1. INTRODUCTION
The world is witnessing profound changes in the Arctic Ocean, driven largely by a warming climate. The dramatic increases in human activity already occurring in the Arctic are likely to continue as ice-diminished conditions make possible further extension in shipping, hydrocarbon exploration and development, tourism, fishing and other opportunities. The regional effects of these dynamic changes present new management challenges for the eight Arctic nations: Canada, Denmark (on behalf of Greenland and the Faroe Islands), Finland, Iceland, Norway, the Russian Federation, and the United States (US). The fact that the Arctic Ocean remains the least studied and understood marine area on the planetFootnote 1 makes responding to the effects of these changes even more challenging.
Three primary arenas are currently open to the Arctic states to address rapid change in the Arctic Ocean: (i) national measures; (ii) binding bilateral, regional and multilateral agreements relevant to the Arctic Ocean, including science cooperation agreements; and (iii) the sui generis forum of the Arctic Council. In the first arena, national regulators from some but not all Arctic states meet on an ad hoc basis to discuss common Arctic concerns in select substantive areas. In the second arena, representatives of diverse multilateral environmental agreements (MEAs) occasionally join forces to address Arctic-specific questions. Sometimes they do so in collaboration with the Arctic Council, but not in any regularized or systematic way.Footnote 2 The vast majority of relevant MEAs, however, are not Arctic-specific; they apply also to all other marine regions of the world.Footnote 3 The third arena, the Arctic Council, is an effective and evolving forum, but operates with a limited mandate and is a discussion forum rather than a management body.
To support all three lines of effort, we propose an Arctic Ocean Coordinating Agreement (AOCA) to draw on existing institutions that are already successfully engaged in addressing problems relevant to the Arctic Ocean. The primary purpose of an AOCA would be to improve and regularize coordination of national conservation and management policies in the Arctic. The AOCA would convene different groupings of representatives from national governments and international institutions to bring their expertise to bear on targeted questions relevant to the Arctic Ocean. While we identify some features of regional seas agreements (RSAs) that an AOCA could borrow and incorporate into a less formal regional arrangement, it would differ significantly from the traditional RSA. We also draw on other international agreements and entities that have successfully convened appropriate sets of actors for targeted responses to shared marine management concerns.
1.1. The Present Management Situation in the Arctic Ocean and Emerging Challenges
An AOCA is needed because, absent such a coordinating mechanism, it is possible that entire bodies of expertise currently located outside the Arctic Council – in national governments, MEAs, and intergovernmental organizations (IGOs) – are not adequately engaged in addressing Arctic-specific incidences of phenomena such as ocean acidification, black carbon deposition, and diminished subsistence. The gap between the scientific studies and recommendations of the Arctic Council and the work of MEAs, IGOs and other bodies working on related issues has been bridged before, but only on a piecemeal basis. A recent successful example is the participation of the Arctic Council Working Group on Conservation of Arctic Fauna and Flora (CAFF) in the Arctic Biodiversity Assessment.Footnote 4 In other areas, however, there is insufficient coordination between Arctic and non-Arctic states, the Arctic Council, and experts working on key issues in other bodies. Regularizing how Arctic states access such expertise has the potential to lead to better baseline science, better marine management, and better information sharing about best practices to combat change in the marine Arctic.
Each of the Arctic states can and does respond to the rapidly changing Arctic in its own way and in its own territory. The challenges presented by a changing climate and the resulting increase in human activity in the marine environment, however, are often systemic and transboundary, and can affect areas within and beyond national jurisdiction. Increased shipping along the Russian Northern Sea Route, for example, also means increased traffic in the Bering Strait and presents a management challenge to both Russia and the US. Similarly, although efforts can be taken on a national basis to slow regional warming by reducing black carbon at source, a coordinated strategy among all Arctic states is more likely to produce beneficial results at less cost and with greater efficiency.Footnote 5 The Arctic nations have already recognized the value of collaborating in search and rescue, and for oil pollution preparedness and response, and have entered into binding agreements on these matters.Footnote 6 Arctic states, however, have not attempted any systematic coordination of national and regional efforts to manage challenges facing the Arctic Ocean.
The AOCA proposed in these pages will provide a framework in which the Arctic nations can regularize and systematize how they and their international partners draw on national experts and those in the broader community of multilateral agreements, IGOs and other international bodies.
We round out this introductory section with a brief sketch of biological and physical characteristics of the region, an overview of the legal landscape in which an AOCA would operate, and a review of the Arctic Council with an assessment of its suitability as a management coordination forum. In Sections 2 and 3 we present key questions and potential models for an AOCA, including substantive and procedural elements that it could contain and tasks that it could undertake.
1.2. Biological and Physical Characteristics of the Arctic Ocean
For those new to studying the Arctic, setting aside the classic Mercator projection of most maps and contemplating the globe’s northern hemisphere ‘from above’ effects a remarkable reorientation. This perspective makes clear that the Arctic Ocean, far from being an extended and mostly featureless strip along the top margin of the world map, is a large basin almost completely surrounded by the continental shelves and coastal seasFootnote 7 of the Arctic coastal states: Canada, Denmark (Greenland), Norway, Russia, and the US (Alaska). Only three outlets connect the Arctic to the world ocean: the Bering Strait to the Pacific, the Davis Strait separating Greenland and Labrador, and the broader Fram Strait east of Greenland, the Arctic’s sole deep-water gateway.Footnote 8
Influenced by the steady inflow of North Atlantic deep water through the Fram Strait and a less significant inflow across the Bering Strait, the physical system of the Arctic features two gyres, which circulate the Arctic’s surface waters throughout the system.Footnote 9 Polar bears hunt ringed seals north of Greenland in the spring and scavenge whale carcasses on the coast of the Beaufort Sea in the fall. Pollution, too, moves around the system, carried by the same gyres and currents that facilitate the polar bear feeding cycle.Footnote 10
Oceanographically distinct regions of the Arctic include the Barents Sea, warmed by the Gulf Stream; the Greenland Sea, increasingly affected by melting of the Greenland Ice Sheet; the Kara Sea, greatly influenced by river run-off; the Chukchi Sea, now largely ice free in summer; and the Beaufort Sea and Canadian Archipelago, where the Beaufort Gyre brings the heaviest ice to rest all year round. Increasing awareness by policy and legal analysts of the distinct characteristics of the Arctic’s diverse regions is welcome and essential for the design of an effective regime for improving coordination in managing activities in the Arctic Ocean.Footnote 11
To the best of our knowledge, most of the living resources of the marine Arctic exist on the continental margins, where the water depth and currents provide nutrients and benthic feeding opportunities. The richness of these coastal resources provided the historical basis for the rise of indigenous coastal communities throughout the Arctic as early as ten thousand years ago, communities that still base their subsistence on the Arctic marine environment.Footnote 12
The Arctic’s mineral wealth also appears to be concentrated beneath the same shallow coastal waters. The US Geological Survey (USGS) estimates that 25% of the world’s remaining oil and gas is situated there, with the bulk of the gas on the Russian continental shelf and the bulk of the oil off Alaska and Greenland.Footnote 13 The heterogeneous distribution of Arctic living and mineral resources is notable because it relates meaningfully to the management challenges that are emerging in the Arctic marine environment.
The influence of climate change in the Arctic is startling, and can only grow with time. As summer sea ice continues to recede and year-round ice cover thins dramatically,Footnote 14 spring storms now overwhelm coastlines that were historically protected by shorefast ice.Footnote 15 Walrus gather in great numbers on stony shores because their former ice-based hunting platforms no longer last through the summer.Footnote 16 Even more significant changes are less visible: benthic nutrient systems are degrading in favour of more pelagic systems; surface waters are acidifying; significant fish stocks are moving north.Footnote 17 The prospect of ice-free summers raises yet a new threat: the possibility of damaging phytoplankton blooms in the open water season.Footnote 18
As climate change enables new human uses of the Arctic, it also accelerates the region’s integration into the global economy.Footnote 19 The Northern Sea Route across the Siberian coast is already becoming a more viable route for shipping from Asia to Europe.Footnote 20
Given the richness of the available resources, oil and gas development in the offshore Arctic is likely to expand.Footnote 21 However, exploring and drilling for oil in the offshore Arctic is still a daunting technical and financial challenge. Oil and gas development has already required and sustained increased shipping of equipment and rigs into prospective areas in the Barents, Chukchi, Beaufort, and Laptev Seas. Less well understood is the increased shipping related to onshore mining operations, for instance, in the Canadian Archipelago. Ship-based tourism in the Arctic is also increasing.Footnote 22
This is but a quick tour of the rapid changes affecting the Arctic marine environment, and is intended to provide some context to a discussion of the emerging management challenges in the region.
1.3. Coordinated Arctic Marine Stewardship:
Legal Framework and Acknowledged Need
The AOCA proposed in this article will allow Arctic states to leverage and coordinate more effectively their participation in the multilateral agreements that govern the Arctic Ocean. Very few of those agreements are Arctic-specific.Footnote 23 Most address global problems and apply to the Arctic Ocean just as they do to the rest of the world’s seas.Footnote 24 Neither those agreements nor the Arctic Council, however, offer any regularized mechanism for states party to the agreements to discuss Arctic-specific concerns in an Arctic-focused forum, or to address urgent Arctic-specific issues.
Using the AOCA to convene experts in national and international approaches to marine regulation would allow better coordination between the legal systems that apply to the different areas of the Arctic Ocean. In the national waters of each of the five Arctic Ocean coastal states, domestic laws and regulations govern.Footnote 25 In the international waters of the Arctic, the international law of the sea and a patchwork of multilateral environmental and other agreements govern. In the waters beyond national jurisdiction, no active legal, regulatory or management framework focuses on human activities. Thus, although the living resources of the Arctic, and many pollutants and other harmful substances, move freely between the waters of Arctic Ocean coastal states and in areas beyond national jurisdiction, neither the five coastal states nor all eight Arctic nations that comprise the Arctic Council have a mechanism through which they can cooperate in managing the Arctic marine environment as a whole.
In this section we seek to highlight key international instruments and some of the opportunities they present for improved coordination between nations in their stewardship of the Arctic Ocean.
The United Nations (UN) Convention on the Law of the Sea (UNCLOS)Footnote 26 lays the foundation for cooperation in the marine Arctic. UNCLOS establishes the basic jurisdictional rules for all marine areas and sets forth the rights and responsibilities of all states with regard to the world’s seas. Seven of the eight Arctic states are party to UNCLOS; the US, although a non-party, regards its basic provisions as reflecting customary international law.Footnote 27
UNCLOS is chief among the dozens of international instruments that, if robustly enforced and implemented, have the potential to support effective management of human activities in the Arctic Ocean. Legal scholars have made inventories of and discussed international agreements relevant to the marine Arctic since at least the founding of the Arctic Council,Footnote 28 organizing them in a number of ways. The Arctic Council’s 2013 Arctic Ocean Review (AOR) Final Report,Footnote 29 for example, indicates the range of subject matters relevant to the Arctic Ocean, as well as the types of instrument and entity with which an AOCA could create linkages. The AOR chapters cover ‘Indigenous Peoples and Cultures’;Footnote 30 ‘Arctic Marine Operations and Shipping’;Footnote 31 ‘Marine Living Resources’;Footnote 32 ‘Arctic Offshore Oil and Gas’;Footnote 33 ‘Arctic Marine Pollution’;Footnote 34 ‘Ecosystem-based Management’;Footnote 35 and ‘Arctic Marine Science’.Footnote 36
This sampling of subject matters and relevant institutions in the accompanying footnotes is intentionally incomplete. We do not seek to spell out all connections among these instruments or between them and UNCLOS. Rather, we suggest the types of instrument and accompanying treaty bodies that an AOCA might draw upon to constitute a panel of experts for a specific problem. For example, if the Arctic states wish to better coordinate and mobilize domestic, regional and global efforts to study and begin to address ocean acidification effects on shorebird habitat, they could use the AOCA framework to invite experts from the Ramsar Convention,Footnote 37 the Convention on Biological Diversity (CBD),Footnote 38 the Convention on the Conservation of Migratory Species of Wild Animals,Footnote 39 the International Council for the Exploration of the Sea (ICES), the North Pacific Marine Science Organization (PICES), and the Pacific Arctic Group of the International Arctic Science Committee (IASC), as well as national and indigenous authorities responsible for wildlife management.
This ocean acidification example demonstrates that an important benefit of the proposed AOCA would stem from its capacity to convene representatives from national governments and from existing international entities to bring their institutional expertise to bear on targeted questions relevant to the Arctic Ocean. Initially, the AOCA could convene national representatives to address areas of concern through, for example, sharing best national practices on issues such as ecosystem-based management or monitoring of certain land-based sources of pollution. As the member states increase their reliance on the AOCA as an effective forum for comparing national practices, they can use it to convene experts from entities such as IGOs and multilateral treaty bodies with expertise in the questions the AOCA members aim to address.
Two independent studies have called for developing, or at least creating an inventory of institutional interlinkages at the international level for organizations and treaty bodies with Arctic-relevant expertise.Footnote 40 A 2006 United Nations Environment Programme (UNEP)/Grid-Arendal workshop on the effectiveness of MEAs in the Arctic recommended that Contracting Parties, governing bodies and secretariats of MEAs ‘work to improve communication among secretariats of related MEAs and together look at opportunities for more effective division of labour and increased collaboration on consultation, implementation, reporting and outreach’.Footnote 41 It also suggested a survey of the ‘status of co-operation between MEA secretariats and between the Contracting Parties’ to MEAs on addressing Arctic issues at meetings and conventions of the parties.Footnote 42 Several recent Arctic Council outputs also point towards coordination among Arctic states either in their positions in relation to international organizations and agreements, or in drawing on the expertise of existing institutions.Footnote 43
Even though not all Arctic states are party to all of the instruments potentially relevant to the Arctic Ocean, practical tools developed under one or more of them may still have a role to play in an AOCA. For example, the monitoring protocols for marine pollution developed under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR)Footnote 44 or the Baltic Marine Environment Committee of the Helsinki Commission (HELCOM), established under the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention),Footnote 45 might be held up as a best practice for all AOCA members. Even non-signatory AOCA members could adapt the monitoring practices and recommend their use in their region of the Arctic Ocean. Section 3 of this article identifies additional practices from existing regional marine management regimes which may have model character for an AOCA. Designing the AOCA with the flexibility to incorporate expertise or successful models from existing institutions would allow AOCA member states to convene experts from institutions most suited to address the targeted problem before the AOCA, and ensure that knowledge and experience gained in other forums can be brought to bear where relevant to the Arctic Ocean.
1.4. Arctic Council History, Activity and Suitability for a Coordinating Role
Although most management of human activities in the Arctic occurs at the national level, the Arctic nations have a long and positive history of cooperation principally, though not solely, through the Arctic Council. This institution evolved from the earlier Arctic Environmental Protection Strategy (AEPS), an initiative led by Finland in 1991 following Mikhail Gorbachev’s epochal ‘Zone of Peace’ address, which first broached the idea of cooperation among the Arctic states as an antidote to the historical cold war in the North.Footnote 46
The AEPS was categorically different from earlier regional or species-specific conservation efforts. It was not a binding agreementFootnote 47 and it embraced a wider scope of concern. The four original AEPS working groups (WGs) focused on: (i) wildlife (CAFF); (ii) the Arctic marine ecosystem (Protection of the Arctic Marine Environment (PAME)); (iii) poisoning of the Arctic food chain by global contaminants (Arctic Monitoring and Assessment Program (AMAP)); and (iv) responding to environmental and other disasters in the region (Emergency Preparedness and Response (EPR)).
In constituting the AEPS, the Arctic governments brought forward yet another significant innovation by choosing to include the indigenous communities of the north as participants. The three original representative groups have increased to six in the current Arctic Council: the Arctic Athabascan Council; the Aleut International Association; Gwich’in Council International; the Inuit Circumpolar Council; RAIPON (Russian Association of Indigenous People of the North); and the Saami Council.
A successor to the AEPS, the Arctic Council was established in 1996 as a ‘high-level forum’ to promote ‘cooperation, coordination and interaction’ among the eight Arctic states and indigenous representatives on common Arctic (non-military security) issues, especially sustainable development and environmental protection.Footnote 48 In addition to the issues addressed by the AEPS, the Arctic Council has turned to questions as diverse as human development, the health of Arctic communities, and the impacts of climate change. In 1998, the Arctic Council added a fifth Working Group on Sustainable Development (SDWG), reflecting a growing awareness of the human dimension of the challenges in the region and a contemporaneous global focus on sustainable development through the Brundtland Commission and the UN Conference on Environment and Development.Footnote 49 The sixth WG, the Arctic Contaminants Action Program (ACAP), was added in 2006.
In its 20-year effort to grapple with broader problems affecting the Arctic region, the Arctic Council has itself evolved. Adding to its primary focus on scientific and technical assessments of environmental and social issues, the Council has matured to meet new challenges, such as addressing the regional impacts of climate change and the prospect of expanded shipping in the Arctic Ocean. In the last decade the Council’s working groups have produced valuable analyses of issues, including the overall status of biodiversity in the Arctic region, the challenges posed by increased shipping, the impacts of oil and gas development in the offshore Arctic, and the acceleration of regional warming by the deposit of black carbon. The Council has also embraced the concept of ecosystem-based management as a central principle for future management of the Arctic marine environment.Footnote 50
Significantly, the Council has moved from merely assessing problems to attempting to solve them. In a recent three-year period, discussions convened under the auspices of the Council have resulted in the negotiation of two binding agreements by the eight Arctic states acting not as Arctic Council members per se but as independent states. Both agreements promote cooperation: one on Arctic search and rescue (SAR 2011), the other on marine oil pollution preparation and response (OPPR 2013).Footnote 51 Although the Arctic Council launched negotiation of these two binding agreements, it is not equipped to oversee their implementation and it is not a management body. Both the SAR and OPPR Agreements involve all eight Arctic state governments but are freestanding agreements, the implementation of which will take place largely outside the auspices of the Council.Footnote 52
The Council’s gradual acknowledgement of the need for greater management coordination regarding the Arctic marine environment also resonates in the 2013 Kiruna Ministerial Declaration. The Declaration endorses ecosystem-based management (EBM) as the basis for coordinated state action,Footnote 53 but no follow-up programme or method yet exists for evaluating collective progress in EBM in the Arctic.Footnote 54 In a similar and more decisive vein, some four years after launching an effort to reduce emissions of black carbon,Footnote 55 the Council was able to obtain agreement from member governments at the 2015 Iqaluit Ministerial to prepare an inventory of black carbon sources and make some initial moves towards implementing the early action measures recommended in 2013.Footnote 56 Since at least 2006, calls have continued for the Arctic Council or the Arctic states to take a more active coordinating role in risk management, environmental conservation and other areas.Footnote 57 The Council’s evolution will need to continue if it is to play a stewardship coordination role for its member states.
For all its contributions towards a better understanding of the Arctic marine and terrestrial environment, and its dual roles as adviser and convener, the Arctic Council is not a management body. In its long-standing role of adviser, the Council can offer guidance to its constituent governments but does not have the ability to adopt binding decisions or to effect or enforce that guidance. The Arctic Council relies on its member states to implement commitments made through the Council (such as those included in the biennial Arctic Council Ministerial Declarations) and various recommendations of Arctic Council bodies (such as those contained in assessments and other reports produced by Arctic Council working groups).
In its emerging role as a convener, the Council has demonstrated an important capability to bring the right actors to the table to address specific problems, using the Task Force structure to prepare for, inter alia, negotiation of the binding SAR and OPPR Agreements, and the institutional reforms that led to establishing the Arctic Council Secretariat.Footnote 58 Some commentators see this new role as an opportunity for the Council to exercise greater collective stewardship with respect to expanded human activity in the Arctic.Footnote 59 This convening role reflects the Council’s special interest in the potential for the eight Arctic states, working in collaboration with the Arctic indigenous peoples, to achieve concrete results for the Arctic by acting collectively. To be true to the character and mandate of the Arctic Council, such collective action must be at the sovereign initiative of each of the Arctic states; they can act towards a common purpose with the encouragement – but not at the behest – of the Arctic Council.
At their meeting in Iqaluit (Canada) on 24 April 2015, the Arctic Council Ministers ‘establish[ed] a Task Force to assess future needs for a regional seas program or other mechanism, as appropriate, for increased cooperation in Arctic Marine Areas’.Footnote 60 The Senior Arctic Officials (SAOs), in their accompanying Report to the Ministers (SAO Report), recommended the establishment of a task force with the following mandate: (i) to identify future needs for cooperation in the Arctic marine environment; (ii) to recommend whether the Council should ‘begin negotiations on a cooperation mechanism for Arctic marine areas’; and (iii) to make other recommendations that the task force deemed appropriate.Footnote 61 In the terms of reference, the SAO Report specified three broad categories of questions for the task force to consider – (i) its mandate and scope; (ii) its relationship with the Arctic Council; and (iii) its legal form – and directed that its final report be available no later than the 2017 Ministerial concluding the US chairmanship.Footnote 62 In establishing the Task Force on Arctic Marine Cooperation (TFAMC) the US and Norway were designated as co-chairs.
Involving the Arctic Council in increased coordination of national marine management measures, and in drawing on experts from international organizations or treaty bodies to address related questions, is consistent with the Council’s long-standing advisory role. It also builds prudently on the Arctic Council’s emerging role as convener to accomplish discrete tasks critical to the health of the Arctic. Irrespective of what modality the TFAMC recommends for the further exploration and development of a coordination arrangement focused on Arctic Ocean stewardship and management, we believe the Arctic Council is the right entity to launch discussion of a regional coordinating agreement (the AOCA).
2. KEY QUESTIONS FOR AN ARCTIC OCEAN COORDINATING AGREEMENT
Complementing the work of the Arctic Council by adding an AOCA-style management coordination framework presents an opportunity for the Council to maintain its position as the leading forum for high-level discussion of Arctic issues. This approach also expands ways in which observer states and non-Arctic experts can contribute to solving problems that the Arctic Council identifies as requiring focused attention. To create an AOCA with clear parameters and objectives, we believe it is necessary to specify how the AOCA will relate to the Arctic Council, and what its membership, binding character and geographic and substantive scope will be. These categories should be established at the outset with the understanding that, as the AOCA proves itself to be a useful forum for addressing targeted management issues, its original members can agree to amend these foundational parameters gradually and as appropriate.
An incremental approach will allow the participants in AOCA to build trust by addressing mutually agreed challenges before moving on to more nuanced or complex issues. Incremental approaches are acknowledged to be at work not only in the creation of binding norms of international law,Footnote 63 which we do not anticipate as forming part of AOCA’s convening work, but also in the development of soft law,Footnote 64 which can include shared best practices, agreed principles and guiding recommendations such as those generated by the Arctic Council. VanderZwaag helpfully distinguishes between two possible directions for the evolution of cooperation to protect the Arctic marine environment: ‘fragmented incrementalism’ on the one hand (for example, continued programme development by the Arctic Council and a growing ‘patchwork’ of regional, global, local and other level agreements ‘that might better address various arctic dimensions’Footnote 65), and some form of binding regional agreement on the other.Footnote 66 An AOCA offers a way to reduce fragmentation without necessitating a new binding regional agreement. Griffiths has expressed a similar vision for reducing fragmentation in an incremental approach:
What we have in mind is a via media for the practice of Arctic cooperation – an alternative to treaty-based mandatory compliance and the fragmented incrementalism that now prevails. Another way would see the Arctic equipped with the new capacities for voluntary coordination of and active support for international cooperation, be it bilateral, sub-regional, region-wide or extra-regional in scope. The essential requirement is an enabling central institution of governance, one that reviews and coordinates cooperation on a consensual basis while also providing financial assistance to projects in need.
The basis for such an institution already exists in the Arctic Council.Footnote 67
Similar to Griffiths’ approach, the proposed AOCA would support coordinated Arctic state action with a modest framework for members to strategically prioritize and address narrowly focused issues. Over a decade ago, in reporting the 2004 Arctic Marine Strategic Plan (AMSP),Footnote 68 the Arctic Council Ministers recognized that ‘existing and emerging activities in the Arctic warranted a more coordinated and strategic approach to the challenges facing Arctic coastal and marine environments’.Footnote 69 Providing a regularized mechanism in the AOCA for the Arctic states to draw on appropriate national and international experts to address marine management issues of shared concern could also strengthen a shared sense of stewardship among the Arctic’s sovereign states.
2.1. Relationship with the Arctic Council
The Arctic Council is and should remain the premier forum for the coordination of national policies regarding conservation and sustainable development in the Arctic. Accordingly, we believe the Council should be the convening forum for the design of the AOCA. Following the process used to negotiate the SAR and OPPR Agreements, the Arctic Council has the capacity to establish a Task Force to explore the answers to each of the remaining key questions for an AOCA identified in this section. The AOCA would be most effective if it is considered to be related to the Arctic Council, precisely because the Council possesses the greatest collective national expertise to prioritize management issues.
Structuring the AOCA as related to the Arctic Council would avoid the possibility of a separate RSA being established outside the Arctic Council and would ensure that coastal and non-coastal Arctic states participate equally in decisions about management issues facing the Arctic Ocean as a whole. Placing the AOCA under the Arctic Council umbrella would also ensure that permanent participants retain their special status vis-à-vis the Arctic states and observer states and organizations, a feature that we consider essential to the success of an AOCA. As specified in its Rules of Procedure,Footnote 70 the Arctic Council ‘may establish working groups, task forces or other subsidiary bodies to prepare and carry out programs and projects under the guidance and direction of SAOs’.Footnote 71 If the Task Force wishes to establish the AOCA as an Arctic Council agreement with a different status from that of the SAR and OPPR Agreements, it may be advisable to establish the AOCA as a sui generis subsidiary body.Footnote 72
Although we do not advise establishing an AOCA that is completely independent of the Arctic Council, arguments exist for doing so. An AOCA with free-standing status would possibly generate greater participation by non-Arctic states, but an AOCA could be structured generously enough to ensure such participation when appropriate.
2.2. Membership
The eight Arctic states should be the AOCA’s core members and Arctic Council permanent participants should have the same status as they do in the Council. It is further advisable to provide Arctic Council observer states and, possibly on slightly different terms, other states with a way in which to participate in AOCA discussions as their expertise is needed. Section 3 identifies mechanisms that RSAs and other multilateral institutions have developed for involving non-parties in their activities on bases other than an observer basis.Footnote 73
2.3. Binding Character
The proposed AOCA selects appealing features from a range of existing institutions – from binding RSAs to other coordination forums – but does not recreate any of those institutions entirely, either in form or substance. A new AOCA could indeed be established through a legally binding agreement, but such an agreement is not a necessary precondition.Footnote 74 An AOCA could also ‘evolve’ after beginning as a voluntary ‘framework for action’ through the kind of discussions that the Arctic Council has used in the past. Such discussions include, for example, the Arctic Council’s efforts to implement the recommendations of the Arctic Marine Shipping Assessment.Footnote 75
2.4. Spatial Scope
Maritime zones
To provide comprehensive coverage, an AOCA should apply to at least three maritime zones established under UNCLOS:
∙ the territorial sea and exclusive economic zone (EEZ) – the water surface and column within 200 nautical miles;
∙ the high seas – the water surface and column beyond 200 nautical miles; and
∙ the continental shelf – the sea floor and subsoil within and beyond 200 nautical miles.
Notably, coastal state continental shelf rights are slightly more restricted beyond 200 nautical miles for matters such as access by other states for marine scientific research.
Because a high percentage of the Arctic marine environment is located within national EEZs, an AOCA should logically seek first to improve coordination and compatibility among national regulatory approaches. Following the incremental approach, the question of whether an AOCA should apply also to areas beyond national jurisdiction (ABNJ) need not be answered at the outset. After demonstrating success at coordinating national regulatory approaches, AOCA states can determine if and when they are ready to use the AOCA framework to convene national and international experts to address issues in ABNJ.
A clear management regime already exists for those parts of the seabed and ocean floor that are ABNJ. UNCLOS established the International Seabed Authority to manage ‘the Area’, wherever it is located on the globe and which, for the purposes of the Convention, ‘means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’.Footnote 76 By contrast, the management regime for the water column over the Arctic Ocean beyond 200 nautical miles is less clear. As high seas, those waters are ABNJ and subject to UNCLOS basic rules, such as freedoms of navigation and fishing. The Arctic Council has already convened negotiations leading to agreements between the Arctic states that touch waters beyond national jurisdiction: the Arctic Search and Rescue (SAR) Agreement,Footnote 77 and the Arctic Oil Spill Preparedness and Response (OPPR) Agreement.Footnote 78 Other issues for possible consideration by the Arctic states in managing ABNJ are proposed in the discussion of AOCA’s substantive scope below.
Geographic coverage
Another question regards the geographic scope to which an AOCA should apply. As with the Arctic generally, no single definition exists for the marine Arctic for all purposes. This lack of definition offers a flexibility that potentially strengthens rather than weakens the framework for coordinated management in neighbouring and overlapping marine areas.
One option may be simply not to specify a spatial mandate, agreeing only that the AOCA would cover the areas where each member state exercises national jurisdiction. The Joint Norwegian-Russian Fisheries Commission is one body that does not specify its spatial coverage.Footnote 79 Should a specified geographic scope be desired, models can be found in a variety of instruments relevant to coordinated management in the Arctic. We have selected three categories of instruments to mirror the three arenas available to Arctic states for addressing marine management concerns: (i) national approaches; (ii) binding multilateral and regional conventions regulating distinct aspects of marine activity – such as the environment, navigation, resource development or other, including scientific cooperation bodies; and (iii) non-binding studies and recommendations from entities such as the Arctic Council.
National definitions offer a practical starting point for an AOCA, especially if the initial meetings deal with coordinating national measures for marine management. Each Arctic state defines its Arctic region differently. The OPPR Agreement specifies each state’s definition of the national Arctic area in which it will operate.Footnote 80 The Arctic Council PAME working group has seen the utility of having each state apply its own definition of the Arctic region. Under the PAME AMSPFootnote 81 and its Arctic Offshore Oil and Gas GuidelinesFootnote 82 each Arctic Council member state defines its own relevant Arctic area.
In the context of binding multilateral and regional conventions, two intergovernmental science organizations define their respective geographic scopes broadly enough to encompass at least marginal seas if not actual waters of the Arctic Ocean. PICES ‘promotes co-ordinated marine scientific research and information exchange in the North Pacific and adjacent marginal seas, particularly north of 30 degrees North’.Footnote 83 ICES is concerned with ‘the Atlantic Ocean and its adjacent seas and primarily the North Atlantic’.Footnote 84 There is no intergovernmental marine science organization dedicated exclusively to the Arctic but, as Section 3.2 discusses, ICES and PICES have worked jointly on questions of Arctic Ocean science.
A regional agreement covering a broader range of issues than marine science is the Oslo-Paris Convention for Protection of the Marine Environment of the Northeast Atlantic (OSPAR).Footnote 85 By the definition in the Convention, OSPAR’s Region 1, Arctic Waters,
encompasses the sea areas north of 62o N – the Norwegian, Iceland and Greenland Seas (collectively called ‘the Nordic Seas’), the Barents Sea and a sector of the Arctic Ocean. South of 62o N Region I further comprises the area around the Faroe Islands and the East Greenland shelf area to Cape Farewell. The region is bordered to the east by northern Norway, the Kola Peninsula and Novaja Zemlya, and extends northwards via Franz Josef Land to the North Pole along the 51o E meridian. To the west, the region is bordered by the 42o W meridian and the east coast of Greenland.
OSPAR covers all of the Norwegian Sea while PAME’s definition in the AOR covers only its ‘northern parts’.Footnote 86
Arctic Council definitions of the marine Arctic in non-binding studies and recommendations vary depending on the working group in question, and the group’s purpose. The AMAP, for example,
has established a circumpolar region as a focus for its assessment activities that includes both High Arctic and sub-Arctic regions. In the marine environment, the ‘AMAP area’ includes northern seas that extend as far south as 51.1 degrees N (James Bay, Canada). Within this region, 10 ‘key’ areas have been identified for coordinated pollution monitoring studies.Footnote 87
As noted, the PAME AMSPFootnote 88 has each Arctic Council member state defining its relevant Arctic area. The plan ‘covers all Arctic marine areas and relates to all key activities affecting Arctic marine ecosystems; therefore it also considers coastal zones, river basins and other areas that are connected to the marine ecosystem’.Footnote 89 Regardless of the geographic coordinates or definitions (if any) that the AOCA adopts for the Arctic marine area, the AOCA should apply the AMSP’s broad ecosystem-based understanding of the marine Arctic to ensure consideration of a wide range of influences on Arctic Ocean health.
The PAME AOR Final Report contains a non-binding set of recommendations tied to a review of international instruments relevant to the Arctic Ocean.Footnote 90 It, too, applies a broad understanding of the marine Arctic, covering the central Arctic Ocean and its surrounding seas, but does not refer to coastal, riverine and other areas connected to those seas. The oceans and seas included in this definition comprise an area of 20 million square kilometres and are referred to as the ‘Arctic marine environment’. The Baltic Sea is not included.Footnote 91
As these examples in all three categories show, the exact geographic definition of the Arctic historically has depended on the functions for which it provides boundary conditions. We may expect that such a nominalist and practical approach would continue in an AOCA framework.
2.5. Substantive Scope
We suggest that any AOCA should start with a modest substantive scope and build over time to encompass new areas when its members agree they are ripe for inclusion. Yet, even if the members agree to the seemingly limited initial purpose of coordinating national management measures for human activity in the marine Arctic, a number of questions arise, including the types of activity for which management schemes could be coordinated. Should they first address land-based pollution, shipping, fisheries, tourism, hydrocarbon development, or other activities? Equally important is having a process in place for AOCA members to determine how and when to add new substantive areas.
Any Arctic Council Task Force established to explore the possibility of an AOCA should consider whether the PAME AMSP Footnote 92 could serve as the guiding document for identifying substantive issues for the AOCA to address, and in which order. The decadal review and updating of the 2004 AMSP, presented at the 2015 Arctic Council, offers significant guidance to the discussion of the AOCA’s substantive scope.Footnote 93
We use one of the AMSP general goals – conserving Arctic marine biodiversity and ecosystem function – to demonstrate how an AOCA could draw on the AMSP to guide its substantive and spatial scope.Footnote 94 The AOCA would provide a framework in which Arctic states could share experience, expertise and learning with regard to their respective biodiversity practices. If one state’s biodiversity measures, for instance, prove to be of model character, other states would be free to adapt them as best practices. Collectively, this could lead to the AOCA generating best practices on biodiversity conservation for the Arctic region, connecting them around the different regions of the Arctic Ocean to create a ‘necklace’ of regional practices to which all Arctic states could refer and, if persuaded of their relevance to their Arctic ‘neighbourhood’, eventually adopt internally.
Success in sharing best national practices for Arctic marine biodiversity could place the AOCA in a strong position to shape the discussion of marine biodiversity in ABNJ with respect to the Arctic. No date has been set for the start of negotiations on the newly anticipated implementing agreement on Biodiversity Beyond National Jurisdiction (BBNJ) under UNCLOS.Footnote 95 Even if an AOCA is formed after BBNJ negotiations commence, it could offer a regional perspective on biodiversity cooperation that builds on best national practices suited to the Arctic region.
Article 118 UNCLOS makes cooperation between states mandatory in the conservation and management of living resources in the areas of the high seas. As Ardron and his co-authors point out, such cooperation is not just a valuable tool but also a legal obligation of states.Footnote 96 The UN General Assembly’s BBNJ Working GroupFootnote 97 has regularly noted ‘the need for existing mechanisms and institutions to move away from the sectoral approach to a multi-sectoral and integrated approach to cooperative management of ABNJ’, as well as the challenges that a sectoral focus presents.Footnote 98 Some proponents of a BBNJ implementing agreement feel it is needed in part because ‘some of the sectoral organizations [e.g. multilateral conventions to manage marine natural resource exploitation and maritime activities such as whaling, shipping, dumping, sea bed mining, pollution, regional seas, and moreFootnote 99] have not done enough to integrate biodiversity into their decision-making processes’.Footnote 100
This concern for a lack of sectoral integration, addressed largely to international institutions, highlights a potential strength of an AOCA focused initially on national measures. Assuming that its early projects focus on coordinating national measures, biodiversity could be integrated into decision-making processes only to the extent that each state considers biodiversity in its own laws and regulations. However, by establishing an Arctic-wide approach to coordinating national biodiversity initiatives for sectors as diverse as air, water and species, the AOCA could serve as a model of integrated management for the international ABNJ/BBNJ discussion. Establishing an AOCA between the eight Arctic states would allow them to coordinate on biodiversity stewardship step by step, moving from a basic coordination of national measures for managing human activity in the marine Arctic to appropriate new ways of integrating tools for management, possibly even in ABNJ.
3. MODEL ELEMENTS FOR AN ARCTIC OCEAN COORDINATING AGREEMENT
Immediate challenges facing the marine Arctic are two-fold: (i) conserving subsistence and wildlife opportunities in the face of climate-related stress to physical and ecological systems; and (ii) managing increased human use of the marine environment to reduce adverse impacts and ensure some measure of sustainable development.Footnote 101 With these goals in mind, we draw on models that embody innovative science and conservation approaches; offer beneficial structural, cooperative or process elements; or create inter-treaty linkages to improve coordination on narrow, project-specific undertakings relevant to the Arctic Ocean. Those undertakings include ecosystem-based management, pollutant monitoring and assessment, marine protected areas and biodiversity indicators – all of which are important to cooperative marine stewardship in the Arctic.
For each of the models discussed below, we identify discrete mechanisms for regional marine cooperation that could be adapted for the Arctic Ocean without adopting wholesale the larger multilateral treaty or organization that created the mechanism. For example, an AOCA could adapt procedures similar to those employed by the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR)Footnote 102 to involve non-parties in certain activities without having to adopt all other aspects of CCAMLR. More importantly, aspects of RSAs could be adapted to the Arctic Ocean setting without creating a fully fledged RSA for the region. Our vision of an AOCA is of a nimble, versatile body which operates without creating new institutions, focusing instead on convening existing individuals and institutions whose expertise can assist the Arctic states with marine management questions that the those states define.
3.1. Individual Components of RSAs Adaptable to an AOCA
Management coordination frameworks already operate in many marine areas around the world, including regions adjacent to or overlapping portions of the Arctic Ocean. The marine areas covered by the Helsinki Convention/HELCOM and the OSPAR Convention are, respectively, near and partially located in the Arctic. Subsets of the eight state members of the Arctic Council are party to these two RSAs. The two conventions have joined forces on narrowly focused projects, such as applying the ecosystem model to management of human activity in their respective marine areas.Footnote 103
The Framework Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran Convention),Footnote 104 and the Convention on the Protection of the Black Sea against Pollution (Bucharest Convention)Footnote 105 – two more geographically distant RSAs – demonstrate approaches and innovations, individual elements of which may also be adaptable to the Arctic.
Internal strategies and external cooperation: HELCOM and the Baltic Sea
HELCOM is the governing body of the 1992 Helsinki ConventionFootnote 106 through which all nine bordering states and the European Union (EU) work together to prevent and reduce pollution in the Baltic Sea. Six states are either Arctic Council members (Denmark, Finland, Russia and Sweden) or Arctic Council observers (Germany and Poland).Footnote 107 The fact that half of the Arctic states are members of HELCOM allows them to assess the suitability, or lack thereof, of discrete aspects of HELCOM operations for limited application in the Arctic marine area.
HELCOM is a policy-making body through which its state members collectively develop common environmental goals and actions to achieve the Convention’s objectives. HELCOM monitors and reports on environmental trends and evaluates the progress of conservation initiatives. It also has a supervisory role in ensuring that convention parties fully adhere to agreed standards, and a coordinating role in response to major marine incidents. HELCOM has six permanent working groups and three time-limited groups performing various tasks, from monitoring and assessment to incident response, and from biodiversity conservation to the reduction of land-based sources of marine pollution. As with the Arctic Council, HELCOM actions are taken by consensus, which has occasionally resulted in the failure to act on specific recommendations, such as a recent attempt to declare an emissions control area for nitrogen oxide (NOX) that later succeeded.Footnote 108
HELCOM has a more developed institutional infrastructure than the minimal approach needed for the initial establishment of an AOCA, given that the Arctic Council is not per se a policy-setting body and has no conventions of its own to enforce. The way in which HELCOM coordinates response to major maritime incidents, however, could be instructive should the AOCA convene an expert group to discuss, for example, implementation of the 2011 SAR AgreementFootnote 109 and 2013 OPPR Agreement.Footnote 110 Similarly, the modalities through which HELCOM harmonizes environmental monitoring and assessment protocols could serve as a model for Arctic Council states interested in obtaining more comparable circum-Arctic observations of different environmental parameters. By convening experts involved in monitoring and assessment in other marine areas, the AOCA could help to coordinate the monitoring and reporting of environmental and conservation trends between the different national ministries and treaty bodies engaged in those activities around the Arctic.
HELCOM has developed strategies and partnerships that could provide useful lessons for future activities of the Arctic Council and an AOCA. In 2010, HELCOM adopted the Baltic Sea Action Plan, an integrated cross-sectoral strategy designed to return the Baltic Sea to ecological health by 2021. The strategy sets specific ecological objectives and measurable targets in accordance with the ecosystem approach, which the Commission has endorsed as its fundamental planning guidance. National follow-up is undertaken through specific national implementation plans, and is tracked in periodic assessment reports. The 2015–25 AMSP approved by the Arctic Council ministers at Iqaluit in 2015Footnote 111 could serve as a starting point for such an Action Plan in the Arctic; it could guide not only the Arctic Council working groups, but serve as the guiding document for an independent AOCA.
HELCOM is a ‘strategic partner’ of the Council of the Baltic Sea States (CBSS), the high-level political forum of the Baltic Sea region founded in 1992.Footnote 112 This relationship helps to situate HELCOM’s focus on the Baltic Sea environment in the broader context of development and environmental policy discussion in the region. There is no direct parallel between the CBSS and the Arctic Council, but HELCOM’s relationship with the CBSS suggests a form of inter-institutional linkage adaptable to the Arctic. One role for the AOCA could be to identify ‘strategic partner’ institutions such as HELCOM and to serve as the communication hub between those partners and the Arctic Council. This role for an AOCA could serve to centralize and correct the ad hoc manner in which different Arctic Council working groups currently establish memoranda of understanding (MOUs) or other working relationships with different MEAs and IGOs.Footnote 113
The ability of HELCOM to work across institutions may prove to be instructive to the Arctic Council as a way to increase management coordination between its members without itself assuming a management role. The Preamble to the Helsinki Convention asserts the desire ‘to enhance co-operation with competent regional organizations’.Footnote 114 HELCOM has built on that stated goal incrementally and successfully to create and support the ‘long-standing experience and established structures for cooperation’ among the four regional seas conventions that cover European waters: HELCOM, OSPAR, the Bucharest ConventionFootnote 115 and the Convention for the Protection of the Mediterranean Sea against Pollution.Footnote 116
Finally, a key difference between the Baltic and the Arctic suggests how an AOCA could tailor its purposes to the region. The Baltic Sea states created HELCOM out of concern for existing pollution and the need to restore the marine environment.Footnote 117 Much of the Arctic Ocean, by contrast, is still in a relatively unspoiled state, even as threats to it increase. Carefully chosen steps towards precautionary marine management could shape how an AOCA would coordinate member states’ national measures to preserve that status while balancing competing sustainable uses.
Conservation cooperation in an Arctic sub-region: OSPAR and the Northeast Atlantic
The OSPAR Commission administers the OSPAR Convention.Footnote 118 This 1992 agreement is the successor to two earlier conventions on dumping and land-based sources of marine pollution,Footnote 119 and articulates clear environmental conservation goals and mandates. As a free-standing RSA that is independent of the UNEP Regional Seas Programme (RSP) and already covers part of the Arctic Ocean, OSPAR has several elements that could provide models for an AOCA without the Arctic states having to form a fully fledged regional seas arrangement.Footnote 120 Like HELCOM, the OSPAR Commission has a more rigid and developed infrastructure than an AOCA would necessarily require, and the Commission has the authority to take binding decisions for contracting parties, which the Arctic Council does not anticipate. The Commission’s five strategic programmes – on eutrophication, hazardous substances, radioactive substances, offshore industry, and ecosystem biodiversity – are based in individual Convention annexes.
OSPAR Region 1 (Arctic Waters) covers a significant portion of the Arctic Ocean, encompassing the east coast of Greenland, the Russian/Norwegian boundary in the Barents Sea and all of Iceland, the Faroe Islands and Svalbard.Footnote 121 OSPAR membership includes all five Scandinavian Arctic Council members: Denmark, Finland, Iceland, Norway, and Sweden; and the OSPAR Secretariat has ongoing discussions with the Russian Federation about closer collaboration.Footnote 122 The fact that so many Arctic states are conversant with OSPAR allows them to make considered judgments as to whether OSPAR models are adaptable to the broader Arctic Ocean.
OSPAR is open to operationalizing standards and practices for managing risk through a combination of intergovernmental action and cooperation with the private sector in the offshore oil and gas sector, and elsewhere. OSPAR’s requirements focus on preventing discharges and hazardous pollution, and do not include liability or compensation standards as such.
OSPAR has cultivated working ties with the Arctic Council and to other international bodies. For example, the Arctic Council’s AMAP working group is one of OSPAR’s 16 intergovernmental observers; the International Maritime Organization (IMO) is another, and maintains an MOU with OSPAR. PAME and CAFF are not observers but are considered relevant to OSPAR’s oil and gas initiatives and its Joint Assessment and Monitoring Programme (JAMP), respectively.Footnote 123 A systematic AOCA inventory of relevant connections between OSPAR and the Arctic Council, and with individual Arctic Council member states that are also OSPAR members, could assist in identifying potential areas for coordinating marine management efforts.
OSPAR’s geographical coverage opens interesting possibilities for an AOCA to coordinate extending to other parts of the Arctic at least narrow and uncontroversial measures applicable in that region. These could be extended as examples of best practices in one part of the Arctic with the potential to inform, where appropriate, other Arctic ‘neighbourhoods’. Such coordination is in keeping with the Preamble to the OSPAR Convention, which further recognizes that ‘concerted action at national, regional and global levels’ is required to achieve its goals.
The potential of an AOCA to facilitate the exchange of best practices between OSPAR Arctic states and other parts of the Arctic lying outside an RSA is in keeping with OSPAR’s 2010 North-East Atlantic Environment Strategy, which promotes coordination with the Arctic Council: OSPAR Contracting Parties that participate in other multilateral forums will endeavour to ensure that initiatives relevant to the work of OSPAR developed within those forums (including the Arctic Council and HELCOM) are compatible with any OSPAR programmes and measures.Footnote 124 Biodiversity and ocean acidification are among the sectoral issues for which OSPAR’s 2010 Environment Strategy encourages cooperation with other international institutions, especially in implementing OSPAR’s Biodiversity and Ecosystems Strategy in geographically distinct areas.Footnote 125 An AOCA could be the body that convenes such cooperative inter-institutional meetings when these issues are the focus of its Arctic work.
An important element of OSPAR’s Biodiversity and Ecosystems Strategy is a commitment to establish a network of marine protected areas (MPAs). These networks are to include marine areas both under and beyond national jurisdiction nominated by OSPAR parties to protect resources and livelihoods.Footnote 126 OSPAR’s cooperation with HELCOM on MPAs could form part of an AOCA-convened expert group on MPAs in the Arctic.Footnote 127 Depending on its focus, such a group could also draw on expertise from ICES, the IMO, the Intergovernmental Oceanographic Commission, and the Black Sea Commission – all of which have observer status in OSPAR; the International Union for the Conservation of Nature (IUCN), which has an MOU with OSPAR; the CBD, to the work of which OSPAR contributes; and permanent participants, subsistence co-management authorities and other relevant bodies. Relationships with OSPAR would not, however, be determinative as to which groups the AOCA would include in the meetings. We list these ties simply to indicate the potential for connections between subject-matter experts in an AOCA forum should AOCA members decide at some point to address the topic of MPAs.
Another discrete mechanism that an AOCA could adapt to the Arctic, or could identify as a source of best practices, is OSPAR’s Joint Assessment and Monitoring Programme (JAMP). JAMP complements the OSPAR Commission’s strategic programmes and is responsible for setting out ecological quality objectives on the basis of which the Commission measures progress and defines success in implementing the OSPAR Convention. Again, the usefulness of this model to an AOCA is not as a direct parallel because the Arctic Council has no environmental conventions to implement. However, the Council has identified ecosystem-based management (EBM) as integral to the health of the Arctic Ocean and confirmed the centrality of EBM to its work at the last two Ministerials in Kiruna (Sweden) in 2013 and Iqaluit (Canada) in 2015.Footnote 128 OSPAR’s effort to develop ecological quality objectives for key areas of concern is instructive to the AOCA simply because it reflects the importance to the successful application of EBM of measuring outcomes in terms of ecosystem health, as well as evaluating the results of particular programmatic efforts.
Cooperation between OSPAR and HELCOM on narrowly defined projects
Together, the membership of OSPAR and HELCOM includes six of the eight Arctic states; Canada and the US are excluded. The OSPAR and HELCOM Commissions have cooperated for over a decade on a variety of projects, including work on biodiversity indicators,Footnote 129 marine spatial planning (with ICES),Footnote 130 EBM,Footnote 131 and MPAs.Footnote 132 These cooperative arrangements suggest possible areas for an AOCA to coordinate by linking with the mechanisms already in place between HELCOM and OSPAR and possibly connecting those to the work of yet other international treaty bodies and organizations.
Conservation mechanisms: the Caspian Sea (Tehran Convention)
The 2003 Framework Convention of the Marine Environment of the Caspian Sea (Tehran Convention)Footnote 133 embodies a long-running effort among the Caspian littoral states – Azerbaijan, Iran, Kazakhstan, Russia, and Turkmenistan – to find a more effective working partnership for their conservation.Footnote 134 As a relatively new RSP,Footnote 135 the objective of the Convention and the way in which its general obligations are structured are potentially relevant to future management efforts in the Artic marine environment.
The objective of the Tehran Convention is ‘the Protection of the Caspian environment from all sources of pollution including the protection, preservation, restoration and sustainable and rational use of the biological resources of the Caspian Sea’.Footnote 136 The Convention also focuses on restoration and rational use and ‘environmental equilibrium in the course of satisfying human needs in nutrition and meeting social and economic objectives’.Footnote 137 The latter provision could take on a different and significant meaning if adapted to the Arctic where subsistence use of marine resources plays a critical role in the lives of many residents.
Article 18 addresses procedural coordination at a functional level:
The Contracting Parties shall co-operate in formulating, elaborating and harmonizing rules, standards, recommended practices and procedures consistent with this Convention and with the account of requirements, commonly used in international practice, in order to prevent, reduce and control pollution of, and to protect, preserve and restore the marine environment of the Caspian Sea.
In seeking to coordinate best practices, a similar approach would allow an AOCA not only to draw on its member states’ national measures but look to other regions for effective mechanisms to address monitoring, reporting and other operational activities.Footnote 138
An innovative framework approach: the Black Sea (Bucharest Convention)
Like the Tehran Convention in respect of the Caspian Sea, the 1992 Convention on the Protection of the Black Sea against Pollution (Bucharest Convention)Footnote 139 adopts the innovative use of a framework structure, which is especially instructive for the Arctic.Footnote 140 The Russian Federation is the only Arctic Council state that is party.Footnote 141
While all framework agreements ‘establish the institutional structure through which the regime is to be further developed’Footnote 142 (in the form of protocols, decisions and operational bodies), the Bucharest Convention is notable for the way in which it applies this model to its own geographic scope. Article 1 provides that, although for the purposes of the Convention references to the Black Sea ‘shall include the territorial sea and exclusive economic zone of each Contracting Party in the Black Sea … [future] protocols of the Convention may provide otherwise for the purposes of that Protocol’.Footnote 143
The Black Sea does not itself have any areas that will be ABNJ,Footnote 144 yet such a formulation is potentially applicable to ABNJ in the Arctic. Should the Arctic states agree to extend its management coordination for limited purposes in that direction, for example, for a geographically constrained MPA, it could design a protocol for that narrow purpose. It is also conceivable that, in coordinating the national measures of its member states, an AOCA could tailor individual protocols to the needs of specific Arctic sub-regions and acknowledge the differences between, for example, the relatively icier Beaufort Sea and the Barents Sea, warmed by the Gulf Stream.Footnote 145 Another possible use of an innovative ‘area of application’ protocol in the Arctic might be to expand coverage for limited substantive purposes to coastal and terrestrial ecosystems critical to the health of the Arctic Ocean.
The Bucharest Convention also contemplates and encourages bilateral and multilateral cooperation with competent international organizations outside its immediate geographic ambit through Article XV on scientific and technical cooperation and monitoring. Working with such entities through the Commission, Parties are required to establish
complementary or joint monitoring programmes covering all sources of pollution and shall establish a pollution monitoring system … including, as appropriate, programmes at [sic] bilateral or multilateral level for observing, measuring, evaluating and analyzing the risks or effects of pollution of the marine environment of the Black Sea.Footnote 146
A recent example of tools stemming directly from Article XV cooperation with the European Commission – the competent international organization in this case – is the development of Manuals for Biological Monitoring of different types of plankton as well as Guidance on Data Quality Control for Marine Biodiversity in the Black Sea between 2009 and 2012.Footnote 147
The Bucharest Convention’s model of cooperation with competent international organizations in developing tools for monitoring and observation that individual member states can use is of particular relevance to the Arctic, where there is no single obvious competent international organization. The term, moreover, allows both IGOs and non-governmental organizations (NGOs) to contribute. Uniform tools for monitoring and observing activities exist, but they are only well coordinated in one sub-region of the Arctic: the JAMP as it is applied in OSPAR’s Region 1 (Arctic Waters).
An AOCA could adapt the Bucharest Convention model of reaching out to diverse international organizations to help to establish a robust system of common or comparable observing protocols for national and regional management of the Arctic Ocean. Harmonizing such protocols could be one way for an AOCA to contribute to longer term efforts (which are already under way) to build and strengthen the observation stations and networks that are critical to understanding and managing change in the Arctic Ocean. The interfacing between the AOCA and scientific organizations – such as ICES, PICES, the International Arctic Buoy Program, and the Sustained Arctic Observing Network, as well as with networks of traditional knowledge observers and community-based monitoringFootnote 148 – would also assist in this regard.Footnote 149
Cooperation between multiple regional actors for integrated monitoring and assessment, data collection and reporting
A 2013 study of Europe’s four regional seas conventions – HELCOM, OSPAR, the Bucharest Convention and the Barcelona ConventionFootnote 150 – identified integrated monitoring and assessment, and data collection and reporting as two areas in which strong mechanisms exist internally for each Convention. The study concludes that these four activities are prime candidates for greater governmental support in creating a robust and consistent protection of the combined marine regions.Footnote 151 The focus on these activities also provides a logical link for considering how science bodies active in the Arctic region could work with an AOCA to contribute to more uniform scientific protocols for discrete areas of Arctic marine research.
3.2. Project-Specific Cooperation between Science Agreements: ICES, PICES and IASC
The two IGOs for marine science that are especially relevant to the Arctic Ocean are ICES (North Atlantic) and PICES (North Pacific). All eight members of the Arctic Council are among the 20-state membership of ICES, as are six of the twelve Arctic Council observer states.Footnote 152 Of PICES’ six-state membership, Canada, Russia and the US constitute half. The three remaining members are Arctic Council observer states: Japan, the People’s Republic of China, and the Republic of Korea. IASC, by contrast, is an NGO. All eight Arctic states and eleven of the twelve Arctic Council observer states are partyFootnote 153 to IASC, which is a key institution for the coordination of Arctic research agendas, field science and observation networks.
An AOCA could draw upon a variety of existing scientific IGOs and NGOs to help them to better coordinate research, monitoring and assessment projects and provide a formal process for better inter-treaty and inter-institutional linkages. This could, in turn, help to better coordinate the use of observational, monitoring and assessment science from around the Arctic in policy and management decisions. The ongoing negotiations for a science cooperation agreement under the auspices of the Arctic Council, as mandated at the 2013 Kiruna Ministerial, will also need to inform any scientific cooperation role for an AOCA.Footnote 154
An AOCA that coordinates national measures for the protection of the marine Arctic could also work with its members to coordinate their participation as Arctic states in each of these scientific forums. An eventual role for an AOCA could be to serve as a similar science cooperation body for the Arctic Ocean – an Arctic ICES, so to speak. This would not only provide geographic coverage of the Arctic Ocean but also, by linking with PICES and ICES, extend that coverage to the two oceans that connect the Arctic Ocean to the world ocean. In addition, ICES already uses strategic partnerships to extend its work into the Arctic, the Mediterranean Sea, the Black Sea, and the North Pacific Ocean.Footnote 155
ICES (North Atlantic)
ICES is an intergovernmental science advice body for the Atlantic Ocean, with a primary focus on the North East Atlantic.Footnote 156 ICES initially concentrated on fisheries science and advice but its work has more recently expanded to include marine pollution science.Footnote 157 ICES’ Strategic Plan for 2014–18 summarizes its mission as ‘to advance the scientific understanding of marine ecosystems, and provide information, knowledge, and advice on the sustainable management of human activities affecting, and affected by, marine ecosystems’.Footnote 158 ICES ‘delivers scientific publications, information and management advice requested by member countries and international organizations and commissions’ such as OSPAR, HELCOM, NEAFC, the North Atlantic Salmon Conservation Organization (NASCO), and the European Commission.Footnote 159 The terms of the ICES founding Convention would allow it to provide science information and advice upon request to an AOCA, tailored to needs identified by AOCA members.Footnote 160
Cooperation between ICES and PICES includes a first joint working group in 2009 on the climate change impacts on fish and fisheries, and subsequent collaboration on Arctic Ocean issues, including integrated ecosystems assessments.Footnote 161 ICES maintains working relationships with the AMAP, CAFF and PAME Arctic Council Working Groups, as well as the decadal International Conference on Arctic Research and Planning (ICARP) and IASC.
PICES (North Pacific)
PICES is the North Pacific’s intergovernmental body for scientific cooperation and advice relating to northern waters.Footnote 162 While not explicitly dedicated to the Arctic, PICES ‘promotes co-ordinated marine scientific research and information exchange in the North Pacific and adjacent marginal seas, particularly north of 30 degrees North’.Footnote 163 Although PICES is in some ways to the North Pacific what ICES is to the North Atlantic, it differs in at least two ways. Firstly, in contrast to ICES’ enduring fisheries focus and identification, PICES articulated its core mission early on as being to better understand North Pacific ecosystems, a purpose that incorporates but goes beyond fisheries science.Footnote 164 Secondly, the North Atlantic and ICES have a counterpart regional convention for the protection of that region’s marine environment in OSPAR, with which ICES works by MOU. By contrast, no such regional marine conservation agreement exists for the North Pacific. Established in 1992, PICES’ membership of Canada, Japan, China, the Republic of Korea, Russia, and the US offers almost a mirror image of OSPAR by including the three Arctic Council members that are not part of OSPAR: Canada, Russia and the US. The absence of a North Pacific conservation agreement in some ways renders PICES even more open for collaboration with an AOCA.
IASC and the Pacific Arctic Group
IASC was established as an NGO in 1990 by endorsement of the representatives of the national scientific organizations of the eight Arctic states. Its purpose was to ‘encourage and facilitate international consultation and cooperation for scientific research concerned with the Arctic’.Footnote 165 In 2015, the IASC Council has 23 members, including all eight Arctic states.Footnote 166 IASC’s early focus on climate change and the science of Arctic processes still informs its work.Footnote 167 Of particular model character for an AOCA are IASC’s partnerships with other scientific, educational and research organizations, some of which are not Arctic-specific but have expertise to complement the Arctic science focus of IASC. These partnerships include the European Polar Board, the University of the Arctic, the International Network for Circumpolar Health Research (INCHR), the World Climate Research Programme’s Climate and Cryosphere Project, ICES, PICES, and the Pacific Arctic Group (PAG).
Founded in 2003, the PAG is a group of individual scientists and science institutions from Canada, China, Japan, the Republic of Korea, Russia, and the US; it is organized directly under IASC.Footnote 168 Its mission is ‘to serve as a Pacific Arctic regional partnership to plan, coordinate, and collaborate on science activities of mutual interest’ and its principal science themes are ‘climate, contaminants, human dimensions and structure and function of Arctic ecosystems’.Footnote 169 At the operational level, the group shares plans for joint field and modelling activities, including coordinating research cruises, mooring locations and developing data policies for PAG projects that are compatible with IASC’s data policies. PAG initiated the Distributed Biological Observatory (DBO) from the northern Bering Sea to the Barrow Arc following a 2009 workshop ‘to evaluate ecosystem response to climate forcing in the Arctic’.Footnote 170 As part of the Arctic Council’s Sustaining Arctic Observing Networks (SAON) Process, the DBO is a model of international science coordination that could provide input when the AOCA convenes experts in the observation of networks or data protocols for specified ecosystem science questions.
3.3. Models for Involving Non-State Parties in Institutional Activity
Although the core members of an AOCA will be the Arctic states, mechanisms must be developed to include a role for other states with an interest in the region, whether Arctic Council observer states or others. For indigenous representation, we recommend a structure in parallel with or similar to that of the Arctic Council permanent participants. Examples from the Antarctic and the North East Atlantic take differing approaches to combining full membership with some form of cooperating membership in a regional seas arrangement.
CCAMLR and the Antarctic
The Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR)Footnote 171 was constructed as a sub-regime or ‘nested regime’ within the Antarctic Treaty System.Footnote 172 In Antarctica, CCAMLR governs all aspects of living resource management in its geographical area of operation, which includes all waters within the boundaries of the ‘Antarctic Convergence’ – the area lying between 60 degrees South and 45 degrees South. CCAMLR’s area of application thus extends beyond the geographical area to which its parent agreement, the Antarctic Treaty,Footnote 173 applies.
CCAMLR was created to address three problems: (i) conservation of krill, the basis of the Antarctic marine food chain; (ii) avoidance of conflict over Antarctic living resource extraction among claimant and non-claimant states; and (iii) retention of authority by Antarctic Treaty signatories over the disposition of those resources.Footnote 174 While the Arctic faces different challenges, how CCAMLR deals with the interests of states that are not party to the Antarctic Treaty is instructive.
CCAMLR is open to accession by any state, including long-distance fishing states that are not party to other parts of the Antarctic Treaty System. Non-party state participation in the decision-making body is limited and predicated on actual engagement in research or the harvesting of living resources in the Treaty’s geographical area. In addition, all parties to CCAMLR are required to accept the Antarctic Treaty and ‘abide by its goals and Distributed Biological Observatory SAON Task Statement, “Improving International Collaboration, Data Sharing and Synthesis”, 17 Sept. 2012, principles’Footnote 175 – thus, at least in principle, binding even the long-distance fishing states into the CCAMLR system, including its ecosystem approach to resource management.Footnote 176
How might this membership model apply in an Arctic Council or AOCA context? Here, the requirements for Arctic Council observers are instructive. Under the Nuuk Observer Rules, observer states must, inter alia, accept and support the objectives of the Arctic Council defined in the Ottawa Declaration, and recognize the sovereignty, sovereign rights and jurisdiction of Arctic states in the Arctic.Footnote 177
If non-Arctic states are interested in contributing to an AOCA, it is critical that they acknowledge the sovereignty, sovereign rights and jurisdiction of the Arctic states in the Arctic Ocean marine areas. The criteria for participation in any decision making under an AOCA could be tied, as under CCAMLR, to research and resource harvesting or development in the regions in question. Those criteria might also hinge on adherence to the mission of the Council, to the purposes of the AOCA, and to the willingness to support decisions of the Council in appropriate international forums.
NEAFC and the Northeast Atlantic
The Northeast Atlantic Fisheries Commission (NEAFC) offers cooperating non-contracting party (CNCP) status, which allows vessels from CNCP states to comply voluntarily with the NEAFC regulatory regime.Footnote 178 Because the AOCA is not intended to generate its own management regulations, the applicability of this model is limited. Yet, even with the AOCA as an institution that would coordinate management measures of its sovereign member states, the notion that non-party states may comply voluntarily with another institution’s measures is useful. For example, although Canada and the US are the only Arctic states not party to HELCOM or OSPAR, there may be a way in which the AOCA could be designed to allow them to voluntarily adopt certain measurement and reporting protocols used in OSPAR’s JAMP or HELCOM’s equivalent protocols.
4. CONCLUSION: THE AOCA AS A FRAMEWORK FOR BETTER USE OF EXISTING AGREEMENTS TO ADDRESS ARCTIC-SPECIFIC CONCERNS
The Arctic Council is the principal intergovernmental forum for discussion of policies on conservation and sustainable development in the Arctic region. As a result of the experiences and maturing relationships enjoyed between its member states and with the permanent participants over the past 20 years, the Council is well poised to address a number of emerging challenges to environmental conservation and sustainable development in the Arctic Ocean. However, in order to step into such a role, the Council will have to adopt an arrangement of one or more instrumentalities through which it can more effectively coordinate national management efforts affecting the Arctic marine environment.
This article suggests that such a step, in the form of an Arctic Ocean Coordinating Agreement (AOCA), is both possible and a further logical evolution of the Arctic Council. The primary purpose of such an agreement would be to improve and regularize the coordination of national conservation and management policies in the Arctic. The AOCA would accomplish this by convening different groupings of representatives from national governments and from existing international entities to bring their institutional expertise to bear on targeted questions relevant to the Arctic Ocean. The Council could take such a step without fundamentally changing its character, or itself becoming a management body.
A number of useful models exist, both substantive and procedural, for possible coordination instrumentalities in the Arctic. These models include selected aspects of intergovernmental and non-governmental science organizations, and individual elements of RSAs, in many of which various members of the Arctic Council already participate. A careful review of these models could assist Arctic Council member states in evaluating the options facing them as external pressures for a more operational Arctic Council inevitably increase in the coming years.
