3 Issues of international...

3 Issues of international law

3.1 Delimitation of the continental shelf and the 200-mile zones in the Barents Sea

During President Putin’s visit to Oslo in November 2002, Prime Minister Bondevik and the Russian President confirmed that both Norway and Russia give high priority to the timely conclusion of an agreement on a delimitation line for the continental shelf and the 200-mile zones in the Barents Sea. Considerable progress has been made in the consultations, which started in 1970 with regard to the continental shelf and since 1984 have also included the zones. The two parties agree to continue the discussions on the basis of a comprehensive approach that takes account of all relevant elements, including fisheries, petroleum activities and defence interests.

Such a boundary line will not affect the freedoms of the high seas, which are essential, for example, to ensure the freedom of navigation for naval operations. The line will, however, make it clear which state’s legislation and jurisdiction may apply in the maritime areas concerned for certain specific purposes, in particular in relation to exploring or exploiting resources. This is essential for ensuring sufficiently predictable conditions under which commercial and other actors can operate.

Agreement on a delimitation line will release an unprecedented potential for co-operation relating to the area of overlapping claims, which covers 176 000 square kilometres. This is particularly relevant for the petroleum sector. The Norwegian and Russian authorities have agreed that no petroleum-related activities are to begin in the area of overlapping claims until a delimitation agreement has been concluded. The moratorium applies to both exploration and exploitation activities. However, there is agreement in the delimitation consultations to continue work on possible modalities for co-operation in the petroleum sector in this area. Such co-operation may start as soon as the delimitation agreement is in place.

Norway’s position in the consultations is based on the rules for maritime delimitation set out in the international law of the sea. Recent case law established by the International Court of Justice in The Hague has confirmed that a median line provisionally drawn shall be employed as a starting point and may thereafter possibly be adjusted or shifted in light of relevant geographical factors. In addition to discussing delimitation issues, the parties are also seeking to agree on co-operation arrangements for energy and fisheries issues.

3.2 The outer limits of the continental shelf beyond 200 miles

Extensive work has already been carried out in connection with the surveying of the extent of the Norwegian continental shelf beyond the 200-mile zone. Since Norway ratified the Convention on the Law of the Sea in 1996, it has been required to meet a time limit for submitting information on the outer limits of the continental shelf to the Commission on the Limits of the Continental Shelf. Under the provisions of Article 76 and Annex II of the Convention, it is necessary in certain cases to submit documentation concerning the thickness of sedimentary rocks and other physical features of the continental margin where it meets the international seabed area, which is common heritage of mankind. Norway will submit such information after 2005 and no later than 2009.

The Russian Federation was the first state to submit documentation to the commission, in 2001. The Norwegian side is co-operating with, among others, the Russian authorities on the collection of geological data, including in the areas north of Svalbard. Norway and the Russian Federation have jointly submitted a precise definition of the area of overlapping claims in the Barents Sea to the commission. This will enable the commission to make a recommendation on the question of the physical extent of the continental shelf and thus on its outer limit towards the international seabed area in the Polar Sea, without prejudice to the outcome of the on-going delimitation consultations between Norway and the Russian Federation. The commission has already concluded that the seabed of the “Loop Hole”, i.e. the area beyond the respective Norwegian and Russian 200-mile zones in the Barents Sea, is continuous continental shelf that must be the subject of a delimitation agreement between Norway and the Russian Federation.

The above survey has yielded a substantial amount of data, which can also be put to scientific use in other contexts. Considerable expertise has also been developed in this connection, and this must be further developed and used to obtain further scientific knowledge of the High North.

A broad, systematic review is being carried out in the relevant ministries as regards research on the High North, including surveys of the sea areas. This will also cover the organisation of research cruises for collecting more data.

3.3 The Fisheries Protection Zone around Svalbard

The Fisheries Protection Zone is a 200 nautical mile zone of fisheries jurisdiction around the Svalbard archipelago. It was established on 3 June 1977 pursuant to the Act of 17 December 1976 relating to the Economic Zone of Norway.

Norway exercises full and absolute sovereignty over Svalbard, in conformity with the provisions set out in the Treaty concerning Spitsbergen of 9 February 1920. Norway’s sovereignty over Svalbard has moreover been recognised by the whole international community. As a coastal state Norway has the right under the modern law of the sea to establish a 200-mile economic zone around the archipelago and to exercise fisheries jurisdiction in the zone. All Norwegian legislation and regulatory and other measures in the Fisheries Protection Zone around Svalbard are fully in accordance with the rights and obligations that Norway, as a coastal state, has under international law.

In accordance with the existing law of the sea, vessels and nationals of other states that are fishing in the Fisheries Protection Zone must comply with the management measures and conditions set out in the legislation and regulatory measures of the coastal state and must comply with that state’s enforcement measures. Under the UN Convention on the Law of the Sea of 10 December 1982, Norway, as a coastal state, must ensure that the living resources in the Fisheries Protection Zone are not overharvested. Under the Convention the authority to implement measures in this respect rests solely with the coastal state.

There are different views on the geographical scope of the Treaty concerning Spitsbergen. Norway has always based itself on the position that the treaty, in accordance with its wording, only applies to the archipelago and the territorial waters. However, in relation to potential economic interests, other states have claimed that the treaty also applies to maritime areas beyond the territorial waters. It is inter alia against this background that Norway chose in 1977 until further notice to establish a fisheries protection zone rather than a full economic zone. One of the purposes of the zone was to ensure the protection and sound management of the living resources, since this is one of the most important nursery areas for important fish stocks.

The rules governing the Fisheries Protection Zone are formulated in such a way that they would not be in conflict with those of the Treaty concerning Spitsbergen even if the latter had applied to the Fisheries Protection Zone. The regulatory measures for fisheries are based on objective protection and management needs and take into account any previous foreign fishing patterns in the area. Thus even though Norway maintains a legal right to reserve fishing in the zone exclusively for Norwegian fishermen, its management practices are non-discriminatory.

The Norwegian management measures in the Fisheries Protection Zone have generally been complied with in practice. However, there is not an international consensus on Norway’s right to regulate fishing and exercise jurisdiction over the continental shelf in this area. For example, Iceland and Russia have disputed such a right on grounds of principle, referring to the provisions of the Treaty concerning Spitsbergen. It is maintained that the treaty and its provisions concerning the equal rights of ships and nationals of all the contracting parties to engage in fishing also apply beyond the territorial waters of the archipelago, and that Norway may not impose restrictions or take necessary enforcement measures. This view is not in keeping with the rules of the international law of the sea, the Treaty concerning Spitsbergen or fundamental principles for responsible resource management.

A credible and predictable exercise of Norwegian jurisdiction in the maritime areas around Svalbard in keeping with the rules of international law is necessary to promote stability and, in the longer term, to promote common understanding with all states concerned. As a coastal state, Norway has a special responsibility for the management of the living resources in these areas. The Norwegian authorities take this responsibility seriously, and will continue to practise sound resource management in accordance with Norway’s obligations and rights under international law through appropriate regulations, as well as necessary control and enforcement measures. This is also in keeping with Norway’s declared aim to combat illegal and unreported fishing, which is one of the most serious threats to sound resource management and is highly detrimental to efforts to ensure conservation and management of living marine resources.

The Norwegian authorities are actively seeking to promote international co-operation on responsible resource management within the framework of the international law of the sea, primarily together with relevant coastal states with a view to adopting and implementing international regulatory measures for fish stocks in their entire area of distribution. The co-operation with Russia is particularly comprehensive in this regard.

3.4 Protection of the marine environment in the High North

The Government has instituted efforts to establish a national network of protected marine areas. The network will comprise areas that are protected under the Nature Conservation Act or other legislation. A more detailed account of the plans is to be found in Report No. 12 (2001-2002) to the Storting: Protecting the Riches of the Sea. In the report of the Biodiversity Commission, NOU 2004:28 (Official Norwegian Report), it is recommended that the authority for cross-sectoral marine conservation should be extended to include the Economic Zone of Norway out to 200 nautical miles from the base line.

In connection with the increase in shipping off North Norway, the question has been raised whether the Norwegian authorities should, through the International Maritime Organisation (IMO), establish parts of the sea areas in the vicinity of the coasts of North Norway as a Particularly Sensitive Sea Area (PSSA). This proposal is currently being considered by the relevant ministries, also in connection with the development of a coherent management plan for the Barents Sea. The Government’s primary aim is to establish as soon as possible concrete measures that reduce the likelihood of accidents in the area. One important measure could be the establishment of sea lanes in the Economic Zone of Norway beyond the outer limit of the territorial sea. The establishment of such sea lanes is subject to the approval of the IMO. Such approval may be obtained by submitting a separate application for a routing system, or in combination with a PSSA application. The Government intends to submit a proposal to the IMO for establishing sea lanes outside the territorial waters between Vardø and Røst, and will consider which of the application procedures is most expedient.

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