Liu Dan
Associated Professor, Center for Rule of Ocean Law Studies, Shanghai, Jiao Tong University, China
Visiting at: Stefansson Arctic Institute, Iceland
Period: 1 month
Research Theme: 2015 High Seas Arctic Fishery Declaration: Starting Point towards Future Management of Marine Living Resource in the Central Arctic Ocean
On 16 July 2015, in Oslo, the coastal states of the Arctic Ocean – Canada, Denmark, Norway, the Russian Federation and the United States (the Arctic Five) – took a long-awaited further step in the international regulation of Arctic Ocean fisheries by signing the “Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean”. Dr. LIU Dan, Associate Professor of Center for Rule of Ocean Law Studies, Shanghai Jiao Tong University, with research expertise on Law of Sea and Polar Law, took opportunity of CNARC Fellowship program to conduct a one month fellow visit from Dec. 2015 to Jan. 2016 at Stefansson Arctic Institute in Iceland, in order to further explore the future tendency of fishery management in the Central Arctic Ocean (CAO).
The 2015 Oslo Declaration on High Seas Arctic Fisheries - Starting Point towards Future Fishery Management in the Central Arctic Ocean
1. Scientific awareness of the need for High Seas Fisheries in the CAO
Although the CAO has been covered year-round in ice through most of human history, in recent summers up to 40 percent has melted into open water. This newly emerging ocean is undergoing tremendous ecological change at the same time it is becoming potentially accessible to commercial fishing fleets, which have proved relentless in their pursuit of catch.
The High Seas of the CAO teem with cod, herring, Greenland sharks, whales, walruses, seals and polar bears, while the waters are open to fishing unless closed or regulated by international agreement. That’s why more than 2,000 scientists urged Arctic nations in 2012 to prevent the start of commercial fishing in the CAO. The letter signed by more than 2,000 scientists from 67 countries was released by The Pew Charitable Trusts on the first day of the International Polar Year conference in Montreal, to push arctic leaders to develop an international fisheries agreement that would protect the waters of the CAO.
More than 60 percent of those who signed the letter are scientists from one of the five coastal Arctic countries of Canada, United States, Russia, Norway and Greenland/Denmark, the rest are scientists from more than 62 other countries. The letter recommends the leaders of coastal Arctic countries pursue the following actions: (1) to take the lead in developing a precautionary international fisheries management agreement; (2) to start with a catch level of zero until sufficient scientific research can assess the impacts of fisheries on the CAO ecosystem; and (3) to set up a robust management, monitoring and enforcement system before fishing begins.
2. The CAO fisheries issue in the Arctic Council regime
Despite the efforts of some Arctic states, (i.e. United States) to engage fisheries issue on a multilateral level, it became clear that the Arctic Council was not interested in having any involvement in the international regulation of marine capture fisheries, or becoming a forum for the negotiation of a regional agreement on CAO fisheries. There is nevertheless no juridical obstacle for this; not for the Arctic Council per se and also not for the Arctic Council System, partly because of the broad mandate of the Arctic Council which relates to “common Arctic issues” with special reference to “issues of sustainable development and environmental protection in the Arctic”.
One of the first intergovernmental discussions on Arctic Ocean fisheries occurred at the November 2007 meeting of the Arctic Council’s Senior Arctic Officials. In addition to two ministerial meetings held in Ilulissat, Greenland in May 2008, and Chelsea, Canada in March 2010, dedicated fisheries meetings took place at the level of senior officials in Oslo in June 2010, Washington D.C. in April and May 2013, with the most recent meeting held in Nuuk, in February 2014.
The Arctic Ocean coastal states recognized shortcomings in the available scientific information and agreed to organize scientific experts meeting. At least three scientific experts meetings have been held till the end of 2015: the first in Anchorage, the United States in June 2011; the second in Tromsø, Norway, in October 2013; and the third in Seattle, the United States, in April 2015.
At the November 2007 Meeting of the Senior Arctic Officials (hereinafter referred to as the “SAOs”), the Arctic Council decided not to become involved in fisheries management issues. Even though the Council has not explicitly reversed its view since then, the issue of international fisheries management has come up within the context of the Arctic Ocean Review (hereinafter referred to as the “AOR”) project that is currently carried out within the Council's Protection of the Arctic Marine Environment (hereinafter referred to as the “PAME”) working group.
3. Legal status and the substance of the Oslo Declaration
Currently, legal status of the Oslo Declaration is best understood as containing a number of non-legally binding commitment, amounting to so-called “soft law”, expressing a preference (but not an obligation) that the states concerned should act, or should refrain from acting, in a specified manner. Soft law is by its nature the articulation of a “norm” in a non-binding written form, and it can also be applied to non-treaty agreements between states or between states and other entities that lack capacity to conclude treaties. The soft law nature of the Oslo Declaration is not only evidenced by the title of the “Declaration” itself, but also by the use of the terms in the Declaration, such as “recognize”, “recall”, “acknowledge’, etc.
Through the Oslo Declaration, the Arctic Five declare their intent to implement the following interim measures: (1) To authorize their vessels to conduct commercial fishing in the high seas portion of the CAO only pursuant to one or more regional or sub-regional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with recognized international standards; (2) To establish a joint program of scientific research with the aim of improving understanding of the ecosystems of this area and promote cooperation with relevant scientific bodies, including but not limited to the International Council for the Exploration of the Sea (ICES) and the North Pacific Marine Science Organization (PICES); (3) To promote compliance with these interim measures and with relevant international law, including by coordinating their monitoring, control and surveillance activities in the high seas portion of the CAO; (4) To ensure that any noncommercial fishing in the high seas portion of the CAO does not undermine the purpose of the interim measures, is based on scientific advice and is monitored, and that data obtained through any such fishing is shared.
It’s worth noting that the Oslo Declaration largely adopts or builds upon the substantive outcome of the Nuuk meeting, but it’s hardly to describe the substance of the Declaration as a “ban” or “moratorium” on fishing in the Arctic. At the Nuuk meeting, political agreement was only made “on the desirability of developing appropriate interim measures to deter unregulated fishing in the future in the CAO”. The Oslo Declaration goes beyond expressing the mere desirability of developing appropriate interim measures, and instead expresses the intent by the Arctic Five to implement a number of interim measures “to implement appropriate interim measures to deter unregulated fishing in the future in the high seas portion of the CAO.” However, the characterization of the substantive outcome of the Declaration as “ban” or “moratorium” on fishing in the Arctic is inaccurate and misleading for several seasons: First, it is important to recall the spatial focus of the Declaration and the interim measures it describes: the interim measures apply only to the high seas portion of the CAO; Second, it must also be recalled that the Declaration and the interim measures it describes are not legally binding upon the Arctic Five. Although the Declaration indicates the intent by on behalf of the Arctic Five to comply with the interim measures it describes, such measures are legally non-enforceable. Thus, even if the interim measures amounted to a “ban” or a “moratorium” on fishing, such a ban or moratorium would be limited in spatial scope to the high seas portion of the CAO, and would not be legally enforceable amongst the parties to the Declaration.
Based on “the obligation to apply the precautionary approach,” the Oslo Declaration also calls upon the implementation of appropriate interim measures to deter unregulated fishing in the future in the high seas portion of the CAO. The precautionary approach is a common feature of all the Rio and post-Rio global environmental agreements and its purpose is to make greater allowance for uncertainty in the regulation of environmental risks and the sustainable use of natural resources. The implication of applying the precautionary principle in the Oslo Declaration reflects the significant lack of science and data, and seeks to remedy this knowledge gap before actual fisheries become feasible.
4. Role of participants toward the broader process of the High Seas Arctic Fishery Agreements
CAO fisheries governance is not only about fishing. It has many other aspects, such as cooperative governance of the Arctic, the relations among Arctic states, and the relations between Arctic and non-Arctic states. Some authors take the position that “such an agreement is thus a question of policy, science, and international relations”.
Although the signature of the Oslo Declaration by the Arctic Five in July received certain applause, the Oslo Declaration may also be described as an inter se Arctic Five approach in an ironic way. The lead role for consultations or negotiations clearly lies with Arctic Ocean coastal states. It’s not only because of the fact that the three other Arctic countries, Finland, Iceland and Sweden, as well as indigenous groups and global Arctic stakeholders such as Japan, China and the European Union, were not invited; but also because the idea behind the Oslo Declaration including its focus on need for further scientific research and its application of international law which are in line with what most Arctic fisheries stakeholders agree on, were not given enough attention.
Participation by other states outside the Arctic Five remains an important factor in the overall legitimacy and effectiveness of any outcome from the broader process, and especially in addressing possible potential inconsistencies with the freedom of high seas fishing embodies in the UNCLOS and the concept of “real interest” in the United Nations Fish Stocks Agreement. At the 2014 Nuuk meeting, the Arctic Five agreed “that it is appropriate for the States whose exclusive economic zones border the high seas area in question to take the initiative on this matter”, they also continued to “recognize the interests of Arctic residents, particularly the Arctic indigenous peoples, in these matters and to engage with them as appropriate” and to “reaffirm that other States may have an interest in this topic and looked forward to a broader process involving additional States beginning before the end of 2014”. Even the Oslo Declaration also “acknowledge the interest of other States in preventing unregulated high seas fisheries in the CAO and look forward to working with them in a broader process to develop measures consistent with this Declaration that would include commitments by all interested States.” Therefore, leaving political issues aside, it is necessary to consider a broader process involving actors beyond the Arctic Five, which would include other non-Arctic Ocean states and non-state actors in future consultations and preparations. In reality, however, one of these non-Arctic Ocean states, Iceland, has publicly expressed regrets that, although it has repeatedly asked to participate in the collaborative process, the Arctic Five have decided to keep Iceland outside consultations and preparations on the 2015 Oslo Declaration. That’s why the calls for participation of the fourth meeting of scientific experts from the five cooperating nations (China, Korea, Japan, Iceland and the European Union) in September of 2016 have been publicly acknowledged, and it seems to support the above position. As regards non-state actors, the Arctic Ocean coastal state process has so far involved considerable participation by non-governmental organizations (NGOs), notably, Pew Charitable Trust, which has been exceptionally active, and the Arctic indigenous peoples.
5. Conclusion
Recent scientific publications tend to be level-headed in their expectations of new commercial fish stocks in the high seas of the CAO. While fishes are indeed migrating northwards, scientific findings suggest that the vast majority of such migrating stocks are likely to be found within the EEZs of the Arctic Five. The likelihood of establishing a new RFMO for the CAO thus seems slim and unrealistic in the near future. Speculation on the potential structure of such an organization therefore remains of little value. At the same time, data documenting new trends are scarce or non-existent, and scientists are generally left to give their best guesses for the future, particularly with regard to the CAO.
The Arctic Ocean coastal state process continues at the time of this writing, with a future meeting planned to take place from July 6 to 8, 2016, at Iqaluit in Canada, the EU, Japan, Iceland and South Korea are expected to be among those actors welcome to the invitation-only discussions. The choice of invitees may be informed based on the concept of “real interest”, which is a necessary prerequisite for membership and participation in RFMO/ As under the UN Fish Stock Agreement. The December 2015 meeting of the Arctic coastal states plus the five cooperating nations considered that, “it is unlikely that there will be a stock or stocks of fish in the high seas area of the CAO sufficient to support a sustainable commercial fishery in that area in the near future”, therefore, “a number of these approaches could be combined in a step-by-step or evolutionary fashion”.
Uncertainty as to the future governance of the Arctic fisheries of the CAO remains within the broader process, due to political tensions surrounding Ukraine or other emerging conflicts that might have impact on the negotiation process. However, positive signals were released at the recent meeting of the Parties in April 3016: firstly, adjusting on the Oslo Declaration was considered, with input from other participants, and such a new, broader non-binding statement could be adopted; secondly, further negotiation on a binding international agreement of the kind, which has been proposed by the United States; and thirdly, additional negotiation and discussion about an agreement or agreements to establish one or more additional regional fisheries management organizations or arrangements for CAO in the foreseeable future will also be arranged at this meeting. It’s also worth noting that some but not all delegations expressed a preference that the interim measures should be in the format of legally binding instrument at this meeting.
