This case concerns the catching of snow crabs on the Norwegian continental shelf in the Loophole of the Barents Sea. The question is whether the penal provisions in the Marine Resources Act prohibiting such catching without a Norwegian permit are contrary to international law to which Norway is bound under the Convention on Future Multilateral Co-operation in Northeast Atlantic Fisheries (the NEAFC Convention).

Arctic Fishing is a Lithuanian shipping company engaged in the catching of snow crabs, among other species. The company owns and manages the vessel Juras Vilkas. A was the master on board the vessel. On 18 July 2016, the Commissioner of the Finnmark Police issued a confiscation fine against Arctic Fishing of NOK 2,500,000 for violation of the Marine Resources Act. On the same day, the Commissioner also issued a fine against A of NOK 15,000 for violation of the Act.

The District Court found that the vessel had been catching snow crabs in the Loophole in the Barents Sea on the Norwegian side of the demarcation line towards Russia, as described in the fines. But the District Court concluded that this was not punishable, as it took place in accordance with a permit issued by Lithuanian authorities. The prohibition was thus not applicable as it is 'contrary to Norway's obligations under the NEAFC Convention and the NEAFC Scheme of Control and Enforcement'. The Commissioner appealed the judgment to the Hålogaland Court of Appeal. The Court of Appeal set aside the District Court's judgment. The Court of Appeal held that the District Court's judgment was based on an incorrect application of the law because the NEAFC Convention does not restrict the rights granted to the State Parties under UNCLOS. UNCLOS gives Norway an exclusive right to the resources on the continental shelf. Hence, there is no conflict between the Norwegian rules and the NEAFC Convention.

Arctic Fishing and A (the appellants) appealed the judgment to the Supreme Court, contending that the District Court's judgment must be upheld. The appeals concern the application of the law.

Held: The appeals are dismissed.

The Prosecution Authority contends that the Court of Appeal's judgment is correct. Neither the NEAFC Convention nor the NEAFC Scheme restricts Norway's sovereign rights on its own continental shelf under UNCLOS, art 77.

The starting point is UNCLOS, to which Norway became a party in 1996. Pursuant to arts 77.1-3, the coastal State exercises 'sovereign' and 'exclusive' rights over its continental shelf 'for the purpose of exploring it and exploiting its natural resources'. Norway's continental shelf extends through and beyond the Norwegian part of the Loophole: see art 76 and the recommendation of the Commission on the Limits of the Continental Shelf from 2009.

The natural resources are described as follows in art 77.4: 'The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.'

It follows that Norway, under UNCLOS, has a sovereign and exclusive right to exploit the snow crab - a 'sedentary species" - on the Norwegian side of the Loophole. The parties agree on that. The consequence is, pursuant to art 77.2, that no-one may catch snow crabs in this part of the Loophole without 'express consent' from Norway.

The Court held that neither the NEAFC Convention nor the NEAFC Scheme could be construed as providing the consent required under UNCLOS, art 77.2 in order for anyone to exploit natural resources on their respective continental shelves.

There was also no State practice changing this understanding of the NEAF Scheme. It is correct, as the appellants have pointed out, that the Regulation on the Prohibition against Catching of Snow Crab was not applicable for the continental shelf until 22 December 2015, and some catching did take place before that on the Norwegian side of the Loophole, also from foreign vessels. But this does clearly not oblige Norway or other Contracting Parties to continue to accept such catching without the coastal State's consent. In 2015, moreover, Norway, Russia and the EU expressed that the coastal States have a right alone to exploit the snow crab on their respective continental shelves. There is also nothing in the response that the EU Commission gave to the European Parliament on 15 June 2017 that implies that the EU has assumed a different view on this issue now.

Norway is thus not bound by any obligation under international law to accept catching of snow crab in the Loophole from a Lithuanian vessel without a Norwegian permit. The Regulation on the Prohibition against Catching of Snow Crab must therefore apply according to its contents. The District Court's judgment is based on an incorrect application of the law. Thus, the Court of Appeal was correct when setting aside the District Court's judgment.