On 20 March 2023 the Supreme Court of Norway handed down its SIA North Star Ltd v. Staten v/Nærings- og fiskeridepartementet, Judgment HR-2023-491-P (sak nr. 22-134375SIV-HRET). The case concerned the applicability of Articles 1-3 of the Treaty concerning the Archipelago of Spitsbergen (Svalbard Treaty) towards the continental shelf off Svalbard, principally:
The High Contracting Parties undertake to recognise, subject to the stipulations of the present Treaty, the full and absolute sovereignty of Norway over the Archipelago of Spitsbergen…
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…
Article 3Treaty concerning the Archipelago of Spitsbergen 2 LNTS 7
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.
They shall be admitted under the same conditions of equality to the exercise and practice of all maritime, industrial, mining or commercial entreprises both on land and in the territorial waters, and no monopoly shall be established on any account or for any entreprise whatever…
The Supreme Court of Norway found that Article 1 affirms Norway’s full and absolute territorial sovereignty over Svalbard, subject only to stipulations and limitations derived from the Svalbard Treaty. Residual rights remain with Norway. Within this context, the term “territorial waters” in Articles 2 and 3 was historically used at the time to refer to the internal waters and territorial sea of a coastal state. The court rejected an argument for an evolutionary interpretation so as to include the continental shelf within territorial waters and thus Articles 2 and 3 for lack of basis. Such a development would have required an agreed amendment. Therefore, the default rules under UNCLOS apply whereby foreign nationals do not have a right of fisheries access or exploitation on the continental shelf (Article 77 of UNCLOS).
For more information see here.