The Snow Crab Dispute in Svalbard

The Spitsbergen (Svalbard) archipelago, located over 400 miles East of northern Greenland in the Arctic Ocean, was terra nullius until a 1920 treaty (Svalbard Treaty) recognized the "full and absolute sovereignty of Norway" over this territory.[1] Snow crabs settled in the region some two decades ago and have since become abundant in these waters. This valuable resource brings back to the limelight a dispute between Norway and some European Union (EU) member states on the status of waters surrounding the archipelago and fishing rights therein. This Insight examines how the Svalbard Treaty, the United Nations Convention on the Law of the Sea (UNCLOS), EU Regulation, and Norwegian laws apply to these issues.

General Context: Disagreement on the Scope of the Svalbard Treaty 

Norway undertook to regulate the catch of snow crab around the Svalbard archipelago with a Decree adopted in 2014.[2] The Decree generally bans the catch of snow crab (Article 1) while allowing for exemptions for vessels owning a license under the Norwegian Participation Act (Article 2).[3] Article 5 of the Participation Act excludes non-residents and foreign companies from the possibility to obtain a license. The conformity of these regulations to the Svalbard Treaty has been challenged by the European Union and some states parties.

Norway and other parties to the Svalbard Treaty disagree on the scope of the treaty. Although it grants Norway sovereignty over the archipelago, the treaty safeguards certain rights to the other parties on a non-discriminatory basis. In particular, Article 2 provides that "Ships and nationals of all the High Contracting Parties shall enjoy equally the rights of fishing and hunting [in the Archipelago] and [its] territorial waters." In other words, these activities may not be subject to discriminatory regulation by Norway. One of the main legal questions is whether Article 2 applies to maritime zones that did not legally exist in 1920, namely the exclusive economic zone and the continental shelf.

The EU is not a party to the Svalbard Treaty, but its exclusive competence for the conservation of the living resources of the sea gives it the responsibility to ensure that the fishing rights of its member states are respected. According to the EU, Norway must respect the non-discriminatory clauses of the Svalbard Treaty in the territorial sea, as well as in the areas corresponding to the exclusive economic zone and the continental shelf adjacent to the Svalbard archipelago.

By contrast, Norway (which is not an EU member state) relies on a literal interpretation of the treaty. It argues that the provisions on non-discriminatory access and exploitation would only apply to those areas which are specifically mentioned in the treaty, namely the land territory and "territorial waters" of the archipelago. Beyond that, UNCLOS would apply. In particular, Article 77 of the Convention would apply to the Svalbard continental shelf. This provision recognizes the sovereign rights of the coastal state over the continental shelf for the purpose of exploring and exploiting its natural resources, such as sedentary species (including snow crab) and mineral resources.

Both the EU and Norway are engaged in negotiations. According to the European Commission, this dispute cannot be settled through judicial proceedings due to several procedural impediments: (a) the Svalbard Treaty does not provide for a dispute-settlement mechanism; (b) the dispute settlement mechanisms provided for by the UNCLOS would not be applicable since the issue is not about the interpretation and application of the Convention, but rather about the interpretation and application of the Svalbard Treaty; (c) international arbitration would be subject to finding an agreement with Norway, which would be currently highly unlikely; (d) the EU has no legal standing before the International Court of Justice.[4] The European Commission is also concerned with a potential deterioration of the EU's bilateral relations with Norway more generally.

The Senator Case Before the Norwegian Tribunals and the Case Filed by Latvia Before the European Court of Justice 

The ship Senator was arrested by Norwegian police on January 16, 2017, while catching snow crabs in violation of Norwegian law. The Senator was operating pursuant to a Latvian license issued on the basis of an EU Council Regulation allocating Latvia fishing opportunities to catch snow crab in the area.[5]

The Supreme Court of Norway upheld the conviction of the Russian captain and the Latvian shipowner. 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 Svalbard Treaty (especially Article 2) 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.[6] The Supreme Court avoided addressing the defendants' arguments that the discrimination lies in the conditions for obtaining a license under the Participation Act.

Pursuant to the Treaty on the Functioning of the European Union (TFEU), Latvia invited the European Commission to act in order to protect the EU's interest in Svalbard.[7] In its March 12, 2018, response, the Commission stated that it "has not failed to act" and declined to take action as requested by Latvia. Latvia then filed a case against the Commission before the European Court of Justice (General Court). Under Article 263 of the TFEU, it sought the annulment of the Commission's position of March 12, 2018. By Order of January 30, 2020, the General Court declared the case inadmissible because the March 12, 2018, position had no "legally binding nature . . . with the result that it is not a challengeable act for the purposes of Article 263 TFEU."[8]

The decision of the General Court fails to resolve the impasse in which European economic operators wishing to catch snow crab in the Svalbard area find themselves: on the one hand, Council Regulations allow them to fish for snow crabs under permits from Member States, while on the other hand, Norwegian law exposes them to immobilization and sanctions. Thus, the Council Regulations renewing the fishing opportunities to catch snow crab on an annual basis seem to have a protective purpose only. Through these Regulations, the Union periodically reaffirms its interpretation of the Svalbard Treaty and safeguards its legal position. But these Regulations do not offer economic operators a real possibility to catch snow crab, considering the risks they face under Norwegian law.

Would a Judicial Settlement be Possible?

It is likely that Norway and the EU will carry on their negotiations on the subject. Should these negotiations not succeed, it may be possible to bring the dispute before an international tribunal. Indeed, UNCLOS obligates parties to settle their disputes by following the procedures provided for in Sections 1 and 2 of Part XV on "any dispute between them concerning the interpretation or application of this Convention."[9] As suggested by international case law, one must determine what is "the real issue in the case," and this question must be assessed "fairly."[10]

Regarding the Svalbard dispute, this question is a matter of perspective. A judicial body could consider that the dispute concerns the law applicable to the continental shelf adjacent to Svalbard (Article 77 of the UNCLOS or the Svalbard Treaty) and conclude that the dispute does indeed concern the application of the Convention. The award in the Philippines v. China case supports such an interpretation: "[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."[11] 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 Svalbard Treaty) as a derogation from the "general law" of the UNCLOS, which applies in the absence of a special agreement. In other words, a tribunal might consider that the question of the application of Article 77 is not, in itself, a "real issue:" its application or eviction will depend on the answer to the much thornier question of the applicability of the Svalbard Treaty. However, it is not obvious that a judicial body would adopt such a restrictive position.

Lastly, should the European Union decide to submit the dispute to a judicial body, which procedure would apply? While Norway has chosen to resolve UNCLOS disputes at the International Court of Justice (ICJ)[12], the European Union has not made any declaration under UNCLOS.[13] It shall thus be deemed to have accepted arbitration in accordance with Annex VII.[14] 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.

Conclusion

The European Commission has recognized that "there are risks of spill-over effects beyond fisheries"[15] arising from the snow crab dispute. These spill-over effects refer to non-biological resources of the soil and subsoil (oil, gas, minerals). Like snow crabs, these resources normally fall within the scope of Article 77 of the UNCLOS on the continental shelf. However, if the Svalbard Treaty applies to this area, Norway must allow for non-discriminatory access to all industrial, mining, or commercial enterprises from all the states parties.[16] Clearly, the disagreement on snow crab is only an aspect of a dispute which has much broader implications.

About the Author: Hélène De Pooter is a Senior Lecturer in Law at Bourgogne Franche-Comté University (France). She holds a Ph.D. from Paris 1 Panthéon-Sorbonne University.