The case in summary: The government has decided to stop the sale of the Søre Fagerfjord property in Svalbard, which lawyer Per Kyllingstad believes is incomprehensible and potentially in violation of the Svalbard Treaty. Kyllingstad, who represents the owners of AS Kulspids, believes the decision represents a breach of the principle of equal treatment in the treaty. Professor emeritus of international law at the University of Oslo, Geir Ulfstein, supports Kyllingstad’s view, and thinks the government’s reasoning smacks of discrimination. Business Minister Cecilie Myrseth and government attorney Fredrik Sejersted believe that the decision made is not in conflict with the Svalbard Treaty. The government’s decision is justified by the fact that they want to prevent the sale of the property to unwanted actors, due to concern about damaging effects on national security interests. Kyllingstad believes the case could belong in an international court. The summary is made by an AI service from OpenAi. The content is quality assured by news’s journalists before publication. – The state’s violent involvement thus appears completely incomprehensible and blown out of all proportion. This is what lawyer Per Kyllingstad writes in a letter to government lawyer Fredrik Sejerstad, which news has been given access to. The statement comes after the government’s decision to stop the sale of the property Søre Fagerfjord in Svalbard. This through a decision made in accordance with Sections 2–5 of the Security Act. On the same day, the government put in bids for the property. The offer was described as “symbolic” and declined. The company AS Kulspids, which is represented by Kyllingstad, will not rule out a lawsuit against the state. They believe that the understanding of the Svalbard Treaty can belong in an international court. – Discrimination – It is our opinion that the decision represents a breach of both the Svalbard Treaty and the Svalbard Act, Kyllingstad writes in the letter, and refers to the principle of equal treatment in the treaty. This is supported by professor emeritus of international law at the University of Oslo, Geir Ulfstein. – When the government justifies it with the risk that the property will end up in hands with which we do not have a security policy cooperation, then it smacks of discrimination, and thus contrary to the principle of equal treatment, he says to news. In 1995, Ulfstein wrote his doctoral thesis on the Svalbard Treaty. – At the same time, it is the case that the government has the right to take care of national security considerations. The question is how to do it in this connection, he continues. Business Minister Cecilie Myrseth (Ap) and government attorney Fredrik Sejersted have been presented with Ulfstein’s statements. They believe that the decision made is not in conflict with the Svalbard Treaty. – The resolution targets a Norwegian company and its Norwegian owners. The effect of the decision is that the owners cannot sell the property or the company without consent from the ministry, replies Myrseth. Read Myrseth’s further statement further down in the case. The decision: The decision entails: Negotiations on or implementation of the acquisition of the property Søre Fagerfjord in Svalbard cannot be undertaken without the express consent of the Ministry of Trade and Fisheries. There is no negotiation or acquisition of shares that will directly or indirectly give the buyer a total direct or indirect share of at least 10 percent of the share capital, share or votes in the company AS Kulspids. This also applies when this means that the buyer obtains significant influence over the management of the company in another way, or that the buyer obtains this together with his close relatives. The company AS Kulspids is ordered to continuously inform the ministry of all bids received for the property and direct or indirect holdings in the company. The same applies to actors who represent the owners in the sales process. Acquisitions in violation of points 1 and 2 cannot be carried out according to their content. Relevant data controllers (including the Mapping Authority and the Brønnøysund registers) have been instructed by the Minister for Business that any such transfer must be refused registration. Unwanted actors The government’s justification for the decision is that they want to prevent the sale of the Søre Fagerfjord property in Svalbard to unwanted actors. This was due to concern about adverse effects on national security interests. – It is important for the government that we are now able to preserve calm and stability around this area, and not least that we ensure that national security interests are not threatened, she said. IMPORTANT: Industry Minister Cecilie Myrseth (Ap) believes it is important that the government ensures peace and stability on Svalbard. Photo: Erik Waagbø / news Ulfstein believes the government’s reasoning is not in accordance with the principle of equal treatment. This is because the states are treated differently depending on who they have security policy cooperation with and who they don’t. – The government should be careful with this type of reasoning, he says, before continuing: – But it can probably be justified in other ways. But then it is purely security policy considerations that dictate that a purchase is not approved. In preparing the decision, the Intelligence Service (E-service), the Police Security Service (PST) and the National Security Authority (NSM) have made their statements. These support that there is a “not inconsiderable risk that national security interests are threatened”, when selling to stakeholders from countries with which Norway does not have security political cooperation. NSM has not wanted to go into details in its assessments. The e-service, for its part, refers to the general threat picture as it appears in their threat assessment Focus 2024 (external link). PST has not responded to news’s inquiry. Disagreeing Minister of Business Cecilie Myrseth points out that the property Søre Fagerfjord is located in Sør-Spitsbergen National Park. – The state has always been clear to the current owners that the property contains clear limitations. The current owners are behaving in an unfortunate way, which can contribute to casting doubt on what applies to the property, she says, before continuing: – Preserving Norwegian legislation and protection is a national security interest and the background for our decision. This is a targeted measure that reduces the risk that national security interests may be threatened. Government lawyer Fredrik Sejersted, who represents the ministry in the dialogue with the owners, points out that the conditions Ulfstein raises are thoroughly justified in the decision. – First of all, there is no discrimination in the conditions set out. Secondly, the restrictions are based on the risk of a sale to an actor who will be able to “use the property to challenge the Norwegian legislative authority and conservation regulations on Svalbard” and thus disrupt stability, which is a legitimate consideration. Thirdly, the decision confirms and strengthens the private law obligation from 1919. – In any case, the decision is aimed at a Norwegian company, and the Norwegian owners, and for that reason alone does not violate any of the international law provisions on equal treatment in the treaty, he concludes. LAWYER: Government lawyer Fredrik Sejersted has been communicating for a long time with the owners of Søre Fagerfjord and its lawyer Per Kyllingstad. Photo: Hallvard Norum / news Lawsuit In a statement to news on Tuesday, lawyer Per Kyllingstad will not rule out that the case belongs in an international court. – It is clear that one can imagine that with this case as a backdrop, one can also have an opportunity to test Norway’s exercise of its rights and duties on Svalbard and the understanding of the Svalbard Treaty in a legal, perhaps international forum, he says to news. Kyllingstad believes that such a round in the legal system will differ from the so-called snow crab case in which Norway prevailed in the Supreme Court. – These are two different matters, he says. He does not want to comment on whether the owners he represents will now go to court. REPRESENTATIVE: Attorney Per Kyllingstad represents the owners in the sale of Søre Fagerfjord in Svalbard. Photo: Terje Bendiksby / NTB Consequences Ulfstein himself is clear about what he thinks the government should do next. – The government should provide a clear justification for why any sale of this property will create a risk for Norway in terms of security policy, he says, and emphasizes that he lacks a good justification. – If Norway makes a decision contrary to the treaty, what could be the consequence? – It could undermine Norway’s credibility as a guarantor of compliance with the Svalbard Treaty, and thus create protests and the like from other states. CLEAR MESSAGE: Geir Ulfstein lacks a good justification from the government. Photo: Johan Moen / news Support The government’s decision to take a decision under the Security Act to stop the sale of the property is supported by several. The right-wing justice policy spokesperson, Mari Holm Lønseth, believes it was wise to use the room for maneuver in the Security Act. – Svalbard and the northern areas are strategically important, and states that do not want us well would like to establish themselves in these areas. When national interests may be threatened, it is right that sales are stopped, she says. SUPPORT: Spokesperson for justice policy in the Conservative Party, Mari Holm Lønseth, supports the government’s decision, which is made in accordance with the Security Act. Photo: William Jobling / news The Solberg government itself intervened in 2021 to stop the Russian acquisition of Bergen Engines. FRP supports the government’s intention to prevent unwanted actors from acquiring the property. – In today’s security policy situation, it is important to maintain stability and predictability related to the activity on Svalbard, says Frp’s faction leader in the foreign affairs and defense committee, Christian Tybring-Gjedde. SUPPORT: Frps Christian Tybring-Gjedde assumes that the government has considered the decision thoroughly. Photo: Lars Os/news Published 02.07.2024, at 21.34 Updated 02.07.2024, at 21.42
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Expert believes the government’s decision against Svalbard property violates the Svalbard Treaty – news Troms and Finnmark
