A post by prof. Erik Molenaar - ‘Broader Process’ on international regulation of high seas fishing in the central Arctic Ocean

Matter commented on: The first meeting of the so-called ‘Broader Process’ on  international regulation of high seas fishing in the central Arctic Ocean, held in Washington, D.C. between 1-3 December 2015.
Between 1-3 December 2015, delegations from the five Arctic Ocean coastal States – namely Canada, Denmark, Norway, the Russian Federation and the United States (the so-called ‘Arctic Five’) – as well as delegations from five other States and entities – namely China, the European Union (EU), Iceland, Japan and South Korea – met in Washington, D.C. for a meeting on high seas fishing in the central Arctic Ocean. The meeting was initiated, hosted and chaired by the United States. A Chairman’s Statement on the meeting (2015 Washington Chairman’s Statement) was released on 3 December.
The 2015 Washington Meeting was the first meeting of the so-called ‘Broader Process’ on international regulation of high seas fishing in the central Arctic Ocean that was envisaged in the ‘Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean’ signed by the Arctic Five in Oslo on 16 July 2015 (2015 Oslo Declaration). The 2015 Oslo Declaration marked the conclusion of the Arctic Ocean coastal States process on Arctic Ocean fisheries, which could be regarded as a preparatory phase of the Broader Process (for some discussion see E.J. Molenaar, “The Oslo Declaration on High Seas Fishing in the Central Arctic Ocean”, Arctic Yearbook 2015 (available at www.arcticyearbook.com), pp. 427-431; S. Ryder, “The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean”, post of 11 August 2015 on The JCLOS Blog; and E.J. Molenaar, “International Regulation of Central Arctic Ocean Fisheries” in M.H. Nordquist, E. Nordtveit and T.H. Heidar (eds) Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries (Martinus Nijhoff Publishers: forthcoming in 2016), pp. 429-463).
This post offers a commentary on the 2015 Washington Meeting based on the Chairman’s Statement as well as the Provisional Agenda, the draft ‘Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean’ of 2 November 2015 submitted by the United States (both on file with author), and interviews with participants of the 2015 Washington Meeting. The subsequent sections deal with ‘Participation’, ‘Geographical Scope’, ‘Provisional Agenda and Main Purpose’, ‘Scientific Matters’, ‘The Roadmap of the Broader Process’, ‘Observations in Light of the Fish Stocks Agreement’s Definition of an RFMA’ and ‘Final Remarks’.
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The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean

The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean Posted: 31 Jul 2015 09:00 AM PDT By: Seamus Ryder PDF Version: The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean Matter Commented On: The Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean On 16 July, 2015, Ambassadorial-level representatives from all five Arctic Ocean coastal states – Canada, Denmark, Norway, Russia and the United States (the Arctic Five) – met in Oslo to sign the Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean (the Declaration). The Declaration follows up on the substantive outcome of the February 2014 Nuuk Meeting on Central Arctic Ocean Fisheries and builds upon discussions toward the development and implementation of interim measures to prevent unregulated fishing in the high seas portion of the central Arctic Ocean and related scientific matters. In this sense, the Declaration can be seen as the latest development in a so-called “Arctic Ocean coastal state process” on the regulation and management of Arctic Ocean fisheries. This blog post looks at the substantive output of this latest development and makes some initial observations regarding the contribution of the Declaration to the legal and policy framework for Arctic fisheries (background information and discussions on both the Nuuk meeting and the Arctic Ocean coastal state process on Arctic Ocean fisheries can be found in an earlier blog post). If nothing else, this post aims to clarify a number of apparent misconceptions and inaccuracies in media reports on the Declaration. This post begins with a very brief history of the events and discussions leading towards the (delayed) signing of the Declaration. The Declaration was finalized more than a year later than the initial timeline announced at the Nuuk meeting in February 2014. The possible reasons for this delay will be considered. The post next examines the main outcome of the Declaration – namely, the declared intent on behalf of the Arctic Five to implement interim measures to prevent unregulated fishing in the high seas of the central Arctic Ocean. It should be noted at the outset that, similar to the “agreements” reached at the Nuuk meeting, the Declaration is not legally binding, but contains non-legally binding commitments on high seas fisheries in the central Arctic Ocean. Finally the post explores some issues that are raised by the Declaration (or its representation in the media), taking into consideration, among other things, its role in the future development of the legal and policy framework for Arctic Ocean fisheries. Background to the Declaration As stated at the outset, the Declaration can be seen as the latest development in the Arctic Ocean coastal state process on the management of Arctic Ocean fisheries, which has been introduced and explained in more detail elsewhere (see also: E.J. Molenaar, “International Regulation of Central Arctic Ocean Fisheries” to appear in M.H. Nordquist, E. Nordtveit and T.H. Heidar (eds) Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries (Martinus Nijhoff Publishers: forthcoming in 2015); N. Wegge, “The Emerging Politics of the Arctic Ocean. Future Management of the Living Marine Resources”, 51 Marine Policy 331-338 (2015)). To summarize this process briefly, following two ministerial meetings held in Ilulissat, Greenland in May 2008, and Chelsea, Canada in March 2010 – which concerned cooperation and coordination among the Arctic Five on Arctic policy/governance, in general – dedicated fisheries policy/governance meetings (for which information is publicly available) took place at the level of senior officials in Oslo in June 2010, Washington D.C. in April and May 2013, and Nuuk, in February 2014. There have also been at least three meetings of scientific experts from the Arctic Ocean coastal states – and, recently, those from other nations conducting Arctic research (China, Japan, Korea and Iceland) – the first in Anchorage, United States, in June 2011, the second in Tromsø, Norway, in October 2013, and the third, most recently, in Seattle, United States, in April 2015. As Molenaar has observed, although the spatial focus of earlier policy/governance meetings related to Arctic Ocean fisheries in general, more recent meetings have focused exclusively on high seas fisheries in the central Arctic Ocean. This is reflected in the spatial focus of the Declaration, discussed in the following section, below. The finalization of the Declaration had been expected for some time as an output of the Arctic Ocean coastal state process described above, and in particular, as part of the substantive outcome of the Nuuk meeting, wherein the Arctic Five “agreed to finalize a Ministerial Declaration for signature or adoption by the five states based on the provisions described [in the Chairman’s Statement from the 2014 Nuuk Meeting]”. The significant delay in finalizing the Declaration was unexpected, however, as the Nuuk meeting had expressed “the desire to finalize the Ministerial Declaration for signature or adoption in June 2014” – a timeline that the now-finalized Declaration overshot by more than one year. The most common explanation for the delay, as advanced by the present author and others, is that the Arctic Ocean coastal state process was stalled, impeded, or otherwise derailed by events in Crimea in early 2014 and subsequent events in Eastern Ukraine, which led to a near-breakdown in diplomatic relations between Russia, on the one hand, and the other Arctic Ocean coastal states, on the other. However, differing views or disagreement among the Arctic Five over the actual substance of the Declaration itself or related procedural issues should not be ruled out as a contributing factor in the delay of its signature and adoption. The substance of the Declaration will now be considered further. The Substance of the Declaration As previously stated, the Declaration largely adopts or builds upon the substantive outcome of the Nuuk meeting – namely, the “agreements” and “provisions” described in the Chairman’s Statement from that meeting. However, 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 […] central Arctic Ocean”. The Declaration, on the other hand, 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. Although the legal status of the Declaration is not clear-cut, it is likely best understood as containing a number of non-legally binding commitments, 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. The Declaration adopts the same spatial focus as the Nuuk meeting, focusing exclusively on “the high seas portion of the central Arctic Ocean” and using the term to denote “the single high seas portion of the Arctic Ocean that is entirely surrounded by waters under the fisheries jurisdiction of Canada, the Kingdom of Denmark in respect of Greenland, the Kingdom of Norway, the Russian Federation and the United States of America”. It begins by recognizing the dramatic reduction of sea ice and other environmental changes in this area as a result of climate change, and the limited scientific knowledge or understanding of the effects of these changes on the marine ecosystems of the Arctic Ocean. It further recognizes the common view among the Arctic Five that, despite these changes, commercial fishing in the high seas portion of the central Arctic Ocean is unlikely to occur in the near future, and, therefore, that there is no need at present to establish any additional regional fisheries management organization for the area. Nevertheless, “recalling the obligations of states under international law to cooperate with each other in the conservation and management of living marine resources in the high seas areas, including the obligation to apply the precautionary approach,” the Declaration expresses the shared view of the Arctic Five “that it is desirable to implement appropriate interim measures to deter unregulated fishing in the future in the high seas portion of the central Arctic Ocean.” Accordingly, through the Declaration, the Arctic Five declare their intent to implement the following interim measures: § To authorize their vessels to conduct commercial fishing in the high seas portion of the central Arctic Ocean only pursuant to one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with recognized international standards. § 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). § 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 central Arctic Ocean. § To ensure that any non-commercial fishing in the high seas portion of the central Arctic Ocean 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 is also declared that these interim measures “will neither undermine nor conflict with the role and mandate of any existing international mechanism relating to fisheries, including the North-East Atlantic Fisheries Commission. Nor will these interim measures prejudice the rights, jurisdiction and duties of States under relevant provisions of international law as reflected in the 1982 United Nations Convention on the Law of the Sea, or the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, or alter the rights and obligations of States that arise from relevant international agreements.” Finally, the Declaration includes an undertaking on behalf of the Arctic Five, in implementing these interim measures, to “continue to engage with Arctic residents, particularly the Arctic indigenous peoples, as appropriate”, and recognizes the interest of these peoples, and other Arctic residents, “in the proper management of living marine resources in the Arctic Ocean”. Similarly, the Arctic Five commit themselves “to work together to encourage other states to take measures in respect of vessels entitled to fly their flags that are consistent with the interim measures”. In this regard, the Declaration provides that the Arctic Five “acknowledge the interest of other States in preventing unregulated high seas fisheries in the central Arctic Ocean 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.” A ‘Ban’ on High Seas Fisheries in the Central Arctic Ocean? Many media reports have described the substance of the Declaration, overviewed above, as amounting to a “ban” or “moratorium” on fishing in the Arctic. However, as this section of the post aims to demonstrate, this is an inaccurate characterization of the substantive outcome of the Declaration. 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 central Arctic Ocean. 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 central Arctic Ocean, and would not be legally enforceable amongst the parties to the Declaration. However, it is submitted that the interim measures do not amount to a ban or moratorium on fishing, even in a general sense. For the present discussion, the key component of the interim measures is the agreement among the Arctic Five that they will: … authorize [their] vessels to conduct commercial fishing in the high seas portion of the central Arctic Ocean only pursuant to one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with recognized international standards. This interim measure therefore only restricts commercial fishing. Thus, the restrictions or conditions imposed by the provision do not apply to subsistence, scientific, recreational, or other types of non-commercial fishing that may take place in the high seas portion of the central Arctic Ocean. This understanding of the provision is reinforced by the fact that the fourth interim measure described in the Declaration actually envisages the possibility of “non-commercial fishing in this area”. Further, although the interim measure appears to restrict commercial fishing in the high seas portion of the central Arctic Ocean, it is apparent that such restriction does not amount to a prohibition of commercial fishing of any sorts, but instead, imposes two conditions that must be met before the Arctic Five can authorize their vessels to engage in commercial fishing in the area. These conditions are that such fishing can only occur (1) pursuant to one or more regional or subregional fisheries management organizations (RFMOs) or arrangements (RFMAs) that (2) “are or may be established to manage such fishing in accordance with recognized international standards” (see also, Molenaar, “International Regulation of Central Arctic Ocean Fisheries” (Forthcoming, 2015), 19). Therefore, far from imposing an outright ban or moratorium on commercial fishing in the high seas portion of the central Arctic Ocean, the interim measure actually allows such fishing subject to the two above-mentioned conditions. A few brief comments regarding these conditions are warranted. It is clear from the first condition that commercial fishing in the high seas portion of the central Arctic Ocean could be compatible with the interim measure, so long as such fishing is conducted pursuant to one or more RFMOs or RFMAs. However, uncertainty exists as to which RFMOs or RFMAs might be relevant for the purpose of this condition. The Declaration explicitly acknowledges that the North-East Atlantic Fisheries Commission (NEAFC) is an existing “international mechanism relating to fisheries” relevant to the central Arctic Ocean. Thus, the interim measure likely permits those members of the Arctic Five that are also members of NEAFC to authorize their vessels to conduct commercial fishing in the central Arctic Ocean segment of the NEAFC regulatory area pursuant to NEAFC’s conservation and management measures. In contrast, there is no explicit acknowledgment of the Joint Norwegian-Russian Fisheries Commission (Joint Commission). At least according to the assertions of its members (Norway and the Russian Federation), the Joint Commission has spatial competence extending throughout the central Arctic Ocean even if such spatial competence is not explicitly defined in its constitutive instrument. Uncertainty also exists in relation to whether or not the Joint Commission is an RFMO or RFMA for the purpose of the Declaration and its interim measures (See, again, Molenaar, “International Regulation of Central Arctic Ocean Fisheries”, (Forthcoming, 2015), for more detailed treatment of this issue). Notwithstanding these uncertainties, there clearly exists at least one potential scenario in which the interim measure would not prohibit the Arctic Five from authorizing their vessels to conduct commercial fishing in the high seas portion of the central Arctic Ocean, even under the existing institutional framework, without any additional RFMOs or RFMAs for the area. In this regard, the interim measure cannot be seen as imposing a ban on high seas fisheries in the central Arctic Ocean. As regards the second condition of the interim measure – namely, that the RFMOs or RFMAs (pursuant to which commercial fishing may take place) “are or may be established to manage such fishing in accordance with recognized international standards” – the wording used in the Declaration is evidently adopted from, and nearly identical to, wording used to describe an envisaged interim measure in the Chairman’s Statement of the 2014 Nuuk Meeting. However, whereas the wording in the Declaration links fisheries management by RFMOs and RFMAs to the phrase “recognized international standards”, the Chairman’s Statement links fisheries management by RFMOs and RFMAs to the phrase “modern international standards”. It is not clear why this change was made in the Declaration. The term “modern” may be more preferable from the perspective of conservation, for example, by placing greater emphasis on more recently developed approaches in international fisheries law and management, such as the precautionary approach and ecosystem-based fisheries management. Alternatively, the term “recognized” can be viewed as more closely aligned with the phrase and concept of “generally recommended international minimum standards” – a phrase and concept which features extensively throughout international law of the sea and international fisheries law (see, eg, Articles 61(3) and 119(1)(a) of the 1982 United Nations Convention on the Law of the Sea; Articles 5(b) and 10(c) of the 1995 United Nations Fish Stocks Agreement; cf., Article 30(5) of the Agreement, which uses the phrase “generally accepted standards for the conservation and management of living marine resources”). One or more of the Arctic Five may have ultimately insisted on using the term “recognized” in the Declaration, to signify that it is of more importance that any fishing is managed in accordance with recognized international standards, rather than modern ones. Of course, both terms are quite general and non-specific, and one phrase is likely intended to comprise the same key obligations as the other, so it may not be very significant that different wording is used in the Declaration and the Chairman’s Statement of the 2014 Nuuk meeting. In analyzing the phrase “modern international standards” in the context of the Chairman’s Statement, Molenaar submits that the phrase is likely to be intended to comprise the following key obligations and in particular the ecosystem approach to fisheries (EAF) and the precautionary approach to fisheries management (see Molenaar, “International Regulation of Central Arctic Ocean Fisheries” (Forthcoming, 2015)): § To avoid over-exploitation of target species by means of setting a science-based total allowable catch (TAC), which strives for maximum sustainable yield (MSY) as qualified by the precautionary approach; § To strive for the optimum utilization of target species within the exclusive economic zone (EEZ) or exclusive fishery zone (EFZ) by providing other states with access to the surplus of the TAC; § To pursue an ecosystem approach to fisheries (EAF), which often focuses in particular on (a) predator-prey relationships; (b) impacts of fisheries on non-target species and the ecosystem as a whole; and (c) impacts of oceanographic or climate processes, or pollution, on fish stocks; § To cooperate in relation to transboundary fish stocks and fish stocks that occur exclusively on the high seas; and § To exercise effective jurisdiction and control over a state’s own vessels. Molenaar further observes that, in view of the particular characteristics of the Arctic Ocean, the phrase is likely to require specific attention to international standards relating to new and exploratory fisheries (directing attention to, inter alia, Article 6(6) of the 1995 United Nations Fish Stocks Agreement.) Since the above obligations and standards are, in fact, recognized as key obligations and standards within the global component of international fisheries law, the phrase “recognized international standards” used in the Declaration is also likely to be intended to comprise these same obligations and standards. As observed earlier, both phrases are linked to fisheries management by RFMOs or RFMAs. However, in both the Declaration and the Chairman’s Statement of the 2014 Nuuk meeting, the meaning of the wording chosen for this linkage is unclear. The Declaration and the Chairman’s Statement are similar enough in this respect that comments made in relation to one are equally relevant for the other. As Molenaar observes in relation to the wording used in the context of the Chairman’s Statement (see Molenaar, “International Regulation of Central Arctic Ocean Fisheries” (Forthcoming, 2015)): The wording chosen for this linkage is “established to manage” rather than, for instance, ‘established and manage’. The literal meaning of the chosen wording is therefore that existing and future RFMOs or RFMAs are ‘merely’ required to have the mandate to manage fishing in accordance with “modern international standards”. Rather than actually managing fishing in accordance with international standards, it would thus be sufficient for RFMOs or RFMAs to have the ability to manage fishing in this way. It is submitted, however, that this is unlikely to have been what the Arctic Five had in mind at the 2014 Nuuk Meeting. If correct, this could be clarified in the envisaged commitment. Obviously, the envisaged commitment – the Declaration – did not clarify the meaning of the wording used in the Chairman’s Statement, given that it also adopted the wording “established to manage” verbatim. This is regrettable, as the lack of clarity in regard to this linkage arguably weakens the potential impact of the interim measure on fisheries management. The above discussions have thus far explained various reasons why the substance of the Declaration cannot be characterized as imposing a legally binding ban or moratorium on commercial fishing in the high seas portion of the central Arctic Ocean – at best, the Declaration can be seen as a political agreement among the Arctic Five to prevent unregulated commercial fishing. This post advances one final reason why characterizing the Declaration as imposing an outright ban on commercial fishing in the high seas portion of the central Arctic Ocean is inaccurate. Even if the Declaration can be considered as imposing a ban on commercial fishing in the high seas portion of the central Arctic Ocean (and it was submitted in discussions above that it cannot), it does not establish an outright ban because it only applies to vessels flying the flags of the Arctic Five. There is nothing in the Declaration to suggest that it applies to non-signatories. If it did, however, such a ban would be prima facie incompatible with the freedom of fishing on the high seas (see Article 116 of the 1982 United Nations Convention on the Law of the Sea), and could therefore be challenged by other states outside of the Arctic Five. Although it might be possible to overcome this incompatibility by achieving broader support among these other states, thus enhancing the legitimacy of any proposed measures, such support has not yet been achieved in the case of the interim measures described in the Declaration. The Arctic Five seemingly acknowledge that the legitimacy and effectiveness of interim measures related to high seas fishing in the central Arctic Ocean – amounting to a ban or otherwise – would benefit from the support of other key states and entities.  Accordingly, the Arctic Five allude to “a broader process to develop measures consistent with this Declaration that would include commitments by all interested States.” The next section considers this broader process in more detail. A Broader Process As previously stated, the Arctic Five conclude the Declaration by acknowledging “the interest of other States in preventing unregulated high seas fisheries in the central Arctic Ocean” and that the Arctic Five “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.” The Chairman’s Statement from the Nuuk meeting also contained similar statements, and a number of largely speculative observations on the broader process as envisaged at the Nuuk Meeting have already been made. To comment on the broader process as now envisaged by the Declaration is to further speculate, but a few brief comments are nonetheless warranted. First, it is notable to observe that, whereas the Chairman’s Statement from the Nuuk meeting indicated a time by which the envisaged broader process could be expected to begin (“before the end of 2014”), the Declaration provides no indication of the timeline the envisaged process will follow. The Arctic Five likely sought to avoid repeating the scenario they found themselves in following the Nuuk meeting – where a timeline for the broader process was provided at that meeting, only to be overshot by a considerable margin. Still, even today, no significant concrete action seems to have been taken. Of course, the delay has been attributed to the events that took place in Crimea and the subsequent events in Eastern Ukraine, which may no longer be a source of delay. However, considering that diplomatic relations among the Arctic Five have not significantly improved since those events, the five states are likely (and understandably) reluctant to fuel any further expectations regarding the pace of developments. By omitting temporal elements from the description of the envisaged broader process, the Arctic Five have perhaps spared themselves some further embarrassment due to missed timelines and delays. Another notable difference between the broader process as envisaged by the Declaration, on one hand, and the broader process as envisaged by the Chairman’s Statement from the Nuuk meeting, on the other, regards the envisaged final outcome of this process. In the Chairman’s Statement from the Nuuk Meeting, the Arctic Five explicitly acknowledge that the final outcome of the envisaged broader process “could be a binding international agreement”. No such acknowledgement is given in the Declaration. One can only speculate as to what reasons may underlie this change. There is presumably no longer consensus on the need or desirability to mention that the broader process could culminate in a legally binding instrument. This may be due to lack of support for such an outcome by one or more of the Arctic Ocean coastal states. However, the omission of a reference to the outcome of the broader process should at the same time also not be overstated, as it would clearly not preclude a legally binding outcome Another topic of speculation surrounding the envisaged broader process concerns its participants. The prevailing view seems to be that participation in the broader process would be exclusively based on invitation by the Arctic Five. Based on communications between the author, other commentators, and government officials from Norway, Canada, and the United States, the following non-Arctic Ocean states and entities are expected to be participants: China, the EU, Iceland, Japan and South Korea. The participation of scientific experts from China, Iceland, Japan, and South Korea at the most recent scientific meeting in Seattle, United States, in April 2015 is publicly acknowledged, which seems to support the above position, at least in part. However, no such acknowledgment was provided regarding scientific experts representing the EU, which perhaps allows for the entity’s role in the broader process to be questioned. Further, 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 Declaration. The Arctic Five would do well to consider the concerns of Iceland and other non-Arctic Ocean states in future consultations and preparations. 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 (see, again, see Article 116 of the 1982 United Nations Convention on the Law of the Sea) and the concept of real interest (see Articles 8(3),(5) and 9(2) of the 1995 United Nations Fish Stocks Agreement). As regards non-state actors, the Arctic Ocean coastal state process has so far involved considerable participation by non-governmental organizations (NGOs) (notably, Pew, which has been exceptionally active) and Arctic indigenous peoples (see, N. Wegge, “The Emerging Politics of the Arctic Ocean. Future Management of the Living Marine Resources”(2015)). However, it is worth noting that such participation was only possible by inclusion of the representatives of non-state actors within the delegations of the Arctic Five, but not through participation in their own right (e.g., through independent representation in separate delegations). It is not clear whether participation of non-state actors in the broader process will continue in this way, adopt some other format, or cease altogether. The Declaration suggests that participation by Arctic indigenous peoples can at least be expected to continue as the broader process develops. It is submitted that further participation by both Arctic indigenous peoples and NGOs, as well as other non-state actors (such as members of the fishing industry), could enhance the overall legitimacy of the evolving broader process. Conclusion Despite the speculation and uncertainties surrounding the Declaration, or some of the other issues that have been discussed in this post, it is nonetheless a significant step in the Arctic Ocean coastal state process on central Arctic Ocean fisheries. Although the interim measures that the Arctic Five have, by way of the Declaration, committed themselves to implementing do not amount to an outright ban on fishing in the Arctic, they should nonetheless be viewed as a precautionary and proactive step forward in the conservation and management of central Arctic Ocean fisheries. The Declaration appears to recognize the significant lack of science and data that is required for ecosystem-based fisheries management, and seeks to remedy this knowledge gap before commercial fisheries are established. This demonstrates commitment to fundamental principles of international fisheries management, and, in particular, international standards for the management of new and exploratory fisheries. Further, the interim measures appear to be largely consistent with the global elements of the international legal framework, although the legitimacy and effectiveness of a future international instrument on high seas fisheries in the central Arctic Ocean will ultimately depend on the support of other key states and entities. More significantly, the Declaration signals the desire and will, by the Arctic Five, to put aside disputes emerging from beyond the Arctic, at least when dealing with Arctic issues, and to prevent such broader disputes from derailing cooperation on such issues. Hopefully, this type of cooperation on central Arctic Ocean fisheries can inspire cooperation on other Arctic issues and across different sectors. The need for such cooperation will only likely grow stronger, as the region continues to experience unprecedented and rapid changes as a result of climate change, and new challenges and opportunities emerge. Hopefully, cooperation on central Arctic Ocean fisheries continues, and provides a useful template for other sectors and subject areas. The author is very grateful for assistance and comments received by Professor Nigel Bankes, Professor Tore Henriksen and Professor Erik Molenaar on earlier drafts of this post. Notwithstanding, any errors or omissions in this work are the author’s own. This comment will also be cross-posted on the blog of the KG Jebsen Centre of the Law of the Sea, Tromsø. Readers interested in law of the sea issues might wish to follow that site. To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca Follow us on Twitter @ABlawg Tweet

Call for Papers: “NEW CHALLENGES FACING THE ARCTIC OCEAN AND OTHER FRAGILE SEAS”, FEBRUARY 20, 2015

Dear All,

 

We are pleased to announce that Northern Institute for Environmental and Minority Law at the Arctic Centre of the University of Lapland will organize an international conference entitled “NEW CHALLENGES FACING THE ARCTIC OCEAN AND OTHER FRAGILE SEAS”. Please visit the following link for more information:

 

http://www.marsafenet.org/marsafenet/wp-content/uploads/2014/10/Rovaniemi-CALL-for-PAPERS-February-2015-final.pdf

 

We welcome your participation. We also request you to kindly circulate the call amongst your own network!

Arctic Energy Conference!

The legal Issues associated with the development and use of Arctic energy resources
to be held at UiT, The Arctic University of Norway. 


More info

Polar Law Symposium 2014

Dear colleagues, friends,

Now our polar law symposium takes a jump to the other side – finally, one might addJ So the next polar law symposium is in Tasmania and you are all very much welcome to join us. See at:

http://lists.canterbury.ac.nz/pipermail/polarpol/attachments/20140202/0d7b0f2b/attachment.pdf

Best, Timo

Timo Koivurova

Research professor, director

The Northern Institute for Environmental and Minority Law

Arctic Centre

University of Lapland

Call for Papers: Conference on the Legal issues associated with the development and use of Arctic energy resources, 25 - 26th September, 2014

The Faculty of Law, at the University of Tromsø is pleased to announce the call for papers for the energy law conference on “The legal issues associated with the development and use of energy resources in the Arctic”.
You are invited to submit proposals to present a paper addressing the conference theme, broadly construed. Without intending to be prescriptive, examples of topics that would fall within the scope of the conference include legal issues (domestic and international law) related to any of the following in an Arctic context: the role of strategic and project-specific environmental assessments; energy markets; energy security in an Arctic context; energy relations between the EU and Russia; the energy relations of Nordic States; energy relations between the EU and Arctic states; the role of renewables in the Arctic including wind, geothermal, tidal; non-conventional energy resources such as gas hydrates; the oil and gas leasing regimes of Arctic states; infrastructure issues (transmission lines and pipelines); navigation and other law of the sea issues associated with getting Arctic resources to market; liability issues and liability regimes for energy projects; insurance issues; project financing issues; delimitation of maritime zones and the management of transboundary hydrocarbon resources; extended continental shelf claims; energy resource projects on indigenous lands; social licence to operate; climate change issues (e.g. regulation of black carbon); Arctic energy resources and endangered species; energy as a human right; energy efficiency; regional governance issues (e.g. the role of the Arctic Council, OSPAR etc).

Proposals will be considered by the conference convenors on the basis of academic merit and policy significance and fit with the conference theme. Abstracts of no more than 500 words should be submitted to the convenors by April 30, 2014. Abstracts should be sent to maria.m.neves@uit.no.

We anticipate (depending on numbers) being able to cover the costs of hotel accommodation and meals for those selected to present papers.

For more information on the conference please visit our website www.uit.no/lawofthesea or contact christin.skjervold@uit.no.

Steering Committee
Professor Nigel Bankes—University of Calgary and University of Tromsø
Associate Professor Ingvild Ulrikke Jakobsen—University of Tromsø
Research Fellow Maria Madalena das Neves—University of Tromsø
Johan Petter Barlindhaug—Chairman of the Board of Directors of North Energy ASA

Confirmed Keynote Speakers
Else Berit Eikeland, Member of the Arctic Council - Senior Arctic Official, Norwegian Ministry of Foreign Affairs
Professor Timo Koivurova—Arctic Centre/University of Lapland
Professor Kim Talus—University of Eastern Finland
Dr. Anatole Boute—University of Aberdeen

The conference aims to bring together scholars, graduate students, practitioners, representatives of the energy industry, non-governmental organizations and indigenous peoples to discuss a range of legal issues associated with the development and use of energy resources in the Arctic.

The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost? by Elizabeth Whitsitt and Nigel Bankes

The University of Calgary Faculty of Law Blog on Developments in Alberta Law has recently released an interesting article written by Elizabeth Whitsitt and Nigel Bankes on the WTO Panel Decision on the EU's Rules on the Marketing of the Seal Products. Read more from:

The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost?