Arctic freeze: Governing the high seas

Overfishing is often cited as one of the most tragic failures of our stewardship of the commons. The warming of the Arctic Ocean is another. The combined effects of the two could be truly appalling.

The smallest and shallowest of the world’s five oceans is warming at almost three times the global average rate. In the last three decades, the area covered by Arctic sea ice in the summer has shrunk by roughly 40 per cent. For struggling global fisheries, this presents a unique opportunity to tap into pristine marine environments, mostly inaccessible until now.

For now, though, major fishing nations have decided to forestall such ambitions. In October, nine countries – Canada, the U.S., Russia, Norway, Denmark, Iceland, Japan, South Korea, and China – along with the E.U, signed a historic legally binding moratorium that prohibits commercial fishing in the high seas of the Central Arctic Ocean.  Inuit populations from Canada, Greenland, the Russian region of Chukotka, and Alaska were also represented by the Inuit Circumpolar Council and contributed to many provisions included in the agreement.  Their involvement could be the key to the Central Arctic Ocean moratorium’s success.

It is the first of its kind – bringing nations together to protect, proactively, the high seas before the start of commercial fishing. “Governments acted in a precautionary and very responsible way, looking towards the future, and it is therefore a reason for celebration,” says Michael Byers, Canada research chair in global politics and international law at the University of British Columbia.

The Arctic Ocean remains one of the least understood environments in the world. Where there is scientific uncertainty, he says, actions that could cause serious harm are best avoided.  The moratorium is therefore in place pending further scientific research on developing a sustainable management regime to address a fragile ecosystem.

Once ratified, the Central Arctic Ocean agreement will remain in effect for 16 years, and can be extended in five-year increments if the parties agree. It will protect an area sprawling 2.8 million square kilometres, roughly the size of the Mediterranean Sea.

Until then, the region remains governed by the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1995 UN Fish Stocks Agreement (UNFSA). Any country can exploit its natural resources. The only jurisdiction that is exclusive in the high seas is the flag state over its travelling vessels, says Aldo Chircop, Canada research chair in maritime law and policy at Dalhousie University.

Pressure began mounting to protect Arctic fish stocks following the disaster that struck the pollock population after overfishing in the international waters in the Bering Sea. Scientists led the charge in 2012, with some 2,000 calling for a moratorium.  Their petition led to a 2015 voluntary moratorium on trawling in Arctic waters by the five coastline states. That, in turn, evolved into the Central Arctic Ocean agreement.

But “we all recognized that we needed to bring in and invite other (fishing) countries to this agreement or else our goals would not be achieved to prevent unregulated, unsustainable fishing on the high seas” in the area, says Nadia Bouffard, Canada’s chief negotiator in the talks. There is a pledge among the moratorium’s signatories to seek a binding agreement with non-Arctic countries where commercial fishing fleets are based.

In the meantime, there is still work to be done on the Central Arctic Ocean agreement. The participating nations have yet to develop the groundwork for a joint scientific research and monitoring program. They must outline protocols for data sharing as well as exploratory and scientific fishing – a potential sticky point for countries believed to engage in full-blown commercial fishing elsewhere under the guise of exploratory or scientific fishing, says Bouffard.

Finally, all ten signatories must ratify the agreement before it comes in force, and that may take a while.

Unlike UNCLOS, which does not recognize the role that indigenous people play in ocean management, the Central Arctic Ocean agreement goes out of its way to bring the Inuit in, says Robin Campbell, a Montreal lawyer with Hutchins Legal Inc. “[UNCLOS] has been a problem for Indigenous peoples because, without that explicit protection, they are constantly having to assert rights that aren’t necessarily expressly recognized in that Convention,” he says. The new agreement “opens the door” for Indigenous peoples.

Indeed, the preamble to the agreement refers to the 2007 UN Declaration on the Rights of Indigenous Peoples. It also plainly stipulates that it recognizes the interests of Arctic residents, including its Indigenous peoples, in the long-term conservation and sustainable use of living marine resources. And it explicitly states that indigenous and local knowledge is expected to supplement scientific knowledge. “This is the backyard of the Arctic Inuit,” says Bouffard. “There is a link between what’s on their coast and what’s on the high seas. They want to make sure that we have a sustainable regime so their interest and their rights could be affected if we didn’t take care of that environment in a sustainable way.”

What we’re seeing, according to Chircop, is a growing intersection between international environmental law, UNCLOS and international indigenous law. Where it will lead no one knows. But Chircop argues that the duty of all states to protect and preserve the marine environment under Article 192 of UNCLOS is “nourished” by a corpus of international law on the environment. It’s arguable, Chircop maintains, that the duty of states to respect the environmental and resource rights of Indigenous peoples also “nourishes” Article 192. “One can argue that the future management and conservation of Arctic fisheries should respect the rights of Indigenous peoples that might be dependent on species affected by fishing,” says Chircop.

The fight to save the Arctic commons could ultimately be in their hands.