The Antarctic is a continent surrounded by oceans. The Arctic, in contrast, is an ocean surrounded by continents. The relatively shallow, increasingly ice-free waters of the Arctic Ocean constitute the last unexploited fishery on Earth.
Commercial fishers have avoided the Arctic Ocean because of the near-constant presence of sea-ice and the absence of commercially attractive species. But as the Arctic Ocean warms and the sea-ice melts, valuable species such as sockeye salmon, pollock and Arctic cod could move northwards.
Unregulated fishing has led to the collapse of fish stocks around the world, famously including the Grand Banks of the North Atlantic. The Arctic Ocean is now threatened by the “tragedy of the commons”, a phenomenon in which self-interested behaviour by multiple actors results in the exhaustion of shared resources.
There is particular concern for the Arctic cod, a “keystone species” that occupies an essential place in the Arctic food chain. They consume plankton and are eaten in turn by other species, including the seals that are central to the diets of polar bears and indigenous peoples. Although Arctic cod are small, bony and unattractive as food for humans, they could easily become the target of a fishery that produces fishmeal for aquaculture and fertiliser – with devastating impacts across the entire ecosystem.
Countries are now cooperating to counter overfishing through a series of treaties and other agreements, including the 1982 UN Convention on the Law of the Sea, which grants coastal countries absolute jurisdiction to regulate fishing within 200 nautical miles from shore, in the so-called “exclusive economic zone”. Within this zone, coastal state management can extend to a moratorium on fishing. In 2009, the Obama administration banned commercial fishing in US waters north of Alaska because of scientific uncertainty concerning the impacts of climate change on different species in the region.
‘Straddling stocks’ and ‘loophole’ areas
However, coastal state management is plagued by the problem of “straddling stocks”, fish species that migrate between the exclusive economic zone of a coastal state and the high seas beyond 200 nautical miles. Unregulated fishing on the high seas can diminish the fish population on both sides of the boundary, just as if someone opened a drain on the far side of a shared swimming pool.
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There is also the challenge of protecting species that spend their entire lives on the high seas. In the Arctic Ocean, an area the size of the Mediterranean Sea lies beyond the exclusive economic zones of the coastal countries.
In several places along the southern fringes of the Arctic, countries have agreed to the establishment of science-based mechanisms for assigning quotas over high seas fisheries. In the middle of the Barents Sea lies a 25,000 nautical square-mile “loophole” of high seas surrounded by the Russian and Norwegian exclusive economic zones. During the 1990s, overfishing by Icelandic vessels in this unregulated area depleted stocks and created tensions between the three countries. In 1999, Norway, Russia and Iceland concluded the “Loophole Agreement” for managing stocks and setting quotas in the area. Other countries have respected the agreement, and the fish stocks have been preserved.
There is a similar, 36,000 nautical square-mile “donut hole” in the middle of the Bering Sea between the Russian and US exclusive economic zones. In 1994, the two countries negotiated the Convention on the Conservation and Management of the Pollock Resources in the Central Bering Sea to prevent the overfishing of pollock by boats from China, Japan, Poland and South Korea. At this point, the four countries responsible for the overfishing joined the two coastal countries in signing the Convention and participating in a science-based quota system.
In 1995, the United Nations adopted a protocol enabling coastal countries to create permanent regulatory bodies – so-called “regional fisheries organisations” – to manage fish stocks on the high seas. Crucially, any such organisation must be open, on a non-discriminatory basis, to countries from outside the region.
Today, the Northwest Atlantic Fisheries organisation manages the waters offshore the northeastern United States, eastern Canada and southwestern Greenland, yet includes Japan and South Korea among its members. The South Pacific Regional Fisheries Management Organisation regulates the waters around New Zealand and southwards of Australia, yet it includes the European Union, Cuba, Russia, South Korea, and both China and Taiwan among its members.
The US has been pushing for a similar regional fisheries organisation in the Arctic Ocean. In 2008, Alaskan Senators Ted Stevens and Lisa Murkowski co-sponsored a Senate resolution directing the White House to “negotiate an agreement or agreements for managing migratory, trans-boundary, and straddling fish stocks in the Arctic Ocean and establishing a new international fisheries management organisation or organisations for the region”. The resolution further recommended that this agreement or agreements “conform to the requirements of the  United Nations Fish Stocks Agreement”. It was passed unanimously and signed by President George W Bush.
The effort to establish a regional fisheries organisation in the Arctic Ocean has continued under Barack Obama. In 2009, Commerce Secretary Gary Locke said, “As Arctic sea-ice recedes due to climate change, there is increasing interest in commercial fishing in Arctic waters. We are in a position to plan for sustainable fishing that does not damage the overall health of this fragile ecosystem.”
In 2011, Denmark joined the call for an Arctic Ocean fisheries organisation and recommended that commercial fishing not begin until one is in place. In 2012, more than 2,000 scientists from 67 countries added their voices to the campaign.
Finding political will to conclude a treaty is often difficult. But it is generally more difficult after competing interests arise.
The European Union has also expressed its support for an Arctic Ocean fisheries organisation. If such an organisation is created, and if the EU joins, this will bind all EU members including Spain, Denmark, the Netherlands, Estonia and Poland which all have long-range fishing fleets.
However, the EU does not include the Faroe Islands, Iceland, Norway, or Ukraine, which likewise possess large fleets and are therefore important potential partners in any Arctic Ocean fisheries organisation. Then there are the Asian fishing giants, including China, Japan, South Korea and Thailand, all of which could be expected to join – if they are involved early and treated fairly by the Arctic countries.
Earlier this year, representatives from the five Arctic Ocean coastal countries met in Washington, DC. Sadly, they failed to establish an Arctic Ocean fisheries organisation, though they did agree that no commercial fishing should take place until such an organisation is created. It is unclear what caused the hold-up, though one suspects that either Canada or Russia, or perhaps both, may be dragging their feet. In recent years, neither country has had a stellar record on environmental protection.
It is also unclear how the coastal countries intend to regulate fishing on the Arctic high seas before a fisheries organisation is established – unless they are prepared to violate international law and arrest foreign ships unilaterally, as both Canada and Russia have done in the past.
Finding political will to conclude a treaty is often difficult. But it is generally more difficult after competing interests arise. The time to create an Arctic Ocean fisheries organisation is now, before – not after – commercial fishing begins.
Michael Byers is the author of International Law and the Arctic, published this month by Cambridge University Press.