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CWA # 1483, 25 October 2024
NIAS Polar & Ocean Studies
Climate Change in the Arctic: A call to shift from Traditional to Ecosystem-based Marine Governance

  Bishwarupa Kar

Introduction

Climate change is affecting oceans worldwide. In the Arctic Ocean, the melting of the polar ice cap has significant implications for the Arctic ecosystem as the increased accessibility to Northern waters welcomes new opportunities for anthropogenic activities that threaten the survival of biodiversity in the region. While ocean governance systems exist to regulate the laws of the seas, the question is, are traditional ocean resource management systems sufficient to keep up with the changes in the Arctic? As the Arctic ecosystem transcends the national boundaries of the eight coastal states and includes areas beyond national jurisdiction (ABNJ), existing marine governance systems are limited by their organisational and legal structures to protect the biodiversity in the central part of the Arctic and to ensure the rights as well as compliance of non-Arctic parties. Thus, there is a need to frame a more environment-oriented ocean governance system and to study the possibilities of implementing an Integrated Ecosystem-Based Marine Management (IEBMM) in the Arctic. 
How Climate Change is affecting the Arctic 

As temperatures rise and sea ice declines, the Arctic Ocean expands, exposing its previously covered central part to anthropogenic activities such as navigation, trade, fishing, and resource extraction. The unregulated rise of human involvement in the region threatens its biodiversity through the exploitation of marine resources, and pollution from oil spills. Therefore, as the Arctic environment changes, to protect its ecosystem, there needs to be a mechanism of ocean governance that controls and coordinates the movements of the parties involved. 

The uniqueness of Arctic Ocean governance

However, there are increasingly more players in the Arctic Ocean, making the governance in the region unique. There are two primary categories of jurisdiction. First, the waters that fall under the jurisdiction of the eight Arctic countries, i.e. the area under two hundred nautical miles from their continental shelf. However, the Arctic consists of a vast coverage of areas beyond national jurisdiction (ABNJ) that don’t come under the sovereignty of any particular state. The governance in these areas is significant as it determines the legal dynamics between coastal states and third parties such as non-coastal states, international organisations, and other autonomous entities. Therefore, with the growing possibility of conflict over marine resources in the Arctic’s ABNJs, it is up to the law of the sea to decide how far the legal provisions are binding, to whom they apply, and what kind of freedoms or rights third parties enjoy.

Existing marine governance provisions and their limitations

The existing law of the sea for the governance of the Arctic is guided by various legal systems at international and regional levels, such as the UN Convention on the Law of the Sea (UNCLOS), the UN Convention on Biological Diversity (UNCBD), the Arctic Council, and the Polar Code. 

At the global level, UNCLOS is the primary binding legal provision that regulates marine activities in all waters. It provides laws to balance the sovereignty of coastal states and the freedoms and rights of third states. However, Article 311 states that regional mechanisms can modify the rules of UNCLOS but only with the consent of the concerned states. This leaves ambiguity on the rights of third states in waters of ABNJs that will increase in the central part of the Arctic. Further, although UNCLOS mentions broad provisions for the protection of the marine environment, it does not include the concept of the arctic ecosystem, marking its two limitations to deal with the present scenario.

At the regional level, the Arctic Council is the primary regional cooperation that brings together the eight Arctic states, the indigenous Arctic communities, and other organisations for the protection and development of the region.  Regarding the environment, the Arctic Council has three binding agreements on maritime rescue, marine pollution and scientific cooperation. However, its provisions are insufficient for the changing times as the agreements have a sectoral approach to dealing with the region's human activities. Moreover, there is a minimal role of non-Arctic players in the Council, thus reducing the possibility of coordinating the movements of all entities in the Arctic. 

Another relevant Polar mandate is that of the Polar Code, an international code to regulate shipping in polar waters. It is a legally binding document applicable to the 176 members of the International Marine Organization (IMO) to prevent pollution. 

The necessity and meaning of an ecosystem approach (EA)

From a closer look at all the existing marine provisions, two conclusions can be drawn: 

1) All existing mechanisms have a sectoral approach, i.e. each type of human activity is managed separately. However, the Arctic ecosystem is cross-boundary, therefore there needs to be one umbrella system to integrate the regulation of all activities, and
2) The existing international laws are fragmented about different environmental issues? Thus, there is a need to look for a system that can bring together all the provisions. 

Hence, the best solution to protect the Arctic ecosystem is to have an ecosystem-based management approach where the focus is not on individual human activities but rather on the ecosystem as a whole, including the coordination of all the structures, legal provisions, activities, and knowledge systems that might affect an ecosystem. Thus, an Integrated Ecosystem-Based Marine Management (IEBMM) is an alternative to the traditional sectoral approach and is most suitable to handle the changing dynamics of the Arctic environment. 


Challenges in implementing IEBMM in the Arctic?

IEBMMs are not a new concept. They have been experimented with in regions of the world having the most fragile and politically complex ecosystems. In ocean management, IEBMMs increasingly occupy centre stage. They have evolved from a vague principle to a central paradigm underlying living marine resource policy. 

To date, wherever marine IEBMMs were tested out, happened to be areas of national jurisdiction of countries. Therefore, only the commitment from one state, i.e. the coastal state, was mainly required to implement environmental protection measures. Thus, cooperation with the stakeholders involved was easier to achieve. However, in the case of the Arctic, as there are large ABNJs over which no country has sovereignty, new challenges arise to the implementation of IEBMM. 

The primary questions that therefore need to be addressed are: 

  1. How to make the measures binding? 

  2. How to ensure compliance by non-Arctic stakeholders? 

  3. How to coordinate with international maritime organisation guidelines? 

  4. How to coordinate ecosystem-based policies with sectoral organisations since even the global management organisations, such as the International Maritime Organization (IMO), and International Seabed Authority (ISA) have fragmented mandates, making their synchronicity difficult. 

To gauge the possibility of tackling these challenges while implementing an ecosystem approach in the Arctic, the examples of previously applied successful IEBMMs may be looked at.
Case study: Learnings from the OSPAR model of IEBMM 

Learnings from the previously applied IEBMMs around the world can be selectively applied to the Arctic. The example that comes closest to the Arctic setting is the OSPAR model, i.e. the Convention for the Protection of Marine Environment of the North-East Atlantic. To tackle the challenges of implementing an IEBMM, the OSPAR model actively cooperated with regional and global organisations such as the International Marine Organization (IMO), and the International Seabed Authority (ISA) that govern various maritime activities by signing MoUs with them. 

Firstly, as these organisations are renowned for regulating marine life in ABNJs, cooperating with them increased the legitimacy of OSPAR’s measures in ABNJs of the Atlantic. Secondly, collaboration with sectoral organisations made it possible for OSPAR to have a cross-sectoral effect. Thirdly, the framework of those organisations filled the gaps in OSPAR’s regulations. For example, while OSPAR cannot regulate fishing, the North East Atlantic Fisheries Commission (NEAFC) covered it. Fourthly, it opened the door to engage with third States as the membership of international organisations (IOs) are generally broader than that of regional ones. Thus, through the MoUs, all the member states of the IOs were brought under OSPAR’s regulation. 

However, a challenge that can arise through cross-organizational cooperation is the clash in guidelines if the mandates of international organisations differ on a particular matter. 

Possible solutions for applying IEBMM in the Arctic

To successfully implement IEBMM in the Arctic, lessons from other IEBMM models such as OSPAR and lacunae in the existing marine governance in the region need to be addressed. This includes, reforming the Arctic Council, coordinating with sectoral organisations increasing the involvement of non-arctic states, and coordinating the existing research efforts in the region. 
1.Coordination with sectoral organisations: 

As seen in the OSPAR model, the best way to synergize cross-sectoral regulative measures is through cooperation with various international organisations having different marine use regulations. However, it can be challenging for the Arctic Council to get all States on board unlike in OSPAR in which members had more shared interest and thus better cooperation. Nevertheless, the Arctic Council can begin by collaborating with the NEAFC to tackle the issue of fishing in the central part of the Arctic. 
2. Greater involvement of Non-Arctic States:

For IEBMM to work in the entire arctic region and ABNJ, even non-regional states need to enjoy certain freedoms/rights. The AC can achieve this by increasing the role of its observer states. At present, observer states are not part of the decision-making process of the AC and can't participate in negotiations of legally binding agreements of AC. These are significant for IEBMM and thus need to be reformed. 

3. Coordination of Arctic research efforts:

A major prerequisite for the IEBMM mechanism is the support of scientific groups. Ecosystem management is only as good as the understanding of its dynamics. At present, even though major scientific organisations such as the International Council for Exploration of Seas (ICES), the North Pacific Marine Science Organization (PICES), and the International Arctic Science Committee (IASC) exist in the Arctic, none are dedicated to studying an integrated marine science activity in the Arctic Ocean. Therefore, gaps still exist in the scientific understanding of the central part of the future marine Arctic. Hence, either a new independent scientific organisation needs to be created with dedicated jurisdiction over the Arctic, or a comprehensive scientific program within the Arctic Council can be created where both member-states, as well as international scientific organisations, can participate in studying the marine ecosystem in the region. 

Conclusion
As traditional sectoral ocean governance becomes insufficient in the Arctic Ocean, implementing an ecosystem approach is the need of the hour. However, applying an IEBMM in the Arctic has legal and organizational challenges in ensuring that the ecosystem-based measures comply with international law and that the non-regional states have rights and freedoms within the ABNJs. To tackle these challenges, the Arctic Council needs to be reformed and given more international legal powers. For example, its Secretariat could be made similar to OSPAR’s Commission to give it more authority.  However, as the AC has limitations in making binding measures for Third states in ABNJs, additional measures need to be put in place.  Learning from previously applied IEBMMs, the Arctic Council can coordinate with global and regional sectoral to increase the compliance of third states by engaging the observers of the Council in its core discussions and projects. Further, the scientific effort to study and suggest relevant marine management techniques also needs a boost. If these steps are taken, there can be a chance to better protect the Arctic ecosystem given the changing dynamics of the Arctic Ocean caused by climate change. 

References
Diamond, H.Jordan, “The Need for Ecosystem-Based Management of the Arctic”, Changes in the Arctic Environment and the Law of the Sea”, Center for Oceans Law and Policy, Volume 14, pg 389-397, Brill, 2010
Levin PS, Fogarty MJ, Murawski SA, Fluharty D (2009) Integrated Ecosystem Assessments: Developing the Scientific Basis for Ecosystem-Based Management of the Ocean. PLOS Biology 7(1): e1000014. https://doi.org/10.1371/journal.pbio.1000014
R.D., Charles, A. and Stephenson, R. L., “Key principles of marine ecosystem-based management,” (2015), Marine Policy 57, 53–60. doi:10.1016/j.marpol.2015.01.013
Katsanevakis, S., Stelzenmüller V., South A. et al., Ecosystem-based marine spatial management: Review of concepts, policies, tools, and critical issues’ (2011) Ocean & Coastal Management 54(11), 807–820. doi:10.1016/j.ocecoaman.2011.09.002, 808.
Todorov, Andrey, “Chapter 22- The International Law of the Sea and Arctic Governance: Paving the Way to Integrated Ecosystem-Based Marine Management”, The Environmental Rule of Law for Oceans,  Cambridge University Press, 2023

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