Understanding the Ongoing Svalbard Dispute Through the Scope of the Snow Crab Issue

Abstract

Svalbard is a Norwegian archipelago which is situated between mainland Norway and the North pole. In 1920, the Svalbard Treaty conferred Norway sovereignty over the archipelago, with certain conditions in relation to the equal access of Parties to the Treaty attached. For the last few decades, a point of contention has arisen over the scope of application of the Svalbard Treaty. When the Svalbard Treaty was drafted, sovereignty extended to the territorial sea only. With the advent of new maritime zones, such as the exclusive economic zone (EEZ) and the continental shelf, the interpretation of the Svalbard Treaty was brought into question. Whether Norway has the competence to establish these new maritime zones around Svalbard, and whether the equal access regime of the Svalbard Treaty applies in those maritime zones has been the source of continuous debate between Norway and other Parties to the Treaty. A recent investment dispute over the fishery of the snow crab, which is currently pending under the ICSID Convention has brought this issue to the forefront. Through the means of a legal literature research and analysis in accordance with the VCLT, this thesis discusses the Svalbard Treaty and its area of application before delving into the snow crab case, in which its sedentary or non-sedentary nature is of importance due to the implications it has on the exploitation of oil and mineral resources in the continental shelf. The findings are that Svalbard is entitled to maritime zones beyond the territorial sea in which the Svalbard Treaty's equal access regime is applicable. Furthermore, this thesis concluded that, whilst the snow crab has now widely been considered legally sedentary as the result of a literal interpretation of the UNCLOS definition, the drafters of the Convention never intended for crabs and crustaceans to be included in the definition. Forgetting the past has unnecessarily increased tensions regarding oil and mineral resources in the area around Svalbard. Reclassifying the snow crab's status to non-sedentary would not solve the issues surrounding the Svalbard Treaty interpretation, but it would at least restore the status quo.