mostly influences the situation on Svalbard. Official reports on Svalbard published by the government can provide a good overview of the current situation and function as an excellent source for Norwegian state practice. Also, information available on the websites of the various Norwegian Ministries and Directorates, like the Office of the Governor of Svalbard, the Mining Directorate or the Svalbard Tax Office, dealing with Svalbard and or Mining have been of importance. In addition, personal contact to those ministries has been made either by e-mail or phone to gather further information. Official documents by other states are typically found as a reaction to Norwegian legislation or activities, like notes verbal to Norway directly or to the Secretary General of the UN. In addition to those documents having a mere official character, newspaper articles can function as evidence for actual state behavior. The Arctic is covered mostly by two newspapers, The Barents Observer, a journalist owned online newspaper126 and High North News, an independent newspaper published by the High North Center at the Nord University.127 Both put out articles on Svalbard rather often, because developments on the topic, especially about fisheries and snow crab fishing, are important for the economy of the region.
There is no case law on the topic of the geographical extent of the Svalbard Treaty itself, as the case has not yet been referred to any international tribunal. In 1996, the Norwegian Supreme Court made a judgement concerning fishing by Icelandic fishermen in the 200 NM zone around Svalbard, but the court did not consider the geographical application of the treaty. Followed by a case in 2006 when the Supreme Court, in a case against Spanish fishing in the 200 NM zone, did not regard it as necessary to determine the geographic applicability of the treaty.128 The latest one has been on snow crab fishing in a region called Loop Hole, a situation Chapter 7.2.3 will set into perspective. Nevertheless, it can be helpful to look at international jurisprudence on treaty interpretation, in cases similar to the one mentioned. However, the relevant international judgments do not point in one particular direction.129 The arbitration court concluded in the Abu Dhabi Oil Arbitration130 that oil licenses granted before the legal establishment of the continental shelf could not expand to the shelf. The court in the Aegean Sea Case131 concluded instead that a declaration on jurisdiction given in the 1920s also applied to the shelf, even though there did not exist any
126 The Independent Barents Observer, “About us”, The Barents Observer, 05 April 2017 (available at https://thebarentsobserver.com/en/about-us).
127 Arne O. Holm, “High North News”, High North News (available at http://www.highnorthnews.com/).
128 Geir Ulfstein, „Spitsbergen/Svalbard“, Oxford Public International Law, 01-2008 (available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1356).
129 Ibid.
130 Abu Dhabi Oil Arbitration, Decision, Arbitration, September 1951 (available at
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e84).
131 Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment, International Court of Justice, 19 December 1978 (available at http://www.icj-cij.org/files/case-related/62/062-19781219-JUD-01-00-EN.pdf).
legal concept of a shelf at that time. On the other hand, the arbitrational award, whose judgment was confirmed by the ICJ three years later, ruled in the Guinea Bissau v Senegal Case132 that an agreement from 1960 about the delimitation of the territorial sea, the contiguous zone and the shelf did not apply to the EEZ. Contradicting again with the Oil Platforms Case133 in 2003 in which the ICJ did not distinguish between land and sea territory, including the shelf and the EEZ, in a treaty that entered into force in 1955 being applicable on “the territories of the two High Contracting Parties”.134135
Both the topic of Svalbard in terms of security relevance, due to its strategic geographical location, and the legal side of the Svalbard Treaty’s application can be regarded as a niche topic. While there are some publications on the geographical extent of the Treaty in general as well as on the legal framework of the Fisheries Protection Zone (FPZ), the question of the exploitation of non-living resources is not widely researched yet. However, more publications can be expected, as the current issue of the snow crabs entering the area increases awareness of the topic, because they are regarded as belonging to the continental shelf like hydrocarbon and petroleum resources. Articles about Svalbard appear mostly in northern newspapers, as The Barents Observer and High North News, so the problem is probably not known to the wider public. For this thesis, there has been no selection of publications, caused by the limited number of literature available. There are only five authors who have published to a wider extent on the topic: Pedersen, Churchill and Ulfstein, as well as Anderson and Fleischer.
Pedersen, who has lived on Svalbard for two time periods, is the best-known author on the social science perspective of Svalbard. He is a Professor at the Faculty of Social Science at Nord University, Norway and wrote his PhD on Svalbard.136 He has published analysis on different states’ policies about Svalbard as well as the FPZ. All his publications include a basic part of international law, but he concentrates mostly on aspects covered by national and foreign policy, as well as security studies. Fleischer is the only one advocating for
132 Case concerning the arbitral award of 31 July 1989, (Guinea Bissau v. Senegal), Judgment, International Court of Justice, 12 November 1991 (available at http://www.icj-cij.org/files/case-related/82/082-19911112-JUD-01-00-EN.pdf).
133 Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, International Court of Justice, 12 December 1996 (available at http://www.icj-cij.org/files/case-related/90/090-19961212-JUD-01-00-EN.pdf).
134 Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, International Court of Justice, 12 December 1996 (available at http://www.icj-cij.org/files/case-related/90/090-19961212-JUD-01-00-EN.pdf), para. 82.
135 Cf Geir Ulfstein, „Spitsbergen/Svalbard“, Oxford Public International Law, 01-2008 (available at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1356).
136 Svalbard Science Forum, “Conflict and order in Svalbard waters”, The Research Council of Norway, 13 September 2016 (available at
https://www.forskningsradet.no/prognett-ssf/Nyheter/Conflict_and_order_in_Svalbard_waters/1253978331715&lang=en).
”Torbjørn Pedersen”, Nord Universitet, (available at
https://www.nord.no/no/_layouts/15/uin.internet/userprofilepage.aspx?pid=nord%5C03205451).
Norway’s interpretation of the Svalbard Treaty. He has worked for both Oslo University as a professor of jurisprudence and as a long-term consultant for the Norwegian Foreign Ministry.
The first topic he consulted the Ministry on was fishery zones, the topic he also wrote his PhD in. He participated in various international negotiations on behalf of Norway, inter alia, UNCLOS III, on oil and gas fields in the North Sea and in bilateral consultations between Norway, Denmark and Great Britain in the late 60s.137 Churchill and Ulfstein have both written several papers, supporting the widely accepted interpretation that the Svalbard Treaty extends beyond the territorial waters. Churchill works as a professor of international law at the University of Dundee since 2006, with previous work experience at Cardiff University and the University of Tromsø. Furthermore, he has been employed as an advisor to several NGOs (non-governmental organizations), especially environmental or fisheries organizations, various foreign governments, the European Commission and the European Parliament.138 Ulfstein is a professor of international law at the University of Oslo since 1998 and has also worked for the University of Tromsø. In addition, he has been a judge at Tromsø City Court and Hålogaland Appeals Court.139 Anderson, who is a former legal counselor of the UK Foreign and Commonwealth Office and a former judge at the International Tribunal for the Law of the Sea140, supports the same view as Churchill and Ulfstein.
137 Marit Halvorsen, ”Carl August Fleischer”, Norsk Biografisk Leksikon, 13 February 2009 (available at https://nbl.snl.no/Carl_August_Fleischer).
138 Law Staff, “Robin Churchill”, University of Dundee (available at https://www.dundee.ac.uk/law/staff/details/churchillrobin.php#tab-bio).
139 Geir Ulfstein, „Biographical sketch“, ulfstein.net (available at http://ulfstein.net/biographical-sketch/).
140 Håvard Figenschou Raaen, Hydrocarbons and Jurisdictional Disputes in the High North: Explaining the Rationale of Norway's High North Policy, FNI Report, No 11 (2008) (available at
https://www.fni.no/publications/hydrocarbons-and-jurisdictional-disputes-in-the-high-north-explaining-the-rationale-of-norway-s-high-north-policy-article793-290.html), 30.