The Central Arctic Ocean: preventing another tragedy of the commons
[T]he oceans of the world continue to suffer from the survival of the philosophy of the commons. Maritime nations still respond automatically to the shibboleth of the ‘freedom of the seas.’ Professing to believe in the ‘inexhaustible resources of the oceans,’ they bring species after species of fish and whales closer to extinction (Hardin Reference Hardin1968).
Arctic sea ice is melting, slowly but inexorably. As the ice disappears, either temporarily or permanently, mankind will be afforded access to regions and activities that have been inaccessible for our entire recorded history. In anticipation of such increased access, Arctic states are diligently laying ‘claim’ to huge areas of the Arctic seabed, all the way to the North Pole by Russia, or even past the North Pole, in the case of Denmark, in order to vest exclusive sovereign rights in the vast hydrocarbon reserves that are believed to reside there.
Another Arctic resource extractive activity that would be enabled by the retreat of the ice is commercial fishing. No commercial fishery is yet extant in the high seas area of the Arctic Ocean, which is known as the central Arctic Ocean (CAO), mostly because the ice forms a physical barrier that renders large-scale fishing impossible. But with the retreat of the ice, fishing vessels may, in the near future, be afforded access to this remote part of the globe, where they could exploit fish resources that have previously been out of reach.
At present, there is no regulatory regime in the CAO to prevent commercial fish stocks there from being overexploited. Such overexploitation has been distressingly commonplace in commercial fisheries worldwide (FAO 2015). The tragic collapse of the Bering Sea Arctic pollock fishery in the 1980s, in which a previously-undiscovered population of Alaska pollock was fished to the point of commercial extinction before a conservation and management mechanism was put into place, is a particularly relevant illustration of the danger posed by rapacious fishing practices in unregulated waters like the CAO.
This article examines the extent and nature of ice recession in the Arctic, and its probable effect on the accessibility of CAO fisheries to commercial exploitation. It then discusses what is known of Arctic fish stocks, both those already extant, and those that might become established or enhanced as a result of changing environmental conditions. It follows with a summary of the international regime for managing fish stocks that exist either in whole or in part in global maritime commons, and demonstrates that existing fisheries governance mechanisms in the Arctic are lacking. Finally, using the Bering Sea pollock case study as a historical analogue, this article contends that the time is now to build upon the momentum created by recent ten-party talks on Arctic fisheries to create a regional fisheries management organisation with authority to enact binding mechanisms to manage and conserve CAO fish stocks.
The Arctic Ocean, ice coverage, and access
Within the Arctic region, the Arctic Ocean covers roughly 8.6 million sq. km (5.4 million sq. miles) and operates as a single, integrated ecosystem. More than half of the seafloor in the Arctic region consists of continental shelves, due to the Arctic's enclosure by other large land masses. The depths of the Arctic shelves can range from the shallow Siberian Shelf, which is on average 100 m deep, to the deep Alaskan Shelf, which can reach depths of 2000 m (Stabeno and others Reference Stabeno, Bond and Hermann2004). Beyond the continental shelves is the Arctic Basin, the depth of which ranges from 2500 to 4400 m. The Central Arctic Ocean, on which this article will focus, is that portion of the Arctic Ocean beyond the exclusive economic zones (EEZ) of Arctic states. Each coastal State is entitled to claim a 200 nautical mile EEZ from the mainland and any island belonging to that state (UNCLOS 1982: articles 57, 121). Waters beyond the outer edge of the EEZ are known as the high seas (UNCLOS 1982: article 86), and the high seas region of the Arctic Ocean is referred to as the CAO.
The extent of the Arctic Ocean covered by ice varies seasonally; but regardless of the season, the extent of ice coverage has been on a steady downward trend, which is predicted to continue, and even accelerate (Vizcarra Reference Vizcarra2015a). On 25 February 2015, the Arctic sea ice reached its annual maximum extent, roughly 14.54 million km2 (Vizcarra Reference Vizcarra2015b). This is the lowest annual maximum extent ever recorded. As for the seasonal minimal extent, the 2015 minimum, which occurred on 11 September, was 4.41 million km2, the 4th lowest coverage on record. The data reflect an overall decline in Arctic sea ice coverage of approximately 5.25% per decade between 1979 and now. Should these trends continue as forecasted, a seasonally ice free Arctic could be seen as early as mid-century; and even before then, more of the CAO will be accessible for longer periods of time as the extent and duration of ice coverage declines (Thompson Reference Thompson2014).
The declining quantity, or extent, of Arctic sea ice is being mirrored by the decline in ice quality as well. Arctic ice is both thinner and younger than it used to be. The National Snow and Ice Data Center has estimated that as much as 40% of September ice in the early 1980s was more than five years old; by 2011, that proportion had declined to 5% (Emmerson and Lahn Reference Emmerson and Lahn2011). As stated in a Lloyd's of London 2012 report,
[y]ounger and thinner Arctic ice is more prone to melting, and more prone to break-up including by ships. The formation of sea ice will be affected by a relatively more open Arctic Ocean, as waves tend to become stronger and more frequent. In short, the less ice there is in one year, the harder it is for ice extent and volume to recover over the winter months. The demise of Arctic sea ice – to the extent of ice-free Arctic summers – could be more abrupt than the trend lines suggest (Emmerson and Lahn Reference Emmerson and Lahn2011 page 13).
The decline in Arctic ice cover, both quantitatively and qualitatively, has already afforded greater access to the region. Reaching the geographic North Pole by ship, once an impossible feat, is becoming more and more common; since 1977 there have been 52 transits to the North Pole by ice breakers, and in the summer of 2004 there were eight successful transits to the Pole by surface ships (Brigham Reference Brigham2016). Commercial shipping has seen a similar surge; applications for transit permits for the Northern Sea Route (NSR), which is a commercial shipping route along the north coast of the Russian Federation, increased from 4 in 2011 to 372 in 2013 (Burns Reference Burns2013). Arctic marine tourism grew by 500 percent from 1994 to 2009, while the number of Arctic cruise ship passengers doubled from 1.2 million in 2004 to more than 2.4 million in 2007 (Holthus and others Reference Holthus, Clarkin and Lorentzen2013). A U.S. Coast Guard-commissioned study in 2015 estimated that by the year 2025, vessel transits in the U.S. Arctic region could increase as by as much as 500% above current levels (Hurley and Stephenson Reference Hurley and Stephenson2015). To enable or exploit such increased access, Lloyd's of London and Chatham House estimated in 2012 that $100 billion of investment will need to take place during the next decade in the Arctic, mostly in the energy realm (Emmerson and Lahn Reference Emmerson and Lahn2011).
This extra access will apply to fishing vessels as well. This phenomenon has already been observed: fishing ship voyages in the Canadian Arctic expanded from 30 in 2005 to 221 in 2010, ‘making fisheries by far the largest component of vessel activity in the Canadian Arctic’ (Holthus and others Reference Holthus, Clarkin and Lorentzen2013: 12). By mid-century, fishing vessels with moderately strengthened hulls will have substantial access year round (Deggim Reference Deggim2014). These estimates range from 58 to 69% of the region being accessible (Stephenson and others Reference Stephenson, Smith and Brigham2013). Fishing vessels with no icebreaking capability would have little to no Arctic access during the winter months, but could have access to as much as 41% of the Arctic region's waters during the summer season (Stephenson and others Reference Stephenson, Smith and Brigham2013).
Arctic fish stocks: now and in the future
The Arctic is home to one of the Earth's most extreme and diverse marine ecosystems. In the Arctic and sub-Arctic waters there are over 150 different species of fish, nine of which are important fishery species (Stephenson and others Reference Stephenson, Smith and Brigham2013). Most of the species in the Arctic are slow-growing and slow-to-reproduce species that have long life spans. The marginal ice zone, which is the edge of the ice pack where sea ice breaks off into large floating icebergs, is an important feeding area for plankton and fish (Huntington and Weller Reference Huntington and Weller2004). Of the fish stocks that currently exist in and around the Arctic and sub-Arctic region, or have the potential to migrate there as ice melt progresses, many, such as polar and Arctic cod, Greenland halibut, pollock, and salmon, have had their stocks drastically decline and even collapse in neighbouring regions due to unregulated or poorly managed fishing. The distribution and population size of fish species in the CAO is currently not well understood (Planque and Loeng Reference Planque and Loeng2013).
There seems to be a general consensus that warming ocean temperatures in the Arctic are likely to create ‘suitable new habitats in areas previously too cold to support certain fish stocks,’ which in turn may promote migration of fish species into the Arctic, or change the spatial distribution of species already there (US Senate 2008). Mackerel, a species previously unseen in Greenland's waters, now exists there in sufficient numbers that Denmark enacted an exploratory 100,000-ton quota for the fish for 2014 (Struzik Reference Struzik2015). Atlantic mackerel also started to appear off the coast of Norway starting in 2013, a development that scientists view as the beginning of a much larger migration phenomenon that will include additional species moving into Arctic and sub-Arctic waters (Berge and others Reference Berge, Heggeland and Lonne2015).
This northward migration is a harbinger of trends that could develop in the CAO as well. Such movement has already been documented, as the migration of mackerel into the EEZ waters of Greenland and Norway is pushing exploitable species such as Arctic cod and capelin into the CAO (Struzik Reference Struzik2015). A study conducted on sixteen sub-Arctic fish species concluded that six of them had a high potential of migration into the CAO, with others assessed to have a potential for migration if the temperatures in the Arctic continue to rise (Planque and Loeng Reference Planque and Loeng2013). Four of the six high potential species, Arctic cod, beaked redfish, Bering flounder, and snow crab, are species that are currently exploited in their current habitats. As is the case with species already in the CAO, the nature of changes likely to occur as a result of warming temperatures and ‘suitable new habitats’ developing is poorly understood (Oslo Declaration 2015).
The international fishing regime: relevance for Central Arctic Ocean
The United Nations Convention on the Law of the Sea (UNCLOS) provides the basic framework for access to the world's living marine resources. It established the maximum breadth of the territorial sea, within which a coastal state exercises complete sovereignty over, inter alia, living marine resources, as twelve nautical miles from the coast. In the EEZ, coastal states have sovereign rights to explore, exploit, conserve, and manage the resources, both living and non-living, of the zone; to create and enforce laws for such purposes; and, perhaps most importantly, to exclude foreign vessels from harvesting or otherwise exploiting these resources.
In contrast to the EEZ regime, no state has sovereign rights in the resources of the high seas, including, in the Arctic, the CAO. UNCLOS and supporting treaties, most notably the 1995 U.N. Fish Stock Agreement, impose conservation and management requirements on states fishing for stocks that may exist for all or part of their exploitable life-cycle in the high seas. Such stocks include anadromous species (those that breed in fresh water but live their adult life cycles in salt water), and shared fish stocks in the following categories:
-
(a) highly migratory species, as defined in UNCLOS Annex 1 (which, by nature, freely cross between the EEZ and high seas);
-
(b) all other fish stocks, with the exception of anadromous stocks, not listed in Annex I that nevertheless cross between the EEZ and adjacent high seas (‘straddling stocks’); and
-
(c) fish stocks found exclusively in the high seas.
As for anadromous species, UNCLOS allocates to states in the rivers of which anadromous stocks originate the ‘primary interest in and responsibility for’ such stocks. Fishing for anadromous species is only supposed to occur in the EEZ, not on the high seas, and the state of origin is required to establish appropriate regulatory measures to conserve such species. UNCLOS does recognise special circumstances related to anadromous species; specifically, when such species cross between the EEZ of the state of origin and that of a neighbouring state, and when the prohibition on fishing for anadromous species on the high seas would cause another state to suffer ‘economic dislocation.’ In both these circumstance, the state of origin and other affected states are required to cooperate in the conservation and management of such stocks. That cooperation should occur, where appropriate, through the auspices of ‘regional organisations.’
As for shared stocks, UNCLOS recognises the right of vessels of all states to fish in the high seas, but subjects that right to compliance with Articles 117–119 of the convention. Article 117 imposes an obligation on states to adopt measures, either unilaterally or cooperatively with other states, to ensure that their nationals fishing on the high seas will do so in a manner that conserves the living resources of that zone. Article 118 requires states to cooperate with each other in the conservation and management of the living resources of the high seas, including forming subregional or regional fisheries organisations as appropriate. Article 119 prescribes general principles to which states must adhere in determining the allowable catch and other conservation measures to be observed by their vessels harvesting the living resources of the high seas.
The nebulous ‘duty of cooperation’ in Article 118 is reiterated, explained, and expanded upon in the 1995 U.N. Fish Stock Agreement, which was adopted to provide substance to these general UNCLOS obligations in the case of straddling and highly migratory fish stocks. First of all, coastal states and states fishing on the high seas are to give effect to their duty to cooperate under UNCLOS by adopting measures to conserve targeted species, including, when necessary, conservation and management measures that are compatible in both the high seas and in adjacent EEZs. Where there is no Regional Fisheries Management Organization (RFMO) with respect to a particular straddling or highly migratory fish stock, states are to give effect to their duty to cooperate by establishing one and participating in its work. When establishing RFMOs, states are to agree, inter alia, on the stocks to be regulated; on the area of application (convention area); on participatory rights such as allocations of catch or levels of fishing effort; on standards for collection, reporting, verification, and exchange of data on fisheries for the stocks; and on appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement.
Once an RFMO is established covering a particular convention area, certain obligations that reflect the ‘duty to cooperate’ flow to both member and non-member states. Member states are to comply with the conservation and management measures adopted by the RFMO. States which are not members of an RFMO (that is, non-member states), but which have signed and are a party to the Fish Stocks Agreement, must also comply with the conservation and management measures of an RFMO; otherwise, their vessels are not to fish for the particular living resource or in the area to which the measures apply. All states the vessels of which fish in the convention area are required to implement control measures and undertake enforcement actions with respect to their vessels. Control measures include:
maintaining a national record of fishing vessels authorised to fish on the high seas;
the issuance of fishing licenses, permits, and the like, conditioned on compliance with applicable RFMO conservation and management measures;
the adoption of regulations prohibiting fishing in the convention area by vessels which are not duly licensed or authorised to fish;
requiring authorised fishing vessels to record and report vessel position, catch, fishing effort, and other relevant fisheries data;
implementing a national inspection scheme to ensure compliance with applicable control measures; and
ensuring effective monitoring and surveillance of fishing vessels by such means as requiring the carriage of fisheries observers or a vessel monitoring system.
As for enforcement actions, the Fish Stock Agreement makes it clear that the primary enforcement onus with respect to vessels fishing in an RFMO convention area is on the flag state. The Fish Stocks Agreement mandates that flag states immediately investigate any alleged violations of RFMO conservation and management measures by their fishing vessels, and impose sanctions as warranted that are adequate in severity to deter future violations, while at the same time depriving the wrongdoer of any benefits from their illegal activities.
Arctic regulatory bodies and mechanisms
There is currently no RFMO or RFMO-like body comprehensively to manage CAO fisheries. The North-East Atlantic Fisheries Commission (NEAFC) manages the long-term conservation and optimum utilisation of fishery resources in a swath of the Atlantic and Arctic Oceans north of 36°N and between 42°W and 51° E longitude, all the way to the North Pole. Other than that, Arctic states unilaterally and independently exercise their sovereign resource rights within their respective EEZs; and vessels of all states are free to fish in the CAO, subject only to the relatively minimal limitations in UNCLOS and related conventions discussed in the previous section.
The principal collective consultative organ in the Arctic is the Arctic Council (AC). The council, formed by the 1996 Ottawa Declaration on the Establishment of the Arctic Council, serves as a high-level ‘intergovernmental forum promoting cooperation, coordination and interaction among the Arctic States, Arctic Indigenous communities and other Arctic inhabitants on common Arctic issues’ (AC 2016). It is comprised of all eight of the states that border the Arctic region, as well as six permanent observers that represent the indigenous peoples of the region. In addition, the council has twelve non-Arctic permanent observer states (AC 2016). The presence of these permanent observer states attests to the AC's recognition of the possibility of emerging industry in the region (Runnalls Reference Runnalls2014).
In furtherance of its charter, the AC has facilitated the adoption by participating states of several binding legal agreements, such as the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic. None of those agreements relate to Arctic fisheries. The council entity most relevant to fisheries is the Conservation of Arctic Flora and Fauna working group, which, among other products, has conducted an Arctic biodiversity assessment. No binding agreements among participating states have resulted from the efforts of this working group.
Collective efforts, beyond NEAFC, to manage and conserve high seas Arctic fish stocks have failed to gain traction. Many different governmental bodies, from the European Union to the AC, have endorsed the creation of an RFMO in the CAO and the prohibition of unregulated fishing until that occurs (Oslo Declaration 2015). In the U.S., Congress passed a joint resolution in August 2007 that was signed into law by President Bush which called for the negotiation of an RFMO and a halt to all fishing activities in the Arctic until an RFMO was created. In 2012, more than 2,000 scientists issued a letter calling for an international agreement to prevent the start of commercial fishing in the CAO, noting particularly the risk to marine food webs that unregulated commercial fishing would pose (Pew Trusts 2016). To date, none of the measures called for in these aspirational statements have been taken.
A more limited collective initiative involved a series of meetings in 2013 between Norway, Canada, Denmark, the U.S., and Russia (the so-called ‘Arctic five’) that resulted, in February 2014, in an agreement to jointly issue a declaration regarding CAO fishing. Though delayed due to the deterioration of relations between Russia and the western world as a result of the Ukraine crisis, the five states finally signed a ‘Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean’ (Declaration) on 16 July 2015. In the declaration, the signatory states announced their collective intent to implement the following ‘interim measures’ in the CAO:
To authorise their vessels to conduct commercial fishing in this area only pursuant to one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with recognized international standards;
To establish a joint program of scientific research with the aim of improving understanding of the ecosystems of the area and promoting cooperation with relevant scientific bodies, including but not limited to the International Council for the Exploration of the Sea (ICES) and the North Pacific Marine Science Organization (PICES);
To promote compliance with these interim measures and with relevant international law, including by coordinating the signatories’ monitoring, control and surveillance activities in this area; and
To ensure that any non-commercial fishing in this area does not undermine the purpose of the interim measures, is based on scientific advice and is monitored, and that data obtained through any such fishing shared (Kramer Reference Kramer2013).
While certainly a positive development, the declaration is merely that, a non-binding statement of future intent amongst five nations with respect to limited conservation-related measures in the CAO. What the five nations expressly declined to do in the declaration is to ‘establish any additional regional fisheries management organization for this area,’ as they ‘recognize’ that ‘commercial fishing in the high seas portion of the central Arctic Ocean is unlikely to occur in the near future.’ They also correctly acknowledged that these interim measures do not in any way prevent other nations from engaging in commercial fishing activities in the CAO; at best, all the five participating nations can do is ‘continue to work together to encourage other States to take measures in respect of vessels entitled to fly their flags that are consistent with these interim measures’ (Kramer Reference Kramer2013).
A follow-on to the declaration was the meeting on High Seas Fisheries in the Central Arctic Ocean, held in Washington, D.C., between 1–3 December 2015 (the ‘ten-party meeting’). Participating in the meeting, in addition to the five declaration states, were People's Republic of China, the European Union, Iceland, Japan, and the Republic of Korea. There was a general consensus at the meeting that further research needed to be conducted in the region. The participants agreed that while it was unlikely that a sustainable commercial fishery could be maintained in the CAO in the near future, rapidly changing conditions in the region made such a conclusion uncertain. As a result, they endorsed the need for a cautionary approach (Chairman's Statement April 2016).
As a means of ‘operationalising’ such a cautionary approach, the U.S. proposed the adoption of a binding international agreement that would commit parties to authorise their vessels to conduct commercial fishing in the high seas area only pursuant to conservation and management measures issued by a RFMO (Chairman's Statement April 2016). As no RFMO exists, this would equate to a de facto moratorium on commercial fishing in the CAO unless or until one was created, at least with respect to signatory states. This proposal was not adopted at the December meeting, nor at follow-on meetings that took place in April and July 2016.
The bottom line is that, to date, other than the limited waters covered by NEAFC, there are no collective regulatory mechanisms in the CAO. In the absence of collective regulatory action, states have resorted to unilateral conservation measures in the Arctic. For example, in 2009 the United States declared a moratorium on commercial fishing in United States territorial waters in both the Beaufort and Chukchi seas (NOAA Fisheries 2016). Norway in particular has also taken aggressive unilateral measures; for example, its Act relating to Management of Living Marine Resources of 2008 made it illegal for a Norwegian-flagged vessel to fish in unregulated international waters. The act also created fines and penalties for Norwegian citizens that commit crimes against marine resources, even if the crime was committed in the jurisdiction of a different nation (Norway Government 2009). While laudable, these unilateral measures are restricted to the fishing vessels or to the waters of the respective implementing state; they have no broader effect on vessels of other states, and limited applicability, if at all, in waters beyond those of the implementing states.
The dangers of inaction
The spectacular collapse of the Bering Sea Alaska pollock fishery illustrates, in a geographically neighbouring region, the danger of failing to put in place timely governance mechanisms for CAO fish stocks (Bailey Reference Bailey2011). Both the U.S. and the Soviet Union had declared 200 nautical mile fisheries zones in the Aleutian Basin by the late 1970s, when a large population of Alaskan pollock was discovered there. Estimates of the biomass of pollock in the Aleutian Basin at that time range up to 13 million tons in 1983, which equates to approximately 20 billion fish (Bailey Reference Bailey2011). This led to a ‘gold rush’ in which fishing vessels from Japan, China, the USSR, Poland, South Korea, and others converged on the region in what became an unrestricted harvesting frenzy. Most of this frenzy occurred in the central Bering Sea, as U.S. fishing vessels were granted exclusive access to the allowable quotas within the U.S. 200 NM fisheries zone, and the equivalent occurred in Soviet waters.
A ‘tragedy of the commons’ in such circumstances was inevitable. The harvest began in earnest in 1984, and reached its highest reported peak of 1.7 million tons in 1987 (Bailey Reference Bailey2011). By 1991, the party was over; the reported catch that year was only 293,000 tons, and by 1992, it was a virtually negligible 10,000 tons. Estimated Alaska pollock biomass in the basin declined from nearly 13 million tons in 1983 to 309,000 tons in 2007 (Bailey Reference Bailey2011).
International efforts to sensibly exploit and conserve this fisheries resource were, not surprisingly, too little, and too late. A moratorium on fishing was put into place in 1993, and in 1994 the Convention on the Conservation and Management of the Pollock Resources of the Central Bering Sea (Bering Sea Convention) was signed and implemented. By then, of course, the pollock had been overfished to the point of ‘commercial extinction’ (Bailey Reference Bailey2011). And despite the fact that the Bering Sea fishing moratorium has remained in place since 1993, the stock has not recovered. A 2012 U.S. pollock research cruise in the area indicated an estimated pollock spawning stock biomass of 111,833 tons, the lowest biomass level ever recorded. This figure is nowhere near the biomass target stated in the Bering Sea Convention, 1.67 million tons, for triggering renewal of a commercial fishery.
Conclusions and recommendations
Is further study and a moratorium on fishing in the CAO by the five nations whose EEZs border it sufficient to prevent another tragedy of the commons of the nature of the one that befell the Bering Sea Arctic pollock fishery in the 1980s? Or should nations act collectively now to establish a governance body to conserve and manage high seas Arctic species, before long-term, or even permanent, harm is done to that potential fishery? In short, can the world afford to wait? For the following reasons, the authors contend that the answer to the latter question is no; that the time for action in establishing a conservation and management body is now.
The Arctic environment is, in general, highly sensitive to damage. Relatively simple ecosystem structures and short growing seasons translate to a lack of resilience to shock or trauma, such as a catastrophic event like an oil spill, or the unmanaged exploitation of poorly understood living marine resources. ‘Worst-case scenarios may be worse in the Arctic because the ability to manage evolving situations is limited by environmental conditions and the lack of appropriate infrastructure’ (Emmerson and Lahn Reference Emmerson and Lahn2011). Damage to the Arctic environment, if it occurs, is likely to have long-term impacts, and recovery may be difficult, if not impossible. For these reasons, no less an authority on the subject of risk than Lloyd's of London warns that the nature of the Arctic merits a ‘cautious and highly risk-aware approach to Arctic development’ (Emmerson and Lahn Reference Emmerson and Lahn2011).
Despite this admonition, events are moving forward in the Arctic in an incautious, risk-courting manner. As previously discussed, Arctic marine tourism has exploded, with tour passengers in the millions visiting the region. History teaches that sooner or later, with that many vessels and passengers plying Arctic waters, a disaster is inevitable. Yet Arctic nations like the U.S. are ‘not prepared or postured to respond to a mass rescue event in the Arctic’ (Allen and others Reference Allen, Spain and Van der Weide2013). Only 11% of the Arctic Ocean is surveyed to modern nautical charting standards (Serumgard and Krause Reference Serumgard and Krause2013). Environmental hazards such as hurricane-force winds, subzero temperatures, high seas, shifting sea ice, and long periods of fog and darkness are normal and could significantly hamper, if not shut down, a response (Smith and Heiman Reference Smith and Heiman2013). Little exists in the way of food, fuel, repair, and maintenance facilities or staging for assets or personnel north of the Arctic Circle (Serumgard and Krause Reference Serumgard and Krause2013). Although bitterly cold waters, even during summer, necessitate a near-instantaneous response, distance and lack of response assets would almost certainly translate into response delays, not of hours, but of days, even in the most favorable meteorological and environmental conditions. For example, the Canadian Coast Guard took two days to reach the grounded Arctic adventure ship Clipper Alexander in 2010; and though this incident did not involve a foundering vessel and no lives were lost, it is illustrative of the risks that are being ignored, or assumed (Emmerson and Lahn Reference Emmerson and Lahn2011).
Oil exploration in the Arctic is moving forward in a similarly incautious, risk-courting manner. In 2015, Royal Dutch Shell Oil capped approximately $7 billion spent on Arctic offshore development in the Chukchi and Beaufort Seas, off Alaska's north coast, with exploratory drilling in the Burger J well, 150 NM off the coast (BBC 2015). In doing so, Shell joined the offshore Arctic exploration club occupied by Gazprom Neft, the oil arm of Russian energy giant Gazprom Company, which has a field in operation in the Russian Arctic. The drilling by Shell, though temporarily abandoned due to ‘disappointing’ results, occurred despite an appalling inability to combat an oil spill were one to occur. Barrow, Alaska, is the U.S. Coast Guard's ‘preferred location’ for responding to a spill due to its centralised location along the North Slope (Shaw and Godfrey Reference Shaw and Godfrey2013). It has no roads, and is only accessible by air for part of the year. There is no permanent Coast Guard presence there; the nearest station, Kodiak, Alaska, is more than 800 nautical miles away. This translates, if weather permits, into a four-hour flight by a C-130, a ten-hour flight via helicopter, or a three-day cutter voyage to reach there from the Bering Sea. Basic Coast Guard telecommunication services such as VHF and HF radio, which are found almost everywhere in the rest of the US, are nonexistent in Barrow (Shaw and Godfrey Reference Shaw and Godfrey2013). Due to the extreme northern latitude, there is limited sunlight for two-thirds of the year, making spill response difficult at best. To compound these difficulties, fluids become more viscous, hydraulic hoses and metals become brittle and break more easily, and freezing spray quickly covers everything (Hnatow and Wagner Reference Hnatow and Wagner2013).
In short, ‘[t]he Arctic is . . . one of the most difficult places on Earth to mount a rescue operation and spill response;’ yet Arctic maritime tourism is booming, and oil companies have been given the green light to move forward with exploration and drilling (Smith and Heiman Reference Smith and Heiman2013). There is at least an excuse, albeit a poor one, for risk-courting behaviour in these realms; infrastructure improvements are extraordinarily costly and difficult, and powerful political and economic forces are militating for development of the tourism and oil and gas industries. No such excuses exist with regard to a regulatory regime to conserve and manage high seas Arctic fish resources. There is little political pressure in the five Arctic states possessing the EEZs enclosing the CAO to press forward with commercial fishing there; in fact, political sentiment in those nations, as demonstrated by the 2015 declaration, favors a moratorium on such fishing, at least in the near term. This sentiment was echoed by all ten participants at the December 2015 meeting, who convened ‘to discuss their common interest in preventing unregulated commercial fishing in the high seas area of the central Arctic Ocean’ (Chairman's Statement 2015).
Furthermore, a fisheries regulatory body does not need to be either costly or cumbersome; something similar to the system set up by the Bering Sea Convention (no standing commission created, a Scientific and Technical (S and T) committee established, and an annual meeting of the state parties to, inter alia, establish an annual allowable harvest level (if any) in the convention area, adopt appropriate conservation and management measures, and establish a plan of work for the S and T committee) could serve perfectly adequately, at least for the foreseeable future, in the CAO. The only real difference between the Bering Sea model and the CAO is that with the former, the particular fish species that was the subject of the convention was known in advance, whereas with the CAO, that information is unknown. This does not affect the basic point, however, that creating a regulatory body structurally like the one created in the Bering Sea to manage high seas Arctic fisheries is a feasible, relatively inexpensive, and relatively easy means by which States could ‘operationalize’ the recognition by participants at the December meeting of the ‘need for a precautionary approach’ to commercial fishing.
Not only is creation of a regulatory body feasible and relatively easy to accomplish, it is necessary, now. Critics of this position could plausibly argue that there is a lack of urgency due to the continued relative inaccessibility of the high seas Arctic region; and that furthermore, the fact that we know very little about what fish stocks may be there in commercially exploitable quantities gives interested nations some breathing space before they have to act. The problems with this line of reasoning are several-fold. The first is that we do not know what we do not know. As recognised at the December meeting, the unparalleled ecosystem-wide changes occurring in the Arctic create great uncertainty as to what commercial fisheries might exist there now, or what might be accessible in the very near future (Chairman's Statement 2015). While further scientific study is absolutely necessary to answer these questions, there is no collective mechanism in place to prevent commercial fishing entities from seeking, finding, and seriously reducing stocks while these scientific efforts are occurring.
And history teaches that fishing enterprises, motivated by profit, will find and exploit commercially harvestable stocks before scientists and regulators. As one author puts it, ‘[i]n the entire history of fishing’ it has
probably never occurred . . . that scientists find fish first, make recommendations,and then model the methods of a would-be fishing fleet on those recommendations. In real life, it is fishermen, knowledgeable hunters who know their prey most fully, who find fish first. And when fishermen find a new stock of fish that has never been measured, they fish it damn hard before regulations can be put in place (Greenburg Reference Greenburg2010).
This was certainly the case in the Bering Sea, where ‘Japanese scientists reported finding large concentrations of pollock in the Aleutian Basin in the 1970s and spawning pollock in 1983. By then, the scientists were a step behind, as a major commercial fishery had already started’ (Bailey Reference Bailey2011). This cannot be allowed to happen in the CAO; management of the commercial fishery must be proactive and anticipatory, not reactive and too late to preserve or rescue fragile Arctic ecosystems.
The ten-party talks offer grounds for both optimism and concern. On the positive side, at the most recent follow-on meeting in Iqaluit from 6–8 July 2016, all ten delegations ‘reaffirmed their commitment to take interim measures to prevent unregulated commercial high seas fishing in the central Arctic Ocean as well as a commitment to promote the conservation and sustainable use of living marine resources and to safeguard a healthy marine ecosystem in the central Arctic Ocean’. Further,
‘[d]elegations made good progress in resolving differences of view on a number of the main issues under discussion. There was a general belief that these discussions have the possibility of concluding successfully in the near future (REF July 2016).’
On the other hand, the chairman reported that ‘opinions differed’ as to the best way forward, with ‘all options’ remain[ing] under consideration. Those ‘options’ consist of three possible approaches, which could be combined in a stepwise fashion:
Adjusting the Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean signed by five of the participating States with input from other participants such that a new, broader non-binding declaration could be adopted;
Negotiating a legally binding international agreement; and
Negotiating in the foreseeable future an agreement or agreements to establish one or more additional regional fisheries management organisations or arrangements for the area.
While all of these are better than nothing, only the third option truly affords CAO fish stocks the level of protection demanded by the circumstances. The first option, ‘adding’ the five new nations (beyond the ‘Arctic five’) to the declaration, merely serves to expand from five to ten the number of nations who have signed on to a non-binding statement of future intent with respect to limited conservation-related measures in the CAO. Even if such a declaration were to be ‘broader’ than the original, a possibility contemplated in the chairman's statement, that still does not change the underlying nature of the declaration as a mere statement of future intent.
The second option, entering into a legally binding international agreement, presumably along the lines of the U.S.’s proposal at the December 2015 ten-party meeting, would be a concrete step in the right direction, though it does not go far enough. The problem with this approach is that whatever the contours of the agreement the ten parties reach (if any) might be, they will only bind the ten parties to the agreement. For example, if the parties enter into a legally binding agreement amongst themselves to authorize their vessels to conduct commercial fishing in the high seas area only pursuant to conservation and management measures issued by a RFMO, then, as previously discussed, that would have the de facto effect of creating a moratorium on CAO commercial fishing by fishing vessels of those ten nations, and only those ten nations. As only four of the top ten ‘principal producers’ of capture fisheries, according to 2012 FAO data, are represented at these talks, there are many nations with significant harvesting capacity that would be wholly unaffected and unconstrained by any limitations the ten parties agree to impose amongst themselves.
The only way for these nations to put in place conservation measures that would have effect beyond the ten participants is to create an RFMO. As we have seen, the decisions of an RFMO, up to and including a moratorium on all commercial fishing in the CAO, would be binding not only on the nations who ‘contract’ to its formation, but also on all states that have ratified the Fish Stocks Agreement. Only by creating an RFMO would the ten states be able to close the loophole that would exist in any binding international agreement (short of creating an RFMO) that might emerge from the ten-party talks.
As this article has demonstrated, the best means of truly effecting a ‘cautionary approach’ to commercial fishing in the CAO is to create an RFMO. The U.S. proposal, while a significant step in the right direction, fails to reach this point, instead only proposing that the ten participating entities agree amongst themselves to a de facto moratorium. The problem with this limited approach is that it would have no binding effect beyond the ten participants. Only by creating an RFMO could the participants put in place a mechanism for regulating the CAO fishing activities of all states that have ratified the Fish Stock Agreement. The RFMO, once created, should immediately put into place a moratorium on all commercial fishing activity in the CAO that would remain in place until research, coordinated under the auspices of the regulatory body, better and more comprehensively determines the nature, range, physical characteristics, and population size of potentially commercially exploitable species. Then, and only then, might the regulatory body permit fishing, if warranted, in a controlled, sustainable manner.
Given the fragility of the CAO resources, their susceptibility to damage, and long recovery periods (if ever) once damage is done, establishing a relatively minimalist RFMO along the lines of that established by the Bering Sea Convention, and implementing an immediate binding fishing moratorium unless and until scientific study warrants otherwise, seems like a small investment to ensure that a tragedy of the commons does not befall the CAO fish stocks.
