The Law of the Sea and the Polar Regions : Interactions Between Global and Regional Regimes [1 ed.] 9789004255210, 9789004255203

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The Law of the Sea and the Polar Regions

Publications on Ocean Development Volume 76 A Series of Studies on the International, Legal, Institutional, and Policy Aspects of Ocean Development

General Editors: Vaughan Lowe and Robin Churchill

The titles published in this series are listed at brill.com/pood

The Law of the Sea and the Polar Regions Interactions between Global and Regional Regimes Edited by

Erik J. Molenaar Alex G. Oude Elferink and Donald R. Rothwell

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data The law of the sea and the polar regions : interactions between global and regional regimes / edited by Erik J. Molenaar, Alex G. Oude Elferink, and Donald R. Rothwell.   pages cm. —  (Publications on ocean development ; v. 76)  Includes index.  ISBN 978-90-04-25520-3 (hardback : alk. paper) — ISBN 978-90-04-25521-0 (e-book) 1.  Law—Polar Regions. 2.  Polar Regions—International status. 3.  Conservation of natural resources—Law and legislation—Polar Regions.  I. Molenaar, Erik J., 1965– editor of compilation. II. Oude Elferink, Alex G., 1962– editor of compilation. III. Rothwell, Donald R., 1959– editor of compilation.  K593.L39 2013  341.4’50911—dc23

                                                           2013018527

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 0924-1922 ISBN 978-90-04-25520-3 (hardback) ISBN 978-90-04-25521-0 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

CONTENTS

Preface ..............................................................................................................................  Erik J. Molenaar, Alex G. Oude Elferink and Donald R. Rothwell

vii

Abbreviations ................................................................................................................. xi Contributors ................................................................................................................... xvii List of Figures and Tables .......................................................................................... xxiii Table of Treaties ............................................................................................................ xxv Table of Cases (National and International) ........................................................ xxxiii Chapter 1. The Regional Implementation of the Law of the Sea and the Polar Regions ............................................................................................................  Alex G. Oude Elferink, Erik J. Molenaar and Donald R. Rothwell

1

Chapter 2. The Evolving Antarctic Treaty System: Implications of Accommodating Developments in the Law of the Sea ...............................  Shirley V. Scott

17

Chapter 3. The Developing Regional Regime for the Marine Arctic ...........  Betsy Baker Chapter 4. The Outer Limits of the Continental Shelf in the Polar Regions .......................................................................................................................  Alex G. Oude Elferink

35

61

Chapter 5. Marine Protected Areas in the Arctic ..............................................  Suzanne Lalonde

85

Chapter 6. Marine Protected Areas in the Southern Ocean ..........................  Karen N. Scott

113

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contents

Chapter 7. Environmental Assessments in the Marine Areas of the Polar Regions ............................................................................................................  Robin Warner

139

Chapter 8. Migratory Species Conservation in Warming Polar Oceans, with Particular Reference to Seabirds ..............................................................  Arie Trouwborst

163

Chapter 9. International Regulation of Polar Shipping ...................................  Laura Boone

193

Chapter 10. Antarctic Fisheries Management .....................................................  Andrew Serdy

217

Chapter 11. Arctic Fisheries Management ............................................................  Erik J. Molenaar

243

Chapter 12. Marine Mammals in the Antarctic Treaty System .....................  Joanna Mossop

267

Chapter 13. The Conservation and Utilization of Marine Mammals in the Arctic Region .....................................................................................................  Nigel Bankes

293

Chapter 14. Marine Scientific Research in the Antarctic Treaty System ....  René Lefeber

323

Chapter 15. Marine Scientific Research in the Arctic .......................................  Yoshinobu Takei

343

Chapter 16. Maritime Security in the Polar Regions ........................................  Donald R. Rothwell

367

Chapter 17. Interactions between Global and Regional Regimes: Trends and Prospects ...........................................................................................................  Erik J. Molenaar, Donald R. Rothwell and Alex G. Oude Elferink

389

Index .................................................................................................................................

419

Preface

This book is the outcome of a project on the interactions between the global law of the sea and regional regimes in the management of the polar regions. The project has its origins in our longstanding interest in the law of the polar regions and our collaboration on that topic. In particular, our starting point was a 2001 book The Law of the Sea and Polar Maritime Delimitation and Jurisdiction.1 In view of the many developments in the law of the sea and the polar regions since then, we felt that the time had come to again complement our individual research by means of a joint undertaking with invited leading scholars and younger colleagues in the field. With this new project we did not simply aim for an update of the 2001 book. That book’s focus was on maritime delimitation and jurisdiction, and on some of these issues there have not been any significant developments since then. At the same time, a number of topics included in that book merited renewed attention, and several new topics and developments were of interest as well. The law of the sea, just as international law generally, at present is to a large extent about the effective implementation of existing rules. As indicated by the LOS Convention,2 the main global framework for managing ocean space, implementation has to be achieved both through the global and the regional level. This has led to the coexistence of, and interaction between, many different global and regional regimes. For instance, these issues have arisen in the context of the protection and preservation of the marine environment in which case there are among others interactions between the CBD,3 regional fisheries management organizations (RFMOs) and regional seas organizations. 1 A.G. Oude Elferink and D.R. Rothwell (eds) The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Martinus Nijhoff Publishers, The Hague: 2001). 2 United Nations Convention on the law of the sea of 10 December 1982 (1833 UNTS 396). 3 Convention on Biological Diversity of 5 June 1992 (1769 UNTS 79).

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To be effective, the management of the polar regions will have to take into account all these different regimes. The title of the project and this book—‘The Law of the Sea and Polar Regions: Interactions between Global and Regional Regimes’—captures the essence of the research framework we have adopted to look into this issue. In order to implement this general research framework we decided to select a number of specific topics. We took a number of considerations into account in making our selection. First of all, we considered that there should be two chapters analyzing the overall framework of regional cooperation in respect of each of the polar oceans. Secondly, specific activities and issues should have a significant interest from the perspective of the law of the sea and international cooperation; in addition, it should concern activities and issues in respect of which the law is developing. On that basis we identified the following topics: definition of the outer limits of the continental shelf and article 76 of the LOS Convention; marine protected areas; environmental assessments; protection of migratory species including birds; shipping; fisheries management; marine mammals; marine scientific research; and maritime security. In some cases we decided that it would be possible to deal with a topic for both polar oceans in one chapter, but in other instances we considered that there was scope for two separate chapters dealing with the issue or activity concerned in relation to the Arctic and the Antarctic respectively. This list does not exhaustively deal with international cooperation in respect of the polar regions. However, we consider that the range of selected issues and activities covers sufficient ground to allow drawing general conclusions concerning the central research question of the project. In order to ensure sufficient coherence between the chapters, we requested contributors to follow a common research framework. Each chapter was to deal with the central research question of the project, i.e. what interactions exist between global and regional regimes in the overall law of the sea regime. This first of all requires looking at the jurisdictional framework created by the LOS Convention, in order to ascertain how it shapes the possibilities for regional implementation. We also asked contributors to take the following points into consideration, to the extent they were relevant to their individual chapter: • How do global institutional frameworks created by the LOS Convention apply?; • How do other global institutional frameworks, such as the International Maritime Organization or the International Whaling Commission impact on regional cooperation?; • What are the consequences arising from the application of certain multilateral instruments that have a maritime focus or dimension in their application to the polar regions?; and • Where relevant, to what extent has the law of the sea in the polar regions been impacted upon by basic principles of international environmental law?



preface

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To get a better feel of what this entails in respect of a specific activity the interactions between global and regional regimes in respect of fisheries can be considered. Whereas the Fish Stocks Agreement4 provides some guidance on the role, functions and operation of RFMOs, the LOS Convention offers only very general guidance on regional cooperation for other purposes. Under both treaties, parties retain considerable discretion to tailor regional implementation to various kinds of regional characteristics (e.g. fish stocks, ecosystems and (coastal) states). While full inter-regional uniformity is not intended and is also not necessary, compliance with the obligations on regional implementation at the global level arguably requires a certain minimum level of inter-regional uniformity on at least some aspects (e.g. objectives, guiding principles, participation, etc.). This minimum level of inter-regional uniformity would reflect the guiding nature and predominance of global international law. In the domain of marine capture fisheries, inter-regional uniformity was pursued through the negotiation of the Fish Stocks Agreement, which then led to processes to reform existing RFMOs to ensure compatibility with the Fish Stocks Agreement—inter alia by means of performance assessments—and the establishment of new RFMOs to ensure full high seas coverage. Interactions between global and regional regimes can be discerned in all these processes. Progressive development of international law in particular regions often serves as models or inspiration for other regions and may eventually be transformed into minimum standards in global instruments. At the first stage of the project, all authors submitted a draft of their chapter for discussion at a workshop, which took place at Utrecht University on 14 and 15 May 2012. During the workshop all draft chapters were presented by their authors and discussed between the participants. On the basis of the outcomes of that discussion, the drafts have been finalized for inclusion in the present volume. The individual chapters of this book do not specify the last date of access of websites. Links have been checked by the authors and are current as of 1 February 2013. This project would not have been possible without financial support from a number of sources, including the Netherlands Polar Programme (NPP), Shell International B.V., the World Wide Fund for Nature (WWF), the Ocean Policy Research Foundation (OPRF) of Japan and the G.J. Wiarda Institute of the School of Law of Utrecht University. Also, we would like to thank David Swanson for preparing the three maps of the polar regions that are included in chapter 1.

4 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995 (2167 UNTS 3).

x

preface

Finally, our appreciation goes to Marie Sheldon and the other staff at Martinus Nijhoff Publishers for getting this book ready for submission to its intended audience. Erik J. Molenaar Alex G. Oude Elferink Donald R. Rothwell Kralendijk, Utrecht and Canberra, 1 March 2013

Abbreviations

AAT ABA ABM ABNJ ACAP

Australian Antarctic Territory Arctic Biodiversity Assessment Antarctic biological material areas beyond national jurisdiction Agreement on the Conservation of Albatrosses and Petrels ACCOBAMS Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area ACIA Arctic Climate Impact Assessment ACPB Agreement on the Conservation of Polar Bears ACS Arctic Council System AEPS Arctic Environmental Protection Strategy AEWA Agreement on the Conservation of African-Eurasian Migratory Waterbirds AFWG Arctic Fisheries Working Group Agreed Measures Agreed Measures for the Conservation of Antarctic Fauna and Flora AMAP Arctic Monitoring and Assessment Programme AMSA Arctic Marine Shipping Assessment AMSP Arctic Marine Strategic Plan AOOGG Arctic Offshore Oil and Gas Guidelines AOR Arctic Ocean Review AOSB Arctic Ocean Science Board Arctic EIA Guidelines Guidelines for Environmental Impact Assessment in the Arctic Arctic MOPPR Agreement Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic

xii

abbreviations

Arctic SAR Agreement Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic Area seabed, ocean floor and subsoil beyond the outer limits of national jurisdiction ASCOBANS Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas ASMA Antarctic Specially Managed Area ASOC Antarctic and Southern Ocean Coalition ASPA Antarctic Specially Protected Area ATCM Antarctic Treaty Consultative Meeting ATCP Antarctic Treaty Consultative Party ATME Antarctic Treaty Meeting of Experts ATS Antarctic Treaty System BBNJ Working Group Ad Hoc Open-ended Informal Working Group on conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction BEAC Barents Euro-Arctic Council BEAR Barents Euro-Arctic Region BRC Barents Regional Council for the Euro-Arctic Region CAFF Conservation of Arctic Flora and Fauna working group CAMLR Convention Convention on the Conservation of Antarctic Marine Living Resources CBD Convention on Biological Diversity CBMP Circumpolar Biodiversity Monitoring Program CCAMLR Commission for the Conservation of Antarctic Marine Living Resources CCAS Convention for the Conservation of Antarctic Seals CCSBT Commission for the Conservation of Southern Bluefin Tuna CDS catch documentation scheme CEE comprehensive environmental evaluation CEMP CCAMLR Ecosystem Monitoring Program CEP Committee for Environmental Protection CHM common heritage of mankind CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CLCS Commission on the Limits of the Continental Shelf CMS Convention on the Conservation of Migratory Species of Wild Animals cooperating NCP cooperating non-contracting party COP Conference of the Parties CPAN Circumpolar Protected Areas Network

CRAMRA

abbreviations

xiii

Convention on the Regulation of Antarctic Mineral Resources EEZ exclusive economic zone EIA environmental impact assessment EIS environmental impact statement EPPR Emergency Prevention, Preparedness and Response Espoo Convention Convention on Environmental Impact Assessment in a Transboundary Context EU European Union FAO Food and Agriculture Organization of the United Nations FAO Deep Sea Fisheries FAO International Guidelines for the Management of  Guidelines Deep Sea Fisheries in the High Seas Fish Stocks Agreement Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks GAIRS generally accepted international rules and standards GPA Global Programme of Action for the Protection of the Marine Environment from Land-based Activities HIMO Heard Island and McDonald Islands IAATO International Association of Antarctic Tour Operators IASC International Arctic Science Committee ICAO Convention Convention on International Civil Aviation ICES International Council for the Exploration of the Sea ICJ International Court of Justice ICRW International Convention for the Regulation of Whaling IEE initial environmental evaluation IGY International Geophysical Year IHO International Hydrographic Organization ILM International Legal Materials ILO International Labour Organization IMO International Maritime Organization IOC Intergovernmental Oceanographic Commission IOPD Integrated Ocean Drilling Program IOTC Indian Ocean Tuna Commission IPCC Intergovernmental Panel on Climate Change IPY International Polar Year IRCC Inter-Regional Coordination Committee ISA International Seabed Authority ISPS Code International Ship and Port Security Code

xiv ITLOS IUCN IUU Fishing IWC JARPA JCNB JCOMM Joint Commission Kiev Protocol LME LNTS London Convention LOS Convention LRTAP Madrid Protocol MARPOL MEPC MGR MOP MOU MPA MSC MSR MSY NAFO NAFO Convention NAMMCO NASCO NDF NEAFC NEAFC Convention NGO nm

abbreviations International Tribunal for the Law of the Sea International Union for Conservation of Nature illegal, unreported and unregulated fishing International Whaling Commission Japanese Whale Research Program under Special Permit in the Antarctic Joint Commission for Conservation of Narwhal and Beluga Joint Technical Commission for Oceanography and Marine Meteorology Joint Norwegian-Russian Fisheries Commission Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context large marine ecosystem League of Nations Treaty Series Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter United Nations Convention on the Law of the Sea Convention on Long-Range Transboundary Air Pollution Protocol on Environmental Protection to the Antarctic Treaty International Convention for the Prevention of Pollution by Ships Marine Environment Protection Committee marine genetic resources Meeting of the Parties Memorandum of Understanding marine protected area Maritime Safety Committee marine scientific research maximum sustainable yield Northwest Atlantic Fisheries Organization Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries North Atlantic Marine Mammal Commission North Atlantic Salmon Conservation Organization non-detriment finding North-East Atlantic Fisheries Commission Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries non-governmental organization nautical miles

NORDREG

abbreviations

xv

Northern Canada Vessel Traffic Services Zone Regulations NSR Northern Sea Route NWP Northwest Passage OPRC International Convention on Oil Pollution Preparedness, Response and Cooperation OSPAR Commission Commission established by the OSPAR Convention OSPAR Convention Convention for the Protection of the Marine Environment of the North-East Atlantic PAME Protection of the Arctic Marine Environment working group Part XI Deep-Sea Mining Agreement relating to the Implementation of Part XI  Agreement of the United Nations Convention on the Law of the Sea of 10 December 1982 PBSG Polar Bear Specialist Group PICES North Pacific Marine Science Organization Polar Shipping Guidelines IMO Guidelines for ships operating in polar waters POP persistent organic pollutant POPs Convention Convention on Persistent Organic Pollutants PPs Permanent Participants PSC port state control PSSA particularly sensitive sea area Ramsar Convention Convention on Wetlands of International Importance Especially as Waterfowl Habitat RFMO regional fisheries management organization RPA Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities RSO regional seas organization RSP Regional Seas Programme SAOs Senior Arctic Officials SAON Sustaining Arctic Observing Networks SAR search and rescue SAR Convention International Convention on Maritime Search and Rescue SBSTTA Subsidiary Body on Scientific, Technical and Technological Advice SBT southern bluefin tuna SCAR Scientific Committee on Antarctic Research SEA strategic environmental assessment SEAFO South East Atlantic Fisheries Organisation SOLAS International Convention for the Safety of Life at Sea

xvi SOWER

abbreviations

Southern Ocean Whale Ecosystem Research Program STCW International Convention on Standards of Training, Certification and Watchkeeping for Seafarers SUA Convention Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation TAC total allowable catch TFII Task Force on Institutional Issues UK United Kingdom of Great Britain and Northern Ireland UN United Nations UNCED United Nations Conference on Environment and Development UNCLOS III Third United Nations Conference on the Law of the Sea UNEP United Nations Environment Programme UNEP Principles United Nations Environment Programme Goals and Principles of EIA UNESCO United Nations Educational, Scientific and Cultural Organization UNFCCC United Nations Framework Convention on Climate Change UNGA United Nations General Assembly UNTS United Nations Treaty Series US United States of America USSR Union of Soviet Socialist Republics VME vulnerable marine ecosystem WCPFC Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean WMO World Meteorological Organization World Heritage Convention Convention concerning the Protection of the World Cultural and Natural Heritage WSSD World Summit on Sustainable Development

Contributors

Betsy Baker is Associate Professor, Vermont Law School. Her recent work includes projects for the Inuit Circumpolar Council and the PAME Working Group of the Arctic Council, ranging from resource development laws in Greenland and Russia, marine scientific research, and co-leading the 2013 PAME Arctic Ocean Review, also writing its Offshore Oil and Gas chapter. A member of the science crew for two USCGC Healy Arctic Ocean extended continental shelf (ECS) mapping cruises (2008, 2009), and a Dickey Research Fellow, Institute of Arctic Studies, Dartmouth College (2009–2010), she clerked for the Honorable John T. Noonan, US Court of Appeals (9th Circuit), holds a J.D. from Michigan, an LL.M. and Dr. iur. from Christian-Albrechts-Universität in Kiel, Germany, where she was an Alexander von Humboldt Chancellors Scholar. For 2012–2013 she is Visiting Scholar with the US ECS Task Force at the US Department of State, Office of Ocean and Polar Affairs. Nigel Bankes is a Professor of Law at The University of Calgary where he holds the chair of natural resources law. He teaches or has taught courses in property law, aboriginal law, natural resources law, energy law, oil and gas law and international environmental law. He was seconded to the Department of Foreign Affairs and International Trade in Ottawa as Professor in Residence in the legal bureau between 1999 and 2000. He also holds an appointment as an adjunct professor at the Faculty of Law, the University of Tromsø, Norway and has an honorary doctorate from the University of Akureyri, Iceland. Laura Boone is a doctoral researcher at the Institute for European Studies of the Vrije Universiteit Brussel, member of the Environment and Sustainable Development Cluster and the International and European Law department. As of 2013, Laura is a Legal Counsel (Company lawyer) for Exmar Nv, Antwerp. Suzanne Lalonde is a Professor of international law at the Law Faculty of the University of Montreal and a research associate with the ArcticNet network in

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contributors

Canada and the Geopolitics in the High North programme in Norway. She holds a PhD in public international law from the University of Cambridge, where she was a Commonwealth scholar. Her research focuses on core international legal principles, especially those pertaining to sovereignty, territory and the determination of boundaries on land and at sea. She is currently involved in multidisciplinary research projects which are studying the legal and political implications of a thawing and increasingly navigable Northwest Passage, claims to jurisdiction over parts of the Arctic Ocean seabed and the emerging Arctic security environment. René Lefeber is legal counsel in the International Law Division of the Netherlands Ministry of Foreign Affairs since 2000 and holds a chair in International Environmental Law in the Faculty of Law of the University of Amsterdam since 2008. He studied Law and Political Science at the University of Leiden, and obtained his PhD from the University of Amsterdam in 1996 with a dissertation entitled Transboundary Environmental Interference and the Origin of State Liability. At the Ministry, he advises his Government on international law, and represents the Kingdom of the Netherlands in international negotiations and procedures. At the University, his research focuses on liability for environmental damage, compliance with international environmental law, and the sustainable management of international areas. Among others, he is Co-Chair of the Kyoto Protocol Compliance Committee and Head of Delegation of the Kingdom of the Netherlands to the Antarctic Treaty Consultative Meeting. Erik Jaap Molenaar has been with the Netherlands Institute for the Law of the Sea (NILOS) at Utrecht University since 1994 and currently holds a position as senior researcher. Since 2007 he also has a position as adjunct professor law of the sea at the Faculty of Law of the University of Tromsø. After having completed his PhD on ‘Coastal State Jurisdiction over Vessel-Source Pollution’ (1998), he broadened his research field with international fisheries law and the international law relating to the Antarctic and the Arctic. In addition to pure academic research, he also acted as a consultant for various governments, intergovernmental organizations and private companies. His research and consultancy activities have led to, and benefitted from, his participation in various diplomatic conferences and other intergovernmental meetings, including the annual meetings of several regional fisheries management organizations. Joanna Mossop is a senior lecturer in law at Victoria University of Wellington. Her research areas include the law of the sea, international environmental law and Antarctica.  Recent publications have covered areas such as maritime security, whaling in the Southern Ocean and the regulation of the continental shelf beyond 200 nautical miles.  She is a co-editor of Maritime Security: International Law and Policy Perspectives from Australia and New Zealand and is a past vicePresident of the Australia New Zealand Society of International Law.



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Alex Oude Elferink is the deputy director of the Netherlands Institute for the Law of the Sea and a senior lecturer at Utrecht University. His research interests among others are the law of the sea and the polar regions, the outer limits and delimitation of maritime zones, dispute settlement and the regime of marine areas beyond national jurisdiction. His consultancy work is among others concerned with the outer limits of the continental shelf, maritime delimitation, territorial disputes and litigation before the International Court of Justice. His publications include The delimitation of the continental shelf between Denmark, Germany and the Netherlands: Arguing law, practicing politics? (Cambridge University Press, 2013) Donald Rothwell is Professor of International Law, and Head of School at the ANU College of Law, Australian National University where he has taught since July 2006. He was previously Challis Professor of International Law and Director of the Sydney Centre for International and Global Law, University of Sydney (2004–2006). His research has a specific focus on law of the sea, law of the polar regions, and implementation of international law within Australia. He is presently working on projects assessing the polar regions and the law of the sea, and international legal practice in Australia, and is co-editor of the Australian Year Book of International Law. He has acted as a consultant or been a member of expert groups for UNEP, UNDP, IUCN, the Australian Government, and acted as advisor to the International Fund for Animal Welfare (IFAW). Karen Scott is a Professor in Law at the University of Canterbury, New Zealand. She researches and teaches in the areas of international environmental law, law of the sea and Antarctic law and policy. She has published widely in these fields in journals such as the Michigan Journal of International Law, the International and Comparative Law Quarterly, the Melbourne Journal of International Law and the Yearbook of International Environmental Law. She recently co-edited (with Alan D. Hemmings and Donald R. Rothwell) a collection entitled Antarctic Security in the Twenty-first Century: Legal and Policy Perspectives (Routledge, 2012). Between 2009 and 2012 she was the general editor of the New Zealand Yearbook of International Law. She is currently the Vice-President of the Australian New Zealand Society of International Law (ANZSIL). Shirley Scott is an Associate Professor and Coordinator of the Master Program in International Law and International Relations at the University of New South Wales in Sydney. She is Co-Chair of the Research and Planning Committee of the Asian Society of International Law and Research Chair of the Australian Institute of International Affairs. Shirley has published widely on the political dimensions of international law and Antarctica is one of her special interests, possibly due to having grown up in Hobart, Tasmania. Her recent books include International Law in World Politics. An Introduction (2nd ed., Lynne Rienner 2010); International Law, US Power. The United States’ Quest for Legal Security (Cambridge

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contributors

University Press, 2012) and International Law in the Era of Climate Change (edited with Rosemary Rayfuse, Edward Elgar, 2012). Andrew Serdy, a Reader in Public International Law at the University of Southampton, is on the Board of Editors of Ocean Development and International Law. Briefly a solicitor with Freehill, Hollingdale & Page in Sydney, Andrew then served the Australian Government Department of Foreign Affairs and Trade in several diplomatic positions before specializing in the law of the sea, including appearing for Australia in the Southern Bluefin Tuna arbitration, and drafting much of the legal documentation for Australia’s 2004 submission to the Commission on the Limits of the Continental Shelf. Since moving to Southampton in 2005 he has been an invited expert at workshops organized by the OECD High Seas Task Force and the Inter-American Tropical Tuna Commission, and a member of the UK delegation to the 2010 UK-Canada Colloquium on Arctic issues, also co-authoring a report to the European Parliament’s Fisheries Committee on the UN Fish Stocks Agreement. Yoshinobu Takei is Research Associate at the Walther Schücking Institute for International Law, Christian Albrechts University in Kiel, currently engaged in a post-doctoral research project entitled “Tools and Steps for the Reform of Ocean Governance: Legal and Institutional Aspects” within the framework of the Cluster of Excellence “The Future Ocean”. Prior to holding his current position, he was Research Associate at the Netherlands Institute for the Law of the Sea, Utrecht University, and Research Fellow at the Ocean Policy Research Foundation of Japan. He received his Ph.D. from Utrecht University in 2008. He has conducted research on various issues in the law of the sea and ocean policy, including high seas fisheries, integrated management of the oceans and seas, international submarine cables and Arctic Ocean governance. Arie Trouwborst is Associate Professor in the Department of European and International Law at Tilburg Law School in the Netherlands. His research covers international, European and Dutch environmental law, with a particular focus on nature conservation. Recent and current topics include the role of law in respect of the adaptation of biodiversity to climate change; large carnivore conservation and management; rescue and release of marine mammals; seabird bycatch in fishing operations; marine litter; and area and species protection in the North Sea. In 2006 Trouwborst obtained a PhD degree from Utrecht University with a thesis on the precautionary principle. He was a research associate with the Netherlands Institute for the Law of the Sea (NILOS) from 2001 to 2009. Robin Warner is Associate Professor at the Australian National Centre for Ocean Resources and Security, University of Wollongong. She was formerly Assistant Secretary of the International Crime Branch in the Commonwealth Attorney



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General’s Department from 2002 to 2007 and Director of International Law for the Australian Defence Force from 1997 to 2001. Her current research interests include law of the sea, oceans governance, marine environmental law, climate law and transnational criminal law. She is the author of Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff, Leiden, 2009), editor (with Simon Marsden) of Transboundary Environmental Governance: Inland Coastal and Marine Perspectives (Ashgate Publishers, 2012) and editor (with Clive Schofield) of Climate Change and the Oceans: Gauging the Legal and Policy Currents in the Asia Pacific (Edward Elgar, 2012) and author of many book chapters and journal articles on oceans law and policy.

List of Figures and Tables

Figure 1.1 The Antarctic Region—General Overview .................................... Figure 1.2 The Arctic Region—General Overview .......................................... Figure 1.3 The Antarctic Region—Political Geography ................................

10 12 14

Table 5.1 Table 13.1 Table 13.2

87

IUCN Protected Area Management Categories ........................... The Relevant Global Agreements: Status of Arctic States as Parties ....................................................................................................... Regional Agreements ...........................................................................

297 298

Table of Treaties

1914 International Convention for the Safety of Life at Sea, OS—20 January 1914, EIF—1 July 1915, 219 CTS 177 1916 Convention between the United States and Great Britain for the Protection of Migratory Birds, OS—16 August 1916, EIF—7 December 1916, 221 CTS 408 1920 Treaty concerning the Archipelago of Spitsbergen (Spitsbergen Treaty), OS—9 February 1920, EIF—14 August 1925, 2 LNTS 7 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Western Hemisphere Convention), OS—12 October 1940, EIF—1 May 1942, 161 UNTS 193 1944 Convention on International Civil Aviation (ICAO Convention), OS—7 December 1944, EIF—4 April 1947, 15 UNTS 295 1945 Charter of the United Nations, OS—26 June 1945, EIF—24 October 1945, 1 UNTS xvi 1946 International Convention for the Regulation of Whaling (ICRW), OS— 2 December 1946, EIF—10 November 1948, 161 UNTS 72 1948 Convention on the International Maritime Organization (IMO Convention), OS—6 March 1948, EIF—17 March 1958, 289 UNTS 3 1948 International Convention for the Safety of Life at Sea, OS—10 June 1948, EIF—19 November 1952, 164 UNTS 113 1953 Convention for the Preservation of the Halibut Fishery of the North Pacific Ocean and the Bering Sea, OS—2 March 1953, EIF—28 October 1953, 222 UNTS 78 1954 International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL), OS—12 May 1954, EIF—26 July 1958, 327 UNTS 3 1957 Interim Convention on the Conservation of North Pacific Fur Seal, OS— 9 February 1957, EIF—14 October 1957, 314 UNTS 105 1958 Convention on the Territorial Sea and Contiguous Zone, OS—29 April 1958, EIF—10 September 1964, 516 UNTS 206

xxvi

table of treaties

1958 Convention on the High Seas, OS—29 April 1958, EIF—30 September 1962, 450 UNTS 11 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, OS—29 April 1958, EIF—20 March 1966, 559 UNTS 285 1958 Convention on the Continental Shelf, OS—29 April 1958, EIF—10 June 1964, 499 UNTS 311 1959 Antarctic Treaty, OS—1 December 1959, EIF—23 June 1961, 402 UNTS 71 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), OS—4 October 1991, EIF—14 January 1998, 30 ILM 1461 1964 Convention for the International Council for the Exploration of the Sea (ICES Convention), OS—12 September 1964, EIF—22 July 1968, 652 UNTS 637 1966 International Convention for the Conservation of Atlantic Tunas, OS— 14 May 1966, EIF—21 March 1969, 673 UNTS 63 1966 International Covenant on Civil and Political Rights, OS—16 December 1966, EIF—23 March 1976, 999 UNTS 171 1969 Convention on the Law of Treaties (Vienna Convention), OS—23 May 1969, EIF—27 January 1980, 1155 UNTS 331 1971 Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), OS—2 February 1971, EIF—21 December 1975, 996 UNTS 245 1972 Convention for the Conservation of Antarctic Seals (CCAS), OS—1 June 1972, EIF—11 March 1978, 1080 UNTS 176 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREGs), OS—20 October 1972, EIF—15 July 1977, 1050 UNTS 16 1972 Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention), OS—16 November 1972, EIF—17 December 1975, 1037 UNTS 151 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), OS—29 December 1972, EIF— 30 August 1975, 1046 UNTS 120 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, OS—8 November 1996, EIF—24 March 2006, 36 ILM 1 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), OS—3 March 1973, EIF—1 July 1975, 993 UNTS 342 1973 International Convention for the Prevention of Pollution from Ships of 2 November 1973, as modified by the Protocol of 1 June 1978 and the Protocol (MARPOL) of 26 September 1997; as regularly amended 1973 Agreement on the Conservation of Polar Bears (ACPB), OS—15 November 1973, EIF—26 May 1976, 13 ILM 13 1974 Convention for the prevention of marine pollution from land-based sources, OS—4 June 1974, EIF—6 May 1978, 1546 UNTS 119



table of treaties

xxvii

1974 International Convention for the Safety of Life at Sea of 1 November 1974, as regularly amended (SOLAS) 1975 Agreement between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry (Framework Agreement), OS—11 April 1975, EIF—11 April 1975, 983 UNTS 7 1976 Agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Kingdom of Norway Concerning Mutual Relations in the Field of Fisheries (Mutual Access Agreement), OS—15 October 1976, EIF—21 April 1977, 1157 UNTS 146 1976 Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, OS—19 November 1976, EIF—13 October 1978, 1134 UNTS 97 1977 International Convention on the Safety of Fishing Vessels (Torremolinos Convention), OS—2 April 1977, not yet in force, [1975] 2 Select Documents in International Affairs (Australia) No 25, 1 1993 Protocol of 1993 relating to the 1977 Torremolinos International Convention on the Safety of Fishing Vessels (1993 Protocol), OS— 2 April 1993, not yet in force 2012 Agreement of 2012 on the Implementation of the Provisions of the Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977, OS— 11 October 2012, not yet in force 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), OS—7 July 1978, EIF—28 April 1984, 1361 UNTS 190 1978 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (NAFO Convention), OS—24 October 1978, EIF—1 January 1979, 1135 UNTS 369 1979 Convention on Migratory Species (CMS), OS—23 June 1979, EIF— 1 November 1983, 1651 UNTS 355 1979 Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention), OS—19 September 1979, EIF—1 June 1982, 209 UNTS 209 1979 International Convention on Maritime Search and Rescue (SAR Convention), OS—1 November 1979, EIF—22 June 1985, 1405 UNTS 97 1979 Convention on Long-Range Transboundary Air Pollution (LRTAP), OS— 13 November 1979, EIF—16 March 1983, 18 ILM 1442 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), OS—20 May 1980, EIF—7 April 1982, 1329 UNTS 48

xxviii

table of treaties

1980 Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (NEAFC Convention), OS—18 November 1980, EIF—17 March 1982, 1285 UNTS 129 1982 Convention for the Conservation of Salmon in the North Atlantic Ocean, OS—2 March 1982, EIF—1 October 1983, 1338 UNTS 33 1982 United Nations Convention on the Law of the Sea (LOS Convention), OS—10 December 1982, EIF—16 November 1994, 1833 UNTS 397 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (Part XI Deep-Sea Mining Agreement), OS—28 July 1994, EIF— 28 July 1996, 1836 UNTS 42 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement), OS—4 August 1995, EIF—11 December 2001, 2167 UNTS 3 1985 Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, OS—28 January 1985, EIF—18 March 1985, 1469 UNTS 358 1988 Agreement on Arctic Cooperation, OS—11 January 1988, EIF—11 January 1988, 1852 UNTS 59 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), OS—10 March 1988, EIF— 1 March 1992, 1678 UNTS 222 2005 Protocol to Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, OS—14 October 2005, EIF—28 July 2010, [2005] ATNIF 30 1988 Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations, OS—31 May 1988, EIF—28 October 1988, Treaties and other International Acts Series (US) 11,422 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), OS—2 June 1988, not yet in force, 27 ILM 868 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), OS—30 November 1990, EIF—13 May 1995, 30 ILM 735 1990 Convention for a North Pacific Marine Science Organization (PICES Convention), OS—12 December 1990, EIF—24 March 1992, Canada Treaty Series 1992/8 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), OS—25 February 1991, EIF—10 September 1997; 1989 UNTS 310



1992 1992

1992 1992 1992

1992

1992 1992 1993 1993 1994 1995

table of treaties

xxix

2003 Protocol on Strategic Environmental Assessment (Kiev Protocol), OS—21 May 2003, EIF—11 July 2010, available at Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, OS—11 February 1992, EIF—16 February 1993, 22 LOSB 21 Agreement between the Government of the Kingdom of Denmark and the Local Government of Greenland, on the one hand, and the Government of the Russian Federation, on the other hand, concerning Mutual Fishery Relations between Greenland and the Russian Federation, OS—7 March 1992, EIF—16 October 1992, 1719 UNTS 89 Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (ASCOBANS), OS—17 March 1992, EIF—29 March 1994, 1772 UNTS 217 Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic (NAMMCO Agreement), OS—9 April 1992, EIF—8 July 1992, 1945 UNTS 3 United Nations Framework Convention on Climate Change (UNFCCC), OS—9 May 1992, EIF—21 March 1994, 1771 UNTS 107 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), OS—11 December 1997, EIF— 16 February 2005, 37 ILM 22 Convention on Biological Diversity (CBD), OS—5 June 1992, EIF— 29 December 1993, 1760 UNTS 79 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (ABS Protocol), OS—29 October 2010, not yet in force, available at , Agreement between Greenland/Denmark and Norway concerning Mutual Fishery Relations, OS—9 June 1992, EIF—4 March 1994, 1829 UNTS 223 Convention for the Protection of the Marine Environment of the Northeast Atlantic (OSPAR Convention), OS—22 September 1992, EIF— 25 March 1998, 32 ILM 1072 Convention for the Conservation of Southern Bluefin Tuna (CSBT Convention), OS—10 May 1993, EIF 20 May 1994, 1819 UNTS 360 Agreement for the Establishment of the Indian Ocean Tuna Commission (IOTC Agreement), OS—25 November 1993, EIF—27 March 1996, [1996] ATS 20 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (CBS Convention), OS—16 June 1994, EIF— 8 December 1995, 34 ILM 67 Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA), OS—16 June 1995, EIF—1 November 1999, (1995) 6 Yearbook of International Environmental Law 907

xxx

table of treaties

1995 International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, OS—7 July 1995, EIF— 29 September 2012, IMO doc. STCW/CONF/10 (7 July 1995) 1996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS), OS—24 November 1996, EIF—1 June 2001, 36 ILM 777 1999 Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries (Loophole Agreement), OS—15 May 1999, EIF—15 July 1999, 41 LOSB 53 2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, OS—5 September 2000, EIF—19 June 2004, 2275 UNTS 43 2000 Agreement between the Government of the United States of America and the Government of the Russian Federation on the conservation and management of the Alaska-Chukotka polar bear population, OS—16 October 2000, EIF—9 December 2006, available at 2001 Agreement on the Conservation of Albatrosses and Petrels (ACAP), OS— 19 June 2001, EIF—1 February 2004, [2004] ATS 5 2001 Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean, OS—20 April 2001, EIF—13 April 2003, 2221 UNTS 189 2001 Convention on Persistent Organic Pollutants (POPs Convention), OS— 22 May 2001, EIF—17 May 2004, 40 ILM 532 2001 Convention on the Protection of Underwater Cultural Heritage, OS— 2 November 2001, EIF—2 January 2009, 41 ILM 40 2001 International Treaty on Plant Genetic Resources for Food and Agriculture, OS—3 November 2001, EIF—29 June 2004, [2006] ATS 10 2003 Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands, OS—24 November 2003, EIF—1 February 2005, [2005] ATS 6 2007 Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Islands and McDonald Islands, OS—8 January 2007, 7 January 2001, [2011] ATS 1 2009 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, OS—14 November 2009, EIF— 24 August 2012, [2012] ATS 28



table of treaties

xxxi

2010 Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (Murmansk Agreement), OS—15 September 2010, EIF—7 July 2011, UNTS Reg. No. 49095 2011 Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic (Arctic SAR Agreement), OS—12 May 2011, EIF—19 January 2013, available at Abbreviations Used in this Table ATNIF ATS CTS EIF ILM IMO LNTS LOSB OS UNTS

Australian Treaties Not in Force Australian Treaty Series Consolidated Treaty Series Entry into Force International Legal Materials International Maritime Organization League of Nations Treaty Series Law of the Sea Bulletin Open for Signature United Nations Treaty Series

Table of Cases (National and International)

Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment of 12 October 1984, I.C.J. Reports 1984, 246 Corfu Channel Case (United Kingdom v. Albania), Judgment 9 April 1949, I.C.J. Reports 1949, 4 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, I.C.J. Reports 1997, 7 Humane Society International Inc v. Kyodo Senpaku Kaisha Ltd [2004] F.C.A. 1510; [2005] F.C.A. 665; [2006] F.C.A.F.C. 116; [2008] F.C.A. 3 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, 226 MOX Plant Case (Provisional Measures), Order of 3 December 2001 (available at ) Pulp Mills on the River Uruguay Case (Argentina v. Uruguay) (Provisional Measures), Order of 13 July 2006, I.C.J. Reports 2006, 113 Qikiqtani Inuit Association v. Canada (Minister of Natural Resources), Nunavut Court of Justice, Judgment of 8 August 2010, 2010 NUCJ 12 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011 (available at ) The “Volga” Case (Russian Federation v. Australia) (Prompt Release), Judgment of 23 December 2002, available at

CHAPTER one

The regional implementation of the law of the sea and the polar regions Alex G. Oude Elferink, Erik J. Molenaar and Donald R. Rothwell

Introduction The polar regions are facing rapid change. Climate change and new and intensified human activities require a critical assessment of the sufficiency of existing regulatory frameworks and may require the development of new approaches and regimes. Although national implementation will always be critical to build effective regimes, global and regional cooperation will also be essential in this respect. No state is in a position to effectively manage its entire national ocean space by its own if it cannot address transboundary activities and processes. The political and physical geography of the oceans differ radically and the polar regions are no exception. Certain natural processes, such as the Global ocean conveyor belt, span the globe.1 Marine species often migrate over large distances and the range of some migratory species covers thousands of kilometers and, as chapter 8 of this book observes, may cover both polar regions. Pollutants may travel similar distances. For instance, much of the pollution in the Arctic region originates from industrial activities in North America, Europe and Asia.2

1 The Global ocean conveyor belt, also known as the great ocean conveyor, is a system of surface and deep ocean currents. It spans all oceans except for the Arctic Ocean. See e.g. the entry “Ocean Current” in the Encyclopedia Britannica (available at ) or the item “The Global Conveyor Belt” on the website of the National Oceanic and Atmospheric Administration (available at ). 2 For a discussion of pathways of pollution into the Arctic see for example Arctic Monitoring and Assessment Programme (AMAP) Arctic Pollution 2009; J.W. Bottenheim et al. “Long Range Transport of Air Pollution to the Arctic” in The Handbook Of Environmental Chemistry (Springer Verlag, Berlin: 2004), Volume 4G, 13–39.

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alex g. oude elferink, erik j. molenaar and donald r. rothwell

The political geography of the oceans remains dominated by an international system centered on states. First of all, there currently are 152 coastal states,3 and almost all marine regions are characterized by the presence of multiple coastal states with a wide variety of interests. A further layer of complexity is added by the fact that coastal states have varying rights and jurisdiction in their maritime zones. Sovereignty in the territorial sea, but only specified rights and jurisdiction beyond. Other states have rights of communication in the maritime zones of coastal states. This state of affairs restricts the possibilities of coastal states to comprehensively manage their maritime zones on their own. Transboundary impacts are also to a large extent beyond the regulatory reach of the coastal state. In addition, most oceans have extensive areas beyond national jurisdiction, that is the high seas and the Area. All states have equal access to those areas and regulatory standard-setting and enforcement almost entirely remain the primacy of the flag state. This has given rise to continued difficulties in managing these areas. The recognition that the jurisdictional fragmentation of the oceans requires international cooperation and standard setting, is deeply entrenched in the law of the sea. Some global and regional regimes have their origins in the nineteenth and first half of the twentieth centuries. For instance, the first global convention related to whaling, much of which at the time took place in the Southern Ocean, was concluded in 1931.4 Institutionalized cooperation in respect of Antarctica took off in the 1950s5 and this was followed a couple of decades later by the first regional agreement in relation to the Arctic in the form of the ACPB.6 At present both polar oceans are covered by a host of global and regional instruments. The present introductory chapter first of all briefly sketches a number of general considerations in relation to international cooperation. Subsequently, it explains why the polar regions have been selected as a case study on the interactions between global and regional regimes in implementing the law of the sea. This is followed by a brief consideration of the political geography of the polar oceans and the various definitions that have been provided of the Southern Ocean and the Arctic Ocean. Both these issues shape regional cooperation. The definition of a region determines the area of application of the regional regime and impacts on the actors that will be involved in cooperation. The political geography of a region is important to defining the legal regime of specific maritime areas. For instance, the presence or absence of high seas areas will be an important determinant in shaping regional cooperation in relation to fisheries. 3 Based on the data contained in “Table recapitulating the status of the Convention and of the related Agreements, as at 30 January 2013” (available at ). 4 International Convention for the Regulation of Whaling of 24 September 1931 (165 LNTS 349). 5 This occurred through the Antarctic Treaty of 1 December 1959 (402 UNTS 71). 6 Agreement on the Conservation of Polar Bears of 15 November 1973 (13 ILM 13).



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General Considerations in Relation to International Cooperation Most of the general obligations in respect of global and regional cooperation in relation to the oceans are set out in the LOS Convention.7 A reading of these obligations points out that states have a large margin of appreciation in determining how to give shape to their cooperation. In this respect, two aspects can be distinguished: the question what constitutes the appropriate framework for cooperation and the content of the rules of a specific regulatory regime. As regards the first question, the LOS Convention in some cases only provides for a general duty to cooperate, but in other cases refers to cooperation at respectively the global, regional or subregional level. For instance, in the case of illicit traffic in narcotic drugs and unauthorized broadcasting from the high seas, the Convention simply provides that “[a]ll States shall cooperate” in the suppression of the activities concerned.8 The Convention also contains such a general obligation to cooperate in relation to fisheries on the high seas, but adds that this cooperation is concerned with “areas of the high seas” and in cases in which states are exploiting resources in the same area “they shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned”. States are also required to cooperate, as appropriate “to establish subregional or regional fisheries organizations to this end”.9 The general obligation on cooperation in respect of the protection and preservation of the marine environment also offers states a broad range of options. They are required to cooperate “on a global and, as appropriate, on a regional basis”. This can be done “directly or through competent international organizations”. Finally, these obligations have to be implemented “taking into account characteristic regional features”.10 These qualifications in relation to international cooperation of the LOS Convention point to a number of considerations that are relevant in determining the appropriate framework for cooperation. First, this concerns the subject matter that is the object of regulation. Certain issues can only be effectively regulated with the participation of the whole international community and regulation at the regional level is not sufficient. However, where an issue can be regulated effectively at the regional level, this offers itself as a logical option. In general, it will be easier to agree on measures between a limited number of states and this may also allow more detailed and effective measures to be negotiated. As is witnessed by some of the provisions of the LOS Convention on international cooperation, regional cooperation in some cases is the preferred mode of cooperation, but in other cases the Convention prioritizes cooperation at the global level. 7 United Nations Convention on the Law of the Sea of 10 December 1982 (1833 UNTS 396). 8 Ibid., arts. 108 and 109. 9 Ibid., art. 118. 10 Ibid., art. 197.

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alex g. oude elferink, erik j. molenaar and donald r. rothwell

The availability of existing organizations may also contribute to shaping the form international cooperation will take. Tapping into the experience of an existing organization and avoiding the need to develop new cooperative mechanisms can be attractive. At the same time, there may be various reasons why states might not want to make use of an existing organization. For instance, states in a specific region may consider that an existing global body is unlikely to come up with a regulatory regime that is in accordance with their preferred outcomes. In such a case they may opt to develop a new regulatory regime on a regional basis. Similarly, in the case of the existence of a number of potentially competent bodies, states may have different preferences. The existence of these different options raises questions concerning the exclusiveness/inclusiveness of international cooperation. To a certain extent this is a matter that is governed by international law. The LOS Convention provides certain indications as to the nature of cooperation in respect of specific subject matters. For instance, in the case of fisheries there is a clear emphasis on (sub)regional cooperation. Perhaps equally, if not more, important, the LOS Convention limits the options of states to agree inter se on specific measures. In agreeing on measures, states have to respect the rights the LOS Convention and international law generally accord to third states in respect of maritime zones. At the same time, it should be realized that these limits are not set in stone. For one thing, many of the general rules of the LOS Convention allow for different options to provide them with more specific content. Who has control over the process of implementing these general rules can have a significant impact on shaping a regime, whether this is done at the global or the regional level. At this point, it is necessary to look in a little more detail at what the concept of regional cooperation entails. First of all, it does not necessarily imply cooperation between the states of a specific region. For instance, it is clear from the LOS Convention’s provisions on high seas fisheries that cooperation has to involve all the states whose nationals exploit the resources of a given area, whether they come from the region or the other side of the globe.11 Article 123 of the LOS Convention on cooperation of states bordering enclosed or semi-enclosed seas envisages that the coastal states shall endeavor “to invite, as appropriate” other interested states to cooperate with them. The latter provision does indicate that the initiative lies with the coastal states of the region and leaves them a measure of discretion. An unresolved issue is whether article 123 applies to the Arctic Ocean. Given the LOS Convention does not specify which seas the provision applies to, there is the potential for differing views between and amongst Arctic and non-Arctic states on this issue. This example illustrates the difficulty of some of the LOS Convention’s provisions for the polar regions. How article 123 is interpreted in the

11 Ibid., art. 118.



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context of developing and future Arctic cooperation may have an impact on the interactions between Arctic states and states from beyond the region. The LOS Convention does not contain a definition of the term ‘region’. Use of the term in other contexts indicates that it might in principle refer to areas of widely differing size. At one end of the spectrum the term ‘region’ may cover entire oceans or span different continents, such as is for example the case for the Indian Ocean region or the Asia-Pacific region. At the other end of the spectrum the term ‘region’ may be used to refer to much smaller areas, such as the Baltic Sea or the Barents Sea. Although the LOS Convention does not define the term ‘region’, certain provisions provide guidance about the content of the term in specific contexts. For fisheries, the range of the stocks that require regulation will be an important, if not the most important, consideration. In deciding on the appropriate level of cooperation in respect of the protection and preservation of the marine environment, states are required to take into account “characteristic regional features”.12 Such features might include coastal geography, the physical characteristics of an ocean area, the distribution of specific species or valuable ecosystems and the pathways along which marine pollutants spread. Political geography may also contribute to determining the extent of a region. The interest, or absence thereof, in participation in a regime may lead to an area of application of a specific regime that does not necessarily sit well with the other characteristics mentioned above. In certain cases there may not be one obvious limit to define the area of application of a regime and a limit may therefore be set at a line of longitude or latitude. The LOS Convention mainly takes a sectoral approach to regulating activities in the marine environment. It only addresses their interactions, including their cumulative impact on the marine environment, in general terms. This same approach is evident in most regulatory regimes. To give a few examples, cooperation on fisheries takes place mainly in regional fisheries management organizations (RFMOs) and the regulation of international shipping is the primary responsibility of the International Maritime Organization (IMO). The exploitation of mineral resources is within the remit of the International Seabed Authority (ISA) in relation to the Area and cooperation in relation to these activities within national jurisdiction may take place in regional seas arrangements principally aimed at the protection and preservation of the marine environment. After the adoption of the LOS Convention in 1982, there has been a wider recognition that to effectively manage the marine environment it is necessary to not only regulate individual activities but also to address their cumulative ecosystem impacts including the interaction that exists between those activities. Chapter 17 of Agenda 21 adopted at the Rio Earth Summit in 1992 called for “new approaches

12 Ibid., art. 197.

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alex g. oude elferink, erik j. molenaar and donald r. rothwell

to marine and coastal area management and development [. . .] that are integrated in content and are precautionary and anticipatory in ambit”.13 This implicit call for an ecosystem approach to oceans management has been taken up at the global and the regional level. The Conference of the Parties to the CBD,14 another output of the 1992 Earth Summit, has recognized the ecosystem approach as “the primary framework of action to be taken under [that] Convention”.15 Sectoral regulatory bodies have recognized that an overall ecosystem approach to oceans management requires them to pursue sector-based ecosystem approaches.16 An ecosystem approach to management obviously requires that decisionmaking is tailored to the geographical scope of ecosystems. For the marine environment, large marine ecosystems (LMEs) are considered to provide an appropriate regulatory unit in this respect.17 The boundaries of LMEs are defined by four ecologically linked criteria: 1) bathymetry; 2) hydrography; 3) productivity; and 4) trophic relationships. Political and economic criteria are not taken into account in this connection.18 On the basis of these four ecological criteria, 64 LMEs have been identified and been considered in a UNEP Report on LMEs.19 The Southern Ocean is identified as one LME spanning the circumference of Antarctica. As regards the Arctic, in 2006 the Arctic Council’s Protection of the Arctic Marine Environment (PAME) working group adopted a ‘working map’ with 17 Arctic LMEs, covering the entire Arctic Ocean and adjacent seas, which is currently being refined.20

13 Agenda 21, para. 17.1. 14 Convention on Biological Diversity of 5 June 1992 (1760 UNTS 79). 15 COP Decision V/6 Ecosystem Approach, Section C.5.12. The Decision defines the ecosystem approach as “a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way” (ibid., Section A.1). 16 See e.g. FAO Technical Guidelines for Responsible Fisheries. No. 4, Suppl. 2. “The Ecosystem Approach to Management”, 14 (available at ); Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 7 November 1996 (36 ILM 1), preamble. 17 See K. Sherman and G. Hempel (eds.) The UNEP Large Marine Ecosystems Report; A Perspective on Changing Conditions in LMEs of the World’s Regional Seas (UNEP Regional Seas Report and Studies No. 182, United Nations Environment Programme, Nairobi: 2009) 5–6. 18 Ibid., 3. 19 It should be noted that these LMEs in general are limited to areas within national jurisdiction and in some instances their seaward limit falls short of the 200-nautical-mile limit. 20 See info at .



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Why the Polar Regions as a Case Study? International cooperation to effectively manage the marine environment is in no way unique to the polar regions. Instruments and institutions at the global level are in principle applicable to all ocean areas. Most regions are covered by regional conventions for the protection and preservation of the marine environment, although these conventions in most cases only apply to areas within national jurisdiction. Regional cooperation on fisheries commonly has a wider geographical coverage. Most high seas areas are covered by RFMOs, although some gaps remain in that respect, including in a part of the Arctic Ocean. So, why a project on the interaction between global and regional regimes in the law of the sea focusing on the polar regions? Two of the editors of the present volume had edited a book on the law of the sea and the polar regions in 2001.21 In view of our continued interest in this topic, we asked ourselves whether we might want to revisit the subjects that were covered in 2001. We concluded that we should not simply aim for an update of the 2001 book. That book’s focus was on maritime delimitation and jurisdiction and in respect of some of these issues there have not been any significant developments since then. Instead we decided to focus on the implementation of the law of the sea in the polar regions. The choice for this topic is explained by the fact that deficiencies in the implementation of existing obligations constitute one of the major bottlenecks in arriving at an effective regime for the oceans. The focus on the interaction between global and regional regimes was adopted because the parallel existence of numerous regimes at both levels is a given and will continue to be so in the future. Regional cooperation cannot be effective if it does not take into account the interactions between these regimes in order to arrive at an ecosystem approach. The above explains our focus on the interaction between global and regional regimes in the implementation of the law of the sea, but apart from practical considerations, still does not explain our choice for the polar regions as a case study. So, again, why the polar regions? The polar regions share climatologic and ecological characteristics that are not present in other marine regions. As a consequence of these conditions, regulatory responses could be similar in both cases and could be developed in tandem or, alternatively, experiences in one region might be relevant to the other region. The development of rules in relation to shipping, discussed in chapter 9, is one case in point. The polar regions are also of interest as a case study on the interaction between global and regional regimes because the changes that are currently taking place, in particular in the Arctic, are resulting in a rapid development of regional cooperation. In this connection,

21 A.G. Oude Elferink and D.R. Rothwell (eds.) The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Martinus Nijhoff Publishers, The Hague: 2001).

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the Arctic states are also grappling with how to develop the regional regime in the light of the growing interest of states from outside the region in the Arctic Ocean and its legal and governance regime. Dealing with this issue to a large extent is a political issue, but it also has a legal dimension. International law defines the rights and obligations of the Arctic coastal states and other states in the Arctic Ocean and sets limits in selecting pathways for international cooperation. A final reason that justifies the choice for the polar regions is that they offer two idiosyncratic examples of regional cooperation. In the Southern Ocean, cooperation is built on the Antarctic Treaty and its agreement to disagree on the issue of sovereignty over the Antarctic continent and adjacent islands south of 60° S.22 As is discussed in chapter 2, this arrangement, which, at least in practical terms, implies the absence of coastal state jurisdiction, has required a continuous consideration of the relationship between the international law of the sea and global regimes developed in its framework on the one hand and instruments developed in the framework of the Antarctic Treaty System (ATS) on the other hand. To the contrary, the political geography of the Arctic is no different from other regions: there are coastal states with the full suite of maritime zones. The trajectory of regional cooperation in the Arctic nonetheless is interesting for various reasons. As is set out in detail in chapter 3, the appropriate format for regional cooperation is an issue of much debate. In addition, the role of states and entities outside of the Arctic has attracted more attention than in most other regions. The only region with a larger involvement of extra-regional states, albeit for different reasons, is Antarctica. Finally, regional cooperation in the Arctic is unique because of the role it attributes to the indigenous populations of the region. We feel that these particularities of regional cooperation in respect of the polar regions offer food for thought for those who are looking at the implementation of the law of the sea in other regions. The Definition of the Polar Oceans and their Political Geography Both Antarctica and the Arctic have been defined by reference to different criteria, leading to quite different limits.23 There is no agreed definition of either polar region or the polar oceans. In Antarctica, the Antarctic Treaty defines its area of application as the area south of 60° S.24 During the later negotiation of the CAMLR Convention25 it was concluded that the Antarctic Treaty limit did

22 Antarctic Treaty, art. IV. 23 For a brief overview see D.R. Rothwell and C.C. Joyner “The Polar Oceans and the Law of the Sea” in Oude Elferink and Rothwell, note 21, 1–22 at 3–6. 24 Antarctic Treaty, art. VI. 25 Convention on the Conservation of Antarctic Marine Living Resources of 20 May 1980 (1329 UNTS 47).



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not constitute an appropriate northern boundary because the Antarctic marine ecosystem extends further north up to the northern limit of the Antarctic Convergence.26 The CAMLR Convention defines its area of application by reference to the Antarctic Convergence.27 Interestingly, the Madrid Protocol,28 like the Antarctic Treaty itself, only applies to the area south of 60° S, thus excluding the part of the Antarctic marine ecosystem between the parallel of 60° S and the Antarctic Convergence. Nevertheless, the Madrid Protocol seeks to provide for the protection of the “Antarctic environment and dependent and associated ecosystems”,29 which potentially allows for its impact to extend north of 60° S even though it only seeks to regulate activities within the Treaty area. Beyond the framework of the ATS, the Southern Ocean has been defined for purpose of the ICRW30 under which a ‘Southern Ocean Sanctuary’ has been declared, within which commercial whaling is prohibited. The boundary of the Sanctuary encompasses all of the Southern Ocean up to the Antarctic Treaty limit of 60° S, but in many places extends well to the north of that boundary.31 In that respect the ICRW definition of the Southern Ocean, albeit for the purposes of whale conservation, is much more extensive than that adopted under the ATS even including the CAMLR Convention boundary limits.32 Definitions of the marine Arctic vary widely. The main differences in definitions of the marine Arctic concern the question whether the sea areas connecting the Arctic Ocean to the Atlantic and Pacific Oceans are part of the Arctic Ocean or not. For instance, the five Arctic Ocean coastal states—Canada, Denmark/ Greenland, Norway, the Russian Federation and the United States—adopted the

26 The Antarctic Convergence is the area where colder Antarctic waters meet and mix with relatively warmer subantarctic waters. 27 CAMLR Convention, art. I. However, whereas the northern limit of the Antarctic Convergence is mobile, the CAMLR Convention defines the Convergence by a number of points joined by lines following parallels of latitude and meridians on longitude. The Antarctic Convergence (sometimes referred to as the ‘Antarctic Polar Front’) is also considered to be susceptible to the impacts of global warming (see generally J.K. Moore, M.R. Abbott, and J.G. Richman “Location and dynamics of the Antarctic Polar Front from satellite sea surface temperature data” (1999) 104 Journal of Geophysical Research 3059–3073). 28 Protocol on Environmental Protection to the Antarctic Treaty of 4 October 1991 (30 ILM 1455). 29 Madrid Protocol, arts. 2 and 3(1). 30 International Convention for the Regulation of Whaling of 2 December 1946 (161 UNTS 72), Schedule (as amended), cl. 7(b). 31 See ibid. 32 However, note that the Schedule to the ICRW also makes clear that “Nothing in this sub-paragraph is intended to prejudice the special legal and political status of Antarctica” (ibid.).

10 alex g. oude elferink, erik j. molenaar and donald r. rothwell

Figure 1.1 The Antarctic Region—General Overview



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Ilulissat Declaration,33 in which they set out their views on the relevant legal framework for the Arctic Ocean’s management. Iceland did not participate in the meeting at which the Declaration was adopted. At the same time, a significant part of Iceland’s maritime zones are located north of the Arctic Circle (66° N) in the Norwegian Sea, which links the Arctic and Atlantic Oceans. Working groups of the Arctic Council have developed definitions of the marine Arctic that include the Norwegian Sea. For instance, the Conservation of Arctic Flora and Fauna (CAFF) working group in 2001 adopted a definition on the basis of the convergence of “the relatively warm, salty water from the Atlantic and Pacific Oceans and the colder, less salty waters of the Arctic Ocean”.34 Under this definition, the Arctic Ocean includes most of the Bering Sea, the Davis Strait and Baffin Bay between Canada and Greenland and the part of the Greenland Sea and Norwegian Sea north of the Arctic Circle.35 As was mentioned previously, PAME has so far identified 17 Arctic LMEs. These cover the Bering Sea and areas to its south, the Sea of Okhotsk, the Norwegian Sea, the Greenland Sea, the Denmark Strait, the Davis Strait and Baffin Bay. On the other hand, PAME’s Arctic Marine Shipping Assessment 2009 Report puts the limit between the Arctic and Pacific Oceans in the Bering Strait, to the north of the Bering Sea and refers to the Davis Strait, Baffin Bay, Norwegian Sea and the Denmark Strait between Greenland and Iceland as passages between the Arctic and Atlantic Oceans. It was further considered that the Arctic was bounded by Svalbard (Norway) and the Russian islands of Franz Joseph Land, Novaya Zemlya, Severnaya Zemlya and the New Siberian Islands.36 The IMO Polar Shipping Guidelines37 employ yet a different definition of their area of application. They generally define Arctic waters by reference to the parallel of 60° N, but the limit of the area of application is significantly to the north of the parallel of 60° N in the Denmark Strait, the Norwegian Sea and the Barents Sea.38 Having reviewed these various definitions, it is clear that while there is no general agreement on the exact limit of the Arctic Ocean in relation to other ocean areas and different definitions are employed in specific instruments and

33 Ilulissat Declaration of 28 May 2008 (available at ). 34 CAFF “Arctic Flora and Fauna: Status and Conservation” (2001) (available at ) 13. 35 Subsequently this boundary was adapted to include the entire Bering Sea and waters between the Faroe Islands and the Arctic Circle (see e.g. CAFF 2006 Circumpolar Biodiversity Monitoring Program 2006 Annual Report (CAFF, Akureyri, Iceland: 2006), title page. 36 Arctic Council Arctic Marine Shipping Assessment 2009 Report (Arctic Council: 2009), 18. 37 Guidelines for ships operating in polar waters, IMO Assembly Resolution A.1024(26) of 2 December 2009 (A 26/Res.1024 of 18 January 2010). 38 See Polar Shipping Guidelines, s. G-3.3. The limit is depicted in ibid., 9.

12 alex g. oude elferink, erik j. molenaar and donald r. rothwell

Figure 1.2 The Arctic Region—General Overview

documents, the definition of the marine Antarctic has been set at 60° S and the Antarctic Convergence in treaty instruments. In the present project we consequently have opted to not adopt one specific definition of the marine Arctic/ Arctic Ocean and the marine Antarctic/Southern Ocean but left it to individual authors to deal with this matter in the light of the subject matter they are addressing. In the concluding chapter we, however, intend to pick up this definitional issue and how it may impact on the interaction between different regimes that are applicable to the polar oceans/marine polar regions. Apart from these limits defining the extent of the polar oceans, the political geography of these regions is important for understanding the setting in which international cooperation takes place. In Antarctica, the political geography is defined by two fundamental oppositions that have their basis in the Antarctic



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Treaty. First, as was already mentioned, the Antarctic Treaty is premised on the agreement to disagree on the issue of sovereignty over the Antarctic continent and adjacent islands. On the one hand, there are the seven claimant states— Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom—that consider to have a legal title to parts of the Antarctic continent and adjacent islands. In formulating their Antarctic policies these states, which in their view have coastal state entitlements to maritime zones, have to take into consideration how to deal with the development of coastal state jurisdiction in the law of the sea in the light of their obligations under the Antarctic Treaty. The other parties to the Antarctic Treaty are faced with a similar challenge. How should they react to developments in the law of the sea and the policies of the claimant states in this respect to safeguard their rights and interests in Antarctica? As was mentioned, the territorial arrangement contained in the Antarctic Treaty implies, at least in practical terms, the absence of coastal state jurisdiction.39 As a consequence, regulation of activities in the Southern Ocean has to rely heavily on flag state jurisdiction. A second opposition concerns the Antarctic Treaty parties on the one hand and the international community at large. The parties to the Antarctic Treaty have assumed the responsibility to manage Antarctica. Originally, the Antarctic Treaty was negotiated by 12 states and entered into force with 13 parties. Especially in the 1980s, the legitimacy of the regime set up by the Antarctic Treaty was challenged by non-parties in the United Nations. In part as a response to this challenge, the Antarctic Treaty Consultative Parties (ATCPs) have sought to broaden participation in the regime. At present the Antarctic Treaty has 50 parties, including some of the most vocal opponents of the ATS in the 1980s, such as Malaysia. Still, there remains a risk that decision-making in the context of the ATS will be viewed as being exclusive and benefitting insiders. In that connection it should also be realized that only 28 of the 50 parties to the Antarctic Treaty have consultative status. Only the ATCPs have decision-making power in Antarctic Treaty Consultative Meetings (ATCMs). As regards the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) set up under the CAMLR Convention, decision-making rests with its 25 members, two of which, the European Union and Namibia, are not parties to the Antarctic Treaty. A final complexity of the political geography of Antarctica is caused by the existence of a number of subantarctic islands north of 60° S. The provisions on territory contained in the Antarctic Treaty are not applicable to these islands. The 200-nautical-mile zones of these islands—Bouvet (Norway), the Crozet Islands and the Kerguelen (France), Heard Island and the McDonald Islands (Australia), the Prince Edward Islands (South Africa) and South Georgia and the South Sandwich Islands (under the authority of the United Kingdom; sovereignty is

39 See, however, below for the status of the subantarctic islands north of 60° S.

14 alex g. oude elferink, erik j. molenaar and donald r. rothwell

Figure 1.3 The Antarctic Region—Political Geography

also claimed by Argentina)—overlaps with the area of application of the CAMLR Convention and the continental shelf beyond 200-nautical-miles of a number of these islands extends into the Antarctic Treaty area and in some instances overlaps with the continental shelf of the Antarctic continent. In addition, there are some subantarctic islands that fall beyond the limits of the CAMLR Convention, whose sovereignty is not contested, and where the relevant coastal state is able to exercise all of its entitlements without any of the limitations imposed by the ATS.40 The marine Arctic, like all other parts of the globe apart from Antarctica, is bordered by coastal states. Depending on one’s definition of the marine Arctic,

40 Those islands include Gough Island (South Africa), the five New Zealand subantarctic islands of Antipodes, (Auckland, Bounty, Campbell, and Snares), and Macquarie Island (Australia).



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the number of coastal states differs. As was mentioned above, the Ilulissat Declaration of 2008 on the Arctic Ocean was adopted by Canada, Denmark/Greenland, Norway, the Russian Federation and the United States. On the other hand, the Arctic Council also has Iceland as a member and apart from the Danish autonomous area of Greenland, the Arctic Council’s work area also extends to the Faroe Islands, the other autonomous Danish territory. The Faroe Islands are located in the southern part of the Norwegian Sea and the northernmost point on the coast of the Faroe Islands is some 470 kilometers south of the Arctic Circle. The Faroese continental shelf beyond 200 nautical miles does straddle the Arctic Circle. Due to the size of the Arctic Ocean and adjacent seas, most of the marine Arctic, whether defined broadly or narrowly, is covered by the 200-nautical-mile zones of coastal states. The largest area of high seas is located in the central Arctic Ocean. The geographical North Pole is over 170 nautical miles from the nearest 200-nautical-mile limit and certain high seas areas are more than 300 nautical miles from the 200-nautical-mile limit. Smaller areas of high seas are located in the Barents Sea and the Norwegian Sea, respectively called the Loophole and the Banana Hole. As the practice in relation to Arctic fisheries management discussed in chapter 11 indicates, these areas are significant to regulating specific activities. Beyond the 200-nautical-mile limit, the coastal states in the marine Arctic have extensive areas of continental shelf. As is discussed in chapter 4, the exact extent of this continental shelf is still uncertain, but it is likely that a large part of the central Arctic Ocean and most or all of the high seas pockets in the Barents Sea and the Norwegian Sea will be within the outer limits of the continental shelf to be established in accordance with the law of the sea. The political geography of the marine Arctic has important implications for international shipping. Currently, the two main trans-Arctic routes pass through the Canadian coastal archipelago and between the Russian mainland and several groups of coastal islands. The legal regime applicable to navigation in these areas has been subject to much discussion. The opening up of the Arctic as a result of changing ice conditions and the possibility of a significant increase in maritime traffic is likely to lead to continued debate. On the other hand, significant loss of sea-ice may open up the central Arctic Ocean as an alternative route, diminishing the significance of the two coastal routes and facilitating the development of trans-Arctic navigation. In that case the Bering Strait between Alaska and the Asian continent would remain a major choke point.41 Concluding Remarks As this chapter already foreshadows, the implementation of the law of the sea in the polar regions involves a broad variety of regimes at the global and regional

41 See also chapter 16 in this volume.

16 alex g. oude elferink, erik j. molenaar and donald r. rothwell level. In both cases there is a regional body with cross-sectoral competence: the ATCM in the case of Antarctica and the Arctic Council in the Arctic, and a number of sectoral regimes in relation to such issues as fisheries and navigation. These two examples also illustrate the difference in focus of specific regimes. Regulation of fisheries to a large extent takes place at the regional level through RFMOs. In the case of navigation there is strong involvement of the IMO. Two other important points emerge from this chapter. First, the political geography of the polar regions is a key factor in shaping regulatory regimes. On the one hand, regulation in Antarctica is based on the agreement to disagree about sovereignty over the Antarctic continent contained in the Antarctic Treaty. On the other hand, coastal states border the Arctic Ocean and adjacent seas and most of these areas fall under coastal state jurisdiction. Secondly, the definition of a region depends on various factors and specific regimes in the marine Arctic and Antarctica have different areas of application. These issues will be further explored in the following chapters and the concluding chapter will draw the findings in this respect together.

CHAPTER two

The Evolving Antarctic Treaty System: Implications of Accommodating Developments in the Law of the Sea Shirley V. Scott

The Antarctic Treaty,1 negotiated in 1959, is the foundation of the multifaceted governance system known as the Antarctic Treaty System (ATS). The Antarctic Treaty itself applies to the Antarctic continent, ice-shelves, islands, and ocean area south of 60° S latitude.2 The CAMLR Convention,3 another instrument within the ATS, applies to the area south of 60° S latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence to the north and that forms part of the Antarctic marine ecosystem. Hence the ATS encompasses the Antarctic continent, surrounding islands and Southern Ocean south of the Antarctic convergence zone, which varies between 45° S and 60° S.4 Oceans are, however, subject to another, global, regime, centered around the LOS Convention.5 The Antarctic Treaty was negotiated at the historical juncture between the law of the sea being predominantly located in customary international law and its period of codification and progressive development through treaty law. Hence the Antarctic and law of the sea regimes have evolved in tandem. Given that the regime for the oceans is of a global nature and has three times the number of participants, the ATS has of necessity accommodated developments in the law of the sea at the global level where they have threatened to impinge on the regional governance system; this has been particularly the case

1 Adopted on 1 December 1959, 402 UNTS 71. 2 Antarctic Treaty, art. VI. 3 Convention on the Conservation of Antarctic Marine Living Resources of 20 May 1980 (1329 UNTS 47). 4 A.D. Hemmings “A Question of Politics: bioprospecting and the Antarctic Treaty System” in A.D. Hemmings and M. Rogan-Finnemore (eds.) Antarctic Bioprospecting (Christchurch: Gateway Antarctica, 2005) 98–129. 5 United Nations Convention on the Law of the Sea of 10 December 1982, 1833 UNTS 396.

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since the negotiation, adoption and entry into force of the LOS Convention, one of the most comprehensive of international law instruments. This chapter considers how the ATS has met the challenges posed by developments in the law of the sea, and with what implications for the Antarctic regime. It begins, however, by reviewing the normative and political framework of the ATS. The Antarctic Treaty System The ATS is defined as consisting of “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments”.6 The ATS is widely regarded as having been a success in facilitating harmonious international cooperation in Antarctica and this can be attributed to a number of factors including the capacity of the governance system to evolve to address new issues as they arise. Importantly, the regime has been able to do so while retaining a high degree of coherence and consistency in its normative structure. Most fundamental to its success, however, has been its capacity to mediate three sets of political relationships. Let us begin by considering each in turn. Members of the ATS versus Those External to the System Members of the ATS have taken it upon themselves to make arrangements for the governance of Antarctica. They have not generally encountered strong opposition from those external to the System. At certain points in the history of the ATS, however, questions have come to the fore as to the status of the Antarctic Treaty in respect of non-Parties and in respect of the status of the Antarctic Treaty in relation to treaties of a global nature that address subjects of relevance to Antarctica. The nature of the legal standing of the ATS has been the subject of considerable interest over the years. In the mid-1980s Bruno Simma referred to the ATS as being an “objective regime”.7 Even if the whole regime is not an objective regime it is possible that certain provisions, such as those on non-militarization and nonnuclearization, have acquired that status,8 a position that would be strengthened by the lack of third party challenge to those provisions. Roland Rich, of the Australian Department of Foreign Affairs, wrote at the time of the CRAMRA negotiations that the lack of protests from those outside the regime had indicated their

6 Protocol on Environmental Protection to the Antarctic Treaty of 4 October 1991 (Madrid Protocol) (30 ILM 1461), art. 1(e). 7 B. Simma “The Antarctic Treaty as a Treaty Creating an ‘Objective Regime’” (1985–6) 19 Cornell International Law Journal 189–209. 8 A. Watts International Law and the Antarctic Treaty System (Grotius, Cambridge: 1992), 298.



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acquiescence with the ATS as the appropriate governance arrangement for Antarctica, meaning that a form of estoppel had developed against third parties.9 Whether or not a legal determination of the status of the Antarctic continent would find it to constitute a special regime, claimant states in particular have jealously guarded the regime as the appropriate governance structure for Antarctica. This has sometimes taken the form of a very public defense of the ATS, as for example, in the Antarctic debates in the General Assembly of the United Nations (UN) during the 1980s.10 But key players have also done so behind the scenes, ensuring, inter alia, that Antarctica was kept off the agenda at the Third United Nations Conference on the Law of the Sea (UNCLOS III) and that the LOS Convention made no reference to the region.11 Ongoing accommodation between the ATS and global regimes has been facilitated by the fact that the Antarctic regime includes all the five permanent members of the Security Council, other economically powerful states such as Germany and Japan, and leading developing countries including India and Brazil. The Madrid Protocol refers to Antarctica as having a “special legal and political status”.12 Despite increasing emphasis on the ATS as constituting a special regime, the multiplicity and complexity of global regimes is making this more problematic in practice. In respect of the International Maritime Organization (IMO), for example, the LOS Convention Parties have an obligation to apply IMO rules and standards and the IMO considers its mandate to be universal.13 The IMO has since 1987 been invited to send a representative to Antarctic Treaty Consultative Meetings (ATCMs) and article 12 of Annex IV of the Madrid Protocol requires the Parties to draw on the advice of inter alia the IMO in developing contingency plans for marine pollution response. The two bodies are cooperating in the development of a mandatory shipping code for vessels operating in Antarctic waters.14

9 R. Rich “A Minerals Regime for Antarctica” (1982) 31:4 International and Comparative Law Quarterly 709–725 at 715. 10 UN debates on the “Question of Antarctica” were conducted on a regular basis until 2005, after which the UN remained “seized” of the matter but the topic was no longer to be placed regularly on the UN’s agenda. P.J. Beck “The United Nations and Antarctica, 2005: the end of the ‘Question of Antarctica’?” (2006) 42: 222 Polar Record 217–227. 11 S.B. Kaye “Territorial Sea Baselines along ice covered coasts: international practice and limits of the law of the sea” (2004) 35 Ocean Development and International Law 75–102 at 77. 12 Preambular para. 3. 13 International Maritime Organization, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization LEG/MISC.6 of 10 September 2008, at 7. 14 See chapter 9 in this volume.

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One of the tasks allotted to the Antarctic Treaty Secretariat was that of providing the “necessary coordination and contact” with other relevant international bodies and organizations,15 and Parties have recently identified “coordination with other international bodies and agreements and addressing new developments” as a priority issue to be addressed at ATCMs.16 Claimants versus Internal Non-Claimants It is well known that participants in the ATS are divided on the question of whether any individual states have sovereign rights over territory in Antarctica. Seven states assert rights to territorial sovereignty over portions of the continent. The United States and Russia have not done so, but reserve the right to do so at a later date. To the extent that they do not recognize territorial claims, the US, Russia, and other states internal to the ATS that do not assert Antarctic territorial claims, have interests in common with those external to the regime. The interests of internal non-claimants and external critics of the System do not align, however, insofar as the non-claimant ATS participants regard the ATS as the most appropriate governance arrangement for Antarctica. The US took the lead in negotiations that gave rise to the Antarctic Treaty. The Antarctic Treaty fits into a broader pattern of the US consciously choosing to promote or at times to lobby against, the development of multilateral treaties to institutionalize its global freedom of movement and behavior.17 It is reason­able to think that, should the US decide that the ATS no longer serves this interest, a major fault-line could open up to the detriment of the ATS. This is particularly important because the US is a key player, and perhaps the single most significant player, in Antarctic affairs.18 The UK versus Chile and Argentina Most English-language accounts simply refer to a set of seven Antarctic claims. In fact they can better be understood as consisting of two groups. The first group includes the claims of the United Kingdom, Australia, New Zealand, Norway, and France. These were the product of late nineteenth century-early twentieth 15 Measure 1 (2003), Secretariat of the Antarctic Treaty System (available at ). 16 “Prioritisation of Issues in an ATCM Multi-Year Strategic Work Plan”, Working Paper presented by New Zealand to ATCM XXXV/CEP SV, submitted 27 April 2012. 17 S.V. Scott “Ingenious and Innocuous?: Article IV of the Antarctic Treaty as Imperialism” (2010) 1:1 Polar Journal 51–62 at 57–58. 18 See, inter alia, C.C. Joyner and E.R. Theis Eagle over the Ice. The U.S. in the Antarctic (University Press of New England, Hanover: 1997) 1; and A.D. Hemmings “Globalisation’s Cold Genius and the Ending of Antarctic Isolation” in L.K. Kriwoken, J. Jabour and A.D. Hemmings Looking South. Australia’s Antarctic Agenda (Federation Press, Annandale: 2007) 176–190 at 184.



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century colonialism. These states have all recognized the claims of each other. The other group consists of only Argentina and Chile, the asserted rights to territorial sovereignty of which derived from an earlier era of European colonization, in which Spain had colonized the territory that is now Argentina and Chile. At independence, in the early nineteenth century, Argentina and Chile inherited the same territory over which the Spanish monarch had enjoyed rights. Their Antarctic territories had thus been assumed to be integral to their national territory since the birth of their countries, a situation distinct from that of the nineteenth century colonizers.19 Although in the 1940s Argentina and Chile disagreed as to the location of their mutual boundary, they were united in believing in the existence of a South American Antarctic, in which what they perceived to be the territorial pretensions of the United Kingdom, overlapping the Antarctic territories of both Argentina and Chile, were not welcome.20 Argentine-British tensions in the 1940s and 1950s were a major impetus to the conclusion of the Antarctic Treaty.21 It is difficult to separate British involvement in Antarctic affairs from its broader interests in the South Atlantic. Britain had in 1908 extended the Falkland Islands Dependencies from South Georgia to incorporate the South Sandwich Islands and Graham Land on the Antarctic continent.22 Following entry into force of the Antarctic Treaty, a British Order in Council separated what was now to be referred to as the British Antarctic Territory from its other interests in the South Atlantic.23 In 1982 Britain and Argentina went to war over the Falkland Islands/Malvinas, the outcome of which was that Britain retained control of the islands, with a resulting boost to its interest in Antarctic affairs.24 The frosty nature of BritishArgentine relations during the remainder of the 1980s and much of the 1990s complicated ATS deliberations over the location of a Secretariat, which in 2003 was finally established in Buenos Aires.25

19 See S.V. Scott The Political Interpretation of Multilateral Treaties (Martinus Nijhoff, The Hague: 2004), chapter 3; S.V. Scott “Universalism and Title to Territory in Antarctica” (1997) 66 Nordic Journal of International Law 33–53; and Scott, note 17. 20 P.J. Beck The International Politics of Antarctica (Croom Helm, London: 1986), 34. 21 Ibid., 33. 22 “Letters Patent providing for the Government of the Falkland (Malvinas) Islands Dependencies” 21 July 1908 in W.M. Bush Antarctica and International Law. A Collection of Inter-State and National Documents Vol. III (Oceana, London: 1982), 251–4. 23 The British Antarctic Territory Order in Council, 1962. Her Majesty’s Stationery Office: Statutory Instrument 1962 No. 400. 24 P.J. Beck “Britain’s Antarctic Dimension” (1983) 59:3 International Affairs 429–444 at 429. 25 K. Scott “Institutional Developments within the Antarctic Treaty System” (2003) 52 ICLQ 473–487.

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How Has the ATS Mediated These Three Sets of Political Relationships? Central to the political accommodations achieved by the contemporary ATS are three normative components, two of which were confirmed in the Antarctic Treaty and have been upheld in subsequent agreements and a third of which was confirmed in the Madrid Protocol. These components are integral to the mediation of potentially conflicting political relationships via the ATS. Their significance so far as the ATS accommodation of developments in the law of the sea is concerned, lies in the fact that while there has necessarily been numerous ways in which the two regimes interact, it is external developments that directly or indirectly challenge these conceptual cornerstones that have the potential to undermine the ATS. Agreement to Disagree regarding Sovereignty Although the Antarctic Treaty responded to several issues, the fundamental one was that of rights to territorial sovereignty. Those participating in the ATS agree to disagree regarding the territorial status of Antarctica. This principle was formalized in article IV of the Antarctic Treaty, which was essential to the establishment of the ATS because of the fundamental legal and political significance of sovereignty. It permitted the mediation of both internal sets of political relationships. A Continent Dedicated to Science The Antarctic Treaty is premised on the principle that freedom of scientific investigation “accords with the interests of science and the progress of all mankind”.26 By article II of the Treaty, freedom of scientific investigation and cooperation is to continue, subject to the provisions of the Treaty. International cooperation in scientific investigation is to be promoted through the exchange, “to the greatest extent feasible and practicable” of information regarding plans for scientific programs, scientific personnel, and the results of scientific observations in Antarctica.27 Closely related to this, Antarctica is to be used for peaceful purposes only. By article I of the Antarctic Treaty, Antarctica shall be used for peaceful purposes only. Military personnel and equipment may be used for scientific research or any other peaceful purpose,28 but the Treaty prohibits the establishment of military bases, military maneuvers and the testing of any type of weapons,29 and Parties

26 27 28 29

Antarctic Treaty, preambular para. 3. Art. III. Art. I (2). Art. I (1).



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agree to give advance notice to other Contracting Parties of any military personnel or equipment to be introduced into Antarctica.30 Antarctica is to be a nuclear-free zone. Article V of the Treaty bans nuclear explosions in Antarctica and the disposal there of radioactive waste. The labeling of Antarctica as a continent for science thus does not preclude other activities from taking place unless those activities prevent the continent from remaining one dedicated to science. The primacy of science in Antarctic politics was used to establish a two-tier structure of decision-making, by which only the original parties to the treaty and those demonstrating their interest in Antarctica by conducting “substantial scientific research activity” there were to take decisions at what since 1994 have been annual meetings of the Antarctic Treaty Consultative Parties. Non-Consultative Parties may contribute to discussions at the meetings. Science provided the rationale for those states asserting rights to territorial sovereignty to agree to freeze the status quo as of 1959. Science also provides the rationale for the ATS being the regime to govern Antarctica. When talking about potential challenges to the ATS it is therefore not sufficient to think only in terms of a conflict of laws or compliance with specific treaty components. The significance of the freedom of Antarctic science is much greater than that of compliance with article III. The fundamental importance of science to the ATS is that it serves to mediate all three sets of political relationships that need to be managed in order for the System to continue to function effectively. Protection and Preservation of the Antarctic Environment There is a third key normative component of the contemporary ATS, which is that of the protection and preservation of the Antarctic environment. Article IX (1)(f) of the Antarctic Treaty provides that Contracting Parties will make decisions in respect of the preservation and conservation of living resources in Antarctica. By Article 2 of the Madrid Protocol, the Parties commit themselves to “the comprehensive protection of the Antarctic environment and dependent and associated ecosystems”. This can be regarded as a conceptual pillar in its own right because the Protocol recognizes the “intrinsic value of Antarctica, including its wilderness and aesthetic values”,31 and requires those engaging in Antarctic activities to undertake environmental impact assessments for those activities subject to advance notice reporting obligations based on three tiers of potential environmental impact.32

30 Art. VII (5)(b). 31 Art. III (1). 32 For this regime of environmental impact assessment see also chapter 7 of this volume.

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The system of environmental impact assessments has significant limitations,33 such that in practice the Treaty seems to aim to set limits on the harm done to the Antarctic environment as opposed to ensuring that its protection be comprehensive in the sense of absolute.34 Although environmental protection is a third conceptual component of the ATS, it is arguably not as fundamental insofar as it exists only to the extent that it does not impinge on the first two. By article 7 of the Madrid Protocol, for example, mineral resource activities are prohibited in Antarctica, other than for scientific research. It might have been reasonable to assume that the objective of comprehensive environmental protection would preclude all mineral resource activities in case, for example, even prospecting might prelude a demand to extract minerals. Such an absolute ban could, however, be construed as constraining the freedom of scientific research in Antarctica; the wording of article 7, which explicitly excepts scientific research from the ban on mineral resource activities can thus be interpreted as retaining the ATS’s prioritization of freedom of Antarctic science over the newer norm of comprehensive environmental protection. The Law of the Sea and the ATS A conference held in Geneva in the year prior to the 1959 Washington Conference on Antarctica gave rise to four treaties—for regulating the territorial sea and contiguous zone, the high seas, the fishing and conservation of living resources of the high seas, and the continental shelf. Negotiations for a comprehensive convention for the law of the sea took place from 1973–1982 at UNCLOS III, giving rise to the LOS Convention, billed as a “constitution for the oceans”.35 The LOS Convention is not intended to stand alone but to work in harmony with related treaties, both those pre-dating and those concluded subsequent to the Antarctic Treaty. The most obvious threat to the ATS from the law of the sea regime has been the potential for the ATS to be over-taken by a global regime addressing an oceans issue ahead of the regional regime. The ATS has needed to stay ahead

33 A.D. Hemmings and L.K. Kriwoken “High level Antarctic EIA under the Madrid Protocol: state practice and the effectiveness of the Comprehensive Environmental Evaluation process” (2010) 10 Environmental Agreements 187–208 at 188. 34 Compare, for example, the precautionary approach adopted in the 1996 Protocol to the London Convention, including “reverse listing” by which nothing can be dumped unless it is listed on a “safe list” (Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 7 November 1996 ((1997) 36 ILM 1). 35 “Statement of Ambassador Tommy T.B. Koh, President of the Conference, at its final session in Montenegro Bay, Jamaica, 11 December 1982. Reprinted in R. Platzöder (ed.) United Nations Conference on the Law of the Sea (1973–1982) (New York, Oceana: 1982) xxxiii.



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of the game. Indeed a theme in the ATS has been its pride in being proactive in addressing emergent issues. It has not only been necessary to ensure that issues are addressed by the ATS ahead of the potential application within the region of the pertinent global regime, but to do so in ways that strengthen the Antarctic regime as it has evolved to date. Upholding the Agreement to Disagree regarding Sovereignty while Responding to Emergent Law of the Sea Issues: Maritime Zones The most immediate connection between the LOS Convention and the principles underpinning the Antarctic Treaty is in respect of maritime zones. The period between World War Two and the conclusion of the LOS Convention witnessed claims on the part of many coastal states to jurisdiction over greater offshore areas. The LOS Convention clarified the extent of these maritime zones as well as the nature of the rights and obligations associated with each of them. Some zones belong to all coastal states whether or not they explicitly assert their rights. Others require the coastal state to make a declaration. The link between rights in respect of maritime zones and sovereignty over territory means that the significance for the ATS of the LOS Convention is not confined to the oceans around Antarctica but impacts the governance of the continent itself. From the perspective of the three normative concepts integral to the ATS, the greatest potential for the global regime impacting negatively on the regional ATS has so far derived from its impact on the ATS agreement to disagree and the two sets of political relationships mediated by article IV. Article VI of the Antarctic Treaty protects high seas freedoms within the area south of 60° S but states disagree as to which waters constitute high seas because of their fundamental disagreements pertaining to Antarctic sovereignty. Claimant states, not wishing to weaken their claim in the event of the breakdown of the ATS, have generally felt the need to declare and/or delimit the maritime zones to which they were entitled. The inherent right of a coastal state to a territorial sea had been recognized in customary international law prior to the conclusion of the Antarctic Treaty. The LOS Convention clarified that a coastal state could establish the breadth of its territorial sea up to a limit not exceeding twelve nautical miles. Australia, New Zealand, France, the United Kingdom, Argentina, and Chile have all made explicit reference to their possession of territorial seas off Antarctica, and Norway reserves the right to do so.36 The rights of a state over its continental shelf predated the 1959 Antarctic Treaty and are similarly inherent in its sovereignty and so do not need to be actively proclaimed.37

36 C.C. Joyner “The Antarctic Treaty and the law of the sea: fifty years on” (2010) 46:236 Polar Record 14–17 at 15. 37 LOS Convention, art. 77(3).

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In contrast to both, the 200-nautical-mile exclusive economic zone (EEZ) must be proclaimed if it is to be asserted,38 which means that in comparison to the territorial sea and continental shelf, the assertion of rights to an EEZ can more readily be interpreted as contravening the prohibition on making additional or new sovereignty claims contained in article IV (2).39 Australia, Argentina, Chile and France have each proclaimed an EEZ off the Antarctic continent.40 Chile had already declared its jurisdiction to 200 nautical miles in 1947 and so arguably this was part of its claim when the treaty was adopted,41 and Argentina asserted rights to 200 miles after the Treaty had been signed but before UNCLOS III began.42 A claimant state may be concerned that, were it not to proclaim an EEZ, this could potentially be interpreted as a lack of confidence in its sovereignty. Indeed, writing in the early 1980s, Quigg considered that claimant states would have to claim their EEZs or “forfeit their credibility”.43 Quigg also suggested that, “in the long run, the most important consequence of the Law of the Sea Conference—and treaty—with respect to the Antarctic may be psychological”.44 He was referring to the pressure it put on ATS members to address resource issues and the increased interest in the Southern Ocean. The fact that the LOS Convention was to incorporate the regime of the EEZ meant, for example, that traditionally long-distance fishing nations such as the Soviet Union and Japan were to be excluded from fishing grounds they had long exploited and hence that their interest in the Southern Ocean would increase markedly, posing a potential threat to the Southern Ocean.45 ATS members felt that if they did not deal with the management of marine resources, this might tempt intervention by the international community.46 They proceeded to negotiate the CAMLR Convention, successfully insulating the process from interference by the international community,47 and established the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). The CAMLR Convention negotiations raised new challenges in applying the Antarctic Treaty’s article IV formula, not only because its area of operation

38 D.R. Rothwell “The Law of the Sea and the Antarctic Treaty System: Rougher Seas Ahead for the Southern Ocean?” in J. Jabour-Green and M. Haward (eds.) The Antarctic: Past, Present and Future (Hobart: Antarctic CRC Research Report #28, 2002), at 118. 39 J. Crawford and D.R. Rothwell “Legal issues confronting Australia’s Antarctic” (1992) 13 Australian Year Book of International Law 53–88 at 81. 40 Joyner, note 36 at 15. 41 P.W. Quigg A Pole Apart: The Emerging Issue of Antarctica (New Press, New York: 1983) 173. 42 Ibid. 43 Ibid., 172–173. 44 Ibid., 173. 45 Ibid., 172. 46 Beck, note 20 at 224. 47 Ibid., 225.



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extended beyond the limits of 60° S into parts of the Southern Ocean better characterized as sub-Antarctic but also because, in managing fisheries resources, the CAMLR Convention would raise questions pertaining to coastal state and flag state rights.48 The formula incorporated into Article IV(2) of the CAMLR Convention, provides that: nothing in this Convention and no acts or activities taking place while the present Convention is in force shall [. . .] be interpreted as a renunciation or diminution by any Contracting Party of, or as prejudicing, any right or claim or basis of claim to exercise coastal State jurisdiction under international law within the area to which this Convention applies.

It thereby protected the position of those asserting rights to territorial sovereignty over portions of Antarctica, while in no way undermining the position of non-claimants that only claims north of 60° S are valid. The Regime of the Extended Continental Shelf Where the continental shelf extends beyond 200 nautical miles a coastal state is required, according to article 76 of the LOS Convention, to delimit an outer limit that may extend to a distance of 350 nautical miles or beyond. This requires a coastal state to submit information on these outer limits to the Commission on the Limits of the Continental Shelf (CLCS) and subsequently to establish the limits on the basis of the Commission’s recommendations. The establishment of these outer limits does not generate sovereign territory per se, but delineates an area within which a coastal state might exercise exclusive rights as a consequence of its territorial sovereignty.49 All states asserting rights to territorial sovereignty in Antarctica other than Chile have made submissions to the CLCS in accordance with article 76, paragraph 8 of the LOS Convention, and Chile has submitted preliminary information in accordance with a procedure determined by the meeting of States Parties to the Convention. They have adopted one of three approaches, of varying degrees of assertiveness in respect of their territorial claims.50 Least assertive have been New Zealand, France and the United Kingdom, which have made partial submissions, reserving their right to submit Antarctic data at a later date. Australia and Norway could be said to have adopted a midrange position. Australia, the first Antarctic claimant to make a submission to the CLCS in relation to its Antarctic territory, requested the Commission “not to take any action for the time being with respect to that part of the outer limits offshore the AAT”, and the Commission made no reference to Antarctica in its 48 M. Haward and T. Griffiths (eds.) Australia and the Antarctic Treaty System. 50 Years of Influence (UNSW Press, Sydney: 2011) 48–67 at 57–58. 49 D.R. Rothwell and A. Jackson “Sovereignty” in ibid., 60. 50 For more detailed discussion of the issue of the extended continental shelf and the role of the CLCS, see chapter 4 of this volume.

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recommendations. Norway adopted a similar approach, submitting full information on 4 May 2009 in respect of Bouvetøya and Dronning Maud Land but requesting the Commission not to take any action on that portion of its submission relating to areas of seabed and subsoil adjacent to Antarctica. Most assertive of the three approaches, at least initially, was that taken by Argentina, which submitted full information for the “Argentine Antarctic sector”, without requesting the CLCS not to consider the data. Argentina softened its particularly assertive stance in its presentation to the CLCS, however, requesting the Commission not to consider its submission relating to Antarctic territory, and the Commission decided that it would not do so.51 Non-claimants have formally reinforced their position in relation to the submissions by claimants to the CLCS.52 The CLCS process has highlighted the ongoing danger of exposing the faultline between the UK and the South American states asserting rights to territorial sovereignty in Antarctica. The British Foreign and Commonwealth Office reportedly held discussions with technical and legal experts from the Argentine Ministry of Foreign Affairs in 2001 and 2004 “with a view to making a joint submission without prejudice to rival sovereignty claims”. The UK proposed further meetings in 2007 but these did not take place.53 In March 2009 five members of each of the Argentinean and Chilean Lower House Foreign Affairs Committees signed a statement reiterating their common position, condemning Britain as not proceeding “in conformity of law” and, together with Argentine colleagues, “reaffirm[ing] and categorically reject[ing] in the most definitive and decisive manner the pretence of Britain to extend its claims”.54 Defending the ATS as a Whole against Conceptual Challenge via the Law of the Sea: The Common Heritage Principle The ATS has to date effectively accommodated developments in the law of the sea and addressed issues ahead of the application to the region of global law and done so in a manner that does not detract from the conceptual robustness of the original Antarctic Treaty. In the case of the principle of the common heritage of mankind (CHM), however, the terms of the LOS Convention facilitated a direct challenge to the role of the ATS. By article 136 of the LOS Convention, the seabed and subsoil beyond the outer limits of national jurisdiction (the Area)

51 Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission (CLCS/64 of 1 October 2009), para. 73. 52 These are available at . 53 “Argentine continental shelf presentation includes Falklands”, Mercopress, 22 April 2009 (available at ). 54 “Argentinean/Chilean Congressmen Condemn UK’s Antarctic expansion claims”, Mercopress, 7 March 2009 (available at ).



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and its resources were declared the common heritage of mankind. States Parties affirmed their commitment to the principle in article 311(6) by agreeing that “there shall be no amendments to the basic principle relating to the common heritage of mankind [. . .] and that they shall not be party to any agreement in derogation thereof”. The LOS Convention did much to strengthen and operationalize the common heritage principle. This in turn facilitated its use as a vehicle by which to call into question the governance arrangements established by the Antarctic Treaty. In the early 1980s Malaysia led a challenge to the ATS in the United Nations General Assembly, arguing that the ATS privileged certain states and that the Antarctic continent should be declared the “common heritage of mankind”. The exact criticisms leveled against the ATS evolved somewhat, but they did include both the narrow membership of the ATS and Antarctic resources and the environment.55 In doing so, they were essentially critiquing the ATS as an effective condominium in which a small group of states were controlling the Antarctic continent and would potentially benefit unfairly from extraction of its mineral resources. Replacing this de facto condominium with a governance system established by the United Nations on the basis of the common heritage principle would have prevented the national appropriation of its resources, which could then be exploited by an international authority for the benefit of all states. The Consultative Parties to the Antarctic Treaty were at that time negotiating the CRAMRA.56 In defending the ATS against the Third World challenge, it was agreed in 1984 that all contracting parties could attend the negotiations on the minerals convention and several Third World states, including India and China, were granted Consultative Party status. The potential challenge to the ATS was defeated in part through reinforcing and emphasizing the dedication of the continent to peace and science, on the basis that the ATS was already functioning in the interests of humankind as a whole.57 This rhetorical position was reinforced through practical moves on the part of ATS members, including the rejection of CRAMRA and its effective replacement by the Madrid Protocol, article 7 of which prohibited any activity relating to mineral resources, other than scientific research. The challenge to the ATS failed, and any residual potential for the principle to undermine the ATS was minimized by the 1994 Agreement.58 While reaffirming that the “seabed and ocean floor and

55 R. Tepper and M. Haward “The development of Malaysia’s position on Antarctica: 1982 to 2004” (2005) 41:217 Polar Record 113–124. 56 Convention on the Regulation of Antarctic Mineral Resources of 2 June 1988, (1988) 27 ILM 868. 57 See, for example, statement by Mr Austad (Norway) in United Nations General Assembly Records, 39th Session, 52nd meeting of First Committee, A/C.1/39/PV.52, 30 November 1984, at 12. 58 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 of 28 July 1994, 1836 UNTS 41.

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subsoil thereof, beyond the limits of national jurisdiction (hereinafter referred to as ‘the Area’), as well as the resources of the Area, are the common heritage of mankind”,59 the detailed provisions of the Agreement in respect of the operation of the regime weakened the significance of retaining the common heritage of mankind label. “[T]he meaning ascribed to the CHM concept [was] managed away from the dreams of the developing countries in the 1960s and early 1970s”,60 thereby ineluctably reducing the normative potential of the common heritage of mankind principle, at least in its original formulation. Reinforcing the Conceptual Cornerstones of the ATS while Responding to Emergent Law of the Sea Issues: Bioprospecting Comparable in significance to the challenge that the evolving international law of maritime zones has long posed to the ATS is the contemporary challenge of bioprospecting.61 Bioprospecting is already underway in Antarctica. Of Antarctic marine organisms, it is krill that has given rise to more patents and commercial applications than any other.62 Krill illustrates some of the difficulties with regulating bioprospecting activities, since the impacts of the activities may fall below the threshold that would trigger an environmental impact assessment, the intention of the sampling process may not be evident for a number of years, and the harvesting of species may or may not be required to make commercial use of the genetic material of the organism.63 Although the CAMLR Convention regulates the rational use of marine living resources of the Southern Ocean, the model it has used to date assumes that the value of the resource remains in the resource itself, whereas in bioprospecting, the value of the resource relies on the knowledge derived from its genetic ability linked to the creation of derived products.64 Bioprospecting was first formally discussed at an ATCM in 2002. Debate has continued at subsequent ATCMs and at meetings of the Committee for Environmental Protection (CEP), established by the Madrid Protocol, but the ATS has not yet taken decisive action on bioprospecting. Regulation of bioprospecting

59 Ibid., Preamble. 60 C. Garrison “Beneath the Surface: The common heritage of mankind” (2007) 1 KEStudies, 1–71 at 64. 61 Bioprospecting can be defined as the “exploration of naturally occurring microorganisms, plants and animals for commercially valuable genetic and biochemical resources” (United Kingdom, Biological prospecting in Antarctica (Paper of the Government of the United Kingdom). Working Paper 43: Antarctic Treaty Consultative Meeting Report (ATCM XXV): Warsaw). 62 ASOC, “Protecting the Antarctic Marine Ecosystem: A Role for ATCM” XXXII Antarctic Treaty Consultative Meeting, Information Paper 52, 5. 63 Ibid., 4. 64 A. Guyomard “Ethics and bioprospecting in Antarctica” (2010) 10 Ethics in Science and Environmental Politics 31–44 at 40.



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in the Southern Ocean may necessitate coordination between the CCAMLR, the ATCM and CEP because there would appear to be significant overlap between their mandates in respect of bioprospecting marine organisms.65 Legal and policy developments on bioprospecting have in recent years taken place in several global fora, including those pertaining to the oceans. The Ad Hoc Open-ended Informal Working Group on conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction in June 2011 adopted by consensus a set of recommendations for the General Assembly. These included, inter alia, that: A process be initiated, by the General Assembly, with a view to ensuring that the legal framework for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction effectively addresses those issues by identifying gaps and ways forward, including through the implementation of existing instruments and the possible development of a multilateral agreement under the United Nations Convention on the Law of the Sea.66

The recommendations were endorsed by the 66th session of the General Assembly in December 2011.67 The United Nations Conference on Sustainable Development (Rio + 20) committed: to address, on an urgent basis, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the United Nations Convention on the Law of the Sea.68

These recent developments within other international institutions have given some ATS members a sense of urgency regarding the need to push ahead with a specific Antarctic bioprospecting regulatory regime.69 If the regime is to remain strong this must be done without undermining the conceptual foundations of the ATS. Bioprospecting has considerable potential to challenge the agreement to disagree on Antarctic sovereignty in respect, for example, of potential financial benefits to be reaped through the use of genetic resources. The debate to date would seem to suggest, however, that it should be possible to devise a workable

65 ASOC, note 62 at 6. 66 Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, Annex; Recommendations of the 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 and Co-Chairs’ summary of discussions (Doc. A/66/119 of 30 June 2011), section I.1(a). 67 Resolution 66/231 (Doc. A/RES/66/231 of 5 April 2012), para. 166. 68 The Future We Want. Rio + 20 Outcomes Document, para. 162, annexed to A/66/L.56 of 24 July 2012. 69 Antarctic Treaty Consultative Meeting Final Report of the Thirty-fourth Antarctic Treaty Consultative Meeting Buenos Aires 20 June–1 July 2011 (Secretariat of the Antarctic Treaty, Buenos Aires: 2011) 83.

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formula by which to uphold the agreement to disagree in any potential regime on Antarctic bioprospecting. A 2006 French Information Paper suggested that the system of permits foreseen under CRAMRA could provide a model for bioprospecting.70 A 2010 Working Paper submitted to the ATCM by the Netherlands proposed a set of principles for access to and use of biological material in the Antarctic Treaty area, one of which was that the inclusion of in situ Antarctic biological material (ABM) in the ABM System “shall not be interpreted as the renunciation, diminution, recognition, or non-recognition of a right to or claim to territorial sovereignty over ABM”.71 Arguably even more serious, however, than the challenge bioprospecting poses to the agreement to disagree regarding Antarctic sovereignty is the threat bioprospecting poses to the ATS commitment to freedom of scientific investigation and thereby to the standing of the regime as a whole. Government-funded science has been the core Antarctic activity during the life of the ATS. Most has been initiated and funded at the national level, although with a considerable degree of internationalization. During the Third World challenge of the 1980s, ATS members were able to make a strong case that the work being undertaken in Antarctica was in the best interests of all humankind. This had been facilitated by the fact that most of the science being undertaken in Antarctica at the time had been motivated by non-commercial factors. An increasing proportion of science is now being funded by and for commercial interests and much of this is taking place on the high seas: With bioprospecting, science is no longer just the external advisor to other actors and an independent analyst and interpreter of significance, but the stimulant for the activity in the first place and active conductor of that activity.72

A Working Paper submitted by the United Kingdom to the 2002 ATCM drew attention to the potential for conflict between the secrecy involved with patenting biological and genetic materials and the principle of freedom of access to scientific information as embodied in article III of the Antarctic Treaty.73 The difference between bioprospecting and scientific research may hinge on intent, on whether the study is to promote human knowledge itself or to seek to derive

70 “In search of a legal regime for bioprospecting in Antarctica” (Information Paper presented by France to ATCM 2006). 71 “Principles for the Access to and Use of Biological Materials in the Antarctic Treaty Area” (Working Paper 24 presented by The Netherlands, ATCM XXXIII). 72 A.D. Hemmings “Does bioprospecting risk moral hazard for science in the Antarctic Treaty System?” (2010) 10 Ethics in Science and Environmental Politics 5–12 at 8. 73 United Kingdom Biological prospecting in Antarctica (Paper of the Government of the United Kingdom) (Working Paper 43: Antarctic Treaty Consultative Meeting Report (ATCM XXV): Warsaw).



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commercial profit from that knowledge.74 By Resolution 7 (2005) Consultative Parties reaffirmed the importance of article III (1) of the Antarctic Treaty with regard to scientific activities relating to biological prospecting,75 and by Resolution 9 (2009), Consultative Parties recommended that their Governments inter alia keep the issue of biological prospecting under active consideration, including in relation to article III (1)(c) of the Antarctic Treaty. The exchange of views on how best to ensure that bioprospecting activities remain compatible with the scientific foundations of the ATS governance system is ongoing.76 Conclusions The ATS has over the decades evolved in tandem with the law of the sea. The impact of this dynamic on the ATS cannot be separated from broader trends in the international politics of Antarctica, including those set in motion by the Antarctic Treaty itself and those to which the law of the sea and the ATS have of necessity both responded. Viewed in terms of the internal and external political accommodations outlined in this chapter, there are several patterns worthy of note. First, is the skill and success with which the ATS has upheld the legal and conceptual points of convergence on which the System depends. Interestingly, upholding the agreement to disagree has included as a logical pre-requisite, claimant states behaving so as to demonstrate ongoing commitment to their claims. Thus, whereas the ATS has developed regimes in relation to specific activities and has repelled the CHM challenge, claimant states have followed developments in the law of the sea as they pertain to the establishment and definition of coastal state maritime zones. In formal terms, the internal and external balance of positions remains intact. The ATS retains its role as the institution most directly involved in the governance of the Antarctic region and the states within the ATS maintain their respective positions on the question of territorial sovereignty. This situation needs to be viewed, however, within the context of a weakening, in a practical sense, of the position of claimants versus internal non-claimants. The fact that those that do not recognize any claims have been able to act on that basis—in respect of freedom of movement and jurisdiction, for example, cannot but fail over time 74 International Union for Conservation of Nature, Report in Antarctic Treaty Consultative Meeting, Final Report of the Thirty-second Antarctic Treaty Consultative Meeting (Buenos Aires: Secretariat of the Antarctic Treaty, 2009). 75 Final Report of the Twenty-Eighth Antarctic Treaty Consultative Meeting. Stockholm, Sweden (Secretariat of the Antarctic Treaty, Buenos Aires: 2005) 435. 76 See, for example, “Report of the ATCM Intersessional Contact Group to Examine the Issue of Biological Prospecting in the Antarctic Treaty Area” (Working Paper 13, XXXIII Antarctic Treaty Consultative Meeting, 2010).

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to weaken the effective sovereignty of the claimants, particularly as the ratio of states shifts. In 1959 the Consultative Parties split 7:5 in favor of claimants; today, the ratio is 7:21 and the non-claimant Consultative Parties include China, India and Brazil whose economic and political clout is growing at a global level. The ATS has progressively had little choice but to engage with other institutions in the best interests of effective Antarctic governance. Antarctica has become increasingly integrated into global economic systems, being impacted since the 1970s by the same processes to which UNCLOS III was a response.77 The consequences of the opening up of Antarctica to more countries and nongovernmental entities and the shifting nature of the scientific endeavor may include a growing convergence between the interests of leading internal nonclaimants, including the US and Russia, and those external to the System not saddled by all of the obligations imposed by ATS instruments. Thus, although the ATS can still be held up as a model of successful international cooperation, including importantly in respect to oceans governance, there is no reason to be complacent as to its future viability or longevity.

77 Hemmings, note 17.

CHAPTER three

The Developing Regional Regime for the Marine Arctic Betsy Baker

Introduction The Arctic Ocean is subject to the global regime for the law of the sea not because it is in the Arctic but because it is an ocean. Precisely because of location, however, the Arctic Ocean and the larger marine Arctic present distinctive opportunities for regional cooperation under the global law of the sea regime. Dominated by the presence of sea ice, snow, cold and darkness for much of the year, the region’s practical constraints on navigation and other marine activity limited the need for more localized implementation of the law of the sea regime well into the twentieth century. In 2012, as the Arctic experiences sea ice loss that is among the most dramatic and visible change to any marine area on the planet,1 heightened attention to the region is creating pockets of Arctic cooperation on a larger scale. Taken together, these can be seen as an emerging regional regime for the marine Arctic.2

1 National Snow and Ice Data Center, “Arctic sea ice extent settles at a record seasonal minimum” 19 September 2012, comparing the September 16 minimum for 2012 to the previous record-breaking minimum set in 2007 as “18% below 2007 and 49% below the 1979 to 2000 average,” (available at ). 2 Many regime discussions have focused on the Arctic generally rather than the marine Arctic, e.g. L. Nowlan Arctic Legal Regime for Environmental Protection (IUCN, Gland: 2001); O.S. Stokke and G. Hønneland (eds) International Cooperation and Arctic Governance. Regime Effectiveness and Northern Region Building (Routledge, London: 2007); C. Keskitalo “International Region-Building: Development of the Arctic as an International Region” (June 2007) 4(2) Cooperation and Conflict 187–205; R. Rayfuse “Melting Moments: The Future of Polar Oceans Governance in a Warming World” (2007)16 Review of European Community International Environmental Law 196; O.R. Young Creating Regimes: Arctic Accords and International Governance (Cornell University Press, Ithaca, NY: 1998); D.D. Caron “Toward an Arctic Environmental Regime” (1993) 24 Ocean Development and International Law 377–392. However, marine regionalism has also been addressed, e.g. A. Boyle “Globalism and regionalism in the protection of the marine environment” in

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How the regional regime for the marine Arctic will develop depends in part on how the balance will be struck between the interests and roles of the many actors that claim equities in the region. After a brief introduction to the challenges facing the marine Arctic, including how to define it, this chapter turns to the evolving dynamic between the coastal and the non-coastal states of the Arctic Ocean and the role of the Arctic’s indigenous peoples. It also addresses how best to acknowledge the legitimate interests of non-Arctic states in the region. These themes recur in each section of the chapter, which moves from the history of the Arctic Council and the emergence of the block of Arctic Ocean coastal states—or ‘A5’—to the foundations for cooperation in the region in the LOS Convention.3 It then discusses how non-marine instruments as well as recent Arctic Council reforms and agreements negotiated under the Council’s auspices are contributing to the emerging regime for the marine Arctic. The Arctic Ocean and its diminishing sea ice are central to livelihoods and cultures of the Arctic’s indigenous residents and support an intricate web of marine life in and beyond the region. The resiliency of that web is being tested as increased vessel traffic, industrial activity, ocean acidification and other changes loom. Under any of the varied approaches to defining the Arctic, the Arctic Ocean is the primary geophysical feature of the Arctic region and of the marine Arctic.4 Definitions of the marine Arctic often include the Arctic Ocean’s neighboring and component seas; as can be seen in Figure 1.2 in chapter 1, which shows the so-called ‘CAFF boundary’ agreed within the Arctic Council working group on Conservation of Arctic Flora and Fauna. The Arctic Marine Strategic Plan (AMSP)5 of the Arctic Council working group on Protection of the Arctic Marine Environment (PAME) “covers all Arctic marine areas and relates to all key activities affecting Arctic marine ecosystems; therefore it also considers coastal zones, river basins and other areas that are connected to the marine ecosystem.”6 Under the AMSP, each Arctic Council member state defines its relevant Arctic area, an approach that the PAME Arctic Offshore Oil and Gas Guidelines (AOOGG)7 and other Arctic Council outputs also take.8 The Ottawa Declaration Establishing the Arctic Council (A8) and the Ilulissat Declaration (A5) on the Sufficiency of the Law of the Sea The sheer extent of marine areas in the Arctic notwithstanding, a central actor in a regime for the marine Arctic is hard to identify. The five Arctic Ocean coastal D. Vidas (ed.) Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Cambridge University Press, Cambridge: 2000) 19–33. 3 United Nations Convention on the Law of the Sea of 10 December 1982 (1833 UNTS 396). 4 See chapter 1 for a discussion on defining the Arctic region. 5 Adopted in 2004 (available at ). The AMSP is being revised for 2014. 6 AMSP, S. 1.2. 7 Most recent version dates from 2009 (available at ). 8 AOOGG, 1. For these national definitions AOOGG, Annex A, 77–78.



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states—Canada, Denmark/Greenland, Norway, the Russian Federation and the United States—are sometimes in step and sometimes at odds with the three states that do not border on the Arctic Ocean: Finland, Iceland and Sweden.9 The Arctic Council, to which all eight Arctic states belong, is the primary forum for cooperation in the Arctic but is not first and foremost a regional marine regime. Nor is it an international organization. The A8 established the Council by means of the Ottawa Declaration10 as a “high level forum” to promote “cooperation, coordination and interaction among the Arctic states with the involvement of the Arctic indigenous communities.” The Arctic states did not, however, grant the Arctic Council legal personality. The dynamic between the Arctic Council, the A5 and the A8 has generated competing yet ultimately complementary visions for governing the marine Arctic, in part because all eight Arctic states acknowledge the importance of the law of the sea for addressing challenges facing the marine Arctic. In the Arctic Environment Protection Strategy (AEPS),11 which helped lay the foundation for the Arctic Council, all eight Arctic states pledged to assess and protect the Arctic environment from pollution.12 They specified that the Arctic marine environment required protection from pollution regardless of source: landbased or marine, Arctic or non-Arctic, referring explicitly to the LOS Convention: The eight Arctic Countries recognize their particular interests and responsibilities as neighbouring countries in the Arctic, and emphasize the need to take preventive measures directly or through competent international organizations, consistent in particular with the [LOS Convention] regarding marine pollution in the Arctic, irrespective of origin.13

The AEPS also stated that “implementation of the Strategy will be carried out through national legislation and in accordance with international law, including customary international law as reflected in the [LOS Convention].”14 In this way, in the years preceding the Arctic Council, all eight Arctic states recognized the centrality of the law of the sea to protection of the Arctic as a whole and to the marine Arctic.

9 On Iceland as an Arctic coastal state, as opposed to an Arctic Ocean coastal state see e.g. K. Dodds and V. Ingimundarson “Territorial nationalism and Arctic geopolitics: Iceland as an Arctic coastal state” (2012) 2 Polar Journal 21–37. 10 Declaration on the Establishment of the Arctic Council of 19 September 1996. This and all other Ministerial Declarations and Arctic Council documents are available at . 11 Arctic Environmental Protection Strategy of 14 June 1991 (30 ILM 1624). 12 E.C.H. Keskitalo Negotiating the Arctic: the Construction of an International Region (Routledge, New York: 2004) provides a detailed history of the AEPS and the Arctic Council founding. 13 AEPS, 33. 14 Ibid., 7–8. AEPS, 33–34, provides greater detail on the eight Arctic states’ commitment to principles of the LOS Convention.

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In 1996, the eight signatories of the AEPS became the eight member states of the Arctic Council. For the Council’s first decade the five Arctic Ocean coastal states did not have a separate forum. Then, in 2007, two events possessing no legal significance but tremendous symbolic power propelled the Arctic into the public consciousness: a team of Russian scientists planted a titanium flag on the sea bed at the North Pole, and Arctic sea ice reached a stunning new minimum—since eclipsed—that outstripped all predictions in the models of the Intergovernmental Panel on Climate Change (IPCC).15 The next spring, at the invitation of the Danish Minister for Foreign Affairs and the Premier of Greenland, the five Arctic Ocean coastal states met in Greenland where they adopted the Ilulissat Declaration.16 The Ilulissat Declaration notes that the “Arctic Ocean stands at the threshold of significant changes,” and that the A5, by “virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean,” are in a “unique position to address these possibilities and challenges.” The Declaration identifies the A5’s “stewardship role” in protecting the Arctic Ocean, recalling that “an extensive international legal framework applies to the Arctic Ocean” and that the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea.17

The Declaration states that the A5 see “no need to develop a comprehensive international legal regime to govern the Arctic Ocean”; in part, a reference to the many calls, since largely stilled, for an Antarctic-style treaty for the North.18 These statements do not, however, preclude the need to develop and strengthen the existing global law of the sea regime as it is emerging in the Arctic. Excluding the A3 from such development is as impractical as excluding the many non-Arctic states and entities whose implementation of the global and regional agreements discussed in this chapter is critical to the success of those agreements. The Ilulissat Declaration concludes with this often overlooked sentence: “The five coastal states of the Arctic Ocean will continue to contribute actively to the work of the Arctic Council and other relevant international fora.”19 Given that all eight Arctic states affirmed the importance of the law of the sea to the marine Arctic in the AEPS, and given that the three non-Arctic Ocean coastal states (A3) have since effectively done the same individually in their respective Arctic policy 15 On IPCC estimates see e.g. R. Naam, “Arctic Sea Ice: What, Why and What Next” Scientific American blog, 21 September 2012 at . On flag planting see e.g. A. Proelss “Governing the Arctic Ocean” (2009) 2 Nature Geoscience 310–313. 16 Ilulissat Declaration, Arctic Ocean Conference of 28 May 2008 (48 ILM 362). 17 Ibid., 1. 18 Ibid., 2. 19 Ibidem.



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or strategy statements,20 the Ilulissat Declaration generated a remarkable level of criticism from the A3 and others. The A3 viewed it as attempted encroachment on their interests in the Arctic Ocean—which are not always well-articulated— and on the work of the Arctic Council. Three years later, the A3 and others raised similar objections when the A5 met again on their own in Chelsea, Quebec.21 The critics warned the A5 against creating a parallel system to the Arctic Council that excluded the A3 and indigenous representatives. An understanding of the basic structure and purposes of the Arctic Council helps explain this backlash. The Structure and Functions of the Arctic Council As a ‘high level forum’, the purpose of the Council is to promote cooperation, coordination and interaction among Arctic states “and indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.”22 Unlike the Ilulissat Declaration of the A5, the Ottawa Declaration establishing the Arctic Council does not mention state sovereignty. A footnote to the Ottawa Declaration states that the Council “should not deal with matters related to military security.” The Council brings to the same table member states (the A8) and, through the representative device of Permanent Participants (PPs), indigenous peoples, although the PPs have no vote. “The category of Permanent Participation [sic] is created to provide for active participation and full consultation with the Arctic indigenous representatives within the Arctic Council.”23 Six PPs currently belong to the Arctic Council; the Aleut International Association, the Arctic Athabaskan Council, the Gwich’in Council International, the Inuit Circumpolar Council, the Russian Association of Indigenous Peoples of the North and the Saami Council. As currently constituted, the Arctic Council’s composition of states and indigenous peoples at the same table is unique in multilateral fora. As of September 2012, observers include six non-Arctic states, nine intergovernmental or interparliamentary organizations and 11 nongovernmental organizations.24 Unlike the AEPS, the Ottawa Declaration mentions neither the marine Arctic nor the LOS Convention. It does, however, specify members’ support of the working groups, including PAME. This structure gives the Council flexibility to address

20 L. Heininen Arctic Strategies and Policies, Inventory and Comparative Study (2011) (available at ); I.G. Brosnan, T.M. Leschine and E.L. Miles “Cooperation or Conflict in a Changing Arctic?” (2011) 42 Ocean Development and International Law 173–210 analyze the Arctic strategy statements of the five Arctic Ocean coastal states. 21 Business Week, “Nordic nations criticize Canada for Arctic snub”, 30 March 2010, reporting also on criticism by then United States Secretary of State Hillary Clinton at the Chelsea meeting of the A5. 22 Ottawa Declaration. 23 Ibid., 2. 24 Information available at .

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a range of marine related issues through its working groups even though it is not primarily a marine regime. By the same token, neither the AEPS nor the Ottawa Declaration consider the marine Arctic as separable from the Arctic and the Arctic environment as a whole. In 1991 the AEPS stated: Arctic ecosystems are influenced and in some cases threatened by factors occurring also outside the Arctic. In turn, the Arctic also exerts an important influence on the global environment. The implementation of an Arctic Environmental Protection Strategy will therefore benefit both the Arctic countries and the world at large.25

The range of topics that Arctic Council working groups address reflect the complex interactions between marine and terrestrial ecosystems and environmental factors, within the Arctic and as between the Arctic and the rest of the world. The four scientific committees that carried out the work of the AEPS became working groups under the Arctic Council: PAME; the Arctic Monitoring and Assessment Program (AMAP); Conservation of Arctic Flora and Fauna (CAFF); and Emergency Prevention, Preparedness and Response (EPPR). Two more have since been added: the Arctic Contaminants Action Program (ACAP) and the Sustainable Development Working Group. Recent working group projects with implications for the marine Arctic include AMAP’s work with the Council’s Task force on Short Lived Climate Forcers; the CAFF Arctic Biodiversity Assessment; and the PAME Arctic Ocean Review (AOR) of international instruments relevant to the Arctic Ocean, which will identify opportunities and options for policy makers to strengthen those instruments. Finally, the EPPR working group’s Recommended Practices for Arctic Oil Spill Prevention (RP3) project, is identifying best practices and guidelines that exceed regulatory requirements concerning safe operation of shipping and oil/gas activities in the Arctic for presentation to the 2013 Kiruna Ministerial. These working group projects represent two different ways in which the Arctic Council is shaping what can be considered the emerging regime for the marine Arctic, and illustrate how the Arctic Council has itself evolved since its founding in 1996. PAME’s AOR and AMAP’s work on short lived climate forcers follow the traditional working group approach of providing scientific studies—in the natural and social sciences—to support policy recommendations to the Arctic Council Ministers. By contrast, the EPPR RP3 project supports the Arctic MOPPR Agreement26 negotiated under the auspices of the Arctic Council, agreed to in October 2012 and expected to be opened for signature at the 2013 Ministerial in Kiruna, Sweden. This is the second such legally binding agreement for all eight Arctic states to emerge from an Arctic Council Task Force established with the specific purpose of developing a legally binding instrument. The first was the Arctic SAR

25 AEPS, 7. 26 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic of 15 May 2013 (available at ).



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Agreement.27 Neither agreement is an Arctic Council agreement per se, but serving as host to the Task Force gives the Council a new convening role with the potential to shape how and in which settings the eight Arctic states cooperate.28 By specifying that the EPPR working group was to support what became the Arctic MOPPR Agreement, the 2011 Ministerial indicated some degree of connection between the independent agreement binding the A8 (provided that they all become party) and the work of the Arctic Council. Both agreements negotiated in this new guise have direct relevance to the marine Arctic. The Preamble to the Arctic SAR Agreement invokes the Ottawa Declaration establishing the Arctic Council and two instruments relevant to the global law of the sea regime: the LOS Convention and the SAR Convention,29 which itself predated the LOS Convention and has given rise to numerous SAR agreements. 2011 Reforms of the Arctic Council: Secretariat and Observers At the 2011 Nuuk Ministerial, the Arctic Council formalized approaches to its changing role and to the growing interest of non-Arctic states and entities in observing or otherwise participating in the Council’s work. Most notable are the Ministerial decisions to establish a permanent Secretariat for the Council in Tromsø and to study changes to the Council’s Rules of Procedure regarding admission of observers, based on the so-called Nuuk Observer Rules.30 The Nuuk ‘Framework for the Strengthening of the Arctic Council’ established a task force to implement institutional reforms and provides that The Arctic Council will continue to work towards solutions to address emerging challenges in the Arctic utilizing a wide range of approaches, including: scientific assessments; policy statements; guidelines; recommendations; best practices; and new legally binding instruments.31

The Task Force on Institutional Issues (TFII) is to operationalize the Council’s permanent Secretariat and report on the observer question by the 2013 Ministerial meeting in Kiruna.32 These procedural and operational changes do not alter the fact that the Arctic Council still operates without legal personality.

27 Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic of 12 May 2011 (available at ). 28 E.J. Molenaar “Current and Prospective Roles of the Arctic Council System within the Context of the Law of the Sea” (2012) 27 International Journal of Marine and Coastal Law 553–595, at 571, sees it as “justifiable to regard the Arctic SAR Agreement as part of the Council’s output.” 29 International Convention on Maritime Search and Rescue of 27 April 1979 (1403 UNTS 118), as amended. 30 Contained in Annex 1 to the Report of the May 2011 Senior Arctic Officials (SAOs) Meeting, 50–51. 31 Ibid., Annex 1, 49. 32 Molenaar, note 28, provides an extensive discussion of proposed changes to qualifying for observer status.

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The Arctic Council, the Law of the Sea and Relevant Global Conventions The Arctic Council and, before it, the AEPS have consistently encouraged the A8 to review and improve implementation of the LOS Convention and other agreements relevant to the marine Arctic, or to join them if they are not party. Through its ongoing AOR project, the PAME working group carries out its mandate to review the implementation and effectiveness of international agreements relevant to the Arctic marine area.33 Under the AEPS, the A8 agreed to Review, in accordance with the general aims of this environmental Strategy, the relevance to the Arctic of international instruments connected with the protection of the marine environment, with the aim that all Arctic countries accede, where appropriate, to the instruments, or apply the principles and regulations embodied therein.34

The AMSP, which PAME prepared and which the Arctic Council ministers adopted in the same year as the Arctic Climate Impact Assessment (2004), calls for Arctic states to implement (or join) the LOS Convention, the UNFCCC,35 the CBD36 and other agreements.37 The AMSP, which is under review for 2014,38 is based upon principles and approaches that “include sustainable development, precaution, polluter pays, integrated management and an ecosystem-based approach” and are drawn from instruments such as the Rio Declaration,39 Agenda 21,40 the CBD, the Word Summit on Sustainable Development (WSSD)’s Johannesburg Plan of Implementation41 “and the Arctic Council’s founding documents.”42 As

33 See e.g. AOR Phase I Report (2011; available at ). 34 AEPS, 33. 35 United Nations Framework Convention on Climate Change of 9 May 1992 (1771 UNTS 107). 36 Convention on Biological Diversity of 22 May 1992 (1760 UNTS 143). 37 AMSP, 1. Others include International Maritime Organization (IMO) conventions and protocols—e.g. the London Convention (Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1972 (11 ILM 1294)) and its 1996 Protocol (Law of the Sea Bulletin No. 34 (1997), 71)—the POPs Convention (Convention on Persistent Organic Pollutants of 22 May 2001 (available at )), CITES (Convention on International Trade in Endangered Species of Wild Flora and Fauna of 3 March 1973 (993 UNTS 243)), and the Ramsar Convention (Convention on Wetlands of International Importance especially as Waterfowl Habitat of 2 February 1971 (996 UNTS 245)), as well as relevant regional instruments such as the OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic of 22 September 1992 (amended and updated text available at )). 38 The AMSP will be reviewed at the 2014 Deputy Ministerial Meeting (Record of Decisions and Follow-up Actions PAME II-2012, at p. 6). 39 Rio Declaration on Environment and Development of 13 June 1992 (31 ILM 876). 40 Of 14 June 1992 (available at ). 41 Of 4 September 2002 (available at ). 42 AMSP, 8.



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such, these principles go beyond those found in the LOS Convention but may be considered relevant to, if not part of, the core global law of the sea regime applicable regionally in the Arctic. The distinctive opportunities for cooperation in the marine Arctic relate in part to expanding the list of instruments traditionally associated with the global law of the sea regime. Rather than encompassing only International Maritime Organization (IMO) conventions and other marine law instruments, the developing regional regime for the marine Arctic is creating informal and formal linkages with select multilateral environmental agreements that address questions of marine biodiversity and environment. As will be seen, these inter-linkages strengthen, rather than diminish, the role of the LOS Convention as the overarching instrument for governing the marine Arctic. Defining the Global Regime for the Law of the Sea The LOS Convention and the IMO The LOS Convention, with 164 parties in 2012, anchors the global law of the sea regime. Its two implementing agreements, on the seabed, subsoil and ocean floor, and on straddling and highly migratory fish stocks, undergird the global regime as do other global instruments and customary international law.43 States, too, are part of the global law of the sea regime, whether acting individually (as coastal states, port states, flag states or sometimes as all three) or collectively as parties to the instruments that comprise the global regime. The IMO is widely acknowledged to be the “competent organization” referred to in many of the LOS Convention’s provisions regarding global and regional arrangements addressing vessel source pollution.44 Many instruments traditionally considered part of the global law of the sea regime are products of the IMO, including the MARPOL,45 the London Convention and its 1996 Protocol,46 and the OPRC.47 All three expressly invoke the LOS

43 These are the Part XI Deep-Sea Mining Agreement (Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, of 28 July 1994 (1836 UNTS 42)) and the Fish Stocks Agreement (Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995 (2167 UNTS 3)). 44 See e.g. E.J. Molenaar Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer Law International, The Hague/Boston/London: 1998). 45 International Convention for the Prevention of Pollution from Ships of 2 November 1973, as modified by the Protocol of 1 June 1978 and the Protocol of 26 September 1997; as regularly amended. 46 Note 37. 47 International Convention on Oil Pollution Preparedness, Response and Cooperation of 30 November 1990 (1891 UNTS 77).

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Convention.48 MARPOL’s objective is to eliminate pollution of the sea by oil, chemicals and other harmful substances which might be discharged to the sea and air in the course of operation. The London Convention and its 1996 Protocol aim to prevent the marine dumping of specified categories of wastes. Other IMO outputs include non-binding Polar Shipping Guidelines.49 Negotiations to convert these guidelines into a mandatory Polar Code have taken many years.50 Political and structural questions regarding the difficulties in advancing this from a voluntary to a binding code are instructive for the ever strengthening dynamic of Arctic and non-Arctic states attempting to balance their interests in the region. The fact that the Arctic Council communicates with the IMO only through individual member states has impeded the A8 from always speaking in a unified voice there even when coordinating on such initiatives as the Polar Code. This limitation was also evident when the PAME working group of the Arctic Council was unable to present its landmark 2009 Arctic Marine Shipping Assessment (AMSA) directly to the IMO, the global forum on shipping, thus losing the benefit of formal IMO input. Rather than provide a comprehensive survey of all instruments in the global regime that are relevant to the Arctic, this chapter identifies global instruments that have the most influence in the emerging regional regime for the marine Arctic and those that are required to address Arctic issues even though the agreements themselves are not Arctic-specific. These include the CBD and associated biodiversity agreements and the POPs Convention,51 which emerged directly from concerns about bioaccumulation of POPs in human residents of the Arctic through marine mammals in the Arctic food chain.52 Non-Marine Instruments and the Global Regime for the Law of the Sea The global regime for the law of the sea is manifested primarily in multilateral agreements whose scope includes but is not centered in the Arctic. Some of these invoke the LOS Convention explicitly, others do not. Non-marine regimes that do not, such as the POPs Convention and the LRTAP53 (which preceded the LOS

48 See Preamble to the OPRC; art. 9 of the MARPOL, and the Preamble to the 1996 Protocol to the London Convention (the LOS Convention predated the London Convention). 49 Res. A.1024(26), of 2 December 2009, ‘Guidelines for Ships Operating in Polar Waters’. 50 See the discussion in chapter 9 in this volume. 51 Note 37. 52 P. Stenlund “Lessons in regional cooperation from the Arctic” (2002) 45 Ocean and Coastal Management 835–839, at 837. 53 Convention on Long-Range Transboundary Air Pollution of 13 November 1979 (available at ).



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Convention) clearly affect marine and other pathways of toxins that bioaccumulate in the Arctic food chain, but are not discussed further.54 Article 22(2) of the CBD provides that its parties “shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.”55 Article 8 with its encouragement to states to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities” is also directly relevant to the relationship between many of the Arctic’s people and marine mammals. The CBD Secretariat co-leads the UN-Oceans Task Force on marine biodiversity beyond national jurisdiction working with the United Nations Secretariat (Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs).56 The separate so-called ‘BBNJ working group’57 was established in 2004 by the United Nations General Assembly (UNGA) “to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.”58 Meetings of the BBNJ working group in 2011 and 2012 found strong support for negotiating another implementing agreement under the LOS Convention on marine biodiversity beyond national jurisdiction but, given the small minority of states opposed, it is still too early to assess the prospects for such proposals.59 Arctic-specific CBD initiatives include an MOU with the CAFF working group.60 Separately CAFF is producing the Arctic Biodiversity Assessment (ABA) as part of the global biodiversity assessments under the CBD and related instruments.61 Further, the CBD Conference of the Parties (COP) deals with Arctic-critical issues such as ocean

54 The LOS Convention addresses persistent pollutants in art. 207(5). 55 On LOS Convention-CBD interactions see N. Matz and R. Wolfrum “The Interplay of the United Nations Convention on the Law of the Sea and the United Nations Convention on Biological Diversity” (2000) 4 Max-Planck United Nations Yearbook 445–480. 56 On the creation of the CBD-DOALOS co-lead, see Report of the 4th (2006) Meeting of UN-Oceans (available at ), paras 5–6. 57 The ‘BBNJ Working Group’ is short hand for ‘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’. 58 UNGA Res. 59/24, of 17 November 2004, para. 73. 59 See e.g. Pew Environment Group, Policy Statement: Biological Diversity beyond Areas of National Jurisdiction, 2 May 2012; and S. Hart Elements of a Possible Implementation Agreement to UNCLOS for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (IUCN, Gland, Switzerland: 2008). 60 Memorandum of cooperation between CBD and CAFF to contribute to building and sharing knowledge, creating awareness and enhancing capacity for implementation of the Convention in the Arctic Region of 14 April 2009 (available at ). 61 On the ABA see CAFF Progress Report to the Senior Arctic Officials, Luleå, Sweden 8–9 November 2011 at 4.

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acidification,62 an area that the AMAP working group of the Arctic Council also addresses.63 The CBD also has the potential to address certain climate change related issues in the Arctic.64 Arctic States, Non-Arctic States and Global Agreements: Prioritizing Interests in the Arctic The eight Arctic states participate to varying degrees as parties to the agreements that comprise the global regime for the law of the sea, but that participation does not necessarily render the agreements Arctic-relevant. Each of those eight states may also act simultaneously as non-Arctic states under the same agreements. This dual role of Arctic states under global instruments requires them to balance such competing domestic interests as preserving the Arctic marine environment on the one hand and promoting Arctic hydrocarbon exploitation on the other. Another such balancing act for decision makers who are located in capitals that are all far from the Arctic and beholden to larger national constituencies, is having a clear, informed understanding of how Northern concerns and realities of the much smaller Arctic population are affected by obligations under these instruments. Most Arctic states participate in most of the conventions comprising the global regime for the law of the sea most of the time65 but, again, not necessarily as Arctic states. As of September 2012, all Arctic states except the United States were party to the LOS Convention and the Part XI Deep-Sea Mining Agreement;66 but all Arctic states—including the United States—were party to the Fish Stocks Agreement.67 All eight are party to MARPOL but their adherence to the Annexes varies (Annexes I–V cover marine pollution from ships; Annex VI air pollution from ships).68 Although special areas and Emission Control Areas may be

62 CBD COP 10 Decision X/29, ‘Marine and coastal biodiversity’, para. 64. 63 AMAP’s first assessment on Ocean Acidification is a deliverable at the 2013 Ministerial (cf. AMAP Work Plan for 2011–2013, unnumbered 2nd page (available at )). 64 T. Marauhn “The Potential of the Convention on Biological Diversity to Address the Effects of Climate Change in the Arctic” in T. Koivurova, E.C. Keskitalo and N. Bankes (eds) Climate Governance in the Arctic (Springer, Heidelberg: 2009), 263–286. 65 On this phenomenon as the basis for the ongoing acceptance of international law, see L. Henkin How Nations Behave: Law and Foreign Policy 2nd (Columbia University Press, New York: 1979), 47 and L. Henkin “How are Nations Behaving?” (2002) 96 American Society of International Law Proceedings 205–209. 66 Note 43. 67 Ibid. 68 Denmark, Norway and Sweden are party to all six Annexes. Non-parties are Iceland (Annex VI); Russia (Annex V); and the United States (Annex III). Canada is only party to Annexes I/II and VI.



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established under several MARPOL Annexes, the Arctic does not yet have any such areas. By contrast, Antarctica has special areas designated under MARPOL Annexes I, II and V.69 All A8 are party to the London Convention while five of the eight belong to its 1996 Protocol. The London Convention provides that “Contracting Parties with common interests to protect in the marine environment in a given geographical area shall endeavour, taking into account characteristic regional features, to enter into regional agreements consistent with this Convention for the prevention of pollution, especially by dumping” (article VIII). As a group, the Arctic states have not built on this provision to date but could do so in a way that comports with the global regime for the law of the sea. The OSPAR Convention70 implements the London Convention but applies to only part of the marine Arctic and only five of the eight Arctic states are parties. Arctic states rely on active implementation of global instruments by many other non-Arctic states, since regional compliance alone would not protect the Arctic. However, non-Arctic states also arguably have an interest in the A8 carrying out their obligations under those instruments,71 to protect the environment and other attributes of the Arctic Ocean. A related tension between Arctic and non-Arctic states, for access to the marine Arctic and its resources, plays out most acutely in the Central Arctic Ocean, which is ringed by the EEZs of the five Arctic Ocean coastal states, yet where all states enjoy high seas freedoms (including navigation, overflight, laying of submarine cables and pipelines, fishing, and marine scientific research).72 As several other chapters in this volume explore (e.g. on Arctic fisheries management and Arctic marine protected areas), satisfactory proposals have yet to be agreed upon for balancing the interests in the Arctic Ocean of the A5 and the three remaining Arctic states on the one hand with acknowledging the legitimate interests of the rest of the international community in the management of Arctic Ocean resources on the other.73 In the EEZs of the A5, the same well-established balance between the rights of coastal and non-coastal states that the LOS Convention provides apply and provide the correct basis for balancing the priorities of the A5 and the A8. These include sovereign rights for exploring, exploiting, 69 Based on information at . 70 Note 37. 71 See e.g. Molenaar, note 28 at 575–576. 72 All states enjoy a subset of those freedoms in the EEZs of each of the Arctic Ocean coastal states. See e.g. LOS Convention, arts. 87(1) and (2) (high seas), and art. 56 (EEZ, where coastal states possess “sovereign rights to explore, exploit, conserve and manage the living resources”). 73 On European and other interests in the Arctic Ocean, see e.g. T. Koivurova, E.J. Molenaar and D.T. VanderZwaag “Canada, the EU, and Arctic Governance: A Tangled and Shifting Seascape and Future Directions” (2009) 18 Journal of Transnational Law & Policy 247–287.

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conserving and managing natural resources, and jurisdiction for protecting and preserving the marine environment having “due regard to the rights and duties of other States” and exclusive rights to construct, authorize and regulate artificial islands and certain installations.74 As will be seen, the A8, while not acting in any formal capacity as a regime for the marine Arctic, have, through the Arctic Council, generated scientific studies and new forms of cooperation that evidence their stewardship of and responsibility for the marine Arctic. The A8 can, however, take more concrete steps under the LOS Convention to make clear to non-Arctic states that individually and through the Arctic Council they are working to carry out those responsibilities. Two recent and promising examples of A8 leadership and stewardship in the Arctic, both negotiated under the auspices of the Arctic Council, are the Arctic SAR Agreement and the Arctic MOPPR Agreement, expected for signature at the 2013 Arctic Council Ministerial. Defining the Regional Regime for the Marine Arctic The LOS Convention: The Potential for Regional Cooperation in the Arctic Regional cooperation is a hallmark of the LOS Convention, and the growing number of examples of cooperation in the marine Arctic include instruments with ties to the Convention, including the Arctic SAR Agreement and the Arctic MOPPR Agreement. Cooperation unrelated to the Convention can also be tied to the law of the sea, even if the instrument in question does not refer specifically to or implement provisions of the Convention. The LOS Convention at times mandates, at other times encourages, state cooperation and identifies multiple activities as appropriate for regional cooperation. These areas include managing living resources, preserving and protecting the marine environment, establishing liability regimes, promoting marine scientific technology transfer and, if regional agreements provide for it, settling disputes.75 Additional agreements between states are needed to implement most of these provisions.76 Part XII of the Convention, on ‘Protection and Preservation of the Marine Environment’, emphasizes regional cooperation by placing it immediately after the

74 See e.g. LOS Convention, arts. 56 and 60. 75 D.R. Rothwell The Polar Regions and the Development of International Law (Cambridge University Press, London: 1996) 294. Part XII can be interpreted as the “basis for greater regional cooperation by polar states to deal with problems of marine pollution and the protection of the marine environment.” On dispute settlement see LOS Convention, art. 282. 76 As the IMO’s Legal Committee has observed, these LOS Convention articles “do not, in themselves, establish an existing international liability and compensation regime, but rather impose a legal obligation on States to establish such a regime or regimes” (doc. LEG 98/13, of 18 February 2011).



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introductory articles 192–196 on basic obligations and rights of all states regarding their natural resources and the marine environment. The section on ‘Global and Regional Cooperation’ (articles 197–201) identifies key areas for cooperation that, although negotiated forty years ago, remain markedly relevant to key issues facing the Arctic in 2013. The general provision in article 197 of the Convention requires states to cooperate regionally “as appropriate” to protect and preserve the marine environment “taking into account characteristic regional features.” Given the Arctic’s distinctive sea ice, harsh climate and seasonal diurnal cycles, this general requirement can inform approaches to more concrete concerns as addressed by other LOS Convention provisions on regional cooperation.77 These include responding to transboundary marine pollution, researching the effects of pollution on the marine environment, and creating science-based rules for preventing and managing those effects. Article 198 requires states to “immediately notify neighboring states and competent international organizations of imminent or actual damage from pollution” (such pollution is a potential hazard with increased offshore hydrocarbon activity and vessel traffic in the Arctic). Article 199 provides that states “shall jointly develop and promote contingency plans for responding to pollution incidents in the marine environment” (both articles 198 and 199 provide further support for what the A8 have done in negotiating the Arctic MOPPR Agreement). Article 200 encourages states “to participate actively in regional and global programmes to acquire knowledge for the assessment of the nature and extent of pollution, exposure to it, and its pathways, risks and remedies” (an activity very much in keeping with the ecosystem approach to management that the Arctic Council is now studying through such forums as the PAME-led Ecosystem Assessment Expert Group or the Expert Group on Ecosystem-based Management).78 Under article 201, states shall use information so acquired to establish “appropriate scientific criteria for the formulation and elaboration of rules, standards and recommended practices and procedures for the prevention, reduction and control of pollution of the marine environment” (anticipating the Arctic Council’s focus on science-based decision-making and the potential for science to inform policy in the Arctic).79 77 See D. VanderZwaag “Regionalism and Arctic Marine Environmental Protection: Drifting Between Blurry Boundaries and Hazy Horizons” in D. Vidas and W. Østreng (eds) Order for the Oceans at the Turn of the Century (Kluwer Law International, The Hague: 1999) 231–248. 78 See e.g. A.H. Hoel (ed) Best Practices in Ecosystem-based Oceans Management in the Arctic (Norwegian Polar Institute, Tromsø: 2009) prepared for the Arctic Council and its Task Force on the Ecosystem Approach to Oceans Management. 79 See e.g. K. Sloan and D. Hik “International Polar Year as a Catalyst for Sustaining Arctic Research” (2008) 8 Sustainable Development Law & Policy 4; and in J. Shadian and M. Tennberg (eds) Legacies and Change in Polar Sciences: Historical, Legal and Political Reflections on the International Polar Year (2009) e.g. A.E. Nillson, “A Changing Arctic

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Given the centrality that both the A5 and the A8 accord to the LOS Convention and the striking relevance for the Arctic of its provisions on regional cooperation, both groups could draw more explicitly on these provisions to strengthen their respective positions and to build greater collaboration. The law of the sea regime recognizes greater rights and responsibilities of coastal states for the marine environment and resources in their EEZs compared to non-coastal states. Placing these coastal state interests in the context of regional cooperation between coastal and non-coastal states would help to bridge whatever divide places the A5 and A8 in real or perceived conflict and move them toward concrete cooperation to strengthen the overall regime for the law of the sea in the Arctic. Part XII of the LOS Convention instructs states to adopt global and regional norms regarding pollution from different sources. For all sources—land based (article 207), seabed activities under national jurisdiction (article 208), dump­ing (article 210), vessels (article 211), and atmospheric pollution (article 212)—states must act through competent international organizations or diplomatic conference to establish collective norms. Other requirements vary depending on the type of pollution: for seabed activity pollution, states “shall establish global and regional rules, standards and recommended practices and procedures” (emphasis added) but shall only “endeavour” to do so for pollution from land-based sources, dumping and the atmosphere.80 Such norms for land based sources of pollution are to take account of characteristic regional features. Independent of any collective norms established regionally or globally, states “shall endeavour” to harmonize regionally their individual policies regarding pollution from land-based sources and from seabed activity. Article 234 on ice-covered areas—the only LOS Convention article to reference features characteristic of the Arctic and Antarctica—acknowledges the right of coastal states to act unilaterally, with no reference to regional cooperation. Article 234 requires only that such coastal state laws and regulations have “due regard” to navigation and the protection and preservation of the marine environment.” This outcome is not surprising given the article’s focus on a coastal state’s right to adopt and enforce unilateral measures to combat vessel source pollution “within the limits of the exclusive economic zone.” Nonetheless, article 234 has arguably generated more disagreement than regional harmony in the Arctic, given both Canadian and Russian laws and regulations regarding passage through

Climate: More than Just Weather”, 9–34 at 24; and J. Shadian, “Revisiting Politics and Science in the Poles”, 35–62, at 51. 80 Subject to minimum requirements, arts. 207, 208 and 210: “[National] laws, regulations and measures shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards”. See also O.S. Stokke “A legal regime for the Arctic? Interplay with the Law of the Sea Convention” (2007) 31(4) Marine Policy 402–408. On vessel-source pollution see Molenaar, note 44.



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the Northwest Passage and Northern Sea Route, respectively, and the reaction of their maritime neighbors.81 Article 123 of the LOS Convention, which falls outside Part XII, provides that coastal states bordering a semi-enclosed sea “should cooperate” directly or through appropriate regional organizations, in managing living resources, protecting and preserving the marine environment, scientific research, inviting other states and international organizations to join them. While the Arctic Ocean is usually considered a semi-enclosed sea in geophysical terms, legal commentators continue to debate whether the Arctic constitutes a semi-enclosed sea for purposes of the Convention.82 Article 122 defines a semi-enclosed sea as “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.” From the standpoint of enforcement, this debate is of little practical significance given that cooperation is not (yet) mandated but only encouraged (should/shall endeavor), and given that the benefits to be gained by the coastal states from such a designation are far from clear. Finally, the LOS Convention also requires regional cooperation to conserve living marine resources and for marine technology transfer and research (article 276 and Part XIV) and marine scientific research (Part XIII). While directly relevant to the emerging regional regime in the Arctic, these topics are treated at length in chapter 11 and chapter 15, respectively, of this volume. Of the three bodies created by the LOS Convention—the International Tribunal for the Law of the Sea, the International Seabed Authority and the

81 See e.g. D. Pharand “The Arctic Waters and the Northwest Passage: A Final Revisit” (2007) 38(1) Ocean Development & International Law 3–69; M. Blunden “Geopolitics and the Northern Sea Route” (2012) 88(1) International Affairs 115–129; C.L. Ragner “The Northern Sea Route”, the English translation of a chapter originally published in Swedish as “Den norra sjövägen” in T. Hallberg (ed) Barents—ett gränsland i Norden. Arena (Norden, Stockholm: 2008; available at ), 114–127. 82 Geophysics: National Snow and Ice Data Center: “The Arctic is a semi-enclosed ocean, almost completely surrounded by land” (); VanderZwaag, note 77, cites extensively to views on both sides; see also H. Corell “Reflections on the Possibilities and Limitations of a Binding Legal Regime” (2007) 37 Environmental Policy and Law 323 (yes), T.H. Heidar, “The Legal Regime of the Arctic Ocean” (2009) 69 Zeitschrift fur auslandisches offentliches Recht und Volkerrecht 635–640, 636 (no); A. Proelss and T. Muller “The Legal Regime of the Arctic Ocean” (2008) 68 Zeitschrift fur auslandisches offentliches Recht und Volkerrecht, 651–687, 684 (no). On the debate generally see Y. Takei, Polar Complications in the Law of the Sea: A Case Study of the Regime for Research and Survey Activities in the Arctic (undated; on file with the author), 1–10, 7; T. Koivurova and E.J. Molenaar International Governance and Regulation of the Marine Arctic. Three reports prepared for the WWF International Arctic Programme (WWF: 2010; available at ) 67, and Rothwell, note 75 at 211–212.

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Commission on the Limits of the Continental Shelf (CLCS)—the latter has had the most immediate effect on shaping the contours of the marine Arctic, as discussed in chapter 4 of this volume.83 The process of gathering data and preparing submissions for the CLCS under article 76 has led, if only indirectly, to communication and cooperation between Arctic states sharing maritime boundaries. This effect is notable, given that the provisions of article 76 “are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts” (paragraph (10)). Resolution of the forty-year dispute between the Russian Federation and Norway over the maritime boundary in the Barents Sea can be attributed in part to information gained and exchanged in the countries’ respective preparation of submissions to the CLCS. Regional Agreements for the Marine Arctic: Search and Rescue, Oil Spill Response As with the global regime for the law of the sea, the LOS Convention also anchors the emerging regional regime for the marine Arctic. The Preamble to the Arctic SAR Agreement refers explicitly only to two legally binding conventions; the SAR Convention and the ICAO Convention84. Still, it can be seen as implementing article 98 of the LOS Convention, which imposes on each coastal state a duty to render assistance to promote an “adequate and effective” search and rescue service and, if circumstances require, to do so by mutual regional arrangements. The Arctic SAR Agreement is only the second Arctic-specific regional agreement to bind all eight Arctic states.85 The first is the ACPB,86 which, beyond polar bears being marine mammals, implicates the marine Arctic by reference to habitat87 and can be considered to implement prospectively the global law of the sea regime through both the LOS Convention and the CBD, even though it predates both agreements. Article 65 of the LOS Convention, discussed further in chapter 13 in this volume, refers to states acting through appropriate international organizations rather than regional arrangements, but does not preclude such regional action for marine mammals, including cetaceans. Sub-regional agreements regarding marine mammals, such as the Inuvialuit-Inupiat Polar Bear Agreement88 and

83 See also A.G. Oude Elferink “The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?” (2009) XL Netherlands Yearbook of International Law 121–181. 84 Convention on International Civil Aviation of 7 December 1944 (15 UNTS 295). 85 The Arctic MOPPR Agreement is widely expected to become the second such example at the 2013 Ministerial of the Arctic Council. 86 Agreement on the Conservation of Polar Bears of 15 November 1973 (13 ILM 13). 87 Ibid., art. II. 88 Inuvialuit–Inupiat Polar Bear Management Agreement in the Southern Beaufort Sea of 4 March 2000 (available at ).



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Chukotka-Inupiat Walrus Monitoring Project,89 while not between Arctic states, are also relevant to the regional regime for the marine Arctic.90 Non-Arctic Regional Agreements as Partners and Models Most regional marine regimes relevant to the Arctic cover a broader geographic scope, and most also invoke the LOS Convention. The OSPAR Convention, includes Arctic Waters as OSPAR Region 1, an area that comprises some 40% of the OSPAR marine area but covers only part of the marine Arctic. Five of the Arctic states, Denmark, Finland, Iceland, Norway, and Sweden, are among the fifteen parties to the OSPAR Convention. Canada, the Russian Federation and the United States are not party.91 The OSPAR Convention Preamble recalls the relevant provisions of customary international law reflected in Part XII of the United Nations Law of the Sea Convention, and in particular, Article 197 on global and regional cooperation for the protection and preservation of the marine environment.92

While many provisions and initiatives of the OSPAR Convention are relevant to the marine Arctic, the Offshore Industry Strategy (OIS) as implemented by the Offshore Industry Committee (OIC) has particular resonance for the region, given existing and planned offshore hydrocarbon activity in the Arctic region. Under the North-East Atlantic Environmental Strategy, OSPAR members will assess the suitability of existing measures to manage oil and gas activities in Region 1 (Arctic Waters) and, where necessary, offer to contribute to the work on offshore oil and gas activities taking place under the Arctic Council, specifically under the PAME working group.93 Parties that participate in other forums will endeavor to ensure 89 See e.g. US National Park Service “Spanning the Bering Strait, 20 Years of Collaborative Research Shared Beringian Heritage Program description” (2010) 10 Bilateral Walrus Monitoring 1–28, 10; and ). 90 C.D. Brower et al. “The Polar Bear Management Agreement for the Southern Beaufort Sea: An Evaluation of the First Ten Years of a Unique Conservation Agreement” (2002) 55 Arctic 362–372, 371; C.L. Meek, et al. “Building resilience through interlocal relations: Case studies of polar bear and walrus management in the Bering Strait” (2008) 32 Marine Policy 1080–1089. 91 On OSPAR regions’ coverage, and discussions on Russia’s possible accession, see Molenaar, note 28 at 568. 92 Koivurova and Molenaar, note 82 at 17 observe that: The OSPAR Convention and Annex V in particular, provide a comprehensive legal framework for the implementation of Part XII of the LOS Convention and the CBD and its work program on marine and coastal bio-diversity at a regional level. 93 ‘Strategy of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic 2010–2020’, OSPAR Agreement 2010–3, S. 4.2(i) (available at ).

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that programs and measures relevant to the OIS strategy developed within other forums (e.g. the Arctic Council) are compatible with any OSPAR programs and measures.94 The AMAP working group has observer status with OSPAR (which itself applied for observer status to the Arctic Council but, like all other applicants, must await action on the report of the TFII to the Arctic Council Ministerial in 2013). OSPAR’s Strategy for the Joint Assessment and Monitoring Programme (JAMP), with its coordinated regional information collection, environmental monitoring, and assessment protocols for all OSPAR Contracting Parties could serve as a model for promoting information and experience sharing between Arctic Council member states, regardless of their membership in OSPAR. The Arctic Council and Regional Promotion of Law of the Sea Land-based sources of pollution is one sector in which the Arctic Council has supported the global law of the sea regime regionally, considering LOS Convention references to characteristic regional features in article 207 and land-based pollution in article 208. Such Arctic Council support is not implementation per se, does not arise directly from the LOS Convention and uses the “practical guidance”95 of the GPA96 to create a regional program of action rather than binding regional norms, As seen below, however, this support is nonetheless in keeping with the call in article 208 that states endeavor to establish global and regional “rules, standards and recommended practices and procedures” to combat land-based pollution. The Arctic Council has actively addressed land-based sources of pollution since at least 1998, when the Arctic Council Ministers first adopted the RPA.97 PAME characterizes the RPA as a “regional extension” of the GPA, with the aim of producing practical guidance to combat such pollution, in the context of integrated coastal management. The GPA does not mention the LOS Convention but rather invokes Agenda 21 and the Rio Declaration.98 It is thus less explicitly part of the global regime for law of the sea than other instruments, but given the general provision on land-based pollution in article 208 of the LOS Convention, it can be

94 Ibid., 5. 95 See e.g. the Arctic Council’s RPA (Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities of 2009; available at ), 1. 96 Global Programme of Action for the Protection of the Marine Environment from Landbased Activities of 3 November 1995 (available at ). 97 Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities of 1998 (available at ). In the Salekhard Declaration of 26 October 2006, Arctic Council Ministers “Request PAME to review, update and expand the [RPA].” This has led to the 2009 version of the RPA. 98 Preamble.



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seen as part of it. This raises the question of how explicitly the LOS Convention needs to be invoked for something to be part of the global or regional regimes for law of the sea. One possible test is whether an action is in keeping with, or at least does not contradict, the clearly stated norms in the key instruments underlying the regime (e.g. the LOS Convention). Arguably, the initiative in question need not invoke the LOS Convention explicitly but can support the regime by merely furthering its purposes. The question of how explicitly an initiative needs to invoke the law of the sea regime to be part of a regional marine regime is illustrated by the United Nations Environment Programme (UNEP) Regional Seas Programme (RSP). While UNEP identifies the Arctic as an associated program of the RSP, neither the “A8” nor the subset of five Arctic Ocean littoral states have deemed it beneficial to enter into the binding regional conventions or non-binding plans of action that characterize the agreements under the UNEP RSP.99 However, PAME did undertake, without reference to the UNEP RSP, to “analyze the applicability of a regional seas agreement to the Arctic” as part of its AMSP; no outcome of that analysis is publicly available.100 Under the test proposed above, of consistency of purpose, the RSP could be considered part of the global law of the sea regime,101 even though no direct linkage exists with the LOS Convention. The RSP derives from the Stockholm Conference on the Human Environment and work predating Stockholm carried out by the Group of Experts on Scientific Aspects of Marine Pollution.102 The Arctic Council’s RPA is the initiative most comparable to a RSP, but is not equivalent. The RPA is concerned only with land-based sources of marine pollution whereas the RSPs consider all sources, and some deal with marine biodiversity. The RPA’s goals and principles reflect a range of concepts broader than those expressed in the LOS Convention but are compatible with the global law of the sea regime as it has evolved since the LOS Convention.103 The principles stated expressly in the RPA include the precautionary approach, polluter pays, ecosystems-based management, adaptive management practices, promotion of biodiversity, full public consultation with transparent processes and duty to cooperate.104 The last principle is stated in such a way that shows its derivation largely from Part XII of the LOS Convention: the “duty to co-operate on a regional 99 B. Baker and A. Share “Regional Seas Agreements” in R. Wolfrum (ed.) Max Planck Encyclopedia of International Law (Oxford University Press: 2008—online edition). 100 AMSP, 8. 101 Baker and Share, note 99. 102 Although the Stockholm documents did not require regional cooperation, foundations of the RSP can be traced to the Stockholm Action Plan for the Human Environment (doc. A/CONF.48/14 and Corr.1 Ch. II, Recommendations 86 and 92) (cf. Baker and Share, note 99). 103 RPA, 3. 104 Ibid., 4; these principles echo and expand upon those expressed in the AMSP.

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basis for protection and preservation of the marine environment, taking into account characteristic regional features; including marine ecologically sensitive areas.”105 The LOS Convention does not contain any such phrase verbatim, but it does refer in article 194(5) to measures “necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” The concept of “marine ecologically sensitive areas” has evolved in other parts of the global regime, including the possibility of designating particularly sensitive sea areas under IMO, which has not yet occurred in the Arctic.106 The recommendations of the RPA to Arctic Council members are emblematic of how the Arctic Council operates. First, they are recommendations only. The Arctic Council has not imposed any legally binding obligations upon its member states. Second, the land-based activities recommendations include steps that are common to many Arctic Council initiatives: maintaining “a common inventory of significant sources of POPs, heavy metals, radionuclides and petroleum hydrocarbons”107; information exchange; monitoring and assessment; information and training. The RPA is a fairly typical example of the Arctic Council’s role in implementing the global law of the sea regime in the Arctic. The Arctic Council’s approach to pollution from seabed activity under national jurisdiction is similarly emblematic of its recommendatory role in implementing the global law of the sea regime. The Arctic Council Ministers endorsed the latest version of the AOOGG108 in 2009. These non-legally binding guidelines, first developed by PAME in 2002 and updated periodically, are “intended to define a set of recommended practices and outline strategic actions for consideration by those responsible for regulation of offshore oil and gas activities” in the Arctic.109 Like the AMSP and the AEPS, the AOOGG are based on the foundational principles of sustainable development, polluter pays and the precautionary approach.110 The AOOGG also add the principle of “continuous improvement” which entails continually striv[ing] to improve health, environment and safety by identifying the processes, activities and products that need improvement, and implement[ing] necessary “improvement measures.”111 Is the A5—the cooperation between the five Arctic Ocean coastal states— itself a regional marine regime that interacts with the Arctic Council? Such a characterization implies that the Arctic Council is not a regional marine regime, an implication offered at the start of this chapter and one that can be accepted

105 Ibid., 4. 106 E.g. Koivurova and Molenaar, note 82 at 26. 107 RPA, 15. 108 Note 7. 109 AOOGG, 6–7. 110 Ibid., 6. 111 Ibid., 6.



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as plausible given its focus on issues beyond the marine Arctic. But curiously, although the A5 used the Ilulissat Declaration both to assert the sufficiency of the law of the sea regime and to stake out their “unique” position as stewards responsible for the Arctic Ocean, the Arctic Council has promoted the law of the sea regime in more concrete ways than the A5. It is precisely in the role of highlighting rather than enforcing, of serving as a venue for discussion of interests of all eight states, that the Arctic Council can also allow the A5 to focus on interests that are legitimately theirs. This is all the more paradoxical because the A8, acting as the Arctic Council, do not engage in any legally binding activity per se, even though they have now used the Arctic Council as a forum to negotiate legally binding instruments among themselves. Instead, the Arctic Council has traditionally simply assessed, reported on and urged changes to the state of governance and the environment. The Arctic Council leaves concrete steps to the individual member states acting on their own (with the authority of the Arctic Council behind them). In this way, the Arctic Council can also rely increasingly on the marine expertise of the A5 as it undergoes the institutional changes set in motion at the 2011 Nuuk Ministerial. Conclusions The emerging regional regime for the marine Arctic in some ways mirrors, in some ways expands upon, the global regime for the law of the sea. The LOS Convention anchors both the global and regional regimes. The IMO plays an equally important role at both levels, and has the potential to support effective Arcticspecific measures such as the Polar Code and the designation of special areas for marine protection. Arctic states are learning to better coordinate their interactions with the IMO. They can apply these lessons in their interactions through the Arctic Council with other multilateral conventions that have special relevance to the Arctic, such as the CBD. The CBD is just one of the instruments from which the principles and approaches of PAME’s AMSP are based: “sustainable development, precaution, polluter pays, integrated management and an ecosystem-based approach;” others include the Rio Declaration and Agenda 21, the WSSD Johannesburg Plan of Implementation “and the Arctic Council’s founding documents.”112 As such, these principles go beyond those found in the LOS Convention but may be considered relevant to, if not part of, the core global law of the sea regime applicable regionally in the Arctic. Coordination with other bodies and with the instruments that comprise the emerging regime for the marine Arctic is a role the Arctic Council is well placed to assume. This role would allow the Arctic Council to help focus the attention of

112 AMSP, 8.

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this diverse array of instruments and those who implement them (compared to the Antarctic specific regime) on the issues most important to the Arctic. Studying an enhanced inter-treaty coordinating role for the Arctic Council was not included in matters that the Arctic Council ministers asked the TFII to report on at the 2013 Ministerial. An improved communications policy was, however, and could be expanded to include communication with other institutions.113 Steps could include better coordination between member states in individual forums that are part of the global law of the sea regime such as the IMO, and by entering into targeted MOUs with certain of its current observers.114 Clarifying the relationship between the Arctic Council and the Arctic Ocean coastal states matters perhaps most of all for the continued viability of the role of the PPs. If the A5 somehow preempt the A8 as the only forum for Arctic marine matters, rather than being viewed as a regional regime that interacts productively with the Arctic Council, the A5 will also preempt the influence of the PPs in marine issues.115 This places the question of whether the cooperation between the A5 should be grouped among the regional regimes for the marine Arctic in a new light, even though no further ministerial level meetings of the A5 have occurred since the March 2010 Chelsea meeting. To date, the Arctic Council has proved to be the most effective forum for the Arctic’s indigenous peoples to participate in a significant if not always effective way in decisions affecting the Arctic, marine and terrestrial. Future actions by the A5 with the potential to exclude the PPs from meaningful input on decisions affecting marine mammals, marine ecosystems and other components of the marine Arctic are problematic, notwithstanding the historical exclusion of indigenous peoples from international fisheries management arrangements. The Arctic Council is well aware of the need to involve non-Arctic states in its activities, as evidenced by the report of its TFII anticipated for the 2013 Ministerial. That task force has skillfully taken the fact that the A5 and the A8 share certain concerns about how, and how far, to expand the circle of Arctic Council observers, and used it to highlight where the A5 and A8 stand together. In the Nuuk Observer Rules that the Council adopted in 2011, one factor in evaluating candidates for observer status is the extent to which the candidates “Recognize that an extensive legal framework applies to the Arctic Ocean including,

113 ‘Communication and Outreach Guidelines’, adopted at the March 2011 SAOs Meeting (see Report of the March 2011 SAOs Meeting, 3). 114 Possible organizations from among current observers: International Union for the Conservation of Nature (IUCN); Nordic Council; Nordic Environment Finance Corporation (NEFCO); North Atlantic Marine Mammal Commission (NAMMCO); United Nations Development Program (UNDP); and UNEP. 115 See Molenaar, note 28 at 574, for a discussion of PPs’ objection to being excluded from the negotiation of the Arctic SAR Agreement and resolution of the issue through their involvement in national negotiating delegations.



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notably, the Law of the Sea, and that this framework provides a solid foundation for responsible management of this ocean.”116 This language appears verbatim in the Ilulissat Declaration of the A5, that “an extensive international legal framework applies to the Arctic Ocean” and is reflected quite directly in other portions of the Ilulissat Declaration, e.g. that the law of the sea provides for important rights and obligations in the Arctic Ocean, and that there “no need to develop a comprehensive international legal regime to govern the Arctic Ocean.” What the Ilulissat Declaration failed to acknowledge, and what might be asserted by all eight states is that they recognize the special stewardship position of the A8 for the Arctic and of the A5 for the Arctic Ocean. Collective efforts of the A5 and A8 to prove that they are adequately fulfilling obligations under the global regime for the law of the sea will be the best response to claims by nonArctic states that their legitimate interests in the region are not being met. Each of these steps will confirm what already exists: an emerging regime for the marine Arctic under the stewardship of the eight Arctic states.

116 Note 30.

CHAPTER four

The outer limits of the continental shelf in the polar regions Alex G. Oude Elferink

Introduction If the continental margin of a coastal state extends beyond 200 nautical miles,1 the coastal state is required to establish the outer limits of the continental shelf in accordance with article 76(4) to (9) of the LOS Convention.2 These complex formulae in the first place require a coastal state to gather data concerning the geology and geomorphology of the continental margin. The coastal state needs such data to make a submission to the Commission on the Limits of the Continental Shelf (CLCS). After consideration of the submission, the Commission is to issue recommendations to the coastal state. Article 76(8) of the Convention provides that outer limits established on the basis of the recommendations of the Commission shall be final and binding. The implementation of article 76 is one of the major current efforts in maritime boundary making. The CLCS started its work in 1997 and it is expected that the Commission will still take a couple of decades to deal with all submissions that will be made to it. Both polar regions have extensive areas of continental shelf beyond 200 nautical miles. The present chapter first provides a brief overview of the obligations of states in relation to the definition of the continental shelf under article 76.3 Next, it looks at how the CLCS and the Meeting of States Parties to the Convention (SPLOS)

1 All references to beyond 200 nautical miles or the 200-nautical-mile limit are to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. 2 United Nations Convention on the Law of the Sea; 1833 UNTS 396. 3 The present chapter is in part based on A.G. Oude Elferink “The continental shelf in the polar regions: Cold war or black-letter law?” (2009) XL Netherlands Yearbook of International Law, 121–181. I have not maintained the structure of that significantly longer article because it does not fit the common format of the present project. I would like to thank Bart Post for his assistance in researching developments in respect of the implementation of article 76 in the polar regions after the completion of this article.

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have given further content to the rules contained in the LOS Convention. After that, the chapter focuses on the polar regions. First of all, regional aspects of the implementation of article 76 are considered. After that, the chapter looks at the cooperation between the states concerned in such issues as the gathering of data and the delimitation of bilateral boundaries. A final section before the conclusions discusses a number of issues that have come up in the consideration of the submissions of Australia, Norway and the Russian Federation by the CLCS.4 Due to constraints of space, the present chapter only provides some background information on article 76 of the LOS Convention, the CLCS and the particularities of the legal regime of Antarctica. Additional background information is to be found in the article I published in 2010 and the extensive literature on these topics. The latter topic is also discussed in chapter 2 of the present volume. This chapter adopts the following definition of the polar regions. In the case of Antarctica, the focus is on the continental shelf of the Antarctic continent and that of a number of subantarctic islands. The latter islands are not covered by the Antarctic Treaty, but their continental shelf extends into its area of application. As far as the Arctic is concerned, the chapter looks at the continental shelf of the five Arctic Ocean coastal states (Canada, Denmark/Greenland, Norway, the Russian Federation and the United States) and the Norwegian Sea, which involves Denmark/Greenland, Iceland and Norway. Other areas of continental shelf of all these states are located well south of the Arctic circle.5 The LOS Convention The extent of the continental shelf is defined in the LOS Convention, the 1958 Convention on the Continental Shelf6 and customary international law. Most states are at present Parties to the LOS Convention. This concerns all states with a territorial claim in Antarctica and all coastal states in the Arctic, with the exception of the United States. The basic obligations of States Parties to the LOS Convention in relation to the definition of the continental shelf are clear. They are required to make a submission to the CLCS on the outer limits of their continental shelf within 10 years of becoming a Party to the LOS Convention.7 The Commission is to issue recommendations on these outer limits and if the 4 Information on submissions and reactions of other states on submissions and documents of the CLCS are available at the Commission’s website . 5 Maps depicting outer limits as submitted to the CLCS and contained in the recommendations of the CLCS are available on the website mentioned in the previous footnote. For an overview of the situation in the polar regions in 2009 see the figures in Oude Elferink, note 3 at 180–181. 6 499 UNTS 311. 7 LOS Convention, art. 76(8) and Annex II, art. 4.

the outer limits of the continental shelf in the polar regions 63 coastal state agrees to them it shall establish final and binding outer limits on their basis.8 The United States is in a different position. Not being a Party to the LOS Convention, it does not have the right to make a submission to the CLCS.9 The substantive rules applicable to the determination of the outer limit the continental shelf of the United States may be those contained in the LOS Convention. The United States is a party to the Convention on the Continental Shelf, but it is likely that the provisions on the outer limit of the shelf contained in its article 1 have been modified by customary international law. The United States has taken the position that it “has exercised and shall continue to exercise jurisdiction over its continental shelf in accordance with and to the full extent permitted by international law as reflected in Article 76, paragraphs (1), (2) and (3)” of the LOS Convention.10 The reference to article 76(2), which refers to paragraphs 4 to 6 of article 76, implies that the United States accepts all the substantive provisions of article 76 as customary international law. The United States is probably right in this respect. These provisions are widely accepted by the international community at large, no state seems to have persistently objected to them and there does not seem be another rule that might reflect customary international law on this matter. This state of affairs implies that the United States could establish the outer limits of it continental shelf without going through the process involving the CLCS. This might seem to be an advantage. However, these outer limits may not necessarily attract the same amount of international recognition as they would if based on recommendations of the CLCS. Apart from the United States, for which the clock is not yet running, the 10-year deadline for making the initial submission to the CLCS has not yet expired for Canada and Denmark/Greenland. Canada has until November 2013 to do so and Denmark until November 2014. All other coastal states in the Arctic and the Antarctic claimant states and states with subantarctic islands with a continental shelf extending into the Antarctic Treaty Area have taken action to comply with their obligation to submit information to the CLCS.11 This compliance is in no way extraordinary. All States Parties to the LOS Convention have done so. The CLCS has issued recommendations that allow the establishment of final and binding limits in accordance with article 76(8) to one Arctic coastal state,

8 Ibid., art. 76(8). 9 See e.g. Committee on legal issues of the outer continental shelf, “Second Report” in Report of the Seventy-Second Conference; Toronto 2006 (International Law Association: London, 2006), 215–249 at 239–240. 10 United States Policy Governing the Continental Shelf of the United States of America. The policy statement was attached to a Memorandum from Assistant Secretary John D. Negroponte to Deputy Legal Adviser Elizabeth Verville of 17 November 1987 (State Department File No. 0140-0428); reproduced in J.A. Roach and R.W. Smith Excessive Maritime Claims (U.S. Naval War College International Law Studies; Vol. 66, 1994) 125. 11 See below for further details.

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Norway, and Australia in relation to among others its subantarctic islands of Heard and MacDonald. The article 76-process is much less advanced for other parts of the outer limits of the continental shelf in the polar regions, just as in other regions. The absence of final and binding limits might raise the question of what legal regime applies to the continental shelf beyond 200 nautical miles in the meantime. Is a coastal state entitled to exercise rights over this part of the continental shelf before final and binding limits have been established? I have dealt with this question elsewhere and concluded that in the absence of final and binding limits coastal states are entitled to determine the extent of their continental shelf in accordance with the substantive provisions of article 76 of the LOS Convention and to exercise their rights as coastal states in this area.12 On the other hand, other states are not obliged to accept the outer limits a coastal state has defined unilaterally if they consider that they are not in accordance with the substantive provisions of article 76 and also need not accept the exercise of jurisdiction by the coastal state in an area they consider to be beyond the outer limits resulting from the application of article76.13 In the light of the views of the Arctic Ocean coastal states on the extent of their continental shelf this finding implies that most of the seabed and subsoil of the Arctic Ocean and adjacent seas beyond 200 nautical miles is at present subject to the regime of the continental shelf. In the Antarctic there remain much larger areas of seabed beyond the outer limits of the continental shelf. In view of the regime established by the Antarctic Treaty System (ATS), this finding does not have the same practical relevance for the Southern Ocean. The Role of the CLCS Since it started its work in 1997, the CLCS has developed an extensive practice in respect of the handling of submissions of coastal states. One significant aspect concerns the approach of the CLCS to land and maritime disputes in relation to submissions. Annex I to the Rules of Procedure of the Commission14 creates various options to deal with submissions involving such disputes. For instance, a coastal state can for the time being not make a submission for a part of its outer limit beyond 200 nautical miles notwithstanding the 10-year time limit of the 12 See A.G. Oude Elferink “The Regime for Marine Scientific Research in the Arctic: Implications of the Absence of Outer Limits of the Continental Shelf beyond 200 Nautical Miles” in: S. Wasum-Rainer, I. Winkelmann and K. Tiroch (eds.) Arctic Science, International Law and Climate Change; Legal Aspects of Marine Science in the Arctic Ocean (Springer Verlag, 2012), 189–208 at 192–201 and 204. See also below text at footnote 36. 13 Ibid., 204–205. 14 Rules of Procedure of the Commission on the Limits of the Continental Shelf (CLCS/40/ Rev.1 of 17 April 2008).

the outer limits of the continental shelf in the polar regions 65 Convention, two or more coastal states can make a joint submission, or a submission can for the time being not be considered by the Commission, implying that it will not issue recommendations. The procedure for dealing with land and maritime disputes that has been set up by the Commission has played a role in a large majority of submissions that have been made to date. In most cases this concerns questions related to the delimitation of continental shelf boundaries between neighboring states. In those instances, the general practice of the coastal state and other states concerned has been to point out the delimitation issues and accept that recommendations of the Commission on outer limits will be without prejudice to the delimitation of the continental shelf between neighboring states. Such non-prejudice is also guaranteed by article 76(10) of the Convention. This approach has also been followed by a number of states in relation to submissions in the polar regions.15 In the case of other land and maritime disputes, other states in a number of cases have not given their consent to the consideration of a submission by the CLCS. This procedure has also been used by the Antarctic claimant states and other interested states to resolve a possible conflict concerning the compatibility of the obligations of states under the Antarctic Treaty16 and the LOS Convention. Thus far, the Commission has received 65 submissions and issued recommendations on 18 submissions. It will take the CLCS a considerable time to deal with the remainder of these submissions. In all, it may take the Commission a couple of decades to deal with all submissions that will be lodged to it. Submissions are handled in accordance with the date of lodgment. Three of the five coastal states in the Arctic, Canada and Denmark and the United States, if it becomes a party, will consequently have to join at the end of the existing queue. The Russian Federation is to make a new or revised submission to the Commission as a result of the Commission’s recommendations to it. The Rules of Procedure of the Commission do not indicate how the Commission will queue new or revised submissions resulting from recommendations to the coastal state to do so. The provision on the queuing of submissions contained in Rule 51 suggests that they would be queued after the last submission in the line. However, the Commission has decided that revised submissions would be considered on a priority basis, notwithstanding the queue.17 It is not clear whether the CLCS will apply this same approach to new submissions. This issue might be circumvented by referring to a new submission as a revised submission. However, if the CLCS would like to make a distinction in respect of the queuing of new and revised submissions, it would be competent to make the determination which of the two it has before it itself.

15 See further below. 16 402 UNTS 71. 17 CLCS/68 of 17 September 2010, para. 57.

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As far as the Antarctic region is concerned, the workload of the Commission does not pose an issue. The Commission has already issued recommendations in relation to Australia’s subantarctic islands and the claimant states and other interested states have accepted that for the time being the outer limit of the continental shelf of the Antarctic continental and adjacent islands will not be considered by the CLCS. The same applies to the subantarctic islands that are in dispute between Argentina and the United Kingdom. The SPLOS The SPLOS is charged with electing the members to the CLCS. The Convention does not accord it a role in relation to the implementation of article 76, but from time to time issues concerning the CLCS have been brought up at the SPLOS. For instance, during the 22nd SPLOS “[s]ome delegations noted that the mandate of the Commission was limited to applying article 76 and annex II of the Convention. The mandate did not extend to matters of interpretation of the provisions contained therein.”18 It was also pointed out that the Commission should inform the SPLOS about the issues that it was facing in considering submissions in order to allow the SPLOS to determine whether these concerned issues of a technical or legal nature.19 The Chairperson of the CLCS at the meeting rejected this suggestion, observing that it was within the competence of the Commission to interpret article 76 and Annex II for the fulfillment of its mandate.20 Whether the SPLOS would be able to play a more active role in this respect in any case is doubtful, in view of the resistance among the States Parties against attributing the SPLOS a role in respect of substantive issues.21 The SPLOS has played an active role in dealing with the extension of the time limit for making submissions. Originally, the time limit for many states was 16 November 2004. This posed a problem for in particular developing states. The time limit was extended to 13 May 2009 by a decision of the SPLOS in 2001.22

18 SPLOS/251 of 11 July 2011, para. 72. 19 Ibid. 20 Ibid., para. 79; see also CLCS/72 of 16 September 2011, paras. 37–40 and CLCS/74 of 30 April 2012, para. 52. 21 See further T. Treves, “The General Assembly and the Meeting of States Parties in the Implementation of the LOS Convention”, in A.G. Oude Elferink (ed.) Stability and Change in the Law of the Sea: The Role of the LOS Convention (Martinus Nijhoff Publishers, Leiden: 2005) 55–74, especially at 61–65 and 68–73; A.G. Oude Elferink, “Reviewing the Implementation of the LOS Convention: the Role of the United Nations General Assembly and the Meeting of States Parties”, in A.G. Oude Elferink and D.R. Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Martinus Nijhoff Publishers, Leiden: 2004) 295–312 at 306–310. 22 SPLOS/72 of 29 May 2001.

the outer limits of the continental shelf in the polar regions 67 Before this decision was taken, Antarctic claimant states had also entertained whether to use the SPLOS or other options under the LOS Convention to shelve the implementation of article 76 in relation to the continental shelf for Antarctica. After the 2001 decision of SPLOS, the consultations between the claimant states were continued and now became focused on attaining the coordination of their positions in approaching the Commission. A decision of the SPLOS dealing specifically with Antarctica for a number of reasons was not opportune. In the first place this would lead to the treatment of a question with implications for the legal regime of Antarctica outside the ATS, which is considered to be undesirable by the states participating therein. Secondly, as was observed above certain states oppose attempts to accord the SPLOS a role in respect of substantive questions in respect of the Convention. The workload of the Commission and the backlog in the consideration of submissions has also been on the agenda of the SPLOS. In 2010, the Meeting adopted a decision in which it requested the Commission to consider a number of measures to address this matter,23 and it is kept under review by the meeting.24 Regional aspects concerning the implementation of article 76 The Arctic The five coastal states of the Arctic Ocean addressed the implementation of article 76 in the Ilulissat Declaration that was adopted on 28 May 2008.25 The Declaration can be seen as a response to media coverage of the surveying expeditions to gather the data that is needed in connection with the implementation of article 76. Media oftentimes suggest that there is a unregulated race for the resources of the Arctic Ocean. The Ilulissat Declaration emphasizes the importance of international cooperation and the role of coastal states in that cooperation. The Declaration also stresses the significance of international law: Notably, the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf [. . .]. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims.

The Ilulissat Declaration confirms that the coastal states of the Arctic Ocean consider that the law of the sea is applicable to the area without exception.26 At the

23 See SPLOS/216 of 23 June 2010, para. 1. 24 See e.g. SPLOS/251 of 11 July 2012, paras. 69–71. 25 Available at . 26 See also T. Winkler “Danish Interests in the Arctic” in M.H. Nordquist, J.N. Moore and T.H. Heidar (eds.) Changes in the Arctic Environment and the Law of the Sea (Martinus Nijhoff Publishers, Leiden: 2010), 477–486 at 482.

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time the Ilulissat Declaration was adopted there was some discussion whether it should not also involve the other three states of the Arctic Council—Finland, Iceland and Sweden.27 The Arctic Council might have constituted an appropriate forum to deal with some of the issues addressed by the Declaration. As the media coverage of continental shelf claims was one of the main reasons leading up to the Declaration, such involvement was less obvious. Finland and Sweden do not have a continental shelf beyond 200 nautical miles and Iceland’s continental shelf in the Arctic is located in the Norwegian Sea, not the Arctic Ocean. That area was not drawing any media attention and Iceland had already reached an agreement with Norway and Denmark/The Faroe Islands how to deal with their overlapping claims in 2006.28 Representatives of the five Arctic Ocean coastal states have been meeting on an annual basis in the last couple of years.29 In 2007, scientists from Canada, Denmark and the Russian Federation met to discuss scientific and technical issues in relation to the continental shelf beyond 200 nautical miles in the Arctic Ocean. Subsequently, the meetings have been expanded to include scientists of Norway and the United States and representatives of the ministries of foreign affairs of the 5 states. Apart from discussing research findings the meetings have also been used to discuss common concerns. This also has included discussion by the international legal experts of issues relevant to the preparation of submissions. A further meeting to be hosted by the United States was planned for November 2012.30 The meetings do not seem to have gone beyond the exchange of information.31 Apart from the Ilulissat Declaration and these annual meetings, the implementation of article 76 has mostly led to cooperation between coastal states on a bilateral basis. On the one hand, this concerns cooperation in respect of data gathering. On the other hand, coastal states have coordinated their positions in respect of areas of overlapping continental shelf to ensure that the existence of pending bilateral delimitations would not become an obstacle to the consideration of submissions by the Commission.32

27 See T. Pedersen “Debates over the Role of the Arctic Council” (2012) 43 Ocean Development & International Law 146–156 at 150–151. 28 On this latter point see further below. 29 This account is based on the information contained in E. Riddell-Dixon “Meeting the Deadline: Canada’s Arctic Submission to the Commission on the Limits of the Continental Shelf” 2011 (42) Ocean Development and International Law 368–382 at 374. 30 Foreign Affairs and International Trade Canada “International Collaboration” (available at ). 31 This conclusion is also based on interviews with persons who have been directly involved in this process. 32 On both these issues see further below.

the outer limits of the continental shelf in the polar regions 69 Antarctica Regional cooperation has played a much more significant role in relation to the continental shelf of the Antarctic continent and adjacent islands. States with a territorial claim in Antarctica were faced with the question how they might at the same time meet their obligations under article 76 of LOS Convention and article IV of the Antarctic Treaty. Article 76 provides for a procedure which results in final and binding outer limits of the continental shelf and the implementation of article 76 might be considered as being contrary to article IV(2), which provides that states shall make no new claims or enlarge existing claims to territorial sovereignty in Antarctica. A failure to make a submission to the CLCS would be contrary to the obligations of coastal states under the LOS Convention. As far as can be ascertained, the implementation of article 76 in Antarctica was first discussed by the claimant states in Lima, where they attended the 23rd meeting of the Consultative Parties to the Antarctic Treaty (ATCM) in May and June 1999.33 These consultations throughout their duration in large part remained limited to the claimant states. The only other states which from time to time were involved and probably also exerted a certain influence were the United States and the Russian Federation. The claimant states did consider a number of solutions which would have required the involvement of a larger number of states. Initially, a number of options were considered, including a resolution of the ATCM or a solution in the framework of the LOS Convention. Eventually, it was agreed to make use of the procedures that had been adopted by the CLCS to deal with submissions involving land and maritime disputes.34 At the end of 2004 the claimant states reached a compromise for a common approach, which envisaged two possibilities. A state could either submit information to the CLCS or refrain from doing so. In both cases the submitting state would employ common elements, which had been agreed upon in the consultations between the claimant states. If a state would opt to submit information, it would at the same time request the Commission not to take any action in respect of the submission concerning Antarctica. All Antarctic claimant states have by now submitted information to implement article 76 in respect of their Antarctic territories on the basis of the agreed common approach. Argentina, Australia and Norway have submitted information, while requesting the Commission to not consider their submission for the moment. France, New Zealand and the United Kingdom have indicated, while

33 This section is in part based on information from persons who have been directly involved in these discussions. For an analysis of this issue see also M.T. Infante Caffi ‟Evolving Scenarios: Antarctica and the Continental Shelf” in R. Casado Raigón and G. Cataldi L’évolution et l’état actuel du droit international de la mer: Mélanges de droit de la mer offerts à Daniel Vignes (Bruylant, Brussels: 2009) 461–479. 34 On these procedures see above.

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making a submission for other territories, that for the moment they are refraining from making a submission concerning their continental shelf in Antarctica. Chile has not yet made a submission to the Commission, but has used the opportunity to submit preliminary information.35 Chile’s preliminary information, making reference to the common elements agreed upon between the claimant states, indicates that Chile will inform the Commission which option—making a submission or refraining from doing so—it will choose for the Chilean Antarctic Territory in the future. In communicating information to the CLCS, all of the Antarctic claimant states have used similar wording. They recall the principles and objectives shared by the Antarctic Treaty and the LOS Convention and the importance of the ATS and the Convention working in harmony. Reference is also made to the circumstances of the area south of 60° S, the special legal and political status of Antarctica under the Antarctic Treaty and that appurtenant to Antarctica there are areas of continental shelf whose extent still remains to be determined. A number of states have reacted to the communications of the Antarctic claimant states to the CLCS. These other states welcome the approach that the claimant states have taken in respect of the implementation of article 76. There are also differences between the notes. The differences between these reactions contribute to the impression that there was less coordination between them than between the claimant states. As a result of the approach to the implementation of article 76 by the Antarctic claimant states there for the time being will be no further action of the CLCS. After the Commission issued its recommendations on Australia’s submission in 2008, Australia in 2012 issued a proclamation on the outer limits of its continental shelf.36 In that connection it was observed that the proclamation did not define the outer limits of the Australian Antarctic Territory in the light of Australia’s request to the CLCS not to consider the data in respect of that limit.37 The Explanatory Memorandum to the proclamation specifies that this does not affect the legal status of this continental shelf. Australia has rights over this continental shelf as a matter of international law and Australian law irrespective of the proclamation of its outer limits.38 Apart from the common approach to the implementation of article 76 by the claimant states, there also has been cooperation between claimant states in respect of their individual submissions. Certain claimant states have coordinated their positions in respect of areas of overlapping continental shelf to ensure that

35 This procedure is set out in SPLOS/183 of 20 June 2008. 36 Seas and Submerged Lands (Limits of Continental Shelf) Proclamation 2012. 37 Explanatory Statement; Seas and Submerged Lands (Limits of Continental Shelf) Proclamation 2012. 38 Ibid.

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the submission of information would be without prejudice to the delimitation of boundaries between the states concerned.39 Cooperation in Relation to the Preparation of Submissions The Arctic A number of Arctic coastal states have collaborated in the gathering of data in connection with the preparation of their submissions. This in particular concerns Canada and Denmark and Canada and the United States.40 Denmark has also embarked on technical cooperation with Canada and the Russian Federation on data collection41 and has also been collaborating with researchers from Sweden.42 Russian scientists have collaborated with American colleagues during at least one expedition to gather data in 2011.43 A number of reasons may explain this cooperation. Weather and ice-conditions in the Arctic make data gathering much more difficult and costly than in other regions, making cooperation an attractive option. Secondly, the same geophysical features may be relevant for defining the outer limit of the continental shelf of two states. For instance, in the Arctic Ocean for Canada and Denmark this definition depends most of all on the question whether the Alpha-Mendeleyev Ridge and the Lomonosov Ridge are a natural prolongation of their land territory and whether these ridges are submarine ridges or natural components of the continental margin. In the former case the continental shelf would stop at 350 nautical miles in the latter case it could extend beyond that distance.44 An equidistance line between Canada and Denmark runs along the Lomonosov Ridge, while the Alpha-Mendeleyev Ridge lies north of Ellesmere. Both states collaborate in the gathering of information in this area.45 In the joint Lomonosov Ridge—Test of Appurtenance (LORITA) project both states not only collaborated in the gathering of data, but also in the

39 On both these issues see further below. 40 See e.g. Riddell-Dixon, note 29 at 371–374. 41 Winkler, note 26 at 484. This article also provides a good overview of the Danish continental shelf project generally. 42 See e.g. C. Marcussen LOMROG III 2012, 4. Feltrapport (available at ). 43 See Obnavlennaia zaiavka Rossii v Komissiiu OON po granitsam kontinental’nogo shel’fa v Arktike (Renewed submission of Russian to the Commission of the UN on limits of the continental shelf in the Arctic (available at ). 44 LOS Convention, art. 76(6). 45 See for instance “Danish-Canadian Bathymetric and Gravimetric Survey of the Arctic Ocean” of 17 March 2009 (available at ).

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interpretation of that data. It is considered that this collaboration will reinforce the case of both states.46 This also points to a further consideration for cooperation. Agreement in the scientific community on the interpretation of data may reinforce the position of a state in arguing its case before the CLCS. Canada and Denmark through a joint task force have also been exploring the issue of coordinating their submissions to the CLCS.47 According to Riddell-Dixon Canada and Denmark could either consider to prepare a joint submission for the area to the north of Greenland and Ellesmere, insert a common chapter in their individual submissions or prepare entirely separate submissions.48 In view of the fact that the continental shelf of Canada and Denmark in part is defined by the same geophysical features they obviously have an interest in assuring that they will be submitting consistent information to the CLCS. Riddell-Dixon has also suggested that a joint submission by Canada and the United States might be a possibility.49 This option might in any case be problematic if the United States would not be a party to the LOS Convention at the time a joint submission would be lodged. The Commission has indicated that in the case of a joint submission “each coastal State has to establish its own set of criteria for the feet of the continental slope, applied formulas, constraints and respective outer limits”.50 In other words, the Commission does not accept an argument that states making a joint submission may so to speak borrow each other’s article 76 points and present one undifferentiated outer limit. In that case it might be argued that it might be sufficient that only one state is a Party to the Convention. In view of the Commission’s approach to joint submissions, the United States will have to make its own case. As a non-Party to the Convention it is excluded from making a submission. Antarctica There seems to have been limited cooperation in respect of data gathering between Antarctic claimant states.51 There may be a couple of factors explain46 See further E. Riddell-Dixon, “Canada and Arctic Politics: The Continental Shelf Extension”, 39 (2008) Ocean Development and International Law 343–359 at 350; Foreign Affairs and International Trade Canada, “International Collaboration; Collaboration with Denmark” (available at ). 47 See Inspector General Office, Evaluation Division Foreign Affairs and International Trade Canada Canada’s Extended Continental Shelf Program (Second Formative Evaluation) Final Report (October 2011) (available at ) 23–24). 48 Riddell-Dixon, note 29 at 375. 49 Ibid. 50 CLCS/56 of 4 October 2007, para. 28. 51 But see chapter 2 of this volume on the United Kingdom reportedly proposing a joint submission with Argentina in relation to territories in dispute between the two parties.

the outer limits of the continental shelf in the polar regions 73 ing why there has been more cooperation in the Arctic in this respect. One may be logistical. Although climate conditions in Antarctica are harsh, ice conditions make it comparably much easier to carry out surveys than in the Arctic, where survey operations may be made difficult or impossible because of pack ice. Another reason may be the extent of overlapping areas of continental shelf. These are much more extensive in the Arctic than in Antarctica. Approaches to Overlapping Entitlements The continental shelf of most states overlaps with that of neighboring states and coastal states have been required to address this issue in making their submissions to the CLCS. States have adopted a number of different approaches in this respect. In some instances, a boundary agreement had already been concluded before states made a submission to the CLCS. For instance, the Russian Federation and the United States delimited their continental shelf boundary beyond 200 nautical miles through an agreement from 1990. The Russian Federation has applied this boundary in defining the outer limits of its continental shelf in its 2001 submission in the Bering Sea and the Arctic Ocean. Denmark/The Faroe Islands, Iceland and Norway agreed on a delimitation of the continental shelf beyond 200 nautical miles in the southern part of the Norwegian Sea in 2006.52 This is one of the few examples of the conclusion of a delimitation agreement in connection with the preparation of submissions to the CLCS. The Agreed minutes divide the area by provisional lines, and provide that the area will be divided differently if the consideration of the submission of one or more of the parties by the CLCS indicates that it does not have a sufficiently large entitlement to justify the share of the continental shelf it has been attributed under the Minutes. Denmark/The Faroe Islands, Iceland and Norway have made separate submissions for the area of overlapping continental shelf entitlements in the Norwegian Sea. There does not seem to have been much, if any, cooperation in preparing the submissions. One likely explanation is that Norway was well ahead of the two other states in making its submission, namely in 2006, while the other two states did so in 2009. In the absence of agreement on the delimitation of the continental shelf states, in making a submission, in general define the outer limits of their continental shelf 52 Agreed minutes on the delimitation of the continental shelf beyond 200 nautical miles between the Faroe Islands, Iceland and Norway in the southern part of the Banana Hole of the North East Atlantic of 20 September 2006 (available at ). For an analysis of the Agreed minutes see R.E. Fife “Denmark/The Faroes-Iceland-Norway; Report Number 9–26” in D.A. Colson and R.W. Smith (eds.) Inter-national Maritime Boundaries Vol. VI (Martinus Nijhoff Publishers, Leiden: 2011) 4532–4545.

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in accordance with their own view on the location of a boundary with neighboring states or extend it beyond that line. The Russian Federation in making its submission in 2001 applied sector lines to define a provisional outer limit in relation to Canada, Denmark and Norway. It is likely that the Russian Federation had consulted with all of its neighbors beforehand.53 Norway and the Russian Federation prior to the submission by the Russian Federation54 agreed that in their submission they would employ the line which they consider should be the bilateral boundary as the outer limit of the continental shelf. Both states in reaction to the executive summary of the submission of the other state to the Commission indicated that they accepted that the Commission would consider the submission and that the actions of the Commission shall be without prejudice to the delimitation of the continental shelf between Norway and the Russian Federation. Norway and the Russian Federation concluded an agreement on the delimitation of their continental shelf in 2010, after the Commission had issued recommendations to Norway’s submission on the area concerned. Canada and Denmark in reacting to the Russian submission referred to the lack of specific data that would allow a qualified assessment of the submission and indicated that the absence of comments did not imply agreement to or acquiescence in the submission.55 The Notes indicate that it is considered that any recommendations by the CLCS are without prejudice to the delimitation of the continental shelf of the Russian Federation with, respectively, Canada and Denmark. This approach allows the CLCS to issue recommendations without prejudice to the delimitation of boundaries between neighboring states. A similar approach to dealing with neighboring states has been adopted by Australia and Norway for their submissions in relation to their Antarctic territories. An exception in this regard is the continental shelf of Argentina. Norway in its submission does not take into account the potential continental shelf of Argentina and Argentina in the executive summary of its submission does not refer explicitly to boundaries with neighbouring states. Both the western and eastern limit of the Argentine Antarctic territory is located in an area that is also claimed by another state (respectively Chile and the United Kingdom). In both cases Argentina employs the meridian which defines the extent of its Antarctic territory as the lateral limit of the 200-nautical-mile zone of Argentina.56 The 53 See Pravitel’stvo Rossiiskoi Federatsii; Rasporiazhenie (Government of the Russian Federation; Decree) of 24 March 2000 No. 441-r, para. 3. 54 Note verbale of 20 March 2002 of the Permanent Mission of Norway to the United Nations to the Secretary-General of the United Nations; see also Pravitel’stvo Rossiiskoi Federatsii, note 53, para. 3. 55 Note Verbale No. 0145 of 18 January 2002 of the Permanent Mission of Canada to the United Nations to the Secretary-General of the United Nations; Note Verbale File no. 119.N.8 of 4 February 2002 of the Permanent Mission of Denmark to the United Nations to the Secretary-General of the United Nations. 56 See for instance, Outer limits of the Continental Shelf; Argentine Submission, Executive Summary, Figure 6.

the outer limits of the continental shelf in the polar regions 75 outer limit of the continental shelf beyond 200 nautical miles in the area of the eastern limit of the Argentine sector stops at the seaward extension of this eastern limit. The outer limit line subsequently follows the lateral limit up to its intersection with the 200-nautical-mile limit of Argentina. This part of the line is identified as “international limit”.57 Consideration of submissions by the CLCS The CLCS has thus far issued recommendations on three submissions in relation to the Arctic and Antarctica: that of the Russian Federation in relation to among others the Arctic Ocean and the Barents Sea, that of Norway in relation to the Norwegian Sea, the Barents Sea and the Arctic Ocean, and that of Australia in relation to among others its subantarctic islands of Heard and MacDonald. The Russian Federation In 2002, the Commission recommended the Russian Federation to make a revised submission for the Arctic Ocean based on the findings contained in the recommendations.58 It seems likely that the Commission in particular took issue with the role of the Alpha-Mendeleyev Ridge and the Lomonosov Ridge in establishing the outer limits of the continental shelf of the Russian Federation. The submitted outer limit of the continental shelf along the ridges extended beyond 350 nautical miles. In other words, the Russian Federation considered that they were not submarine ridges in the sense of article 76(6) of the Convention, in which case the outer limit of the continental shelf shall not exceed 350 nautical miles. The Commission may have concluded either that the submission pointed to the fact that the Alpha-Mendeleyev Ridge and the Lomonosov Ridge are submarine ridges in the sense of article 76(6) or that these ridges did not form a natural prolongation of the land territory of the Russian Federation. In the latter case they cannot contribute at all to the definition of the outer limit of the continental shelf.59 When the Russian Federation had made its submission to the CLCS, the United States had also commented on this aspect of the submission. Referring to scientific literature, the United States argued that the Alpha-Mendeleyev Ridge60 and the Lomonosov Ridge did not constitute a natural prolongation of the land

57 Ibid., p. 201. 58 See Oceans and Law of the Sea; Report of the Secretary-General; Addendum (A/57/57/ Add.1 of 8 October 2002), para. 41. 59 Both these views have been submitted in commentaries on the Russian submission and the Commission’s recommendations on it (see further Oude Elferink, note 3 at 151–152). 60 Letter of the Permanent Representative of the United States to the Under-Secretary for Legal Affairs, United Nations, 28 February 2002, Annex. The Alpha-Mendeleyev Ridge is also referred to as two separate ridges.

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territory but are separate features of the ocean floor. The United States proposed a further consideration and a broad debate before any recommendation would be made by the Commission.61 Interestingly, the United States subsequently has come around to a different view. As has been observed by Margaret Hayes: Our own study of the area, together with the submissions of countries and the Commission’s recommendations on proposed limits, are contributing to an evolving understanding of the law and science involved in delimiting the extended continental shelf.62

It is not known to what extent the comments of the United States on the Russian Federation’s submission played a role in its consideration by the CLCS. In the case of the subsequent submission by Brazil, the Commission explicitly instructed the subcommission dealing with the submission not to take the observations of the United States into account.63 This makes it likely that the United States’ commentary also did not have any (formal) role in the consideration of the submission of the Russian Federation.64 A recent Russian publication has been quite critical about the Commission’s 2002 recommendations, referring to them as being distinctly negative in character, tendentious and taking a hard position trying to narrow the Russian continental shelf as much as possible.65 This criticism seems somewhat curious as this same publication details that the knowledge about the geology of the Arctic has developed markedly in recent years and that this can be used to reinforce the submission of the Russian Federation and could also be used by Canada and Denmark to support their cases.66

61 Ibid. 62 Margaret F. Hayes “US Continental Shelf Policy” in M.H. Nordquist, J.N. Moore and T.H. Heidar (eds.) Changes in the Arctic Environment and the Law of the Sea (Martinus Nijhoff Publishers, Leiden: 2010), 469–476 at 475. 63 CLCS/42 of 14 September 2004, para. 17. 64 Interestingly, one Russian publication has observed that the Commission’s 2002 recommendations in respect of the Mendeleyev Ridge were “in full agreement with the note of the USA to the Commission” (N.P. Laverov et al. “Bazovaia model’ tekotnicheskogo razvitiia Arktiki kak osnova dlia podgotovki obnovlennoi zaiavki Rossii v Komissiiu OON na ustanovlenie vneshnei granitsy kontinental’nogo shel’fa (Basic model of the tectonic development of the Arctic as basis for the preparation of a renewed submission of Russia to the Commission of the UN for the determination of the outer limits of the continental shelf) 2012 No. 2 (6) Arktika 4–19 at 6. Another shorter article in English on this same topic is N. Laverov and L. Lobkovsky “Geodynamic model of the Arctic evolution and substantiation of submission to the UN Commission concerning the establishment of the outer limits of the [sic] Russia’s continental shelf in the Arctic” (2012 No. 2) The Arctic Herald 28–33. 65 Laverov et al., note 64 at 6. 66 Ibid., 17.

the outer limits of the continental shelf in the polar regions 77 Following the Commission’s recommendations, further research by the Russian Federation has been aimed at gathering additional geological and geomorphological data.67 This further data has been used by Russian scientists for developing a new model of the tectonic development of the Arctic. On the basis of this model it is considered possible to substantiate that the Alpha-Mendeleyev Ridge and the Lomonosov Ridge are part of the continental margin of the Eurasian and North American continents.68 This would allow the Russian Federation to submit the same outer limits extending to the area of the geographical North Pole as it did in 2002.69 The new model of the Arctic has been presented to representatives of the Russian, American, Canadian, and Danish agencies working on the submissions to the CLCS in 2010 and to two international conferences in 2011 and 2012.70 During a session of a joint coordination council of the Federal Agency on Mineral Resources and the Russian Academy of Sciences in March 2012 the model was accepted as a basis for an updated version of a Russian submission.71 According to a number of sources, the Russian Federation is expected to make a renewed submission to the Commission by 2014.72 Norway Norway made a submission in relation to the Norwegian Sea, Barents Sea and Arctic Ocean in 2006. One of the issues in relation to the Norwegian submission is the status of the Svalbard Archipelago. Norway has sovereignty over the archipelago. This has been recognized through the Spitsbergen Treaty.73 Apart from recognizing the sovereignty of Norway over the archipelago, the Treaty accords equal rights to the nationals of the other Parties in respect of particular economic activities. These provisions of the Treaty are applicable to the territory of Svalbard, including the territorial waters (article 3). Subsequently, the question has arisen if the Treaty has any implications for the maritime zones beyond the territorial sea, such as the continental shelf. Norway has taken the position that the Treaty is not applicable to the continental shelf and fishery zone of Svalbard, but this view is not generally accepted. Other states in general do seem to accept that the Treaty does not impose any restrictions on Norway as far as the

67 See R. Macnab, “Submarine Elevations and Ridges: Wild Cards in the Poker Game of UNCLOS Article 76”, 39 (2008) Ocean Development and International Law 223–234 at 226; ITAR-TASS “Russia to make to UN its stake to fix Arctic shelf limits” of 6 August 2007 reporting on remarks by a representative of the Ministry of Natural Resources of the Russian Federation; Laverov et al., note 64. 68 See Obnavlennaia zaiavka, note 44; Laverov et al., note 64 at 4–19 in particular at 17. 69 Laverov et al., note 64 at 17. 70 Obnavlennaia zaiavka, note 44. 71 Laverov and Lobkovsky, note 64 at 33. 72 See Obnavlennaia zaiavka, note 44; Laverov et al., note 64 at 4. 73 Treaty concerning the Archipelago of Spitsbergen of 9 February 1920 (2 LNTS 7).

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determination of the extent of maritime zones is concerned.74 In the executive summary of its submission Norway did not include any reference to the Spitsbergen Treaty. This implied that Norway took the view that the implementation of article 76 did not raise any questions in respect of the Treaty.75 The Russian Federation and Spain in a reaction to the submission of Norway mentioned the issue of the status of Svalbard.76 The Russian Federation also indicated that its reaction was without prejudice to its position in respect of the Spitsbergen Treaty and accordingly to the regime of the maritime zones around Svalbard. Spain indicated that it did not intend to pronounce itself on the competence of Norway to establish new maritime zones from Svalbard, but wished to reiterate that the Treaty’s provisions concerning equal access were also applicable to the continental shelf. In a reaction to the Spanish note verbale Norway indicated that the issues raised by Spain did not affect in any manner the interpretation or application of the rules contained in article 76 of and Annex II to the LOS Convention.77 The Commission adopted recommendations in respect of the submission of Norway on 27 March 2009. A general observation by the Commission on its recommendations to Norway is pertinent to the Spitsbergen Treaty: The Recommendations of the Commission only deal with issues related to article 76 and Annex II to the Convention and are without prejudice to matters relating to delimitation between States, or application of other parts of the Convention or any other treaties.78

The recommendations of the CLCS on a number of points diverge to some extent from Norway’s submission. For instance, the subcommission dealing with the Norwegian submission had indicated that the data provided by Norway in the Arctic Ocean in one case did not sufficiently prove the location of the foot

74 For an exhaustive discussion of these questions see G. Ulfstein, The Svalbard Treaty; From Terra Nullius to Norwegian Sovereignty (Scandinavian University Press, Oslo: 1995). For a more recent discussion see D.H. Anderson, “The status under international law of the maritime areas around Svalbard”, 40 (2009) Ocean Development and International Law 373–384. 75 See also Rules of Procedure, note 14 at Annex I, para. 2. 76 Note No. 82/n Note Verbale of 21 February 2007 of the Permanent Mission of the Russian Federation to the United Nations to the Secretary-General of the United Nations; Note Verbale of 3 March 2007 of the Permanent Mission of Spain to the United Nations to the Secretary-General of the United Nations. 77 Note Verbale of 28 March 2007 of the Permanent Mission of Norway to the United Nations to the Secretary-General of the United Nations. 78 Summary of the recommendations of the Commission on the Limits of the Continental Shelf with regard to the submission made by Norway in respect of areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006 (adopted by the Commission on 27 March 2009 with amendments), section III, para. 8.

the outer limits of the continental shelf in the polar regions 79 of the continental slope and recommended Norway to employ a more landward point. Norway subsequently submitted additional information, which resulted in a more seaward foot of slope point. This new point also led to a more seaward location of the outer limit of the continental shelf.79 The summary of the recommendations of the Commission indicates that the Commission will in principle work towards recommendations through a dialogue with the submitting state. Norway has amended or supplemented the original submission on more than one occasion or proposed different points.80 Norway has indicated that it will comply with the recommendations of the Commission. The Norwegian Minister of Foreign Affairs has declared that “[t]he recommendations provide a basis on which Norway can establish the limits of its continental shelf in the High North”.81 Subantarctic Islands The submissions of coastal states to the Commission indicate that in three cases the outer limits of the continental shelf of subantarctic islands in part extend into the Antarctic Treaty area.82 This concerns the submission of Australia in respect of Heard Island and the McDonald Islands on the one hand and Macquarie Island on the other,83 and of the United Kingdom in respect of South Georgia and the South Sandwich Islands. The submission of information in respect of that part of the outer limits of the continental shelf of these islands is in accordance with the general approach in respect of these islands under the ATS. It can furthermore be noted that no state, as far as is known, has made observations in respect of this aspect of these submissions of Australia and the United Kingdom.84 The consideration of these submissions by the Commission nonetheless raises questions concerning the interaction with the ATS. In the case of Australia, the outer limit of the continental shelf of Heard Island and the McDonald Islands extends to the 200-nautical-mile limit of the Antarctic

79 Ibid., 11–16. 80 In the case of the Norwegian Sea this has led to a landward shift of the outer limit which was initially submitted (see ibid., paras. 79–80). 81 Extent of Norway’s continental shelf in the High North clarified (Press release 15.04.2009 No. 025/09 of the Ministry of Foreign Affairs of Norway) (available at www.regjeringen .no/en/dep/ud/press/News/2009/shelf_clarified.html?id=554718). 82 On this issue see also A.D. Hemmings and T. Stephens “Reconciling Regional and Global Dispensations: the Implications of Sub-Antarctic Extended Continental Shelf Penetration of the Antarctic Treaty Area” 6 (2008) The New Zealand yearbook of international law 273–291. 83 Macquarie Island is not further considered here as its continental shelf does not overlap with the continental shelf of territory south of 60° S. 84 None of the notes of states lodged with the Secretary-General in reaction to the publication of the executive summary of these submissions raises this issue.

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continent.85 The United Kingdom has taken the same approach in its submission in respect of South Georgia and the South Sandwich Islands. The continental shelf beyond 200 nautical miles of all of these islands also overlaps with the continental shelf beyond 200 nautical miles of Antarctica. In the case of Australia this is indicated by a comparison of the outer limit of the continental shelf of Heard Island and the McDonald Islands and the outer limit of the continental shelf of the Australian Antarctic Territory contained in Australia’s submission.86 In the case of the United Kingdom this appears from a comparison of the submission of the United Kingdom to that of Argentina. The continental shelf beyond 200 nautical miles of the Argentine Antarctic territory overlaps with that of the islands. These overlaps raise the question how the establishment of the outer limits of these subantarctic islands in accordance with article 76 relates to the obligations of states under the Antarctic Treaty. In its recommendations to Australia, the Commission in respect of the continental shelf of Heard Island and the McDonald Islands for the area south of 60° S accepted the fixed outer limit points submitted by Australia, except for the two points (732a and 960a), which are located on the 200-nautical-mile limit of the Australian Antarctic Territory. The Commission’s explanation for not accepting these two points is that its recommendations “are without prejudice to matters related to other treaties”.87 The Commission recommended Australia to proceed to establish the outer limits in accordance with its recommendations. The Commission’s approach to fixed points 732a and 960a might seem to be somewhat puzzling. These points do not extend the outer limit of the continental shelf into the 200-nautical-mile zone of the Antarctic continent and, as such, they would not affect that maritime zone. What is more, as was observed above, fixed points 732a and 960a are not the only points which overlap with the maritime zones of Antarctica. Fixed points 665 to 732 of the outer limit of the continental

85 As is suggested by the numbering of the fixed outer limit points of the continental shelf of Heard Island and the McDonald Islands contained in Australia’s submission, Australia has also determined the outer limit of the continental shelf of the islands within 200 nautical miles of Antarctica. Points with numbers between 732a and 960a—the numbers of the fixed points, which are located on the 200-nautical-mile limit of Antarctica—are not included in the submission. The summary of the recommendations of the Commission to Australia confirms that these points had indeed been established by Australia (Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) with regard to the submission made by Australia on 15 November 2004; Recommendations adopted by the Commission on 9 April 2008, 12, Figure C.2). 86 See also A. Serdy, “Towards Certainty of Seabed Jurisdiction beyond 200 Nautical Miles from the Territorial Sea Baseline: Australia’s Submission to the Commission on the Limits of the Continental Shelf”, 36 (2005) Ocean Development and International Law 201–217 at 210. 87 Summary of the Recommendations, note 85 at para. 53.

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shelf of Heard Island and the McDonald Islands are within the outer limit of the continental shelf beyond 200 nautical miles of the continental shelf of the Australian Antarctic Territory submitted by Australia.88 This raises the question why the Commission has made this distinction between points 732a and 960a and points 665 to 732. If defining points on the 200-nautical-mile limit was considered to be prejudicial to other treaties, this must a fortiori be the case for points lying inside the continental shelf of Antarctica. Australia has defined the outer limits of the continental shelf of Heard and MacDonald Island in 2012. Interestingly, this includes points 732a and 960a and other points on the 200-nautical-mile limit on which the Commission did not issue recommendations.89 Consequently, this part of the outer limits of the continental shelf has not been established on the basis of the recommendations of the Commission. As article 76(8) of the LOS Convention indicates outer limits established on the basis of the recommendations shall be final and binding. The Australian approach could be explained by a number of reasons. It could be argued that there is no need to receive recommendations on points that are located at the 200-nautical-mile limit. Moreover, if it is considered that the continental shelf beyond 200 nautical miles of a territory stops where it meets the 200-nautical-mile limit of another territory, it is appropriate to not fix that limit permanently, but allow it to shift if the 200-nautical-mile limit changes due to shifts in the baselines. Another question is whether the establishment of the outer limits of the continental shelf of Heard Island and the McDonald Islands by Australia, to the extent that it overlaps with the continental shelf of Antarctica, would be incompatible with the obligations of Australia under the ATS. This matter is not explicitly addressed in the Antarctic Treaty. It could be argued that the establishment of such outer limits would be contrary to the object and purpose of the Antarctic Treaty, which, as is indicated by the preamble, is inter alia intended to maintain the status quo in the Antarctic Treaty area and maintain it for mankind. However, this view does not find support in later practice in respect of subantarctic islands in the framework of the ATS. In connection with the adoption of Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA)90 it was explicitly acknowledged that it did not apply to the continental shelf of the subantarctic islands.91 However, the interpretative statement does not address the delimitation between those shelf areas and that of the Antarctic continent. In defining the outer limits of the continental shelf of Heard Islands and the 88 See also Serdy, note 86 at 210. 89 Points 732a and 960a of contained in the Australian submission correspond to points HMI-CS-905 and HMI-CS-627 contained in Schedule 3 of the Proclamation. 90 (1988) 27 ILM 868. 91 A similar approach has been adopted in relation to the 200-nautical-mile zones of subantarctic islands that overlap with the area of application of CCAMLR.

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MacDonald Islands Australia effectively has limited the potential continental shelf of the Antarctic continent. It could be argued that this affects the status quo established by the Antarctic Treaty.92 The preceding remarks also apply to the continental shelf of South Georgia and the South Sandwich Islands. In view of the territorial dispute between the United Kingdom and Argentina it is unlikely that the Commission in this case in the foreseeable future will adopt recommendations which will allow the United Kingdom to establish permanent limits for this area. Argentina has indicated that in view of the dispute it considers that the Commission should not consider the submission and that it would object to the Commission making recommendations.93 Conclusions The central research question of the project is concerned with determining the interactions between global and regional regimes in the field of the law of the sea and to also take into consideration how overarching global institutional frameworks created by the LOS Convention apply. For the current chapter, the global regime is provided by article 76 of the LOS Convention and two of the Convention’s institutions, the CLCS and to a lesser extent the SPLOS, are playing a role in the implementation of article 76. There can be no doubt that article 76 provides the framework for determining the extent of continental shelf entitlements of coastal states. This not only applies to the States Parties to the LOS Convention, but also for the United States, the only state in the Arctic that is not a Party to the Convention. Not being a Party to the Convention, the United States is not entitled to make a submission to the CLCS, even if it were to do this jointly with a State Party to the Convention. The CLCS has a central role to play in the implementation of article 76. In the case of Antarctica, the Rules of Procedure of the Commission have shaped the approach of the Antarctic claimant states in working out a solution that prevents the implementation of article 76 being perceived to upset the agreement to disagree over the status of the Antarctic territory contained in the Antarctic Treaty. This solution has been worked out between the claimant states with involvement of the Russian Federation and the United States. Other interested states have played a much more limited role in working out this solution. This is not really surprising. The implementation of article 76 first of all concerns coastal states. Third states generally have a limited role to play in this process. If a claimant state would have wanted to pursue a submission to the CLCS, other interested states could have used the Commission’s procedures to block its consideration. 92 Cf. Hemmings and Stephens, note 82 at 289–290. 93 Letter of 20 August 2009 of the Permanent Representative of Argentina to the United Nations to the Secretary-General of the United Nations.

the outer limits of the continental shelf in the polar regions 83 The CLCS in a number of cases has refrained from considering a submission in a case in which a third state indicated that a sovereignty dispute existed. Third states have a significant role to play if a submission is concerned with areas of overlapping entitlements as this will eventually require agreement on a bilateral boundary. The LOS Convention deals with that matter in article 76(10) and article 9 of its Annex II and the Commission has addressed it in its Rules of Procedure. These mechanisms have provided a satisfactory basis for states to address this matter in making submissions to the CLCS. The solution that has been adopted by the Antarctic claimant states has at least for the time being prevented a conflict over the implementation of article 76. Submissions that have been made in relation to Antarctic territories will not be considered and other claimant states have been able to postpone their submission for an indefinite period of time. The discussion concerning the continental shelf of Australia’s subantarctic islands of Heard and MacDonald suggests that Australia’s approach might raise some questions concerning the relationship between the implementation of article 76 and the ATS and the relation between Australia’s definition of the outer limits and the recommendations of the CLCS. The role of the SPLOS in relation to article 76 has been limited. The Meeting has taken decisions on the time limit for making submissions to the Commission and considered options to deal with the backlog in the work of the Commission. There is general agreement that the Meeting is competent to deal with such procedural aspects of the work of the CLCS. It is unlikely that the Meeting would get involved in the consideration of substantive issues related to the implementation of article 76. Although some states have suggested this from time to time, there is significant opposition to such a role for the SPLOS. The CLCS has taken the position that it has the competence to deal with matters of interpretation in relation to article 76. In the Arctic, the implementation of article 76 has led to some action at the regional level by the five coastal states of the central Arctic Ocean. Most significant is the Ilulissat Declaration of 2008, which confirmed that the law of the sea provides the legal framework for determining the outer limits of the continental shelf. The five Arctic Ocean coastal states have also consulted with each other on a regular basis concerning matters of common concern in relation to the continental shelf beyond 200 nautical miles. The implementation of article 76 in the Norwegian Sea has remained distinct from that in the Arctic Ocean. The three coastal states had already worked out an arrangement on the delimitation of their overlapping entitlements before 2008 and each has made a submission for the area concerned. This has not involved cooperation with the other states concerned. The implementation of article 76 is far from complete in the Arctic Ocean. Only Norway has received recommendations of the Commission that allow it to establish final and binding limits. The Russian Federation is still to make a new submission after the CLCS advised it to make a new submission in 2002. The

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other states have not yet made a submission and once they have done so they will have to wait a considerable time before the Commission will be able deal with them. One of the main issues that remains to be decided is the classification of the Lomonosov and Alpha-Mendeleyev Ridges. Reports indicate that the three coastal states concerned—Canada, Denmark/Greenland and the Russian Federation—consider that the available data shows that the ridges are part of their continental shelf in their entirety. The consideration of the Commission of a number of submissions, including the 2001 submission of the Russian Federation, indicates that it need not always agree with the views of the coastal state. The preparation of these submissions also highlights the importance of science for article 76 and that developing scientific understanding may significantly impact on its implementation.

CHAPTER five

Marine Protected Areas in the Arctic Suzanne Lalonde*

Introduction The dramatic loss of Arctic sea ice is perhaps the most obvious and headline grabbing manifestation of climate change in the North but as the authors of a 2008 WWF report warned, the region is experiencing an unprecedented suite of ecological changes which will “drastically alter the fundamental conditions of life in the Arctic.”1 As the ice melts, opportunities are expanding to exploit the Arctic’s oil and gas reserves, precious metals, fish stocks and maritime routes. Increased access and development will inevitably generate “system-wide environmental impacts”2 and will pose novel management challenges for the Arctic states and other interested stakeholders. Identifying with precision the extent of the marine area affected by such dramatic changes and resulting challenges is no easy task as definitions of the Arctic vary considerably according to the indicators used. In light of this reality, the authors of the Arctic Council’s Conservation of Arctic Flora and Fauna (CAFF) working group 2001 assessment, the first truly circumpolar overview of Arctic biodiversity,3 ultimately adopted an ‘Arctic conservation boundary’ shown in Figure 1.2 in chapter 1 of this volume. Marine protected areas (MPAs) are increasingly recognized as a valuable complement to traditional management strategies to protect the biological diversity and integrity of the world’s oceans and seas, including in the Arctic. The

* Research for this chapter was facilitated by funding from the ArcticNet network in Canada. The author is grateful for comments by Erik J. Molenaar on earlier versions of the chapter. 1 R. Huebert and B.B. Yeager A New Sea: The Need for a Regional Agreement on Management and Conservation of the Arctic Marine Environment (2008; available at ) 3. 2 Ibidem. 3 Arctic Flora and Fauna: Status and Conservation (CAFF: 2001; available at ).

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International Union for Conservation of Nature (IUCN) defines a protected area as a “clearly defined geographical space, recognized, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.”4 To help clarify which marine sites could qualify as protected areas, IUCN adopted in 1999 a specific definition for MPAs: Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment.5

The term MPA is generic and is therefore used to refer to all marine sites that meet the general protected area definition, regardless of purpose, design, management approach, or title (marine reserve, sanctuary, natural monument, marine park, etc.). Given the prevalence of the term MPA and the different meanings and connotations attached to it, various typologies of marine management areas have been developed to try and dispel confusion. The typology developed by IUCN is now internationally recognized and facilitates a global system for defining, recording and classifying protected areas and the wide variety of aims they can embody.6 Both IUCN and the CBD’s Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) recommend that a range of types of management areas be considered when designing a protected areas system: no-take areas, community-managed areas, fishery management areas, seasonal and temporary management areas, whale sanctuaries, etc.7 “Multiple-use MPA zoning [. . .] provides a way to accommodate multiple users, balancing the trade-offs between sustainable use and conservation objectives for effective management.”8 The two

4 Guidelines for applying protected area management categories (IUCN/WCPA: 2008; available at ). The CBD (Convention on Biological Diversity of 22 May 1992 (1760 UNTS 143)) provides a slightly different definition in its art. 2: “Protected area means a geographically defined area, which is designated or regulated and managed to achieve specific conservation objectives.” 5 Res. 17.38 (1988) adopted by the General Assembly of the IUCN and reconfirmed in Res. 19.46 (1994; available at ). The CBD also has a specific definition for an MPA but uses the broader concept of ‘Marine and Coastal Protected Area’ (MCPA) that includes areas lying adjacent to the ocean without necessarily including intertidal or subtidal water. 6 See the IUCN’s Global Protected Areas Program at . 7 Ibid., 19–20. 8 Establishing Marine Protected Area Networks—Making It Happen (IUCN/WCPA, NOAA and the Nature Conservancy, Washington: 2008; available, inter alia, at ) 6.



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Table 5.1: IUCN Protected Area Management Categories9 Cat

Definition—area managed mainly for:

I

a. Science or as a Strict Nature Reserve b. Wilderness protection Ecosystem protection and recreation; often called a National Park Conservation of specific natural features; often called a National Monument Conservation through management intervention (e.g. habitat / species management areas) Land / seascape conservation and recreation Sustainable use of natural ecosystems (e.g. multiple-use protected area)

II III IV V VI

lead organizations (IUCN/CBD) also emphasize that protected areas should not be seen as isolated entities, but as part of the broader ecosystem approach to conservation, implemented across an entire seascape. The Arctic Council’s 2004 Arctic Marine Strategic Plan (AMSP)10 is founded on such a holistic approach which is described as the key to achieving the four goals of the Plan: to reduce and prevent pollution, conserve marine biodiversity and ecosystem functions, promote the health and prosperity of all Arctic inhabitants and advance sustainable marine resource use. Developed by the Council’s Protection of the Arctic Marine Environment (PAME) working group, the Plan emphasizes that for an integrated ecosystem-based management approach to be effective, development activities must be coordinated “in a way that minimizes their impact on the environment and integrates thinking across environmental, socio-economic, political and sectoral realms.”11 MPAs, because of the flexibility in their design, can promote ocean stewardship that is at once representative, comprehensive and balanced and for this reason, have become an essential element in the ecosystem management toolbox.12 A number of global instruments exist which encourage and even require state parties to designate and manage vulnerable marine areas under their jurisdiction as protected areas. While none of these agreements specifically target the Arctic region, they can and are relied upon to help protect the polar marine environment. The next section of the chapter, entitled ‘International Sources for

9 Summary provided by National and Regional Networks of Marine Protected Areas: A Review of Progress (UNEP/WCMC: 2008; available at ). 10 Of 2004 (available at ) at 3. 11 Ibid., 8–9. 12 The expression is borrowed from F. Côté and J. Finney Marine Protected Areas: An Essential Element of the Fisheries Management Toolbox (2006; available at ).

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the Creation of MPAs and National Implementation Mechanisms’ will identify in its first subsection the principal international instruments promoting the creation of MPAs and will briefly consider the extent to which the eight Arctic states have adhered to them and operationalized those commitments. As the Arctic states are expected to fulfill their duties under the various international regimes through national implementation mechanisms, the second subsection will draw a broad outline of key policy instruments at the national level. This overview will provide some insights into the national priorities and ongoing domestic initiatives of the circumpolar states. While the second section of the chapter will reveal an impressive commitment on the part of the A8 to the protection of their Arctic maritime zones, it will be argued in the subsequent section, entitled ‘MPAs at the Regional Level’ that a strictly national approach—with its differing strategies, priorities and geographically limited scope—can never hope to achieve a holistic management of the Arctic seascape, including its areas beyond national jurisdiction (ABNJ). This section will therefore posit that regional processes hold the best promise of converting noble global principles and rules into concrete action and of overcoming a patchwork of inconsistent and therefore largely ineffective national initiatives. The first subsection will take stock of what marine governance institutions presently exist at the circumpolar level and the second subsection will then consider sub-regional mechanisms, with a particular emphasis on the successful regime which has emerged in the North-East Atlantic on the strength of the OSPAR Convention.13 Finally, the section entitled ‘Conclusion’ will attempt to identify and evaluate the elements which have contributed to the creation of an effective network of MPAs in the OSPAR region and evaluate the potential for a similar outcome at the circumpolar level. International Sources for the Creation of MPAs and National Implementation Mechanisms International Regimes Mandating or Promoting the Creation of MPAs Environmental protection efforts in the Arctic are based on a complex array of international treaties and programs involving both hard and soft-law mechanisms. As a starting point to our analysis of MPAs in the Arctic region, it is important to consider the rate of participation of the eight Arctic states to these various international legal instruments and the extent to which the mechanisms created have been operationalized. For as another recent study emphasizes, this assessment will reveal the presence or absence of “convergent and mutual

13 Convention for the Protection of the Marine Environment of the North-East Atlantic of 22 September 1992 (amended and updated text available at ).



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expectations on the accepted international principles, norms, rules and procedures of the international regimes”14 among the circumpolar states. Among the Arctic eight, only the United States is a party to the Western Hemisphere Convention15 which invites Governments to explore the possibility of establishing national parks, national reserves, nature monuments and strict wilderness reserves “in their territories”.16 To date, no Arctic MPA appears to have been established off the coast of Alaska on the basis of this Convention. A more significant instrument from the same period is the ICRW,17 adopted with a view to ensuring “proper and effective conservation and development of whale stocks”18 through the designation of whale sanctuaries. While all of the Arctic states are parties to the ICRW save for Canada, no whale sanctuaries have been designated in Arctic waters. All of the eight Arctic countries are party to the Ramsar Convention19 which seeks to preserve wetland habitat for migratory waterbirds through the designation of dedicated sites. The Convention uses a broad definition of ‘wetlands’ which includes estuaries, deltas, tidal flats and near-shore marine areas. On its 2001 Map No. 41, CAFF identifies approximately 11 Ramsar sites within its Arctic conservation boundary but only four are coastal.20 On this specific issue, the authors of a 2008 United Nations Environment Programme (UNEP) Progress Report on National and Regional Networks of MPAs comment that efforts are currently underway to increase the representation of marine habitats in the network of Ramsar Sites.21 The World Heritage Convention,22 to which all eight of the Arctic states are a party, also promotes the creation of MPAs. Article 2 of the Convention requires parties to protect “geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or 14 A. Chircop et al. “Governance of Marine Protected Areas in East Africa: A Comparative Study of Mozambique, South Africa, and Tanzania” (2010) 41 Ocean Development and International Law 1–33 at 3. 15 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere of 12 October 1940 (161 UNTS 193). 16 This expression in art. II of the Convention appears to cover both the internal waters and the territorial sea of the parties. 17 International Convention for the Regulation of Whaling of 2 December 1946 (161 UNTS 72). 18 Preamble. 19 Convention on Wetlands of International Importance of 2 February 1971 (996 UNTS 245). 20 CAFF Map No. 41—Ramsar Sites, World Heritage Sites, and Important Bird Areas in the Arctic (2001; available at ). 21 UNEP/WCMC, note 7 at 19. 22 Convention for the Protection of the World Cultural and Natural Heritage of 16 November 1972 (1037 UNTS 151).

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conservation.” As the World Heritage Marine Programme reveals,23 marine areas are poorly represented, with only 46 sites designated out of over 962 listed properties worldwide.24 Only three natural properties within the Arctic conservation boundary and with a marine component have been registered on the World Heritage List: Russia’s Wrangel Island Reserve; the Icelandic volcanic island Surtsey which includes a small surrounding maritime area; and the Ilulissat Icefjord on the west coast of Greenland. An international meeting of experts organized by the United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Centre and the Nordic World Heritage Foundation concluded in 2007 that “the Arctic Region is one of the gaps on the World Heritage List” and that “future joint efforts are required to recognize the unique heritage of the region.”25 UNESCO’s Man and the Biosphere (MaB) programme, an intergovernmental scientific programme, was also launched in 1972. A key component of the MaB programme is the designation of biosphere reserves to promote “sustainable development based on local community efforts and sound science”.26 The designation process, from the selection of sites to the creation of regulatory mechanisms and the subsequent monitoring of activities, remains entirely under the sovereign jurisdiction of the participating states. All of the Arctic states have established MaB national committees and Canada, Finland, Russia and the United States have designated MaB reserves. However, and though there are approximately 610 biosphere reserves in 117 states,27 only one of the MaB reserves is both situated within CAFF’s Arctic conservation boundary and has a marine component: Alaska’s Aleutian Islands. MARPOL,28 with its six technical annexes, is the main international treaty covering the prevention of pollution by ships from operational or accidental causes. In regards to the protection of sensitive marine ecosystems, MARPOL provides for the designation of “special areas” within which higher standards can apply for discharges of oily residues (Annex I), noxious liquid substances (Annex II), sewage (Annex IV) and garbage (Annex V). MARPOL also regulates Emission Control Areas for certain pollutants released atmospherically (Annex VI). Although all of 23 World Heritage Marine Programme website at . 24 UNESCO/World Heritage Convention website at . 25 M. Rössler and C. Fuchs World Heritage and the Arctic (2008; available at ). 26 Information available at . 27 UNESCO website at . 28 International Convention for the Prevention of Pollution from Ships of 2 November 1973, as modified by the Protocol of 1 June 1978 and the Protocol of 26 September 1997; as regularly amended.



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the Arctic states are parties to MARPOL, their subscription to optional Annexes III–VI is slightly more varied. All eight states have accepted Annex III and V; however Iceland and the United States are not parties to Annex IV and Iceland is also not a party to Annex VI.29 In November 2001, the Assembly of the International Maritime Organization (IMO) adopted new Guidelines for the Designation of Special Areas under MARPOL.30 These Guidelines aim to provide guidance to parties in the formulation and submission of applications for the designation of special areas under the various Annexes. In accordance with paragraph 2.2, a special area may encompass the maritime zones of several states, or even an entire enclosed or semi-enclosed sea, including marine areas beyond national jurisdiction.31 Although twenty-four MARPOL special areas have now been designated under the various technical annexes, none of them are within the CAFF Arctic conservation boundary. IMO also provides guidance on another related concept: the designation of particularly sensitive sea areas (PSSAs). Paragraph 1.2 of the PSSA Guidelines32 define a PSSA as “an area that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic or scientific attributes where such attributes may be vulnerable to damage by international shipping activities.” As Tanaka emphasizes, “with respect to spatial scope, PSSAs may cover all marine spaces including the high seas.”33 Only the IMO can designate areas as PSSAs; consequently, members wishing to make a proposal must submit an application to the IMO’s Marine Environment Protection Committee (MEPC) on the basis of the three criteria identified in the Guidelines: (i) ecological criteria; (ii) social, cultural and economic criteria; and (iii) scientific and educational criteria.34 Every application for a PSSA designation must also identify an associated protective measure (APM) to be approved by the appropriate IMO body. There are at present 14 PSSAs in the world and none of them are in the Arctic.

29 Information available at . 30 ‘Guidelines for the Designation of Special Areas under MARPOL 73/78’ as set out in Annex 1 to IMO Res. A.927(22), of 2001, to be revoked in 2013 by means of an IMO Assembly Res. (see doc. MEPC 63/23/Add.1, of 14 March 2012, Annex 27). 31 N. Oral “Protection of Vulnerable Marine Ecosystems in Areas Beyond National Jurisdiction: Can International Law Meet the Challenge?” in A. Strati, M. Gavouneli and N. Skourtos (eds) Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After (Martinus Nijhoff Publishers, Leiden: 2006) 85–108 at 104. 32 Res. A. 982(24), of 1 December 2005, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’ (IMO doc. A24/Res.982, of 6 February 2006). 33 Y. Tanaka A Dual Approach to Ocean Governance (Ashgate, Farnham: 2008) 176. 34 PSSA Guidelines, para. 4.

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A more general framework for the regulation of the world’s oceans was put into place with the adoption of the LOS Convention.35 The 162 parties to the Convention include all of the Arctic states save for the United States.36 Article 192 of the Convention, the lead-off article under Part XII dedicated to the ‘Protection and Preservation of the Marine Environment’ stipulates unequivocally: “States have the obligation to protect and preserve the marine environment.” The various responsibilities and prerogatives of states are then fleshed out in a series of provisions, including the possibility under article 211(6) for coastal states to adopt special measures addressing vessel source pollution in designated areas of their exclusive economic zone (EEZ). To date, there has been no “clearly defined area” designated in the Arctic or elsewhere in the world specifically on the basis of this provision of the LOS Convention and therefore the effectiveness of this mechanism remains to be tested.37 The adoption of the CBD38 in 1992 also marked a departure from issue-specific agreements and served to better define the duties weighing on individual states with respect to the conservation of biological diversity and the fair use of its resources.39 Canada, Denmark, Finland, Iceland, Norway, Russia and Sweden are all parties to the CBD; the United States, while a signatory, has not ratified the Convention. The CBD contains a strong emphasis on the establishment of protected areas.40 Article 8 imposes on contracting parties the duty to establish “as far as possible and as appropriate,” a system of protected areas or areas where special measures need to be taken to conserve biological diversity. These protected areas, as described in Annex I, can be designated to help conserve certain species and communities which are threatened as well as ecosystems and habitats containing high or unique biodiversity.

35 United Nations Convention on the Law of the Sea of 10 December 1982 (1833 UNTS 396). 36 It must be emphasized that since its adoption in 1982, it has been the policy of the United States’ Government to treat most of the provisions of the LOS Convention as a reflection of existing customary international rules. 37 R. Lagoni “Marine Protected Areas in the Exclusive Economic Zone” in Andree Kirchner (ed.) International Maritime Environmental Law: Institutions, Implementation and Innovations (Kluwer Law International, The Hague: 2003) 157–167 at 162. It could however be argued that the IMO’s PSSA concept implements art. 211(6) of the LOS Convention. Indeed, para. 7.5.2.3(iii) of the PSSA Guidelines specifically refers to art. 211(6) as a possible legal basis for an associated protective measure, which is a mandatory requirement in the PSSA designation process. 38 Note 4. 39 C. de Roo et al. Background Paper: Environmental Governance in the Marine Arctic (2008; available at ). 40 D. Rothwell “Global environmental protection instruments and the polar marine environment” in D. Vidas (ed.) Protecting the Polar Marine Environment—Law and Policy for Pollution Prevention (Cambridge University Press, Cambridge: 2007) 57–77 at 72–73.



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The CBD website provides information on the implementation of its provisions by parties. For example, the country profile for Norway, under the section ‘Initiatives in Protected Areas’ reveals that “[i]n the Svalbard archipelago 63% of the area has been protected, including important areas for biodiversity such as wetlands, arctic botanical areas and seabird colonies.”41 While important initiatives have been undertaken at the national level by all seven of the Arctic state parties, it is clear from the country profiles that efforts in regards to protecting marine areas lag behind terrestrial measures. If membership in the various international regimes identified is in fact an important indicator of the convergent and mutual expectations of the eight circumpolar countries in regards to ocean governance in the Arctic, then the state practice detailed above reveals a fairly cohesive vision, with the notable exceptions of Canada’s absence from the ICRW and the United States’ lack of participation in the LOS Convention and CBD. Each party is of course expected “to exercise its rights and duties within those regimes by implementing their protection and conservation-related commitments at the national level”.42 And indeed, each of the eight Arctic states has adopted legislation and devised national strategies for the protection of their marine environment. MPA Initiatives at the National Level In attempting to draw a general picture of the national initiatives adopted by the A8, the MPA Global Programme, part of the Sea Around Us Project funded by the PEW Charitable Trusts and hosted by the University of British Columbia’s Fisheries Centre, is a valuable source of information. Their website43 publishes an explicitly marine-focused database of the world’s protected areas that have some intertidal and/or subtidal component. However, as the website readily acknowledges, the database is a work in progress and further, that “[w]hile every effort has been made to ensure the accuracy of the data, this cannot be guaranteed.” Some omissions have in fact been discovered: for instance, Canada’s 2010 Tarium Niryutait MPA in the Beaufort area does not appear in the MPA Global database nor does Greenland’s Ilulissat Icefjord world heritage site. It therefore remains a challenge to present an accurate picture of MPAs in the Arctic and the brief account below does not make any claim to exhaustivity. Canada’s Federal Marine Protected Areas Strategy was adopted in 2005 “to help address the declining health of [Canada’s] oceans”.44 The intent of the

41 See the CBD website at . 42 Chircop et al., note 14 at 7. 43 MPA Global database at . 44 Canada’s Federal Marine Protected Areas Strategy (Fisheries and Oceans Canada Communications Branch: 2005; available at ).

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Strategy is to clarify the roles and responsibilities of federal departments and agencies with MPA mandates, namely Fisheries and Oceans Canada, Environment Canada and the Parks Canada Agency, to establish a more systematic approach to MPA planning and designation as well as to enhance cooperation in the management and monitoring of MPAs. The Canadian Strategy also lists as an important objective establishing an effective link between Canada’s network of MPAs and continental as well as global networks. Using the geographical search terms ‘Arctic or Arctic Sea’, the MPA Global database indicates 25 MPAs for Canada within the Arctic conservation boundary. It must be noted that 16 of those MPAs are migratory bird sanctuaries and therefore have a fairly restricted aim in terms of ecosystem based management. The largest Canadian MPA is Quttinirpaaq, an IUCN category II National Park Reserve, at the northern tip of Ellesmere Island. The total site area is 38,148 km2 with the marine portion accounting for 2,670 km2. Canada’s most recent Arctic MPA, Tarium Niryutait (2010), consists of three individual areas which cover approximately 1,800 km2 of the Mackenzie Delta and Estuary in the Beaufort Sea. Its central aim is to “conserve and protect the biological resources within the MPA, including beluga whales” but the Canadian regulations specifically preserve the harvesting traditions of the Inuvialuit People.45 Finland recently updated its National Biodiversity Strategy and Action Plan (NBSAP 2012–2020) which includes targets for protected areas by 2020: “network of protected areas and other means that support protected area systems, guide use of areas and safeguard biodiversity and cover at least [. . .] 10% of [Finland’s] coastal and marine area.”46 In the National Action Plan, it is stated that “Finland aims to form a comprehensive, effectively managed, ecologically functional and representative protected areas network that is part of the global protected areas system.”47 The MPA Global database lists 17 Finnish MPAs none of which are in the CAFF Arctic conservation boundary since Finland is not an Arctic coastal state. However, Finland’s established track record will no doubt influence its approach to protecting and conserving Arctic ecosystems, particularly in ABNJ. The Government of Greenland has the overall management responsibility over several sectors including the right of self-determination over biodiversity and living resources. The main legislation for the protection of species, ecosystems and protected areas in Greenland is the Nature Conservation Act of Greenland.48

45 See the website of the Beaufort Sea Partnership at . 46 S.-K. Juvonen Implementation of the Convention on Biological Diversity’s Programme of Work on Protected Areas (Natural Heritage Services, Ministry of the Environment of Finland and Natural Heritage Services of Metsähallitus: 2012; available at ) 1 (unnumbered page). 47 Ibidem. 48 Landstings Act No. 29 of 18 December 2003 on the Protection of Nature.



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The Greenlandic Government’s approach is heavily focused on species conservation but also on the sustainable exploitation of living and natural resources. Executive orders are used under the framework of the Act to designate protected areas. According to the MPA Global database, Greenland has established two MPAs: the first, the Greenland National Park (IUCN Cat II) established on the east coast in 1974, is massive, covering a total area of 956,700 km2 with 110,600 km2 of marine area. The other, Melville Bay, a category Ib natural reserve on the opposite coast covers 7,957 km2 with a marine component totaling 5,193 km2. In terms of sheer MPA size, Greenland is certainly a leader: indeed, the Protected Planet website49 indicates that Greenland has 32% more marine area protected than the global average.50 The Ilulissat Icefjord world heritage site, absent from the MPA Global database, though covering an impressive 40,240 hectares, adds limited marine coverage as it is restricted to the sea mouth of Sermeq Kujalleq, one of the few glaciers through which the Greenland ice cap reaches the sea.51 According to statistics compiled by the European Environment Agency, almost 100 sites with a total area of 2 million hectares are protected in Iceland under the terms of its Nature Conservation Act and other secondary legislation.52 As provided in article 1 of the Icelandic Nature Conservation Act,53 which extends to Iceland’s territorial waters and EEZ, its purpose is to “direct the interaction of humans with their environment so that it harms neither the biosphere nor the geosphere, nor pollutes the air, sea or water”. Article 1 also specifies that the Act seeks to encourage the conservation and utilization of resources based on sustainable development. The MPA Global database lists eight MPAs for Iceland, all on the west coast. Two are strict nature reserves (IUCN cat Ia) protected from all but light human use, but they cover a limited area (0.020 km2 and 2.700 km2 respectively). Four habitat or species management reserves have been created (cat IV) providing for continuous protection and varying levels of active intervention. The last two Icelandic MPAs are category V protected seascapes, allowing for a higher level of sustainable interaction with surrounding communities. The official website of the Norwegian Fisheries Department54 summarizes Norway’s National Plan for Marine Protected Areas which is founded on two key legislative acts: the Marine Resources Act and the Nature Diversity Act. The aim 49 Launched in October 2010 at the CBD Conference of the Parties (COP) 10 in Nagoya, Japan, Protected Planet is a new initiative to showcase the World Database on Protected Areas that uses the ‘citizen science’ approach to engage the public in getting and improving information on Protected Areas. 50 Protected Planet website at . 51 UNESCO World Heritage List at . 52 Nature Protection and Biodiversity (Iceland) (European Environment Agency: 2010; available at ). 53 Of 1999 (available at ). 54 Available at .

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of the Plan is “to protect a representative selection of nature types, habitats and landscapes in the Norwegian marine environments” and also “to safeguard the base of renewable marine resources”55. An important guiding principle in the planning process for the various MPAs is the balance to be achieved “between conservation and exploitation, meaning that there should be no more restrictions than are considered necessary to achieve the purpose of the conservation measure”.56 The Svalbard Archipelago, itself designated as a tentative site for inclusion on the World Heritage List by the Norwegian Government in 2007,57 is home to a comprehensive and representative network of MPAs. The twelve marine sites have differing management objectives, ranging from four category Ia strict nature reserves (total marine area 56,189 km2), seven category II national parks and one plant protected area classified as an IUCN category IV protected area. Off the Norwegian mainland within the Arctic conservation boundary, six small MPAs have been established ranging from category Ia strict nature reserves with limited human use (three seabird reserves and one bog/mire reserve) to category V protected areas allowing for sustainable use of natural resources (two landscape protection areas). The ‘Maritime Doctrine of the Russian Federation 2020’, approved by Vladimir Putin on 27 July 2001, is the fundamental document defining the public policy of Russia in the field of maritime activities. The Doctrine is largely concerned with issues of sovereignty and hard security but under the section ‘Principles of national maritime policy’, the priorities identified include “the development of systems for monitoring the marine environment and coastal areas”.58 In Russia, different protected area types operate within different management systems: zapovedniks (strict scientific reserves) and national parks are managed directly from Moscow by the Directorate of PA Management within the Ministry of Natural Resources. However, as WWF Russia explains, “over the last two decades all other types of PAs have been in a constant management flux with management and funding responsibility shifting between agencies and levels of government.”59 The MPA Global database divides Russia’s protected areas into three distinct regions (Asia, Baltic Sea and Barents Sea) but only the first and the last regions

55 Ibidem. 56 Ibidem. 57 It is expected that the Svalbard submission will be considered by UNESCO’s World Heritage Committee in 2014 (cf. T. Pettersen “Norway Wants Svalbard on UNESCO’s World Heritage List” (3 April 2009) Barents Observer; available at ). 58 Available at . 59 Y. Darman “Russian Protected Areas” in web Digest on the Amur-Heilong River Basin (available at ).



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have areas within the CAFF Arctic conservation boundary. In the Barents Sea region, the website lists five Russian MPAs within the CAFF boundary. Franz Josef Land, a category IV ‘special purpose reserve’ and perhaps the most northerly of the Arctic MPAs at 81° North latitude, covers 26,000 km2 and is a direct beneficiary of Russia’s recent 650 million rubles Arctic clean-up program.60 The Russian Barents region also hosts one of the oldest Arctic MPAs: Kandalakshsky, a strictly protected nature reserve (cat Ia) established in 1932. In the Asia region, Russia has established nine MPAs, six of which are category Ia strictly protected nature reserves including the massive Wrangel Island protected area with 51,753 km2 of marine coverage. The other three Asian MPAs are special purpose reserves, classified as IUCN category IV protected areas and are thus focused on the conservation of a particular species or habitat. Sweden, while not an Arctic coastal state, has adopted a comprehensive environmental program61 which reflects its commitment to responsible marine governance. Its environmental policy is based on sixteen generational environmental quality objectives, including ‘A Balanced Marine Environment, Flourishing Coastal Areas and Archipelagos’. The MPA Global database lists 474 MPAs in Sweden. Although none of the Swedish MPAs are within the CAFF Arctic conservation boundary, their number attests to the importance which Sweden attaches to the conservation of dynamic, healthy and productive seas. This vision will undoubtedly guide the Swedish government in thinking about measures for the protection of areas beyond national jurisdiction in the Arctic Ocean. On 26 May 2000, President Clinton signed Executive Order 13158 entitled ‘Marine Protected Areas’ which called for an expanded and strengthened comprehensive system of MPAs “throughout the marine environment to enhance the conservation of our Nation’s natural and cultural marine heritage and the ecologically and economically sustainable use of the marine environment for future generations.”62 Today, the National Marine Protected Areas Center administers the ‘Framework for the National System of Marine Protected Areas of the United States of America’63 adopted in November 2008. The result of a multiyear development effort, the Framework provides “comprehensive national goals and flexible guidance for [. . .] how existing MPA sites, programs and stakeholders can

60 “The amount of 650 million rubles has been allocated for cleaning the Arctic in 2012” (2012; available at