International Governance of the Arctic Marine Environment

Weidemann, Lilly

doi:10.1007/978-3-319-04471-2_3

Lilly Weidemann²⁴

Part of the book series: Hamburg Studies on Maritime Affairs ((HAMBURG,volume 27))

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Abstract

The previous chapter showed that the Arctic Region is subject to massive transformations, triggered by climate change that affects the region with an intensity not experienced in any other part of the world. The resulting changes arguably represent the greatest challenge for the legal regime governing the Arctic marine environment.

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Notes

1.
Governance is a “general and overarching term that is used to describe methods and institutions which guide human behaviour toward certain goals”, Lawrence Juda and Timothy Hennessey, “Governance profiles and the management of the uses of large marine ecosystems,” Ocean Development & International Law 32, no. 1 (2001), 43–69, at 44; environmental governance means the “formal and informal arrangements, institutions, and mores which determine how resources or an environment are utilized; how problems and opportunities are evaluated and analyzed; what behaviour is deemed acceptable or forbidden; and what rules and sanctions are applied to affect the pattern of resource and environment use”, Juda, “Considerations in developing a functional approach to the governance of large marine ecosystems,” Ocean Development & International Law 30, no. 2 (1999), at 90 et seq. The present assessment therefore includes not only the applicable binding international treaties but also relevant ‘soft law’.
2.
Rob Huebert and Brooks B. Yeager, “A New Sea: The Need for a Regional Agreement on Management and Conservation of the Arctic Marine Environment,” (January 2008), at 8.
3.
Rob Huebert, “Cooperation or Conflict in the Arctic?,” in Changes in the Arctic environment and the law of the sea, ed. Myron H. Nordquist, John N. Moore and Tomas H. Heidar, Center for Oceans Law and Policy (Leiden: Martinus Nijhoff Publishers, 2010), 27–59, at 27.
4.
Ibid., at 29.
5.
Huebert and Yeager, supra note 2, p. 3.
6.
Davor Vidas, Protecting the polar marine environment: interplay of regulatory frameworks, in: id., ed., Protecting the polar marine environment: Law and policy for pollution prevention (New York: Cambridge University Press, 2000), 3–16, p. 14.
7.
Hardly any of the cooperative organisations in the Arctic region existed at the beginning of the 1990s, see Richard Langlais, “Arctic co-operation organisations: a status report: for the Standing Committee of Parliamentarians of the Arctic Region,” (Rovaniemi 2000), p. 4; however, there were multi-lateral treaties among the Arctic nations as early as 1911 (North Pacific Sealing Convention), as well as in 1920 (Treaty of Spitsbergen) and 1973 (Agreement on the Conservation of Polar Bears), see Young, “The Structure of Arctic Cooperation: Solving Problems/Seizing Opportunities”, p. 5.
8.
See Donald Rothwell, The polar regions and the development of international law, 1. publ., Cambridge studies in international and comparative law: New series; 3 (Cambridge: Cambridge University Press, 1996), p. 221 et seq.
9.
See Willy Østreng, “The post-Cold War Arctic: Challenges and transition during the 1990s,” in Arctic Development and Environmental Challenges: Information needs for decision-making and international co-operation. Ringkjøbing/Gentofte: Scandinavian Seminar College, distributed by Erling Olsens Forlag, 1997; Papers from a Nordic Policy Seminar, Arendal, Norway, September 8–10, 1996, 33–49, at 33; Rothwell, supra note 8, p. 224.
10.
See ibid., p. 229.
11.
Mikhail Gorbachev, The Speech in Murmansk at the ceremonial meeting on the occasion of the presentation of the Order of Lenin and the Gold Star Medal to the city of Murmansk: October 1, 1987 (Moscow: Novosti Press Agency, 1987), p. 730, reprinted on http://www.barentsinfo.fi/docs/Gorbachev_speech.pdf, last visited 26 March 2012.
12.
See Bernt Bull, “Arctic development and environmental challenges: Information needs for decision-making and international co-operation,” in Arctic Development and Environmental Challenges, supra note 9, 25–31, at 28.
13.
Arctic Environmental Protection Strategy, Declaration on the Protection of Arctic Environment, Rovaniemi, 14 June 1991.
14.
Geir Hønneland and Olav S. Stokke, “Introduction,” in International cooperation and arctic governance: Regime effectiveness and northern region building, ed. Olav Schram Stokke and Geir Hønneland, (London: Routledge, 2007), pp. 1–12, at 3.
15.
Arctic Environmental Protection Strategy, supra note 13, p. 2.
16.
Ibid., p. 2.
17.
Ibid., p. 12 et seqq.
18.
Ibid., p. 20 et seqq.
19.
Ibid., p. 25 et seqq.
20.
Ibid., p. 30 et seqq.
21.
Ibid., p. 33 et seqq.
22.
Ibid, p. 35 et seqq.
23.
Ibid, p. 38 et seqq.
24.
Ibid., p. 40 et seqq.
25.
Ibid., p. 42.
26.
Arctic Environmental Protection Strategy, supra note 13, p. 42.
27.
The Nuuk Declaration, Nuuk, 16 September 1993.
28.
Ibid.
29.
Report of the Nuuk Meeting, 1993.
30.
Ibid.
31.
Timo Koivurova and David VanderZwaag, “The Arctic Council at 10 years: Retrospect and prospects,” University of British Columbia law review 40, no. 1 (2007), 121–195, at 127.
32.
Report of the Nuuk Meeting, para. 2.
33.
The Nuuk Declaration, Nuuk, supra note 27, preamble; expressly cited principle 2 and principle 22 of the Rio Declaration on the right to exploit own resources and the responsibility for activities within a nation’s jurisdiction and on the importance of indigenous people for environmental management and development, ibid; the Ministers also articulated their support of the early ratification of the U.N. Conventions on Biological Diversity and Climate Change, ibid., para. 10; Likewise, support for the implementation of the provisions of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) was expressed with the objective of an “internationally transparent domestic process for the environmental impact assessment”, ibid., para. 8.
34.
See Inuvik Declaration, Inuvik, 21 March 1996, cipher 15: “We are fully committed to the earliest possible establishment of the Arctic Council.”
35.
Ibid., cipher 6.
36.
Ibid., preamble.
37.
Inuvik Declaration, Inuvik, 21 March 1996, cipher 6.
38.
Declaration on the Establishment of the Arctic Council, Ottawa, 19 September 1996.
39.
See The Nuuk Declaration, Nuuk, supra note 27, cypher 2.
40.
See Lars-Erik Liljelund, “International cooperation and action for the Arctic environment and development: An overview of governmental efforts,” in Arctic Development and Environmental Challenges (supra note 9), 61–64, at 63; Koivurova and VanderZwaag, supra note 31, at 129; As expressed in its founding document the Arctic Council was created to:
“a. provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic indigenous communities and other Arctic inhabitants on common arctic issues*, in particular issues of sustainable development and environmental protection in the Arctic.
b. oversee and coordinate the programs established under the AEPS on the Arctic Monitoring and Assessment Program (AMAP); conservation of Arctic Flora and Fauna (CAFF); Protection of the Arctic Marine Environment (PAME); and Emergency Preparedness and Response (EPPR).
c. adopt terms of reference for and oversee and coordinate a sustainable development program.
d. disseminate information, encourage education and promote interest in Arctic- related issues.”
The asterisk (*) after “issues” in point “a” refers to a significant caveat: “The Arctic Council should not deal with matters related to military security.”
41.
See Declaration on the Establishment of the Arctic Council, supra note 38.
42.
See Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations, signed 21 March 1986, not yet in force, 25 ILM 543 (1986); the establishment of the Arctic Council as a discussion forum as opposed to an international organisation with legal personality was a prerequisite demanded by the United States, see Evan T. Bloom, “Establishment of the Arctic Council,” The American Journal of International Law 93, no. 3 (1999), at 721.
43.
These are the eight Arctic nations that also formed the AEPS.
44.
The category of Permanent Participants was created through the Ottawa Declaration. This special membership status is open to Arctic organisations of indigenous peoples that represent either a single indigenous people resident in more than one arctic State; or more than one Arctic indigenous people resident in a single Arctic State. These have the right to participate in all Council Meetings and need to be fully consulted before decision-making, see Declaration on the Establishment of the Arctic Council, supra note 38, p. 2. Although they have no formal decision-making power, permanent participants are in a position to exert “much practical influence on the decision-making of the Council”, Koivurova and VanderZwaag, supra note 31, at 127. Permanent Participants are currently the Aleut International Association (AIA), the Arctic Athabaskan Council (AAC), the Gwich’in Council International (GCI), the Inuit Circumpolar Conference (ICC), the Russian Association of Indigenous Peoples of the North (RAIPON) and the Saami Council.
45.
Observer status can be obtained by non-arctic states, global or regional inter-governmental and inter-parliamentary organisations, and non-governmental organisations, see Declaration on the Establishment of the Arctic Council, supra note 38, p. 2. Non-Arctic states with a permanent observer status comprise France, Germany, Poland, Spain, the Netherlands and the United Kingdom. Inter-governmental and inter-parliamentary organisations with observer status are the Arctic Circumpolar Route, the Association of World Reindeer Herders (AWRH), the Circumpolar Conservation Union (CCU), the International Arctic Science Committee (IASC), the International Arctic Social Sciences Association (IASSA), the International Union for Circumpolar Health (IUCH), the World Conservation Union (IUCN), the International Work Group for Indigenous Affairs (IWGIA), the North Atlantic Marine Mammal Commission (NAMMCO), the Nordic Council of Ministers (NCM), the Nordic Environment Finance Corporation (NEFCO), the Northern Forum, the Standing Committee of Parliamentarians of the Arctic Region (SCPAR), the University of the Arctic (UArctic), the United Nations Development Programme (UNDP) and UNEP-GRID/Arendal. Non-governmental observer organisations are the International Federation of Red Cross and Red Crescent Societies (IFRC) and the World Wide Fund for Nature (WWF), see homepage of the Arctic Council, available at: http://www.arctic-council.org.
46.
Ad hoc observers are granted observer status for a specific meeting, see Arctic Council, Rules of Procedure, as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, Iqaluit, Canada, September 17–18, 1998, no. 37.
47.
Arctic Council, Rules of Procedure, supra note 46, no. 17.
48.
Ibid., no. 15.
49.
At the 2011 Ministerial Meeting in Greenland, Hillary Clinton was the first US Secretary of State to participate in an Arctic Council meeting, see e.g. Alex Spillius, “Arctic Circle meets to discuss mineral exploration,” The Telegraph, May 12, 2011. This demonstrates that the Arctic Region has risen on the US American political agenda, see Hillary Rodham Clinton, interview by Tom Clark, March 29, 2010.
50.
Arctic Council, Rules of Procedure, supra note 46, no. 7.
51.
Koivurova and VanderZwaag, supra note 31, at 137.
52.
For a list of activities and programs of the Arctic Council working groups consult the website of the Arctic Council, available at: www.arctic-council.org.
53.
It was designed to “provide reliable and sufficient information on the status of, and threats to, the Arctic environment, and to provide scientific advice on actions to be taken in order to support Arctic governments in their efforts to take remedial and preventive actions relating to contaminants.”, information retrieved from the AMAP website: www.amap.no, last visited 26 March 2012.
54.
Information retrieved from the AMAP website, ibid.
55.
The first of these was published in 1997 (Arctic Pollution Issues: A State of the Arctic Environment Report, Arctic Monitoring and Assessment Programme, Oslo), the second in 2002 (Arctic Pollution 2002, Arctic Monitoring and Assessment Programme, Oslo) and the third in 2009 (Arctic Pollution 2009, Arctic Monitoring and Assessment Programme, Oslo).
56.
Susan J. Hassol, Impacts of a warming Arctic: Arctic Climate Impact Assessment (Cambridge, New York: Cambridge University Press, 2004), p. 8, available at: http://amap.no/workdocs/index.cfm?dirsub=%2FACIA%2Foverview/http://amap.no/acia//http://www.acia.uaf.edu/, last visited 17 December 2011.
57.
AMAP 2009, Update on Selected Climate Issues of Concern, Arctic Monitoring and Assessment Programme, Oslo 2009, p. iii.
58.
See AMAP Homepage, About AMAP, Introduction, available at: http://www.amap.no/aboutamap/introduction.htm, last visited 30 March 2012.
59.
See Arctic Council, Arctic Council Action Plan to Eliminate Pollution of the Arctic (ACAP), Barrow, October 13, 2000, p. 1.
60.
Salekhard Declaration, on the occasion of the tenth Anniversary of the Arctic Council, the Fifth AC Ministerial Meeting, Salekhard, 26 October 2006.
61.
Ibid.
62.
Information retrieved from the CAFF website, available at: http://caff.arcticportal.org/index.php?option=com_content&view=category&layout=blog&id=4&Itemid=18, last visited 21 September 2009.
63.
Strategic Plan for the Conservation of Arctic Biological Diversity, September 1998, available at: http://arcticportal.org/uploads/RX/zN/RXzNc4KU8QKfhN_KDw_oQQ/The-StrategicPlanforTheConservofArcticBiolDiv.pdf, last visited 21 September 2009.
64.
See Arctic Environmental Protection Strategy, supra note 13, p. 36.
65.
Arctic Marine Shipping Assessment 2009 Report, Arctic Council, April 2009, available at: http://www.pame.is/images/stories/PDF_Files/AMSA_2009_Report_2nd_print.pdf, last visited 26 March 2012, p. 13.
66.
Ibid.
67.
See Arctic Council, Sustainable Development Framework Document: Barrow, Alaska, October 13, 2000.
68.
See PAME International Secretariat, Protection of the Arctic Marine Environment, Working Group of the Arctic Council 2011–2013, available at: http://www.pame.is/images/phocadownload/pame_einblodungur.pdf, last visited 30 March 2012.
69.
Arctic Council Protection of the Arctic Marine Environment Working Group, Arctic Offshore Oil and Gas Guidelines, 29 April 2009, available at: http://arcticportal.org/uploads/F7/aC/F7aCQhSrOfC4y9XIaHWZpw/Arctic-Guidelines-2009-13th-Mar2009.pdf, last visited 26 March 2012.
70.
Arctic Marine Shipping Assessment 2009 Report, supra note 65.
71.
See Timo Koivurova, Erik J. Molenaar and David L. VanderZwaag, “Canada, the EU, and Arctic Ocean Governance: A Tangled and Shifting Seascape and Future Directions,” Journal of Transnational Law & Policy 18 (2008–2009) 247–288, at 263.
72.
See Carina Keskitalo, “International Region-Building: Development of the Arctic as an International Region,” Cooperation and Conflict 42, no. 2 (2007) 187–205, at 193.
73.
See Young, supra note 7, p. 15.
74.
Oran Young, “Whither the Arctic 2009? Further developments,” Polar Record 45, no. 2 (2009) 179–181, at 180; id., “The Arctic in Play: Governance in a Time of Rapid Change,” International Journal of Marine and Coastal Law 24 (2009) 423–442, at 437; David L. Vander Zwaag, Rob Huebert and Stacey Ferrara, “The Arctic Environmental Protection Strategy, Arctic Council and multilateral environmental initiatives: tinkering while the Arctic marine environment totters,” in The law of the sea and polar maritime delimitation and jurisdiction, ed. Alex G. Oude Elferink and Donald R. Rothwell, 225–48 (Hague: Nijhoff, 2001), at 240.
75.
Ibid., at 237.
76.
Timo Koivurova, “Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic governance,” Polar Record 46, no. 2 (2010) 146–156, at 153.
77.
Koivurova, Molenaar and VanderZwaag, supra note 71, at 264.
78.
See Olav S. Stokke, Geir Hønneland and Peter J. Schei, “Pollution and conservation,” in International cooperation and arctic governance: Regime effectiveness and northern region building, supra note 14, 78–111, at 92; Duncan French and Karen Scott, “International legal implications of climate change for the polar regions: Too much, too little, too late?,” Melbourne Journal of International Law 10, no. 2 (2009), 631–654, at 633.
79.
See Rob Huebert, “The law of the sea and the Arctic: An unfulfilled legacy,” Ocean Yearbook 18 (2004), 193–219, at 211 et seq., 218.
80.
Ibid.
81.
See Erika Lennon, “A Tale of Two Pole: A Comparative Look at the Legal Regimes in the Arctic and the Antarctic,” Sustainable Development and Law 8, no. 3 (2008) 32–36, at 34.
82.
Koivurova and VanderZwaag, supra note 31, at 157; Timo Koivurova and Md W. Hasanat, “The Climate Policy of the Arctic Council,” in Climate governance in the Arctic, ed. Timo Koivurova, E. C. Keskitalo and Nigel Bankes, 1. Ed., 51–75 (Dordrecht: Springer Netherland, 2009).
83.
Ibid., at 70.
84.
Kristine Offerdal, “Oil, gas and the environment,” in International cooperation and arctic governance: Regime effectiveness and northern region building, supra note 14, 138–63, at 142.
85.
Stokke, Hønneland and Schei, supra note 78, at 93.
86.
Richard Sale and Eugene Potapov, The scramble for the Arctic: Ownership, exploitation and conflict in the far north, 1. Frances Lincoln (London: Lincoln Limited Publishers, 2010), p. 141.
87.
Ibid., p. 141.
88.
Huebert and Yeager, supra note 2, p. 3.
89.
Sale and Potapov, supra note 86, p. 141.
90.
Ibid.
91.
Ibid., p. 141.
92.
Peter Stenlund, “Lessons in regional cooperation from the arctic,” Ocean & Coastal Management 45 (2002) 835–839, at 836.
93.
Offerdal, supra note 84, at 142.
94.
Information obtained from NEFCO’s homepage, available at: http://www.nefco.org/financing/arctic_council_project_support, last visited 14 April 2010.
95.
Arctic Council, Nuuk Declaration, supra note 27.
96.
Huebert and Yeager, supra note 2, p. 3.
97.
See homepage of the Arctic Council, available at: http://www.arctic-council.org, last visited 1 August 2011.
98.
Timo Koivurova, “Governance of protected areas in the Arctic,” Utrecht Law Review 5, no. 1 (2009) 44–60, at 47.
99.
Senior Arctic Official (SA0) Report to Ministers, Tromsø, Norway, April 2009, p. 33.
100.
Arctic Council, Nuuk Declaration, supra note 27.
101.
Senior Arctic Officials (SAO) Report to Ministers, Nuuk, Greenland, May 2011, p. 48.
102.
See Erik J. Molenaar and Robert Corell, “Arctic Fisheries: Background Paper,” (Arctic Transform, 9 February 2009), p. 5; this generated critique of the ICC, see Towards an Inuit Declaration on Arctic Sovereignty, Statement issued by Inuit Leaders at the Inuit Leaders’ Summit on Arctic Sovereignty, 6–7 November 2008, available at: http://www.sikunews.com/News/International/Arctic-Sovereignty-Begins-with-Inuit-5567, last visited 8 August 2011.
103.
Commercial Fishing in the Arctic, ICC Alaska Staff, DRUM, Vol. 2, Issue 2, June 2009, p. 1.
104.
Huebert and Yeager, supra note 2, p. 23.
105.
L. B. Crowder, Gail Osherenko and Oran e. a. Young, “Sustainability. Resolving mismatches in U.S. ocean governance.,” Science 313, no. 5787 (2006), 617–618, at 618.
106.
Timo Koivurova, “Governing Arctic Shipping: Finding a Role for the Arctic Council,” in The Yearbook of Polar Law, ed. Gudmundur Alfredsson and Timo Koivurova, 115–38 2 (Leiden Boston: Martinus Nijhoff Publishers, 2010), at 133.
107.
The Ilulissat Declaration, Arctic Ocean Conference Ilulissat, Greenland, 27–29 May 2008, available at: http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf, last visited 26 March 2012.
108.
Ibid.
109.
See e.g. N.N., “Russia plants flag under N Pole,” BBC News, August 2, 2007.
110.
Ilulissat Declaration, supra note 107.
111.
Ibid.
112.
See Brooks B. Yeager, “The Ilulissat Declaration: Background and Implications for Arctic Governance,” (5 November 2008); Prepared for the Aspen Dialogue and Commission on Arctic Climate Change, p. 2.
113.
See Foreign Affairs and International Trade Canada, Arctic Ocean Foreign Ministers’ Meeting, 29 March 2010, Chelsea, Quebec, http://www.international.gc.ca/polar-polaire/arctic-meeting_reunion-arctique-2010_index.aspx?view=d, last visited 2 August 2011.
114.
The respective Agreement was indeed concluded in May 2011, see Arctic Search and Rescue Agreement, available at: http://arctic-council.npolar.no/accms/export/sites/default/en/meetings/2011-nuuk-ministerial/docs/Arctic_SAR_Agreement_EN_FINAL_for_signature_21-Apr-2011.pdf, last visited 26 March 2012.
115.
Foreign Affairs and International Trade Canada, Arctic Ocean Foreign Ministers’ Meeting, 29 March 2010, Chelsea, Quebec, Chair’s Summary, http://www.international.gc.ca/polar-polaire/arctic-meeting_reunion-arctique-2010_summary_sommaire.aspx?lang=en&view=d, last visited 2 August 2011.
116.
Ibid.
117.
See Arctic Council, Meeting of Senior Arctic Officials, Final Report, 28–29 November 2007, Narvik, Norway.
118.
See Arctic Council, Meeting of Senior Arctic Officials, supra note 117, p. 20: “Iceland expressed concerns that separate meetings of the five Arctic states, Denmark, Norway, US, Russia and Canada, on Arctic issues without the participation of the members of the Arctic Council, Sweden, Finland and Iceland, could create a new process that competes with the objectives of the Arctic Council. If issues of broad concern to all of the Arctic Council Member States, including the effect of climate change, shipping in the Arctic, etc. are to be discussed, Iceland requested that Denmark invite the other Arctic Council states to participate in the ministerial meeting. Permanent participants also requested to participate in the meeting. Denmark responded that the capacity of the venue may be an issue.”; The 8th Conference of Parliamentarians of the Arctic Region Fairbanks, United States, 12–14 August 2008, Conference Report, para. 39, available at: http://www.arcticparl.org/files/files%20from%208th%20conference/Conference_Report_Fairbanks_final.pdf, last visited 3 August 2011; N.N., “Iceland upset by Arctic summit snub,” cbcnews, February 16, 2010, http://www.cbc.ca/news/canada/north/story/2010/02/16/north-arctic-five.html.
119.
Mary B. Sheridan, “Clinton rebukes Canada at Arctic meeting,” Washington Post, March 30, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/29/AR2010032903577.html.
120.
See Koivurova, supra note 106, at 134.
121.
See N.N., “Hillary Clinton criticises Canada over Arctic talks,” BBC News, March 30, 2010.
122.
See Juliet O’Neill and Randy Boswell, “Clinton blasts Canada for exclusive Arctic talks,” Canwest News Service, March 29, 2010, http://www.globalnews.ca/aboutus/clinton+blasts+canada+exclusive+arctic+talks/2740420/story.html.
123.
Atle Staalesen, “Formalizing the Arctic G5,” BarentsObserver, March 30, 2010.
124.
N.N., “Cannon defends Arctic summit’s guest list,” cbcnews, February 17, 2010.; by the same token, ministers argued at the meeting in Ilulissat, N.N., “Finland, Sweden, Iceland left out,” SIKU news, May 21, 2008.
125.
For China’s ambitions with regard to the Arctic see Linda Jakobson, “China prepares for an ice-free Arctic,” SIPRI Insights on Peace and Security 2010/2 (March 2010).
126.
See Meeting of Senior Arctic Officials, Final Report, 28–29 April 2010, Ilulissat, p. 2.
127.
N.N., “India might become an observer of Arctic Council: US,” Press Trust of India/Business Standard, May 10, 2011, http://www.business-standard.com/india/news/india-might-become-an-observerarctic-council-us/134569/on (accessed August 11, 2011).
128.
Ministers declared “to continue discussing the role of observers in the Arctic Council”(Tromsø Declaration on the occasion of the Sixth Ministerial Meeting of the Arctic Council, 29 April 2009, Tromsø, Norway), which means they did not decide over the applications and thus postponed the verdict to the next meeting two years later.
129.
Leigh Phillips, Arctic Council rejects EU’s observer application (2009), euobserver, available at: http://euobserver.com/885/28043, last visited 26 March 2012.
130.
Senior Arctic Officials (SAO) Report to Ministers, Nuuk, Greenland, May 2011, p. 50 et seq.; Nuuk Declaration on the occasion of the Seventh Ministerial Meeting of the Arctic Council, 12 May 2011, Nuuk, Greenland, p. 2.
131.
Senior Arctic Officials (SAO) Report to Ministers, Nuuk, Greenland, May 2011, loc. cit. supra note 130.
132.
Norway’s foreign ministers Jonas Gahr Stoere said lately: “The Arctic Council’s biggest challenge in the past was its rather anonymous existence. Its biggest challenge today is how to deal with the growing list of states who want to become observers”, see Alister Doyle, “New Arctic naval challenges seen as ice thaws,” Reuters, May 11, 2011, http://www.reuters.com/article/2011/05/11/us-arctic-norway-idUSTRE74A3JY20110511.
133.
N.N., Observers role specification in Arctic Council completed-official (2011), Amber bridge, available at: http://ambbr.org/newstext?id=6415&lang=eng, last visited 26 March 2012.
134.
Koivurova, supra note 106, at 135.
135.
Doyle, supra note 132.
136.
See Brooks B. Yeager, “Managing Towards Sustainability in the Arctic: Some Practical Considerations,” in New Chances and New Responsibilities in the Arctic Region: Papers from the International Conference at the German Federal Foreign Office in cooperation with the Ministries of Foreign Affairs of Denmark and Norway, 11–13 March 2009, Berlin, ed. Georg Witschel et al., 567–78 (Berlin: Berliner Wissenschafts-Verlag), at 577.
137.
The overview of the international, regional and national organisations focused on the Arctic provided by the Russian Geographical Society amounts to some 40 organisations with relation to the environment, see Homepage of the Russian Geographical Society, International, regional and national organizations focused on the Arctic, available at: http://int.rgo.ru/arctic/arctic-overview/international-regional-and-national-organizations-focused-on-the-arctic/, last visited 8 August 2011.
138.
See Langlais, supra note 7, p. 4.
139.
Founding Articles for an International Arctic Science Committee IASC, August 1990, reprinted in: IASC Handbook, available at: http://iasc.arcticportal.org/files/IASC_Handbook.pdf, last visited 5 August 2011.
140.
Member States are the eight Arctic States plus China, France, Germany, Italy, Japan, The Netherlands, Poland, the Republic of Korea, Spain, Switzerland, and the United Kingdom, see IASC homepage, Council Members, available at: http://iascnew.arcticportal.org/index.php/home/iasc/organization/council/canada, last visited 5 August 2011.
141.
IASC Handbook, supra note 139.
142.
Odd Rogne, “International Arctic Science Committee (IASC),” in Encyclopedia of the Arctic: Volume 2 G-N, ed. Mark Nuttall, 3 vols., 983–4 (New York: Routledge, 2005), at 983.
143.
Information retrieved from the IASC homepage, Partners, Affiliations, available at: http://iascnew.arcticportal.org/index.php/home/iasc/partners/affiliations, last visited 5 August 2011.
144.
GRID stands for Global and Regional Integrated Data, see UNEP 2006 Annual Report, available at: http://www.unep.org/pdf/annualreport/UNEP_AR_2006_English.pdf, last visited 22 September 2009.
145.
GRID-Arendal, Strategy 2009–2013, available at: http://www.grida.no/files/about/strategy-2009-2013.pdf, last visited 11 August 2011.
146.
See UNEP 2006 Annual Report, available at: http://www.unep.org/pdf/annualreport/UNEP_AR_2006_English.pdf, last visited 22 September 2009, p. 21.
147.
Ibid., see also GRID-Arendal’s homepage, available at: http://www.grida.no/, last visited 11 August 2011.
148.
Homepage of the Arctic Council, The Arctic Council, Observers, available at: www.arctic-council.org, last visited 8 August 2011.
149.
The Monaco Decision on Sustainable Development in the Arctic encouraged UNEP “to cooperate, as requested, with the Arctic Council, relevant multilateral environmental agreements and other relevant regional and international bodies”, Governing Council of the United Nations Environment Programme, Tenth special session of the Governing Council/Global Ministerial Environment Forum, Monaco, 20–22 February 2008, Decision SS.X/2. Sustainable development of the Arctic region, doc. UNEP/GCSS.X/10, Annex I, available at: http://www.unep.org/gc/gcss-x/download.asp?ID=569, last visited 11 August 2011.
150.
Homepage of GRID-Arendal, Projects & Activities, available at: http://www.grida.no/polar/activities/4486.aspx, last visited 8 August 2011.
151.
Declaration, Cooperation in the Barents Euro-Arctic Region, Conference of Foreign Ministers in Kirkenes, 11 January 1993 (Kirkenes Declaration), available at: http://www.barentsinfo.fi/beac/docs/459_doc_KirkenesDeclaration.pdf, last visited 7 August 2011; the cited states are the Member States of the BEAC; in addition, there are nine observer states: Canada, France, Germany, Italy, Japan, Netherlands, Poland, United Kingdom, United States of America.
152.
The counties or their equivalents in the Member States are: in Finland: Kainuu, Lapland and Oulu Region; in Norway: Finnmark, Nordland and Troms; in Russia: Arkhangelsk, Karelia, Komi, Murmansk and Nenets; and in Sweden: Norrbotten and Västerbotten, see homepage of the Barents-Euro Arctic Region, available at: http://www.beac.st/in_English/Barents_Euro-Arctic_Council/Barents_Regional_Council.iw3, last visited 4 August 2011.
153.
Indigenous peoples of the region are the Saami (in Norway, Sweden, Finland and Russia), the Nenets (in Russia) and the Veps (in Russia), see ibid.
154.
Protocol Agreement from the Statutory Meeting of the Regional Council of the Barents Region (The Euro-Arctic Region), Kirkenes, 11 January 1993, available at: http://www.barentsinfo.fi/beac/docs/501_doc_StatutoryMeetingRegionalCouncil.pdf, last visited 4 August 2011.
155.
See Langlais, supra note 7, p. 9; both Councils are neither international organisations under international law nor do they create legally binding duties for their members, see Md W. Hasanat, “Cooperation in the Barents Euro-Arctic Region in the Light of International Law,” in The Yearbook of Polar Law, vol. 2, ed. Gudmundur Alfredsson and Timo Koivurova, 279–309 2 (Leiden Boston: Martinus Nijhoff Publishers, 2010), at 280.
156.
Kirkenes Declaration, supra note 151, p. 2.
157.
See homepage of the Barents Euro-Arctic Region, Working Groups, BEAC Working Groups, Environment, available at: http://www.beac.st/?DeptID=8555, last visited 4 August 2011.
158.
Ibid.
159.
See homepage of the Barents Euro-Arctic Region, Working Groups, Regional Working Groups, Environment, available at: http://www.beac.st/?DeptID=8560, last visited 4 August 2011.
160.
See Homepage of the Barents Euro-Arctic Region, available at: http://www.beac.st/?DeptID=8555, last visited 4 August 2011.
161.
Swedish Chairmanship of the Barents Euro-Arctic Council, available at: http://www.barentsinfo.fi/beac/docs/SWE_chairmanship_programme_for_BEAC_WGE_2010_2011.pdf, last visited 4 August 2011.
162.
The Swedish Chairmanship of the Barents Euro-Arctic Council lists among the priorities of the Working Group on the Environment “Supporting the development of a representative and well-managed, in cooperation with the Arctic Council”, Swedish Chairmanship of the Working Group on the Environment 2010–2011, Swedish Chair of the Barents Euro-Arctic Council, supra note 161.
163.
Barents Euro-Arctic Region, Swedish Chairmanship of the Barents Euro-Arctic Council, The Barents Cooperation, November 2010, Information paper, p. 5, available at: http://www.barentsinfo.fi/beac/docs/Barents_comprehensive_information_paper_November_2010_English.pdf, last visited 4 August 2010.
164.
See Stokke, Hønneland and Schei, supra note 78, at 89.
165.
Denmark, Finland, Iceland, Norway and Sweden plus the Home Rule Governments of the Faeroe Islands and Greenland and the Regional Government of the Åland Islands, see Treaty of Co-operation between Denmark, Finland, Iceland, Norway and Sweden (the Helsinki Treaty), signed 23 March 1962, entered into force 1 July 1962, as amended by Agreements that were signed on 13 February 1971, 11 March 1974, 15 June 1983, 6 May 1985, 21 August 1991, 18 March 1993, and 29 September 1995, preamble and article 60, available at: http://www.norden.org/en/about-nordic-co-operation/agreements/treaties-and-agreements/basic-agreement/the-helsinki-treaty, last visited 5 August 2011.
166.
Helsinki Treaty, supra note 165.
167.
See homepage of the Nordic Council of Ministers, Why the Nordic Council of Ministers, available at: http://www.norden.org/en/nordic-council-of-ministers/the-nordic-council-of-ministers/why-the-nordic-council-of-ministers, last visited 5 August 2011.
168.
See homepage of the Nordic Council, About the Nordic Council, available at: http://www.norden.org/en/nordic-council/the-nordic-council, last visited 5 August 2011.
169.
Geir H. Haarde, “International cooperation and action for the Arctic environment and development: An overview of parliamentarian efforts,” in Arctic Development and Environmental Challenges (supra note 9), 65–69, at 66. That year, the Nordic Council convened a conference in Reykjavik Iceland, on development and protection of the Arctic region, see The Nordic Council’s International Conference for Parliamentarians on Development and Protection of the Arctic region, final document, Reykjavik, Iceland, 17 August 1993, reprinted in Vidas, Arctic Development and Environmental Challenges, supra note 9, appendix 5.
170.
Nikolaj Bock, “Nordic Council of Ministers - Arctic Cooperation,” (Nordic Council of Ministers), p. 1; in September 2008, the Nordic Council of Ministers hosted a Conference in Ilulissat, Greenland, on how Arctic issues can be addressed effectively by the EU, “Common concern for the Arctic: Conference arranged by the Nordic Council of Ministers 9–10 September 2008, Ilulissat, Greenland,” ANP (Nordic Council of Ministers).
171.
The Nordic Council of Ministers’ Arctic Co-operation Programme 2009–2011, November 2008.
172.
Homepage of the Arctic Council, The Arctic Council, Observers, available at: www.arctic-council.org, last visited 8 August 2011.
173.
Information retrieved from the website of the CPAR, available at: http://www.arcticparl.org/, last visited 22 September 2009.
174.
The Nordic Council’s International Conference for Parliamentarians on Development and Protection of the Arctic region, final document, supra note 169.
175.
See Langlais, supra note 7, p. 31.
176.
Political Declaration on the Northern Dimension Policy, 24 November 2006, p. 1, available at: http://eeas.europa.eu/north_dim/docs/pol_dec_1106_en.pdf, last visited 11 August 2011.
177.
The renewed ND policy was launched at the Helsinki Summit in November 2006. Consequently, the cooperation among its actors was reinforced. At the political level the new ND Political Declaration (supra note 176) and ND Policy Framework Document (Northern Dimension Policy Framework Document, 24 November 2006, available at: http://eeas.europa.eu/north_dim/docs/frame_pol_1106_en.pdf, last visited 11 August 2011) were adopted to substitute the Action Plans of 2000–2003 and 2004–2006. The main feature of the renewed policy is the co-ownership of the EU, Iceland, Norway and Russia (originally, there were seven partners, namely Iceland, Norway, Estonia, Latvia, Lithuania, Poland and Russia, of which four joined the EU in 2004, for further reading see Anne Haglund-Morrissey, “Conceptualizing the ‘New’ Northern Dimension: A Common Policy Based on Sectoral Partnerships,” Journal of Contemporary European Studies 16, no. 2 (2008) (accessed August 11, 2011), at 204.
178.
Political Declaration on the Northern Dimension Policy, supra note 176.
179.
Markku Heikkilä, “The Northern Dimension,” (23.08.2006) (accessed August 11, 2011), p. 9.
180.
Ibid.
181.
Northern Dimension Policy Framework Document, supra note 177, p. 1.
182.
Ibid., p. 1.
183.
Ibid., p. 5.
184.
Progress Report submitted to the Second Ministerial meeting of the Renewed Northern Dimension Policy, Oslo, 2 November 2010, p. 12, available at: http://eeas.europa.eu/north_dim/docs/progress_report_final.pdf, last visited 11 August 2011.
185.
Government units from Finland are partners and observers, see homepage of the Northern Forum, Member Regions Map, available at: http://www.northernforum.org/servlet/content/membermap.html, last visited 11 August 2011.
186.
The Northern Forum, Hokkaido Declaration, of the Second General Assembly of the Northern Forum, Sapporo, Japan, 14 September 1995, p. 1, available at: http://www.northernforum.org/servlet/download?id=216, last visited 11 August 2010.
187.
Information retrieved from the website of the Northern Forum, available at: http://www.northernforum.org/servlet/content/mission.html, last visited 22 September 2009.
188.
Homepage of the Arctic Council, The Arctic Council, Observers, available at: www.arctic-council.org, last visited 8 August 2011.
189.
The Northern Forum X General Assembly, Pyeong-Chang Declaration, Pyeong-Chang, Gangwon Province, Republic of Korea, 3 June 2011, p. 2, available at: http://www.northernforum.org/servlet/download?id=3723, last visited 11 August 2011.
190.
Ibid.; in the past, cooperation between these two bodies has faced challenges, see Oran R. Young, “Can the Arctic Council and the Northern Forum find common ground?,” Polar Record 38, no. 207 (2002), 289–296.
191.
See Stuart Chapin and Neil Hamilton, “Policy Options for Arctic Environmental Governance: Prepared by the Environmental Governance Working Group,” (Arctic Transform, 5 March 2009), p. 6.
192.
E. C. H. Keskitalo, ““New Governance” in the Arctic and Its Role for Supporting Climate Change Adaptation,” in Climate governance in the Arctic (supra note 82), 97–116, at 111.
193.
Ibid.
194.
Chapin and Hamilton, supra note 191, p. 3; Commission of the European Communities, Communication from the Commission to the European Parliament and the Council, The European Union and the Arctic Region, COM(2008) 763 final, Brussels, 20.11.2008, p. 10.
195.
Arctic Council, Nuuk Declaration on the occasion of the Seventh Ministerial Meeting of The Arctic Council, supra note 130, p. 2.
196.
Arctic Search and Rescue Agreement, supra note 114.
197.
Arctic Council, Nuuk Declaration, supra note 33, p. 4.
198.
See Koivurova, supra note 76, at 152.
199.
Particularly the US has been very reluctant to enter into any legally binding commitment, see National Security Presidential Directive No. 66 by president George W. Bush, Arctic Region Policy, January 9, 2009, available at: http://www.fas.org/irp/offdocs/nspd/nspd-66.htm, last visited 19 May 2010. “It is the position of the United States that the Arctic Council should remain a high-level forum devoted to issues within its current mandate and not be transformed into a formal international organization, particularly one with assessed contributions. The United States is nevertheless open to updating the structure of the Council, including consolidation of, or making operational changes to, its subsidiary bodies, to the extent such changes can clearly improve the Council’s work and are consistent with the general mandate of the Council.”
200.
See Stokke, Hønneland and Schei, supra note 78, p. 91; 97 et seq.
201.
For an overview of instruments relating to marine environmental protection, see the German Advisory Council on the Environment, Marine Environment Protection for the North and Baltic Seas, Special Report, February 2004, p. 35.
202.
Regarding this issue see Koivurova, Keskitalo and Bankes, eds., Climate governance in the Arctic (supra note 82) and Alf H. Hoel, “Climate change,” in International cooperation and arctic governance: Regime effectiveness and northern region building, ed. Olav Schram Stokke and Geir Hønneland, 112–37 (London: Routledge, 2007).
203.
Linda Nowlan, Arctic Legal Regime for Environmental Protection, IUCN Environmental Policy and Law Paper No. 44, 2001, IUCN, Gland, Switzerland and Cambridge, UK, in collaboration with IUCN Environmental Law Centre, Bonn, Germany, p. 18; apart from the agreements listed in the text, other agreements apply including the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation (IMO Doc. OPR/CONF/25); 1979 Convention on the Conservation of Migratory Species of Wild Animals (1651 UNTS 333); 1916 Convention for the Protection of Migratory Birds between Canada and the United States (Treaty Series No. 7, 1917); 1987 Agreement on the Conservation of the Porcupine Caribou Herd between Canada and the United States; 1911 Convention for the Preservation and Protection of Fur Seals (104 BFSP 175); 1973 Agreement on the Conservation of Polar Bears (27 UST 3918); 1946 International Convention for the Regulation of Whaling (161 UNTS 72); 1989 Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal (1673 UNTS 126); 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (996 UNTS 245); 2000 Convention on the Trans-boundary Effect of Industrial Accidents (2105 UNTS 457); 1996 I.E. Convention on Nuclear Safety (1963 UNTS 293); and the legal instruments relating to fisheries management, which will be dealt with later. In addition, there are several bilateral agreements relating to the marine environment in the Arctic, including the Agreement Between Sweden and Norway Concerning Certain Issues Over Water Rights; Agreement Between the Finnish Republic and the Soviet Union Concerning Frontier Watercourses; Agreement Concerning Frontier Rivers Between Finland and Sweden; Agreement Between the United States of America and Canada Relating to the Exchange of Information on Weather Modification Activities; Agreement Between Finland and Norway on Finnish Norwegian Borderwater Commission; Agreement Between the Government of the Kingdom of Denmark and the Government of Canada for Cooperation Relating to the Marine Environment; Agreement Between the Government of Canada and the Government of the United States of America on the Conservation of the Porcupine Caribou Herd; Agreement Between the Government of the United States of America and the Government of Canada on Air Quality; Action Program Between Finland and the Russian Federation with a view to Reduce Pollution and Implement Water Protection in the Baltic Sea Area as well as Other Areas Near the Border of Finland and Russian Federation; 1953 Convention between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and the Bering Sea; Agreement between the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations; Agreement between the Government of the Kingdom of Norway and the Government of the Union of the Soviet Socialist Republics on Mutual Fishing Relations; 1971 Agreement between the Government of Canada and the Government of Norway on Sealing and Conservation of the Seal Stocks in the Northwest Atlantic; Agreement between the Government of Norway and the Government of the Union of Soviet Socialist Republics on Measures Regulating the Catch and Conserving Stocks of Seals in the Northeastern Part of the Atlantic Ocean. There are also various sub-regional treaties relevant for the marine Arctic environment, such as the Nordic Environment Protection Convention. This research focuses on the international legal framework for the Arctic marine environment, and thus the sub-regional and bilateral agreements are excluded from the assessment.
204.
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, concluded 29 December 1972, entered into force 30 August 1975, 26 UST 2403.
205.
International Convention for the Prevention of Pollution from Ships, concluded 2 November 1973, entered into force 2 October 1983, 1340 UNTS 184 as amended by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, concluded 17 February 1978, entered into force 2 October 1983, 1340 UNTS 61.
206.
Convention on Biological Diversity, concluded 5 June 1992, entered into force 29 December 1993, 1760 UNTS 79.
207.
Convention on International Trade in Endangered Species of Wild Fauna and Flora, concluded 3 March 1973, entered into force 1 July 1975, 993 UNTS 243.
208.
Convention Concerning the Protection of the World Cultural and Natural Heritage, concluded 23 November 1972, entered into force 15 December 1975, 1037 UNTS 151.
209.
Convention on Environmental Impact Assessment in a Transboundary Context, signed 25 February 1991, entered into force 10 September 1997, 30 ILM 803.
210.
See Colette de Roo, “Environmental governance in the marine Arctic,” Yearbook of Human Rights & Environment 9 (2009), 101–170, at 101.
211.
Tommy T.B. Koh, President of the Third UN Conference on the Law of the Sea, A Constitution for the Oceans, available at: http://www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf; Catherine Redgwell, “From Permission to Prohibition: The 1982 Convention on the Law of the Sea and Protection of the Marine Environment,” in The Law of the sea: Progress and prospects, ed. David Freestone, Richard Barnes and David M. Ong, 180–91 (Oxford: Oxford University Press, 2006), at 186; the term “Constitution” should and was arguably meant to be understood as a “metaphor rather than a legal concept (Rainer Lagoni, “Commentary,” in Stability and change in the law of the sea: The role of the LOS Convention, ed. Alex G. Oude Elferink, 49–51, Series A, Modern international law 24 (Leiden: Nijhoff, 2005), at 49) in the sense that it provides the basic legal framework for the ocean. For the reasons why UNCLOS regarding its legal character cannot be equalized with national constitutions, see Rainer Lagoni, ibid.; Oran R. Young, “Commentary on Shirley V. Scott, “The LOS Convention as a constitutional Regime for the Oceans”,” in Stability and change in the law of the sea: The role of the LOS Convention, ed. Alex G. Oude Elferink, 39–46, Series A, Modern international law 24 (Leiden: Nijhoff, 2005).
212.
United Nations, Impact of the entry into force of the 1982 United Nations, Report of the Secretary-General, 20 October 1997, Doc. A/52/491.
213.
Hans H. Hertell, “Arctic Melt: the Tipping Point for an Arctic Treaty,” The Georgetown International Environmental Law Review 21, no. 3 (2009), at 571; see Budislav Vukas, “United Nations Convention on the Law of the Sea and the polar marine environment,” in Protecting the polar marine environment, supra note 6, 34–56, at 34.
214.
Timo Koivurova and Erik J. Molenaar, “International Governance and Regulation of the Marine Arctic: Options for Addressing Identified Gaps,” (January 2009), available at: http://img9.custompublish.com/getfile.php/1092818.1529.fewsuutsbp/Options+for+Addressing+IdentifiedGaps_0306.pdf?return=www.arcticgovernance.org, last visited 12 March 2012, p. 14.
215.
Myron H. Nordquist, ed., United Nations Convention on the Law of the Sea, 1982: A commentary, vol. 4 (Dordrecht: Nijhoff, 1991), Article 234, 234.1.
216.
See United Nations Treaty Collection, Status of UNCLOS, available at: http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en, last visited 28 May 2010; however, the US considers UNCLOS as generally reflecting customary law of the sea and thus adapts its ocean policy accordingly, see Howard S. Schiffman, “U.S. Membership in UNCLOS: What effects for the marine environment?,” ILSA Journal of International and Comparative Law 11, no. 2 (2005), 477–483, at 482; still, it has to be noted that the US takes the view that Part XI of UNCLOS on the Area does not reflect customary international law and accordingly does not create rights and obligations for non-parties. Furthermore, the dispute settlement mechanism in Part XV of UNCLOS is not able to become part of customary law due to its procedural nature, see Erik J. Molenaar, “Arctic Fisheries Conservation and Management: Initial Steps of Reform of the International Legal Framework,” in The Yearbook of Polar Law, ed. Gudmundur Alfredsson and Timo Koivurova, 427–64 1 (Leiden Boston: Martinus Nijhoff Publishers, 2009), at 436.
217.
See Division for Ocean Affairs and the Law of the Sea (DOALOS), Summary of National Claims, 28 May 2008, available at: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_claims.pdf, last visited 4 February 2011.
218.
Where the maximum breadth of the maritime zones set out in UNCLOS cannot be reached due to proximity of the baselines of opposite states, maritime boundaries have to be agreed on. To date, there are ten bilateral agreements delimiting maritime zone and continental shelf boundaries between the five countries that border the Arctic Ocean, in addition to unresolved boundary issues, Maritime jurisdiction and boundaries in the Arctic region, Durham University/International Boundaries Research Unit, updated 4 May 2010, available at: http://www.dur.ac.uk/resources/ibru/arctic.pdf, last visited 2 June 2010.
219.
See UN Commission on the Limits of the Continental Shelf, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/11, 13 May 1999.
220.
See Commission on the Limits of the Continental Shelf (CLCS), Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Russian Federation, submitted 20 December 2001, available at: http://www.un.org/depts/los/clcs_new/submissions_files/submission_rus.htm, last visited 4 February 2011.
221.
See UN General Assembly, Oceans and the law of the sea, Report of the Secretary-General, Addendum, 8 October 2002, UN Doc. A/57/57/Add.1, para 41.
222.
See Ted L. McDorman, “The Outer Continental Shelf in the Arctic Ocean,” in Law, technology and science for oceans in globalisation: IUU fishing, oil pollution, bioprospecting, outer continental shelf, ed. Davor Vidas, 499–520 (Leiden: Nijhoff, 2010), at 515; Atle Staalesen, Historic Arctic expedition takes off from Arkhangelsk, BarentsObserver.com, 29 July 2010, available at: http://www.barentsobserver.com/historic-arctic-expedition-takes-off-from-arkhangelsk.4802715-16149.html, last visited 4 February 2011.
223.
CLCS, Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Kingdom of Norway, submitted 27 November 2006, available at: http://www.un.org/depts/los/clcs_new/submissions_files/submission_nor.htm, last visited 4 February 2011.
224.
See CLCS, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in 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 27 March 2009, available at: http://www.un.org/depts/los/clcs_new/submissions_files/nor06/nor_rec_summ.pdf, last visited 4 February 2011; Øystein Jensen, “Towards Setting the Outer Limits of the Continental Shelf in the Arctic: On the Norwegian Submission and Recommendations of the Commission,” in Law, technology and science for oceans in globalisation, supra note 222, 521–38.
225.
Partial Submission of the Government of the Kingdom of Denmark together with the Government of the Faroes to the Commission on the Limits of the Continental Shelf, The Continental Shelf North of the Faroe Islands, submitted 29 April 2009, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/dnk28_09/dnk2009executivesummary.pdf, last visited 4 February 2011.
226.
Partial Submission of the Government of the Kingdom of Denmark together with the Government of the Faroes to the Commission on the Limits of the Continental Shelf, The Southern Continental Shelf of the Faroe Islands, submitted 2 December 2010, available at: http://www.un.org/depts/los/clcs_new/submissions_files/dnk54_10/SFM-Executive_Summary_secure.pdf, last visited 4 February 2011.
227.
Denmark Ministry of Science, Technology and Innovation, The Continental Shelf Project, available at: http://a76.dk/lng_uk/main.html, last visited 4 February 2011.
228.
Foreign Affairs and International Trade Canada, Canada’s Extended Continental Shelf, http://www.international.gc.ca/continental/index.aspx, last visited 4 February 2011.
229.
U.S. Department of State, Defining the Limits of the U.S. Continental Shelf, http://www.state.gov/g/oes/continentalshelf, last visited 4 February 2010.
230.
See Foreign Affairs and International Trade Canada, Third Canada-U.S. Joint Continental Shelf Survey to Showcase Scientific Cooperation in the Arctic, available at: http://www.international.gc.ca/media/aff/news-communiques/2010/238.aspx, last visited 4 February 2011.
231.
J. A. Roach, “International law and the Arctic: A guide to understanding the issues,” Southwestern Journal of International Law 15, no. 2 (2009) 301–326, at 305; see Suzette V. Suarez, The Outer Limits of the Continental Shelf: Legal Aspects of their Establishment, 1st ed. (Heidelberg: Springer-Verlag, 2008), p. 180 et seq.; according to McDorman, the US “is not subject to the procedural obligation to submit information to the Commission”, id., supra note 222, at 502; however, they “should not and cannot benefit from [an extended continental shelf] without the attached responsibilities”, Suarez, op. cit.
232.
Most of it is thought to be situated within the 200 nm-zone.
233.
Nordquist, supra note 215; others refer to it as “Canadian clause” or “Arctic exception”, see Rob Huebert, “Article 234 and Marine Pollution Jurisdiction in the Arctic,” in The law of the sea and polar maritime delimitation and jurisdiction, supra note 74, 249–68, at 249.
234.
The inclusion of Article 234 into UNCLOS legitimised Canada’s Arctic Waters Pollution Prevention Act (AWPPA) (R.S., 1985, c. A-12) by extending the right of Arctic coastal States to implement and enforce marine protection laws within the EEZ, see Hal Mills, “The Environment and the Northwest Passage,” in Transit management in the Northwest Passage: Problems and prospects, Studies in polar research (Cambridge: Cambridge University Press, 1988), 8–64, at 13; Nicholas C. Howson, “Breaking the ice: The Canadian-American dispute over the Arctic’s Northwest passage,” Columbia Journal of Transnational Law (1988), 337–375, at 354. The AWPPA extended Canada’s jurisdiction for the prevention of pollution in waters north of 60°N to a zone 100 miles from the baseline from which the territorial sea is measured. Within this zone Canada would have the power to regulate all shipping, including the authority to prohibit it, and to prescribe standards on issues such as design construction, and manning for ships entering the zone. Powers of arrest and prosecution to enforce the provisions were included, see McRae, “The Negotiation of Article 234,” in Politics of the Northwest passage, ed. Franklyn Griffiths, 98–114 (Kingston: McGill-Queen’s Univ. Pr, 1987), at 101.
235.
Erik Franckx, “Should the Law Governing Maritime Areas in the Arctic Adapt to Changing Climatic Circumstances?,” in Climate governance in the Arctic (supra note 82), at 129.
236.
Nordquist, supra note 215.
237.
Committee on Coastal State Jurisdiction Relating to Marine Pollution of the International Law Association.
238.
Koroleva, Markov, Ushakov, Legal Regime of Navigation in the Russian Arctic, Russian Association of International Maritime Law, Moscow 1995, p. 75.
239.
Franckx, Maritime claims in the Arctic: Canadian and Russian perspectives (Dordrecht: Nijhoff, 1993), p. 225, note 474.
240.
Tullio Scovazzi, “Legal Issues Relating to Navigation Through Arctic Waters,” in The Yearbook of Polar Law, ed. Gudmundur Alfredsson and Timo Koivurova, 371–82 1 (Leiden Boston: Martinus Nijhoff Publishers, 2009), at 374.
241.
A.E Boyle, “Legal Regimes of the Arctic – Remarks,” American Society of International Law Proceedings 82 (1988), 315–332, at 327.
242.
Douglas R. Brubaker, “Regulation of navigation and vessel-source pollution in the Northern Sea Route: Article 234 and state practice.” In Protecting the polar marine environment, supra note 6, 221–43, at 227; see Robin R. Churchill and Alan V. Lowe, The law of the sea, 3. ed., Melland Schill studies in international law (Manchester: Manchester University Press, 1999), p. 348; Erik Franckx, ed., Vessel-source pollution and coastal state jurisdiction: The work of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution (1991–2000) (The Hague: Kluwer Law International, 2001), p. 101.
243.
Donat Pharand, “The Northwest Passage in International Law,” The Canadian Yearbook of International Law 17 (1979), 99–133, at 123.
244.
McRae, supra note 234, at 110.
245.
Michael Byers and Suzanne Lalonde, Who controls the Northwest Passage? Vanderbilt Journal of Transnational Law 42, no. 4 (2009): 1133–1210, at 1182.
246.
Molenaar, “Climate Change and Arctic Fisheries,” in Climate governance in the Arctic (supra note 82), 145–170, at 150.
247.
Saty Nandan, “Administering the Mineral Resources of the Deep Seabed,” in The Law of the sea: Progress and prospects, supra note 211, 75–92, at 88.
248.
Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of December 1982, 28 July 1994, reproduced in (1994) 33 ILM 1309.
249.
Ibid., Annex, Section 1, paragraph 7.
250.
Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, adopted 13 July 2000, available at: http://www.isa.org.jm/files/documents/EN/Regs/MiningCode.pdf, last visited 16 June 2010.
251.
Regulations on prospecting and exploration for polymetallic sulphides in the Area, available at: http://www.isa.org.jm/files/documents/EN/Regs/PolymetallicSulphides.pdf, last visited 28 October 2012.
252.
Nordquist, supra note 215, article 192, 192.1.
253.
This is the reason why the obligation contained in the provision addresses “States” as opposed to “States Parties”, see ibid., 192.8.
254.
Jonathan I. Charney, “The protection of the marine environment by the 1982 United Convention on the Law of the Sea,” The Georgetown International Environmental Law Review 7 (1995). 731–738, at 732.
255.
Nordquist, supra note 215, 192.11(b).
256.
Ibid.
257.
Ibid., 193.6(b).
258.
See Christopher C. Joyner, “The legal regime for the Arctic Ocean,” Journal of Transnational Law & Policy 18, no. 2 (2009), 195–245, at 221.
259.
Vukas, supra note 505, at 43.
260.
Schiffman, supra note 216.
261.
Rothwell, supra note 8, p. 211; Johannes E. Harders, “In quest of an Arctic legal regime: Marine regionalism; a concept of international law evaluated,” Marine Policy (1987), 285–299, at 295; Tavis Potts and Clive H. Schofield, “The Arctic,” International Journal of Marine and Coastal Law 23, no. 1 (2008), 151–176, at 151, footnote 5; Rayfuse, “Melting moments: The future of polar oceans governance in a warming world,” Review of European Community & International Environmental Law 16, no. 2 (2007) 196–216, at 210.
262.
Donat Pharand, “The Arctic Waters and the Northwest Passage: A final revisit,” Ocean Development & International Law 38, 1/2 (2007), 3–69, at 53.
263.
Harders, Regionaler Umweltschutz in der Arktis (Nomos-Verl.-Ges, 1997), p. 61.
264.
Pharand, supra note 262.
265.
Harders holds that the “treaty practice […] is a strong reason for the presumption that a semi-enclosed sea is to be bordered by land for about 90 %”, id., “In quest of an Arctic legal regime”, supra note 261, at 295; Proelss and Müller share the view that 60 % do not suffice to qualify the Arctic Ocean as consisting “primarily” of EEZs. They argue that this estimation is confirmed by the travaux préparatoires in which the Arctic Ocean has never been referred to as a semi-enclosed sea, but has been dealt with as a case of its own, see id., “The legal regime of the Arctic Ocean,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 68, no. 3 (2008) 651–688, at 684; Rayfuse states that “[t]he weight of academic opinion appears currently to reject this proposition“, see id., supra note 261, at 210.
266.
See Rothwell, supra note 8, p. 192.
267.
Potts and Schofield, supra note 261, at 157.
268.
The first evidence of a Canadian claim to the land and waters north of continental Canada came in 1909 in an assertion by Senator Poirier, see Donald Rothwell, “The Canadian-U.S. Northwest Passage Dispute: A Reassessment,” Cornell International Law Journal 26 (1993), 331–372, at 331.
269.
It should be mentioned that Canada and the US concluded a pragmatic agreement in January 1988, which applies to icebreakers. Agreement on Arctic Cooperation, Canada and United States of America, signed at Ottawa on 11 January 1988, available at: http://untreaty.un.org/unts/60001_120000/30/4/00058175.pdf, last visited 18 May 2010; the agreement was expressly without prejudice to either state’s position on the status of the Northwest Passage and it was laid down that the US seek Canada’s consent prior to any transit through it.
270.
Matthew Carnaghan/Allison Goody, Canadian Arctic Sovereignty, Political and Social Affairs Division, Parliamentary Information and Research Service, Library of Parliament, PRB 05-61E, 26 January 2006, at p. 3, available at: http://www2.parl.gc.ca/content/lop/researchpublications/prb0561-e.pdf, last visited 26 March 2012.
271.
Churchill and Lowe, supra note 244, p. 347.
272.
Corfu Channel Case, Judgement of April 9th, 1949, I.C.J. Reports 1949, p. 4.
273.
Article 37 UNCLOS.
274.
Corfu Channel Case, supra note 272, p. 28.
275.
Mahealani Krafft, “The Northwest Passage: Analysis of the Legal Status and Implications of its Potential Use,” Journal of Maritime Law & Commerce 40, no. 4 (2009), 537–578, at 566.
276.
Suzanne Lalonde, “Increased traffic through Canadian Arctic waters: Canada’s state of readiness,” Revue Juridique Thémis 38, no. 1 (2004): 49–124, at 86.
277.
See R. D. Brubaker, “Straits in the Russian Arctic,” Ocean Development & International Law 32 (2001), 263–287, at 267. Kraska challenges the existence of any other criteria apart from the geographic requirement. He denies that UNCLOS contains any allusion to a functional prerequisite and concludes that this requirement consequently cannot rely on any authority, James Kraska, “The Law of the Sea Convention and the Northwest Passage,” International Journal of Marine and Coastal Law 22, no. 2 (2007) 257–282, at 275. With regard to the above cited phrase “straits used for international navigation”, this reasoning is not convincing. What should the wording of the law allude to if not the required use of the strait?
278.
See e.g. Tommy B. Koh, “The territorial sea, contiguous zone and straits and archipelagos under the 1982 Convention on the Law of the Sea,” Malaya Law Review 29 (1987), 163–199, at 178; Howson, “Breaking the ice”, supra note 234, at 370; Christopher M. MacNeil, “The Northwest Passage: Sovereign seaway or international strait? A reassessment of the legal status,” Dalhousie Journal of Legal Studies 15 (2006), 204–240, at 232, and citations by Pharand, supra note 262, at 35.
279.
Corfu Channel case, supra note 272, p. 28.
280.
Donat Pharand, Canada’s Arctic waters in international law (Cambridge: Cambridge University Press, 1988), p. 224; id., supra note 262, at 36.
281.
Pharand, Canada’s Arctic waters in international law, supra note 280, p. 224.
282.
Id, supra note 262, at 42.
283.
Ibid.
284.
Rothwell, supra note 268, at 355; it has already been recognised by the Permanent Court of International Justice that the application of general principles of law to the Arctic regions must take into account special local conditions, such as the difficult accessibility of the region, Eastern Greenland Case, 1933, P:C:I:J. Rep., Ser. A/B, no. 53.
285.
MacNeil, supra note 278, at 233.
286.
Byers and Lalonde, supra note 245.
287.
Id., “Our Arctic sovereignty is on thin ice”, Liu Institute for Global Issues, 1 August 2005, available at: http://www.ligi.ubc.ca/?p2=/modules/liu/publications/view.jsp&id=1886, last visited 26 March 2012.
288.
See Kraska, supra note 277, at 263.
289.
Donat Pharand, The law of the sea of the Arctic: With special reference to Canada, Collection des travaux (Ottawa: Univ. of Ottawa Press, 1973), at 57.
290.
Rothwell, supra note 8, p. 193.
291.
Supra note 235. Arctic Waters Pollution Prevention Act, SC 1970, c. 47.
292.
Act to amend the Territorial Sea and Fishing Zones Act, SC 1970, c. 48.
293.
Canadian Declaration Concerning the Compulsory Jurisdiction of the International Court of Justice, 7 April 1970, reprinted in (1970) 9 I.L.M. 598.
294.
See for the U.S. point of view Lalonde, supra note 276, at 62.
295.
Pharand, supra note 262, at 4.
296.
Despite the nomenclature, Canada, correctly, does not assert the archipelago to be ‘an archipelago’ in terms of Part IV UNCLOS.
297.
Canada: Statement concerning Arctic Sovereignty, September 10, 1985, 24 International Legal Materials (1985), 1723–1728, at 1725.
298.
Ibid.; Territorial Sea Geographical Coordinates (Area 7) Order, S.O.R./85-872.
299.
MacNeil, supra note 278, at 209.
300.
Pharand, Canada’s Arctic waters in international law, supra note 280, at 131.
301.
Id., “The legal régime of the Arctic: some outstanding issues,” International Journal of Legal Information 39 (1983–1984), 742–799, at 769.
302.
Fisheries case, Judgement of December 18th, 1951: I.C. J. Reports 1951, p. 116.
303.
Lalonde, supra note 276, at 68.
304.
Fisheries Case, supra note 302.
305.
Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, 516 U.N.T.S. 205.
306.
J. B. McKinnon, “Arctic Baselines: A litore usque ad litus,” The Canadian Bar Review 66 (1987), 790–817, at 804.
307.
Pharand, supra note 262, at 15.
308.
Ibid.; Lalonde, supra note 276, at 53, footnote 1.
309.
Mark Killas, “The Legality of Canada’s Claims to the Waters of its Arctic Archipelago,” Ottawa Law Review 19 (1987), 95–136, at 103.
310.
Ibid., at 109.
311.
John Byrne, “Canada and the legal status of ocean space in the Canadian Arctic Archipelago,” Faculty of Law Review 28 (1970), 1–16, at 8.
312.
McKinnon, supra note 306, at 804.
313.
Lesley Brown, ed., The new shorter Oxford English dictionary on historical principles, Reprinted, with corrections. (Oxford: Clarendon Press, 1993).The shorter Oxford English Dictionary on historical principles, Vol. 1, 1977.
314.
Killas, supra note 309, at 112.
315.
McKinnon, supra note 306, at 805.
316.
Killas, supra note 309, at 114.
317.
McKinnon, supra note 306, at 804.
318.
Pharand, supra note 301, at 779; Killas, supra note 309, at 114.
319.
Pharand, Canada’s Arctic waters in international law, supra note 280, at 164.
320.
Killas, supra note 309, at 117.
321.
Ibid., at 118.
322.
Ibid., at 110.
323.
Pharand, Canada’s Arctic waters in international law, supra note 280, at 162–163; id., supra note 301, at 781.
324.
McKinnon, supra note 306, at 805.
325.
Pharand, supra note 262, at 18.
326.
Ibid., at 19–20.
327.
Donald McRae, “Arctic Sovereignty? What is at Stake?,” Behind the Headlines 64, no. 1 (January 2007), at 13.
328.
Kraska, supra note 277, at 272.
329.
Rising to the Arctic challenge: Report on the Canadian Coastguard, Second Report of the Standing Senate Committee on Fisheries and Oceans, May 4, 2009, available at: http://www.parl.gc.ca/40/2/parlbus/commbus/senate/Com-e/fish-e/rep-e/rep02may09-e.pdf.
330.
Pharand, Canada’s Arctic waters in international law, supra note 280, at 91.
331.
Yearbook of the International Law Commission 1962, vol. 2, at 1–26.
332.
Lalonde, supra note 276, at 77.
333.
Pharand, Canada’s Arctic waters in international law, supra note 280, p. 173.
334.
See Ivan L. Head, “Canadian claims to territorial sovereignty in the Arctic regions,” McGill Law Journal 9 (1963) 200–226; Howson, “Breaking the ice”, supra note 234, at 364, note 126.
335.
Pharand, Canada’s Arctic waters in international law, supra note 280, p. 173.
336.
Lalonde, supra note 276, at 74.
337.
Cited in N.D Bankes, “Forty Years of Canadian Sovereignty Assertion in the Arctic, 1947–87,” Arctic and Alpine Research 40, no. 4 (1987), 285–291, at 287.
338.
See Byers and Lalonde, supra note 245, p. 1151, note 104.
339.
Howson, “Breaking the ice”, supra note 234, at 365.
340.
Similarly Pharand, Canada’s Arctic waters in international law, supra note 280, at 125; McKinnon, supra note 306, at 801; Rothwell, supra note 268, at 359; Howson, “Breaking the ice”, supra note 234, at 365.
341.
See Donat Pharand, The Northwest Passage: Arctic straits, International straits of the world (Dordrecht: Nijhoff, 1984), at 110: “It would seem that the only uncertainty is the time at which this would take place, which depends on the intensity of the use.”.
342.
In his 1985 Arctic Statement Clark stated: “The policy of the Government is also to encourage the development of the navigation in Canadian Arctic waters. Our goal is to make the Northwest Passage a reality for Canadians and foreign shipping as a Canadian waterway. […] Navigation, however, will be subject to the controls and other measures required for Canada’s security, for the preservation of the environment, and for the welfare of the Inuit and other inhabitants of the Canadian Arctic. “House of Commons Debates, 10 September 1985, at 6463.
343.
Ibid.
344.
Article 37 UNCLOS.
345.
See Pharand, supra note 262, at 46 and Rothwell, supra note 268, at 370.
346.
Canada has made use of its competence with the AWPPA, supra note 235.
347.
McRae, supra note 234, at 110; Kristin Bartenstein, “The “Arctic Exception” in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?,” Ocean Development & International Law 42, 1–2 (2011), at 34.
348.
Soviet Legislation on Straight Baselines, 15 January 1985, reprinted in William E. Butler, The USSR, eastern Europe and the development of the law of the sea (London: Oceana Publ., 1983), pp. 1–2, and 21–56.
349.
R. D. Brubaker, “The legal status of the Russian baselines in the Arctic,” Ocean Development & International Law 30, no. 3 (1999), 191–233, at 209.
350.
J. A. Roach and Robert W. Smith, United States responses to excessive maritime claims, 2nd ed., Publications on ocean development (The Hague: Kluwer Law International, 1996).
351.
See Brubaker, supra note 277, at 266.
352.
Huebert, supra note 79, at 204.
353.
Leonid Timchenko, “The Northern Sea Route: Russian management and Jurisdiction over Navigation in Arctic Seas,” in The law of the sea and polar maritime delimitation and jurisdiction, supra note 74.
354.
Brubaker, supra note 277.
355.
Louise de La Fayette, “The OSPAR Convention comes into force,” International Journal of Marine and Coastal Law 14 (1999), 247–297, at 250.
356.
Convention for the Protection of the Marine Environment of the North-East Atlantic, concluded 22 September 1992, entered into force 25 March 1998, 2354 UNTS 67.
357.
Huebert and Yeager, supra note 2, p. 28.
358.
Convention for the Protection of the Marine Environment of the North-East Atlantic, concluded 22 September 1992, entered into force 25 March 1998, 2354 UNTS 67.
359.
See de La Fayette, supra note 355, at 247.
360.
Apart from Annex V, which entered into force 30 August 2000. Available at: http://www.ospar.org/html_documents/ospar/html/ospar_convention_e_updated_text_2007_annex_v.pdf, last visited 30 March 2012.
361.
The decisions, recommendations and other agreements adopted under the two precursory Conventions continue to be applicable under the OSPAR Convention until they are terminated, article 31(2) OSPAR Convention.
362.
First regional convention for the protection of the marine environment, see Rainer Lagoni, “Regional Protection of the Marine Environment in the Northeast Atlantic Under the OSPAR Convention of 1992,” in The Stockholm declaration and law of the marine environment, ed. Myron H. Nordquist, John N. Moore and Said Mahmoudi, 183–204 (The Hague; New York: Kluwer Law International, 2003), at 183.
363.
Ibid.
364.
De La Fayette, supra note 355, p. 250.
365.
The Convention applies to the maritime area of “those parts of the Atlantic and Arctic Oceans and their dependent seas which lie north of 36° north latitude and between 42° west longitude and 51° east longitude”, but excluding the Baltic and the Mediterranean Sea, and “that part of the Atlantic Ocean north of 59° north latitude and between 44° west longitude and 42° west longitude”, article 1(a). “Maritime area” means the internal waters and the territorial seas as well as the EEZs of the Contracting Parties and the high seas, including the bed of all those waters and its sub-soil, ibid. However, the OSPAR Convention does not seem to apply to the waters “north of Greenland between 44° west longitude and 42° west longitude extending to the North Pole.”, Koivurova and Molenaar, supra note 214, p. 15, note 39. While Article 1(a)(i) refers to the “Atlantic and Arctic Oceans”, its paragraph 2 does not make such reference, mentioning only the Atlantic Ocean, which does not include the waters north of Greenland.
366.
Rainer Lagoni, “Monitoring Compliance and Enforcement of Compliance through the OSPAR Commission,” in Marine issues: From a scientific, political and legal perspective, ed. Peter Ehlers, Rüdiger Wolfrum and Elisabeth M. Borgese, 155–63 (The Hague: Kluwer Law International, 2002), at 157.
367.
Fisheries management issues are considered as being “appropriately regulated under international and regional agreements dealing specifically with such questions”, preamble OSPAR Convention.
368.
Article 4 Annex V to the OSPAR Convention; see Koivurova and Molenaar, supra note 214, p. 16.
369.
Pursuant to Article 14, the “Annexes and Appendices form an integral part of the Convention”.
370.
Strategies of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic, Chapter I (OSPAR Agreement 2003–21; Summary Record OSPAR 2003, OSPAR 03/17/1-E, Annex 31), available at: http://www.ospar.org/html_documents/ospar/html/Revised_OSPAR_Strategies_2003.pdf#nameddest=hazardous_substances, last visited 3 February 2011.
371.
OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, Terms of Reference of OSPAR Committees, OSPAR agreement 2001–4, available at: http://www.ospar.org/html_documents/ospar/html/01-04e_terms_of__reference.pdf, last visited 3 February 2011.
372.
Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, The Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, the United Kingdom and the European Union. Notably, of the Arctic States, the Russian Federation is not party to the Convention.
373.
See Article 10 OSPAR Convention.
374.
Article 13(2) OSPAR Convention.
375.
Rainer Lagoni, “Das OSPAR-Übereinkommen von 1992 und der Schutz der Nordsee: Einwirkungen auf das deutsche Umweltrecht,” in Meeresumweltschutz für Nord- und Ostsee: Zum Zusammenspiel von Völkerrecht und nationalem Umweltrecht, ed. Hans-Joachim Koch and Rainer Lagoni, 79–101 (Baden-Baden: Nomos Verlagsgesellschaft, 1996).
376.
Juliane Hilf, “The Convention for the Protection of the Marine Environment of the North-East Atlantic: New approaches to an old problem?,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1995), 580–603, at 586.
377.
This wording incorporates a precautionary element, see ibid., at 585.
378.
Article 1(d) OSPAR Convention, emphasis added.
379.
According to this principle, “the costs of pollution prevention, control and reduction measures are to be borne by the polluter”, Article 2(2)(b) OSPAR Convention.
380.
See Article 2(3)(a) OSPAR Convention.
381.
Statement on the Ecosystem Approach to the Management of Human Activities, Towards an Ecosystem Approach to the Management of Human Activities, Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions (JMM), Bremen: 25–26 June 2003, available at: http://www.ospar.org/content/content.asp?menu=00320109000066_000000_000000, last visited 9 February 2011.
382.
Ibid, para. 5.
383.
Ibid., Annex 3.
384.
Bergen Declaration, Fifth International Conference on the Protection of the North Sea, 20–21 March 2002, Bergen, Norway, § 4 vi; the OSPAR Commission also cooperates with other competent management authorities for the North-East Atlantic. It has agreed Memoranda of Understanding or Agreements of Cooperation with a number of relevant international organisations, including the North-East Atlantic Fisheries Commission (NEAFC) or the IMO, see.
385.
OSPAR Commission, Report on North Sea Pilot Project on Ecological Quality Objectives, 2006.
386.
Bergen Declaration, Fifth International Conference on the Protection of the North Sea, 20–21 March 2002, Bergen, Norway, § I 3 v.
387.
OSPAR Commission, Evaluation of the OSPAR system of Ecological Quality Objectives for the North Sea (update 2010), Biodiversity Series, London 2009, available at:. http://www.ospar.org/documents/dbase/publications/p00406_Evaluation_EcoQO_2010_update.pdf, last visited 15 August 2011.
388.
Ibid.
389.
Ibid.
390.
Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), Official Journal of the European Union L 164/19, 25.6.2008.
391.
Development of indicators, with reference levels, targets and limits that will be required to apply the generic qualitative descriptors of GES for the MFSD at the (sub-)regional level.
392.
OSPAR Commission, Ministerial Meeting of the OSPAR Commission, Sintra, 22–23 July 1998, Main Results.
393.
Declaration of the First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions, Bremen, Germany, 25–26 June 2003.
394.
OSPAR Recommendation 2003/3 on a Network of Marine Protected Areas, Meeting of the OSPAR Commission, Bremen, 23–27 June 2003; the aims of the OSPAR MPA Network are to protect, conserve and restore species, habitats and ecological processes which have been adversely affected by human activities; to prevent degradation of, and damage to, species, habitats and ecological processes, following the precautionary principle; and to protect and conserve areas that best represent the range of species, habitats and ecological processes in the maritime area.
395.
OSPAR Commission, Ministerial Meeting of the OSPAR Commission, Bergen, 23–24 September 2010, para. 28, available at: http://www.ospar.org/html_documents/ospar/news/ospar_2010_bergen_statement.pdf, last visited 26 March 2012.
396.
See article 13 OSPAR Convention.
397.
Regarding the legal and institutional issues evoked by the establishment of MPAs in ABNJ, see infra V.1.b).
398.
This has been recognised by the OSPAR Commission, see 2003 Strategies of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic, Reference number: 2003–21, para. 4.4, available at: http://www.ospar.org/content/content.asp?menu=00120000000070_000000_000000, last visited 18 August 2011.
399.
This was the case for the Rainbow hydrothermal vent field MPA, which was nominated by Portugal in 2006. It is actually located on the state’s extended continental shelf, for more information see Marta C. Ribeiro, “The ‘Rainbow’: The First National Marine Protected Area Proposed Under the High Seas,” International Journal of Marine and Coastal Law 25 (2010): 183–207.
400.
See Erik J. Molenaar and Alex G. Oude Elferink, “Marine protected areas in areas beyond national jurisdiction: The pioneering efforts under the OSPAR Convention,” Utrecht Law Review 5, no. 1 (2009) 5–20, at 20.
401.
International Convention for the Regulation of Whaling, concluded 2 December 1946, entered into force 10 November 1948, 161 UNTS 72.
402.
Agreement on Conservation of Polar Bears, concluded 15 November 1973, entered into force 26 May 1976, 27 UST 3918; see Colette de Roo et al., Environmental Governance in the Marine Arctic, Background Paper, 4 September 2008, Arctic TRANSFORM, available at: http://www.arctic-transform.org/download/EnvGovBP.pdf (last visited 7 April 2010), p. 20 et seqq.; also falling into this category: Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), concluded 3 March 1973, entered into force 1 July 1975, 993 UNTS 243.
403.
French and Scott, “International legal implications of climate change for the polar regions”, supra note 78, at 641.
404.
Melissa A. Verhaag, “It Is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment,” Georgetown International Environmental Law Review 15 (2002–2003) 555–580, at 566; in 2011, the Arctic states concluded the Arctic Search and Rescue Agreement, see supra note 114.
405.
Meeting of the Parties to the 1973 Agreement in the Conservation of Polar Bears: Outcome of Meeting (Meeting Report, 17–19 March 2009), available at: www.polarbearmeeting.org/content.ap?thisId=500038360, last visited 20 January 2011.
406.
Thor S. Larsen and Ian Stirling consider the polar bear as the symbol of the Arctic, id., The Agreement on the Conservation of Polar Bears – its History and Future, Rapportserie nr. 127, March 2009, Norsk Polarinstitutt/Norwegian Polar Institute, Tromsø, p. 5.
407.
Nigel Bankes, “Climate Change and the Regime for the Conservation of Polar Bears,” in Climate governance in the Arctic (supra note 82), 351–382, at 355; id., “Has international law failed the polar bear?,” in Changes in the Arctic environment and the law of the sea, supra note 3, 365–86, at 373.
408.
Stefan Norris, Lynn Rosentrater, Pål Martin Eid, Polar Bears at Risk, A WWF Status Report, WWF International Arctic Programme, Oslo, May 2002, p. 19.
409.
Pal Prestrud and Ian Stirling, “The International Polar Bear Agreement and the current status of polar bear conservation,” Aquatic Mammals 20 (1994), 113–124, at 113.
410.
Donald C. Baur, “Reconciling Polar Bear Protection under United States Law and the International Agreement for the Conservation of Polar Bears,” Animal Law 2 (1996), 9–100.
411.
See Bankes, supra note 407, at 379; Prestrud/Stirling, supra note 409.
412.
This duty is only relevant for those Contracting States that continue to permit harvesting of polar bears. In Norway and Russia, the taking of polar bears is completely prohibited. The USA and Denmark permit harvesting by indigenous peoples and Canada authorises both an indigenous harvest and trophy or conservation hunting, see Bankes, supra note 407, at 360.
413.
See Prestrud/Stirling, supra note 409, at 113.
414.
Bankes, supra note 407, at 360.
415.
See 1981 Consultative meeting of the Contracting Parties to the Agreement on the Conservation of Polar Bears, Oslo, 20–22 January 1981, Summary and conclusions, available at: http://www.polarbearmeeting.org, last visited 18 January 2011.
416.
Article X(5) prescribes that the Agreement “shall remain in force initially for a period of five years from its date of entry into force, and unless any Contracting Party during that period requests the termination of the Agreement at the end of that period. it shall continue in force thereafter.”
417.
Polar Bear Range States Meeting Summary, 26–28 June, 2007, Shepherdstown, West Virginia, U.S.A., available at: http://pbsg.npolar.no/export/sites/pbsg/en/docs/PB-Sheph07-outcome.pdf, last visited 18 January 2011, p. 1.
418.
Ibid., p. 4.
419.
Meeting of the parties to the 1973 Agreement on the Conservation of Polar Bears, supra note 405.
420.
Ibid., p. 1.
421.
Ibid., p. 1.
422.
Ibid., p. 2.
423.
Ibid.
424.
Ibid., p. 2,3.
425.
Ibid., p. 4.
426.
Ibid., p. 7.
427.
See Bankes, supra note 407, at 375.
428.
See Larsen, Stirling, supra note 406, at 5.
429.
Meeting of the parties to the 1973 Agreement on the Conservation of Polar Bears, supra note 405, p. 7.
430.
See the soft wording of article VIII of the Agreement requiring states to “take action as appropriate to promote compliance” with the Agreement.
431.
David VanderZwaag, “International law and Arctic marine conservation and protection: A slushy, shifting seascape,” Georgetown International Environmental Law Review 9, no. 2 (1997) 303–345, at 308.
432.
International Convention for the Prevention of Pollution from Ships, see supra note 205.
433.
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, see supra note 204.
434.
Arctic Marine Shipping Assessment 2009 Report, supra note 65, p. 97.
435.
Amendments to the Seafarers’ Training, Certification and Watchkeeping (STCW) Code adopted by the 2010 Manila Conference, Part B (Recommended Guidance regarding Provisions of the STWC Convention and its annex), Chapter V (Guidance regarding special training requirements for personnel on certain types of ships), Section B-V/g (Guidance regarding training of masters and officers for ships operating in polar waters), IMO doc. STCW/CNF.2/DC/3, 24 June 2010.
436.
Domestic frameworks regulating ice-going vessels had already been developed before, above all by Russia and Canada, see Lawson W. Brigham, “The emerging International Polar navigation Code: bi-polar relevance?,” in Protecting the polar marine environment, supra note 6, 244–62, at 247 et seq.
437.
The OWG took up its work after Germany had proposed to insert a rule into the SOLAS Convention stating that “Ships intended for service in polar waters should have suitable ice strengthening for polar conditions in accordance with the rules of a recognized classification society.”, IMO, Marine Safety Committee 59/30/32, 12 April 1991.
438.
Øystein Jensen, The IMO Guidelines for Ships Operating in Arctic Ice-covered Waters, Fridtjof Nansens Insitutt Report 2/2007, p. 9.
439.
Scovazzi, Tullio, “Towards Guidelines of Antarctic Shipping: A Basis for Cooperation between the Antarctic Treaty Consultative Parties and the IMO.” In: Vidas, Davor (ed.), Implementing the Environmental Protection Regime for the Antarctic, Kluwer Academic Publishers, Dordrecht 2000, 243 – 260, at 254; critique also related to potential duplication of the Protocol on Environmental Protection to the Antarctic Treaty caused by the designation of the Arctic and the Antarctic as ‘special areas’ under MARPOL and with regard to the required advance notification for ships entering the EEZ of a coastal state, which was not provided for in UNCLOS, see Jensen, supra note 438, p. 10.
440.
ATCM XXII Final Report, Tromsø, Norway, 25 May – 5 June 1998, para. 86.
441.
Resolution 3 (1998), ATCM XXII, CEP I, Tromsø, adopted 05 June 1998.
442.
Outcome of discussion at the 71st session of the Maritime Safety Committee, doc. ATCM XIII/IP 111.
443.
IMO, Guidelines for Ships Operating in Arctic Ice-Covered Waters, 23 December 2002, IMO doc. MSC/Circ.1056/MEPC/Circ.399, available at: http://www.imo.org/includes/blastDataOnly.asp/data_id%3D6629/1056-MEPC-Circ399.pdf, last visited 13 May 2010.
444.
Ibid., P-1.2.
445.
Ibid., P-2.1 – P-2.5; IMO MSC/Circ.1056/MEPC/Circ.399, 23 December 2002, the Guidelines are structured in four parts: Part A contains construction provisions, part B addresses equipment, part C concerns ship operations, crewing, and emergencies and part D covers provisions for environmental protection and damage control.
446.
Arctic Marine Shipping Assessment 2009 Report, supra note 65, p. 57.
447.
Outcome of the XXVIIth Antarctic Treaty Consultative Meeting, Note by the Secretariat, MSC 79/8/2, 18 August 2004.
448.
IMO, Maritime Safety Committee, 79th session, Agenda item 23, Report of the Maritime Safety Committee on its seventy-ninth session, IMO DOC. MSC 79/23, 15 December 2004.
449.
IMO, Sub-Committee on Ship Design and Equipment, 50th Session, Agenda item 27, Report to the Maritime Safety Committee, IMO DOC. DE 50/27, 16 April 2007, para. 15.2.
450.
Ibid., para 11.6.
451.
Ibid., para 11.7.
452.
IMO, Sub-Committee on Ship Design and Equipment, 52nd Session, Agenda item 9, Report of the Correspondence Group on Guidelines for ships operating in Arctic ice-covered waters, IMO DOC. DE 52/9/1, 12 December 2008.
453.
“Guidelines for Ships Operating in Polar Waters”, Resolution A.1024(26), adopted on 2 December 2009 (Agenda item 10), available at: http://www.sofartsstyrelsen.dk/SiteCollectionDocuments/CMR/Sejladssikkerhed,%20GMDSS%20og%20SAR/A.1024(26)%20Guidelines%20for%20ships%20operating%20in%20polar%20waters.pdf, last visited 5 October 2010.
454.
IMO, Sub-Committee on Ship Design and Equipment, 52nd Session, Agenda item 21, Report to the Maritime Safety Committee, IMO DOC. DE 52/21/Add.1, 16 April 2009.
455.
See recital no. 10 and 11 Guidelines for Ships Operating in Polar Waters, supra note 732.
456.
See recital no. 6 Guidelines for Ships Operating in Polar Waters, ibid.
457.
See International Association of classification societies (IACS), Requirements concerning Polar Class, IACS Req. 2006/Rev.1, 2007/Corr.1, 2007, available at: http://www.iacs.org.uk/document/public/publications/unified_requirements/pdf/ur_i_pdf410.pdf, last visited 18 October 2010.
458.
IMO, Maritime Safety Committee, 86th session, Agenda item 23, 24 February 2009, Mandatory application of the polar guidelines, Submitted by Denmark, Norway and the United States.
459.
IMO, Sub-Committee on Ship Design and Equipment, 53rd session, Agenda item 26, 15 March 2010, Report to the Maritime Safety Committee, IMO Doc. 53/26, p. 38.
460.
See IMO, Maritime Safety Committee, supra note 458.
461.
IMO, Sub-Committee on Ship Design and Equipment, 53rd session, supra note 459; IMO, Sub-Committee on Ship Design and Equipment, 54th session, Agenda item 23, 17 November 2010, Report to the Maritime Safety Committee, IMO Doc. DE 54/23, p. 25.
462.
See IMO, Sub-Committee on Ship Design and Equipment, 54th session, Agenda item 13, 27 July 2010, Risk-based concept, Submitted by Germany, IMO Doc. 54/13/1, p. 1.
463.
IMO, Sub-Committee on Ship Design and Equipment, 54th session, Agenda item 23, 17 November 2010, Report to the Maritime Safety Committee, IMO Doc. DE 54/23, p. 25.
464.
IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 12, 17 December 2010, Report of the Correspondence Group, Submitted by Norway, IMO Doc. DE 55/12/1, Annex.
465.
See IMO, Sub-Committee on Ship Design and Equipment, 54th session, Agenda item 13, 2 August 2010, Development of a Mandatory Code for Ships Operating in Polar Waters, Report of the correspondence group, Submitted by Norway, IMO Doc. DE 54/13/3, Annex.
466.
See IMO, Sub-Committee on Ship Design and Equipment, 54th session, Agenda item 13, 2 August 2010, Development of a Mandatory Code for Ships Operating in Polar Waters, Report of the correspondence group, Submitted by Norway, IMO Doc. DE 54/13/3, Annex, p. 3.
467.
Ibid.
468.
IMO, Sub-Committee on Ship Design and Equipment, 53rd session, Agenda item 26, 15 March 2010, Report to the Maritime Safety Committee, IMO Doc. 53/26, p. 38; 54th session, Agenda item 13, 2 August 2010, Development of a Mandatory Code for Ships Operating in Polar Waters, Report of the correspondence group, Submitted by Norway, IMO Doc. DE 54/13/3, Annex, p. 3.
469.
IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 22, 15 April 2011, Report to the Maritime Safety Committee, IMO Doc. DE 55/22, p. 23.
470.
Including discharge of oil and oily mixtures; garbage disposal; sewage; and air pollution. IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 22, 17 December 2010, Draft proposal for an environmental protection chapter for inclusion in the Polar Code, IMO Doc. DE 55/12/5, p. 2.
471.
IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 22, 17 December 2010, Draft proposal for an environmental protection chapter for inclusion in the Polar Code, IMO Doc. DE 55/12/5, p. 2.
472.
See G-3.2, G-3.3 and G-3.4 of the Guidelines, supra note 453.
473.
See IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 12, 14 January 2011, Polar Code boundaries for the Arctic and Antarctic, Submitted by FOEI, IFAW, WWF and Pacific Environment, IMO Doc. DE 55/12/8; Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 12, 28 January 2011, Polar Code boundaries for the Atlantic side of the Arctic, Submitted by FOEI, IFAW, WWF and Pacific Environment, IMO Doc. DE 55/12/17.
474.
See IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 12, 28 January 2011, Reducing black carbon emissions from vessels in the Polar Regions, Submitted by FOEI, CSC, IFAW, WWF and Pacific Environment, IMO Doc. DE 55/12/18.
475.
See IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 12, 28 January 2011, Harmful substances in packaged form and containers in Arctic waters, Submitted by FOEI, IFAW, WWF and Pacific International, IMO Doc. DE 55/12/16.
476.
See IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 12, 28 January 2011, Sewage and sewage-related discharges in polar regions, Submitted by FOEI, IFAW, WWF and Pacific Environment, IMO Doc. 55/12/20.
477.
IMO, Sub-Committee on Ship Design and Equipment, 55th session, Agenda item 22, 15 April 2011, Report to the Maritime Safety Committee, IMO Doc. DE 55/22, p. 26.
478.
Sandra Kloff/Clive Wicks, Environmental management of offshore oil development and maritime oil transport, A background document for stakeholders of the West African Marine Eco Region, IUCN Commission on Environmental, Economic and Social Policy, October 2004, p. 48.
479.
Koivurova and Molenaar, supra note 214, p. 25.
480.
International Convention on Oil Pollution Preparedness, Response and Co-operation, adopted 30 November 1990, entered into force 13 May 1995.
481.
In addition, there are the 1983 Canada-Denmark Agreement for Cooperation Relating to the Marine Environment (1983 Agreement) and the 1993 Agreement Between Denmark, Finland, Iceland, Norway, and Sweden Concerning Cooperation Measures to Deal with Pollution of the Sea by Oil or Other Harmful Substances (1993 Agreement).
482.
The natural resources referred to include mineral and offshore hydrocarbon and other non-living resources, see Article 77(4) UNCLOS.
483.
Article 77 UNCLOS.
484.
Article 193 UNCLOS.
485.
See Timo Koivurova and Kamrul Hossain, “Background Paper, Offshore Hydrocarbon:: Current Policy Context in the Marine Arctic,” (Arctic Transform, 4 September 2008), p. 20.
486.
Article 3(1) Annex III.
487.
Article 4(1) Annex III.
488.
Article 4(2) Annex III.
489.
Article 2 Annex III.
490.
Article 5 Annex III.
491.
Provision 2 of the OSPAR Decision 98/3 on the Disposal of Disused Offshore Installations, available at http://www.ospar.org/documents/dbase/decrecs/decisions/od98-03e.doc, last visited 22 March 2011.
492.
Article 2(4) MARPOL 73/78.
493.
Regulation 21, Annex I.
494.
See Kristin N. Casper, “Oil and Gas Development in the Arctic: Softening of Ice Demands Hardening of International Law,” Natural Resources Journal 49 (2009), 825–882, at 852.
495.
For a list of Special areas under MARPOL see http://www.imo.org/OurWork/Environment/PollutionPrevention/SpecialAreasUnderMARPOL/Pages/Default.aspx, last visited 22 March 2011.
496.
The Antarctic sea, in contrast, has been classified as special area both under Annex I and under Annex II, MARPOL 73/78, Annex I, regulation 11, number 7; Annex II, regulation 13(8).
497.
MARPOL 73/78, Annex I, regulation 11, Annex V, regulation 1(3).
498.
Article 1(1) OPRC.
499.
Article 3(2) OPRC.
500.
Article 4(1)(a) OPRC.
501.
Article 7 OPRC.
502.
See IMO website at http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx.
503.
Arctic Offshore Oil and Gas Guidelines, supra note 69.
504.
Ibid., p. 4.
505.
Ibid.
506.
Ibid., p. 6.
507.
Ibid., pp. 6 et seq.
508.
Ibid., pp. 16 et seqq.
509.
Ibid., pp. 21 et seqq.
510.
Ibid., p. 13. EIAs and preliminary impact assessments (PEIA) should consider, in particular, the consequences on human society including indigenous ways of life; cultural heritage; socio-economic systems; other human activities (e.g., tourism, scientific research, fishing, and shipping); overall landscape (e.g., fragmentation); subsistence ways of life (e.g. harvest practices and availability of food supply); oil spill preparedness and response in sea ice conditions; permafrost and transition zones; climate; sustainability of renewable resources; flora and fauna including marine mammals; air, water and sediment quality; ports and shore reception facilities; Arctic shipping routes; ice dynamics; human health; and the interaction among all of these, ibid. pp. 13 et seq.
511.
Ibid., p. 14.
512.
Arctic Council, Nuuk Declaration, supra note 27, p. 4.
513.
Although some reference to the ecosystem approach is made in the polar bear agreement, supra note 402.
514.
See Donald R. Rothwell, “International law and the protection of the arctic environment,” International & Comparative Law Quarterly (1995) 280–312, at 298.
515.
In the recent past, the issue of fragmentation and its effects has become the subject of intense debate among legal scholars, see Harro van Asselt, Francesco Sindico and Michael A. Mehling, “Global Climate Change and the Fragmentation of International Law,” Law & Policy 30, no. 4 (2008), 423–449, at 426; Gerhard Loibl, “International Environmental Regulations - Is a Comprehensive Body of Law Emerging or is Fragmentation Going to Stay?,” in International law between universalism and fragmentation: Festschrift in honour of Gerhard Hafner, ed. Isabelle Buffard et al., 783–95 (Leiden; Boston: Martinus Nijhoff Publishers, 2008) at 783; it was included in the long-term programme of the International Law Commission in 2000, which established a special Study Group on the topic in 2002. Four years later, this Study Group presented its final report, in which it concluded that conflicts arising from fragmentation could be dealt with through existing techniques used to resolve normative conflicts, but recommended that “increasing attention will have to be given to the collision of norms and the rules, methods and techniques for dealing with such collisions.”, Report of the ICL Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Doc. A/CN.4/L.702, 18 July 2006.
516.
Gerhard Hafner, “Pros and Cons Ensuing from Fragmentation of International Law,” Michigan Journal of International Law 25 (2003–2004), 849–863, at 849.
517.
Id., Report of the ICL Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Doc. A/CN.4/L.702, 18 July 2006, Annex, p. 144.
518.
Martti Koskenniemi, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, Report of the Study Group of the International Law Commission, A/CN.4/L.682, 13 April 2006, p. 12.
519.
United Nations Conference on the Human Environment, Stockholm 5 to 16 June 1972, see Declaration of the United Nations Conference on the Human Environment, 21st plenary meeting, 16 June 1972, Chapter 11, available at: http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503&l=en, last visited 24 August 2011.
520.
Cathrin Zengerling, “Sustainable development and international (enrivonmental) law,” Zeitschrift für Europäisches Umwelt- und Planungsrecht 8 (2010) 175–186, at 175; Loibl, supra note 515, at 783.
521.
Ibid., at 788.
522.
See Southern Bluefin Tuna Case (Australia & New Zealand vs. Japan), Award on Jurisdiction and Admissibility, ICSID (W. Bank) (Arbitral Tribunal constituted under Annex VII of UNCLOS).
523.
Hafner, “Pros and Cons Ensuing from Fragmentation of International Law”, supra note 516, at 851.
524.
So-called “forum shopping”, see ibid., p. 857.
525.
See Tullio Treves, “The Development of the Law of the Sea since the Adoption of the UN Convention on the Law of the Sea: Achievements and Challenges for the Future,” in Law, technology and science for oceans in globalisation, supra note 222, 41–58.
526.
Article 2 CBD.
527.
UN General Assembly, Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its seventh meeting, 17 July 2006, Un Doc. A/61/156, para. 28.
528.
Plan of Implementation of the World Summit on Sustainable Development, UN Doc. A/CONF. 199/20, 4 September 2002, Resolution II, Annex, para. 30. (d).
529.
On moving towards the goal of an integrated approach the establishment of an international environmental organisation (see Hans-Joachim Koch and Christin Mielke, “Globalisierung des Umweltrechts,” Zeitschrift für Umweltrecht 9 (2009) 403–409, at 408; Amedeo Postiglione, Global environmental governance (Bruxelles: Bruylant, 2010); Julie Ayling, “Serving many voices: progressing calls for an international environmental organisation,” Journal of Environmental Law 9, no. 2 (1997), 243–270; Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (WBGU), Welt im Wandel: neue Strukturen globaler Umweltpolitik (Berlin: Springer, 2001).) should be envisaged, ideally paired with an international environmental tribunal (see Ellen Hey, Reflections on an international environmental court (The Hague; Cambridge: Kluwer Law International, 2000); Sean D. Murphy, “Does the world need a new International Environmental Court?,” The George Washington Journal of International Law and Economics, no. 32 (2000), 333–349; Alfred Rest, “The indispensability of an international environmental court,” Review of European Community & International Environmental Law 7, no. 1 (1998), 63–67.
530.
United Nations Conference on Environment and Development, Agenda 21, Rio de Janeiro, 3 to 14 June 1992, chapter 17, available at: http://www.un.org/esa/dsd/agenda21/index.shtml, last visited 19 February 2011.
531.
Timo Koivurova and Erik J. Molenaar, supra note 214, p. 9.
532.
Fanny Douvere, “The importance of marine spatial planning in advancing ecosystem-based sea use management,” Marine Policy 32 (2008), 762–771, at 762, 766.
533.
Ibid., at 762.
534.
Larry Crowder and Elliott Norse, “Essential ecological insights for marine ecosystem-based management and marine spatial planning,” Marine Policy 32, no. 5 (2008), 772–778, at 772.
535.
Charles Ehler and Fanny Douvere, “Visions for a Sea Change: Report of the First International Workshop on Marine Spatial Planning,”, IOC Manual and Guides 48 (UNESCO, Intergovernmental Oceanographic Commission and Man and the Biosphere Programme, 2007), p. 13.
536.
Douvere, “The importance of marine spatial planning in advancing ecosystem-based sea use management, supra note 532, at 768.
537.
See e.g. the management of the Trilateral Wadden Sea Cooperation Area, an initiative between the Netherlands, Germany and Denmark where integrated measures and spatial management are stressed, see Common Wadden Sea Secretariat, Wadden Sea Plan 2010, Eleventh Trilateral Governmental Conference on the Protection of the Wadden Sea, Wilhelmshaven 2010.
538.
See Frank Maes, “The international legal framework for marine spatial planning,” Marine Policy 32, no. 5 (2008) 797–810, at 797.
539.
Ibid., at 798.
540.
Kenneth Sherman, “Sustainability, Biomass Yields, and Health of Coastal Ecosystems: An Ecological Perspective,” Marine Ecology Progress Series 112, 277–301 (1994), at 279 and Lewis M. Alexander, “Large marine ecosystems: A new focus for marine resources management,” Marine Policy 17, no. 3 (1993), 186–198, at 186.
541.
See http://www.unep.org/regionalseas/issues/ecosystems/LMEs/default.asp.
542.
See http://www.pame.is/images/stories/Ecosystem_Approach/17-Arctic-LMEs-2006-new-version.jpg.
543.
See H. J. Diamond, “The Need for Ecosystem-Based Management of the Arctic,” in Changes in the Arctic environment and the law of the sea, supra note 3, 389–98, at 394 et seq.
544.
Adalberto Vallega considers the designation of protected areas as the most important field of ecosystem management, id., Sustainable ocean governance (London; New York: Routledge, 2001), p. 56.
545.
Plan of Implementation of the World Summit on Sustainable Development, Johannesburg, 4 September 2002, para. 32(c).
546.
Resolution 17.38 of the IUCN General Assembly, 1988, reaffirmed in Resolution 19.46 (1994).
547.
See Sarah Wolf, Marine Protected Areas, Max Planck Encyclopaedia of Public International Law, 2010, paras. 2, 4–5.
548.
See infra cc).
549.
Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention), concluded 16 February 1976, entered into force 2 December 1978, 1102 UNTS 27.
550.
Dan Laffoley, Establishing marine protected area networks: Making it happen (Washington, D.C: IUCN-WCPA; National Oceanic and Atmospheric Association; The Nature Conservancy, 2008), p. 12.
551.
Ibid.
552.
Rovaniemi Declaration, Declaration on the protection of the Arctic Environment, Rovaniemi, 14 June 1991, p. 1.
553.
Conservation of Arctic Flora and Fauna (CAFF), Circumpolar Protected Areas Network (CPAN), Strategy and Action Plan, CAFF Habitat Conservation Report No. 6, Directorate for Nature Management, Trondheim, Norway, 1996, available at: http://arcticportal.org/uploads/3v/kl/3vklGMBX4PY7yUyECXLhAQ/HCR6-CPAN-Protected-Areas-Network-CPAN---Strategy-and-Action-Plan.pdf, last visited 7 March 2011.
554.
Conservation of Arctic Flora and Fauna, Circumpolar Protected Areas Network Expert Group (CPAN), Charter, 1998, available at: http://arcticportal.org/uploads/Ca/_Z/Ca_ZSqJ1wUQHq4cefwm-ZQ/Charter-CPAN.pdf, last visited 7 March 2011.
555.
Circumpolar Protected Areas Network (CPAN), CPAN Country Updates Report 2004, CAFF Habitat Conservation Report No. 11, available at: www.arcticportal.org, last visited 8 March 2011; the different IUCN categories for protected areas are: Category Ia: Strict nature reserve, Category Ib: Wilderness area, Category II: National park, Category III: Natural monument or feature, Category IV: Habitat/species management area, Category V: Protected landscape/seascape, and Category VI: Protected area with sustainable use of natural resources, see Dudley, Nigel (ed.), Guidelines for Applying Protected Area Management Categories, IUCN, Gland, Switzerland, 2008, available at: http://data.iucn.org/dbtw-wpd/edocs/PAPS-016.pdf, last visited 8 March 2011.
556.
Circumpolar Protected Areas Network (CPAN), CPAN Country Updates Report 2004, CAFF Habitat Conservation Report No. 11, available at: www.arcticportal.org, last visited 8 March 2011; Map of Protected areas in the Arctic, World Protected Areas Database, UNEP-WCMC (2005), WWF Russia, published 2007, available at: http://maps.grida.no/go/graphic/protected-areas-in-the-arctic, last visited 8 March 2011.
557.
Management Board Meeting, 1–3 February 2005, Helsinki, Finland, Minutes, no 8.3, available at: http://arcticportal.org/uploads/t-/9F/t-9FpbaWsOdX3RSz_UyIFw/CAFF-Board-Meeting-Helsinki-Finland-February-1-3-2005.pdf, last visited 8 March 2011.
558.
Record of Decisions, CAFF Management Board Meeting, Monday 13 February – Wednesday 15 February, 2006, Helsinki, Finland, available at: http://arcticportal.org/uploads/5M/C8/5MC8GnfbIMKz7pe4f-DwTg/CAFF-Board-Meeting-Helsinki-February-2006.pdf.
559.
CAFF 2006–2008 Work Plan – English and Russian Versions, CAFF International Secretariat, Akureyri, Iceland, p. 2, available at: http://archive.arcticportal.org/255/01/work-plan-all.pdf, last visited 8 March 2011.
560.
See e.g. “Managing Risks to Biodiversity and the Environment on the High Sea, Including Tools Such as Marine Protected Areas: - Scientific Requirements and Legal Aspects - Proceedings of the Expert Workshop held at the International Academy for Nature Conservation, Isle of Vilm, Germany, 27 February - 4 March 2001,”, BfN-Skripten 43 (2001); Tullio Scovazzi, “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations,” International Journal of Marine and Coastal Law 19, no. 1 (2004) 1–17, at 5.
561.
Robin Warner, “Marine Protected Areas Beyond National Jurisdiction Existing Legal Principles and Future Legal Frameworks,” in Managing Risks to Biodiversity and the Environment on the High Sea, Including Tools Such as Marine Protected Areas: - Scientific Requirements and Legal Aspects - Proceedings of the Expert Workshop held at the International Academy for Nature Conservation, Isle of Vilm, Germany, 27 February - 4 March 2001, ed. Hjalmar Thiel and Anthony Koslow, 149–168, BfN-Skripten 43, at 149; Erik J. Molenaar, “Managing biodiversity in areas beyond national jurisdiction,” International Journal of Marine and Coastal Law 22, no. 1 (2007), 89–124, at 106; Scovazzi, supra note 560, at 16.
562.
Kristina Gjerde, “High seas marine protected areas,” International Journal of Marine and Coastal Law 16 (2001), 515–528, at 526.
563.
Scovazzi, supra note 560, at 7.
564.
See in particular UNGA, Report of the Secretary-General of the United Nations General Assembly on Oceans and the Law of the Sea, 19 October 2009, UN Doc. A/64/66/Add.2 and id., Report of the Secretary-General of the United Nations General Assembly on the Law of the Sea, 10 September 2007, UN Doc. A/62/66/Add.2.
565.
UNGA, Report of the Secretary-General of the United Nations General Assembly on Oceans and the Law of the Sea, 19 October 2009, UN Doc. A/64/66/Add.2, para. 134.
566.
Julian Roberts, Aldo Chircop and Siân Prior, “Area-based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Sea Area Concept,” International Journal of Marine and Coastal Law 25 (2010) 483–522, at 492.
567.
Ibid., at 493.
568.
Yoshinobu Takei, Filling regulatory gaps in high seas fisheries: discrete high seas fish stocks, deep-sea fisheries and vulnerable marine ecosystems (Utrecht, 2008), p. 145 et seqq.
569.
Ilulissat Declaration, supra note 107.
570.
Tromsø Declaration on the occasion of the Sixth Ministerial Meeting of The Arctic Council, The 29th of Aprils 2009, Tromsø, Norway, available at: http://arctic-council.org/filearchive/Tromsoe%20Declaration.pdf, p. 8 et seq., last visited 20 April 2010.
571.
See Hans Corell, “Reflections on the possibilities and limitations of a binding legal regime,” Environmental Policy and Law 37, no. 4 (2007), 321–324, at 321; Carl A. Fleischer, “The Continental Shelf beyond 200 Nautical Miles – a Crucial Element in the ‘Package Deal’: Historic Background and Implications for Today,” in Law, technology and science for oceans in globalisation, supra note 222, 429–48, at 444; see Ted L. McDorman, “The Outer Continental Shelf in the Arctic Ocean,” in Law, technology and science for oceans in globalisation, ibid., 499–520, at 500 et seq.; see also Young, supra note 74, at 180; the European Commission, http://euobserver.com/9/27104?print=1, last visited 15 February 2011.
572.
United Nations, Impact of the entry into force of the 1982 United Nations, Report of the Secretary-General, 20 October 1997, Doc. A/52/491, p. 18.
573.
United Nations, Law of the Sea: Protection and Preservation of the Marine Environment, Report of the Secretary-General (U.N. Doc. A/44/461), September 18, 1989.
574.
Patricia W. Birnie; Alan E. Boyle “International law and the environment“, Oxford, New York: Oxford University Press 2002, p. 452.
575.
See Rainer Lagoni, “Die Abwehr von Gefahren für die marine Umwelt,” in Umweltschutz im Völkerrecht und Kollisionsrecht: Referate und Thesen mit Diskussion; with English summaries of the reports; [22. Tagung in Trier vom 10. bis 13. April 1991] = (Environmental protection in public international law and private international law), ed. Rudolf Dolzer, 87–152 (Heidelberg: Müller, Jur. Verl., 1992), at 94.
576.
Jackson W. Davis, “The Need for a New Global Ocean Governance System,” in Freedom for the seas in the 21st century: ocean governance and environmental harmony, ed. Jon M. van Dyke, Durwood Zaelke and Grant Hewison, 147–70 (Washington: Island Press, 1993), at 164.
577.
See also Articles 207(1), 209(2), 210(6), 211(2), 212(1).
578.
Chapin and Hamilton, supra note 191, p. 2.
579.
Hertell, supra note 213, at 573.
580.
Rothwell, supra note 8, at 242; also, apart from UNCLOS, few legal instruments have been designed to deal specifically with the Arctic, see id., supra note 514, at 299.
581.
See Erik J. Molenaar, “Arctic Fisheries Conservation and Management: Initial Steps of Reform of the International Legal Framework,” in The Yearbook of Polar Law, ed. Gudmundur Alfredsson and Timo Koivurova, 427–64 1 (Leiden Boston: Martinus Nijhoff Publishers, 2009), at 436.
582.
Koivurova and Molenaar, supra note 214, p. 6; see Thomas Blunden, “The legal status of the Arctic under contemporary international law: An Antarctic regime or poles apart?” The journal of international maritime law 15, no. 3 (2009), at 262.
583.
Stokke, Hønneland and Schei, supra note 78, p. 98; see Lagoni, supra note 362, at 185.
584.
List of parties, Convention on Biological Diversity, http://www.cbd.int/convention/parties/list/, last visited 25 February 2011.
585.
Convention on Environmental Impact Assessment in a Transboundary Context, signed 25 February 1991, entered into force on 10 September 1997; List of parties, Convention on Environmental Impact Assessment in a Transboundary Context, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-4&chapter=27&lang=en, last visited 25 February 2011.
586.
Chapin and Hamilton, supra note 191, p. 3; Commission of the European Communities, Communication from the Commission to the European Parliament and the Council, The European Union and the Arctic Region, COM(2008) 763 final, Brussels, 20.11.2008 p. 10.
587.
“If the Arctic Ocean beyond national jurisdiction is high seas, then its regulation is subject to the same tensions, uncertainties and shortcomings afflicting high seas governance the world over, including over-exploitation, inadequate exercise of flag State responsibilities, and lack of compliance with and enforcement of internationally agreed measures and conflict between different ocean uses. In the Arctic’s case, the situation is exacerbated by the sheer scope of the pending extended continental shelf claims. The potential for disputes between coastal and other States over accommodation of conflicting high seas and continental shelf rights and uses is very real.”, Rayfuse, supra note 261, at 209.
588.
Rosemary G. Rayfuse and Robin Warner, “Securing a sustainable future for the oceans beyond national jurisdiction: The legal basis for an integrated cross-sectoral regime for high seas governance for the 21st century,” International Journal of Marine and Coastal Law 23, no. 3 (2008), 399–421, at 407.
589.
Ibid.; see Nilufer Oral, Protection of vulnerable marine ecosystems in areas beyond national jurisdiction: Can international law meet the challenge?, in: Strati, Anastasia, Gavouneli, Maria and Skourtos, Nikolaos, eds. Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After. Leiden: Martinus Nijhoff Publishers, 2006, 85–108, at 86.
590.
See Julien Rochette and Raphaël Billé, “Governance of marine biodiversity beyond national jurisdictions: Issues and perspectives,” Ocean & Coastal Management 51 (2008), 779–781, at 779.
591.
Rayfuse and Warner, supra note 588, at 400.
592.
Molenaar, supra note 561, at 95; Rayfuse/Warner, supra note 588, at 402.
593.
Rosemary Rayfuse, “Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction,” Review of European Community & International Environmental Law 17, no. 1 (2008) 3–13, at 7.
594.
Bioprospecting comprises “the search for and collection of genetic materials and their study with the goal of commercialization.”, Harlan Cohen, “Some Reflections on Bioprospecting in the Polar Regions,” in Law, technology and science for oceans in globalisation: supra note 222, 339–52, at 340; see David Leary, “Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?,” Review of European Community & International Environmental Law 17, no. 1 (2008), 41–55, at 41; Pamela L. Schoenberg, “A Polarizing Dilemma: Assessing Potential Regulatory Gap-Filling Measures for Arctic and Antarctic Marine Genetic Resource Access and Benefit Sharing,” Cornell International Law Journal 42 (2009) 271–299.
595.
Jeff Ardron et al., “Marine spatial planning in the high seas,” Marine Policy 32, no. 5 (2008), 832–839, at 833; Rayfuse, supra note 593, at 6; id., Mark G. Lawrence and Kristina M. Gjerde, “Ocean fertilisation and climate change: The need to regulate emerging high seas uses,” International Journal of Marine and Coastal Law 23, no. 2 (2008) 297–326, at 299 et seq..
596.
Rayfuse, supra note 593, at 7; Joanna Mossop, “Regulating Uses of Marine Biodiversity on the Outer Continental Shelf,” in Law, technology and science for oceans in globalisation, supra note 222, 319–38; id., “Protecting Marine Biodiversity on the Continental Shelf Beyond 200 Nautical Miles,” Ocean Development & International Law 38 (2007) 283–304, at 288.
597.
Rayfuse, Lawrence and Gjerde, supra note 595, at 323.
598.
Molenaar, supra note 560, at 106.
599.
Ibid., at 98.
600.
See articles 204 to 206 UNCLOS.
601.
Maki Tanaka, “Lessons from the Protracted MOX Plant Dispute: a Proposed Protocol on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea,” Michigan Journal of International Law 25 (2004), 337–428, at 393.
602.
See supra note 209.
603.
Article 2(1) Espoo Convention; the proposed activities include offshore hydrocarbon production, Appendix I, Nr. 15.
604.
Arctic Environmental Protection Strategy, supra note 13, p. 10: “Management, planning and development activities which may significantly affect the Arctic ecosystems shall: a) be based on informed assessments of their possible impacts on the Arctic environment, including cumulative impacts“.
605.
Guidelines for Environmental Impact Assessment (EIA) in the Arctic, Arctic Environment Protection Strategy, Sustainable Development and Utilization, Finnish Ministry of the Environment, Finland 1997.
606.
Koivurova, “Implementing Guidelines for Environmental Impact Assessment in the Arctic,” in Theory and practice of transboundary environmental impact assessment, ed. Kees Bastmeijer and Timo Koivurova, 151–74 (Leiden: Nijhoff, 2008), 151–74, at 154.
607.
Guidelines for Environmental Impact Assessment (EIA) in the Arctic, supra note 605, p. 5.
608.
This soft law approach was taken because of the multi-layered governance system in the Arctic, where several federal states divide powers between the federal and the regional level, see Koivurova, supra note 606, at 155.
609.
Koivurova, ibid; see also Lennon, supra note 81, at 34.
610.
Koivurova, ibid., at 165; id., Environmental impact assessment in the Arctic: A study of international legal norms (Saarbrücken, Germany: Lambert Academic Publishing, 2010), 265–275.
611.
Id., supra note 606, at 166.
612.
Ibid., at 172.
613.
Arctic Marine Shipping Assessment 2009 Report, supra note 65, p. 2.
614.
Ibid., p. 4.
615.
See IMO, Sub-Committee on Ship Design and Equipment, 54th session, Agenda item 13, 2 August 2010, Development of a Mandatory Code for Ships Operating in Polar Waters, Report of the correspondence group, Submitted by Norway, IMO Doc. DE 54/13/3, Annex.
616.
See footnote to number 7.1.1 Guidelines for Ships Operating in Polar Waters.
617.
Ibid.
618.
Ibid., para. 14.
619.
Arctic Marine Shipping Assessment 2009 Report, supra note 65, p. 68.
620.
See footnote to number 14.2 Guidelines for Ships Operating in Polar Waters.
621.
Arctic Marine Shipping Assessment 2009 Report, supra note 65, p. 68.
622.
Ibid., p. 134.
623.
Ibid.
624.
Ibid., p. 146.
625.
Julian Roberts, “Protecting Sensitive Marine Environments: The Role and Applications of Ships’ Routeing Measurers,” International Journal of Marine and Coastal Law 20, no. 1 (2005), 135–160.
626.
So far, such measures have only been applied in certain areas of the marine Arctic, such as Alaska’s Prince William Sound, Arctic Marine Shipping Assessment 2009 Report, supra note 65, p. 61.
627.
Aldo Chircop, “International Arctic Shipping: Towards Strategic Scaling-Up of Marine Environment Protection,” in Changes in the Arctic environment and the law of the sea, supra note 3, 177–201, at 185.
628.
Arctic Marine Shipping Assessment 2009 Report, supra note 65, p. 69.
629.
International Convention for the Control and Management of Ships’ Ballast Water and Sediments, concluded 13 February 2004, not yet in force, available at: http://www.austlii.edu.au/au/other/dfat/treaties/notinforce/2005/18.html, last visited 11 March 2011.
630.
Article 2 Ballast Water Convention.
631.
Annex, Regulation B-1 et seqq. Ballast Water Convention.
632.
Annex, Regulation C-1 Ballast Water Convention.
633.
Annex to Resolution 3 (2006), available at: http://www.ats.aq/documents/recatt/att345_e.pdf, last visited 11 March 2011.
634.
Arctic Marine Shipping Assessment 2009 Report, supra note 65, p. 69.
635.
The Ballast Water Convention enters into force 12 months after ratification by 30 States, representing 35 % of world merchant shipping tonnage, article 18(1) Ballast Water Convention. Of the Arctic States, Canada, Finland, Norway and Sweden have ratified the Convention, see http://www.ecolex.org/ecolex/ledge/view/RecordDetails;document_International%20Convention%20for%20the%20Control%20and%20Management%20of%20Ships’%20Ballast%20Water%20and%20Sediments.html?DIDPFDSIjsessionid=167D7E2111664A6934752FBD2636E386?id=TRE-001412&index=treaties, last visited 12 March 2011.
636.
Set by MARPOL 73/78.
637.
Koivurova and Molenaar, supra note 214, p. 42.
638.
See paras. 5(2)(a) and (b) United Nations 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 (FSA), signed 4 August 1995, entry into force 11 December 2001, 2167 UNTS 88.
639.
See Ilulissat Declaration, supra note 107.
640.
Rothwell, supra note 580, at 244; Michael Distefano, “Managing Arctic Fish Stocks,” Sustainable Development Law & Policy 8, no. 3 (2003), p. 13.
641.
Molenaar and Oude Elferink, supra note 400, at 6.
642.
David Freestone, High Seas Fisheries, Max Planck Encyclopaedia of Public International Law, Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 2010, para. 36.
643.
FAO, Fisheries and Agriculture Department, The State of World Fisheries and Aquaculture, 2006, Food and Agriculture Organization of the United Nations, Rome 2007, p. 33.
644.
B. Worm et al., “Impacts of Biodiversity Loss on Ocean Ecosystem Services,” Science 314, no. 5800 (2006), 787–790, at 790.
645.
Rayfuse and Warner, supra note 591, at 407.
646.
Philippe Sands, Principles of international environmental law, 2nd ed. (Cambridge: Cambridge Univ. Press, 2003), at 568.
647.
Article 116 UNCLOS.
648.
Ellen Hey, The regime for the exploitation of transboundary marine fisheries resources: The United Nations law of the Sea Convention Cooperation between states (Dordrecht: Nijhoff, 1989); Utrecht, Univ., Diss., 1989., p. 50.
649.
See Stuart B. Kaye, International fisheries management, International environmental law and policy series (The Hague: Kluwer Law International, 2001), p. 146.
650.
Shigeru Oda, “Fisheries under the United Nations Convention on the Law of the Sea,” American Journal of International Law 77 (1983), 739–755, at 751.
651.
See Kaye, supra note 649, p. 149.
652.
“Remarkably, regional fisheries organizations are not assigned specific functions or competencies.” Rüdiger Wolfrum, Volker Röhen and Fred L. Morrison, “Preservation of the Marine Environment,” in International, regional, and national environmental law, ed. Fred L. Morrison and Rüdiger Wolfrum, 225–84 (The Hague; Boston: Kluwer Law International, 2000), at 235.
653.
See Kaye, supra note 649, p. 158.
654.
Highly migratory species are listed in Annex I UNCLOS. Most of those species migrate large distances during their life cycle, traversing not only the EEZs of one or more states but also the high seas, see Churchill and Lowe, supra note 244, p. 311.
655.
Article 66(3) UNCLOS.
656.
Article 77(4) UNCLOS.
657.
Mossop, “Protecting Marine Biodiversity on the Continental Shelf Beyond 200 Nautical Miles”, supra note 596, at 289.
658.
Article 77(2) UNCLOS.
659.
E.J Molenaar, “Unregulated Deep-Sea Fisheries: A Need for a Multi-Level Approach,” International Journal of Marine and Coastal Law 19, no. 3 (2004), 223–246, at 245.
660.
Moritaka Hayashi, “Global Governance of Deep-Sea Fisheries,” International Journal of Marine and Coastal Law 19, no. 3 (2004), 289–298, at 293; Molenaar, “Addressing regulatory gaps in high seas fisheries,” International Journal of Marine and Coastal Law 20, 3/4 (2005) 533–570, at 558.
661.
For an analysis of “justifiable interference” see ibid., pp. 559 et seqq.
662.
Ellen Hey, in Developments in international fisheries law. The Hague; Boston: Kluwer Law International, at 28 pointing out the problems of registration and re-registration of fishing vessels under flags of convenience and the non-participation in fisheries management regimes or the opting-out of fishing regulations by flag states.
663.
Tore Henriksen, Geir Hønneland and Are Sydnes, Law and politics in ocean governance: The UN fish stocks agreement and regional fisheries management regimes (Leiden: Nijhoff, 2006), p. 11.
664.
United Nations 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, New York, 4 August 1995, entered into force 11 December 2001, 2167 UNTS 88; all eight Arctic States have ratified the Agreement, see http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-7&chapter=21&lang=en, last visited 20 March 2011.
665.
See status at http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=XXI-7&chapter=21&lang=en#Participants, last visited 10 April 2011.
666.
Moritaka Hayashi, “The 1995 UN Fish Stocks Agreement and the Law of the Sea,” in Order for the oceans at the turn of the century, ed. Davor Vidas and Willy Østreng, (The Hague; Boston: Kluwer Law International, 1999), 37–56, at 38; Suarez, supra note 231, at 55.
667.
Articles 5(c), 6 FSA.
668.
See Article 5(d) and (e) FSA.
669.
Article 5(b) FSA.
670.
Article 18(3) FSA.
671.
Ibid., p. 66.
672.
Article 8(1) FSA.
673.
Article 8(3) FSA.
674.
David A. Balton, “Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks“, Ocean Development and International Law, 27, 125–51, at 138.
675.
Article 8(5) FSA.
676.
See Articles 9–12 FSA.
677.
Michael W. Lodge and Satya N. Nandan, “Some Suggestions towards Better Implementation of the United Nations Agreement on Straddling Fish Stocks and Highly Migration Fish Stocks of 1995,” International Journal of Marine and Coastal Law 20 (2005), 345–379, at 352.
678.
Molenaar, supra note 246, at 158.
679.
A/RES/61/105, 6 March 2007, Sustainable fisheries, including through the 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, and related instruments, p. 5, emphasis added.
680.
Molenaar, supra note 246, at 165.
681.
Erik J. Molenaar and Robert Corell, “Arctic Shipping: Background paper,” (Arctic Transform, 12 February 2009), p. 18; the same applies to shared fish stocks, ibid.
682.
Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on High Seas, Rome, 24 November 1993, International Legal Materials (1994), 33:968.
683.
Gerald Moore, “The FAO Compliance Agreement,” in Current fisheries issues and the Food and Agriculture Organization of the United Nations, ed. Myron H. Nordquist and John N. Moore, 77–92 (The Hague; Boston: M. Nijhoff Publishers, 2000), at 78.
684.
Principle 13, Declaration of Cancun, International Conference of Responsible Fishing, Cancun, Mexico, May 6–8, 1992; reproduced in FAO, Papers presented at the Technical Consultation on High Seas Fishing, Rome 7–15 September 1992, Fisheries Report No. 484, Supplement, p. 71.
685.
Para. 17.52, Agenda 21, United Nations Conference on Environment & Development, Rio de Janeiro, Brazil, 3 to 14 June 1992.
686.
Para. 63, Legal Issues concerning high seas fishing, in: FAO, Papers presented at the Technical Consultation on High Seas Fishing, Rome 7–15 September 1992, Fisheries Report No. 484, p. 67.
687.
UN Doc. A/CONF. 151/15, annex.
688.
Code of Conduct for Responsible Fisheries, 1995, International Organizations and the Law of the Sea Documentary Yearbook, 11:700.
689.
See http://www.fao.org/Legal/treaties/012s-e.htm.
690.
Hedley, C., FAO Compliance Agreement, in: International Agreements, Vol. 1, Section 1.3, Ocean Law Publishing, London 2008.
691.
David Balton, “Making the New Rules Work: Implementation of the Global Fisheries Instrument”, in Current Fisheries Issues and the Food and Agricultural Organization of the United Nations, ed. Myron H. Nordquist and John Norton Moore, 107–135 (The Hague: Kluwer Law International, 2000), at 108.
692.
David A. Balton, “The Compliance Agreement,” in Developments in international fisheries law, ed. Ellen Hey, 31–54 (The Hague; Boston: Kluwer Law International, 1999), at 49.
693.
Article III(5) FAO Compliance Agreement.
694.
Gerald Moore, “The Food and Agriculture Organisation of the United Nations Compliance Agreement,” International Journal of Marine and Coastal Law 9 (1994), 412–425, at 414.
695.
The dataset presently contains 7 600 records, of which 6 169 correspond to vessels which appear as currently authorised to fish in the high seas, (data providers have not provided any reason, dates or data for deletion). The difference between the total number of records maintained in the dataset and the number of authorised vessels arises from the fact that historical information is being retained as part of the records (e.g., changes in flag, ownership, duplicate registries, and terminated authorisations), Information retrieved from FAO website, available at: www.fao.org, last visited 1 November 2010.
696.
Budislav Vukas and Davor Vidas, “Flags of Convenience and High Seas Fishing: The Emergence of a Legal Framework,” in Governing High Seas Fisheries (see note 1017), 53–90, at 69.
697.
See United Nations Treaty Series Online Collection, Registration No. I-39486.
698.
See Judith Swan, FAO Fisheries Department, Fishing Vessels Operating Under Open Registers And The Exercise Of Flag State Responsibilities, Information And Options, Rome 2002, Appendix 1.
699.
Takei, supra note 568, p. 85.
700.
See e.g. the soft wording of article III(8) FAO Compliance Agreement.
701.
Except for the incorporated provisions of the Compliance Agreement, see supra note 682.
702.
Moore, supra note 683, at 89.
703.
William Edeson, “Towards Long-term Sustainable Use: Some Recent Developments in the Legal Regime of Fisheries,” in International law and sustainable development: Past achievements and future challenges, ed. Alan E. Boyle and David Freestone, 165–204 (New York: Oxford University Press, 1999); David J. Doulman, “Code of Conduct for Responsible Fisheries,” in Current fisheries issues and the Food and Agriculture Organization of the United Nations, supra note 683), 307–330, at 310; Moore, supra note 683, at 94.
704.
See Kaye, supra note 649, p. 222.
705.
Ibid.
706.
Illegal fishing means fishing that takes place when vessels operate in violation of the applicable laws and regulations. Unreported fishing refers to fishing that has been unreported or misreported in contravention of applicable laws and regulations. Unregulated fishing is fishing in areas where there are no conservation and management measures in place, see paragraph 3 of the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU), Rome 2001, available at: ftp://ftp.fao.org/docrep/fao/012/y1224e/y1224e00.pdf, last visited 3 September 2011.
707.
David J. Agnew et al., “Estimating the Worldwide Extent of Illegal Fishing,” PLoS ONE 4, no. 2 (2009), e4570.
708.
PSM are requirements established or interventions undertaken by port states which a foreign fishing vessel must comply with or is subjected to as a condition for use of ports within the port state, see A. Skonhoft, Database on Port State Measures, FAO Fisheries and Aquaculture Department, available at: http://www.fao.org/fishery/psm/en, last visited 3 November 2010.
709.
The development and implementation of PSM is principally a sovereign decision of each state because they exercise full sovereignty over their ports, with just few minor exceptions, see Articles 25 and 218 UNCLOS.
710.
FAO, Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, Rome 2007, available at: ftp://ftp.fao.org/docrep/fao/010/a0985t/a0985t00.pdf, last visited 3 September 2011.
711.
FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing Rome 2001, available at: ftp://ftp.fao.org/docrep/fao/012/y1224e/y1224e00.pdf, last visited 3 September 2011.
712.
FAO, Thirty-sixth Session, Resolution No 12/2009, available at: http://www.fao.org/Legal/treaties/037s-e.htm, last visited 4 November 2010.
713.
See FAO, Legal Office, available at: http://www.fao.org/Legal/treaties/037s-e.htm, last visited 4 November 2010.
714.
Article 29 PSMA.
715.
IUU fishing refers to the activities set out in paragraph 3 IPOA-IUU, supra note 706.
716.
Article 3(3) PSMA.
717.
Article 3(1) PSMA.
718.
The PSMA does in particular not affect the right of parties to adopt more stringent PSM (Article 4(1)(b)).
719.
Article 9(4) PSMA.
720.
Articles 6, 16 PSMA.
721.
Article 8, Annex A PSMA.
722.
Article 13, Annex B PSMA.
723.
Article 17, Annex E.
724.
Article 21 PSMA.
725.
See recital no. 7(2) PSMA.
726.
See Erik J. Molenaar, “Port state jurisdiction to combat IUU fishing: the Port State Measures Agreement,” in Recasting transboundary fisheries management arrangements in light of sustainability principles: Canadian and international perspectives, ed. Dawn A. Russell and David VanderZwaag, 369–86, Legal aspects of sustainable development (Leiden: Martinus Nijhoff, 2010), at 373.
727.
Rosemary G. Rayfuse, “To our children’s children’s children: From promoting to achieving compliance in high seas fisheries,” International Journal of Marine and Coastal Law 20, 3/4 (2005), 509–532, at 528.
728.
According to the FAO, “[f]rom 1950 to 1977, DSF represented less than 1 % of the entire maritime catch. In the period between 1995 and 2005 the percentage grew to nearly 3 per cent and in 2005 it represented 4 per cent of the total maritime catch, which amounted to 3.3 million tonnes”. Accordingly, the DSF total catch increased by nearly 75 per cent, see Analia Murias, FAO Focuses on Improving Deep Sea Fisheries Management, Fish Information and Service, http://fis.com/fis/worldnews/worldnews.asp?l=e&ndb=1&id=27450, last visited 16 November 2010.
729.
See Erik J. Molenaar, supra note 659, at 223.
730.
See D.W. Japp,/S. Wilkinson, Deep-sea resources and fisheries, in: FAO Fisheries Report No. 838, FIEP/R838, Report and documentation of the expert consultation on deep-sea fisheries in the high seas, Bangkok, Thailand, 21–23 November 2006, p. 39.
731.
See DEEP SEA 2003 Conference, Queenstown, New Zealand, 1–5 December 2003.
732.
See Odd Aksel Bergstad/John D. M. Gordon,/Philip Large, Is time running out for deep sea fish?, available at: http://www.ices.dk, last visited 9 November 2010.
733.
J. Koslow, “Continental slope and deep-sea fisheries: implications for a fragile ecosystem,” ICES Journal of Marine Science 57, no. 3 (2000), 548–557, at 548.
734.
UNGA Res. 61/105, UN Doc. A/RES/61/105 (December 8, 2006), paragraph 80.
735.
UNGA, Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its seventh meeting, Letter dated 14 July 2006 from the Co-Chairpersons of the Consultative Process addressed to the President of the General Assembly, A/61/156, para. 100.
736.
‘Significant adverse impacts’ are impacts jeopardising the integrity of ecosystems by reducing the ability of populations to replace themselves, by reducing the productivity of habitats or by causing significant loss of species richness, habitat or community types, see para. 17 International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, FAO, Rome, 2008.
737.
‘Vulnerable marine ecosystems’ are ecosystems that are likely to be disturbed and slow to recover, see para. 14 International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, ibid.
738.
UNGA Res. 61/105, UN Doc. A/RES/61/105 (December 8, 2006), paragraph 83(a) to (d).
739.
Ibid., paragraph 89.
740.
International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, supra note 736, preamble, no. 3.
741.
Ibid.
742.
Report of the Technical Consultation on International Guidelines for the Management of Deep-sea Fisheries in the High Seas. Rome, 4–8 February and 25–29 August 2008, FAO, Rome 2009, Annex F.
743.
International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, supra note, no. 6.
744.
In the Description of Key Concepts for DSFs, the Guidelines name characteristics of deep-sea fish species. “These include (i) maturation at relatively old ages; (ii) slow growth; (iii) long life expectancies; (iv) low natural mortality rates; (v) intermittent recruitment of successful year classes; and (vi) spawning that may not occur every year.” Therefore, “many deep-sea marine living resources have low productivity and are only able to sustain very low exploitation rates”, Section 3, no. 13.
745.
Para. 26 International Guidelines for the Management of Deep-sea Fisheries in the High Seas, supra note 736.
746.
Paras. 27–28, ibid.
747.
Paras 31 et seqq., ibid.
748.
Paras. 42 et seqq., ibid.
749.
Ibid., p. 996; in May 2010, the FAO held a workshop on the implementation of the guidelines, see Report of the FAO Workshop on the Implementation of the FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas – Challenges and Ways Forward, Busan, 10–12 May 2010. At the time of the workshop, however, “most states and RFMO/As ha[d] only recently started to address many of the provisions in the FAO Deep-sea Guidelines with a view to their implementation. In May 2010, RFMO/As were still at an early stage of the implementation process and thought it premature to evaluate the effectiveness of the measures already taken.”, ibid., p. 4. Therefore, no comprehensive review of implementation of the Guidelines has taken place yet.
750.
Convention on Biological diversity, Rio de Janeiro, adopted 5 June 1992, entered into force 29 December 1993 and ratified by 193 parties, among them Finland, Sweden, Norway, Denmark, Iceland, Canada and the Russian Federation. The United States has signed the Convention in 1993, but has not yet ratified it. The text of the Convention can be found in (1992) 31 I.L.M. 822–841.
751.
Article 1 CBD.
752.
Article 2 CBD.
753.
Alison Rieser, “International Fisheries Law, Overfishing and Marine Biodiversity,” The Georgetown International Environmental Law Review 9 (1996–1997), 251–280, at 256.
754.
Article 3 CBD; emphasis added.
755.
Article 4(a) CBD.
756.
Article 4(b) CBD.
757.
Article 5 CBD.
758.
Article 8 CBD; ‘in-situ conservation’ means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties, Article 2 CBD.
759.
Article 9 CBD; ‘ex-situ conservation’ means the conservation of components of biological diversity outside their natural habitats, article 2 CBD. Ex-situ conservation is usually complementary to in-situ conservation, Sands, supra note 646, p. 518.
760.
See articles 8 and 9 CBD.
761.
See articles 5, 7–11 CBD.
762.
See article 6 CBD.
763.
Rüdiger Wolfrum, “The Protection and Management of Biological Diversity,” in International, regional, and national environmental law, supra note 652, 355–72, at 359.
764.
John C. Kunich, “Losing Nemo: The Mass Extinction Now Threatening the World’s Ocean Hotspots,” Columbia Journal of Environmental Law 30, no. 1 (2005), 1–134, at 59.
765.
Article 23 CBD.
766.
Article 24 CBD.
767.
Article 25 CBD.
768.
The final work of this meeting contained more than 50 recommendations, which were supported by the second COP. The recommendations concern five thematic issues: integrated marine and coastal management; marine and coastal protected areas; sustainable use of coastal and marine living resources; mariculture; and the introduction of alien species.
769.
Conference of the Parties to the Convention on Biological Diversity, Second meeting, Jakarta, 6–17 November 1995, Report of the First Meeting of the Subsidiary Body on Scientific, Technical and Technological Advice, UNEP/CBD/COP/2/5, 21 September 1995, Recommendation I/8: Scientific, technical and technological aspects of the conservation and sustainable use of coastal and marine biological diversity.
770.
Conference of the Parties to the Convention on Biological Diversity, Second meeting, supra note, Decision II/10: Conservation and Sustainable Use of Marine and Coastal Biological Diversity and The Jakarta Ministerial Statement on the Implementation of the Convention on Biological Diversity, Annex; furthermore, decision II/10 contains two Annexes that form an integral part of the decision. Annex I contains additional conclusions on the SBSTTA Recommendation I/8. Annex II entails a draft programme for further work on marine and coastal biodiversity.
771.
Article 22(2) CBD; the law of the sea includes both customary international law of the sea and the provisions of UNCLOS, see Christopher C. Joyner, “Biodiversity in the Marine Environment: Resource Implications for the Law of the Sea,” Vanderbilt Journal of Transnational Law 28 (1995), 635–687, at 650.
772.
Lyle Glowka, A guide to the Convention on Biological Diversity: A contribution to the global biodiversity strategy, IUCN environmental policy and law paper (Gland: IUCN, 1994), p. 109.
773.
Article 237(1) UNCLOS; see Convention on Biological Diversity, Subsidiary Body on Scientific, Technical and Technological Advice, Eighth meeting, Montreal, 10–14 March 2003, Marine and Coastal Biodiversity: Review, further elaboration and refinement of the Programme of Work, Study of the relationship between the Convention on Biological Diversity and the United Nations Convention on the Law of the Sea with regard to the conservation and sustainable use of genetic resources on the deep seabed (decision II/10 of the Conference of the Parties to the Convention on Biological Diversity), Note by the Executive Secretary, UNEP/CBD/SBSTTA/8/INF/3/Rev.1,22 February 2003, p. 7.
774.
See Julie R. Mack, “International Fisheries Management: How the U.N. Conference on Straddling and Highly Migratory Fish Stocks Changes the Law of Fishing on the High Seas,” California Western International Law Journal 26 (1995–1996), 313–333, at 317.
775.
Article 118 UNCLOS.
776.
See Rieser, “International Fisheries Law, Overfishing and Marine Biodiversity, supra note 753, at 271.
777.
See supra V. 4. a) bb).
778.
UN Division for Oceans and the Law of the Sea, Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements as at 03 June 2011, available at: http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm#Agreement%20for%20the%20implementation%20of%20the%20provisions%20of%20the%20Convention%20relating%20to%20the%20conservation%20and%20management%20of%20straddling%20fish%20stocks%20and%20highly%20migratory%20fish%20stocks, last visited 12 September 2011.
779.
Lodge and Nandan, supra note 677, at 354.
780.
See Hayashi, supra note 660, at 297.
781.
It was established in 1945 under the Charter of the UN and comprises all 192 Members of the UN. Its resolutions are “formal expressions of the opinion or will of United Nations organs”, United Nations Dag Hammarskjöld Library, General Assembly: Resolution/Decisions”, United Nations Documentation: Research Guide, available at: http://www.un.org/Depts/dhl/resguide/gares.htm, last visited 3 February 2011. According to the Charter of the UN, the General Assembly may, inter alia, discuss and make recommendations on any questions within the scope of the Charter or affecting the powers and functions of any organ of the UN, except where a dispute or situation is currently being discussed by the Security Council, make recommendations on it and initiate studies and make recommendations to promote, inter alia, international political cooperation, and the development and codification of international law, Article 10 and 13 Charter of the United Nations, signed 26 June 1945, San Francisco, entered into force on October 24, 1945, 1 UNTS XVI.
782.
UN General Assembly, Large-scale pelagic drift-net fishing and its impact on the living marine resources of the world’s oceans and seas, UN Doc. A/RES/46/215, adopted 20 December 1991.
783.
UN General Assembly, Fisheries by-catch and discards and their impact on the sustainable use of the world’s living marine resources, UN Doc. A/RES/49/118, adopted 19 December 1994.
784.
UN General Assembly, Sustainable fisheries, including through the 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, and related instruments, UN Doc. A/RES/60/31, 29 November 2005, para. 9.
785.
Ibid., paras. 2 and 63–82.
786.
Ibid., paras. 38 and 36/42.
787.
Ibid., para. 12.
788.
UN General Assembly, Results of the review by the Commission on Sustainable Development of the sectoral theme of “Oceans and seas”: international coordination and cooperation, UN Doc. A/RES/54/33, 24 November 1999.
789.
UN General Assembly, Oceans and the Law of the Sea, UN Doc. A/RES/59/24, 17 November 2004, para. 73(d).
790.
Treves, supra note 525.
791.
See homepage of the FAO, FAO Fisheries and Aquaculture Department (FI), Mission, available at: http://www.fao.org/fishery/about/organigram/en, last visited 30 March 2012.
792.
Jürgen Friedrich, “Legal Challenges of Nonbinding Instruments: The Case of the FAO Code of Conduct for Responsible Fisheries,” German Law Journal 9, 1539–1564 (2008), at 1542.
793.
Information retrieved from COFI’s website, available at: http://www.fao.org/fishery/about/cofi/en, last visited 27 March 2012.
794.
See Erik Jaap Molenaar, “Participation, allocation and unregulated fishing: The practice of regional fisheries management organisations,” International Journal of Marine and Coastal Law 18, no. 4 (2003) 457–480, at 458.
795.
Article 8(1) FSA.
796.
Article 8(2) FSA.
797.
Article 8(3) FSA.
798.
Article 8(5) FSA.
799.
Kaye, supra note 649, p. 255.
800.
Lodge and Nandan, supra note 677, at 356.
801.
Kristina M. Gjerde, “Editor’s Introduction: Moving from Words to Action,” International Journal of Marine and Coastal Law 20, 3/4 (2005), 323–344, at 330.
802.
See Freestone, supra note 642, para. 40.
803.
See Molenaar and Corell, supra note 102, p. 18.
804.
ICCAT is directly concerned with roughly 30 species, for a list see ICCAT homepage, Introduction, available at: http://www.iccat.int/en/introduction.htm, last visited 30 March 2012.
805.
Article I International Convention for the Conservation of Atlantic Tunas signed 14 May 1966, entered into force 21 March 1969, 673 UNTS 63.
806.
Article III (1) IConCAT.
807.
Conference of Plenipotentiaries on the conservation of Atlantic Tunas, Rio de Janeiro, Brazil, May 2 to 14, 1966, available at: http://www.iccat.int/Documents/Commission/BasicTexts.pdf, last visited 22 September 2009.
808.
See ICCAT’s homepage http://www.iccat.int/en/contracting.htm, last visited 15 March 2011.
809.
Canada, Russia, the United States, Norway and Iceland.
810.
Finland, Sweden and Denmark.
811.
Molenaar /Corell, supra note 102, p. 18 et seq.
812.
See http://www.iccat.int/en/convarea.htm, last visited 14 March 2011. The IHO also considers the Atlantic Ocean as being limited to the North by the southern limits of Davis Strait and the southwestern limit of the Greenland and Norwegian Sea, see International Hydrographic Organization, supra note, no. 23 – North Atlantic Ocean.
813.
Molenaar/Corell, supra note 102, p. 18 et seq.
814.
Reflected by the nickname those disappointed by ICCAT’s conservation efforts have given it: “The International Conspiracy to Catch All Tuna”, see Anjali Nayar, “Bad news for tuna is bad news for CITES,” Nature (2010), 1–11.
815.
International Commission for the Conservation of Atlantic Tunas, Report of the Independent Performance Review of ICCAT, Madrid 2009, p. 1.
816.
Ibid.
817.
Principality of Monaco, Proposal to include Atlantic Bluefin Tuna (Thunnus thynnus (Linnaeus, 1758)) on Appendix I of CITES in accordance with Article II 1 of the Convention, October 2009, available at: http://www.publicintegrity.org/assets/pdf/CitesProposal.pdf, last visited 7 September 2011.
818.
Article IV(1) IConCAT.
819.
Article VIII(1)(a) IConCAT.
820.
D.G Webster, “The irony and the exclusivity of Atlantic bluefin tuna management,” Marine Policy 35, no. 2 (2011) 249–251, at 249.
821.
Article VIII(3)(c) IConCAT.
822.
See Elizabeth DeLone, “Improving the Management of the Atlantic Tuna: the Duty to Strengthen the ICCAT in the Light of the 1995 Fish Stocks Convention,” New York University Environmental Law Journal 6 (1997–1998), 656–673, at 662.
823.
International Commission for the Conservation of Atlantic Tunas, supra note, p. 2.
824.
Resolution by ICCAT Concerning an Action Plan to Ensure Effectiveness of the Conservation Program for Atlantic Bluefin Tuna, entered into force: 2 October 1995.
825.
Ibid.
826.
See Evelyne Meltzer, “The Quest for Sustainable International Fisheries, Regional Efforts to Implement the 1995 United Nations Fish Stocks Agreement: An Overview for the May 2006 Review Conference,” (2009), p. 59.
827.
Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC Convention), Honolulu, 5 September 2000. In force 19 June 2004, 40 ILM 277; sauries are exempted from the application of the Convention, article 3(3).
828.
The WCPFC has 25 Members (Australia, China, Canada, Cook Islands, European Union, Federated States of Micronesia, Fiji, France, Japan, Kiribati, Korea, Republic of Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Philippines, Samoa, Solomon Islands, Chinese Taipei, Tonga, Tuvalu, United States of America, Vanuatu). Furthermore, there are nine Cooperating Non-member(s) (Belize, Ecuador, El Salvador, Indonesia, Mexico, Senegal, Vietnam, Panama, Thailand) and eight Participating Territories (American Samoa, Commonwealth of the Northern Mariana Islands, French Polynesia, Guam, New Caledonia, Tokelau, Wallis and Futuna).
829.
Michael W. Lodge, “The Practice of Fishing Entities in Regional Fisheries Management Organizations: The Case of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean,” Ocean Development & International Law 37 (2006), 185–207, at 186.
830.
Article 3(3) WCPFC Convention.
831.
Articles 5(c), 6 WCPFC Convention.
832.
Article 5(d) WCPFC Convention.
833.
Article 5(e) WCPFC Convention.
834.
Article 5(f) WCPFC Convention.
835.
Article 5(g) WCPFC Convention.
836.
Ted L. McDorman, “Implementing Existing Tools: Turning Words Into Actions - Decision-Making Processes of Regional Fisheries Management Organisations (RFMOs),” International Journal of Marine and Coastal Law 20 (2005) 423–457, at 429.
837.
Article 20(1) WCPFC Convention.
838.
The three-fourth majority has to include three-fourths of members of the South Pacific Forum Fisheries Agency (SPFFA) and three-fourths of the non-members of the SPFFA, article 20(2) WCPFC Convention; the SPFFA is a regional fisheries agency that was established by Pacific Island states in 1979, see Jon van Dyke and Susan Haftel, “Tuna Management in the Pacific: An Analysis of the South Pacific Forum Fisheries Agency,” University of Hawaii Law Review 3 (1981), 1–65, at 4. Its main function today is to coordinate the participation of Pacific island states in the WCPFC, see Adam Langley et al., “Slow steps towards management of the world’s largest tuna fishery,” Marine Policy 33, no. 2 (2009), 271–279, at 272.
839.
Article 20(4) WCPFC Convention.
840.
Article 20 (6)-(9) WCPFC.
841.
McDorman, supra note 836.
842.
A recent study on the effectiveness of RFMOs showed that while the WCPFC is theoretically very effective, i.e. meeting modern conservation standards to a large extent, it is not as successful in practice according to the state of stocks managed by WCPFC, see Sarika Cullis-Suzuki and Daniel Pauly, “Failing the high seas: A global evaluation of regional fisheries management organizations,” Marine Policy 34, no. 5 (2010), at 1039 et seq.; as Phillip M. Saunders emphasises that the WCPFC has to manage and conserve fish stocks in a region with numerous small island states, with some of them relying heavily on fish resources and therefore has to deal with special political and geographical features, see id., “The Western and Central Pacific Fisheries Commission: Management Challenges and Development Imperatives,” in Recasting transboundary fisheries management arrangements in light of sustainability principles: Canadian and international perspectives, supra note 726, 149–74, Legal aspects of sustainable development (Leiden: Martinus Nijhoff, 2010), at 150.
843.
See Langley et al., supra note 838, at 277; Hannah Parris, “Is the Western and Central Pacific Fisheries Commission meeting its conservation and management objectives?” Ocean & Coastal Management 53, no. 1 (2010), 10–26, at 11.
844.
Ibid.
845.
Langley et al., supra note 838, at 277, 279.
846.
Articles 1 and 2, Convention for the International Council for the Exploration of the Sea (ICES), 12 September 1964, Preamble, available at: http://www.ices.dk/aboutus/convention.asp, last visited 17 August 2010.
847.
Preamble, Convention for the International Council for the Exploration of the Sea (ICES), 12 September 1964, available at: http://www.ices.dk/aboutus/convention.asp, last visited 17 August 2010. The Member States are Belgium, Canada, Denmark (including Greenland and Faroe Islands), Estonia, Finland, France, Germany, Iceland, Ireland, Latvia, Lithuania, the Netherlands, Norway, Poland, Portugal, Russia, Spain, Sweden, the United Kingdom, and the United States of America, see ICES Homepage, available at: http://www.ices.dk/aboutus/ourmembers.asp, last visited 17 August 2010.
848.
Australia, Chile, Greece, Peru, and South Africa.
849.
Hans Tambs-Lyche, “Monitoring fish stocks: The role of ICES in the North-East Atlantic,” Marine Policy (1978) 127–132, at 127.
850.
Information retrieved from ICES’ website, available at: http://www.ices.dk/products/introduction.asp, last visited 18 August 2010.
851.
Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Ottawa, 24 October 1978. In force 1 January 1979, 1135 UNTS 369; available at: www.nafo.int; 2007 Amendment, Lisbon, 28 September 2007. Not in force, NAFO/GC Doc. 07/4. The 2007 Amendment consists of eight articles which replace the title with “Convention on Cooperation in the Northwest Atlantic Fisheries” and the existing Preamble, Annexes and almost all provisions by new ones.
852.
Canada, Cuba, Denmark (in respect of Faroe Islands and Greenland), the European Union, France (in respect of Saint Pierre et Miquelon), Iceland, Japan, the Republic of Korea, Norway, the Russian Federation, Ukraine and the United States of America.
853.
The Convention Area encompasses “the waters of the Northwest Atlantic Ocean north of 35º00’ north latitude and west of a line extending due north from 35º00’ north latitude and 42º00’ west longitude to 59º00’ north latitude, thence due west to 44º00’ west longitude, and thence due north to the coast of Greenland, and the waters of the Gulf of St. Lawrence, Davis Strait and Baffin Bay south of 78º10’ north latitude”.
854.
This consists of the Atlantic Ocean with the limits set out in Article I(1) NAFO Convention.
855.
Highly migratory fish species are regulated through ICCAT or NASCO.
856.
Article I(4) NAFO Convention. See Henriksen, Hønneland and Sydnes, supra note 663, p. 63. Sedentary species are subject to the sovereign rights of the coastal state, article 77(4) UNCLOS.
857.
Cod, Redfish (three species), American plaice, Witch flounder, Yellowtail flounder, Greenland halibut, White hake, Skate, Capelin, Squid, Shrimps, see http://www.nafo.int/fisheries/frames/fishery.html, last visited 9 September 2011.
858.
Matthew Gianni, High Seas Bottom Trawl Fisheries and their Impacts on the Biodiversity of Vulnerable Deep-Sea Ecosystems: Options for International Action, IUCN, Gland, Switzerland 2004, p. 49.
859.
Douglas Day, “Addressing the weakness of high seas fisheries management in the North-west Atlantic,” Ocean Development & International Law 35, 2–3 (1997), 69–84, pp. 75 et seqq.; id., “Tending the achilles’ heel of NAFO: Canada acts to protect the nose and tail of the Grand Banks,” Marine Policy 19, no. 4 (1995), 257–270, at 261 et seq.
860.
Christopher C. Joyner and Alejandro A. von Gustedt, “The Turbot War of 1995: Lessons for the Law of the Sea,” International Journal of Marine and Coastal Law 11, no. 4 (1996), 425–458, at 439.
861.
Anthony Cox, Leonie Renwrantz and Ingrid Kelling, Strengthening regional fisheries management organisations (Paris: OECD, 2009), p. 93 et seq.
862.
Northwest Atlantic Fisheries Organization Conservation and Enforcement Measures, NAFO/FC Doc. 08/1, 2008, Annex I.A.
863.
Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (NAFO Amendments), GC Doc. 07/4, 28 September 2007, available at: http://www.nafo.int/about/frames/about.html, last visited 9 September 2011.
864.
Canada, Department of Fisheries and Oceans, “Canada Ratifies Amended Convention of the Northwest Atlantic Fisheries Organization”, news release, 11 December 2009, available at: http://www.worldfishing.net/news101/canada-ratifies-amended-convention-of-the-northwest-atlantic-fisheries-organization, last visited 9 September 2011.
865.
Article III(a) NAFO Amendments, supra note 863.
866.
Article III(c) NAFO Amendments, ibid.
867.
Article III(d) NAFO Amendments, ibid.
868.
Article III(e) NAFO Amendments, ibid.
869.
See articles XVI and XVII NAFO Amendments, ibid.
870.
Article V(2) 1978 NAFO Convention, ibid.
871.
Article XV NAFO Amendments, ibid.
872.
Convention for the Conservation of Salmon in the North Atlantic Ocean (NASCO Convention), 2 March 1982, in force 1 October 1983, 1338 UNTS 33.
873.
Article 3(2) NASCO Convention.
874.
Article 1 NASCO Convention.
875.
Information obtained from NASCO’s website, available at: http://www.nasco.int/background.html, last visited 28 September 2009.
876.
More precisely, according to article 2 NASCO Convention, fishing of salmon is prohibited beyond areas of fisheries jurisdiction of coastal States. Within areas of fisheries jurisdiction of coastal States, fishing of salmon is prohibited beyond 12 nm from the baselines from which the breadth of the territorial sea is measured, except in the West Greenland Commission area, up to 40 nautical miles from the baselines and in the North East Atlantic Commission area, within the area of fisheries jurisdiction of the Faroe Islands.
877.
See David L. VanderZwaag and Emily J. Pudden, “The North Atlantic Salmon Conservation Organization (NASCO): Surpassing a 25 Year Voyage in Transboundary Cooperation but Still Confronting a Sea of Challenges,” in Recasting transboundary fisheries management arrangements in light of sustainability principles: Canadian and international perspectives, supra note 726, 307–46, at 311.
878.
National Marine Fisheries Service (NMFS), Convention for the Conservation of Salmon in the North Atlantic Ocean (Basic Instrument for the North Atlantic Salmon Conservation Organization), Washington 2005, p. 5, available at: www.nmfs.noaa.gov, last visited 29 September 2011.
879.
NASCO, Twenty-Year Milestones and Next Steps – A Vision for the Future, Edinburgh 2004, p. 5 et seq.
880.
See ibid., pp. 8 et seqq.
881.
Gail L. Lugten, The role of international fishery organizations and other bodies in the conservation and management of living aquatic resources (Rome: FAO, 2010), p. 46.
882.
VanderZwaag and Pudden, supra note 877, at 334 et seq.
883.
NASCO Council, Report of the ‘Next Steps’ for NASCO Review Group, Edinburgh, 7 April 2011, p. 10.
884.
See Cullis-Suzuki and Pauly, supra note 842, at 1040.
885.
Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (1982 NEAFC Convention), London, signed 18 November 1980, in force 17 March 1982, 1285 UNTS 129; available at: www.neafc.org; 2004 Amendments (Article 18bis), London; 12 November 2004. Not in force, but provisionally applied by means of the “London Declaration‟ of 18 November 2005; available at www.neafc.org; 2006 Amendments, London (Preamble, Articles 1, 2 and 4), 11 August 2006. Not in force, but provisionally applied by means of the “London Declaration‟ of 18 November 2005; available at: www.neafc.org. The provisionally applied Convention is hereinafter referred to as (new) “NEAFC Convention”.
886.
North-East Atlantic Fisheries Convention, signed 42 January 1959, entered into force 27 June 1963, 486 UNTS 157.
887.
Convention for the Regulation of the Meshes of Fishing Nets and the Size Limits of Fish, signed 5 April 1946, entered into force 5 April 1953, 231 UNTS 200. The reorganisation of NEAFC resulted from the withdrawal of the EC Members states as individual members from NEAFC in 1963 and the establishment of 200-nm-zones in 1977, Trond Bjørndal, “Overview, roles, and performance of the North East Atlantic fisheries commission (NEAFC),” Marine Policy 33, no. 4 (2009), 685–697.
888.
By 1995, only two recommendations had been agreed within NEAFC: a minimum mesh size for capelin in 1984 and a minimum mesh size for blue whiting in 1986, Cox, Renwrantz and Kelling, Strengthening regional fisheries management organisations., p. 67.
889.
The new NEAFC Convention has not entered into force yet, but is applied provisionally.
890.
Cooperating Non-Contracting Parties are Belize, Canada, Cook Islands, Japan and New Zealand; information obtained from the NEAFC homepage, available at: www.neafc.org, last visited 9 September 2011.
891.
The NEAFC Convention seems to not apply to the waters north of Greenland between 44° west longitude and 42° west longitude extending to the North Pole. While article 1(a)(1) NEAFC Convention refers to the “Atlantic and Arctic Oceans”, the term Arctic is not used in article 1(a)(2) NEAFC Convention, Koivurova and Molenaar, supra note 214, p. 15, note 39.
892.
Sedentary species have been included by the new Convention, see article 1b).
893.
Highly migratory species are regulated through ICCAT or NASCO.
894.
The main fish species targeted in the NEAFC Convention Area are Redfish, Mackerel, Haddock, Herring, Blue Whiting as well as deep-sea species. Commercially, the most important species include herring, blue whiting and mackerel, Cox, Renwrantz and Kelling, Strengthening regional fisheries management organisations, p. 69. Gjerde observed that NEAFC “[w]ill not cover jellyfish or sea cucumber fisheries that are emerging elsewhere”, id., “Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction.” Gland: IUCN, 2008, p. 24.
895.
Article 14 NEAFC Convention.
896.
Article 5 NEAFC Convention.
897.
Article 6(1) NEAFC Convention.
898.
Cox, Renwrantz and Kelling, Strengthening regional fisheries management organisations., p. 74.
899.
NEAFC, Report of the 23rd Annual Meeting of the North-East Atlantic Fisheries Commission 8–12 November 2004, Volume II: Annexes, Annex K – Amendment of the Convention on Dispute Settlement, NEAFC, London, p. 29.
900.
Lugten, supra note 881, p. 49.
901.
NEAFC, Performance Review Panel Report of the North East Atlantic Fisheries Commission, 6 November 2006, available at: http://www.neafc.org/system/files/performance-review-final-edited.pdf, last visited 10 September 2011, p. 55 et seq.
902.
Ibid., p. 37.
903.
Each coastal states agreement, however, includes a high seas component that is to be allocated to states by NEAFC, see Tore Henriksen and Alf H. Hoel, “Determining Allocation: From Paper to Practice in the Distribution of Fishing Rights Between Countries,” Ocean Development & International Law 42, 1–2 (2011), 66–93, at 77.
904.
NEAFC, Performance Review Panel Report of the North East Atlantic Fisheries Com-mission, p. 44.
905.
NEAFC, The NEAFC Performance Review Information Update, March 2007, available at: http://www.neafc.org/system/files/neafc_review_final_march07.pdf, last visited 10 September 2011.
906.
Ibid.
907.
Memorandum of Understanding between the North East Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission, applied from 5 September 2008, available at: http://www.ospar.org/html_documents/ospar/html/mou_neafc_ospar.pdf, last visited 10 September 2011.
908.
NEAFC, Consolidated text of all NEAFC recommendations on regulating bottom fishing, Annex 7, Area closures for the Protection of Vulnerable Marine Ecosystems.
909.
See NEAFC, Recommendation X:2010, Recommendation by the North-East Atlantic Fisheries Commission in accordance with article 5 of the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries at its annual meeting in November 2009 to adopt regulatory measures for the protection of blue ling in the NEAFC Regulatory Area (ICES Division XIV).
910.
NEAFC, Consolidated text of all NEAFC recommendations on regulating bottom fishing, Annex 6, Existing fishing areas. It is noteworthy that NEAFC has been the first RFMO that closed an area of high seas for bottom fishing, see Ingrid Kvalvik, “The North East Alantic Fisheries Commission and the Implementation of Sustainability Principles: Lessons to be Learned?,” in Recasting transboundary fisheries management arrangements in light of sustainability principles: Canadian and international perspectives, supra note 726, 387–417, at 415.
911.
Ibid.
912.
Article 2 NEAFC Convention.
913.
See Cullis-Suzuki and Pauly, supra note 842, at 1040.
914.
Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, signed on February 11, 1992 and entered into force on February 16, 1993, TIAS No. 11465.
915.
Sean Phelan, “A Pacific rim approach to salmon management: Redefining the role of Pacific salmon international consensus,” Environmental law 33, no. 1 (2003) 247–289, at 263.
916.
North of 33°N, Article I NPAFC Convention.
917.
Article I NPAFC Convention.
918.
Chum salmon, Coho salmon, Pink salmon, Sockeye salmon, Chinook salmon, Cherry salmon and Steelhead trout.
919.
Article III(1) NPAFC Convention.
920.
See Rosemary G. Rayfuse, Non-flag state enforcement in high seas fisheries (Leiden; Boston: M. Nijhoff, 2004), p. 134; Kevin W. Riddle, “Illegal, unreported, and unregulated fishing: Is international cooperation contagious?” Ocean development and international law 37, 3/4 (2006), 265–297, at 280.
921.
See Jennifer Bond and Ted L. McDorman, “Canada’s Pacific Fisheries Agreements: Halibut, Hake, Tuna, and Salmon Outside 200,” in Recasting transboundary fisheries management arrangements in light of sustainability principles: Canadian and international perspectives, supra note 726, 115–47, at 132.
922.
Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, 16 June 1994, in force 8 December 1995.
923.
Article I CBS Convention.
924.
Kaye, supra note 649, p. 330.
925.
David A. Balton, “The Bering Sea Doughnut Hole Convention: Regional Solution, Global Implications,” in Governing High Seas Fisheries (see note 696), 143–78, at 171; likewise Kaye, supra note 649, p. 331.
926.
Article II makes only a very weak concession to a wider management approach. No reference is made to the inter-relationship of marine species, Stuart B. Kaye, “Legal approaches to Polar fisheries regimes: A comparative analysis of the Convention for the Conservation of Antarctic Marine Living Resources and the Bering Sea Doughnut Hole Convention,” California Western International Law Journal 26, no. 1 (1995) 75–114, at 102.
927.
Balton, supra note 925, at 147 et seq.
928.
Ibid., at 143.
929.
Ibid., at 171.
930.
See ibid., at 162.
931.
See Kaye, supra note 926, at 103.
932.
Balton, supra note 925, at 165.
933.
New Mechanisms for Protection of Vulnerable Marine Ecosystems and Sustainable Management of High Seas Bottom Fisheries in the Northwestern Pacific Ocean, Adopted on 2 February 2007, Busan, Republic of Korea; revised on 26 October 2007, Honolulu, Hawaii, United States of America; revised on 18 October 2008, Tokyo, Japan; revised on 20 February 2009, Busan, Republic of Korea; available at http://nwpbfo.nomaki.jp, last visited 26 October 2009.
934.
See Takei, supra note 568, p. 244.
935.
Ibid.
936.
For the potential solutions, see ibid.
937.
Agreement on co-operation in the fishing industry, concluded and entered into force 11 April 1975, 983 UNTS 3, see article III(1).
938.
See Stokke, “The Loophole of the Barents Sea Fisheries Regime,” in Governing High Seas Fisheries (see note 696), 273–301, at 273.
939.
Agreement on co-operation in the fishing industry, signed 11 April 1975, see article III(1); Agreement concerning mutual relations in the field of fisheries, concluded 15 October 1976.
940.
‘Avtale mellom_Norge_og_Sovjetunionen_om_en _midlertidig_praktisk_ordning_for fisket_i_ et tilstøtende_område_i_Barentshavet’ (Agreement between Norway and the Soviet Union on provisional practical arrangements on fishing in an adjacent area of the Barents Sea, Oslo, 11 January 1978. In force 11 January 1978; Overenskomster med fremmede stater (1978), 436). The ‘adjacent area’, which is substantially bigger than the disputed area, is generally referred to as the Grey Zone, see Olav S. Stokke, Lee G. Anderson and Natalia Mirovitskaya, “The Barents Sea Fisheries,” in The effectiveness of international environmental regimes: Causal connections and behavioral mechanisms, ed. Oran R. Young, 91–154 (Cambridge, Mass: MIT Press, 1999), at 150.
941.
Henriksen, Hønneland and Sydnes, supra note 663, at 9, Geir Hønneland, Norway and Russia in the Barents Sea – Cooperation and Conflict in Fisheries Management, Russian analytical digest, vol. 20/07, pp. 9–11, at 9.
942.
The Norwegian Minister of Law of the Sea, Jens Evensen, was the first to label the disputed area ‘the Grey Zone’, in a public speech in March 1976. A ‘grey zone’ was a common expression in international maritime law for disputed areas at sea, Kristoffer Stabrun, The Grey Zone Agreement of 1978: Fishery Concerns, Security Challenges and Territorial Interests FNI Report 13/2009, p. 1.
943.
Tore Henriksen and Geir Ulfstein, “Maritime Delimitation in the Arctic: The Barents Sea Treaty,” Ocean Development & International Law 42 (2011), 1–21, at 2.
944.
Treaty Between the Kingdom of Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, signed 15 September 2010, English version available at: http://www.regjeringen.no/upload/SMK/Vedlegg/2010/avtale_engelsk.pdf, last visited 17 May 2011. To enter into force, the treaty must be approved by the Norwegian Storting. The Russian Duma has already approved the treaty, see http://www.regjeringen.no/en/dep/ud/campaign/delimitation.html?id=614002, last visited 17 May 2011.
945.
Henriksen/Ulfstein, supra note 943, at 8.
946.
Ibid.
947.
See article I Framework Agreement.
948.
See Stokke/Anderson/Mirovitskaya, supra note 940, at 112.
949.
See Odd Nakken, “Past, present and future exploitation and management of marine resources in the Barents Sea and adjacent areas,” Fisheries Research 37 (1998), 23–35, at 28.
950.
Hønneland, supra note 941, at 10.
951.
Burnett et al., “illegal fishing in arctic waters”, WWF International Arctic Programme, Oslo 2008, p. 10/11.
952.
ICES Advice 2010, Book 3, available at: http://www.ices.dk/committe/acom/comwork/report/2010/2010/cod-arct.pdf, last visited 18 May 2011.
953.
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, signed 15 May 1999, in force 15 July 1999, 41 Law of the Sea Bulletin 53 (1999). The Agreement is supplemented by two bilateral protocols, the Protocol between the Government of Iceland and the Government of the Russian Federation under the 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, signed 15 May 1999, in force 15 July 1999, reproduced in 14 International Journal of Marine and Coastal Law 488–490 (1999), and the Protocol between the Government of Norway and the Government of Iceland under the 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, signed 15 May 1999, in force 15 July 1999, 41 Law of the Sea Bulletin 56 (1999).
954.
Robin R. Churchill, “The Barents Sea Loophole Agreement: A “Coastal State” Solution to a Straddling Stock Problem,” International Journal of Marine and Coastal Law 14, no. 4 (1999), 467–490, at 470.
955.
Olav S. Stokke, supra note 938, at 277.
956.
Article 4 Loophole Agreement.
957.
See Churchill, supra note 954, at 472.
958.
Convention for the Preservation of the Halibut Fishery, signed in Washington, DC, the United States of America, on 2 March 1923. A new Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea was signed in Ottawa, Canada, on 2 March 1953 and entered into force on 28 October 1953, 222 UNTS 78, as amended by a Protocol Amending the Convention (signed at Washington, DC., on March 29, 1979), U.S. National Marine Fisheries Service, Pacific halibut fisheries; catch sharing plan, Final rule; annual management measures for Pacific halibut fisheries, Federal Register 69(39): 9231–41. The Commission was the “first of its kind”, Bond and McDorman, supra note 921, at 118.
959.
See supra note 958.
960.
Section 2(k) of the regulations governing the Pacific halibut fishery in 2004 under the Convention Between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea, U.S. National Marine Fisheries Service, Pacific halibut fisheries; catch sharing plan, Final rule; annual management measures for Pacific halibut fisheries, Federal Register 69(39): 9231–41 (hereinafter: Halibut Convention).
961.
As specified in Section 6 of the regulations governing the Pacific halibut fishery in 2004 under the Convention Between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea.
962.
Article III(3) Halibut Convention.
963.
International Pacific Halibut Commission, Regulations, IPHC Regulatory Areas, available at: http://www.iphc.int/library/regulations.html, last visited 3 October 2011.
964.
Article III(3) Halibut Convention.
965.
Article II(1) Halibut Convention.
966.
Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, Ottawa, 28 January 1985. In force 18 March 1985.
967.
Preamble PST, supra note 966.
968.
Interception is defined as the harvesting of salmon originating in the waters of one Party by a fishery of the other Party, article I(4) PST, ibid.
969.
Philip A. Loring and Craig Gerlach, “Food Security and Conservation of Yukon River Salmon: Are We Asking Too Much of the Yukon River?” Sustainability, no. 2 (2010), at 2969.
970.
See no. 14 Yukon River Agreement, chapter 8 PST, available at: http://www.psc.org/pubs/treaty.pdf, last visited 3 October 2011.
971.
Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations, Moscow, 31 May 1988. In force 28 October 1988, 2191 UNTS 3, including Annex and as amended, Washington, 11 March 1993 and 15 September 1993, in force 4 April 1994. The original agreement would have expired in 1993, but was extended several times, last time until December 31, 2013 by an exchange of notes in Moscow on March 28, 2008, and September 19, 2008, see George W. Bush, Message to the Congress of the United States, January 15, 2009, available at: http://georgewbush-whitehouse.archives.gov/news/releases/2009/01/20090115-8.html, last visited 15 March 2011. Burnett, supra note 951, p. 20.
972.
Article I.
973.
See Article XI(2).
974.
Article XIV(4) and (5).
975.
Rayfuse suggests using the CCAMLR model as a starting point for developing a comprehensive Arctic Treaty regime, id., supra note 261, at 215.
976.
Convention on the Conservation of Antarctic Marine Living Resources, concluded 20 May 1980, entered into force 7 April 1982.
977.
Article 2(1) CCAMLR, Basic Documents (CCAMLR, Hobart, Australia, 2002); (1980) 19 International Legal Material 837; conservation is defined to include rational use, article 2(2) CCAMLR.
978.
Denzil G. M. Miller, Eugene N. Sabourenkov and David C. Ramm, “Managing Antarctic marine living resources: The CCAMLR approach,” International Journal of Marine and Coastal Law 19, no. 3 (2004) 317–363, at 319.
979.
Erik Jaap Molenaar, “CCAMLR and southern ocean fisheries,” International Journal of Marine and Coastal Law 16, no. 3 (2001) 465–499, at 465.
980.
Miller, Sabourenkov and Ramm, supra note 978, at 319; Molenaar, supra note 979, at 497; Karl-Hermann Kock, Understanding CCAMLR’s approach to management (Tasmania: CCAMLR, 2000), at iii.
981.
Molenaar, supra note 979, at 497.
982.
An exception is the IWC Convention, article X(2), Washington DC, 2 December 1946.
983.
See article XXVI CCAMLR.
984.
See article XXIX CCAMLR.
985.
Kaye, supra note 926, at 84.
986.
Excluding whales and seals, which are the subject of other conventions – namely, the International Convention for the Regulation of Whaling and the Convention for the Conservation of Antarctic Seals, Article VI CCAMLR.
987.
Molenaar, supra note 979, at 471. The Antarctic Treaty area extends south of 60° South (Article VI Antarctic Treaty, December 1, 1959, 402 UNTS 71).
988.
The Antarctic Convergence is the “zone where cold, less saline, northward-flowing Antarctic water encounters the warmer, southward-flowing, sub-Antarctic waters of the Atlantic, Indian and Pacific Oceans.”, Kock, supra note 980, at 1.
989.
Rothwell, supra note 88, at 125.
990.
See Stephen Nicol, Jacqueline Foster and So Kawaguchi, “The fishery for Antarctic krill - recent developments,” Fish and Fisheries (2011), 1–11, at 1.
991.
Kaye, supra note, p. 437.
992.
Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), CCAMLR’s Management of the Antarctic (Hobart, Australia, 2001), p. 3.
993.
Ibid., p. 438 et seq.
994.
The ATS does not include high seas; as sovereignty claims have been frozen with the conclusion of the Antarctic Treaty, there were no coastal states that could have established any jurisdiction over maritime zones in the Southern Ocean. Accordingly, the Southern Ocean could be regarded as high seas area, see Patrizia Vigni, “Antarctic Maritime Claims: Frozen Sovereignty and the Law of the Sea,” in The law of the sea and polar maritime delimitation and jurisdiction, supra note 74, 85–104 (Hague: Nijhoff, 2001).
995.
Molenaar, supra note 246, at 149.
996.
Alf H. Hoel, “Do We Need a New Legal Regime for the Arctic Ocean?,” International Journal of Marine and Coastal Law 24 (2009), 443–456, at 451.
997.
Molenaar and Corell, supra note 102, p. 25.
998.
Ibid.
999.
Balton/Hoydal, Policy Options for Arctic Environmental Governance, prepared by the Fisheries Working Group, 5 March 2009, p. 1.
1000.
Molenaar/Corell, supra note 102, p. 26.
1001.
Tavis Potts, “The Management of Living Marine Resources in the Polar Regions,” in Polar Law Textbook, ed. Natalia Loukacheva, 65–79 (Copenhagen: Nordic Council of Ministers, 2010), at 75.
1002.
Unfortunately, the FSA does not explicitly require RFMOs established before 1995 to upgrade to be in accordance with its requirement, but just calls for strengthening of RFMOs, article 13 FSA, see Molenaar, supra note 660, at 547.
1003.
UNGA A/61/65, p. 10.
1004.
UNGA, A/62/66/Add.2, p. 67.
1005.
See Molenaar, supra note 246, at 165.
1006.
Donald R. Rothwell, “Polar Lessons for an Arctic Regime,” Cooperation and Conflict 29 (1994) 55–76, at 71.
1007.
Tatiana Saksina, Arctic Frontiers conference, January 20th 2009, p. 2, available at: http://www.arctic-frontiers.com/index.php?option=com_docman&task=cat_view&gid=82&Itemid=155.
1008.
Molenaar, supra note 246, p. 149.

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Lilly Weidemann

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Weidemann, L. (2014). International Governance of the Arctic Marine Environment. In: International Governance of the Arctic Marine Environment. Hamburg Studies on Maritime Affairs, vol 27. Springer, Cham. https://doi.org/10.1007/978-3-319-04471-2_3

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