Eleven Supreme Court judges – that's six more than usual – have been summoned to rule on a criminal case between a Latvian crabber and the Norwegian authorities who seized his vessel in Arctic waters off the country's north. At stake is the risk of a legal precedent that threatens Norway's exclusive right to untapped oil and gas deposits that may lie beneath the seabed.
The area in question is the Svalbard archipelago, which lies between mainland Norway and the North Pole. Long known for Arctic foxes, polar bears and reindeer, these days the islands have found fame as the adopted home of the snow crab, a more recent arrival – and a controversial one. It’s unclear exactly why the species suddenly marched itself westwards from Russia and set up sticks in the sought-after sands of Svalbard, but the crabs are certainly making their presence felt.
Snow crab meat (the skinny legs offer the tastiest bits, in case you’re wondering) is a delicacy in parts of the world, with live crabs fetching an average 24 euro per kilo – although you won’t find snow crab on the menu in Norway just yet.
The EU has been eagerly looking to shore up access to Svalbard, but its vessels were banned when Oslo moved to regulate the catch in 2014. The country then gave a small number of its own vessels the exclusive right to exploit the crabs and give the industry a kick-start. It appears that, for a while at least, the rivalry bubbled along in the background, causing a minimum of fuss, until the EU Council of Fisheries Ministers went ahead and issued their own licences to fish for snow crab in the waters off Svalbard.
Norway was swift to respond and – to the surprise of many – seized an EU ship: a Lithuanian-flagged vessel belonging to Latvian fisherman Peteris Pildegovics. That was in 2017. Fast-forward to today, and that very fisherman is taking on Norway in its own Supreme Court – despite having lost an earlier ruling in a lower court that upheld Oslo’s right to convict him of illegal fishing. But Pildegovics isn’t having any of it. He says Norway was fully aware of his activities, and he wants to see his legal right to fish for Svalbard snow crab reinstated.
Snow crabs a proxy for oil
Europeche is a lobby group representing some 45,000 EU fishing vessels. Managing director Daniel Voces told RFI the case is a clear proxy for oil, and it’s become highly politicised as a result. He says this isn’t simply about who has the right to fish but, more crucially, who has the right to extract valuable resources from the bottom of the sea.
“We know the Norwegian government is applying a lot of pressure in order to secure a successful outcome that fits with their own interests. For example, they appointed a prosecutor from the Norwegian prime minister’s cabinet, so we see the government in Norway trying to influence the outcome of this process,” Voces says.
At the centre of the dispute is a hundred-year-old treaty, signed in Paris, which Norway claims gives it full sovereignty over the continental shelf around the Svalbard archipelago. However, the treaty also stipulates that all signatory nations – which include France, Britain, Italy, Denmark, the US and India – are entitled to “enjoy equally” the rights to the resources in Svalbard and its territorial waters.
Norway has chosen to read the treaty very literally, says Rachel Tiller, a research scientist at the Norwegian think tank SINTEF Ocean. This means the territorial waters only extend to within 12 nautical miles from the Svalbard shore. So, in the no-fishing zone beyond this, where the EU wants access to snow crabs, the rule of equal treatment does not apply.
“Norway acknowledges that it has to treat all of the signatories to the treaty equally. It’s saying ‘that’s not a problem – within the 12 nautical miles’,” according to Tiller. “The issue with the snow crab is that they’re on the bottom of the ocean, on the continental shelf.”
A question of science and of law
And therein lies the crux of the matter. The Supreme Court judges will need to decide if the snow crab is indeed a sedentary species living on the seabed – and therefore a resource belonging to the continental shelf – or if it’s a fish under the law of the sea convention. This determination stands to have a knock-on effect, with potential oil and gas reserves subject to the same regulations. So how equipped are the judges to rule on this point?
“I would assume the judges are going to base this decision on both science and on earlier verdicts on the issue,” Tiller told RFI. “A previous case in Canada established the snow crab as a sedentary species and, after this, Norway changed its narrative. Sedentary species are considered on par with oil and gas, so obviously Norway would want this to be a sedentary species.”
Despite all the bickering, one point the EU and Norway do agree on is the snow crab industry’s enormous economic potential. When Russia closed its continental shelf to foreign crab fishing, the question of who owns what took on greater urgency. Pildegovics, whose ship is still in the possession of Norwegian coastal authorities, puts his loss of income at some 20 million euros a year.
Oystein Jensen is a senior research fellow in law at the Fridtjof Nansen Institute, an independent foundation in Oslo that specialises in environmental, energy and resource management issues. He told RFI that, while there’s no doubt that only Norway – and not the EU – has the right to issue snow crab licences for Svalbard, the question of whether or not the crab is ‘sedentary’ is debatable.
“When the EU is issuing its own licences, it’s clearly a violation of the most basic parts of the law of the sea – and it violates the concept that the coastal state shall issue licenses and not anyone else,” Jensen says. “Norway has agreed to make laws in accordance with international law, but then it’s regulated the snow crab as a continental shelf resource. The question is whether that was correct or whether the snow crab is really a fish instead. If Norwegian authorities have gotten this wrong, then there will be no conviction.”
The Supreme Court will be hearing three days of arguments, and decisions are usually handed down fairly quickly. But with 11 judges assigned to this case instead of the usual five, Jensen says we might not have a ruling until the end of next week.
The result will either be a win for Oslo, or a win for Brussels – but there’s also the chance it won’t end here, especially given the failure of efforts to negotiate outside of the courts, says Voces, of Europeche.
“Everyone is waiting for the final outcome of this case. In the event it is favourable to Norway, I know the Latvian and other governments – as well as the industry – are considering mounting legal action against Norway before the International Court of Justice. We’d prefer to have a mutually beneficial agreement, but if the ruling goes against us, we’ll have to find another legal way to ensure our rights are respected.”