Transcript Lysbilde 1 - Det juridiske fakultet, UiO

“Safety in the North”, Alta 25-27
August 2010
Svalbard’s Maritime Zones
The (lack of) jurisdiction of Norway over foreign
maritime activities in the waters off Svalbard
Professor Tore Henriksen
Faculty of Law, University of Tromsø
Overview
• Background: Potential for increased maritime activities in
“Norwegian” Arctic
• The 1920 Svalbard Treaty and the Law of the Sea:
 Q1: May Norway establish maritime zones based on Svalbard?
 Q2: May Norway (in case) exercise jurisdiction in these zones?
 Q3: Does the right of non-discrimination restrict the exercise of
jurisdiction?
• Maritime zones of Svalbard and exercise of jurisdiction
• Conclusions
Background:
The melting of the sea ice
Source: Institute of Marine Research
Background:
Increased access: trans-Arctic shipping and
destinational shipping
Source: NATO Parliamentary Assembly:
www.nato-pa.int/default.asp?SHORTCUT=2082
The international legal framework:
The Svalbard Treaty and the Law of the Sea
Law of the Sea:
• Rights, obligations and jurisdiction over activities in
maritime zones off its coasts (coastal state)
• Rights, obligations and jurisdiction over foreign
flagged vessels voluntary within one of its ports (port
state)
Svalbard Treaty:
•
“…the full and absolute sovereignty of Norway over the
Archipelago of Spitsbergen…”, Article 1
• “…subject to the stipulations of the present Treaty…”:
 Equal rights of fishing and hunting, Article 2
 Equal right of access to ports and internal waters, Article 3
 Equal right to industrial, mining (incl. petroleum activity)
and commercial operations, Article 3
Q1: May Svalbard generate maritime zones?
International law and Svalbard:
• The “land dominates sea” doctrine
• Islands may generate maritime zones like land territory, LOS
Convention Article 121 (2)
Svalbard Treaty:
• Reference to “territorial waters”: a limitation or opening for expansion?
• The “Svalbard box” as a limitation?
State practice:
• Establishment of a 200 nautical miles Fisheries Protection Zone, the
•
•
extension of territorial sea to 12 nautical miles
Maritime delimitation (against Greenland and Russian maritime zones)
Delineation of outer limits of continental shelf (2006-2009)
Conclusion:
Svalbard generates maritime zones (including continental shelf)
Q2: May Norway exercise jurisdiction over foreign
maritime activities in these maritime zones?
Claim: Norway may not unilaterally exercise jurisdiction over
foreign flagged vessels in maritime zone; it’s for the flag state
• Unclear legal basis for the claim
Does the Svalbard Treaty exclude exercise of coastal state
jurisdiction under the law of the sea?
• Simple answer: No
 “… Norway shall be free to maintain, take or decree suitable
measures to ensure the preservation, and if necessary, the
reconstitution of the fauna and flora of the said regions, and their
territorial waters..” Article 2
 The “full and absolute sovereignty”, Article 1
Q3: Do the rights of Contracting Parties restrict the
exercise of coastal/port state jurisdiction?
What types of rights under the Svalbard Treaty?
Equal rights of exploiting natural resources (living marine
resources, petroleum and minerals), to access ports and to
undertake industrial and commercial activities
 A prohibition against exercising jurisdiction (legislative as well
as enforcement) involving direct and indirect discrimination
based on nationality
 Not substantial rights (e.g. a right to fish, to drill for oil or to
access port); Norway may ban petroleum activities or fishing
Conclusion: the rights would not restrict the exercise of port state
and coastal state jurisdiction under the law of sea
Existing maritime zones and exercise of
jurisdiction
Svalbard and Port state jurisdiction
Future: More vessels may call at ports in Svalbard
• A hub for trans-Arctic navigation
• Starting point/support for Arctic maritime activities
• Premises: Adequate infrastructure (e.g. port facilities)
How may the port state (Norway) ensure maritime safety and
protection of the marine environment in the Arctic?
• Traditional port state control (Paris MoU or a specific Arctic
port state MoU; ensuring compliance with international rules and
standards established through IMO)
• Unilateral requirements for calling at ports in Svalbard (stricter
that than IMO regulations)
• Enforcement of violations of international rules in waters beyond
the territorial waters, LOS Convention Article 218
Coastal State Jurisdiction
Territorial waters (internal waters and 12 nautical
miles territorial sea)
• Restrictions on jurisdiction:
 Non-discrimination
 Right of innocent passage through the territorial sea
• Relevant measures:
 Norwegian legislation is made applicable (Harbour and Fairways



Act and Ship Safety and Security Act)
Cruise vessels to register and to report their plans to local Governor
Requirement to report arrival/departure to the territorial waters,
positions and arrival in ports
Ban on use of heavy oil for vessels navigating in the maritime parts
of proteced areas
Coastal State Jurisdiction
200 miles zone:
• 1976 Exclusive Economic Zone Act:
 Norway may establish a 200 nautical mile EEZ around Svalbard
 1977: 200 nautical mile Fisheries Protection Zone
 The maritime waters beyond 12 nautical miles territorial sea are high
seas in respect of activities other than fisheries; e.g. navigation
 Flag state exclusive jurisdiction
 No coastal state jurisdiction (e.g. under LOS Articles 211 and 234)
Continental shelf:
• Parts of continental shelf in the North-east Atlantic and Arctic Ocean
are based on Svalbard (no delimitation between mainland Norway and
Svalbard)
• Legislation in place: applicable to the continental shelf of Norway
• Integrated plans of management of Barents Sea and Norwegian Sea:
Vulnerable areas not opened for petroleum activities
Conclusions
•
•
•
•
Svalbard may generate maritime zones
Norway may exercise port state and coastal state jurisdiction
Focus now on maritime activities in territorial waters
Should gradually focus on maritime activities in the wider Arctic
and assess the role of Svalbard/Norway:
 Provide infrastructure (e.g. rescue and emergency assistance)
 Work within the IMO for special regulations for the Arctic (CDME

standards, special areas, routeing measures, heavy fuel)
Exercise of coastal state jurisdiction in the 200 miles zone by
establishing an EEZ (applying IMO rules and standards as well as
coastal state regulations in ice-covered areas under Article 234)