Professor Tore Henriksen Faculty of Law, University of Tromsø

1. “Safety in the North”, Alta 25-27 August 2010Svalbard’s Maritime ZonesThe (lack of) jurisdiction of Norway over foreign maritime activities in the waters off Svalbard Professor Tore Henriksen Faculty of Law, University of Tromsø

2. 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

3. Background:The melting of the sea ice Source: Institute of Marine Research

4. Background:Increased access: trans-Arctic shipping and destinational shipping Source: NATO Parliamentary Assembly: www.nato-pa.int/default.asp?SHORTCUT=2082

5. 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

6. 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)

7. 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

8. 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 discriminationbased 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

9. Existing maritime zones and exercise of jurisdiction

10. 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

11. 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

12. 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

13. 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)