Transcript on Arctic Ocean Governance

The Arctic Council and the Future of
Arctic Ocean Governance:
Edging Forward in a Sea of Challenges
Professor David L. VanderZwaag
Canada Research Chair in Ocean Law and Governance
Marine & Environmental Law Institute
Dalhousie University
Shanghai Jiao Tong University
November 2011
Introduction
• The Arctic Ocean has become a “hot topic” for numerous reasons:
+ Media has portrayed the five Arctic coastal States as making “land grabs” for
extended continental shelves
The Mir-I was used to help
plant a Russian flag on the
Arctic seabed
http://news.bbc.co.uk/2/hi/europe/7005483.stm
1) North Pole: Russia leaves its flag on the seabed, 4,000m (13,100ft)
beneath the surface
2) Lomonosov Ridge: Russia argues that this underwater feature is an
extension of its continental territory
3) 200-nautical mile (370km) line: Shows how far countries' agreed
4) Russian-claimed territory: The bid to claim a vast area is being closely
watched by other countries
+ Thinning and decreasing extent of sea ice has a potential cascade of
consequences
http://beyondzeroemissions.org/files/1016nasa_sea_ice.jpg
– Regional consequences, such as,
* Threatened polar bear populations
http://www.smh.com/au/ffximage/2006/06/13/polarbears_wideweb__470x314,0.jpg
* Loss of traditional ways of life and indigenous culture
* Coastal erosion and damage to infrastructure
* Greater access to marine and coastal resources
– Extra-regional consequences, such as
* Sea level rises
* Adverse climatic and marine ecosystem impacts caused by disruption of
the global ocean “heat pump”
http://forces.si.edu/a
rctic/02_02_04.html
The Ocean Conveyor Belt
Ocean circulation is driven by density differences. (Density is controlled by ocean temperature and saltiness). Cold, dense water in
the Arctic merges with salty water from the Gulf Stream to create the sinking North Atlantic Deep Water (NADW) in the NorwegianGreenland Sea. The NADW helps to drive global ocean circulation.
Illustration The M. Factory © The Smithsonian Institution
* New Transpolar Shipping Routes
Borgerson, 2008
+ Prospects of increased offshore oil and gas exploration/exploitation and
shipping have escalated public and political attention to jurisdictional
disputes, e.g.
+ Ownership of Hans Island
http://images.usatoday.com/
money/_photos/2007/03/24/a
rcticX-large.jpg
http://www.cbc.ca/gfx/images/news/
maps/2006/07/26/map-nunavuthans_island.jpg
– The Beaufort Sea boundary
<http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/images/bp322e-5.jpg>
– The legal status of the Northwest Passage
* U.S. Coast Guard vessel Polar Sea traverses the Northwest Passage in
the summer of 1985
<http://www.planetwater.ca/research/climpact/impacts/shipping.html>
*
Canada draws straight baselines around Arctic Archipelago, effective 1
January 1986
• The adequacy of existing ocean governance arrangements to meet the looming
management challenges has increasingly become the topic of academic debate:
+ Only one, narrow “hard law” regional agreement historically applicable to the
Arctic Ocean
– 1973 Polar Bear Conservation Agreement
– Five states having polar bears (Canada, Denmark/Greenland, Norway,
Russian Federation, USA) agree
* To protect polar bear dens and ecosystems
* To prohibit takings with few exceptions
> Subsistence hunting
> “Self-defence” to save
human life
> Scientific purposes
+ Some authors have argued for negotiation of an over-arching treaty
framework for the Arctic, for example:
– Framework convention and subsequent protocol approach followed, for
example, for the Mediterranean Sea
* The Barcelona Convention, first adopted in 1976 and amended in
1995, sets out the overall legal framework for cooperation,
including objectives, principles and institutional structures
* Seven protocols set rules and standards in the areas of
>
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Contingency planning and emergency response
Ocean dumping
Land-based marine pollution/activities
Special area protection
Seabed activities
Hazardous waste movements
Integrated coastal management
– A unique “tailored for the Arctic” agreement might also be considered.
* A short and simple agreement might be negotiated setting out objectives /
principles of cooperation
* Formalizing the existing Arctic Council structures
* Strengthening financial commitments
* Providing a framework for further protocols
+ Various reasons have been advanced for further developing the “hard law”
regime for the Arctic, e.g.
+ Encouraging greater political and bureaucratic commitments
+ Establishing firmer institutional and financial foundations
+ Transcending the vagaries of changing governmental viewpoints and shifting
personnel
+ Giving “legal teeth” to environmental principles and standards
+ Raising the public profile of regional challenges and cooperation needs
+ Providing for dispute resolution
+ However, various reasons have been put forward against or at least
questioning a treaty-based approach
– Difficulty in getting consensus on the need for an agreement
– Lengthy and costly preparatory and negotiation processes involved
– Risk of legalizing lowest common denominator standards
– Stifling political and bureaucratic flexibilities
– Contributing another layer of complexity to the already fragmented
array of multilateral environmental agreements
– Lack of implementation of existing agreements relevant to the Arctic
– Lack of assurance that all Arctic States will readily accept newly
negotiated obligations
• This presentation explores how the Arctic is faring in ocean governance
through a two-part analysis:
1. Edging Forward
A review of how the existing key regional institution, the Arctic Council, has
been progressing on the research and governance fronts through its
• Six working groups
• Ministerial meetings
2. Sea of Challenges
A summary of four main challenges confronting the Arctic Council
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Fully implementing existing commitments and recommendations
Completing the Arctic Council’s restructuring
Addressing future governance of ocean areas beyond national jurisdiction
Strengthening the “Arctic voice” in international fora
1. Edging Forward
• To understand how the Arctic Council has been advancing regional
cooperation, some basic background information is necessary:
+ Arctic Council founded pursuant to a non-legally binding Declaration
adopted in Ottawa on 19 September 1996
+ Eight Arctic States included as members
- Canada
- Norway
- Denmark/Greenland - Russian Federation
- Finland
- Sweden
- Iceland
- United States of America
+ Indigenous organizations (now six in number) elevated to status of Permanent
Participants
– Aleut International Association
– Arctic Athabaskan Council
– Gwich’in Council International
– Innuit Circumpolar Council
– Russian Association of Indigenous
Peoples of the North (RAIPON)
– Saami Council
+ Six Working Groups established
– Arctic Monitoring and Assessment Program (AMAP)
– Emergency Prevention, Preparedness and Response (EPPR)
– Conservation of Arctic Flora and Fauna (CAFF)
– Protection of the Arctic Marine Environment (PAME)
– Sustainable Development Working Group (SDWG) (1998)
– Arctic Contaminants Action Program (ACAP) (2006)
+ Rotating Secretariat among Arctic states
(every two years)
+ Ministerial meetings on a biennial basis
+ Observer status open to
– Non-Arctic States (current permanent observer states are France,
Germany, Netherlands, Poland, Spain and the United Kingdom)
– Inter-governmental and inter-parliamentary organizations
– Non-governmental organizations
+ Overall objective is to promote cooperation on common Arctic issues, in
particular issues of sustainable development and environmental protection
+ Substantial limitations in governance
– Only a discussional and information sharing forum
– Cannot address military and security issues
– No powers to directly develop regional environmental standards, e.g., for
oil and gas exploration / development
• The Arctic Council has largely sledded “softly” forward through non-regulatory
initiatives (assessments, projects, plans and programs) of its six working groups:
+ Arctic Monitoring and Assessment Programme (AMAP) Working Group
– Has published numerous pollution assessments with usual approach being to
first publish a non-technical summary report for policymakers followed by
detailed and fully referenced scientific report, e.g.
* Arctic Pollution 2011 (Mercury Assessment)
* Snow, Water, Ice and Permafrost in the Arctic (SWIPA) Assessment (2011)
* Arctic Pollution 2009
* AMAP 2009 Update on Selected Climate Issues of
Concern
* Arctic Oil land Gas 2007
* Arctic Pollution 2006: Acidification and Arctic Haze
* Arctic Climate Impact Assessment (ACIA) (2004)
* Arctic Pollution 2002
* Arctic Pollution Issues: A State of the Arctic Environment Report (1997)
– While a detailed description of the various assessment is beyond the scope of
this presentation, a sense of the seriousness of Arctic pollution and
environmental threats may be gleaned from the three latest assessment
reports:
* 2011 Mercury Assessment
> Provides updated information on the levels and
sources of mercury in the Arctic
† About 100 tonnes of mercury are estimated
to enter the Arctic Ocean from the air each
year
† Nearly another 100 tonnes thought to inflow
from the Atlantic and Pacific Oceans, rivers
and coastal erosion
† Asian states, with China and India being the
highest emitters, are estimated to be responsible
for 65% of global mercury emissions
> The Mercury Assessment issues a warning call on the possible
effects of climate change on the mercury cycle with increased
releases arising from permafrost thaws, ice melts and rising river
discharges
> The report notes that some Arctic biota, especially marine top
predators like polar bears, exhibit high levels of mercury in their
bodies which exceed thresholds for biological effects
> The assessment offers various policy recommendations, e.g.
† The Arctic Council should continue supporting
intergovernmental negotiations to develop a legally-binding
global instrument on mercury
† Health authorities in Arctic States should develop culturally
appropriate communication strategies concerning contaminants
and human health
* Snow, Water, Ice and Permafrost in the Arctic (SWIPA) Assessment (2011)
> Key findings include:
† Surface air temperatures in the Arctic since 2005 have been higher
than any five-year period since measurements began around 1880
† Multi-year sea ice, mountain glaciers, ice
caps and the Greenland Ice Sheet have all
been declining faster since 2000 than they
did in the previous decade
† The Arctic Ocean is projected to become nearly
ice-free in summer, likely within the next 30 to
40 years
† Arctic infrastructure faces increased risks of
damage due to changes in the cryosphere,
particularly the loss of permafrost and land-fast
ice
† The net loss of mass from the Greenland Ice Sheet
has increased from about 50 gigatonnes (Gt)
(50,000,000,000 tonnes) per year in the period
1995-2000 to nearly 200 Gt per year in the period
2004-2008
> Key recommendations include:
† Arctic States should increase their leadership in
international negotiations to reduce greenhouse gas
emissions as a matter of urgency
† Arctic States and governments at all levels in the Arctic
should develop and implement Arctic adaptation strategies
* Arctic Pollution 2009
Provides updated information on three topics:
> Persistent Organic Pollutants (POPs)
† Highlights the need to consider further international and
national regulatory actions for groups of chemicals
accumulating in Arctic food webs including brominated
flame retardants and fluorinated compounds used as stain
repellants and as non-stick surfaces on cookware.
† Notes 65 high-production volume (>100,000 tonnes per
year) industrial organic chemicals and pesticides may have
the ability to biomagnify into Arctic indigenous peoples’
traditional foods
† About 4300 organic chemicals, most with low or unknown
production, are thought to have Arctic accumulation
properties
> Contaminants and Human Health
† Emphasizes difficulty in ascertaining human health effects due
to differing lifestyles and potential synergies among multiple
contaminants
† Highlights that epidimological studies, looking at Arctic
residents directly, show subtle immunological, cardiovascular
and reproductive effects due to contaminants in some
populations
† Notes that levels of most POPs pesticides in some Inuit
populations were eight to ten times higher than in southern
residents
> Radioactivity in the Arctic
† Summarizes the major impacts and risks of radioactivity from
existing sources such as nuclear fuel reprocessing plants,
nuclear power plants in the vicinity of the Arctic, nuclear
submarine decommissioning in the Russian Federation and
small radioisotopic thermoelectric generators (RTGs)
† Highlights the numerous international assistance efforts to assist
the Russian Federation to better manage and clean-up its
nuclear wastes and sites
† Warns of future radionuclide sources, specifically
~ Russian plans for floating nuclear power plants
~ Technologically enhanced naturally-occurring radioactive
materials (TENORM) from various industrial activities such as
oil and gas extractions, mineral mining, phosphate production
and the use of geothermal energy
–AMAP helped document the scientific basis for negotiation and
implementation of the Stockholm Convention on Persistent Organic Pollutants
(2001)
*Aimed at elimination or restriction of an initial 12 POPs
*Nine additional POPs added for elimination or restriction in May 2009
http://www.grida.no/prog/polar/tromsoe2002/pops1.jpg
– AMAP instrumental in helping to establish the scientific foundation for the
Governing Council / Global Ministerial Forum Decision 25/5 (2009) asking
UNEP’s Executive Director to convene an international negotiating
committee to prepare a global legally-binding instrument on mercury
* Committee commenced its work in 2010
* Goal of completing negotiations prior to the Governing Council / Global
Ministerial Forum’s 27th regular session in 2013
+ Arctic Contaminants Action Program (ACAP) Working Group
– Has largely focused on undertaking hazardous waste inventories and
pollution reduction and control projects in the Russian Federation through
seven Project Steering Groups in the areas of:
* Integrated hazardous waste management
* Environmentally-sound management of obsolete and prohibited
pesticides
* Reduction/elimination of dioxin and furon releases
* Reduction of mercury releases
* Phase out of PCBs
* Reduction/elimination of sources and releases of brominated flame
retardants
* Local sources of contamination in indigenous communities
– Examples of progress given in ACAP’s report to Senior Arctic Officials on
main achievements for 2009-2011:
* Improved storage of 6500 t of obsolete pesticides in nine Northern
Russian priority districts impacting the Arctic
* Completion in 2010 of a project in several Russian chlor-alkali facilities
to reduce mercury releases in wastewater and improve mercury
monitoring systems
– A further Project Steering Group on Short-listed Climate Forcers was
established by ACAP in 2010 with initial activities expected to focus on
demonstration projects for reducing Arctic black carbon emissions
– ACAP has been criticized for its overall Russian focus and failure to devote
attention to addressing other sources of contaminants including those
originating from Asia
+ Conservation of Arctic Flora and Fauna (CAFF)
CAFF’s activities can be viewed both positively and critically:
– Key positive aspects
* Development of conservation strategies and action plans for species
of concern
> Murres/guillemots (1996)
> Eider ducks (1998)
> Ivory gulls (2008)
* Tracking the impacts of climate change on Arctic biodiversity
> A Circumpolar Biodiversity Monitoring Programme (CBMP)
has been initiated
† Five Year Implementation Plan endorsed by Senior Arctic
Officials in April 2008
† Monitoring will be facilitated through Expert Monitoring
Groups (marine, coastal, freshwater, terrestrial)
> The Arctic Biodiversity Assessment (ABA) is aimed at reporting in
two phases on scientific and traditional ecological knowledge
gained regarding climate change and other stressor impacts on
boidiversity
† Interim, summary report in 2010 entitled, “Arctic Biodiversity
Trends in 2010: Selected indicators of change”
~ The report reviews 22 indicators of change including trends in
various species, such as polar bears, wild reindeer and caribou,
seabirds and reindeer and changes in ecosystems, such as seaice and peatlands
~ Examples of trends include
Of 19 recognized polar bear subpopulations, only one is
currently increasing, three are stable, eight are declining
and seven have insufficient data to detect a trend
High Arctic vertebrate species experienced an average
decline of 26% between 1970 and 2004 while low Arctic
species, largely dominated by marine species, showed an
increasing trend of about 46%
Protected areas in the Arctic have grown from about 5.6%
of the Arctic in 1980 to about 11% in 2010 with 1127
protected areas covering some 3.5 million km2, but marine
areas remain poorly represented
† Full scientific Arctic Biodiversity Assessment Report to
be published in 2013
– Key critical points
* CAFF has foundered in trying to establish a Circumpolar Network
of Protected Areas (including marine)
> In March 1996, Ministers of the eight
Arctic countries endorsed CAFF’s
Circumpolar Protected Areas Network
(CPAN) – Strategy and Action Plan
> However, no Network has been established
> The CPAN initiative is described as “dormant” partly due to
lack of country leadership
* Has moved very slowly in developing action plans for species of
conservation concern (just three action plans developed to date with
a focus on seabirds)
+ Emergency Prevention, Preparedness and Response (EPPR) Working Group
– Has also had a publication and project emphasis
* Examples of publications
> Behaviour of Oil and Other Hazardous and Noxious Substances
Spilled in Arctic Waters (2011)
> Guidelines and Strategies for Oil Spill Waste Management in Arctic
Regions (2009)
> Arctic Guide (update yearly) which lists national contacts for
responding to emergencies in the Arctic, such as major oil spills, and
summarizes multilateral and bilateral agreements pertaining to
emergency preparedness and response
> Circumpolar Map of Resources at Risk from Oil Spills in the Arctic
(2002) (actually maps)
http://eppr.akvaplan.com/resources/10_s.htm
http://eppr.akvaplan.com/resources/5_s.htm
* Examples of projects
> Arctic Rescue (initially focusing on improving emergency response
capabilities in the Russian Federation)
> Cooperation on Spill Response in the Arctic: Gap Analysis
(Correspondence group is reviewing possible next steps in how to move
forward in strengthening capabilities relating to emergency
preparedness and response)
– At May 2011 Arctic Council Ministerial meeting, the EPPR Working Group was
given a further task of developing recommendations and/or best practices in the
prevention of marine oil pollution and to submit preliminary or final results at
the next Ministerial meeting in 2013
– EPPR is not an emergency response
agency and cannot guarantee adequate
response capabilities
+ PAME Working Group
Might be described as the most active and successful
of the Council’s Working Groups with four efforts
standing out:
– Adoption of a Regional Programme of Action for Protecting the Arctic Marine
Environment from Land-based Activities (Revised in 2009)
* Establishes priorities for regional action
http://www.pame.is/images/stories/Deliverables_to_SAOsMinisters/PAME_RPA_layout_031109-_leirtt_nv_09.pdf
* Urges Arctic States to ratify the key international pollution conventions
(Stockholm Convention on POPs, UNECE Protocols on POPs and Heavy
Metals)
* Requesting Arctic States to consider the need to set dates for phasing out
and providing substitutes for POPs not covered by international agreements
* Provides list of 100 pollution “hot spots” in the Russian Federation
* Key weaknesses include
> Lack of suggested concrete actions (e.g. in relation to sewage treatment
for coastal communities)
> Lack of firm national reporting requirements
> Lack of firm financing commitments
– Development of an Arctic Marine Strategic Plan (AMSP) (2004)
* AMSP might be characterized as a “living document”, that is,
opening the door to future strategic actions such as
> AMSP urges actions to support application of an ecosystem
approach (s. 7.4)
† PAME has adopted a map of 17 Arctic LMEs which could be a
vehicle for catalyzing future ecological assessments and
development of bilateral and sub-regional agreements and
management arrangements
† PAME has established an EA Expert Group to assist with putting
the ecosystem approach into practice in ocean assessments and
management
~ Expert Group held an EA Workshop in Tromsø, Norway in January
2011 which discussed possible revisions to the LME map and
collected information on the numerous assessments already carried
out in the LMEs
~ Expert Group expected to plan the further development of
ecosystem status reports for the various LMEs and to search for
ways to better integrate existing national and international
monitoring and assessment programs
> AMSP also encourages the periodic review of the status and
adequacy of international/regional agreements and standards
applicable to the Arctic marine environment (s. 7.3.4.)
† PAME has initiated an Arctic Ocean Review (AOR) project
† Two phases
~ Phase I – Providing a descriptive over view of global and
regional environmentalprotection agreements and measures
(2009-2011) with a Phase I report published in May 2011
~ Phase II – Suggesting options for strengthening global and
regional agreements and measures for the management of
the Arctic marine environment with a final report to Arctic
Council Ministers in 2013 (2011-2013)
* AMSP also called for a comprehensive Arctic Marine Shipping
Assessment (s. 7.1.5) and for possible revision of the Arctic Oil and
Gas Guidelines (s. 7.2.3.) which subsequently have occurred
– Completion of the 2009 Arctic Marine Shipping Assessment (AMSA)
* Canada (with USA and Finland) led the shipping review process
looking at present and future projected levels of shipping in the Arctic
* The AMSA report, adopted in April 2009,
provided a detailed critique of the adequacy
of applicable IMO Conventions and
guidelines
* The report made 17 recommendations,
organized under three themes, for
strengthening shipping governance
> Enhancing Arctic Marine Safety
> Protecting Arctic People and the
Environment
> Building Arctic Marine Infrastructure
– Publication of Arctic Offshore Oil and Gas Guidelines (revised 2009)
* Guidelines set common principles, such as precautionary approach, polluter
pays and sustainable development
* Guidelines encourage the application of environmental impact assessment
procedures that in particular address potential affects on indigenous ways of
life and cultural heritage
* Guidelines recommend various operating
practices to control or prevent discharges
such as using non oil-based drilling fluids
and considering zero discharge where feasible
* Guidelines urge adequate emergency preparedness
planning and decommission planning and
monitoring
+ Sustainable Development Working Group
The SDWG has also sledded softly through various reports and projects
– Examples of reports
* Arctic Human Development Report (2004)
* Report on Arctic Energy(2009)
– Examples of projects
* Telemedicine pilot project (2004-2008)
* Survey of Living Conditions in the Arctic
* Circumpolar Surveillance of Infectious Diseases
* Best Practices in Ecosystem-based Ocean
Management in the Arctic (with PAME WG)
> The 2009 project report shed light on the limited application by Arctic
States of the ecosystem approach in a transboundary context
> Relatively few transboundary marine conservation agreements exist
in the Arctic
> Transboundary integrated planning has yet to occur
– The SDWG is planning to undertake a further project, Human Development
II, to provide an updated circumpolar assessment of human development and
quality of life in the Arctic with a target completion date of 2015
• Decisions and declarations from Ministerial meetings represent a further way the
Arctic Council has “edged forward”:
+ For most of the Arctic Council’s history, Ministerial meetings could be
characterized as largely discussional and limited in law and policy impacts.
Decisions were dominated by approving working group workplans and projects and
other recommendations suggested by Senior Arctic Officials
+ At the Sixth Ministerial meeting in Tromsø, Norway on 29 April 2009, a
major shift occurred with Ministers taking more of a policy-shaping role
through a number of key decisions
– Initiation of Deputy Minister level meetings to
discuss emerging issues between Ministerial
meetings
– Adoption of all 17 AMSA recommendations including
* Making parts of the Guidelines for Ships Operating in Arctic IceCovered Waters mandatory
* Augmenting global IMO ship safety and pollution conventions in
order to better protect the Arctic environment
– Establishment of a task force on short-lived climate forcers (black carbon,
methane and troposheric ozone) to identify new measures to reduce
emissions
– Establishment of a task force to develop and compete negotiation by the
next Ministerial meeting in 2011 of an international instrument on search
and rescue cooperation in the Arctic
+ At the Seventh Ministerial meeting in Nuuk, Greenland on 12 May 2011,
Ministers continued the more proactive law and policy role
– The Agreement on Cooperation in Aeronautical and Maritime Search and
Rescue, negotiated by the Council appointed task force, was signed during
the meeting
– Ministers welcomed reports on short-lived climate forcers and encouraged
Arctic states to implement at the national level relevant recommendations
for reducing emissions of black carbon
– Ministers also decided to establish a Short-Lived Climate Forcer
Contaminants project steering group to undertake circumpolar
demonstrative projects to reduce black carbon and other SLCF emissions
– Ministers further advanced the Council’s governance shaping role by
deciding to establish a task force to develop an international instrument on
Arctic marine pollution preparedness and response.
2. Sea of Challenges
Key challenges as the Arctic Council voyages beyond its first 15 years may be
largely summarized under four headings:
• Fully implementing existing commitments and recommendations
• Completing the Arctic Council’s restructuring
• Addressing future governance of Arctic areas beyond national jurisdiction
• Strengthening the “Arctic voice” in international fora
• Fully Implementing Existing Commitments and Recommendations
+ Getting a firm grip on how numerous commitments and recommendations coming
out of Arctic Council meetings and reports have been implemented is difficult since
the Council has generally not required national reporting or project follow up
monitoring
+ Nevertheless, three implementation challenges stand out
– Getting full ratification of international agreements
* Even though the Regional Programme of Action for the Protection of the
Arctic Marine Environment from Land-based Activities urges Arctic states
to ratify the key international transboundary pollution conventions,
ratification has been limited
> The USA has not ratified the Stockholm Convention on POPs
> The Russian Federation and USA are not Parties to the Convention
on Long-range Transboundary Air Pollution (LRTAP) Protocol on
POPs (1998)
> Iceland and Russia are not Parties to the LRTAP Heavy Metals
Protocol (1998)
* While the AMSA report urges Arctic States to ratify the International
Convention for the Control and Management of Ships’ Ballast Water
and Sediments, only Canada, Norway and Sweden have ratified the
Convention
– Following through with AMSA recommendations
While considerable progress in implementing AMSA recommendations has
occurred since the report was published in April 2009, many “unfinished
agendas” continue, e.g.
* An AMSA Implementation Status Report submitted to Ministers in May
2011 noted three areas in particular where more implementation efforts
are needed
> Identifying and protecting areas of heightened ecological and
cultural significance
> Sharing Arctic maritime domain awareness information on positions
and movements of ships
> Ensuring adequate spill response capacity across the Arctic
* A priority challenge is the completion of negotiations for an effective and
mandatory Polar Shipping Code
> Numerous issues remain to be resolved regarding Code contents, for
example
† Types of vessels to be covered such as possible extension to
fishing vessels
† The appropriate balance between mandatory and recommendary
provisions
† The inclusion of ice navigational training requirements
† Vessel-source pollution discharge standards
† Voyage planning requirements, such as possible pairing of ships
to assist potential search and rescue.
> A further complication is resolving how to make the Polar Code
mandatory with three main options possible:
† Adopting the Code as an amendment to the SOLAS Convention
† Developing amendments to SOLAS, MARPOL, the Antifouling
Substances Convention and the Ballast Water Management
Convention
† Forging a new convention on polar shipping
> The DE Sub-Committee has re-established the Correspondence
Group on Development of a Mandatory Code under the coordination of Norway to further develop the Code with a report to be
submitted to the 56th session of the DE Sub-Committee
> The target completion date of 2012 for Polar Shipping Code
negotiations seems unlikely to be met in light of the numerous issues
to be resolved
† Arctic Council Ministers in their Nuuk Declaration in 2011
already emphasized the need for timely completion of the Polar
Code
† The PAME Working Group in its meeting in September 2011
recommended that member governments explore submission of
a paper to the IMO emphasizing the importance of the
completion of the Polar Code to Arctic Council member States.
* Following through on the AMSA recommendation to improve shippingrelated infrastructure in the Arctic is especially difficult:
> Long list of infrastructure deficits were identified
> Need for major national financial and human resource commitments
> Shipping infrastructure clearly more advanced in the Barents Sea
and Northern Sea Route regions than in other areas of the Arctic
– Putting the ecosystem approach into practice
* While the Arctic Council’s Arctic Marine Strategic Plan suggests an
ecosystem approach as a way forward in managing the Arctic marine
environment, subsequent Council activities relating to the EA might be
described as largely “conceptual and informational”, e.g.
> The Ecosystem Approach Expert Group under the PAME WG has
identified 17 LMEs and compiled a summary of existing and ongoing
ecological assessments in the various LMEs but not yet clear what the
governance implications will be
> The SDWG PAME project on Best Practices in Ecosystem-based
Management in the Arctic produced a summary document in 2009
listing core elements essential to implementing the EBM concept, e.g.
† The application of the best available scientific and other
knowledge to understand ecosystem interactions and to manage
human activities
† An integrated and multi-disciplinary approach to management
that takes into account the entire ecosystem
† The assessment of cumulative impacts
† Setting explicit conservation standards, targets and indicators
† Enhancing transboundary arrangements
> The IUCN, an observer to the Arctic Council, has collaborated with
the Natural Resources Defense Council in hosting three workshops
on EBM in the Arctic with various discussional outputs, e.g.
† Suggesting possible development of an Arctic Marine
Ecosystem-based Management Strategy by the Council
† Identifying ecologically and biologically significant areas
(EBSAs) in the Arctic that might warrant special protection
* Navigating from high level discussions and assessments to concrete
management commitments and measures in light of EBM is likely to be an
incremental voyage
> At the May 2011 Ministerial meeting, Ministers decided to establish
an Arctic Council expert group on ecosystem-based management for
the Arctic marine environment with a mandate to recommend further
activities in that field for possible consideration of SAOs before the
end of the Swedish Chairmanship in 2013
> Establishment of a network of MPAs in the Arctic and development
of integrated management planning in the LME and transboundary
contexts stand out as unmet challenges
• Completing the Arctic Council’s Restructuring
+ Norway during its chairmanship of the Arctic Council in 2006-2009 placed a
high priority on improving the efficiency and effectiveness of the Arctic
Council, but making changes in the administration and organization of the
Council has been slow
– At the April 2009 Ministerial meeting in Tromsø, Ministers simply called
for further consideration of how the Arctic Council should best be
structured and for continued discussions on the role of observers in the
Arctic Council
– A controversial issue had become the admission of further non-Arctic
States and the EU as permanent observers (the requests by the EU, China,
Italy and South Korea for permanent observer status were denied in 2009
pending further discussions within the Council)
+ A breakthrough of sorts occurred at the Nuuk Ministerial meeting in May 2011
where key steps towards strengthening the Arctic Council occurred:
– Ministers decided to establish a Standing Arctic Council
Secretariat in Tromsø, Norway to be operational no later
than at the beginning of the Canadian chairmanship of the
Council in 2013
– Ministers also decided to establish a task force to implement decisions to
strengthen the Arctic Council including necessary arrangements for the
Secretariat and approved the terms of reference for the task force as set out in
the Senior Arctic Officials’ Report to Ministers in 2011
– The SAO Report included an annex, Framework for Strengthening the Arctic
Council, which partly focused on providing details regarding the proposed
Secretariat
* A key commitment was to provide an administrative budget to cover the
operating costs of the Secretariat with the budget to be determined at the
Ministerial meeting every second year and the budget financing to be
equally shared by the eight Arctic States in an amount which should not
exceed USD 1 million
* The Framework also indicated that the Arctic Council would utilize a
wide range of approaches to address emerging challenges in the Arctic,
including scientific assessments, guidelines, best practices, new legally
binding instruments, and an increased use of task forces.
+ In Nuuk, Ministers also adopted recommendations of SAOs on the role and criteria
for observers to the Arctic Council and decided to apply the criteria to evaluate
pending applicants for observer status
– The criteria to be weighed by the Council in determining observer suitability
include the extent to which observers:
* Accept and support the objectives of the Arctic Council defined in the
Ottawa declaration
* Recognize Arctic States' sovereignty, sovereign rights and jurisdiction in the
Arctic
* Recognize that an extensive legal framework applies to the Arctic Ocean
including, notably, the Law of the Sea, and that this framework provides a
solid foundation for responsible management of this ocean
* Respect the values, interests, culture and traditions of Arctic indigenous
peoples and other Arctic inhabitants
* Have demonstrated a political willingness as well as financial ability to
contribute to the work of the Permanent Participants and other Arctic
indigenous peoples
* Have demonstrated their Arctic interests and expertise relevant to the work
of the Arctic Council
* Have demonstrated a concrete interest and ability to support the
work of the Arctic Council, including through partnerships with
member states and Permanent Participants in bringing Arctic
concerns to global decision making bodies
– The role of observers is also clarified.
* For example, observers may submit written statements at
Ministerial meetings and at meetings of the Council’s subsidiary
bodies observers may, at the discretion of the Chair, make
statements after Arctic States and permanent participants, present
written statements and submit relevant documents
* Observers may propose projects through an Arctic state or a
permanent participant but financial contributions from observers to
any given project may not exceed the financing from Arctic States,
unless otherwise decided by SAOs
+ A final strengthening component adopted by Ministers in Nuuk related to Arctic
Council communications. Ministers adopted Communication and Outreach
Guidelines and instructed SAOs to develop a Strategic Communications Plan for
the Council.
+ While the Arctic Council’s structural transitionings in process offer hope for a
more effective Council, other challenges loom on the horizon:
– Whether the Indigenous Peoples Secretariat should be integrated with the
permanent Arctic Council Secretariat is under review by permanent
participants and it remains to be seen how services to PP organizations might
be strengthened.
– By far the biggest challenge may be ensuring adequate financing for Arctic
Council assessments and projects and other activities.
* The new budgetary expenditures being proposed for covering the Arctic
Council are limited to secretariat costs.
* The Nuuk Declaration itself highlighted the continuing financial
limitations of the Council. Ministers reiterated:
[t]he need to finance circumpolar cooperation, as well as the
importance of providing adequate funding to Permanent Participants
to support their preparations for, and participation in, the Arctic
Council, the working groups, task forces and Arctic Council projects,
+ Various other suggested strengthenings of the Arctic Council, offered by
various groups and authors, have not been followed. Suggestions have
included:
– Holding one or more Ministerial meetings at the head of state level
– Reforming the Council’s mandate to include security and education
– Restructuring the working groups
– Creating a category of consultative party status to enhance the role of
leading non-state action and to encourage them to contribute to an
Arctic Fund.
• Addressing Future Ocean Governance of Areas Beyond National Jurisdiction
+ A looming challenge is the need to consider future directions for governance
arrangements in the central Arctic Ocean (CAO) beyond national jurisdiction
– A large high seas “donut hole” exists in the CAO beyond the 200 n.m. zones of
coastal states
http://www.newscientist.
com/data/images/ns/cm
s/dn17229/dn172291_500.jpg
– At least two deep seabed areas have been predicted to lie beyond national
jurisdiction once the Arctic coastal states delimit the outer extent of their
continental shelves.
Macnab, 2006
+ A multiplicity of future governance proposals have emanated from
academics, NGOs and others. Suggestions include:
– Establishment of a regional fisheries management organization
– Possible expansion of the fisheries jurisdiction of the North-East
Atlantic Fisheries Commission
– Creation of a regional ocean management organization
– Adoption of an Arctic Ocean framework convention applicable to the
Arctic marine environment both within and beyond national
jurisdictions
– A regional sui generis approach whereby the five coastal states would
divide the area beyond national jurisdiction (ABNJ) into national
sections
– A freeze on jurisdictional claims to the central Arctic basin
– A declaration of governance principles including a precautionary
approach to new resource developments
+ While the Arctic Council has not specifically addressed the topic of ABNJ
governance, representatives of the five Arctic coastal States did tangentially
consider future directions in governance at their meeting in Ilulissat, Greenland in
May 2008.
– They indicated that the law of the sea, provides a
solid foundation for responsible management by the
five coastal States and other users of the Arctic Ocean.
– Under a law of the sea approach
* Various freedoms would be open to all States
including the freedoms of navigation and fishing (Art. 87).
* Mineral exploration and exploitation of the deep seabed would come
under the jurisdiction of the International Seabed Authority (Art. 156).
* Flag State jurisdiction would prevail as the prime principle for controlling
activities (Art. 92).
* Various responsibilities would fall upon States to control activities of their
vessels and nationals on the high seas, for example, their duty to:
> Conserve fish stocks and to cooperate with other States in seeking to
manage fish stocks jointly exploited (Art. 118)
> Undertake environmental impact assessments for planned activities, that
may cause substantial pollution or significant and harmful changes to
the marine environment (Art. 206)
> Generally to protect and preserve the marine environment (Art. 192).
– 1995 Implementation Agreement on Straddling and Highly Migratory Fish
Stocks establishes various obligations potentially relevant to Arctic high seas
fisheries, e.g.
* Application of precautionary and ecosystem approaches (Art. 5)
* Commitment to establish a sub-regional or regional fisheries management
organization or arrangement where no such organization/arrangement exists
for a particular straddling or highly migratory fish stock (Art. 8(5))
+ The role of the Arctic Council in addressing future governance arrangements
for ABNJ in the Arctic Ocean remains uncertain with at least three main
approaches possible.
– First, a reactive approach could be followed whereby Arctic States would
forestall law and policy responses until actual development pressures arise,
such as proposed commercial fisheries in parts of the ABNJ.
– Second, a global first strategy could be followed where Arctic States defer
addressing ABNJ issues in the Arctic until after global discussions and
processes result in clarifications as to legal principles and consensus on the
appropriate international legal framework applicable to ocean areas beyond
national jurisdiction.
* Debates and expressions of divergent views over future directions for
governance of marine biodiversity beyond national jurisdiction have
been “continuing sagas” within two main UN fora
> UN Open-ended Informal Consultative Process on Oceans and
Law of the Sea (ICP), e.g.
† Fifth ICP meeting in 2004 addressed management of
biological diversity of the seabed beyond national jurisdiction
as a central topic
† Eighth ICP meeting in 2007 focused discussions on marine
genetic resources including bioprospecting in areas beyond
national jurisdiction
> Ad Hoc Open-ended Informal Working Group to study issues relating
to the conservation and sustainable use of marine biological diversity
beyond areas of national jurisdiction (ABNJ WG)
† First meeting 13-17 February 2006
† Second meeting 28 April-2 May 2008
† Third meeting 1-5 February 2010
† Fourth meeting 31 May-3 June 2011
* Two main “bones of contention” stand out:
> Whether there is a governance gap in relation to marine genetic
resources?
† One view is that marine genetic resources beyond areas of
national jurisdiction are covered by the high seas regime of
LOSC and customary international law
~ A high seas freedom
~ Subject to marine environmental
protection and assessment responsibilities
~ An elaborated regulatory regime might
impede scientific research and innovation
> Another view is that marine genetic resources beyond national
jurisdiction should be considered part of the common heritage of
mankind:
~ Requiring fair and equitable sharing of benefits
~ Supporting the need for new regulatory and practical measures
~ Drawing support especially from preambular language of LOSC
(among other sources)
 Recognizes the desirability of promoting the equitable and efficient
utilization of ocean resources
 Notes the importance of taking into account the interests and needs
of mankind as a whole and, in particular, the special interests and
needs of developing countries
~ Raising various difficult questions
 How to distinguish between marine scientific research and
bioprospecting?
 Whether the role of the International Seabed Authority
should be extended to cover bioprospecting?
 What should be the specific provisions for benefit sharing?
† A second central contention point – Whether there should be
a new Implementation Agreement on Marine Biodiversity
Beyond National Jurisdiction?
~ Idea pushed particularly by the EU and various NGOs
~ Such an agreement might address various issues such as
 Establishment of MPAs on high seas
 Enhancement of EIA provisions
 Clarification of governance principles
* The last ABNJ WG meeting in June 2011, while not resolving the
various political tensions, did make progress on the procedural front.
> The ABNJ WG recommended that the UN General Assembly
initiate a process for identifying gaps and ways forward in
addressing marine biodiversity issues beyond national
jurisdiction including through
† The implementation of existing instruments and
† The possible development of a multilateral agreement under
the UN Convention on the Law of the Sea
> The process would take place within the ABNJ WG and through
intersessional workshops
> The June meeting also recommended the convening of another
WG meeting in 2012
– Third, Arctic States could follow a proactive approach with various steps taken
under the Arctic Council umbrella, such as:
* Convening a workshop or workshops to discuss the preferred policy future
* Engaging non-Arctic states and actors in understanding their governance
perspectives
* Establishing a task force to review law and policy options
* Encouraging a precautionary moratorium on future commercial living
marine resource exploitations until appropriate scientific and management
parameters are in place
• Strengthening the “Arctic voice” in international fora
+ Many of the environmental threats to the Arctic arise largely from outside the
region and an ongoing challenge is to translate the seriousness of Arctic human
and environmental stresses into effective law and policy responses particularly
at the global level.
– While AMAP assessments have been influential in the negotiation of
agreements relating to chemicals and heavy metals, the ability for the Arctic
Council to push a strong environmental agenda in global fora, besides the
IMO, has been weak to non-existent.
– For example, adequate climate change mitigation responses, reflecting the
serious Arctic consequences of melting ice and rising temperatures, have
yet to be forged under the UN Framework Convention on Climate Change
(UNFCCC).
– In light of the large number of chemicals being found in the Arctic with
bioaccumulation potential which are not subject to international controls,
the need for more proactive approaches to chemicals management stands
out.
+ The Council’s Arctic Ocean Review project holds considerable promise to help
mobilize an Arctic Council agenda for taking action at the global and regional
levels to better protect Arctic communities and their environment. The Phase II
report, expected to be published in 2013, has as one of its major aims the
development of options to strengthen international agreements and measures.
+ However, it remains to be seen how influential the AOR report and
implementation follow ups will be.
– Final AOR recommendations are expected to be negotiated by
representatives of the eight Arctic States.
– As a consensus-based, discussional forum, the Arctic Council is limited by
the political views and sensitivities of its eight member States and reaching
consensus on a common voice may be difficult.
– Furthermore, it is member States that are Parties to international agreements
and possess membership in international organizations, not the Arctic
Council.
+ Conceptualizing how the Council might best find ways to make the voice of the
Arctic heard in international settings is not easy. Suggestions have included:
– The establishment of an International Cooperation Working Group or a
coordinating committee for external relations
– A joint working group on the voice of the Arctic among key partners, such
as the Indigenous Peoples Secretariat, the Executive Committee of the
Northern Forum and SAOs
+ Arctic Council Communication and Outreach Guidelines, adopted at the Nuuk
Ministerial meeting in 2011, may assist to some extent.
– The Guidelines give the SAO chair the key role of disseminating
information and appearing at conferences, seminars and meetings of
international organizations in order to increase the profile of the Arctic
Council
– However, in communication on behalf of the Arctic Council, the Chair is to
confine his/her comments to factual information and agreed positions
– When faced with inquiries to which a common position cannot be obtained,
the Chair must make it clear that he/she is communicating on behalf of the
Chairmanship and not the Council
Conclusion
• After 15 years of existence, the Arctic Council, often criticized for its soft law
status and structural limitations, certainly has evolved from being just a “study
and talk” venue to more of a policy shaping and even law-making forum.
+ The Arctic Marine Shipping Assessment represented a significant shift with its
17 recommendations leading to concrete follow up actions at the global,
regional and national levels.
+ The use of task forces to actually negotiate treaty texts under the auspices of the
Council has become an innovation with a Search and Rescue Agreement
concluded in May 2011 and a further instrument on regional emergency
preparedness and response under development.
• An apt phrase that captures the essence of how the Arctic Council is faring after
15 years of existence is “a work in progress.”
+ The Council continues to flexibly and incrementally evolve on many fronts
through task forces, assessments, reviews, expert groups, workplans and other
plans.
+ Many issues have yet to be addressed by the Council, including bioprospecting
and geoengineering
+ Harmonized national regulatory approaches have yet to be forged particularly in
the area of oil and gas regulation.
• Whether the Council will be able to adequately stem the powerful tides of
climate change and globalization has yet to be answered
• A long voyage lies ahead!