In the wake of the agreement between the Arctic Five to ban commercial fishing in the Arctic “Donut Hole” – the region of international waters at the top of the world – there has been much discussion regarding the place of Arctic Five decision making versus decision making through the Arctic Council or other international bodies. Most of this talk has revolved around political motivations and whether it is proper that there are many avenues through which to address international Arctic policy. But I wish to focus on the basic positive or negative practicality of the two most recent and controversial acts by the Arctic Five: the Ilulissat Declaration and the recent ban on commercial fishing.
The Ilulissat Declaration is one of the most important acts of international Arctic governance in a relatively small but growing history of northern-specific international regulation. It essentially saw the Arctic Five commit themselves to the peaceful disposition of Arctic territorial disputes through the relevant provisions of the Law of the Sea Convention (LOSC).
On this issue, it made practical legal sense to work through the auspices of the Arctic Five arrangement rather than the Arctic Council or another forum. The only states with overlapping territorial claims in the Arctic are those within the Arctic Five. While the three additional members of the Arctic Council may have wished that they could at least have a voice in territorial discussions, these are issues of sovereignty that do not necessarily require their individual involvement.
To be sure, the extent to which an Arctic littoral state’s continental shelf and attached legal rights extends out into the Arctic Ocean is of concern to the international community. But the manner in which the Arctic Five have thus far addressed this situation makes the involvement of the additional states of the Arctic Council, and others, largely irrelevant. The Arctic Five have committed themselves to abiding by the LOSC, to which Iceland, Sweden, and Finland are party. Moreover, the LOSC governs all of the globe’s oceans, including the Arctic Ocean. Thus, the LOSC was the de facto method for resolving territorial issues in the High North to begin with, and one that the three additional Arctic Council states had essentially already endorsed as the correct means by becoming party to the treaty.
There is, of course, the issue of indigenous involvement in Arctic decision-making. Through the Arctic Five, this involvement is drastically curtailed. Within the Arctic Council, however, indigenous groups have a consultative role in all actions. They do not have such a role within the Arctic Five. However, although this is an important issue in terms of maintaining the precedent of indigenous involvement in Arctic affairs, issues of sovereignty and territory are largely within the realm of states. Furthermore, the territorial issues covered by the Ilulissat Declaration will likely have little impact on indigenous rights aside from the potentially damaging effect of an important Arctic decision process leaving out indigenous groups.
From a practical standpoint, the Arctic Five makes perfect sense as the avenue through which to pursue Arctic territorial issues and the Ilulissat Declaration. All of the parties with legal rights at stake were involved – whether directly or indirectly through their connection to the LOSC – and became committed to a certain course of action. In addition, it was also likely easier to reach an agreement on a possibly contentious issue through a forum involving fewer voices.
The recent ban on commercial fishing in the Arctic, however, is another matter. The Donut Hole at the center of the Arctic Ocean is legally international waters, or “high seas,” under the LOSC. This means that all states have extensive freedoms within this area and are severely limited in their ability to curtail the actions and rights of others.
The agreement by the Arctic Five to ban commercial fishing is therefore actually quite limited in its application. The states involved can commit to banning their own vessels from fishing within this area, but they cannot enforce this ban against the vessels of other nations on the high seas. The most they can do is institute domestic regulations that allow them to sanction foreign vessels should they enter a port or the territorial waters of one of the Arctic Five states.
Given the broad nature of high seas freedoms and rights, on a practical level, the Arctic Five does not appear to be the most effective venue for addressing fishing issues within the Donut Hole. While it is important that key Arctic fishing nations within the Arctic Five limit themselves, this does not prevent other important fishing nations from around the globe from harvesting within the central Arctic Ocean.
This issue is vividly illustrated by the case of the Aleutian Basin in the 1980s. There existed another “donut hole” of high seas within this area. Despite fishery regulations by the USSR and US within their respective waters around the Bering Strait, they legally could not stop fishing within the Aleutian Basin donut hole on their own. This area was therefore ravenously targeted by fishing vessels from Japan, South Korea, China, and others – even vessels from the USSR due to lax enforcement. Fisheries plummeted and have still not recovered despite the eventual establishment of an international fishing moratorium in 1993.
Since the Arctic Donut Hole involves high seas, the Arctic Five can be seen to not be the most practical or effective means of preventing commercial fishing within it. A forum with more international involvement is needed to truly address fishing issues in this region, likely one even more inclusive than the Arctic Council.
The analyses of the actions of the Arctic Five above show that this forum has its place within international Arctic governance, but that it also has its limitations. The keys are the issues at stake and interests involved. Where only the interests and rights of the members of the Arctic Five are involved, the forum is an excellent means of addressing issues. However, when the broader Arctic or international community has interests and rights at stake, the Arctic Five is likely not the most practical venue for decision-making.