Arctic Marine Biodiversity in Areas Beyond National Jurisdiction: Framing A Legally Binding MPA Regime?

Introduction

The UN Generally Assembly, by virtue of its Resolution 69/292 of June 19, 2015, has decided to establish a Preparatory Committee (Prep Com) to receive recommendations for a draft text of an internationally binding legal instrument on the conservation and sustainable use of marine biological diversity in the areas beyond national jurisdiction (BBNJ agreement) under the UN Convention on the Law of the Sea (UNCLOS). The Prep Com had its first meeting held from March 28 to April 8, 2016. The scope of discussions in the first meeting included: assessments of the relationship between the proposed BBNJ agreement and other existing instruments and bodies; guiding approaches and principles; marine genetic resources (MGRs), including questions on benefit-sharing; area-based management tools (ABMTs), including marine protected areas (MPAs); environmental impact assessments (EIAs); and capacity building and marine technology transfer. Against this background, this Insight investigates whether the legally binding agreement to come offers a sustainable solution for the maintenance of Arctic marine biodiversity in the areas beyond national jurisdiction (ABNJ). If not, what could be the possible approach for the protection of critical Arctic marine biodiversity in the ABNJ?

Why Arctic Marine ABNJ?

The Arctic is one of the earth’s last pristine environments, supporting a rich biodiversity that offers stability to the region’s critical ecosystems.[1] Its marine area, some 14 million square kilometers representing around 3–4 percent of earth’s ocean surface, is the size of Antarctica; of which 2.8 million square kilometers are the high seas,[2] representing approximately 1.2 percent of the whole of the world’s ocean ABNJ. While it is a relatively small maritime area, this ocean space has tremendous significance because of its fragile and sensitive ecosystem and its unique biodiversity. The Arctic Ocean is the habitat of around 21,000 species. These include 5,000 animal species, such as marine mammals, birds, fish and other higher organisms; 2,000 types of algae; and tens of thousands of ecologically critical microbes.[3] These species are highly adaptive to the Arctic’s cold climate and crucial to its marine ecosystem.

One of the major factors affecting Arctic biodiversity today is the rapid rise in the region’s temperature, now proceeding at twice the global rate.[4] Ice in the Arctic Ocean has become progressively thinner and is leaving more open water, especially during the summer months. This has brought increased access to Arctic marine areas, soon to include parts of the central Arctic Ocean. Human activities, such as navigation, oil and gas extraction, fisheries and tourism are expected to increase commensurately followed by other likely developments, such as marine research and bioprospecting, pipeline and cable placement, and the creation of artificial islands and similar installations. The likely effect of all these activities is the destruction of marine ecological balance of the Arctic Ocean.

Given the sensitivity and the fragility of the Arctic ecosystem, several parts of the Arctic Ocean can be regarded as ecologically and biologically significant areas (EBSAs): they have uniqueness or rarity with special importance for life history stages of endangered or threatened species. Therefore, a balance is needed between conservation and sustainable use of marine resources, including maintenance of ecosystem services and resilience to climate change and ocean acidification.

Embracing an ecosystem-based approach, a legal regime featuring an integrated management system with restrictions on human activities and specific, a new Arctic-specific legal regime should offer complementary measures for marine environmental protection. The BBNJ agreement will address conservation and sustainable use of marine biodiversity in ABNJ. However, it is important to look at whether the general character of the proposed instrument may be capable of endorsing Arctic-specific conditions to safeguard its critical marine biodiversity in the ABNJ.

Gaps in Existing Regulatory Mechanisms Focusing on the Arctic

While regulatory tools exist to protect marine biodiversity, they leave gaps when it comes to the Arctic. The UN Convention on the Law of the Sea (UNCLOS) and the Convention on Biological Diversity (CBD) provide legal frameworks that comprehensively address marine biodiversity protection. Yet, the rules in these instruments are rather broad-brush, requiring further action from the states parties to be effective. The International Maritime Organization (IMO) provides other tools at the international and regional levels that apply to the Arctic: in particular, its Polar Code;[5] amendments to Annexes I, II, IV, and V of MARPOL; and a new Chapter XIV within the framework of its International Convention for the Safety of Life at Sea (SOLAS). The measures, effective from 2017, focus on safe vessel operation and protection of the marine environment in polar waters. Other applicable conventions are the International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC), geared to controlling and reducing pollution after oil spills, and the London Convention, which deals with ocean dumping. Also salient in this regard are treaties concluded under the auspices of the Arctic Council—a high level inter-governmental forum of the eight circumpolar Arctic states and six circumpolar indigenous associations representing Arctic Indigenous Peoples with permanent participant status—examples being the Aeronautical and Maritime Search and Rescue in the Arctic[6] and Oil Spill Agreements.[7] Lastly, one could cite the obligations, although not legally binding, put forward in agreements concluded by the IMO and the Arctic Council. While these instruments offer an array of relevant sector-specific mechanisms to protect marine biodiversity, they fall short of being a comprehensive legal regime for the Arctic, in particular in ABNJ. A more effective governance structure is required.  

The proposed BBNJ agreement is expected to mitigate the regulatory gaps within the framework of an existing legal structure—the CBD and the UNCLOS, which are, again, rather broad-brush. The ongoing work for an internationally binding legal agreement is intended to guarantee a meaningful governance regime for marine biodiversity in the ABNJ in general, which would also include the Arctic Ocean. However, even though the legal regime being developed under the auspices of the UN General Assembly may be a significant development, it still seems to call for either a specific section for the Arctic in particular or a separate regime requiring attention to be paid to Arctic-specific fragility.

A Comprehensive Legal Regime in, and for, the Arctic?

The end of the last decade saw discussion of, but less than keen interest in, an all-encompassing and comprehensive legal governance regime for the Arctic Ocean as a whole. In a 2008 resolution on Arctic governance, the European Parliament highlighted the importance of an Arctic-specific treaty similar to that for the other pole—the Antarctic.[8] However, in that same year, five of the Arctic coastal states expressed a reluctance to embrace any new governance regime for the region.[9] They maintained that the existing regime under UNCLOS and the law of the sea, complemented by cooperation within the initiatives undertaken by the Arctic Council, provides effective governance. Moreover, and crucially, the two poles are not comparable: the Antarctic is land surrounded by ocean, has no permanent human settlements and is not governed by any clear sovereign authorities, whereas the Arctic is an ocean bordered by nation-states with permanent populations and clear sovereign jurisdictions. Thus, these five Arctic states have shown no political willingness to endorse a treaty of general nature. Even if such interest should arise, the ensuing negotiations would be lengthy and arduous and would require legal commitments from a large number of states. The prospect is implausible.

A New Legal Regime to Protect Arctic Marine Biodiversity in the ABNJ?

The proposed BBNJ treaty, having a general scope, will fall short of an effective regime for the protection of marine biodiversity in the Arctic Ocean because of the uniqueness, fragility, and the sensitivity of the Arctic marine ecosystem. Even if an Arctic-specific chapter is added to the proposed agreement, one has to bear in mind that the Prep Com is mandated to prepare a draft by the end of 2017 only to submit it to the UN General Assembly. Thereafter, the UN General Assembly will take an initiative for an international conference to negotiate a treaty. It will require legal commitments from a large number of states, and the treaty will come into force only after a long process of ratification by each state. This time-consuming process of negotiating the treaty will leave the Arctic’s marine biodiversity unprotected. When eventually the treaty comes into force, non-party states still will not be bound by the treaty.

Given the urgency in the context of the Arctic, an alternative solution would be to negotiate a regional agreement between the Arctic states under the auspices of the Arctic Council addressing the sensitive ecosystem of Arctic marine areas for the greater protection of its biodiversity in the ABNJ. The legal regime might take the form of an agreement for the protection of BBNJ applicable to Arctic Ocean EBSAs. While the concept of EBSAs is endorsed within the ambit of the CBD regime, it has not yet become a concrete tool to employ for the conservation of marine biodiversity. Some argue that CBD-endorsed MPAs, complemented by the UNCLOS obligations concerning the preservation of marine biodiversity, do offer tools to protect marine biodiversity. However, despite the legal basis for the creation of MPAs under the general obligation of marine protection set forth in UNCLOS, Article 192, in combination with the specific protection of “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species” in Article 194(5) of UNCLOS, it is not explicit whether MPAs can be established in an ABNJ. The general view is that MPAs can be established within the Exclusive Economic Zone (EEZ) to which coastal states have authority to extend national regulations.

It has been highlighted in the Prep Com meeting that a universal standard for MPA establishment is not possible, cautioning against a “one-size-fits-all” approach to ABMTs. An Arctic-specific MPA would offer a regional legal regime, which would curtail the otherwise lengthy process of treaty negotiation by involving a limited number of states, those having a clear stake in the Arctic Ocean and a duty of stewardship towards the region. These are states that are more willing than most to endorse biodiversity management, given the findings put forward by the Arctic Council in the extensive studies of its working group, Protection of the Arctic Marine Environment (PAME), and in its “Arctic Biodiversity Assessment” (ABA).

The question is whether such an Arctic-specific legal regime, when established, would offer effective legal protection for marine biodiversity in ABNJ. The law of the sea articulates unequivocal freedoms allowing all states to use ABNJ, for fishing, among other purposes.[10] As long as the proposed BBNJ treaty does not restrict high sea freedoms otherwise, a regional agreement would not necessarily bind states that are not parties to it. However, the Arctic states having coastlines around the Arctic Ocean do have stewardship roles compelling them to protect the Arctic marine area, even in ABNJ. In particular, the five coastal states control large portions of the maritime areas in the Arctic Ocean as part of their EEZs. In this light, the Arctic Council, given its previous experiences of brokering similar agreements, such as the 2013 Oil Spill Agreement, cited earlier,[11] whose jurisdiction extends into ABNJ, could be an appropriate venue for negotiating such an agreement. On the one hand, it would offer an effective regime for Arctic biodiversity, and on the other hand would be faster to negotiate. The UN General Assembly-initiated proposed BBNJ treaty with general scope will then complement well the regional, Arctic-specific agreement.

Conclusion

An Arctic-specific legal regime would offer an extension of cooperation in ABNJ. However, unless legal compliance by non-Arctic states is secured, the effectiveness of such a regime will be questionable. Yet, although non-Arctic states that are not parties to the treaty would incur no legal obligations, the instrument would provide an exemplar encouraging them to cooperate with the Arctic states proper—the members of the Arctic Council, who boast a strong regional institution in the Council. Indeed, influential non-Arctic actors, such as China, an observer on the Council, probably would not want to disregard the regime’s institutional norms despite their not being legally binding. Moreover, when the BBNJ treaty is in place, the Arctic-specific regional treaty can be expected to gain greater legitimacy. A regional agreement would be the most expeditious solution for achieving better governance of biodiversity in the high Arctic marine areas, including ABNJ.

About the Author: Kamrul Hossain is an Associate Professor and Director of the Northern Institute for Environmental and Minority Law at the Arctic Centre of the University of Lapland, Finland.