The Arctic Council and the Future of Arctic

The Arctic Council and the Future of Arctic Ocean Governance: Edging Forward in a Sea of Challenges Professor David L. Vander. Zwaag Canada Research Chair in Ocean Law and Governance Marine & Environmental Law Institute Dalhousie University Shanghai Jiao Tong University November 2011

Introduction • The Arctic Ocean has become a “hot topic” for numerous reasons: + Media has portrayed the five Arctic coastal States as making “land grabs” for extended continental shelves The Mir-I was used to help plant a Russian flag on the Arctic seabed http: //news. bbc. co. uk/2/hi/europe/7005483. stm 1) North Pole: Russia leaves its flag on the seabed, 4, 000 m (13, 100 ft) beneath the surface 2) Lomonosov Ridge: Russia argues that this underwater feature is an extension of its continental territory 3) 200 -nautical mile (370 km) line: Shows how far countries' agreed 4) Russian-claimed territory: The bid to claim a vast area is being closely watched by other countries

+ Thinning and decreasing extent of sea ice has a potential cascade of consequences http: //beyondzeroemissions. org/files/1016 nasa_sea_ice. jpg

– Regional consequences, such as, * Threatened polar bear populations http: //www. smh. com/au/ffximage/2006/06/13/polarbears_wideweb__470 x 314, 0. jpg

* Loss of traditional ways of life and indigenous culture * Coastal erosion and damage to infrastructure * Greater access to marine and coastal resources – Extra-regional consequences, such as * Sea level rises * Adverse climatic and marine ecosystem impacts caused by disruption of the global ocean “heat pump” http: //forces. si. edu/a rctic/02_02_04. html The Ocean Conveyor Belt Ocean circulation is driven by density differences. (Density is controlled by ocean temperature and saltiness). Cold, dense water in the Arctic merges with salty water from the Gulf Stream to create the sinking North Atlantic Deep Water (NADW) in the Norwegian. Greenland Sea. The NADW helps to drive global ocean circulation. Illustration The M. Factory © The Smithsonian Institution

* New Transpolar Shipping Routes Borgerson, 2008

+ Prospects of increased offshore oil and gas exploration/exploitation and shipping have escalated public and political attention to jurisdictional disputes, e. g. + Ownership of Hans Island http: //images. usatoday. com/ money/_photos/2007/03/24/a rctic. X-large. jpg http: //www. cbc. ca/gfx/images/news/ maps/2006/07/26/map-nunavuthans_island. jpg

– The Beaufort Sea boundary <http: //dsp-psd. pwgsc. gc. ca/Collection-R/Lo. PBd. P/images/bp 322 e-5. jpg>

– The legal status of the Northwest Passage * U. S. Coast Guard vessel Polar Sea traverses the Northwest Passage in the summer of 1985 <http: //www. planetwater. ca/research/climpact/impacts/shipping. html>

* Canada draws straight baselines around Arctic Archipelago, effective 1 January 1986

• The adequacy of existing ocean governance arrangements to meet the looming management challenges has increasingly become the topic of academic debate: + Only one, narrow “hard law” regional agreement historically applicable to the Arctic Ocean – 1973 Polar Bear Conservation Agreement – Five states having polar bears (Canada, Denmark/Greenland, Norway, Russian Federation, USA) agree * To protect polar bear dens and ecosystems * To prohibit takings with few exceptions > Subsistence hunting > “Self-defence” to save human life > Scientific purposes

+ Some authors have argued for negotiation of an over-arching treaty framework for the Arctic, for example: – Framework convention and subsequent protocol approach followed, for example, for the Mediterranean Sea * The Barcelona Convention, first adopted in 1976 and amended in 1995, sets out the overall legal framework for cooperation, including objectives, principles and institutional structures * Seven protocols set rules and standards in the areas of > > > > Contingency planning and emergency response Ocean dumping Land-based marine pollution/activities Special area protection Seabed activities Hazardous waste movements Integrated coastal management

– A unique “tailored for the Arctic” agreement might also be considered. * A short and simple agreement might be negotiated setting out objectives / principles of cooperation * Formalizing the existing Arctic Council structures * Strengthening financial commitments * Providing a framework for further protocols

+ Various reasons have been advanced for further developing the “hard law” regime for the Arctic, e. g. + Encouraging greater political and bureaucratic commitments + Establishing firmer institutional and financial foundations + Transcending the vagaries of changing governmental viewpoints and shifting personnel + Giving “legal teeth” to environmental principles and standards + Raising the public profile of regional challenges and cooperation needs + Providing for dispute resolution

+ However, various reasons have been put forward against or at least questioning a treaty-based approach – Difficulty in getting consensus on the need for an agreement – Lengthy and costly preparatory and negotiation processes involved – Risk of legalizing lowest common denominator standards – Stifling political and bureaucratic flexibilities – Contributing another layer of complexity to the already fragmented array of multilateral environmental agreements – Lack of implementation of existing agreements relevant to the Arctic – Lack of assurance that all Arctic States will readily accept newly negotiated obligations

• This presentation explores how the Arctic is faring in ocean governance through a two-part analysis: 1. Edging Forward A review of how the existing key regional institution, the Arctic Council, has been progressing on the research and governance fronts through its • Six working groups • Ministerial meetings 2. Sea of Challenges A summary of four main challenges confronting the Arctic Council • • Fully implementing existing commitments and recommendations Completing the Arctic Council’s restructuring Addressing future governance of ocean areas beyond national jurisdiction Strengthening the “Arctic voice” in international fora

1. Edging Forward • To understand how the Arctic Council has been advancing regional cooperation, some basic background information is necessary: + Arctic Council founded pursuant to a non-legally binding Declaration adopted in Ottawa on 19 September 1996 + Eight Arctic States included as members - Canada - Norway - Denmark/Greenland - Russian Federation - Finland - Sweden - Iceland - United States of America

+ Indigenous organizations (now six in number) elevated to status of Permanent Participants – Aleut International Association – Arctic Athabaskan Council – Gwich’in Council International – Innuit Circumpolar Council – Russian Association of Indigenous Peoples of the North (RAIPON) – Saami Council + Six Working Groups established – Arctic Monitoring and Assessment Program (AMAP) – Emergency Prevention, Preparedness and Response (EPPR) – Conservation of Arctic Flora and Fauna (CAFF) – Protection of the Arctic Marine Environment (PAME) – Sustainable Development Working Group (SDWG) (1998) – Arctic Contaminants Action Program (ACAP) (2006)

+ Rotating Secretariat among Arctic states (every two years) + Ministerial meetings on a biennial basis + Observer status open to – Non-Arctic States (current permanent observer states are France, Germany, Netherlands, Poland, Spain and the United Kingdom) – Inter-governmental and inter-parliamentary organizations – Non-governmental organizations + Overall objective is to promote cooperation on common Arctic issues, in particular issues of sustainable development and environmental protection + Substantial limitations in governance – Only a discussional and information sharing forum – Cannot address military and security issues – No powers to directly develop regional environmental standards, e. g. , for oil and gas exploration / development

• The Arctic Council has largely sledded “softly” forward through non-regulatory initiatives (assessments, projects, plans and programs) of its six working groups: + Arctic Monitoring and Assessment Programme (AMAP) Working Group – Has published numerous pollution assessments with usual approach being to first publish a non-technical summary report for policymakers followed by detailed and fully referenced scientific report, e. g. * Arctic Pollution 2011 (Mercury Assessment) * Snow, Water, Ice and Permafrost in the Arctic (SWIPA) Assessment (2011) * Arctic Pollution 2009 * AMAP 2009 Update on Selected Climate Issues of Concern * Arctic Oil land Gas 2007 * Arctic Pollution 2006: Acidification and Arctic Haze * Arctic Climate Impact Assessment (ACIA) (2004) * Arctic Pollution 2002 * Arctic Pollution Issues: A State of the Arctic Environment Report (1997)

– While a detailed description of the various assessment is beyond the scope of this presentation, a sense of the seriousness of Arctic pollution and environmental threats may be gleaned from the three latest assessment reports: * 2011 Mercury Assessment > Provides updated information on the levels and sources of mercury in the Arctic † About 100 tonnes of mercury are estimated to enter the Arctic Ocean from the air each year † Nearly another 100 tonnes thought to inflow from the Atlantic and Pacific Oceans, rivers and coastal erosion † Asian states, with China and India being the highest emitters, are estimated to be responsible for 65% of global mercury emissions

> The Mercury Assessment issues a warning call on the possible effects of climate change on the mercury cycle with increased releases arising from permafrost thaws, ice melts and rising river discharges > The report notes that some Arctic biota, especially marine top predators like polar bears, exhibit high levels of mercury in their bodies which exceed thresholds for biological effects > The assessment offers various policy recommendations, e. g. † The Arctic Council should continue supporting intergovernmental negotiations to develop a legally-binding global instrument on mercury † Health authorities in Arctic States should develop culturally appropriate communication strategies concerning contaminants and human health

* Snow, Water, Ice and Permafrost in the Arctic (SWIPA) Assessment (2011) > Key findings include: † Surface air temperatures in the Arctic since 2005 have been higher than any five-year period since measurements began around 1880 † Multi-year sea ice, mountain glaciers, ice caps and the Greenland Ice Sheet have all been declining faster since 2000 than they did in the previous decade † The Arctic Ocean is projected to become nearly ice-free in summer, likely within the next 30 to 40 years † Arctic infrastructure faces increased risks of damage due to changes in the cryosphere, particularly the loss of permafrost and land-fast ice † The net loss of mass from the Greenland Ice Sheet has increased from about 50 gigatonnes (Gt) (50, 000, 000 tonnes) per year in the period 1995 -2000 to nearly 200 Gt per year in the period 2004 -2008

> Key recommendations include: † Arctic States should increase their leadership in international negotiations to reduce greenhouse gas emissions as a matter of urgency † Arctic States and governments at all levels in the Arctic should develop and implement Arctic adaptation strategies

* Arctic Pollution 2009 Provides updated information on three topics: > Persistent Organic Pollutants (POPs) † Highlights the need to consider further international and national regulatory actions for groups of chemicals accumulating in Arctic food webs including brominated flame retardants and fluorinated compounds used as stain repellants and as non-stick surfaces on cookware. † Notes 65 high-production volume (>100, 000 tonnes per year) industrial organic chemicals and pesticides may have the ability to biomagnify into Arctic indigenous peoples’ traditional foods † About 4300 organic chemicals, most with low or unknown production, are thought to have Arctic accumulation properties

> Contaminants and Human Health † Emphasizes difficulty in ascertaining human health effects due to differing lifestyles and potential synergies among multiple contaminants † Highlights that epidimological studies, looking at Arctic residents directly, show subtle immunological, cardiovascular and reproductive effects due to contaminants in some populations † Notes that levels of most POPs pesticides in some Inuit populations were eight to ten times higher than in southern residents

> Radioactivity in the Arctic † Summarizes the major impacts and risks of radioactivity from existing sources such as nuclear fuel reprocessing plants, nuclear power plants in the vicinity of the Arctic, nuclear submarine decommissioning in the Russian Federation and small radioisotopic thermoelectric generators (RTGs) † Highlights the numerous international assistance efforts to assist the Russian Federation to better manage and clean-up its nuclear wastes and sites † Warns of future radionuclide sources, specifically ~ Russian plans for floating nuclear power plants ~ Technologically enhanced naturally-occurring radioactive materials (TENORM) from various industrial activities such as oil and gas extractions, mineral mining, phosphate production and the use of geothermal energy

–AMAP helped document the scientific basis for negotiation and implementation of the Stockholm Convention on Persistent Organic Pollutants (2001) *Aimed at elimination or restriction of an initial 12 POPs *Nine additional POPs added for elimination or restriction in May 2009 http: //www. grida. no/prog/polar/tromsoe 2002/pops 1. jpg

– AMAP instrumental in helping to establish the scientific foundation for the Governing Council / Global Ministerial Forum Decision 25/5 (2009) asking UNEP’s Executive Director to convene an international negotiating committee to prepare a global legally-binding instrument on mercury * Committee commenced its work in 2010 * Goal of completing negotiations prior to the Governing Council / Global Ministerial Forum’s 27 th regular session in 2013

+ Arctic Contaminants Action Program (ACAP) Working Group – Has largely focused on undertaking hazardous waste inventories and pollution reduction and control projects in the Russian Federation through seven Project Steering Groups in the areas of: * Integrated hazardous waste management * Environmentally-sound management of obsolete and prohibited pesticides * Reduction/elimination of dioxin and furon releases * Reduction of mercury releases * Phase out of PCBs * Reduction/elimination of sources and releases of brominated flame retardants * Local sources of contamination in indigenous communities – Examples of progress given in ACAP’s report to Senior Arctic Officials on main achievements for 2009 -2011: * Improved storage of 6500 t of obsolete pesticides in nine Northern Russian priority districts impacting the Arctic * Completion in 2010 of a project in several Russian chlor-alkali facilities to reduce mercury releases in wastewater and improve mercury monitoring systems

– A further Project Steering Group on Short-listed Climate Forcers was established by ACAP in 2010 with initial activities expected to focus on demonstration projects for reducing Arctic black carbon emissions – ACAP has been criticized for its overall Russian focus and failure to devote attention to addressing other sources of contaminants including those originating from Asia

+ Conservation of Arctic Flora and Fauna (CAFF) CAFF’s activities can be viewed both positively and critically: – Key positive aspects * Development of conservation strategies and action plans for species of concern > Murres/guillemots (1996) > Eider ducks (1998) > Ivory gulls (2008) * Tracking the impacts of climate change on Arctic biodiversity > A Circumpolar Biodiversity Monitoring Programme (CBMP) has been initiated † Five Year Implementation Plan endorsed by Senior Arctic Officials in April 2008

† Monitoring will be facilitated through Expert Monitoring Groups (marine, coastal, freshwater, terrestrial) > The Arctic Biodiversity Assessment (ABA) is aimed at reporting in two phases on scientific and traditional ecological knowledge gained regarding climate change and other stressor impacts on boidiversity † Interim, summary report in 2010 entitled, “Arctic Biodiversity Trends in 2010: Selected indicators of change” ~ The report reviews 22 indicators of change including trends in various species, such as polar bears, wild reindeer and caribou, seabirds and reindeer and changes in ecosystems, such as seaice and peatlands

~ Examples of trends include q. Of 19 recognized polar bear subpopulations, only one is currently increasing, three are stable, eight are declining and seven have insufficient data to detect a trend q. High Arctic vertebrate species experienced an average decline of 26% between 1970 and 2004 while low Arctic species, largely dominated by marine species, showed an increasing trend of about 46% q. Protected areas in the Arctic have grown from about 5. 6% of the Arctic in 1980 to about 11% in 2010 with 1127 protected areas covering some 3. 5 million km 2, but marine areas remain poorly represented

† Full scientific Arctic Biodiversity Assessment Report to be published in 2013 – Key critical points * CAFF has foundered in trying to establish a Circumpolar Network of Protected Areas (including marine) > In March 1996, Ministers of the eight Arctic countries endorsed CAFF’s Circumpolar Protected Areas Network (CPAN) – Strategy and Action Plan > However, no Network has been established > The CPAN initiative is described as “dormant” partly due to lack of country leadership * Has moved very slowly in developing action plans for species of conservation concern (just three action plans developed to date with a focus on seabirds)

+ Emergency Prevention, Preparedness and Response (EPPR) Working Group – Has also had a publication and project emphasis * Examples of publications > Behaviour of Oil and Other Hazardous and Noxious Substances Spilled in Arctic Waters (2011) > Guidelines and Strategies for Oil Spill Waste Management in Arctic Regions (2009) > Arctic Guide (update yearly) which lists national contacts for responding to emergencies in the Arctic, such as major oil spills, and summarizes multilateral and bilateral agreements pertaining to emergency preparedness and response > Circumpolar Map of Resources at Risk from Oil Spills in the Arctic (2002) (actually maps) http: //eppr. akvaplan. com/resources/10_s. htm http: //eppr. akvaplan. com/resources/5_s. htm

* Examples of projects > Arctic Rescue (initially focusing on improving emergency response capabilities in the Russian Federation) > Cooperation on Spill Response in the Arctic: Gap Analysis (Correspondence group is reviewing possible next steps in how to move forward in strengthening capabilities relating to emergency preparedness and response) – At May 2011 Arctic Council Ministerial meeting, the EPPR Working Group was given a further task of developing recommendations and/or best practices in the prevention of marine oil pollution and to submit preliminary or final results at the next Ministerial meeting in 2013 – EPPR is not an emergency response agency and cannot guarantee adequate response capabilities

+ PAME Working Group Might be described as the most active and successful of the Council’s Working Groups with four efforts standing out: – Adoption of a Regional Programme of Action for Protecting the Arctic Marine Environment from Land-based Activities (Revised in 2009) * Establishes priorities for regional action http: //www. pame. is/images/stories/Deliverables_to_SAOs. Ministers/PAME_RPA_layout_031109 -_leirtt_nv_09. pdf

* Urges Arctic States to ratify the key international pollution conventions (Stockholm Convention on POPs, UNECE Protocols on POPs and Heavy Metals) * Requesting Arctic States to consider the need to set dates for phasing out and providing substitutes for POPs not covered by international agreements * Provides list of 100 pollution “hot spots” in the Russian Federation * Key weaknesses include > Lack of suggested concrete actions (e. g. in relation to sewage treatment for coastal communities) > Lack of firm national reporting requirements > Lack of firm financing commitments

– Development of an Arctic Marine Strategic Plan (AMSP) (2004) * AMSP might be characterized as a “living document”, that is, opening the door to future strategic actions such as > AMSP urges actions to support application of an ecosystem approach (s. 7. 4) † PAME has adopted a map of 17 Arctic LMEs which could be a vehicle for catalyzing future ecological assessments and development of bilateral and sub-regional agreements and management arrangements

† PAME has established an EA Expert Group to assist with putting the ecosystem approach into practice in ocean assessments and management ~ Expert Group held an EA Workshop in Tromsø, Norway in January 2011 which discussed possible revisions to the LME map and collected information on the numerous assessments already carried out in the LMEs ~ Expert Group expected to plan the further development of ecosystem status reports for the various LMEs and to search for ways to better integrate existing national and international monitoring and assessment programs

> AMSP also encourages the periodic review of the status and adequacy of international/regional agreements and standards applicable to the Arctic marine environment (s. 7. 3. 4. ) † PAME has initiated an Arctic Ocean Review (AOR) project † Two phases ~ Phase I – Providing a descriptive over view of global and regional environmental protection agreements and measures (2009 -2011) with a Phase I report published in May 2011 ~ Phase II – Suggesting options for strengthening global and regional agreements and measures for the management of the Arctic marine environment with a final report to Arctic Council Ministers in 2013 (2011 -2013) * AMSP also called for a comprehensive Arctic Marine Shipping Assessment (s. 7. 1. 5) and for possible revision of the Arctic Oil and Gas Guidelines (s. 7. 2. 3. ) which subsequently have occurred

– Completion of the 2009 Arctic Marine Shipping Assessment (AMSA) * Canada (with USA and Finland) led the shipping review process looking at present and future projected levels of shipping in the Arctic * The AMSA report, adopted in April 2009, provided a detailed critique of the adequacy of applicable IMO Conventions and guidelines * The report made 17 recommendations, organized under three themes, for strengthening shipping governance > Enhancing Arctic Marine Safety > Protecting Arctic People and the Environment > Building Arctic Marine Infrastructure

– Publication of Arctic Offshore Oil and Gas Guidelines (revised 2009) * Guidelines set common principles, such as precautionary approach, polluter pays and sustainable development * Guidelines encourage the application of environmental impact assessment procedures that in particular address potential affects on indigenous ways of life and cultural heritage * Guidelines recommend various operating practices to control or prevent discharges such as using non oil-based drilling fluids and considering zero discharge where feasible * Guidelines urge adequate emergency preparedness planning and decommission planning and monitoring

+ Sustainable Development Working Group The SDWG has also sledded softly through various reports and projects – Examples of reports * Arctic Human Development Report (2004) * Report on Arctic Energy(2009) – Examples of projects * Telemedicine pilot project (2004 -2008) * Survey of Living Conditions in the Arctic * Circumpolar Surveillance of Infectious Diseases * Best Practices in Ecosystem-based Ocean Management in the Arctic (with PAME WG) > The 2009 project report shed light on the limited application by Arctic States of the ecosystem approach in a transboundary context > Relatively few transboundary marine conservation agreements exist in the Arctic > Transboundary integrated planning has yet to occur – The SDWG is planning to undertake a further project, Human Development II, to provide an updated circumpolar assessment of human development and quality of life in the Arctic with a target completion date of 2015

• Decisions and declarations from Ministerial meetings represent a further way the Arctic Council has “edged forward”: + For most of the Arctic Council’s history, Ministerial meetings could be characterized as largely discussional and limited in law and policy impacts. Decisions were dominated by approving working group workplans and projects and other recommendations suggested by Senior Arctic Officials

+ At the Sixth Ministerial meeting in Tromsø, Norway on 29 April 2009, a major shift occurred with Ministers taking more of a policy-shaping role through a number of key decisions – Initiation of Deputy Minister level meetings to discuss emerging issues between Ministerial meetings – Adoption of all 17 AMSA recommendations including * Making parts of the Guidelines for Ships Operating in Arctic Ice. Covered Waters mandatory * Augmenting global IMO ship safety and pollution conventions in order to better protect the Arctic environment – Establishment of a task force on short-lived climate forcers (black carbon, methane and troposheric ozone) to identify new measures to reduce emissions – Establishment of a task force to develop and compete negotiation by the next Ministerial meeting in 2011 of an international instrument on search and rescue cooperation in the Arctic

+ At the Seventh Ministerial meeting in Nuuk, Greenland on 12 May 2011, Ministers continued the more proactive law and policy role – The Agreement on Cooperation in Aeronautical and Maritime Search and Rescue, negotiated by the Council appointed task force, was signed during the meeting – Ministers welcomed reports on short-lived climate forcers and encouraged Arctic states to implement at the national level relevant recommendations for reducing emissions of black carbon – Ministers also decided to establish a Short-Lived Climate Forcer Contaminants project steering group to undertake circumpolar demonstrative projects to reduce black carbon and other SLCF emissions – Ministers further advanced the Council’s governance shaping role by deciding to establish a task force to develop an international instrument on Arctic marine pollution preparedness and response.

2. Sea of Challenges Key challenges as the Arctic Council voyages beyond its first 15 years may be largely summarized under four headings: • Fully implementing existing commitments and recommendations • Completing the Arctic Council’s restructuring • Addressing future governance of Arctic areas beyond national jurisdiction • Strengthening the “Arctic voice” in international fora

• Fully Implementing Existing Commitments and Recommendations + Getting a firm grip on how numerous commitments and recommendations coming out of Arctic Council meetings and reports have been implemented is difficult since the Council has generally not required national reporting or project follow up monitoring + Nevertheless, three implementation challenges stand out – Getting full ratification of international agreements * Even though the Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities urges Arctic states to ratify the key international transboundary pollution conventions, ratification has been limited

> The USA has not ratified the Stockholm Convention on POPs > The Russian Federation and USA are not Parties to the Convention on Long-range Transboundary Air Pollution (LRTAP) Protocol on POPs (1998) > Iceland Russia are not Parties to the LRTAP Heavy Metals Protocol (1998) * While the AMSA report urges Arctic States to ratify the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, only Canada, Norway and Sweden have ratified the Convention

– Following through with AMSA recommendations While considerable progress in implementing AMSA recommendations has occurred since the report was published in April 2009, many “unfinished agendas” continue, e. g. * An AMSA Implementation Status Report submitted to Ministers in May 2011 noted three areas in particular where more implementation efforts are needed > Identifying and protecting areas of heightened ecological and cultural significance > Sharing Arctic maritime domain awareness information on positions and movements of ships > Ensuring adequate spill response capacity across the Arctic

* A priority challenge is the completion of negotiations for an effective and mandatory Polar Shipping Code > Numerous issues remain to be resolved regarding Code contents, for example † Types of vessels to be covered such as possible extension to fishing vessels † The appropriate balance between mandatory and recommendary provisions † The inclusion of ice navigational training requirements † Vessel-source pollution discharge standards † Voyage planning requirements, such as possible pairing of ships to assist potential search and rescue.

> A further complication is resolving how to make the Polar Code mandatory with three main options possible: † Adopting the Code as an amendment to the SOLAS Convention † Developing amendments to SOLAS, MARPOL, the Antifouling Substances Convention and the Ballast Water Management Convention † Forging a new convention on polar shipping > The DE Sub-Committee has re-established the Correspondence Group on Development of a Mandatory Code under the co-ordination of Norway to further develop the Code with a report to be submitted to the 56 th session of the DE Sub-Committee > The target completion date of 2012 for Polar Shipping Code negotiations seems unlikely to be met in light of the numerous issues to be resolved † Arctic Council Ministers in their Nuuk Declaration in 2011 already emphasized the need for timely completion of the Polar Code † The PAME Working Group in its meeting in September 2011 recommended that member governments explore submission of a paper to the IMO emphasizing the importance of the completion of the Polar Code to Arctic Council member States.

* Following through on the AMSA recommendation to improve shippingrelated infrastructure in the Arctic is especially difficult: > Long list of infrastructure deficits were identified > Need for major national financial and human resource commitments > Shipping infrastructure clearly more advanced in the Barents Sea and Northern Sea Route regions than in other areas of the Arctic

– Putting the ecosystem approach into practice * While the Arctic Council’s Arctic Marine Strategic Plan suggests an ecosystem approach as a way forward in managing the Arctic marine environment, subsequent Council activities relating to the EA might be described as largely “conceptual and informational”, e. g. > The Ecosystem Approach Expert Group under the PAME WG has identified 17 LMEs and compiled a summary of existing and ongoing ecological assessments in the various LMEs but not yet clear what the governance implications will be > The SDWG PAME project on Best Practices in Ecosystem-based Management in the Arctic produced a summary document in 2009 listing core elements essential to implementing the EBM concept, e. g. † The application of the best available scientific and other knowledge to understand ecosystem interactions and to manage human activities † An integrated and multi-disciplinary approach to management that takes into account the entire ecosystem † The assessment of cumulative impacts † Setting explicit conservation standards, targets and indicators † Enhancing transboundary arrangements

> The IUCN, an observer to the Arctic Council, has collaborated with the Natural Resources Defense Council in hosting three workshops on EBM in the Arctic with various discussional outputs, e. g. † Suggesting possible development of an Arctic Marine Ecosystem-based Management Strategy by the Council † Identifying ecologically and biologically significant areas (EBSAs) in the Arctic that might warrant special protection

* Navigating from high level discussions and assessments to concrete management commitments and measures in light of EBM is likely to be an incremental voyage > At the May 2011 Ministerial meeting, Ministers decided to establish an Arctic Council expert group on ecosystem-based management for the Arctic marine environment with a mandate to recommend further activities in that field for possible consideration of SAOs before the end of the Swedish Chairmanship in 2013 > Establishment of a network of MPAs in the Arctic and development of integrated management planning in the LME and transboundary contexts stand out as unmet challenges

• Completing the Arctic Council’s Restructuring + Norway during its chairmanship of the Arctic Council in 2006 -2009 placed a high priority on improving the efficiency and effectiveness of the Arctic Council, but making changes in the administration and organization of the Council has been slow – At the April 2009 Ministerial meeting in Tromsø, Ministers simply called for further consideration of how the Arctic Council should best be structured and for continued discussions on the role of observers in the Arctic Council – A controversial issue had become the admission of further non-Arctic States and the EU as permanent observers (the requests by the EU, China, Italy and South Korea for permanent observer status were denied in 2009 pending further discussions within the Council)

+ A breakthrough of sorts occurred at the Nuuk Ministerial meeting in May 2011 where key steps towards strengthening the Arctic Council occurred: – Ministers decided to establish a Standing Arctic Council Secretariat in Tromsø, Norway to be operational no later than at the beginning of the Canadian chairmanship of the Council in 2013 – Ministers also decided to establish a task force to implement decisions to strengthen the Arctic Council including necessary arrangements for the Secretariat and approved the terms of reference for the task force as set out in the Senior Arctic Officials’ Report to Ministers in 2011 – The SAO Report included an annex, Framework for Strengthening the Arctic Council, which partly focused on providing details regarding the proposed Secretariat * A key commitment was to provide an administrative budget to cover the operating costs of the Secretariat with the budget to be determined at the Ministerial meeting every second year and the budget financing to be equally shared by the eight Arctic States in an amount which should not exceed USD 1 million * The Framework also indicated that the Arctic Council would utilize a wide range of approaches to address emerging challenges in the Arctic, including scientific assessments, guidelines, best practices, new legally binding instruments, and an increased use of task forces.

+ In Nuuk, Ministers also adopted recommendations of SAOs on the role and criteria for observers to the Arctic Council and decided to apply the criteria to evaluate pending applicants for observer status – The criteria to be weighed by the Council in determining observer suitability include the extent to which observers: * Accept and support the objectives of the Arctic Council defined in the Ottawa declaration * Recognize Arctic States' sovereignty, sovereign rights and jurisdiction in the Arctic * Recognize 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 * Respect the values, interests, culture and traditions of Arctic indigenous peoples and other Arctic inhabitants * Have demonstrated a political willingness as well as financial ability to contribute to the work of the Permanent Participants and other Arctic indigenous peoples * Have demonstrated their Arctic interests and expertise relevant to the work of the Arctic Council

* Have demonstrated a concrete interest and ability to support the work of the Arctic Council, including through partnerships with member states and Permanent Participants in bringing Arctic concerns to global decision making bodies – The role of observers is also clarified. * For example, observers may submit written statements at Ministerial meetings and at meetings of the Council’s subsidiary bodies observers may, at the discretion of the Chair, make statements after Arctic States and permanent participants, present written statements and submit relevant documents * Observers may propose projects through an Arctic state or a permanent participant but financial contributions from observers to any given project may not exceed the financing from Arctic States, unless otherwise decided by SAOs

+ A final strengthening component adopted by Ministers in Nuuk related to Arctic Council communications. Ministers adopted Communication and Outreach Guidelines and instructed SAOs to develop a Strategic Communications Plan for the Council. + While the Arctic Council’s structural transitionings in process offer hope for a more effective Council, other challenges loom on the horizon: – Whether the Indigenous Peoples Secretariat should be integrated with the permanent Arctic Council Secretariat is under review by permanent participants and it remains to be seen how services to PP organizations might be strengthened. – By far the biggest challenge may be ensuring adequate financing for Arctic Council assessments and projects and other activities. * The new budgetary expenditures being proposed for covering the Arctic Council are limited to secretariat costs. * The Nuuk Declaration itself highlighted the continuing financial limitations of the Council. Ministers reiterated: [t]he need to finance circumpolar cooperation, as well as the importance of providing adequate funding to Permanent Participants to support their preparations for, and participation in, the Arctic Council, the working groups, task forces and Arctic Council projects,

+ Various other suggested strengthenings of the Arctic Council, offered by various groups and authors, have not been followed. Suggestions have included: – Holding one or more Ministerial meetings at the head of state level – Reforming the Council’s mandate to include security and education – Restructuring the working groups – Creating a category of consultative party status to enhance the role of leading non-state action and to encourage them to contribute to an Arctic Fund.

• Addressing Future Ocean Governance of Areas Beyond National Jurisdiction + A looming challenge is the need to consider future directions for governance arrangements in the central Arctic Ocean (CAO) beyond national jurisdiction – A large high seas “donut hole” exists in the CAO beyond the 200 n. m. zones of coastal states http: //www. newscientist. com/data/images/ns/cm s/dn 172291_500. jpg – At least two deep seabed areas have been predicted to lie beyond national jurisdiction once the Arctic coastal states delimit the outer extent of their continental shelves. Macnab, 2006

+ A multiplicity of future governance proposals have emanated from academics, NGOs and others. Suggestions include: – Establishment of a regional fisheries management organization – Possible expansion of the fisheries jurisdiction of the North-East Atlantic Fisheries Commission – Creation of a regional ocean management organization – Adoption of an Arctic Ocean framework convention applicable to the Arctic marine environment both within and beyond national jurisdictions – A regional sui generis approach whereby the five coastal states would divide the area beyond national jurisdiction (ABNJ) into national sections – A freeze on jurisdictional claims to the central Arctic basin – A declaration of governance principles including a precautionary approach to new resource developments

+ While the Arctic Council has not specifically addressed the topic of ABNJ governance, representatives of the five Arctic coastal States did tangentially consider future directions in governance at their meeting in Ilulissat, Greenland in May 2008. – They indicated that the law of the sea, provides a solid foundation for responsible management by the five coastal States and other users of the Arctic Ocean. – Under a law of the sea approach * Various freedoms would be open to all States including the freedoms of navigation and fishing (Art. 87). * Mineral exploration and exploitation of the deep seabed would come under the jurisdiction of the International Seabed Authority (Art. 156). * Flag State jurisdiction would prevail as the prime principle for controlling activities (Art. 92). * Various responsibilities would fall upon States to control activities of their vessels and nationals on the high seas, for example, their duty to:

> Conserve fish stocks and to cooperate with other States in seeking to manage fish stocks jointly exploited (Art. 118) > Undertake environmental impact assessments for planned activities, that may cause substantial pollution or significant and harmful changes to the marine environment (Art. 206) > Generally to protect and preserve the marine environment (Art. 192). – 1995 Implementation Agreement on Straddling and Highly Migratory Fish Stocks establishes various obligations potentially relevant to Arctic high seas fisheries, e. g. * Application of precautionary and ecosystem approaches (Art. 5) * Commitment to establish a sub-regional or regional fisheries management organization or arrangement where no such organization/arrangement exists for a particular straddling or highly migratory fish stock (Art. 8(5))

+ The role of the Arctic Council in addressing future governance arrangements for ABNJ in the Arctic Ocean remains uncertain with at least three main approaches possible. – First, a reactive approach could be followed whereby Arctic States would forestall law and policy responses until actual development pressures arise, such as proposed commercial fisheries in parts of the ABNJ. – Second, a global first strategy could be followed where Arctic States defer addressing ABNJ issues in the Arctic until after global discussions and processes result in clarifications as to legal principles and consensus on the appropriate international legal framework applicable to ocean areas beyond national jurisdiction. * Debates and expressions of divergent views over future directions for governance of marine biodiversity beyond national jurisdiction have been “continuing sagas” within two main UN fora > UN Open-ended Informal Consultative Process on Oceans and Law of the Sea (ICP), e. g. † Fifth ICP meeting in 2004 addressed management of biological diversity of the seabed beyond national jurisdiction as a central topic

† Eighth ICP meeting in 2007 focused discussions on marine genetic resources including bioprospecting in areas beyond national jurisdiction

> Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (ABNJ WG) † First meeting 13 -17 February 2006 † Second meeting 28 April-2 May 2008 † Third meeting 1 -5 February 2010 † Fourth meeting 31 May-3 June 2011

* Two main “bones of contention” stand out: > Whethere is a governance gap in relation to marine genetic resources? † One view is that marine genetic resources beyond areas of national jurisdiction are covered by the high seas regime of LOSC and customary international law ~ A high seas freedom ~ Subject to marine environmental protection and assessment responsibilities ~ An elaborated regulatory regime might impede scientific research and innovation

> Another view is that marine genetic resources beyond national jurisdiction should be considered part of the common heritage of mankind: ~ Requiring fair and equitable sharing of benefits ~ Supporting the need for new regulatory and practical measures ~ Drawing support especially from preambular language of LOSC (among other sources) Recognizes the desirability of promoting the equitable and efficient utilization of ocean resources Notes the importance of taking into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries

~ Raising various difficult questions How to distinguish between marine scientific research and bioprospecting? Whether the role of the International Seabed Authority should be extended to cover bioprospecting? What should be the specific provisions for benefit sharing?

† A second central contention point – Whethere should be a new Implementation Agreement on Marine Biodiversity Beyond National Jurisdiction? ~ Idea pushed particularly by the EU and various NGOs ~ Such an agreement might address various issues such as Establishment of MPAs on high seas Enhancement of EIA provisions Clarification of governance principles

* The last ABNJ WG meeting in June 2011, while not resolving the various political tensions, did make progress on the procedural front. > The ABNJ WG recommended that the UN General Assembly initiate a process for identifying gaps and ways forward in addressing marine biodiversity issues beyond national jurisdiction including through † The implementation of existing instruments and † The possible development of a multilateral agreement under the UN Convention on the Law of the Sea > The process would take place within the ABNJ WG and through intersessional workshops > The June meeting also recommended the convening of another WG meeting in 2012

– Third, Arctic States could follow a proactive approach with various steps taken under the Arctic Council umbrella, such as: * Convening a workshop or workshops to discuss the preferred policy future * Engaging non-Arctic states and actors in understanding their governance perspectives * Establishing a task force to review law and policy options * Encouraging a precautionary moratorium on future commercial living marine resource exploitations until appropriate scientific and management parameters are in place

• Strengthening the “Arctic voice” in international fora + Many of the environmental threats to the Arctic arise largely from outside the region and an ongoing challenge is to translate the seriousness of Arctic human and environmental stresses into effective law and policy responses particularly at the global level. – While AMAP assessments have been influential in the negotiation of agreements relating to chemicals and heavy metals, the ability for the Arctic Council to push a strong environmental agenda in global fora, besides the IMO, has been weak to non-existent. – For example, adequate climate change mitigation responses, reflecting the serious Arctic consequences of melting ice and rising temperatures, have yet to be forged under the UN Framework Convention on Climate Change (UNFCCC). – In light of the large number of chemicals being found in the Arctic with bioaccumulation potential which are not subject to international controls, the need for more proactive approaches to chemicals management stands out.

+ The Council’s Arctic Ocean Review project holds considerable promise to help mobilize an Arctic Council agenda for taking action at the global and regional levels to better protect Arctic communities and their environment. The Phase II report, expected to be published in 2013, has as one of its major aims the development of options to strengthen international agreements and measures. + However, it remains to be seen how influential the AOR report and implementation follow ups will be. – Final AOR recommendations are expected to be negotiated by representatives of the eight Arctic States. – As a consensus-based, discussional forum, the Arctic Council is limited by the political views and sensitivities of its eight member States and reaching consensus on a common voice may be difficult. – Furthermore, it is member States that are Parties to international agreements and possess membership in international organizations, not the Arctic Council.

+ Conceptualizing how the Council might best find ways to make the voice of the Arctic heard in international settings is not easy. Suggestions have included: – The establishment of an International Cooperation Working Group or a coordinating committee for external relations – A joint working group on the voice of the Arctic among key partners, such as the Indigenous Peoples Secretariat, the Executive Committee of the Northern Forum and SAOs + Arctic Council Communication and Outreach Guidelines, adopted at the Nuuk Ministerial meeting in 2011, may assist to some extent. – The Guidelines give the SAO chair the key role of disseminating information and appearing at conferences, seminars and meetings of international organizations in order to increase the profile of the Arctic Council – However, in communication on behalf of the Arctic Council, the Chair is to confine his/her comments to factual information and agreed positions – When faced with inquiries to which a common position cannot be obtained, the Chair must make it clear that he/she is communicating on behalf of the Chairmanship and not the Council

Conclusion • After 15 years of existence, the Arctic Council, often criticized for its soft law status and structural limitations, certainly has evolved from being just a “study and talk” venue to more of a policy shaping and even law-making forum. + The Arctic Marine Shipping Assessment represented a significant shift with its 17 recommendations leading to concrete follow up actions at the global, regional and national levels. + The use of task forces to actually negotiate treaty texts under the auspices of the Council has become an innovation with a Search and Rescue Agreement concluded in May 2011 and a further instrument on regional emergency preparedness and response under development.

• An apt phrase that captures the essence of how the Arctic Council is faring after 15 years of existence is “a work in progress. ” + The Council continues to flexibly and incrementally evolve on many fronts through task forces, assessments, reviews, expert groups, workplans and other plans. + Many issues have yet to be addressed by the Council, including bioprospecting and geoengineering + Harmonized national regulatory approaches have yet to be forged particularly in the area of oil and gas regulation. • Whether the Council will be able to adequately stem the powerful tides of climate change and globalization has yet to be answered • A long voyage lies ahead!