Law of the Sea and the Svalbard Islands: An analysis on the legal status of maritime zones around Svalbard
Irina Ivanova Anr: 911311 Tilburg University LLM International and European Law Master of Laws Thesis Submitted: August 2018 Supervisor: Dr Morag Goodwin
Acknowledgements
First and foremost, I am especially grateful to Dr Morag Goodwin, for her supervision, useful
comments and valuable insights throughout my research.
Many thanks to my study colleagues in Tilburg Law School, for interesting discussions and
meaningful friendships.
To mama, I owe everything. Thank you for inspiring and helping with this thesis, continuously
listening to my legal nonsense and always answering my calls when I needed you.
You always gave me the liberty to follow my interests and encouraged me every step of the way,
Thank you for being my ultimate role model.
My girls, you’ve supported me during the writing process by making me laugh and being the
necessary distraction. I couldn’t have done it without our ‘perfect club’.
Always grateful to my Strasbourg friends, for bouncing ideas with me and despite the time and
the distance, being there.
And lastly, I would like to thank the Verschoor family, for welcoming me and making this foreign
country my home.
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Contents
Acknowledgements ...... i Abbreviations ...... iv I. Introduction ...... 1 Thesis structure ...... 4 II. Historical background on the Svalbard Islands and drafting of the Treaty ...... 6 Historical context before 1907 ...... 6 Negotiations of 1907, 1910, 1912 and 1914 ...... 8 The Paris Peace Conference of 1920 ...... 9 The Svalbard Treaty (earlier the Spitsbergen Treaty of 1920) ...... 10 III. Importance of Svalbard and positions of High Contracting Parties ...... 13 Geographic and economic importance of Svalbard ...... 13 Brief history of mineral and natural resources in Norway and on Svalbard ...... 17 Party positions on maritime zone interpretation around Svalbard ...... 19 IV. Legal and Interpretive background ...... 23 Historical development of maritime law and UNCLOS ...... 23 The equidistance principle and the equitable principle ...... 25 Neil MacCormick’s analytical framework and VCLT ...... 28 Interpretation of historical treaties ...... 32 V. Analysis of the Svalbard Treaty ...... 36 Discussion on systemic arguments ...... 36 Discussion of linguistic arguments ...... 42 Discussion on teleological arguments ...... 46 VI. Conclusion ...... 48 References ...... 50 Table of cases ...... 50 Legislation ...... 51 Books, journals and websites… ...... 51
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Abbreviations
CLCS Commission on the Limits of the Continental Shelf EC European Commission EEZ exclusive economic zone FPZ fishery protection zone HCP High Contracting Parties ICJ International Court of Justice ITLOS International Tribunal for the Law of the Sea miles nautical miles NPD Norwegian Petroleum Directorate PCA Permanent Court of Arbitration TPA Territory for Petroleum Activity UN United Nations UNCLOS United Convention on the Law of the Sea VCLT Vienna Convention on the Law of Treaties
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I. Introduction
Officially titled the Treaty recognising the sovereignty of Norway over the Archipelago of Spitsbergen, but today most commonly referred to as the Svalbard Treaty, established a unique type of sovereignty over the Svalbard archipelago.1 It was signed on February 9th, 1920 at the Paris Peace Conference and went into effect on August 14, 1925.2 The year it went into effect, Norway renamed the islands from the Dutch name of ‘Spitsbergen’ which meant jagged mountains, to Old Norse name of ‘Svalbard.’3
The treaty determined the legal status of the Svalbard Islands located in the Norwegian Arctic, in the Barents Sea. What makes this treaty truly special is that a joint decision of nine countries determined that Norway will have sovereignty over the Svalbard Archipelago, maintain the legal and administrative governance over them, however, all treaty parties have non- discriminatory access to resources on land and territorial waters of Svalbard.4 In classic international law, sovereignty means dividing up the world up into exclusive portions and allowing states to exercise control over their portion to the exclusion of all other states. 5 This makes the Norwegian sovereignty over Svalbard Islands one of a kind, as Norway can administer
1 This thesis chooses to refer to the Treaty recognising the sovereignty of Norway over the Archipelago of Spitsbergen, as the Svalbard Treaty. This is done in light of the fact that today the treaty is commonly referred to as the ‘Svalbard Treaty’ by government officials of Norway and many scholars. Some examples of this include, the Governor of Svalbard referring to the treaty as the ‘Svalbard Treaty’ on their official website https://www.sysselmannen.no/en/Toppmeny/About-Svalbard/Laws-and-regulations/Svalbard-Treaty// ; Arctic Portal, a comprehensive gateway to information on the Arctic at http://library.arcticportal.org/1909/1/The_Svalbard_Treaty_9ssFy.pdf . In the Norwegian language, the Svalbard Treaty is also called ‘Svalbardtraktaten,’ rather than ‘Spitsbergentraktaten.’ Some examples of this include the Norwegian Government’s official website at https://www.regjeringen.no/no/dokumenter/svalbardtraktaten/id2395472/ ; by Svalbard’s Police official website at https://www.politiet.no/en/om/organisasjonen/sarorganene/sysselmannen-pa-svalbard/ ; and by the Svalbard Museum at http://svalbardmuseum.no/no/kultur-og-historie/svalbardtraktaten/ . It is also necessary to make clear that choosing the title ‘Svalbard Treaty’ over ‘Spitsbergen Treaty of 1920’ does not affect my legal analysis, it is done merely done in light of the current trend. 2 Treaty recognising the sovereignty of Norway over the Archipelago of Spitsbergen (adopted on 9 February 1920, entered into force 14 August, 1925), hereinafter referred to as the Svalbard Treaty 3 Roald Berg, 'From “Spitsbergen” To “Svalbard”. Norwegianization In Norway And In The “Norwegian Sea”, 1820–1925' (2013) 30 Acta Borealia. 4 Svalbard Treaty, articles 2, 3 and 7. 5 Daniel Philpott, 'Sovereignty' (Stanford Encyclopaedia of Philosophy, 2018)
the islands, however, all parties to the treaty can have access to the territories and all natural resources on equal terms as citizens of Norway.
The Svalbard Treaty was signed almost a century ago and there have been many changes in the international maritime law since. The treaty states that High Contracting Parties (HCP) have access to resources on land and the ‘territorial waters’ of Svalbard Islands as stated in article 2 and 3 Svalbard Treaty. When the Treaty was signed, it was a custom that states could control the territorial sea which extended four nautical miles into the sea.6 Today, the HCPs to the treaty have raised questions concerning the maritime application of the Svalbard Treaty. The modern maritime zones were established with United Nations Convention on the Law of the Sea (UNCLOS), during 1982 the UN Conference on the Law of the Sea, and defined the rights regarding sovereignty, governance, and exploration and exploitation of resources in the sea.7 UNCLOS defined territorial waters to be maximum 12-nautical miles, followed by extra 12- nautical miles of contiguous zone, the exclusive economic zone (EEZ) to be up to 200-nautical miles and the continental shelf to be 200-natuical miles, but can extend maximum up to 350- nautical miles.8 9 The controversy stands as to whether the EEZ and the continental shelf, both of which extend 200-miles into the sea, fall within the scope of the Svalbard Treaty.
Lately, a decline of the ice cap and the subsea technological developments in oil and gas industries, made exploration in the Arctic region easier than ever before. 10 This race for the resources of the Arctic made the Svalbard Islands fall under the radar of some HCP of the Svalbard Treaty. Based on research of the Norwegian Petroleum Directorate (NPD), the undiscovered hydrocarbons in the Barents Sea, located between the Svalbard Islands and
6 The custom was that the territorial waters extend three or four miles into the sea. Norway along with some other Scandinavian states established four-mile territorial waters. For more on this, read H. S. K. Kent, 'The Historical Origins of the Three-Mile Limit' (1954) 48 The American Journal of International Law
2 mainland Norway, amount to nearly 65 per cent of total undiscovered resources of the Norwegian territory.11 Along with this, the Arctic Circle is predicted to have more than one-fifth of the world's conventional hydrocarbon.12 Although it is difficult to predict exactly when we might run out of hydrocarbons, based on the current known reserves and production levels, this can happen in the next 50 years.13 The Svalbard Treaty established something that can be described as a shared resource sovereignty over the islands, and with natural resources at stake, it is not surprising the HCP are interested in the interpretation of the treaty.
A second reason why the Svalbard Treaty matters, is the physical presence in the Arctic and therefore political influence the treaty gives to the HCPs. At the moment, Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the US, all of which are parties to the Svalbard Treaty, have sovereignty claims in the Arctic.14 Although the Svalbard Islands do not cover the whole Arctic, they nevertheless have the potential to allow countries with no sovereign claims in the region, such as North Korea, to be present and possibly influential.15 Given that another price, other than resources, is the influence over the Arctic, it is no surprise that the Svalbard Treaty became important at the time when the Arctic race is gaining momentum.
As ice cap continues to decline and offshore drilling technologies continue to evolve, cooperation on resources and political influence in the Arctic will serve as an important example to the world on whether the states can work together. With many states involved, some of which take bold and assertive actions in claiming their Arctic rights, and access to valuable natural resources, this will not be an easy task.16
11 'Doubling The Resource Estimate for the Barents Sea - Norwegian Petroleum Directorate' (Npd.no, 2018)
In the case of the Svalbard Treaty, the interpretation is not very clear. Signed nearly one hundred years, the treaty does not define all of its terms, especially regarding maritime delimitation. With that, this thesis will analyse whether the territorial scope of the treaty encompasses the 200-nautical mile EEZ and the continental shelf. Different parties to the treaty hold opposite positions on this topic, since a large maritime territory with high resource potential and influence over Arctic is at stake. This treaty can serve as an interesting test case of whether the idea of sharing resources truly works in practice. This work will attempt to clarify the status of territorial waters around the Svalbard Islands and add to the scholarly debate by analysing the language, the relevant legal regimes and the object and purpose of the treaty, in attempt to answer the following question:
How does the Svalbard Treaty fit within the present maritime law? More specifically, this research will analyse whether the Svalbard Treaty generates exclusive economic zone and the continental shelf created with the 1982 United Nations Convention on the Law of the Sea and what rights, if any, do the parties to the treaty have in these zones.
Thesis structure
Chapter II will discuss the succinct background of discovery of the Svalbard Islands and history until the 1920s. This chapter will illustrate the events preceding the signing of the treaty and provide the necessary context for this thesis. Although this chapter is not vital for answering the research question, it will bring understanding of the treaty and provide the information as to what makes this archipelago truly unique in international law. Lastly, this chapter will discuss the Svalbard Treaty itself and highlight what makes it unique.
Chapter III outline the importance of the Svalbard Islands. This will be done by discussing the geography and the valuable natural resources of the islands. This chapter will also lay out the positions of different parties of the Svalbard Treaty, as this is relevant to understand the context.
Chapters IV will focus on outlining the necessary legal framework. It will discuss the work of Neil MacCormick, whose interpretive framework was chosen for this research and the
Seabed' (the Guardian, 2007)
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Vienna Convention on the Law of Treaties. This framework requires attention as it will be later applied to answer the research question. Since the Svalbard Treaty interpretation is concerned with maritime law, this section will also discuss the evolution of law of the sea and the current applicable legislation, outlined in the 1982 UNCLOS. This section will also briefly discuss interpretation of historical treaties, as Svalbard Treaty is considered to be one.
Chapter V will be the analytical chapter of this thesis. It will interpret the Svalbard Treaty based on linguistic, systemic and teleological interpretation, all three of which are outlined in the work of Neil MacCormick. MacCoromick’s framework will provide for a holistic interpretation, and will assist in answering whether the HCP to the treaty should enjoy equal access to resources in that area. .
Overall, the research will be based on qualitative analysis of the relevant legislation, such as UNCLOS and Norwegian national laws, and court judgements. Understanding the intention of the drafters will play an important role in determining what the best approach seems to be in interpreting the Svalbard Treaty.
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II. Historical background on the Svalbard Islands and drafting of the Treaty 17
Historical context before 1907
The first official record of discovery of Spitsbergen was by Dutch explorer Willem Barentsz in 1596. Barentsz failed to properly see the economic benefits of Spitsbergen, therefore almost no ship visited the islands till 1607, when the British explorer Henry Hudson discovered whales and walruses in that region.18 Hudson returned from his expeditions with accounts of enormous numbers of whales and walruses around the coast of the islands, after which, the archipelago received a lot of attention from northern European countries. Walrus had high economic market value for its tusks and, later, for the oil from its blubber and liver.19 Whales had an even higher economic value for their oil and baleens, which were an ideal material for corsets and dress frames.20 Travellers wrote detailed descriptions of their journey to the islands, with main descriptions focusing on the marine life and the ‘fish properly called the whale,’ a large creature living around the islands.21 These captivating drawings and descriptions of unknown enormous fish led to an increase in commercial activities on the islands in the 17th century.
The British and the Dutch were the first to establish whale hunting stations in 1611 and were supported by respective home-country authorities.22 The Spanish and the French self- sponsored expeditions subsequently arrived at Spitsbergen, and conflicts arose between the different expedition groups over water hunting territories.23 Denmark claimed sovereignty over Spitsbergen, arguing that the islands were an extension of Greenland, which belonged to Denmark.24 The Danish patrol ships were sent to Spitsbergen to stop all foreign activities on the
17 This section will refer to the islands as Spitsbergen Islands rather than Svalbard. This is done because the name of the islands to ‘Svalbard Islands’ was changed in 1925, after the signing of the treaty. See supra note 1 for more on this. 18 Robert Neal Rudmose-Brown, 'Spitsbergen, Terra Nullius' (1919) 7 Geographical Review, p 312. 19 Ibid p 312. 20 Tim Greve, Svalbard: Norway In The Arctic Ocean (1st edn, Grøndahl 1975) p 16. 21 F Martens, Isaac de la Peyrère and Adam White, A Collection Of Documents On Spitzbergen And Greenland (Cambridge University Press 2010), p 105. 22 Greve, (n20), p 16. 23 Rudmose-Brown, (n 18), p 314. 24 Greve, (n20), p17.
6 islands. However since the British and the Dutch dominated the islands and had government support, the conflict was solved through diplomatic talks and relocation of other countries.25
Whales and walruses were largely overexploited and by the 16nos the decrease in catch led to pirating, with some ships attacking other ships to steal their catch. The British and the Dutch were forced to sometimes travel home under the protection of government naval ships.26 With a high economic value of whale products and hunting territory overlap, a sharp international conflict evolved between English, Dutch, Spanish, Danish-Norwegian and French vessels.27 There was no formal cooperation to resolve the disputes and after a while, and the disputes led to some violent interactions such as forced hunter's expulsion from the territory to prevent further conflict. It is estimated that in the latter half of the 17th century there were 250 to 350 whale hunting ships, with roughly twelve thousand men aboard which contributed to killing of over 100,000 whales 17-18th centuries.28 29 With sharp decrease in the marine life most countries left the area. Over the years, Spitsbergen acquired a status of terra nullius and was one of the last remaining territories in the world to not be claimed by any state.30
In 18th century and for the next hundred years, the islands were dominated by the Russian Pomor settlers.31 The Pomors hunted seals for their oil and polar bears and foxes for their pelts. Their settlements and hunting expeditions were largely backed by the Russian monarchy.32 After the Pomors left in 19th century because it proved to be more profitable to hunt closer to home, Norway in union with Sweden began to fund hunting expeditions to Spitsbergen.33 These expeditions were in collaboration with Russian sailors who had knowledge of the islands and the surrounding waters. Since walrus and whale populations were still low, the hunters turned to
25 Greve, (n20), p 16. 26 Greve, (n20), p19. 27 England made claims in 16th century by sending military ships to islands, Denmark-Norway claimed sovereignty in 17th century see Robin Rolf Churchill and Geir Ulfstein, Marine Management In Disputed Areas: The Case Of The Barents Sea (1st edn, Routledge 1992) p 36 and Greve, (n20) 16-18 28 Greve, (n20), p17 29 Thor Arlov, lecture Whaling and sealing in 17-18th century. Or p 147 Rossi 30 Rudmose-Brown, (n 18), p311. 31 Pomors are a Russian ethnic group, which originated in the White Sea. Over time, they migrated to the Russian north and lived off of marine animal hunting and trade by sea. Their name roughly translates to ‘those who live by the sea.’ 32 Greve, (n20), p22 33 Greve, (n20), p22
7 catch cod, Greenland sharks and seals. 34 Early 19th century was also the time when scientific research expeditions began in Spitsbergen. Many countries showed interest in the Arctic, resulting in the necessity of updated maps, sea routes, and a general increase in knowledge of that region. Norway, which dominated the research, have approached several countries present on Spitsbergen over the years to see if they would be willing to accept Norwegian sovereignty over the islands.35 Particularly the Russians were against that since at the time they still had small settlements on the islands.
The mid-19th century was also the time of Industrial Revolution in Europe. With a slight delay, the coal fever reached Spitsbergen. Norway, British, Russian, Swedish and Dutch had private mining companies, as well as governments, were not willing to recognise each other's exploration territories on Spitsbergen. Setting up coalmines is an arduous process which dependent on geology of the area, making re-location not possible. To avoid future conflict, there was a pressing need to establish administration over Spitsbergen.36
Negotiations of 1907, 1910, 1912 and 1914
In 1907, 1910, 1912, and 1914 Norway, Sweden and Russia, being the main countries interested in Spitsbergen, had rounds of negotiations to draft an agreement that would form a joint tri-country rule over Spitsbergen but no agreement was reached.37 Since the discovery of Spitsbergen in 1596, the islands were popular for their natural resources, and during the negotiations, it was expressed that the status of terra nullius should be preserved by having equal access to natural resources. The original plan was to administer the islands through an elected international commission, which would appoint a new governor from the signatory treaties for a rotation period of six years.38
34 Greve, (n20), p23 35 Greve, (n20), p23 36 Dag Avango, 'Svalbard Archaeology' (Svalbardarchaeology.org, 2005)
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There were several national and international obstacles deferring the negotiations on the status of Spitsbergen. In 1905 Norway unanimously voted to break the union with Sweden and it was in the process of establishing a government structure and control over its territories.39 Sweden on the other hand, which had been sponsoring research expeditions in the region at the time, also had interest in having rule over Svalbard.
In the meantime, Tsarist Russia, which historically was interested in the islands, was beginning to fall apart. The war with Japan in 1905, together with the overall dissatisfaction with Tsar Nicholas II became the first big protest against his rule, leading to much unrest within the country.40 In 1912, the Social Democratic Party, that was against the rule of the Tsar, split into two groups: the Bolsheviks and the Mensheviks. Eventually, in 1917, the Bolsheviks began a revolution to overthrow Tsar Nicholas II and after a couple years of civil war and unrest, the Union of Soviet Socialist Republics (USSR) was officially established in 1922.41
The last round of negotiations was in 1914, and all nations that had the ‘remotest claim’ of sovereignty over the islands were invited to the capital of Norway.42 World War I erupted before the dialogue led to a consensus, again, leaving the Spitsbergen Islands unclaimed.43 The perfect time for determining the status of Spitsbergen came sooner than expected, in 1920, after the end of the World War I.
The Paris Peace Conference of 1920
As World War I was coming to an end, Norway again expressed the desire to discuss the terms of governance of Spitsbergen. The Paris Peace Conference was the perfect time for it, as it brought many countries together, making it easier to negotiate.
At the negotiations, Norway proposed to have governing rights over Spitsbergen, however other countries interested will still enjoy access to land and natural resources. This idea
39 Stuart Burch, 'Norway and 1905' (2005) 55 History Today
9 of governance was suggested by Robert Lansing, the U.S. Secretary of State, who published a paper advocating for a neutral Scandinavian country to receive ownership over the islands.44 Prior to publishing the paper, in May of 1917, Lansing also met with Norwegian Prime Minister Helmer Bryn and discussed Spitsbergen ownership with him.45 During the Paris Peace Conference, Norway adopted the suggestion of Lansing, and the Treaty recognising the sovereignty of Norway over the Archipelago of Spitsbergen was signed without much opposition. The main potential opponent, Russia, was busy establishing a government after the revolution and other parties were too busy recovering from the aftermath of World War I. As a country that had settlements in Svalbard and has actively played a role in commercial activities of the area, it was not in a position to negotiate the terms of the treaty. In exchange for not voicing its opinion and preventing the creation of the Treaty – Russia asked for Norwegian support and recognition of their newly formed state, the USSR. After thirteen years of negotiations, the 1920 Treaty of Spitsbergen was signed and went into power in 1925. This treaty was left open for ratification and thus any state has the right to ratify it and enjoy non-discriminatory access to resources and other provisions laid out in the Treaty.
The Svalbard Treaty (earlier the Spitsbergen Treaty of 1920)
There were nine original HCP to the treaty and as of the end of 2017 that number rose to over 50.46 47 48It was decided that the islands will be under the sovereignty of the Kingdom of Norway, but all countries that have signed or ratified the Svalbard Treaty will enjoy certain privileges, such as having “absolute equality” in access to mineral resources, hunting and
44 Robert Lansing, 'A Unique International Problem' (1917) 11 The American Journal of International Law, p 770. 45 Christopher Rossi, Sovereignty And Territorial Temptation: The Grotian Tendency (Cambridge University Press 2015), p163. 46 The full list of the nine original HCP includes Denmark, France, Italy, Japan, the Netherlands, Norway, Sweden, the United Kingdom (including the dominions of Australia, Canada, New Zealand and South Africa, as well as India), and the United States. Including the dominions of the United Kingdom of Great Britain, there were fourteen original HCPs. 47 Svalbard Treaty, article 2. 48 North Korea Signs Svalbard Treaty, (n15)
10 commercial development on land and in the territorial waters of Svalbard. 49 50 It was also decided that any state can accede to the treaty through ratification in the future.
The Svalbard Treaty itself is composed of only 10 articles, which provide a detailed outline of the rights of all the HCPs, and two annexes which describe the governance strategy of Svalbard. Some of the key rights given to HCP are laid out in the articles 1, 2, 3, 7 and 8. Article 1 lays out the geographical boundaries of the treaty, the islands included, and writes that the islands fall under “the full and absolute sovereignty of Norway.”51 Articles 2, 3 and 7 discuss what rights HCP and their citizens enjoy on Svalbard. More specifically, Article 2 states that all parties enjoy equal rights in fishing and hunting. Article 3 allows treaty parties to have equal “access and entry for any reason … to the waters, fjords and ports.”52 According to Article 3, any goods that are exported, imported or transited through the islands, cannot be subject to extra charges or limitations. Article 7 further emphasises that treatment of the above-specified rights shall be exercised on basis of complete equality. Article 8 states that any taxes collected at Svalbard may only be used to administer and govern the archipelago and by no means should benefit the mainland of Norway. Overall, the treaty is highly specific in detailing the rights of states on land, the levy on products and other administrative matters. The rights described in the aforementioned articles must be observed in accordance with the legal jurisprudence decided by Norway, on the territories specified in Article 1 and apply only to governments and citizens of treaty parties.
To summarise the treaty, Norway has jurisdictional sovereignty over Svalbard. It can regulate commercial activities, mining safety procedures, designate territories as nature reserves and decide over any other legal matters over the islands. Norway is obliged to give its own and citizens of the HCPs equal non-discriminatory rights in regard to 1) entrance and residence on Svalbard 2) fishing, hunting and trapping 3) maritime, industrial, mining, commercial activities and 4) acquisition and utilization of property and other island governance matters. This creates a
49 The Term Kingdom of Norway includes mainland Norway, the Svalbard Islands (including Bear Island), and the Jan Mayen Island. 50 Svalbard Treaty, article 7. 51 Svalbard Treaty, article 1. 52 Svalbard Treaty
11 non-traditional sovereignty status, where the legal rights over Svalbard were given to Norway, but any citizen of HCP may live, work and extract mineral resources on Svalbard.
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III. Importance of Svalbard and positions of High Contracting Parties 53
Geographic and economic importance of Svalbard
Svalbard is strategically important for Norway and other treaty parties because the islands allow to have geopolitical influence in the Arctic and provide an opportunity for economic profit, from land and surrounding waters.
The territory of Svalbard Islands is 62,049 sq km, roughly the size of the Netherlands and Belgium combined. 54 The largest island of the archipelago is Spitsbergen, followed by Nordaustlandet and Edgeøya. Today, the permanent population of Svalbard is around 2,200 people, excluding the numerous research groups on Svalbard in the summer.55 Aside from Norwegians, one of the biggest scientific settlement on Svalbard is composed of Russian scientists in the village of Barentsburg, with Polish researches being the next largest group.56 Due to unique geology and ecology, 65% of land and 86% of the 12 mile territorial waters of Svalbard Islands are designated nature reserves or national parks.57 This not only preserves the northern flora and fauna but also prevents nations, Norway and HCP, to do any resource exploration and exploitation in those regions. At the moment is not clear whether maritime zones around Svalbard developed by current law of the sea is open to the treaty parties, but if they are, these territories could lead to high economic profits. For better understanding, the map below shows the EEZ 200-mile radius around Norwegian mainland, the Svalbard Islands, and the island of Jan Mayen which is part of Norway.
53 From this chapter and on, this thesis will refer to the 1920 Treaty of Spitsbergen as the Svalbard Treaty, since after the treaty went into power, that became the common name used for the treaty. See supra note 1 for more on this. 54 'Svalbard and Jan Mayen Territories' (Statoids.com, 2015)
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Figure 1: Map of EEZ of Norway, the island of Jan Mayen and the Svalbard Islands.58
The red zone on the map shows the 200-mile EEZ around Norwegian sovereign territories. The EEZ of the whole Kingdom of Norway, including the Jan Mayen and Svalbard Islands, is around 2,440,000 sq. km, with the EEZ around Svalbard more than 30 per cent of the whole EEZ of Norway.59 Bear Island, which is part of the Svalbard Archipelago is marked on the map, to show that the EEZ of mainland Norway extends to the fullest 200-miles, thus cutting short the EEZ of Bear Island, and thus, the Svalbard archipelago. According to Norwegian Mapping Authority, the EEZ springing from mainland Norway shall extend the full 200 miles, while there is no EEZ starting from Bear Island. 60As exploration of Arctic is gaining momentum in search of offshore oil, the waters around the islands can give access to large research territories. Based on resource predictions, and given the fact that the hydrocarbon industries
58 Image created by Irina Ivanova, using data from Marine Regions managed by the Flanders Marine Institute. Marine Regions is a Maritime Boundaries database, representing the Exclusive Economic Zone (EEZ) of the world, available at http://marineregions.org/ 59 'EEZ Vs. Land Area' (Ssz.fr, 2018)
14 constitutes for 67 percent of Norwegian exports, making it the main source of income for the country, it is not surprising that Norway wants to have solo rights over the Svalbard’s EEZ.61
The next figure zooms in on the overlap of 200 miles between Svalbard and mainland Norway and shows the current scientific activities happening in that region.
Figure 2: Map of the Svalbard Islands, the “Svalbard box,” 200 nautical mile radius between Svalbard and mainland Norway, and Norwegian Petroleum Directorate’s Production Licences. 62
61 'Norway - Trade - European Commission' (Ec.europa.eu, 2018)
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The green ‘square’ on Figure 2 marks the “Svalbard box,” and any islands within that territory fall under the jurisdiction of the Svalbard Treaty.63 It is common for older treaties to define territory by using map coordinates, since at the time the treaty was signed, it was not always certain that every island and rock pertaining to the archipelago has been discovered.64 By using the coordination system, it was certain that any subsequently discovered extensions of the archipelago would be included in the treaty. At the bottom of Figure 2, in the between 74-75°N and 15-20°E block we can see the Bear Island (Bjørnøya in Norwegian) is the closest island of Svalbard archipelago to continental Norway. The territory between Bear Island and mainland Norway is approximately 216 miles. The yellow line on Figure 2 marks 200 miles from mainland Norway, while the red line marks 200 miles from Svalbard archipelago. The 200-mile zones of Svalbard and mainland Norway have an overlap of around 180-181 sq. km.
As seen on the figure, Norway is already doing petroleum research in the disputed territory. Based on the data from the Norwegian Petroleum Directorate, the current territory for petroleum activity (TPA) is marked on Figure 2 with the rectangular dark grey lines.65 The TPAs marked on Figure 2 have not been awarded to specific companies for research and exploitation of oil and gas yet, however they are already designated for future oil and gas exploration.66 Within the TPAs, the light grey coloured blocks represent all available Production Licences. The dark grey coloured blocks represent the Active Production Licences. Active Production Licences mean that oil companies have been awarded the right to explore, discover and produce.67 It is only a matter of time for the empty blocks will be designated to specific companies for
63Article 1 of 1920 Spitsbergen Treaty defines the Svalbard Islands to include “Bear Island or Beeren Eiland, all the islands situated between 10° and 35° longitude East of Greenwich and between 74° and 81 ° latitude North, especially West Spitsbergen, North-East Land, Barents Island, Edge Island, Wiehe Islands, Hope Island or Hopen- Eiland, and Prince Charles Foreland, together with all islands great or small and rocks appertaining thereto” 64 D. H. Anderson, 'The Status Under International Law Of The Maritime Areas Around Svalbard' (2009) 40 Ocean Development & International Law, p 375. 65 “The Norwegian Petroleum Directorate (NPD) is a governmental specialist directorate and administrative body was established in 1972. The Norwegian Petroleum Directorate’s primary objective is to contribute to the greatest possible values for Norwegian society from the oil and gas activities through efficient and responsible resource management. The NPD sets frameworks, stipulates regulations and makes decisions in areas where it has been delegated authority.” available on http://www.npd.no/en/About-us/ accessed on May 8, 2018 66 Norwegian Petroleum Directorate, 'Petroleum Resources On The Norwegian Continental Shelf 2016. Chapter 2: Exploration On The NCS' (Norwegian Petroleum Directorate 2016). 67 'Production Licence – Licence To Explore, Discover And Produce - Norwegian Petroleum Directorate' (Npd.no, 2008)
16 exploration. The designated TPA territory that falls within the Svalbard box comprises of 20 exploration blocks out of total 102 open for exploration. Numerous TPAs fall within the potential maritime zones of Svalbard archipelago.68 It is not clear if Norway is violating the international law with its actions, since it is not yet clear whether the area of some TPA exploration blocks actually belongs to Svalbard or mainland Norway. However, it is clear that Norway is boldly establishing its position with these actions, showing that this territory belongs to mainland Norway, and not Svalbard.
Brief history of mineral and natural resources in Norway and on Svalbard
Since their discovery around a hundred years ago, oil and natural gas have changed the world. Despite the efforts of shifting away from fossil fuels, it is predicted the world will continue to depend on oil and gas.69 As technology progresses, so is offshore oil extraction, with Norway being one of the lead countries in this field.70 With Barents Sea having 65 per cent of total undiscovered oil and gas resources, Norway maintains a firm position in being the solo country entitled to that territory.71 The first offshore oil exploration began in 1896 in the Pacific Ocean, in California. The offshore oil platform was located 90 meters into the ocean and used a drilling method originally used for building water wells.72 In just one year, this method was improved and at the beginning of the 20th century oil began to play a significant role in the world economy, predominantly in the southern countries.
68Nerijus Adomaitis and Alister Doyle, 'Norway Offers Record Number Of Blocks For Arctic Oil Exploration' (Reuters, 2017)
17
In 1920, small reservoirs of oil were found on Svalbard by the English Northern Petroleum Syndicate, however, the reservoirs did not prove to be economically viable.73 Further research was done on oil on the land from 1963 and out of the 20 test drills, none proved to have economic profits.74 In the meantime, the first UN Conference on the Law of the Sea in 1958 encouraged Norway to continue its hydrocarbon search. In preparation for the conference, Norwegian Ministry of Foreign Affairs requested from the Geological Survey of Norway (NGU) information on the possibility of finding mineral resources on Norwegian continental shelf, to which the NGU responded that “the chances of finding coal, oil … on the continental shelf off the Norwegian coast can be discounted.”75 The Norwegian hydrocarbon offshore exploration started in the North Sea shelf, the western part of mainland Norway in 1965. Everything changed four years later when on December 23rd the country announced the "Christmas gift of 1969," an enormous oil discovery by the company Ekofisk in the North Sea, starting a new epoch of Norwegian history.76 Along with the oil reservoirs, gas reservoirs were found as well, however, at the time, Norway did not yet develop safe gas extraction methods. Soon, oil became bringing profits to the country, and Norway established the NPD, to regulate the oil and gas activities. Norwegian continental shelf of the Barents Sea has the largest hydrocarbon potential in Norway, however it is small per cent of current Norwegian production, a little over 15 per cent.77 The first big gas discoveries the Barents Sea were in the early 1980s.78 For many years until 2007, due to harsh Arctic weather, quite deep waters of more than 300 m and vulnerable Arctic nature, exploration and production hydrocarbons was not permitted in the Barents Sea.79 As production in the North Sea is in decline, Norway is slowly moving its research further north, specifically in the Barents Sea.80 Today, more than half of the total value of Norwegian exports
73 'Oil Facts, Year 1958 | Norsk Oljemuseum' (Norskolje.museum.no, 2018)
18 are crude oil and natural gas, while only 1 per cent is saved for internal production.81 Although hydrocarbon activities played a key role in making Norway one of the most developed countries today, 98 per cent of Norwegian electricity coming from renewable energy sources.82 Svalbard’s continental shelf and waters also have rich living resources. Fishing around Svalbard was always profitable, which is why in 1977 Norway established a 200-mile fishery protection zone (FPZ) around Svalbard.83 Another particular living resource that recently made its way up to Svalbard continental shelf is the snow crab. Snow crabs recently migrated north, seeking colder temperatures for its habitat and are invasive to the native species.84 These living resources are worth high on the market, as the value of a kilo of snow crabs is equivalent to the value of one kilo of crude oil.85 Overall, the maritime territories around Svalbard Islands seem to have a positive economic value. Exploration of this region will provide for more jobs, encourage technological development and improve the overall infrastructure of the region.
Party positions on maritime zone interpretation around Svalbard
Norway established a firm position that the Svalbard Treaty does not encompass modern maritime zones and that it has solo control over the EEZ and the continental shelf of Svalbard.86 87 Sweden, a historical ally of Norway, supports the Norwegian interpretation of the treaty.88
81 'Exports Of Norwegian Oil And Gas' (Norwegian Petroleum, 2018)
Norwegian assertive actions of opening exploration blocks without any consultations with the HCP caused indignation among some of the treaty’s HCP states. By opening TPA in the disputed Svalbard’s maritime zones, the ongoing political contention exacerbated, especially between Norway and Russia.89 Russia vocally spoke out against Norwegian actions, stating that Norway is violating the Svalbard Treaty.90 To discuss this, Russia sent an invitation to Norway to enter negotiations regarding the disputed territories, with Norwegian side refusing the invitation.91 This disagreement over interpretation escalated to the point where in 2017 the Russian Defence Ministry listed the Svalbard Treaty interpretation dispute as a potential risk of war.92
Today, the Svalbard Treaty has over 50 parties and not all take an active position in this discussion.93 Iceland, Spain, United Kingdom and Denmark maintain the view that the Svalbard Archipelago is entitled to its own EEZ and that the Svalbard Treaty parties should have equal access to resources there.94 Recently the European Commission (EC) de facto supported such interpretation as well. In 2016 the EC issued licenses to catch snow crabs living on the continental shelf of Svalbard.95 By approving the licences in the continental shelf of Svalbard, the EC de facto acknowledged that Svalbard is entitled to modern maritime zones and that HCP, 23 if which are EU member states, should enjoy access to resources there.96 On January 16, 2017, the Norwegian Coast Guard arrested a Lithuanian ship catching snow crabs, even though the vessel had licence distributed by the EC, stating that “self-licensing by others violates
served as the Swedish foreign ministry’s top legal official. “It would be complete chaos.” At https://www.politico.eu/article/svalbard-iceberg-tourism-travel-ban/ 89 See Figure 2, earlier in this chapter 90 The Guardian, 'Arctic Oil Drilling: Outcry as Norway Opens New Areas to Exploration' (2016)
20 international law,”.97 98 On 29th of November, 2017, the Supreme Court of Norway concluded that under international law “Norway is not bound by any obligation” to accept the license, making this licence invalid.99 Even with this decision on the case, the EU continues to stand firm in its position and just re-distributed more licences for the year 2018. 100 This case is expected to proceed further to the international courts, as Latvian officials have indicated that they will bring the case to the International Court of Justice (ICJ), which would need to interpret the Svalbard Treaty to determine the validity of the licences.101
Five important parties to the Svalbard Treaty are the Permanent Security Council Members of the UN, which are China, France, Russia, the UK, and the US. The Permanent Five since the creation of the ICJ almost always have had judges in the Court.102 Seeing as the importance of Svalbard Treaty is gaining momentum, it can be expected that only within a matter of time there will be a case in the ICJ regarding its interpretation, therefore it is important to understand the position of the Permanent Five on this matter. As mentioned earlier, the UK and Russia, support the view that the Svalbard Treaty includes the modern maritime zones. France and the US publicly reserved any rights arising from this treaty, thus remaining somewhat neutral.103 China, has not expressed an opinion on the interpretation, however it has some scientific, energy, fishing and transportation related interests in the Arctic. 104 All these countries are also members of the Arctic Council, the main forum for interstate cooperation in the Arctic.
97 Bolongaro (n95) 98 Lithuania is a signatory to the Svalbard Treaty 99 The Supreme Court Of Norway On 29 November 2017, the Supreme Court gave judgment in HR-2017-2257-A, (case no. 2017/1570), criminal case, appeal against judgment https://www.domstol.no/globalassets/upload/hret/decisions-in-english-translation/hr-2017-2257-a-snow-crab.pdf , para 35 100 Christine Karijord, 'The EU Awards New Licenses For Snow Crab Catching – Norway Refuses' High North News (2017)
21
China already applied twice to be a permanent member of the Arctic Council, both times denied.105
The remaining original HCP, are Sweden, Italy, Japan and the Netherlands. From Italian government sources, it appears that the official government position is lacking blurred. The Italian government confirms its commitment to uphold both conventional and customary International Maritime Law, but refrains from taking a firm position on the matter, following in the footsteps of countries of France and the US. 106 Japan has a similar position to China, where it doesn’t take a position, however it did set scientific research stations in the city of Ny- Ålesund.107 Netherlands openly states that it believes Svalbard both generates modern maritime zones and that the HCP have non-discriminatory access to it.108 Overall, with the growing number of interested groups the race for the Arctic is only expected to increase. The Arctic race is only getting faster, making the Svalbard Treaty even more relevant.
105 Numminen (n38), p 17. 106 'Strategia Dell’Italia Nell’Artico: Dimensione Politica' (Italian Strategy in the Artic: political dimension. Ministry of Foreign Affairs and International Cooperation) (Esteri.it, 2018)
IV. Legal and Interpretive background
Historical development of maritime law and UNCLOS
In 1609, Hugo Grotius, a Dutch lawyer and often referred to as the father of the law of the sea, published the work of the Free Seas, the idea of that the sea should be free for use to all countries and its citizens.109 This principle of mare liberum essentially limited national jurisdiction and prevented states from claiming sovereign rights over the sea. With the rise of the sea traffic in the 18th century there was an indispensable need to harmonise the international rules and customs of sea navigation. Mare liberum became a practice accepted by major maritime powers such as the Netherlands, and by the 19th century other countries abandoned their idea of monitoring the high seas.110 The mare liberum in the high seas allowed for freedom of navigation and fishing and other ideological connections to the laissez-faire economic theory and that anything beyond the territorial sea should mare vastum liberrimum (“the great and most free sea”.111 States also agreed that the coastal state should have control over a three-mile belt extending from its coastline since that was the distance equal to the length of a cannon shot.112 The purpose of implementing the cannon shot rule was to protect neutral maritime states against the quarrels of other warring states by allowing the neutral states to prevent warships from coming too close to their harbours.113 The Scandinavian states of Denmark-Norway and Sweden claimed a four-mile zone control area.114 Although there is no clear reason why some states claimed more than others, this became an accepted custom. Furthermore, in the 20th century, before the establishment of the UN and international agreements on the law of the sea, some countries claimed six and twelve miles of control over territorial waters.115
109 Jon Miller, 'Hugo Grotius' (Stanford Encyclopedia of Philosophy, 2011)
The first attempts to codify the law of the sea were in 1958 with the first UN Conference on Law of the Sea, which resulted in four conventions and an optional protocol.116 Although countries were able to reach an agreement relatively quickly, the signed treaties were separate from each other and did not provide for a coherent law of the sea. During this time, there was a surge in technological development of ships and offshore resources explorations, making the signed treaties quickly outdated. Negotiations to update the law of the sea began in 1973, with the final treaty, UNCLOS concluded in 1982 and going into force in 1994.117 UNCLOS divided the sea into several maritime zones.
The first maritime zone regulated by UNCLOS, the territorial sea, extends up to 12 miles from the baseline into the sea.118 In cases of an overlapping territorial sea, the border is decided at the median point between the states' baselines, unless the states agree otherwise.119 The territorial sea does not need to be claimed, however, the UN Division for Ocean Affairs and the Law of the Sea needs to be informed on the geographic coordinates of its width of the territorial sea. Full state sovereignty extends into the territorial sea, its airspace, seabed and subsoil.120 However, states must allow ‘innocent passage’ for ships, underwater vessels and aircrafts of other countries through and above their territorial waters.121 The next concept, the contiguous zone, extends up to 24 miles off the coast under Article 33 UNCLOS. In the contiguous zone, states can continue to enforce laws in the fields of taxation, pollution, customs and immigration laws.122
UNCLOS also allows states to claim the EEZ, an area 200 miles from the baseline of a state into the sea.123 States can exercise sovereign economic rights in the water, the seabed and the subsoil this territory in regard to economic exploitation and exploration of the area.124 This means that states not only can harvest resources from the seabed and the continental shelf, but
116 1958 Convention on the Territorial Sea and the Contiguous Zone (TSC); the Convention on the High Seas (HSC); 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR); 1958 Convention on the Continental Shelf (CSC) 117 Jan Klabbers, International Law (3rd edn, Cambridge University Press 2017), p257. 118 UNCLOS, article 3. 119 UNCLOS, article 15. 120 UNCLOS, article 2. 121 UNCLOS, article 17- 20. 122 UNCLOS, article 33. 123 UNCLOS, article 55. 124 UNCLOS, article 56 (1) (a). 24 they can make the use of winds and currents for energy, build artificial islands and installations and more.125 Although all coastal states are entitled to an EEZ, an EEZ is a territory that must be claimed with the Commission on the Limits of the Continental Shelf (CLCS).126 UNCLOS also created a concept of a ‘continental shelf’, which like the EEZ, extends 200 miles.127 However, if a state can geologically prove that its continental shelf is longer than 200 miles, it can claim the continental shelf up to 350 miles.128 A continental shelf gives a state sovereign rights to the exploitation of resources located at the bottom of the sea, such hydrocarbons, and anything that falls within the definition of article 77 (4) of UNCLOS, such as shell-fish. Although a continental shelf and EEZ might seem similar, countries prefer an EEZ because it gives control both on continental shelf and the waters, which allows for greater economic benefit. An EEZ gives states the right to exploitation of living resources such as fish and more control over activities happening in the waters under its jurisdiction. On the other hand, the continental shelf extending to 200-miles does not need to be claimed by the relevant state, while an EEZ does. Beyond this, the area is called the high seas, States have the freedom to do scientific research, have the freedom of fishing, laying submarine cables and other rights prescribed in article 87 of UNCLOS. UNCLOS heavily focuses on the peaceful use of the seas, repeating in many articles that scientific research conducted should be done for peaceful purposes (articles 246 (3), 242 (1), 240 (a), 155 (2), 143), and that disputes should be resolved in peaceful manner through negotiations or other means (articles 279, 283). It also clearly describes the economic benefits of each maritime zone, in regard to regulating exploration and exploitation of resources within the area.
The equidistance principle and the equitable principle
It is not rare that the EEZ or the continental shelves of states overlap, since they extend far out into the sea. To solve disputes arising from this, the UNCLOS created the equidistance principle which states that in instances when there is an overlap of territorial waters, boundaries should conform to a median line equally distant from every point of the baseline of the nations
125 UNCLOS, article 56. 126 Commission on the Limits of the Continental Shelf was established by Annex II of UNCLOS. 127 UNCLOS, article 76 (1). 128 UNCLOS, article 76 (6). 25 which share the maritime zone.129 Even prior to UNCLOS, the “split in the middle rule” has been a custom.130 This principle however is not defined for other maritime zones created by UNCLOS. In case of disputes regarding the EEZ and the continental shelf, the states must follow the procedure in Part XV of UNCLOS, which provides for an obligation for peaceful settlement of disputes through negotiations, a relevant international court or by other means decided by the parties. Although the equidistance method is not mentioned in delimitations of EEZ and the continental shelf disputes, it nevertheless found its way into the court’s practice but its application is depended on the circumstances of the case. In its judgments, the international courts also apply the equitable principle, which is ensuring that the delimitation leads to fair and just outcome. In the continental shelf case between Tunisia and Libya, a 1982 ICJ ruled that each continental shelf dispute should be judged on its own merits.131 This judgement further showed that diversion is possible from the equidistance rule, so long there are circumstances and reasons for this. In the pre-UNCLOS 1969 North Sea Continental Shelf series of disputes between West Germany, Denmark and the Netherlands, the ICJ took into account the unique geography of the area in its decision. The 1969 North Sea Continental Shelf cases were concerned with the delimitation of an oil and gas-rich continental shelf in the North Sea. However, due to a concave German coast, the application of the equidistance rule would have meant that Germany would result in a much smaller EEZ than the Netherlands and Denmark. The ICJ, argued that the solution should take into account the "special and unusual features" of the area and that the delimitation should have "the element of a reasonable degree of proportionality."132 The Court ruled that parties are under obligation to take into account the equitable principle, in this case the unique geography (not the rich oil fields) played a role in achieving just results.133 More recently, the coastline geography played a vital role in the decade long disputes between Bangladesh/India
129 UNCLOS, article 15 130 Klabbers (n117), p266. 131 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) [1982] ICJ Rep. 18 para.132 stated that “each continental shelf case in dispute should be considered and judged on its own merits, having regard to its peculiar circumstances; therefore, no attempt should be made here to over-conceptualise the application of the principles and rules relating to the continental shelf.” 132 North Sea Continental Shelf, (Germany/Denmark; Germany/Netherlands), [1969] ICJ Rep. 3, para 101 133 North Sea Continental Shelf, (Germany/Denmark; Germany/Netherlands), Para 85 (b) states that ‘the parties are under an obligation to act in such a way that, in the particular case, and taking al1 the circumstances into account, equitable principles are applied, for this purpose the equidistance method can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved;’ 26 and Bangladesh/Myanmar in the Bay of Bengal.134 135 The Bangladesh/Myanmar case in the International Tribunal for the Law of the Sea (ITLOS) and the Bangladesh/India case in the Permanent Court of Arbitration (PCA) both took the concave coast of Bangladesh when reaching their conclusions. After thorough examination, the ITLOS first drew an equidistance line and then adjusted it for the concavity of the coast of Bangladesh.136 Following the ITLOS ruling of 2012, two years later the PCA took into account the geographic coast line of Bangladesh awarded it nearly 80 per cent of its claimed territory, to achieve equitable results.137 In the 1985 Libyan Arab Jamahiriya/Malta case the ICJ ruled that "the equidistance method is not the only method applicable to the present dispute, and it does not even have the benefit of a presumption in its favour. Thus, under existing law, it must be demonstrated that the equidistance method leads to an equitable result in the case in question."138 In applying the equidistance rule, it should also be proven that it leads to non-discriminatory and just results. In the Maritime Delimitation and Territorial Questions between Qatar/Bahrain, the ICJ started by drawing the equidistant line and then analysed whether the lined needed adjustment in light of any certain circumstances.139 The Court did find that at one instance, there was a necessity to make the adjustment to achieve equitable result. 2002 Cameroon/Nigeria case was an important in showing that natural resources, specifically oil concessions and oil wells as a special circumstance to adjust the delimitation.140
Consistently, in international maritime delimitation cases, international tribunals start with applying the equidistance principle at first, then continue to examine whether its application leads to fair and equal division of maritime zones. Although extremely rare, this method can be applied in maritime delimitation of borders of national provinces. First such case is the
134 Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) [2012] ITLOS 135 Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (Bangladesh/India) [2014], PCA 136 Bangladesh/Myanmar, paras 290, 291 and 462. ITLOS considered the concavity of the coast of Bangladesh to see if it constituted for "a relevant warranting an adjustment of the provisional equidistance line," and concluded that it did. 137 Ankit Panda, 'International Court Rules in Favor of Bangladesh on Maritime Dispute With India' (The Diplomat, 2014)
Since many of maritime delimitation cases concern large territories, states are strongly concerned with just division. UNCLOS is largely focused on fair division of resources in a peaceful manner, so it is not a surprise that the international courts ensure to take all circumstances into account when decided on these cases. The first step is to apply the equidistance rule, and then see if it leads to equitable results. Special circumstances for the case can include unique geography, historic ties and treaties, proportionality and other matters. As a result, the equidistance method can be modified in favour of one state over the other if the special circumstances allow.
Neil MacCormick’s analytical framework and VCLT
The interpretive framework by Sir Donald Neil MacCormick will be used when analysing the Svalbard Treaty. MacCormick was a renowned jurist who wrote about legal theory and philosophy of law.144 The interpretive arguments developed by MacCormick include three main categories: (1) linguistic arguments, (2) systemic arguments, and (3) teleological arguments. MacCormick developed these interpretive arguments in his 1993 paper “Argumentation and Interpretation in Law," and since then, his approach to interpretation has been widely accepted by scholars and applied in international adjudication.
141 Gerald Baier and Paul Groarke, 'Arbitrating A Fiction: Canadian Federalism and the Nova Scotia/ Newfoundland and Labrador Boundary Dispute' (2003) 46 Canadian Public Administration/Administration publique du Canada. p315 at 324 write “There is no precedent for treating provinces as sovereign states within a domestic context. It is one thing to adopt and make use of principles of international law in resolving disputes between the provinces. It is another thing to grant the provinces the status of sovereign states, even hypothetically, as if they exist independently of the relationships and responsibilities set out in the Canadian Constitution.” 142 Denis Roy, 'The Legal Continental Shelf: The Surprising Canadian Practice Regarding Oil and Gas Development In The Atlantic Coast Continental Shelf' (Alberta Law Review)
The Vienna Convention on the Law of Treaties (VCLT) is currently the principal international instrument regulating treaty interpretation. When the development of international law took off after the creation of the United Nations in 1945, a necessity arose to codify the law of treaties to produce a uniform approach in treaty interpretation and encourage the progressive development of international law.145 It was decided that an agreement, regulating all international treaties from execution to interpretation, needed to be created. VCLT was a lengthy process and it took twenty years to prepare the final version, which was adopted in 1969 in its namesake city of Vienna, Austria.146 This section will weave the legal framework of the Vienna Convention and UNCLOS, since it is the relevant maritime law, with each category of MacCormick's framework.
The first interpretive argument MacCormick calls the linguistic argument.147 Language, being the tool of law, should be the starting point of interpretation. The aim of analysing the text is to elucidate the objective meaning of the legislators. In Article 31, the Vienna Convention also puts the most emphasis on language when interpreting the treaty. 148 The commentary for the Vienna Convention suggests that in interpretation, the text of the treaty is the ‘authentic expression' of intentions of the parties. 149 The text is the 'conventional language' and should be treated most objectively when determining the meaning of the treaty. Even prior to the VCLT, it was an accepted custom that words of the treaty and their original meaning within the context were given the most attention in interpretation. A 1961 book on international law stated that language is "their [parties] intention as expressed in the words used by them in the light of the surrounding circumstances."150 When defining terms however, MacCormick reminds us that there are two types of linguistic meanings, the ordinary and the technical meaning of the term.
145 Article 13 (1) (a) of United Nations Charter established that the "The General Assembly shall initiate studies and make recommendations for the purpose of: a. ... encouraging the progressive development of international law and its codification" 146 VCLT, article 1 and 2. 147 Neil MacCormick, 'Argumentation And Interpretation In Law' (1993) 6 Ratio Juris
The ordinary meaning means interpreting the text in the natural way the language is employed.151 However, if the text is dealing with some specific, technical matter, specialised vocabulary should be used in the definition of the term. Something else to keep in mind when interpreting language is not to be too restrictive in word definitions, to maintain the presupposed inherent meaning of the word remains and prevent the compositions of the word from changing the meaning.152 It is worth remembering that treaties are often concluded at times of disagreement between parties which implies that the terminology used is often deliberately equivocal.153 The second interpretation argument is a systemic argument, whereby the legal document is being interpreted within in light of pertinent and relevant legislation. MacCormick stresses that systematic interpretation shall not be entirely separate from linguistic interpretation.154 Legal materials fall within a type of legal system, therefore a purely linguistic interpretation will not provide for a holistic interpretation.155 Without systemic interpretation, law would be confined to a purely interpretive environment and not fall within a pertinent and related institution. MacCormick’s systemic argument is similar to what VCLT calls ‘context.’; Article 31 (2) defines the context of the treaty to include preamble and annexes, as well as any special agreement or instrument, made specifically in connection to the treaty.156 Together with the
151 MacCormick (n147), p21. 152 An example of this would be the word "ashtray." 'Ashtray' is the word to describe where the remnants of and leftovers of cigarettes should be put. However, this does not prevent objects other than ash to be put into it. If gum is put into the object, the name of the object would change into ‘gumtray.' This is what is meant when the language should not be interpreted restrictively. For more on this, see Klabbers (n117), p56. 153 An example of this would be the term ‘sustainable development,’ often used in environmental treaties. There is no exact definition of that phrase, allowing everyone to read into the preferred meaning of the phrase. For more on this, see more Klabbers (n117), p 57. 154 Klabbers (n117), p29. 155 Klabbers (n117), p29. 156 VCLT, article 31 (2) states:“… 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.”
30 context, any subsequent agreement, practice or international law regarding interpretation should be taken into account.157 The research question of this thesis falls within the maritime law, making UNCLOS the relevant legal system of context. The last concept of MacCormick's framework is the teleological and deontological approach in interpretation. The teleological interpretation is concerned with identifying the purpose the drafters aimed to achieve. The deontological approach means to argue which principle of rectitude and justice should be observed in a given situation. In the case of Svalbard Treaty interpretation, the deontological approach is not relevant as the research question is not whether it is right or wrong for Norway to share resources in adjacent waters of Svalbard, but to identify what the drafters of the Svalbard Treaty aimed to achieve with regards to resource sharing. While MacCormick does not explicitly state how to identify what the intention of the parties is, this can be found in the Vienna Convention. Identifying the ‘object and purpose' is necessary when speaking of teleological interpretation. Based on Article 32 of VCLT ‘the object and purpose' should be found in the preamble, travaux preparatoires, and is based around the circumstances of the conclusion of the treaty. 158 159 160 The commentary of VCLT states that method for identifying object and purpose should be applied in a “suitable in a particular case (e.g. … the use of travaux preparatoires)” and that in “certain circumstances recourse to the principle may be appropriate and that it has sometimes been invoked by the International Court.”161 Based on this commentary, it appears that the creators of the VCLT imply that travaux preparatoires should be applied on a case by case basis and that the interpretation should be in
157 A vague and non-descriptive preamble should not have a strong influence in defining the context of the treaty. Makane Moïse Mbengue, 'Preamble' (Oxford Public International Law, 2008)
31 favour of the object and the purpose – so in favour of the way which gives the treaty its effect, rather than not.162 MacCormick writes that even when the linguistic and systematic analysis does not lead to ambiguities, teleological perspective should not be abandoned. 163 Teleological perspective comes into play even if linguistic and systematic arguments do not fail to yield an unequivocal result. The so-called "Golden Rule" by Dr Yezhar Tal stresses that in cases when the result defeats the object and purpose or generates injustice, the teleological argument shall be deeply observed.164 In discussing law, we must also discuss the values and the principles of our society, as all this plays a role when seeking the best approach in legal interpretation. Cases set a precedent that is not only relevant for the given case present day but also facilitate development.165 MacCormick's framework does not say what is right or wrong interpretation in difficult cases; it merely indicates an approach one should take to the resolution. Overall, Articles 31 and 32 of the Vienna Convention amalgamate with the framework developed by MacCormick, forming one coherent structure. MacCormick describes the structure of a proper analysis and the reasons why it is necessary to focus on certain legislation during interpretation, while the Vienna Convention focuses on where to find those answers.
Interpretation of historical treaties
There is no clear definition on what a historical treaty, as it is difficult to argue what is historical or what is old. Key dates in the development of international law is the beginning of the Nuremberg Trials and the signing of the Charter of the United Nations, therefore ror the purpose of definition, treaties signed prior to the United Nations will be considered historical
162 “When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted.” Draft Articles on the Law of Treaties with commentaries 1966, p 219 163 MacCormick (n147), p27. 164 MacCormick (n147), p26-27. 165 MacCormick (n147), p28.
32 treaties.166 When analysing an old treaty, the overall method of interpretation remains the same.
Interpretation begins with the analysis of the language, within the context and the object and the purpose of the treaty as described in Article 31 of VCLT. Today, there are few territorial treaties in force, which were ratified before the modern international law. Out of those, few make it to international courts.
One such case is the Kasikili/Sedudu Island regarding definition of a term was jointly filed by the governments of Namibia and Botswana in 1996 to the ICJ. The claims were based on a treaty signed on July 1, 1890, which did not define the phrase ‘main channel,’ leading to different interpretations from the treaty parties. To understand the intention of the parties, in its first step, the Court looked at the language of the treaty and subsequently proceeded to explain the topic of dispute. The Court continued to define the object and purpose of the 1890 Treaty by looking at its travaux préparatoires’ and then discussed what the common maritime practice was at the time.167 The historical events leading up to the treaty creation and the object and purpose of the treaty, which in this case was to set common navigation routes, played vital role in treaty interpretation, as it ultimately determined what the original treaty parties intended.168 In this case, the judges interpreted the term ‘main channel’ of the treaty within the meaning of 1890, the year the treaty was signed.169 In reaching its conclusion, the Court followed the steps outlined in the
VCLT. Although the VCLT did not exist at the time of the signing of the treaty and neither parties have ratified the VCLT, the Court ruled that article 31 of VCLT is customary international law, thus must be applied despite that fact.170 This case shows that interpretation in
166 'The History Of International Law Timeline' (Oxford University Press blog, 2015)
33 favour of the original meaning of the words in an historical treaty is possible, however if that is supported by the intention of the drafters. While in this case the Court ruled in favour of the original meaning, that is not always the case.
In the ruling on Navigational and Related Rights between Costa Rica and Nicaragua, the
ICJ had to analyse the definition of the term ‘commerce' in an 1858 treaty between Nicaragua and Costa Rica. The ICJ found that parties had the common intention of the term ‘commerce’ to evolve because:
“the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration”, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.”171
ICJ found that if it is possible to prove that a ‘generic term’ was used deliberately and was likely to evolve, and the treaty was “entered into for an unlimited duration,” the modern definition can me be applied. This ruling on the Navigational Rights case has been referenced by various international judicial bodies, for e. g. in US-Shrimp case the Appellate Body rules that
"the generic term ‘natural resources' can be defined ‘evolutionary,' meaning within the modern definition " Similarly, in Namibia Advisory Opinion in 1971, the ICJ wrote that the concepts
"cannot remain unaffected by the subsequent development of law," therefore they should be taken into account.172
171 Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ, para 66 172 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council, Resolution 276 [1971], ICJ
34
This shows that in historical treaties, it is relevant to see the definitions of terms, see whether the ensuing legal development is applicable and identify the intentions of the party; these three steps is the framework developed by MacCormick, and as seen, the international courts apply it in practice. The steps to take in interpretation and analysis of historical treaties is the same, as for any other treaty.
35
V. Analysis of the Svalbard Treaty
Discussion on systemic arguments
The analysis will begin with the systemic interpretation because prior to discussing whether the treaty parties have access to maritime zones around Svalbard, it is necessary to establish whether Svalbard generates them.173 The linguistic and teleological arguments will follow after this section. Even prior to the modern international maritime law, maritime customs and legislation existed.174 Norway, as a coastal state established different maritime legislation. Norway’s first maritime law the Royal Decree of 22 February 1812, when Norway made the four-mile territorial sea a national law.175 However, at the time of Norwegian implementation of that legislation, Svalbard Islands were not part of Norwegian sovereignty. For many years after that, there was not much development or necessity in further defining the maritime zones around Norway. Fifty years after the signing of the Svalbard Treaty, in 1970 Norway officially established the territorial waters of Svalbard to be four miles.176 That national act identified the specific geographical points of how far the four-mile territorial water zone around Svalbard Islands extended. In establishing the zone, its practice of drawing and connecting straight lines from the outer edges of some islands and rocks off of its coast (called skajaergaard in Norwegian).177 Norway's coastline is often described as messy since it consists of many rock, reefs and islet formations and applying the standard maritime delimitation method of calculating the distance from the coast and four miles into the sea would result in near-absence of the territorial sea. While the Norwegian practice of skajaergaard was permitted under Article 4 (4) of the Convention on the Territorial Sea and the Contiguous Zone of 1958, however Norway never
173 According to MacCormick, linguistic and systemic interpretive arguments carry equal strength, this will not affect the final conclusion. With that being said, the structure will be as follows: a section on systemic argumentation, followed by linguistic and teleological argumentation sections. 174 See the Chapter IV, section ‘Historical development of maritime law and UNCLOS’ 175 Royal Decree of 22 February 1812
36 ratified the convention. It also allowed the Svalbard Treaty parties to have access to resources in that territory. Out of the four conventions which were a result of the first UN Conference on Law of the Sea, in 1971 Norway only ratified the Convention on the Continental Shelf of 1958, the same year the company Ekofisk became commercial, and began bringing economic profits to Norway.178 179 At the time of the signing of the Svalbard Treaty in 1920, and then after the 1960 and onwards, the land oil reservoirs on Svalbard were not economically viable. However, with the development of offshore drilling technologies and big reservoir found in the continental shelf, there was a chance that the HCP would begin to search offshore oil around Svalbard. With quickly establishing a territorial sea smaller than the maximum allowed of 12 miles, Norway prevented that from happening.
In 1976, with the Royal Decree of 17 December 1976, Norway established an economic zone off of its mainland coast of 200 miles, which regulated activities such as exploration and exploitation of mineral resources.180 The Royal Decree stated that the ‘economic zone shall be established in the waters off Norwegian mainland’ and that any exploration and exploitation for economic purposes is ‘subject to rules of international law.’181 It is interesting that Norway references the international law, most likely the provision laid out in the Convention on the Continental Shelf of 1958, the only maritime law convention Norway ratified, that came out of the first UN Law of the Sea conferences.182 In the 1970s, as most European economies went into a period of recession and slow growth, the ‘Christmas gift of 1969’ allowed Norway to continue developing despite the stagflation.183 As economic development of Norway progressed, so did its legal maritime development. This is no coincidence, since most of Norwegian economic profits were connected to its offshore resource extraction activities.
178 'United Nations Treaty Collection - Law of the Sea, Convention on the Continental Shelf' (Treaties.un.org, 2018)
In 1977, Norway established a 200-mile FPZ around Svalbard Islands.184 In the national act establishing the FPZ, Norway stated that the purpose of establishing the FPZ was to conserve the living resources of the territory. In establishing its FPZ around Svalbard, Norway argued that it FPZ was established with the UNCLOS regime in 1977, for the purpose of sustainable management and is not connected to the Svalbard Treaty.185 With the creation of the FPZ, Norway restricted the fishing rights of foreign and national vessels in the region. Establishing the EEZ would do the contrary, as it would give Norway more rights in the area, thus permitting access to resources located at the seabed. The application of the modern law of the sea to Svalbard Treaty has already become a discussion between Norway and the Soviet Union, therefore it is likely that due to confusions of applicability of Svalbard Treaty to the surrounding maritime zones, Norway was careful in taking steps that would enable further exploration and exploitation. By setting the FPZ around Svalbard, Norway claimed its maritime territory, as well as set regulations for all countries, not just those that are parties to the Svalbard Treaty. In 1994, Norway allocated quotas on cod catches for all states, other than Russia and Norway, both of which history of fishing in the area.186 So far Norway has been successful in avoiding conflict by giving non-discriminatory access to the area, however the special treatment of Russian vessels causes tensions. Norway, on the other hand, argues that as a sovereign country it can set its own regulations and this is not a matter of applicability of the Svalbard Treaty. 187 188 In 1982, a new set of laws of the sea developed during the third UN Conference on the Law of the Sea.189 All of the original HCP and the Permanent Five of the Security Council except the US have signed and ratified UNCLOS. Based on Article 121 of UNCLOS, only naturally formed islands that can “sustain human habitation” or a form of economy, are entitled to have an EEZ or a continental shelf.190 The Svalbard Islands are a naturally created archipelago, composed of nine main islands, several smaller islands and a number of rocky
184 Royal Decree No. 6 of 1977 (n83) 185 Numminen (n38), p 14. 186 Numminen (n38), p 14. 187 Numminen (n38), p 15. 188 Norwegian position is described in Chapter III, section ‘Party positions on maritime zone interpretation around Svalbard’ 189 UNCLOS 190 UNCLOS, article 121
38 skerries.191 Historically, Svalbard Islands have sustained human life and continues to do so today. Therefore, based on current law of the sea, the islands indeed generate their own maritime zones. The creation of UNCLOS does not prevent the legality of laws Norway had already established around Svalbard. However, having ratified UNCLOS Norway is able, albeit not required, to claim territorial waters up to 12-miles, the EEZ, and the continental shelf around Svalbard. Norway did establish a 12-mile territorial waters zone around all of its territories, including the Svalbard archipelago from January 1, 2004.192 193 The parties to the Svalbard Treaty have access to the territorial waters. It is possible that Norway does not object to this because Article 2 and 3 of the Svalbard Treaty directly mention the treaty's applicability to the ‘territorial waters.'
Norway continues to delimit and establish the outer boundaries of continental shelf around Svalbard. In 2006 Norway settled a dispute with Denmark regarding the delimitation of the continental shelf between Svalbard and Greenland. In this bilateral agreement, both parties expressed the intention extending their continental shelf outside the 200 miles zone and decided on delimitation by applying the equidistance rule.194 Parties also stated that they have no objection to CLCS making recommendations on that continental shelf between Svalbard and Greenland, in the Norwegian 2006 submission to CLCS. In 2009, CLCS responded to Norwegian submission, determining the outer limit of the continental shelf of Svalbard, with no objections to agreement between Norway and Greenland-Denmark. Norway argues that the extended continental shelf of its mainland goes ‘around and past Svalbard’, the Svalbard Islands ‘sit’ on the continental shelf of Norway.195 However this is something that Norway has yet to
191 'Svalbard | Geography, History, & Facts' (Encyclopedia Britannica, 2018)
In 2010, after an almost four-decade-long dispute, Russia and Norway signed a bilateral treaty on the maritime delimitation of Svalbard archipelago and the Russian Franz Josef Land and Novaya Zemlya of Russia. The two bilateral agreements have direct implications on the interpretation of the Svalbard Treaty, as they endorse Norwegian’s right to establish the EFZ, the EEZ or the continental shelf around Svalbard. Russia is most vocal about its interpretation of the Svalbard Treaty and sees that the dispute can lead to an armed conflict.197 The ability to reach a consensus on the governance of that area gives hope that agreements may be reached through negotiations regarding further disputed maritime zones around Svalbard. Although the steps taken by Norway are cautious, Norway has been assertive in adapting its maritime legislation of Svalbard based on its own economic development and the development of maritime law. Norway has not opened up any areas for research exploration in the Svalbard’s continental shelf, therefore preventing anyone from doing it.198 However, Norway continues to actively explore the Barents Sea, where the EEZ of mainland Norway extends almost up to Bear Island, which is part of Svalbard archipelago. This brings discussion to the next point, on the application of the principle of equidistance in the area between the Bear Islands and mainland Norway.
Due to the geographical proximity of the Bear Island of the Svalbard Archipelago, there was an overlap between the mainland Norway economic zone and the FPZ around Svalbard. Norway specified that the outer boundary of the economic zone of mainland Norway restricts the fishery zone. This means that economic zone of mainland extends to the fullest, and the FPZ
196 Ibid. 197 Nilsen (n92) 198 See Figure 2 in chapter III and 40 ends when it ‘meets’ the EEZ of mainland. Since there is no international law which sets rules on how a state should set maritime borders within its territory, this decision by Norway is permitted.199 Since Svalbard is under ‘full and absolute' sovereignty of Norway, Norway is entitled to set regulations in a way it finds most favourable, in this case giving the full effect of the 200-mile economic zone.200 The maritime delimitation between the Canadian provinces serves as an example of principle of international law applied in national jurisdiction.201 However, that case is slightly different from the delimitation between Bear Island and mainland Norway. In the case of Canada, the provinces had a dispute regarding delimitation, and all three had interest in settling it as they would then economically profit from it. In this situation, the interested parties are the HCP and Norway. Norway argues that as a sovereign state it can set boundaries in a way it desires own territories. This is a correct argument since both of the disputed territories are under ‘full and absolute’ sovereignty of Norway.202 However, since this is a case of international law, if this dispute proceeds to international courts, Norway will be need to follow the decision reached at international level. In observance with the past case law, it is safe to say that the international court is likely to first apply the equidistance rule and then see if it needs to be adjusted based on special circumstance. In this case geography could play a role. If Norway can successfully geologically prove that Bear Island ‘sits’ on Norwegian continental shelf, then the court is likely to adjust the delimitation line. The current oil and gas explorations going on in the region are not likely to affect the courts’ decision on adjusting the delimitation line.203 Law of the sea has consistently been applied to Svalbard and its continental shelf, however Norway has been somewhat contradicting in its arguments. While Norway states that Svalbard archipelago is located over the extension of the continental shelf of its mainland, in its submission to CLCS in regard to Svalbard/Greenland continental shelf and its 2010 resolution with Russia, it focuses on the continental shelf of Svalbard, and does not officially claim that the disputed continental shelf is an extension of its mainland.204
199 Churchill and Ulfstein (n27), p560 200 Svalbard Treaty, article 1 201 Arbitration between Newfoundland and Labrador and Nova Scotia, (n224) 202 Svalbard Treaty, article 1 203 Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon V. Nigeria: Equatorial Guinea Intervening) [2002] ICJ 204 'The Continental Shelf - Questions And Answers (n195) 41
Discussion of linguistic arguments
First, this section will analyse the type of sovereignty Norway has over Svalbard. It would not be accurate to say that Norwegian sovereignty over Svalbard is limited, on the contrary, the islands are under ‘full and absolute sovereignty of Norway.’205 Article 1 states that “The High Contracting Parties undertake to recognize, subject to the stipulations of the present Treaty, the full and absolute sovereignty of Norway over the Archipelago of Spitsbergen…” The ‘subject to the stipulations’ refers to the act of recognition by the HCP the sovereignty of Norway.206 Article 3 of the Svalbard Treaty defines those ‘stipulations’ for nationals of the HCP ‘shall have equal liberty of access for any reason… of the territories specified in Article 1… they [citizens of HCP] may carry … all maritime, industrial, mining and commercial operations on a footing of absolute equality.’ Thus, based on the stipulations, which include equal and non-discriminating access to resources on land and territorial waters, the HCP have agreed to recognise Norwegian sovereignty. Svalbard was under status of terra nullius for many years prior to the Treaty, therefore it is possible to assert that the non-discrimination and equal access conditions attached to the Treaty, attempted to preserve terra nullius status to the extent possible, played an important role in the recognition of Norwegian sovereignty over the islands. Based on the language, it appears that the only with equal access to resources, the Norwegian sovereignty is ‘full and absolute’ and without it, that would not be the case.207 Sovereignty, in the case of Svalbard, appears to be dependent on the conditions of equal access to resources, and without it, the HCP would not have recognised the Norwegian sovereignty over the islands. The phrase ‘territorial waters’ is important to analyse to see if the parties had a common understand on what it meant. Overall, the Svalbard Treaty has a detailed on stating what the land territories are. Based on MacCormick’s definition of ordinary and technical words, the phrase ‘territorial waters’ in the Svalbard Treaty concerns a technical subject-matter. The ordinary language does not have an accepted meaning for ‘territorial waters’ since this a term used in the
205 Svalbard Treaty, article 1 206 For more on sovereignty and recognition of Svalbard see Carl Fleischer, 'The New International Law Of The Sea And Svalbard'. Paper presented at The Norwegian Academy of Science and Letters 150th Anniversary Symposium, January 2007,
Table 1: practices of HCP regarding the territorial sea, prior to modern maritime law 210
HCP of Svalbard Treaty and Historical breadth of territorial sea, the USSR: prior to UNCLOS: Denmark 3 miles France 3 miles (1888) Italy 6 miles (1942) Japan 3 miles (1870) the Netherlands 3 miles (1889) Norway 4 miles (1812) Sweden 4 miles (1779) the United Kingdom 3 miles (1878) the United States 3 miles (1953) the United Soviet Socialist 12 miles (1909) Republic211
Out of the HCP, only Italy and the United States decided on their territorial sea after 1920, and Denmark did not submit any year on when it established the breadth of its territorial sea; all other states established the breadth of their territorial sea nearly 100 years prior to the establishment of status of the Svalbard Islands. This means that it is highly likely that the HCP knew the Norwegian custom of four-mile territorial sea at the time of the signing of the treaty.
208 See chapter IV, section ‘Historical development of maritime law and UNCLOS’ 209 This information was submitted by the respective countries for the Second United Nations Conference on the Law of the Sea in Geneva from 17 March to April 26 in 1960. 210 ‘Synoptical table concerning the breadth and juridical status of the territorial sea and adjacent zones’ extracted from ‘Official Records of the Second United Nations Conference on the Law of the Sea (Summary Records of Plenary Meetings and of Meetings of the Committee of the Whole, Annexes and Final Act),’ (Geneva, 17 March – 26 April 1960) A/CONF.13/C.l/L.ll/Rev.l
43
By applying article 31 (1) of VCLT, which provides that interpretation should be done with ‘ordinary meaning to be given to the terms of the treaty,’ it is likely that parties had a common understanding of the definition, thus the territorial waters referenced in article 2 and 3 of the Treaty did not need to be clearly specified. Another possible argument of why there was no specification of territorial waters and beyond, could be because the rush for water related resources was over. For centuries, attraction of Svalbard Islands was precisely for its marine life, however, overhunting significantly decreased the numbers of valuable animals and fish around the islands’ waters, shifting the focus towards hunting on land.212 The lack of economic gain from the territorial waters at the time, could also be named as the reason why territorial waters were never defined. Overall, since law of the sea was developing, it was reasonable for countries to expect that the definition of the term ‘territorial sea’ would change. The HCP had different definitions of the territorial sea and it would make sense that only within a matter of time there would be a uniform definition. Therefore, it is possible that the parties had a ‘common intention’ of the term to evolve, in this case, it means the length of territorial sea to change.213 At the time of the signing the Svalbard Treaty, the mare liberum was already an accepted principle of the international law.214 This principle only began to evolve in the second half of the 20th century, when some coastal states increased control over fishing rights, since most fishing occurred in territories further than four miles. The sea beyond the territorial waters were high seas and the high seas were not subject to jurisdiction of any nation.215 Most living resource hunting expeditions had to go out of the territorial sea for a valuable catch.216 Even with gentle breeze, in the 19th century, ships could travel at eight nautical miles per hour and since the territorial waters at the time were a short distance of four miles, leaving it to go fish in the high seas was not a problem.217 Since there was no authority over the high seas, ships had the freedom to catch as much fish and other marine animals as they desired. This could be another reason
212 As mentioned in Chapter II – before 1910, the latest settlers hunted for seals, foxes and bears for pelt. 213 Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ. 214 See Chapter IV, section ‘Historical development of maritime law and UNCLOS’ 215 ibid 216 See Chapter II, section ‘Historical context before 1907’ 217 Jean Vaucher, '19Th C Ships' (Www-labs.iro.umontreal.ca, 2018)
218 Svalbard Treaty, article 9 219 Svalbard Treaty, article 10
45 sovereignty over the islands, its ‘full and absolute’ sovereignty does seem to be dependent on conditions of equal resource sharing. 220
Discussion on teleological arguments
This section will discuss what the original treaty drafters attended to achieve with the Svalbard Treaty. A hundred years ago, the rush for coal, created a need for governance over the territory. At the turn of 20th century, coal became the reason of attraction to the islands and there was tension between the treaty parties regarding coal extraction territories.221 The potential for mining conflict and the fear of more armed conflicts arising (seeing that WWI just ended), can explain why the treaty stated that the islands needed ‘peaceful utilisation.’222 The parties were realising that there was a need to establish governance to avoid any future disputes. With a potential of another conflict, it appears that the competing interests of states needed governance to avoid future conflict.
It can also be argued that the purpose of signing the Svalbard Treaty was so Norway can finally establish control over its territories. After its separation from Sweden in 1905, Norway continuously pushed to establish the status of the Svalbard Islands. It is possible that Norway was not pursuing any economic benefit from Svalbard (and at the time, there was not much benefit) and simply wanted to establish a status of a territory that was near and with which it had historic ties. Norway was never vocally against a tristate rule or the idea of the shared natural resources and Robert Lansing, representing the US, seemed to think that Norway was rather neutral.223 This could also be because at the time the islands were not economically valuable or simply because it had that goal of deciding over who the islands belong to. However, it is possible that the reason for signing the Svalbard Treaty was simply to establish governance over the islands.
It is also important to focus on the fact that the territories of Svalbard have to be governed with an equitable regime. This means fair, reasonable and just governance over the territories. Today, these territories include the contiguous zone, the EEZ and the continental
220 Svalbard Treaty, article 1 221 see Chapter II, section ‘Historical context before 1907’ 222 Svalbard Treaty, preamble 223 Lansing (n44) and see chapter II, section ‘The Paris Peace Conference’ 46 shelf. Although these territories are not specifically stated in the treaty, they are part of the territories pertaining to the Svalbard Islands, therefore an equitable regime, should be provided for all territories, including the newly developed maritime zones.
But what does this ‘full and absolute’ sovereignty mean in teleological definition in regard to object and purpose of the treaty? If the object and purpose of the Svalbard Treaty was to establish governance due to competing interests of states in exploiting resources, it could then be argued, that the sovereignty of Norway is ‘full and absolute’ and therefore includes the maritime zones of territorial waters, contiguous zone, continental shelf and the EEZ. However, since the ‘full and absolute’ sovereignty comes with the package deal of equal sharing of resources, Norway is therefore should allow the HCP to make use of the resources located on the continental shelf and EEZ. Given that the parties agreed to the Svalbard Treaty because it preserved the rights embedded in the previous terra nullius status of the islands in articles 2, 3 and 7, it would make sense to continue preserving that right for the HCP.
Seeing that Norway has already applied the 12 miles territorial waters and the FPZ, it could be argued that based on the principle of estoppel it must continue to apply the modern maritime law. Yes, one hand, the FPZ is a form of maritime zone, although it is not explicitly outlined in UNCLOS. Norway argues it established the FPZ for environmental protection purposes. However, Norway could have extended the territorial waters to 12 miles, not because it had to due to international law, but because it wanted to give the treaty its full effect in the literal meaning of the phrase ‘territorial water.’
Based on teleological interpretation and that law facilitates development, it would be beneficial to conclude that modern maritime zones fall within this scope of the Svalbard Treaty. By doing so, the Svalbard Treaty in the heart of which is fair and just resource sharing, could serve as a case study of international resource sharing, which would truly facilitate cooperation and could set an example for other regions with conflicting resources. On the other hand, bringing more parties to a disputed area and sharing the scarce yet necessary resources, could result in a more serious world-wide conflict. In reality, the latter conclusion seems to be more likely since wars over resources have happened.
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VI. Conclusion
Today the Svalbard Islands have caught the world attention again. Since their discovery, the islands were popular for their natural resources. The natural resource exploitation began with whale hunting around the islands. This went on for centuries, thus access to the waters around Svalbard has always played a significant role in the politics of the islands. After the decrease in marine animals, the on-land mammals such walruses, polar bears and others were hunted. Since the islands were never claimed by any state and the territory was quite large and for North, there were relatively few international conflicts. The interstate conflicts that did occur were about access and division of the territorial waters. Today, not much has changed. Svalbard is still attracting interest for the same reasons: maritime resources and the disputes are very much about the same – the waters around the islands. Under international law of the sea, Svalbard generates the maritime zones such as the continental shelf and the EEZ. Yet there is no clear-cut answer on whether they are included within the Svalbard Treaty. Of course, the present-day maritime zones were non-existent when the treaty was signed, therefore they are not defined. However, there was also no reason to define them because the parties had unrestrictive access to them regardless, as anything beyond the territorial see was mare vastum liberrimum.224 Preservation of the status of terra nullius and ensuring that countries have access to the resources located in and around the islands was important for the treaty parties. Keeping in mind that the territory beyond the territorial sea would have already been unrestrictedly available to the HCP, and that the interest of all in preserving the terra nullius, it could be reasonable to conclude that the Svalbard Treaty should include all of the maritime zones created by UNCLOS of 1982. If that were to happen, Norway, as the country responsible for providing ‘equitable regime’ over the islands, could through law and governance forbid any exploration and resource exploitation in those regions, of course on a non-discriminatory manner to all treaty parties, including itself. In regard to maritime EEZ-continental shelf overlap between the Bear Island and mainland Norway, it is possible that the equidistance principle can be adjusted, if the case makes it to an international court. That adjustment will depend on the geological proof from Norway
224 Grotius and the freedom of the seas (n111) 48 that the Bear Island is located on the continental shelf of Norway, therefore the delimitation shift will probably depend on how far the continental shelf of Norway extends. The Svalbard Treaty has many parties, and it can be expected that more countries which have interest in the Arctic may want to ratify it. With that in mind, the idea of opening up the continental shelf and the EEZ to over 50 countries, may not be a good idea. If valuable mineral resources are discovered, the fight over those reservoirs could lead to a conflict, despite the focus of peaceful use of the sea by both UNCLOS and the Svalbard Treaty. Svalbard Islands will most likely be further discussed in the upcoming couple of years, as the race for the Arctic continues and it will be interesting to observe how the positions of the parties will evolve.
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