Главная Problems and international legal bases for fishing in the Spitsbergen (Svalbard) area
Problems and international legal bases for fishing in the Spitsbergen (Svalbard) area Печать E-mail

Juan Сarlos Мartin Fragueiro

The Treaty of Paris 1920, the "Treaty concerning the Archipelago of Spitsbergen" (Svalbard) entered into force on 14 August 1925.

By this Treaty, the High Contracting Parties recognize the sovereignty of Norway "subject to the stipulations of the Treaty" over the Territory of Archipelago of Spitsbergen, and continuously, according it is provided in article 2, establishes the equal rights of fishing and hunting to all the ships and nationals in the territories of Svalbard and in their territorial waters.

The four first articles of the Treaty are key to understand the priorities that this Treaty establishes with respect to the rights and duties of the Kingdom of Norway and the High Contracting Parties.

Firstly, the treaty placed the sovereignty of Norway over the territories (without speaking of territorial waters) and then, the second article establishes the applicable equality of all the High Signatory Contracting Parties for fishing and hunting in the territories and territorial waters. The third article of the Treaty establishes the same conditions of equality to the exercise and practice of "all marine, mining or commercial enterprises".

The fishing is granted in equal condition to all of the parties, and Norway doesn't enjoy the full privileges in the Territorial Sea of Svalbard, so Norway's sovereignty is conditioned, first: to the recognition of the fishing and hunting rights to "ships and nationals" of the Contracting Parties.

More, and accordingly the article 3 of the Treaty: "The ships and nationals of all the High Contracting Parties shall have equal liberty of access and entry for any reason or object whatever to the waters, fjords and ports of the territories specified in Article 1; subject to the observance of local laws and regulations, they may carry on there without impediment all maritime, industrial, mining and commercial operations on a footing of absolute equality".

By way of compensation of this right, the Treaty sets up for Norway the legal bases to establish measures of preservation in the territory of Svalbard and its territorial waters.

Since 1920, the International Law of the sea has been suffered a great evolution, but even that the Treaty is still in force, according is provided in article 311 of the United Nations Convention on the Law of the Sea, "every agreement compatible with this Convention is in force" and it has been so until nowadays.

In 1977, according to the International Law, the Kingdom of Norway established an Exclusive Economic Zone around the Continental Area. But this country could not carry out its pretension to establish an Exclusive Economic Zone around the Archipelago of Spitsbergen (the same it has done with the Continental Zone), for the reason that the Kingdom of Norway did not enjoy in Svalbard the exclusive right of sovereignty of exploration and operation, conservation and administration of the alive and non alive natural resources.

States Contracting Parties of the Treaty of Paris were opposite to this purpose, so the Kingdom of Norway could only establish a Fisheries Protection Zone on the 200 nautical miles, including the Svalbard's waters and Bear Island. The Fisheries Protection Zone around the Territorial Sea of Svalbard has, therefore, a different legal nature from the one of an Exclusive Economic Zone.

The Fisheries Protection Zone either does not have the International regime of High Sea or International waters, where the right of the fishing liberty predominates, within it is stipulated in the Part VII section 2 of the UNCLOS. The international legal regime in force in that area is a particular one that privileges the Signatory Contracting States of the Treaty of Paris. It is a compatible regime with the United Nations Convention on the Law of the Sea, 1982.

In 2004 Norway, for the first time, arrested a fishing Spanish vessel. Not being an Exclusive Economic Norwegian Zone, this State can not take application measures against the ships under the flag of another Contracting Party of the Treaty of Paris. At that time, Spain pronounced itself immediately formulating a Verbal Note of protest not accepting that other State could take application measures against the vessel entailed the flag of another signatory State of the Treaty of Paris.

Nevertheless, there are different interpretations of the rights and duties established by this Treaty for the Contracting Parties and for the Kingdom of Norway.

In opinion of Spain, Norway has the authority on establishing the measures of conservation and management, but it doesn't have the enforcement or coercive authorities, so it cannot arrest a vessel of a third country, no to take this vessel to a port. It is the State which flag flies the vessel who can adopt pertinent coercive and sanction measures in case if some infraction is detected.

In that sense, the government of the Kingdom of Spain considers that if the vessel works under the flag of a State Contracting Party, only this Flag State signatory of Paris Treaty has the duty to investigate, to persecute and to judge the infractions that could be committed by any of their vessels in Territorial waters о in Fisheries Protection Zone of Svalbard, according to the documents and tests that can prove the no fulfilment by the vessels or nationals on board of vessels with the International Treaty provisions.

The European Community also has made several comments on the application of the dispositions of the Treaty regarding to the fishing sector activity in the Fisheries Protection Zone of Svalbard and on the limits laid down for the Kingdom of Norway under the Treaty of Paris of 1920.

The European Community's consistent position is, as follows: "Norway has no right to take either measures to restrict the access to the waters around Svalbard, no to take enforcement measures with respect to vessels under the flag of a Member State of the European Community operating in those waters".

Currently there are four different regimes in this extended Atlantic area, placed between the limits of the Exclusive Economic Zones of the European Union, Island, Greenland, Russia and Norway: the High Seas (in the "Loophole"), the Fishing Area of Norway, the Fisheries Protection Zone around Svalbard and the Dispute Zone with Russia.

Spain recognizes the competence of Norway to announce the non discriminatory measures of conservation and management in the Fisheries Protection Zone and the Government of the Kingdom of Spain is ready to collaborate with all Contracting Parties to observe the conservation measures, without forgetting that Norway should stop in its fervour to attribute itself the full sovereign rights and should act accordingly the principle of equal rights on operating and fishing of the vessels under the flags of the Paris Treaty Signatory States.

FISHERY IN NORTH ATLANTIC: REALITY AND PROSPECTS


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