Changing Arctic and Changing Fisheries: An Adaptive Approach?

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1 Changing Arctic and Changing Fisheries: An Adaptive Approach? XUE Guifang (Julia) KoGuan Law School Shanghai Jiao Tong University

2 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

3 I. Contextual Setting: The Changing Arctic Long series of monitoring IPCC Report: climate change 2013: the physical science basis : 1.7 mm/year : 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

4 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

5 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.

6 II. Effects of Climate Change on Arctic Resources (Source: ACIA, Scientific Report, Chapter 13 'Fisheries and Aquaculture', p. 693.)

7 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.

8 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

9 II. Effects of Climate Change on Arctic Resources Seabirds 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

10 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

11 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.

12 Oil and Gas Extraction USGS 2000 assessment nearly ¼ of world's undiscovered hydrocarbons in Arctic ( trillion barrels of oil) 2007 Report Future of the Arctic potential significantly less USGS B 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 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 Human Threats Arctic states will not negotiate alternative regime for the Arctic above and beyond UNCLOS

13 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)

14 III. Existing Regime for Arctic Resources: Internatioal Jurisdictional instruments (Hard Law: entitlement and obligation for resource management) UNCLOS Fish Stocks Agreement Convention on Biological Diversity (CBD) Fisheries regulations and guidelines (Soft Law) 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)

15 III. Existing Regime for Arctic Resources: Regional Cooperation of the Arctic States becomes manifest in several species protection treaties such as: 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) 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)

16 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 ( ) Scientific program focused on the Arctic and the Antarctic, March 2007 to March Arctic Biodiversity Assessment (ABA) Provide synthesis of most current scientific research on Arctic biodiversity, scientific and policy reports, Circumpolar Biodiversity Monitoring Program (CBMP) Effort to harmonize monitoring efforts across Arctic, identify trends and pressures, used to assist policymakers, 2010

17 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 Bodies with Explicit Competence Over Parts of the Pacific 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) North Pacific Anadromous Fish Commission (NPAFC); Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea

18 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)

19 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.

20 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

21 Gaps 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

22 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).

23 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.

24 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

25 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.

26 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)

27 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

28 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.

29 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?

30 Meeting on Arctic Fisheries Nuuk, Greenland, 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.

31 Thank you for your attention!