The Svalbard Treaty does not give a Latvian shipping company the right to catch snow crab on the continental shelf outside Svalbard
Supreme Court judgment 20 March 2023, HR-2023-491-P, (case no. 22-134375SIV-HRET), civil case, appeal against judgment.
SIA North Star Ltd.
(Counsel Mads Andenæs and Hallvard Østgård)
(Assisting Counsel Brynjar Østgård) v. The State represented by the Ministry of Trade, Industry and Fisheries (The Office of the Attorney General represented by Fredrik Sejersted)
(Assisting Counsel Marius Kjelstrup Emberland)
The Supreme Court of Norway handed down the judgment on 20 March 2023. The case was heard by 15 justices in a plenary session. It concerns the validity of a decision that denied a foreign shipping company a license to catch snow crab on the Norwegian continental shelf outside Svalbard. In particular, the case questions the geographical scope of the Svalbard Treaty. The main issue is the applicability of the provisions set forth in Articles 2 and 3, which address the equality of the nationals of the High Contracting Parties and their ships, on the continental shelf outside Svalbard.
In 2019, the Latvian shipping company SIA North Star Ltd. applied for a dispensation from the prohibition of catching snow crab on the Norwegian continental shelf outside Svalbard for three vessels. The Directorate of Fisheries rejected the application, and the Ministry of Trade, Industry and Fisheries dismissed the subsequent appeal. The basis for the decision was that only Norwegian nationals and vessels were entitled to catch snow crab on the Norwegian continental shelf.
SIA North Star Ltd. contends that the decision as well as the Norwegian Snow Crab Regulations are incompatible with the provisions on equality set forth in Articles 2 and 3 of the Svalbard Treaty. It is contended that these provisions apply on the continental shelf of Svalbard, because the coastal State’s sovereign rights over the shelf under Article 77 of the United Nations Convention on the Law of the Sea (UNCLOS) are derived from the coastal State’s sovereignty over the mainland.
Oslo District Court and Borgarting Court of Appeal ruled in favour of the Norwegian State. SIA North Star Ltd. has appealed the latter judgment to the Supreme Court.
The Supreme Court rules in favour of the Norwegian State and dismisses the appeal from SIA North Star Ltd.
Reasons for the judgment
The Svalbard Treaty was signed on 9 February 1920 by the United States, the United Kingdom, Denmark, France, Italy, Japan, Norway, the Netherlands, and Sweden and entered into force on 14 August 1925. All States may enter the Treaty and currently there are 44 Contracting Parties. Latvia entered in 2016.
Article 2 of the Svalbard Treaty provides that “[s]hips 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 main issue of the case is whether “their territorial waters” include the continental shelf outside Svalbard. This depends on the interpretation of the Treaty in accordance with the rules of interpretation laid down in the Vienna Convention on the Law of Treaties (1969).
According to Article 1 of the Svalbard Treaty, the full and absolute sovereignty of Norway is recognised by the Contracting Parties on the condition that Norway, in its exercise of powers, respects the rights set forth in the provisions of the Treaty. No other limitations on Norway’s exercise of sovereignty may be derived from the Treaty, and residual rights fall to Norway. Article 1 does not establish any general rule of equality, and it is within this context Article 2 must be interpreted.
The Supreme Court finds that the term “territorial waters”, around the time of the conclusion of the Svalbard Treaty, referred to the limited sea belt outside the coast over which the coastal State had sovereignty. The Supreme Court also finds that there is no basis for an evolutive interpretation of the term to the effect that it applies on the continental shelf. On the contrary, the meaning of “territorial waters” is confirmed by Article 2 of the UNCLOS, which sets forth that the coastal State has sovereignty over internal waters and the territorial sea.
The object and purpose of the Svalbard Treaty, “seeing these territories provided with an equitable regime, in order to assure their development and peaceful utilization”, do not clearly and unambiguously support the interpretation argued by the appellant, but rather may support both parties’ contentions.
In the Supreme Court’s view, the interpretation contended by the appellant would imply an amendment of the Treaty that requires agreement between the parties. No such agreement exists.
The Supreme Court’s conclusion is that Article 2 applies in Svalbard’s internal waters and territorial sea, but not on the continental shelf. The Court further finds that Article 3 does not apply on the continental shelf.
This summary does not form part of the judgment’s reasoning. The full judgment of the Court in the Norwegian language is the only authoritative document.
Area of law: International law
Key paragraphs: 100-125, 212-220
Justices: Øie, Indreberg, Webster, Matheson, Normann, Bull, Kallerud, Bergsjø, Ringnes, Arntzen, Falch, Bergh, Berglund, Høgetveit Berg, Thyness