A Geographical, Historical and Legal Perspective on the Right to Fishery in Norwegian Tidal Waters

• Author: Jørn Øyrehagen Sunde
• Pages: 108-130

108

A Geographical, Historical and Legal

Perspective on the Right to Fishery in

Norwegian Tidal Waters

Jørn Øyrehagen Sunde

Abstract

Hugo Grotius proclaimed freedom of the seas in 1609, and this natural law prin-

ciple was interpreted to include freedom of tidal shing. His act represented a far

more political than juridical cla im. Exclusive shery rights can be documented

all around the North Sea ba sin, and even in Roman law theory in the High and

Late Middle Ages were such rights given protection. In Norway in 1728 an eort

to free tidal shery to anyone by law was ignored in the main, and the centuries-

old custom of exclusive rights to tidal shing prevailed. Although aer 1857 ex-

clusive tidal shery rights have been gradually abandoned in Norway, they were

protected by the Norwegian Supreme Court in 1894 and as late as 1985, and again

recently with the Norwegian Ocial Report 2008: 5, where a claim was made to

protect tidal shery rig hts by law in the county of Finnmark.

Key words: Mare liberum, tidal shery, tida l shery rig hts, customary law, law

and economics.

Arctic Review o n Law and Politics, vol. 1, 1/2010 p. 108–130. ISSN 1891-6252

a geog raphic al, hi storic al and le gal pers pectiv e on the ri ght to fi shery

109

1. Exclusive tidal fishery rights in Norwegian written

law, legal literature, legal practice and preparatory works

Aer Norway became independent in 1814, and a Norwegian parliament was con-

stituted as lawmaker the same year, one of the rst laws passed in 1816 concerned

the shery in Lofoten. Both this law and that concerning the shery in Finnma rk

of 18301 demonstrate that the concept of exclusive rig ht to tidal shery was cen-

tral to public regulation of the sher y.2 Exclusive right became the core of the

shery pol icy of the absolute Danish-Norwegia n king from 1790,3 aer a failed

eort to make all shing, except salmon shing with land-based shing gear, free

to anyone in 1728: “En hver sker den Fisk Havet giver af sig, hvor den falder” –

anyone can sh in t he sea, wherever t here are sh to be shed.4 But not u ntil a

new law on shery in Lofoten in 1857 was shing actually made free to everyone.

Even still the principle of free access to sh only applied to this part icular shing

ground, although gradua lly it became the general norm for all Norwegian waters

through further legislat ion and/or usage. However, the principle of free sher y

ran contrary to the ancient custom of exclusive tidal shery rights found all along

the Norwegian coast. As late as 1851 discussion continued whet her the best way

to regu late tidal sher y would be to map and sort out sea-based rights as was

done with land-based rights.

5

It was the cost of such an operation, rather than

principles of law, that decided t he introduction of free tida l shing as the ru ling

principle of law in 1857.

Exclusive tidal shery rights remained a topic for debate in the legal literature

even aer the passing of the 1857 law. In the rst published treatise on Norwegian

property law from 1867, Professor Fredrik Brandt stated:

1. Lov, angaaende Fiskeriet i Lofoden, of 1.7.1816 §§ 6 and 7, and Fiskerierne i Finmarken eller

Vest- og Øst-Finmarkens Fogderier, of 13.9.1830, especially §10. See as well Storthings Forhand-

linger 1857 p. 24.

2. In common law exclusive shery in navigable rivers and the sea is termed “several shery,” see

Paterson 1863 p. 50. is terminology is embedded in common law discourse, and it is dicult

both to apply the terminology and at the same time escape the discourse, which is not especially

relevant in a Norwegian context.

3. Forordning angaaende Silde- og Torskeskeriet i Fosens Fogderie, of 21.12.1792, 1–1.

4. Reskript angaaende at Hummer-Fiskeriet er Enhver tilladt, of 23.4.1728.

5. e NNA: Arkivet for Indredepartementet, D, Torskeskerierne Lofoten, Lofoten 1850–1874, 10,

Legg D 1850–55: Lofotlovgivningen, Diverse eldre dok. 1854 og 55, Letter of 29.6.1851. See as

well in the same archive: Fiskerikommisjonen av 1891, Diverse, XVI–1a-1d, Legg: Kommisjonen

av 1891, Diverse, letter of 27.1.1852, comments to §8.