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Changing Arctic and Changing Fisheries:
An Adaptive Approach?
XUE Guifang (Julia)
KoGuan Law School
Shanghai Jiao Tong University
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OUTLINE
I. Contextual Setting: "Cold Rush" vs. Arctic Fisheries
II. Effects of Climate Change to Arctic Fisheries
III. Existing Legal Frameworks and Gaps for Arctic
Resources Management
IV. Application of Precautionary and Ecosystem
Approaches to Arctic Fisheries Management
V. Concluding Remarks
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I. Contextual Setting: The Changing Arctic
Long series of monitoring
IPCC Report: climate change 2013: the physical science basis
• 1901-2010: 1.7 mm/year
• 1993-2010: 3.2 mm/year
ACIA
Others
Opinions may differ
• on magnitude
• on speed
• on the role of human activities
Consensus that a change is taking place: climate is warming
and sea-level is rising
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I. Contextual Setting: The Changing Arctic
Climate change: from ice cover to ice free (warming
twice than average )
International:
• From cold front to zone of international focus
• From "Far North" to "policy center"
Shipping in Arctic and environmental impacts
Resource exploitation and emergency response
Concerns of A5/A8 vs. interests of non-Arctic states
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I. The Changing Arctic vs. Ecosystem
The Arctic region serves as a sink for many hazardous substances
introduced into the marine environment elsewhere and transported by ocean
currents and airflows to the high north, where their further transport is
prevented by low temperatures.
Potential for new activities in the North will come along with environmental
or/and marine implications.
Strong economic incentives in favor of an ice free Arctic may be the worst
part of the diverse threats to the Arctic ecosystem, the region is facing
mounting challenges to biodiversity on an unprecedented scale
• Reduce of sea ice will have multiple implications on ecosystem health,
resource availability and accessibility.
• Life cycles and northward movements of key species
Any future exploitation of the continental shelf resources will
certainly have an impact on the state of the Arctic ecosystem and
species.
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II. Effects of Climate Change on Arctic Resources
(Source: ACIA, Scientific Report, Chapter 13 'Fisheries and Aquaculture', p. 693.)
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II. Effects of Climate Change on Arctic Resources
Commercial Arctic fisheries are based on a number of species belonging
to physically different ecosystems. Global warming is likely to induce an
regime shift in some areas its four large marine ecosystem, resulting in a
very different species composition:
•
3 in the northern North Atlantic and 1 in the North Pacific.
•
The ecosystems around Greenland and off northeast Canada (east of Newfoundland
and Labrador) are of a true Arctic type.
•
Owing to a greater influence of warm Atlantic or Pacific water, the other systems are
of a cold-temperate type.
•
Historical data are used to project the effects of a warming climate on commercial and
other marine stocks native to these ecosystems.
The dynamics of these ecosystems are not well understood and now more
difficult to identify the relative importance of fishing and the environment
on changes in fish populations and biology.
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II. Effects of Climate Change on Arctic Resources
Fish stocks
Production and distribution of fish depends strongly on environmental
conditions
Still uncertain due to scarce baseline data, immense number of interrelating factors involved except gengeral trends:
• Southern limit for colder fish species will move northward 
• shrink current range and decrease abundance
• Warmer water fish distributions will move northward 
• expand current range and increase abundance
• Fish with slow reproduction rates and those at northernmost range limits most
threatened
• Species overlap expected as species move northward at different rates, also
impacts transboundary migration issues
Heavy anthropogenic pressure will further complicate expected reactions to
CC
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II. Effects of Climate Change on Arctic Resources
Seabirds
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60+ species inhabit the region, 40+ nest there
Changes in distribution, breeding, time in region, migration routes
Species already at range limits face extinction due to habitat loss
New competition for limited resources
Increased susceptibility to diseases
Marine Mammals
• Negative impacts due to changes in and loss of
sea ice reducing populations to vulnerable levels.
• Ecosystem most impacted: polar bears, walrus, ice-inhabiting seals etc.
• Certain cetaceans also delaying migration, expanding feeding ranges,
remaining in polar waters over winter
• Species' current systems stressed–behavior and physiology altered
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Human Threats
Overfishing
• Reduction in extent and duration of ice
• Increase fishing activity, extend harvesting time, place further
pressure on depleted or threatened fish stocks
Shipping
• Historically ice covered – potential to become ice-free
• Northwest and Northeast Passages
• New shipping routes highly lucrative – commercial shipping and
access to previously inaccessible oil/gas fields and fisheries
• Contested legal status over Northwest Passage could have severe
consequences for marine biodiversity and protection
• Increased maritime traffic = vessel source pollution, ocean dumping,
noise pollution and safety concerns
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Human Threats
Increase of population growth and economic expansion
Rising use of fossil fuel energy
The speculative role of the oil factor
Security and stability concerns regarding shipping routes
Military actions and regional stability
Valuable interrelated marine ecosystems and biological diversity:
• Potential for new activities in the North will come along with environmental
or/and marine implications.
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Human Threats
Oil and Gas Extraction
• USGS 2000 assessment nearly ¼ of world's undiscovered hydrocarbons in
Arctic (3.1 –11 trillion barrels of oil)
• 2007 Report Future of the Arcticpotential significantly less
• USGS 2008 90B barrels of oil, 1,669 trillion cubic feet of natural gas, 44B
barrels of natural gas liquids; 84% offshore
• Still high uncertainty, costs unknown, jurisdictional issues
• Any exploration could have significant impacts on ecosystem and biodiversity
Extension of Continental Shelf Claims
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UNCLOS Article 76 and CLCS
Significant incentive to extend shelf (protection of biodiversity?)
Submissions by Russia, Norway, Iceland & Denmark, Canada etc.
May 2008: Ilulissat Declaration
• Arctic states will not negotiate alternative regime for the Arctic above
and beyond UNCLOS
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III. Existing Regime for Arctic Resources: Overall
The Arctic Ocean domain is not subject to a comprehensive treaty regime,
an "Arctic Treaty" modeled on the Antarctic Treaty of 1959 does not
exist;
No individual treaty regime specifically governs the Arctic resources (One
exception: Agreement on the Conservation of Polar Bears)
Yet, there exist a multitude body of international norms, rules and/or
principles applicable to an individual issue in the Arctic including
environmental and resoruce conventions which address, inter alia:
• Protection of the marine environment (UNCLOS; London Convention and
Protocol; MARPOL)
• Protection of Arctic flora and fauna (ICRW; NAMMCO agreement; Polar bear
agreement)
• Navigational safety (UNCLOS; SOLAS; MARPOL)
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III. Existing Regime for Arctic Resources: Internatioal
Jurisdictional instruments
(Hard Law: entitlement and
obligation for resource
management)
Fisheries regulations and
guidelines (Soft Law)
UNCLOS
Fish Stocks Agreement
Convention on Biological Diversity (CBD)
FAO instruments (Including Code of Conduct for
Responsible fisheries, Int'l Plan of Actions, PSM
Agreement);
International Guidelines for the management of
Deep-Sea Fisheries (DSFs)
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III. Existing Regime for Arctic Resources: Regional
Cooperation of the Arctic States becomes manifest in several species protection
treaties such as:
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1973 Polar Bears Agreement;
1971 Agreement on Sealing and the Conservation of the Seal Stocks in the North West
Atlantic; and
OSPAR Convention
Specific cooperation of the Arctic States has mainly taken place in the form of
non-binding tools within the (non-binding) context of the Arctic Council (1996)
•
•
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Institutionalized: Permanent Secretariat
Oversees inter-Arctic governmental cooperation
High level intergovernmental forum but no independent legal power
• Legally-binding: Arctic Search and Rescue Agreement (2011)
1991 Arctic Environmental Protection Strategy (AEPS): establishment of a
permanent working group scheme
Arctic Monitoring and Assessment Programme (AMAP)
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III. Existing Regime for Arctic Resources: Regional
Arctic Climate Impact Assessment (ACIA)
• Most comprehensive independently reviewed evaluation of Arctic
climate change effects, 2005
International Polar Year (2007-2008)
• Scientific program focused on the Arctic and the Antarctic, March 2007
to March 2009
2010 Arctic Biodiversity Assessment (ABA)
• Provide synthesis of most current scientific research on Arctic
biodiversity, scientific and policy reports, 2010-2013
Circumpolar Biodiversity Monitoring Program (CBMP)
• Effort to harmonize monitoring efforts across Arctic, identify trends and
pressures, used to assist policymakers, 2010
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RFMOs in the Arctic
Bodies with Implicit
Competence Over the
whole Marine Arctic
Arctic Council; International Arctic Science Committee (IASC)
Bodies with Implicit
Competence Over Parts
of the Marine Arctic
International Commission on the Conservation of Atlantic Tunas
(ICCAT); Western and Central Pacific Ocean Fisheries Commission
(WCPFC) ; North Pacific Marine Science Organization (PICES)
Bodies with Explicit
Competence Over Parts
of the Atlantic Wedge
of the Arctic
International Council for the Exploration of the Sea (ICES);
Northwest Atlantic Fisheries Organization (NAFO); OSPAR
Commission; North Atlantic Salmon Conservation
Organization(NASCO); North East Atlantic Fisheries Commission
(NEAFC)
Bodies with Explicit
Competence Over Parts
of the Pacific Wedge of
the Arctic
North Pacific Anadromous Fish Commission (NPAFC); Convention
on the Conservation and Management of Pollock Resources in the
Central Bering Sea
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III. Existing Regime for Arctic Resources: Regional
Arrangement or bilateral fisheries management regimes
Norway-Russian Federation Fisheries Commission (JFC);
International Pacific Halibut Commission(IPHC);
Pacific Salmon Commission(PSC) ;
Intergovernmental Consultative Committee (ICC)
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Gaps
Even with all the legal instruments in place, major gaps exist
Not adequately regulated emerged new threats in current regime:
• no consideration of CC impact and associated mitigation and
adaptation measures
• no adjustment to the possible changes including migration
patterns of stocks etc. resulting from CC.
• Very little coordination of marine ecosystem and biodiversity protection
As fish stocks become depleted in southern jurisdictions, Arctic
fish stocks could become more attractive for illegal, unreported,
and unregulated (IUU) fishing.
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Gaps
No Arctic-wide binding legal instrument exists governing the conservation
and sustainable use of marine biodiversity
• Arctic Council-Arctic forums are non-binding and recommendatory only
• North Atlantic Marine Mammal Commission
UNCLOS and the Convention on Biological Diversity (CBD)
• serve as main overarching legal frameworks for the region
Numerous other international and regional legal agreements have linkages
to marine ecosystem and biodiversity
• IMO agreements (MARPOL, London Convention), International
Convention on Regulation of Whaling, CITES, several FAO fisheries
instruments, and various regional seas agreements
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Gaps
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UNCLOS
• Only 2 provisions that explicitly relate to biological
diversity
• Article 194(5): "Measures to Prevent, Reduce and Control
Pollution of the Marine Environment"
• Mandates the protection of rare and fragile habitats and species
• Likely that obligation is too general to be effective in conserving
biodiversity, however
• Article 196(1): "Use of Technologies or Introduction of Alien or New
Species"
• Obligates States to take measures necessary "to prevent, reduce and
control pollution of the marine environment resulting from the use of
technologies under their jurisdiction or control, or the intentional or
accidental introduction of species" to the ocean which may cause
harmful changes
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Questions to be asked
Adaptive framwork? what can be built upon to meet new chasllenges?
Gaps: Uncertain scenarios regarding fisheries ecosystems, resource shifts, where
fishing opportunities, new players?
Principles and approaches: Why? Fish only or ecosystem approached
management? "
What's new beyond Ilulissat? To apply principles in new fisheries contexts, ahead
of global and regional agreements? To increase specificity?
RFMO: Timing? Players? Allocations? Roles for existing RFMOs? Integration
across numerous RFMOs?
Views differ on appropriate means, but it may be wise to apply:
• A precautionary approach (PA);
• A ecosystem approach (EA).
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IV. Application of Precautionary Approach
Adopted in FAO in 1995, becomes essential in envo protection and
resource management.
One of the central implications:
• taking account of the system complexity of fisheries
• recognition of the growing uncertainty it reveals, related to unknowns in the
ecology, climate, social values, perspectives and relations, as well as
management implementation.
Applies to all fishing activities and could add additional and specific layer
of precaution for Arctic fisheires
A "frontier area" demands mapping, exploratory fisheries protocol etc.
Includes Arctic areas where there is no history of fishing and little if any
information available concerning the benthic features (habitat, communities
and species) and the impacts of fishing on these features.
Helps create baseline data and risk assessments irrespective of whether
fisheries are found ultimately to be viable and manageable.
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IV. Application of Precautionary Approach
Based on precautionary approach to achieve sustainable use
PA: exploratory fishery and information gathering processes.
Information gathering stage to inform future viability and decisionmaking
for new fisheries, and application of prudent management.
Consistent with underlying spirit of UNGA 61/105 on VMEs
High Seas: potential races for fishing history as stocks move north or
become more accessible may need different approaches
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IV. Application of Ecosystem Approach
A comprehensive integrated management approach based on best
available scientific knowledge about the Arctic ecosystem and its
dynamics
To identify and take action on influences which are critical to the
health of the marine ecosystems, thereby achieving sustainable use
of ecosystem goods and services and maintenance of ecosystem
integrity
Regional approaches for pursuing integrated, cross-sectoral
ecosystem-based management in the marine Arctic
• To be pursued at the regional level: whether by means of legally binding or
non-legally binding instruments.
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IV. Application of Ecosystem Approach
Purpose
To plan, develop and manage fisheries in a manner that
addresses the multiple needs and desires of societies,
without jeopardizing the options for future generations to
benefit from the full range of goods and services provided by
the marine ecosystem.
In practice
An ecosystem approach to fisheries strives to balance diverse
societal objectives, by taking into account the knowledge and
uncertainties about biotic, abiotic and human components of
ecosystems and their interactions and applying an integrated
approach to fisheries within ecologically meaningful
boundaries(source: FAO Guidelines 2003)
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Management Principles for PA and EA
Implement existing tools and mechanisms as pragmatic foundation to
domestic and cooperative management
Respect co-management obligations and consultative processes
Commit/recommit to basic management principles for the region to
protect vulnerable marine ecosystems
Implement ecosystem and precautionary approaches
• 2009 Manado Ocean Declaration
• Adopted 14 May, 2009, Manado, Indonesia
• calls upon States to apply precautionary and "ecosystem approaches with a
view to achieving long-term conservation, management and sustainable use
of living marine resources."
The implementation can only be progressive, adaptive, multi-facetted and
trans-institutional
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V. Concluding Remarks
The Arctic Ocean as a polar region has a unique ecosystem, and is particularly
sensitive to intense affection of CC and human threats.
Arctic should become the main strategic resource base for the Arctic states who
have a stewardship role in protecting the environment and resources.
As diminishing ice-coverage will attract fishing vessels looking for possible new
fishing opportunities, the Arctic states will have to develop adaptive measures for
such areas in order to discharge their obligations under international law.
All the global legally binding and non-legally binding instruments related to
fisheries conservation and management are also applicable to the Arctic fisheries,
Arctic states must at any rate ensure that new Arctic fisheries are conducted in
compliance with applicable international law.
Cooperation in fisheries management is the key factor in deciding the biological
and economic sustainability of the fisheries.
The Arctic needs a holistic, integrated approach based on full knowledge and with
full stakeholder participation for consorted efforts to address the challenges.
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V. Concluding Remarks
Consider strengthening existing legal frameworks and fill up gaps in
actual management.
• Obvious choice given current limitations of UNCLOS and CBD in
effectively conserving marine ecosystem and biodiversity
• Arctic Treaty for Protection of Marine Ecosystem and Biodiversity
• General Arctic Treaty not realistic (Ilulissat Declaration)
• BUT, possible to have treaty similar to Polar Bear
Agreement, but more comprehensive?
• Open to non-Arctic States and additional stakeholders
• Other integrated cooperative governance mechanisms possible
building on regional seas examples?
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Meeting on Arctic Fisheries
Nuuk, Greenland, 24-26 February 2014
Chairman's Statement:
to develop a set of interim measures to deter unregulated fishing in the high
seas portion of central Arctic Ocean.
to advance understanding of marine living resources and their ecosystems in
the Arctic ocean
to promote cooperation with relevant scientific bodies including ICES,
PICES, etc.
to develop a Ministerial Declaration for signature or adoption by June 2014
to involve additional states in a broader process before the end of 2014 for a
binding international agreement.
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Thank you for your attention!
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