I will first deal with the arguments relating to the establishment of the fisheries protection zone and the question of unfair discrimination that are common to the appellants. I find it expedient to begin by giving a brief account of the applicable regulatory framework.
(36)
Pursuant to Act No 91 of 17 December 1976 relating to the Economic Zone of Norway Section 1 first paragraph first sentence, 'An economic zone shall be established in the seas adjacent to the coast of the Kingdom of Norway'. Pursuant to the first paragraph second sentence, the King shall determine 'the date for the establishment of the economic zone and the waters to which it shall apply'. The following is said about Section 1 in Proposition No 4 to the Odelsting (1976–1977) page 6:
'Section 1 of the bill states that the economic zone is to be established in the seas adjacent to the coast of the Kingdom of Norway. This is understood to include both the mainland areas and Svalbard and Jan Mayen. However, the need to protect fish stocks and coastal fishing varies greatly, and the resource and management problems are somewhat different in the different ocean areas. It is therefore assumed in Section 1 first paragraph second sentence that it will be possible to establish the economic zone for parts of the coastal waters without necessarily covering the whole coastline. Initially, the Government's declaration on its fishery limit policy addressed the coast of Northern Norway. However, developments have shown that it will also become necessary to regulate the ocean areas further south based on coastal states' right to economic zones of 200 nautical miles. As regards the ocean areas around Svalbard, the Government is considering which measures should be implemented.'
(37)
A Royal Decree of 17 September 1976 established an economic zone of 200 nautical miles in the ocean areas off the coast of the Norwegian mainland with effect from 1 January 1977.
(38)
By Royal Decree of 3 June 1977, a fisheries protection zone was established in the ocean areas around Svalbard in order to, as stated in the Regulations Section 1, 'conserve marine living resources and regulate fishing and hunting'. In line with the desire not to discriminate between Norwegian and foreign vessels, the prohibition against foreign fishing set out in Section 3 of the Act relating to the Economic Zone of Norway was not made applicable to the fisheries protection zone. It is therefore designated a non-discriminatory zone. Pursuant to the Regulations Section 3, the Ministry of Fisheries can issue a number of regulations concerning fisheries. Pursuant to the Regulations Section 3 (3), the Ministry can thus adopt provisions regarding 'annual permitted catch volumes and fishery activities for each species of fish'.
(39)
As regards the background to the Regulations, I refer to the following comments in the speech introducing the Royal Decree concerning the establishment of the fisheries protection zone:
'The ocean areas around Svalbard are at present the only significant fishing grounds in the North Atlantic where no national regulation scheme has been implemented. These areas are very important, however, both as nursery grounds and fishing grounds for several important fish stocks. It is therefore important that a zone is now established to regulate fishing in the ocean areas off the coast of Svalbard.
It follows naturally from the Act relating to the Economic Zone of Norway that the zone will be 200 nautical miles wide. To the south, the zone will be limited by the outer limit of the economic zone around the Norwegian mainland. Where the zone abuts on a foreign state's area of authority, the boundary will be drawn in accordance with agreements.
The Svalbard Treaty's provisions concerning equal treatment of the contracting parties' nationals in relation to fishing and hunting is not deemed to be applicable outside the territorial waters. Therefore, Norway would be entitled to establish a zone around Svalbard where Norwegian fishermen would have preferential rights. However, the purpose of regulating fisheries in the waters around Svalbard at this time is primarily to bring under control and limit the fisheries in the area in order to conserve resources and avoid the unfortunate harvesting pattern that unregulated fishing could result in. For this purpose, it is sufficient to regulate fisheries by means of provisions that do not discriminate between Norwegian and foreign fishermen. The intention is therefore, at least initially, to establish a fisheries protection zone around Svalbard to conserve marine living resources and regulate fishing and hunting.
No obstacles are deemed to exist to giving the zone such a designation, even though the legal basis for its establishment is the Act relating to the Economic Zone of Norway.'
(40)
The first regulations relating to fishing in the Svalbard Fisheries Protection Zone were issued by the Ministry of Fisheries on 28 April 1978. The provisions on the regulation of fisheries that are particularly important in this case are the Ministry of Fisheries' Regulations of 21 September 1994 with subsequent amendments. These regulations apply to both 'Norwegian and foreign vessels'. Section 2 of the Regulations concerns the duty to report. Pursuant to the provision's letter a) concerning start of fishing reports, vessels that are to engage in fishing or hunting in the fisheries protection zone must give notification of this before they start fishing, and the notification must include information about the catch that was already on board the vessel when it entered the zone. Pursuant to the provision's letter b), weekly catch reports must be submitted about catches in the zone, and the provision's letter c) states that an end of fishing report must be given no later than when the vessel leaves the zone, and that the report must include information about the catch quantity. Section 3 of the Regulations also contains provisions about catch logbooks, while Section 4 contains provisions about control and inspections etc. I would like to add that, in the Regulations of 26 March 2003, which entered into force on 1 January 2004, the Ministry of Fisheries issued provisions concerning satellite-based monitoring of the activities of fishing and hunting vessels in the fisheries protection zone around Svalbard.
(41)
As for previous years, the Ministry of Fisheries' Regulations No 1527 of 11 December 2003 set out rules for the regulation of fishing for cod in the fisheries protection zone around Svalbard in 2004. Norway and Russia agree on an annual total fishery quota for North-East Arctic cod in the Norwegian Sea and the Barents Sea, including the Svalbard Fisheries Protection Zone. Pursuant to Section 1 of the Regulations, Norwegian and Russian vessels 'may fish North-East Arctic cod in the Fisheries Protection Zone around Svalbard within the quotas allocated to vessels from these countries'. Pursuant to Section 2, for other vessels, a 'maximum share of the total allowable catch of North-East Arctic cod is allocated to catches in the Fisheries Protection Zone around Svalbard'. This share was set to 19.4 thousand tonnes for 2004. Only vessels from states that have traditionally fished North-East Arctic cod in the fisheries protection zone around Svalbard, i.e. EU member states and the Faeroe Islands, may fish within the limits of the quota that is set. The quota stipulated for EU member states for 2004 was 3.4% of the total quota, half of which was allocated to Spain.
(42)
The appellants have argued that the Svalbard Fisheries Protection Zone has no legal basis in domestic law in the Act relating to the Economic Zone of Norway. This was also claimed in the case included in Rt-1996-624, but the grounds for the alleged lack of legal authority were different in that case, namely that the Kingdom of Norway did not include Svalbard, cf. the Act relating to the Economic Zone of Norway Section 1 first paragraph first sentence. It is nevertheless clear that this decision is based on the assumption that the fisheries protection zone has a legal basis in the Act.
(43)
The Act is an enabling act that in its Section 1 authorises the establishment of an economic zone, while in Section 5 it grants authority to lay down interim provisions for the protection of fish stocks, for the limitation of foreign fishing and for rational and proper conduct of fishing activities.
(44)
In my opinion, there are good reasons for arguing that Section 1 of the Act provides a sufficient legal basis for the establishment of the fisheries protection zone. The exclusive right to fish for Norwegian nationals that follows from Section 3 first paragraph of the Act applies, pursuant to the second paragraph, unless otherwise stipulated in regulations issued pursuant to Section 4. There are strong arguments to support that the Regulations relating to Regulatory Measures for Fishing in the Fisheries Protection Zone around Svalbard adopted by the Ministry of Fisheries on 21 September 1994 are warranted by Section 4 of the Act. In this connection, I would like to mention that during the debate in the Lagting, Member of the Storting Valter Gabrielsen touched on Section 4 in connection with the negotiations between Norway and the Soviet Union, and said the following:
'I have no comments as regards the bill itself. Section 4 is worded in such a way that it clearly provides for reasonable regulation of fishing. In this connection, I find that there is reason to point out that the breakdown of NEAFC entails a challenge to Norway and the Soviet Union to accept international responsibility for ensuring reasonable regulation of, and measures to conserve and strengthen, the North-East Arctic cod stock.'
(45)
It is not necessary, however, for me to take a particular stance on whether or not Section 1 constitutes sufficient legal authority.
(46)
The Court of Appeal concluded that Section 5 of the Act provides an indisputable legal basis for the establishment of the fisheries protection zone. Section 5 of the Act reads as follows:
'Prior to the implementation of the Norwegian economic zone, the King may, for areas referred to in Section 1, lay down interim provisions for the protection of fish stocks, for the limitation of foreign fishing and for the rational and proper conduct of fishing activities.'
(47)
Special mention was made of the relationship to Svalbard in the preparatory works to the Act. As I have already quoted, it is stated in Proposition No 4 to the Odelsting (1976–1977) page 6 that 'as regards the ocean areas around Svalbard, the Government is considering which measures should be implemented.'
(48)
This issue was dealt with more explicitly in Recommendation No 7 to the Odelsting (1976–1977) page 2, which reads:
'If the King initially limits the establishment of the economic zone to the areas off the coast of mainland Norway, however, Section 5 could have major practical consequences for the waters around Svalbard and Jan Mayen.'
(49)
The Minister for the Law of the Sea commented on the relationship with Svalbard during the debate in the Odelsting:
'As regards Sections 5 and 6, it will be important to arrive at solutions in relation to the abutting areas outside the territorial waters in the Svalbard and Jan Mayen areas as soon as possible, not least because of the breakdown we have seen in NEAFC. The Government is working on these issues.'
(50)
I agree with the Court of Appeal that Section 5 of the Act relating to the Economic Zone of Norway authorises the establishment of the Svalbard Fisheries Protection Zone. The Act uses the term 'interim provisions', and statements in the preparatory works to the Act also indicate that it is interim arrangements that are referred to. But this was also the thinking behind the establishment of the zone. In the speech introducing the Royal Degree, which I have quoted above, it is stated that, 'at least initially', the intention is to establish a fisheries protection zone. This is also stated in the Regulations Section 2, which states that Section 3 of the Act 'shall not apply for the time being'.
(51)
I cannot see that the fact that this arrangement has for political reasons been maintained for as long as it has can result in a weakening of the legal authority for it. It must necessarily be the responsibility of the political authorities to balance conflicting considerations against each other.
(52)
The Regulations do not cite any particular section of the Act as the legal authority. The speech introducing the Royal Decree took Section 1 of the Act as its point of departure, and Section 1 has also been cited as the legal basis in connection with certain subsequent amendments to the Regulations. I find no reason to discuss in more detail the extent to which this can be deemed to constitute a procedural error pursuant to the Public Administration Act Section 38 first paragraph letter a), as I find that such an error could not under any circumstances have had a bearing on either the issuing of the Regulations or their content.
(53)
The appellants have also argued that the establishment of the fisheries protection zone lacks a legal basis in the United Nations Convention on the Law of the Sea of 10 December 1982 Articles 55 and 56, which entitle coastal states to establish an exclusive economic zone for the exploitation of all natural resources in the sea and on the seabed. It is argued that, by establishing a fisheries protection zone instead of an economic zone, Norway has in principle evaded its obligations under the Convention on the Law of the Sea. I would like to mention that the basis in international law for the Svalbard Fisheries Protection Zone was not questioned in the case in Rt-1996-624, where it is stated that 'it is not contested that Norway is competent to establish an economic zone around Svalbard and, in this zone, to implement regulatory and limiting measures, including in relation to fisheries'.
(54)
I take as my point of departure that both the Act relating to the Economic Zone of Norway and the Regulations relating to the Fisheries Protection Zone around Svalbard were adopted long before the Convention on the Law of the Sea was adopted and ratified. Norway ratified the Convention on 24 June 1996. This shows that, from a Norwegian perspective, the Convention on the Law of the Sea has not been deemed to be a necessary legal basis for the establishment of the fisheries protection zone. This is also clear from the preparatory works to the Act relating to the Economic Zone of Norway. It is stated in Proposition No 4 to the Odelsting (1976–1977) in connection with the mention of the United Nations Conference on the Law of the Sea on page 3:
'During the third session of the United Nations Conference on the Law of the Sea in Geneva in spring 1975, there was a political breakthrough for the principle of 200-nautical mile economic zones. On the basis of negotiations between the world powers, other major deep-sea fishing nations, coastal states with wide-ranging demands concerning the extent of their territorial waters and countries in an intermediate positions such as Norway, compromise texts were arrived at during this session that won broad support. The compromise was based on the coastal states having a right to the natural resources – living resources as well as mineral resources – in a 200-nautical mile economic zone. It entailed freedom of navigation and overflight in the zone, but also assumed that the coastal states would have a certain authority and certain obligations as regards environmental protection and research. This compromise formed the main basis for the negotiation text on which the Conference's further work would be based.'
(55)
Concerning the international law issues – customary international law – it is stated on pages 3–4 of the proposition:
'The preliminary result of the negotiations from the Conference on the Law of the Sea has already been extensively used by a number of states that have decided to establish economic zones or similar zones. One case in point is Mexico, which established a 200-mile economic zone with effect from 1 August 1976. The US legislation (the Fisheries Conservation Act), that was adopted on 13 April 1976, involves an expansion of the US fishery limit to 200 nautical miles. The act will enter into force on 1 March 1977, and it is based on the principles for economic zones set out in the compromise text, although with additional extensive and detailed statutory regulation of the administration of the zone.
Iceland has established a 200-mile fisheries zone with effect from 15 October 1975. Following prolonged negotiations, Iceland has now entered into agreements with the most important affected countries about the issues that this raises. Canada plans to expand its fishery limit to 200 miles by 1 January 1977 at the latest. In addition, the EC states, in a declaration from the EC Council of Ministers of 27 July this year, adopted a decision in principle to extend the fishery jurisdiction to 200 miles and announced that a decision on the details in this connection will be made by 1 October this year at the latest. The question of the extent of the mutual access to fishing grounds in the zones of EC states that will apply internally between EC states will depend on the outcome of the ongoing negotiations about the EC's new fishery policy. As regards the actual establishment of the new 200-mile zones, however, it is clear that the individual EC states must implement them individually. France has already (in July this year) passed an act relating to a 200-mile economic zone. The act is an enabling act that leaves it up to the French government to decide when the zone will take effect. As regards the UK, legislation for a 200-mile zone is currently being prepared.
Of the states that aim to introduce legislation this autumn to expand their zones to 200 miles, India is particularly important.
In addition to Mexico, the USA, Canada, France, the UK, India and other states that are currently preparing to expand their economic zones to 200 miles come the more than 40 coastal states, most of them third world countries, that have already extended their fisheries/jurisdiction to areas outside the 12-mile limit – some to as much as 200 miles.
In the Government's view, based on this customary international law and in light of the support that a clear majority of the world's nations expressed for the principle of 200-mile economic zones at the Conference on the Law of the Sea, it can be concluded that the necessary political basis and authority in international law for establishing such zones are in place. From an international law perspective, the adoption and entry into force of the new Convention on the Law of the Sea is therefore not a precondition for establishing an economic zone of 200 nautical miles. However, it should be noted that some states take a different view on this difficult matter of principle, including the group referred to as landlocked and geographically disadvantaged states.'
(56)
There is no doubt that the opinion expressed in the Proposition has won approval in international law.
(57)
Proposition No 37 to the Storting (1995–1996) relating to consent to ratification of the Convention on the Law of the Sea states on page 34:
'It is now beyond doubt that the concept of the economic zone, independently of the Convention on the Law of the Sea, is warranted by general international law based on the customary international law that evolved, particularly during and after the third United Nations Conference on the Law of the Sea. This was established e.g. in the International Court of Justice's decision in the 1985 Libya-Malta case. The main rules for the zone will therefore be binding regardless of whether a state is or is not a party to the Convention.'
(58)
The Proposition states that, as of 31 January 1996, 87 states had established economic zones and 14 states had established fishery zones of 200 nautical miles.
(59)
In my opinion, it must be clear that a right exists under international customary law to establish what are referred to as fishery zones. Such zones have also been established after the adoption of the Convention on the Law of the Sea. In this connection, it can be mentioned that Spain established a fishery zone in the Mediterranean on 1 August 1997. I can only conclude that the right to do so is presumed in the decisions of the Hague Tribunal. I here refer to the judgment of 12 October 1984 in the Gulf of Maine case, in which the following is stated in point 96: 'the superjacent fishery zone, which is included in the exclusive economic zone concept'. It is not stated in more detail what the different fishery zones entail. However, I assume that the zones in question are, at least primarily, fishery zones that in principle give the coastal state an exclusive right to fish. This is the case, for example, for the Norwegian fishery zone around Jan Mayen.
(60)
This case concerns a non-discriminatory fisheries protection zone. This is a different type of regulation of fisheries than the point of departure under the Convention on the Law of the Sea. We have no information that corresponding zones have been established elsewhere in the world except for around the Falkland Islands.
(61)
In my opinion, the establishment of the Svalbard Fisheries Protection Zone must also be considered to be warranted by international customary law, and I cannot see that the zone is in contravention of the United Nations Convention on the Law of the Sea.
(62)
There is reason to emphasise that the objective of the regulation is in accordance with the objective that the United Nations Convention on the Law of the Sea seeks to promote. The Convention contains rules for all ocean areas, the airspace above them and the ocean floor and its subsoil. It regulates the rights and obligations of states in these areas and set out rules for environmental protection, marine scientific research and the transfer of technology etc. In the preamble to the Convention, the states that have endorsed the convention declare, among other things, that they are:
'Determined to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks,
Resolved to improve cooperation between States to that end,
Calling for more effective enforcement by flag States, port States and coastal States of the conservation and management measures adopted for such stocks,
Seeking to address in particular the problems identified in chapter 17, programme area C, of Agenda 21 adopted by the United Nations Conference on Environment and Development, namely, that the management of high seas fisheries is inadequate in many areas and that some resources are overutilized; noting that there are problems of unregulated fishing, over-capitalization, excessive fleet size, vessel reflagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between States,'
(63)
It is clear from the excerpt I quoted from the speech introducing the Royal Decree that the protection zone around Svalbard has the same protective objective as the Convention on the Law of the Sea.
(64)
In my opinion, the non-discriminatory fisheries protection zone arrangement cannot in itself be in conflict with the provisions of the Convention on the Law of the Sea on an exclusive economic zone. As I understand it, the decisive factor must be how the regulation is implemented, and not whether it is the coastal state or other nations that carry out the actual fishing. By establishing a non-discriminatory fisheries protection zone around Svalbard, Norway has endeavoured to avoid forcing the issue of the applicability of the Svalbard Treaty in the zone. That the Convention on the Law of the Sea should constitute an obstacle to such an arrangement seems to me to be a rather unreasonable notion. The cooperation that Norway and Russia have established as regards fishing for North-East Arctic cod appears to otherwise be in accordance with the provisions of Article 63, which concerns the coordination of fisheries for stocks that occur in several nation's spheres of interest, cf. Proposition No 37 to the Storting (1995–1996) page 40.
(65)
The appellants have emphasised the obligations that states have pursuant to different articles of the Convention on the Law of the Sea Part V, cf. Articles 61, 62, 69 and 70, among others. I see no reason to review these provisions in detail, but will limit myself to making the general comment that I cannot see that it has been proven that the regulation implemented for practical purposes can be said to be in conflict with any of these provisions, cf. the more detailed account of the provisions in Proposition No 37 to the Storting (1995–1996) pages 38–44. It is therefore not necessary for me to discuss in more detail what bearing a conflict here would have had on the validity of the fisheries protection zone.
(66)
The appellants have also entered claims that they be acquitted, alternatively that the case be dismissed, because of unfair discrimination. The three grounds invoked before the Supreme Court are that a breach of the non-statutory principle of equality in Norwegian law has taken place, that ICCPR Article 26 has been violated, and that the Svalbard Treaty Articles 2 and 3 have been violated.
(67)
I will first consider the relationship to the Svalbard Treaty. Pursuant to the Svalbard Treaty of 9 February 1920, Norway has – on the conditions laid down in the Treaty – 'full and absolute sovereignty' over the archipelago. I mention here that Spain acceded to the Treaty in 1925. It is a disputed issue whether the Svalbard Treaty applies directly or analogously to the fisheries protection zone. Norway's view is that the Svalbard Treaty – with its requirements for equal treatment – does not apply outside the land territories and territorial waters. Norway's view has been disputed by some other states. In its decision in Rt-1996-624, it was not necessary for the Supreme Court to take a stance on this issue because the Court concluded that Norway's obligations under the Treaty were not under any circumstances set aside through the regulation of the cod fishery that had been implemented. In my view, the situation is the same in the present case.
(68)
The key provisions concerning the prohibition against discrimination in the Svalbard Treaty are Article 2 first and second paragraph, which read as follows:
'Ships and nationals of all the High Contracting Parties shall enjoy equally the rights of fishing and hunting in the territories specified in Article 1 and in their territorial waters.
Norway shall be free to maintain, take or decree suitable measures to ensure the preservation and, if necessary, the re-constitution of the fauna and flora of the said regions, and their territorial waters; it being clearly understood that these measures shall always be applicable equally to the nationals of all the High Contracting Parties without any exemption, privilege or favour whatsoever, direct or indirect to the advantage of any one of them.'
(69)
and Article 3 first paragraph, which reads as follows:
'The nationals of all the High Contracting Parties shall have equal liberty of access and entry for any reason or object whatever to the waters, fjords and ports of the territories specified in Article 1; subject to the observance of local laws and regulations, they may carry on there without impediment all maritime, industrial, mining and commercial operations on a footing of absolute equality.'
(70)
The requirement for equal treatment pursuant to the Svalbard Treaty is linked to nationality. The Svalbard Treaty is not an obstacle to differential treatment on the basis of other objective criteria than nationality, cf. Rt-1996-624 with further references to legal theory.
(71)
An argument alleging unfair discrimination will typically be based on the party in question having been treated differently than others in a comparable situation. That is not the case here. The appellants are not claiming that vessels from other countries have been dealt with differently when inspected by the Norwegian Coast Guard in corresponding situations. The alleged discrimination does not actually have any concrete connection to the consideration of this case.
(72)
The appellants' argument that they have been unfairly discriminated against is related in particular to the reporting obligation in the Regulations of 21 September 1994. These Regulations apply to vessels from all nations – and thereby Norwegian, Russian and Spanish alike – which means that there is no discrimination at this level. The appellants' argumentation concerns the fact that Russian vessels do not comply with the reporting obligation set out in the Regulations.
(73)
In light of the information received, I must assume that vessels that breach the reporting obligation are issued a warning, unless they have also committed more serious offences. The system of issuing warnings is general and is thereby practised in relation to both Russian and Spanish vessels. In my view, this means that the Court of Appeal has grounds for its remark that, in individual cases, there is no significant difference in how the Norwegian authorities enforce breaches of the reporting rules in relation to Russian vessels and vessels from other nations.
(74)
The appellants argue that the Norwegian authorities' failure to implement general measures with a view to forcing Russian vessels to comply with the Regulations means that the enforcement of the regulatory measures is more lenient in relation to Russian vessels, and that it is thereby in breach of the Svalbard Treaty's provisions concerning equal treatment.
(75)
The fact that Norway has not taken stronger measures to get Russian vessels to comply with the reporting rules must, however – as the Court of Appeal emphasises – be seen in connection with the fact that there is a not insignificant difference between the control considerations that apply to Russian fishing vessels, on the one hand, and Norwegian and other countries' fishing vessels, on the other. Norway and Russia agree on an annual total quota for the North-East Arctic cod fishery in the Norwegian Sea and the Barents Sea, including the Svalbard Fisheries Protection Zone. Russian vessels' catches are thereby included in Russia's part of the total quota irrespective of whether the fishing takes place in the Fisheries Protection Zone, in the Norwegian economic zone or in the Russian economic zone. As I have previously explained, in the case of the fisheries protection zone, a quota is reserved for third countries, including the EU. The quota system that has been established here was the subject of extensive discussions and was accepted by the Supreme Court in Rt-1996-624 with respect to the requirement for equal treatment set out in the Svalbard Treaty.
(76)
It is the Russian authorities' responsibility to carry out quota controls of the fishing that takes place under the Russian part of the total quota. It is therefore the Russian, not the Norwegian, authorities that carry out quota controls in relation to both individual Russian vessels and shipowning companies and that carry out controls of fishing under the Russian part of the total quota. Norway, on its part, carries out quota controls of Norwegian vessels and of the quota allocated to third countries, including the EU, in the Svalbard Fisheries Protection Zone. For quota control purposes in relation to these third countries and Norwegian vessels, the Norwegian authorities are dependent on the reporting duty pursuant to the above-mentioned provisions being complied with. The Norwegian authorities do not have a correspondingly strong need for such reporting from Russian vessels. I add that the Directorate of Fisheries receives a monthly overview of catches of fish in the fisheries protection zone at the aggregate level. This information is received from the Russian authorities in accordance with an agreement between Norway and Russia about the mutual monthly exchange of catch information. But, even though the need is not as great here, the Norwegian fisheries authorities have raised the issue of Russian vessels' failure to comply with the reporting obligations via diplomatic channels and in fisheries negotiations. I find it difficult to see that the fact that the Norwegian authorities, under these circumstances, have not pursued this issue more strongly with the Russian authorities can constitute a breach of the Svalbard Treaty's requirement for equal treatment. In my view, the same must apply to the failure of the Russian authorities to comply with the satellite regulations.
(77)
It is not necessary for me, however, to take a stance on the question of whether the Norwegian fisheries management in the Svalbard Fisheries Protection Zone in all respects meets the requirements of the Svalbard Treaty Articles 2 and 3. In fact, I believe that, in any case, no discrimination on the grounds of nationality has taken place that could constitute grounds for acquitting the appellants or for dismissing the criminal case against them. A possible breach of the Treaty would, in my view, have a too remote connection to this case for it to be relevant in this context.
(78)
The prohibition against discrimination in ICCPR Article 26 differs in nature from the requirement for equal treatment in the Svalbard Treaty Articles 2 and 3. In the area that the present case concerns, however – carrying on commercial operations – I fail to see that ICCPR Article 26 can under any circumstances confer greater protection than the provisions of the Svalbard Treaty. Nor, clearly, can it be an option to deem the indictments invalid on the grounds that they are contrary to the general principle of equal treatment in Norwegian law.
(79)
In conclusion, I will address the question of whether ECHR Protocol 7 Article 4 No 1 has been contravened in relation to the shipowning company. I have arrived at the same conclusion as the Court of Appeal on this point as well, but my grounds for this conclusion differ somewhat.
(80)
Pursuant to the Regulations of 13 May 1977 Section 4 concerning Fishing and Hunting Operations by Foreign Nationals in the Economic Zone of Norway, licences are granted to such a number of vessels from each country and on such conditions that the vessels, based on their estimated fishing activities, will catch the quota of fish allocated to the country in question. Conditions can be stipulated in the fishing licence, including the vessel's quota, fishing areas, the fishing gear it can use, the validity period of the licence and which species of fish the licence covers. The licence applies to a specific vessel and cannot be transferred. If practical reasons so indicate, however, the licence can be granted to a specific group of vessels. On our case, the two vessels, which trawled as a pair, had a joint quota.
(81)
On 7 June 2004, as previously mentioned, the Directorate of Fisheries revoked the fishing licence for D and C for 2004 in Norway's economic zone pursuant to the Regulations Section 6 second paragraph, cf. first paragraph. The provision reads as follows:
'Even if other requirements are satisfied, the licence may be refused if, in areas under Norwegian fishery jurisdiction, the vessel's owner, master or crew have contravened the provisions relating to fishing and hunting operations or the conditions prescribed in a licence granted, or if the vessel has been used in connection with such contravention. The same applies if the vessel or the owner of the vessel has either taken part in unregulated fishing in international waters for a stock which is subject to regulation in waters under Norwegian fisheries jurisdiction or taken part in fishing operations that contravene regulatory measures laid down by regional or subregional fisheries management organisations or arrangements.
A licence that has been granted may be withdrawn at any time on the same grounds as set out in the preceding paragraph.'
(82)
In the decisions, it is stated that '(t)he basis for the decision is that the vessel underreported substantial amounts of cod when fishing in the Fisheries Protection Zone around Svalbard between 21 and 31 of May 2004'. The decisions could not be appealed and therefore immediately became final.
(83)
Just before the decisions were made, on 2 June, the prosecuting authority had issued the shipowning company with a confiscation order. It applied to the illegal catches and a part of the value of the vessels, their fittings and equipment. Notice of non-acceptance of the confiscation order was given on 4 June.
(84)
The question is thus whether the continued pursuit of the penal claim pursuant to the Directorate of Fisheries' decision constituted a contravention of ECHR Protocol 7 Article 4 No 1. The provision concerns the right not to be prosecuted or punished twice. The English text of the Convention reads as follows:
'No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.'
(85)
The Norwegian translation reads:
'Ingen skal kunne bli stilt for retten eller straffet på ny i en straffesak under den samme stats domsmyndighet, for en straffbar handling som han allerede er blitt endelig frikjent eller domfelt for i samsvar med loven og rettergangsordningen i straffesaker i denne stat.'
(86)
The Court of Appeal has concluded that the decisions to revoke the licences must be deemed to constitute punishment in relation to ECHR Protocol 7 Article 4 No 1. This is not disputed by the prosecuting authority, and I agree with this assessment. Seen in conjunction with the grounds cited by the Directorate of Fisheries for its decisions, the conditions for revoking a licence indicate that the revocation decisions must be deemed to constitute punishment on the basis of the nature of the offence, cf. Rt-2003-264 and Rt-2004-1500. I agree with the Court of Appeal that the fact that the revocation of the licences did not have any significance because, at that time, the shipowning company had fished its entire quota in the Norwegian economic zone, does not alter the status of this question.
(87)
The Court of Appeal and the parties have also assumed -– without the question having been discussed in detail – that the confiscation order is a punishment in relation to ECHR Protocol 7 Article 4 No 1. In addition to unlawful gain, the confiscation also concerns a part of the value of the vessel, its fittings and equipment. Since this question has not been argued and since, in my view, the confiscation case could, under any circumstances, be brought on the basis of ECtHR case law concerning concurrent prosecution, it is unnecessary for me to discuss this issue further.
(88)
The grounds for the revocation of the licence and for the confiscation order are the same actual actions. It does not thereby automatically follow that the grounds for the sanctions are the same offence, in that ECtHR case law requires that the offences comprise the same conduct and same essential elements. Nor is it necessary for me to take a stance on this question.
(89)
The Court of Appeal has concluded that this is a case of concurrent prosecution that is not prohibited pursuant to ECHR Protocol 7 Article 4 No 1. In the Court of Appeal's view, this case is in the same category as the ECtHR's inadmissibility decision of 30 May 2000 in the case R.T. v. Switzerland (No 31982/96) (ECtHR-1996-31982). The circumstances of that case were as follows:
(90)
On 11 May 1993, R.T had his driving licence revoked by the Road Traffic Office for a period of four months for drunken driving. The decision was appealed, but the appeal was dismissed by the appeal body on 25 May 1994. On 9 June 1993, the Gossau District Office gave R.T. a suspended prison sentence of two weeks with a two-year probation period as well as a fine, for the same conduct. The decision became legally enforceable. The appeal body's decision to revoke the driving licence was subsequently contested and quashed by a Swiss court. In the ensuing proceedings before the Swiss courts, the revocation was upheld.
(91)
The ECtHR found that the appeal against the revocation, insofar as it concerned an alleged contravention of Protocol 7 Article 4 No 1, must be dismissed as 'manifestly ill-founded' pursuant to the Convention's Article 35 No 3. I reproduce the grounds in their context:
'According to the Court's case-law, the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings which have been concluded by a final decision (see the Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53; the Oliveira v. Switzerland judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, p. 1998, § 26 et seq.).
In the present case the Court notes that the Swiss authorities were merely determining the three different sanctions envisaged by law for such an offence, namely a prison sentence, a fine, and the withdrawal of the driving licence.
These sanctions were issued at the same time by two different authorities, i.e. by a criminal and by an administrative authority. It cannot, therefore, be said that criminal proceedings were being repeated contrary to Article 4 of Protocol No. 7 within the meaning of the Court's case-law.'
(92)
As in our case, both the Swiss authorities had decided the question of guilt and then imposed the sanction. In other words, the decision shows that the ECtHR understood Protocol 7 Article 4 No 1 to mean that a person can to a certain extent be found guilty in two parallel proceedings. And even though the ECtHR has in several cases, including this one, emphasised that the purpose of the Convention's provision is 'to prohibit the repetition of criminal proceedings', the ECtHR arrived at the conclusion that what had happened in this case did not constitute a repetition of 'criminal proceedings' in contravention of Protocol 7 Article 4 No 1 'within the meaning of the Court's case-law.'
(93)
The fact that the ECtHR understands Protocol 7 Article 4 No 1 to mean that it is to some extent possible to impose different sanctions in concurrent proceedings is also apparent from the inadmissibility decision of 13 December 2005 in the case Nilsson v. Sweden (no 73661/01) (ECtHR-2001-73661). On 24 June 1999, Nilsson was sentenced to 50 hours' community service for drunken driving. On 5 August 1999, after the judgment in the criminal case had become legally enforceable, his driving licence was withdrawn for 18 months. The ECtHR found that this was not in contravention of Protocol No 7 Article 4 No 1. In this connection, it was stated:
'However, the Court is unable to agree with the applicant that the decision to withdraw his driving licence amounted to new criminal proceedings being brought against him. While the different sanctions were imposed by two different authorities in different proceedings, there was nevertheless a sufficiently close connection between them, in substance and in time, to consider the withdrawal to be part of the sanctions under Swedish law for the offences of aggravated drunken driving and unlawful driving (see R.T. v Switzerland, cited above, and, mutatis mutandis, Phillips v. the United Kingdom, no 41087/98, Section 34, ECHR 2001-VII). In other words, the withdrawal did not imply that the applicant was 'tried or punished again ... for an offence for which he had already been finally ... convicted', in breach of Article 4 § 1 of Protocol No. 7.'
(94)
When the Supreme Court in Rt-2002-1216 considered the corresponding question pursuant to the Norwegian provisions that applied at that time concerning the revocation of driving licences, the chief grounds were that the question of guilt was not re-examined, since the revocation decision was based on the conviction in the criminal case. In the Nilsson v. Sweden case, the ECtHR emphasised the same view as part of its grounds for the revocation being 'a "criminal" matter for the purpose of Article 4 of Protocol No. 7'. This point was not mentioned, however, in the discussion of whether the two sanction could be imposed in different proceedings. This was despite the fact that this was the key argument on Sweden's part. The decisive point for the ECtHR was that, even though 'the different sanctions were imposed by two different authorities in different proceedings, there was nevertheless a sufficiently close connection between them, in substance and in time'.
(95)
While the Swiss case was a case in which it was the sanction in case number two that first became final, the situation in the Swedish case was the opposite. And, since the sanction in the Swedish case had become final and enforceable before case number two started, I see this decision as expressing acceptance by the ECtHR that it is to a certain extent possible to impose a new sanction even if the second case starts after the decision in the first case has become final and enforceable. I would like to add that, in the R.T. case, it was not stated when the judgment in the criminal case became final and enforceable, nor whether the appeal was lodged before or after that point in time. This indicates that the ECtHR did not regard this matter as a relevant factor in the case. The decisive factor pursuant to ECtHR case law is whether there is a 'sufficiently close connection between them, in substance and in time'.
(96)
Moreover, a different solution would not be in accordance with Article 2 in the same convention. Article 2 no 1 first sentence states that 'Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal.' If the right to bring case number two were to always depend on whether the sanction in the first case had become final and enforceable before the case started, this could result in a convicted person, by exercising his right to use legal remedies, making it possible for an additional sanction to be imposed that would otherwise have been precluded. Such as system would not be very reasonable in my view.
(97)
My conclusion from these decisions is that the ECtHR has understood Protocol 7 Article 4 No 1 to mean that it is possible to a certain extent to impose different sanctions in different proceedings even if the question of guilt is re-examined.
(98)
The significance of the R.T. decision (ECtHR-1996-31982) was discussed by the Supreme Court in its plenary decision on surtax in Rt-2002-557. The majority – eight justices – stated:
'Based on the inadmissibility decision of 30 May 2000 in the case R.T. v. Switzerland (case 31982/96), the state has claimed that a final decision along one track cannot prevent a new case along a different track if the new case starts before the first decision has become final. Here, then, this should lead to the conclusion that if the criminal case started before the decision on higher surtax was final, the criminal case can proceed to a final and enforceable judgment and both sanctions can be imposed. I cannot see that there is a basis for such an interpretation. It would clearly break with what has been presumed in both the Gradinger and Fischer judgments, and it would afford very limited protection against double jeopardy. I find no reason to take a stance on whether it is possible to continue the case if a decision has been made in the first instance in the second case before the decision in the first case becomes final.'
(99)
The minority – five justices – agreed with the majority's primary standpoint, but believed, unlike the majority – which did not take a stance on the matter – that it was possible to continue the case if a decision had been made in the first instance in the second case before the decision in the first case became final.
(100)
In my view, the plenary decision in Rt-2002-557 is not in conflict with the understanding of the ECtHR's case law that I have applied here. It is clear from the decision that the question of concurrent prosecution was not deemed to be a main issue in the case. The plenary cases concerning surtax from 2002 were, in important aspects, in a different category than the present case. The connection in time between the sanctions was somewhat different than in this case. The plenary cases were cases in which it was possible to create a legal arrangement whereby the sanctions are imposed in the same case. Our case, on the other hand, concerns the revocation of a licence to carry out commercial operations in which it is difficult to envisage any other possibility than shared competence, and where, as regards the revocation, a swift reaction is important. There is – as I see it – stronger justification for a system of shared competence here than in cases concerning the revocation of a driving licence. While the system in several European countries, now also including Norway, is that the ordinary sanction and the revocation of a driving licence – revocation of the right to drive, as it is now called – are decided in the same case, it seems more difficult to envisage a system whereby the prosecuting authority decides whether a licence to fish in Norway's economic zone is to be revoked.
(101)
Furthermore, I find reason to emphasise that the situation as regards sources of law has changed since the plenary decision in 2002. In the grounds for the ECtHR's decision in the Nilsson v. Sweden case from 2005, it has confirmed and elaborated on the opinions in the R.T. decision.
(102)
As I have previously explained, in my opinion, ECtHR case law does not provide a basis for making it a condition for continued prosecution that a decision was made in the first instance in the case that is to be continued before the decision in the second case became legally enforceable. It is therefore unnecessary for me to discuss this question in more detail – as the Court of Appeal did.
(103)
Given the close connection, in substance and in time, in this case between the revocation of the licence and the confiscation case, I have therefore concluded – to use the ECtHR's own phrase – that there was a 'sufficiently close connection' between the imposition of the two sanctions 'in substance and in time'. I realise that this is a discretionary condition that give rise to problems of delimitation, but it is nonetheless this condition that the ECtHR has set.
(104)
I thus find that nor can the shipowning company's appeal relating to ECHR Protocol 7 Article 4 No 1 succeed, and I vote for the following ruling:
The appeals are dismissed.
(105)
Justice Matningsdal: I am essentially and in effect in agreement with the first-voting justice.
(106)
Acting justice Sverdrup: I concur.
(107)
Justice Øie: I concur.
(108)
Justice Gjølstad: I concur.
(109)
After voting, the Supreme Court pronounced the following
ruling: The appeals are dismissed.
