This article is reprinted from The Circle 4.14. Kamrul Hossain is a Senior Research Scientist, Northern Institute for Environmental and Minority Law Arctic Centre, University of Lapland
The Arctic is dominated by a marine area that is equal in size to continental Africa and is surrounded by the landmass of six countries. The primary international legal framework applicable to the Arctic is the United Nations Convention on Law of the Sea (UNCLOS), although it has not been ratified by the United States. The high seas and the ocean floor beyond continental shelves together form what is defined in the Convention as Areas Beyond National Jurisdiction (ABNJs). The states party to the Convention enjoy a set of rights in such areas, including exploitation of marine resources. They also have an obligation to conserve marine biodiversity. However, this obligation is general in nature and not underpinned by any clear protection mechanism.
Given the sensitive and fragile nature of the Arctic ecosystem, the Arctic Ocean can be regarded as an ecologically and biologically significant area (EBSA), which requires a special protection regime.
The Arctic Ocean faces numerous changes and challenges. The consequences of climate change, rapidly melting sea ice, the emergence of new shipping routes, increased access to extractive resources and other possible commercial uses of the Arctic marine environment pose alarming risks, the likely effect of which will be destruction of the marine ecological balance. Given the sensitive and fragile nature of the Arctic ecosystem, the Arctic Ocean can be regarded as an ecologically and biologically significant area (EBSA), which requires a special protection regime. Even though the concept of EBSAs is endorsed within the Convention on Biological Diversity (CBD) regime, it has yet to offer any concrete tool for the conservation of marine biodiversity. The CBD nevertheless endorses the concept of Marine Protected Areas (MPAs), one of the objectives of which is to protect marine biodiversity. Consequently, the UNCLOS obligations concerning the preservation of marine biodiversity are complemented by the CBD. While it has been argued that UNCLOS provides a legal basis for the creation of MPAs under the general obligation set forth in article 192 in combination with article 194(5), it is not unequivocally clear whether MPAs can be established in an area beyond national jurisdiction. The general view is that an MPA can be established within an Exclusive Economic Zone, over which the coastal state has the authority to extend national regulations.
However, the Conference of the Parties to the Convention on Biological Diversity has addressed the issue of MPAs in an ABNJ on a number of occasions. At the present, setting up MPAs in an ABNJ has taken place under the auspices of the regional sea organisations. Unlike some other sea areas, the Arctic Ocean does not have any such body – despite the coastal states’ on-going process of cohesion since the 2008 Ilulissat meeting. The Convention for the Protection of the Marine Environment of the North-East Atlantic has established a regional sea organisation that covers part of the Arctic Ocean. The Convention provides a comprehensive legal framework for implementation of Part XII (Marine Environmental Protection) of the UNCLOS in line with the objective of the CBD, which covers a sizeable area beyond national jurisdiction. While Regional Fisheries Management Organizations (RFMO) play an important role in the conservation of fish stocks, the Arctic Ocean is, again, only partly covered – by the North East Atlantic Fisheries Commission. There is no Arctic-wide organization.
The International Maritime Organization (IMO) has established special protective measures in defined areas – both within and beyond areas of national jurisdiction – where shipping presents a risk of impacts on marine biodiversity. The International Convention for the Prevention of Pollution from Ships, adopted under the auspices of the IMO, designates Special Areas, in which maritime activities are closely regulated. The process of designating a Special Area has been further supplemented by the guiding concept of Particularly Sensitive Sea Areas (PSSA), areas requiring special protection because of recognised ecological, socioeconomic or scientific attributes that may be vulnerable to damage by international shipping activities. Whereas to date the IMO has not designated any PSSAs in an ABNJ, the ecological and biological importance of the central Arctic Ocean make it particularly sensitive as a site of marine biodiversity. The International Whaling Commission, an international body set up by the International Convention for the Regulation of Whaling, has established whale sanctuaries in which whaling is strictly prohibited. These may in principle be set up in the Arctic Ocean. Nevertheless, neither PSSAs nor whale sanctuaries constitute MPAs, as they would not comprehensively regulate human activities that potentially interfere with the marine environment.
The principal legal actor in the Arctic is the Arctic Council, an organisation whose membership includes all eight Arctic states. Under the Council’s auspices and through the contribution of its working groups, the states have adopted a number of instruments relevant to the protection of marine biodiversity. While such instruments are typically not legally binding, today the Council serves as the venue to negotiate binding agreement. One record that merits mention is the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response, which seeks to minimise risks from oil pollution at sea. Among the Council’s other contributions, two working groups – the Conservation of Arctic Flora and Fauna (CAFF) and the Sustainable Development Working Group (SDWG) – have recently produced the Arctic Biodiversity Assessment report and the Best Practices in Ecosystems-Based Ocean Management report, both of which are useful for fisheries conservation and management, among other purposes. Two other working groups – the Protection of Arctic Marine Environment (PAME), the Emergency Preparedness, Prevention and Response (EPPR), the Arctic Monitoring and Assessment Programme (AMAP) – together with CAFF, played a significant part in the states adopting the Arctic Offshore Oil and Gas Guidelines with a view to protecting the Arctic marine environment from unwanted environmental effects caused by offshore oil and gas activities.
The protection regime for Arctic marine biodiversity entails certain legal limitations. The designation of EBSAs does not yet have any concrete legal basis and the concept of a PSSA developed by the IMO is not a legally binding principle. Moreover, despite the fact that the UN Fish Stock Agreement is applicable to the Arctic Ocean, its scope is limited to highly migratory and straddling fish stocks; in addition, the lack of an Arctic-wide RFMO limits the protection of fish stocks occurring in the high seas. What is more, the absence of any defined legal framework for RFMOs makes it impossible to adopt concrete conservation measures, such as the establishment of Marine Protected Areas. The Arctic Council, despite its valuable contribution in producing assessment reports, has not to date focused on the conservation and management of targeted species as living resources. It does not have any working group, for example, on fisheries issues and, significantly, it may only set non-binding obligations.
Overall, the Arctic Ocean lacks a clear legal framework for comprehensive regulation of human activities that may compromise marine biodiversity in an Area Beyond National Jurisdiction. While a network of MPAs in the ABNJs of the Arctic Ocean could be an appropriate legal tool, the pertinent problem is the likely tension with regard to the rights and interests of the third states—those states that are not parties to the respective MPAs but have other rights granted under the Law of the Sea Convention within the MPAs.
Therefore, it is important to have consensus-based, multi-purpose MPAs that include actors from both inside and outside the Arctic who cooperate in negotiating comprehensive legal arrangements. The Arctic Council could take the lead here, given recent developments, such as the UN General Assembly’s initiative for a legal framework for sustainable use of marine biodiversity beyond areas of national jurisdiction. The UN proposal covers various aspects of marine biodiversity management in what has been termed the package approach.