By: Tore Henriksen
Matter commented on: The Kiel case
On March 11 and 12, 2014 the Supreme Court of Norway heard a case that may have consequences for the management of the natural resources of the Norwegian High North. The case concerns the legality of imposing fines and confiscations on the master and owner (defendants) of a German flagged vessel for violating by-catch regulations for haddock within the 200 nautical miles Fisheries Protection Zone established off Svalbard. The defendants seek an acquittal on the basis that the regulation violates the Svalbard treaty. Within a couple of weeks we will know the answer.
The 42 Contracting Parties to the 1920 Treaty concerning Spitsbergen (the Svalbard Treaty) recognize “…the full and absolute sovereignty …” of Norway over the archipelago (Article 1). Those Contracting Parties are in turn entitled to exercise equal rights of fishing and hunting on the archipelago and in its “territorial waters” (Article 2).
The development of the law of the sea allowed for the expansion of the sovereign rights and jurisdiction of the coastal states beyond the territorial waters through the continental shelf and a 200 miles Exclusive Economic Zone. Norway adopted legislation enabling it to establish and to exercise jurisdiction within this zones. A 200 nautical miles fisheries protection zone (SFPZ) was established off Svalbard in June 1977. Other Contracting Parties to the Svalbard treaty have long argued that their right to fish under the Svalbard Treaty extends to the 200 miles zone. Norway takes the view that the treaty provisions do not apply beyond the territorial waters and argues that it can establish a full EEZ reserving fishing for its nationals. However, since the main objective of establishing the SFPZ was to regulate fishing activities to prevent overfishing it did not provide for exclusive fishing rights for Norwegian fishermen. Norway has avoided confrontation with other Contracting Parties by adopting non-discriminatory regulations and allocating fishing rights based on traditional fishing in the area.
A regulation on haddock fishery in the SFPZ (FOR-12-21-2011-1478) allows vessels flying the flag of Norway, Greenland and Russia to fish for haddock. Vessels flying the flag of EU member states and the Faroe Islands are not permitted to conduct a directed fishery for haddock and the regulations impose restrictions on their by-catch of haddock. In September 2012, the German flagged vessel Kiel was boarded and inspected in the SFPZ. The trawl contained about 39% haddock, well above permitted by-catch levels. The master was fined and the value of the illegal catch confiscated.
The Court case
The defendants argued before both the District Court and the Court of Appeals that the haddock regulation was in violation of Norway’s international obligations under the Svalbard Treaty. The courts addressed this claim through two main questions:
- Are Article 2 and 3 of the Svalbard Treaty applicable beyond the 12 miles territorial sea?
- Is the regulation illegal discrimination under the Svalbard Treaty?
Both courts focused on the first question. It was the first time a Norwegian court had dealt directly with the question of the geographical applicability of the Svalbard Treaty, in particular the first paragraph of article 2 of the Svalbard Treaty: “…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.” The defendants argued for a dynamic interpretation of the term “territorial waters” whereas the prosecutor argued that it is a fixed term. The Court of Appeals seems to have preferred a literal interpretation of the concept. It established that there was a uniform understanding of the legal character of territorial waters when the Svalbard Treaty was negotiated. Thus, there was little room for an expansive interpretation. The Court refers to the arguments in favour of an expansive interpretation including considerations of the objective of the treaty, the principle of dynamic interpretation, and the case law. However, it suggested that the threshold for departing from the wording was high and the Court was not persuaded. It concluded that the term “territorial waters” does not cover the concepts of EEZ and fisheries zones.
As a result, the Court of Appeals did not have to address the second question but it did refer to a Supreme Court judgment from 1996 (Rt-1996-624) which interpreted Article 2 as a ban on discrimination based on nationality. Allocation of fishing rights based on traditional fishing did not violate Article 2. The Court of Appeals in this case did not draw any conclusion on whether the by-catch regulation violated the ban.
The defendants appealed the judgment of the Court of Appeals. The Supreme Court accepted the appeal but decided only to consider the second question and will address the first question “if needed”. The defendants were disappointed because this question was not thoroughly covered in the District Court and the Court of Appeals. However, this approach is consistent with previous practice of the Supreme Court. In two similar cases (Rt-1996-624 and Rt-2006-1498) the Court refrained from addressing the question of the geographical applicability of the Svalbard Treaty since the contested fisheries regulations could not under any circumstances violate Norway’s treaty obligations.
There may be other reasons why the Supreme Court has avoided the question. If Norway’s highest court takes a clear position on the geographical application of the Svalbard Treaty it would have consequences beyond fishing. It would affect rights to other natural resources and commercial activities including on the continental shelf. A judgment on applicability could force the Contracting Parties to bring the case before an international court or tribunal of justice. The outcome of any such international litigation is uncertain. Since Norway has practiced a self-imposed policy of non-discrimination in the 200 miles zone there has been no need to problematize whether the provisions of Svalbard Treaty are applicable or not. The Court will now have to decide if the Norwegian authorities are complying with this obligation. Only if they are not will it be necessary to decide on the applicability of the Svalbard Treaty.
This post may be cited as: Tore Henriksen, “Norwegian by-catch regulations alleged to violate the Svalbard Treaty” (March 18, 2014), on-line: http://site.uit.no/jclos/files/2014/03/Norwegian-by-catch-regulations-alleged-to-violate-the-Svalbard-Treaty.pdf
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