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International Governance and Regulation of the Marine Arctic

By Timo Koivurova and Erik J. Molenaar

Shorten version. Full article is available as PDF attachment at the end of this page

 

Executive Summary

Introduction

This report was commissioned by the WWF International (C) in 2010.

Arctic Programme to examine the adequacy of the current international governance and regulatory regime of the marine Arctic in light of current and future impacts of climate change on the Arctic. The main elements of this report are an overview of the current international governance and regulatory regime of the marine Arctic and an analysis of the main governance and regulatory gaps in that regime.

The mandate was to examine the governance and regulation of human activities occurring within the marine Arctic, the current report devotes no attention to human activities taking place far beyond the Arctic but having an impact within it (e.g. long-range transboundary air pollution or global climate change). This therefore also determines the scope of the overview of the current international regime of the marine Arctic and the gap analysis.

For the purpose of this report, governance gaps and regulatory gaps are understood to mean the following:

‘Governance gaps’: gaps in the international institutional framework, including the absence of institutions or mechanisms at a global, regional or sub-regional level and inconsistent mandates of existing organizations and mechanisms.

‘Regulatory gaps’: substantive and/or geographical gaps in the international legal framework, i.e. issues which are currently unregulated or insufficiently regulated at a global, regional or subregional level.

The identified gaps are grouped below under the headings ‘Arctic Council and its Constitutive Instrument’,

‘Current International Law of the Sea’, ‘Sectoral Governance and Regulation of the Marine Arctic’ and ‘Cross-Sectoral Issues’.

Arctic Council and its Constitutive Instrument

The following seem to be the main gaps:

1. No legally binding obligations. The Ottawa Declaration

on the Establishment of the Arctic Council does not impose legally binding obligations on any of its participants and the Arctic Council is also not empowered to do so.

2. Not an operational body. The Arctic Council is project-driven and is not empowered to impose legally binding obligations on any of its participants. While a number of useful non-legally binding guidelines are produced within the framework of the Arctic Council, the impacts of these are difficult to determine given that the Council does not systematically evaluate whether these are being followed.

3. Limited participation. The Arctic Council is quite unique due to the role it gives to the region’s Indigenous

peoples, but non-arctic states can only obtain observer status. It could be argued that this is not a problem in view of the current role and powers of the Arctic Council, which do not directly affect the rights of non-arctic states in the Arctic. On the other hand, it can also be argued that by giving the Arctic Council such a limited role and powers, the arctic states have not discharged certain obligations under international law and thereby affect the rights and interests of other states and the international community.

4. No permanent independent secretariat .

5. No structural funding.

Current International Law of the Sea

The cornerstones of the current international law of the sea are the LOS Convention and its two implementation agreements, the Part XI Deep-Sea Mining Agreement and the Fish Stocks Agreement. The current international law of the sea applies to the marine environment of the entire globe; including therefore the entire marine environment of the Arctic, however defined.

By referring to the law of the sea as an “extensive international legal framework”, the Ilulissat Declaration by the five Arctic Ocean coastal states of 28 May 2008 implicitly acknowledges the need for implementa­tion by international organizations. The LOS Conven­tion and the Fish Stocks Agreement are in many ways framework conventions that rely on implementation by means of concrete regulation at the global and regional levels through ‘competent’ or ‘appropriate’ international organizations. A pragmatic reason for implementation at the regional level is that it allows for taking proper account of various regional characteristics, for instance distributional ranges of fish stocks, spatial dimensions of marine ecosystems, maritime boundaries and relation­ships between states.

But while the LOS Convention and the Fish Stocks Agreement acknowledge the need for regional ap­proaches with respect to fisheries management, marine environmental protection and enclosed or semi-enclosed seas, the obligations on cooperation:

• are often subject to qualifiers (e.g. “shall endeavour” or “appropriate”)

• provide alternatives to regional cooperation (e.g. “glo­bal” or “directly”)

• do not provide guidance on the outcome of such re­gional cooperation (e.g. an international organization or a legally binding or non-legally binding instru­ment)

One of the few exceptions in this regard relates to the obligation to cooperate under the Fish Stocks Agree­ment. This obligation, however, applies only to strad­dling and highly migratory fish stocks and therefore not to shared fish stocks and anadromous fish stocks.

Notwithstanding the inadequacies of the obligations on cooperation in relation to marine environmental pro­tection and enclosed and semi-enclosed seas, however, quite a few regional marine environmental protection regimes have been established so far. The main reasons for the establishment of the regional regimes other than the Antarctic Treaty system seem to be to:

• discharge applicable obligations to cooperate under the LOS Convention and customary international law and in so doing taking account of a range of regional characteristics

• address transboundary effects of various human ac­tivities

• ensure a minimum level of marine environmental protection for the entire region by means of regional minimum obligations and thereby a regional level playing field

It should be noted, however, that large parts of the world’s seas and oceans are not covered by regional en­vironmental protection regimes or by regional fisheries management organizations (RFMOs) and Arrangements. The reasons for such gaps may be obvious and under­standable in some regions, but less so in others. The fact nevertheless remains that the relevant states are not willing or able to discharge their obligations to cooper­ate under the LOS Convention, Fish Stocks Agreement or customary international law and thereby undermine relevant rights and interests of other states and the inter­national community.

Another significant gap in the law of the sea as it ap­plies to the Arctic marine area is the non-participation of the United States in the LOS Convention. This means, among other things, that the dispute settlement mecha­nism of Part XV of the LOS Convention does not apply between the United States and other parties to the LOS Convention, including the other Arctic Ocean coastal states.

Finally, it is worth pointing out that the mere exist­ence of the two implementation agreements to the LOS Convention reflects that the international community was prepared to address what it perceived to be as gaps at the time. Recent undertakings within the framework of the United Nations General Assembly (UNGA) and the Convention on Biological Diversity (CBD) address newly perceived gaps in relation to marine biodiversity in areas beyond national jurisdiction. Table 1 below summarizes the main regulatory and governance gaps identified by a group of independent researchers. Most of these gaps also apply to the Arctic marine area, both as regards areas within national jurisdiction, and beyond. An important exception is the Atlantic sector of the Arctic marine area, which is covered by the Conven­tion for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) and the OSPAR Commission established by it. The ability of the OSPAR Commission to act as an authority by default in the absence of a competent international organization at the global level (e.g. for marine scientific research) and for new and emerging activities, is particular noteworthy in this context.

Sectoral Governance and Regulation of the Marine Arctic

The focus on sectoral governance and regulation of the marine Arctic has been on three sectors, namely fisheries management, shipping and offshore hydrocarbon activi­ties. For each of these issues, the main gaps are summa­rized in Table 2 below.

Cross-Sectoral Issues

The three most important cross-sectoral issues seem to be (transboundary) environmental impact assessment (EIA) and strategic environmental assessment (SEA), representative networks of marine protected areas (MPAs) and integrated, cross-sectoral ecosystem-based ocean management.

1. Introduction

This report was commissioned by the WWF International Arctic Programme to examine the adequacy of the current international governance and regulatory regime of the marine Arctic in light of current and future effects of climate change on the Arctic. The main elements of this report are an overview of the current international governance and regulatory regime of the marine Arctic (section 2) and an analysis of the main governance and regulatory gaps in that regime (section 3).

2. Overview of the Current International Governance and Regulatory Regime of the Marine Arctic

2.1. Introduction

The overview of the current international governance and regulatory regime of the marine Arctic contained in this section is very concise. This is not just a consequence of time constraints and a preference for brevity, but also of the fact that its central purpose is to facilitate the identification of the main regulatory and governance gaps in this regime in section 3.

The overview is moreover delimited in view of the fact that the envisaged enhanced arctic governance would relate exclusively to the regulation and governance of human activities occurring within the marine Arctic. No attention is therefore devoted to human activities taking place far beyond the Arctic but having an impact within it. This means that the overview does not also encompass the regime of long-range transboundary air pollution or global climate change.

The next subsection addresses the spatial scope of the marine Arctic, followed by subsection 2.3 on the Arctic Council and its constitutive instrument, subsection 2.4 on the current international law of the sea, subsection

2.5 on the OSPAR Convention, subsection 2.6 on sectoral governance and regulation of the marine Arctic, subsection 2.7 on cross-sectoral issues – including for instance transboundary environmental impact assessment

(EIA) and strategic environmental assessment (SEA) – and, finally, subsection 2.8 on other relevant global, regional and bilateral agreements.

2.2. The Spatial Scope of the Marine Arctic

There is currently no universally accepted definition for the spatial scope of the marine Arctic. Relevant instruments and processes use different definitions for the Arctic, for instance the area north of the northern treeline or the area north of the Arctic circle (66º 33’ North). ‘Arctic states’ are the states that are members of the Arctic Council, namely Canada, Denmark (in relation to Greenland), Finland, Iceland, Norway, the Russian Federation, Sweden and the United States.

Of particular importance is the ‘AMAP area’, as agreed by the Arctic Monitoring and Assessment Programme (AMAP) of the Arctic Council.

However, other relevant global international organizations have opted either explicitly or implicitly for different definitions of the Arctic or marine Arctic. For instance, the International Maritime Organization (IMO) by means of its Arctic Shipping Guidelines and the United Nations Food and Agriculture Organization (FAO) by means of its definition of FAO Statistical Area No. 18: Arctic Sea.

There is no universally accepted definition for the ‘Arctic Ocean’ either. However, it seems generally accepted that there are only five coastal states to the Arctic Ocean, namely Canada, Denmark (in relation to Greenland), Norway, the Russian Federation and the United States.

2.3. The Arctic Council and its Constitutive Instrument

The Arctic Council was established as a high level forum in 1996 by means of the Ottawa Declaration. The Council’s mandate broadened pre-existing coopera­tion under the 1991 Arctic Environmental Protection Strategy (AEPS)10 to “common Arctic issues, in particu­lar issues of sustainable development and environmental protection in the Arctic” but excluding “matters related to military security”.11In Ottawa, the Arctic states also committed to develop Rules of Procedure12 and Terms of Reference for a Sustainable Development Program, which the council adopted by means of its 1998 Iqaluit Declaration. The Rules of Procedure apply to all bodies of the council and specify in considerable detail – espe­cially in view of the fact that the Arctic Council is not an inter-governmental organisation in international law – how meetings are run and how decisions are taken.13

The Arctic Council is consensus-based and project-driven and not an operational body. It also has no general role in coordinating arctic policies, other than in spheres specifically agreed upon in advance. This is among other things implied in the Terms of Reference for a Sustainable Development Program, which are merely procedural and do not contain a list of agreed themes.14 As project proposals ultimately require con­sensus, this imposes a considerable restriction on the Council’s mandate. Marine mammal issues15 and, more recently, Arctic fisheries management16 have therefore not been substantively addressed; let alone culminated in projects.

The eight Arctic states are Members of the Arctic Council. A unique aspect of the Arctic Council is the role it gives to the region’s Indigenous peoples. They are normally accorded the status of non-governmental organizations (NGOs) in different inter-governmental organisations and forums, but the Arctic Council defines them as ‘Permanent Participants’, a distinct category of membership between Members proper and Observers, whom the Arctic Council Members must consult prior to any consensus decision-making. The group of observers is large, and consists of inter-governmental and non-governmental organisations as well as states that are active in the Arctic region.

The four environmental protection working groups of the AEPS – namely Conservation of Arctic Flora and Fauna (CAFF), Protection of the Arctic Marine Environ­ment (PAME), Emergency Prevention, Preparedness and Response (EPPR), and the Arctic Monitoring and Assessment Programme (AMAP) – were integrated into the structure of the Council. In addition, two new working groups were established, namely the Sustain­able Development Working Group (SDWG) and the Arctic Contaminants Action Program (ACAP). In the absence of a permanent secretariat,18 the work of the Arctic Council is heavily influenced by the priorities that the chair-state lays out for its two-year chair period, and by the ministerial meetings which are held at the end of each chair’s term. Senior Arctic Officials (SAOs), a group of high-level officials, guides the work of the Council between ministerial meetings.

The Arctic Council is an inter-governmental forum established by means of a non-legally binding decla­ration and does not have the competence to impose legally binding obligations of any kind whatsoever on its Members, Permanent Participants or Observers. The most it can do from the governance perspective is to issue policy recommendations, such as the one commis­sioning the Arctic Climate Impact Assessment (ACIA), and to adopt guidelines and recommendations on how the Arctic states should conduct themselves in certain fields of activity. It should be noted, however, that the issue of the ‘Effectiveness and Efficiency of the Arctic Council’ is currently a standing item on the agenda of SAOs meetings and will also be addressed at the April 2009 Ministerial meeting.19 So far, the main focus has been to ensure that the existing forms of cooperation work as effectively as possible (e.g. the role of observers and tasking of various Working Groups).

The Arctic Council has done important assessment work (sometimes with policy recommendations) relat­ing to the Arctic marine area and produced non-legally binding guidelines and manuals of good practice. These have often been influential in many international envi­ronmental protection processes. PAME’s work agenda has become increasingly ambitious with the adoption of its 2004 Arctic Marine Strategic Plan (AMSP), which encourages actions on many fronts. PAME developed the AMSP through the various Arctic Council working groups and mechanisms, as well as via regional and global bodies. The AMSP identifies the largest drivers of change in the Arctic to be climate change and increasing economic activity and suggests actions in many areas, for instance: conducting a comprehensive assessment of Arctic marine shipping, which led to the Arctic Marine Shipping Assessment (AMSA) to be finalized in 2009; developing guidelines and procedures for port recep­tion facilities for ship-generated wastes and residues; examining the adequacy of the Arctic Council’s Arctic Offshore Oil and Gas Guidelines with revision by 2009; identifying potential areas where new guidelines and codes of practice for the marine environment are need­ed; promoting application of the ecosystem approach; promoting the establishment of marine protected areas, including a representative network; calling for periodic reviews of both international and regional agreements and standards; and promoting implementation of con­taminant-related conventions or programs and possible additional global and regional actions.

2.4. The Current International Law of the Sea

The cornerstones of the current international law of the sea are the LOS Convention20 and its two imple­mentation agreements, the Part XI Deep-Sea Mining Agreement21and the Fish Stocks Agreement22. The current international law of the sea applies to the marine environment of the entire globe; including therefore the entire marine environment of the Arctic, however defined.

The LOS Convention’s overarching objective is to establish a universally accepted, just and equitable legal order – or ‘Constitution’ – for the oceans that lessens the risk of international conflict and enhances stability and peace in the international community. The LOS Convention currently has 157 parties, the Part XI Deep-Sea Mining Agreement 135 parties and the Fish  Stocks Agreement 72 parties. All Arctic states are par­ties to these three treaties, except for the United States, which is not a party to either the LOS Convention or the Part XI Deep-Sea Mining Agreement.23 The European Community (EC) is party to all three treaties. This is important in view of the fact that Denmark, Finland and Sweden are Member States of the European Union (EU)24 and Iceland and Norway are parties to the EEA Agreement25.

The LOS Convention recognizes the sovereignty, sovereign rights, freedoms, rights, jurisdiction and obligations of states within several maritime zones. The most important of these for the Arctic are internal waters, territorial sea, exclusive economic zone (EEZ), continental shelf, high seas and the ‘Area’26. Internal waters lie landward of the baselines. The maximum breadth of the territorial sea is 12 nautical miles (nm; 1 nm = 1,852 meters) measured from the baselines, 24 nm the maximum breadth for the contiguous zone, and 200 nm for the EEZ. However, in many geographical set­tings these maximum breadths cannot be reached due to the proximity of the baselines of opposite states. In such circumstances maritime boundaries have to be agreed on by the opposite states. Several of such maritime bounda­ries have already been established in the Arctic marine area and negotiations on several others are still ongoing.

There are four high seas pockets (enclaves) in the AMAP area. These are the so-called ‘Banana Hole’ in the Norwegian Sea, the so-called ‘Loop Hole’ in the Barents Sea, the so-called ‘Donut Hole’ in the central Bering Sea and the central Arctic Ocean.

The LOS Convention recognizes the sovereignty of a coastal state over its internal waters, archipelagic waters and territorial sea, the airspace above and its bed and subsoil. Sovereignty entails exclusive access and control of living and non-living resources and all-encompass­ing jurisdiction over all human activities, unless states have in one way or another consented to restrictions thereon. The LOS Convention also recognizes speci­fied economic and resource-related sovereign rights and jurisdiction of a coastal state with respect to its EEZ and (where relevant) outer continental shelf. Nevertheless, other states have navigational rights or freedoms within the maritime zones of coastal states and, with respect to their EEZ and (where relevant) outer continental shelf, also the freedoms of overflight, laying of submarine ca­bles and pipelines and “other internationally lawful uses of the sea related to these freedoms”.27

Article 76 of the LOS Convention also recognizes that in certain circumstances the continental shelf extends beyond 200 nm from the baselines. This is the so-called ‘outer continental shelf’. Coastal states that take the view that they have an outer continental shelf, must submit information on its outer limits on the basis of the criteria in Article 76 to the Commission on the Limits of the Continental Shelf (CLCS). The limits of the outer continental shelf established by the coastal state “on the basis of” the recommendations of the CLCS “shall be final and binding”.28 So far, only the Russian Federation and Norway have made submissions to the CLCS in relation to their outer continental shelves that lie within the Arctic marine area. The CLCS has up until now only made an interim recommendation in relation to the submission of the Russian Federation. The CLCS es­sentially recommended the Russian Federation to make a revised submission as regards the central Arctic Ocean basin. The Russian Federation is expected to do this in 2010. Canada, Denmark (in relation to Greenland) and the United States are all engaged in activities to enable them to make submissions to the CLCS, despite the fact that the United States is not yet party to the LOS Convention. Canada has to make its submission before November 2013 and Denmark before November 2014. It should be noted that it is likely that there will be two pockets of the Area in the central Arctic Ocean.

In the high seas, all states have the freedoms already mentioned above as well as the freedom to construct artificial islands and other installations, the freedom of fishing and the freedom of scientific research. These freedoms are all subject to conditions and obligations.31The Area and its resources are the common heritage of mankind and the International Sea-bed Authority (ISA) is charged with organizing and controlling all activities of exploration for, and exploitation of, the resources of the Area.

The Treaty of Spitsbergen grants sovereignty over Svalbard to Norway and there seems to be increasingly less opposition by other states to Norway’s entitlement to establish an EEZ and outer continental shelf off Svalbard. Disagreement still exists, however, on the way in which these sovereign rights and jurisdiction granted to coastal states under the LOS Convention should be exercised in light of the equal rights accorded to parties to the Treaty of Spitsbergen.

2.5. OSPAR Convention (35)

2.5.1. Introduction

The spatial scope of the regional OSPAR Convention36 extends to the ‘OSPAR Maritime Area’, which includes areas within and beyond national jurisdiction.37 The OS­PAR Maritime Area roughly overlaps with the Atlantic sector of the Arctic marine area, but about half extends further south. The complete spatial overlap of the OS­PAR Maritime Area with the NEAFC Convention38 Area offers potential for integrated, cross-sectoral ecosystem-based ocean management.

The OSPAR Convention contains a set of basic rules and principles which are elaborated in its 5 Annexes and 3 accompanying Appendices. The four Annexes that were adopted together with the Convention deal with pollution from land-based sources (Annex I), pollution by dumping or incineration (Annex II), pollution from offshore sources (Annex III) and the assessment of the quality of the marine environment (Annex IV). Annex V on the Protection and Conservation of Ecosystems and Biological Diversity of the Maritime Area was adopted in 1998, together with Appendix 3 containing criteria for identifying human activities for the purpose of Annex V, and entered into force in 2000. The main pillars to guide the implementation of the OSPAR Convention and its Annexes are the six strategies that were reaffirmed and updated in 2003, including the Biological Diversity and Ecosystems Strategy (OSPAR Biodiversity Strategy).40

There are currently 16 parties to the OSPAR Conven­tion: all coastal states bordering the North-East Atlantic except the Russian Federation, two states (Luxemburg and Switzerland) that are located upstream on water­courses reaching the OSPAR Maritime Area and the EC. Of the Arctic states, Canada and the United States (in addition to the Russian Federation) are also not parties. Nevertheless, the OSPAR Convention specifi­cally provides for the participation of other states, such as coastal states outside the OSPAR Maritime Area or states whose vessels or nationals are engaged in activi­ties in the OSPAR Maritime Area. These can be invited by the contracting parties by unanimous vote to accede to the Convention and, if necessary, the spatial scope of the Maritime Area can even be redefined.41Other states can also obtain observer status.42 So far, this has not occurred.

The OSPAR Convention covers the regulation of all human activities which can have an adverse effect on the ecosystems and the biodiversity in the North East Atlantic, with the explicit exception of fisheries man­agement and with certain limitations for the regulation of shipping.43 Nevertheless, while these limitations significantly restrain the competence of the OSPAR Commission to adopt effective programs or measures for these activities, both maritime activities are given due consideration in the context of the assessment of the quality status of the marine environment in the region conducted in accordance with article 6 and Annex IV to the OSPAR Convention. These assessments are holistic in scope and include data on all human activities, includ­ ing the effects of fisheries and shipping. A new Quality Status Report for the entire North East Atlantic is under preparation to be completed by 2010.

The OSPAR Commission can adopt measures and pro­grams in the form of legally binding decisions, non-le­gally binding recommendations44 and other agreements45 for all activities except fisheries and with some limita­tions for other activities (see below under “regulation of maritime activities”). These measures and programs can apply to the entire Maritime Area or to a specific (sub)region.46 It should be noted, however, that so far the OSPAR Commission has not imposed measures on non-parties.

The overall objective of the OSPAR Convention is “to prevent and eliminate marine pollution and to achieve sustainable management in the region, that is, the man­agement of human activities in such a manner that the marine ecosystem will continue to sustain the legitimate uses of the sea and will continue to meet the needs of present and future generations”.47 In accordance with this general objective, the OSPAR Biodiversity Strategy provides that a specific objective of the OSPAR Com­mission is “to protect and conserve the ecosystems and the biological diversity of the maritime area which are, or could be, affected as a result of human activities, and to restore, where practicable, marine areas which have been adversely affected, in accordance with the provisions of the Convention, including Annex V and Appendix 3.”48

The OSPAR Convention and Annex V in particular, provide a comprehensive legal framework for the im­plementation of Part XII of the LOS Convention and the CBD49 and its work program on marine and coastal bio­diversity at a regional level.50 The OSPAR Convention mandates the application of the precautionary principle, which is also seen as a central part of the ecosystem approach.51In the context of pollution, the OSPAR Con­vention also requires the application of the polluter pays principle, the use of best available techniques and best environmental practice, including, where appropriate, clean technology.52

Even though the OSPAR Convention does not explicitly refer to the ecosystem approach, the OSPAR Commission has defined it and agreed to apply it and to further develop the measures necessary for its imple­mentation.53 The OSPAR Commission has already de­veloped a set of ecological quality objectives that (can) serve as a tool to implement the ecosystem approach (to date only applied to the North Sea, but their application to other parts of the North East Atlantic is being consid­ered). Other tools such as marine spatial planning are under consideration, but not yet operational. While the application of an ecosystem approach is promoted by the OSPAR Commission for the entire North East Atlantic, the extent to which this will be successful depends on the extent to which all other competent international organizations (global and regional) and non-parties cooperate. The OSPAR Commission encourages other authorities whose actions affect the North East Atlantic to adopt management measures and strategies that are consistent with an ecosystem approach. This includes promoting cooperation in marine spatial planning be­tween competent authorities.

The remainder of this chapter contains a more detailed look at the following topics (a) shipping, (b) dumping and pollution from offshore sources, (c) marine scientific research and bioprospecting, (d) other existing, new and emerging activities, (e) representative networks of marine protected areas (MPAs) and (f) assessments, including EIA and SEA.

2.5.2. Shipping

While competence for the regulation of shipping lies first of all with IMO, action under the OSPAR Conven­tion is not entirely precluded. As with fisheries, the OSPAR Commission must first bring questions to the attention of the IMO, if it considers that action is desir­able. Contracting Parties who are IMO members must endeavor to cooperate “in order to achieve an appropri­ate response, including in relevant cases that Organisa­tion’s agreement to regional or local action …”.54 The OSPAR Commission has already taken some supple­mentary action. This includes for example the adoption of regional voluntary guidelines to reduce the risk of the ballast water,55 as an interim measure pending the entry into force of the BWM Convention56. These guidelines recommend that all vessels within the scope of the BWM Convention entering the North East Atlantic have a Ballast Water Management Plan, record all ballast water operations and exchange ballast water at least 200 nm from the nearest land in water at least 200 metres deep. These voluntary guidelines are recommended for all vessels, including those of non-contracting parties to the OSPAR Convention.

2.5.3. Dumping and pollution from offshore sources

The regulation of pollution by dumping and pollution resulting from offshore sources is covered by Articles 4 and 5 of the OSPAR Convention, its Annexes II and III, the Offshore Oil and Gas Industry Strategy and an extensive list of Decisions, Recommendations and other agreements adopted by the OSPAR Commission and its predecessor58. Some of these Decisions and Recom­mendations complement global rules standards under MARPOL 73/7859.

Annex II provides that dumping (and incineration) of all wastes or other matter is prohibited in the OSPAR Maritime Area, except for the listed substances.61How­ever, the Annex does not apply to any deliberate disposal of wastes or other matter from offshore installations. Annex III prohibits any dumping of wastes or other mat­ ter from offshore installations in the OSPAR Maritime Area and provides the legal basis for the measures that have been adopted for the prevention and elimination of pollution from offshore sources.63 It also prohibits the dumping of disused offshore installations and disused offshore pipelines without a permit obtained from the competent authorities and subjects the “use on, or the discharge or emission from, offshore sources of sub­stances which may reach and affect the maritime area” to authorization and regulation.64

Annexes II and III were amended in 2007 to allow the storage of carbon dioxide (CO2) streams in geological formations under the seabed, combined with a decision to ensure environmentally safe storage and guidelines for risk assessment and management of this activity.65 At the same time, the OSPAR Commission adopted a deci­sion prohibiting the storage of CO2 streams in the water column or on the seabed.66 These measures are consist­ent with those adopted in relation to CO2 storage within the framework of the London Convention67 and its 1996 Protocol68.

2.5.4. Marine scientific research and bioprospecting

In 2008, the OSPAR Commission adopted the ‘Code of Conduct for Responsible Marine Research in the Deep Seas and High Seas of the OSPAR Maritime Area’.69 More technical documents focused on research into particular deep sea features are foreseen.70

2.5.5. Other existing, new or emerging activities

Annex V allows the OSPAR Commission to adopt pro­grams and measures to safeguard against harm to marine ecosystems and biodiversity resulting from all other existing or new activities. A variety of human activities has been identified by the OSPAR Commission on the basis of the criteria contained in Appendix 3 for assess­ment purposes. These include: the exploration for oil, gas and solid minerals; the placement of structures for the exploitation of oil and gas; the construction or place­ment of artificial islands, artificial reefs, installations and structures; the placement of cables and pipelines; the introduction of alien or genetically modified species, whether deliberately or unintentionally; and sea-based tourism.71These activities are currently the subject of assessments with attention also given to underwater noise and marine litter. The aim of these assessments is to identify the impact of these activities on the marine environment, what is already being done and to provide the basis for decisions on the development of programs and measures for specific human activities.

2.5.6. Representative networks of MPAs

Annex V requires the OSPAR Commission “to develop means, consistent with international law, for instituting protective, conservation, restorative or precautionary measures related to specific areas or sites or related to specific species or habitats.”72 It thus provides a legal basis for the adoption of area-based measures in the en­tire North East Atlantic, including both for areas within and beyond national jurisdiction. This is affirmed by the OSPAR Biodiversity Strategy and more specifically by OSPAR Recommendation 2003/3 that requires the OSPAR Commission to develop and evaluate by 2010 an ecologically coherent network of well-managed pro­tected areas in the maritime area (the ‘OSPAR Network of MPAs’).

The OSPAR Commission has developed a procedure for the identification, selection and management of OSPAR MPAs. While many OSPAR Members have nominated MPAs, the OSPAR Commission has so far not adopted measures to manage these MPAs. The principal gap ap­pears to lie in the limitations on the regulatory compe­tence of the OSPAR Commission with regard to certain activities and the absence of mechanisms to coordinate the regulation of all maritime activities by the relevant competent global and regional organizations. Mention can in this context be made of the test-case proposal for an OSPAR MPA situated beyond 200 nm from the coast.73 Success in achieving the integrated, cross-sec­toral ecosystem-based ocean management objectives of this MPA is likely to require coordination and coopera­tion between the OSPAR Commission with, inter alia, NEAFC, IMO and ISA. Cooperation with NEAFC on this issue has already taken place. Another indication of the strengthening cooperation between the two organiza­tions is the OSPAR/NEAFC Memorandum of Under­standing (MOU) that entered into force in 2008.74

2.5.7. Assessments, including EIA and SEA

Article 6 of the OSPAR Convention contains a general obligation to collaborate in regular joint monitoring and assessment of the quality of the marine environment in the North East Atlantic. Annex IV elaborates this by providing specific requirements on cooperation in monitoring programs, joint quality assurance arrange­ments, the development of scientific assessment tools, such as modeling, remote sensing and risk assessment strategies, and the preparation of assessments. These requirements are closely linked to the monitoring and assessment requirements for the maritime activities that are covered by each of the other Annexes to the Conven­tion. The Strategy for the Joint Assessment and Monitor­ing Programme sets out the basis on which the OSPAR Contracting Parties will work together in fulfilling these obligations over the period until 2010.75 The OSPAR Biodiversity Committee is currently conducting a review of existing arrangements to establish whether they adequately cover transboundary and cumulative impacts other than environmental impacts.

The OSPAR Convention does not establish a separate (transboundary) EIA or SEA procedure. However, sever­al provisions in the Annexes to the OSPAR Convention de facto require EIAs for certain human activities such as dumping or offshore hydrocarbon activities. Moreo­ver, the monitoring and assessment programs under the OSPAR Convention clearly contribute to assessing whether existing and new activities have significant adverse impacts on marine biodiversity in the North East Atlantic.

2.6. Sectoral Governance and Regulation of the Marine Arctic

2.6.1. Introduction

This section focuses on sectoral governance and regula­tion of the marine Arctic. So far, only a concise over­view of fisheries management, shipping and offshore hydrocarbon activities has been incorporated. Other sectors that could be covered are:

• Pollution by dumping

• Land-based pollution

• Conservation and management of marine mammals

• Marine scientific research

Note, however, that subsections 2.5.3 and 2.5.4 devote some attention to pollution by dumping and marine scientific research and that subsection 2.8 lists some relevant global, regional and bilateral agreements relating to the conservation and management of marine mammals.

2.6.2. Fisheries management

All the global legally binding and non-legally binding instruments related to fisheries conservation and man­agement are also applicable to marine areas in the Arc­tic, however defined. The most important ones are the LOS Convention, the Fish Stocks Agreement, the FAO Compliance Agreement,76 the FAO Code of Conduct for Responsible Fisheries,77 and its Technical Guidelines, international plans of action (IPOAs) – for instance the IPOA-IUU78 – and the Model Scheme on PSM79 and Resolutions of the United Nations General Assembly (UNGA), among other things on driftnets and destruc­tive fishing practices80. Moreover, all marine areas of the Arctic also fall in principle within the competence of the bodies established by these instruments or that are responsible for adopting them.

At the regional level, there are a number of RFMOs and bilateral or regional organizations/arrangements whose spatial scope overlaps to some extent with the Arctic marine area. These are:

• the International Commission on the Conservation of Atlantic Tunas (ICCAT), established by the ICCAT Convention81

• the bilateral (Canada and the United States) Interna­tional Pacific Halibut Commission (IPHC), estab­lished by the IPHC Convention82

• the bilateral (Russian Federation and the United States) Intergovernmental Consultative Committee (ICC), established by the Agreement on Mutual Fish­eries Relations83

• the Northwest Atlantic Fisheries Organization (NAFO), established by the NAFO Convention.84 Its main regulatory body is the NAFO Fisheries Com­mission

• the North Atlantic Salmon Conservation Organization (NASCO), established by the NASCO Convention85

• the North-East Atlantic Fisheries Commission (NEAFC), established by the NEAFC Convention86

• the North Pacific Anadromous Fish Commission (NPAFC), established by the NPAFC Convention87

• the Norway-Russian Federation Fisheries Commis­sion (governed and established by the 1975 Frame­work Agreement,88 the 1976 Mutual Access Agree­ment89 and the 1978 Grey Zone Agreement90) and the trilateral Loophole Agreement and Protocols91

• the Western and Central Pacific Ocean Fisheries Commission (WCPFC), established by the WCPFC Convention92

• the Yukon River Panel of the bilateral (Canada and the United States) Pacific Salmon Commission (PSC), established by the Pacific Salmon Treaty93

• the annual Conference of Parties (CoP) to the CBS Convention94

The Arctic Council has so far not focused on the conser­vation and management of target species and also lacks any express mandate for conserving or managing Arctic fisheries. The Arctic Council can at any rate not be equated with an RFMO or Arrangement. In view of the discussion at the meeting of SAOs in November 2007,95 there is currently considerable opposition within the membership of the Arctic Council against it becoming actively involved in fisheries management and conserva­tion.

In some parts of the Arctic marine area, for instance the North Atlantic, national regulation is expected to be extensive and relate to all or most of the relevant capaci­ties in which states can exercise jurisdiction, namely as flag, coastal, port and market states and with regard to their natural and legal persons. In other parts of the marine Arctic, the presence of ice for most of the year has up until now rendered national fisheries regulation for those areas unnecessary. However, as diminishing ice-coverage will attract fishing vessels looking for pos­sible new fishing opportunities, Arctic states will have to develop national regulation for such areas in order to discharge their obligations under international law. The United States is currently engaged in this process with regard to fishing in the maritime zones off Alaska north of the Bering Strait.96

2.6.3. Shipping

Introduction

International regulation of vessel-source pollution is primarily done by global bodies and in particular within the IMO. This is a direct consequence of the global nature of international shipping and the interest of the international community in globally uniform interna­tional regulation. The LOS Convention safeguards the latter interest by only allowing unilateral coastal state prescription in a few situations. The regional bodies or groupings of states that nevertheless exercise prescrip­tive or enforcement jurisdiction over vessel-source pol­lution commonly do this in their capacities as flag states or port states. For instance, Annex IV, entitled ‘Preven­tion of Marine Pollution’ of the Environmental Protocol to the Antarctic Treaty97 is largely a flag state approach98 and regional agreements on port state control such as the Paris MOU99 and the Tokyo MOU100 are examples of a port state approach.

LOS Convention

Most of the LOS Convention’s provisions on vessel-source pollution are laid down in Part XII, entitled ‘Pro­tection and Preservation of the Marine Environment’. Section 1 of Part XII, entitled ‘General Provisions’, applies to all sources of pollution. These sources are:

• Pollution from land-based sources

• Pollution from seabed activities subject to national jurisdiction

• Pollution from activities in the Area

• Pollution by dumping

• Pollution by vessels

• Pollution from or through the atmosphere

Section 1’s first provision – Article 192 – lays down the general obligation for all states, in whatever capacity therefore, “to protect and preserve the marine environ­ment”. This is elaborated in Article 194 with regard to measures to prevent, reduce and control pollution of the marine environment; aimed specifically at vessel-source pollution in paragraph (3)(b). Other relevant general obligations relate to rare or fragile ecosystems and the habitat of endangered species (Article 194(5)), introduc­tion of alien species (Article 196), co-operation on a global or regional basis (Article 197), contingency plans against pollution (Article 199), monitoring of the risks or effects of pollution (Article 204) and assessment of potential effects of activities (Article 206). Sections 5 and 6 contain separate provisions on prescription and enforcement for each of the sources of pollution.

The jurisdictional framework relating to vessel-source pollution laid down in the LOS Convention is predomi­nantly aimed at flag and coastal states. Apart from one explicit provision (Article 218), port state jurisdiction is only dealt with implicitly. As a general rule, prescrip­tive jurisdiction by flag and coastal states is linked by means of rules of reference to the notion of ‘generally accepted international rules and standards’ (GAIRAS). These are the technical rules and standards laid down in instruments adopted by regulatory organizations, in particular IMO. It is likely that the rules and standards laid down in legally binding IMO instruments that have entered into force can at any rate be regarded as GAIRAS.101The LOS Convention stipulates that flag state prescriptive jurisdiction over vessel-source pollu­tion is mandatory and must have at least the same level as GAIRAS.102 Coastal state prescriptive jurisdiction over vessel-source pollution is optional under the LOS Convention but, if exercised, cannot be more stringent than the level of GAIRAS.103 This is the general rule even though it is subject to some exceptions. Canada and the Russian Federation rely on one of these – Article 234, entitled ‘Ice-covered areas’ – to prescribe standards that are more stringent than generally accepted interna­tional rules and standards (GAIRAS). It should be noted, however, that the LOS Convention gives no guidance as to whether the regime of transit passage – for straits used for international navigation – trumps the regime of Article 234 or vice versa.

IMO

IMO’s mandate relates to (i) vessel-source pollution, (ii) maritime safety and (iii) maritime security. In view of this report’s objective, the latter two spheres of com­petence are in principle not relevant. However, IMO rules and standards that are primarily aimed at ensuring maritime safety and security are still taken into account if they have a significant subsidiary purpose of pollution prevention. In view of the jurisdictional framework for vessel-source pollution laid down in the LOS Conven­tion and the types of standards agreed to within IMO so far, the following categories of substantive standards or requirements can be distinguished:

• discharge and emission standards, including standards relating to ballast water exchange

• construction, design, equipment and manning (CDEM) standards, including fuel content specifica­tions and ballast water treatment requirements

• navigation standards, in the form of ships’ routeing measures, ship reporting systems (SRSs) and vessel traffic services (VTS)

• contingency planning and preparedness standards

• liability and insurance requirements

These types of standards are laid down in a large number of legally binding and non-legally binding in­struments.

Apart from the Arctic Shipping Guidelines, all these legally binding and non-legally binding instruments have a global scope of application and therefore apply in principle to the entire marine Arctic.116 Neverthe­less, in varying ways most of other these instruments also allow for the adoption of more stringent measures in specified geographical areas. As explained below, this is very explicit for MARPOL 73/78 which contains – in addition to CDEM standards – also discharge and emission standards. The BWM Convention is the only other IMO instrument that contains discharge standards. Below some attention is given to MARPOL 73/78, the BWM Convention, the Arctic Shipping Guidelines and the PSSA Guidelines.

MARPOL 73/78

The Annexes to MARPOL 73/78 contain discharge standards for oil (Annex I), noxious liquid substances (Annex II), sewage (Annex IV) and garbage (Annex V) and emission standards for ozone depleting substances, nitrogen oxides (NOx), sulphur oxides (SOx) and vola­tile organic compounds (VOCs) (Annex VI). Annexes I, II and V make use of so-called ‘special areas’ where more stringent discharge standards apply. Annex VI currently uses so-called ‘SOx Emission Control Areas’, but this will be broadened with ‘particulate matter’ and NOx.117 Rather than emission standards, SOx Emis­sion Control Areas have maximum limits of the sulphur content in fuel and requirements relating to exhaust gas cleaning systems, which should either be regarded as CDEM standards or must be treated as analogous with them. No part of the Arctic marine area currently falls within either a special area or a SOx Emission Control Area. By contrast, the Antarctic area has been desig­nated as a special area under Annexes I, II and V and the special discharge standards therein are currently also in effect.118 Specific criteria and procedures have been developed for the designation of special areas and SOx Emission Control Areas.119

BWM Convention

The BWM Convention stipulates that vessels using the ballast water exchange method should not discharge ballast water within 200 nm from the nearest land or in waters less than 200 meters deep and must meet an efficiency of at least 95% volumetric exchange.120 The BWM Convention allows states individually or in concert to regulate more stringently above the minimum ballast water exchange level laid down in the Conven­tion.121

Arctic Shipping Guidelines

The only IMO instrument that is specifically tailored to the Arctic is the non-legally binding IMO Arctic Ship­ping Guidelines. These are currently under revision and may eventually become applicable to the Antarctic as well.122 The current IMO Arctic Shipping Guidelines contain only CDEM standards and no discharge, emis­sion, navigation or contingency123 standards, or liability or insurance requirements. However, several CDEM standards are explicitly aimed at preventing or control­ling vessel-source pollution. It is also noteworthy that the Guidelines only apply to international voyages and follow the definition of ‘ship’ used in SOLAS 74, which excludes for instance fishing and cargo vessels below a certain size or length and all naval vessels. It should be noted that the Unified Requirements concerning Polar Class124 developed by the International Association of Classification Societies (IACS) complement the Arctic Shipping Guidelines and other relevant IMO instru­ments. Several provisions of the Guidelines contain linkages with the IACS Unified Requirements concern­ing Polar Class.125

PSSA Guidelines

Designation of an area as a PSSA pursuant to the IMO’s PSSA Guidelines does not bring about regulation of shipping within that area as such. This requires adoption of one or more associated protective measures (APMs). Attention can in this context be drawn to the possibility to have special discharge standards within PSSAs (other than by means of designation as special area under MARPOL 73/78) and “other measures aimed at protect­ing specific sea areas against environmental damage from ships, provided that they have an identified legal basis”.126 Innovative standards are therefore not ruled out.

Bilateral and regional agreements

Arctic states have also adopted several relevant bilat­eral and regional instruments on contingency planning and preparedness for spills of oil and other hazardous substances. These are:

• the 1983 bilateral agreement between Canada and Denmark,127 which relates to the prevention, reduction and control of pollution of the marine environment resulting from activities within the area covered by the agreement, including pollution incidents resulting from shipping128

• the 1988 bilateral agreement between Canada and the United States,129 by which, inter alia, the “Govern­ment of the United States pledges that all navigation by U.S. icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada”130

• the 1992 bilateral Agreement between Norway and the Russian Federation on Cooperation in Envi­ronmental Matters,131pursuant to which the Joint Norwegian-Russian Commission on Environmental Protection operates. Its Working Group on Protec­ tion of the Marine Environment – established in 2005 – has to a certain degree dealt with issues related to transshipment of oil at sea, but not as one of its main themes.132 Its predecessor – the Working Group on Marine Protection – dealt among other things with the implementation of a 1994 bilateral Agreement133, 134. The Russian Federation has recently proposed estab­lishing a new working group on ‘Ecological Safety re­garding Marine Transportation of Oil along the coasts of Norway and Russia’. This proposal may have been discussed at the Commission meeting in November/ December of 2009135

• the 1993 Nordic Agreement.136 The Nordic Agreement deals with a range of measures, including monitoring maritime zones and abatement in case of pollution incidents

• the 1994 bilateral Agreement between Norway and the Russian Federation Concerning Cooperation on the Combating of Oil Pollution in the Barents Sea,137 containing requirements on notification and contin­gency planning

• the Joint Contingency Plan of the United States and the Russian Federation on Combating Pollution in the Bering and Chukchi Seas138

• the Canada-United States Joint Marine Contingency Plan,139 which provides for a coordinated system for planning, preparedness, and responding to harm­ful substance incidents in the contiguous waters of Canada and the United States. This plan is supported by five geographic annexes

Arctic Council

All relevant output of the Arctic Council is non-legally binding and predominantly originates from within the Protection of the Arctic Marine Environment (PAME) and Emergency, Prevention, Preparedness and Response working group (EPPR) working groups. Among the main output are:

• Guidelines for Transfer of Refined Oil and Oil Prod­ucts in Arctic Waters (TROOPS)

• Arctic Guide for Emergency Prevention, Preparedness and Response

• Field Guide for Oil Spill Response in Arctic Waters

PAME is currently engaged in the Arctic Marine Ship­ping Assessment (AMSA), which is to be released at the Arctic Council Ministerial Meeting in April 2009 in Norway.

2.6.4. Offshore hydrocarbon activities

At the global level, there is currently no instrument for the comprehensive regulation of offshore hydrocarbon activities and also no global regulatory or governance body with such a mandate. Nevertheless, there are four sources for limited global and regional regulation.140 First, as hydrocarbons are included within the broad def­inition of ‘resources’ in Article 133(a) of the LOS Con­vention,141offshore hydrocarbon activities in the Area have to be in accordance with the relevant provisions of the LOS Convention142 and regulations adopted by the ISA. A second source for limited global regulation is contained in MARPOL 73/78, which includes ‘fixed or floating platforms’ in its definition of ‘ship’.143 As a consequence, the discharge and emission standards are in principle applicable to offshore installations as well. Third, at the regional level, regulation is pursued by means of the OSPAR Convention and the OSPAR Com­mission established by it.144 Finally, reference should be made to the International Regulators’ Forum, whose efforts are aimed at health and safety standards in the offshore oil and gas industry. Its members are domestic regulatory authorities from nine different states.145

LOS Convention

The limited global and regional regulation is comple­mented by the relevant provisions of the LOS Conven­tion. These are the general provisions in Sections 1–4 of Part XII that apply to all sources of marine pollution (discussed in subsection 2.6.3) as well as the provisions on individual sources of pollution; in this case ‘Pollution from seabed activities subject to national jurisdiction’. These provisions thus apply exclusively to the continen­tal shelves of coastal states. Section 5 (prescription) and Section 6 (enforcement) each contain one single provi­sion on this source of pollution. Article 208, included in Section 5, stipulates:

1. Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to articles 60 and 80.

2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.

3. Such laws, regulations and measures shall be no less effective than international rules, standards and rec­ommended practices and procedures.

4. States shall endeavour to harmonize their policies in this connection at the appropriate regional level.

5. States, acting especially through competent interna­tional organizations or diplomatic conference, shall establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environ­ment referred to in paragraph l. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

Much of the wording in this provision is similar to the corresponding provisions for other sources of pollu­tion. The obligations in paragraphs (1) and (2) are very general even though not qualified. Moreover, the strong linkage to international rules in paragraph (3) by means of the phrase “shall be no less effective” is seriously weakened due to the fact that there are no global rules, standards and recommended practices and procedures apart from those laid down in MARPOL 73/78. This contrasts markedly with the abundance of rules and standards in the sphere of vessel-source pollution. The regional rules adopted by the OSPAR Commission are allowed pursuant to paragraph (5).

Article 214 on enforcement, included in Section 6, is a very straightforward provision obliging coastal states to exercise enforcement jurisdiction.

While these provisions above all approach the issue from the perspective of obligations, the LOS Convention explicitly confers on coastal states within their EEZs jurisdiction for “the protection and preservation of the marine environment”.146 As regards the outer continental shelf, it is generally accepted that the sovereign rights of coastal states over their continental shelves also entitle it to associated jurisdiction. Even though Article 77 does not mention the coastal state’s jurisdiction for the pur­pose of conservation or the protection and preservation of the marine environment, such jurisdiction would be implied if it would be exercised in relation to offshore hydrocarbon activities.147

Other bilateral, regional and global instruments

Even though they do not purport to directly regulate offshore hydrocarbon activities, the following bilateral, regional and global instruments are relevant as well:

• the 1983 bilateral agreement between Canada and Denmark,148 which – in addition to contingency planning149 – also contains a very broad but also very general provision on, inter alia, the construction and operation of installations in order to minimize marine pollution.150 Unlike the OSPAR Convention, however, this bilateral agreement does not establish a body to implement this in more detail

• the 1993 Nordic Agreement151

standards in the sphere of vessel-source pollution. The regional rules adopted by the OSPAR Commission are allowed pursuant to paragraph (5).

Article 214 on enforcement, included in Section 6, is a very straightforward provision obliging coastal states to exercise enforcement jurisdiction.

While these provisions above all approach the issue from the perspective of obligations, the LOS Convention explicitly confers on coastal states within their EEZs jurisdiction for “the protection and preservation of the marine environment”.146 As regards the outer continental shelf, it is generally accepted that the sovereign rights of coastal states over their continental shelves also entitle it to associated jurisdiction. Even though Article 77 does not mention the coastal state’s jurisdiction for the pur­pose of conservation or the protection and preservation of the marine environment, such jurisdiction would be implied if it would be exercised in relation to offshore hydrocarbon activities.147

Other bilateral, regional and global instruments

Even though they do not purport to directly regulate offshore hydrocarbon activities, the following bilateral, regional and global instruments are relevant as well:

• the 1983 bilateral agreement between Canada and Denmark,148 which – in addition to contingency planning149 – also contains a very broad but also very general provision on, inter alia, the construction and operation of installations in order to minimize marine pollution.150 Unlike the OSPAR Convention, however, this bilateral agreement does not establish a body to implement this in more detail

• the 1993 Nordic Agreement151

• the 1992 and 1994 bilateral agreements between Nor­way and the Russian Federation152. Among the main activities of the Working Group on Protection of the Marine Environment are the environmental regulation of the hydrocarbon industry153

• the Joint Contingency Plan of the United States and the Russian Federation on Combating Pollution in the Bering and Chukchi Seas154

• the Canada-United States Joint Marine Contingency Plan155

• OPRC 90 and its 2000 HNS Protocol,156 which apply both to vessels and offshore installations

Arctic Council

The key instrument relating to offshore hydrocarbon activities of the Arctic Council are the ‘Arctic Offshore Oil and Gas Guidelines’. A first version of the guidelines was adopted in 1997, a second in 2002 and the PAME working group is currently undertaking its third revision, due to be completed in 2009. The guidelines contain recommended practices for the regulation of offshore hydrocarbon activities, including transportation and on­shore activities that are an integrated part of the offshore activity in the Arctic.157 In addition to specifying goals, the Guidelines also recommend offshore hydrocarbon activities to be based on the precautionary approach, the polluter-pays principle and the principle of sustainable development.158 The guidelines document has separate chapters on EIAs, interests that are to be taken into account (e.g. indigenous peoples, biodiversity), safety and environment management, monitoring, operating practices,159 emergencies and decommissioning and site clearance.

Finally, in addition to the output of the Arctic Council listed in subsection 2.6.3, reference can be made to the EPPR’s ‘Environmental Risk Analysis of Arctic Activi­ties Protocol, which has not yet entered into force.162 Of the Arctic states, Finland, Norway and Sweden have consented to be legally bound by the Protocol and Denmark has signed it. The Protocol focuses on creat­ing national SEA procedures but also stipulates rules by which transboundary SEA is to be organized in certain cases of transboundary environmental effects.163 The Protocol was largely inspired by the SEA Directive of the EC,164 which also contains a provision on trans­boundary consultations.165 Both the SEA Directive and the SEA Protocol explicitly apply to offshore hydrocar­bon exploitation.166 At the moment, the transboundary SEA procedure has little potential in the Arctic since four Arctic states have not even signed the Protocol and the Protocol has not yet entered into force. However, by means of the EEA Agreement, the SEA Directive cur­rently applies, in addition to the EU members Finland, Sweden and Denmark, also to Iceland and Norway.167

Other instruments

The Espoo Convention establishes a legal basis for transboundary EIA between those five Arctic states that are party to it. There are also other treaties that provide for transboundary EIA procedures between Arctic states. There are also quite a few other applicable conventions and other instruments between the eight Arctic states that provide for a transboundary EIA type of proce­dure,168 for instance between Nordic states,169 between Alaska-Yukon border)170 and between Canada and Den­mark171.

There are also global treaties that apply throughout most of the Arctic (except for the United States) and contain a transboundary EIA, which covers also the po­tential damage to global commons but is worded in such a way that may even question their legal status. A good example is the CBD, which imposes a highly qualified obligation on contracting states “as far as possible and as appropriate” to promote and encourage conclusion of multilateral and bilateral arrangements on transbound­ary EIA. It is nevertheless important that the CBD encourages states to extend such transboundary EIAs to planned activities which are likely to significantly affect the biological diversity in areas beyond national jurisdic­tion.172 A stronger obligation is contained in Article 206 of the LOS Convention (see below).

There are also (maritime) borders that are not covered by any type of transboundary EIA, such as those be­tween the Russian Federation and the United States and the Russian Federation and its Nordic neighbours. How­ever, the 1992 Convention on the Transboundary Effects of Industrial Accidents173 provides for a transboundary EIA procedure between the Russian Federation and its Nordic neighbours in situations where it applies.174 Unfortunately, it does not provide transboundary EIA for offshore hydrocarbon activities since the conven­tion does not explicitly apply to “(f) accidents caused by Alaska-Yukon border)170 and between Canada and Den­mark171.

There are also global treaties that apply throughout most of the Arctic (except for the United States) and contain a transboundary EIA, which covers also the po­tential damage to global commons but is worded in such a way that may even question their legal status. A good example is the CBD, which imposes a highly qualified obligation on contracting states “as far as possible and as appropriate” to promote and encourage conclusion of multilateral and bilateral arrangements on transbound­ary EIA. It is nevertheless important that the CBD encourages states to extend such transboundary EIAs to planned activities which are likely to significantly affect the biological diversity in areas beyond national jurisdic­tion.172 A stronger obligation is contained in Article 206 of the LOS Convention (see below).

There are also (maritime) borders that are not covered by any type of transboundary EIA, such as those be­tween the Russian Federation and the United States and the Russian Federation and its Nordic neighbours. How­ever, the 1992 Convention on the Transboundary Effects of Industrial Accidents173 provides for a transboundary EIA procedure between the Russian Federation and its Nordic neighbours in situations where it applies.174 Unfortunately, it does not provide transboundary EIA for offshore hydrocarbon activities since the conven­tion does not explicitly apply to “(f) accidents caused by Conventiontions in the Arctic.177 Yet, according to a recent assess­ment, the EIA Guidelines have not influenced how EIAs are conducted in the Arctic.178

2.7.3. EIA and SEA in areas beyond national jurisdiction

Article 209 of the LOS Convention governs pollution from activities in the Area, and also lays out obligations to establish EIA and SEA procedures. Its first paragraph reads:

International rules, regulations and procedures shall be established in accordance with Part XI to prevent, reduce and control pollution of the marine environ­ment from activities in the Area. Such rules, regula­tions and procedures shall be re-examined from time to time as necessary.

Part XI provides rules for adopting norms in the case of pollution from activities in the Area. Article 145 of the LOS Convention requires measures to be taken in order to ensure effective environmental protection from activities taking place in the Area. The ISA is required to adopt rules and procedures for the prevention of pol­lution to the marine environment and for conserving the natural resources of the Area.179

The Part XI Deep-Sea Mining Agreement is of importance here, especially paragraph 7 of Section 1 of its Annex. The plans of work submitted by the quali­fied applicants must specify two sites of equal estimated commercial value, one of which must be reserved for the exploitation by the Enterprise of the Authority for a cer­tain period of time. In all cases, the Legal and Technical Commission of the ISA is the first body to examine the proposed plan. If the Commission recommends approval to the Council, which decides these issues, the plan is, as a rule, approved unless specific grounds are adduced for rejecting it.180 Moreover, paragraph 7 of Section 1 stipulates:

An application for approval of a plan of work shall be accompanied by an assessment of the potential environmental impacts of the proposed activities and by a description of a programme for oceanographic and baseline environmental studies in accordance with the rules, regulations and procedures adopted by the Authority.

Clearly, these assessments must be of a wide scope since Article 145 requires preventive measures with re­gard to all areas of the marine environment, both within and beyond national jurisdiction. Since the envisaged exploitation of the deep sea-bed has thus far been mainly confined to polymetallic nodules181, the Assembly of the ISA has approved the ‘Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area’,182 which contain rules on EIA as well as on environmental protection.183 The Authority is currently working on ad­ditional regulations on prospecting and exploration for cobalt-rich crusts and polymetallic sulphides.

Second, the deep-sea bed regime of the LOS Con­vention – as modified by the Part XI Deep-Sea Mining Agreement – ensures that not only the ISA but also states parties are obligated to protect the environment from activities taking place in the Area. According to Article 209(2), states parties are required to adopt regu­lations to prevent pollution of the marine environment from activities in the Area undertaken by a state. These regulations must be as strict as the ones adopted by the ISA.184

Even when technology develops to make commercial use of these minerals in the Area, these provisions have only marginal relevance in the Arctic. As was argued above, there will not likely be much Area left after the Arctic Ocean coastal states have enacted the outer limits of their continental shelves on the basis of the recom­mendations provided by the CLCS.

More pertinent normative development from the Arctic perspective relates to the process within the CBD to develop scientific guidance for EIAs and SEAs in case of activities which may have a significant adverse impact on marine biodiversity beyond national jurisdic­tion – a task for which a working group was created at the 9th Conference of the Parties (CoP). The most recent CoP decided, in line with Article 14(1)(c) of the CBD, to:

8. Invite Parties, other Governments and relevant organizations, including in the context of the United Nations 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, to cooperate in further developing scientific and technical guidance for the implementation of environmental impact assessments and strategic environmental assessments for activities and processes under their jurisdiction and control which may have significant adverse impacts on marine biodiversity beyond national jurisdiction, taking into consideration the work of Food and Agriculture Organization of the United Na­tions, the International Maritime Organization, and other relevant organizations, with a view to ensuring such activities are regulated in such a way that they do not compromise ecosystem integrity, and to report to the Conference of the Parties at its tenth meeting on progress made in that regard;

10. For the purpose of paragraphs 8 and 9 of the present decision, taking into account the relevant provisions of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity, decides to convene an expert workshop, including experts from different relevant organiza­tions, with balanced regional and sectoral represen­tation, to discuss scientific and technical aspects relevant to environmental impact assessment in areas beyond national jurisdiction with a view to contributing to the development of such scientific and technical guidance, building on ongoing relevant sectoral, regional and national environmental impact assessment efforts;185

Finally, reference can also be made to the initiatives under the purview of the UNGA, as described in subsec­tion 3.3.5.

2.7.4. Representative networks of MPAs

There is currently no universally accepted definition for the term ‘marine protected area’ (MPA). However, the definition of an MPA adopted by the International Union for Conservation of Nature (IUCN) is the most widely used. This reads:

Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment.186

The essence of this broad definition is that MPAs have a special status in comparison with the surrounding area due to their more stringent regulation of one of more hu­man activities (e.g. shipping or fishing) by one or more measures (e.g. prohibition of anchoring or bottom trawl­ing) for one or more purposes (e.g. preservation of habi­tats, conservation of target species or marine scientific research). It is important to note that the identification of an area as an MPA does not necessarily mean that all hu­man activities are prohibited whatsoever. This can, inter alia, be deduced from the different IUCN categories of protected areas.187 For these reasons, some instruments and fora prefer terms such as ‘area-based management tools’188 or ‘spatial measures’. The remaining discussion uses these terms interchangeably.

Under the current international law of the sea, coastal states have various options for establishing spatial meas­ures for various purposes that do not require the sup­port of, or approval by, other states. Fishing or whaling within its maritime zones or shipping within ice-covered areas are examples.189 In other scenarios, however, coastal states must seek approval from the competent in­ternational organization, for instance IMO in relation to special areas under MARPOL 73/78. With regard to ar­eas beyond national jurisdiction, a wide range of global, regional and bilateral instruments already provide for the designation of spatial measures with more stringent regulation therein, albeit only sectorally. A good exam­ple are the spatial measures (e.g. closed areas) adopted by RFMOs.

Besides a coastal state capacity, states can also rely on other capacities for establishing spatial measures and regulating human activities therein. These are its capacity as a flag state or with regard to its natural or legal persons. Nothing under general international law prevents in principle states from restricting the activi­ties of its vessels or natural and legal persons in certain areas beyond national jurisdiction or the maritime zones of other states.190 This becomes different when such states – acting individually or collectively – exert pressure on vessels or natural or legal persons of other states to comply with such restrictions. It should in this context be noted that the mandates and legitimacy of the IMO and RFMOs are in principle beyond doubt and their spatial measures are therefore capable – at least potentially – of affecting the rights and freedoms of third states, even if not through non-flag enforcement on the high seas. By contrast, the current international legal framework relating to areas beyond national jurisdiction lacks both a mandate and a process for the designation of integrated MPAs as well as for the regulation of all human activities therein, for the purpose of the conser­vation and sustainable use of marine biodiversity.191In the absence of these, designation of MPAs in areas beyond national jurisdiction and regulation of activities therein lack legitimacy and make interference with the freedoms of the high seas by third states unjustifiable, except if interference is based on rights under customary international law.

Support for the need for integrated MPAs in areas beyond national jurisdiction is growing. The 9th CoP to the CBD in May 2008 adopted scientific criteria for identifying areas in need of protection in open-ocean waters and deep-sea habitats as well as scientific guid­ance for designing representative networks of MPAs and agreed to convene an expert workshop that will provide guidance to Parties and the United Nations on identify­ing important areas that need protection in areas beyond national jurisdiction as well as on the use and further development of biogeographic classification systems.192 Despite these positive developments, however, there is no consensus in the international community yet on the process of designation of such MPAs and the regulation of human activities therein. States that support the EU proposal for an Implementation Agreement to the LOS Convention193 probably see integrated MPAs in areas beyond national jurisdiction as one of its main elements. Reference can also be made here to the test-case pro­posal for an OSPAR MPA discussed in subsection 2.5.6.

So far, the discussion has been focused on the right of states to designate MPAs and regulate human activities therein. It is submitted, however, that various non-legal­ly binding and legally binding international instruments contain obligations and commitments with regard to MPAs. One of the targets of the JPOI194 is, for instance

the establishment of marine protected areas consist­ent with international law and based on scientific information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods195

In addition, Article 8(a) of the CBD requires contracting parties to establish a system of MPAs for the purpose of the conservation of biodiversity within areas under national jurisdiction, even though this obligation is qualified by the phrase “as far as possible and as ap­propriate”. Moreover, the obligations under the LOS Convention and the Fish Stocks Agreement in relation to over-exploitation, associated and dependent species, rare and fragile ecosystems and the preservation of marine biodiversity will in various scenarios require a state to designate MPAs and regulate human activities therein.

As regards the Arctic Council, mention can be made of the Circumpolar Protected Areas Network (CPAN) developed by CAFF. While this initiative seems to have contributed to the establishment of protected areas in the Arctic, most of these are terrestrial. Moreover, PAME’s AMSP explicitly promotes the establishment of MPAs, including representative networks,196 but this does not seem to have had a follow-up.

2.7.5. Integrated, cross-sectoral ecosystem-based ocean management

There is currently no universally accepted definition for the term ‘integrated, cross-sectoral ecosystem-based ocean management’.197 Nevertheless, the different words included in the term indicate a holistic approach which takes due account of spatial dimensions, processes and relationships within ecosystems.198 It is also submitted that integrated, cross-sectoral ecosystem-based ocean management operates at a higher hierarchical level than sectoral ecosystem-based management, for instance ecosystem-based fisheries management or an ecosys­tem approach to fisheries (EAF).199 Moreover, sectoral ecosystem-based management can also be pursued in the absence of an overarching integrated approach. Neither the LOS Convention nor any other global instru­ment contains a legally binding obligation to pursue it. However, various non-legally binding commitments to pursue ecosystem-based ocean management exist at the global level.200 Reference can also be made to the discussion in subsection 3.3.5.

As regards the Arctic Council, it is also noteworthy that integrated management of resources and ecosystem-based management feature prominently in the program of the Norwegian chairmanship of the Arctic Council (2006–2008) and in the Norwegian, Danish and Swedish common objectives for their Arctic Council chairman­ships 2006–2012.201Other relevant activities within the framework of the Arctic Council are:

• ‘Best Practices in Ecosystems Based Oceans Man­agement’ (BePoMAR), a joint project by PAME and SDWG that will report on countries’ approaches to ecosystem-based oceans management and look at progress towards the World Summit on Sustainable Development goals to implement sustainable integrat­ed ecosystem management. The outcome in the form of a report is expected by October 2008

• the ‘Circumpolar Map of Resources at Risk from Oil Spills in the Arctic’ developed by EPPR

• the large marine ecosystems (LMEs) of the Arctic marine area developed by PAME

As regards the Arctic marine area more in general, reference can be made to the following:

• the pursuance of the ecosystem approach by the OS­PAR Commission202

• the large overlap between the spatial competence of the OSPAR Commission, NEAFC and ICES and the test-case proposal for an OSPAR MPA discussed in subsection 2.5.6.

• the efforts on integrated management of the marine environment by the Working Group on Protection of the Marine Environment under the Joint Norwegian-Russian Commission on Environmental Protection203

• the ‘Integrated Management of the Marine Environ­ment of the Barents Sea and the Sea Areas off the Lofoten Islands (Management Plan)’,204 adopted by the Norwegian Parliament in 2006. It does not extend beyond the maritime zones of Norway

2.8. Other relevant global, regional and bilateral agreements

While the preceding sections have covered most of the global, regional and bilateral agreements that are relevant to the Arctic marine area, they are by no means complete. Reference can here be made to a broad overview study by Nowlan.205 It is submitted, however, that most of the framework and regulatory instruments relating to the Arctic marine area and relevant in view of the focus of this report,206 have been covered so far. Conversely, no discussion has yet taken place on the fol­lowing conventions:

• the Ramsar Convention207

• the World Heritage Convention208

• the CITES209

• the CMS210

• the Basel Convention211

As regards marine mammals, the following are rel­evant international instruments:

• the ICRW212

• the regional NAMMCO Agreement,213 which estab­lished the North Atlantic Marine Mammal Commis­sion (NAMMCO) and provides a framework for co­operation among its four parties for the conservation, rational management and study of marine mammals in the North Atlantic

• the regional Polar Bear Agreement214

• the 2000 bilateral agreement on polar bears between the Russian Federation and the United States215

• the bilateral Norway-Russian Federation Fisheries Commission,216 which also manages seals

• the Joint Commission on the Conservation and Management of Narwhal and Beluga established by Canada and Greenland by means of an Memorandum of Understanding217

As regards birds, reference can be made to a recent study.218

As regards marine scientific research, reference should be made to the International Council for the Exploration of the Sea (ICES), which coordinates and promotes marine scientific research and provides scien­tific advice with respect to the North Atlantic.219

3. Gap Analysis

3.1. Introduction

The purpose of this section is to identify the main governance

and regulatory gaps in the current international regime of the marine Arctic as described in section 2 in view of the current and future impacts of global climate change on the Arctic. For the purpose of this report, regulatory gaps and governance gaps are understood to mean the following:

‘Governance gaps’: gaps in the international institutional framework, including the absence of institutions or mechanisms at a global, regional or sub-regional level and inconsistent mandates of existing organizations and mechanisms.

‘Regulatory gaps’: substantive and/or geographical gaps in the international legal framework, i.e. issues which are currently unregulated or insufficiently regulated at a global, regional or subregional level.220

Not included in gaps defined as such are:

• the fundamental characteristics and limitations of international law such as its consensual nature and the pacta tertiis principle, meaning that no state can be bound against its will

• the shortcomings associated with the primacy of flag state jurisdiction over its vessels on the high seas

• relatively minor shortcomings that undermine the effectiveness

of existing rules, for instance insufficiently

stringent standards, limited enforcement powers and inadequate implementation

The structure of this section largely mirrors that of section

2. As a consequence, subsection 3.2 will focus on the Arctic Council and its constitutive instrument, followed

by subsection 3.3 on the current international law of the sea, subsection 3.4 on sectoral governance and regulation of the marine Arctic and, finally, subsection 3.5 on cross-sectoral issues.

3.2. Arctic Council and its Constitutive Instrument

The following seem to be the main gaps:

1. No legally binding obligations. The Ottawa Declaration

on the Establishment of the Arctic Council does not impose legally binding obligations on any of its participants and the Arctic Council is also not empowered

to do so.

2. Not an operational body. The Arctic Council is project-driven and is not empowered to impose legally binding obligations on any of its participants. While a number of useful non-legally binding guidelines

are produced within the framework of the Arctic Council, the impacts of these are difficult to determine given that the Council does not systematically evaluate

whether these are being followed.

3. Limited participation. The Arctic Council is quite unique due to the role it gives to the region’s Indigenous

peoples, but non-Arctic states can only obtain a status as observer. It could be argued that this is not a problem in view of the current role and powers of the Arctic Council, which do not directly affect the rights of non-Arctic states in the Arctic. On the other hand, it can also be argued that by giving the Arctic Council such a limited role and powers, the Arctic states have not discharged certain obligations under international law and thereby affect the rights and interests of other states and the international community.

4. No permanent independent secretariat.

5. No structural funding.

3.3. The Current International Law of the Sea

3.3.1. Introduction

Subsection 2.4 concludes that the current international law of the sea applies to the entire marine Arctic, however

defined. This is also emphasized by the five Arctic Ocean coastal states in the 2008 Ilulissat Declaration.221 Accordingly, as the “law of the sea” is an “extensive international legal framework”, they “therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean”.222 Conversely, they recognize the need for “appropriate measures” as a consequence of “developments in the Arctic Ocean”.223 In the less than a single page text that follows, reference is among other things made to the safety of navigation, vessel-source pollution and contingency planning and emergency response to incidents with shipping and offshore exploitation. Notably, no mention is made of international fisheries instruments, fisheries manage­ment in general or the need for integrated, cross-sectoral ecosystem-based management.

The ensuing discussion will focus on the need for regional implementation in subsection 3.3.2, non-par­ticipation by the United States in the LOS Convention in subsection 3.3.3, gaps in the Fish Stocks Agreement in subsection 3.3.4 and other gaps in subsection 3.3.5.

3.3.2. The need for regional implementation

By referring to the law of the sea as an “extensive international legal framework”, the Ilulissat Declaration implicitly acknowledges the need for implementation by international organizations. The LOS Conven­tion and the Fish Stocks Agreement are in many ways framework conventions that rely on implementation by means of concrete regulation at the global and regional levels through ‘competent’ or ‘appropriate’ international organizations. A pragmatic reason for implementation at the regional level is that it allows for taking proper account of various regional characteristics, for instance distributional ranges of fish stocks, spatial dimensions of marine ecosystems, maritime boundaries and relation­ships between states.

Shipping

In the sphere of maritime safety, maritime security and vessel-source pollution, the abovementioned implemen­tation mandate is mainly given to the IMO. As a conse­quence of the global nature of international shipping and the interest of the international community in globally uniform international regulation, the LOS Convention does not require or promote regional approaches to regulation. At the same time, however, Article 211(3) of the LOS Convention explicitly acknowledges the right of port states to prescribe – unilaterally or in concert – more stringent standards than GAIRAS. This provi­sion takes account of regional arrangements on port state legal regime to govern the Arctic Ocean”.222 Conversely, they recognize the need for “appropriate measures” as a consequence of “developments in the Arctic Ocean”.223 In the less than a single page text that follows, reference is among other things made to the safety of navigation, vessel-source pollution and contingency planning and emergency response to incidents with shipping and offshore exploitation. Notably, no mention is made of international fisheries instruments, fisheries manage­ment in general or the need for integrated, cross-sectoral ecosystem-based management.

The ensuing discussion will focus on the need for regional implementation in subsection 3.3.2, non-par­ticipation by the United States in the LOS Convention in subsection 3.3.3, gaps in the Fish Stocks Agreement in subsection 3.3.4 and other gaps in subsection 3.3.5.

3.3.2. The need for regional implementation

By referring to the law of the sea as an “extensive international legal framework”, the Ilulissat Declaration implicitly acknowledges the need for implementation by international organizations. The LOS Conven­tion and the Fish Stocks Agreement are in many ways framework conventions that rely on implementation by means of concrete regulation at the global and regional levels through ‘competent’ or ‘appropriate’ international organizations. A pragmatic reason for implementation at the regional level is that it allows for taking proper account of various regional characteristics, for instance distributional ranges of fish stocks, spatial dimensions of marine ecosystems, maritime boundaries and relation­ships between states.

Shipping

In the sphere of maritime safety, maritime security and vessel-source pollution, the abovementioned implemen­tation mandate is mainly given to the IMO. As a conse­quence of the global nature of international shipping and the interest of the international community in globally uniform international regulation, the LOS Convention does not require or promote regional approaches to regulation. At the same time, however, Article 211(3) of the LOS Convention explicitly acknowledges the right of port states to prescribe – unilaterally or in concert – more stringent standards than GAIRAS. This provi­sion takes account of regional arrangements on port state control, the first of which – the Paris MOU224 – had been established just before the adoption of the LOS Conven­tion.

It seems that Arctic Ocean coastal states and other Arctic states do not have special problems with the role and mandate of IMO.225 But at the same time they are not likely to preclude unilateral or collective action out­side IMO but in accordance with international law, for instance based on Article 234 of the LOS Convention or on a port state’s residual jurisdiction under customary international law, as inter alia acknowledged by Article 211(3) of the LOS Convention.

Fisheries management

As regards fisheries management, the LOS Convention obliges the relevant states to cooperate with respect to transboundary fish stocks and discrete high seas fish stocks but does not prescribe the form of cooperation.226 The Fish Stocks Agreement, however, stipulates that fisheries for straddling and highly migratory fish stocks are to be managed at the regional level through RFMOs or Arrangements. The duty to cooperate in relation to such transboundary fish stocks means in fact a duty to cooperate with the relevant RFMO or Arrangement.227 Arguably, this duty to cooperate with the relevant RFMO or Arrangement is already part of custom­ary international law and thereby entitles the relevant members or participants to take measures against (non-cooperating) non-members and non-participants that would otherwise be in violation of international law, for instance trade-related measures.228 The practice of RF­MOs on trade-related measures has at any rate not been challenged by means of the establishment of a dispute settlement procedure under the World Trade Organiza­tion.

RFMOs and Arrangements are to be established where these do not exist.229 Moreover, as a consequence of in particular bottom fisheries targeting deep-sea fish species – which are often discrete high seas fish stocks – there is broad support in the international community to ensure that all areas beyond national jurisdiction are covered by RFMOs or Arrangements. Such cover­age would ensure that all target fisheries fall within the Enclosed or semi-enclosed seas

The LOS Convention also contains a separate Part IX, titled “Enclosed or Semi-Enclosed Seas”. It consists of Article 122, containing a definition of the term “en­closed or semi-enclosed sea”, and Article 123, entitled “Cooperating of States bordering enclosed or semi-en­closed seas”. Article 123 reads:

States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeav­our, directly or through an appropriate regional organization:

(a) to coordinate the management, conservation, ex­ploration and exploitation of the living resources of the sea;

(b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;

(c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area;

(d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.

Two comments are offered here. First, it is not evident that the Arctic Ocean would fall within the definition of an ‘enclosed or semi-enclosed sea’ laid down in Article 122. Second, even if the Arctic Ocean would fall within this definition, it would not give cooperating coastal states – whether as a collective or by means of an estab­lished regional organization – additional rights justify­ing additional restrictions on the rights and freedoms of third (flag) states to what they would be allowed to do unilaterally. This is an important distinction with RFMOs and Arrangements as discussed above. Such ad­ditional rights would only become available by means of a global mandate, for instance in the form of an imple­mentation agreement to the LOS Convention.

Conclusions

In view of these observations, it is clear that the LOS Convention and the Fish Stocks Agreement acknowl­edge the need for regional approaches with respect to fisheries management, marine environmental protection and enclosed or semi-enclosed seas. At the same time, however, the obligations on cooperation:

• are often subject to qualifiers (e.g. “shall endeavour” or “appropriate”)

• provide alternatives to regional cooperation (e.g. “glo­bal” or “directly”)

• do not provide guidance on the outcome of such re­gional cooperation (e.g. an international organization or a legally binding or non-legally binding instru­ment)

One of the few exceptions in this regard relates to the obligation to cooperate under the Fish Stocks Agree­ment. This obligation, however, applies only to strad­dling and highly migratory fish stocks and therefore not to shared fish stocks and anadromous fish stocks (see subsection 3.3.4). 233

Notwithstanding the inadequacies of the obligations on cooperation in relation to marine environmental pro­tection and enclosed and semi-enclosed seas, however, quite a few regional marine environmental protection regimes have been established so far. These are:

• the OSPAR Commission established under the OSPAR Convention234 in relation to the North East Atlantic, including the North-East Atlantic sector of the Arctic Ocean

• the Helsinki Commission established under the Hel­sinki Convention235 in relation to the Baltic Sea

• the various regimes set up under the Regional Seas Programme of the United Nations Environment Pro­gramme236

• the Antarctic Treaty Consultative Meetings operating under the Antarctic Treaty237 in conjunction with the Committee on Environmental Protection established under the Environmental Protocol to the Antarctic Treaty238 in relation to the marine areas south of 60° Southn

The rationale for establishing these regional regimes varies. The main rationale for the establishment of the Antarctic Treaty and its associated instruments was to resolve the sovereignty issue and the associated risks for conflict. The main reasons for the establishment of the other regional regimes seem to be to:

• discharge applicable obligations to cooperate under the LOS Convention and customary international law and in so doing taking account of a range of regional characteristics

• address transboundary effects of various human ac­tivities

• ensure a minimum level of marine environmental protection for the entire region by means of regional minimum obligations and thereby a regional level playing field

It should be noted, however, that large parts of the world’s seas and oceans are not covered by regional environmental protection regimes or by RFMOs and Arrangements.239 The reasons for such gaps may be obvious and understandable in some regions, but less so in others. The fact nevertheless remains that the relevant states are not willing or able to discharge their obliga­tions to cooperate under the LOS Convention, Fish Stocks Agreement or customary international law and thereby undermine relevant rights and interests of other states and the international community.

3.3.3. Non-participation by the United States in the LOS Convention

It is worth noting that the Ilulissat Declaration refers to the “law of the sea” but not explicitly to the LOS Con­vention. This is hardly surprising as the United States is not a party to the LOS Convention. It is well-known that the United States takes the view that, except for its Part XI, the LOS Convention is already part of customary international law and in that way creates rights and obli­gations for the United States. However, while the United States does not also explicitly exclude the dispute set­tlement mechanism in Part XV of the LOS Convention, this mechanism is not able to become part of customary international law as a consequence of its procedural nature.240 The dispute settlement mechanism in Part XV is widely regarded as a critical component of the pack­age-deal that paved the way for the adoption of the LOS Convention. The fact that it provides for compulsory third party dispute settlement entailing binding decisions in many scenarios, was a novelty in international law at the time. It thereby helps to safeguard the preservation of the package-deal of the LOS Convention by undesira­ble applications and interpretations of its provisions. The non-applicability of the dispute settlement mechanism of Part XV of the LOS Convention between the United States and other parties to the LOS Convention, includ­ing the other Arctic Ocean coastal states, is therefore a significant gap in the “extensive international legal framework” referred to in the Ilulissat Declaration.241

3.3.4. Gaps in the Fish Stocks Agreement

The limited scope of the Fish Stocks Agreement came to the fore particularly as a consequence of the already mentioned bottom fisheries targeting deep-sea fish species. At some stage, it was proposed that a legally binding instrument should address the non-applicability of the Fish Stocks Agreement to discrete high seas fish stocks.242 So far, however, there is not much more than operative paragraphs in various UNGA Resolutions, the most recent of which reads:

Calls upon all States, directly or through regional fisheries management organizations and arrange­ments, to apply widely, in accordance with inter­national law and the Code, footnote omitted the precautionary approach and an ecosystem approach to the conservation, management and exploita­tion of fish stocks, including straddling fish stocks, highly migratory fish stocks and discrete high seas fish stocks, and also calls upon States parties to the Agreement to implement fully the provisions of arti­cle 6 of the Agreement as a matter of priority;243

While this paragraph applies in principle to all fish stocks, its purpose seems mainly aimed at singling out discrete high seas fish stocks. In the Arctic context, how­ever, new fishing opportunities are also likely to relate to shared and anadromous fish stocks. The non-applica­bility of the Fish Stocks Agreement to these fish stocks would mean that only the relatively general obligations contained in the LOS Convention apply.

3.3.5. Gaps in the current international law of the sea

The LOS Convention was adopted more than 25 years ago and many of the provisions that are relevant to this report already received very broad support several years prior thereto. The mere existence of its two implemen­tation agreements reflects that the international com­munity was prepared to address what it perceived to be as gaps at the time. Recent undertakings within the framework of the UNGA and the CBD244 address newly perceived gaps in relation to marine biodiversity in areas beyond national jurisdiction.

As regards the UNGA, it established the United Nations 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 (UNWG BBNJ) in 2004. So far, the UNWG BBNJ convened twice: in 2006 and in 2008. A group of independent researchers prepared several docu­ments245 in support of the second meeting and conclude that the following seem to be the main regulatory and governance gaps:

Most of these gaps also apply to the Arctic marine area, both as regards areas within national jurisdiction, and beyond. An important exception is the Atlantic sector of the Arctic marine area, which is covered by the OSPAR Convention and the OSPAR Commission established by it. The ability of the OSPAR Commission to act as an authority by default in the absence of a com­petent international organization at the global level (e.g. for marine scientific research) and for new and emerging activities, is particular noteworthy in this context (see, inter alia, subsection 2.5.5)

While there was no negotiated outcome of the 2nd Meeting of the UNWG BBNJ, attention should be drawn to some of the issues selected by the Co-chairpersons as issues which the UNGA may decide as suitable for consideration by a next meeting of the UNWG BBNJ, namely:

(b) The strengthening of cooperation and coordina­tion at all levels and across all sectors, including enhanced cooperation in capacity-building for developing countries;

(c) The development and implementation of effective environmental impact assessment (EIA) as a tool for improving ocean management;

(d) Development and use of area-based management tools (ABMTs), including designation, manage­ment, monitoring and enforcement, consistent with the LOS Convention;247

Arguably, the reason why the Co-Chairpersons selected these issues is their perception that many states regard them as gaps in the current international law of the sea, despite disagreement on the solutions to address these gaps. Issues (b) and (d), read in conjunction, could be interpreted as support for integrated, cross-sectoral ecosystem-based ocean management, operationalized by among other things spatial measures or tools (e.g. MPAs). Such support has also been expressed by the UNGA in its 2006 and 2007 Resolutions on Oceans and the law of the sea.248

As regards the CBD, mention can be made of efforts in relation to MPAs in areas beyond national jurisdiction and, more recently, on EIAs and SEAs in relation to un­regulated activities in areas beyond national jurisdiction (see subsections 2.7.3 and 2.7.4).

Finally, as briefly noted in one of the bullets above, it is submitted that a fundamental regulatory and governance gap in the current international law of the sea relates to mechanisms that safeguard the interests of non-user states or the international community as a whole in the protection and preservation of the marine environment and marine biodiversity.249 As noted at the end of sub­ section 3.3.2, spatial gaps in the coverage of the world’s seas and oceans by regional environmental protection regimes and RFMOs and Arrangements undermine these interests. While there are a few relevant international instruments that allow for the participation of non-user states,250 these do not seem to have led to a satisfac­tory balance between socio-economic interests and the abovementioned interests for present and future genera­tions.

Particular account should in this context be taken of the innovative approach by the UNGA in relation to the impact of bottom fisheries on vulnerable marine ecosys­tems.251The main elements of this approach are:

• conducting prior EIAs

• identifying the location of vulnerable marine ecosys­tems

• freezing the footprint of bottom fishing in areas where vulnerable marine ecosystems are known to occur or likely to occur, until adequate conservation and man­agement measures are in place

• making actions taken pursuant to these elements pub­licly available

These elements essentially operationalize the precau­tionary approach; the need for science-based fisheries management and accountability. Subsequently, they are made applicable to three different scenarios, namely (1) areas covered by existing RFMOs or Arrangements, (2) areas covered by negotiation processes to establish RFMOs or Arrangements and (3) areas beyond national jurisdiction not covered by existing RFMOs or Ar­rangement or negotiation processes to establish them. Unfortunately, however, only the first two scenarios are subject to deadlines. But the mere possibility that the UNGA would adopt non-legally binding restrictions on bottom fisheries in areas beyond national jurisdiction is likely to have been the main driver for the establishment of the negotiation process in the Northwest Pacific.252 Or, in other words, regional action to pre-empt global action. These actions by the UNGA are clearly aimed at safeguarding the interests of the international commu­nity in light of the inability or unwillingness of states to discharge their obligations to cooperate at the regional level.

3.4. Sectoral Governance and Regulation of the Marine Arctic

3.4.1. Fisheries management

The following seem to be the main gaps:

1. Fisheries research and future scenarios develop­ment. There is a need for basic fisheries research as well as the development of future scenarios about areas, dates, species, fishing techniques for which new fishing opportunities are likely to arise and potential impacts for non-target species. It may for instance be revealed that new fishing opportunities in the Pacific side of the Arctic Ocean will be mainly located in the maritime zones of coastal states for a considerable time, whereas fishing opportunities in the Atlantic side may much sooner also encompass high seas areas that were not fished before. Such an assessment could be carried out in the framework of the Arctic Council (e.g. through its Conservation of Arctic Flora and Fauna working group (CAFF)) or independently.

2. Action by states individually. There is likely to be a lack of domestic regulation in relation to those parts of the Arctic marine area where ice-coverage used to be extensive for most of the year, but that now experience diminishing ice-coverage and thereby at­tract fishing vessels looking for possible new fishing opportunities.

3. EIA and SEA. Apart from the non-legally binding obligations pursuant to paragraphs 83–87 of UNGA Resolution 61/105, there are no global EIA or SEA mechanisms or procedures that can be applied to new or expanding fisheries in the Arctic marine area.

4. Bilateral and (sub)regional arrangements for shared fish stocks. While there are some bilateral ar­rangements between the relevant Arctic Ocean coastal states on the conservation and management of shared fish stocks, some are missing. This would seem to re­late to Canada – United States (Beaufort Sea), Canada – Greenland and Russian Federation – United States (Chukchi Sea).

5. RFMOs or Arrangements for species other than tuna and tuna-like species and anadromous spe­cies. A large part of the Arctic marine area is not covered by an RFMO or Arrangement with compe­tence over target species other than tuna and tuna-like species and anadromous species. This conclusion assumes that the Bering Sea would come within the scope of the WCPFC, and that ICCAT and NASCO may in principle have competence within the entire FAO Statistical Area No. 18.

6. Shortcomings in global fisheries instruments. The applicability of global fisheries instruments to the Arctic marine area also means that their shortcomings apply as well, for instance the non-applicability of the Fish Stocks Agreement to fish stocks other than straddling and highly migratory fish stocks. This is relevant for the Arctic context as new fishing oppor­tunities are also likely to relate to shared and anadro­mous fish stocks.

3.4.2. Shipping

The following seem to be the main gaps:

1. Participation in relevant international instru­ments. Not all Arctic states are parties to relevant international instruments. For instance, the Russian Federation is not a party to OPRC 90.

2. Lack of special global rules. As regards substan­tive standards or requirements, the international legal framework contains:

• no special IMO discharge, emission or ballast water exchange standards for the Arctic marine area

• no comprehensive mandatory or voluntary IMO ships’ routeing system for the Arctic marine area in its entirety or a large part thereof

• no legally binding special CDEM (including fuel content and ballast water treatment) standards for the Arctic marine area

The extent to which the absence of these standards or requirements poses a threat to the marine environment or biodiversity in the Arctic marine area cannot be assessed in this context.

3. Contingency planning and preparedness. While the global OPRC 90 and its 2000 HNS Protocol are com­plemented by the regional 1993 Nordic Agreement and the 1983 bilateral agreement between Canada and Denmark, there are gaps in the coverage of the entire Arctic marine area by all Arctic states. A related gap is the absence of a regional agreement on search and rescue.

4. Compliance and enforcement. There is no regional approach by Arctic states or an alternative group of states specifically aimed at ensuring compliance with applicable international rules and standards and national laws and regulations. It is moreover uncertain to what extent the IMO Arctic Shipping Guidelines and the IACS Unified Requirements concerning Polar Class are complied with by states, ship-owners and operators, crew and IACS members.

3.4.3. Offshore hydrocarbon activities

The following seem to be the main gaps:

1. Lack of global and regional rules in general. The LOS Convention’s linkage between the general coastal state obligations to global rules is seriously weakened due to the fact that there are no global rules, standards and recommended practice and procedures apart from those laid down in MARPOL 73/78. The OSPAR Convention and the decisions, recommendations and other agreements adopted by the OSPAR Commission and its predecessors only apply to part of the Arctic marine area. Likewise, the competence of the ISA and its decisions only apply to parts of the Arctic marine area as well. The ‘Arctic Offshore Oil and Gas Guidelines’ and other output of the Arctic Council are non-legally binding. Even though the Guidelines are revised on a regular basis, there is no systematic evaluation as to whether they are being followed.

2. No full coverage by global or regional bodies. While the ISA and the OSPAR Commission have competence over certain parts of the Arctic marine area, other parts are not covered by a global or re­gional body with competence for the comprehensive regulation of offshore hydrocarbon activities.

3. Contingency planning and preparedness. While the global OPRC 90 and its 2000 HNS Protocol are com­plemented by the regional 1993 Nordic Agreement and the 1983 bilateral agreement between Canada and Denmark, there are gaps in the coverage of the entire Arctic marine area by all Arctic states.

3.5. Cross-Sectoral Issues

3.5.1. (Transboundary) EIA and SEA

The following seem to be the main gaps:

1. Applicability of regional conventions. The applica­bility of the Espoo Convention and its SEA Protocol to the Arctic marine area is limited: some Arctic states are not parties to the Espoo Convention; the SEA Pro­tocol has not yet entered into force; and some Arctic states have not even signed the SEA Protocol.

2. Lack of legally binding regional and bilateral rules. While there are various legally binding regional and bilateral rules, some gaps remain, for instance between the Russian Federation and its Nordic neigh­bours and between the Russian Federation and the United States. The Arctic Council’s EIA Guidelines provide important but non-legally binding guidance as to how (transboundary) EIA should be conducted to give due consideration for the special conditions in the Arctic. On the other hand, recent research has shown that the guidelines have not been used in prac­tice.

3. Lack of global rules on EIA and SEA for activities in areas beyond national jurisdiction. While there are already EIA rules in place for mining in the Area, this is not of immediate importance to the Arctic ma­rine area. The pockets of the Area are relatively small and mining would probably start later than elsewhere due to the likely unfavourable conditions. There is a lack of specific rules on how to conduct an assessment procedure which can also potentially cover activities within areas beyond national jurisdiction, as generally required in Article 206 of the LOS Convention and encouraged in Article 14(1)(c) of the CBD.

3.5.2. Representative networks of MPAs

The following seem to be the main gaps:

1. No representative network of MPAs. There is cur­rently no representative network of MPAs in most or all of the Arctic marine area.

2. No specific legally binding obligation, procedure or body. Even though there are non-legally binding and legally binding international instruments containing obligations and commitments with regard to (repre­sentative networks of) MPAs, there is no specific le­gally binding obligation, procedure or body to enable the establishment of representative networks of MPAs for most or all of the Arctic marine area.

3.5.3. Integrated, cross-sectoral ecosystem-based ocean management

The following seem to be the main gaps:

1. No specific legally binding obligation, procedure or body. The Atlantic sector of the Arctic marine area is covered by several regional bodies with complemen­tary mandates – namely ICES, NAMMCO, NEAFC and the OSPAR Commission – which are increasingly coordinating and cooperating towards integrated, cross-sectoral ecosystem-based ocean management. However, the remainder of the Arctic marine area is not covered by similar coordinating and cooperating bodies, or a single overarching body, to ensure inte­grated, cross-sectoral ecosystem-based ocean manage­ment.

 

Bibliography



     The references and the notes you can find in the attached PDF file.