It remains to be seen how Arctic States, in particular the A5, will move forward
once the ongoing negotiations (2018–2019) for an international, legally-binding
instrument under the United Nations Convention on the Law of the Sea on the
conservation and sustainable use of marine biological diversity of areas beyond
national jurisdiction
77 will have concluded and a draft will have been agreed upon.
During the first session in September 2018, it appeared that the United States and
Norway wanted to move forward somewhat more cautiously than some other Arctic
States,
78 but it appears premature to try to infer any material policy conclusions from
statements regarding the drafting procedure at such an early stage of the
negotiations.
Given the fragility of the Arctic marine environment, the central Arctic Ocean
appears to be a prime candidate for designation as a particularly sensitive sea area
(PSSA).
79 However, the existing rules
80 for the declaration of PSSAs
81 require a
present threat to the marine environment.
82 While the central Arctic Ocean fulfills
other, in particular ecological, criteria for the designation as a PSSA, the current lack
of marine traffic in the central Arctic Ocean might prevent the designation of the
CAO as a PSSA. It has to be noted, though, that the IMO is not prevented from
updating its own rules concerning the designation of PSSAs to take a more precautionary approach rather than to wait for this already predictable threat to the Arctic
marine environment to actually materialize. Even though the current procedural rules
seem to stand in the way of designating the CAO as a PSSA at this moment, the
necessary regulatory changes could be achieved within a relatively short time period
and, in any case, prior to the melting of multiyear sea ice in the CAO.
The current legal situation leaves the Arctic Council with the possibility to play a
key role in shaping the governance of the marine ecosystem of the Arctic Ocean for
the foreseeable future. These efforts can include areas within and beyond national
jurisdiction and can be undertaken with the Arctic Council’s own means, such as the
drafting of treaties, or within the context of other fora.
Differently from other fora working on marine environmental issues, the Arctic
Council can take a holistic approach. Just as the AC’s SAR Agreement applies to
emergencies on land and at sea, the AC’s efforts do not have to be restricted to the
sea. One particular problem that the Arctic Council is looking at is the issue of landbased marine pollution.
83 A regional program of action, which combines the AC’s
77 See Koivurova and Caddell (2018), pp. 134–138; De Lucia et al. (2018), p. 264; cf. also
Thiele (2018).
78 IISD (2018).
79 Kirchner (2017), p. 137. On the concept see Nugroho (2012).
80 On the establishment of potential Arctic PSSAs see McCreath and Brigham (2018),
pp. 313 et seq.
81 IMO Resolution A.982(24), Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs).
82 Id.
83 Arctic Council (2009).
72
T. Koivurova et al.
once the ongoing negotiations (2018–2019) for an international, legally-binding
instrument under the United Nations Convention on the Law of the Sea on the
conservation and sustainable use of marine biological diversity of areas beyond
national jurisdiction
77 will have concluded and a draft will have been agreed upon.
During the first session in September 2018, it appeared that the United States and
Norway wanted to move forward somewhat more cautiously than some other Arctic
States,
78 but it appears premature to try to infer any material policy conclusions from
statements regarding the drafting procedure at such an early stage of the
negotiations.
Given the fragility of the Arctic marine environment, the central Arctic Ocean
appears to be a prime candidate for designation as a particularly sensitive sea area
(PSSA).
79 However, the existing rules
80 for the declaration of PSSAs
81 require a
present threat to the marine environment.
82 While the central Arctic Ocean fulfills
other, in particular ecological, criteria for the designation as a PSSA, the current lack
of marine traffic in the central Arctic Ocean might prevent the designation of the
CAO as a PSSA. It has to be noted, though, that the IMO is not prevented from
updating its own rules concerning the designation of PSSAs to take a more precautionary approach rather than to wait for this already predictable threat to the Arctic
marine environment to actually materialize. Even though the current procedural rules
seem to stand in the way of designating the CAO as a PSSA at this moment, the
necessary regulatory changes could be achieved within a relatively short time period
and, in any case, prior to the melting of multiyear sea ice in the CAO.
The current legal situation leaves the Arctic Council with the possibility to play a
key role in shaping the governance of the marine ecosystem of the Arctic Ocean for
the foreseeable future. These efforts can include areas within and beyond national
jurisdiction and can be undertaken with the Arctic Council’s own means, such as the
drafting of treaties, or within the context of other fora.
Differently from other fora working on marine environmental issues, the Arctic
Council can take a holistic approach. Just as the AC’s SAR Agreement applies to
emergencies on land and at sea, the AC’s efforts do not have to be restricted to the
sea. One particular problem that the Arctic Council is looking at is the issue of landbased marine pollution.
83 A regional program of action, which combines the AC’s
77 See Koivurova and Caddell (2018), pp. 134–138; De Lucia et al. (2018), p. 264; cf. also
Thiele (2018).
78 IISD (2018).
79 Kirchner (2017), p. 137. On the concept see Nugroho (2012).
80 On the establishment of potential Arctic PSSAs see McCreath and Brigham (2018),
pp. 313 et seq.
81 IMO Resolution A.982(24), Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs).
82 Id.
83 Arctic Council (2009).
72
T. Koivurova et al.