A new “cod war”, a conflict about fishing rights, has been lurking in the Barents Sea already for some time. The problem is a disagreement about cod quotas for European fishing ships in the 200 mile zone around Svalbard. The matter is complex.
The problem: EU fishing quotas after the Brexit
On the surface, the problem appears to be new quotas for European fishing vessels that Norway has set after the Brexit by deducting the British quota from the European allowance. The new European quota amounts to 17,885 tons, according to NRK, while British fishing vessels are afforded a quota of 5,000 tons. The EU, however, is not happy about this new quota and reacted by allocating themselves a quota of 28,431 tons, something that is not accepted by Norway. The EU accused the current Norwegian fishery policy of being arbitrary and discriminatory.
Both sides have now verbally rigged up, both saying they are prepared to take steps as necessary to take care of their rights. Norway has made clear that coastguard and police are ready to take the usual steps in case they find fishing vessels with illegal catch in their waters, including confiscation of ships and catches and arrestation of crews. It was Lars Fause, chief prosecutor in north Norway, who said this. Later this year, Fause will follow Sysselmann Kjerstin Askholt in Longyearbyen as the first one to bear the gender-neutral title Sysselmester.
Yummy cod taken in Isfjord.
The conflict between the EU and Norway is, however, about other volumes.
Key problem: the Spitsbergen Treaty
But the essential problem is hidden in the paragraphs of the Spitsbergen Treaty. The second article of the treaty guarantees that “Ships and nationals of all the High Contracting Parties shall enjoy equally the rights of fishing and hunting in the territories specified in Article 1 and in their territorial waters.” The problem is the definition of “territorial waters”. The Spitsbergen Treaty was signed in 1920. Until then, most countries looked upon coastal waters within 3 miles (a gun shot) as their territorial waters. It was not before 1921 that governments began to include the waters as far out as 12 miles into their own territory. Until today, this is not everywhere as clearly defined as one might think or wish, but as far as this, there is consensus in the area in question: everybody agrees that the Spitsbergen Treaty is valid within the 12 mile zone (territorial waters) around Svalbard, meaning that fishing ships of all treaty parties enjoy equal rights there.
The problem starts when it comes to the exclusive economic zone (EEZ), which stretches as far as 200 miles from the coast. Hence, the EEZ is much larger and includes large and valuable biological resources. The EEZ was, however, not defined in internatinal law before 1982, when the United Nations Convention on the Law of the Sea was concluded.
Based on article 1 of the Spitsbergen Treaty, Norway claims “full and absolute sovereignty” also of the large exclusive economic zone (200 mile zone), but insists at the same time that article 2 ot the same treaty, which gives all treaty parties equal rights, is not valid there. In contrast, Norway claims exclusive rights in the EEZ. It does not really surprise that there are those treaty parties who do not agree with this position.
The coastguard guarantees Norwegian sovereignty in the waters around Spitsbergen. Unfriendly encounters of coastguard vessels and EU fishing vessels may be coming up.
The Spitsbergen Treaty and the “exclusive economic zone (EEZ)”
Whatever one’s position is on the question wether or not the Spitsbergen Treaty and its fundamental principle of equal rights and access (non-discrimination) is to be applied in the EEZ, there can hardly be any doubts that fishing vessels from the EU or third countries need to respect Norwegian economical rights in these waters. The question is, however, how Norway may balance the quotas that are allocated to foreign fishing vessels relative to their national quotas: according to the principle of non-discrimination (if article 2 of the Spitsbergen Treaty is to be applied) or exclusively.
A complex matter. What is clearly missing is an authority accapted by all sides that could decide on such matters of interpretation regarding the Spitsbergen Treaty. Norway insists to possess the exclusive authority to such questions, but that is not accepted by Brussels.
While there is political and juridical need for clarification, both the Norwegian coastguard and European fishing vessels are getting prepared and conflicts are to be feared. The staggered observer keeps watching and wondering.