The rule of law and sound resource management in the High North
Oslo, 25 January 2007
Ladies and gentlemen,
It is often said of Norway that it is young as a state, but old as a nation. Similarly, if we go back to the Viking age, we see that we have a relatively short history of the rule of law, but a long tradition of resource management.
Norwegians exercised their way of resource management in the High North when our nation was in its making some thousand years ago – although it was probably a far cry from sound resource management as we understand it today. And those who encountered the Norse in those days hardly would associate their behaviour as an application of the rule of law – if I may say so.
In my view, knowledge drives development. Knowledge made available to all drives societies and individuals towards freedom and more responsibility. Therefore, the creation of the Norwegian Academy of Science and Letters – Det norske Videnskaps-akademi – 150 years ago stands out as a major sign of progress – an important step towards Norway’s independence, towards the establishment of the rule of law in a democratic sovereign state, and even towards an awareness of the need to manage natural resources in a sustainable manner.
Politics and Law is the main theme of this conference. Both elements need to be considered in order to understand Norway’s approach to its responsibilities as a coastal state in the High North – and this is why:
On the one hand – here – as in other aspects of our national policy and international relations – Norway is a consistent supporter of emerging law where relations between states, individuals and economic actors are shaped by rule-based governance.
The rule of law is a cornerstone of any democratic state. If we are to manage our common future as nations and peoples, we need to continually strengthen the rules that safeguard our rights and codify our responsibilities.
This is essential in order to ensure that our civilisation can manage our planet’s natural resources in a sustainable manner – and not least – that we are able to deal adequately with the issue of climate change.
But on the other hand – for this to happen – now speaking about the rule of law – we need politics – as an expression of democratic will and ambition.
We need a readiness to improve and modernise rules to take account of new knowledge – such as evidence of the state of the fisheries resource base. And we need politics to address new challenges – such as the root cause of climate change as well as the mitigation of its consequences.
In all of this science is key, both in order to obtain necessary information and to identify solutions.
This is why we are assembled here to salute the Norwegian Academy of Science and Letters. In our celebration of its 150th anniversary, we should pay tribute to those who had the vision to create the Academy. When doing so, we should try to envisage what the world looked like in 1857, 150 years ago.
Henrik Ibsen was busy writing The Vikings at Helgeland and had just been appointed Artistic Director of Kristiania Norske Theater. Charles Baudelaire published his poems Les Fleurs du Mal, and Charles Darwin – who was studying other types of flowers – was writing The Origin of Species, which would be published two years later.
The then fourteen-year-old and very talented Edvard Grieg was about to set out for Leipzig to study at the Conservatory there. In Eastern Europe the terrible Crimean War had ended, and in India local uprisings – the so-called ”Indian Mutiny” – sent shock waves through the colonial power Britain, and gave the first signs of a new world order to come.
These were the headlines when the Norwegian Academy of Science and Letters was founded. But I have been thinking – that the contrasts of the world of the 1850s were no less striking than today. But the difference today, is that we are so acutely aware of the contrasts – through travelling, through the media, through extensive communication.
Last Saturday, I returned from a five-day trip to Afghanistan – and I was also working on this address to you. It is hard to imagine a context more unlike contemporary Norway.
Yet Afghanistan is an illustration of global interdependence. NATO, created to safeguard our trans-Atlantic security, is now engaged in Afghanistan in its broadest operation ever. And Afghanistan is the second-largest recipient of Norwegian foreign aid – quite unbelievable, isn’t it.
Having travelled through Afghanistan – described by leading Afghan politicians not as a post-conflict country but rather as a post-disaster country – I would like to sum up my impressions with some basic reflections I believe are relevant to our gathering today:
Afghanistan will need military support to create the conditions for development. That is what the mission of ISAF is all about. But military action alone will not put Afghanistan back on track. Only good governance and real development will. Only Afghans can rule and set the course for Afghanistan. Afghans desperately need a framework for Afghan politics and a solid framework for the rule of law. Without such key elements of political and societal infrastructure, I fear everything else will derail.
Military presence alone, even with the friendliest of intentions and the most accurate of mandates, cannot ensure development and good governance.
The message I heard repeatedly from people I met from north to south and east to west – not least by the military themselves – was the following; what Afghanistan needs is capacity. Capacity to govern. Capacity to fight corruption. Capacity to fight drugs. Capacity to fight remaining warlords and insurgents. Capacity to develop.
So this is where we need to put our emphasis. Yes, security through a well-measured military presence. But our vision must be wider.
Norway is now in the process of building new bridges to Afghanistan. Norwegian troops are assisting in training Afghan military personnel. Norwegian police officers are helping to train the Afghan Police.
Norwegian energy experts are sharing Norwegian energy management expertise with the Afghan Ministry of Mining. Norwegian doctors at Haukeland Hospital in Bergen are preparing to share their experience of treating patients with severe burns. The Norwegian red Cross is preparing to help build capacity in Afghanistan Red Crescent. And Norwegian authors are supporting their Afghan writers in Kabul through an Afghan section of the international PEN.
So it strikes me – and perhaps you as well – that the Norwegian Academy of Science and Letters should follow suit and reach out to your Afghan colleagues? I am sure they would welcome it. And you would learn from it as well.
We are here today to honour an institution that stands for critical scrutiny, open discussion and integration of knowledge from different perspectives. I find it most appropriate that the Academy of Science and Letters is celebrating its anniversary by opening its doors and presenting a series of seminars and conferences on a broad range of highly relevant topics.
Knowledge cannot be equated with certitude. The hallmark of academic excellence is a never-ending struggle for truth and quality.
A key element of the rule of law can be illustrated by one of its opposites, the arbitrary use of power. Or by the lack of the means – or will – to impartially enforce the law. Tha Afghans know all about it.
Since the fall of communism we have seen examples of the consequences this can have. We have seen the detrimental effects of certain privatisation programmes, with massive transfers of assets without proper regulatory frameworks.
We have also witnessed societies where the rule of law and equality before the law have become little more than empty political slogans.
We have seen respected states argue that key principles of international humanitarian law do not apply when it comes to the so-called war against terror – and we have seen the accumulated negative effects of this approach.
We have seen so-called failed states that constitute breeding grounds for corruption, drugs trafficking and threats to peace and security.
Recent years have demonstrated how the lack of legal determinacy can undermine development, prosperity and peace.
Dr Amartya Sen – the 1998 Nobel Laureate in Economics – is not alone in reminding us of the role of rights and other foundations of justice, which is the main theme of his book Development as Freedom. There can be no real rights or freedom for individuals, no real security, no long-term investments, there can be no effective discharge of responsibility and accountability for protecting the environment, without the effective, accountable and impartial exercise of state authority and law enforcement.
I would argue, that today, the lack of compliance with universal standards and rules poses a threat not only to individual and collective interests, but also to broader international interests.
One well-documented example of this that we have seen in several maritime areas in the High North is insufficient compliance with rules designed to ensure sound and sustainable marine resource management.
What is at stake if we fail to ensure that our resource management is sound and sustainable?
The answer includes vulnerable ecosystems. As we speak, Norwegian public opinion has been mobilised because of the oil spill from the freight ship Server at Fedje, off the south-western coast of mainland Norway, two weeks ago. And we should ask ourselves: Were we well enough prepared? What have we learned?
Our fisheries are also at stake. Fish stocks are an essential, renewable source of food. They are also an essential, renewable source of income for our coastal communities in the High North.
The depletion of important fish stocks is easily achieved, as we have repeatedly seen. In fact this phenomenon ranks among the leading threats not only to global ecosystems but also to our ability to feed a growing world population. Faced with the challenge of illegal fishing in the Barents Sea, it is as tempting as it is frightening to remind our audiences of the fate of the cod stocks in the waters off Newfoundland. We know this all too well: The restoration of fish stocks is not easily achieved.
Let me give you two examples that should serve as clarion calls.
The first concerns the collapse in 1970 of the population of Norwegian spring-spawning herring, as a consequence of overfishing. It took the application of stringent management measures over many years to successfully rebuild those stocks. Only after 1994 did it resume broader migration patterns in the North Atlantic. Still, we have been lucky, since we know that other stocks in other areas have not fared so well.
Last week we reached agreement with the other coastal states on an overall herring management agreement for these crucial waters. Any such agreement is a compromise. But failing to reach agreement amounts to neglect of responsibility.
The second example is the 1989 Exxon Valdez oil spill in Prince William Sound, in Alaska. It has had long-term effects on major salmon and herring fisheries in extensive maritime areas. The shoreline is still polluted by toxic substances, something no one expected. Some species have not recovered. Today, 18 years after the spill, salmon and herring reproduction is still affected and has not stabilised. Scientists are still monitoring numerous indirect effects on the marine ecosystem.
Where does the rule of law come in here?
The problems of ocean space are closely interrelated and need to be considered as a whole. On this basis, the international community spent a decade of intensive negotiations on the modern law of the sea. This resulted – as we know – in the finely calibrated text of the United Nations Convention on the Law of the Sea, which was adopted in 1982, and supplemented in 1995 by the UN Fish Stocks Agreement.
The Convention explicitly establishes a modern legal order for the oceans. Its declared objective is to settle all issues relating to the law of the sea. It establishes the rights, duties and responsibilities of coastal and other States with regard to resource management and environmental protection in zones and on the continental shelf.
The message is absolutely clear: The rights and obligations of States under other agreements remain unaltered only if they are compatible with the Convention.
What key contributions has the Convention on the Law of the Sea made to the peaceful and reasonable uses of the seas and oceans?
The list is long, but in essence the Convention provides a definitive clarification of the authority – or jurisdiction – and duties and responsibilities of the coastal State in coastal zones vis-à-vis other States’ users.
For Norway, with waters under our jurisdiction six times the size of our mainland – this reality heavily influences own perception of what it takes to behave as a responsible coastal state.
Let us not confuse realities: The rule of law is not the same as a love of rules for their own sake. The key point here is that the rule of law is a precondition for effective policies.
Treaties and national legislation can never be a substitute for policies and innovation. But they can provide a predictable framework. They can create an environment of trust in a world of risks, to borrow an analogy from the British sociologist Anthony Giddens.
When I refer to “State authority” and “law enforcement”, I think of the Constitutional State – “the Rechtstaat”. I think of separation of powers, of the principle of popular sovereignty. I think of the legal protection of individuals, in an open, democratic and accountable system, on the basis of the determinacy of laws.
None of this excludes the political balancing of interests through decisions taken in a political public sphere, in accordance with international obligations.
On the contrary: In my political family – the social democratic family – we firmly believe in the role democratic politics has in shaping living and working conditions among ourselves. When we see signs of “an empire of lawyers or judges”, then we must remain on alert. And when we see signs of the abdication of politics in a democracy – then we must mobilise that very same democracy.
The rule of law provides the framework for the exercise of politics, and in this perspective the rule of law is a precondition for democratic politics. This is why we need to see obstacles to the rule of law as obstacles to development and prosperity, as Dr Sen showed in his works.
One such obstacle is the lack of effective State authority exercised in conformity with international law. – As in Afghanistan; capacity to govern. Another is insufficient international cooperation or lack of adherence to common, binding international rules. This impedes effective action to protect individual and collective interests and broader international values.
This is most vividly illustrated by the policy challenges we face as we gain more insight into accelerating climate change.
This challenge stems from the collective, cumulative effects of greenhouse gas emissions – which individual States cannot effectively address alone.
The High North is nothing less than the orchestra stalls around the stage on which the drama of global warming is unfolding. We have front-row, the best seats for watching and studying what is going on. It is indisputable that the polar ice cover is rapidly diminishing.
The reduction of the ice cover has a multiplying effect on the warming of water masses because it affects the Earth’s reflection of sunlight.
Scientific reports indicate that as much as one third of total emissions of CO2 is absorbed by the oceans. Elevated levels of CO2 in the atmosphere are rapidly changing ocean carbon chemistry and leading to ocean acidification.
There is abundant evidence: Last fall the British economist Sir Nicholas Stern set out the reasons why change is imperative in his Review on the Economics of Climate Change. As regards the High North, compelling scientific evidence was presented to the Arctic Council by the Arctic Climate Impact Assessment (ACIA) in 2004. And in the coming weeks more new evidence will be presented by a panel of the world’s leading scientists.
My point here is that the inertia that marks the progress of the international climate regime will require efforts in the domains of both law and politics.
Of the two, politics is where the major challenge lies, and more specifically in the mobilisation of political resolve, rather than in a lack of legal tools and creativity. But we will need continuous efforts to develop a legal framework that covers more states – and we will need new mechanisms and new incentives for technology development and technology transfer.
All states must contribute. Norway will do its part – both in terms of CO2 reductions, and by sharing experience and developing new technologies, not least in the area of CO2 capture and storage.
Some of the reasons for the international interest in the High North are – in addition to global climate change, which is most obvious in the Arctic – the living marine resources in the Barents Sea and the Norwegian and Russian petroleum resources. – This changed the perspective. Increasing attention is also being directed to the importance of protecting the unique environment in the north and the fragile ecosystems that produce living resources for future generations.
In this context, sound and sustainable resource management in the High North is a key priority for Norway. Energy security, reliability, transparency, sound resource management, environmental protection and international cooperation are all parts of our vision, but also – I would like to add – a mainstay of our political tradition.
The value of indigenous peoples’ traditional knowledge to modern science is also becoming increasingly apparent.
For Norway, sustainable development in the north is not just a regional policy aim; it is of strategic importance for the entire country. This was underlined in the Government’s High North strategy, which was presented in Tromsø on 1 December last year. The two main features of our strategy are predictability and a long-term perspective.
In this context, we assign a key role to the rule of law as the basic framework for developing our policies. The legal framework is essential to enable the adoption of effective policies – both as regards all aspects of resource management and as regards all kinds of cooperation between concerned states. – It opens a new energy chapter.
Our ambition is to ensure that we have a firm basis – that we continue to possess, manage and develop cutting-edge knowledge in all areas that are relevant to the High North. Knowledge is at the core of our High North efforts: building knowledge and experience so that we can show the way, utilise existing opportunities, discover new ones, strengthen networks and attract other countries that want to take part. The new Barents 2020 Programme is designed to meet some of these needs in building more knowledge and new networks in the High North.
The Barents Sea is emerging as a new energy province for Europe. It is our responsibility to contribute to maintaining it as a stable, peaceful and open region of cooperation. Again knowledge is key. A German professor of political science confessed to me that as far as he was concerned, the High North stretched to Schleswig-Holstein. Thus, one important part of Norwegian public diplomacy will consist in introducing friends and partners from near and far to the realities of a region that lies far north of the shores of continental Europe. We need a focus on both the politics and the law in the High North. – By the way, just a few weeks ago a Norwegian-Indian cooperation agreement on research in the High North was established.
One issue of relevance in this regard concerns the archipelago of Svalbard, because, in fact, everything I have said so far has a bearing, directly or indirectly, on the subject.
Exciting Svalbard, fascinating Svalbard, next to the North Pole. More and more people are discovering the archipelago. This manifests itself in a variety of ways – from the revival of traditional mining activities and the growing number of tourists, to the scientific world’s interest in Svalbard as an ideal base for a wide range of Polar research. Norway welcomes everyone to the archipelago who is willing to play by safe and sound rules.
I notice from time to time that some people question the legal status of the archipelago. It is, indeed, a special story, but the facts and the legal sources are clear and should not dispel any doubt.
The 1920 Treaty concerning Spitsbergen recognises full Norwegian sovereignty over the archipelago and requires Norway to ensure certain rights for other states parties’ nationals.
Naturally, sovereignty includes the authority to legislate and enforce, within limits set out by international law. For its part, our neighbour to the east, the then Soviet Union, unconditionally and unilaterally recognised Norwegian sovereignty over the archipelago as early as in 1924, 11 years before becoming a party to the Spitsbergen Treaty.
Two years later, the Soviet Union adopted a sector decree, in April 1926, with the declared aim of establishing sovereignty over a large number of islands further east in the Arctic. The Soviet Union was keen to underline that the claim did not, of course, cover territories where it had already recognised the sovereignty of other States.
Accordingly, in its formal notification to Norway, the Soviet Union made it absolutely clear that this reference was to the Norwegian territory of Svalbard. Interestingly enough, at the time, the resulting point of contention with Norway was not Spitsbergen, but Franz Josef Land.
When it comes to the issue of sovereignty, I would give you a brief historical review.
Throughout history, the normal way of acquiring sovereignty over remote territories has been by unilateral action. This has often resulted in protests from other states, followed by – sometimes controversial – occupation over a period of time.
We should not forget, at the time, surrounding northern areas were no man’s land – terra nullius.
It was Norway that took several initiatives in a spirit of openness and consultation to settle the Spitsbergen issue. This approach, with the ensuing recognitions of Norwegian sovereignty, mainly through a multilateral open-ended treaty, showed quite a unique spirit of openness, transparency and cooperation, in the post World War I environment.
All the same, these recognitions of sovereignty definitively settled the relevant issues of international law – and at an early stage compared with a number of other territories in the High North. – And the case of Franz Josef Land, which is close by, is just one example of how international recognition of sovereignty usually came about. Norway protested against the unilateral claim over of Franz Josef Land, referring to the many Norwegian economic interests on these islands. In fact, Franz Josef Land had previously often been referred to as North East Spitsbergen.
In the 1920s the Soviet Academy of Sciences, another illustrious partner of your institution, is also said to have proposed naming the archipelago Fridtjof Nansen Land. Presumably this was because Nansen, the famous Norwegian polar explorer who had done such outstanding humanitarian work during the terrible famine in the Soviet Union – and who who later became High Commissioner for Refugees – had once been forced to spend months in a cave on Franz Josef Land while returning from a Polar expedition.
Anyway, recognition of Soviet sovereignty over Franz Josef Land came about with them, and Norway did not de facto uphold its reservations against Soviet sovereignty. Irrespective of past history, no one today could question the sovereignty of the Russian Federation over these islands. International law is absolutely clear on this point.
Similar observations could be made about Norwegian sovereignty over Jan Mayen or other states’ acquisition of sovereignty over territories that stem from unilateral occupation.
We should also bear in mind the particular vulnerability of the natural environment of the Svalbard archipelago, a fact that was highlighted in a visionary way as early as 1919 – although modern environmental law is generally said to have emerged after the 1972 Stockholm Declaration of the UN Conference on the Environment. In fact, the importance of the pristine natural environment of Svalbard had been highlighted some 52 years earlier, as reflected in Article 2 of the 1920 Treaty.
The differences of view with regard to the geographic scope of application of some of the clauses of the 1920 Treaty, concerning equal treatment and taxation, are well known.
I will not go into detail about this here, other than to say that the consistent position taken by this and previous Norwegian governments is that the wording of the treaty is clear: The references to territorial waters actually mean what they say. The clear terms proposed by Norway and adopted in 1920 cannot easily be discarded.
Even during the bleakest years of the cold war, we worked closely together with all our partners to promote policies for sustainable development in the Barents Sea. This included working out uniquely successful fisheries cooperation with our Russian friends and neighbours.
This tradition of cooperation and sound management needs to be pursued – in the interests of all.
In conclusion, today our primary challenges are related to climate change, lack of compliance with fisheries rules on the high seas and other threats to the marine ecosystems in the High North. It relates to the careful and responsible exploration of oil and gas in a new European energy province. – And it relates to the many possibilities, opportunities and challenges in the joint Norwegian-Russian cooperation in the High North.
In addressing all these challenges we must not lose sight of the importance of the rule of law for the sound and sustainable management of marine living resources.
And in every challenge we face – as a nation, as a member of our globalised world – we must never lose sight of the role each and every one of us can play.
As Professor Kristian Birkeland put it, sitting in front of the fireplace in Norsk Hydro’s new administration building in Notodden in 1910: “A very few lonely pioneers make their way to high places never before visited. Others follow these new paths, and sometimes the pioneers build roads so wide that the masses may follow. These pioneers create the living conditions of mankind and the majority are living on their work.”
With these words – and in applauding the Academy’s Anniversary – I wish you a successful symposium.
Published by African Press in Norway, APN, firstname.lastname@example.org, tel +47 932 99 739