From Seal Ban to Svalbard - The European Parliament Engages in Arctic Matters

Russia and Norway have signed a treaty on the sea borders and on cooperation in the Barents Sea. Photo: President of Russia

As the European Parliament (EP) is set to pass a resolution on the Arctic in its next plenary session on Wednesday March 12, and a Council conclusion on the issue is scheduled for May,¹⁾This is, however, the tentative agenda, which might be changed as it has already been done so multiple times before. the Arctic continues to be on the EU’s policy agenda.

In its recent plenary in February, Members of the European Parliament (MEPs) discussed several questions posted concerning the legality of the Norwegian interpretation of the Svalbard Treaty, enquiring whether the EU (and its Commission) accepts the Fisheries Protection Zone (FPZ) surrounding the archipelago. This is not the first time a MEP has engaged in that particular issue, as former Vice President of the EP Diana Wallis already sparked a debate on the Treaty and its interpretation back in 2011.

The questions this time around were not primarily focused on the Arctic per se, but instead on fishing rights and potential losses for EU-fishermen in a specific Norwegian Arctic area. The issue itself cannot be separated from larger Arctic geopolitics, however, as the Archipelago of Svalbard and its particular international legal arrangement is an essential component thereof. As such, it also intertwines with the EU’s attempt to develop a coherent and comprehensive policy for the Arctic region. With three months to go before the EP elections are held in May, and with the EU’s status as an Arctic Council (AC) observer still pending, one can ask why this topic has now re-surfaced on the EU’s policy table.

The recent discussion in the European Parliament

The Polish MEP Jarosław Leszek Wałęsa, on behalf of the EP’s Fisheries Committee (PECH), directed questions to Maria Damanaki, the EU’s Commissioner for Maritime Affairs and Fisheries. The questions reflect a fear of losing rights to the fishery resources around Svalbard, as sections of its Fisheries Protection Zone (FPZ) were ceded to the Russian Federation as part of the 2010 delimitation treaty establishing the maritime border between Norway and Russia in the Barents Sea.²⁾Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, Murmansk 15 September 2010.

As Wałęsa formulated it in two of his five written questions:

• Does the Commission believe that the Member States which are party to the 1920 Spitsbergen Treaty enjoy equal fishing rights in the Svalbard FPZ?
• If EU fishermen have lost their right to fish in the Svalbard FPZ east of the Murmansk line, will the Commission consider claims for compensation?

Other MEPs expressed similar positions. Most notably Carmen Fraga Estévez from Spain argued that many EU member states believe that Norway’s interpretation of the Paris Treaty [the Svalbard Treaty] is against international law. Similarly, Maria do Céu Patrão Neves from Portugal expressed a need for the Commission to be firm against Norway and Russia in this matter.

As stated by the Commissioner present, Janez Potočnik, this is a sensitive issue involving one of the EU’s most important partners (Norway) in terms of both Arctic and fisheries issues. The related coverage in Norwegian media already serves as a prime example highlighting this particular addressed sensitivity.³⁾See for example: Eva Aalberg Undheim (2014). Såg ikkje grunn til kritikk mot Noreg. Nationen.no, 1 March 2014 or Terje Jensen (2014). Stiller spørsmål ved norsk suverenitet i Vernesonen. Fiskeribladetfiskaren, 3 March 2014. In his statement, Potočnik followed a consistent line of argumentation drawing on previous Commission statements on that topic. He highlighted and consequently re-stated a Commission’s 2011 Note Verbales to Norway and its remark that the EU accepts Norway’s practice of the FPZ on the conditions that it is enforced in a non-discriminatory manner and respected by all interested parties.

The Legal Status of Svalbard and its Fisheries Protection Zone

The Svalbard Treaty,⁴⁾In Norwegian: Traktat mellem Norge, Amerikas Forente Stater, Danmark, Frankrike, Italia, Japan, Nederlandene, Storbritannia og Irland og de britiske oversjøiske besiddelser og Sverige angående Spitsbergen [Svalbardtraktaten]. Today 42 states are participants to the Treaty, 20 of them Member States of the European Union. which was signed 9 February 1920, is a unique combination of sovereignty, internationalization and demilitarization.⁵⁾Clive Archer & David Scrivener (1983). Frozen frontiers and resource wrangles: conflict and cooperation in Northern waters. International Affairs, Vol. 59, Issue 1. Pp. 59 – 76. Coming into force in 1925, the Treaty and its Article 1 respectively, confers the “full and absolute” sovereignty over – the former terra nullius – Archipelago of Spitsbergen/Svalbard⁶⁾Spitsbergen is the largest island of (the district of) Svalbard. The Norwegian Svalbard Act, Article 1 (Lov om Svalbard, 1925) constitutes Svalbard as part of the Kingdom of Norway and delineates, based on the Svalbard Treaty, its range from range from 74° to 81° north latitude, and from 10° to 35° east longitude. to the Kingdom of Norway. However, understood as a diplomatic package deal, the Treaty stipulates that the Norwegian sovereignty is subject to certain conditions, explicitly outlined in the Articles 2 to 9. In particular Article 2 and 3 specify the right of access for maritime, industrial, mining and commercial operations for nationals of all the contracting parties to the territory of Svalbard and its territorial waters. Yet, as the Svalbard Treaty is a pre-UNCLOS (United Nations Convention on the Law of the Sea) settlement, it remains inconclusive if the Treaty applies to maritime areas initially stipulated in UNCLOS, namely the Exclusive Economic Zone (EEZ) and the continental shelf.⁷⁾However, already the Convention on the Continental Shelf (signed in 1958, entered into force in 1964) establishes the rights of a sovereign state over its continental shelf. However, it is UNCLOS (signed in 1982, entered into force in 1994), that defines the sea warded delimitation of the continental shelf. The Treaty’s wording indicates that it only applies to the territory and the respective adjacent territorial waters of Svalbard. Both legal concepts – the EEZ and the continental shelf – did not exist in 1920/1925 and are consequently not (explicitly) referred to in the Treaty.

Therefore, the terminologically simple, but politically, legally and diplomatically difficult, question is: Do the stipulated rules of equal treatment – “absolute equality” (Article 3) – apply to these post-1982 maritime areas or not?⁸⁾Concerning Svalbard’s controversial (maritime) legal status, see David Anderson (2009). The Status Under International Law of the Maritime Areas Around Svalbard. Ocean Development & International Law, Vol. 40, Issue 4. Pp. 373-384 and Geir Ulfstein (1995). The Svalbard Treaty. From Terra Nullius to Norwegian Sovereignty, Oslo.

The Norwegian perception is rather clear – it does not. A few other states, including the Russian Federation, Iceland, Spain, Portugal or the United Kingdom, however, have at least contested part of the Norwegian interpretation, especially with regard to the legality of Norwegian enforcement jurisdiction in the FPZ.⁹⁾See for example: Brit Fløistad (2008). Controversy over the Legal Regime outside Svalbard’s Territorial Waters. Focus North 6-2008, Den Norske Atlanterhavs Komite or Erik J. Molenaar (2012). Fisheries Regulation in the Maritime Zones of Svalbard. The International Journal of Marine and Coastal Law, Vol. 27. Pp. 3 – 58. In a report to the Norwegian Storting, the Norwegian Ministry of Foreign Affairs recognizes the different views of the geographical scope of the Treaty but simultaneously clarifies its position that the country has always interpreted the Treaty as only applying to the archipelago and its territorial waters.¹⁰⁾Norwegian Ministry of Foreign Affairs (2005). Opportunities and Challenges in the North. Report No. 30 (2004-2005) to the Storting Based on that legal perception Norway did not introduce an EEZ but, in 1977, the now again discussed non-discriminatory FPZ, a 200 nautical mile zone of fisheries jurisdiction around the archipelago. This was intended to ensure the protection and management of the waters’ living resources. However, the indication “non-discriminatory” does only refer to fishing rights for vessels from contracting parties based on their traditional/historical fishing in the discussed area.

It is important to note that the EU is not party to the Treaty but has, based on the principle of “conferral of competence”,¹¹⁾Treaty on European Union (TEU), Article 5 certain exclusive¹²⁾For example, the conservation of marine biological resources under the common fisheries policy, Treaty on the Functioning of the European Union (TFEU), Article 3 and shared (with its Member States) competences with regard to Svalbard (and its maritime areas). Since the FPZ’s establishment, the Commission has issued several Note Verbales to Norway, mainly in response to incidents involving fishing vessels flying the flag of an EU Member State.¹³⁾Erik J. Molenaar (2012). Fisheries Regulation in the Maritime Zones of Svalbard. The International Journal of Marine and Coastal Law, Vol. 27. Pp. 3 – 58, p. 22f. The aforementioned 2011 Note Verbales, however, stipulates that the EU conditionally accepts the fishery regulations proposed by Norway if these are applied in a non-discriminatory manner, based on scientific advice and respected by all interested Parties (to the Treaty).¹⁴⁾Erik J. Molenaar (2012). Fisheries Regulation in the Maritime Zones of Svalbard. The International Journal of Marine and Coastal Law, Vol. 27. Pp. 3 – 58, p. 26. Neither the Note Verbales nor Commissioner Potočnik explicitly referred to the issue of Norwegian enforcement jurisdiction in the FPZ.

The EU, the Arctic and European Fisheries

Although the questions brought forward in the EP were not of an Arctic character, and rather focused essentially on fishing rights and potential economic losses, it again exemplifies that the Arctic cannot be perceived as one policy area in itself, but rather as a complex web of different policy fields ranging from fisheries to environment to non-living resources and local development. The EU itself, more specifically the European External Action Service and the Commission, has tried to gather all these threads related to different EU-policies in its 2008 and 2012 communications, envisaging a coherent and comprehensive EU policy for the Arctic – a process that is still underway and has consistently been discussed by members of The Arctic Institute in various articles.

The present case further indicates that the EU has to be analysed as an international actor with many, often varying voices. The opinion of one institutional voice does not necessarily or automatically need to reflect the position of another. The debate and the questions posed in the EP highlight a certain lack of regional-related knowledge, or at least misunderstanding. However, they can also be understood as particular national economic interests amongst MEPs in the light of their bid for votes in the upcoming elections to the EP.

Yet, several questions stand out: How can the Commission participate in a bilateral committee, the Joint Norwegian-Russian Fisheries Commission, which actually lies outside the EU’s legal and geographic competences? Why are MEPs using the term “Murmansk line,” a term not used in any specifically related political and scientific discussions? And why ask if “EU fishermen have lost their right to fish in the Svalbard FPZ east of the Murmansk line,” as quotas for the Barents Sea are allocated to third countries regardless of any particular zone but for the entire Barents (and Norwegian) Sea?

Drawing the attention to one of these particular EU-Arctic policy subfields, namely fisheries, the recently reformed EU Common Fisheries Policy (CFP) and its related consequences is of utmost importance. The struggle around the CFP has been long and tedious with the goal of improving what often has been the most prominent example of a failed EU policy.¹⁵⁾See for example: Tim Daw & Tim Gray (2005). Fisheries science and sustainability in international policy: a study of failure in the European Union’s Common Fisheries Policy. Marine Policy, Vol. 29, Issue 3. Pp. 189 – 197 or Setareh Khalilian & et. al. (2010). Designed for failure: A critique of the Common Fisheries Policy of the European Union. Marine Policy. Vol. 34, Issue 6. Pp. 1178–1182. Its recent reform has been branded as a victory for environmentalists, although it still has a long way to go in enforcing the discharge ban in the most troublesome areas of the Mediterranean Sea. Yet, a large part of the fish stocks in EU-waters might not return to a sustainable or harvestable level, due to prior excessive fishing and a lack of regulation.¹⁶⁾See for example: Karl Mathiesen (2013). Can new EU legislation protect fish stocks. TheGuardian.com, 17 December 2013 In the Barents Sea, however, the situation is notably different. After decades of joint management of the existing stocks with Russia, the quotas and the yield of cod particularly have reached record levels in 2012 and 2013.¹⁷⁾McBride, M. M., Filin, A., Titov, O., and Stiansen, J. E. (Eds.) 2014. IMR/PINRO update of the “Joint Norwegian-Russian environmental status report on the Barents Sea Ecosystem” giving the current situation for climate, phytoplankton, zooplankton, fish, and fisheries during 2012-13. IMR/PINRO Joint Report Series 2014(1), 64 pp. ISSN 1502-8828. This is related partly to a sustainable management regime, in addition to warmer waters and stocks moving north- and eastwards.¹⁸⁾Research Council of Norway (2010). Currents influence fish stocks: More cod in the Barents Sea. ScienceDaily, 5 May 2010.

Conclusion

As we are nearing the European election to the EP in May, MEPs are getting more active in articulating the concerns of their constituents. With the new, relatively restrictive reform of the EU’s Common Fisheries Policy just in place, and generally high unemployment amongst European fishermen, concerns over the EU “losing out” of potential access in the FPZ around Svalbard are (politically and economically) comprehensible. As this article points out, however, the EU at large (through its Member States that are signatories to the Svalbard Treaty) seems to have chosen to adhere to the protection zone and the Norwegian jurisdiction it implies. This issue ties in with the larger overarching aspiration of the EU to be perceived as a sensible and responsible Arctic actor, whether through its still pending observer status in the Arctic Council, or via its relationship with relevant European Arctic states. With the conflict concerning the ban on seal products from 2009 still unresolved, the European Commission seems to understand the complexities of foreign policy mixed with national resource management based on issues of national sovereignty, and what devastating effect such apparently small issues might have on the EU’s wider Arctic engagement. It will be interesting to observe if the Commission’s and the EP’s or part of its MEPs perspective/approach in this matter will converge or not.