(THIS ARTICLE IS MACHINE TRANSLATED by Google from Norwegian)
Stefan Snævarr at Lillehammer University College pays me a small visit in Ny tid on 18 November on the occasion of his settlement with the «northern political elite… of politicians, journalists, researchers and thinkers who cheer on Norway in the northern areas». It is always nice to be mentioned among the elite, but I sense a hint of bitterness in the philosopher's greeting. The background is an article in Aftenposten where I discussed the ongoing predatory fishing in the Barents Sea and pointed out that the Protection Zone around Svalbard, where the episode with the Russian trawler Elektron took place, is not "explicitly recognized by the states that fish in the area". Snævarr is so upset about this that he cites four exclamation marks and allows it to support the claim that the "northern political elite" believes that Norwegians "have a divine right to rule and take care of the area".
International law is difficult even after one ceased to invoke deities as justification for authority. The reason why I qualified "not recognized" with "explicit", is that other states that conduct fishing around Svalbard in practice – through their action – accept most of Norway's exercise of authority in the Protection Zone. They accept the obligation to keep the fishing within the total limits set for the area. They end fishing in an area when the Coast Guard closes it. With the exception of Russia, they agree to report their catch directly to Norway – the Russians do so via the Norwegian-Russian Fisheries Commission. Not least, they accept that the Norwegian Coast Guard regularly inspects their vessels. In 2004 alone, foreign vessels were inspected 139 times, two of which were seized; two Spaniards by the way.
This practical acceptance has the important consequence that the vessels in the Protection Zone are subject to a control system which is admittedly less approachable than in the Norwegian economic zone – because the threshold for intervention in practice is higher – but far stronger than in Smutthullet, which is more than 200 km from land . This was crucial for documenting a dramatic overfishing of cod in the newly privatized Russian fishing industry in the early 90s; and it has played a part in uncovering the even greater overfishing that has taken place in the last 3-4 years under the cover of unregistered transhipment. The last week, with the arrests off Svalbard of Spanish vessels suspected of illegal fishing for protected blue halibut, has once again shown how important it is that someone is present in the fields and looks at the fishermen in the maps.
So to the formal: Contrary to what Snævarr seems to believe, only Russia and Iceland among the almost 40 parties to the Svalbard Treaty have openly disputed Norway's right to establish a fishing zone around the archipelago. Statements from Spain and the EU this week may indicate that they now believe that Norway does not have the right to arrest and prosecution – but these statements have fallen into a heated situation and it is too early to settle the status quo. Some states have previously reserved or stated that the Svalbard Treaty's restrictions on Norwegian jurisdiction must also apply in this area – including the requirement for equal treatment. Such an objection does not apply to the exercise of Norwegian authority, but the fact that the Protection Zone – which itself is non-discriminatory and limited to fish – is authorized in the Act on the Norwegian Economic Zone which allows differential treatment may be applied to shelf resources. For the record: Non-discrimination does not mean that all parties should have an equal share of the catch, but that Norway must treat equal cases equally. In international fisheries management, there are two principles in particular that regulate the distribution of divided or migratory stocks – historical fishing and zone affiliation. These principles have also been the most important in the distribution of fishing rights for cod in the Barents Sea.
About the provisions of the Svalbard Treaty were made applicable to the sea area around Svalbard, the effects on the fisheries area would not have been very large compared to the current situation. The treaty gives Norway sovereignty over Svalbard, including the regulatory and supervisory authority, and the requirement for equal treatment has already been implemented. The Coast Guard could probably be less restrained in its response to breaches of regulations, which would strengthen the administration as a whole.
In the case of oil and gas, however, the economic impact could be severe if viable discoveries are made in the area. Equal treatment would break with the usual Norwegian practice of favoring Norwegian companies in block allocations for industrial policy reasons. In addition, another of the limitations of the Svalbard Treaty would apply: Norway must refrain from taxing activities on Svalbard beyond what is needed to administer the archipelago. In short, the question of how far out of land these restrictions extend can be of great importance for the distribution of cake between Norwegian and foreign oil companies and the Norwegian state.
Therefore, it is strange that Snævarr calls it suspicion when Norwegian journalists point to economic motives as a possible explanation for the fact that some Western parties have been lukewarm to the Protection Zone. As a political scientist, I am neither surprised nor particularly indignant that states – in this case Norway and other countries with an interest in oil and gas activities – are assumed to squint at how they are affected financially when formulating their positions on jurisdiction. The burden of explanation rests rather on the one who wants to claim the opposite.
Any place in the Svalbard Treaty in the legal basis for resource management in the sea around the archipelago something learned is being contested. Norway's foremost experts on the issue, Professors Fleischer and Ulfstein, have come to quite different conclusions. My concern in the chronicle was neither to present nor to weigh the various arguments that can be made for one or the other view. I just pointed out the simple fact that the Vernes Zone is not "explicitly recognized" by other states fishing in the area and that this has an impact on the management of cod in the north.
Olav Schram Stokke is a political scientist and senior researcher at the Fridtjof Nansen Institute.
