Ocean stewardship: Moving from words to action in the central Arctic Ocean
14 January 2021
The central Arctic Ocean is undergoing unprecedented change, and much more is anticipated. States must show leadership by adopting proactive and precautionary plans and measures. Erik J. Molenaar explains why it’s time for states to become stewards.
State stewardship of the central Arctic Ocean is a forward-looking idea that seeks to balance the interests of present and future generations.
The origins of this notion date back to 1970. That year, Canada adopted the Arctic Waters Pollution Prevention Act after the US oil tanker SS Manhattan transited the Northwest Passage. At the time, this clearly violated international law, triggering strong protests from many states. The new act imposed Canadian standards on foreign ships off Canada’s Arctic coast.
Canada argued that its actions were justified because it was acting as a custodian on behalf of humankind. Eventually, Canada managed to align its Arctic Waters Pollution Prevention Act with international law by successfully advocating for the so-called Arctic exception in Article 234 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
An implied stewardship role
While stewardship has been virtually absent in the Arctic Council, it features prominently in the famous 2008 Ilulissat Declaration. Through this declaration, the five central Arctic Ocean coastal states (Canada, Denmark/Greenland, Norway, Russia and the US) claimed a stewardship role to protect the central Arctic Ocean.
However, the Arctic Five are not the only states that can or should play a stewardship role in the central Arctic Ocean. The area includes the Arctic Five’s coastal state maritime zones (for example, their exclusive economic zones), but also areas beyond national jurisdiction. The latter areas consist of a large high seas area and a much smaller area of the international seabed (see map, right). These areas will be governed by a new UNCLOS implementation agreement on marine biodiversity of areas beyond national jurisdiction, known as the BBNJ Agreement. That agreement is under negotiation. The preamble in its most recent draft speaks of states desiring “to act as stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations.”
While accepting or claiming responsibility as stewards is an essential first step, implementation must follow. The 2018 Central Arctic Ocean Fisheries Agreement is a laudable example, even though it does not specifically mention stewardship. It is expected to come into force soon. When it does, it will require its 10 parties—the Arctic Five plus China, the European Union, Iceland, Japan and South Korea—to abstain from fishing in the high seas of the central Arctic Ocean until it is determined that this can be done sustainably.
Highly troubling is the ban on the use and carriage of heavy fuel oil in the Arctic adopted by the International Maritime Organization last November: the ban’s effectiveness is seriously compromised, not only by various exemptions but also because it gives the Arctic Five a waiver for their own vessels operating in their own maritime zones. Given that such waivers are clearly inconsistent with both the rationale of Article 234 of the UNCLOS and the Arctic Five’s self-asserted stewardship role, the Arctic Five should refrain from using it.
Opportunities and challenges for the Arctic Council
The most recent draft of the BBNJ Agreement reveals that its implementation will rely to a large extent on global and regional bodies, especially with regard to marine protected areas (MPAs). When such bodies have competence to establish MPAs and adopt associated measures, the BBNJ Agreement is likely to recognize that competence. It could also make such measures binding for non-members of these bodies if they are parties to the agreement.
This offers both opportunities and challenges for the Arctic Council. The international community generally accepts the Council as the principal intergovernmental body for Arctic cooperation. But because it is a forum rather than an organization, it lacks the competence to adopt legally binding decisions. For the BBNJ Agreement’s provisions on MPAs, this is likely to be an insurmountable shortcoming. If the Council wants to take on a stewardship role with regard to MPAs pursuant to the BBNJ Agreement, it will have to transform into a body that can adopt legally binding decisions. It is unlikely to achieve this in the short term.
However, by deciding to negotiate three legally binding agreements under the Council’s auspices—on search and rescue, oil pollution preparedness and response, and scientific cooperation—the Arctic states have shown that where there is a will, there’s a way—and nothing is stopping them from undertaking such leadership, proactiveness and creative thinking once again. This was also pointed out by several participants in the first-ever Senior Arctic Officials-based Marine Mechanism, which took place online last September and October. Several concrete suggestions for the high seas of the central Arctic Ocean were also made—for example, exploring the possibility of a first high seas MPA and a pilot project on ecosystem-based management.
Let’s hope such experiments with leadership will ultimately build the confidence we need to establish a strong, stewardship-based governance regime for the central Arctic Ocean.
ERIK J. MOLENAAR is deputy director at the Netherlands Institute for the Law of the Sea (NILOS) at Utrecht University.
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