Meld. St. 32 (2014–2015)

Norwegian Interests and Policy in the Antarctic

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5 Legislation

5.1 Introduction

As detailed in Chapter 4, International legal framework, Norway is one of seven countries that have made territorial claims to parts of Antarctica. Norway’s exercise of authority is regulated by the Act of 27 February 1930 No. 3 on Bouvetøya, Peter I Øy and Dronning Maud Land, etc. (short name: Dependencies Act). Although the Dependencies Act applies to Bouvetøya as well, this report discusses only legislation as it pertains to Norway’s Antarctic dependencies, Dronning Maud Land and Peter I Øy.

Figure 5.1 Map of the northern part of Dronning Maud Land. New Norwegian («nynorsk»), one of Norway’s official written languages, is consistently used for place names in the Norwegian polar territories.

Figure 5.1 Map of the northern part of Dronning Maud Land. New Norwegian («nynorsk»), one of Norway’s official written languages, is consistently used for place names in the Norwegian polar territories.

Source Norwegian Polar Institute.

Under section 1 of the Dependencies Act, Dronning Maud Land and Peter I Øy are placed under Norwegian sovereignty as dependencies. An area with dependency status is part of Norwegian territory, but not part of the ‘Kingdom of Norway’. In the context of constitutional law, no territory that is part of the Kingdom of Norway may be ceded, while that is not the case for dependencies. This follows from Article 1 of the Constitution of Norway, which affirms: ‘The Kingdom of Norway is a free, independent, indivisible and inalienable realm.’ Beyond this constitutional significance, their status as dependencies itself has no implications for Norwegian legislation in Dronning Maud Land and Peter I Øy.

Norwegian legislation must, as in every other area, be aligned with our international legal obligations. In this respect, our obligations under the Antarctic Treaty system, in particular, are of key importance; see Chapter 4, International legal framework. Generally speaking, Norway’s treaty obligations apply in principle to dependencies, unless special exceptions have been made. It will often follow from an interpretation of the treaty in question that by virtue of its content the treaty does not apply there, thereby making any such exception superfluous.

Private law, criminal law and procedural law all apply to the dependencies in the Antarctic. This is discussed in greater detail below, in chapter 5.2.1. With regard to other areas of law, the Norwegian authorities have traditionally been disinclined to make laws and regulations applicable in the Antarctic dependencies, often in view of objectives and practical considerations such as geographical location, activity levels and other local circumstances. In recent years, the Norwegian Gene Technology Act and Electronic Communications Act have been made applicable to these areas.

Just as there is disagreement on territorial claims in the Antarctic (see chapter 4.1.1, above), there is also disagreement on the issue of jurisdiction. The states that have claimed land areas in the Antarctic (claimant states) claim, on grounds of principle, jurisdiction over all persons, vehicles, etc., present in their respective claim areas. This is referred to as ‘territorial jurisdiction’. States that do not accept the territorial claims of the claimant states assert jurisdiction over their own nationals throughout the Antarctic, a principle referred to as ‘personal jurisdiction’. In practice, compliance with and enforcement of national legislation in the Antarctic is largely a matter of each country controlling its own nationals and its own expeditions, regardless of where they operate.

Norwegian legislation in the Antarctic is based on the principles of territorial and personal jurisdiction alike. Under the territorial principle, the legislation is geographically applicable to Dronning Maud Land and Peter I Øy and every person in those areas. Under the principle of personal jurisdiction, the legislation is applicable to all Norwegian nationals regardless of where in the Antarctic they may be. In practice, however, it has been decided on several occasions that legislation shall not apply to persons who are, for example, part of an expedition organised by another state that regulates these matters in the same way Norway does.

In addition to territorial jurisdiction and personal jurisdiction, Norway has flag state jurisdiction over vessels registered in Norway. Flag state jurisdiction means that Norway has the right to regulate the activity of Norwegian vessels on the high seas.

The Regulations of 26 April 2013 No. 412 relating to the protection of the environment and safety in Antarctica are a good example of applying the principles mentioned above. Section 4 of these regulations also contains a special provision on the relationship to the authorities of other states. Under these regulations, legal proceedings may be instituted only with the consent of the Norwegian Ministry of Foreign Affairs if the act was committed by a person who is not a Norwegian national or resident of Norway, or if the act was committed elsewhere than in Dronning Maud Land or on Peter I Øy. It would be natural in such cases to consider whether another state plans to prosecute the case effectively, for example based on the principle of personal jurisdiction. More detailed information on the regulations may be found in chapter 5.3, below.

Textbox 5.1 A brief history

The Dependencies Act was originally a statute governing Bouvetøya – the Act of 27 February 1930 relating to Bouvetøya. The statute was amended on 24 March 1933 to include Peter I Øy, and on 21 June 1957 to encompass Dronning Maud Land.

It was amended again on 2 June 1960 as a result of Norway’s accession to the Antarctic Treaty. New resolutions on cooperation within the Antarctic Treaty System necessitated statutory amendments in 1972, 1990, 1991 and 2004. By means of a statutory amendment adopted on 27 June 2008, the short title ‘Dependencies Act’ was added to the title, which now reads in full: Act of 27 February 1930 No. 3 on Bouvetøya, Peter I Øy and Dronning Maud Land, etc. (the Dependencies Act).

5.2 The Dependencies Act

5.2.1 Introductory provisions of the statute

The Dependencies Act is a key statute for Norway’s dependencies in the Antarctic, both because section 1 establishes their constitutional status, and because section 2 provides the basis for the application of laws there. Under section 2 of the Dependencies Act, Norwegian private law and criminal law and Norwegian legislation on the administration of justice (procedural law) apply to the Norwegian Antarctic dependencies. The King decides the extent to which other statutes shall apply. In other words, section 2 of the Dependencies Act provides the methodical basis for the legal technique to be used to ascertain whether a specific statute and appurtenant regulations apply in the dependencies. The provision must be interpreted as meaning that if the provision in question is not considered as a provision of private, criminal or procedural law, it does not apply in the dependencies unless the King has determined otherwise.

The method whereby private, criminal and procedural law is distinguished from other legislation has also been employed in the Svalbard Act and the Jan Mayen Act; see Act of 17 July 1925 No. 11 relating to Svalbard and Act of 27 February 1930 No. 2 relating to Jan Mayen.

Figure 5.2 Four polar explorers seize the day – all 24 hours of it – at the South Pole. An example of an expedition subject to notification under the Antarctic Regulations.

Figure 5.2 Four polar explorers seize the day – all 24 hours of it – at the South Pole. An example of an expedition subject to notification under the Antarctic Regulations.

Source Stein Tronstad, Norwegian Polar Institute.

Pursuant to section 2, second and third paragraphs, of the Dependencies Act, the provisions of section 4 of the Svalbard Act shall apply with equivalent effect in the dependencies. Section 4 of the Svalbard Act authorises the King to prescribe regulations in a number of areas, including tourism, aviation and other forms of communication. The King also has authority to establish provisions regarding penalties in the event of breaches of such regulations. Section 2 of the Dependencies Act also provides that the King may issue regulations relating to environmental protection; see the third paragraph.

Under section 7, second paragraph of the Dependencies Act, provisions may also be adopted to implement Norway’s international legal obligations in Norwegian law. The provision is primarily aimed at the obligations under the Antarctic Treaty system. Provisions laid down in pursuance of section 7, second paragraph may therefore be applied to both Norwegian dependencies and other parts of the Antarctic; see Proposition No. 41 (1989–1990) to the Odelsting.

5.2.2 Other provisions in the Dependencies Act

The Antarctic Treaty’s prohibition of nuclear explosions and the storage of radioactive waste has been implemented in Norwegian legislation through section 4 of the Dependencies Act. Section 5 contains provisions governing the right of inspection under the treaty. Under this provision Norwegian authorities may give one or more persons authority to act as observers, enabling them at any time to inspect stations, installations and other facilities in the Norwegian dependencies or other parts of Antarctica. Correspondingly, observers designated by another party to the Antarctic Treaty may also inspect the same stations, installations, etc. Further information about inspection rights may be found in chapter 4.1.4 of this white paper.

Textbox 5.2 Duty to give notice of activity in Antarctica

Notification must be sent to the Norwegian Polar Institute no later than one year before a planned activity commences. The notification must include information regarding the persons who will be travelling in Antarctica, the purpose and scope of the activity, plans for cleaning up and an assessment of the activity’s potential impacts on the Antarctic environment. Norway’s Antarctic Regulations state that activities in the Antarctic must be planned and executed in a safe and self-sufficient manner. Any risks to life or health posed by the activity must be identified and reduced as far as possible. The party responsible for organising an activity in the Antarctic must, before leaving for the region, provide guarantees to cover any expenses incurred in connection with potential rescue operations, and must have contingency plans to safeguard life and health. This is because no special search and rescue resources have been built up in the Antarctic; see further information in chapter 9.6.

The regulations also lay down contingency planning requirements for dealing with an environmental emergency and insurance to cover financial liability that may arise as a result of harmful environmental effects. The party responsible for an activity in the Antarctic has a duty to take measures to prevent environmental damage in connection with the activity. If no such measures are taken, that party may be held financially liable.

5.3 Environmental and safety regulations in the Antarctic

The Regulations of 26 April 2013 No. 412 relating to protection of the environment and safety in Antarctica (the Antarctic Regulations) lay down strict rules for the protection of the Antarctic environment and conservation of its wilderness and aesthetic values. The regulations also contain provisions aimed at ensuring that all activity is carried out safely. The obligations that Norway has assumed under the Environment Protocol and other Antarctic Treaty System resolutions on the environment and safety have to a large extent been implemented through these regulations, but other regulatory frameworks also serve to fulfil Norway’s obligations. The Norwegian Polar Institute is the administrative authority for the Antarctic Regulations. Section 7 of the Dependencies Act provides statutory authority for these regulations, which replaced the previous regulations on Antarctic environmental protection from 1995.

The regulations include rules on providing notice of all activity to be carried out in the Antarctic, and on contingency plans and insurance (see Box 5.2).

Antarctic flora and fauna are both extremely vulnerable and are protected under the Environment Protocol. Under national regulations, the taking of or harmful interference with plants and animals is prohibited. However, the regulations do make provision for the taking or harvesting of flora or fauna for research purposes. Any waste produced by expeditions must be removed from the Antarctic upon departure. This is essential to preserve Antarctica as the largest, most unspoiled wilderness area in the world, with unique environmental qualities. Under the regulations, travellers to the Antarctic have a duty to make themselves aware of specially designated protection and management zones and cultural heritage and historical sites, and to comply with the rules that apply in each area.

5.4 Other relevant legislation

5.4.1 Provisions relating to the regulation of fishing

On 13 March 1998, Norway adopted a provision regarding the regulation of fishing from Norwegian vessels in the Antarctic (the area covered by the Convention of 20 May 1980 on the Conservation of Antarctic Marine Living Resources, or the CAMLR Convention). This provision applies to Norwegian nationals and persons resident in Norway who engage in fishing using Norwegian vessels in marine areas of the southern hemisphere subject to the CAMLR Convention. Fishing without a permit issued by the Norwegian authorities is prohibited. All fishing operations from Norwegian vessels must occur with scientific observers from other state parties to the convention on board. In this way, fishing vessels help to collect data for use by the Scientific Committee of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).

A Catch Documentation Scheme (CDS) has been introduced to monitor international trade and provide evidence that Patagonian toothfish imported by a member of the organisation has been caught in compliance with CCAMLR rules or outside the CAMLR Convention area. The scheme is continuously assessed with a view to improving it and eliminating any loopholes.

5.4.2 Territorial waters and economic zone

A Norwegian act relating to Norway’s territorial waters and contiguous zone is also applicable to Dronning Maud Land and Peter I Øy, but has not yet entered into force with regard to these two areas. So far, Norway has not issued any special provisions regarding baselines and territorial waters. Nor has Norway established a 200-nautical mile economic zone in these areas.

5.5 Need for a review of legislation

The preparation of white papers on Antarctica and Bouvetøya has shown that a review is needed of the legislation governing Norway’s dependencies. This applies primarily to the Dependencies Act itself. The issues that apply to Bouvetøya in particular are discussed in the white paper to the Storting on Bouvetøya; see chapter 1.

The Dependencies Act shows signs of having been amended in step with the broadening scope of Norway’s international legal obligations. It is therefore necessary to examine the statute to assess whether it meets our current regulatory needs. It must also be reviewed to determine whether it provides a solid basis for implementing Norway’s international legal obligations, in particular its obligations under the Antarctic Treaty System. As explained above, all of the latest amendments to the Dependencies Act have come as a result of developments in the Antarctic Treaty System. New international legal obligations have made it necessary to provide a new legal basis for these obligations in the statute. An assessment should be made of whether the Dependencies Act can be formulated so that obligations resulting from new resolutions adopted within the Treaty System, and which require a basis in law, can be incorporated into Norwegian law without having to amend the statute.

The Government will:

  • Review legislation relating to Norway’s dependencies with a view to improving and updating rules and regulations and administrative matters.

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