By: Irene Dahl
Case commented on: The Kiel case
On March 21, 2014 the Supreme Court of Norway gave judgement in the Kiel case. The background to the case is discussed in Prof Henriksen’s post here. As stressed in that post, the case 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 (the accused) of a German flagged vessel for violating by-catch regulations for haddock within the 200 nautical miles Fisheries Protection Zone (FPZ) established off Svalbard. The accused sought an acquittal on the basis that the regulation violates the Svalbard treaty.
The court´s decision
The unanimous Court dismissed the appeals of the accused on the grounds that the regulation concerned does not violate the provisions on equal treatment of the Svalbard Treaty.
The relevant facts and legal question
The framework for the case is the decision of the joint Norwegian-Russian Fisheries Commission to establish a total allowable catch (TAC) for haddock for 2012 and the allocation of that TAC. The Commission fixed the TAC at 318 000 tons, and allocated about 145 000 each to Norway and Russia and 20 500 to third countries. The Fisheries Commission determined the following geographical allocation of the third country quota: 8856 in the Norwegian EEZ, 6368 in the Russian EEZ and 5270 in the Svalbard Area, the last-mentioned subject to the restriction “solely as by-catch”. Norway has established three zones of 200 nautical miles: an exclusive economic zone around the Norwegian mainland (the Norwegian Exclusive Economic Zone, EEZ), a fishery protection zone around Svalbard and a fishery zone around Jan Mayen. For the FPZ it is pertinent to question whether the principle of equal treatment as provided for by the Svalbard Treaty applies within the FPZ.The question for the Court in this case was therefore whether the Norwegian regulations on haddock in FPZ (for 2012) are incompatible with the principle of non-discrimination in the Treaty. The regulations establish a general prohibition against haddock fishing. However, there are two exceptions. First, Norwegian and Russian vessels are allowed to fish for the allocated quota of TAC. And second EU vessels may by-catch haddock in the (direct) fishing of other species up to 19 % per haul.
The Court´s reasons
For the Supreme Court the question was the more precise question of whether EU vessels should have their own quota for haddock based on the principle of equal treatment rather than the by-catch allocation. The Court noted that the by-catch regime effectively required EU boats to spend more time fishing since if the vessel gets too much by-catch in one haul it must change fishing ground. This transfer may last for several hours with the result that its fishing is less effective than vessels from Norway and Russia and incurs higher operating cost. As the Supreme Court summarizes: “In brief, it causes negative economic impacts on EU-vessels, that they don’t have a special haddock quota, but are subject to by-catch.” At first sight, these circumstances indicate discrimination.
The Supreme Court did not decide whether the treaty applied in FPZ but instead unanimously concluded that even if it were to apply the Norwegian regulations on haddock in FPZ do not conflict with the equal treatment standard of the Svalbard Treaty on the grounds that the measure can be justified on the basis of sustainable management based on objective criteria rather than nationality-based discrimination. Thus, in any event, there is no unlawful discrimination. In reaching that conclusion the court traced the history of the by-catch measure. The Court observed that until 2011, EU vessels had practiced haddock fishing in FPZ without a quota. The Norwegian Directorate of Fisheries considered that this posed a risk to the sustainable management of the stock and recommended allocation of a catch quota to the EU on the basis of traditional fishing. The by-catch was chosen as the preferred regulatory measure on the grounds of effectiveness. The Court noted, that unlike a quota arrangement which would have to be adopted in cooperation with Russia, the by-catch approach could be adopted immediately and unilaterally by Norway. The amount of by-catch (19 %) accorded to EU vessels was fixed on the basis of the EUs historical fishing pattern and actual haddock fishing from 2000.In sum there was no unlawful discrimination.
While the Court made a finding of non-discrimination on these facts it did express “considerable doubt” about the disparity in catch effort. The Fisheries Commission has continued to manage the third country quota for the EU on the basis of the by-catch approach but in its judgment the Supreme Court calls attention to a letter from the Directorate of Fisheries suggesting that it might be necessary to evaluate whether allocation of a haddock quota in the FPZ would be a better solution in the long run. If the by-catch approach was justified on the basis of the need for an immediate and unilateral solution it may be more difficult with the passage of time to justify a regime that accords by-catch to EU vessels and ordinary quotas to Norwegian and Russian vessels.
This post may be cited as: Irene Dahl, “Norwegian by-catch regulations are not discriminatory” (June 2, 2014), on-line: http://site.uit.no/jclos/files/2014/06/Norwegian-by-catch-regulations-are-not-discriminatory.pdf
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