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Norway's Imperiled Sovereignty Claim over Svalbard's Adjacent Waters

Published online by Cambridge University Press:  06 March 2019


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The invasive but highly profitable snow crab has made its way into the waters of the High Arctic, precipitating a direct confrontation between the EU and Norway over the interpretation of the 1920 Svalbard Treaty. Norway claims the Treaty does not apply due to its strict interpretation of the Treaty's terms, which pertain only to the archipelago's terra firm and territorial sea. The EU claims the Treaty's equal access and non-discrimination provisions follow the evolution of the international law of the sea, and make the living (and mineral) resources of Svalbard's surrounding continental shelf and waters open to all states parties to the Treaty. The dispute has gone on for decades, but this Article maintains, through a review of Norway's increasingly isolated legal and political stance that time is out of joint for Norway and its long-term appropriative design and strategy to territorialize this area of the High North.

International Jurisprudence
Copyright © 2017 by German Law Journal, Inc. 


1 See Staalesen, Atle, Snow Crabs Raise Conflict Potential Around Svalbard, Barents Observer, (Jan. 23, 2017), Scholar

2 Royal Decree of June 3, 1977, No. 6 on the Fisheries Protection Zone Off Svalbard, pursuant to § 1 of the Act of Dec. 17, 1976, No. 9 on Norway's Economic Zone.Google Scholar

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8 Latvia ratified the Svalbard Treaty on June 13, 2016. For a complete list of signatories, see Svalbard Treaty, The Governor of Svalbard, Sysselmannen, Scholar

9 Treaty Between Norway, the United States of America, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Ireland and the British overseas Dominions and Sweden concerning Spitsbergen signed in Paris Feb. 9, 1920 [Svalbard Treaty]. See Treaty Concerning the Archipelago of Spitsbergen, Feb. 9, 1920, 2 L.N.T.S. 8. Spitzbergen is the name of the largest island of the archipelago, and the islands commonly and collectively were called by that name until officially renamed Svalbard by Norway's king in 1925. Act of July 17, 1925 Relating to Svalbard, No. 11 (the Svalbard Act), Svalbard is an old Norsk word meaning ‘cold coast.‘ See Nansen, Fridtjof, In Northern Mists Vol. II: Arctic Exploration in Early Times 166 (Charter, Arthur G. trans., 1911).Google Scholar

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12 Id. at 3.Google Scholar

13 See Multi-Annual Plans, Fisheries, Commission, European, (last visited Mar. 3, 2017).Google Scholar

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16 See Mehren & Abelsen, supra note 3 (reporting the Norwegian Broadcasting Corporation (NRK) had gained access to EU documentation allowing for sixteen vessels, including the Senator, to fish for crab in the disputed Svalbard zone). In December 2016, the Latvian Agriculture Ministry representative secured licenses from the EU Agriculture and Fisheries Council, which distributed eleven crabbing licenses to Latvian fishing boats for 2017 Svalbard archipelago activities. See also Norwegian Authorities Arrest Latvian Crab Trawler with Crew of 30 People, The Baltic Course (Latvia) (Jan. 24, 2017), Scholar

17 E.U. Long Distance Advisory Council Position, supra note 11, at 1.Google Scholar

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19 See Harald Sakarias Br&;vig Hansen, Three Major Challenges in Managing Non-Native Sedentary Barents Sea Snow Crab (Chionoecetes opilio), 71 Marine Pol'y 38, 38 (2016) (noting their placement on the 2012 Norwegian blacklist of alien species as posing “severe ecological risk.”).Google Scholar

20 Scientists ponder their presence in the Barents Sea, hypothesizing they either migrated from original nesting grounds in the Bering Strait and the coasts of eastern Canada and western Greenland in search of colder water, or were brought into the High Arctic in ballast water. See Meld St. 20 (2014–15) Report to the Storting (White Paper) – Update of the Integrated Management Plan for the Barents Sea-Lofoten Area Including an Update of the Delimitation of the Marginal Ice Zone, (noting the invasive spread of snow crabs in the Barents Sea but expressing uncertainty as to their introduction by human activity); see also Pettersen, Trude, Snow Crabs Have Found Niche in Barents Sea Ecosystem, Barents Observer (Mar. 12, 2014),–03; J. Alvsvåg et al., Evidence for a Permanent Establishment of the Snow Crab (Chionoecetes opilio) in the Barents Sea, 11 Biological Invasions 587 (2009) (speculating about their introduction to the eastern Barents Sea through ballast water).Google Scholar

21 See Hansen, supra note 19, at 39 (quoting 2013 biomass estimates of Barents Sea snow crab stock at 188,260 tons); see also Pettersen, supra note 20 (noting their exploding population in the colder waters of the Barents Sea).Google Scholar

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23 See, e.g., Bering Sea and Aleutian Islands (BSAI) Crab Fisheries, NOAA Fisheries, (last visited Mar. 3, 2017) (listing notices of overfished stock pertaining to snow crab (Chionoecetes opilio) and other stock in U.S. waters). In U.S. waters of the Bering Sea and Aleutian Islands, crab fisheries are managed by total allowable catch quotas established by a variety of agencies, including the Federal Fishery Management Plan, the State of Alaska, the National Marine Fishing Service and the North Pacific Fishery Management Council. See generally id. For information on snow crab management in Canada, the world's largest supplier, see Snow Crab, Fisheries and Oceans Canada, Government of Canada, (last visited Mar. 17, 2017).Google Scholar

24 Extensive bibliographic research on snow crab attest to their commercial value. See generally Paul, A.J., ed., Bibliography of Research on Snow Crab (Chionoecetes opilio) (2000) (containing 1,050 scientific entries on research published since 1995 on snow crabs in Japan, Russia, Canada, the United States, and other countries). Snow crabs are the second most valuable Canadian fishery export. See Fisheries and Oceans Canada, Government of Canada (date modified: Mar. 6, 2015), Hansen estimates the yearly landed value of snow crab may total NOK 7.5 billion. Hansen, supra note 19, at 38. Most of the world's snow crabs come from eastern Canada, followed by Russia. Alaska produces about ten percent of the world's supply, with market prices at record levels in the U.S. and Japan. See Welch, Laine, As Crab Prices Soar Across Alaska, McDonald's Tests New Snow Crab Sandwich, Alaska Daily News (Mar. 3, 2017), Scholar

25 Hansen, supra note 19, at 38 (“Norway has not yet established a management regime.”). See also EU krev krabbefiske, Nationen (Jan. 23, 2017), (quoting University of Oslo Professor Finn Arnesen (“Sn&;krabbe er ikkje blant produkta som er omfatta av E&;Savtalen, så sp&;rsmålet har ikkje noko i ESA å gjere.”)).Google Scholar

26 See Provisions for Prohibition of Snow Crab (Chionoecetes opilio) Catching, Ministry of Trade, Industry and Fisheries, LOV-2008-06-06-37-§ 16, LOV-1925-07-17-11-§ 4, LOV-1999-03-26-15-§ 20, art. 1. Entered into force Jan. 1, 2015 (official translation from Norwegian). The author thanks Harald Sakarias Br&;vig Hansen of the Fridtjof Nansen Institute for locating this reference.Google Scholar

27 See Harald Sakaris Br&;vig Hansen, EU krev krabbefiske, Nationen (Jan. 23, 2017), (noting: “Norske styresmakter har innf&;rt mellombels forbod mot fiske, til dei har fått på plass eit forvaltingsregime for sn&;krabben. Det er likevel opna for dispensasjon for til saman 50 norske fart&;y.”).Google Scholar

28 See Tiller, Rachel & Nyman, Elizabeth, The Clear and Present Danger to the Norwegian Sovereignty of the Svalbard Fisheries Protection Zone: Enter the Snow Crab, 137 Ocean & Costal Management 24, 24 (2017) (quoting Norwegian Foreign Ministry official, Bård Glad Pedersen). Art. 2(1) of the Continental Shelf Convention holds: “The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” Norway acceded to the Convention on September 9, 1971. See Law of the Sea, Status of Treaties, United Nations Treaty Collection, (last visited Mar. 17, 2017).Google Scholar

29 See supra note 26, art.3 (excepting Russian vessels from the prohibition “in the zone of Norwegian continental shelf 200 nautical miles from the Russian coast in the Barents Sea”).Google Scholar

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31 See Hansen, supra note 19, at 38 (noting the sedentary nature of the species). But cf., Richard Bailey, The Atlantic Snow Crab, Underwater World 2, 4 (Dep't. Fisheries & Oceans, Government of Canada, 1981) (noting that tagging experiments indicated that the snow crab “is not at all a sedentary species”).Google Scholar

32 See Tiller & Nyman, supra note 28, at 28 (noting the sedentary species classification of crabs, lobsters, and scallops constitute a “contentious and … gray area”).Google Scholar

33 Harald Sakarias Br&;vig Hansen, EU and Norway in Heated Conflict over Svalbard Snow Crab, Fridtjof Nansen Institute (Jan. 25, 2017), Scholar

34 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].Google Scholar

35 Id. at art. 77.Google Scholar

36 Atle Staalesen, Norway Takes Tough Line Against EU in Svalbard Waters, Barents Observer (Jan. 25, 2017), (quoting the Norwegian Fisheries Minister, Sandberg).Google Scholar

37 Offshore oil and gas production in the Barents Sea began in the early 1980s with Norway's Sn&;hvit field. By 2016, four billion barrels of oil equivalent (BBOe) had been discovered in undisputed Norwegian sectors and 130 wildcat and appraisal wells had been drilled. Predictions indicate that Barents Sea oil production will “grow considerably,” with annual investments for Barents Sea concessions surpassing eight billion dollars annually. See Erlingsen, Espen, Barents Sea: Norway's Emerging Oil Province, Offshore (Nov. 8, 2016), Norway opening up its 23rd licensing round for exploration projects an extension of this activity to the Northern and Eastern parts of the Barents Sea, close to the ice ridge. See Odd Jarl Borch et al., Maritime Activity in the High North – Current and Estimated Level up to 2025, MARPART Project Report 1, 5–6 (Nord Universitet Utredning nr. 7, 2016), Scholar

38 A Norwegian Foreign Ministry overview referred to the Barents Sea's undiscovered oil and gas potential as “huge,” possibly as much as 43% of undiscovered oil and gas resources. Norway's Arctic Policy 1, 7, Norwegian Ministry of Foreign Affairs (2014), Scholar

39 See infra Part C (I).Google Scholar

40 See Madsen, Per Anders, Norge og EU krangler om krabbefangst. Egentlig handler det om Svalbardtraktaten, Aftenposten (Feb. 4, 2017),–Per-Anders-Madsen-613953b.html (quoting Sandberg as saying: “Vi gir ikke bort en krabbe.”). Google Scholar

41 Council Regulation (EU) 2017/127 of 20 January 2017 fixing for 2017 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters, ¶ 35, See also Council Regulation Fixing for 2017 the Fishing Opportunities for Certain Fish Stocks and Groups of Fish Stocks, Applicable in Union Waters and, for Union Fishing Vessels, in Certain Non-Union Waters, Interinstitutional File: 2016/0344 (NLE) Brussels, Jan. 13, 2017, Council of the European Union, ¶ 35, (referencing the EU's Note Verbale to Norway (Oct. 25, 2016) contesting Norway's regulation of snow crab fishing around Svalbard and noting the non-discriminatory management rules of the Svalbard Treaty).Google Scholar

42 See Convention on the Continental Shelf arts 1,2, Apr. 29, 1958, 499 U.N.T.S. 7302, 312, (defining the term continental shelf as referring to the seabed and subsoil of the submarine areas adjacent to the coast and granting coastal states sovereign rights for the purpose of exploring it and exploiting its natural resources).Google Scholar

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44 See infra note 65 and accompanying text.Google Scholar

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46 On the rapid pace of Arctic environmental change, see Qinghua Ding et al., Influence of High-Latitude Atmospheric Circulation Changes on Summertime Arctic Sea Ice, 7 Nature Climate Change 1 (2017).Google Scholar

47 See Tiller, Rachael & Nyman, Elizabeth, Having the Cake and Eating it Too: To Manage or Own the Svalbard Fisheries Protection Zone, 60 Marine Pol'y 141, 141–42 (2015) (noting disturbances involving Norway's FPZ but also decades of de facto cooperation).Google Scholar

48 See Stephanie Pezard et al., Maintaining Arctic Cooperation with Russia ch. 3 (Rand Corporation, 2017) (examining maritime access issues due to changes in climate and ice melt in the Arctic).Google Scholar

49 See Øystein Jensen & Svein Vigeland Rottem, The Politics of Security and International Law in Norway's Arctic Waters, 46 Polar Rec. 75, 76 (2009) (noting polar regions were not primary interests in establishing the law of the sea).Google Scholar

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51 See Singh & Artemy, supra note 50, at 65 (noting Norwegian Wedel, Ambassador F.-Jarlberg's lobbying efforts at the Paris Peace Conference to secure for Norway sovereignty over Spitsbergen).Google Scholar

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54 See id. at 75–76 (framing Norwegian Arctic waters foreign policy in the geopolitics of Realpolitik); see also B&;rge Brende, Norway's Foreign Minister Travels to Russia to Assure Arctic Relations, Eye on the Arctic (Feb. 17, 2017), (reviewing incidences contributing to a deterioration in relations between the two countries since Russia's annexation of Crimea). Historically, Geir H&;nneland's 1998 empirical study of compliance in the FPZ concluded a “tacit agreement” characterized Norwegian-Russian management measures, with Russia ceding practical issues to the Norwegians while maintaining the appearance of outward opposition. See Geir H&;nneland, Compliance in the Fishery Protection Zone Around Svalbard, 29 Ocean Dev. & Int'l L. 339, 347 and 353 (1998).Google Scholar

55 Tarjei Kramviken, Dette er grunnene til at Norges Svalbard-politikk er så omstridt, Aftenposten (Feb. 2, 2017), (“Svalbard er Norges utenrikspolitiske akilleshæl.”).Google Scholar

56 See Jensen and Rottem, supra note 49, at 81. For an interesting study of shifting foreign policy relations between Denmark and Norway on policies toward the Svalbard area, shifting from supportive, to reserved, to confrontational, see Pedersen, infra, note 120.Google Scholar

57 See Minister of Foreign Affairs B&;rge Brende, Foreign Policy Address to the Storting 2016, Ministry of Foreign Affairs, (Mar. 1, 2016), (claiming Norway gives priority to the Arctic “to make sure [it] remains a region of cooperation.”); Norway's Arctic Policy for 2014 and Beyond – A Summary, Ministry of Foreign Affairs, (Oct. 11, 2014) (listing international cooperation in the Arctic as a priority area of its foreign policy).Google Scholar

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61 Id. at arts. 2–3.Google Scholar

62 Id. at art. 2 (“in the territories specified in Article 1 and in their territorial waters.”).Google Scholar

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64 See Land, Island and Maritime Frontier Dispute (El Sal. V. Hond.; Nicar. Intervening), Judgment, 1992 I.C.J. Rep. 351, 733, ¶ 11 (Sept. 11) (dissenting opinion of Judge Oda) (noting the limited legal divisions of the sea during the first part of the twentieth century but noting the idea of the historic bay arouse around 1910).Google Scholar

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66 On the problem of historical anachronism, see Skinner, Quentin, Meaning and Understanding in the History of Ideas, 8 History and Theory 3, 7 (1969).Google Scholar

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70 See Petroleum Dev. Ltd. v. Sheikh of Abu Dhabi, 18 I.L.R. 141 (1951).Google Scholar

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82 Svalbard Treaty, supra note 8, at art. 9 (requiring Norway not to create nor allow naval bases or fortifications, “which may never be used for warlike purposes”). For an assessment of the Treaty's demilitarization provision, see Koivurova, Timo & Holiencin, Filip, Demilitarisation and Neutralisation of Svalbard: How Has the Svalbard Regime Been Able to Meet the Changing Security Realities During Almost 100 Years of Existence?, 53 Polar Rec. (published online Jan. 25, 2017) Scholar

83 Svalbard Treaty, supra note 8, at art. 10 (“Until the recognition by the High Contracting Parties of a Russian Government shall permit Russia to adhere to the present Treaty, Russian nationals and companies shall enjoy the same rights as nationals of the High Contracting Parties”).Google Scholar

84 See A.N. Vylegzhanin & V.K. Zilanov, Spitsbergen: Legal Regime of Adjacent Marine Areas 1–2 (W.E. Butler ed. and trans., 2017) (referring to Spitsbergen as Grumant). When the Svalbard Treaty had been opened for signature in 1920, the Allied powers had adopted a policy of diplomatic non-recognition against Bolshevik Russia in retaliation for their early exit from World War I and later for expropriating western concession contracts. The Bolsheviks lost their representation at the 1919 Versailles Peace Conference because earlier, in 1918, they had signed a separate peace with Germany, the Brest-Litovsk Treaty, to pursue their socialism in one country policy and to tend exclusively to the unfolding civil war in Russia following the 1917 revolution. The Brest-Litovsk Treaty contained a pactum de contrahendum provision that meant to place Russia and Germany on equal footing in the future settlement of the status of Spitsbergen. Germany's defeat in the war nullified the Brest-Litovsk Treaty, forcing the Soviets in 1924 to recognize Norway's sovereignty in exchange for Norway's recognition of Soviet Russia. The special status conferred to Russian nationals and the possibility of joining the convention were Allied concessions made in recognition of the established Russian historical presence on Spitsbergen in the mining community of Barents, which has since also expanded to the settlement at Pyramiden. See Rossi, supra note 59, at 128–32.Google Scholar

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86 The classical exposition of absolute or indivisible sovereignty traces to Jean Bodin, Les Six livres de la Républic, I.VIII (1576) (“La souveraineté est la puissance absolue et perpétuelle d'une République”).Google Scholar

87 See, e.g., Lake, David A., Delegating Divisible Sovereignty: Sweeping a Conceptual Minefield, 2 Rev. Int'l Org. 219 (2007) (discussing the divisibility of sovereignty as distinct activities arising from delegating and pooling authority from within domestic political systems).Google Scholar

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89 See I E. de Vattel, Le Droit De Gens ou Principes de la loi Naturelle: Appliqués à la Conduit et aux Affaires des Nations et des Souverains 9 (with an Introduction by Albert de Lapradelle, 1916) [1758] (De cette Liberté & indépendance, is suit que c'est à châque Nation de juger de ce que sa conscience exige d'elle, de ce qu'elle peut ou ne peut pac, de ce qu'il lui convient ou ne lui convient pas de faire).Google Scholar

90 See Lansing, Robert, A Unique International Problem, 11 Am. J. Int'l L. 763, 764 (1917) (noting the extraordinary circumstance of Spitsbergen's settlement following the coal-rush and its lack of political administration).Google Scholar

91 See generally Nielsen, Fred K., The Solution of the Spitsbergen Question, 14 Am. J. Int'l 232 (1920) (discussing the history of the 1910, 1912, and 1914 Spitsbergen conferences).Google Scholar

92 J.H.W. Verzijl, IV International Law in Historical Perspective 269 (1971). Two draft treaties were put forth but no agreement was reached before the outbreak of World War I. See Wolf, supra note 69, at 7 (noting at the 1914 conference Germany and the U.S. insisted on participating in the future governance structure of Svalbard, but “[n]o agreement was reached before the outbreak of World War I”).Google Scholar

93 See generally Nielsen, supra note 91.Google Scholar

94 See Scott, James Brown, Arctic Exploration and International Law, 3 Am. J. Int'l L. 928, 941 (1909) (noting that the international conference initiated in 1910 regarding Spitzbergen attempted “to establish a system of administration, without, however, appropriating the islands to any one of the participating powers or changing the status as terra nullius.”).Google Scholar

95 See Avango, Dag, Svalbard Archaeology (2005), Scholar

96 D.H. Anderson, The Status Under International Law of the Maritime Areas Around Svalbard, 40 Ocean Dev. & Int'l L. 373, at 374–75 (2009).Google Scholar

97 Molenaar, supra note 10, at 53.Google Scholar

98 Cf. id. at 11 (noting the equitable provisions of the Treaty's preamble).Google Scholar

99 Vienna Convention on the Law of Treaties art. 31, Jan. 27, 1980, 1155 U.N.T.S. 331.Google Scholar

100 Robin Churchill & Geir Ulfstein, The Disputed Maritime Zones Around Svalbard, in Changes in the Arctic Environment and the Law of the Sea 551, 566 (Myron Nordquist et al. eds., 2010).Google Scholar

101 Lord Arnold McNair, The Law of Treaties 765 (Clarendon Press ed. 1961).Google Scholar

102 See id. (referring to the outcome as “absurd” and holding: “It is difficult to believe that this [result] could accord with the intention of contracting parties).Google Scholar

103 See Vienna Convention on the Law of Treaties, supra note 99.Google Scholar

104 Churchill and Ulfstein concluded it is “not possible to reach a clear-cut and unequivocal conclusion as to the geographical scope of the non-discriminatory right of all parties to the Svalbard Treaty to fish and mine in the waters around Svalbard.”). Churchill & Ulfstein, supra note 100, at 593.Google Scholar

105 Aegean Sea Continental Shelf (Gr. V. Turk.), Judgment, 1978 I.C.J. Rep. 3 (Dec. 19).Google Scholar

106 The text of the reservation (b) excluded from the procedures of the General Act “disputes concerning questions which by international law are solely within the domestic jurisdiction of Sates, and in particular disputes relating to the territorial status of Greece ….” See id. at ¶¶ 39, 48–49 (having “et, notamment” in the original French of the reservation). The basis of jurisdiction stemmed from application of Article 17 of the General Act of 1928 for the Pacific Settlement of International Disputes, which pertained to the ICJ's predecessor, the Permanent Court of International Justice, which was then read in conjunction with Articles 36 and 37 of the ICJ's Statute of the Court. See id. at ¶¶ 32–34.Google Scholar

107 See id. ¶¶ 77–80 (noting Greece's argument that the very idea of the continental shelf was wholly unknown in 1928 when the General Act was concluded, and in 1931, when Greece acceded to the Act).Google Scholar

108 Aegean Sea Continental Shelf, supra note 105, at 1 15. In the case of a non-appearing party, the Statute of the ICJ requires that the Court satisfies itself that it has jurisdiction. See Statute of the International Court of Justice, art. 53, Scholar

109 Aegean Sea Continental Shelf, supra note 105, at ¶ 43 (“In the view of the Court, [Turkey's invocation of reservation (b) in a] formal statement, made in response to a communication from the Court, must be considered as constituting an ‘enforcement’ of the reservation”).Google Scholar

110 See id. at ¶¶ 69–76 (contemplating the expression “territorial status” restrictively within the context of usages during the League of Nations period and in the General Act of 1928).Google Scholar

111 See id. at ¶ 77 (noting 1931 as the year of Greece's accession to the Act).Google Scholar

112 Id. at ¶ 75.Google Scholar

113 Id. at ¶ 76.Google Scholar

114 Id. at ¶ 79.Google Scholar

115 Id. at ¶ 77.Google Scholar

116 See id. at ¶ 79.Google Scholar

117 Id. at ¶ 80.Google Scholar

118 See Norway and EU Lock Claws in Crabbing Dispute, The Local (Norway) (Feb. 14, 2017), (quoting Geir Ulfstein: “No country is yet to support Norway's view on this matter”); see also Czarny, Ryszard M., The High North: Between Geography and Politics 118 (2015) (noting that no foreign country agrees with Norway's position on the maritime zone around Svalbard).Google Scholar

119 Czarny, supra note 118, at 139 (“Norway's allies emphasize that they do not support its claims (the case in point is the UK's diplomatic note) while the EU refrains from commenting on disputes between States which are not members of the Community, while the U.S. maintains strict neutrality”); see also Note Verbale (Mar. 11, 2006), reprinted in 78 Brit. Y.B. Int‘l L. 794 (2007) (informing that “[t]he United Kingdom considers that the Svalbard archipelago, including Bear Island, generates its own maritime zones, separate from those generated by other Norwegian territory…. It follows therefore that there is a continental shelf and an exclusive economic zone which pertain to Svalbard”); Torbj&;rn Pedersen, International Law and Politics in U.S. Policymaking: The United States and the Svalbard Dispute, 42 Ocean Dev. & Int‘l L. 120 (2011) (noting the U.S. is keeping its options open).Google Scholar

120 See Conley, Heather A., Lessons for the Arctic: Developing an International Normative Framework for a New Ocean, in History Lessons for the Arctic 1, 19–20 (Conley, Heather A. ed., 2016) (labeling Spain “the most persistent and vocal opponent of Norway's” FPZ, and noting the 1994 Hagangur II incident involving the Icelandic trawler's refusal to leave the FPZ); Torbj&;rn Pedersen, Denmark's Policies Toward the Svalbard Area, 40 Ocean Dev. & Int'l L. 319 (2009) (noting Denmark's shift toward a policy of confrontation with Norway). Other notable confrontations included the Kiel Case (Mar. 21, 2014),–577-a (involving a German vessel penalized by Norway for violating by-catch haddock regulations within Svalbard's FPZ; holding that the penalty did not violate non-discrimination provisions of the Svalbard Treaty); the detention of the Spanish vessels, Monte Meixueiro and Garoya Segundo in 2005,; and the Olazar and Olaberri (involving detention of Spanish trawlers in the FPZ; holding in favor of Norway). See Rachel Tiller & Susanne Therese Hansen, International Regime Analyses in the Northeast Atlantic, 3 J. Environ. Stud. Sci. 217, 221 (2013).Google Scholar

121 See, e.g., Kristian Åtland & Kristin Ven Bruusgaard, When Security Speech Acts Misfire: Russia and the Elektron Incident, 40 Security Dialogue 333 (2009) (involving the hot pursuit of the Russian trawler, Elektron, accused of illegally fishing in the FPZ, with two Norwegian coast guard inspectors aboard).Google Scholar

122 See Churchill & Ulfstein, supra note 100, at 564.Google Scholar

123 See Torbj&;rn Pedersen, The Dynamics of Svalbard Diplomacy, 19 Dipl. & Statecraft 237, 250 (2008).Google Scholar

124 See Torbj&;rn Pedersen, International Law and Politics in U.S. Policymaking: The United States and the Svalbard Dispute, 42 OCEAN DEV. & INT'L L. 120, 131 (2011).Google Scholar

125 See Convention on the Continental Shelf, Status, United Nations Treaty Collection, (Sept. 9, 1971), (recording that Norway ratified the treaty on Sept. 9, 1971).Google Scholar

126 See Skagestad, Odd Gunnar, De Norske Besittelser i Nord-Ishavet: En Sikkerhetspolitisk Analyse (Utarbeidet i 1971 på oppdrag av E-staben (Dorsvarets Overkommando (declassified on May 27, 2004), (relating to the first of two important initiatives undertaken in 1970: “Det ene gjaldt å forhandle med SSSR for å få fastlagt grenselinjen mellom de to lands kontinentalsokler”).Google Scholar

127 See id. at 25 (noting “[the second initiative] fra norsk side var at myndighetene våren 1970 fastsatte en sj&;territorialgranse på 4 n. mil for Svalbard.”).Google Scholar

128 Royal Decree of Sept. 25, 1970 Concerning the Delimitation of the Territorial Waters of Parts of Svalbard, Scholar

129 Id. Google Scholar

130 See Anderson, supra note 96, at 376 (noting “[i]n 1920, Norway claimed [four] nautical miles of territorial sea”).Google Scholar

131 See id. (noting because of the employment of strait baseline the 1920 Treaty “must now be interpreted as applying … not as it was, but rather as it is today”). UNCLOS values the use of straight baselines but limits their application other than from measuring the breadth of the territorial sea using the low-water line (art. 5) to localities where the coastline is deeply indented or if a fringe of islands exists in the immediate vicinity along the coast (art. 7). The I.C.J. has affirmed that employment of the method of straight baselines is an exception to the normal rule and is contingent on circumstances enumerated above and must be applied restrictively. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgement, 2001 I.C.J. Rep. 40, ¶ 212 (Mar. 16).Google Scholar

132 See Skagestad, supra note 126, at 25 (“Formålet med fastsettelsen av 4 mils-grensen for Svalbards sj&;territorium var åpenbart å legge det formelle grunnlaget for et eventuelt krav om uinnskrenket norsk råderett over havbunnen såvel fra Nordkapp til Svalbard som omkring Svalbard, bortsett fra de områder som faller innenfor den nevnte 4 mils-grense, og som blir å omfatte av Svalbardtraktatens bestemmelser”).Google Scholar

133 Id. at 26 (“I korthet kan man altså si at det ser ut som om Norge satser på et h&;yt spill hvor målet er det dobbelte: (1) Norsk kontroll over kontinentalsokkelen nord for Norge og omkring Svalbard, og (2) en avtalefestet og for Norge gunstig avgrensning av det norske sokkelområdet mot &;st”) (footnote omitted).Google Scholar

134 Act No. 57 Relating to Norway's Territorial Waters and Contiguous Zone, 27 June 2003, 54 Law of the Sea Bulletin 97 (2004), For maps of Norway's extension of Svalbard's territorial sea—except Bj&;rn&;ya—see id. at 94–95.Google Scholar

135 Id. at 97.Google Scholar

136 Robert Beckman, The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea, 107 Am. J. Int'l L. 142, 149 (2013).Google Scholar

137 See Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment, 2012 I.C.J. Rep. 1, ¶ 140 (Nov. 19); Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangl. v. Myan.), I.T.L.O.S. Case No. 16, ¶ 185 (Mar. 12, 2012); Maritime Delimitation in the Black Sea (Rom. v. Ukr.), Judgment, 2009 I.C.J. Rep. 40, ¶ 77 (Feb. 3); North Sea Continental Shelf Cases (F.R.G. v. Den., F.R.G. v. Neth.), Judgement, 1969 I.C.J. Rep. 30, ¶ 39 (Feb. 20); Aegean Sea Continental Shelf Case, supra note 105, at 36. For doctrinal exposition, see Jia, Bing Bing, The Principle of the Domination of the Land Over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges, Ger. Y.B. Int'l L. 1 (2014); and Lea Brilmayer, Land and Sea: Two Sovereignty Regimes In Search of a Common Denominator, 33 N.Y.U J. Int'l L. & Pol. 203 (2000–01).Google Scholar

138 See generally Kent, H.S.K., Historical Origins of the Three-Mile Limit, 48 Am. J. Int'l L. 537 (1954) (on Danish-Norwegian, later Swedish, and Dutch claims to sea space that a sovereign could command with a cannon from shore, later enshrined in doctrinal form by Cornelius van Bynkershoek).Google Scholar

139 Proclamation No. 2667, Sept. 28, 1945, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 13 Dep't St. Bull. 485 (1945). A second proclamation (No. 2668) issued the same day related to the establishment of a conservation and fishery protection resource zone contiguous to the coasts of the U.S. See id. at 486 (Proclamation No. 2688, Sept. 28, 1945, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas).Google Scholar

140 See Royal Decree of May 31, 1963 Relating to the Sovereignty of Norway over the Sea-Bed and Subsoil outside the Norwegian Coast,; Act of June 21, 1963 Relating to Exploration and Exploitation of Submarine Natural Resources, Scholar

141 See Royal Decree of Apr. 9, 1965 Relating to Exploration for the Exploitation of Petroleum Deposits in the Sea-Bed and its Subsoil on the Norwegian Continental Shelf, Scholar

142 See Royal Decree of Jan. 31, 1969 Establishing Rules Relating to Scientific Research for Natural Resources on the Norwegian Continental Shelf, etc., Scholar

143 See Royal Decree of June 21, 1970 Establishing Provisional Rules Concerning Exploration for Certain Submarine Natural Resources other than Petroleum on the Norwegian Continental Shelf, etc., Scholar

144 North Sea Continental Shelf Cases (Ger./Den.; Ger./Neth.), Judgement, 1969 I.C.J. Rep. 3, ¶ 19 (Feb. 20); Aegean Sea Continental Shelf Case, supra note 105, at ¶ 86.Google Scholar

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146 See Anderson, supra note 96, at 377.Google Scholar

147 See Molenaar, supra note 10, at 14 (quoting Norway's Director-General of Legal Affairs in its Ministry of Foreign Affairs, Rolf Einar Fife's article, Svalbard and the Surrounding Maritime Areas, in High North Study Tour 18–26: “[I]n accordance with established international law, the notion of the continental shelf cannot be assimilated to the concept of territory of a State”).Google Scholar

148 Anderson, supra note 96, at 377.Google Scholar

149 See H&;nneland, supra note 54, at 341 (noting adoption of the EEZ principle at the beginning of UNCLOS III meetings in 1975); Pedersen, supra note 120, at 323 (noting UNCLOS III's embrace of the concept of a 200-nautical-mile zone was “firmly established” by 1975).Google Scholar

150 See Pedersen, supra note 120, at 323 (noting UNCLOS III's embrace of the concept of a 200-nautical-mile zone was “firmly established” by 1975).Google Scholar

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152 See Yerkes, Andrew, Whose Fish? Looking at Svalbard's Fisheries Protection Zone, Polar Connection (Dec. 4, 2016), (noting NATO member reservations, including the U.S., U.K., France, and West Germany, and Warsaw Pact reservations to Norway's unilateral extension of a maritime zone adjacent to Svalbard in 1977); see also H&;nneland, supra note 54, at 342 (noting Norway refrained from claiming an EEZ around Svalbard due to protests from other Svalbard Treaty signatories).Google Scholar

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154 See Petersen, supra note 120, at 323.Google Scholar

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156 Hansen, supra note 19, at 41 (noting Norway's non-discriminatory management practice for FPZ fishing, its claim of a legal right to restrict that practice, as well as the general compliance relating to Norwegian management practices in the FPZ). Within the zone, Norway's managerial practice has included total allowable catch restrictions, declarations on areas off limits, regulations on mesh size, reporting requirements, and record keeping. See Churchill, Polar Peculiarity, supra note 153, at 118.Google Scholar

157 See also Robin Churchill & Geir Ulfstein: Marine Management in Disputed Areas: The Case of the Barents Sea 101 (1992) (noting Norway's creation of the FPZ intended to signal its right to establish an EEZ without provoking confrontation with other states). See generally Tiller & Nyman, supra note 47, at 141 (noting Norway's FPZ straddles a contradiction between stable, unofficial cooperation with Russia and the potential for conflict caused by that association).Google Scholar

158 See Kazianis, Harry, China's Expanding Cabbage Strategy, The Diplomat (Oct. 29, 2013),; Beckman, supra note 58 (noting China's deliberately ambiguous approach).Google Scholar

159 See Tiller & Nyman, supra note 157, at 143 (discussing Norway's adaptive institutional trajectory for converting the FPZ into a Norwegian property regime depending on political winds).Google Scholar

160 See Conley, supra note 113, at 19 (noting something of an informal “consensus” among the U.S., U.K., West Germany, and France).Google Scholar

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162 See DPRK Accedes to Svalbard Treaty, Korea Central News Agency (Jan. 30, 2016), (announcing the Democratic People's Republic of Korea (DPRK)'s accession to the Svalbard Treaty on Jan. 25, 2016).Google Scholar

163 See Churchill & Ulfstein, supra note 100, at 561 (noting an EEZ must be explicitly proclaimed, although not directly stated in UNCLOS).Google Scholar

164 See UNCLOS, supra note 34, at arts. 48 & 121.Google Scholar

165 Agreement between the Government of the Kingdom of Norway on the one hand, and the Government of the Kingdom of Denmark together with the Home rule Government of Greenland on the other hand, concerning the delimitation of the continental shelf and the fisheries zones in the area between Greenland and Svalbard (with chart), Feb. 20, 2006, 2378 U.N.T.S. 21, entered into force June 2, 2006.Google Scholar

166 Id. at art. 1 (determining the boundary “on the basis of the median line between relevant coastlines of Greenland and Svalbard”); see also Anderson, supra note 96, at 377 (“The boundary agreement … between Denmark (Greenland) and Norway (Svalbard) appears to be based on the method of equidistance between the nearest basepoints in Greenland and Svalbard”).Google Scholar

167 See Churchill & Ulfstein, supra note 100, at 567 (“It is difficult to see how Svalbard can provide basepoints for determining an equidistance line if it does not have a continental shelf”).Google Scholar

168 See Rozhnov, Konstantin, Norway and Russia “Open Up for Business” in the Barents Sea, BBC NEWS (Sep. 15, 2010), (detailing the agreement).Google Scholar

169 See Anderson, supra note 96, at 377 (concluding the basepoints Norway employed to close the Loophole lay off eastern Svalbard).Google Scholar

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172 Done in accordance with UNCLOS, supra note 34, at art. 76 (8).Google Scholar

173 The other two claims extended into the Loophole region of the Barents Sea and the Banana Hole in the Norwegian Sea. See Commission on the Limits of the Continental Shelf (CLCS): Outer Limits of the Continental Shelf Beyond 200 Nautical Miles from the baselines: Submissions to the Commission: Submission by the Kingdom of Norway, Oceans & Law of the Sea, United Nations (Nov. 27, 2006), [updated Aug. 20, 2009].Google Scholar

174 See Verbale, Note, Permanent Mission of Norway to the United Nations, Mar., 28, 2007, (referring to the note dated Mar. 3, 2007 from Spain, maintaining that issues pertaining to certain provisions of the 1920 Treaty “do not affect in any manner the interpretation or application of the rules contained in article 76 of the Convention nor its Annex II, and have no bearing on the work of the Commission”).Google Scholar

175 The Continental Shelf- Questions and Answers, Utenriksdepartementet,, supra note 74.Google Scholar

176 Churchill & Ulfstein, supra note 100, at 567.Google Scholar

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178 See id. at 568.Google Scholar

179 See Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Norway in Respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006, Commission on the Limits of the Continental Shelf 1, 15–16 (Mar. 27, 2009) (recommending that Norway proceed to establish the outer limits of the continental shelf“ from certain fixed points of the Western Nansen Basin area).Google Scholar

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182 See The Continental Shelf – Questions and Answers, Utenriksdepartementet,, supra note 74 (holding “[t]his information is submitted to [the CLCS], which has to give its approval. Only then can the coastal state establish the outer limits of its continental shelf with final and binding effect.”).Google Scholar

183 See UNCLOS, supra note 34, at Part IV, Art. 76 (8)Google Scholar

184 See Commission on the Limits of the Continental Shelf (CLCS): Purpose, Functions and Sessions, Oceans & Law of the Sea, United Nations, (last visited Mar. 28, 2017) (detailing the purpose and function of the CLCS).Google Scholar

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187 Russia negotiated a provision on Spitsbergen in the 1918 Brest-Litovsk Treaty, when it signed a separate peace with Germany. It expected to be placed on equal footing with Germany in any future disposition on the status of the archipelago. Norway was requested to host such a conference “as soon as possible.” See Peace Treaty of Brest Litovsk art. 33, Apr. 30, 1918, available at The Avalon Project, No element of this provision survived Germany's defeat in World War I, but Russia's efforts to be place on an equal footing with Norway has created tensions. Soviet Foreign Minister Vyacheslav Molotov suggested in the 1940s that the Treaty be thrown in the trash can and that Russia and Norway administer the archipelago. See Pedersen, supra note 123, at 237.Google Scholar

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189 See Hyman, Randall, Arctic Treaty Nears 100 in Heated Climate, The Alicia Patterson Foundation (2015).Google Scholar

190 See Pettersen, Trude, Russia Protests Drilling in Svalbard Zone, Barents Observer (May 5, 2015), (noting Russia's diplomatic protest of Norway's decision during the 23rd licensing round to open up three blocks for oil drilling in disputed waters near the Arctic archipelago).Google Scholar

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193 See Lund, Erik, When Dmitry Rogozin Speaks, People Worry, Arctic J. (May 7, 2015), (quoting Rogozin's reference to Crimea's annexation on his unannounced visit to Svalbard).Google Scholar

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195 See id. (referencing Baev's claim that present-day Russia possesses neither the finances nor technology to exploit the riches in Arctic waters).Google Scholar

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199 See, e.g., Conley, Heather A. & Matthew Melino, An Arctic Redesign: Recommendations to Rejuvenate the Arctic Council, CSIS (Feb. 2016),; Andreas von Uexküll Institutional Reform of the Arctic Council, Regeringskansliet, Ministry of Foreign Affairs Sweden, (presenting ideas to strengthen the capacity of the Arctic Council).Google Scholar

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201 See, e.g., Inuit Circumpolar Council Canada, (representing 160,000 Inuit of Alaska, Canada, Greenland, and Chukotka (Russia) in matters of their circumpolar homeland).Google Scholar

202 The United States Coast Guard Office of Waterways and Ocean Policy began charting worldwide icebreaker production in 2010, listing seventeen countries with vessels and seventeen more planned or under construction. Countries with icebreakers include: Russia, Sweden, Finland, Canada, USA, Denmark, China, Argentina, Australia, Chile Estonia, Germany, Japan, South Korea, South Africa, Latvia, and Norway. See Major Icebreakers of the World, USCG, (charting the global fleet of major icebreakers).Google Scholar

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