When looking at Svalbard, one needs to appreciate its history to understand the unique position that it holds in the present. Up until the end of WWI, it was considered terra nullius, or ‘no man’s land,’ which had been visited in the summer months by the Dutch, English, Pomors and Scandinavian Kingdoms for centuries due to its blubber-rich marine mammal population and furs. Competition between whaling fleets for control over the archipelago, however, only lasted during the warmer months, leaving the islands devoid of a year-round human presence throughout most of its history. A need for a permanent, national government presence began when mining interests appeared on the archipelago at the turn of the 20th century. While attempts to agree on who ‘owned’ the archipelago came soon after, it was not until the Treaty of Versailles that a definitive answer was found. Supported by the UK for its neutral ally role in WWI, Norway was seen as a perfect administrator for the islands, and, therefore, it was agreed as part of the post-war Versailles negotiations that Svalbard would become part of Norway.
What is unique about Svalbard’s initial inclusion into Norway is the treaty that first proclaimed it. The intention of the Versailles peace process intended to end war forever and, therefore, thought of Svalbard as a place in which different nations could share in peace and prosperity. Hence, a major element of the treaty made sure to protect that fact by declaring the non-discrimination clause, which holds each signatory’s rights to exploitation of Svalbard’s natural resources equal under Norwegian law, with the acknowledgement of Norwegian sovereignty over the archipelago. The treaty also states clearly that the archipelago could not be used for military purposes, and it declared a need for strict environmental protection.
The treaty as a whole was unique for its time, but it is the non-discrimination clause that has created a handful of issues that have continued until today. The Norwegian government understood this and, throughout the 20th century, made slow, steady movements to demonstrate that it had complete sovereignty over the archipelago. For example, in September 1971, Norway acceded to and became State Party to the 1958 Continental Shelf Convention, which was amended and extended to accommodate the outcomes of the third UN Conference on the Law of the Sea (UNCLOS). The exclusive Economic Zone Act was adopted in 1976, which is the legal basis for the establishment of 200-mile zones off the Norwegian mainland and islands from 1 January 1977. The Exclusive Economic Zone, hereafter known as EEZ, is a maritime zone where the coastal state has sovereign property rights to the marine resources of the zone, which they can keep for their own benefit or profit from by arrangements with others. It also provides legal basis for regulating the protection of the marine environment, marine research, laying of submarine cables and artificial islands and installations.[1]
In 1977, when this zone was created, Norway hoped to create a classic EEZ around Svalbard as it had done around mainland Norway. While some countries demonstrated support for Norway’s claim of an extended EEZ, many nations, including both NATO and Warsaw Pact members, issued reservations. NATO allies, such as the United States, the United Kingdom, France, and West Germany, reserved the rights that the Svalbard Treaty (ST) might provide them adjacent to Svalbard. Warsaw Pact states Poland, Hungary and Czechoslovakia protested, along with the Soviet Union, against Norway’s unilateral act of establishing a maritime zone adjacent to Svalbard, Torbjørn Pedersen explains.[2]
The regulations Norway ratified throughout the latter half of the 20th century clarified the boundaries of jurisdiction within marine areas around Svalbard in new terms. The transition from the initial treaty to the present day has been a slow, deliberate process in which Norway defined its jurisdiction over Svalbard and its surrounding waters. Since the 1980s, when domestic public interest increased due to oil exploration in the area, Norway has slowly tightened its grip on the archipelago. A need for slow, steady change was understood to be most effective as to not disturb other nations’ interests on the islands. While the Norwegian public called for a firmer grip on the archipelago due to potential energy exploration, its government had to balance that with the stipulations laid out in the treaty of 1920. In effect, internal factors explain the drive for more normalised conditions on Svalbard, while external factors have created constraints that have slowed down Norway’s ambitions.
Furthermore, “in combination, the two approaches make up an analytical framework that accounts for the gradual change to the extent that the external factors permit, domestic actors, driven by sector interests, seem to push for a more assertive Norwegian jurisdiction. The result is an incremental development.”[3] Norway understands that Svalbard is in a unique position where other international players must be respected. Therefore, any large, quick change in policy towards the archipelago that might be seen as weakening other nations’ interests on the islands has been avoided. The importance of this slow development by Norway is explained: “while unconstrained leaps in the development might have attracted the attention of foreign powers with interests in Svalbard…small steps go under their radars.”[4] Unlike most of the world, the legal framework in which Svalbard exists is ruled not only by domestic national policy, but also the interests of other ST signatories. Therefore, the way in which Norway acts on Svalbard is unique, both on its islands and within its maritime zones.
Now, Norway holds unquestionable sovereignty over Svalbard. Questions and tensions do arise, however, over Svalbard’s maritime areas, as the Svalbard Treaty’s geographical scope itself is difficult to clarify. The Svalbard Treaty was created when maritime areas throughout the world were not as well defined, and most of the ocean was classified ‘high seas’. More precise definitions were used to create UNCLOS; thus, the overlap between UNCLOS and the ST have created a set of different interpretations, each with different enforcement outcomes, that affect the abilities of relevant stakeholders to benefit from the desired natural resources within the Svalbard’s FPZ. Sarah Wolf explains, “some articles of the ST explicitly refer to the territories ‘specified in Article 1’ to ‘territorial waters’ and to ‘the waters, fjords and ports of the territories specified in Article 1.’ The ST uses the older notion ‘territorial waters’ which is synonymous to the more frequently used notion and concept of ‘territorial sea’ of modern International Law of the Sea, especially UNCLOS. Further, the ST does not refer to modern Law of the Sea concepts such as continental shelf, Exclusive Economic Zone, and Fishery Protection Zone as these concepts had not been developed at the time when the ST was concluded.”[5]
Since there is a mismatch in concepts between the two treaties, it is unclear if the ST is applicable in Svalbard’s territorial sea, internal waters, FPZ and on Svalbard’s continental shelf. The questions that arise from such an overlap of treaties are: Is Norway entitled to establish new maritime zones around Svalbard? Do other States Parties enjoy the non-discriminatory rights of the ST also in maritime areas beyond the territorial sea? Can Norway exercise coastal State jurisdiction in these areas? The most controversial aspects of the treaty overlap deals specifically with the ST’s applicability to the FPZ and its continental shelf. According to Wolf, there are three positions that have emerged: “The view that Norway has exclusive rights in these zones, unrestricted by the Svalbard Treaty; the opposite position that Norway has no rights beyond the territorial sea; and the intermediary view that Norway has jurisdiction and sovereign rights beyond the territorial sea while the provisions of the Svalbard Treaty, especially the non-discriminatory rights, are applicable.”[6]
These three distinct views on the FPZ are used to validate State Parties’ actions within the FPZ. For example, Norway interprets the ST in a way that it only applies solely to Svalbard’s land territory, internal waters and territorial sea; therefore, Norway has exclusive rights in the FPZ under International Law of the Sea, unrestricted by the Svalbard Treaty. This argument is based on the idea that the wording of the Svalbard Treaty is ‘unambiguous by stating that the rights of other States Parties, especially the fishing rights of Art. 2 ST, only apply in the Svalbard territory and in the territorial waters, i.e. the territorial sea (less than 12 nautical miles from shore). Neither the FPZ nor the continental shelf are addressed in the Svalbard Treaty. Therefore, Norway’s sovereign rights prevail and Norway’s UNCLOS coastal States’ rights in these maritime zones are not abrogated or altered by the Svalbard Treaty.[7]
Contrary to Norway’s understanding, Russia has suggested that instead of creating the maritime zones within Norway’s legislative process, any creation or management of maritime zones outside of Svalbard’s territorial waters should be done through a multilateral process that recognises the Svalbard Treaty. This perspective takes the stand that any move to change the regime needs to cooperate with, and obtain consent from, other contracting parties from the ST.[8] Furthermore, Russia views Norwegian sovereignty over Svalbard being curtailed both geographically and in scope by the Svalbard Treaty. According to Russia, the ST does not confer upon Norway a coastal State’s right to claim jurisdiction over a 200 nautical mile fisheries zone around Svalbard or on the continental shelf.[9] Support for such views can be linked to the wording of the ST itself, which only refers to land territory, and the territorial waters, fjords and ports. Therefore, Norway is not competent to create zones beyond its own territorial sea. At the time, the Svalbard Treaty was concluded, the areas beyond the territorial sea were considered high seas, or outside the jurisdiction of any one country.[10]
The third interpretation of Svalbard’s FPZ is in some ways a combination of both of the previous two viewpoints, creating an in-between model that has been accepted internationally to varying degrees by different State Parties. It includes Norway’s full sovereignty over Svalbard and its jurisdiction in the maritime areas around the archipelago, while at the same time it also includes the application of the ST provisions to those maritime areas. This allows for the contracting parties of the ST expansive rights at the expense of the coastal state’s jurisdiction. Both Iceland and Spain, two countries that have fished in the area in the recent past, have cited this view as justification of use of Svalbard’s FPZ for their own benefit. Interested states, such as Iceland, have said that “fishing activities in the so-called fisheries protection zone outside Svalbard should be regarded as fishing outside any single State’s area of jurisdiction.”[11] By declaring it outside of ‘any single state’s area of jurisdiction,’ the FPZ would then be open to Iceland’s fishing vessels.
How do these three different views determine who gets to use Svalbard’s FPZ? The third viewpoint states that the ST, including the non-discriminatory rights, applies to the FPZ, and, therefore, all contracting Parties to the ST would hold the right of fishing in the FPZ on equal basis, without any favors, exemptions or privileges. If the first Norwegian view was upheld, then the FPZ would not be restricted by the Svalbard Treaty, and the FPZ would only be governed by the International Law of the Sea. Therefore, Norway would hold sovereign rights for exploring and exploiting, conserving and managing the living resources within its EEZ/FPZ (Art 56 Para 1.).[12] Furthermore, Norway would then be able to determine the allowable catch of the living resources within its own FPZ. Accordingly, Norway would allow other states to participate in fishing activities in Svalbard’s FPZ only if Norway itself does not have the capacity of harvesting the allowable catch around Svalbard by itself. Subsequently, there would be no privilege to the States Parties to the Svalbard Treaty, and there would be no equal access to fisheries.[13] The Russian view holds that Norway does not exercise sovereign rights and jurisdiction beyond the territorial sea due to Svalbard Treaty restrictions. Therefore, Norway would neither be allowed to establish an FPZ nor to exercise legislative and enforcement jurisdiction. The maritime areas around Svalbard beyond the territorial sea would be governed by the UNCLOS high seas regime, and all states would enjoy the freedom of fishing.[14]
It is quite clear that all three views have substantial legal backing. Depending on the views of the State Party, the FPZ is: A. Open to only Norwegian fishing vessels; B. Open to everyone and the FPZ doesn’t exist; or C. the FPZ is completely legal, and every State Party has equal opportunity to fish within 200 miles of Svalbard. Between the three views, there is yet to be a worldwide agreement on the legal status of Svalbard’s FPZ. As the maritime resources of Svalbard are incredibly rich, many countries attempt to fish in the FPZ. A lack of international consensus on the use of Svalbard’s FPZ demonstrates that it’s the bilateral relationships between Norway and the other State Parties, rather than international law, that has guided the use and enforcement of Norwegian regulation of Svalbard’s FPZ. For the most part, this lack of an internationally recognised framework for the FPZ hasn’t caused many problems. A history of partnership and collaboration between Russia and Norway on fisheries issues in the Barents region, through the creation of the Joint Fisheries Commission, has allowed the two countries to benefit from agreed upon catch quotas, minimum allowable fish size, and satellite monitoring to better strengthen the management of fisheries throughout the Barents.
However, such management structures can’t prevent all disputes from occurring, especially within the grey area that is Svalbard’s FPZ. For example, in the late 1990s, Norway began to push for enforcement of its previously stated policies. Instead of turning a blind eye to Russian activities that were considered illegal according to the 1977 FPZ law, the Norwegian Coast Guard seized a Russian trawler in 1998. While the Norwegian Coast Guard decided to release the trawler before it reached a Norwegian port, it arrested another Russian trawler three years later, sparking a diplomatic feud between the two countries. While previously it had seemed that Russia had acquiesced to Norway’s demands, and Norway had chosen not to prosecute perceived violations, it was now clear that both countries’ policies had changed. Tensions rose on both sides, and a chairman on the Russian State Fisheries Committee suggested that the Russian Northern Fleet should ‘shoot at and sink’ Norwegian Coast Guard vessels if something similar happened again, and ‘do nothing to save their crews’.[15]
This heightened the distrust between the nation’s fishing communities, with Russian news agencies declaring that the Norwegian Coast Guard was seizing ships arbitrarily to cover their own mismanagement of the fish stocks. ‘The Norwegians are interested in discrediting Russian fishers, since Norway itself often catches more fish than its quotas allow for’, wrote the Rossbalt news agency. ‘Therefore, as soon as reports in Russia suggest Norwegian breaches, Norway will arrest a Russian vessel’.[16] These accusations mirrored those of Norwegian fisherman, who claimed similar issues with Russian vessels operating in the Svalbard area.
The tension between the two countries was further aggravated in 2002 when the Russian naval destroyer Severomorsk sailed into Svalbard’s FPZ. This was the first time that a Russian naval vessel had done so, and Norway worried that it had been sent to the FPZ to protect Russian fishing vessels from the Norwegian Coast Guard, who had seized a Russian vessel the previous year. The magnitude of sending a naval vessel into the FPZ was huge, as technically the Russian vessel was impeding on Norway’s sovereign maritime territory, or at least according to Norway. As Russia didn’t recognize the FPZ as such, it felt that it was within its right to send such a ship into the area. What was made clear by that act was that Russia felt threatened by Norway’s enforcement of previous laws regarding Svalbard’s FPZ. Furthermore, at that time, Russia framed Norway’s enforcement as a national security threat, rather than a low-level dispute. The act clearly caused concern in Oslo, but when pressed for explanation, Moscow explained that the ship was completing routine maneuvers and its intent was only to inspect its own vessels within the area.[17]
From the Severemorsk case, we see what can happen when two countries have divergent views on a space whose use hasn’t been agreed upon by the international community. Both countries felt that they were acting correctly within the FPZ according to their national views of the correct use of Svalbard’s FPZ. Looking towards the future, it seems likely that we will see more of such incidents, as both Norway and Russia catching more and more fish in Svalbard’s FPZ. For example, from 2000 to 2010, the total live catch from the Svalbard region by Norwegian, Russian, and third party fishing fleets more than tripled. With increased use comes an increased need for better regulation and an internationally recognised management framework for Svalbard’s FPZ.
It is clear that a lack of an internationally recognised governance regime for Svalbard’s FPZ could result in heightened tension in the region, as has happened in the past. It is also clear that instead of international law, it is rather the bilateral relationships between stakeholders, such as between Russia and Norway, which set the tone for how to overcome disputes over the use of Svalbard’s FPZ. This is concerning today as the relations between Russia and Norway have reached a low point ever since Russia’s invasion of the Ukraine. While yes, Norway must continue to respect the obligations laid out in the Svalbard Treaty of 1920, the current reality of overlapping treaties in the region has created a legally grey area which must be clarified. The lack of an internationally recognised solution to Svalbard’s FPZ shouldn’t be allowed to continue, and rather than relying on the previous goodwill and positive relationships to solve future disputes, concrete agreements must be made.
We see that Svalbard’s unique past has created a present situation in which both national interests along with international actors must be considered in regards to any change to Svalbard’s FPZ governance regime. As it stands, plural views on how to interpret the overlapping treaties in the FPZ have created an unclear situation which unnecessarily complicates the extraction of the zone’s wealth of marine resources. As the climate warms, and the world’s attention, along with its fish stocks, moves north, legal complexities such as this must be clarified to prevent the possibility of future disputes.
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