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Possible Ways for Enhancement

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International Governance of the Arctic Marine Environment

Part of the book series: Hamburg Studies on Maritime Affairs ((HAMBURG,volume 27))

Abstract

As has been shown in this research, the changes induced by global warming facing the Arctic imply threats for the marine environment in the region that would not be subject to comprehensive management pursuant to the current legal framework. This leaves the question as to what possible ways governance of the Arctic marine environment can be improved to eliminate or at least ameliorate these deficits.

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Notes

  1. 1.

    Timo Koivurova, “Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic governance,” Polar Record 46, no. 2 (2010) 146–156, at 145.

  2. 2.

    Ibid., at 146.

  3. 3.

    US Arctic region policy 2009, national security presidential directive HSPD – 25, 9 January 2009, available at: http://www.fas.org/irp/offdocs/nspd/nspd-66.htm, last visited 4 December 2009.

  4. 4.

    European Parliament resolution of 9 October 2008 on Arctic governance, available at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2008-0474, last visited 4 December 2009.

  5. 5.

    Communication from the commission to the European parliament and the council, The European Union and the Arctic region, 20 November 2008, COM(2008) 763, p. 10.

  6. 6.

    Ibid.

  7. 7.

    See Stuart Chapin and Neil Hamilton, “Policy Options for Arctic Environmental Governance: Prepared by the Environmental Governance Working Group,” (Arctic Transform, 5 March 2009) (integrated management approach); Tavis Potts and Clive H. Schofield, “The Arctic,” International Journal of Marine and Coastal Law 23, no. 1 (2008), 151–176, at 173; In favour of working within the existing regime, see generally Working Group on the Protection of the Marine Environment, Report of the Third Ministerial Conference on the Protection of the Arctic Environment 83 (1996), available at: http://pame.is/images/stories/Work_Plans/Framework_documents/PAME-1996-Report.pdf; Hans Corell, “Reflections on the possibilities and limitations of a binding legal regime,” Environmental Policy and Law 37, no. 4 (2007), 321–324, at 321; Ilulissat Declaration, Arctic Ocean Conference Ilulissat, Greenland, 27–29 May 2008, available at: http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf, last visited 26 March 2012.

  8. 8.

    Alf H. Hoel, “Do We Need a New Legal Regime for the Arctic Ocean?,” International Journal of Marine and Coastal Law 24 (2009), 443–456, at 455; Corell, “Reflections on the possibilities and limitations of a binding legal regime”, supra note 7, at 321.; Douglas Johnston, “The Future of the Arctic Ocean: Competing Domains of International Public Policy,” Ocean Yearbook 17 (2003), 596–624, at 623 et seq.; Oran Young, “Whither the Arctic 2009? Further developments,” Polar Record 45, no. 2 (2009) 179–181, at 441.

  9. 9.

    See Ilulissat Declaration, supra note 7.

  10. 10.

    See J. A. Roach, “International law and the Arctic: A guide to understanding the issues,” Southwestern Journal of International Law 15, no. 2 (2009) 301–326, at 320; Corell, “Reflections on the possibilities and limitations of a binding legal regime”, supra note 7, at 324; id., “The Arctic: An Opportunity to Cooperate and Demonstrate Statesmanship,” Vanderbilt Journal of Transnational Law 42, no. 4 (2009), 1065–1079.

  11. 11.

    See e.g. Corell, “Reflections on the possibilities and limitations of a binding legal regime”, supra note 7, at 322, 324; Corell, “The Arctic: An Opportunity to Cooperate and Demonstrate Statesmanship”, at 1069; Hoel, “Do We Need a New Legal Regime for the Arctic Ocean?”, supra note 8, at 455.

  12. 12.

    See Communication from the Commission to the European Parliament and the Council, The European Union and the Arctic Region, Brussels, 20.11.2008, COM(2008) 763 final, p. 8.

  13. 13.

    Heidar suggests that the process for establishing a new RFMO covering those parts of the marine Arctic that are not by NEAFC, could be initiated within the Arctic Council, id., “The Legal Regime of the Arctic Ocean”. In: New Chances and New Responsibilities in the Arctic Region: Papers from the International Conference at the German Federal Foreign Office in cooperation with the Ministries of Foreign Affairs of Denmark and Norway, 11–13 March 2009, Berlin, ed. Georg Witschel et al., (Berlin: Berliner Wissenschafts-Verlag), 635–640, at 639.

  14. 14.

    See Erik J. Molenaar, “Arctic Fisheries Conservation and Management: Initial Steps of Reform of the International Legal Framework,” in The Yearbook of Polar Law, ed. Gudmundur Alfredsson and Timo Koivurova, 427–64 1 (Leiden Boston: Martinus Nijhoff Publishers, 2009), at 452.

  15. 15.

    Timo Koivurova, Erik J. Molenaar and David L. VanderZwaag, “Canada, the EU, and Arctic Ocean Governance: A Tangled and Shifting Seascape and Future Directions,” Journal of Transnational Law & Policy 18 (2008–2009) 247–288, at 278; Molenaar, supra note 14, at 454.

  16. 16.

    Communication from the Commission to the European Parliament and the Council, The European Union and the Arctic Region, Brussels, 20.11.2008, COM(2008) 763 final, p. 8.

  17. 17.

    Rob Huebert and Brooks B. Yeager, “A New Sea: The Need for a Regional Agreement on Management and Conservation of the Arctic Marine Environment,” (January 2008), at 26; Jennifer Jeffers, “Climate Change and the Arctic: Adapting to Changes in Fisheries Stocks and Governance Regimes,” Ecology Law Quarterly 37 (2010) 917–978, at 975.

  18. 18.

    S.J. Res. 17 from January 3rd, 2008.

  19. 19.

    See Michael Distefano, “Managing Arctic Fish Stocks,” Sustainable Development Law & Policy 8, no. 3 (2003), at 13.

  20. 20.

    Heidar, supra note 13, at 639; Philippe Sands, Principles of international environmental law, 2nd ed. (Cambridge: Cambridge Univ. Press, 2003), at 521.

  21. 21.

    Timo Koivurova, “Governance of protected areas in the Arctic,” Utrecht Law Review 5, no. 1 (2009) 44–60, at 45.

  22. 22.

    Jim Johnston, Gregg Legare and Jeanne Pagnan, Protected areas of the Arctic: Conserving a full range of values (Ottawa: CAFF Secretariat, 2002), p. 7.

  23. 23.

    See Aldo Chircop, “International Arctic Shipping: Towards Strategic Scaling-Up of Marine Environment Protection,” in Changes in the Arctic environment and the law of the sea, ed. Myron H. Nordquist, John N. Moore and Tomas H. Heidar, Center for Oceans Law and Policy (Leiden: Martinus Nijhoff Publishers, 2010), 177–201, at 185; Heidar, supra note 13, at 640; Sands, supra note 20, at 521.

  24. 24.

    The oceanographic conditions must be such that they “may cause the concentration or retention of harmful substances in the waters or sediments of the area, including particular circulation patterns (e.g. convergence zones and gyres) or temperature and salinity stratification; long residence time caused by low flushing rates; extreme ice state; and adverse wind conditions.” The ecological conditions must indicate “that protection of the area from harmful substances is needed to preserve: depleted, threatened or endangered marine species; areas of high natural productivity (such as fronts, upwelling areas, gyres); spawning, breeding and nursery areas for important marine species and areas representing migratory routes for sea-birds and marine mammals; rare or fragile ecosystems such as coral reefs, mangroves, seagrass beds and wetlands; and critical habitats for marine resources including fish stocks and/or areas of critical importance for the support of large marine ecosystems.” The vessel traffic characteristics are fulfilled if “[t]he sea area is used by ships to an extent that the discharge of harmful substances by ships when operating in accordance with the requirements of MARPOL 73/78 for areas other than Special Areas would be unacceptable in the light of the existing oceanographic and ecological conditions in the area.”, Guidelines for the Designation of Special Areas under MARPOL 73/78, IMO Resolution A.927(22), adopted on 29 November 2001, Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, Annex I, 2.3–2.6.

  25. 25.

    According to the ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, “[i]n some cases a PSSA may be identified within a Special Area and vice versa. […] [T]he criteria with respect to the identification of PSSAs and the criteria for the designation of Special Areas are not mutually exclusive”. Resolution A.982(24), adopted on 1 December 2005, Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas.

  26. 26.

    See IMO, Guidance Note on the Preparation of Proposals on Ships Routeing Systems and Ship Reporting Systems for Submission to the Sub-Committee on Safety of Navigation.

  27. 27.

    Arctic Marine Shipping Assessment 2009 Report, Arctic Council, April 2009, available at: http://www.pame.is/images/stories/PDF_Files/AMSA_2009_Report_2nd_print.pdf, last visited 26 March 2012, p. 61.

  28. 28.

    Barry H. Dubner, “On the Basis for the Creation of a New Method of Defining International Jurisdiction in the Arctic Ocean,” Missouri Environmental Law & Policy Review 13, no. 1 (2005), 1–23, at 11.

  29. 29.

    Ibid.

  30. 30.

    Convention Concerning the Protection of the World Cultural and Natural Heritage, signed 23 November 1972, entered into force 15 December 1975, 1037 UNTS 151.

  31. 31.

    UNESCO, Culture, World Heritage Centre, About World Heritage, The States Parties, States to the Convention as of 10 June 2010, available at: http://whc.unesco.org/en/statesparties/; see article 3 World Heritage Convention, supra note 30.

  32. 32.

    Article 140(1) UNCLOS.

  33. 33.

    Patrizia Vigni, “The interaction between the Antarctic Treaty System and the other relevant Conventions applicable to the Antarctic area: A practical approach versus theoretical doctrines,” Max Planck yearbook of United Nations law 4 (2000), 481–542, at 502.

  34. 34.

    See Johnston, supra note 8, at 623.

  35. 35.

    Offshore hydrocarbon Working Group, Arctic Transform, see http://arctic-transform.org.

  36. 36.

    Arctic Transform is a project for developing “transatlantic policy options for supporting adaptation in the marine Arctic environment”, see Arctic Transform website, available at: http://arctic-transform.org/index.html, last visited 8 June 2011. Arctic TRANSFORM is funded by the European Commission (DG External Relations) and is led by four institutes: Ecologic (Germany; project lead), the Arctic Centre (Finland), the Netherlands Institute for the Law of the Sea (Netherlands), and the Heinz Center (USA), see ibid.

  37. 37.

    Cleveland and O’Carroll, “Policy Options for Arctic Environmental Governance,” (Offshore Hydrocarbon Working Group, Arctic Transform, 5 March 2009), p. 2, http://arctic-transform.org/download/OffsEX.pdf (accessed June 8, 2011).

  38. 38.

    Patricia Cochran and Mark Nuttall, “Policy Options for Arctic Environmental Governance: Prepared by the Indigenous Peoples Working Group,” (Arctic Transform, 5 March 2009), p. 4.

  39. 39.

    Proposal by Christopher D. Stone, “Mending the Seas Through a Global Commons Trust Fund,” in Freedom for the seas in the 21st century: ocean governance and environmental harmony, ed. Jon M. van Dyke, Durwood Zaelke and Grant Hewison, (Washington: Island Press, 1993),171–86, at 174; see also Peter H. Sand, “Public Trusteeship for the Oceans,” in Law of the sea, environmental law, and settlement of disputes: Liber amicorum Judge Thomas A. Mensah, ed. Thomas A. Mensah et al., 521–44 (Leiden, Boston: Martinus Nijhoff, 2007) 521–544, at 542.

  40. 40.

    Proposal by the German Advisory Council on Global Change (Wissenschaftlicher Beirat für Globale Umweltveränderungen, WBGU) to empower international “trusteeship authorities” to levy charges for the commercial use of global common goods, such as maritime traffic on high seas, Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (WBGU), Welt im Wandel: neue Strukturen globaler Umweltpolitik., at 181. Recently, a similar measure was proposed by participants of an international ocean conference: They suggested the introduction of an international “Sea Tax” for all users that could be used to finance protection of the oceans, see the Earth Institute Columbia University, Research News, Sustainable Oceans: Reconciling Economic Use and Protection, 17 August 2011, available at: http://www.earth.columbia.edu/articles/view/2844, last visited 18 September 2011.

  41. 41.

    WBGU, supra note 40.

  42. 42.

    Ibid.

  43. 43.

    In favour of a new and binding treaty approach, see generally Huebert and Yeager, supra note 17, p. 33; Samantha Smith, Time for an Arctic Convention?; World Wildlife Fund International Arctic Programme Arctic Bulletin, March 2004, p. 3; Donald R. Rothwell, “International law and the protection of the arctic environment,” International & Comparative Law Quarterly (1995) 280–312, at 312; id., “The Arctic in International Affairs: Time for a New Regime?” The Brown Journal of World Affairs XV, no. 1 (2008): 241–253, at 250; Melissa A. Verhaag, “It Is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment,” Georgetown International Environmental Law Review 15 (2002–2003) 555–580, at 578; Linda Nowlan, Arctic Legal Regime for Environmental Protection, IUCN Environmental Policy and Law Paper No. 44, 2001, IUCN, Gland, Switzerland and Cambridge, UK, in collaboration with IUCN Environmental Law Centre, Bonn, Germany, at 66.

  44. 44.

    See Hoel, supra note 8, at 455; Young, “The Structure of Arctic Cooperation: Solving Problems/Seizing Opportunities”, p. 8.

  45. 45.

    Advocating a treaty modelled after the ATS Verhaag, supra note 43, at 578; the European Parliament also favours the ATS model: “advocating negotiations for an international treaty for the protection of the Arctic, having as its inspiration the Antarctic Treaty, as supplemented by the Madrid Protocol signed in 1991, but respecting the fundamental difference represented by the populated nature of the Arctic and the consequent rights and needs of the peoples and nations of the Arctic region; believes, however, that as a minimum starting-point such a treaty could at least cover the unpopulated and unclaimed area at the centre of the Arctic Ocean”, European Parliament resolution of 9 October 2008 on Arctic governance, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=−//EP//TEXT+TA+20081009+ITEMS+DOC+XML+V0//EN&language=EN#sdocta1, last visited 15 February 2011.

  46. 46.

    Antarctic Treaty, concluded 1 December 1959, entered into force 23 June 1961, 402 UNTS 71.

  47. 47.

    Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), concluded 4 October 1991, entered into force 14 January 1998, 30 ILM 1455.

  48. 48.

    Convention for the Conservation of Antarctic Seals, concluded 1 June 1972, entered into force 11 March 1978, 11 ILM 251.

  49. 49.

    Harlan K. Cohen, Handbook of the Antarctic Treaty System, US Department of State Ninth Edition, July 2002, available at: http://www.state.gov/g/oes/rls/rpts/ant/, last visited 30 May 2011; today, the Antarctic Treaty has 48 parties, of which 28 have consultative status on the basis of being original signatories or by conducting substantial research there, and thus have the right to participate in the annual Antarctic Treaty Consultative Meetings (ATCM). The remaining twenty parties have non-Consultative status, see Secretariat of the Antarctic Treaty, Antarctic Treaty, Parties, available at: http://www.ats.aq/devAS/ats_parties.aspx?lang=e, last visited 21 May 2011; article IX(2) Antarctic Treaty.

  50. 50.

    Preamble to the Antarctic Treaty.

  51. 51.

    Article VI Antarctic Treaty.

  52. 52.

    Protocol on Environmental Protection to the Antarctic Treaty, concluded 4 October 1991, entered into force 14 January 1998, 30 ILM 1455 (1991).

  53. 53.

    See Nowlan, supra note 43, p. 41.

  54. 54.

    Article 2 Madrid Protocol.

  55. 55.

    See Donald Rothwell, The polar regions and the development of international law, 1. publ., Cambridge studies in international and comparative law: New series; 3 (Cambridge: Cambridge University Press, 1996), p. 380.

  56. 56.

    Article 3(1) Madrid Protocol states: “The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.”

  57. 57.

    See Articles 6 and 8 Madrid Protocol.

  58. 58.

    See Article 7 Madrid Protocol; originally, it was envisaged to regulate mining activities by the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), 2 June 1988. However, based upon concerns about the environmental impacts of mineral exploitation, many states eventually did not sign the Convention, so that it has not entered into force. The total prohibition of mining in the Madrid Protocol will remain in force until replaced by a legally binding regime regulating the issue, see Nowlan, supra note 43, p. 46.

  59. 59.

    See S. K. N. Blay, “New Trends in the Protection of the Antarctic Environment: The 1991 Madrid Protocol”. The American Journal of International Law Vol. 86, No. 2 (Apr., 1992), 377–399, at 385.

  60. 60.

    See Thomas Blunden, “The legal status of the Arctic under contemporary international law: An Antarctic regime or poles apart?” The journal of international maritime law 15, no. 3 (2009), at 249.

  61. 61.

    See Ron Macnab, “The Southern and Arctic Oceans: Polar Opposites in Many Respects,” in The Yearbook of Polar Law, ed. Gudmundur Alfredsson and Timo Koivurova, 245–51 2 (Leiden Boston: Martinus Nijhoff Publishers, 2010), at 247.

  62. 62.

    The Antarctic Treaty stipulates that “Antarctica shall be used for peaceful purposes only” (Article I). To this end it prohibits “any measures of a military nature” but does “not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose”.

  63. 63.

    Timo Koivurova, “Environmental protection in the Arctic and Antarctic: Can the polar regimes learn from each other?”, International Journal of Legal Information 33, no. 2 (2005) 204–218, at 211.

  64. 64.

    See Oran R. Young, ““Arctic waters”: The politics of regime formation,” Ocean Development & International Law 18, no. 1 (1987), 101–114, at 102; Gail Osherenko and Oran R. Young, The age of the Arctic: Hot conflicts and cold realities (Cambridge [England], New York: Cambridge University Press, 1989), pp. 242–244; Franckx, Maritime claims in the Arctic: Canadian and Russian perspectives (Dordrecht: Nijhoff, 1993), pp. 6–8.

  65. 65.

    Stuart B. Kaye, “Legal approaches to Polar fisheries regimes: A comparative analysis of the Convention for the Conservation of Antarctic Marine Living Resources and the Bering Sea Doughnut Hole Convention,” California Western International Law Journal 26, no. 1 (1995) 75–114, at 78.

  66. 66.

    See Stephen A. Macko, “Changes in the Arctic Environment,” in Changes in the Arctic environment and the law of the sea, supra note 23, 107–29, at 116 et seq.

  67. 67.

    Sands, supra note 20, at 731; Johnston, supra note 8, at 622; Donald R. Rothwell, “Polar Lessons for an Arctic Regime,” Cooperation and Conflict 29 (1994) 55–76, at 56; Timo Koivurova, “Alternatives for an Arctic treaty: Evaluation and a new proposal,” Review of European Community & International Environmental Law 17, no. 1 (2008), 14–26, at 17; recently, the value of sharing know-how and experience among the ATS and Arctic Council Members has been recognized. At the first ever joint meeting of the Arctic Council and the Antarctic Treaty Consultative Meeting (ATCM) held in Washington in April 2009, “the development of coordinated research and scientific observations at both poles to compare the current dynamics of polar areas and their contributions to the Earth’s processes and changes” was encouraged, see Antarctic Treaty-Arctic Council Joint Meeting Washington Ministerial Declaration on the International Polar Year and Polar Science, Communique, Bureau of Oceans and International Environmental and Scientific Affairs, Washington DC, 6 April 2009, available at: http://www.state.gov/g/oes/rls/other/2009/121340.htm, last visited 21 May 2011; also see Hillary Rodham Clinton, Remarks at the Joint Session of the ATCM and the Arctic Council, 50th Anniversary of the Antarctic Treaty, Washington DC, 6 April 2009, available at: www.state.gov/secretary/rm/2009a/04/121314.htm, last visited 21 May 2011.

  68. 68.

    Koivurova, supra note 63, at 211.

  69. 69.

    Ibid., at 213.

  70. 70.

    See Bonnie A. Malloy, “On Thin Ice: How a Binding Treaty Regime Can Save the Arctic,” Hastings West-Northwest Journal of Environmental Law and Policy 16 (2010) 471–511, at 495.

  71. 71.

    Rothwell, supra note 67, at 64.

  72. 72.

    Paul A. Berkman, “Integrated Arctic Ocean Governance for the Lasting Benefit of All Humanity,” in New Chances and New Responsibilities in the Arctic Region, supra note 13, 187–94, at 194.

  73. 73.

    Kaye, supra note 65, at 97.

  74. 74.

    David L. VanderZwaag, “Climate Change and the Future of Arctic Governance: A Slushy Seascape and Hard Questions.” In Climate governance in the Arctic. Edited by Timo Koivurova, E. C. Keskitalo and Nigel Bankes. 1. Ed., 403–28. Dordrecht: Springer Netherland, 2009, at 417.

  75. 75.

    Rothwell, supra note 14, at 308; id., supra note 43, at 250; Koivurova, supra note 67, at 15.

  76. 76.

    Anthony Aust, Modern treaty law and practice, 2nd ed. (Cambridge: Cambridge University Press, 2007), p. 122.

  77. 77.

    Convention for the Protection of the Mediterranean Sea against Pollution, signed 16 February 1976, entered into force 2 December 1978, 1102 UNTS 27.

  78. 78.

    VanderZwaag, supra note 74, at 416 et seq.

  79. 79.

    Hans H. Hertell, “Arctic Melt: the Tipping Point for an Arctic Treaty,” The Georgetown International Environmental Law Review 21, no. 3 (2009), at 587.

  80. 80.

    The group of participating states might, however, be extended to include non-coastal states, see e.g. article 27(2) Barcelona Convention, supra note 77.

  81. 81.

    Currently, over 143 countries participate in 13 Regional Seas programmes that were established under the auspices of UNEP: Black Sea, Wider Caribbean, East Asian Seas, Eastern Africa, South Asian Seas, ROPME Sea Area, Mediterranean, North-East Pacific, Northwest Pacific, Red Sea and Gulf of Aden, South-East Pacific, Pacific, and Western Africa, see UNEP, Regional Seas Programme, available at: http://www.unep.org/regionalseas/about/default.asp, last visited 19 September 2011.

  82. 82.

    United Nations, Law of the Sea: Protection and Preservation of the Marine Environment, Report of the Secretary-General (U.N. Doc. A/44/461), September 18, 1989.

  83. 83.

    Rainer Lagoni, “Regional Protection of the Marine Environment in the Northeast Atlantic Under the OSPAR Convention of 1992,” in The Stockholm declaration and law of the marine environment, ed. Myron H. Nordquist, John N. Moore and Said Mahmoudi, 183–204 (The Hague; New York: Kluwer Law International, 2003), at 197.

  84. 84.

    See UN General Assembly, Report on the work of the United Nations Open-ended Informal Consultative Process established by the General Assembly in its resolution 54/33 in order to facilitate the annual review by the Assembly of developments in ocean affairs at its third meeting, 2 July 2002, UN Doc. A/57/80.

  85. 85.

    David VanderZwaag, “International law and Arctic marine conservation and protection: A slushy, shifting seascape,” Georgetown International Environmental Law Review 9, no. 2 (1997) 303–345, 340 et seq.

  86. 86.

    See Koivurova, Molenaar and VanderZwaag, supra note 15, at 283.

  87. 87.

    Article 27(2) OSPAR Convention.

  88. 88.

    Since the full spatial overlap of the OSPAR Maritime Area with the spatial scope of the NEAFC Convention represents a potential basis for integrated, cross-sectoral ecosystem-based ocean management, the OSPAR Convention should seek to follow a possible extension of NEAFC’s Conventional Area and vice versa, Timo Koivurova and Erik J. Molenaar, “International Governance and Regulation of the Marine Arctic: Options for Addressing Identified Gaps,” (January 2009), available at: http://img9.custompublish.com/getfile.php/1092818.1529.fewsuutsbp/Options+for+Addressing+IdentifiedGaps_0306.pdf?return=www.arcticgovernance.org, last visited 12 March 2012, p. 15.

  89. 89.

    Rothwell, supra note 43, at 307 et seqq.; id., supra note 43, at 250; Louise A. de La Fayette, “Oceans Governance in the Arctic,” International Journal of Marine and Coastal Law 23 (2008), 531–566, at 563.

  90. 90.

    Kathryn Isted, “Sovereignty in the Arctic: An Analysis of Territorial Disputes & Environmental Policy Considerations,” Journal of Transnational Law & Policy 18 (2008–2009), 343–376, at 376; see de La Fayette, supra note 89, at 558.

  91. 91.

    Ibid., at 563; Isted suggests that the existing Working Groups be completed by a Working Group for Fisheries that would set up a fisheries management plan for the whole region, Isted, supra note 90, at 376.

  92. 92.

    See de La Fayette, supra note 89, at 564.

  93. 93.

    But cf. Hertell, supra note 79, at 586 et seq.: “An exclusive gathering of the Arctic nations with common purposes will yield better results in terms of the adoption of legal instruments tailored to the Arctic’s unique ecological conditions than would negotiations involving nations outside of the Arctic area.”

  94. 94.

    Jacqueline McGlade, The Arctic Environment – Why Europe should care, Speech by Professor Jacqueline McGlade at Arctic Frontiers Conference, Tromsø, 23 January 2007.

  95. 95.

    Ibid.

  96. 96.

    Koivurova, Molenaar and VanderZwaag, supra note 15, at 285.

  97. 97.

    In general on the low probability of an international Arctic Treaty see Rosemary Rayfuse, “Melting moments: The future of polar oceans governance in a warming world,” Review of European Community & International Environmental Law 16, no. 2 (2007) 196–216, at 214.

  98. 98.

    Koivurova, Molenaar and VanderZwaag, supra note 15, at 285.

  99. 99.

    Ibid.

  100. 100.

    The enclosed high seas area of the central Arctic Ocean has been described as the ‘Arctic Mediterranean’, Bo Johnson Theutenberg, “The Arctic Law of the Sea,” Nordic Journal of International Law 52 (1983), 3–39, at 3.

  101. 101.

    However, as VanderZwaag noted, “governance of the Arctic Ocean beyond national jurisdiction has not been in the centre of attention of academics addressing Arctic issues”, see Presentation by id., Marine & Environmental Law Institute Dalhousie University, Sustainable Use of Natural Resources and Conservation of Biodiversity in the Arctic: The Legal Challenges, Longyearbyen, Svalbard, March 29, 2007.

  102. 102.

    See Presentation by David VanderZwaag, Marine & Environmental Law Institute Dalhousie University, Sustainable Use of Natural Resources and Conservation of Biodiversity in the Arctic: The Legal Challenges, Longyearbyen, Svalbard, March 29, 2007.

  103. 103.

    Canada has occasionally doubted the status of the Arctic Ocean as high seas, see Donat Pharand, “The legal status of the arctic regions,” Recueil des cours/Académie de Droit International de La Haye 163, no. 2 (1979), 53–115; some Russian and Soviet authors share the view that there exists no high seas area in the Arctic, see Alexander N. Vylegzhanin, “Developing International Law Teachings for Preventing Inter-State Disaccords in the Arctic Ocean,” in New Chances and New Responsibilities in the Arctic Region, supra note 13, 209–222, at 218; Rothwell suggested that the special situation of the Arctic Ocean may provide grounds for the Arctic Five to claim jurisdiction over the high seas beyond national maritime zones. However, the relevant argumentation was based on the notion that the permanently ice-covered Arctic high seas did not really allow for exercise of high seas freedoms and thus do not fit into the traditional high seas freedoms. The rapidly diminishing sea ice considerably weakens this argument, Rothwell, supra note 43, at 291. A great majority of legal scholars and policymakers find that the Arctic waters beyond national jurisdiction no different from high seas in other parts of the world, see Vylegzhanin, ibid.

  104. 104.

    Rayfuse, supra note 97, at 215; id., “Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction,” Review of European Community & International Environmental Law 17, no. 1 (2008) 3–13, at 10.

  105. 105.

    VanderZwaag, supra note 74, at 419.

  106. 106.

    Especially in the Ilulissat Declaration, supra note 7.

  107. 107.

    See Article 87(1) UNCLOS.

  108. 108.

    See Presentation by VanderZwaag, supra note 102.

  109. 109.

    Koivurova, Molenaar and VanderZwaag, supra note 15, at 273.

  110. 110.

    Ilulissat Declaration, supra note 7.

  111. 111.

    See Rosemary Rayfuse, “Warm Waters and Cold Shoulders: Jostling for Jurisdiction in Polar Oceans,” in The Yearbook of Polar Law, ed. Gudmundur Alfredsson and Timo Koivurova, 465–76 1 (Leiden Boston: Martinus Nijhoff Publishers, 2009), at 468.

  112. 112.

    Johnston, supra note 8, at 600.

  113. 113.

    Peter H. Sand, supra note 39, at 521; the Mediterranean regional seas programme established by UNEP in 1976 has been described as an existing (treaty-based) public trust regime, see Evangelos Raftopoulos, “The Barcelona Convention System for the Protection of the Mediterranean Sea against Pollution: An International Trust at Work,” International Journal of Estuarine and Coastal Law 7, no. 1 (1992) 27–42, at 29.

  114. 114.

    Young, supra note 7, at 180.

  115. 115.

    Ibid.

  116. 116.

    See Brooks B. Yeager, “Managing Towards Sustainability in the Arctic: Some Practical Considerations,” in New Chances and New Responsibilities in the Arctic Region: Papers from the International Conference at the German Federal Foreign Office in cooperation with the Ministries of Foreign Affairs of Denmark and Norway, 11–13 March 2009, Berlin, ed. Georg Witschel et al., 567–78 (Berlin: Berliner Wissenschafts-Verlag), at 577.

  117. 117.

    This applies e.g. to climate change and to long-range transboundary pollutants, see Verhaag, supra note 43, at 578.

  118. 118.

    Alexei Y. Roginko and Matthew J. LaMourie, “Emerging marine environmental protection strategies for the Arctic,” Marine Policy (1992) 259–276, at 266.

  119. 119.

    Ibid.

  120. 120.

    See the criteria recently set out for potential observers to the Arctic Council: they must “[r]ecognize that an extensive legal framework applies to the Arctic Ocean including, notably, the Law of the Sea, and that this framework provides a solid foundation for responsible management of this ocean.” Senior Arctic Officials (SAO) Report to Ministers, Nuuk, Greenland, May 2011, p. 50, available at: http://arctic-council.org/filearchive/nuuk_SAO_report.pdf, last visited 10 August 2011.

  121. 121.

    See Koivurova, Molenaar and VanderZwaag, supra note 15, at 266.

  122. 122.

    Koivurova, Molenaar and VanderZwaag, supra note 15, at 275.

  123. 123.

    Timo Koivurova and David VanderZwaag, “The Arctic Council at 10 years: Retrospect and prospects,” University of British Columbia law review 40, no. 1 (2007), 121–195, at 180.

  124. 124.

    Nowlan, supra note 43, p. 58.

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    Lilly Weidemann

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Weidemann, L. (2014). Possible Ways for Enhancement. In: International Governance of the Arctic Marine Environment. Hamburg Studies on Maritime Affairs, vol 27. Springer, Cham. https://doi.org/10.1007/978-3-319-04471-2_4

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