Protecting the Arctic Marine Environment Beyond National Jurisdiction

By Professor Charles Norchi

Royal Palace in Oslo, NorwayI write from Oslo in the Kingdom of Norway – a city known for the Nobel Peace Prize and premier academic and research institutions including the Scandinavian Institute for Maritime Law, which has convened a Colloquium on Ecosystem-Based Management in the Arctic.

The meeting, chaired by Professor Erik Røsæg of the University of Oslo Faculty of Law, has brought together legal scholars, scientists, corporate executives, and Norwegian Foreign Ministry officials. Norway has been an oceanic and seafaring nation since the time of the Vikings. The Kingdom’s marine area is vast, extending from the North Sea and the Norwegian Sea in the Atlantic Ocean to the Arctic Ocean. It is an ecosystem with multiple uses – oil and gas, shipping, offshore wind, and fisheries. The Kingdom of Norway is also an Arctic nation and the host country of the Arctic Council secretariat.

Map of NorwayThe Arctic ecosystem, which includes ecologically and biologically significant areas, is increasingly fragile owing to climate change, progressive human activity, and ocean acidification. The year 2016 was the hottest year on record. A NOAA Arctic Report Card stated “persistent warming trend and loss of sea ice are triggering extensive Arctic Changes” and “from mid-October to late-November, the ice extent has been the lowest observed since the beginning of the satellite record in 1979.” Dwindling Arctic sea ice has resulted in increased human access generating contaminants, maritime transport, and petroleum activities which have placed fisheries, terrestrial wildlife, and indigenous peoples under threat. This is affecting livelihoods, regional commerce, international security, and the marine environment. One Colloquium participant underscored the rapid changes with high amplitude which lead to a possible ice free north pole in two decades, and termed the Arctic a global watch dog.

The Arctic is also an ocean so it is subject to the international law of the sea. The Central Arctic Ocean (CAO) is enclosed in the Exclusive Economic Zones of five Arctic coastal states over which those states enjoy certain rights and jurisdiction pursuant to the United Nations Convention on the Law of the Sea (UNCLOS). The CAO is beyond the national jurisdiction of the coastal states in which all maritime users enjoy high seas freedoms. The existing legal framework does not address ecosystem based management in areas beyond national jurisdiction and UNCLOS addresses neither ocean acidification nor climate change. The CAO could become a tense arena of conflicting claims implicating multiple uses and goals from environmental protection to resource exploitation.

At this Colloquium, we are considering instruments to manage stresses on the Arctic ecosystem with a view to adaptive management of areas beyond national jurisdiction, notably the CAO. Ecosystem-based management is largely identified as the best practice. The Arctic Council defines ecosystem-based management as a “science-based, place-based and adaptive approach to management of ecosystems that places emphasis on integration and the need to more fully recognize the integrated nature of ecosystems by having more coordination and collaboration across management sectors and agencies that regulate human use.”

Map of Arctic OceanA process is now underway that is expected to result in an international legal agreement to protect biodiversity of areas beyond national jurisdiction (ABNJ). The United Nations Generally Assembly has resolved  “… to develop an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.” The new agreement will be aligned with UNCLOS and integrated within the existing law of the sea architecture. It is hoped that the future agreement will effectively insure conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, including the CAO.

The Norwegian Foreign Ministry declared support for the new instrument on the condition that it is integrated within the established law of the sea architecture, reinforces UNCLOS and that direct management of ABJNs is controlled at the regional level. As drafting of the ABNJ agreement proceeds, structural impediments in the law of the sea and environmental law complicate the ecosystem-based management approach. Owing to the progressive codification of the law of the sea, the oceans are zoned. For all of the achievements of UNCLOS, are we in a maritime zone trap that could limit the collaboration essential to an ecosystem-based management approach? International environmental law and the law of the sea must contend with tensions between jurisdictional (artifacts of lawyers) and ecological (natural) boundaries. An environmental law is fragmented among international regimes, regional arrangements, national jurisdictions and sector regulations. As the new instrument is negotiated, participants will be compelled to clarify shared environmental and oceans law goals with a view to achieving an outcome in the greater common interest.

Arctic actors including States, indigenous peoples and corporations are now operating in a social process shaped by intensely evolving climatic conditions. Ice melt – a consequence of cryospheric change – is producing more open water which enables increased human activity generating more demands and claims to Arctic resources. Enhanced navigation, tourism, hydrocarbon exploration and tourism affect Arctic biodiversity.  The urgent challenge of conservation and sustainable use of Arctic central ocean resources could be effectively addressed with a legal instrument dedicated to protecting the biodiversity of areas beyond national jurisdiction. That is the consensus of this Colloquium on Ecosystem-Based Management in the Arctic.