Norway’s Inconsistent Interpretation of the 1920 Treaty of Paris

[Danilo Ruggero Di Bella is a lawyer at Bottega Di Bella.]

This year the Treaty of Paris laying out the status of the archipelago of Spitsbergen (Svalbard) has turned 100-year-old, yet the issues dealt with therein could not be more topical. Tensions are rising among the Contracting Parties to the 1920 Treaty of Paris for the exploitation of the natural resources of Svalbard. These tensions are rooted in the conflicting interpretations of the territorial scope of the Treaty of Paris generating a diplomatic stalemate, namely, between EU Member-States, on one hand, and Norway, on the other.

Contentious issue

Five EU Member-States – Spain, Latvia, Lithuania, Estonia and Poland – are disputing with Norway for fisheries rights to catch the highly lucrative snow-crabs that are infesting the continental shelf surrounding Svalbard.

The crux of the question lies in the conflicting interpretations of the Treaty of Paris. That Treaty gave Norway sovereignty over the back-then terra nullius of Svalbard, while simultaneously granting the other Parties to the Treaty – including Spain, Latvia, Lithuania, Estonia and Poland – equal rights and non-discriminatory access for commercial purposes to the resources on the archipelago and in the surrounding waters.

Norway and the EU Member-States disagree on the territorial scope of the Treaty and the extent to which all Contracting Parties enjoy such right to equal access to natural resources. Norway maintains that the equal enjoyment of commercial rights expressed in the Treaty is only applicable on land and up to the 12 nautical miles limit of the territorial waters surrounding the archipelago, but not to the 200-nautical mile Fishery Protection Zone (FPZ) instituted by Norway around the archipelago, nor to the archipelago’s continental shelf stretching throughout and beyond the 200 NM. Whereas the EU and its Member-States adopt an evolutive interpretation of the Treaty contending that it applies on land and up to the 200 NM around the islands, in keeping with the concept of the exclusive economic zone (EEZ) that did not exist at the time when that Treaty was drafted and that overlaps with the FPZ. Indeed, nowadays pursuant to Article 121(2) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), islands generate the same maritime zones as other landmasses, including a territorial sea, contiguous zone, EEZ, and continental shelf.

Consequently, the EU has authorized Spain, Latvia, Lithuania, Estonia and Poland to issue licenses to vessels flying their flags to catch snow-crabs in the 200 nautical miles around the archipelago, while Norway deems that in any case (either within the 12 NM or within the 200 NM) such EU licenses are invalid and the underlying activities constitute illegal fishing, if not accompanied by a Norwegian permit. Norway indeed has enacted and enforced against EU vessels a regulation establishing a general prohibition to fish snow-crabs, unless the vessel holds a Norwegian licence (Regulation on Prohibition of Snow-Crab Catching of 19 December 2014). However, such licence can only be issued to Norwegian citizens or to foreigners as long as they reside in Norway and partner up with other Norwegian citizens who shall detain the majority of the ownership interests, and to vessels where half of the crew on board and the ship-master reside in the Norwegian coastal municipalities. Such Norwegian nationality-based requirements are discriminatory and in contravention of Articles 2 and 3 of the Treaty of Paris. These Articles ensure equal access for all Contacting Parties, their ships and nationals to the natural resources of the archipelago subject to no exemption, privilege, and direct or indirect favouritism. According to this sui generis resource sharing Treaty of Paris, by way of illustration, if Norwegians are allowed to catch snow-crabs around the archipelago with a Norwegian licence, then Latvians shall enjoy the same right under the same conditions, meaning Latvian vessels should be allowed to catch snow-crabs in the same waters with a Latvian licence and without being subject to any nationality-based requirements (which more than preserving the fauna and flora of the archipelago tend to preserve a country’s national interests).

Norway’s contradictory stance

Norway’s position is difficult to reconcile with the relevant international legal framework – the Treaty of Paris and the UNCLOS – as it supports its application as long as it enables Norway to gain sovereignty, but it does not support it when it would restrain that same sovereignty (which would not exist in the first place, if it weren’t for such international instruments).

The conflicting interpretations as to the geographical scope of the 1920 Treaty of Paris stem from the fact that the Treaty refers only to the term “territorial waters” (probably, equitable with the concept of territorial sea), since that the concept of continental shelf did not exist at the time when the Treaty was drafted. However, nowadays pursuant to article 77(3) of the 1982 UNCLOS, land automatically generates its corresponding continental shelf, and this is also true for islands as per Article 121(2) of the UNCLOS. The fact that the continental shelf is generated automatically means that a Coastal State does not need to claim it in order for the continental shelf to exist. The continental shelf surrounding an island exists regardless what the Coastal State may maintain.

Consequently, Norway’s rights as well as obligations under the Treaty of Paris with respect to the equal exploitation of snow-crabs on the continental shelf surrounding Svalbard islands have been expanded automatically since 1920 (specifically, in 1996 when Norway became a Party to the UNCLOS). Given that according to the UNCLOS the continental shelf is automatically generated and that the snow-crab is one of its resources (according to article 77(4) of the UNCLOS), the Treaty of Paris grants sovereignty to Norway also with respect to Svalbard’s continental shelf, subject to the same conditions expressed in its Articles 2 and 3 which limit Norway’s sovereignty over the archipelago’s natural resources and which apply also to snow-crabs (being one of the natural resources of the archipelago’s continental shelf).

Norway instead maintains that Svalbard archipelago has not its own continental shelf and that Svalbard has an undifferentiated continental shelf from Norway’s mainland, despite the UNCLOS states otherwise. Additionally, Norway has relied on the Svalbard’s own continental shelf – the same continental shelf whose existence is denied by Norway – when delimiting its maritime borders with Greenland to be able to claim a wider portion of the sea.

Norway’s stance appears to be inconsistent and to make an opportunistic use of the UNCLOS and the Treaty of Paris. On one hand, it establishes a 200 nautical miles Fisheries Protection Zone, affirms that snow-crabs are an exclusive natural resource of the Norwegian continental shelf, and sets its maritime borders based on the Svalbard’s own continental shelf all by relying on the UNCLOS and the Treaty of Paris. On the other hand, it disavows the application of the UNCLOS and the Treaty of Paris when it comes to limit the same sovereignty that was bestowed upon itself because of the UNCLOS and the Treaty of Paris by rejecting the existence of Svalbard’s own continental shelf and, accordingly, the equal rights of the other Contracting Parties’ nationals to fish and exploit the natural resources lying thereon.

Basically, Norway recognizes its sovereign rights over Svalbard stemming from the Treaty of Paris and the UNCLOS, but it does not recognize the limitations on those sovereign rights stemming from the same legally binding texts. Such creeping jurisdiction by Norway over Svalbard waters results into a creeping expropriation by Norway of EU vessels’ valid licences to catch the highly-profitable snow-crabs in those waters. So, Norwegian vessels are the only ones who can actually profit off this valuable resource.

Conclusion 

No Contracting State of the Treaty of Paris shares Norway’s interpretation of the same. A consistent stance for Norway would be to recognize the extension of the Treaty of Paris to the 200 NM surrounding Svalbard based on the UNCLOS. So, Norway could legitimately claim sovereignty over that extended portion of the sea subject to the conditions contained in the Treaty of Paris. Alternatively, Norway should not recognize the extension of its sovereignty to the 200 NM surrounding the island, but it should limit its sovereignty to the original territorial waters that were contemplated in the Treaty of Paris (by virtue of which Norway first gained sovereignty over Svalbard). This way anything beyond those territorial waters would be international waters, not subject to the conditions of the Treaty of Paris, nor to Norway’s jurisdiction. A further clarification may be due in the sense that the “territorial waters” – even if equitable with the current term of territorial sea – at the time the Treaty of Paris was drafted were only 4 NM long (instead of 12 NM). Therefore, a literal interpretation of the original Treaty of Paris would grant Norway sovereignty over the archipelago’s land and its surrounding waters only up to 4 NM (everything beyond such limit would be considered as international waters).

The diplomatic stalemate between the EU Member-States and Norway might be doomed to remain such, as long as the Treaty of Paris is not interpreted and applied by an international, independent and neutral adjudicator.