrisy and a complete disregard to yet another Western futile attempt of preventing a spill-over.
This raises the following question: were exemptions made for Svalbard necessary in order to prevent conflict escalation or did they undermine the credibility and effectiveness of collective sanctions altogether? Furthermore, should these exemptions be removed, and could sanctions be legitimately strengthened in response to Russia’s relentless violations of international law?
Sanctions are coercive foreign policy tools, exerting financial, economic, political or personal pressure on targeted states and individuals in order to compel them to cease wrongful conduct and ensure non-repetition. Under international law, legitimate sanctions fall under one of two legal categories: acts of retorsion and countermeasures. Retorsions are ‘unfriendly’ yet lawful actions. Even if they derogate from international commitments of sanctioning states, such derogations are allowed by a treaty in question. If this is not the case, sanctions would amount to an internationally wrongful act, but one that could still be justified as a countermeasure pursuant to the Articles on Responsibility of States for Internationally Wrongful Acts.
Russia’s accusations that Norwegian authorities breached the Svalbard Treaty by closing mainland ports and disrupting the more convenient route for transportation of Russian goods to the archipelago have no legal basis. Svalbard was explicitly made an exception to the restrictive measures. Therefore, the treaty has no relevance for this particular matter. The disruption of Russia’s preferred route could be considered ‘unfriendly’ and thus constitute a retorsion — a conduct consistent with international obligations and hence indisputably lawful.
What is more, according to the principle of proportionality applicable to restrictive measures aimed at compelling the targeted state to comply with international norms, sanctions should be revised as that state’s actions change. Considering Russia’s intensified wrongful behaviour, including the annexation of regions in Eastern Ukraine, any concessions to sanctions, such as allowing Russian vessels to sail around Svalbard and dock in its ports for reasons other than humanitarian needs, not only compromise the very goal of sanctions but also leave opportunities for Russia to further exploit the soft-natured response to its hostility.