This case relates to punishment for the catching of snow crabs (chionoecetes opilio) on the Norwegian continental shelf in the Svalbard Fisheries Protection Zone without a permit from Norwegian authorities. Before the Supreme Court, the case has been limited for the time being only to the issues addressed by the Court of Appeal. This means that the Supreme Court is only to assess whether the snow crab is a sedentary species and whether catching it is punishable regardless of the application of the Svalbard Treaty (the Treaty) in the relevant area, and regardless of whether the legal basis for exemption in s 2 of the Regulations on the Prohibition against Catching of Snow Crab (the Snow Crab Regulations) or the practical application thereof contravenes the Treaty's principle of equal rights.

SIA North Star Ltd was a Latvian shipping company engaging in catching snow crabs. It owned the vessel Senator and two other vessels equipped for this activity. A is a Russian citizen and was the captain on board the Senator when the relevant catching took place. On 16 January 2017, while the Senator was operating in the crab-fishing field on the Central Bank, the vessel was boarded by the Norwegian Coastguard for inspection. It was then positioned in the Svalbard Fisheries Protection Zone, on the Norwegian continental shelf. During the inspection, it was revealed that the Senator had put out a large number of crab pots. The captain presented a Russian permit to catch snow crabs. The vessel did not hold a Norwegian permit. The Coastguard ordered the catching stopped and the vessel brought to shore in Kirkenes.

On 20 January 2017, the Chief of Police in Finnmark issued a penalty notice against the shipping company and the captain for illegal snow crab catching on the Norwegian continental shelf in the Svalbard Fisheries Protection Zone. The shipowner was given a corporate fine of NOK 150,000 and a confiscation order of NOK 1,000,000. The captain was fined NOK 50,000. Both A and SIA North Star Ltd (the appellants) appealed to the Supreme Court.

Held: Appeals dismissed.

Any contravention of the prohibition against snow crab catching is punishable under s 61 of the Marine Resources Act, to which a reference is made in the Snow Crab Regulations (the Regulations). According to their wording, the Regulations relate to harvesting in Norwegian marine territories, in internal waters and on the continental shelf. At the same time, the Marine Resources Act, the legal basis for the Regulations, sets out that it applies subject to any restrictions deriving from international agreements and other international law: see s 6. The same is set out in s 2 of the Penal Code, that criminal legislation applies subject to the limitations that follow from international law.

Consequently, it must be determined whether catching snow crabs, under international law, is covered by the coastal State's rights related to the continental shelf. It follows from UNCLOS, art 77, that the coastal State has a sovereign and exclusive right to exploit natural resources on the shelf, including sedentary species. If the snow crab is covered by this term, no-one can catch snow crabs on the continental shelf without an express permit by the coastal State, here Norway.

Is the snow crab a sedentary species under UNCLOS? Although the Vienna Convention on the Law of Treaties 1969 has not been acceded by Norway, its principles have long been applied as customary international law: see the Supreme Court judgment HR-2017-569-A para 44, summarising the principles as follows: 'The Convention must be interpreted in accordance with the principles in the Vienna Convention of 23 May 1969. The starting point is the natural understanding of the wording, read in the context in which it is placed and in light of the objective of the Convention, see the Supreme Court judgment in Rt. 2012 page 494 paragraph 33. It is set out in Articles 31 and 32 of the Convention that other sources of law will have limited relevance to the interpretation. This entails that there is little room for a dynamic interpretation.' These principles entail that a treaty's own definition of the words and expressions used in the text will have to form the basis for the interpretation of the treaty's wording.

The Court of Appeal described the snow crab and its attributes as follows:

Senior scientist Jan Henry Sundet of the Institute of Marine Research has been researching crabs in general since 1993 and snow crabs in particular since 2006, and gave a statement as an expert witness before the court of appeal. The court of appeal concludes, based on his statement, that the snow crab does not have physical or anatomic attributes that enable it to lift itself up from the seabed or swim. It has a negative buoyancy in the sea and cannot adjust the pressure from within. The exception is as a larva; then it floats in the sea, but is not harvestable, see the definition in Article 77 (4). According to Sundet, there is no disagreement among scientists in Norway, USA, Canada, Greenland and Russia that the snow crab, biologically, fits the definition in UNCLOS. Sundet also explained that the snow crab wanders and constantly spreads to new areas in the Barents Sea, it wanders deeper as it gets older, it wanders to mate and it wanders to find food. The defendants have contended that the snow crab is able to use its feet to lift itself from the seabed, and crawl for instance outside of a pot, and that the individuals often lie or crawl on top of each other on the seabed, so that they are not in constant contact with the seabed. Also, a crab that has for instance crawled up on a rock on the seabed may slide off it, and during the time this takes, it will move without being in contact with the seabed. The court of appeal does not doubt that, but it does not change the snow crab's anatomy, and the examples require physical instruments, streams in the sea or similar, which detaches the crab from the seabed. In the absence of such instruments, there is no doubt that the snow crab is unable to move without being in constant physical contact with the seabed.

Both appellants contend that the central term in UNCLOS art 77.4 is 'sedentary species', which, in semantic terms, means that the organism stays in one place - it is immobile. It is pointed out that 'sedentary' is included in the text for a reason, and must be given weight. Material from Russian and Canadian scientists shows that the snow crab is able to move across large areas each year, which means that it is not sedentary. It is also contended that the context supports such an interpretation, hence the use of 'immobile', 'unable to move', and the requirement of 'constant' physical contact with the seabed.

But the word cannot be read in isolation. UNCLOS art 77.4 gives a further explanation - 'that is to say' - of what the term 'sedentary' includes. According to the wording, it includes species that are either immobile or unable to move without being in constant physical contact with the seabed or the subsoil. This is what sedentary species means under the Convention. The biological definition of sedentary or the general semantic meaning of the term is therefore of less interest. The wording in art 77.4 suggests that the issue of review is the snow crab's natural pattern of movement. It is not disputed that the crab mainly wanders on the seabed. The crab's ability to climb on rocks and pots - and on other crabs - and the fact that it during short periods may drift with the water flows if it should slide off rocks etc, does not change the fact that the crab, by nature, is dependent on being in constant physical contact with the seabed in order to move.

Furthermore, nothing in the wording suggests that the mobile species must be stationary. It is therefore irrelevant if individuals of a species, at the time of harvesting, are able to move across large areas, as long as they are then in constant physical contact with the seabed. This must apply even if they move from the jurisdiction of one coastal State to that of another. Such an interpretation is also supported by the Convention, read in context. It sets out expressly that both immobile species and species that move in constant contact with the seabed are sedentary. It is difficult to see which species would be comprised other than entirely immobile ones, if such a narrow interpretation as the appellants promote should be taken into account. The option 'constant physical contact with the seabed' would then be superfluous. It must be assumed that the definition of sedentary was included to eliminate species that had alternative natural ways of moving than by constantly touching the seabed.

With this interpretation of the wording and the context, it is not necessary to discuss the preparatory works to UNCLOS or previous Conventions. They do not form a clear picture. Nor is there any reason to further discuss State practice, but the EU, Russia and Canada under various circumstances have held that the snow crab is a sedentary species within the meaning of the Convention. Considering the snow crab's natural pattern of movement in conjunction with the wording in UNCLOS art 77.4, it is clear that the snow crab is a sedentary species covered by the coastal States' exclusive right to exploit natural resources on the continental shelf. The consequence is that the international law reservation in s 6 of the Marine Resources Act does not preclude that the catching of snow crab requires a permit from Norwegian authorities.

The Court further held that the appellants can be punished irrespective of whether the Treaty applies to catching snow crabs in the relevant area. It is irrelevant whether the basis for exemption in s 2 of the Snow Crab Regulations is in conflict with the Treaty. What ultimately justifies the punishment of the appellants is that the Treaty's principle of equal rights has not in any case been violated, since everyone - Norwegian citizens and companies too - can be punished for catching snow crab in the area without a permit from Norwegian fishery authorities. The appellants did not hold a permit.