Second Place — Marine Biodiversity Protection in the Arctic: A Proposed Role for International Environmental Law In Conserving Arctic Marine Biodiversity

This essay first appeared in the Acheson Prize 2018 Issue of the Yale Review of International Studies.


Abstract

As global climate change accelerates sea ice loss in the Arctic Circle and Antarctica while the size of the human population continues to increase, the natural living resources that are richly distributed in these regions are becoming increasingly vulnerable to anthropogenic threats. While the marine biodiversity of Antarctica is largely protected by the Convention for the Conservation of Antarctic Marine Living Resources, the Arctic Circle lacks strong legislation that will protect its marine biodiversity from the habitat loss and disruption that will be caused by continued commercial fishing, extraction of increasingly accessible oil and mineral deposits, and use of the Arctic Ocean as a shipping lane. In order to protect the marine biodiversity of the Arctic Ocean, strong international environmental law must be implemented on the basis of scientific ecosystem research. This paper will review the Convention on the Conservation of the Antarctic Marine Living Resources (CCAMLR) and make suggestions for multilateral cooperation in the Arctic Circle based on the principles and procedures set forth by CCAMLR. Additionally, this paper will analyze the ways in which the Arctic Council can facilitate bilateral agreements to begin to protect important areas of biodiversity. It is critical to the future of marine biodiversity in the Arctic that nations utilizing, or planning to utilize, the Arctic Ocean for fishing, shipping, drilling, mining, tourism, or any other use, work together to determine an effective way to minimize biodiversity loss in this region.

Introduction and Background

Due to global climate change, temperatures in the Arctic are increasing more than in any other region on the planet, resulting in glacial retreat and sea ice loss at alarming rates. It has been predicted that a planetary temperature increase of 2°C will cause between a 2.8°C and 7.8°C increase in average temperatures in the Arctic.[1] The warming of the Arctic is affecting and will continue to affect all biodiversity in the Arctic Circle in many ways. Not only is the warming changing the physical composition of Arctic ecosystems, but it is also providing the opportunity for increased natural resource exploitation and disturbance in the Arctic environment. Due to the increased accessibility of the Arctic Ocean due to the rapid melting of polar sea ice, the Arctic Ocean now provides 10% of the global fish catch, 10% of global oil extraction, and 25% of global gas extraction.[2] Additionally, as sea ice continues to melt, global shipping activities will likely increase through the Arctic Ocean. These activities – fishing, mining, drilling, and shipping – all have negative consequences for Arctic biodiversity. However, international law has the potential to address these anthropogenic ecosystem stressors and protect Arctic marine ecosystems and biodiversity.

International law concerning the Arctic can be negotiated under the guidance Arctic Council, which is the intergovernmental forum for negotiation and collaboration between the eight Arctic States. In order to protect Arctic biodiversity, the Arctic Council must facilitate a series of multilateral and bilateral treaties to protect biologically significant areas, encourage collaborative scientific research, and prevent the harm to biodiversity that is caused by natural resource exploitation. In the Antarctic, the Commission on the Conservation of Arctic Marine Living Resources (CCAMLR) protects marine biodiversity. CCAMLR is a multilateral treaty between twenty-four states. It sets forth guidelines and protocols to protect Antarctic marine living resources such as restrictions on fishing for endangered species, protocol for creating marine protected areas in ecologically important habitats, and restrictions on fishing seasons and fishing types. Many of these concepts could be implemented in the Arctic Circle in order to conserve and protect the marine living resources in the area. However, further cooperative scientific research is needed to determine the vulnerable species and resilient areas of Arctic ecosystems and the most effective procedures to protect important species and biologically productive areas within the Arctic.

This paper will explore the state of biodiversity protection in the Arctic and will suggest further bilateral and multilateral agreements. The principles for these agreements can build upon well-known principles of environmental law such as Principle 21 of the Stockholm Declaration, which states that, though nations have the right to cause exploit their own natural resources, they should not pursue activities that will cause environmental harm to areas of other sovereign states. Additionally, agreements can consider the precautionary principle and the polluter pays principle in creating legal frameworks to address biodiversity concerns in the Arctic.

Marine Protected Areas (MPAs) are currently the main form of marine biodiversity protection in the Arctic. Marine Protected Areas are defined as: “A clearly defined geographical space recognized, dedicated, and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.”[3] While MPAs are important for ecosystem resilience and to ensure the protection of critical and unique ecosystems, they are not extremely effective as a singular mode of protection.[4] This is because marine biodiversity is often migratory and highly impacted by the environmental health of neighboring marine areas. Though MPAs are an important part of an Arctic marine protection framework, in order to be most effective the creation of MPAs must be accompanied by multilateral and bilateral agreements between Arctic States to further the goals of marine ecosystem protection and conservation throughout the entire Arctic marine environment.

The Arctic Council

The key legal framework for implementing biodiversity protection in the Arctic is the Arctic Council. The Arctic Council is an intergovernmental forum that was created on September 19, 1996 in order to promote coordination and cooperation of the Arctic States – Canada, the United States, Denmark, Sweden, the Russian Federation, Iceland, Norway, and Finland. The Arctic Council also encourages cooperation between the Arctic States and indigenous native Arctic communities and six indigenous peoples’ organizations are permanent participants within the Arctic Council. The Arctic Council provides a framework for the eight Arctic States and indigenous communities to discuss, negotiate, and produce necessary agreements to protect the well being of Arctic inhabitants, ecosystems, and visitors. Recently, the Arctic Council has facilitated two pan-Arctic multilateral agreements involving all eight Arctic States.

The Arctic Council is guided by the regulations set forth by the United Nations Convention on the Law of the Sea (UNCLOS), which recognizes the rights of nations to exploit the resources in their economic zones, which are defined as the zones within 200 nautical miles from their coastal baseline. Every nation that is a permanent participant of the Arctic Council, except the United States, is a contracting party of UNCLOS. Though the United States has not ratified UNCLOS, the National Strategy for the Arctic Region, a document released by the White House in 2009, affirms the intentions of the United States to abide by the guidelines set forth by UNCLOS regarding treaty negotiations within the Arctic. The document states, “While the United States is not currently a party to the [UNCLOS] Convention, we will continue to support and observe principles of established customary international law reflected in the Convention.”[5]

In the coming years, the Arctic Council has the potential to become an important international organization. Two multilateral treaties were negotiated and signed by all eight Arctic States in 2011 and 2013, setting the stage for the Arctic Council to continue to facilitate and encourage further international agreements pertaining to the Arctic. Several governments have recognized this growing possibility. For example, the Government of Finland’s 2013 Strategy for the Arctic reads, “The Arctic Council’s institutional role has been growing following the establishment of a permanent secretariat, the conclusion of binding international agreements and the extension of the Council’s agenda. Finland supports the continuation of this development and the recognition of the Arctic Council as a treaty-based international organisation.”[6] As the Arctic Council continues to develop its role as a facilitator of international agreements, the creation of multilateral and bilateral marine biodiversity treaties in the Arctic will become increasingly feasible.

Protecting and conserving biodiversity is a key issue for the Arctic Council. Two of the Arctic Council’s working groups, the Conservation of Arctic Flora and Fauna (CAFF) group and the Arctic Monitoring and Assessment Program (AMAP) group, produce relevant research, reports, and recommendations pertaining to the preservation and conservation of the Arctic biodiversity. Additionally, the importance of conserving biodiversity is acknowledged in the Ottawa Declaration, the treaty which established the Arctic Council and was ratified in 1996, reads: “[We are] affirming… our commitment to the protection of the Arctic environment, including the health of Arctic ecosystems… [and] biodiversity in the Arctic region and conservation and sustainable use of natural resources.”[7]

Anthropogenic Threats to Arctic Biodiversity

All Arctic States, with the exception of the United States, have ratified the 1992 Convention on Biological Diversity which recognizes the importance of conserving and protecting global biodiversity because of its importance for “maintaining the life systems of the biosphere” as well as for its cultural, genetic, scientific, social, and ecological value.[8] The Arctic Circle is home to 21,000 known species.[9] Several of these species are charismatic megafauna, such as polar bears, walruses, seals, narwhals, and beluga whales. The Arctic Ocean also has the world’s widest continental shelf, the Siberian shelf, which is a biological hotspot and an important area for all Arctic ecosystems.

Arctic biodiversity is important not only for the reasons stated in the Convention on Biological Diversity, but also because Arctic marine living resources play a crucial role in the lives of indigenous Arctic communities. There are about four million people living in the circumpolar north, and more than 500,000 of these people live in indigenous Arctic communities.[10] These communities rely on the natural living resources of the Arctic Ocean for subsistence, and the destruction and contamination of Arctic biodiversity can adversely affect the health and the survival of these communities.

For thousands of years, small indigenous communities have fished and hunted in the Arctic Ocean in order to provide sustenance for their populations. However, in the past 80 years, climate change has increased the ease of access to the Arctic Ocean for commercial fishing boats and, as a result, commercial fishing in the Arctic has been steadily increasing. Commercial fishing is a significant stressor on marine biodiversity and marine ecosystems. Though this recent increase in commercial fishing activities has not been shown to be detrimental for fish populations in the Arctic Ocean yet, it has further endangered vulnerable bird and mammal populations and harmed unique and biologically productive cold-water coral reefs. Large fishing nets and other commercial fishing techniques contribute to bycatch of vulnerable bird and mammal species. This unnecessary mortality can cause irreparable harm to populations of endangered species, especially birds.[11]

In the past, commercial fishing has only occurred in coastal areas and bays of the Arctic Ocean, however as deglaciation continues, the high Arctic Ocean may become accessible for large-scale commercial fishing operations as well. At the moment, there is no fishing in the high Arctic Ocean because, in 2015, five Arctic States, Canada, the Kingdom of Denmark, the Kingdom of Norway, the Russian Federation, and the United States of America, signed a voluntary declaration, in which they agreed to withhold from commercial fishing in the international waters of the Central Arctic Ocean.[12] Right now, this area is almost completely covered by ice, but it likely will not be in the vert near future because of the rapid rate of glacial ice melt in the Arctic. However, this agreement is not legally binding and does not account for other nations that may have commercial fishing interests in this area as it becomes increasingly accessible, such as China, Japan, Korea, and the European Union.

Disturbance to populations, particularly breeding populations, of ecologically important species is another key stressor on Arctic biodiversity. Vessel, plane, and helicopter disturbance in the Arctic has been known to cause severe disturbance, particularly for densely packed breeding bird colonies, where such disturbance can cause adult birds to leave their nests, eggs, or chicks.[13] This stressor can be easily resolved if the Arctic States identify bird breeding colonies within their exclusive economic zones and avoid these areas during the breeding seasons. This measure has already been taken by several countries, particularly Canada and the United States. If all the Arctic States do not take this precaution, the increased Arctic shipping due to melting sea ice and ease of access to the Arctic coasts could cause severe disturbance for endangered and ecologically important bird populations.

Commercial shipping accidents also threaten Arctic biodiversity because of the pollutants and contaminants these accidents discharge into ecosystems. These pollutants not only cause harm to biological diversity, but also affect indigenous populations who depend on Arctic biodiversity for their sustenance. Methyl mercury, a contaminant from vessels and shipping pollution, has been found in high levels in indigenous Arctic communities because of the way that this heavy metal tends to be biomagnified in marine ecosystems.[14] Additionally, high levels of lead were seen in the blood samples from indigenous communities, which are also likely caused by shipping pollution and accidents in the Arctic.[15] In the past 20 years, there have been over 100 shipping accidents in the Arctic Circle including collisions, vessel damage, fires, and even instances in which entire vessels have sunk.[16] The pollutants from these incidents threaten not only indigenous communities, but also marine biodiversity. Though the exact effects of lead poisoning, methyl mercury poisoning, and other pollutants in marine ecosystems is not entirely known, they certainly are not positive additives for the marine environment.

It would be remiss not to comment on the impact of climate change on the biodiversity in the Arctic Circle. Much of this biodiversity has evolved over many thousands of years to be equipped to survive in Arctic temperatures, and will not be able to survive in a climate with over 2℃ of warming. This climate change – including rising air temperatures and sea surface temperatures – is happening so fast that many Arctic species will not be able to evolve in order to persist in a dramatically warmer environment. However, the Arctic Council alone cannot address climate change. Nonetheless, the Arctic Council should involve itself with actively participating in global climate change conversations in order to express the dire effects that rapid global warming is having on the Arctic biodiversity, indigenous communities, and marine habitats.[17]

Though these are by no means the only anthropogenic stressors on Arctic marine biodiversity, they are important examples of the extreme effects that humans are having on this important ecosystem. Other important stressors to consider are oil, gas, and mineral extraction, invasive species carried by shipping and tourism vessels, and international stressors on ecologically important migratory species. The Arctic Council has the potential to facilitate bilateral and multilateral cooperation between the Arctic States to mitigate some of these threats to Arctic marine biodiversity in the future.

Multilateral Agreements and Suggested Policy Implementation

Multilateral treaties containing regulations to conserve important Arctic ecosystems and minimize the use of harmful commercial fishing techniques would be the most effective way to minimize biodiversity loss in the Arctic. In the Arctic’s southern counterpart, Antarctica, a treaty called the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR) protects marine living resources by implementing strict regulations on commercial fishing and vessel monitoring. A multilateral treaty in the Arctic implementing basic commercial fishing regulations would significantly increase Arctic biodiversity protection and create a framework for further biodiversity protection in the future. Because all Arctic marine ecosystems are interconnected, this treaty would ensure that each state does not inflict environmental harm on the ecosystems of other states by exploiting important ecosystems, in accordance with Principle 21 of the Stockholm Declaration.

Since its formation in 1996, the Arctic Council has facilitated the creation of two multilateral treaties. The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic was the first of these multilateral treaties. It was signed in May 2011 in Nuuk, Greenland. This treaty created a methodical process for search and rescue to be carried out in the Arctic, and assigned areas in which each state was responsible for carrying out search and rescue procedures.[18] The second multilateral treaty facilitated by the Arctic Council was the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic. This treaty was signed in May 2013 in Kiruna, Sweden and sets forth procedures for coordination and cooperation between Arctic States in the event of a pollution incident in the Arctic.[19] These two recent multilateral agreements suggest that the Arctic Council is an effective facilitator of negotiations pertaining to multilateral treaties.

The creation of these two treaties shows that there is potential for the Arctic Council to facilitate the creation of a multilateral treaty pertaining to biodiversity protection. In Antarctica, 24 states have ratified CCAMLR, including four Arctic States – the United States, Russia, Sweden, and Norway. Though an identical treaty would be difficult to implement in the Arctic Ocean for several reasons, including the presence of permanent populations who depend on the marine living resources of the Arctic for subsistence and the lack of an overarching treaty framework like the Antarctic Treaty, many of the components of CCAMLR could be applied towards a multilateral biodiversity treaty in the Arctic.

CCAMLR not only set forth important provisions for biodiversity protection, but also provided a framework through which biodiversity protection can be continually increased. The treaty set restrictions on catching endangered species, limited exploratory fisheries, and created bans on certain fishing types (night fishing and longline fishing). Additionally, the treaty implemented a Vessel Monitoring System, which has been an effective method of preventing illegal commercial fishing.[20] In October 2016, the parties of CCAMLR created the world’s largest marine reserve off the Antarctic Coast in an area called the Ross Sea. This agreement was reached under the supervision and legal framework of CCAMLR. This marine reserve, which will be a no-catch marine sanctuary, will protect one the Antarctica’s most unique and vulnerable ecosystems from commercial fishing and exploitation.[21]

The success of CCAMLR is largely due to the ecosystem-based approach of the treaty. Through extensive monitoring of critical marine areas and designation of ecologically important zones and species, CCAMLR has created a treaty that protects areas and species that are critical to the conservation of marine biodiversity. The protocol of CCAMLR has created an Ecosystem Monitoring Program (CEMP) that constantly monitors levels of critical species in at all trophic levels in critical marine areas.[22] This monitoring program has been highly successful and has aided officials in designating zones that are in need of stricter fishing regulations. The ecosystem monitoring includes both scientific data collection and data collection from all Antarctic fisheries. Fish catch data from all commercial fisheries in the Antarctic must be submitted to the Secretariat within three months of collection. This data is then compiled to determine where indictor species are declining and growing.[23]

Arctic ecosystem monitoring is being conducted to an extent by the working group for the Conservation of Arctic Flora and Fauna (CAFF) under the Arctic Council. This working group has created the Circumpolar Biodiversity Monitoring Programme (CBMP), which consists of indigenous community groups and environmental groups working together to collect data on biodiversity in the Arctic Ocean. The CBMP has created the Arctic Biodiversity Data Service to collect this information. At this time, these efforts by the working groups of the Arctic Council have not generated enough data to inform concrete ecosystem-based policy suggestions for a multilateral biodiversity treaty concerning the entire Arctic Ocean ecosystem.

Other methods of assessing Arctic marine ecosystem areas of productivity and vulnerability have been suggested, however neither the Arctic Council nor CAFF has formally adopted any of these methods. Notably, the World Wildlife Fund (WWF) has written a detailed report concerning their protection suggestions for the Arctic Ocean based on their research and conclusions regarding areas of biological significance. This report, called the Rapid Assessment of Circum-Arctic Ecosystem Resilience (RACER) suggests an alternative method of assessing marine ecosystem productivity and resilience.[24]  This report was presented to the Arctic Council by WWF scientists, however, additional research is needed before this method can be used to determine ecosystem-based fishing regulations and conservation methods.

Policy Suggestions for Multilateral Agreements

The Marine Fish Expert Network, a group of scientists designated by the Conservation of Arctic Flora and Fauna (CAFF) working group and consisting of scientists from all of the eight Arctic States, expressed in their most recent Arctic Marine Biodiversity Monitoring Plan Annual Report that their top priority is data aggregation concerning marine fish populations.[25] Because of the insufficient amount of data reporting from the current Arctic Council monitoring group, the Arctic Council does not have adequate information regarding fish populations to implement commercial fishing regulations or shipping lane regulations based on strong, ecosystem based evidence. This suggests that the first step towards a multilateral biodiversity protection agreement should be a multilateral agreement concerning the reporting of fish catch data from all fisheries and commercial fishing operations in the Arctic Ocean in order to generate sufficient data to understand the long-term ecosystem trends in all regions of the Arctic Ocean.

This is a procedure that is required in Antarctica under CCAMLR, and requires little extra work from commercial fishing vessels, which often record their fish catch regardless of whether this data is being disclosed to authorities.[26] All vessels entering into areas under the jurisdiction of CCAMLR are required to submit data reports to a “monthly fine-scale catch and effort data reporting system for trawl, longline and pot fisheries.”[27] Almost all commercial fisheries use either trawl, longline, and/or pot fishing techniques, and commercial fisheries which do not use these techniques are significantly less harmful to the marine environment. In order to report this data, every Contracting Party to CCAMLR is required to attain the necessary data reports from their commercial fishing vessels and submit this data to the CCAMLR secretariat. The CCAMLR Conservation Measure detailing this procedure reads: “At the end of each reporting period, each Contracting Party shall obtain from each of its vessels its total catch of all species, including by-catch species, and total days and hours fished for that period and shall, by facsimile or email, transmit the aggregated catch and days and hours fished for its vessels.”[28]

The Arctic Council could facilitate a multilateral agreement implementing similar measures within the Arctic Ocean. Though different Arctic States have different opinions on what constitutes the Arctic Ocean, the Arctic Council has defined the area of the Arctic Ocean in the past in order to implement the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic. A multilateral agreement requiring the Arctic States to submit data from all trawl, longline, and pot fishing operations in the Arctic Ocean would allow the working groups of the Arctic to gain a better understanding of changing marine population dynamics in the Arctic as well as better understand which areas of the Arctic Ocean are important areas of biological diversity and productivity.

This specific multilateral agreement would not immediately set forth any restrictions on commercial fishing in the Arctic, but rather create a mechanism through which the impacts of commercial fishing in the Arctic Ocean can be better understood and allow the working groups of the Arctic Council to suggest strong ecosystem-based biodiversity protection agreements in the future. Additionally, this measure would have important implications towards determining which shipping routes would have the least impact on biological hotspots and areas of biological productivity. The need for this agreement is quite urgent, particularly considering that ocean warming is causing many fish populations and important fisheries to shift towards cooler waters in the north and south, towards the Arctic Circle and Antarctica.[29] These global marine populations shifts could be better documented and understood if fish catch data from trawl, longline, and pot fishing operations in the Arctic Ocean was reported to the Arctic Council.

Additionally, a treaty ensuring that commercial fishing operations will not begin in the international waters of the Central Arctic Ocean at any time is needed to ensure that this area remains ecologically productive until further research is conducted in the area. Currently, a voluntary declaration signed by five Arctic States – Canada, the Kingdom of Denmark, the Kingdom of Norway, the Russian Federation, and the United States of America – declares that this area will not be used for commercial fishing.[30] However, several other nations that are not part of this agreement could begin to exploit the fish populations in this area as deglaciation continues and the marine areas under the Arctic ice caps become accessible to fishing. A stronger, legally binding international multilateral agreement is needed to protect this area until further scientific research concerning marine populations is conducted in this region.

One difficulty in implementing this agreement is that not only do the eight Arctic States need to be contracting parties, but so do any nations that have current or future commercial fishing interests in the Arctic Ocean. This includes China, which has already indicated intentions to expand its commercial fishing operations poleward, Korea, the European Union, and Japan. Though these nations are observers of the Arctic Council, they are not participatory or permanent members, which makes their involvement through the Arctic Council more difficult. However, it is possible that both UNCLOS and the Arctic Council could play a role in the creation of this important multilateral agreement.

Multilateral environmental agreements are likely the most effective way to safeguard Arctic marine environments, however, they are also difficult to implement and negotiate. However, the Arctic Council has the potential to facilitate these agreements to safeguard Arctic marine biodiversity and promote research to further scientific knowledge about these important marine ecosystems. A multilateral agreement requiring reporting of fish catch data to the Arctic Council would be an important first step towards better understanding Arctic marine ecosystems. This information could aid the task forces of the Arctic Council in providing strong policy suggestions concerning shipping routes and biodiversity protection in the future.

Bilateral Agreements and Suggested Policy Implementation

Bilateral agreements concerning specific procedures and regulations regarding marine biodiversity protection are the first step towards the creation of comprehensive multilateral marine biodiversity protection agreements in the Arctic. Several Arctic nations have ratified bilateral agreements concerning cooperation on specific Arctic issues and these bilateral agreements highlight the possibility of bilateral cooperation between Arctic States. In some cases, these bilateral treaties can be strengthened and annexed to include biodiversity protection measures. In other cases, new bilateral treaties concerning biodiversity protection can be implemented and negotiated through the framework of the Arctic Council.

As this section will discuss further, the 1983 bilateral agreement between the Government of Canada and the Government of the Kingdom of Denmark concerning cooperation related to the marine environments of Baffin Bay, Davis Strait, and Nares Strait is a key example of an existing bilateral treaty framework that can be strengthened to include measures to help protect marine biodiversity. The creation of a third annex to this treaty to implement biodiversity protection measures would be an important first step towards the creation of legally binding treaties concerning biodiversity protection in the Arctic.

Another treaty that could be annexed to include biodiversity provisions is the bilateral treaty between the Russian Federation and Norway concerning oil spill response procedures in the Barents Sea.[31] This treaty could potentially include an annex mandating that both parties create a marine reserve of a specified size somewhere within their boundary of the Barents Sea to offset the negative effects of continuing oil drilling in this area and to contribute to the ecological resilience Barents Sea ecosystem.[32] Marine reserves, defined as no-take MPAs, have been shown to facilitate ecosystem resilience and, though they are not the best long term option for biodiversity protection, are an important method of protecting marine biodiversity and vulnerable ecosystems.[33] Both Norway and Russia are signatories of the Convention on Biological Diversity, and this annex could be a way for Norway and Russia to showcase their commitment to conserving and protecting biodiversity.

Bilateral agreements can be useful in addressing a number of issues relating to the protection of Arctic biodiversity including conservation of transboundary ecosystems, assessment and determination of transboundary shipping routes in order to minimize disturbance to marine biodiversity, and prevention of contamination and pollution. Commercial shipping in the Arctic Ocean is going to become an increasingly threatening issue to Arctic marine biodiversity as Arctic sea ice continues to melt rapidly. Adjacent Arctic States should work together to create shipping routes that minimize harm to biodiversity by considering all available ecosystem data. Additionally, WWF’s RACER ecosystem monitoring method could be utilized in order to determine biologically productive and resilient areas that should be avoided by shipping routes.[34]

Policy Suggestion for a Bilateral Agreement: Baffin Bay and Davis Strait

The Baffin Bay is located between the Western coast of Greenland and the Eastern coast of the Nunavut province of Canada. This 266,024-mi² sea is connected to the Labrador Sea by the Davis Strait and to the Arctic Ocean by the Nares Strait. This area contains the North Water Polynya and several cold-water coral reefs, which are important areas for marine biodiversity, including marine mammals and seabirds. This region is one of the most important areas of biological productivity in the Arctic due to nutrient cycling and the presence of unique cold-water coral reefs.[35]

Ringed seals, beluga whales, narwhals, polar bears, and other endangered Arctic species reside throughout Baffin Bay and the North Water Polynya, making the area ecologically important for the region’s most charismatic megafauna. It is estimated that over 80% of the world’s beluga whale populations live in the Baffin Bay and Davis Strait.[36] It is also a critical nesting habitat for many endangered species of seabirds, particularly the thick-billed murre.[37] Because Baffin Bay does not freeze over in the wintertime, it is an attractive habitat for both migratory and nonmigratory species.

Indigenous Inuit communities have lived near Baffin Bay for thousands of years because of the rich opportunities that the Baffin Bay ecosystem provides for year-round fishing and hunting. Today, there are 16,000 indigenous residents of Baffin Bay who depend on the marine resources of Baffin Bay for subsistence. However, in recent years, commercial fishing in this area has increased exponentially.[38] Many of these commercial fisheries use bottom trawls, which research has shown to cause severe harm to marine ecosystems.[39] Even in cases where commercial fisheries do not contribute to overharvest, they still contribute to coral-reef destruction. Bottom trawling, in particular, is harming the cold-water coral reefs in Baffin Bay and Davis Strait, which are some of the oldest cold-water coral reefs in the world and are home to hundreds of species on fish. These fish populations are not only important to the livelihoods of indigenous communities, but also to many species of migratory birds who nest in the areas surrounding Baffin Bay.[40] These 2000-year-old coral reefs should be protected by a bilateral environmental agreement between Canada and Denmark (Greenland).

Drilling for oil and gas in the Baffin Bay and Davis Strait has also become an increasingly large possibility in recent years. Because of the likelihood of oil and gas deposits in the area and the proximity to oil and gas markets, Baffin Bay has been considered for many years to be a possible site of future oil and gas drilling. In 2010, Shell Corporation was awarded two license blocks in Baffin Bay, Greenland, and the development of oil and gas operations has begun in the area.[41] Shell is only one of several oil companies who have acquired licenses blocks in Baffin Bay, both in Canada and Greenland, within the last ten years with the intent of determining the prospects for oil and gas drilling.

Because of the importance of the Baffin Bay and Davis Strait ecosystems to indigenous communities, the greater Arctic ecosystem, and populations of endangered charismatic megafauna, the governments of Canada and Denmark (Greenland) should work together to create a bilateral agreement to decrease ecological harm in these areas and promote the conservation of biodiversity. A treaty framework for this area is already in place in the form of a treaty signed by the two governments in 1983 called the “Agreement between in Government of Canada and the Government of the Kingdom of Denmark for Cooperation Relating to the Marine Environment.” A third annex could be added to this treaty to include measures for biodiversity protection not only for the benefit of the biodiversity itself, but also for the benefit of indigenous communities.[42]

Currently, the treaty contains important measures for regulating commercial shipping and drilling to minimize pollution. The treaty mandates exchange of information regarding drilling and mining projects in Baffin Bay and Davis Strait, and monitoring of all shipping, fishing, and tourism vessels. The two annexes of this treaty set forth a plan in regards to pollution incidents caused by oil and gas extraction and shipping activities, respectively. These plans require immediate notification by the party responsible for the pollution incident and mandate that all cleanup costs be paid by the nation in which the pollution incident originated.[43] Additionally, the treaty recognizes the importance of preserving the Baffin Bay and Davis Strait ecosystems and states that both Canada and Denmark (Greenland) are “conscious of the responsibility to protect and enhance this unique marine environment for the benefit of their peoples” and “desiring to develop further bilateral cooperation.”[44] These passages suggest that a third annex could be added to this treaty in order to protect and conserve the important marine biodiversity in this area. Possible measures could include commercial fishing regulations containing bycatch limits on endangered species of birds and mammals and outlawing bottom (deep water) trawls, regulations prohibiting oil and gas extraction operations in areas near endangered migratory bird breeding colonies, and restitution requirements to indigenous communities when pollution incidents occur in order to help these communities secure food so they do not need to eat marine wildlife that may have high levels of lead and methyl mercury. These solutions all address problems described above more fully in the “threats to biodiversity” section.

A commercial fishing regulation regarding bycatch limits on endangered species of birds and mammals and a regulation prohibiting oil and gas extraction operations in areas near endangered migratory bird breeding colonies and would be based on Principle 21 of the Stockholm Declaration, which says that states cannot harm environmental harm to other states. Migratory bird species who breed in colonies in one part of Baffin Bay and endangered birds and mammals who are subject to bycatch in Baffin Bay likely play an important ecosystem role for both Canada and Greenland.[45] The mammal populations are likely important for indigenous communities in both Greenland and Canada and migratory bird species are likely important in not only these two states, but also in countries where these birds migrate from and fill an ecosystem niche in other seasons. An additional regulation mandating restitution to indigenous communities when pollution incidents occur would be based on the Polluter Pays Principle. Indigenous communities all over the globe often bear the burden of pollution incidents. These communities should not have high mortality rates because of pollution of their food source, and they should have a way to buy other food sources that are not polluted if they so choose.

These are certainly not the only possible measures for an annex to the Canada and Greenland treaty concerning the marine environment of Baffin Bay and the Davis Strait, but they are examples of the way in which bilateral biodiversity protection agreements could help to mitigate some of the anthropogenic stressors on vulnerable and ecologically significant Arctic marine environments. Bilateral treaties concerning the marine environment between other parties to the Arctic Council could be extended in a similar way to implement regulations to protect ecologically and socially important areas of marine biodiversity. Additionally, new bilateral treaties could be negotiated to help protect biodiversity.

Conclusion

International law has the potential to regulate and diminish many of the anthropogenic stressors on Arctic marine biodiversity. Currently, fishing, shipping, and drilling prospects in the Arctic are threatening Arctic marine ecosystems, and these activities must become regulated to minimize harm to Arctic biodiversity. Arctic biodiversity is in need of protection not only because of its intrinsic value, but also because Arctic marine biodiversity is critical to the survival of indigenous Arctic peoples. In the coming years, the Arctic Council is uniquely positioned to assert itself as a facilitator of the creation of new bilateral and multilateral agreements to protect Arctic biodiversity.

A multilateral agreement requiring that Arctic States submit all fish catch data from trawl, longline, and pot fishing operations in the Arctic to the working groups of the Arctic Council would create a mechanism through which the long term biodiversity trends in Arctic ecosystems can be better understood. This agreement would be an important first step in the creation of a pan-Arctic biodiversity treaty system and would better allow the working groups of the Arctic Council to assess the ecological impact of particular shipping routes and oil, gas, and mineral extraction sites. With this information, the Arctic Council could make stronger ecosystem-based policy suggestions to protect biodiversity in the Arctic. Bilateral agreements also can play an important role in increasing biodiversity protection in the Arctic. New bilateral treaties be implemented to conserve transboundary ecosystems and minimize disturbance and contamination of marine biodiversity. Additionally, existing bilateral treaties can be annexed to implement measures to protect biodiversity and the marine environment.

The Arctic is entering a period of intense and rapid change as a result of global warming, glacial retreat, and sea ice loss. These changes increase the dangers of disturbance, pollution, and exploitation of marine Arctic ecosystems and intensify the need for international environmental law to protect this fragile and unique marine environment. In the coming years, the Arctic Council has the potential to facilitate the negotiation and creation of multilateral and bilateral agreements to ensure that the marine ecosystems of the Arctic are conserved and protected.


Endnotes

[1] Council, Arctic. “Arctic Biodiversity Assessment.” February 5, 2013, page 10.

[2] Johnsen, K. I., Alfthan, B., Hislop, L., Skaalvik, J. F. (Eds). 2010. Protecting Arctic Biodiversity. United Nations Environment Programme, GRID-Arendal, www.grida.no.

[3] IUCN-WCPA (World Commission on Protected Areas). 2008. Establishing Marine Protected Area Networks—Making It Happen. Washington, D.C.: IUCN-WCPA, National Oceanic and Atmospheric Administration and The Nature Conservancy.

[4] Allison, Gary W., Jane Lubchenco, and Mark H. Carr. “Marine reserves are necessary but not sufficient for marine conservation.” Ecological applications 8, no. sp1 (1998).

[5] The White House, National Strategy for the Arctic Region (Washington, D.C.: May 10, 2013).

[6] Government of Finland, Finland’s Strategy for the Arctic Region 2013, Arctic Council, 6.2. International Cooperation in the Arctic.

[7] Council, Arctic. “Declaration on the Establishment of the Arctic Council.” Ottawa, Canada 19 (1996).

[8] Nations, United. “Convention on biological diversity.” United Nations (1992).

[9] Council, Arctic. “Arctic Biodiversity Assessment.” February 5 (2013): 2013.

[10] “Permanent Participants,” The Arctic Council, accessed December 19th, 2016, http://www.arctic-council.org/index.php/en/about-us/permanent-participants.

[11] “Arctic Biodiversity Assessment,” 79.

[12]  Declaration concerning the prevention of unregulated high seas fishing in the central Arctic Ocean, (2015) Oslo, Norway.

[13] Boyd, Hugh, and Jesper Madsen. “Impacts of global change on Arctic-breeding bird populations and migration.” In Global change and Arctic terrestrial ecosystems, pp. 201-217. Springer New York, 1997.

[14] Hansen, Jens C. “Environmental contaminants and human health in the Arctic.” Toxicology letters 112 (2000): 119-125.

[15] Ibid.

[16]  “Arctic Biodiversity Assessment,” 86.

[17] Johannessen, Ola M., Lennart Bengtsson, Martin W. Miles, Svetlana I. Kuzmina, Vladimir A. Semenov, Genrikh V. Alekseev, Andrei P. Nagurnyi et al. “Arctic climate change: Observed and modelled temperature and sea‐ice variability.” Tellus A 56, no. 4 (2004): 328-341.

[18] Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (Nuuk, Greenland: May 12, 2011).

[19] Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (Kiruna, Sweden: May 15, 2013).

[20] Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980, in force 7 April 1982, www.ccamlr.org.

[21] Michelle Innis, “Coast of Antarctica Will Host World’s Largest Marine Reserve,” New York Times, October 27, 2016, accessed October 27, 2016, http://www.nytimes.com/2016/10/28/world/australia/antarctica-ross-sea-marine-park.html.

[22] Convention on the Conservation of Antarctic Marine Living Resources.

[23] Agnew, D.J. (1997) ‘Review—The CCAMLR Ecosystem Monitoring Programme’, Antarctic Science, 9(3), pp. 235–242.

[24] Christie, P., and M. Sommerkorn. “RACER: Rapid assessment of circum-Arctic ecosystem resilience.” Ottawa, Canada: WWF Global Arctic Programme (2012).

[25] Arctic Marine Biodiversity Monitoring Plan Annual Report 2016 Annual Report on the Implementation of the Circumpolar Biodiversity Monitoring Program’s Arctic Marine Biodiversity Monitoring Plan (CBMP-Marine Plan), CAFF Monitoring Series Report No. 23. October 2016.

[26] Convention for the Conservation of Antarctic Marine Living Resources, Schedule of Conservation Measures in Force, As amended by the Commission at the Thirty-third Meeting, 20 to 31 October 2014.

[27] Ibid.

[28] Ibid.

[29] Rose, G. A. 2005. On distributional responses of North Atlantic fish to climate change. ICES Journal of Marine Science, 62: 1360–1374.

[30]  Declaration concerning the prevention of unregulated high seas fishing in the central Arctic Ocean, (2015) Oslo, Norway.

[31] Council, Arctic. “Arctic Marine Shipping Assessment 2009.” (2009), page 169.

[32] Sydnes, Are Kristoffer, and Maria Sydnes. “Norwegian–Russian cooperation on oil-spill response in the Barents Sea.” Marine Policy 39 (2013): 257-264.

[33] Allison, Gary W., Jane Lubchenco, and Mark H. Carr. “Marine reserves are necessary but not sufficient for marine conservation.” Ecological applications 8, no. sp1 (1998).

[34] Christie, P., and M. Sommerkorn. “RACER: Rapid assessment of circum-Arctic ecosystem resilience.” Ottawa, Canada: WWF Global Arctic Programme (2012).

[35] Heide-Jørgensen MP, Hansen RG, Nielsen NH, Rasmussen M (2013) The significance of the North Water to Arctic top predators. Ambio 42:596–610.

[36] Pew Charitable Trusts. “Baffin Bay and Davis Strait.” Baffin Bay and Davis Strait. Pew Charitable Trusts, n.d. Web. 12 Dec. 2016.

[37] David Irons, et. al. CAFF Monitoring Report No.17. CAFF International Secretariat, Akureyri, Iceland.

[38] Pew Charitable Trusts – Baffin Bay.

[39] National Research Council. 2002. Effects of Trawling and Dredging on Seafloor Habitat. National Academy Press, Washington, D.C.

[40] Pew Charitable Trusts – Baffin Bay.

[41] “Shell in the Arctic.” Published by Royal Dutch Shell plc, for Shell Exploration and Production International B.V., The Netherlands.

[42] Agreement between the Government of Canada and the Government of the Kingdom of Denmark for Cooperation Relating to the Marine Environment. Can.-Den. August 26, 1983, E101887 – CTS No. 19.

[43] Ibid.

[44] Ibid.

[45] Mosbech, A. and Johnson, S. R. (1999), Late winter distribution and abundance of sea-associated birds in south-western Greenland, the Davis Strait and southern Baffin Bay. Polar Research, 18: 1–17.

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