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Managing Biodiversity Beyond National Jurisdiction in the Changing Arctic

  • Timo Koivurova (a1) and Richard Caddell (a2)
Extract

The development of an Internationally Binding Legal Instrument (ILBI) for the conservation and sustainable management of marine biological diversity in areas beyond national jurisdiction (BBNJ) has profound implications for the future regulatory activities of a host of regional governance structures exercising competence over these waters. In the rather stilted vernacular of the BBNJ Process, the ILBI aspires to “not undermine” the work of preexisting institutions and initiatives. Inevitably, given the emphasis upon future institutional symbiosis, a key challenge facing the ILBI is to promote its four thematic priorities—marine genetic resources, area-based management tools, environmental assessment, and capacity building and technology transfer—in a manner that can be effectively harnessed by current regional and sectoral frameworks. One region in which the intriguing set of challenges and opportunities presented by the ILBI are strikingly manifested is the Arctic. Some have argued for a regional treaty or clearer recognition of the “special” nature of Arctic conditions. However, we view the ILBI as a potential milestone in Arctic governance that can provide a firm platform to build on current cooperative arrangements for these vulnerable and rapidly changing marine ecosystems. Moreover, we argue that the present legal and institutional framework for the Arctic need not be revisited at this juncture, as it provides a strong regime through which to implement the core objectives of the ILBI. Its ability to do so, however, will depend on whether the ILBI (1) is effectively designed to work with preexisting machinery and (2) succeeds in clarifying and advancing universally-agreed methodological requirements for its four priority areas.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 G.A. Res. 69/292 para. 3 (June 19, 2015).

2 Kamrul Hossain & Kathleen Morris, Protecting Arctic Marine Biodiversity in Areas Beyond National Jurisdiction, in The Future of the Law of the Sea: Bridging Gaps Between National, Individual, and Common Interests 105, 121–23 (Gemma Andreone ed., 2017).

4 Convention on Biological Diversity, June 5, 1992, 1760 UNTS 79.

5 Hossain & Morris, supra note 2.

6 Timo Koivurova et al., Innovative Environmental Protection: Lessons from the Arctic, 27 J. Envtl. L. 285 (2015).

7 UN Convention on the Law of the Sea, Dec. 10, 1982, 1883 UNTS 397.

8 See Oran R. Young, If An Arctic Ocean Treaty is Not the Solution, What is the Alternative?, 47 Polar Record 327 (2011).

9 See generally J. Ashley Roach, Arctic Navigation: Recent Developments, in Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries 173 (Myron H. Nordquist et al. eds., 2016).

10 Hannah Hoag, Nations Agree to Ban Fishing in Arctic Ocean for at Least 16 Years, 358 Science 1112 (2017). On the so-called “Broader Process” underpinning these developments, see Erik J. Molenaar, International Regulation of Central Arctic Ocean Fisheries, in Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries 429, 448–57 (Myron H. Nordquist et al. eds., 2016).

13 Ecologically or Biologically Significant Areas, Clearing-House Mechanism of the Convention on Biological Diversity Information Submission Service.

14 David Freestone, Governance of Areas beyond National Jurisdiction: An Unfinished Agenda, in Law of the Sea: UNCLOS as a Living Instrument 231, 264 (Jill Barrett & Richard Barnes eds., 2016).

15 Indeed, this has been recently reiterated by the working group in it subsequent report on Specially Designated Marine Areas in the Arctic High Seas (2013).

16 Arctic Council, Fairbanks Declaration para. 12 (May 11, 2017).

17 Timo Koivurova, Implementing Guidelines for Environmental Impact Assessment in the Arctic, in Theory and Practice of Transboundary Environmental Impact Assessment 151, 166 (Kees Bastmeijer & Timo Koivurova eds., 2008). See also the new EIA project under the auspices of the Sustainable Development Working Group of the Council.

20 Richard Caddell, Uncharted Waters: Strategic Environmental Assessment in the UK Offshore Area, in The Strategic Environmental Assessment Directive: A Plan for Success? 283 (Gregory Jones & Eloise Scotford eds., 2017).

21 Ingvild Ulrikke Jakobsen, Marine Protected Areas in International Law: An Arctic Perspective 233–43 (2016).

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