By: Christian Prip
Matter commented on: First session of Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 4 – 17 September, 2018, New York.
A process towards an international legally binding instrument (ILBI) under the Law of Sea Convention on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) has been under way for 14 years operating under different mandates of the UN General Assembly establishing different negotiating groups. Overviews and the history of the process are provided in JCLOS blog posts of 17 August 2015 by Anna-Maria Hubert and of 21 October 2016 by this author.
The latest phase in this long process was triggered by UNGA resolution 72/249 authorizing an Intergovernmental Conference (IGC) to elaborate the text of an international legally binding instrument. The IGC held its first meeting in September 2018. The meeting was mainly used to clarify positions of different delegations on the elements of the package agreed in 2011 as the basis for the instrument. These are:
– marine genetic resources, including questions on the sharing of benefits,
– measures such as area-based management tools, including marine protected areas,
– environmental impact assessments and
– capacity-building and the transfer of marine technology.
Real negotiations on a text will start at the second session of the IGC, 25 March – 5 April 2019. For that purpose, the IGC President will prepare a document containing treaty-language and reflecting options on the four elements in accordance with the range of the diverging views expressed at IGC1. A third and a fourth meeting will take place in late 2019 and early 2020.
This blog post offers some thoughts on the relevance of a future legal instrument for the protection of biodiversity in the Arctic Ocean (AO), its relationship with existing instruments governing the AO and on whether Arctic States should move ahead of the global process with regard to protection of the AO.
Arctic Ocean biodiversity
The AO is a unique ocean in terms of marine biodiversity housing approximately 5000 animal species 2,000 types of algae, and an unknown number of ecologically critical microbes. This multitude of life-forms is on the one hand well adapted to the extreme and seasonal conditions of the ocean environment, but on the other hand also highly sensitive to changes in these conditions. The ice of the AO is crucial not only to the marine ecosystem, but to the whole global environment through its key role in shaping the world’s climate system. In recent years, up to 40% of the AO has been ice-free during summer due to global warming; as warming continues, the AO could be largely free of sea ice as soon as the late 2030s.
Arctic marine ecosystems are also vulnerable to ocean acidification, and in addition new stressors and pressures to the fragile ecosystem have emerged, as previously inaccessible marine areas have been opened. This has created new opportunities for economic development in the form of shipping routes, fishing, extraction of natural resources and tourism.
Arctic Ocean governance
The AO is encircled by the five coastal states Norway, Denmark/Greenland, Russia, Canada and the USA. A large central part of the AO, approximately 2,8 million square kilometres is high seas beyond national jurisdiction. This geography has led the coastal states to assume a special stewardship role for the AO. In the 2008 Ilulissat Declaration the five states note that, by virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the AO, they are uniquely positioned to address its possibilities and challenges. They declare that they see no need to develop a new comprehensive international legal regime to govern the AO, as Law of the Sea Convention (LOSC) already provides “a solid foundation for responsible management”. At the same time, they are willing to “take steps in accordance with international law both nationally and in cooperation among the five states and other interested parties to ensure the protection of and preservation of the fragile marine environment of the Arctic Ocean”. This Declaration has been viewed as an attempt by the coastal states to challenge the emerging idea that the AO should be ‘internationalised’.
Non-coastal states have been reluctant to accept this stewardship role of the “Arctic 5”, as demonstrated in the process leading to the signing in October 2018 of an Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. The Agreement, which bans commercial fishing in the CAO until there is scientific evidence that fishing can be done in a sustainable manner, includes the EU, Iceland, China, the Republic of Korea, Japan alongside the coastal states (“Arctic 5 + 5”). Moreover, the three remaining members of the Arctic Council, Finland, Sweden and especially Iceland have criticised ‘the Arctic 5’ claim of stewardship as undermining the Arctic Council.
This concern may have been an underlying cause for the Arctic Council to establish in 2015 a Task Force on Arctic Marine Cooperation (TFAMC) “to assess future needs for a regional seas program or other mechanism, as appropriate, for increased cooperation in Arctic marine areas” and “to make recommendations on the nature and scope of any such mechanisms”. The Task Force in its 2017 report recommended the establishment of a new subsidiary body for marine cooperation and among other things stated that “Arctic marine cooperation should develop among the Arctic States and evolve within the Arctic Council”, consolidating and strengthening the Council’s marine work”. The Arctic Council renewed the mandate of the TFAMC in 2017 to come up with terms of reference for the new body and recommendations for complementary enhancements to be presented to Arctic Council ministers in 2019.
As discussed in the blog post of 3 November 2017, the de facto endorsement of a new Arctic Council subsidiary body for marine cooperation is a clear indication that the Arctic Council sees itself as the primary body for Arctic marine cooperation and governance. Moreover, it provides an important opportunity to extend the work of the Council from scientific and technical knowledge generation to policy-making and to establish a hitherto missing link in the work of the Council between the two. Governance of the AO, including its central part beyond national jurisdiction, seems to be a potential key area for cooperation by a new subsidiary body under the Arctic Council. There are, however, signs that the Arctic Council is not yet politically prepared for such an extension of its portfolio by a new body. After two meetings following the renewal of its mandate, the Task Force appears unable to deliver the requested terms of reference. Instead, Senior Arctic officials have suggested that further consideration of a new body should await a strategic plan for the Arctic Council currently under development.
Regarding existing governance regimes relevant for biodiversity in the AO, the LOSC provides the overall legal framework for maritime governance including for the AO. It does not specifically address marine biodiversity, but stipulates duties of States to protect and preserve the marine environment (Art. 192), including conservation and management of the living resources of the high seas (Art. 116 – 119), preventing and controlling pollution (Art. 194 -196) and taking measures “necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life” (Art. 194(5)). LOSC also stipulates duties of States to cooperate with other States both at the regional and global levels (Art. 197). Particularly relevant to the AO is LOSC Art. 234, which provides Coastal States the right to take legal measures to prevent, reduce and control marine pollution from vessels in ice-covered areas.
The Convention on Biological Diversity (CBD) has adopted the 20 Aichi Biodiversity Targets According to Target 6, all fish and invertebrate stocks and aquatic plants shall be managed and harvested sustainably by 2020; according to Target 11, 10% of marine and coastal areas shall be protected by 2020. The CBD also has identified several Ecologically and Biologically Significant Areas (EBSAs) that include the AO.
Another cluster of regulations includes the International Maritime Organization (IMO), which has adopted the International Code for Ships Operating in Polar Waters (Polar Code) through amendments to both the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL). The Polar Code entered into force in January 2017 and covers the full range of design, construction, equipment, operational, search and rescue and environmental protection matters relevant to ships operating in the inhospitable waters surrounding the two poles. Also relevant in the context of shipping are regional agreements concluded among the Arctic states on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013) and on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011).
In addition, at the regional level, the treaty based commissions for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), and the North-East Atlantic Fisheries (NEAFC) cover some parts of the AO. The only regime that geographically covers high seas of the Central Arctic Ocean is the recently concluded and above-mentioned Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean.
The climatic and environmental changes of the Arctic region associated with the retreat of sea ice have led to growing international attention and perception of the Ocean as a global common with calls from both law of the sea scholars and NGOs for its increased protection from human activity. This has become even more topical after the protection of another polar “commons”: the declaration in 2016 of the world’s largest marine protected area in the Ross Sea, Antarctica.
In summary, there is no regime in place for the AO to protect biodiversity per se. Several global and regional regimes are relevant for the management of biodiversity, but they provide a patchy framework in terms of geographical coverage, content and participation. Besides, the existing framework leaves gaps in terms of applying the ecosystem approach to which both the BBNJ process and the Arctic Council subscribe. For example, no regime covers the extractive industry nor authorises the designation of marine protected areas and the invocation of environmental impact assessment. These shortcomings of ocean governance mirror those of other marine regions around the world and thereby justify key rationales behind an ILBI: to fill gaps, to provide a global mechanism to coordinate existing bodies and treaties across geographic areas and sectors, and to provide for common environmental standards without precluding the application of more ambitious ones.
While it was agreed at an early stage in the BBNJ negotiation process that existing global and regional instruments should not be “undermined” by the ILBI, a key issue yet to be resolved in the negotiations, is the allocation of competence between the regional and global levels, or in other words: the degree to which the ILBI should have a top-down or bottom-up approach over activities covered by the ILBI.
Arctic coastal states are some of the strongest proponents of a decentralized, regional approach. While so far, they have only stated general reasons for this position, the Central Arctic Ocean seems to be the elephant in the room. Arctic coastal states resist an ILBI approach that could “impose” globally stipulated protective measures on the AO.
Where does that leave the Arctic states in terms of governance and protection of the AO?
One possibility is to let the ongoing global negotiation process serve as an incentive for Arctic states to take responsibility and be proactive in terms of creating a comprehensive protection regime for the AO. As discussed above, there are clear gaps in the current governance framework regarding biodiversity protection, the climatic and ecological changes of the AO continue rapidly and the process towards first adopting an ILBI and then making it come into force could drag out for many years. The process towards such a regional regime can be considered already started with the adoption of the Central Arctic Ocean Fisheries Agreement and its strong precautionary approach. The Agreement is an argument for applying a similar strong approach for other stressors to biodiversity than fisheries in the AO.
Another argument for Arctic proactiveness is more in the self-interest of the coastal states: They would actually exercise their longstanding claim of being stewards of the AO and confirm their willingness expressed in the Ilulissat Declaration “to ensure the protection of and preservation of the fragile marine environment of the Arctic Ocean”. A proactive Arctic approach could be an inspiration for other regions to be on the forefront of global development by taking measures to ensure maximum regional influence on the future governance framework.
A final question is: who should then be viewed as “Arctic states” in this context? As discussed above, several constellations have appeared in relation in Arctic marine governance including the “Arctic 5” (coastal states), the Arctic 5 + 5” (the states concluding the Fisheries Agreement) and the “Arctic 8” (the Arctic Council with its 8 states and Permanent Participants representing Arctic indigenous peoples). The Arctic Council has developed into the pre-eminent international forum for addressing Arctic issues and has endorsed the idea that Arctic marine cooperation should develop among the Arctic States and evolve within the Arctic Council. It would therefore seem feasible to provide the Arctic Council with the task of preparing such a regime through the envisaged new subsidiary body for Arctic marine cooperation. However, as referred to above, it may not be possible to agree on the terms of reference for such a body. Despite the overall interest in avoiding further proliferation of Arctic governance forums, the importance of strengthening Arctic marine cooperation may necessitate a coordination mechanism outside the Arctic Council framework. This was argued in a recent article by David Balton who served as Chair of the Senior Arctic Officials during the 2015-2017 U.S. chairmanship of the Arctic Council when the Arctic marine task force was established. The mechanism could be in the form of a regional seas program drawing inspiration from similar mechanisms elsewhere.
This post may be cited as: Christian Prip, “A global treaty on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction: threat or opportunity for Arctic Ocean governance?”, (November 7, 2018), on-line: http://site.uit.no/jclos/files/2018/11/JCLOS-Blog_A-global-treaty-on-the-conservation-and-sustainable-use-of-marine-biodiversity-of-areas-beyond-national-jurisdiction.pdf
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