Comment on the Supreme Court of Norway's ruling in the snow crab case
The Supreme Court focused on two matters - whether the snow crab could be considered a sedentary species and whether Latvian fishing vessel Senator's snow crab catching was punishable.
The Norwegian prosecution authorities argued that the snow crab is a sedentary species, and that the United Nations Convention on the Law of the Sea (UNCLOS) Article 77 gives Norway an exclusive right to exploit it. They also argued that Senator and its owner SIA North Star Ltd. should be punished for catching of snow crab on the Norwegian Continental shelf in the Svalbard Fisheries Protection Zone without permission. According to the Regulations on the Prohibition against Catching of Snow Crab (the Snow Crab Regulations), it is illegal to catch snow crab unless the fishing vessel has received a permit from the Norwegian authorities. The permit can only be given to Norwegian citizens or persons who are equals to Norwegian citizens.
The defendants, Senator’s captain and SIA North Star Ltd, argued that the snow crab is not a sedentary species, because it moves over large areas. Because of this, UNCLOS Article 77 does not apply. They also claimed that the catching of snow crab could not be considered unlawful because the Norwegian Snow Crab Regulations goes against the principle of equal rights in the Svalbard Treaty.
The Supreme Court unanimously decided against the defendants. The snow crab is a sedentary species under UNCLOS, and catching without permission would have been unlawful even if the vessel was Norwegian.
In their comment (in Norwegian), Ulfstein and Ruud argues that even though the judgement is necessary, it does not offer a clarification of all the international law challenges, since the court decided not to assess the Svalbard Treaty's geographical area of application. The Norwegian authorities' position is that the Svalbard Treaty only applies within the territorial zone of 12 nautical miles, and that other states cannot claim any rights under the Treaty on the continental shelf and in the 200 nautical miles zone around Svalbard. This applies to the Treaty’s requirement of non-discriminatory treatment and tax limitation – which is of particular interest for possible oil exploitation. Several other countries disagree. This issue cannot be finally solved by a judgement from a national court.
The full judgement (in English) is available here.