Op-Ed: Crabtacular! Snow crabs on their march from Svalbard to Brussels

For some years now, Norway and the European Union have exchanged diplomatic ‘pleasantries’ and engaged in a dispute over a new Arctic resource: snow crab.

Although having first been discovered in the Barents Sea in 1996, Norwegian fishermen only seriously started catching snow crab on the Norwegian continental shelf in 2013. Snow crab fisheries was quickly heralded as the new gold of the Arctic; potentially even rivalling cod fisheries in value. Thus, it is no surprise that fishermen from Norway, Russia, and EU countries like Latvia and Poland were quickly investing in equipment to expand their fishing operations in both Russian and Norwegian waters.

As relations between Russia and ‘the West’ deteriorated in 2014, Russia decided to close its continental shelf for foreign crab fishing. EU-crab fishers thus turned their ‘hungry eyes’ to the ‘Loophole’, a small area of international waters between Norway and Russia in the Barents Sea, as well as the continental shelf around the Svalbard archipelago. Norway, however, decided to ban snow crab fisheries starting in 2015, awaiting more research on this new species and the creation of a management plan for the Barents Sea. Yet, at the same time, it allowed limited licenses to its own fishermen, in order to not squash this new industry in its infancy.

What legal regime governs snow crab fisheries?

The EU’s fishermen turned to the Loophole, arguing that under the North-East Atlantic Fisheries Commission (NEAFC) unregulated stocks can be freely caught by NEAFC-members. Yet, it quickly became clear that both Norway and the EU define snow crab as a sedentary species, meaning it is “unable to move except in constant physical contact with the seabed or its subsoil” (UNCLOS, Art. 77). In non-legal gibberish: it does not swim but marches on the seabed. Thus, snow crab fisheries are not regulated under NEAFC but instead fall under UNCLOS’ regime for sedentary resources. In 2009, Norway acquired an extension of its continental shelf that also included most of the Loophole, bringing foreign crab fisheries in this area under Norwegian jurisdiction.

And now the dispute escalates. In late 2016, the Norwegian Coast Guard arrested the Latvian-licenced (and Lithuanian owned) vessel Juros Vilkas for operating in the Loophole without a Norwegian license. The case ended in the Norwegian Supreme Court, which ruled that Norway – in accordance with UNCLOS – has complete sovereignty over resources on its continental shelf. The EU – through the part of the European Commission (‘Commission’) that manages the EU’s fisheries policy, the Directorate-General for Maritime Affairs and Fisheries – had also recognised this in 2015 and accordingly communicated it to its member states.

The controversy surrounding Svalbard

What makes the snow crab case more controversial, is that the living environment Chionoecetes opilio has chosen as its new home is the waters around Svalbard. In 1977, Norway established a Fisheries Protection Zone around the archipelago, arguing that Svalbard’s maritime zone and the continental shelf are part of the Norwegian Exclusive Economic Zone (EEZ) and the Norwegian continental shelf as the Treaty of Spitsbergen from 1920 infers sovereignty over Svalbard to Norway. Yet Norway avoided establishing an outright EEZ, instead opting for ’only’ protecting marine species in this zone and thus avoiding strong opposition by other signatories of the Treaty.

Some of these states, however, which are currently 44 in total, claim that although Norway has jurisdiction in the maritime zones around Svalbard, the principles concerning equal access to economic activity of the Treaty should also apply to the 200 nautical mile zone and the continental shelf. Since 1977, the EU – through the Commission as well as several of its member states that are signatories to the Treaty – has on several occasions voiced this position, diverging from the Norwegian.

Agree to disagree

This issue has, however, been kept out of the limelight. It does not figure prominently (or even sometimes at all) in the Union’s Arctic policy documents that have been issued by EU institutions since 2008. Neither does it figure in Norway-EU bilateral relations. Svalbard has become a topic where the EU (and some of its members) agree to disagree with Norway, as long as EU-fishermen have access to limited fisheries based on historic records, and Norway does not discriminate between Norwegian and EU vessels when it enforces its regulatory regime.

And yet, the ban on catching a new sedentary resource – the snow crab – introduced by Norway in 2015, brought the two diverging positions to the forefront of (fisheries) relations between Norway and the EU. Albeit of limited economic importance to both EU member states and Norwegian fishermen, the prospects of a new profitable resource together with the disagreement over Svalbard’s continental shelf drew attention to the dispute.

Demanding equal treatment

It is particularly the special treatment of Norwegian fishermen that lies at the very heart of the dispute. If the continental shelf around Svalbard is unequivocally Norwegian, Norway has exclusive rights to the resources and can thus award licenses/quotas to whomever it likes. However, if the Spitsbergen Treaty does apply, Norway cannot discriminate against vessels from signatory states, irrespective of whether it has the authority to award the licenses.

The common solution to disputes such as these is the swapping of quotas. Offers to swap snow crab quotas were first presented by Norway in November 2015. The EU rejected the offer claiming it had no available means of payment (i.e. no swappable fishing quotas). Albeit continuing informal negotiations, no agreement had materialised by December 2016. The Commission, nevertheless, proposed to authorise up to 20 vessels to catch snow crab; a proposal that was accepted by the Council of the European Union (‘Council’), which eventually gave five member states – Estonia, Latvia, Lithuania, Poland and Spain – the right to issue 20 licences altogether (the Commission/Council decides, the member states issue the actual licence).

-Not a single crab

Norway reacted to the decision by issuing public statements, with the Norwegian Minister of Fisheries stating that Norway would not “give away a single crab”. Shortly thereafter, the Norwegian Coast Guard arrested another EU-vessel, the only one that had made use of the licenses – the Senator from Latvia. According to Latvian politicians, this led to severe economic losses for concerned ship-owners: “EU operators are losing an average of EUR 1 million per month each.” Eventually, the Council again awarded licences for 20 vessels, divided among the same states, in December 2017. This was done to uphold the EU’s position concerning both the dispute and its position on the legal status of Svalbard.

Who is driving the EU’s position?

Be it in or outside Europe, the EU is often – purposely or not – misunderstood or simplified as being a ‘single actor with a single voice’. But how should we understand the ‘EU’ in this case and its push to award licenses which were in direct violation with Norway’s jurisdiction of Svalbard’s maritime zones?

What might be perceived by some journalists as a Brussels-based initiative was in fact initially driven by very specific interest groups in a few countries – Latvia and Poland in particular. These interests were concerned with the eviction from the Russian continental shelf and a slowly but steadily growing snow crab fishing industry. These interests managed to find some key actors to speak on their behalf, such as Jarosław Wałęsa, a Polish Member of the European Parliament (MEP).

As the snow crab dispute was first raised in Brussels in late 2015, certain member states have actively lobbied the Commission to ensure their interests were represented. Together with some MEPs, they saw it in their interest to bring the issue to the forefront of Norwegian–EU fisheries relations. But in doing so, it complicated the workings of a Commission that had been trying to find a suitable solution with Norway. Moreover, Norwegian media ensured that the Norwegian Minister of Fisheries got involved in a case where it is relatively easy to be ‘standing up for’ local fishermen. Being considered as the protector of your own fisheries’ industry can do wonders for your political appeal. Thus, by late 2017, efforts to resolve the problem had reached an impasse.

And now?

While the EU ostensibly speaks with one voice on fishery-related issues, that voice can be hijacked by special interests, not least when there are few counter-positions and – as in this case – the issue is essentially of limited importance. Moreover, before the issue received popular attention and positions became entrenched, there seems to have been a window for dialogue between Norway and the EU/Commission. Given Norway’s sensitivity to debates over Svalbard and opposing legal views, it might have been fruitful to engage directly with these special interests in the Union’s member states to prevent it ascending ever higher on the EU agenda.

At the same time, this limited dispute has still been kept separate as an issue pertaining to fisheries. From 2007/08 onwards, the EU has engaged in Arctic affairs. At times, Svalbard as well as other larger governance questions have arisen, especially in the European Parliament. The snow crab, however, has deliberately been kept as a fisheries question only. Yet some interests in Brussels would still like to see a wider debate on Arctic governance, including Svalbard’s legal status. If no solution on the snow crab issue is found in the near future, that might become a reality.