Leilei Zou

The Arctic is receiving world-wide attention for its unique and strategic geopolitical position, distinct climate change impact, and abundant natural resources. Most Arctic waters fall under the jurisdiction of Arctic states, as do most Arctic fisheries management. There are uneven fisheries developments across Arctic waters, with productive fishing grounds in the adjacent seas of the Arctic Ocean, but no fishing yet at the Central Arctic Ocean (hereinafter referred to as “CAO”) due to its multi-year ice cap. However, recent years have witnessed a persistence in the Arctic ice loss, and the CAO reached its lowest level of sea ice extent, at 60%, in the summer of 2012, raising the prospect of being a productive fish habitat as a result of climate changes (Balton, 2010; Rayfuse, 2009; Loeng et al., 2005).

With similar geographical advantages and political and economic interests, the five Arctic Ocean Coastal States (Canada, the United States, Russia, Norway, and Denmark in respect of Greenland, hereinafter referred to as “A5”) have developed into a kind of Arctic alliance, asserting their stewardship in Arctic Ocean management via the Illulissat Declaration, a statement released at their meeting in 2008 where they provided their first formal declaration to the international community on joint Arctic Ocean stewardship. With more and more significant impact of climate change in the Arctic, the prospect of CAO fisheries is attracting international attention. Fisheries have been the most important theme for A5 meetings since 2010, and impressively, in February 2014 the A5 made a proposal for the implementation of interim measures to prevent unregulated fishing and released it as a statement to the international community, a further move to demonstrate their stewardship in CAO fisheries management, which caused a worldwide stir. In July 2015, the A5 finalized a declaration for the internal agreement on interim measures amongst themselves. Although there is no inclusion of the more obvious words “moratorium” or “ban”, the chosen “interim measures to deter unregulated fishing”¹, as the A5 have described it, have been widely interpreted as a “fishing moratorium or ban” by the media (Levgim, 2015; Myers, 2015; The New York Times, 2015). Five other important distant water fishing states and entities (hereinafter referred to as “the other 5”), namely China, the European Union, Iceland, Japan, and Korea, were invited to attend a “5+5” (the expanded delegation with A5 and the other 5 newly comers) meeting on high seas fisheries in CAO in December 2015 in Washington D.C. Up until now, the “5+5” has had two meetings whereby the A5 have tried to promote their proposal for interim measures amongst the other 5 as well.

 

A5: Stewards for CAO Fisheries Management

The Arctic used to garner little international attention due to its inaccessibility and isolation. Climate change has brought the Arctic to the broader public’s eyes as a promising resource trove. However, the UN Convention on the Law of the Sea (hereinafter referred to as “UNCLOS”) assures the eight Arctic states (A5, together with Sweden, Finland, Iceland, hereinafter referred to as “A8”) of a key and unique role in Arctic waters management because most Arctic waters fall under A8’s sovereignty, sovereignty rights and jurisdiction. Besides, as Member states of the Arctic Council, the most important intergovernmental forum in the Arctic established in 1996, the A8 possess the exclusive right to decide, by consensus, on issues and actions discussed within the forum. In addition, the A8 are developed countries, occupy leading roles in world politics and economics, and are accumulating experience in Arctic management. As such, with advantages in geographical position as well as political and economic advancement, the A8’s assertion of unique stewardship in Arctic management has been significantly enhanced.

As the Arctic Ocean coastal states, the A5 have much in common with their social, political and economic concerns in the Arctic, and have developed an Arctic alliance, making efforts to act as joint stewards in Arctic Ocean management. In 2008, the A5 launched their first alliance meeting in Illulissat, Greenland (although they had also negotiated the Agreement on the Conservation of Polar Bears in 1973), where they recognized themselves as having “a stewardship role in protecting (the Arctic Ocean’s unique ecosystem)” and being in a unique position to address Arctic opportunities and challenges “by virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean”.²

Significant ecological changes are taking place in the Arctic because of the climate change. The most impressive is that global warming is melting Arctic sea-ice. In recent years the sea ice extent has witnessed its lowest record, leaving almost 40% of the CAO open water for some time in the year. The decline in sea-ice extent and volume makes physical fish migration a reality between the sub-Arctic and the CAO. Thus, the promising prospect of CAO fisheries is attracting attention worldwide.

CAO fisheries issues have been the dominant A5 meeting theme since 2010, making attempts and efforts to act as the designer for the CAO fisheries management regime. In 2010, the A5 Foreign Ministers met in Chelsea, Canada to discuss “important stewardship in the region”³ since “Arctic Ocean coastal states have a unique interest and role to play in current and future efforts for the conservation and management of fish stocks in this region”.⁴At an A5 meeting held in Washington DC in 2013, this concept was further enhanced by stating that “It is appropriate for the States whose exclusive economic zones (hereinafter referred to as “EEZs”) border this high seas area to take the initiative on this matter”.⁵

However, the A5’s CAO management and stewardship is challenged because those state efforts are often viewed as unilateral attempts to control a global seas area. UNCLOS defines the CAO as the high seas where all states enjoy the freedom of fishing with the condition that they are involved in conservation of high seas living resources and cooperation with other states in conservation. States whose interests are potentially affected by A5’s interim measures agreement ought to be the most likely protesters against A5’s assertion as an Arctic steward. Those against the A5’s attempts to act in this way are most possibly the world’s leading distant-water fishing nations as well as those states/actors having easy access to the Arctic Ocean and interest in fishing there. Worth mentioning is that Iceland and Finland and Sweden, also A8 states, have been excluded from the A5 meetings and further denied a presence at interim measures discussions. It should also be noted that the other 5 states and entities are only invited by the A5 to discuss the existing interim measures, which the A5 is trying to impose on them.

A5’s Exclusivism in the CAO Fisheries Management

While trying to establish their identity as stewards for the CAO and designers of its governance, the A5 is reluctant to get non-Arctic states involved in Arctic fisheries issues. Chairman’s statement for the 2013 A5 meeting in Washington, U.S. asserted that “Those States (A5) also acknowledge that other States may have an interest in this topic and that they should be included in talks at some point in the future as appropriate.”⁶, which can be interpreted such that A5 is the steward for CAO fisheries management and it is the A5’s privilege of deciding who can be offered the opportunity to participate in constructing the governance regime and when they can be offered that opportunity, in some way depriving other stakeholders of their right and duty in Arctic high seas fisheries management.

The A5’s exclusivism in CAO fisheries issues, combined with their unilateral attempts, contributes to the contradiction between their words and deeds. Firstly, since 2010, they’ve asserted that commercial fishing in the high seas of CAO is unlikely to occur in the near future;^7,8,9 however, they think it is high time that interim measure were implemented in the spirit of the precautionary approach. Given the absence of urgency to regulate now, a more scientific and considerate measure, other than the internally agreed interim measures, can be negotiated when enough scientific data are available regarding the Arctic marine ecology and its transformation because of the climate change.

Secondly, despite repeating that because of UNCLOS there is no need for a new Arctic Ocean legal regime,¹⁰ the A5 as an alliance continue to push a new interim-measures fisheries agreement and has released their ambitions in a statement to the international community regardless of the fact that defining “precautionary approach” by conducting something like a fishing moratorium is not mandated at large in the law of the sea.

Thirdly, the A5 have made clear at A5 meetings that priority should be given to scientific research and international cooperation;^11,12,13 however, they are only scheduled to include other states “in talks at some point in the future as appropriate.”¹⁴ Seemingly, A5’s actual philosophy is to get other stakeholders involved in CAO fisheries management only after their preferred regime has taken shape. The international cooperation advocated for at A5 meetings remains in words only, while monopolization is the hidden philosophy.

Fourthly, A5’s attitude toward the establishment of Arctic Regional Fisheries Management Organization (hereinafter referred to as “RFMO”) also reveals their philosophy. When the CAO warms up enough to be an ideal fish habitat, straddling fish stocks and highly migratory fish stocks, those occurring both within the EEZs or both within the EEZ and in an area beyond and adjacent to the zone, will be of the most concern for fisheries management (Hollowed, 2013; Weidemann, 2014). As for the management of those fish stocks, UNCLOS recommends that the coastal states and fishing states should “seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area”,¹⁵ and the United Nations Fish Stock Agreement (hereinafter referred to as “FSA”) reaffirms the importance of RFMO in high seas fisheries management. It is evident that both the international law of the sea and fisheries management regulations attach great importance to RFMO’s role as a coordinator. A5 meetings also echo the significant function of RFMO, while they see no need at present to establish a competent RFMO for CAO.^16,17 The A5’s contradiction between admittance of the RFMO’s importance and denial of its timely establishment for the CAO reveals the intention to fulfill their claim by designing the fisheries regime before a RFMO is established, to take the initiative in CAO fisheries management.

A5’s Stewardship and International Law

At the global level, the most important fisheries laws and regulations are UNCLOS, FSA, CCRF (FAO Code of Conduct for Responsible Fisheries), and PSM (FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing). Since this Briefing Note tries to explore the legitimacy of coastal states in the Central Arctic high seas where commercial fisheries have not yet occurred, UNCLOS and FSA, two key international fisheries-related and fisheries laws concerning rights and duties of coastal states and fishing states, will be the major reference for my analysis. However, the CCRF and PSA, which more concern rights and duties of flag states and port states as well as harvesting and post harvesting issues, will not be addressed here. Besides, although future CAO fisheries are also likely to involve anadromous fish stocks and sedentary species inhabiting continental shelf, this Note only targets straddling fish stocks and highly migratory fish stocks, not only because they are the most important for commercial fisheries but also because it simplifies the analysisto focus on UNCLOS and FSA.

“Freedom of Fishing” in “Freedom of the High Seas”

Both UNCLOS and FSA apply to waters all over the world, and the Arctic Ocean despite its unique geographical position and ecological system is no exception. Under the provisions of UNCLOS, the A5 enjoy undisputed sovereign rights for fisheries management inside their Arctic EEZs, while all states enjoy the “freedom of fishing”¹⁸ at high seas subject to such conditions as international cooperation and involvement of conservation and management. Articles 116-119 of UNCLOS further confirm and clarify states’ fishing rights as well as duties in conservation and international cooperation.^19,20,21,22 A close examination into the UNCLOS provisions reveals the conditional “freedom of fishing” for all states at the high seas, with key conditions like involvement in conservation and participation in international cooperation, especially the cooperation between coastal states and fishing states. UNCLOS does entitle coastal states to key and unique roles in high seas fisheries management, but does it mean that coastal states enjoy a monopoly on stewardship in management? It is not necessarily the case. A detailed analysis follows.

Coastal States’ Role in High Seas Fisheries Management

As for the straddling fish stocks and highly migratory fish stocks occurring both within the EEZs and in the area beyond and adjacent to the zones, there have been long-standing conflicts between coastal states and fishing states (Zhao, 1997; Zhao, 2009; Li, 2012; Bailey, 1997). The conflicts originate from the increasing demands and over-exploited status of many fisheries resources. The conflicts focus on coastal states’ efforts to extend their fisheries management jurisdiction to high seas and fishing states’ defense for high seas fishing freedom. With a close study into the UNCLOS and FSA, this paper will analyze the legitimacy of A5’s stewardship in CAO fisheries management.

Coastal States’ Role in High Seas Fisheries Management Defined by UNCLOS

The conditional freedom of fishing in the high seas doesn’t mean that the freedom is to be restricted by coastal states’ fisheries management jurisdiction extension to high seas, in that UNCLOS provides no provision concerning the entitlement of coastal states to this jurisdiction. However, UNCLOS does provide vague and ambiguous wording concerning high seas fisheries management, the consequence of which is that different stakeholders will have different interpretations of UNCLOS provisions to their favor. UNCLOS is a compromise agreement among different stakeholders at a particular time, and designed to mitigate sea conflicts, thus suffering the defect of lacking in implementing details and leaving room for different interpretations. With an analysis of UNCLOS-defined roles of coastal states, fishing states and RFMOs in high seas fisheries management, I explore whether UNCLOS entitles the A5 to stewardship in the CAO.

Article 63(2) states that “where the same stock or stocks of associated species occur both within the EEZ and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.”

Article 64(1) states that “the coastal State and other States whose nationals fish in the region for the highly migratory species…shall cooperate directly or through appropriate international organizations… In regions for which no appropriate international organization exists, the coastal State and other States…shall cooperate to establish such an organization and participate in its work.”

The above provisions contribute to the conclusion that coastal states should actively seek the cooperation with fishing states in the management and conservation of straddling fish stocks and highly migratory fish stocks at the high seas, RFMOs is the platform where cooperation should be coordinated, and coastal states and fishing states should cooperate to establish the competent RFMOs if there has been no one yet.

Articles 116-119 clarify the rights and duties of coastal states, fishing states and RFMOs. Article 116 confirms the fishing freedom of all States in the high seas on condition of fulfilling their duties. Article 117 clarifies the conservation duties of coastal states and fishing states for high seas fisheries resources. Article 118 further emphasizes the role of RFMOs in conducting high seas fisheries management cooperation between coastal states and fishing states. What needs further consideration is Article 119(2) which states that “…statistics, and other data…should be contributed and exchanged…, through competent international organizations…, with participation by all States concerned.” Thus the involvement of all stakeholders in high seas fisheries research is highly encouraged in UNCLOS. Article 119(3) states that “States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State”, implying that coastal states don’t enjoy privilege in high seas fisheries management. Coastal states have undisputable sovereign rights in their EEZs for the management of straddling fish stocks and highly migratory fish stocks, but their sovereign rights don’t extend to high seas as these fish stocks migrate to high seas. It is understandable that coastal states find themselves in a unique role in conserving and managing those fish stocks occurring both within their EEZ and in an areas beyond and adjacent to the zone, while it is more feasible that coastal states seek cooperation with fishing states to facilitate the efficient and effective conservation and management for a win-win result.

To sum up, with a view to conserving high seas fisheries resources to a sustainable development level, UNCLOS entitles coastal states and fishing states to equal rights and duties in fisheries management, and encourages international cooperation coordinated by RFMOs. Coastal states are not defined by UNCLOS to adopt a stewardship role in high seas fisheries management.

Coastal States’ Role in High Seas Fisheries Management Defined by FSA

Failing to provide concrete instruments for implementation of conservation and management for straddling fish stocks and highly migratory fish stocks, UNCLOS is later supplemented by FSA, the fisheries regulations that give feasible and constructive instructions on conducting conservation and management measures as well as facilitating international cooperation. Four key features of FSA are looked into further bellow.

Firstly, there is no denying that FSA entitles the coastal states to a unique role in conservation and management of straddling fish stocks and highly migratory fish stocks. As Article 7(1) defines the precondition for the “compatibility of conservation and management measures” as “without prejudice to the sovereign rights of coastal States for the purpose of exploring and exploiting, conserving and managing the living marine resources within areas under national jurisdiction as provided for in the Convention, and the right of all States for their nationals to engage in fishing on the high seas in accordance with the Convention”, FSA tries to strike a balance between coastal states and fishing states and refrain them away from the potential fisheries conflicts. However, Article 7(2) follows by stating that “Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety. To this end, coastal States and States fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of such fish stocks.” The compatibility between EEZ and high seas conservation and management measures provides coastal states with the possibility of interfering with high seas fisheries in the name of maintaining an entirety for conservation and management between EEZs and high seas. The precondition for their interfering with high seas fisheries is that measures established for EEZs and high seas should be compatible, which means, in the case of CAO, that A5 should adopt the compatible measures at EEZs with those in the Arctic high seas. A study into A5’s respective Arctic fisheries management reveals that the fisheries moratorium, like that which the A5 are trying to achieve in the CAO, is not a universally acknowledged policy conducted within their own Arctic EEZs.

Among A5 states, the U.S. is the most active Arctic fisheries moratorium advocator. Its Arctic fisheries management plan was approved in 2009 to prohibit any expansion of commercial fisheries in its Arctic EEZ. In addition, the U.S.is trying to initiate an A5 discussion on a consistent Arctic fisheries moratorium policy, but is seemingly receiving little recognition from other Arctic counterparts except Canada, which developed a similar policy for Beaufort Sea. ²³ Most Arctic states adopt a more balanced approach between conservation and exploitation for their Arctic fisheries opportunities, a practical approach which attaches equal importance to long-term sustainability and fisheries economic prosperity. Russia and Norway are the most likely beneficiaries because their Arctic EEZs will receive most fishes migrating northward when the Arctic sea ice melts away (Hollowed, Planque&Loeng, 2013), thus they may be reluctant to identify themselves with Arctic fisheries moratorium advocators. The mismatch between most A5 states’ Arctic EEZs and high seas fisheries policies arouses other stakeholder’s questioning of the A5’s motivation for their proposed fisheries moratorium in the CAO.

As the FSA advocates, high seas and EEZs should adopt compatible measures, which calls for cooperation between coastal states and fishing states. A case in point of conflict between two stakeholders was the conservation of pollock resources in the Central Bering Sea in the 1990s. For the sake of fisheries sustainability in their EEZs, the U.S.and Russia, the two Bering Sea coastal states, proposed a fisheries moratorium policy in the high seas of the Central Bering Sea; however, neither of them adopted the “compatible” measure in their own EEZs, discouraging the fishing states from recognizing their moratorium proposal and giving up fishing there, and thus contributing to the final corruption of pollock resources in the Central Bering Sea. A fishing moratorium policy is currently still in effect to recover the pollock resources there. Incompatibility between EEZs and high seas policies, together with the delayed conservative measure, leads to a lose-lose situation at the Central Bering Sea. Thus the precondition for coastal states’ unique role in high seas fisheries management is their willingness to adopt a compatible measure between their EEZs and high seas as well as their willingness to cooperate internationally.

Secondly, FSA attaches great importance to the precautionary approach in managing and conserving straddling and highly migratory fish stocks, which is highlighted in its Article 6 “Application of the Precautionary Approach”.²⁴ The precautionary approach gives priority to the adoption of timely measures to conserve fisheries resources before damage is caused. Does it mean that the precautionary approach provides grounds for the A5’s proposal for a fishing moratorium as the interim measures at CAO? The third feature of FSA seems capable of removing this ground.

The third feature of FSA is the importance of “the best scientific information” for decision-making.²⁵ It is true that FSA recommends a more cautious measure in absence of adequate scientific information; however, for new and exploratory fisheries, the conserving and managing measures are dynamic by nature, which means measures need constant updating on the basis of the accumulated scientific information. Scientific information can be enhanced by collecting and sharing among an extensive body of stakeholders, including coastal states, fishing states and relevant regional or international organizations.²⁶ Currently the prospects for CAO fisheries remain unclear (Koivurova, 2009; Hollowed, 2013), and both the A5 and Arctic Council unanimously recognize the information gap, advocate coordinated scientific research which will throw light on the fisheries dynamics at CAO, and see the need for inclusion of non-A5 states in the coordinated research. Without either sufficient scientific data or the involvement of other stakeholders in the decision-making, the interim measures proposal put forward by the A5 seems a hasty decision, if not improper.

Fourthly, the FSA highly prioritizes the positive role of RFMOs in coordinating high seas fisheries management. Acting as an implementation agreement for UNCLOS concerning the conservation and management of straddling and highly migratory fish stocks, the FSA provides detailed and constructive instructions on how to facilitate international cooperation via RFMOs. Articles 8-14 are concerned about the functions and operations of RFMOs. More impressive, as FSA defines, RFMOs are so accessible that not only coastal states and fishing states but also states having a real interest in the fisheries concerned may become members of such organization,²⁷ and “Compatibility of Conservation and Management Measures” calls for balanced duties from both coastal states and fishing states in conserving and managing straddling and highly migratory fish stocks in the high seas.²⁸ It has so far been established as the convention that worldwide high seas fisheries are managed by various competent RFMOs. It is true that coastal states are the members for those RFMOs, and more than often they are also the key decision-makers within RFMOs; however, it is more universally acknowledged that both coastal states and fishing states should undertake the common and same duties and rights in high seas fisheries conservation and management coordinated by RFMOs. There is no reason for the Arctic Ocean to be an exception, and neither is there any reason that its fisheries management will be an exception to the universally-accepted “code”.

With four features analyzed above, the FSA is well established to advocate for high seas fisheries management enlightened with scientific information, facilitated by international cooperation, and coordinated by RFMOs. In spite of the fact that the extension of jurisdiction from coastal states over high seas fisheries is not safeguarded, or even mentioned by the FSA, it is not a novelty. There have been two rushes for jurisdictional extension from coastal states in the history of fisheries management. Most coastal states extended their sovereignty rights over fisheries to EEZs right after the UNCLOS was concluded in 1982 and then came into force in 1994. The extension is authorized by UNCLOS with a view to a better marine fisheries management. However, now confronted with the serious situation of an exhaustion of fisheries resources, to better maintain the sustainability of fisheries developments the coastal states have been making efforts to extend their jurisdiction to high seas fisheries, a unilateralim position into the grey belt aiming for better management, but not legally protected. Thus A5’s agreement on interim measures at CAO is an effort for their jurisdictional extension to the high seas, which is advocated for by neither UNCLOS nor by the FSA.

Conclusions

The prospect of commercial fisheries in the Central Arctic Ocean is desirable. However, CAO fisheries management is confronted with challenges. International agreements such as UNCLOS and FSA are applicable to the Arctic, but not tailored to the Arctic, and what’s more, so far no existing competent RFMO can take up management duties (Zou, 2014; Jefferson, 2010; Molenaar, 2009). It is of great urgency that a robust fisheries management regime should be established for the CAO before commercial fisheries are expanded and fights for fisheries interests are on the way. The interim measures proposal, A5’s unilateral efforts to take up the stewardship for Arctic fisheries management, lacks legal support and rationality.

A5 is trying to impose its interim measures agreement on the international community. Worries also arise over A5’s subtle and far-reaching attempts to extend its stewardship to other areas by taking up stewardship for CAO fisheries management as a niche. Considering that commercial fisheries haven’t yet occurred at CAO, it is the best timing now for all the stakeholders to sit around the table and come to a rational and lawful agreement on fisheries management. Lessons have been learnt that high seas fisheries management should be coordinated among all the stakeholders and the fisheries management regime should be ready before the damage is done.

International cooperation coordinated by RFMOs and allowing for international involvement in policy-making process is not only mandated in international law but also a valuable experience from high seas fisheries management worldwide (Byers, 2013; Rayfuse, 2009). It is agreed without any dispute that coastal states are playing a key role in coordinating the establishment and operation of RFMOs due to their geographical advantage, convenience in conducting monitoring, surveillance and control of fisheries activities in the high seas, and more direct and instant impact of high seas measures on EEZ fisheries conservation and management. However, the key to recognition from the international community for coastal states’ uniqueness in high seas fisheries management lies in coastal states’ willingness to cooperate internationally, and their capability of coordinating cooperation. Besides, the role of distant-water fishing states in high seas fisheries management is also increasingly recognized. Most of them have accumulated much fisheries management experience. More than likely, they are well-equipped for distant-water fisheries scientific research. The involvement of distant-water fishing states in the construction of high seas fisheries management regime will provide a mechanism where the potential conflict between them and coastal states will be attended to, and provisions of international laws will be more likely to be observed by distant-water fishing states as insiders.

The dynamics between coastal states and other stakeholders in CAO fisheries management is in no case a zero-sum game where two players are in a conflicting situation, instead, it should be a positive-sum game where two players are in a win-win situation.

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