A white polar fox on Svalbard, Norway. Arctic biodiversity is set to become exposed to new and unknown threats, while UNCLOS and other applicable legal instruments risk falling short of addressing new stressors and their potentially irreversible damage on the environment. Photo: Pexels
The effects of anthropogenic climate change are significantly affecting the Arctic Ocean’s robust ecosystems and biological diversity. In particular, Arctic Areas Beyond National Jurisdiction (hereafter: ABNJ or ‘high seas’) cover approximately 2.8 million square kilometres beyond coastal states’ established maritime boundaries. With the melting of sea ice, the Arctic high seas are set to become more accessible to human activities, making economic interference in the region more common and intrusive. Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS) states that “the high seas are open to all states”. However, scientific understanding of the Arctic marine environment beyond national jurisdiction remains limited, and these profound changes pose a serious threat to Arctic marine ecosystems. In a nutshell, Arctic high seas biodiversity is set to become exposed to new and unknown threats, while UNCLOS and other applicable legal instruments risk falling short of addressing new stressors and their potentially irreversible damage on the marine environment. Therefore, there is a strong need for a legal regime that addresses the needs of high seas biodiversity not just as a collateral element, but as a significant and endangered component of Arctic life.
This article analyses the shortcomings of the current Arctic governance architecture, which is struggling to keep pace with climate change and its wide-ranging effects. The subject is topical because of an on-going process for the drafting of an international Agreement for the Protection of Biodiversity Beyond National Jurisdiction (BBNJ), and the legal and institutional challenges which will arise in connection to its implementation in the Arctic. This article attempts to answer the question of how cooperation could be shaped in order to overcome these challenges. The focus is on the need to establish a knowledge-based protection regime for the Arctic Ocean which would tackle the challenges that will arise with the opening up of the Arctic high seas to human activities. Here, I have sketched the outline of a revised governance mechanism, which builds on Arctic bodies’ existing governance roles, and engages both the Arctic Five countries and the Arctic Council. This mechanism would enhance the effective participation of extra-regional states and stakeholders, as well as foster knowledge-based cooperation on Arctic issues.
The current Arctic legal regime for biodiversity conservation is limited and fragmented. This is unfortunate, considering that life in this region is at the mercy of human behaviors, which have increasingly deleterious effects. Sea ice plays a central role in supporting biodiversity, as the survival of endangered Arctic species such as the polar bear and the walrus depends on it. Needless to say, many northern Indigenous communities rely on healthy marine ecosystems for their subsistence and cultural identity.1)
Although the Arctic Ocean does not exist in a legal vacuum, the legal framework in place simply cannot address conservation needs adequately. Both UNCLOS and the Convention on Biological Diversity (CBD) find application, plus a number of regional and subregional instruments. However, no comprehensive, legally binding regime protecting Arctic biodiversity in its entirety is in place.2)
The CBD, for example, does not apply to high seas components of biological diversity, and UNCLOS is silent on a number of issues relating to the waters and the seabed beyond national jurisdiction.
Canada, the United States, Russia, Denmark (via Greenland) and Norway – the so-called Arctic Five or “A5” – exercise their jurisdiction over the waters of the Arctic Ocean stretching up to 200 nautical miles (nm) off their coasts, in accordance with the rights they are accorded under UNCLOS. Their geographical position gives the Arctic Five a sort of “primacy” in Arctic affairs, and their efforts led to the drafting of the Central Arctic Ocean Fishesìries Agreement (CAOFA) in 2018. This and other recent developments have built momentum for a renewed commitment of all Arctic players to regional and global cooperation, and the next best opportunity is right around the corner.
An international legal framework for high seas biodiversity
In 2015, the United Nations initiated a process to develop an international legally binding instrument (ILBI) under UNCLOS, on “the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”3) To this day, negotiations are still ongoing. The final Agreement will not address climate change directly, but rather will focus on four elements of the “package deal”: 1) marine genetic resources and questions on the sharing of benefits, measures such as Area-Based Management Tools (ABMTs) and Marine Protected Areas (MPAs), 2) environmental impact assessments, 3) capacity-building and 4) the transfer of marine technology.4)
During the three Intergovernmental Conferences that have taken place so far, one issue soon emerged as particularly contentious: that of the ILBI’s institutional architecture. The UN General Assembly always stressed that the final Agreement “should not undermine existing relevant instruments and frameworks.”5) However, negotiating states were tasked with deciding how the ILBI’s relations with other bodies and instruments were to be shaped, and the setting up of a strong global body with decision-making power was first envisaged. Yet, states with significant regional interests, including most, if not all, Arctic and near-Arctic states, favored a decentralized, regional approach, which would not lead to major changes in the status quo.
A Revised Draft Text of the ILBI was released in November 2019. This comprehensive document gives us an idea of the final Instrument’s institutional architecture. A ‘hybrid’ approach is adopted in relation to its institutional arrangements, with the Conference Of the Parties (COP) adopting recommendations, promoting cooperation, and coordinating with and among other existing legal regimes, be them global, regional, subregional or sectoral in nature.6) Neither hierarchical relations, nor a strong, overarching global body are provided for. Therefore, in ensuring the implementation of its main objectives, regional stakeholders will be required to cooperate with the ILBI, as well as among themselves, in a shared commitment to the protection of global BBNJ.
Barriers to Implementing the Instrument
Each Arctic stakeholder has strong regional interests, which are primarily economic and geopolitical in nature. These conflicting interests might potentially deter main stakeholders from participating in the ILBI altogether. Setting up an effective protection regime could prove difficult when the most important players regard the area as exploitable.
In addition, the Covid-19 pandemic has stressed the need to enact effective measures to cope with existential threats such as climate change.7) However, we are living in unprecedented times, and pursuing international cooperation is low on states’ list of priorities. Furthermore, economic sanctions and security concerns have contributed to making relations between China, Russia and the West increasingly strained. This will have repercussions in the Arctic arena, where states are the most important stakeholders.
A series of significant geopolitical shifts have recently been taking place in the Arctic, chiefly because of climate change.8)
The Arctic region is changing rapidly, with serious consequences for both its inhabitants and outside actors. The latter are set to become increasingly active within the region as the Arctic Ocean opens up to the forces of globalisation. The characterisation of the Arctic as a peripheral region is no longer valid today, meaning that matters of environmental protection and sustainable development must be addressed in international terms.9) Since the governance implications of this new reality cannot be ignored, a revised approach to Arctic governance is required.
Outlets for Cooperation
The main outlet for cooperation within the Polar North is the Arctic Council, whose shortcomings are apparent. It relegates extra regional states to a mere consultative role; they can be granted the status of Observers, but the eight Arctic states remain the only ones with decision-making power. Furthermore, since the Council has no compliance or enforcement mechanisms, and the success of its initiatives depends on whether consensus is reached among all its voting members, projects touching on sensitive issues are often abandoned. So far, the Council’s role in environmental governance has mostly consisted of fostering discussion and improving scientific understanding of Arctic ecosystems, rather than making policy recommendations for conservation and management.
Recent years, however, have witnessed the Council shift from a policy-shaping to a quasi policy-making role, as it contributed to the drafting of three regional legally binding agreements. Furthermore, its Working Groups have continued to promote scientific understanding of Arctic biodiversity, a most necessary function in view of climate change. For example, the Council’s Conservation of Arctic Flora and Fauna (CAFF) Working Group contributed to the 2005 Arctic Climate Impact Assessment, which holds particular significance because it was the first instrument to single out climate change as the biggest threat to Arctic biodiversity.10)
During a 2013 assessment, CAFF identified 95 areas deemed worthy of protection, including the multi-year ice of the Arctic Ocean.11) Even though this designation did not immediately translate into the establishment of MPAs, the CAFF Working Group is worth marking out as an important asset for the future establishment of MPAs under the ILBI.12) In a nutshell, the intergovernmental forum’s twenty plus years of expertise in Arctic affairs should not be underestimated, as well as its potential in harmonizing interactions between global and regional regimes. As Koivurova and Caddell underlined, “there appears to be particular scope to advance the four thematic priorities of the ILBI through the Arctic Council.”13)
Therefore, ensuring that the Arctic Council is part of ILBI cooperation and implementation would allow building on its past work and expertise, effectively transforming its scientific knowledge into policy. Moreover, this intergovernmental forum provides representation to indigenous peoples and communities via its six Permanent Participants. This is particularly significant in light of the fact that the ILBI Draft repeatedly refers to the importance of indigenous peoples’ traditional knowledge and calls for their involvement in BBNJ protection. However, the soft law nature of Arctic Council’s recommendations poses a problem for the implementation and enforcement of ILBI’s objectives.
In the last decade or so, a new forum for Arctic cooperation has emerged: the Arctic Five. The term is used to indicate a separate grouping in the regional arena, namely the five coastal states, which have been meeting separately since 2008 to discuss areas of interest or responsibility exclusive to the coastal states. In the 2008 Ilulissat Declaration, the A5 stated that they were “in a unique position” to tackle future Arctic challenges. In 2015, the Arctic Five started negotiations with non-Arctic states’ such as China, Japan, and South Korea, in order to draft the 2018 Central Arctic Ocean Fisheries Agreement. The latter imposes a moratorium on commercial fishing in the Arctic high seas, adopting a strong precautionary approach to fisheries management and paving the way for the creation of a regional fisheries management body. The negotiations have been deemed a success by policymakers and scholars alike, leading some to believe that a new arena for cooperation is developing in competition with the well-established Arctic Council.
In fact, the Arctic Five grouping gives states more freedom in shaping negotiations and has proved to be an effective forum in recent years. Today, the A5 has successfully established itself as “the second most prominent agglomeration focused on Arctic governance.”14) However, Arctic cooperation overall can benefit from the two aforementioned fora working together.
A revised model for Arctic environmental governance
There are two main challenges arising in relation to ILBI cooperation and implementation in the Arctic. The first is the limited participation of extra-regional stakeholders; the second is the reticence of coastal states to accept restrictions on their sovereignty. Now, the engagement of both the A5 and the Council would ensure that implementation of the ILBI includes all important stakeholders: in particular, non-Arctic states can be best engaged by the A5, Indigenous communities and NGOs by the Arctic Council. The participation of all states, either Arctic or not, that carry out activities in Arctic ABNJ is fundamental for an effective protection regime to find application.
States such as China have reiterated that cooperation should occur on the same footing with Arctic states, and this cannot happen through the Council due to the limited power non-Arctic states have as Observers there. Indigenous participation within the Council, on the other hand, would ensure that their traditional knowledge is engaged in the negotiations, an objective which the ILBI Draft deems very important. Participation of NGOs would also be needed in order to emphasize the Arctic’s environmental significance.15) Thus, an arrangement of this kind would combine the A5’s political leverage with the Arctic Council’s expertise in science and policy.
At the same time, it would make sense for the Arctic coastal states to set the tone of the negotiations. Their ad hoc meetings would provide a more efficient forum for cooperation than the Arctic Council for a number of reasons. Arctic coastal states’ special interests would be best addressed through the A5, a forum where they are the only participants and their perspectives are more or less homogeneous. To their gatherings, any stakeholder can be invited and there is no established hierarchy or rule of procedure to respect. However, the Arctic coastal states would still preserve their stewardship role by virtue of their established primacy in Arctic affairs.
My view is that discussions among the relevant states should frame issues prior to their introduction to the Arctic Council, where further discussion would ensue with the participation of non-state actors. Eventually, conclusions would reflect all participants’ perspectives. This governance architecture best operationalizes the provisions of the ILBI on international cooperation, for it strengthens the existing Arctic instruments and engages global actors in a historical commitment to the protection of Arctic BBNJ.
In the Arctic, recent developments have raised high hopes for the creation of a strong and comprehensive regime for environmental governance. The melting of sea ice is set to expose Arctic high seas biodiversity to new and unknown stressors, therefore the need to strengthen existing governance regimes for ABNJ cannot be stressed enough. The hybrid approach as enshrined in the ILBI Draft will require coordination with existing regional and sectoral bodies for the implementation of its objectives. It is therefore necessary that Arctic stakeholders manage to agree on the enhancements of the existing regime for environmental governance, channeling harmonized efforts from both the A5 and the Arctic Council towards ILBI implementation. Frameworks and bodies guaranteeing the success of cooperative efforts as well as widespread participation of all regional voices already exist – now it is up to the main players, namely the A5, to take the lead.
Margherita Valentina Romani is a LL.M. graduate from Utrecht University.