Enhance strategic and coordinated implementation of Arctic Council decisions at the national level

The Arctic Council has a long history of considering the status and management needs of the Arctic marine environment. Four important achievements have been the adoption by the ministers of the Arctic marine strategic plan (AMSP) in 2004 (Arctic Council 2004), the completion of the Arctic Ocean review (AOR) (PAME 2013) and acceptance of its recommendations by the ministers in 2013, Arctic marine shipping assessment (AMSA) of 2009 (PAME 2009) and, finally an update of the AMSP (PAME 2015) for the period 2015–2025. The AOR has about fifty recommendations covering a wide range of issues with nearly half of those considered of high importance.

But, a deep flaw with these reports and with other decisions of the Arctic Council Ministers is that implementation of agreed recommendations does not happen at all, or is slow and fragmentary, or, at best, is obscure. Indeed, the recent audit report entitled The Arctic Council: perspectives on a changing Arctic, the Council's work, and key challenges (Arctic Council 2015c), prepared by the national auditing agencies of Norway, Russia, Denmark, Sweden and the United States found that, ‘The Council faces challenges related to [. . .] ensuring the effective implementation of voluntary recommendations adopted by the member states.’ (Ibid.: 1). Further, a review by the author of this commentary of eleven important ministerial decisions taken over the last three ministerial meetings confirmed this conclusion. Five criteria for successful implementation were established, namely: 1) specificity of recommended action; 2) establishment of a timeline: 3) provision for council follow-up; 4) reporting on results; and 5) engagement of relevant non-governmental interests. Decisions were evaluated based on the decision documents prepared by and for the ministers and each factor was scored from 0 to 2 with 2 being the highest score. Only one decision, that regarding black carbon (Arctic Council Reference Council2015d), taken at Iqaluit in April 2015, received a score of more than half the possible number of points.

For the future management of the Arctic Ocean by the Arctic governments an effective framework mechanism is essential to assure strategic prioritisation for action on these and future ministerial recommendations and to foster national implementation. This is especially critical in light of the rapidly changing nature of the Arctic environment and if the current goals of the Arctic marine strategic plan (PAME 2015) are to be achieved, to wit:

• • Improve knowledge of the Arctic marine environment, and continue to monitor and assess current and future impacts on Arctic marine ecosystems.

• • Conserve and protect ecosystem function and marine biodiversity to enhance resilience and the provision of ecosystem services.

• • Promote safe and sustainable use of the marine environment, taking into account cumulative environmental impacts.

• • Enhance the economic, social and cultural well-being of Arctic inhabitants, including Arctic indigenous peoples and strengthen their capacity to adapt to changes in the Arctic marine environment.

Focus paramount responsibility of Arctic nations to manage Arctic Ocean

With a rapidly changing Arctic and growing global demand for its resources, such as oil and fish, national governments across the globe look to the Arctic as a new region for exploration and exploitation. This interest is highlighted by the growing list of non-Arctic countries such as China and Singapore that have achieved or seek to achieve observer status with the Arctic Council, as well as by the list of non-Arctic nations currently constructing ice breaking ships. If the Arctic countries and especially those Arctic coastal states are to maintain their stewardship responsibility for the Arctic, then they must be seen to provide effective governance and management of the region as a whole, including the high seas, as appropriate.

Arctic resources and issues are not defined by national boundaries

Many of the ecological processes of the Arctic as well as the increasing scale of many economic activities, such as shipping, are not limited or defined by national boundaries. As a consequence, management actions of any single nation must be informed by the values, activities and potential risks across the entire Arctic marine environment. The Arctic countries can most effectively meet this regional challenge for national action through collective consideration of strategic needs, such as providing all the elements essential to safe shipping, at a global and circumpolar level and through evaluation of national responses to those needs through an effective framework agreement.

Sharpen priorities for implementation

The future course of development in the Arctic is so important for the 4 million people resident in the Arctic and for the sustainability of the region and the world that its governance must be taken seriously by Arctic nations. A framework agreement for more effective implementation among the Arctic nations, especially if decisions continued to be taken by consensus, would undoubtedly result in decisions by ministers on only the most crucial issues. Thus, while fewer issues might be addressed by Arctic ministers for actual action at the national level, those decisions would be taken in ways that assured the probability of effective implementation in the varying contexts of the several countries. Explicit to this approach is the concept that the initial overarching agreement would only provide a framework for future decisions on substantive matters by the ministers that could be codified in protocols or annexes to the overall agreement. A sharper focusing of Ministerial priorities would also lead to enhanced coordination of analytical work by and recommendations from the working groups and task forces.

Assure concerted action by all Arctic nations

Decision-making on governance actions through a strong agreement among the Arctic countries is not the creation of a new external constraint on national sovereignty, especially if decision-making is by consensus. Rather it is a mechanism to assure that for critically important issues all countries are acting in a concerted fashion to achieve shared objectives. This is especially important in a context where the failure of one nation to meet its responsibilities might put the interest of all nations at risk. For example, a significant shipping disaster or oil spill not only could have direct environmental and social impacts in multiple countries but could also put a chill on the entire industrial sector.

Enhance implementation of cost-effective actions

Finally, although the Arctic is increasingly accessible, it will remain a difficult and costly place to inhabit, to govern, and in which to do business. Key decisions on future activities in the Arctic may be more cost effective if they are made in a cooperative fashion that strengthens the sharing of information, technology, capacity and infrastructure across multiple countries where practical.

The hows of a cooperative mechanism for the Arctic marine environment

As noted in the introduction, the following discussion addresses the specific issues identified in the instructions given by the Ministers to the Task Force on Arctic Marine Cooperation (SAO Report to Ministers, 2015) and, therefore follows the language and outline of those instructions. In this discussion the term ‘cooperative mechanism’ is used in order to also be consistent with those instructions regarding the type of body under consideration.

Functions

As discussed above, the primary function of the cooperative mechanism should be to facilitate cooperative action by the eight Arctic nations, acting through the ministers of the Arctic Council, to achieve the agreed goals of the Arctic marine strategic plan, as outlined above.

This should be done through the drafting of Programmatic Action Agendas (PAAs) on key strategic issues as identified by the Arctic ministers, which agendas, after approval by the ministers, would be implemented as appropriate by national governments or other competent regional or international bodies. As is now the case within the Arctic Council, decisions on PAA approval would be by consensus, or, in the alternative, a member state could excuse itself from implementation of the terms of a particular PAA. Where appropriate PAAs would contain indicative implementation timeframes and measures of success. PAAs could be adopted as Annexes or Protocols to the Agreement creating the cooperation mechanism.

Examples of issues that might be addressed through a series of PAAs are as follows:

• • Risk management associated with Arctic shipping. A few examples through which this can be achieved are as follows.

  • ○ Agreement on port-state controls

  • ○ Investment in navigational infrastructure

  • ○ Enhanced charting priorities

• • Risk management of oil spills. A few examples through which this can be achieved are as follows.

  • ○ Identifying spill reduction mechanisms

  • ○ Agreeing to pollution liability arrangements

• • Cooperation to establish a network of special management areas. A few examples through which this can be achieved are as follows.

  • ○ Establishment of objectives regarding interconnection and ecological integrity

  • ○ Implement joint management programs where cost-effective

• • Assure wise stewardship of resources through ecosystem-based management (EBM) actions at national levels. A few examples through which this can be achieved are as follows.

  • ○ Agreement on meta-data issues

  • ○ Establishment of common ecological objectives

  • ○ Coordination of monitoring

This list is meant to be illustrative although it also demonstrates that PAAs would not only cover substantive areas of governance concern, but also address mechanisms or approaches to achieve improved governance such as EBM. The process of adopting PAAs would be a dynamic one in which the breadth and complexity of issues addressed would develop only with a maturing perception of need and a track record of success.

In order to assure that PAAs address the most critical issues in the Arctic and are as sound as possible from a variety of perspectives (social, economic, technical, environmental), the work done to develop them would have to be based on the best available western and traditional knowledge – scientific, economic, and cultural. While many of the subsidiary bodies of the Arctic Council are capable of producing such analytical products, in order to enhance their effectiveness, consideration should be given to creation of an issue priority setting process, driven at least in part by the ministers. This process would seek to link knowledge and analysis to the policy needs of the region. Also, explicit mechanisms should be established for reaching out to expert opinions beyond the normal body of Arctic experts. A process for establishing priorities for ministerial action on PAAs and to involve experts beyond those usually associated with Arctic Council work might be the subject for one of the first PAAs.

A function of the Arctic Council secretariat would be, working through the Senior Arctic Officials, to prepare reports on an established schedule regarding actions taken pursuant to PAAs and the actual results achieved in meeting the goals of the Strategic Plan or other objectives of the Arctic Council. Finally, it should be stressed that actions required pursuant to PAAs would only have effect in a given Arctic country when specific action was taken by that country either as authorised by existing or newly enacted legal authority.

Geographic scope

The geographic scope covered by a cooperative mechanism should include the entire Arctic marine environment from the surface of the sea to, but not including, the seabed below, and including national EEZs as well as territorial waters. Of course, existing regional and international authorities and principles, including the UN Convention on the Law of the Sea (UNCLOS 1982), define national sovereignty and establish national rights and obligations in the marine realm. These constrain how PAAs could be developed under the cooperative mechanism.

Beyond the above considerations, there are two other relevant geographic questions. The first is the southerly extent to which PAAs might reach. Generally it has been the practice of the Arctic Council to not specifically address this question ‘in a one size fits all’ manner. Rather the geographic scope has been determined according to what makes the best sense in terms of the issue at hand. However, in the case of a cooperative mechanism for the marine environment it would seem useful to at least initially define the southern extent of the marine area of concern. The 10°C July isotherm, where it overlies the marine realm would be an inclusive starting point. It is possible for particular PAAs to vary the extent as might make sense in an issue specific context.

A more difficult question is the extent to which the cooperative mechanism would be designed to allow for PAAs to recommend actions by national governments in watersheds tributary to the Arctic marine environment. Some existing regional seas arrangements (including ones signed by a number of Arctic countries, such as that for the Baltic Sea) have such provisions. In the case of the Arctic, for virtually every country, this would provide for very extensive intrusion into the land mass of the country in question. This would raise a whole set of issues, for example those associated with the management of fresh water systems, well beyond Arctic concerns and not particularly informed by Arctic experts. This could be problematic for many Arctic states. Also, it is not currently clear that the most pressing issues facing the Arctic require such intrusion. Thus these riverine systems might be excluded from the reach of the cooperative mechanism. Or, alternatively, such reach might only be permitted where it is demonstrated as clearly necessary in order to address a significant issue for the Arctic.

Relationship to other mechanisms

The Arctic, even as the rest of the world, is characterised by a great many formal and informal agreements among many different actors covering a vast range of issues and activities. A new cooperative mechanism, pursuant to which the Arctic ministers accept the responsibility of adopting PAAs designed to achieve enhanced Arctic marine governance clearly offers additional benefits regarding coordination among this complex array of interests in at least three areas.

First, by establishing a process for the prioritised preparation of PAAs over time, the cooperative mechanism will de facto provide an agenda for enhanced scientific cooperation among the many bodies interested in Arctic science. While not mandating such cooperation the explicit nature of the process should contribute to maximising scientific learning while at the same time assuring focus on the most pressing science questions from a policy/governance perspective. Thus, greater productivity and efficiency may result for both guiding and utilising the work of such organisations as Arctic Ocean Observing System, International Council for Exploration of the Sea and the North Pacific Marine Science Organization.

Second, with respect to other regional seas programs such as that for the North East Atlantic (OSPAR 1992) there would be geographic areas where there is explicit overlap of interests. Of course, this is now the case for the Arctic Council and OSPAR and that fact seems to have had few impacts, either positive or negative. With an explicit potential agenda for national implementation of Arctic-focused PAAs through a cooperative mechanism, it would seem that the need for close consultation with OSPAR would become more significant and should produce positive synergistic results. While this is less the case with the regional seas program for the Baltic (HELCOM 1992) since there is no geographic overlap, the opportunities to learn from the decades of work by HELCOM on regional marine matters should be significant.

Finally, the Arctic Council and its member states have always been dependent in certain circumstances on other agreements for actual implementation. A notable example is the role of the International Maritime Organization (IMO) in giving legal life to recommendations originated from the Arctic marine shipping assessment (PAME 2009) by its recent adoption of the Polar Code. Again, with specifics rigorously set forth in PAAs along with national commitment to support implementation, where that is dependent on action of other bodies, more aggressive action by such bodies would be advanced.

Over the decades a number of agreements between two or more Arctic countries have been entered into where countries share boundaries and/or resources. Examples are as wide-ranging as the Agreement on the Conservation of Polar Bears (1973) or Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary (1990). A circumpolar cooperative mechanism clearly would not set aside the provisions of existing agreements nor preclude the development of new ones. In some cases it is possible that a PAA might help guide the implementation of such agreements or perhaps obviate the need for new ones on the same issue.

Within or separate from the Arctic Council

As the previous discussion indicates, the cooperative mechanism should be designed as an integral component of the Arctic Council. It should not be considered as part of the working group on Protection of the Arctic Marine Environment (PAME), a subsidiary body of the Arctic Council, or even as a new entity parallel to existing working groups. Rather, the cooperative mechanism should be the vehicle through which the ministers act when they and their countries are prepared to implement specific actions in response to the cooperative governance needs of the Arctic marine environment. Thus, the framework agreement creating the mechanism is a more formal instrument than is typical of the Arctic Council mechanisms as it sets the states on a course of cooperative implementing action.

However, specific commitments, including the pace, nature and scope of actions required on a specific issue remains completely within the control of the ministers as they consider approval of specific PAAs subsequent to agreeing to the framework of the Cooperative Mechanism. In this sense, the recent actions by the Arctic states to agree to binding commitments on search and rescue and oil spill response following negotiations under the auspices of the Arctic Council can be considered embryonic examples of the form of PAAs that might be adopted pursuant to a cooperative mechanism. As noted above, the 2015 Framework for action on enhanced black carbon and methane emissions reduction (Arctic Council Reference Council2015d) has elements new to Arctic decisions which greatly enhance the likelihood of implementation.

Also, rather than establish a parallel secretariat to serve the ministers when acting pursuant to the cooperative mechanism, the existing Arctic Council secretariat together with the secretariats of the several working groups of the Arctic Council could serve the ministers in that capacity.

Membership and participatory rights

Given that the cooperative Mechanism could be regarded as an integral part of what might be considered an evolving Arctic Council system, the complex array of formal and informal instruments among various states influencing the governance of the Arctic (Molenaar Reference Molenaar2012), there would appear to be no reason to change the current membership of the council or to expand the number of nations when a matter such as a proposed PAA is being considered in the context of the cooperative mechanism. It may be that on occasion a PAA might have impacts affecting non-Arctic Council nations. If such impact went beyond that which is permissible under existing international law, then, perforce, the Arctic states would need to seek the agreement of relevant other states. But at the outset to include them in anticipation of such eventuality would seem cumbersome and unduly speculative.

Of particular importance is the role of indigenous peoples of the Arctic as Permanent Participants in the work of the Arctic Council. They have a special presence in the Arctic and in the Arctic Council that should certainly not be lessened. On the contrary, practices and mechanisms should be developed and incorporated into the cooperative mechanism or one of its annexes or protocols to enhance the effectiveness of Permanent Participants in participating in the work of the Cooperative Mechanism.

Governmental and non-governmental Observers have been an integral and important part of the working processes of the Arctic Council since its inception. Notwithstanding the more formal nature of a Cooperative Mechanism, continued and even strengthened participation by observers should be aimed for. Especially in the case of non-governmental observers this might seem extreme but there are a growing number of formal international arrangements where this is accepted practice. One of the oldest, created in the aftermath of the First World War, is the International Labor Organization where governance and decision-making is shared equally between representatives of governments, industry and labour. A more recent example is the Antipersonnel Mine Ban Convention (Ottawa Convention 1997) which provides for direct involvement of civil society, especially in the demining process. It would also seem to be very appropriate when adopting a PAA that the Arctic ministers consider specific and enhanced mechanisms for seeking and incorporating the perspectives of those observers who are citizens or legal entities in their respective countries and therefore have a unique interest in implementation.

Legal form

The perspectives and outcomes set forth above could be achieved either through a binding agreement or a relatively specific more informal agreement. A legally binding agreement would close the debate about the form of governance of the Arctic marine environment in favor of cooperation on a legal basis. This would be consistent with that which many Arctic and non-Arctic countries have followed for other regional seas such as the North Sea, the Baltic, the Mediterranean and the Caspian Sea. It would demonstrate a seriousness of purpose at least equal to that evinced for other critical regional seas around the globe. This would be primarily an optical perspective and could be important to other nations of the world who would need to acknowledge and respect the commitment to wise governance of the region. It might also be important to economic interests seeking to operate in the Arctic and who value the benefits of effective and appropriately uniform ‘rules of the road.’

In the alternative, non-legally binding agreement to a cooperative mechanism providing for a framework for decision-making, implementation and accountability as described above could be equally effective in practice. While such a non-binding cooperative mechanism might initially forego some level of international ‘gravitas’, in fact, effective action over time by the Arctic states would more than make up for this initial shortcoming.