By: Tore Henriksen
PDF version: https://site.uit.no/jclos/files/2019/02/JCLOS-BLOG_28.2.2019_The-Senator-Case.pdf
Decision commented on: Judgment of Grand Chamber of the Norwegian Supreme Court in criminal proceedings (HR.2019-282S) A and SIA North Star vs. Prosecuting Authority
On 14 February 2019, the Supreme Court of Norway gave judgement in the Senator case, dismissing the appeals of the owner and the master of the Senator, a Latvian flagged fishing vessel. In the Courts of Appeal, the owner and master had been found guilty of violating the 2014 Regulation on prohibition on harvest of snow crabs (Snow crab regulation) through activities on the Norwegian continental shelf within the 200 nautical miles Fisheries Protection Zone (FPZ) off the archipelago of Svalbard. The vessel owner was fined NOK 150.000 and had to bear a confiscation of NOK 1.000.000. The master was fined NOK 40.000.
The Senator case adds to several criminal cases before the Supreme Court since the 1990s – see the Kiel case in a previous blog by Irene Dahl – where the defendants (owners of fishing vessels and masters) have disputed the charges of violating fisheries regulations in the 200 nautical miles Fisheries Protection Zone. They have argued that the regulations were not applicable as they were inconsistent with the non-discrimination obligation of Norway under the 1920 Treaty concerning Spitsbergen (Svalbard Treaty). In its decisions, the Supreme Court has avoided deciding whether this and other obligations are applicable in the maritime zones beyond the 12 nautical miles territorial sea. The Senator case is somewhat different from the previous cases as it concerned violation of a regulation prohibiting the harvest of snow crab, defined by Norway as a sedentary species. Sedentary species and hydrocarbon resources are part of the continental shelf regime of the law of the sea, cf. Law of the Sea Convention (LOSC), Article 77. A judgment in the Senator case addressing the relationship between the Snow crab regulation and the Svalbard Treaty could potentially have implications for the management of the hydrocarbon resources of the continental shelf off Svalbard. This relates to both the obligation under the Svalbard Treaty articles 2 and 3 not to discriminate between the subjects of the contracting parties and the restrictions on taxation under article 8.
The Senator case is the second criminal case before the Supreme Court regarding violations of the Snow crab regulation. The first case, the Juras Vilkas case, concerned illegal harvest of snow crab by another Latvian flagged vessel, in the Loophole, a high seas area of the Barents Sea. Irene Dahl and Elise Johansen commented on this case in a previous blog post: “The Norwegian snow crab regime and foreign vessels – a commentary on the Juras Vilkas decision of the Øst-Finnmark District Court”. That post provides relevant information on the introduction of the snow crab to the Barents Sea. However, the cases are distinct, as the Juras Vilkas case did not involve the Svalbard Treaty and the parties accepted that the snow crab was a sedentary species.
The Supreme Court’s judgment in the Senator case, heard in Grand Chamber by eleven justices, provides a precedent for how the Norwegian courts of law in the future will address criminal cases regarding illegal harvest of marine resources in waters off Svalbard. An English translation of the judgment is available on the website of the Supreme Court of Norway here. The case indirectly signals that sedentary species are subject to a different regime from that prevailing under the 200 miles Svalbard Fisheries Protection Zone. Some of the implications of this conclusion are considered at the end of the blog post.
Background
The Senator, owned by SIA North Star, on a license by the Latvian Ministry of Agriculture was harvesting snow crab on the Norwegian side of the delimitation line in the Barents Sea. On 16 January 2017, the Norwegian Coast Guard boarded the vessel while within the 200 nautical miles Fisheries Protection Zone of Svalbard. The inspection documented that the Senator had placed 2.594 crab-pots on the seabed. As the vessel did not have a license issued by Norwegian authorities, the vessel was seized and brought to port in Norway. Both the master and the owner were subject to criminal prosecution. They were convicted both in the District Court and in the Courts of Appeal and were both fined and the owner was subject to confiscation.
This blog concerns the decision of the Supreme Court. In agreeing to hear the appeal of the defendants, the Supreme Court limited the scope of its consideration to two main questions:
- Is the snow crab a sedentary species providing Norway an exclusive right to exploit it under LOSC article 77?
- Is harvest of snow crab without a valid dispensation a legal offence?
The second question does not involve the applicability of the Svalbard Treaty to the relevant area nor any discussion as to whether the prohibition under the Snow crab regulation or its application violated the non-discrimination obligation. The Supreme Court added that it deferred the question of the geographical scope of the Svalbard Treaty to the future when there is a need to answer it.
The charge against the owner and the master of the Senator was that they had violated the prohibition on harvest under the Snow crab regulation. That regulation is adopted under the 2008 Marine Resources Act. Section 1 of the regulation prohibits both Norwegian flagged and foreign-flagged vessels from harvesting snow crab in the Norwegian territorial sea, internal waters and on the Norwegian continental shelf. Section 2 of the same regulation provides for dispensations from the general prohibition of Section 1. However, only a vessel with a commercial license under the Norwegian Participation Act is eligible for such a dispensation. The only persons eligible for such a license are Norwegian citizens and foreign nationals domiciled in Norway.
The arguments by the parties
The defendants argued for their acquittal. The primary claim was that the snow crab does not qualify as a sedentary species under LOSC. They argued, referring to the preparatory works of the LOSC and the 1958 Continental Shelf Convention, that sedentary species are immobile, whereas the snow crab is capable of moving over large distances. As the Snow crab regulation is applicable to the continental shelf and not to the 200 nautical miles FPZ, the regulation is not applicable to Senator’s harvest of snow crab. Consequently, the Senator had not violated the Snow crab regulation. The alternative claim of the defendants was that the Snow crab regulation violated the non-discrimination principle of the Svalbard Treaty. As the Marine Resources Act and the Criminal Code are subject to Norway’s obligations under international law, the defendant asked the Supreme Court to overturn the Snow crab regulation and to acquit the defendants.
The Prosecution argued for the dismissal of the appeal. They argued that the snow crab is a sedentary species under LOSC. Even if the snow crab would not qualify as a sedentary species, the harvest was conducted in the 200 nautical miles FPZ where Norway enjoys exclusive right to regulate the harvest of all species, in the water column as well as on the continental shelf. Consequently, according to the Prosecution, the Snow crab regulation was applicable to all harvest of snow crab within this area. Further, the Prosecution argued that the exclusive right of Norway as a coastal State under LOSC article 77 to manage snow crab on the continental shelf means that access to harvesting of snow crab requires a license issued by Norwegian authorities. The Senator did not have any license to harvest snow crab. Further, the Prosecution referred to a long-lasting practice that a court of justice in a criminal case cannot determine whether a license should have been issued. Therefore, the Prosecution argued that the defendants could be punished independently of whether the dispensation clause of the Snow crab regulation would violate the non-discrimination principle of the Svalbard Treaty.
The Supreme Court judgment
The Supreme Court organized its deliberation according to the two main questions referred to above:
- A sedentary species?
The point of departure was whether the harvest of snow crab is subject to the right of the coastal States under international law over its continental shelf. The Court had to interpret article 77 of LOSC and in particular its paragraph 4. The Supreme Court, referring to articles 31 and 32 the 1969 Vienna Convention on Law of the Treaties, concluded that the interpretation was to be based on “…the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
Before investigating the treaty text, the Supreme Court referred to the statement of an expert witness heard in the Court of Appeal. He explained that the snow crab did not have any physical or anatomical capabilities enabling it to lift off the seabed still less to swim. At the larva stage, it is floating in the sea. The expert witness explained that the snow crab is migrating, spreading to wider areas of the Barents Sea. It is migrating to greater depths as it ages, to mate or to find food.
The defendants argued that the ordinary meaning ‘sedentary species’ is an organism that is immobile, it stays in one place. As it is capable of migrating over large distances this disqualifies it as a sedentary species. The Supreme Court agreed that ‘sedentary’ implies immobility but that the term cannot not be read in isolation. Article 77 paragraph 4 includes according to the Supreme Court a further explanation of sedentary species, referencing here the phrase “that is to say” which introduces two alternatives: species that are either immobile or are unable to move except in constant physical contact with the seabed or the subsoil. The Supreme Court stressed that it is the legal and not the biological definition of sedentary species that is decisive. Thus, recognizing that the snow crab is migrating, the subject of the further interpretation was the natural method of movement of the snow crab. The Supreme Court noted that the snow crab mainly migrate on the seabed and by nature depends on being in constant contact with the seabed as it moves. It stated that there was no basis in the wording of LOSC Article 77 paragraph 4 to conclude that species must be immobile to qualify as a sedentary species. Consequently, a sedentary species may move over longer distances as long as it is in constant contact with the seabed. This conclusion based on the wording, the context and the objective of the provision, made it unnecessary to refer to the preparatory works. The Supreme Court concluded that the snow crab was evidently a sedentary species, and as such subject to the sovereign rights of the coastal State to exploit the natural resources of the continental shelf. Consequently, Norway is competent to require that vessels have license to harvest snow crab.
- Is the harvest of snow crab liable to punishment regardless of whether the Snow crab regulation violated the international obligations of Norway?
The Supreme Court started by stating that the defendants had violated the terms of the offence and that the culpability requirement was satisfied. The question before it was whether there were any grounds for exempting the defendants from punishment. The defendants argued that as the dispensation from the prohibition was only issued to Norwegian citizens and foreigners resident in Norway, the Snow crab regulation was in violation of the non-discrimination principle of the Svalbard Treaty. As the Marine Resources Act and the Criminal Code are subject to the international legal obligations of Norway, the defendants must be exempted from punishment. The Supreme Court concluded that there were two alternative arguments for exemption: either under a general exemption or because the act is not illegal as the Snow crab regulation is in violation of international law.
Before entering into discussion of these two alternatives, the Supreme Court gave a short overview of the relevant provisions of the Svalbard Treaty: Article 1 establishes the sovereignty of Norway over the Svalbard archipelago. Articles 2 and 3 include requirements of non-discrimination. The Supreme Court concluded that Norway has competence to manage the natural resources of the archipelago and that the contracting parties are required to comply with decisions taken under this competence. The Court stressed that Norway undoubtedly may introduce a regulatory regime, where non-compliance may be sanctioned with punishment as far as it is non-discriminatory.
The Supreme Court then returned to the framework established by the Snow crab regulation – that all vessels intending to harvest snow crab must have a license. Harvest without such license is punishable, regardless of nationality. The Supreme Court went on to investigate internal Norwegian criminal law and the first alternative – whether it includes a general exemption from punishment – where the perpetrator does not have the necessary licenses. Its discussions of both national legislation and case law clearly indicate that where one is required to have a public license to undertake an activity, one is not entitled – with impunity – to act as if a license was given. This is irrespective of the defects of the requirement to hold a license. The Supreme Court stressed that defendants do not have a right to have the validity of the underlying administrative decision resolved in a criminal case. The correct procedure for those arguing that they have been unlawfully denied a license is to take legal action against the authorities to have the decision declared invalid. The conclusion of the Supreme Court is that there is no general exemption from punishment under internal Norwegian criminal law. If they were Norwegians, the defendants would have been punished for harvesting without valid dispensation.
The Supreme Court then went on to consider the second alternative – whether the non-discriminatory principle under the Svalbard Treaty precludes the above-mentioned Norwegian internal rules as contrary to international law. Its discussion is rather brief. The Supreme Court referred to what it describes as a fundamental principle of a community governed by law: no one may with impunity act as if a permission or license was granted. The principle was, according to the Supreme Court, applicable to areas regulated by international law. Furthermore, the Supreme Court found that no courts of justice are required by the Svalbard Treaty or any other sources of international law to determine whether a dispensation should have been granted if there is an alternative for effective review of the dispute as to the international legal obligations. Under Norwegian law, a question as to whether Norwegian legislation and its application violates international legal obligations may be decided through a civil lawsuit. The Supreme Court referred to Article 13 of the European Convention on Human Rights and its case law to support such conclusion.
Thus, the Supreme Court concluded that the international obligations of Norway, including those of the Svalbard Treaty do not prevent Norway from punishing foreign subjects involved in commercial activities without valid Norwegian license, where all are required to have a license. Consequently, the defendants may be punished regardless of whether the Svalbard Treaty is applicable to the harvest of the snow crab in this area.
The Grand Chamber of the Supreme Court unanimously voted to dismiss the appeal of the defendants. Consequently, the judgment of the Court of Appeal stands.
Commentary
The conclusions of the Supreme Court are not surprising given the premises on which it agreed to hear the appeal. Once again, it avoided having to decide whether provisions of the Svalbard Treaty are applicable beyond the 12 nautical miles territorial sea. Still, the judgment clearly signals that it is futile for foreign-flagged vessels to ignore Norwegian regulations while operating in the 200 miles FPZ or on the continental shelf and then during the subsequent criminal proceedings to argue that they are violating Svalbard Treaty provisions. The burden will be on them to challenge the consistency of the regulations and/or decisions taken under them with the Svalbard Treaty by instituting appropriate legal proceedings.
The Supreme Court did not decide on the geographical scope of relevant provisions of the Svalbard Treaty and their applicability to the harvest of snow crab on the continental shelf within 200 miles off Svalbard. Still, by accepting the Snow crab regulations, the Supreme Court confirmed a difference in practice between the management of natural resources of the water column and the natural resources of the continental shelf. Contrary to the Fishery Protection Zone Regulation, the Snow crab regulation does not provide for de facto non-discrimination. Until a Norwegian court of justice finds that the Snow crab regulation violates the Svalbard Treaty, the harvest of sedentary species on the Norwegian continental shelf off Svalbard is reserved for Norwegian fishermen or domiciled foreign fishermen. This practice could have implication for the future application of the Svalbard Treaty. The question is whether the other contracting parties – and in this case, Latvia – will wait for a new decision by the Norwegian Supreme Court or whether one or more of them will try to question the Norwegian practice by referral to the International Court of Justice under Article 36 of its Statute.
______________________________________________________________
This post may be sited as: Tore Henriksen, “The Senator Case – A new turn in Norway’s dealings with foreign vessels operating in the waters off Svalbard” February 28, 2019, online: https://site.uit.no/jclos/files/2019/02/JCLOS-BLOG_28.2.2019_The-Senator-Case.pdf
To suscribe to the JCLOS Blog by email, please go to https://site.uit.no/jclos/