Norway risks having to share Svalbard resources with the EU

By Christine Karijord, High North News - November 10, 2017
The ice edge near Svalbard. (Getty)
The ice edge near Svalbard. (Getty)

The snow crab conflict around Svalbard waters may have large consequences, according to Professor of Law Geir Ulfstein at the University of Oslo. “Not just for crab catching, but also for oil and gas exploration,” the law expert says.

The EU argues that European vessels have the same right as Norwegian vessels to catch snow crabs. Earlier this week, the Norwegian Supreme Court began hearing a case that originally was about illegal fishing. However, the case may also end up threatening Norwegian sovereignty on the continental shelf.

“This is now about the right to catch snow crabs, a resource of significant economic value. The question is whether or not Norwegian authorities may ban international catching or if they will have to share it with other EU countries,” says Ulfstein. He has monitored the case closely from a legal point of view.

The snow crab and oil industry

The Norwegian Supreme Court has reserved two days to hear the case of alleged illegal fishing. The matter concerns a Lithuanian vessel that set out snow crab traps and caught snow crabs worth NOK 2.5 million. Difficult issues regarding the Law of the Sea are up for discussion, and the case raises questions on which the Supreme Court never has had to take a position before.

“The particular thing about the snow crab is that Norway has defined it as a sedentary species, i.e. a benthos and not a fish. These species are regulated by the rules for the continental shelf, which are the same rules as for oil and gas,” the law professor says.

The question is thus this: What significance will the snow crab decision imply for the oil industry if Norway may no longer discriminate against foreign companies?

“A worst-case scenario would be if the Supreme Court were to decide that the Svalbard Treaty applies to the continental shelf, and that Norway would have to give the EU countries access. That would render Norway unable to protect its oil, which may have far-reaching economic consequences, as well as local consequences for Finnmark, given the crab-catching industry and local business,” Ulfstein says.

He believes that this matter may proceed far before agreement is reached. Norway’s sovereign right to the resources on the Norwegian shelf is what is ultimately at stake.

“It depends on what the Supreme Court decides. If it finds in favor of the fishermen, Norwegian authorities will be forced to accept sharing the resources. If they do not find in favor of them, the case may continue before an international court of law. There has been heavy pressure from the EU in this conflict, and there have long been tough negotiations through political channels.

Hot potato

For Director and Professor of Political Science Geir Hønneland at Fridtjof Nansen’s Institute, the snow crab has changed a long-standing political tradition in the Barents Sea.

“The snow crab is not a shared responsibility between Norway and Russia, unlike cod, haddock and the Greenland halibut. When it comes to the snow crab, Norway faces the EU on its own, given that this is a shelf resource, not a sea resource,” Hønneland says.

He finds it surprising that the EU awarded licenses for the snow crab catching that is now before the supreme court and wonders if this is a test with a view to other resources like oil and gas.

“Norway has avoided rocking the boat for many years now, and just hoped that long time would make it easier to make Norwegian management of the areas around Svalbard a matter-of-fact. Because if a country has managed an area for 70-100 years, it grows into a kind of prescriptive rights and a more established situation – and then comes the snow crab and changes everything,” the northern researcher says.

According to him, the interpretation of the Svalbard Treaty will be the big question.

“It is very inconvenient for Norway, and it touches on the core areas around Svalbard – a question and a potential international court case that Norway has tried to avoid, one that can have incalculable consequences,” Hønneland says.

He argues that Norway has had a good reason not to rock the boat.

“Norway has tried to demonstrate a clear exercise of sovereignty, amongst others through the Coast Guard. Nevertheless, there has been an attitude of handling things on an issue-by-issue basis, making compromises in every case that has reeked of conflict,” the professor says.

Like when Iceland began fishing in the so-called ‘Loophole’, an area between the Norwegian and the Russian zones in the Barents Sea.

“Norway did not like it, however, agreed to give Iceland a quota. Then the snow crab – it really emerged from the sideline,” Hønneland says.

This article was translated from the original Norwegian by Elisabeth Bergquist.