The 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: A Primer

On 3 October 2018, the five Arctic Ocean coastal States (Canada, Denmark (acting on behalf of Greenland and the Faroe Islands), Norway, Russia, and the United States – the ‘A5’) together with China, the European Union (EU), Iceland, Japan, and South Korea (which together with the A5 form the so-called ‘A5+5’) signed the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement or CAOFA) in Ilulissat, Greenland. In this post, we provide a brief introduction to the CAOFA, highlighting a number of salient issues which we discuss in much greater detail in a forthcoming article (V.J. Schatz, A. Proelss & N. Liu, The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: A Critical Analysis (2019) International Journal of Marine and Coastal Law).

Background

The CAOFA’s raison d’être is summarized in the preamble of the Agreement:

Recognizing that until recently ice has generally covered the high seas portion of the central Arctic Ocean on a year-round basis, which has made fishing in those waters impossible, but that ice coverage in that area has diminished in recent years;

Acknowledging that, while the central Arctic Ocean ecosystems have been relatively unexposed to human activities, those ecosystems are changing due to climate change and other phenomena, and that the effects of these changes are not well understood; […]

Believing that commercial fishing is unlikely to become viable in the high seas portion of the central Arctic Ocean in the near future […]

In line with what the preamble states, the objective of the CAOFA is:

to prevent unregulated fishing in the high seas portion of the central Arctic Ocean through the application of precautionary conservation and management measures as part of a long-term strategy to safeguard healthy marine ecosystems and to ensure the conservation and sustainable use of fish stocks (Article 2).

Indeed, the high seas portion of the central Arctic Ocean (CAO) has previously not been subject to a comprehensive regional fisheries agreement. As shown on the map below (own copyright), only the southern tip of the CAO falls within the Convention Area of the North-East Atlantic Fisheries Commission (NEAFC). Other relevant regional fisheries management organizations (RFMOs) and arrangements (RFMAs) lack either a geographical or substantive mandate for comprehensive fisheries regulation in the CAO. On the other hand, the global legal regime for high seas fisheries applies to the CAO. The A5 admitted as much in their 2008 Ilulissat Declaration by expressing support for the existing global framework provided by “the law of the sea [as] a solid foundation for responsible management by the five coastal States”. The most important global instruments, which are also expressly referred to in the CAOFA’s preamble, are the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1995 UN Fish Stocks Agreement (UNFSA) and the 1995 Code of Conduct for Responsible Fisheries.

Negotiations

The original initiative that led to the negotiation of the CAOFA came from the United States Senate, which directed:

“the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean.”

A series of meetings among the A5 followed. In their non-binding 2015 Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean (Oslo Declaration), the A5 committed themselves to the “implementation of interim measures to prevent unregulated fishing in the high seas portion of the central Arctic Ocean”. The Oslo Declaration also acknowledged:

the interest of other States in preventing unregulated high seas fisheries in the central Arctic Ocean and look[s] forward to working with them in a broader process to develop measures consistent with this Declaration that would include commitments by all interested States.

As a consequence, the A5 invited China, the EU, Iceland, Japan and South Korea to the negotiations. Therefore, the remaining meetings took place among the A5+5 and were accompanied by separate meetings of Scientific Experts on Fish Stocks in the Central Arctic Ocean (FiSCAO). On 30 November 2017, a draft agreement was finally concluded and, after legal and technical review, the final text of the CAOFA was made available in the first half of 2018.

Scope of the CAOFA

An important feature of the CAOFA is that it is not supposed to affect the existing legal regime and the parties’ positions in that respect – including other fisheries agreements such as NEAFC (Article 14). This notion is also reflected in the provisions which determine the CAOFA’s scope.

The CAOFA’s spatial scope extends to:

“the single high seas portion of the central Arctic Ocean that is surrounded by waters within which Canada, the Kingdom of Denmark in respect of Greenland, the Kingdom of Norway, the Russian Federation and the United States of America exercise fisheries jurisdiction” (Article 1(a) – see map).

Thus, the CAOFA’s spatial scope is informed by purely legal aspects rather than an ecosystem approach such as, for example, the Convention Area of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). However, the usual terminology used in fisheries agreements is “areas under national jurisdiction” rather than “exercise […] jurisdiction”. This wording appears to have been chosen in order to avoid any implicit statement on the status of the waters around Svalbard (or Spitsbergen) in which Norway exercises fisheries jurisdiction. In particular, Norway, whose sovereignty over Svalbard was recognized by Article 2 of the 1920 Spitsbergen Treaty, has declared a Fisheries Protection Zone (SFPZ) around Svalbard (see map). All of the A5+5 except the EU are contracting parties to the Spitsbergen Treaty (several EU Member States are also parties). The topic of the SFPZ is sensitive because Article 2 of the Spitsbergen Treaty states that “[s]hips and nationals of all the high contracting parties shall enjoy equally the rights of fishing [in Svalbard’s] territorial waters.” Norway claims that the term “territorial waters” does not encompass the SFPZ, and neither does the right to equal access extend to the SFPZ. Others argue that the term “territorial waters” must be interpreted dynamically in light of the object and purpose of the Spitsbergen Treaty – with the consequence that Norway must grant equal access to fisheries in the SFPZ. The issue has recently gained new momentum in light of a dispute between the EU (particularly Baltic Member States) and Norway concerning access to the local snow crab fishery.

The CAOFA’s substantive scope covers all “species of fish, molluscs and crustaceans” except sedentary species as defined by Article 77(4) UNCLOS (Article 1(b)). As sedentary species are subject to the regime of the continental shelf, their exception from the CAOFA’s scope of application ensures that the A5’s (partially overlapping) claims to continental shelves beyond 200 nm are not affected by the CAOFA (these claims overlap with the CAOFA Agreement Area).

Moratorium on unregulated commercial fishing

The key operative undertaking of the CAOFA, which is also highlighted in its title, is what has sometimes imprecisely been called a ‘moratorium on fishing’ in the CAO. This calls to mind the current moratorium on fishing for Alaska pollock under the 1994 Bering Sea Pollock Convention (CCBSP) – with the significant difference, however, that the CCBSP was a reaction to a stock collapse rather than a precautionary measure prior to the initiation of commercial fishing.

However, the moratorium imposed by the CAOFA is in fact on ‘unregulated’ commercial fishing, not on commercial fishing per se. The parties retain, with some qualifications, their right to authorize commercial fishing by vessels under their flag pursuant to conservation and management measures adopted by existing RFMOs/As such as NEAFC if they are “operated in accordance with international law to manage such fishing in accordance with recognized international standards” (Article 3(1)(a)). In addition, Article 3(1)(b) CAOFA allows for commercial fishing based on “interim conservation and management measures” established pursuant to Article 5(1)(c)(ii) CAOFA if (and when) negotiations towards a new RFMO/A are triggered (Article 3(1)(b) – see discussion below). Non-commercial fisheries are not covered by the ‘moratorium’ under Article 3 CAOFA. However, exploratory fishing will be regulated directly under Article 5(1)(d) CAOFA and may only be authorized pursuant to conservation and management measures established on this basis. The freedom of marine scientific research in the high seas (cf. Articles 87(1)(f) and 238 UNCLOS), which may involve the taking of fish, is expressly guaranteed (Article 3(7) CAOFA). The CAOFA does, however, contain obligations to prevent abuse of exploratory fishing and scientific fishing for commercial purposes (think: International Whaling Commission (IWC)), just like it contains an obligation to ensure compliance with the moratorium and any future interim measures on commercial fisheries (Articles 3(4), 3(5) and 5(1)(d)).

This overview shows that the CAOFA indeed prohibits fishing that would be classified as ‘unregulated’ under para. 3.3 of the FAO’s 2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).

Pursuant to the sunset clause in Article 13(1) CAOFA, the CAOFA (and with it the ‘moratorium’) will remain in force for 16 years. Thereafter, it will be automatically renewed for successive periods of five years unless one (!) of the parties objects (Article 13(2) CAOFA). Equally, the CAOFA will only enter into force once all (!) of the A5+5 have become parties (Article 11(1)). This compromise solution (as opposed to a permanent ban) is reminiscent of the Ross Sea Marine Protected Area established by CCAMLR in Antarctic waters which entered into force last year and which is also subject to a sunset clause providing (35 years subject to renewal or replacement by consensus). However, the interim measures adopted under the CAOFA form part of a “stepwise process” that might lead to the establishment of one or more future RFMOs/As in the CAO. This is not unheard of and has, for example, been used in the context of the South Pacific Regional Fisheries Management Organisation (SPRFMO). Before the next step, however, scientific uncertainties concerning fish stocks in the CAO must be reduced – a purpose for which a robust Joint Program of Scientific Research and Monitoring (JPSRM) will be established (Article 4). If the parties, based on data produced by the JPSRM and other sources, consider that the “distribution, migration and abundance of fish in the Agreement Area would support a sustainable commercial fishery”, they can trigger negotiations towards a new RFMO/A (Article 5(1)(c)(i)). This decision, like all substantive decisions under the CAOFA, must be taken by consensus (Article 6(2)). Thus, a single party can block the trigger mechanism (just as a single party can block the adoption of other conservation measures), which is an expression of the careful balance of competing interests involved in the CAOFA negotiations. However, it should be noted that potential disputes relating to the interpretation or application of the CAOFA can be referred to binding settlement pursuant to Part VIII of the UNFSA even if a party – such as China – is not a party to the UNFSA (Article 7).

Overall, the CAOFA can be described as an instrument that adopts a precautionary approach to fisheries conservation and management (cf. Article 6 and Annex 11 UNFSA). It remains to be seen whether this approach will be effectively implemented in practice.

Questions of participation

Finally, the CAOFA’s provisions on participation deserve attention. They allow only for immediate signature (and thereafter ratification, acceptance or approval) of the A5+5 (Article 9). Other States can only join (1) after the CAOFA has entered into force, (2) if they can show a “real interest” and (3) if the A5+5 have decided to invite them by consensus (Article 10).

It should be recalled that States fishing for straddling or highly migratory stocks in the high seas must, if a competent RFMO/A exists, either become a member of that RFMO/A or at least apply its conservation and management measures (Article 8(3) UNFSA). Otherwise, the relevant State is prohibited from fishing for the stock in question (Article 8(4) UNFSA). As a corollary of those obligations, there is also a right to join an RFMO/A if a “real interest in the fisheries concerned” can be shown – and this right must be reflected in the existence (and application) of non-discriminatory provisions for participation by new entrants in the relevant RFMO/A. While the CAOFA’s preamble states that it is “premature under current circumstances to establish any additional regional or subregional fisheries management organization or arrangement”, the extent of competences to establish conservation and management measures under Article 5(1)(d) (for exploratory fisheries) and Article 5(1)(c)(ii) (for commercial fisheries) suggests that the CAOFA itself either is an RFMA within the meaning of Article 1(1)(d) UNFSA or, at the very least, will become one as soon as the mechanism of Article 5(1)(c)(i) is triggered. Thus, there must be a possibility for States to join the CAOFA if they can show a real interest. However, the concept of real interest may probably be understood somewhat more broadly than usual because there does not currently exist a fishery in the CAO (but, at the same time, not too broadly, taking into account that the CAOFA operates based on consensus decision-making, which is why the risk of an impasse caused by new conservationist parties (think: IWC) is significant).

It may be concluded that the CAOFA’s provisions on participation are problematic from the perspective of Article 8(3) UNFSA, but at least in theory, it is possible to apply these provisions in conformity with the UNFSA.

Conclusion

Overall, the CAOFA can accurately be described as an instrument that adopts a precautionary approach to fisheries conservation and management in the CAO. However, it should be borne in mind that, given the current lack of commercial fishing in the CAO combined with a low likelihood of commercial fisheries taking place there even in the long run, this precautionary action comes at a low cost for the Arctic Five plus Five. At the same time, the CAOFA arguably provides the Arctic Five with an opportunity to reassert their special role as ‘stewards of the Arctic’. As such, it may be optimistic to perceive the adoption of the CAOFA as an “[i]mportant step in gradual transformation of the freedom of the high seas”.