The way towards strengthened marine cooperation in the Arctic

By:  Christian Prip

PDF version: The way towards strengthened marine cooperation in the Arctic

Document commented on: Report to Ministers of the Task Force on Arctic Marine Cooperation.

The Arctic Council Ministers established a Task Force on Arctic Marine Cooperation (TFAMC) in 2015  “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.” (Iqaluit Declaration, paragraph 43) The Task Force was requested  to deliver a report to Ministers in 2017 identifying future needs for strengthened cooperation for Arctic marine areas, as well as whether the Council should begin negotiations on a cooperation mechanism for Arctic marine areas.

Co-chaired by the U.S., Norway, and Iceland, the Task Force met five times, with participation from all Arctic States, three Arctic Council Permanent Representatives, four Arctic Council working groups as well as invited experts and observer States and organizations. In its 2017 report, the Task Force requested to continue its work. Ministers at the Arctic Council Ministerial in Fairbanks, Alaska, 10 – 11 May 2017 met the request and established a new mandate for the Task Force to present “…terms of reference for a possible new subsidiary Body, and recommendations for complementary enhancements to existing Arctic Council mechanisms, for consideration by Ministers in 2019.” (Fairbanks Declaration, paragraph 12).

A first meeting of the extended TFAMC was held 14 – 15 September 2017. Reports from TFAMC meetings are not made public.

Arctic Marine Cooperation

Protection of the Arctic marine environment is one of the focal areas of cooperation under the Arctic Council (AC) with its own permanent working group, PAME. Since large parts of the Arctic are marine areas, many activities under other AC working groups are also somehow marine related.

The Arctic Council does not have the status of an intergovernmental organisation with a mandate to take legally binding decisions, and Arctic Council activities on marine (and other) issues have mainly taken the form of scientific monitoring and assessments.  These activities have provided invaluable knowledge about the Arctic marine environment and its stressors, not only for the Arctic Council and the Arctic States, but also for the wider international society. The knowledge generated has clearly raised global interest in the Arctic environment.  The most prominent example of scientific work with a large international effect is the Arctic Climate Impact Assessment (ACIA) (2004-05). Specifically on marine issues,  the Arctic Council has adopted the The Arctic Council’s Arctic Marine Strategic Plan 2015-2025 (AMSP) and conducted studies on e.g. Arctic Marine Pollution, shipping, application of the ecosystem approach, resource exploration, marine biodiversity  and identification of vulnerable marine areas in need of protection.

A number of the AC assessment reports include policy recommendations and guidelines. With these soft law tools, and wary of any measures limiting their sovereignty in marine areas of strategic and economic importance, Arctic coastal States have for long not felt the need to strengthen marine cooperation and governance in a more pan-Arctic and binding direction. However, recent developments have cautiously moved this attitude to be more open to joint solutions for marine governance.

First of all, Arctic seas have changed physically.  In recent years, up to 40% of the Central Arctic Ocean has been ice-free during summer due to global warming, and as warming continues, the Ocean could be largely free of sea ice as soon as the late 2030s. In addition to the adverse effects of sea-ice melting on Arctic marine ecosystems, other stressors and pressures have emerged through new opportunities for economic development in Arctic waters, such as new shipping routes, fishing, extraction of natural resources and tourism. The commercial interests, as well as the concern for the Arctic marine environment, comes from both within and outside the Arctic region, and has led to rapidly increased  international attention to  Arctic marine governance.  The large number of non-Arctic observer States in the Arctic Council attests to this.

Internally among Arctic States, there have been different views on governance issues especially in relation to the Arctic Ocean. The three non-coastal States to the Ocean (Finland, Sweden and Iceland) were not happy about the Arctic Ocean conference held by the five coastal States (USA, Canada, Russia, Norway and Denmark/Greenland) in 2008 and its outcome, the Ilulissat Declaration. Among other things, the Declaration States “that The Arctic Ocean is a unique ecosystem, which the five coastal States have a stewardship role in protecting”. In the view of the three States, the stewardship role should rather be a matter for the Arctic Council.

A final reason for viewing Arctic marine governance mainly as an interstate rather than a state matter is the recognition by numerous AC proceedings of the Ecosystem Approach as the overarching principle and approach to management. The Arctic Marine Strategic Plan (AMSP) describes the Approach in the following way illustrating that it transcends national, jurisdictional and sectoral boundaries:

An integrated ecosystem-based management approach requires that development activities be coordinated in a way that minimizes their impact on the environment and integrates thinking across environmental, socioeconomic, political and sectoral realms. The management of resource activities needs to be focused on realistic, practical steps that are directed toward reducing environmental damage, protecting biodiversity and promoting the health and prosperity of local communities. For such an approach to be successful, the relevant ecosystems need to be better understood, monitored and reported on. Actions must be based on clear objectives and a sound management structure, employing best available knowledge and practices, integrated decision-making and, where appropriate, a coordinated, regional approach.

The TFAMC is one of many task forces that have been established by the AC in recent years operating under a time limit to achieve concrete results in a priority area.  While not stated explicitly by the AC and its member States, these ad hoc structures outside the established AC governance structure indicate that the permanent science based AC working groups may not be adequate to meet emerging challenges and develop appropriate policy responses on marine governance or other Arctic issues.  To some degree, the working groups have developed organically without political guidance.

Important tangible results of AC task forces, have been the conclusion of three legally binding agreements on 1) Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011), 2) Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013) and 3) Enhancing International Arctic Scientific Cooperation (2017).  (See the AC Agreements site ). Since the AC is not mandated to conclude legally binding agreements, these agreements were formally concluded between the individual Arctic States. Two non-legally binding outcomes of task forces are the  Arctic Council Framework for Action on Enhanced Black Carbon and Methane Emissions Reductions (2015) and the Framework Plan for Cooperation on Prevention of Oil Pollution from Petroleum and Maritime Activities in the Marine. Areas of the Arctic (2015).

The Task Force report to AC Ministers

The short, condensed TFAMC report (9 pages) declares upfront that it is guided by the Ecosystem Approach as a strategic objective. The TFAMC is also guided by the Law of the Sea Convention (LOSC) and in particular Article 197 stating that States shall cooperate on a global or regional basis to protect the marine environment.  Such cooperation will probably need to increase due to the challenges related to climate change and increasing human activities. In this context, the TFAMC quotes from Vision for the Arctic adopted at the Arctic Ministerial in Kiruna, Sweden 2013 that the “we will continue our work to strengthen the Arctic Council to meet new challenges and opportunities for cooperation, and pursue opportunities to expand the Arctic Council’s roles from policy-shaping into policy-making.”

The TFAMC links Arctic marine cooperation to recent global developments relating to marine governance such as the Sustainable Development Goals with its Goal 14 on oceans, and the UN process to develop a new agreement under LOSC on the conservation and sustainable use of biodiversity in areas beyond national jurisdiction. (See JCLOS blog of 21 October 2016). It argues that the commitments Arctic governments undertake in international fora “represent the standards against which our marine cooperation outcomes will be measured”.

A number of functional needs are identified for Arctic States to fulfill their role as principal stewards of the Arctic marine environment. A particularly ambitious one is to extend cooperation throughout the whole marine stewardship circle from planning scientific research to carrying out the research, conduct assessments, formulate policy and recommendations, implement the policy and monitor its effectiveness. Other functional needs are strengthening the science-policy interface and coordination of marine-related work within the AC and by the AC with other relevant bodies. The TFAMC concludes that while some of the needs could be met within the framework of existing AC bodies, others could lead to the establishment of new institutional capacity and frameworks.  Such additions should be established within and not outside the AC.

The TFAMC defines a number of values and principles that could guide Arctic marine cooperation into the future. These are:

1.  The special role and responsibility of the Arctic States for marine stewardship in the Arctic region
2. Arctic marine cooperation should benefit the Arctic and its inhabitants, and must involve Arctic indigenous peoples through the Permanent Participants.
3. Regional cooperation on implementation of shared obligations under relevant international instruments (e.g., UNCLOS, and other instruments to which the Arctic States have subscribed).
4. Regional cooperation in implementing an ecosystem-based approach in the Arctic as a whole, including in areas beyond national jurisdictions, based on the best available scientific information and a balance between conservation and sustainable use of marine resources.
5. Cooperation in the conduct of scientific research concerning Arctic marine areas.
6. Arctic marine cooperation should develop among the Arctic States and evolve within the Arctic Council, consolidating and strengthening the Council’s marine work.
7. Strengthen the role of indigenous peoples and local communities in Arctic marine cooperation.
8. The Arctic Council’s marine stewardship efforts should be given a stronger and more visible profile.
9. Respect for the sovereignty, sovereign rights, jurisdiction and obligations of the Arctic States, including sovereign rights over the continental shelf as reflected in UNCLOS.
10. Respect for all States’ obligations and freedom of the high seas as reflected in UNCLOS.
11. Arctic regional follow-through on Arctic Council marine-related recommendations.
12. Complement, not duplicate existing work, avoiding unnecessary bureaucracy.
13. Flexibility and adaptability; can evolve over time to meet changing circumstances and needs.
14. Openness to potential contributions to Arctic marine cooperation by relevant stakeholders.

The TFAMC recommends a continuation of its work with a new mandate to negotiate terms of reference (ToR) for a new subsidiary Body and identify complementary enhancements to existing AC mechanisms.  These ToR should address relations of the new Body with existing AC mechanisms and flexibility and adaptability to phase in and add functions over time based on experience and evolving needs.

Some reflections on a new AC subsidiary Body for Arctic marine cooperation

The AC is generally known to be hesitant to institutional change, and it is a widespread perception that it should remain mainly a forum for generation of knowledge. By endorsing the TFAMC report and extending the TFAMC with a new mandate, Arctic Council Ministers have in principle agreed to establish a new AC subsidiary Body for marine cooperation. Although its ToR are still to be negotiated (and the final decision on the Body would only follow agreement on the ToR) it is still a significant decision on a core area for AC cooperation.  The creation of a new Body rather than integration of activities into the permanent marine working group, PAME, is a move towards bridging the missing AC link between technical and scientific analysis (carried out in PAME) and policy design.

It was not a given that a new marine cooperation Body should be established within the structure of the AC. Endorsement by the AC Ministers supports the Council as the principal intergovernmental body for Arctic regional cooperation at a time when new “competing” Arctic forums are proliferating. The status of the new marine cooperation entity as a Body under the AC may also influence the internal Arctic dispute on whether coastal States or the full range of Arctic States should be regarded the steward of the Arctic Ocean – in favour of the full range of States.  As referred to above, one of the TFAMC guiding principles for marine cooperation is “regional cooperation in implementing an ecosystem-based approach in the Arctic as a whole, including in areas beyond national jurisdictions…” and Arctic marine areas beyond national jurisdiction are mainly located in the central Arctic Ocean. Obviously, the new subsidiary Body will not prejudice the sovereignty and sovereign rights of coastal States under LOSC, but its establishment could nevertheless be seen as a victory for a regional cooperation approach tailor-made to Arctic solutions over a defensive, unilateral approach which has so far been the approach of the coastal States.

That Arctic marine cooperation should develop among the Arctic States and evolve within the Arctic Council, is another of TFAMC guiding values/principles.  This may be an implicit reference to the fact that the Arctic has gained global prominence and that the Arctic Ocean is widely viewed as a global commons with its central part being beyond national jurisdiction. After many years of pre-negotiations, a formal negotiation process to develop a new implementing agreement under LOSC on biodiversity beyond national jurisdiction (BBNJ) is expected to be launched by the United Nations General Assembly in 2017. The likely new treaty is seen by international NGOs and others as a welcome tool to designate the central Arctic Ocean as a marine sanctuary, a ‘globalisation’ of the Ocean not welcomed by Arctic States. The global factor is thus an obvious opportunity for Arctic States to proactively resort to their principle of being stewards of the Arctic Ocean. The new Body could set a regional agenda for central Arctic Ocean governance and finally do away with the coastal States’ reluctance to any new governance regime for the Ocean beyond LOSC as expressed in the the Ilulissat Declaration.

A fundamental question still to be addressed is how the functions of the Body will be defined and what tools will be made available to perform them. The first phase of the TFAMC revealed little support to establish the new Body under a legally binding instrument and to empower it to take legally binding decisions. This raises questions as to how the Body will be able to fulfil the important functional need expressed by the TFAMC to extend cooperation throughout the whole marine stewardship circle. An obvious task for the Body would be to give effect to the comprehensive scientific framework set by PAME for a  Pan-Arctic Network of Marine Protected Areas. This, however, will require a mechanism for formal designation of areas as protected and associated legally binding restrictions on human activities.

Another question is if and how the Body will cooperate and coordinate with other bodies and instruments involved in Arctic marine governance. These include the OSPAR Commission with a geographical coverage overlapping with the AC in the eastern Arctic Ocean, the International Maritime Organisation (IMO) in relation to the Polar Code and the currently ongoing Five plus Five process of international regulation of high seas fishing in the central Arctic Ocean. (See JCLOS blog 5 February 2016). Such cooperation and coordination is imperative for full application of the Ecosystem Approach.

With regard to design, the Body will have to find its place in the AC framework together with the existing structures. Given the importance of scientific knowledge generation for whatever functions the Body will be given, strong ties to a strong PAME working group (and other AC working groups as appropriate) would be essential.

As regards composition of the Body, the policy-making component could be underlined by participation of state high-level policy experts with implementation power as a contrast to the scientific experts that make up PAME and the other AC expert groups. On non-governmental representation, the TFAMC values and principles have already defined an import role for the Arctic indigenous peoples through the AC Permanent Participants. It is likely that the AC approved observers – both the non-Arctic States and the NGOs – will be granted observer status also in the new Body as they have been in the TFAMC.

Openness to contributions by relevant stakeholders is also one of the TFAMC values/principles, and this raises a question on how non-state actors like science, civil society and business could best contribute to the work of the Body. This is a topic for a current research project conducted by the Norwegian Institute of International Affairs (NUPI) and the the Fridtjof Nansen Institute on Science and Business in Arctic Environmental Governance (POLGOV)

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This post may be cited as: Christian Prip, “The way towards strengthened marine cooperation in the Arctic (November 3, 2017, on-line: https://site.uit.no/jclos/files/2017/11/JCLOS-Blog-031117Prip_way-forward.pdf

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