When shipping routes across the Central Arctic Ocean (CAO) open due to the melting of sea ice, new opportunities fuel considerable and competing interests (such as shipping, oil and gas exploration and exploitation of living resources), that may further threaten already fragile and vulnerable marine arctic ecosystems. The existing governance framework for the CAO is complex and consists of a web of global and regional instruments. It also includes less formal but crucial institutional arrangements such as the Arctic Council.
A need for a comprehensive regional regime
Because of the vulnerability of the Arctic, the European Union, as well as many States and environmental NGOs support strong conservation measures for the CAO, and suggest there is a need for a comprehensive regional regime to achieve effective conservation. By contrast, Arctic coastal states (the United States, Canada, Norway, Russia, and Denmark with respect to Greenland) have consistently considered that the existing framework provided by the UN Convention on the Law of the Sea (UNCLOS), which aims to settle all issues of ocean law and governance, is sufficient. Indeed, they have repeatedly re-asserted their role as stewards of the marine arctic, as explicitly declared in the 2008 Ilulissat Declaration. They have also consistently rejected the need for new global and regional international regimes. Aligned with this view, some specifically suggest that existing regional institutions, such as the Arctic Council, already offer a robust framework that should be built upon.
Yet both the UNCLOS framework and the existing institutional arrangements present important gaps. For example, there are increasing calls for designating the CAO, or parts thereof, as a marine protected area. Indeed, both the Convention on Biological Diversity and the Protection of the Arctic Marine Environment working group under the Arctic Council, have provided scientific and policy recommendation in this direction. Yet neither of them, nor any other existing legal instrument or body, has the legal competence to designate marine protected areas in the portion of the CAO that lies in areas beyond national jurisdiction.
This legal gap is precisely one of the issues that a new global treaty on marine biodiversity in areas beyond national jurisdiction (hereinafter called the BBNJ treaty) aims to address. This treaty is currently being negotiated under the aegis of the United Nations. Nearly 2.8 million square kilometres of the CAO are located in areas beyond the national jurisdiction of any state; thus, essentially all of the CAO is within the geographical scope of the BBNJ treaty. For this reason, a new BBNJ treaty may have important implications for the biodiversity governance of the CAO, at both the substantive and the institutional level.
The role of the Arctic Council
Institutionally, one important question is what the role of the Arctic Council may be in a “BBNJ future”. The BBNJ negotiations may indeed pose some challenges to the cooperative governance framework pivoting on the Arctic Council. The Council has arguably functioned very well, both in relation to its role of scientific cooperation on matters related to the marine environment and in relation to its facilitative role towards the adoption of a number of regional treaties (on enhanced scientific cooperation, on search and rescue and on oil spill preparedness). This important role led some commentators to describe the framework hinging on the Arctic Council as the “Arctic Council system”.
Lack of legal competence
However, the Arctic Council lacks the legal competence to adopt conservation measures, and particularly marine protected areas, in the portion of the CAO that lies outside of national jurisdiction. At the same time, one of the aims of the BBNJ agreement is to fill the existing gaps in the international law of the sea framework precisely with respect to marine protected areas: there is no legal basis to adopt such protected areas in areas beyond national jurisdiction except within the very limited and fragmented context of some regional or sectoral regimes such as the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic. The OSPAR Convention is relevant for the Arctic and has already designated marine protected areas outside national jurisdiction (though not in Arctic waters).
The Arctic Council has attempted to play a stronger role in Arctic marine governance in addition to its more technical and scientific work on the marine environment through the establishment in 2015 of the Task Force on Arctic Marine Cooperation. The Task Force was mandated to establish terms of reference for a new Arctic Council subsidiary body for marine cooperation, but the members of the Arctic Council could not reach agreement in the end. Against this background, the key issue is how to configure the relationship between a future BBNJ treaty and its bodies with relevant international instruments and bodies with overlapping competence or mandates.
With regards to the Arctic Council, one can imagine a number of scenarios, all depending on several factors, including, importantly, whether or not the Arctic Council can be considered one such relevant body for the purposes of a future BBNJ treaty. Yet, while the Arctic Council does not have formal legal status (it is a high-level forum), it plays a relevant role in relation to biodiversity governance and conservation in the marine Arctic. This role, however, might not be recognised by the new BBNJ treaty, precisely given the Council’s lack of formal legal status, and its lack of competence to adopt conservation measures. Its role as a relevant scientific advisory body should nonetheless be integrated in the institutional framework that will follow the new BBNJ treaty, especially to avoid duplicating existing functions and efforts that are crucial for achieving the treaty’s goals.
The Arctic Council, as such or through its working groups, provides crucial knowledge on ecosystem monitoring and assessment. For instance, it has developed important tools and approaches for the implementation of an ecosystem approach to marine biodiversity conservation, such as the map of large marine ecosystems and the Kiruna principles on the ecosystem approach. Yet perhaps it is time, once again, to consider strengthening the Council, to ensure it will continue to play a crucial role in the future.