MASTER OF SCIENCE IN MARITIME SCIENCE MASTER’S DISSERTATION

Academic year 2019-2020

The 1920 Spitsbergen Treaty and contemporary international law

Kristel Jurado

Submitted in partial fulfilment of the requirements for Supervisor: Professor Franck Maes the degree of:

Master of Science in Maritime Science Assessor: Klaas Willaert

Table of Contents

I. Introduction ...... 5 II. Main Chapters ...... 7 A) The legal status of Svalbard ...... 7 1) History of the Svalbard archipelago ...... 7 From the 12th century until WWI ...... 7 After WWI until the signature of the Treaty ...... 10 2) The 1920 Spitzbergen Treaty principles ...... 12 Geographical Scope ...... 13 Limitation on the exercise of authority ...... 14 Equal treatment and non-discrimination ...... 15 International agreements ...... 17 3) Brief overview of the evolution of international law of the sea since 1920 ...... 19 B) Fisheries resources, management and regulation in Svalbard...... 22 1) Fisheries Resources in Svalbard ...... 23 Current overview of the fisheries ...... 23 Future prospects: global warming and the alteration of the Arctic marine ecosystems ...... 26 2) Fisheries management and regulation in the maritime zones of Svalbard ...... 27 Who is fishing in the Svalbard waters? ...... 28 How is the fisheries management implemented by Norway? ...... 29 International legislation and instruments – Relevant fisheries instruments at bilateral, regional and multilateral level ...... 30 Against this background, how are the commercial fisheries regulated in Svalbard? ...... 34 3) Norwegian Enforcement Measures in the maritime zones of Svalbard ...... 38 C) Implementation of the 1920 Spitzbergen Treaty in Svalbard’ Maritime Areas under the new concepts brought by UNCLOS ...... 41 1) Application of Maritime Delimitations in Svalbard ...... 41 The territorial sea (“territorial waters”)...... 42 The Fishery Protection Zone (Exclusive Economic Zone) ...... 43 The Continental shelf ...... 52 2) Disputes on the applicability of the Spitsbergen Treaty ...... 56 The quota allocation system ...... 56 The reporting requirements ...... 57 The exercise of enforcement jurisdiction ...... 58 Controversy around the management and harvesting of a new species, the snow crab ...... 60 D) Conflict resolution mechanism ...... 62 1) Could a judicial settlement be possible though the UNCLOS mechanism of settlement of disputes ...... 62

2) Other possible solutions and mechanisms ...... 64 A New Svalbard Conference...... 65 A negotiated informal interpretation ...... 66 Conclusion ...... 68 III. Bibliography ...... 70 IV. Annexes...... 79 Annex 1 – Map of Norwegian Economic Zones in the Northeast Atlantic ...... 80 Annex 2 –The 1920 Spitsbergen Treaty ...... 81 Annex 3 – Table 1- Total value and live weight of the main fish and shellfish species caught by Norwegian fishing vessels in the Svalbard Zone 1980–2013...... 91

I. Introduction

Known in Old Norse1, as the “Cold Coast”, the Svalbard Archipelago (hereinafter, Svalbard) is located in the Arctic Ocean, well north of the Arctic Circle, and is the northernmost part of Norway. This Archipelago lies between Norway mainland and the North Pole, bordered by Greenland (Denmark) in the west, and by Franz Josef Land (Russia) in the east2. Spitsbergen (formerly West Spitsbergen) is the largest island covering 39,044 square km, out of the total area of 62,700 square km of Svalbard.

In 1920, the Treaty Concerning the Archipelago of Spitsbergen3 (hereinafter, the Spitzbergen Treaty or the Treaty), originally signed by 14 High Contracting Parties, was adopted and entered into force in 1925. The Treaty put an end to the status of terra nullius of the Archipelago and crystalized the sovereignty of Norway under the limitations as set out in the Treaty.

This year 2020 marks the century anniversary of the 1920 Spitzbergen Treaty. Nowadays, no one questions that Svalbard Archipelago is a part of the Kingdom of Norway or that the Treaty still applies. However, disputes have arisen on the territorial scope of the applicability of the Treaty in the context of the emergence of maritime zones as codified by United Nations Convention on the Law of the Sea (hereinafter UNCLOS), and therefore not contemplated by the drafters at the time of the Treaty.

The question underlying these disputes is how the legal system put in place by the 1920 Spitsbergen Treaty is to be implemented in the framework of the contemporary international law of the sea framework. The legal nature of the maritime areas of Svalbard in relation to the contemporary concepts of territorial sea, Economic Exclusive Zone (hereinafter, EEZ) and continental shelf is an issue. Correlated to this is the question of the management of the marine living resources in the above-mentioned maritime areas and the possible management response to the arrival of new species that migrates due to the warming of oceans. Diverging views on the implementation and applicability of the Treaty have created tensions, but does the contemporary international law bring credible solutions to solve the conflicts.

1 “Old Norse Name 1194. Many geographers and historians agree that the Svalbard mentioned in the Icelandic Annals as discovered in 1194 is really what we call Svalbard today or part of it. lf this is right Svalbard is the oldest attested name in the archipelago., page 7. (Orheim & Hoel, 2003). 2 “Svalbard” entry in Encyclopaedia Britannica. 3 See Annex 1.

The numerous questions triggered by Spitsbergen Treaty, not only concerning marine living resources, have been addressed in several studies and articles. The question goes beyond fisheries, as the Treaty, for instance, also encompasses mining activities under its non- discrimination principles. However, the object and focus of this dissertation is fishing and maritime living resources. The purpose of this dissertation is to provide a broad overview on the issue by encompassing historical, scientific and legislative aspects in relation to Svalbard.

This dissertation will address in its first part (A) the legal status of Svalbard by presenting an historical background, shading light over the Treaty’s principles and interpretation and an overview of the evolution of the law of the sea in the 20th century. The second part (B) will consists of a description of the fisheries resources and their management, as well as their regulation and the means to regulate and enforce. Then, in its third part (C), the dissertation will dig into the implementation of the Treaty within the maritime areas as codified by UNCLOS, and the subsequent disputes that have emerged due to diverging views on the territorial scope of applicability of the Treaty. Finally, as the Treaty does not provide tools to settle disputes on its interpretation or applicability, the last part (D) will assess if the contemporary law of the sea, UNCLOS, offers a mechanism applicable to the disputes or whether other options exists.

II. Main Chapters

A) The legal status of Svalbard

The main objectives of this section is to provide a clear overview of the legal framework governing the Svalbard archipelago prior to the signature on 9 February 1920 of the Paris Treaty, by understanding the history that shaped its archipelago status (1). Subsequently, this section will present a general analysis of the principles emerging from the 1920 Spitzbergen Treaty, followed by a special focus on fishing activities (2). Finally, this section will provide a brief overview of the evolution of the law of the sea, from the adoption of the 1920 Spitzbergen Treaty until the signature and entry into force of the Convention on the Law of the Sea in 1982, thus presenting the new concepts that emerged in the law of the Sea (3).

1) History of the Svalbard archipelago

From the 12th century until WWI

Despite evidence of a discovery that can be traced to the 12th century4, the Svalbard archipelago was not officially on the radar of the modern states until the June 1596 rediscovery of the territory by the Dutch explorer William Barents, and vessel master Jacob van Heemskerck. Similar to their predecessor Christopher Columbus, the explorers aimed to find a new and shorter route towards the East through via northern waters. Other explorers such as Hugh Willoughby, claimed to have already found the territory, which he declared to have observed and named “Mascin of Islands” during his Arctic expedition in 1554.

The 17th century witnessed an increasing interest of European sailors in rich fauna on land and at sea, including marine mammals. In 1553, England launched the Muscovy Company, becoming the first ever nation to create a chartered trading company, and, to which Queen Elizabeth I granted the monopoly charter on whaling in 1577. By the early 17th century, Spitsbergen came to represent the company’s primary and most profitable whaling grounds. Despite attempts to drive away competition from other nations, Dutch merchants had also joined the whaling race in the waters around Svalbard with the creation of the Nordsche

4 “Many geographers and historians agree that the Svalbard mentioned in the Icelandic Annals as discovered in 1194 is really what we call Svalbard today or part of it. lf this is right Svalbard is the oldest attested name in the archipelago., page 7. (Orheim & Hoel, 2003).

Companie in 1614. Soon to follow were French, Hanseatic, Danish and Norwegian whalers whose quarrels over whaling rights resulted in the division of the coast.

The disputes did not only cover the sovereignty claim on the islands, as exemplified by the Denmark-Norway claim throughout the 17th-18th centuries, to which King James I of England had vehemently rejected, but also on claims from the Netherlands, France and Spain linked to the freedom of the seas principle. Those latter states had claimed whaling rights according to the principle of mare liberum, as defined by Dutch jurist Hugo de Groot, Hugo Grotius in Latin, in 1609. According to this principle advocating for freedom of the high seas, no state may claim sovereignty over the ocean, which shall be accessible to all states for shipping, trade and fisheries. At that time, no single state was able to enforce any authority in terms of regulating the exploitation of Svalbard’s resources, and thus unregulated hunting resulted in the total collapse of those resources. (Wolf, 2013)

The decline of whaling by 1800, due to over exploitation of stocks, also marks a decline in modern state interest in the islands of the archipelago as a whole and therefore a standstill in their exploration. The unrestricted activity of the whaling period had almost extinguished the Greenland whale, while also severely decimating other fauna of the archipelago (Orheim & Hoel, 2003). The Russians arrived around 1720 and began hunting the remaining valuable animals, such as foxes, bears, reindeer and birds, as well as seals and walruses.

As of 1815, Sweden and Norway were united under the same crown. Historian Roald Berg argues that several factors, notably a Norwegian cultural and linguistic revolution heightened the will of “Norwegianization” (Berg, 2013). Another evidence is the fervour around the expedition of Baltazar Mathias Kelhau in 1827 which served as an illustration of a new Norwegian nationalism that had gained strength by the 19th century. This sentiment became more deeply ingrained year by year, along with the idea of Arctic sovereignty (Carlet, 2016). At the same time, the Norwegian hunting trade continued to increase, and by approximately 1850 the Norwegians stood alone in exploiting the economic possibilities of the archipelago.

In 1867, the Norwegian inhabitants of Finnmark submitted a petition to establish a colony in the archipelago. The Swedish-Norwegian government inquired among other important European states regarding their positions (which took place in the context of the Franco- Prussian War). The Swedish-Norwegian government’s attempt to take control of Svalbard in 1871 was ultimately unsuccessful due to Russia’s refusal. Following an exchange of diplomatic notes (Carlet, 2016) with several European nations, Svalbard’s status of terra

nullius, i.e. no man’s land, was ultimately determined. A terra nullius is defined as territory without a master. It is a space that can be inhabited, in which a certain social organization can exist, but which is not under the jurisdiction of a State (Salmon, 2001)5. Legally, this signified that no state could have overarching authority or jurisdiction over the archipelago, and therefore all states could avail themselves of the archipelago’s resources (Numminen, 2011). A new era in the exploration of Svalbard began, marked by scientific cooperation between Norwegians and Russians in order to map out the archipelago and investigate its climate, geology, flora and fauna.

Not until the beginning of the 20th century did the archipelago experience a renewed interest linked to the coal deposits and arrival of companies and individuals from various countries, which also led to the claiming of mineral rights. The growing economic activity and the rising tensions brought to light the need for a legal framework for the activities in the archipelago, such the determination of exclusive ownership of land or the competence to legislate and adjudicate in the event of conflicts between miners and owners (Numminen, 2011). Finding a solution to the Spitzbergen issue was high on the agenda of the freshly independent Norwegian state in 1905. In 1907, Norway declared in a notification that the existing legal regime of the archipelago was insufficient (Numminen, 2011). The Norwegians insisted that the area remain terra nullius, yet under the joint administration of Norway, Sweden and Russia. Sweden and Russia were the only two European powers that showed an interest in settling the dispute. Therefore, the issue of jurisdiction was discussed among the three countries. The big European powers gave them a tacit mandate to prepare a draft proposal. Norway took the lead and organised three international conferences in 1910, 1912 and 1914, the Kristiana6 Conferences, in Oslo, with the purpose to address the growing need for regulation and control of coal mining operations. The idea of an international joint governance of the archipelago as a condimium7, where the three countries - Norway, Sweden and Russia- would form the commission governing the territory, thus sharing sovereignty and jointly exercising it, takes its roots in the British-French administration of the New Hebrides

5 Original text in French : “On appelle « terra nullius », ou territoire sans maître, un espace qui peut être habité, dans lequel peut exister une certaine organisation sociale, mais qui ne relève pas d’un État”. (Salmon, 2001) 6 Kristiana is the former name of Oslo from 1624 to 1925. 7 “By establishing a condominium, two or more states take over the totality of state functions in that territory and with respect to all the persons therein, and they undertake to exercise state powers in a collegial manner, generally on a parity basis. As a result, the territory in question cannot fall under the territorial sovereignty of any of the States that manage it; this is a way of freezing conflicting territorial claims; it remains foreign territory for all” (original text in French). (Daillier & Pellet, 2002)

in the Pacific Ocean (which would later be criticized and revoked)8. They made plans that would grant the administration of Svalbard to an international commission, which would subsequently appoint a governor from one of the various signatory states on a six-year rotational basis (Numminen, 2011). Success did not transpire as the proposals presented at the Kristiana Conferences were repeatedly met with opposition. In 1910 and 1912, no agreement could be reached for the respective two draft agreements put forward, mainly due to the unwillingness of other countries, in particular Germany and the United States, to leave joint governance to those three states. At a conference convened in 1914, Germany and the US insisted on participating in the governance regime of Svalbard, whereas Russia especially rejected this approach (Wolf, 2013). The outbreak of the First World War put a hold on the planning of the fourth conference and corresponding discussions.

After WWI until the signature of the Treaty

In the aftermath of the WWI, there was no longer a reason to delay the resumption of the discussions that had been put to a sudden halt due to the war. During the peace negotiations of 1919, Norway, through its envoy Count Wedel Jarsberg, decided to argue its case that the only “satisfactory and lasting solution would be to return the archipelago to Norway” (Meld. St. 32 (2015–2016))9. Following the Norwegian request, the issue was added to the conference negotiation agenda, even though the Svalbard area was not affected by the military operations of the war itself. For this reason, the Paris Peace Conference established the Spitsbergen Commission, requesting Norway to draft a convention on the status and administration of Svalbard. One reason is that Norway, a neutral state during the war, sustained a heavy toll: an important part of its merchant fleet had been sunk, resulting in loss of life and tonnage. In addition, Norway had secured uninterrupted sea lines of communication and supply during the war. That is why, in addition to their sympathy with the arguments presented by Norway, the great powers wanted to compensate Norway for its losses. Robert Lansing, who would later became US Secretary of State, told foreign ministers during the discussion related to Svalbard that he was in favour of Norwegian sovereignty as it would be the solution that would most likely reduce tensions in the region (Singh, 1980). Furthermore, Russia, for which the decision was important due the strategic importance of the archipelago (Hønneland, 2014), was not at the Paris Conference settlement talks for several domestic reasons among which being the Allies’ refusal to officially recognise

8 An arrangement which was later criticised and eventually dissolved prior to the creation of the independent state of Vanuatu 9 Textbox 3.1. From Norway’s presentation to the Supreme Council of the Paris Peace Conference on 10 April 1919.

Russia’s ruling power (the new Bolshevik Government) at the time, . Nevertheless, Russia’s representatives transmitted its position, favouring conditions similar to those agreed upon in 1912, i.e. which would safeguard the interests of Russia in the archipelago. In 1919, Norwegian Foreign Minister Ihlen gave his assurance that Norway would not create any difficulties in the settlement of Denmark’s claim to Greenland. This reassurance aimed at a mutual understanding with the Danes that Denmark would also refrain from creating hurdles over Norway’s claim to Svalbard. This was the case as stated in the Report of the Spitzbergen Commission to the Supreme Council of the Peace Conference on 5 September 191910.

This Report of the Spitzbergen Commission11 shows that various solutions were discussed in order to solve the archipelago’s no man’s land status. One solution, with the support of the Government of the Netherlands, was to grant Norway a mandate on behalf of the League of Nations. Another solution, as advanced by Norway, was to attribute sovereignty to Norway, provided that some guarantees would be safeguard for the benefit of the other states. Considering the “great interests” of Norway in Spitzbergen, its “proximity to the archipelago”, and the “advantage of a definite settlement”, the Spitzbergen Commission rejected the option in which Norway would administer the territory on behalf of the international community, and unanimously agreed to recognise Norway’s full sovereignty over Svalbard, under a number of conditions. This mechanism did not encounter any “objections from any of the most directly interested Powers” (Meld. St. 32 (2015–2016))12. The Spitsbergen Commission had no difficulties in reaching an agreement, which, to a great extent, was consistent with the Norwegian draft convention.

The treaty was prepared so as to protect the interests of the High Contracting Parties, including the Allies and Associated Powers. The treaty preserved terra nullius rights for other states allowing them to continue economic activities and access the Svalbard’s territorial waters. Other states were also invited to accede to the treaty through a simple notification measure. This approach allowed a broad support to agree on the final settlement for this “territory not belonging to anyone” and for which “everyone agrees upon the necessity of ending this state of affairs by giving it a definite status”.

Norway, the United States, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Sweden (See Annex I) eventually signed the Spitsbergen Treaty on 9 February 1920. As the

10 Papers Relating to the Foreign Relations of the United States (1946). 11 Papers Relating to the Foreign Relations of the United States (1946). 12 Textbox 3.2 From the Report of the Spitsbergen Commission to the Supreme Council of the Peace Conference on 5 September 1919.

treaty allowed, several additional state later acceded to the treaty. The Soviet Union formally recognised Norwegian sovereignty over the archipelago in an exchange of notes with Norway in 192413. Forty-six states have acceded to the Treaty of the Parties14. All EU Member States with the exception of Ireland and Luxembourg are also contracting Parties. The EU itself is not a contracting party, as the treaty only provides for the accession of individual states. Under Article 10 of the 1920 Spitzbergen Treaty, “third powers” may adhere to the ratified treaty15.

2) The 1920 Spitzbergen Treaty principles

The Paris Treaty’s interpretation should follow the general rules of interpretation of treaties as described in Article 31 of the 1969 Vienna Convention on the Law of Treaties. It should be noted that despite the principle of non-retroactivity enshrined in Article 4 of the treaty, the International Court of Justice (ICJ) has typically applied Articles 31-33 of the Vienna Convention to interpret previously concluded treaties, which reflects customary international law (Churchill and Ulfstein, 2010).

Paragraph 1 states that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Even though Norway is not a party to the Vienna Convention, the rule of interpretation encompasses customary law, which bind all states. The original text of the Treaty was authenticated in French and English, in the context of the Versailles negotiations, and only those two versions can be used for interpretative weight. In the case of the Spitsbergen Treaty, the terms, object and purpose and context of the Treaty do not indicate a clear-cut conclusion as to whether the rights in Article 2 and 3 apply beyond the territorial sea (Churchill & Ulfstein, 2010)16.

13 The recognition was made without conditions, 11 years before the Soviet Union ratified the treaty in 1935. As stated in the communication, the recognition meant the Soviet Union would not raise any future objections to the treaty. The 1920 Spitzbergen Treaty came into force on 14 August 1925. (Meld. St. 32 (2015–2016)) 14 List of Parties to the Spitsbergen Treaty in the Netherlands Ministry of Foreign Affairs’ website, accessed on 10 August 2020. To be noted that Yugoslavia acceded to the Spitsbergen Treaty on 6 July 1925, became a party on 14 August 1925, but was dissolved on 25 June 1991 15 The term “Power” must be read as “State” because of the historical context of the Svalbard Treaty and the interrelation of the notion “Power” with the concept of State Power. Therefore, the EU was not seen to be eligible as a Contracting Party to the Svalbard Treaty. In as much as fisheries are concerned, The EU exercises the rights and performs the duties under the Treaty. It was the first international legally binding agreement dealing with the Arctic. (Wolf, 2013) 16 In their article, the two authors apply a thorough and detailed analyses of the meaning to the terms of the treaty, the object and purpose of the Treaty and to the context, and reach this observation.

Paragraph 4 provides that a special meaning – to be understood as a meaning that differs from ordinary usage in international state and treaty practice – “shall be given to a term if it is established that the parties so intended”. Furthermore, Article 32 on supplementary means of interpretation clarifies that “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31”. In other words, the context and the intention of the parties to a treaty are essential to understanding a treaty, and making use of its preparatory work can support its understanding. Paragraph 3 of Article 31 specifies three elements to be taken into account in addition to 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”.

This section will therefore summarize the relevant treaty principles that facilitate the Spitsbergen Treaty’s understanding and interpretation in particular the requirement of equal treatment and non-discrimination, in particular for fishing activities, in addition to briefly presenting several subsequent international agreements. The subsequent section will focus on the relevant rules of international law applicable to relations between parties specifically in with regard to fisheries.

Geographical Scope

Article 1 of the Treaty reflects the outcomes of the settlement negotiations by recognizing “the full and absolute sovereignty of Norway” over “Bear Island or Beeren Eiland, all the islands situated between 100 and 350 longitude East of Greenwich and between 740 and 81 0 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”. However, the geographical scope in Article 1 only refers to the coordinates of land territories (“all islands great or small and rocks”), while Article 2 further specifies “and in their territorial waters”, which at the time of the treaty was extended to four nautical miles off the coast of Norway.

If the evolutionary approach to the interpretation of generic treaty terms is applied, as exemplified in the Aegean Sea17 and Costa Rica v. Nicaragua cases18, the term “territorial waters” in Article 2 of the Spitsbergen Treaty must be interpreted as having the same meaning as the term “territorial sea” in UNCLOS. This would subsequently imply that “territorial waters” could not include areas beyond 12 nautical miles from Svalbard’s baselines (Churchill & Ulfstein, 2010).

Limitation on the exercise of authority

The preamble of the Spitsbergen Treaty states the following: “Desirous, while recognising the sovereignty of Norway over the Archipelago in Spitsbergen (…).”Article 1 of the Spitsbergen Treaty further goes on to affirm that the High Contracting Parties “undertake to recognise, subject to the stipulation of the present Treaty, the full and absolute sovereignty of Norway over the Archipelago of Spitsbergen”. It should be noted that no limitations are set in this article, thus the ‘stipulations’ do not affect the sovereignty of Norway as such, but rather qualify its exercise of authority in specifically defined areas. In internal or domestic terms, sovereignty refers to those territories where the state concerned may act without interference from any other state (Island of Las Palmas Case 1928, 829), as a result of the state’s institutions having full jurisdiction within its defined territory (Shaw, 2008). Therefore, the wording of the treaty, which granted “absolute sovereignty” to Norway, covered not only legislative rights within the archipelago but also the freedom to regulate the area in accordance with the treaty for the benefit of the signatories (Scotcher, 2011)

In the external dimension, sovereignty refers to the supremacy of the state in international affairs as a legal person (Shaw, 2008).Norway may also act on the external level, to deal with foreign policy affairs relating to Svalbard, including entering into treaties implicating Svalbard and its defence (Churchill& Ulfstein, 2010). The Treaty grants Norway the right to influence the archipelago’s affairs (Numminen, 2011).

While Churchill& Ulfstein (2010) argue that Norway therefore has no more duty to consult with other states on the government of Svalbard than any other state has on the management of its own sovereign territories, Wolf (2013) considers that Norway’s sovereignty was only recognized in connection with the other State Parties’ non-discriminatory rights, which place

17 Aegean Sea Continental Shelf, Greece v Turkey, Jurisdiction, Judgment, [1978] ICJ Rep 3, ICGJ 128 (ICJ 1978), 19th December 1978, United Nations [UN]; International Court of Justice [ICJ]. 18 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) case, Judgment of 13 July 2009.

far-reaching restrictions on Norway’s sovereignty, per se and ab initio, i.e. from the instant of the act.

Under customary international law, Norwegian sovereignty over Svalbard must also be considered binding on states not party to the Spitsbergen Treaty, because of the Norwegian effective occupation and exercise of sovereignty over Svalbard, and in the absence of any state protest thereof (Churchill& Ulfstein, 2010). However, the Treaty allows any non-Parties to adhere to the Treaty and comply with its provisions.

Norway’s obligations under the Spitsbergen Treaty are especially linked to three issues, namely requirements of equal treatment, collection of taxes and duties, and military matters. For the purpose of this dissertation, the following section will focus exclusively on the requirement of equal treatment.

Equal treatment and non-discrimination

As described in the Report of the Spitsbergen Commission to the Supreme Council of the Peace Conference on 5 September 1919, the objective of the drafters was to “reserve the interest of the High Contracting parties” with regard to acquired rights and new rights. The aim was to state “how the rights acquired were to be definitely established, and then, how the acquisition and enjoyment of new rights should be regulated thereafter”.

For acquired rights, the Commission intended to fully guarantee the acquired rights belonging to all nationals of the contracting parties in addition to subsequently adhering powers. In Article 6, the Treaty states that “acquired rights of nationals of the High Contracting parties shall be recognised”. Regarding newly acquired rights and their enjoyment and exercise, as stated in Article 7, Norway should grant “all nationals of the High Contracting Parties treatment based on complete equality”.

Under the Treaty, Norway has an obligation to ensure equal rights based on nationality for persons and on national affiliation for companies from the contracting parties to the Treaty in areas defined in the Treaty. This is consistent with the purpose of this requirement, i.e. to preserve the previous terra nullius rights (Churchill& Ulfstein, 2010). However strictly speaking, it is incorrect to argue that non-discrimination is a principle of the Spitsbergen Treaty, because while it is required under several provisions of the Treaty with respect to specific substantive matters, there is no general requirement of non-discrimination (Churchill& Ulfstein, 2010).

Activities covered in the treaty include hunting and fishing, with Article 2 stipulating “ships and nationals of all the High Contracting Parties shall enjoy equally the rights of fishing and hunting”. Concerning access to the archipelago, Article 3 reaffirms that “The nationals of all the High Contracting Parties shall have equal liberty of access and entry for any reason or object whatever to the waters, fjords and ports of the territories specified in Article 1”, engaging in certain types of commercial activities such as “all maritime, industrial, mining and commercial operations” (Article 3). The Treaty unequivocally protects the rights of the contracting parties, for instance to fish or hunt, within the archipelago and around its territorial waters. These assertions are intended to guarantee that nationals and/or companies (or ships) from contracting parties are treated without distinction in the territories covered by the Treaty, and that nationals and companies are disadvantaged vis-à-vis Norwegian nationals or companies.

This equal treatment approach does not prevent Norway from regulating, or even prohibiting activities, especially in order to protect the fauna and flora. For instance, Norway can “maintain, take or decree measures to ensure the preservation and, if necessary, the re- constitution of the fauna and flora of the said region, and their territorial waters […] these measures shall always be applicable equally to the nationals of High Contracting Parties without exemption, privilege or favour whatsoever” (Article 2). In other words, the Treaty does not allow anyone unlimited or unconditional liberty in carrying out the activities regulated under the Treaty, because Norway has the right to enact regulations in this regard, as long as an ‘absolute equality’ is applied to all subjects of the Treaty. Norwegian authorities want to ensure a sound regulation of the activities covered by Svalbard (Meld. St. 32 (2015– 2016)). It is a corollary to apply the same regulations from Mainland-Norway to Svalbard, should the developments in a given activity warrant it. Furthermore, the treaty also presupposes the observance of local laws and regulations as a condition to exercise rights such as those outlined in Article 3, which stipulates that “equal liberty of access and entry for any reasons or object whatever to the waters, fjords and ports is subject to the observance of local laws and regulations”.

With respect to trade (import, exports and transit), Article 3 of the Treaty uses the ‘most- favoured nation’ principle’19, which guarantees trading opportunity equal to that accorded to

19 Most-favoured-nation treatment (MFN), also called normal trade relations, guarantee of trading opportunity equal to that accorded to the most-favoured nation; it is essentially a method of establishing equality of trading opportunity among states by making originally bilateral agreements multilateral. As a principle of public international law, it establishes the sovereign

the most-favoured nation, links that to the treatment accorded to nationals, ships and goods in Norway.

The principle of equal treatment and requirement of non-discrimination applies only to the activities set forth in Articles 2 and 3, however, the extent of what is covered by the requirement of equal treatment “must be determined on the basis of an interpretation of the Treaty” (Meld. St. 32 (2015–2016)). In addition, Article 8 provides that taxes levied in relation to activities covered by Svalbard “shall be devoted exclusively to the said territories and shall not exceed what is required for the object in view.” This means that Norway may not impose higher taxes and fees than what is required for the administration of the archipelago. The purpose of this requirement is closely connected to that of non- discrimination: Norway should not profit financially from its sovereignty (Churchill& Ulfstein, 2010).

To summarize, the Treaty determined Norwegian sovereignty over the territorial waters appertaining to the archipelago, whereas the use and exploitation of their resources remained a collective remit (Scotcher, 2011).

International agreements

As mentioned above, in addition to the context and the intention of parties to a treaty, Article 31 of the Vienna Convention also implicates any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.

Norway, by virtue of its sovereignty, has the right to influence the archipelago’s foreign policy and can act on an external level, for instance by entering into treaties concerning Svalbard. That is to say that, unless an agreement explicitly excludes Svalbard or unless Norway has made a reservation as to its geographical application, Svalbard would be included in the agreement (Wolf, 2013). In that regard, this section will highlight major relevant international agreements such as the EEA Agreement and Schengen Agreement, WTO Agreement and GATT Agreement and the UN Security Council sanctions adoption.

As explained in Wolf (2013), the European Economic Area (EEA) Agreement could have had a legal impact on Svalbard, in particular through the internal market rules. The EEA was established in 1994 following an agreement between the Member States of the European Free Trade Association (EFTA) and the European Community (EC), later to become the EU.

equality of states with respect to trading policy. As an instrument of economic policy, it provides a treaty basis for competitive international transactions (Encyclopaedia Britannica).

Specifically, it allows EFTA States, i.e. Norway, Liechtenstein and Iceland to participate in the EU’s single market without a conventional EU membership. In exchange, they are obliged to adopt all EU legislation related to the single market, except that legislation that relates to agriculture and fisheries20. Svalbard was excluded from the scope of application of the EEA Agreement, under Sect. 6 of the Norwegian EEA Act of 1992. The exemptions of the territory of Svalbard from the application of the EEA agreement was a Norwegian decision authorised under Protocol 40 of the EEA Agreement,21 and was due to the special circumstances ensuing from Norway’s international legal obligations under the Spitsbergen Treaty. For rules stemming from Norway’s obligations under the EEA Agreement to apply to the archipelago, the relationship to Spitsbergen Treaty parties that are not members of the EEA would have to be clarified on account of the principle of non-discrimination in the areas where this principle applies. However, the free trade agreements between Norway and the European Economic Community and the Convention establishing the European Free Trade Association continue to apply to Svalbard (Meld. St. 32 (2015–2016)).

The Schengen Agreement was signed in 1985. The purpose of the agreement is to abolish border posts and border controls between member states and reinforce external border controls. Norway acceded to the Schengen Agreement in 1996. As a consequence of the provision in Article 3 of the Spitsbergen Treaty governing access, Svalbard is not covered by the agreement concerning association with the Schengen cooperation. However, this did not prevent the Norwegian Ministry of Justice and Public Security from announcing that Norway will permit the residents of Schengen Zone and EEA countries to travel to the Svalbard archipelago starting on July 15 this year (2020)22.

No general reservations concerning Svalbard were made in connection to the establishment of the World Trade Organization (WTO). The WTO was created based on the previously concluded General Agreement on Tariffs and Trade (GATT), which entered into force on 1 January 1948. Similarly, GATT contains no reservations towards Svalbard. Among GATT’s key objectives are non-discrimination and the reduction and elimination of tariff and trade barriers. In essence, the agreement’s principles are in harmony with the Spitsbergen Treaty’s requirement for non-discrimination. In practice, GATT’s lacking of special significance for

20 See Part II – Free Movement of Goods, Chapter 2- Agricultural and Fisheries Products of the EEA Agreement. 21 The Protocol 40 informs in its paragraph 2 that: ‘If the Kingdom of Norway avails itself of this right, existing agreements applicable to Svalbard, i.e. the Convention establishing the European Free Trade Association, the Free Trade Agreement between the European Economic Community and the Kingdom of Norway and the Free Trade Agreement between the Member States of the European Coal and Steel Community and the European Coal and Steel Community of the one part, and the Kingdom of Norway of the other part, shall continue to apply to the territory of Svalbard.’ 22 See article from the Schengenvisainfo.com.

Svalbard stems from the Act of 21 December 2007 No. 119 relating to customs duties and movement of goods (the Customs Act), which clarifies that Svalbard, as with Jan Mayen or Norwegian dependencies, lies outside the Norwegian customs territory. Therefore, goods imported to Norway from Svalbard are subject to customs clearance. Goods originating in Svalbard are exempt from customs duty according to the provisions of the customs tariff 23(Meld. St. 32 (2015–2016)).

Various UN Security Council decisions have international law implications, such as those related to peacekeeping missions, ad hoc tribunals and sanctions. In these cases, the UN Security Council can impose legally binding sanctions on states, persons or entities under international law. Therefore, Norway, a UN member since its foundation, has an obligation to implement such sanctions, an obligation that takes precedence over other obligations under international law. Such obligations apply as much for Svalbard as for the rest of Norway24 (Meld. St. 32 (2015–2016)).

Tis overview shows that those international agreements that Norway has entered since the signature of and subsequent adoption of the Paris Treaty have had little to no effect on Spitsbergen Treaty’s implementation. This has been the case either because Svalbard was not included in the scope of the agreement’s application, such as with the EEA Agreement and Schengen Agreement, because Svalbard remained out of scope under national laws, as was the case with the Customs Act, or because, as with UN Security Council sanctions, even if though obligations theoretically apply to Svalbard under international law, the concrete effects are not present.

3) Brief overview of the evolution of international law of the sea since 1920

As mentioned above, in addition to the context and the intention of the parties to a treaty, Article 31 of the Vienna Convention also indicates that any relevant rules of international law applicable to relations between the parties have to be taken into account to interpret an agreement.

23 See Customs Act of 2007, Chapter 5 – Relief from customs duties, Section 5.4 - Goods from special areas, goods that are re-imported, etc. (p.28) 24 The Svalbard Act of 17 June 1925 establishes that Svalbard is part of the Kingdom of Norway.

Historically, two major principles have traditionally governed the law of the sea: the right of the Coastal State to control a narrow strip along the coast, and the freedoms of navigation and fishing in the high seas beyond that coastal area (Sohn et al, 2010). Concepts such as freedom of the sea emerged in the debate in the 17th century with the Dutch jurist Hugo de Groot’s mare liberum (free sea) doctrine. This stood in contrast to Englishman John Selden, who advocated for the concept of mare clausum (closed seas) at the time. Contemporary law of the sea is largely shaped by these two opposing concepts. The law of the sea had consisted of a body of rules of customary law which were progressively codified. Indeed, by the early 20th century, some states had indicated their will to expand national maritime claims.

At international level, several attempts were done, first by the League of Nations in 1930, followed by the United Nations Conferences on the Law of the Sea, to solve the recurrent issue of a Coastal State’s control of the breadth of territorial sea. The first UN Conference on the Law of the Sea led to the codification of rules governing the territorial sea and the high seas through the 1958 High Seas Convention, the 1958 Fishing on the High Seas Convention and the 1958 Territorial Sea Convention. The 1958 Continental Shelf Convention subsequently came to provide additional rules on the oil-rich continental shelf, the submerged part of land territory over which Coastal States started claiming jurisdiction. However, the conferences were unsuccessful on two issues that remained unresolved: first, the issue of the maximum breadth of the territorial sea and second, the necessity of a mechanism for the peaceful settlement of international disputes. Furthermore, the framework established soon proved unfit for its purpose, facing serious challenges (Tanaka, 2015)25 due to the rapid increase in the use of the oceans and in the exploitation of its resources.

In the late 1960s, conflicts over maritime rights were numerous, with strongly diverging views emerging among states. The establishment of a new international legal regime for the use of the seas seemed to be the needed solution to the situation at hand. Therefore, the international community organised the Third United Law of the Sea Conference (UNCLOS III), which eventually led to the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) on 30 April 1982, and its entry into force on 16 November 1994.

The understanding of the evolution of international law of the sea with respect to Coastal States rights is essential when examining the Norwegian’s implementation of the Spitsbergen Treaty beyond the territorial sea. Norway has expanded its authority over Svalbard’s

25 Such as on control of offshore natural resources, on the development of seabed mining technology, on the protection of the marine environment, and due to the structural changes in the international community due of the independence of former colonised regions in the 1960’s.

territorial waters and beyond with the establishment of the fisheries protection zone over the archipelago, and in its claims over the continental shelf. One of the key question to answer is to determine whether these actions are consistent with the terms of the governing law applicable to Svalbard, i.e. the Spitsbergen Treaty (Numminen, 2011).

The main influential features of UNCLOS on the Paris Treaty’s interpretation include the new division of the sea in addition to the dispute settlement procedures. UNCLOS solved an important question, that which defined the breadth of territorial seas. Under Article 3 of UNCLOS, states agreed to a maximum seaward limit of national sea up to a limit of 12 nautical miles. The solution to this pending problem came with the institutionalization of a new resource oriented zone under the Coastal State’s jurisdiction: the 200 nautical miles Exclusive Economic Zone (EEZ).

Norway ratified the United Nations Convention on the Law of the Sea on 24 June 1996, which constitutes the global legal framework for all uses of the ocean26. As of 10 December 1982, Norway became a party to the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement), which provides a legal basis for improved control of fisheries in the high seas. Norway actively participates in the United Nations Food and Agriculture Organization and in several global and regional maritime environmental agreements.

26 Oceans & Law of the Sea, ratifications of LOSC, last updated March 2020.

B) Fisheries resources, management and regulation in Svalbard

The large disproportion between the surface area of the Norwegian ocean and the mainland (six to seven times) undoubtedly shaped the relationships between the Norwegians and the ocean. The country possesses an ancient tradition of harvesting at sea: fishing, whaling and sealing has been a source of food and business throughout Norwegian history. This activity has shaped the culture of the coastal communities, for which many still depends on marine harvest for their livelihood. The importance of fisheries for the Norwegian economy is emphasized by the fact that in 1946 Norway was the first country in the world to establish a separate Ministry of fisheries (Johansen, 2019).

The ocean resources are thus an important provider for employment and economic benefits for Norway as a whole and in particular for rural districts along the coast in particular. Still nowadays, and despite the weight of oil and gas in the GDP, the fisheries sector27 remains one of the most important export industries for Norway (which is the second largest exporter of fish and seafood in the world): in 2017, the export revenue from fish and seafood stood for 7.9% (with an export value reaching NOK 94.5 billion, equivalent to nearly 9 billion EUR), while petroleum revenue constitutes 38.5% of the export revenue (Johansen, 2019). The waters surrounding Svalbard are no exception, with a strong whaling industry starting already in the 16th century, and fisheries taking place for decades with detailed records of catches since 1980 (Misund et al., 2016).

This section will focus on how abundant are fisheries resources in the Svalbard area and how they are managed: through (1) the description of the marine living resources in the waters of Svalbard based on the scientific advice from the International Council for the Exploration of the Sea (ICES); and, (2) the presentation of the fisheries management in the Svalbard area, in the light of the international rights and obligation of Norway, its national implementation and the local dimension at Svalbard level.

27 Ministry of Fisheries and Coastal Affairs (2007) – PowerPoint presentation

1) Fisheries Resources in Svalbard

The area around Svalbard are the world northernmost waters fished on a regular basis and are part of the Barents Sea’s ecosystem, one of the world’s richest fishing grounds (Churchill & Ulfstein, 2010), as this section will describes at a first stage. The archipelago waters are influenced by cold Arctic water masses flowing from the northeast and the warmer West Spitsbergen Current flowing northwards along its western cost. The eastern waters and the fjords are normally frozen during the winter months, while the coastal waters west of the archipelago remain open. Due to rising sea temperatures, certain species move northwards to seek food and colder water and this migration modifies the location and prerequisites for commercial fishing in the Arctic Ocean (Wolf, 2013), as this section will describe in the second subpart of this section.

Regular commercial fishing is carried out annually from the southern border of the Svalbard zone at 74° North latitude, south of Bjørnøya (Bear Island), and around the Svalbard archipelago all the way up to about 81° 30’ North (Misund et al., 2016). This section will describe the state of the art of fisheries knowledge in this area, based on several scientific papers and on the most recent advice from the International Council for the Exploration of the Sea (ICES). ICES is an intergovernmental marine science organisation, meeting societal needs for impartial evidence on the state and sustainable use of our seas and oceans28. As indicated in ICES strategic plan (ICES, 2019), impartial evidence is essential for responsible decision-making, which is why this organisation work with scientists from its 20 members countries partaking in scientific advice groups and advisory committees.

Current overview of the fisheries

The Svalbard archipelago belongs to the Barents Sea ecoregion and covers the shelf sea to the north of Norway and the Russian Federation (ICES Fisheries Overviews for the Barents Sea Ecoregion, 2019)29 The 2019 ICES overview for the Barents Sea Fisheries covers 15 stocks30 (ten demersal31, one elasmobranch32, one crustacean33, and three pelagic34 stocks35). It covers

28 See ICES webpage – Who we are we 29 See Figure 1: The Barents Sea ecoregion of the ICES Fisheries Overviews for the Barents Sea Ecoregion. Its western boundary follows approximately the shelf break towards the deep Norwegian Sea to the west, and its northern boundary follows the shelf break towards the deep Polar Ocean to the north. To the east, the ecoregion borders Novaya Zemlya and the Kara Sea. 30 Pelagic: Greater silver smelt, capelin, beaked redfish; Demersal: cod (2 stocks), Greenland halibut, haddock, ling, tusk, saithe, golden redsifh, greater forkbread, roundose grenadier; Crustacean: northern shrimp; elasmobranch: starry ray. 31 Demersal resources are species living in close relation with the bottom and depending on it. Example: cods and lobsters are demersal resources. The term “demersal fish” usually refers to the living mode of the adult. (Cochrane & Garcia, 2009) 32 Any of a subclass (Elasmobranchii) of cartilaginous fishes that have five to seven lateral to ventral gill openings on each side and that comprise the sharks, rays, skates, and extinct related fishes (Merriam-Webster dictionary).

the ICES Division 27.1.a and parts of divisions 27.1.b, 27.2a, and 27.2.b. Our analysis will focus mainly on division 27.2.b because it covers most of the Fisheries Protection Zone (FPZ) around Svalbard.

The fish stocks migrate between the 200-mile mainland zones of Norway and Russia, the remaining area of high seas (the ‘loophole’) in the middle of the Barents Sea and the 200- mile FPZ around Svalbard. (Churchill & Ulfstein, 2010). However, the maps produced by aggregating tracks of Norwegian fishing vessels36 (Misund et al, 2016) show that only a limited area in the Svalbard zone is being exploited for the purpose of fishing. Table 1 (See Annex 3) on the Total value and live weight of the main fish and shellfish species caught by Norwegian fishing vessels in the Svalbard Zone 1980–2013 (Misund et al, 2016) allows identifying the most common target species. According to common practice, describing those would provide a general overview of the fisheries resources in the Svalbard waters. Over the period 1980-2013, the total value of the 13 most valuable species caught (4.84 million tonnes) in the Svalbard zone amounts to 27.55 billion NOK (2.62 billion EUR).

The trends of catches for the main fish species in the Svalbard area is informative as well. Northeast Arctic cod (demersal) is the most important species in terms of both weight and value. The historic trend shows a regular increase in landings with time, in particular since the late 1990s. Landings peaked at 83,182 tons in 2013. The catches of Northeast Arctic haddock have fluctuated around 1, 000 tonnes over the period 1980–2003 but increased steadily afterwards, peaking at 49,278 tonnes in 2011. For Greenland halibut, the fishery has been relatively stable over the survey period, with mean landings of 937 tonnes. Landings of Atlantic halibut is the most valuable species in the Svalbard zone but the total catch over the period is only 170 tonnes, with a total value of 4.7 million NOK (EUR). Overall, the fishery of saithe has been relatively stable throughout the period, with an annual mean landing of 399 tons. The fishery of tusk has shown a general increase but with great inter-annual variations.

33 Any of a large class (Crustacea) of mostly aquatic mandibulate arthropods that have a chitinous or calcareous and chitinous exoskeleton, a pair of often much modified appendages on each segment, and two pairs of antennae and that include the lobsters, shrimp, crabs, wood lice, water fleas, and barnacles. (Merriam-Webster dictionary). 34 Pelagic resources are species that spend most of their life swimming in the water column with little contact with or dependency on the bottom. Usually refers to the adult stage of a species. (Cochrane & Garcia, 2009) 35 A stock is a group of individuals in a species occupying a well-defined spatial range independent of other stocks of the same species. Random dispersal and directed migrations due to seasonal or reproductive activity can occur. Such a group can be regarded as an entity for management or assessment purposes. Some species form a single stock (e.g. southern bluefin tuna) while others are composed of several stocks (e.g. albacore tuna in the Pacific Ocean comprises separate Northern and Southern stocks). The impact of fishing on a species cannot be fully determined without knowledge of this stock structure. (Cochrane & Garcia, 2009) 36 Data collected through the Automatic Identification System (AIS). AIS is an autonomous and continuous vessel identification and monitoring system used for maritime safety and security which allows vessels to electronically exchange with other nearby ships and authorities ashore the vessel identification data, position, course and speed. (European Commission, DG MARE website).

The catches of ling have slightly increased throughout the period, in particular since 2000 and ranged from 0.3 tonnes in 2000 to 202 tonnes in 2007. The data presented in the paper (Misund et al., 2016,) show a gradual but staggering increase of the catches in demersal fisheries from 9,009 tons in 1980 to about 112,258 tonnes in 201337.

The herring, a highly migratory pelagic species, has been fished in the Svalbard zone only in 2005 and 2012. Redfishes, another pelagic species, have been harvested in the Svalbard zone across the survey years. The catches increased from 1980 to the early 1990s when the fisheries effort levelled out. However, the ICES advice published in 2018 (for 2019 and 2020) shows an amelioration in the biomass of the beaked redfish38. The capelin stock dwindled in the mid-1980s; the ‘summer’ capelin fishery in the Svalbard zone was closed between 1986 and 1990, and reopened in 1991. The most recent ICES advice indicates that the stock is not in good shape and recommends a zero catch in 2020 for the Northeast Arctic and Barents Sea39.

For crustaceans, the fishery for Northern shrimp has been extensive in the Svalbard zone and is dominated by Norway. The data also show a general decrease over time from record high landings of 52,222 tonnes in 1985 to only 4,335 in 2013. In the early 1980s, most shrimp trawlers were small but since the mid-1990s, the fleet mostly comprises freezer trawlers of about 60 m. Catches increased considerably from 2018, with much of that increase coming from fleets fishing in the international waters between the Norwegian Exclusive Economic Zone (EEZ), the Fisheries Protection Zone around Svalbard, and the Russian EEZ. In 1986, a new fishery for Iceland scallop developed in the southern part of the Svalbard zone. Within a few years, several purpose-built and refitted vessels 50–60 m in length entered this ‘gold rush’ fishery, which soon moved to the beds north of Svalbard. These years of intense fishing activity had major consequences: nearly all the scallop beds in the zone had been seriously impacted and are now closed for scallop dredging.

37 Demersal are mainly caught by 60-70 m freezer and factory trawlers operating around Bjørnøya and northwards along the continental shelf of western Svalbard, this is the case for demersal species such as Northeast Arctic cod, Northeast Arctic haddock, saithe, redfishes, and Greenland halibut. In addition, these species can also be caught by long line, gillnet and Danish seine vessels around Bjørnøya. Wolf fishes, tusk , ling and Atlantic halibut are mainly caught by long liners (Misund et al, 2016). 38 Due to recent recruitments are slightly above the long-term average and that the fishing mortality has been low but has increased since 2014. 39 The ICES advice for capelin (2019) indicates that the spawning-stock biomass (SSB) has been declining since 2018. The estimate of recruitment (age 1) has been low since 2014, and below the time-series average. The recruitment in 2019 is the lowest estimated since 1995.

Future prospects: global warming and the alteration of the Arctic marine ecosystems

Due to global warming and climate change, the Arctic region and its marine ecosystems have been facing recent but tremendous changes that may/will alter the availability of commercial fish resources in the Svalbard zone. The impact of those changes might be quicker and more significant than in other regions as the Arctic marine ecosystems undergo a warming twice as fast as the global average (Hoegh-Guldberg & Bruno, 2010). The type of changes are two- fold: the sea temperatures increase can affect the species distribution on the one hand, and, on the other hand, the new economic activities expected to develop in the area (navigation routes, cruise tourism, etc.) will also trigger changes in species diversity (Ware et al, 2014). According to forecasts of the impact of global warning on marine biodiversity, the Arctic should face the largest species turnover due to the rise of invasive alien species and the extinction of local species (Cheung et al., 2009).

Researchers (Fosheim et al., 2015) documented a rapid northward shift in the distribution of sub-arctic fish communities in the Barents Sea at a pace reflecting the quicker climate warming undergone in this region. Researchers report that in 2005, blue mussels were seen in the fjords of Western Svalbard (Misund et al., 2016) for the first time in 1000 years (Berge et al., 2005). Species like Northeast Arctic cod, Northeast Arctic haddock and herring have become successively more common in the fjords of Western Svalbard (Berge et al., 2015). In 2013, Atlantic mackerel were caught near Longyearbyen in September (Berge et al., 2015), most probably an episodic event due to a larger than ever stock combined to warm waters. Research indicates that the coming years should show similar biomass increases in the Svalbard waters, possibly leading to increase in fishing activity in these waters (Misund et al., 2016).

In addition to this shift in the distribution of certain stocks, invasions of ‘alien’ species could also lead to major changes in Svalbard waters , not only in terms of interactions between marine ecosystems, but in terms of species targeted by the fishing activities. Indeed, increased abundance of certain species might sustain commercial fishing. While the arrival of red king crab still remains uncertain (no sizeable distribution shift in the Barents Sea for the last 25 years), the snow crab, another non-native, but commercially interesting species, has entered the Arctic part of the Barents Sea. The snow crab abundance and geographical spread have increased in the Svalbard waters (Alvsvåg et al., 2009). Researches present evidence for the permanent establishment of snow crab in the Barents Sea (Alvsvåg et al., 2009). This species originating from the northwestern Atlantic (eastern Canada and Greenland) has been

reported occasionally in the Barents Sea since the 1990s, probably introduced through ballast water. Special attention during the annual bottom-trawl surveys in the Barents Sea during February 2004–2006 were given to include recordings of snow crab to evaluate if the introduced species has succeeded to establish a self-sustaining population in this region. Recordings of snow crabs were systematically noted and biological measurements carried out.

According to the Norwegian Institute of Marine Research (IMR) (Staalesen, 2017), more than 4,000 tonnes of snow crab were landed in Norway in 2014 and 8,600 tonnes in 2015. Since 2017, the Institute advised a snow crab quota oscillating around 4,000 tonnes. In 2017, the IMR also reported several single discoveries of snow crabs north of Svalbard, but the harvestable stock is still east of the Svalbard fishing zone and on the Norwegian part of the shelf in the Smutthullet (FiskerForum, 2018). The likely future distribution of this Arctic cold-water species suggests that most of these catches will be in the east part of the Svalbard zone, which is expected to remain rather cold even in the face of global warming (Sundet & Bakanev, 2014).

2) Fisheries management and regulation in the maritime zones of Svalbard

Regular commercial fishing is carried out annually from the southern border of the Svalbard zone at 74° North latitude, south of Bjørnøya (Bear Island), and around the Svalbard archipelago all the way up to about 81° 30’ North, (Misund and al., 2016). Fishing takes place in the territorial sea around Svalbard and in the Fisheries Protection Zone outside. The fishing in the territorial sea is far less extensive than in the Fisheries Protection Zone around Svalbard (Meld. St. 32 (2015–2016)). In 2005 the Norwegian Ministry of Foreign Affairs specified: ‘Regulations for the fisheries protection zone are designed so that they will not conflict with the Spitsbergen Treaty, even if it had applied to the fisheries protection zone’ (Meld.St. 30 (2004–2005)).

The preliminary question to be covered when thinking about management and regulation is whether the location of the stock to be regulated matters: that is to say, should a stock present both in the territorial sea of Svalbard and in its FPZ be regulated in the same way (Molenaar, 2012). In addition, knowing the fishing nations in Svalbard waters and on which legal ground they operate is paramount.

Then, the present section will aim at describing the management system put in place by Norway, based among others on the international principles of responsible fisheries, while paying a particular attention to the unilateral approach implemented in the territorial sea and fisheries protected zone of Svalbard (Molenaar, 2012). This approach will be presented for the species regulated only by Norway and the following sub-section will clarify the multilateral/regional framework for shared stocks.

Who is fishing in the Svalbard waters?

To understand who is fishing in the Svalbard area, it is essential to understand the concept of property rights in the fisheries world. The UN Atlas of the Ocean (2002-2016)40 clarifies that any traditional or modern fishery operate under some form of use right of access to fishery resources in a particular area under certain conditions. The ‘right’ may be of a general nature, as embedded in Article 116 of UNCLOS which enshrines the right to fish in the high seas but may also be very specific, such as the right to harvest a certain amount of fish of a particular species in a particular area in a given period of time. These rights may have an historical foundation (i.e. ‘traditional/historical fishing rights’41) or a more formal one such as enshrined in Article 56 of UNCLOS on sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources of the Coastal States on their EEZ/FPZ. They may be area-based (e.g. territorial use rights) or resource-based.

According to the ICES Fisheries Overviews of the Barents Sea Ecoregion (2019), 12 fishing nations are active in this eco-region. The country with the highest landings is Norway, followed by Russia, based on historical activity (Wolf, 2013). Lower landings are made by Denmark, Estonia, Faroe Islands, France, Germany, Iceland, Poland, Portugal, Spain, Belarus, and the UK. The Netherlands, Latvia and Ireland are also active, but to a much lesser extent. The EU and the Faroe Islands have been allocated quotas of Northeast Arctic cod42 and other demersal species in the Svalbard zone based on historical rights. For Northern shrimp, fishers from Iceland and Greenland have access to the area, too.

40 See page on The use of property rights in fisheries management. 41 “The term “traditional” and “historic” are (correctly) used interchangeably in UNCLOS III. The difference between the historic rights and traditional rights is that the former is a legal term whose applications depend upon the fulfilment of the preconditions imposed by international law, while the latter is a general term for the rights existing in history” (Dyspriani, 2011). 42 About four percent of the TAC of Norwegian Arctic cod is shared with third countries. Most of this is allocated to the EU, partly based on historic rights and partly (by a subsequent addition) as a Norwegian concession linked to the Agreement on the European Economic Area. For more details, see Oporto Letters.

How is the fisheries management implemented by Norway?

There is no clear or generally accepted definition of fisheries management. According to the FAO, it can be described as the ‘integrated process of information gathering, analysis, planning, consultation, decision-making, allocation of resources and formulation and implementation, with enforcement as necessary, of regulations or rules which govern fisheries activities in order to ensure the continued productivity of the resources and the accomplishment of other fisheries objectives (Cochrane & Garcia, 2009)’.

According to Norwegian Government public information43, Norway’s policy and management of living marine resources is based on the fundamental principle of sustainable harvest of the marine living resources. Sustainable development refers to development that ‘meets the needs of the present without compromising the ability of future generations to meet their own needs. It assumes the conservation of natural assets for future growth and development’ (UN Glossary of Environment Statistics, 1997). In fisheries management, this can be understood as harvesting/fishing marine resources at a rate that allows population to remain at a stable (high) level and not decline over time due to the fishing practices. In line with the Marine Resources Act entered into force in 2009, the Norwegian government aims at a precautionary and ecosystem-based approach to fisheries management in order to secure a sustainable harvest of marine living resources44.

The FAO indicates that achieving an appropriate level and pattern of fishing mortality is hindered substantially by difficulties in estimating population abundance and population dynamics rates and the variability in these rates. Fisheries managers45 must base their decisions on the best available scientific data in order to have sufficient (and the best available) knowledge to make the right decisions. The FAO Code of Conduct for Responsible Fisheries46 specifies in its Paragraph 7.2.1, the following: ‘...States... should, inter alia, adopt appropriate measures, based on the best scientific evidence available, which are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, as qualified by relevant environmental and economic factors...’.Paragraph 7.5.2 on the

43 Ministry of Fisheries and Coastal Affairs (2007) – PowerPoint presentation. 44 This involves defining management objectives and developing simple and efficient tools to achieve an overview of management needs and prioritise among these, while integrating broader conservation issues and ensuring stakeholder involvement. See Directorate of Fisheries website, update 10 January 2017. 45 The fisheries management authority is that entity which has been given the mandate by the State (or States in the case of an international authority) to perform specific management functions. In many countries that authority would be a Department of Fisheries or, within a broader Department, a Division of Fisheries (Cochrane & Garcia, 2009). 46 The FAO Code of Conduct for Responsible Fisheries (1995) was produced in response to global concern over the clear signs of over-exploitation of fish stocks throughout the world and to recommend new approaches to fisheries management which included conservation, environmental, social and economic considerations. It was developed by and through FAO and was accepted as a voluntary instrument by the 28th Session of the FAO Conference in October 1995.

Precautionary Approach further states: ‘In implementing the precautionary approach, States should take into account, inter alia, uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to reference points.’

In line with the key principles of responsible fisheries, Norwegian fisheries management is based on scientific advice. Norway has a long lasting institutional experience in fisheries management and marine research through the Directorate of Fisheries47 and the Institute of Marine Research (IMR)48, both established in the year 1900. As part of their regulatory chain49, the advices elaborated by the International Council for the Exploration of the Sea (ICES) are the base to establish the total allowable catch (TAC) and therefore the Norwegian fishing quotas.

The Directorate of Fisheries makes proposals for domestic regulation. The involvement of stakeholders in management decisions is achieved through the Advisory Meeting for Fisheries Regulations representing fishermen’s associations, the fishing industries, trade unions, the Sami Parliament, local authorities, environmental organisations and other stakeholders. As a final step in this process, the Ministry of Fisheries and Coastal Affairs50, the fisheries management authority51, decides how the quotas should be shared between the vessels and sets out the technical regulations regulating the fisheries for the following year. To give a broad overview, after ICES has given its TACs recommendations, the negotiations on management issues between Norway and other states take place (see next subsection for further details).

International legislation and instruments – Relevant fisheries instruments at bilateral, regional and multilateral level

The UN Code of Conduct for Responsible Fisheries requires that fisheries management should encompass the stock over its entire area of distribution (Code of Conduct, Paragraph 7.3.1). It follows that States should cooperate in the management of transboundary, straddling, highly migratory and high seas fish stocks exploited by two or more states

47This Norwegian government agency aims to promote profitable economic activity through sustainable and user-oriented management of marine resources and the marine environment. (see website) 48 Through its research and advice, the IMR seeks to help society to continue exploiting the valuable assets in the sea sustainably. The IMR is affiliated to the Ministry of Trade, Industry and Fisheries. (see website) 49 Ministry of Fisheries and Coastal Affairs (2007) – PowerPoint presentation (p. 7). 50 In particular, the Department for Fisheries is responsible for matters related to fisheries. There is a wide range of topics in the department's portfolio, including quota negotiations and international fisheries agreements, IUU fishing, regulation of and the right to engage in fishing, regulation of the fishing fleet. (See website). 51 The term is used broadly here to describe that legal entity which has been designated by the State as having the mandate to perform specified fisheries management functions. In practice, it may be a national or provincial ministry, a department within a ministry, or an agency and could be governmental, parastatal or private. In the case of shared resources, it should be international. (Cochrane & Garcia, 2009).

(Paragraph 7.1.3). General rules for cooperation towards conservation of such fish stocks are provided for in the United Nations Convention on the Law of the Sea of 10 December 198252 and the 1995 UN Fish Stocks Agreement53 provides the legal basis for improved control of fisheries on the high seas.

As unavoidable consequence of overlapping interests, the fisheries manager, through the management authority, must ensure that suitable structures and mechanisms are put into place for effective communication and decision-making with international representatives of the other users. In addition to reference in Paragraphs 6.8 and 6.9, this aspect is mainly dealt with in Article 10 of the Code of Conduct: Integration of Fisheries into Coastal Area Management, which includes the following requirement in Paragraph 10.4.1: ‘States should establish mechanisms for cooperation and coordination among national authorities involved in planning, development, conservation and management of coastal areas.’ The responsibilities, functions and structure of international or regional fisheries authorities usually do not differ substantively from those of national authorities and this Section examines regional multilateral and bilateral instruments that are relevant for fisheries regulation in the maritime zone of Svalbard.

The North-East Atlantic Fisheries Commission (NEAFC) Convention Area54 covers the entire North-East Atlantic (‘NEACF Convention Area’). The waters for which NEAFC adopts recommendations are defined as the “waters of the Convention Area, which lie beyond the waters under the fisheries jurisdiction of Contracting Parties”55, and the contracting parties can request the adoption of recommendations for waters under their jurisdiction56. In other words, Article 5 and 6 of the NEAFC Convention chiefly ascribe fisheries management competence to NEAFC in the waters that are not subject to the jurisdiction of any states (i.e. international waters?). Considering the current waters of the FPZ as an offshore area would mechanically include it in the ‘NEAFC Regulatory Area’ (Sobrido-Prieto, 2014) but no move has been made in that direction. The NEAFC recommendations applicable to Svalbard have been made under Articles 5 and 6 of the NEAFC Convention and included the phrase ‘NEAFC Convention Area’ (Molenaar, 2012). However, States Parties to the NEAFC admit that the FPZ is subject to the fishery legislation of Norway (Sobrido-Prieto, 2014).

52 See Article 118 on Cooperation of States in the conservation and management of living resources and Article 119 Conservation of the living resources of the high seas of UNCLOS 53 See Article 7 of the 1995 UN Fish Stocks Agreement on “Compatibility of conservation and management measures” and Article 8 on” Cooperation for conservation and management”. 54 See Article 1(1) of the Convention on future multilateral cooperation in North-East Atlantic fisheries. 55 See Article 1 – Definitions of the NEAFC Scheme of Control and Enforcement. 56 See Article 6 of the Convention on future multilateral cooperation in North-East Atlantic fisheries.

As regards the multilateral agreements relating to specific species, the treaties are negotiated and concluded at Coastal States level and deal with three species: the North-East Atlantic mackerel (hereinafter mackerel), the North-East Atlantic blue whiting (hereinafter blue whiting) and the Norwegian spring-spawning (Atlanto-Scandian) herring57 (hereinafter herring). For the context, the multilateral agreements dealing with the management of the Coastal State stocks (inter alia, the total allowable catches (TACs) and quotas) are endorsed by NEAFC Recommendations during its annual meeting and are complemented by a series of access and licensing bilateral arrangements.

The abundance of mackerel and blue whiting in the Svalbard waters, keeping aside future possible changes due to waters warming58, is not sufficient to sustain a commercially viable targeted fishery (Molenaar, 2012). This is also reflected in the agreed records from the Coastal States annual consultations were no record of catches in the FPZ of Svalbard is indicated. Conversely, herring in the waters of Svalbard has commercial importance and multilateral and bilateral annual agreements on this species includes Svalbard waters (Sobrido-Prieto, 2014). The bilateral agreement between EU and Norway on the management of herring provides a wording that might include these waters: the European Union is granted access to fish ‘in waters under Norwegian fisheries jurisdiction north 62°N59’, while the licencing agreement clarifies that the licenses provided to EU vessels cover the ‘Norwegian Economic Zone north of 62°N as well as the fishery zone around Jan Mayen60’. According to Sobrido-Prieto (2014) and Molenaar (2012), this wording means that Svalbard waters are included in these agreements. Nevertheless, the reporting table of quotas and catches of herring in the North-East Atlantic, annexed to the Coastal States agreed record61, does not record, for any Coastal State, any catch in the Fishery Protection Zone around Svalbard.

57 Delegations of Coastal States might name the species under different appellation, while the EU delegation refers to Atlanto-Scandian herring (ASH), the Norwegian Delegation refers to it as Norwegian spring-spawning herring (NSSH). The agreed records refer to the “Norwegian spring-spawning (Atlanto-Scandian) herring stock”. 58 “During the last three decades, northern hemisphere temperature anomalies have exhibited a strong warming trend. Pelagic planktivorous species such as Northeast Atlantic mackerel, Norwegian spring-spawning herring and blue whiting may and have been taken advantage of warming oceans by extending their possible feeding opportunities further north, e.g. in Arctic waters”. (Report of the ICES Working Group on widely distributed Stocks, 2019) 59 See Agreed Record of fisheries consultations between the Norway and the European Union on ad how arrangements on the management of blue whiting and Norwegian-spring spawning herring (Atlanto-Scandian herring) for 2020. 60 See Annex of the Agreed Record of Conclusions of consultations between the Norway and the European Union on a license arrangement relating to vessels fishing for Norwegian spring spawning herring (Atlanto-Scandian herring) in 2020. 61 See the Agreed Record of Conclusions of fisheries consultations between the Faroe Islands, the European Union, Iceland, Norway and the Russian Federation on the management of m Norwegian spring spawning herring (Atlanto-Scandian herring) stocks in the Northeast Atlantic in 2020. Annex 2 -Reporting of quotas and catches of Agreed Record of Conclusions of consultations between the Norway and the European Union on a license arrangement relating to vessels fishing for Norwegian spring spawning herring (Atlanto-Scandian herring) in the North-East Atlantic -2017-2019: there are no catches recorded in the FPZ around Svalbard.

According to Annex III of the Agreed Record of the fisheries consultations for 202062, Norway only granted access to the European Union and the Russian Federation. Therefore, no other Coastal State has concluded any bilateral access agreement for this species.

According to FAO’s Fisheries and Aquaculture Country Profile63, ninety percent of Norway’s fisheries harvested stocks are shared with other nations. For the most important fish stocks, quota levels are set in cooperation with other countries, including Russia, Iceland, Faroe Islands, Greenland and the EU. This leads us to dig into the bilateral agreements between Norway and the mentioned third countries that might cover the Svalbard waters only (i.e. not dealing with Coastal States stocks).

The most relevant bilateral agreement for Svalbard waters is the one with the Russian federation. This bilateral cooperation takes place mainly within the Joint Norwegian-Russian Fisheries Commission (JointFish) established in the 1975 Framework Agreement64. This agreement does not explicitly describes the spatial scope in general or with respect to the law of the sea’s maritime zones: the mandate of the Joint Commission is therefore not confined to the maritime zones of the two states or to the Barents Sea (Molenaar, 2012). JointFish provides efficient joint management of the most important fish stocks of both countries, in the Barents Sea and the Norwegian Sea, mainly demersal stocks such as cod, haddock and Greenland halibut but also capelin, king crab65.

It is worth mentioning that other bilateral agreements mention the possibility to access the waters around Svalbard for some fisheries, i.e. in the case of the Faroe Islands 66and Greenland67 (Molenaar, 2012), while others exclude Svalbard from the scope of application of the bilateral agreement, i.e. for the EU68.

62 See the Agreed Record of Conclusions of fisheries consultations between the Faroe Islands, the European Union, Iceland, Norway and the Russian Federation on the management of m Norwegian spring spawning herring (Atlanto-Scandian herring) stocks in the Northeast Atlantic in 2020. Annex 3 – Transfer and access arrangements for Norwegian spring spawning herring (Atlanto-Scandian herring) in 2019. 63 See FAO Fishery and Aquaculture Country Profiles on the Kingdom of Norway. 64 See Agreement between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on co-operation in the fishing industry. Signed in Moscow on 11 April 1975. 65 See the JointFish website for further information of the quota allocation to the different parties: On the basis of the stipulated total quota for these waters, the quotas for North-East Arctic cod and haddock are evenly distributed between the parties involved. The Greenland halibut quota is now shared at 51% to Norway, 45 % to Russia and 4 % to third countries. The distribution of the capelin quota was established for the first time in 1979, with 60 % to Norway and 40 % to Russia. In 2006, the parties reached an agreement to individually manage the stocks of king crab. 66 In its article, Molenaar (2012) describes that the Norway-Faroe Islands annual consultations covers an access to the FPZ in Svalbard for North-East Atlantic cod and a fixed tonnage of by-catch (i.e. redfish and Greenland halibut) within the third- state quota agreed by Norway and Russia. However, no recent agreed record accessible in English could be found to check the state of play. 67 See the Statistics Greenland webpage: “The agreements mean that Greenlandic quotas on cod and haddock in the Barents Sea, which are achieved via negotiation with Russia, can also be applied to fishing in Norwegian waters. The same applies

Against this background, how are the commercial fisheries regulated in Svalbard?

According to the Norwegian authorities (Meld. St. 32 (2015–2016)), the fishing for Norwegian spring-spawning herring, cod, Greenland halibut, haddock, redfish, capelin, shrimp and snow crab is regulated in the Svalbard waters. Different regulations have been issued for the various fisheries, including quota regulation and effort69 regulation. The regulations are issued pursuant to the Act relating to management of wild living marine resources (Marine Living Resources Act)70. In addition, regulations on fishing in the territorial sea of Svalbard are issued pursuant to the Svalbard Act of 192571, which stipulates, inter alia, that the King of Norway may issue general regulations concerning for instance fishing or animal protection. Finally, regulations on fishing in the Fisheries Protection Zone around Svalbard are issued pursuant to the Act relating to the economic zone of Norway of 197672.

A distinction can be made between species that are regulated in a predominantly unilateral fashion by Norway and species whose regulation is largely or entirely multilateral. At the latter end of the spectrum is the herring, whose TACs and allocations are determined by the Coastal States (when and if an agreement is in place73), as well as within NEAFC, based on the scientific advice provided by ICES. The allocation criteria include historic track records and zonal attachment74. The case of blue whiting and North-East Atlantic mackerel is similar,

to the agreement with Norway. Furthermore, Greenlandic quotas on cod in the Norwegian economic zone can be fished in the fish protection zone at Svalbard.” – Last visited July 2020 68 See AGREEMENT ON FISHERIES between the European Economic Community and the Kingdom of Norway. The preamble notes: “HAVING REGARD to the fact that Norway has established with effect from 1 January 1977 an economic zone extending to 200 nautical miles off its coast, within which Norway exercises sovereign rights for the purpose of exploring, exploiting, conserving and managing the resources thereof”. Therefore, the reference in Article 1 of “Each Party shall, within its area of fisheries jurisdiction extending up to 200 nautical miles from the baselines from which the territorial sea is measured” refers for Norway only to the Economic zone extending to 200 nautical miles off its coast. 69 The fishing effort is defined as the total amount of fishing activity on the fishing grounds over a given period of time, often expressed for a specific gear type e.g. number of hours trawled per day, number of hooks set per day or number of hauls of a beach seine per day. Fishing effort would frequently be measured as the product of (a) the total time spent fishing, and (b) the amount of fishing gear of a specific type used on the fishing grounds over a given unit of time. When two or more kinds of gear are used, they must be adjusted to some standard type in order to derive and estimate of total fishing effort. See Glossary in the FAO 1995 Code of Conduct for Responsible Fisheries. 70 The Marine living resources Act makes provision with respect to the management and conservation of marine living resources (defined in section 3) in the marine waters of Norway and related genetic material. 71 The Svalbard Act of 17 June 1925 establishes that Svalbard is part of the Kingdom of Norway (Sect.1). Norwegian civil law, criminal law and procedural law apply to Svalbard unless other provisions are made (Sect 2.). Other provisions only apply when specifically stipulated. The King may also impose general regulations for Svalbard, inter alia, mining, fishing and other industries and concerning protection of animals and plants (Sect. 4). https://web.archive.org/web/20110723003954/http://www.sysselmannen.no/hovedEnkel.aspx?m=45302 72Act No. 91 of 1976 relating to the Economic Zone of Norway 73 Due to lack of agreement on the quota shares for Norwegian spring spawning (Atlanto-Scandian) herring stocks in the Northeast Atlantic, the 2007 Coastal States arrangement does no longer apply since 2012, when it was denounced by Faroe Islands (for not reflecting the distribution and migration patterns). 74 Zonal attachment is a way of defining how the amount of fish to be caught from a shared stock should be divided amongst the Coastal States in whose waters the stocks occur. The zonal attachment of a stock is the share of the stock residing within

but all these species were discussed in the previous subsection ‘International Legislation and instruments’.

As regards North-East Arctic cod (hereinafter cod), the JointFish based on advice from ICES determines the TAC and allocations75. Since 1986, Norway introduced catch quota for the species in Svalbard’s FPZ in order to control fishing. In 1994, the cod quotas were broken down for individual States (Wolf, 2013). The allocation key is based on a combination of zonal attachment and historic track records (Molenaar, 2012). Norway’s Regulations, which apply exclusively to the FPZ of Svalbard, acknowledge that ‘Norwegian and Russian vessels may fish for Norwegian Arctic cod around Svalbard within their allocated quotas76’. In addition, vessels from the EU and from the Faeroe Islands77 that have traditionally fished for cod in the FPZ may fish for Norwegian Arctic cod around Svalbard78. Thus, rights for third country vessels is a condition to the allocation of a quota. A last category concerns vessels from states that have fisheries access rights for cod in the Norwegian Economic Zone79 or access for other species with a tolerance of 10% of cod by catch80, which would include both Iceland and Greenland (Molenaar, 2012).

The situation for Greenland halibut and haddock is to some extent similar to that of North- East Arctic cod, as the TACs and allocations are also determined by the Joint Norwegian- Russian Fisheries Commission based on ICES advice, and the allocation key for targeted fisheries is based on a combination of zonal attachment and historic track records. For instance, according to the JointFish website, the Greenland halibut quota is now allocated at 51% to Norway, 45 % to Russia and 4 % to third countries.

As regards Greenland halibut, Norwegian Regulations81 ‘prohibit the fishing for Greenland halibut as main catch as otherwise provided in the areas defined in Decree No. 6 of 1977 concerning fish protection zones of Svalbard. It applies to Norwegian and Russian

a particular country’s EEZ, weighted by the time it spends in a country’s zone over a year, if necessary. (See Scottish Government website). 75 See ICES advice on fishing opportunities for Cod in subareas 1 and 2 (Northeast Arctic) for 2020 76 See section 1 of the Regulation No. 1506 on cod fishery in protected zone around Svalbard in 2015. This regulation seem to be renewed every year, with different allocation. I could not find more recent regulation into English in the FAO website. 77 See Norway’s ministry website: “Før opprettelsen av de økonomiske sonene på 200 nautiske mil hadde norske fiskere i en årrekke fisket utenfor Færøyene. Det var i hovedsak et banklinefiske etter bunnfisk, men i perioder også et fiske etter pelagiske arter. Fiskere fra Færøyene hadde tradisjonelt drevet fiske i norske farvann, særlig etter torsk og hyse i Barentshavet.” (Before the establishment of the economic zones of 200 nautical miles, Norwegian fishermen had been fishing outside the Faroe Islands for a number of years. It was mainly a bankline fishery for demersal fish, but at times also a fishery for pelagic species. Fishermen from the Faroe Islands had traditionally fished in Norwegian waters, especially for cod and haddock in the Barents Sea. – Google Translation). 78 See section 3 (on quota) of the Regulation No. 1506 on cod fishery in protected zone around Svalbard in 2015. 79 See section 4 of the Regulation No. 1506 on cod fishery in protected zone around Svalbard in 2015. 80 See section 5 (on bycatch) of the Regulation No. 1506 on cod fishery in protected zone around Svalbard in 2015. 81 See Decree No. 1524 of 2010 to prohibit fishing for Greenland halibut in the fisheries protection zones of Svalbard.

commercial fishing vessels of any type and support vessels including vessels for experimental fishing and exploration. Norwegian and Russian vessels may fish for Greenland halibut in the fisheries protection zone of Svalbard according to an established fish quota scheme. Article 4 allows for 12 per cent bycatch in single catches and 7 percent mix of Greenland halibut in landings of other species’, presumably as long as they remain within the allocation for third states as agreed by the Joint Norwegian-Russian Fisheries Commission (Molenaar, 2012). It is to be noted that for the territorial waters and inner waters of Svalbard a similar prohibition was implemented for the entire year 2009, thus setting different rules for different waters82.

With respect to haddock, Norwegian Regulations83 specify that ‘Norwegian and Russian vessels fishing around Svalbard within their allocated quotas is permitted and shall be deducted from these quotas. Greenlandic vessels may fish within the overall quota of haddock agreed when fishing in the Norwegian economic zone north of 62 degrees N. Vessels from EU and Faroes Islands may fish a mixture of haddock and other species up to 14% for each catch.’

As regards capelin, while the JointFish manage the stock in the Northeast Artic and Barents Sea, the Norwegian Regulation84 completely (and unilaterally) prohibited targeted fishing in a determined area, ‘the Fisheries Protection Zone as defined in Decree relative to the fishery protection zone of Svalbard of 1977. It applies to Norwegian and foreign commercial fishing vessels of any type and support vessels including vessels for experimental fishing and exploration’.

As regards redfish, Norwegian Regulations85 prohibit targeted fishing but allow a 15% by- catch when fishing and landing others fish species.

At the other end of the spectrum is the regulation of Northern shrimp, for which Norway has so far unilaterally determined the TAC, the basis for allocation and how fishing opportunities are allocated. Norway’s Regulations86 ‘allow fishing for shrimps in the fisheries by vessels that traditionally fish for shrimps in the inner waters, territorial sea and fisheries protection zone of Svalbard, i.e. vessels flying the flag of Canada, Faeroe Islands, the Russian

82 See Decree No. 1513 of 2008 to prohibit fishing for Greenland halibut in the territorial waters and inner waters of Svalbard in 2009. 83 See Regulation No. 1505 on haddock fishery in the protected zone around Svalbard in 2015. 84 See Decree No. 1523 of 2010 to prohibit fishing for capelin in Fisheries Protection Zone of Svalbard in 2011. 85 See Decree No. 1592 of 2009 to regulate fishing of red fishes in the fisheries protection zone of Svalbard. 86 See Decree No. 726 of 1996 to regulate fishing for shrimps in the fishery protection zone of Svalbard and Decree No. 735 of 1996 to regulate fishing for shrimps in the territorial waters and inner waters of Svalbard.

Federation, Greenland, Iceland, Norway or one of the member States of the European Union87. Participation quotas of each country shall be decided ad hoc’. That is to say that the total allowable catch shall be established temporarily for each country separately. In the management of the shrimps in the Svalbard waters there is not TAC set due to the absence of knowledge about stock structure88. Moreover, the number of vessels used for shrimp trawling as well as the days during which fishing is allowed in the FPZ have been restrained. One should note that the Faroe Islands objected to the management system and the reference period determined by Norway (Molenaar, 2012). As regards scallops, Norwegian Regulations89 do not set a TAC but — for scallop fishing in the FPZ — designate a closed area and prescribe a minimum size.

Snow crab was first recorded in 199690 in the Barents Sea and is regulated since 201491 under the Marine Resources Act and The Svalbard Act of 1925, ‘prohibits Norwegian and foreign vessels to catch snow crabs in the Norwegian territorial sea and inland waters, and on the Norwegian continental shelf. For Norwegian vessels, this prohibition also applies to the continental shelf of other countries’. The Norwegian ban treats snow crab as a sedentary species and thus links its harvesting to the Norwegian continental shelf, which here includes Svalbard. Norway and Russia, as joint managers for marine living resources in the Barents Sea, decided to treat the crab as a sedentary resource, that is, not as a shared stock. Nevertheless, despite sharing exclusive access to the snow crab fishery, Norway and Russia manage their fisheries with separate TACs (Østhagen & Raspotnik, 2019). In Norway, the stock in assess by the IMR. The snow crab fishery in the Norwegian part of the Barents eco- region is still developing, because of the relatively recent westwards spread of snow crab. The Regulation also states that ‘the Fisheries Directorate may grant exemption from this prohibition under certain conditions for vessels’. There are currently 16 Norwegian vessels in this fishery and no third country vessels have been authorised by Norway.

87 The regulation of 1996 also mentions Estonia and Lithuania, which at that time were not EU Member States. 88 See the brief overview on the regulation of the shrimp fishery in Svalbard (Guijarro Garcia et al., 2007). 89 See Decree No. 12 of 1989 to regulate fishing for queen scallops (Clamys Islandica) in the fish protection zones of Svalbard. 90 See ICES Fisheries Overviews Barents Sea Ecoregion Published 29 November 2019 91 See Regulation No. 1836 of 2014 on the prohibition to fish for snow crab.

According the Norwegian authorities (Meld. St. 32 (2015–2016)), uniform rules92 have been issued for fishing in the territorial sea around Svalbard and in the Fisheries Protection Zone around Svalbard. Overall, the description of the fisheries regulated in the Svalbard waters display a wide spectrum of practice and show that the species does not apply uniformly to all of Svalbard’s maritime zones (Molenaar, 2012). Such lack of uniformity can have potentially significant implications because Norwegian legislation does not contain a general provision prohibiting all fishing activities in Svalbard’s maritime zones unless they are explicitly permitted (Molenaar 2012). Instead, individual sets of species regulations commonly start out with a prohibition on targeting a particular species, such as for snow crab, which is then subsequently qualified by one or more exceptions, in this example being set in the Regulation and granted by the Fisheries Directorate.

3) Norwegian Enforcement Measures in the maritime zones of Svalbard

Under the International Law of the Sea, ‘the sovereignty of a Coastal State [extend] beyond its land territory and internal waters […] to an adjacent belt of sea, described as the territorial sea’ (Article 2(1)). In other words, a Coastal State has the right to enforce measures in the territorial sea. According to Article 73(1), the Coastal State ‘may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention (UNCLOS)’.

As stated in the 1920 Spitzbergen Treaty (Articles 2 and 3), Norway’s sovereignty provides it the right to adopt and enforce laws and regulations on Svalbard, which observance should be respected by the High contracting Parties, their national and vessels. As long as they apply uniformly to all fishing operators, ‘Norway shall be free to maintain, take or decree suitable measures to insure preservation and, if necessary, the re-constitution of the fauna and flora of the said region’ (Article 2). According to the Svalbard Act of 17 June 1925, which establishes that Svalbard is ‘part of the Kingdom of Norway, Norwegian civil law, criminal law and procedural law apply to Svalbard unless other provisions are made. Other provisions only apply when specifically stipulated. The King may also impose general

92 This includes reporting rules, rules for keeping a catch logbook, provisions on mesh size in fishing gear, the use of sorting grids and minimum sizes for fish, etc. Inside the three original national parks and the nature reserves from 1973, the seabed is protected. Excluded from the protection is shrimp fishing at depths exceeding 100 metres.

regulations for Svalbard93’ concerning for instance fishing or the protection of animals and plants. According to the Norwegian Decree of 1977 relative to the FPZ94, the (Ministry) Department of Fisheries shall be granted the authority to regulate fishing in the zone, e.g. matters relative to authorisations and registration, restrictions on use of gear, etc.

‘Legislation and its enforcement constitute a key element of any society based on the rule of law. Svalbard is no different from the rest of the country in this respect, and our exercise of authority over the archipelago is based on Norwegian legislation’ (Meld. St. 32 (2015– 2016)). Therefore, control over fishing in the territorial sea and Fisheries Protection Zone around Svalbard must be as good as in other areas under Norwegian jurisdiction. In order to ensure an effective management of the different fisheries, Norway has established an extensive system to control fishing activities and vessels. This control system relies on three cornerstones, namely the Coast Guards, the Directorate of Fisheries and the Sales organisation. The fisheries regulations are enforced both at sea and at land, when the fish is landed and when it is exported.

The Coast Guard and the Directorate of Fisheries are jointly responsible for the practical aspects of exercising resource control in areas under Norwegian fisheries jurisdiction. A significant part of the Coast Guard’s resources is used in the northern marine areas. The Coast Guard, as part of the Armed Forces95, is subordinated to the Ministry of Defence and one of its primary missions is to monitor fisheries. The Coast Guard’s exercise of control and enforcement measures in the territorial sea of Svalbard shall be in accordance with directives issued by the Governor of Svalbard. At sea, the Coast Guard is responsible for inspecting fishing vessels and checking their catch against their logbooks. For instance, since September 1994, all fishing vessels targeting cod are obliged to report on their catches and the Norwegian coast guard is allowed to control and inspect all vessels and their cargo (Wolf, 2013).

The Marine Living Resources Act’s96 scope of application was extended in January 2016 to include the land territory of Svalbard. ‘The principal responsibility for administration and control shall lie with the Fisheries Directorate.’ The Fisheries Monitoring Centre (FMC) is

93 See website of the Governor of Svalbard. 94 Decree No. 6 of 23 May 1977 relative to the Fishery Protection Zone of Svalbard. 95 The visits by Norwegian Coast Guard vessels, part of the Armed Forces do not infringe the provision of peaceful utilisation as enshrined in the Treaty of Paris of 1920. “Norwegian policy has been designed to ensure proper compliance with the Treaty and a restrictive practice with regard to Norwegian military activities in Svalbard. Consideration of the issue of military visits to the archipelago has placed particular emphasis on aspects such as frequency and duration, type of unit, and the need to carry out operations. For example, frequent calls by Norwegian Coast Guard vessels are deemed natural, given the nature of their duties in the waters surrounding Svalbard.” (Meld. St. 32 (2015–2016)) 96 See Marine Living Resources Act).

the Norwegian Directorate of Fisheries' 24/7 office for monitoring Norwegian and foreign fishing vessels' activities and is located in the Fisheries Directorate in Bergen. One key task is the follow-up of Norwegian and foreign vessels in terms of tracking reports and various electronic catch and activity reports required when active at sea97. ‘The Act specifies other regulation-making powers of the Minister with respect to control measures and in particular with respect to illegal, unreported and unregulated fishing activities and port control. The Ministry may also, in order to combat illegal, unreported and unregulated fishing, prohibit activities that may undermine national management measures or measures taken by international or regional fisheries management organisations98’. The act provides for; inter alia, regulations on purchase registration and regulations on landing and sales notes that impose obligations upon landing of catches, as well as for requirements applicable to fish processing plants operators.

The third main actor of relevance to the topic, the Sales organisation, whose statutes have been approved under the Raw Fish Marketing Act of 14 December 1951 No. 3 99, shall ensure compliance with provisions laid down in or under the Marine Living Resources Act. Its section 48 describes the responsibilities of the sales organisation: their control activities shall be restricted to information acquired as a natural result of a sales organisation's activities, in particular ensuring that the catches taken and landed are in accordance with provisions laid down in or under the Marine Living Resources Act. Sales organisation may carry out inspection (i.e. access to harvesting or transport vessels; to offices, storage facilities and production plants belonging to the purchaser or recipient) or ask unimpeded access to catch logbooks, delivery records, landing and sales notes and accounts. The Ministry may lay down requirements relating to how sales organisations organise their control activities. Currently, the act is applicable in the marine areas around Svalbard, but not on the land territory100.

97 See Fisheries Directorate website. 98 See summary in English of the Marine Living Resources Act. 99 See Raw Fish Marketing Act of 14 December 1951 No. 3 which provides for the control of turnover of fish in sales immediately after catch. "Fish" in this Act includes herring, sprat and shellfish, as well as parts and by-products of fish. The Government may rule that processing, sale or exportation of certain fish species may not take place if the first sale of those fish was not handled by an appointed fishermen's sales organization or carried out with approval of that organization. This rule may also apply to the importation of living or fresh. (See Ecolex.org) 100 “Svalbard has no tradition of commercial landing or processing of fish and seafood, and the seafood sold and consumed there has come in large part from the mainland.” (Meld. St. 32 (2015–2016))

C) Implementation of the 1920 Spitzbergen Treaty in Svalbard’ Maritime Areas under the new concepts brought by UNCLOS

The customary law of the sea had for centuries distinguished between two maritime zones, the territorial Sea and the High Seas. This paradigm has evolved with the emergence of new concepts brought by the modern Law of the Sea, in particular UNCLOS, eventually distinguishing seven maritime areas in 1982 (See Section II. C above). By consequent, the development of international law of the sea led to the establishment of maritime areas that did not exist at the time the 1920 Spitzbergen Treaty was drafted ( Section 1) which has incidentally lead to disputes and challenges to the sovereignty of Norway over the archipelago ( Section 2).

1) Application of Maritime Delimitations in Svalbard101

The Article 1 of the 1920 Spitzbergen Treaty describes solely coordinates of land territories in relation to the “full and absolute sovereignty” of Norway. The reference to the application to maritime areas is to be found in the following provisions: “in the territories specified in Article 1 and in their territorial waters” (Article 2) and “to the waters, fjords and ports of the territories specified in Article 1” (Article 3). The question is thus to understand how the 1920 Spitzbergen Treaty is applicable to the maritime areas mentioned by the Treaty, i.e. territorial waters, and to the maritime areas distinguished by UNCLOS, i.e. Fisheries Protected Zone and continental shelf.

For Churchill & Ulfstein (2010), the starting point is to establish whether Svalbard may generate maritime zones at all. While the Treaty does not mention any zones beyond the territorial waters, nothing in the Treaty explicitly prevents Norway to claim maritime zones in respect of Svalbard beyond the territorial sea and this right arises from its sovereignty over Svalbard. In addition, the ICJ has, on a number of occasions102, held that conceptual or

101 This section of the dissertation is mainly based on the following sources if not indicated otherwise: Sarah Wolf (2013). 102 The Court has applied this principle, for example, in respect of the terms “territorial status” in the Aegean Sea case10 and “commerce” in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) case. See: Aegean Sea Continental Shelf (Greece v. Turkey) case, [1978] ICJ Rep. 3 at 32-34 (paras. 77-80). Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) case, Judgment of 13 July 2009 (not yet reported), paras. 63-70. See also Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia, [1971] ICJ Rep. 3, especially at 31 (para. 53). (Churchill & Ulfstein, 2010).

generic terms in treaties should be given the scope that they have at the time that the case is referred to the Court, not the scope that they had when the treaty in question was concluded.

Under the Spitsbergen Treaty, Norway has not been granted sovereignty over Svalbard but rather “full and absolute sovereignty” over the archipelago. The difference is decisive, because it shows that Norway enjoys genuine sovereignty (and not only derived sovereignty). Under International Law of the Sea, Norway is therefore a “normal” Coastal State, despite of the restrictions and non-discriminatory rights of the Spitsbergen Treaty. By way of consequence, Norway, as a sovereign Coastal State, may avail itself of new sovereignty concepts, such as EEZ/FZP concepts, which modern developments of the international law of the sea have brought about. Thus, Norway is entitled to claim maritime zones and was entitled to proclaim the FPZ and a continental shelf. The waters concerned do no longer form part of the high seas.

The territorial sea (“territorial waters”)

Traditionally, the customary law of the sea recognized a maximum territorial sea of about three nautical miles, while Norway has traditionally claimed four nautical miles as territorial sea outside the Norwegian mainland and around Svalbard (Wolf, 2013).

Under UNCLOS, every Coastal State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. In order to establish maritime zones, the Coastal State shall establish a baseline, at low-water line along the coast. It clarifies that waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State while the territorial seaward of the baseline . The sovereignty of the Coastal State extends beyond its land territory and internal waters to the territorial sea and is derived from its sovereignty over the land territory and the proximity to its coast (Wolf, 2013). In its internal waters, the Coastal State exercises absolute sovereignty, while in the territorial sea; foreign vessels enjoy the right of innocent passage.

Unlike the rest of Norway, which in 1961 expanded its jurisdiction over fisheries to twelve miles, the territorial sea of Svalbard continued to extend for four miles until 2003, at which point the territorial waters were also increased to twelve miles from the baseline103 in

103 See Act of 27 June 2003 relating to Norwegian Territorial Waters and the Contiguous Zone, including the sea areas around Jan Mayen, Act No 57 of 2003, UN Law of the Sea Bulletin No. 54 (2004), 41-80.

accordance with the UNCLOS provisions. This expanded the territorial area for Svalbard by more than 35% (Pedersen, 2006). Indeed, there is a single regulation for internal waters and territorial sea for Svalbard and the rest of Norway, but in Svalbard waters the 1920 Spitzbergen Treaty only applied (and its key principles such as non-discrimination). This marks, that the provisions applicable in territorial waters also became applicable in the area between four and twelve nautical miles (Meld. St. 32 (2015–2016)). In other words, the extension of Svalbard’s territorial sea in 2003 granted States Parties (other than Norway) equal rights of fishing in the area between 4 and 12 miles from Svalbard’s baselines, whereas (on the supposition that Article 3 does not apply beyond the territorial sea) they had previously had no right to fish in that area.

Norwegian sovereignty has not been challenged and the application of the 1920 Spitzbergen Treaty in the territorial sea has not been put into question, as it was considered by all parties as implementing the ‘full and absolute sovereignty’ of Norway on land and sea, as enshrined in the Treaty which refers to “territorial waters” which can be understand as the modern notion of territorial sea (Wolf, 2013), in all articles referring to maritime activities104.

In these maritime areas, Svalbard’s internal waters and territorial sea, the sovereignty and application of the 1920 Spitzbergen Treaty provisions are well accepted: Norway enjoys ‘full and absolute sovereignty’ while all parties have an equal right to fish in Svalbard’s territorial sea. In theory, under the Spitsbergen Treaty, this also applies to the exploration and the exploitation of oil and gas in the seabed of Svalbard’s territorial sea (Churchill& Ulfstein (2010)). The extension of 2003 has not created issues per se; nevertheless it has again brought to light the issue of lack of clarity on the geographical scope of the treaty, especially as the Svalbard is yet to delimit an Exclusive Economic Zone (Scotcher, 2010).

The Fishery Protection Zone (Exclusive Economic Zone)

UNCLOS also recognizes the right of the Coastal States to establish an Exclusive Economic Zone (EEZ) with a limit of 200 miles (Article 57). Moreover, UNCLOS recognises that an island, which is defined as a naturally formed area of land, surrounded by water, which is

104 As underlined by Sarah Wolf (2013): “A reason for not mentioning territorial waters in all of the pro-visions of the Svalbard Treaty could be that not all activities were regarded as maritime when the convention was drafted. Furthermore, Sect. 1 Mining Code of 1925 has a similar wording stating that “(t)his Mining Code shall apply to the entire Archipelago of Spitsbergen (Svalbard)”, and Norway has in practice accepted its application to the territorial sea”

above water at high tide and able to sustain human habitation or economic life of their own, has a territorial sea, a contiguous zone, a continental shelf and an exclusive economic zona as applicable to land territory (Article 121(2)).

In 1977, Norway put in place three different legal regimes for the waters from the territorial sea to 200 nautical miles: the legal regime for the Norwegian EEZ around the Norwegian mainland is enshrined in the UNCLOS. A fishery protection zone around Svalbard was established in May 1977105, with effect from 15 June 1977, and the fishery zone around Jan Mayen was established with effect from 29 May 1980.

Regarding Svalbard, the Norwegian regulation relative to the fishery protection zone of Svalbard of 1977106 establishes a fisheries protection zone with an outer limit of 200 nautical miles from the baselines which have been established for Svalbard, but not beyond the limit of the Norwegian Economic Zone as established by Act No. 91 of 1976107. In other words, should the Norwegian EEZ and the Svalbard FPZ overlap, the EEZ of Norwegian mainland prevails. It also establishes that the Department of Fisheries shall be granted the authority to regulate fishing in the zone. Originally, Norway aimed at establishing a classical EEZ around Svalbard similar to the EEZ along its mainland coast. However, to respond to the concerns raised by other contracting parties on their preferential rights108 under the 1920 Spitzbergen Treaty, Norway decided to establish a Fisheries Protected Zone (Wolf, 2013). The “reason for establishing a non-discriminatory fisheries protection zone was primarily to obtain control of and restrict fishing in the area in order to protect resources and prevent unregulated fisheries” (Report to the Norwegian Storting, 1999-2000109).

The concept of Exclusive Fishery Zone (EFZ) has long existed in States’ practice, in particular through unilateral claims (Kvinikhidze, 2008). The common structure of the zone is characterised by a territorial sea plus an exclusive fishing zone. For the latter zone, despite

105 Decree No. 6 of 23 May 1977 relative to the Fishery Protection Zone of Svalbard. To be found in Ecolex website – Last visited July 2020. 106 See summary in English provided by in Ecolex website . 107 Act No. 91 of 1976 relating to the Economic Zone of Norway. To be found in Ecolex website – Last visited July 2020. “The Act provides for the establishment of an Economic Zone of 200 nautical miles measured seawards from the applicable baselines. The Act deals also with the management and conservation of living resources within the Zone and prohibits, in principle, fishing in the EEZ by foreigners. Regulations concerning fishing and hunting may be issued by the King”. 108 See ICJ, Summary of the Judgment of 25 July 1974.Fisheries Jurisdiction Case (United Kingdom v. Iceland), and Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland).The concept of preferential fishing rights had originated in proposals submitted by Iceland at the Geneva Conference of 1958, which had confined itself to recommending that: "where, for the purpose of conservation, it becomes necessary to limit the total catch of a stock or stocks of fish in an area of the high seas adjacent to the territorial sea of a Coastal State, any other States fishing in that area should collaborate with the Coastal State to secure just treatment of such situation, by establishing agreed measures which shall recognize any preferential requirements of the Coastal State resulting from its dependence upon the fishery concerned while having regard to the interests of the other States". 109 Report No. 9 to the Storting (1999-2000) Svalbard Recommendation of 29 October 1999 by the Ministry of Justice and the Police, approved in the Council of State on the same date.

different appellations110, in the Norwegian case Fisheries Protected Zone (FPZ), the function remains the same: “exercise of exclusive jurisdiction over and control of fishery resources beyond the territorial sea”, in line with the reasons presented in the report to the Norwegian Storting on Svalbard. Norway has claimed its FPZ without claiming additional EEZ rights, because it was considered unnecessary to regulate activities other than fisheries. However, Norway maintains the right to establish an economic zone in accordance with the 1976 Act (Kvinikhidze, S. (2008).

The EFZ (here FPZ) concept, not mentioned in UNCLOS, now approaches111 the concept of the Exclusive Economic Zone (EEZ)112. Part V of UNCLOS on EEZ does not set details rules with regard to EEZ, thus providing flexibility to the UNCLOS EEZ regime and giving Coastal State margin of manoeuvre to create special zones, analogous to the EEZ113 where it merely exercises certain rights provided for in the EEZ framework, e.g. just the fisheries management regime (Wolf, 2013). As FPZ are thus a reduction of the concept of the EEZ, Part V UNCLOS and other relevant EEZ provisions are applicable to FPZ as far as their content reaches (Wolf, 2013). The Coastal States authority in the FPZ and EEZ is more limited than the sovereignty governing the territorial sea. The Coastal State exercise sovereign rights and jurisdiction in these maritime zones for certain economic and protective purpose (Article 56 (1) (a) of UNCLOS)114.

Contrary to the territorial sea, the scope of application of the 1920 Spitzbergen Treaty in the FPZ and on the continental shelf (as will be discussed in the next section) raises disputes over the interpretation of the 1920 Spitzbergen Treaty and UNCLOS. This section will explore three positions put forward with regards to the regime implementable in waters beyond the territorial sea: Position 1- Norway has exclusive rights unrestricted by the 1920 Spitzbergen Treaty; Position 2 - Norway has no rights beyond the territorial sea and Position 3 - Norway has jurisdiction and sovereign rights (Wolf, 2013).

111 In contrast with two earlier (pre-UNCLOS III) EFZs (see Kvinikhidze, S. (2008), footnote 138). 112 “The rules of customary international law with regards to the EEZ became Conventional norms set out in Part V of the LOSC, which was adopted in 1982 and entered into force in 1994. But the concept of the EFZ has arguably remained a rule of customary international law. The LOCS does not mention an EFZ”. (Kvinikhidze, 2008): 113 A small number of Coastal States have not claimed an EEZ, but continue to rely on the notion of a fishery zone to expand their competence in that field to a 200-mil zone. See Summary Table III presenting the current claims to Exclusive Fishery Zones (see Kvinikhidze, S. (2008), footnote 138). 114 “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds”. Article 56 (1)(a) of UNCLOS.

Position 1: Right to claim maritime zones in respect to Svalbard and apply an unrestricted Norwegian Jurisdiction

C.A. Fleischer (2007) view start from the outset referring to the different geographical application between UNCLOS and 1920 Spitzbergen Treaty. As such, while UNCLOS applies to all sea areas, the Spitzbergen Treaty application is restricted to land (Article 1) or sea territory (“in the territories specified in Article 1 and in their territorial waters” (Article 2) and “to the waters, fjords and ports of the territories specified in Article 1” (Article 3)). Thus, following the literal reading of the text, “primauté du texte”, the Spitsbergen Treaty should be interpreted restrictively, as illustrated by the jurisprudence115 (Fife, 2003). As such, the Treaty does not apply beyond the territorial waters. In addition, the drafters have not contemplate to include possible future rights linked to the waters beyond the territorial sea or the continental shelf116. This indicates that the specific restrictions should not go beyond the territorial sea, although the specific obligation should be taken into account in good faith and it does not revoke the “full and absolute” sovereignty of Norway. According to this view: “there is a new development in international law beyond what was known to the international community at the time of the treaty deliberations, one must apply the principle of sovereignty laid down in Article 1” (Fleischer, 2007). This view is supported by Fife (2003) who also mentions the general principle of sovereignty that should be imposed when going beyond the limits of the particular and concrete provision117.

Furthermore, Fife (2003) presents another argument: would the 1920 Spitsbergen Treaty apply beyond the territorial sea of Svalbard, this regime should prevail over UNCLOS, but would be incompatible for several reasons. For instance, the principle of optimum utilisation (Article 62 UNCLOS) could not be implemented, as the Spitzbergen Treaty is open to all States for accession. Moreover, if a Coastal State sets an allowable catch at levels above its capacity to harvest, it must give access to others States to the surplus, giving due regard to the rights and needs of land locked States and geographically disadvantaged States. This system

115 See Publications of the Permanent Court of International Justice. Serie B, no 12. November 21st, 1925 . Collection of advisory opinions. Article 3, paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and Iraq), p.19: « The Court must, therefore, in the first place, endeavour to ascertain from the wording of this clause what the intention of the contracting Parties was ; subsequently, it may consider whether- and if so, to what extent-factors other than the wording of the Treaty must be taken into account for this purpose» 116 Citation of the Chair from the Spitsberg Commission from the 1919 Paris Peace Conference : « [T]outes derogations à la souveraineté se trouvent dans la Traité en préparation, pour le surplus, il y a lieu d’appliquer la souverainté de la Norvège » from Rapport de la commission du Spitzberg conférence de la paix 1919-1920 recueil des actes de la conférence, partie VIII, C , p.60. Citation found in Fleischer (1978) et Fife (2003). 117 “It follows that the sovereign powers of the one and the autonomous powers of the other are of quite a different order in that the exercise of the latter powers necessitates the existence of a legal rule which cannot be inferred from the silence of the instrument from which the autonomy is derived, or from an interpretation designed to extend the autonomy by encroaching upon the operation of the sovereign power”.

relies on very different criteria than the one of the Spitzbergen Treaty. However, Fife concludes that the full application of UNCLOS beyond the territorial sea would be compatible with the object and purpose of the Spitzbergen Treaty. The preambles of both texts put an important emphasis on the peaceful use and good management of the natural resources.

Norway takes the view that the Treaty does not apply beyond the territorial sea and that the UNCLOS regime applies, thus entitling Norway to a FPZ/EEZ and a continental shelf and the associated rights and jurisdiction (Meld. St. 32 (2015–2016)). However, its practice to allow Lithuanian vessels (prior to Lithuania accession to the EU and while not being parties to the Spitsbergen Treaty) to harvest shrimps, while consistent with its position in the FPZ, represents an inconsistency in the territorial sea where the 1920 Treaty applies (Molenaar, 2012).

Wolf (2013) oppose to this argument the issue raised by the principle of lex prior-lex posterior118 and therefore the relationship between UNCLOS and the Spitsbergen Treaty. Art. 30 Para. 3 of the Vienna Convention on the Law of Treaties holds that “when all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended […], the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty”. UNCLOS goes in the same direction119, indicating that UNCLOS provisions would prevail in case of conflict of interpretation between these provisions and the Spitsbergen Treaty. However, the principle of lex prior-lex posterior is only applicable if both treaties relate to the same subject matter (Art. 30 Para. 2 Vienna Convention on the Law of Treaties).

Finally, while in practice, States have recognised historic rights in the drawing of maritime boundaries120, the Coastal States have no obligation to do so. The concept of historic rights remains relevant only to the extent that it is among the factors to be taken into account in giving access to surplus fish (Article 62 UNCLOS) 121. Rights of Coastal States in the EEZ are greater than the historic, traditional or preferential fishing rights accorded by customary

118 “A maxim meaning that a legal rule arising after a conflicting legal rule prevails over the earlier rule to the extent of the conflict. The principle may apply both to customary rules of law and to provisions of conflicting treaties between the same parties.” (Fellmeth & Horwit, 2009). 119 Art. 311 Para. 2 UNCLOS points in the same direction stating that UNCLOS shall not alter the rights and obligations of States Parties which arise from other agreements compatible with UNCLOS and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under UNCLOS. Therefore, applying the principle of lex prior-lex posterior, which is also part of customary international law, UNCLOS would prevail if there would be a conflict between UNCLOS and the Svalbard Treaty. 120 ICJ in Tunisia/Libya (1982): Long-established fishing activities and the continuous exercise of this exploitation that are recognized by other States. 121 Bernard (2015) - See PowerPoint presentation (See slide 17).

international law. In other words, there would be no obligation for Coastal States, here Norway, to recognize historic rights of third States.

Position 2: Denial of right claim over maritime zones in respect to Svalbard and Norwegian Jurisdiction

An opposite view existed that that Norway neither has no jurisdiction nor sovereign rights in the FPZ. This view arises from a strict interpretation of the Spitsbergen Treaty and the Norwegian sovereignty over Svalbard, which would not grant the right to Norway to establish the usual maritime zones recognised by UNCLOS and this to exercise the associated sovereign rights and jurisdiction. This view used to be taken by Iceland, the Soviet Union/Russian Federation and Spain, states that do not pursue any longer this position (Molenaar, 2012).

If both treaties relate to the same subject matter and if there are general (UNCLOS , the constitutions of the oceans) as well as special regulations (the Spitsbergen Treaty), the lex specialis rule prevails. Some argue that the Spitsbergen Treaty is lex specialis to UNCLOS (see below) and that therefore the Spitsbergen Treaty prevails. The Spitsbergen Treaty is seen as lex specialis to UNCLOS, as such depriving Norway of the right to establish any maritime zone, such as FPZ, and to claim a continental shelf. The Spitsbergen Treaty establishes a special territorial regime with Norwegian sovereignty over Svalbard and certain restrictions thereon (Wolf, 2013). Therefore, Norway is considered not competent to unilaterally establish a FPZ or claim a continental shelf, only by means of cooperation with the other States Parties to the Spitsbergen Treaty, which need to consent to establishing a FPZ or claiming a continental shelf (Wolf, 2013)122.

The other main argument would be based on the wording of the Treaty which only refers to land territory (Article 1) and “territorial waters” (Article 2) and “waters, fjords and ports” (Article 3). These articles exhaustively regulate Norway’s right to establishing maritime zones. Therefore, Norway is not competent to establish zones beyond the territorial sea, as at the time of the treaty beyond territorial sea, the waters were considered high seas.

In addition, if the principle of restrictive treaty interpretation comes into play Norway’s sovereignty over the archipelago is seen as a restriction of Svalbard’s terra nullius status

122 Sarah Wolf refers to A.N. Vylegzhanin/V.K. Zilanov, Spitsbergen: Legal Regime of Adjacent Marine Areas, 2007, 55 et seqq., 82 et seqq. The book is the first analysis in Russian international legal doctrine of the legal status of the waters surrounding the Spitsbergen Archipelago, together with a consideration of the land territories of the various islands and related hydrocarbon and marine bio resource issues.

according to which all States had the same rights. Therefore, one has to interpret the Norwegian sovereignty restrictively and the other States Parties’ non-discriminatory rights as direct consequence of the terra nullius status broadly. As Norwegian sovereignty over Svalbard is founded on a treaty rather than on customary law, it is argued that Norway’s sovereignty is restricted (Pedersen, 2006). The Norwegian sovereignty granted by the 1920 Treaty is curtailed both geographically and in scope, and consequently does not provide to Norway a Coastal State’s legal access to claim or enforce a 200 nautical miles fisheries protection zone in the waters around Svalbard, or to claim jurisdiction on the continental shelf adjacent to Svalbard. Iceland and Russia, however, do not assert what kind of regime or authority should govern the Svalbard continental shelf, if any. (Pedersen, 2006). However it is worth mentioning that this principle is probably among the most rarely applied rules of interpretation in twentieth century international case law (Linderfalk, 2007).

Position 3: Right to claim maritime zones in respect to Svalbard and apply Norwegian Jurisdiction and Non-Discriminatory Rights

The intermediary view, which appears to be the internationally prevailing opinion, recognizes Norway’s full sovereignty over Svalbard and its jurisdiction in the maritime areas around the archipelago, and, at the same time, the application of the Spitsbergen Treaty provisions, in particular the non-discriminatory rights, to these maritime areas. This view is brought forward especially by the United Kingdom (hereinafter “UK”), which has publicly spelt out legal arguments, the Netherlands, Denmark, Spain and the Russian Federation and is supported, inter alia, by G. G. Ulfstein and R.R. Churchill. Other States, especially the US, France and Germany, have reserved any rights they may have under the Treaty of Spitsbergen beyond the territorial sea, thus keeping the issue under review, while some have not taken a position publicly.

As demonstrated earlier, Norway, as a sovereign Coastal States, and despite of the restrictions and non-discriminatory rights of the Spitsbergen Treaty is entitled claim maritime zones. Neither there is no provision in the Spitsbergen Treaty nor in International Law of the Sea, which prevents Norway from claiming the whole range of generally accepted maritime zones around Svalbard, such as a FPZ or a continental shelf.

The strict formal and literal interpretation of the Spitsbergen Treaty is seen as too restrictive: When drafting the Spitsbergen Treaty in 1920, the Spitsbergen Commission could hardly foresee the subsequent development in the Law of the Sea, attributing the Coastal State rights

on the continental shelf and allowing the establishment of a 200 nautical miles EEZ. Accordingly, the Spitsbergen Treaty wording does not contain any reference to these legal concepts. At the time of concluding the Spitsbergen Treaty, States Parties held the view that the waters beyond the territorial sea were high seas open to all States without the restrictions of the Spitsbergen Treaty. This does, however, not lead to the conclusion that the maritime zones beyond Svalbard’s territorial sea are forever high seas and that no posterior changes may apply. If the drafters of the Spitsbergen Treaty had foreseen the development of such functional limited zones, they would have mentioned such zones in the Spitsbergen Treaty as they aimed for the creation of a comprehensive territorial treaty regime and the permanent settlement of the archipelago’s legal status.

From this perspective, the Spitsbergen Treaty has to be interpreted dynamically according to its object and purpose. The Spitsbergen Treaty was designed as a “package deal” whereby Norway was granted sovereignty, but under certain stipulations as other States retained certain terra nullius rights through the right of non-discrimination. At the time of the Treaty draft, the rule of non-discrimination applied as well to land and maritime territories (Wolf, 2013). Furthermore, there is a close legal connection between the land territory and the maritime areas (Churchill & Ulfstein, 2010)123. Therefore, Norway’s sovereign rights as well as the non-discrimination rights are applicable to the FPZ.

It is also worth mentioning that a somewhat anomalous situation: If the equal rights of fishing in Articles 2 and 3 of the Spitsbergen Treaty did not apply beyond the territorial sea, in the FPZ this would have the paradoxical consequence that States Parties other than Norway would have greater rights of fishing on the land territory and territorial sea of Svalbard than they had in the 200 nautical miles zone or continental shelf around Svalbard (Churchill & Ulfstein, 2010). Such a situation would be contrary to the coherent system of maritime zones in International Law of the Sea in which the Coastal State’s competences diminish, not increase, as one moves outward from the coast (Wolf, 2013).

This view has been supported by several international judgements by pointing towards the application of the Spitsbergen Treaty limitations in the FPZ and on the continental shelf (Wolf, 2013). Among the jurisprudence, Churchill & Ulfstein (2010) have identified cases are relevant in this regard. In those, courts and tribunals have examined situations in which the question of whether a treaty or similar instrument may be extended or applied to maritime

123 See concept of principle of adjacency (see section on continental shelf).

areas that were not in the contemplation of the parties at the time of the treaty’s conclusion. This dissertation will only mentioned the two most relevant to the situation in Svalbard.

The Aegean Sea Continental Shelf case (1978)124 in which Greece asked the ICJ to arbitrate on its continental shelf boundary dispute with Turkey in the Aegean Sea. The ICJ concluded that a declaration on jurisdiction given in 1928 also applied to the continental shelf. The Court decided that in parallel of the evolution of the maritime rights of Greece, the acceptance of the jurisdiction under the 1928 Act also changed. This offers a parallel to the Svalbard situation. In the same way as Norway’s right to claim maritime zones in respect of Svalbard by virtue of its sovereignty has increased over time, so, it can be argued, there has been a corresponding increase in the limitations on that sovereignty (including Articles 2 and 3) (Churchill & Ulfstein, 2010). In the Oil Platform Case of 2003, the ICJ did not distinguish between the land territory, the territorial sea, the continental shelf and the EEZ in a treaty entered into in 1955 and applicable on “the territories of the two High Contracting Parties” (Wolf, 2013). The Court’s decision offers some support for the argument that the rights in Article 2 and 3 of the Spitsbergen Treaty apply beyond the territorial sea (Churchill & Ulfstein, 2010).

To reach a conclusion, the authors (Churchill & Ulfstein) also refer to two recent cases, which discuss in more general terms how older treaties should be interpreted. In the Iron Rhine arbitration125, which was concerned with the interpretation of a treaty of 1839 under which Belgium was accorded certain rights of transit across the territory of the Netherlands, the tribunal noted “various changes could not have been foreseen by the Parties. At the same time this rule [i.e. the inter-temporal rule] does not require the Tribunal to be oblivious either to later facts that bear on the effective application of the treaty, nor indeed to all later legal developments.” The tribunal decided that “an evolutive [sic] interpretation, which would ensure an application of the treaty that would be effective in terms of its object and purpose, will be preferred to strict application of the inter-temporal rule.” The tribunal found support for such a position in a dictum of the ICJ in the Gabčikovo-Nagymaros case126 that a treaty “is not static, and is open to adapt to emerging norms of international law”. The two cases mentioned lessen the inter-temporal rule and point away from interpreting the

124 Aegean Sea Continental Shelf, Greece v Turkey, Jurisdiction, Judgment, [1978] ICJ Rep 3, ICGJ 128 (ICJ 1978), 19th December 1978, United Nations [UN]; International Court of Justice [ICJ] 125 Iron Rhine Arbitration, Belgium v Netherlands, Award, ICGJ 373 (PCA 2005), 24th May 2005, Permanent Court of Arbitration [PCA] 126 Gabčikovo-Nagymaros Project, Hungary v Slovakia, Order, Site Visit, [1997] ICJ Rep 3, ICGJ 65 (ICJ 1997), 5th February 1997, United Nations [UN]; International Court of Justice [ICJ]

Spitsbergen Treaty according to international law as it was in 1920 and giving it a more evolutionary interpretation. This would suggest not only that Norway’s right to establish maritime zones beyond the territorial sea has increased over time, but so also has the geographical scope of the non-discriminatory rights of the other parties under the Treaty (Churchill & Ulfstein, 2010).

Concerning the applicability of the Spitsbergen Treaty, the three positions presented in this sub-section on FPZ are similar for the continental shelf and will not be reiterated in the next sub-section.

The Continental shelf

The concept of continental shelf is define in Article 76(1) of the United Nations Convention on the Law of the Sea as “The continental shelf of a Coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural pro•longation of its land territory to the outer edge of the continental margin127, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance”. The continental shelf is defined by a geological criterion and a distance criterion. The legal definition of the shelf is specific and different from the geological definition, thus the continental shelf is a shallow extension of the continent’s landmass under the ocean, restricted outwardly by the ocean floor bend. This principle is now a rule of customary international law.

The concept of the continental shelf as defined in Article 76 (1) of UNCLOS, with land as a common denominator, provides that the Coastal State’s sovereignty over the land domain extends to the maritime domain due to the principle of adjacency. International law jurisprudence as explained in cases such as the Continental Shelf Case between Tunisia and Libya128 defines adjacency as the geographic correlation between the coast and the submerged areas off the Coastal States land domain is the basis of a Coastal States legal title to the continental shelf’s resources (Scotcher, 2011).

127 Article 76(3) of the UNCLOS defines the continental margin as “a submerged prolongation of the land mass of the Coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof”. 128 Continental Shelf, Tunisia v Libya, Application to Intervene, Judgment, [1981] ICJ Rep 3, ICGJ 125 (ICJ 1981), 14th April 1981, United Nations [UN]; International Court of Justice [ICJ] » (see para 73).

The rights129 of a Coastal State over its continental shelf are described in Article 77 of the UNCLOS. The Coastal State exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources. The latter being mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed of the subsoil. To be noted that the rights of the Coastal States over the continental Shelf does not affect the legal status of the superjacent waters above those waters.

The sovereign rights over the continental shelf of the Coastal State, as described in Article 77 of the UNCLOS, are distinct from the territorial sovereignty in the sense that they lack the comprehensiveness of material scope (Tanaka, 2015). These rights over the continental shelf are exclusive – no one else can exercise them without the express content of the Coastal States-, inherent – they do not depend on an effective or notional occupation- , and ipso facto – they do not require any express proclamation: a state’s territory automatically generates a continental shelf (Tanaka, 2015). It is to be noted that islands have a territorial sea, a contiguous zone, a continental shelf and an exclusive economic zone as applicable to land territory (Art 121.2), unless there are considered as rocks.

Under article 4 of Annex II to UNCLOS, a Coastal State intending to establish the outer limits to its continental shelf beyond 200 nautical miles is obligated to submit particulars of such limits to the Commission on the Limits of the Continental Shelf along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of the Convention for that State. The outer limits of the continental shelf established by the Coastal State “on the basis” of the CLCS recommendations “shall be final and binding.”

On 27 November 2006, the Kingdom of Norway submitted to the Commission on the Limits of the Continental Shelf (hereinafter “CLCS”)130, in accordance with Article 76 (8) of UNCLOS, information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured for three separate areas

129 The Coastal States also possesses exclusive rights to regulate the construction, operation and use of artificial islands, installations and structures, including installations and structures which are abandoned or disused (art. 80; art. 60 EEZ); to authorise and regulate drilling (art. 81), and tunnelling (art. 82); to permit, regulate and control dumping (Art 210) and any marine research must be conduct with the consent of the Coastal State. 130 See Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Kingdom of Norway.

in the North East Atlantic and the Arctic: the Loop Hole in the Barents Sea; the Western Nansen Basin in the Arctic Ocean; and the Banana Hole in the Norwegian Sea.

The Norwegian submission states that “The largest is part of the Eurasian Continental Margin as described above. It consists of the continental margin adjacent to Mainland Norway and the Svalbard Archipelago, and extends from the North Sea in the south, through the Norwegian and Greenland Seas, into the Eurasian Basin of the Arctic Ocean in the north. It is continuous along its entire length in terms of both morphology and geology” 131, thus presenting the continental shelf around Svalbard as contiguous to that of the Norwegian mainland. This is in line with Norway argument that that Svalbard has not continental shelf of its own and the continental shelf of mainland Norway extends to, around and beyond Svalbard. In other words, Svalbard simply sits on the Norwegian mainland continental shelf (Churchill & Ulfstein, 2010). 132

Only four States, namely Denmark, Iceland, the Russian Federation, and Spain133, reacted to the submission presented by Norway: while no state disputed the right of Norway to claim continental shelf around Svalbard, the Russian federation and Spain reminded the Spitsbergen Treaty, and Spain expressed that it “reserves its rights concerning the exploitation of the resources of the continental shelf”, while the Russian Federation underlined an “area of dispute” due to overlapping territorial claims. The absence of reaction of other States to the Norwegian submission may be regarded as an acceptance of Norway claiming the continental shelf around Svalbard (Wolf, 2013). The CLCS gave its final recommendation in March 2009. The CLCS did not discuss whether the Treaty is applicable to the continental shelf areas around Svalbard explicitly. The CLCS is an expert panel explicitly without competence to settle disputes; the dominant opinion is that the CLCS procedure is of a technical rather than legal character. Even if the CLCS recommendation of the outer limits confirms Norwegian jurisdiction over the entire shelf, it does not settle what provisions apply to the

131 See Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Executive summary of the Continental Shelf Submission of Norway in respect of areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea. 132 “The boundary established by the 2006 maritime boundary agreement between Norway and Denmark/Greenland (referred to earlier) is based on the principle of equidistance, such equidistance being determined by basepoints on Greenland and Svalbard.48 It is difficult to see how Svalbard can provide basepoints for determining an equidistance line if it does not have a continental shelf. Secondly, the map accompanying that part of Norway’s submission to the Commission on the Limits of the Continental Shelf relating to the area north of Svalbard, the Western Nansen Basin, shows an area marked as “Continental Shelf beyond 200 miles.” The area shown is beyond 200 miles as measured from Svalbard. Finally, it is difficult to see how Svalbard could generate a 200-mile FPZ, as Norway claims, but not a continental shelf” (Churchill & Ulfstein, 2010) 133 See Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Kingdom of Norway - Reaction of States to the submission made by Norway to the Commission on the Limits of the Continental Shelf.

shelf. Since the dispute over the Svalbard shelf is not about the physical characteristics of the shelf, the establishment of its geological limits would leave the dispute unresolved. (Pedersen, 2006)

Norway, however, does not seem to view the Svalbard controversy as relevant for its CLCS submission. Director General Rolf Einar Fife of the Department for Legal Affairs at the Ministry of Foreign Affairs stated to Svalbardposten: “This is quite unproblematic. It is a technical job, and it has nothing to do with the Spitsbergen Treaty. The treaty has no relevance to modern law of the sea. [. . .]. The work has proceeded steadily, and there are clear technical criteria for what to examine.” (Pedersen 2006). Thus, the outer limit of the continental shelf to the north of Svalbard has been determined, subject to Norway’s acceptance of the Commission’s recommendations and its western and eastern limits being agreed with Denmark/Greenland and Russia, respectively (Churchill& Ulfstein, 2010).

In parallel, Norway has entered into delimitation agreements concerning the Svalbard’s continental shelf and adjacent continental shelf areas. On 20 February 2006, Norway and Denmark together with Greenland signed an Agreement134 concerning the delimitation of the continental shelf and the fisheries zones in the area between Greenland and Svalbard. The agreement entered into force on 2 June 2006. On 15th September 2010, Norway and Russia concluded a Treaty concerning the Maritime Delimitation and Cooperation in the Barents Sea and Arctic Ocean, the so-called 2010 Murmansk Treaty135. Both States agreed on a delimitation line drawn also with respect to Svalbard (Norway) and Franz Josef Land (Russia) and on mutual cooperation in fisheries matters and transboundary hydrocarbon deposits.

Both, the CLCS process and the delimitation agreements concluded with Denmark and Russia can be seen as an acceptance of Norway claiming Svalbard’s continental shelf (Wolf, 2013).

134 See Agreement between the Government of the Kingdom of Norway on the one hand, and the Government of the Kingdom of Denmark together with the Home Rule Government of Greenland on the other hand, concerning the delimitation of the continental shelf and the fisheries zones in the area be-tween Greenland and Svalbard (signed 20 February 2006, entered into force 2 June 2006). 135 Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (signed 15 September 2010, entered into force 7 July 2011).

2) Disputes on the applicability of the Spitsbergen Treaty

We move from the question of the geographical scope of applicability of the Spitsbergen Treaty to consider several specific issues relating to the FPZ and the continental shelf in the field of marine living resources. While it was set that no controversy arise from the application of the Treaty in the territorial waters, which were extended from 4 to 12 nautical miles in 2004, the claim of maritime waters beyond the territorial waters has been at the origin of several issues linked to the different interpretation of the treaty.

This section explores the disputes arisen in the FPZ, linked to quotas allocation, reporting obligations, and to the enforcement jurisdiction of Norway, as well as a more recent controversy around the continental shelf and the harvesting of a new species, the snow crab.

The quota allocation system

As presented in the dissertation above136, since 1994, third states, i.e. states other than the two Coastal States Norway and Russia, have been allocated quotas for cod fishing in the FPZ based on their traditional fishing in the area. This has meant that, except for Norway and Russia, only fishing vessels from EU Member States and the Faroe Islands have been given quotas. Quota regulations have also been implemented for herring fishing, and regulations concerning the maximum number of vessels and fishing days have been established in fishing for shrimp. (Churchill & Ulfstein, 2010).

The quota regulation in the cod fishing led to conflicts with Icelandic fishermen, who were not granted quotas. In August 1994, two Icelandic-owned trawlers registered in Iceland and Panama were seized by the Norwegian Coast Guard and the captains and the ship owners were put to trial for illegal fishing. When the case reached the Norwegian Supreme Court in 1996137, the defendants argued that the quota regime violated the non-discrimination principle established by the Spitsbergen Treaty. The condition of equality—set by the Treaty—was absolute, the defendants argued. (Pedersen, 2006). The Court held, however, that exclusion of the Icelanders did not violate the principle of non-discrimination since allocation of fishing quotas was based on traditional fishing. The Supreme Court, however, ruled that Norway had jurisdiction in the 200 nautical miles FPZ, which was lawfully authorized in the Economic Zone Act of 1976, allowing the establishment of sea areas off the Kingdom of Norway.

136 See section B (2) 137 Påtalemyndigheten v. SigurdHaraldson, Rederiet Utgerdarfelag Dalvikinga HF, Jon Nolsø Olsen and Rederiet Skridjökull HF case. Supreme Court ruling in case lnr 45b/1996 snr 197/1995 of May 7, 1996.

According to the Svalbard Act of 1925, the kingdom includes Svalbard (Pedersen, 2006). In the judgment by the Supreme Court in, the Court did not consider the issue of the geographical application of the Spitsbergen Treaty: “It is not necessary [. . .] to decide on the geographical application of the Spitsbergen Treaty, as I cannot see that Norway’s treaty obligations in any event have been neglected through the cod fish regulations implemented.”138

The allocation of quota based on historical fishing in the FPZ is also in line with the non- discriminatory provisions of the Spitsbergen Treaty. Historical fishing does not discriminate based on nationality as historical rights can be seen as a justification for a difference in treatment (Wolf, 2013). Similarly, the International Law of the Sea perspective points towards the same direction. UNCLOS, in its Art. 62 Para. 3 states that – when giving access to other States to the living resources of its EEZ – “the Coastal State shall take into account all relevant factors, including, inter alia, […] “the need to minimize economic dislocation in States whose nationals have habitually fished in the zone”.

The reporting requirements A second issue related to reporting requirements in the FPZ. According the Norwegian authorities (Meld. St. 32 (2015–2016)), uniform rules139 have been issued for fishing in the territorial sea around Svalbard and in the Fisheries Protection Zone around Svalbard.

Despite a more active enforcement since the 90’s, the Norwegian Coast Guard has refrained in most cases from taking sanctions against Russian vessels that have violated especially the reporting regulations in the FPZ. The arrest of the Russian trawler Chernigov in 2001, escalated politically. Eventually leading to demonstration of power by the Russian Federation which deployed Russian patrol vessels were deployed to the Svalbard zone to “protect” Russian trawlers from the Norwegian Coast Guard. Sensitive to the tension in the Svalbard zone, the Norwegian Ministry of Foreign Affairs instructed the Norwegian Coast Guard to abort its planned seizure of the Russian trawler Okeanor in 2004. (Pedersen 2006).

This permissiveness towards Russian vessels has been criticized by other states and led to other incidents. In a case before the Norwegian Supreme Court in 2006 concerning Spanish fishing in the FPZ, it was claimed by the Spanish fishermen that the fact that the Russian

138 Supreme Court ruling in case lnr 45b/1996 snr 197/1995 of May 7, 1996. 139 This includes reporting rules, rules for keeping a catch logbook, provisions on mesh size in fishing gear, the use of sorting grids and minimum sizes for fish, etc.

fishermen were not sanctioned for not reporting according to the regulations violated the principle of non-discrimination of the Spitsbergen Treaty, as Norway was not imposing the same requirement to fishing vessels according to its nationality.

The Court found, however, that the need for control of Russian fishing through reporting from its fishing vessels was less important than for other fishing nations in the area since Russian quotas related to the entire migration area of the fish stock, and not merely to the FPZ. Russia provided instead monthly catch reports to Norway. Furthermore, by several diplomatic means, the Norwegian authorities had tried to agree with Russia to fulfil the reporting requirement. The Court concluded that the lack of success could not be deemed as a violation of the non-discrimination requirement. (Churchill & Ulfstein, 2010)

The Court did not consider whether Norway had implemented non-discrimination correctly in all respects. The reason was that a possible breach of this requirement would not be a basis for acquittal of the Spaniard, as it was not closely related to the Spanish not reporting according the regulations in place. Here as well, the Court did not find it necessary to determine the geographical application of the Treaty. (Wolf, 2013)

The reasoning of the Supreme Court presents some weaknesses (Churchill & Ulfstein, 2010). First, the fact that Norwegian authorities had tried to persuade Russia to respect the reporting requirements highlights a need for reporting also from Russian fishing vessels. Furthermore, the regulations apply formally also to all vessels, including Russian vessels. Even if the need to enforce is less important with Russian vessels, due to bilateral agreements between Norway and Russia, it is sensible to expect that regulations are enforced in a non- discriminatory way towards all third states. These observations should, however, not be taken as arguments to the effect that non-application of the Spitsbergen Treaty’s requirements of non-discrimination should necessarily lead to exoneration under Norwegian law. (Wolf, 2013)

The exercise of enforcement jurisdiction The third issue relates to the exercise of enforcement jurisdiction over non-Norwegian fishing vessels in Svalbard’s 200 nautical miles FPZ. According to UNCLOS, concerning matters provided by international law in EEZ and CS, the Coastal State may exercise legislative and enforcement manner over all people regardless of their nationalities in an exclusive manner.

While giving clearly legislative jurisdiction, the Article 2 of the Spitsbergen Treaty mentioned “these measures shall be applied equally’. The term “applied” is arguably

referring to Norway enforcement jurisdiction. If the Spitsbergen Treaty applies beyond the FPZ, it must logically follow that Norway’s competence under Article 2(2) to enact fisheries conservation measures, together with its concomitant power to enforce such measures, must also so extend, as expressly recognised by Denmark. (Churchill & Ulfstein, 2010).

State Parties to the Spitsbergen Treaty cannot pick and choose (Churchill & Ulfstein, 2010). Either the whole of Article 2, including Norway’s jurisdictional competence, applies to the FPZ, or none of the Article’s provisions apply. If a State Party consider that in accordance with the provisions of the Article 2 of the Spitsbergen Treaty, one of his vessels can operate in the FPZ, it must follow that Norway has the right to exercise enforcement jurisdiction in the FPZ (and over such vessel). If, on the other hand, such fishing activities take place because it is permitted by the Norwegian authorities, it must follow a fortiori that Norway has jurisdiction over non-Norwegian fishing vessels, unless it has specifically agreed to forego the exercise of such jurisdiction, which in fact it has not (Churchill & Ulfstein, 2010). These conclusions have been however challenged by several States Parties, especially by Iceland, Spain and Russia.

In a first instance, Norway has been cautious in its enforcement competences. In the mid- and late-1980s, several incidents of severe underreporting by Spanish fishermen were identified and led Norway to threaten Spain to withdraw its Barents Sea quota if compliance was not improve by the Spanish fleet. Spanish fishing authorities eventually started to send their own inspectors to the FPZ along with its fishing fleet (Wolf, 2013). Since the mid-1990s, the pace of incidents within the FPZ between Norwegian authorities and foreign fishing vessels has been accelerated. In 1993, the Norwegian Coast Guard fortified its enforcement in the FPZ by firing warn shots and in the following year it even began cutting fishing gear trawled by vessels which fished illegally without quotas in the zone (Pedersen, 2006). In 2001, the arrest of the Chernigov led to strong political tensions140.

Two Spanish vessels, Olaberri and Olazar, were at the origin of major trouble between Norway, and Spain (and the EU) in 2004. Following an inspection and the establishment of serious discrepancies between the catches reported in the logbook and real catches, an alleged violation of Royal Decree of 1977, the two vessels were arrested and seized. The incident led to an exchange of Notes Verbales from the Spanish government and the European Commission to Norway to express their concerns in relation to the enforcement measures

140 See previous section on reporting requirements for more details.

(Wolf, 2013). Both hold the view that the Spitsbergen Treaty did not grant the rights to Norway to take enforcement measures, such as inspection, arrest and seizure of a foreign vessel and that access to maritime areas around Svalbard was not restricted. In their view, only the flag state has the right to take the necessary actions (i.e. take enforcement measures) to remedy to the wrongdoing of one of its vessels in the FPZ. In addition, Spain reiterate its opinion that Norway’s enforcement policy in the FPZ breached the non-discrimination principle of the Spitsbergen Treaty, as it was not enforced similarly depending on the flag state of the vessel (i.e. Russia)141.

The Norwegian Supreme Court, in its judgement of 2006142 on the seizure of the two Spanish fishing vessels Olaberri and Olazar in 2004, ruled, however, that the principle of non- discrimination had not been violated (Wolf, 2013). Svalbard zone was internationally recognized (Pedersen, 2006): “The establishment of the fisheries protection zone has not caused any state to file a case against Norway to the court in The Hague. Accordingly, the fisheries protection zone has been legally recognized.”143 The Court did not consider whether the Spitsbergen Treaty should or should not apply in the FPZ.

Controversy around the management and harvesting of a new species, the snow crab

Snow crab was first recorded in the Eastern Barents Sea in 1996. In Canada and the USA, snow crab fishery ranks among the most valuable (Osthagen & Raspotnik). End 2014 Norway enacted legislation prohibiting to fish for snow crab around Svalbard except for those Norwegian vessels that had been granted an exception to the prohibition (i.e. for vessels owning a license under the Norwegian Participation Act whose Article 5 excludes non- residents and foreign companies from the possibility to obtain a license) (De Pooter, 2020). The Norwegian legislation has been challenged and contested in virtue of the Spitsbergen Treaty provisions of equal access and non-discrimination principle by the European Union144, which holds the exclusive competence in relation to fisheries, and some States Parties.

141 Nord-Troms Tingrett ruling in cases 04-1285M, 04-1940M and 04-1941M of Dec. 20, 2004.: “In fact, Russian fishing vessels do not report to Norwegian authorities. The limited control with Russian vessels must be regarded as an unfair discrimination against other nations. Over the last 25 years there have been only two Russian seizures in the protection zone, compared to numerous seizures in the mainland zone”. 142 2004 Påtalemyndigheten v. Pesqueres Laurak Bat S. A. case. Nord-Troms Tingrett ruling in cases 04-1285M, 04-1940M and 04-1941M of Dec. 20, 2004. 143 Nord-Troms Tingrett ruling in cases 04-1285M, 04-1940M and 04-1941M of Dec. 20, 2004. 144 Note Verbale EU to Norway contesting that piece of legislation, reminding the access rights of the Contracting Parties and requesting Norway not to interfere with the legitimate activities of EU vessels – 25 October 2016

In reaction, Council Regulation 2017/127 fixing for 2017145 the fishing opportunities provided for 20 fishing authorisations for snow crab. (Since then, the Council Regulations renew the licence to catch snow crab on an annual basis to maintain its position). The first and so far only vessel that started to fish for snow crab in Svalbard the Senator, a vessel flying the flag of Latvia. The Norwegian Coast Guard detained the vessel on 16 January 2017 for violation of Norway law: the vessels was harvesting snow crab without a licence emitted by the Coastal State, Norway. The vessel was eventually escorted to the port of Kirkenes.

Snowcrab species, being “unable to move except in constant physical contact with the seabed or the subsoil” is considered as falling in the definition of “sedentary species” of Article 77(4) of UNCLOS. This living organism, together with mineral and non-living resources of the seabed and subsoil, form the natural resources belonging to the continental shelf over which the Coastal State exercises sovereign rights for the purpose of exploiting (Article 77 (1)). Therefore, the broader legal ramifications of this dispute by extension also cover all the natural resources on the continental shelf around Svalbard, including other sedentary species and non-living resources such as oil and gas.

The Supreme Court of Norway upheld the conviction of the Russian captain and the Latvian ship owner. In a Grand Chamber judgment of February 14, 2019, it decided that it did not need to consider whether the non-discrimination clauses contained in the Spitsbergen Treaty applied beyond the territorial sea since, in any event, the principle of non-discrimination had not been violated by Norway. To reach this conclusion, the Supreme Court noted that any person, including a Norwegian citizen, found catching snow crabs in the area without a Norwegian license would have been convicted just as the defendants had been. The Supreme Court avoided addressing the defendants' arguments that the discrimination lies in the conditions for obtaining a license under the Participation Act. (De Pooter, 2020)

145 See Annex III – Maximum number of fishing authorisations for Union fishing vessels fishing in third country waters. Also in the whereas, the number 35 states: “As regards the fishing opportunities for snow crab around the area of Svalbard, the Treaty of Paris of 1920 grants an equal and non-discriminatory access to resources for all parties to that Treaty, including with respect to fishing. The Union's view of this access as regards fishing for snow crab on the continental shelf around Svalbard has been set out in a note verbale to Norway dated 25 October 2016, in respect of a Norwegian regulation of the fishing for snow crab on its continental shelf, which in the Union's view disregards the specific provisions of the Treaty of Paris and in particular those laid down in Articles 2 and 3 thereof. In order to ensure that the exploitation of snow crab within the area of Svalbard is made consistent with such non-discriminatory management rules as may be set out by Norway, which enjoys sovereignty and jurisdiction in the area within the limits of the said Treaty, it is appropriate to fix the number of vessels that are authorised to conduct such fishery. The allocation of such fishing opportunities among Member States is limited to 2017. It is recalled that primary responsibility for ensuring compliance with applicable law lies with the flag Member States.”

D) Conflict resolution mechanism

The 1920 Spitzbergen Treaty anticipated possible claims “arising from taking possession or from occupation of land before the signature of the present Treaty” in its Article 6. The scope is reiterated in Article 10 which refers to the territories “as specified in Article 1 of the Treaty”, which only makes reference to land territories. To respond to the possible claims, the Treaty provides with a mechanism, as described in its Annex, which indicated the procedures to notify and to process any claims in that regard. Nevertheless, the Spitsbergen Treaty does not offer any dispute settlement mechanism for dispute arising from diverging views from States Parties on its interpretation and its application.

From the previous section C, the issue related to the interpretation and applicability of the Treaty beyond the territorial waters has not been settled by the Norwegian Courts, even the Supreme Court, ruling. The question is now to evaluate whether an international judicial settlement, as offered by the contemporary international law (i.e. UNCLOS), would be possible (and desirable) option (1), or whether other options should be dug into to aim at solving the disputes over the interpretation of the Treaty (2).

1) Could a judicial settlement be possible though the UNCLOS mechanism of settlement of disputes146

UNCLOS has established a unique mechanism combining the voluntary and compulsory procedures for dispute settlement (Tanaka, 2015). Under Article 279, its States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means”. In addition, its article 286 clarifies that “any dispute concerning the interpretation or application of this convention shall, where no settlement has been reached by recourse to section 1147, be submitted at the request of any party to the dispute to the court or tribunal jurisdiction under this section148”.

146 This sub-section of the dissertation is mainly based on the following sources if not indicated otherwise: (De Pooter, 2020) 147 Section 1 - ‘General provisions’ 148 Section 2 -‘Compulsory procedures entailing binding decisions’

First, as suggested by international case law, the priority is to determine what is "the real issue in the case" and this question must be assessed "fairly". (De Pooter, 2020). Regarding the Svalbard dispute, this question is a matter of views and perspective.

A judicial body could consider that the dispute concerns the law applicable to the FPZ and continental shelf adjacent to Svalbard (on one side, Articles 61and 62, and, on the other side Article 77 of the UNCLOS149 or the Spitsbergen Treaty), and conclude that the dispute does indeed concern the application of the Convention. The award in the Philippines v. China case points an interpretation in that direction (De Pooter, 2020): "[a] dispute concerning the interaction of the Convention with another instrument or body of law, including the question of whether rights arising under another body of law were or were not preserved by the Convention, is unequivocally a dispute concerning the interpretation and application of the Convention."150 One could also argue that the 1920 Spitzbergen Treaty itself makes it an obligation to use rights and perform duties in good faith and that, by way of consequence, this also means an obligation for the States Parties to co-operate with Norway in the conservation of the fisheries resources of Svalbard. The contents of such cooperation could be very close to the one contained in Articles 117 to 119 of UNCLOS, despite those provisions applying to the high seas not being directly relevant to the FPZ, which is an area under national fisheries jurisdiction.

However, a judicial body could also adopt a more restrictive reading and consider that the "real issue" is not the application of Article 77 of the UNCLOS, but rather the application of a lex specialis (the Spitsbergen Treaty) as a derogation from the "general law" of the UNCLOS, which applies in the absence of a special agreement (De Pooter, 2020). In other words, a tribunal might consider that the question of the application of Articles 61, 62 and 77 is not, in itself, the "real issue:" its application or non-application will depend on the answer to the much more delicate question of the applicability of the Spitsbergen Treaty. However, to anticipate if a judicial body would adopt such a restrictive approach is difficult (De Pooter, 2020).

Under Article 280 of UNCLOS, State Parties have the right to “agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their choice”. Norway has chosen to resolve UNCLOS disputes at the

149 Article 61 – Conservation of the living Resources; Article 62 – Utilization of the living resources; Article 77 – Rights of the Coastal State over the continental shelf. 150 The Republic of Philippines v. The People's Republic of China, PCA Case n° 2013-19, award on jurisdiction and admissibility, Oct. 29, 2015.

Norway has accepted the compulsory jurisdiction of the ICJ under the Article 36(2) of the Statute of the Court. A judgment from the ICJ (or another international court) would be legally binding151. However not all Parties to the Spitsbergen Treaty have not made any declaration under UNCLOS, such as the European Union, or have accepted the ICJ’s compulsory jurisdiction, among them Russia and the United States. In situations where the parties to a dispute have not accepted the same procedure for settlement, the dispute may only be submitted to Annex VII arbitration, unless the parties agree otherwise. Such jurisdiction may also follow from bilateral agreements between Norway and other states, such as the agreement on peaceful dispute settlement between Norway and Iceland of 1930 (Churchill & Ulfstein, 2010). In addition, where a dispute concerning the interpretation and application of the provisions of the 1920 Spitzbergen Treaty arises, proceedings cannot be instituted without the consent of all the parties to the dispute.

Any judgment would furthermore only be formally binding for the parties to the case. It may be noted that it would not be possible for any state to utilise the dispute settlement machinery of UNCLOS, which provides for the unilateral referral by one party to a dispute to binding third party adjudication, because that machinery applies only to disputes concerning the interpretation and application of UNCLOS, and does not cover disputes relating to the Spitsbergen Treaty. (Pedersen, 2016)

After so many years of conflict, none of the parties involved nor contracting parties to the Treaty have moved to challenge Norway and brought the dispute about the geographical application of the Treaty before international courts. It seems that no state is willing to actually take the risk of losing the case (Pedersen, 2006). The outcomes of any such dispute settlement procedure would be difficult to predict.

2) Other possible solutions and mechanisms152

Within the possible solutions put forward by Churchill & Ulfstein (2006) there is either Norway acceptance of the application of the Spitsbergen Treaty beyond the territorial sea or

151 The signatory states of the Spitsbergen Treaty that have also accepted the ICJ’s compulsory jurisdiction under Article 36 para.6 are as follows: Australia, Austria, Belgium, Bulgaria, Canada, Denmark, The Dominican Republic, Egypt, Estonia, Finland, Germany, Greece, Hungary, India, Japan, New Zealand, Poland, Portugal, United Kingdom, Spain, Switzerland, and Sweden. (Scotcher, 2011). 152 This sub-section of the dissertation is mainly based on the following sources if not indicated otherwise: (Churchill & Ulfstein, 2010)

the acceptance of the other Treaty Parties that the Treaty does not so apply beyond territorial sea. However there is little prospect that, either solutions might concretize one day. On one side, Norway has shown no sign to be incline to change its position on that regard. In addition, Norway sees no need to initiate settlement over Svalbard continental shelf (Pedersen, 2006). In addition, the present fisheries management is working relatively well, with stocks in good shape, and it is not seen as a great sacrifice by Norway that third states are allocated limited fishing quotas in the 200 nautical miles FPZ (Churchill & Ulfstein, 2006). On the other side, the other treaty parties have not move towards accepting Norway’s view. The have everything to win by claiming rights under the Spitsbergen Treaty on the continental shelf, while still benefitting of the current fisheries regime in place. In the same line, the preservation of the status quo is acceptable from a fisheries point of view. Management would be based on non-discrimination, and management measures and their enforcement would continue to be developed over time. (Churchill & Ulfstein, 2006).

Then, Churchill & Ulfstein (2006) presents two other options base on negotiations: convening of formal negotiations, under a new conference on Svalbard, or of informal negotiations with the States Parties to the Treaty.

A New Svalbard Conference The organisation of a new Svalbard Conference would provide the possibility to terminate with outstanding legal issues on the geographical application of the Spitsbergen Treaty with binding effect, though formal amendment to the Treaty (Churchill & Ulfstein, 2006). Nevertheless, any amendment or negotiation of the Spitsbergen Treaty must take into consideration all the States Parties to the Treaty, and acquiescence would be a key factor (Scotcher, 2011). This is all the more true when the treaty in question is silent, that is to say that it does not provide any provisions on how to amend or terminate it. The general rule from the Vienna Convention on the Law of Treaties is that silence means that all the States Parties must agree to any changes (Scotcher, 2011).

Those alterations to the Treaty could take the shape of an additional protocol(s) or annexes, such as what was done for the Convention of 1976 for the protection of the Mediterranean Sea against Pollution (Barcelona Convention) and its seven protocols targeting specific aspects. Those changes would address and improve the common understanding among States Parties of the Treaty provisions and applicability to the maritime zones codified by UNCLOS. It could also address the lack of dispute resolution mechanism of the Treaty. Any formal alteration would require the consent of all the States Parties, in particular the signatory

parties, since the amendment would give a character of new Treaty. Notwithstanding, a Conference could also be a new forum of disagreement about the interpretation and applicability of the Treaty, among States Parties with strongly diverging views and thus exacerbate outstanding tensions.

A negotiated informal interpretation

The improbability of collective effort in examining any of the issues vis-à-vis Svalbard with recourse to amendment makes it essential for a signatory party to take the lead in bringing these issues to the forefront of diplomatic relations (Scotcher, 2011). Instead of organizing a formal Conference to clarify or amend the disputed issues, Norway could initiate informal consultations with relevant parties (not all) to the Treaty aimed at a common understanding of the relevant provisions, possibly including a compromise concerning the unresolved issues (Churchill & Ulfstein, 2006).

Churchill & Ulfstein (2006) presents the example of the informal understandings between the parties to the Spitsbergen Treaty to adopt the Mining Code. In Article 8(1), the Spitsbergen Treaty states that “Norway undertakes to provide” mining regulations, and sets out certain requirements as to the contents of such regulations. In Article 8(4), it clarifies that Norway should communicate the draft mining regulations to the other Parties, three months before the date fixed for their coming into force. This period allowed other Parties to examine and comment, in which case a Commission composed of representatives from each States Parties would decide by a majority. In practice, Norway discussed and consulted the States Parties before formally transmitting the draft. The regulations, under the title of “Mining Code,” were then finally adopted by Norwegian Royal Decree of 7 August 1925.94

Informal consultations would include the application of the non-discrimination principle in the FPZ and continental shelf. While a non-discrimination approach to fishing in the 200 nautical miles of the FPZ could be a potential option for Norway, the same regime on the continental shelf would be more difficult (Churchill & Ulfstein, 2006). The applicability to the continental shelf of the Spitsbergen Treaty of key importance in terms of equal access to and equal exploitation of the oil and gas resources as well as possible effects on the petroleum taxation level153 (Wolf, 2013). This last element would make the discussions on the continental shelf very difficult among States Parties, as tax limitations as describe in

153 See Article 8 of the Spitsbergen Treaty.

Article 8 of the Spitsbergen Treaty “shall be devoted exclusively to the said territories and shall not exceed what is required for the object in view”.

This approach on only consulting the most relevant parties would make the informal agreement not formally binding, even if the political weight of it would be high. Furthermore, it could pave the way and be seen as “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation,” according to Article 31(3)(b) of the Vienna Convention on the Law of Treaties(Churchill & Ulfstein, 2006).

Conclusion

The 1920 Spitsbergen Treaty signature put an end to the former terra nullius status of the Svalbard Archipelago by recognising full and complete sovereignty of Norway over the Archipelago, while also ensuring the right to carry on certain activities, such as fishing, to the States Parties to the Treaty based on equal access and non-discrimination principles.

The Archipelago rich and diverse natural resources, in particular in terms of marine living resources, is managed by Norway on the fundamental principle of sustainable harvest of the marine living resources and cooperation with third States in the management of shared stocks, in line with the international law principles. The Spitsbergen Treaty confers to Norway the right to adopt and enforce laws and regulation on Svalbard. Norway regulates the fishing for commercial stocks in the Svalbard waters pursuant the Marine Living Resources Act. Regulations on fishing in the territorial sea are issued pursuant the 1925 Svalbard Act, while in the Fisheries Protection Zone around Svalbard pursuant the 1976 Act relating to the Economic Zone in Norway. Moreover, Norway enforce a control system based on three cornerstone: the Coast Guards, the Directorate of Fisheries and the Sales organisation.

The right to fishing on an equal footing within the territorial sea of Svalbard, under Articles 2 and 3 of the Treaty, has not been contested. Much controversy and disputes has arisen from its enjoyment beyond the territorial sea. Norway sticks to a restrictive and literal reading of the Treaty, thus not contemplating any applicability of the Treaty beyond the “territorial waters”. On the other end of the spectrum, in the past, several States have sustained a position denying any right to claim over maritime zones in respect to Svalbard and the jurisdiction of Norway. A view, based on the object and purpose of the Treaty and on an evolutionary interpretation of the text, seems to be more adequate. This latter option would ensure the respect of Norwegian jurisdiction and the recognition of Norway’s right to claim zones in respect of Svalbard, while safeguarding the rights of States Parties based on equal access and non-discrimination principles in relation to fishing activities. It would also prevent anomalies that would be triggered by the non-extension of the applicability of the Treaty beyond territorial sea.

The legal conflicts arising from the diverging view in the interpretation of the treaty have covered issues related to quota allocation, reporting requirements and enforcement jurisdiction of Norway in the Fisheries Protected Zone. The arrival of new species, the snow

crab, a sedentary species belonging to the continental shelf, has put forward the gaps of the legal framework of Svalbard, and the need to find a long-lasting solution to the controversy.

The national courts of Norway have never deemed it necessary to express a position on the applicability of the Treaty when dealing with cases linked to non-respect of regulations in Svalbard by foreign vessels. However, the disputes are not soon going to stop. The use of the UNCLOS mechanism for dispute settlement does not seem to offer the adequate answer to solve the outstanding disputes. There is first the question of the international court or tribunal’s jurisdiction, which depends on the “real issue”, which is a question of perspective in relation to Svalbard. Then, not all States Parties to the Treaty have accepted the same procedure for settlement or have accepted the ICJ’s compulsory jurisdiction. Furthermore, the outcomes of such process are so uncertain that no Party has ever take the risk to use this mean to have a final and binding decision.

An amendment to the Treaty is a solution that would allow settling outstanding legal question with binding effect. Nevertheless, the need to have all States Parties on board to agree on a common understanding on the applicability of the Spitsbergen Treaty beyond territorial sea seems unrealistic. More targeted informal consultations between Norway and key States Parties aiming at common understanding of certain provisions, as had been done for the Mining Code between the States Parties of the Treaty, could be an option. While this approach would only commit the Treaty Parties involved, it would not be formally binding, but would have a heavy political weight.

The snow crab dispute has brought broader legal ramifications to the outstanding disputes of the interpretation and applicability of the Spitsbergen Treaty. A new and bitter conflict may emerge as soon as exploration and exploitation activities for oil and gas on the continental shelf. The high economic interests at stake would intensify disputes and polarised the views. It is therefore needed to find a solution, consistent with the contemporary international law before.

III. Bibliography

All the links provided have been accessed in July 2020.

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Directorate of Fisheries (Norway). Ecosystem-based fisheries management in Norway (Updated on 10 January 2017). Available at: https://www.fiskeridir.no/English/Fisheries/Norwegian-Fisheries- Management/Ecosystem-based-fisheries-management-in-Norway. Directorate of Fisheries (Norway). Vision, objective, roles and areas of operation (update on 7 November 2019). Available at : https://www.fiskeridir.no/English/About-the-directorate/Objective- and-roles. Ecolex website. Available at : https://www.ecolex.org/. FiskerForum (2018). 3500-5000 tonnes snow crab quota recommendation. Available at: https://fiskerforum.com/3500-5000-tonne-snow-crab-quota-recommendation/. Food and Agriculture Organisation (1995). Code of Conduct for Responsible Fisheries. Rome, FAO. Available at: http://www.fao.org/3/a-v9878e.pdf. Food and Agriculture Organisation. Fishery and Aquaculture Country Profiles on the Kingdom of Norway. Available at: http://www.fao.org/fishery/facp/NOR/en. Greenpeace (2016). “Sustainable” fish from major consumer brands linked to Arctic destruction. Available at: https://www.greenpeace.org/international/press-release/6878/sustainable-fish-from- major-consumer-brands-linked-to-arctic-destruction/. International Council for the Exploration of the Sea (ICES) webpage. Available at: http://www.ices.dk/Pages/default.aspx. Institute of Maritime Research (IMR) website. Available at: https://www.hi.no/en/hi/about-us. Joint Norwegian-Russian Fisheries Commission website. Available at: https://www.jointfish.com/eng/THE-FISHERIES-COMMISSION/ABOUT-THE-WEBSITE.html. Governor of Svalbard website. Available at: https://web.archive.org/web/20110723003954/http:/www.sysselmannen.no/hovedEnkel.aspx?m=4530 2. ‘Lex Prior, Lex posterior’. Fellmeth, A.X. & Horwitz, M. (2009). Guide to Latin in International Law (1st Ed.) Oxford ; New York, N.Y. : Oxford University Press. ‘Most-favoured-nation treatment’. (n.d). In Encyclopaedia Britannica online. Available at: https://www.britannica.com/topic/most-favored-nation-treatment. Norwegian Ministry of Fisheries and Coastal Affairs (2007). Norwegian fisheries management [PowerPoint presentation]. Available at: https://www.regjeringen.no/globalassets/upload/fkd/brosjyrer-og-veiledninger/folder.pdf. Oceans & Law of the Sea, Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Kingdom of Norway, last updated 20 August 2009. Available at: https://www.un.org/depts/los/clcs_new/submissions_files/submission_nor.htm. Oceans & Law of the Sea, Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements, United Nations, last updated 09 March 2020. Available at: http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm. Papers Relating to the Foreign Relations of the United States (1946). The Paris Peace Conference. 1919. Vol. VIII. Editor: Joseph V. Fuller. General Editor: Tyler Dennett. United States Government Printing Office, Washington. (See Appendix B to HD, from the Notes of a meeting of the Heads of Delegations of the Five Great Powers held in M. Pichon’s Room at the Quai d’Orsay, Paris, on Thursday 25, 1919, at 10:30 a.m.). Available at: Google Books.

Scottish Government website. Economic impacts for Scottish and UK seafood industries post-Brexit: report. Available at: https://www.gov.scot/publications/economic-impacts-scenarios-scottish-uk- seafood-industries-post-eu-exit/pages/20/. Staatlesen, A (2017). Snow crabs raise conflict potential around Svalbard. The Barents Observer. Available at: https://thebarentsobserver.com/en/arctic/2017/01/snow-crabs-raises-conflict-potential- svalbard. ‘Svalbard’. (n.d). In Encyclopaedia Britannica online. Available at: https://www.britannica.com/place/Svalbard. Svalbard Opens Its Doors for Schengen/EEA Residents on July 15. Schengen Visa Info website. Available at: https://www.schengenvisainfo.com/news/svalbard-opens-its-doors-for-schengen-eea- residents-on-july-15/. Statistics Greenland webpage. Available at: http://www.stat.gl/dialog/main.asp?lang=en&version=201007&sc=SA&subthemecode=O2&colcode= O. UN Atlas of the Oceans (2002-2016). The use of property rights in fisheries management. Available at: http://www.oceansatlas.org/subtopic/en/c/1565/. UN Glossary of Environment Statistics (1997), Studies in Methods, Series F, No. 67, United Nations, New York. Available at: https://unstats.un.org/unsd/publication/SeriesF/SeriesF_67E.pdf.

IV. Annexes

Annex 1 – Map of Norwegian Economic Zones in the Northeast Atlantic

Source: The Norwegian Mapping Authority (NMA), 2011

Annex 2 –The 1920 Spitsbergen Treaty

STATUS OF SPITSBERGEN (SVALBARD)

Treaty signed at Paris February 9, 1920, with annex Senate advice and consent to ratification February 18,1924 Ratified by the President of the United States March 4, 1924 Ratification of the United States deposited at Paris April2, 1924 Proclaimed by the President of the United States June 10, 1924 Entered into force August 14, 1925, in accordance with provisions of article 10

43 Stat. 1892; Treaty Series 686

The President of The United States of America; His Majesty the King of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India; His Majesty the King of Denmark; the President of the French Republic; His Majesty the King of Italy; His Majesty the Emperor of Japan; His Majesty the King of Norway; Her Majesty the Queen of the Netherlands; His Majesty the King of Sweden,

Desirous, while recognising the sovereignty of Norway over the Archipelago of Spitsbergen, including Bear Island, of seeing these territories provided with an equitable regime, in order to assure their development and peaceful utilisation,

Have appointed as their respective Plenipotentiaries with a view to concluding a Treaty to this effect:

The President of the United States of America:

Mr. Hugh Campbell Wallace, Ambassador Extraordinary and Plenipotentiary of the United States of America at Paris;

His Majesty the King of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India:

The Right Honourable the Earl of Derby, K.G., G.C.V.O., C.B., His Ambassador Extraordinary and Plenipotentiary at Paris; and

For the Dominion of Canada:

The Right Honourable Sir George Halsey Perley, K.C.M.G., High Commissioner for Canada in the United Kingdom;

For the Commonwealth of Australia:

The Right Honourable Andrew Fisher, High Commissioner for Australia in the United Kingdom;

For the Dominion of New Zealand: The Right Honourable Sir Thomas MacKenzie, K.C.M.G., High Commissioner for New Zealand in the United Kingdom;

For the Union of South Africa: Mr. Reginald Andrew Blankenberg, O.B.E, Acting High Commissioner for South Africa in the United Kingdom;

For India: The Right Honourable the Earl of Derby, K.G., G.C.V.O., C. B.;

His Majesty the King of Denmark:

Mr. Herman Anker Bernhoft, Envoy Extraordinary and Minister Plenipotentiary of H.M. the King of Denmark at Paris; President of the French Republic:

Mr. Alexandra Millerand, President of the Council, Minister for Foreign Affairs; His Majesty the King of Italy:

The Honourable Maggiorino Ferraris, Senator of the Kingdom; His Majesty the Emperor of Japan:

Mr. K. Matsui, Ambassador Extraordinary and Plenipotentiary of H.M. the Emperor of Japan at Paris;

His Majesty the King of Norway:

Baron Wedel Jarlsberg, Envoy Extraordinary and Minister Plenipotentiary of H.M. the King of Norway at Paris;

Her Majesty the Queen of the Netherlands:

Mr. John London, Envoy Extraordinary and Minister Plenipotentiary of H.M. the Queen of the Netherlands at Paris;

His Majesty the King of Sweden:

Count J.-J.-A. Ehrensvärd, Envoy Extraordinary and Minister Plenipotentiary of H.M. the King of Sweden at Paris;

Who, having communicated their full powers, found in good and due form, have agreed as follows:

Article 1.

The High Contracting Parties undertake to recognise, subject to the stipulations of the present Treaty, the full and absolute sovereignty of Norway over the Archipelago of Spitsbergen, comprising, with 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, Wiche Islands, Hope Island or Hopen-Eiland, and Prince Charles Foreland, together with all islands great or small and rocks appertaining thereto (see annexed map).

Article 2.

Ships and nationals of all the High Contracting Parties shall enjoy equally the rights of fishing and hunting in the territories specified in Article 1 and in their territorial waters.

Norway shall be free to maintain, take or decree suitable measures to ensure the preservation and, if necessary, the reconstitution of the fauna and flora of the said regions, and their territorial waters; it being clearly understood that these measures shall always be applicable equally to the nationals of all the High Contracting Parties without any exemption, privilege or favour whatsoever, direct or indirect to the advantage of any one of them.

Occupiers of land whose rights have been recognised in accordance with the terms of Articles 6 and 7 will enjoy the exclusive right of hunting on their own land: (1) in the neighbourhood of their habitations, houses, stores, factories and installations, constructed for the purpose of developing their property, under conditions laid down by the local police regulations; (2) within a radius of 10 kilometres round the headquarters of their place of business or works; and in both cases, subject always to the observance of regulations made by the Norwegian Government in accordance with the conditions laid down in the present Article.

Article 3.

The nationals of all the High Contracting Parties shall have equal liberty of access and entry for any reason or object whatever to the waters, fjords and ports of the territories specified in Article 1; subject to the observance of local laws and regulations, they may carry on there without impediment all maritime, industrial, mining and commercial operations on a footing of absolute equality.

They shall be admitted under the same conditions of equality to the exercise and practice of all maritime, industrial, mining or commercial enterprises both on land and in the territorial waters, and no monopoly shall be established on any account or for any enterprise whatever. Notwithstanding any rules relating to coasting trade which may be in force in

Norway, ships of the High Contracting Parties going to or coming from the territories specified in Article 1 shall have the right to put into Norwegian ports on their outward or homeward voyage for the purpose of taking on board or disembarking passengers or cargo going to or coming from the said territories, or for any other purpose.

It is agreed that in every respect and especially with regard to exports, imports and transit traffic, the nationals of all the High Contracting Parties, their ships and goods shall not be subject to any charges or restrictions whatever which are not borne by the nationals, ships or goods which enjoy in Norway the treatment of the most favoured nation; Norwegian nationals, ships or goods being for this purpose assimilated to those of the other High Contracting Parties, and not created more favourably in any respect. No charge or restriction shall be imposed on the exportation of any goods to the territories of any of the Contracting Powers other or more onerous than on the exportation of similar goods to the territory of any other Contracting Power (including Norway) or to any other destination.

Article 4.

All public wireless telegraphy stations established or to be established by, or with the authorisation of, the Norwegian Government within the territories referred to in Article 1 shall always be open on a footing of absolute equality to communications from ships of all flags and from nationals of the High Contracting Parties, under the conditions laid down in the Wireless Telegraphy Convention of July 5, 1912, or in the subsequent International Convention which may be concluded to replace it.

Subject to international obligations arising out of a state of war, owners of landed property shall always be at liberty to establish and use for their own purposes wireless telegraphy installations, which shall be free to communicate on private business with fixed or moving wireless stations, including those on board ships and aircraft.

Article 5.

The High Contracting Parties recognise the utility of establishing an international meteorological station in the territories specified in Article 1, the organisation of which shall form the subject of a subsequent Convention.

Conventions shall also be concluded laying down the conditions under which scientific investigations may be conducted in the said territories.

Article 6.

Subject to the provisions of the present Article, acquired rights of nationals of the High Contracting Parties shall be recognised.

Claims arising from taking possession or from occupation of land before the signature of the present Treaty shall be dealt with in accordance with the Annex hereto, which will have the same force and effect as the present Treaty.

Article 7.

With regard to methods of acquisition, enjoyment and exercise of the right of owner ship of property, including mineral rights, in the territories specified in Article 1, Norway undertakes to grant to all nationals of the High Contracting Parties treatment based on complete equality and in conformity with the stipulations of the present Treaty.

Expropriation may be resorted to only on grounds of public utility and on payment of proper compensation.

Article 8.

Norway undertakes to provide for the territories specified in Article 1 mining regulations which, especially from the point of view of imposts, taxes or charges of any kind, and of general or particular labour conditions, shall exclude all privileges, monopolies or favours for the benefit of the State or of the nationals of any one of the High Contracting Parties, including Norway, and shall guarantee to the paid staff of all categories the remuneration and protection necessary for their physical, moral and intellectual welfare.

Taxes, dues and duties levied shall be devoted exclusively to the said territories and shall not exceed what is required for the object in view.

So far, particularly, as the exportation of minerals is concerned, the Norwegian Government shall have the right to levy an export duty which shall not exceed 1 % of the maximum value of the minerals exported up to 100.000 tons, and beyond that quantity the duty will be proportionately diminished. The value shall be fixed at the end of the navigation season by calculating the average free on board price obtained.

Three months before the date fixed for their coming into force, the draft mining regulations shall be communicated by the Norwegian Government to the other Contracting Powers. If during this period one or more of the said Powers propose to modify these regulations before they are applied, such proposals shall be communicated by the Norwegian Government to the other Contracting Powers in order that they may be submitted to examination and the

decision of a Commission composed of one representative of each of the said Powers. This Commission shall meet at the invitation of the Norwegian Government and shall come to a decision within a period of three months from the date of its first meeting. Its decisions shall be taken by a majority.

Article 9.

Subject to the rights and duties resulting from the admission of Norway to the League of Nations, Norway undertakes not to create nor to allow the establishment of any naval base in the territories specified in Article 1 and not to construct any fortification in the said territories, which may never be used for warlike purposes.

Article 10.

Until the recognition by the High Contracting Parties of a Russian Government shall permit Russia to adhere to the present Treaty, Russian nationals and companies shall enjoy the same rights as nationals of the High Contracting Parties.

Claims in the territories specified in Article 1 which they may have to put forward shall be presented under the conditions laid down in the present Treaty (Article 6 and Annex) through the intermediary of the Danish Government, who declare their willingness to lend their good offices for this purpose.

The present Treaty, of which the French and English texts are both authentic, shall be ratified.

Ratifications shall be deposited at Paris as soon as possible.

Powers of which the seat of the Government is outside Europe may confine their action to informing the Government of the French Republic, through their diplomatic representative at Paris, that their ratification has been given, and in this case, they shall transmit the instrument as soon as possible.

The present Treaty will come into force, in so far as the stipulations of Article 8 are concerned, from the date of its ratification by all the signatory Powers; and in all other respects on the same date as the mining regulations provided for in that Article.

Third Powers will be invited by the Government of the French Republic to adhere to the present Treaty duly ratified. This adhesion shall be effected by a communication addressed to the French Government, which will undertake to notify the other Contracting Parties.

In witness whereof the above named Plenipotentiaries have signed the present Treaty.

Done at Paris, the ninth day of February, 1920, in duplicate, one copy to be transmitted to the Government of His Majesty the King of Norway, and one deposited in the archives of the French Republic; authenticated copies will be transmitted to the other Signatory Powers.

Annex.

1.

(1) Within three months from the coming into force of the present Treaty, notification of all claims to land which had been made to any Government before the signature of the present Treaty must be sent by the Government of the claimant to a Commissioner charged to examine such claims. The Commissioner will be a judge or jurisconsult of Danish nationality possessing the necessary qualifications for the task, and shall be nominated by the Danish Government.

(2) The notification must include a precise delimitation of the land claimed and be accompanied by a map on a scale of not less than 1/1.000.000 on which the land claimed is clearly marked.

(3) The notification must be accompanied by the deposit of a sum of one penny for each acre (40 ares) of land claimed, to defray the expenses of the examination of the claims.

(4) The Commissioner will be entitled to require from the claimants any further documents or information which he may consider necessary.

(5) The Commissioner will examine the claims so notified. For this purpose he will be entitled to avail himself such expert assistance as he may consider necessary, and in case of need to cause investigations to be carried out on the spot.

(6) The remuneration of the Commissioner will be fixed by agreement between the Danish Government and the other Governments concerned. The Commissioner will fix the remuneration of such assistants as he considers it necessary to employ.

(7) The Commissioner, after examining the claims, will prepare a report showing precisely the claims which he is of opinion should be recognised at once and those which, either because they are disputed or for any other reason, he is of opinion should be submitted to

arbitration as hereinafter provided. Copies of this report will be forwarded by Commissioner to the Governments concerned.

(8) If the amount of the sums deposited in accordance with clause (3) is insufficient to cover the expenses of the examination of the claims, the Commissioner will, in every case where he is of opinion that a claim should be recognised, at once state what further sum the claimant should be required to pay. This sum will be based on the amount of the land to which the claimant's title is recognised.

If the sums deposited in accordance with clause (3) exceed the expenses of the examination, the balance will devoted to the cost of the arbitration hereinafter provided for.

(9) Within three months from the date of the report referred to in clause (7) of this paragraph, the Norwegian Government shall take the necessary steps to confer upon claimants whose claims have been recognised by the Commissioner a valid title securing to them the exclusive property in the land in question, in accordance with the laws and regulations in force or to be enforced in the territories specified in Article 1 of the present Treaty, and subject to the mining regulations referred to in Article 8 of the present Treaty.

In the event, however, of a further payment being required in accordance with clause (8) of this paragraph, a provisional title only will be delivered, which title will become definitive on payment by the claimant, within such reasonable period as the Norwegian Government may fix, of the further sum required of him.

2.

Claims which for any reason the Commissioner referred to in clause (1) of the preceding paragraph has not recognised as valid will be settled in accordance with the following provisions: (1) Within three months from the date of the report referred to in clause (7) of the preceding paragraph, each of the Governments whose nationals have been found to possess claims which have not been recognised will appoint an arbitrator.

The Commissioner will be the President of the Tribunal so constituted. In cases of equal division of opinion, he shall have the deciding vote. He will nominate a Secretary to receive the documents referred to in clause (2) of this paragraph and to make the necessary arrangements for the meeting of the Tribunal.

(2) Within one month from the appointment of the Secretary referred to in clause (1) the claimants concerned will send to him through the intermediary of their respective

Governments statements indicating precisely their claims and accompanied by such documents and arguments as they may wish to submit in support thereof.

(3) Within two months from the appointment of the Secretary referred to in clause (1) the Tribunal shall meet at Copenhagen for the purpose of dealing with the claims which have been submitted to it.

(4) The language of the Tribunal shall be English. Documents or arguments may be submitted to it by the interested parties in their own language, but in that case must be accompanied by an English translation.

(5) Ine claimants shall be entitled, if they so desire, to be heard by the Tribunal either in person or by counsel, and the Tribunal shall be entitled to call upon the claimants to present such additional explanations, documents or arguments as it may think necessary.

(6) Before the hearing of any case the Tribunal shall require from the parties a deposit or security for such sum as it may think necessary to cover the share of each party in the expenses of the Tribunal. In fixing the amount of such sum the Tribunal shall base itself principally on the extent of the land claimed. The Tribunal shall also have power to demand a further deposit from the parties in cases where special expense is involved.

(7) The honorarium of the arbitrators shall be calculated per month, and fixed by the Governments concerned. The salary of the Secretary and any other persons employed by the Tribunal shall be fixed by the President.

(8) Subject to the provisions of this Annex the Tribunal shall have full power to regulate its own procedure.

(9) In dealing with the claims the Tribunal shall take into consideration:

(a) any applicable rules of International Law;

(b) the general principles of justice and equity;

(c) the following circumstances:

(i) the date on which the land claimed was first occupied by the claimant or his predecessors in title;

(ii) the date on which the claim was notified to the Government of the claimant;

(iii) the extent to which the claimant or his predecessors in title have developed and exploited the land claimed. In this connection the Tribunal shall take into account the extent

to which the claimants may have been prevented from developing their undertakings by conditions or restrictions resulting from the war of 1914-1919.

(10) All the expenses of the Tribunal shall be divided among the claimants in such proportion as the Tribunal shall decide. If the amount of the sums paid in accordance with clause (6) is larger than the expenses of the Tribunal, the balance shall be returned to the parties whose claims have been recognised in such proportion as the Tribunal shall think fit.

(11) The decisions of the Tribunal shall be communicated by it to the Governments concerned, including in every case the Norwegian Government.

The Norwegian Government shall within three months from the receipt of each decision take the necessary steps to confer upon the claimant whose claims have been recognised by the Tribunal valid title to the land in question, in accordance with the laws and regulations in force or the be enforced in the territories specified in Article 1, and subject to the mining regulations referred to in Article 8 of the present Treaty. Nevertheless, the titles so conferred will only become definitive on the payment by the claimant concerned, within such reasonable period as the Norwegian Government may fix, of his share of the expenses of the Tribunal.

3.

Any claims which are not notified to the Commissioner in accordance with clause (1) of paragraph 1, or which not having been recognised by him are not submitted to the Tribunal in accordance with paragraph 2, will be finally extinguished.

Annex 3 – Table 1- Total value and live weight of the main fish and shellfish species caught by Norwegian fishing vessels in the Svalbard Zone 1980–2013.

Common name Latin name Weight Value

(1000 tons) (1000 EUR*)

Northeast Arctic cod Gadus morhua 757 731 904 899

Northern shrimp Pandalus borealis 635 736 846 042

Capelin Mallotus villosus 2 964 598 416 894

Northeast Arctic haddock Melanogrammus aeglefinus 239 604 230 290

Greenland halibut Reinhardtius hippoglossoides 50 050 91 080

Iceland scallop Chlamys islandica 99 559 69 986

Wolffishes Anarhchicas spp. 30 836 19 448

Herring Clupea harengus 34 913 17 950

Redfish Sebastes spp. 13 356 10 001

Saithe Pollachius virens 12 368 8 944

Tusk Brosme brosme 29 268 2 703

Ling Molva molva 1119 1 406

Atlantic halibut Hippoglossus hippoglossus 170 569

Source: Misund et al. 2013. Available at: https://www.sciencedirect.com/science/article/pii/S1873965216300044. * Prices in NOK have been convert into EUR with the exchange rate of August 2020.