Why do we need a shared Pan-Arctic Fisheries Governance Complex?
Horizon as a perspective in the Arctic Ocean (near Svalbard). Photo: Ekaterina Uryupova
By the end of 2020, nine of the ten countries-signatories ratified the 2018 Central Arctic Ocean Fisheries Agreement. But is that reason to celebrate? Not really…
In the Arctic, abundant fisheries provide the primary source of food for the region. However, their productivity, as well as their impact on species diversity and importance for industrial and traditional fisheries, varies greatly. This specifies the fisheries governance framework in the entire region.
Unlike Antarctica, where the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) focuses on the conservative and precautionary use of the fish stocks, the ice-free Arctic area is covered by regional fisheries management organizations. Commercial fishing in the Arctic Ocean and adjacent seas is not evenly distributed, and it is very much locally concentrated –– so far. But the ocean is a dynamic natural system that changes rapidly, and this has been especially true in recent decades.
The high seas contain commercially important species, such as cod, crabs, halibut, pollock, shrimps, capelin, squid, scallops, etc.. Some of the species are defined as “circumpolar,” while others are characterized by wider distribution. But how do we manage fish stocks in the region in response to environmental changes? And what is the nearest future of a Pan-Arctic fisheries legal regime? Does the existing mechanism work fast enough when it comes to current climate change issues?
The Central Arctic Ocean
According to the Arctic Council, nine of the ten signatories have completed the ratification process for the 2018 Central Arctic Ocean Fisheries Agreement (CAOFA) recently. The agreement is expected to enter into force 30 days after receipt of the final instrument of ratification (the tenth signatory) and it will remain in effect for 16 years. There is an option of an automatic extension of the agreement for additional five-year periods if all the Parties agree1). If any of the ten Parties fails to provide the relevant instrument to the depository, the agreement will not enter into force at all.
The prerequisite to the agreement was a declaration signed by Arctic coastal states in 2015, which prohibited commercial fishing by the Arctic nations’ vessels in the international waters of the Central Arctic Ocean2). However, the underpinnings of this agreement were put forth several years prior: a joint resolution directing the United States to initiate international discussions on management of fish stocks in the Arctic Ocean was declared in 20073). The resolution was signed into law in 2008, and the United States established a catch quota of zero for US waters in the Chukchi and Beaufort Seas until it obtained sufficient information to support the establishment of an economically and environmentally sustainable fishery4). The CAOFA is based on a similar idea, as there is a lack of scientific information about fish stocks and ecosystem dynamics in the region.
The current multilateral moratorium aims to prevent Arctic Ocean fishing, setting aside some degree of sovereignty disputes while scientific research exploration continues.5) This moratorium on commercial fishing applies to the central Arctic Ocean, which currently remains ice-covered for most of the year. In other words, the ice-free parts of the Arctic Ocean are open for fisheries and research, as they were before.
The CAOFA provides great opportunities for cooperative governance of the Arctic, including Arctic and non-Arctic states. It establishes a precautionary framework for the regulation of fisheries in the high seas of the central Arctic Ocean (CAO), including a temporary moratorium on unregulated commercial fishing. The agreement’s precautionary nature seems to be an advantage in planning of fishing activities in adjacent areas, as well as to prevent any negative impacts to commercially significant fish species in the Central Arctic and adjacent seas.
Various factors may have a negative impact on ecosystems in the Central Arctic Ocean in the future. If the distribution and productivity of fish stocks in the Exclusive Economic Zones (EEZ) in the Arctic were altered due to climate change, it would be logical to assume that the high latitudes with ice-free ocean areas might be considered future fishing grounds. If in the future the multilateral moratorium on the Arctic high seas fisheries could not be extended for a variety of reasons, we might expect increased competition for marine living resources of the Arctic6).
The Role of Regional Fisheries Governance
It is worth mentioning that northern nations possess 200 nautical miles of offshore EEZ, or exclusive sea zones prescribed by the United Nations Convention on the Law of the Sea (UNCLOS), over which these countries have special rights regarding the exploration and use of marine resources. The current allocation of catches in the region is therefore dominated by the Arctic states – Norway, Canada, Russia, Iceland, and the USA. Greenland and the Faroe Islands, autonomous self-governing entities within the Kingdom of Denmark, are considered special cases and are therefore not included under the European Union’s Common Fisheries Policy. Their special status is a direct result of their histories, as marine living resources are integral to traditional and Indigenous cultures there. According to the assessment on Arctic biodiversity, a total of 633 fish species are found in the Arctic Ocean and adjacent seas.7) Among them, 80 (12.6 percent) are freshwater species, 44 (6.9 percent) inhabit both marine and fresh waters, and 16 species (2.5 percent) are mainly restricted to Arctic waters. Less than 10 percent of the total fish biodiversity is used for commercial purposes in the Arctic Ocean, sub-Arctic and boreal areas.8)
Commercial fishing activity does occur in the high seas areas of the North Atlantic and North Pacific. Specifically, large-scale commercial fisheries activities are taking place in the Barents and the Bering Seas, but other fisheries in the Arctic Ocean are essentially limited to small-scale subsistence fisheries in Arctic coastal states’ maritime zones.
The regional fisheries management organizations (RFMOs), as well as sub-regional and bilateral instruments, play an active role in preventing unregulated commercial fishing in the high seas part of the Arctic Ocean. Some of them manage all the fish stocks found in a specific area, while others focus on particular highly-migratory species. The organizations are open both to countries in the region and countries with interests in the fisheries concerned. For instance, the North-East Atlantic Fisheries Commission (NEAFC) has a mandate over the North-East Atlantic sector, and the North Pacific Fisheries Commission (NPFC) has a mandate over the North Pacific area. Among others are organizations with quite limited competence in the Arctic, including the North Atlantic Salmon Conservation Organization (NASCO) and the Northwest Atlantic Fisheries Organization (NAFO).
How might potential disagreement on fisheries management in the Arctic be used in effective negotiation on a local level? For example, there is a controversial issue between Iceland and the European Union. Iceland provides EU member states with access to its EEZ, while the EU requires that Iceland end the whaling activities.9) There is still room for improvement in the effectiveness of the legal framework governing Arctic waters, and every particular case is essential to ensure future sustainable fisheries. In general, fisheries management in the different parts of the Arctic Ocean is a mixture of coastal state regulation and a multilateral approach. In this framework, bilateral agreements between countries help to regulate and manage access to fish stocks within adjacent EEZ. For example, the Joint Commission established by the bilateral framework Agreement between Russia and Norway works relatively effective for both states.10). Recently, the close relations between the United Kingdom and Norway have been recalled too,11) as well as with the Faroe Islands. However, a post-Brexit agreement between the EU and the UK has taken a long time to be finalised for UK catches in Arctic waters. These small points matter when it comes to the work of the entire mechanism, especially in a rapidly changing Arctic region.
Present and Future of Arctic Fisheries Management
Some specifics may be identified regarding the especially high vulnerability of the Arctic to the general impacts of a rapidly changing environment. Climate change could force the migration of boreal species towards the northern seas, which would result in a complete shift in ecosystem composition and undermine existing food webs. This scenario, however, does not diminish the role of intensified competition between fisheries companies that may cause stress for the environment. The absence of a shared legal regime that may respond to climate changes in a fast and effective way hampers international cooperation on environmental security and impacts regional ecosystems in the Arctic. Climate change will most likely lead to new fisheries conflicts, and create more challenges for existing fisheries management institutions. Moreover, the speed of climatic disruption adds a new level of complexity and challenge to the current legal systems as soon as these systems were not designed to address. To increase dynamism in the law and the flexibility of decision making, the Arctic needs an updated shared legal regime that shows adaptive resource management – for example, through the complex of the existing agreements used as an universal international legally binding instrument.
The current governance frameworks response to climate change from multiple organizations leaving less efficient adaptation. Uncertainties regarding climate change impacts may also lead to wrong or superfluous decisions. Counterproductive responses may be easily achieved as a result of a wrong choice by a level of government that is best suited to an adaptive reaction.
One can argue that there is a variety of habitats and ecosystems in the Arctic Ocean, and it requires an ecosystem-based management approach only. Notably, this approach has already been adopted by the Arctic Council Ministers in 2004 as a principle for work in the region.12) However, when it comes to the nature of marine living resources, it should be taken into account that the geographic boundaries can be easily crossed by migratory species, especially in a rapidly changing Arctic ocean.
What are the consequences of these migrations? With the rising temperatures, species that inhabit the climatic zone south of the Arctic will likely continue to migrate northward and replace local cold-water species. Scientists predict the natural marine ecosystems will undergo a dramatic transformation that may lead to a significant change in the distributions of fish stocks in the Arctic high seas. In the Barents Sea, warm-water fish species from the Atlantic and central Barents Sea have already pushed cold-water fish species out of the shelf area. Cod, a major commercial species, as well as long rough dab and beaked redfish (which can be considered generalist fish species) travel towards the north in search of suitable habitats.13) Also, recent observations have shown that the spawning sites of Northeast Arctic cod will be shifted further north eastwards over the next 50 years.14) In high latitudes, Atlantic mackerel has been found west of Svalbard,15) and Atlantic cod, capelin, Greenland halibut, haddock, redfish – as far north as the shelf break north of Svalbard.16) In the Pacific sector, pink salmon is inhabiting the warming northern Bering Sea: due to its short, two-year life cycle, the species is well known to respond rapidly to ecosystem change.17) These global processes lead to dramatic changes not only in expanded nursery areas but also in growing availability of sufficient food for fish in the northern waters.
The increased accessibility of the Arctic, with new fishing opportunities, is both enabling and propelling Arctic states to develop national regulation for areas characterized by shrinking ice in order to discharge their obligations under international law. In 2009, the North Pacific Fishery Management Council (NPFMC) approved a comprehensive Arctic fishery management plan that lead to commercial fishery development in the U.S. Arctic Exclusive Economic Zone (off Alaska north of the Bering Strait).18) The High Seas are a particular international component of the marine environment of the Arctic Ocean. Resources and ecosystems extend across political boundaries, highlighting the need for governance and planning to be developed and coordinated at the higher than the national level. And the Arctic is warming faster than any other area on Earth, so this complex region requires a special legal regime.
In the Arctic, highly migratory fish stocks and boreal invaders are subject to the different governance regimes of the high seas and the EEZ. However, the international legal framework on fisheries in the High Seas does not allow absolute open-access schemes, so ecological alterations may potentially destabilize existing management regimes. Changes to fishery stock compositions and distributions can result in conflicts between Arctic nations due to overlapping jurisdictional claims, unregulated fishing, and a lack of multi-regional agreements. The current model of Arctic fisheries management is not flexible enough to effectively address future fishery challenges caused by climate change. The comprehensive regime of law and order in the high seas is required to protect vulnerable Indigenous peoples from the impacts of climate change.
Transnational negotiations over fisheries and quotas are obstacles that hinder current regional fisheries governance in the Arctic. Often, countries argue over “holes” located between the exclusive economic zones. Such a high seas pocket between Norway and Russia in the Barents Sea was targeted for cod by vessels from different states throughout most of the 1990s. Also, this scheme does not look easy for non-Arctic states: recently the UK has been blocked from catches in the Arctic waters due to delays in a post-Brexit agreement to be signed.
A short while ago, an intergovernmental dispute emerged in relation to fish stocks in the Northeast Atlantic: a conflict between Iceland, Norway, the EU, and Denmark (representing the Faroe Islands and Greenland) that unfolded after the abrupt and rapid change in distribution of the northeast Atlantic mackerel stock after 2007.19) Originally, Norway, the EU and Faroe Islands shared the mackerel quotas, but shifts in migratory behaviour of the fish resulted in Iceland being involved in fishing activities in its EEZ. After many rounds of negotiations between Iceland and Norway and the EU, the dispute remains unresolved. As a result of the mackerel dispute, sanctions have been implemented against Iceland, but the country continues to set its own quotas each fishing year. The dispute demonstrates the limitations of high seas fisheries management mechanisms, and the challenges involved in ensuring compliance. In other words, a changing climate has been challenging the effectiveness of existing international resource management structures in Arctic waters. The matter of quota allocation and access to the exclusive economic zones tend to be a highly controversial aspect of fisheries management anytime, thus this problem might be solved by a broader and more powerful set of compliance mechanisms. Nowadays, the basis for a legal framework in the region are the UNCLOS of 1982 and the United Nations Fish Stocks Agreement (UNFSA) of 1995, they provide principles of international cooperation in conservation and fisheries management but do not formalize the way states use them.
Talking about the Arctic regions with local regimes, such as the Svalbard Fisheries Protection Zone in the Barents Sea or a nearshore area around the Franz Josef Land Archipelago, the exclusive fishing rights (full or limited) in the zones are given to nations as compared to full exclusive economic zones. Those countries manage to provide access to their waters to other interested parties. However, if a fisheries conflict appears, the broader system of laws may be very helpful. For instance, a discord on the use of the Svalbard Fisheries Protection Zone established by the Norwegian Government in 1977 still needs to be resolved, as soon as it has been an issue of international dispute ever since.
Fisheries galore in the Arctic requires the precautionary approach which is always a part of a broader set of principles of responsible harvesting that includes biodiversity protection, science-based decisions, and ecosystem awareness. The changes occurring in the Arctic due to shrinking of sea ice may create unfavourable conditions for species that are economic resources at present. All kinds of human activities that were not possible because of severe climate characteristics, may result in risk of environmental degradation and consequently to decrease in fish stocks. The absence of a single effective governance complex on enforcing power that coordinates fishing in the Arctic region might also lead to the situation that the international cooperation in the fisheries sector is affected. The exploration and exploitation of living resources in the marine Arctic will require the adoption of new regulatory measures in order to effectively mitigate and adapt to climate change.
Turning Weakness into Strengths
The existing framework for fisheries management, with global, regional and national components is applicable to the Arctic. Despite a large number of bodies where cooperation in research and management occurs, a comprehensive, Arctic-specific legal regime is still lacking. The Arctic Council remains the only organization working at the global Arctic level, with a focus on regional monitoring and conservation management. Nevertheless, there are no legally binding obligations, structural funding, or a permanent and independent secretariat at the Arctic Council.20) The Arctic is warming faster than any other region on Earth, so it requires a solution-focused approach. It may require preparation of additional measures applicable to the CAO and potentially to other parts of the Arctic Ocean in order to provide options for more stringent ecological/fisheries regulation on a regional basis by coastal and other interested states. In general, the CAOFA only aims to prevent rather than resolve the issues, so there is a long way to go to build a solid governance complex in the entire Arctic. Alternatively, it would be possible to fold the Arctic Ocean governance complex, including the CAOFA, into more comprehensive arrangements designed to use marine living resources sustainably. Admittedly, environmental security and shared fisheries interests should prevail on geopolitical agreements and conflicts in the Arctic region. The reinforcement of the existing system is possible through better cooperation and scientific coordination in the Arctic, effective inter-organizational networking, and quick response to the field.