Climate change and the arctic: Adapting to changes in fisheries stocks and governance regimes

Ecology Law Quarterly

Volumn 37, Issue 3, 2010, Pages 917-977

  Jeffers, Jennifer ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78249233544     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (371)

1. See, e.g., ARCTIC CLIMATE IMPACT ASSESSMENT (2005), available at http://www.acia. uaf.edu/pages/scientific.html; Intergovernmental Panel on Climate Change [IPCC] Home Page, http://www.ipcc.ch (last visited June 17, 2010);
2. WORLD WILDLIFE FUND, ARCTIC CLIMATE IMPACT SOENCE-AN UPDATE SINCE ACIA, 7-8 (2008) [hereinafter ACIA UPDATE], available at http://www.wwf.org.uk/ filelibrary/pdf/arctic-climate-report.pdf.
3. The Arctic Ocean occupies a roughly circular basin and covers an area of about 14,056,000 sq. km. (5,427,000 sq. mi.), slightly less than 1.5 times the size of the United States. The coastline length is 45,389 km (27,085 mi.). Nearly landlocked, it is surrounded by the land masses of Eurasia, North America, Greenland, and several islands. It includes Baffin Bay, Barents Sea, Beaufort Sea, Chukchi Sea, East Siberian Sea, Greenland Sea, Hudson Bay, Hudson Strait, Kara Sea, Laptev Sea, White Sea, and other tributary bodies of water. It is connected to the Pacific Ocean by the Bering Strait and to the Atlantic Ocean through the Greenland Sea and Labrador Sea.
4. See Central Intelligence Agency [CIA], The World Factbook: Arctic Ocean, https://www.cia.gov/library/publications/the-world-factbook/geos/xq.html (last visited May 29, 2010).
5. See Marika Holland et al., Future Abrupt Reductions in the Summer Arctic Sea Ice, 33 GEOPHYSICAL RES. LETTERS L23503 (2006);
6. ACIA UPDATE, supra note 1, at 8.
7. See Clifford Krauss et al., As Polar Ice Turns to Water, Dreams of Treasure Abound, N.Y. TIMES, Oct. 10, 2005, at A1.
8. See generally James McGoodwin, Effects of Climatic Variability on Three Fishing Economies in High-Latitude Regions: Implications for Fbheries Policies, 31 MARINE POL'Y 40, 40-55 (2007);
9. Kathleen Miller & Gordon Munro, Climate and Cooperation: A New Perspective on the Management of Shared Fish Stocks, 19 MARINE RESOURCE ECON. 367, 367-93 (2004).
10. See McGoodwin, supra note 5;
11. Miller & Gordon, supra note 5.
12. The eight Arctic countries are Russia, Norway, Denmark (which governs Greenland), Canada, the United States, Finland, Sweden, and Iceland. Of note, however, is that on November 25, 2008, 76 percent of Greenland voted "in favor of self-rule, in a referendum that paves the way for independence from Denmark and gives Greenland rights to lucrative Arctic resources." Greenland Vote Favors Independence, N.Y. TIMES, Nov. 26, 2008, at A7. The new status took effect June 21, 2009.
13. See id.
14. It is unclear at this time, however, how the new self-rule framework will impact ongoing Arctic resource and jurisdiction discussions.
15. The United Nations Convention on the Law of the Sea (UNCLOS) provides that a nation has sole exploitation rights in its EEZ, which extends 200 nautical miles (nm) from its coast. However, Article 76 of UNCLOS provides that a country can extend this limit to 350 nm if it can prove that its continental shelf extends from the coastline beyond the current limit of 200 nm. United Nations Convention on the Law of the Sea, arts. 76(4)-(6), 77, Dec. 10, 1982, 1833 U.N.T.S. 3 [hereinafter UNCLOS]. The potential to extend EEZ boundaries is currently a major focus of the nations claiming jurisdiction over Arctic territory-both in order to gain previously "unowned" resources, such as oil and gas reserves, as well as to alleviate potential negative economic and political impacts of migrating fish stocks.
16. See, e.g., MICHAEL GLANTZ, CLIMATE VARIABILITY, CLIMATE CHANGE, AND RSHERIES (2005); Allison Perry et al., Climate Change and Distribution Shifts in Marine Fishes, 308 SCIENCE; 1912, 1912-16 (2005);
17. Rögnvaldur Hannesson, Sharing the Herring: Fish Migrations, Strategic Advantage, and Climate Change, in CLIMATE CHANGE AND THE ECONOMICS OF THE WORLD'S FISHERIES: EXAMPLES OF SMALL PELAGIC STOCKS (Rögnvaldur Hannesson et al. eds., 2006);
18. Erling Stenevik & Svein Sundby, Impacts of Climate Change on Commercial Fbh Stocks in Norwegian Waters, 31 MARINE POL'Y 19, 19-31 (2007);
19. William Schrank, The ACIA, Climate Change and Fisheries, 31 MARINE POL'Y5, 5-18 (2007).
20. See discussion of the Norwegian spring spawning herring case study infra Part III.B;
21. see abo Brian MacKenzie, Impact of 21st Century Climate Change on the Baltic Sea Fish Community And Fisheries, 13 GLOBAL CHANGE BIOLOGY 1348 (2007);
22. Gregory Beaugrand et al., Plankton Effect on Cod Recruitment in the North Sea, 426 NATURE 661 (2004);
23. Francisco Chavez et al., From Anchovies to Sardines and Back: Multidecadal Changes in the Pacific Ocean, 299 SCIENCE 217 (2003).
24. See ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 589-90, 636-40, ch. 13.
25. Although often considered in context of oil reserves, this idea relates to the "paradox of plenty" or "resource curse" theory that "resource-exporting governments respond perversely or ineffectively" to abundant natural resource wealth, resulting in weakened state institutions and political conflicts.
26. See generally Michael Ross, The Political Economy of the Resource Curse, 51 WORLD POL. 297, 321 (1999).
27. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 16. For example, Norway is the world's largest fish exporter.
28. Id.
29. See Rosemary Rayfuse, Melting Moments: The Future of Polar Oceans Governance in a Warming World, 16 REOEL 196, 197 (2007).
30. Arctic Council, About the Arctic Council (Oct. 22, 2007), http://arctic-council.org/article/about.
31. See CIA, supra note 2.
32. See id.
33. Agreement on the Conservation of Polar Bears, Nov. 19, 1973, 27 U.S.T. 3918, available at http://sedac.ciesin.org/entri/texts/polar.bears.1973.html.
34. The Arctic is home to four million people, including many indigenous tribes and various languages.
35. The Ottawa Declaration was signed in Ottawa by representatives of the governments of Canada, Denmark, Finland, Iceland, Norway, Russian Federation, Sweden, and the United States. Declaration on the Establishment of the Arctic Council, Sept. 19, 1996, 35 I.L.M. 1382. For more information about the Arctic Council and the Ottawa Declaration,
36. see Arctic Council, supra note 15.
37. Arctic Environmental Protection Strategy, June 14, 1991, 30 I.L.M. 1624, available at http://arctic-council.org/filearchive/artic-envionment.pdf.
38. See Arctic Council, supra note 15.
39. Id.
40. See id.
41. Inuit Circumpolar Council (Canada), Arctic Council, http://www. inuitcircumpolar.com/ index.php?ID=160&Lang=En (last visited June 18, 2010). Non-governmental observers include: International Arctic Science Committee (IASC), Nordic Council, Northern Forum, United Nations Economic Commission for Europe (UN-ECE), United Nations Environment Programme (UNEP), Standing Committee of Parliamentarians of the Arctic Region, World Wide Fund for Nature, and the International Union for Circumpolar Health.
42. See Arctic Council, Non-governmental organizations, http://arctic- council.org/section/observers-non-governmental (last visited June 18, 2010). Ad hoc observers also attend council meetings.
43. See Inuit Circumpolar Council (Canada), Arctic Council, http://www.inuitcircumpolar.com/index.php? ID=160&Lang=En (last visited June 18, 2010).
44. The term "soft law" has numerous meanings, but can be best defined as law that (1) is not binding; (2) consists of general norms and principles, not rules; and (3) is not readily enforceable through binding dispute resolution.
45. See generally Alan Boyle, Some Reflections on the Relationship of Treaties and Soft Law, 48 INT'L & COMP. L.Q. 901, 901-02 (1999).
46. Rayfuse, supra note 14, at 198.
47. High seas areas are also referred to as part of the global commons.
48. UNCLOS, supra note 8.
49. Other international agreements relevant to the Arctic include the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), Sept. 22, 1992, 932 U.N.T.S. 2.
50. See OSPAR Commission, OSPAR Convention, http://www.ospar.org/content/ content.asp?menu=00340108070000-000000-000000 (last visited May 30, 2010). OSPAR applies to the Arctic waters of the northeast Atlantic but is not an Arctic-specific treaty. The International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL), also applies to shipping activities throughout the Arctic.
51. International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 12 I.L.M. 1319, available at http://sedac.ciesin.columbia.edu/entri/ texts/pollution.from.ships.1973. html; Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Feb. 16, 1978, 17 I.L.M. 546.
52. International Seabed Authority, About Use, http://www.isa.org.jm/en/about (last visited May 12, 2010).
53. Rayfuse, supra note 14, at 204-05.
54. See id. at 205-06.
55. Regional maritime delimitation conflicts include uncertainty over the status of the 1990 agreement determining the boundary between Russia and the United States in the Arctic Ocean north of the Bering Strait; disputes between Russia and Norway in the Barents Sea over sectoral boundary delimitations and ownership of fish and oil and gas resources; Russia's rejection of Norway's claim to any EEZ and continental shelf around the islands of Spitsbergen; and conflict between Canada and Denmark over Hans Island and between Canada and the United States over delimitation in the Beaufort Sea.
56. See id.
57. See UNCLOS, supra note 8, art. 76;
58. see aslo Commission on the Limits of the Continental Shelf, Continental Shelf, http://www.un.org/Depts/los/clcs-new/continental-shelf-description. htm#definition (last visited May 29, 2010).
59. UNCLOS legally defines a state's "continental shelf as "the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines."
60. UNCLOS, supra note 8, art. 76(1).
61. "Geologically, the seabed that slopes away from the coast typically consists of, first, a gradual slope (the continental shelf proper), then a steep slope (the continental slope), and then a more gradual slope leading to the deep seabed floor. These three areas are collectively known as the continental margin."
62. U.S. Reaction to Russian Continental Shelf Claim, 96 AM. J. INT'L L. 969, 969 (2002).
63. If the continental margin extends beyond 200 nm from the shore, a State's establishment of the outer edge of the continental shelf may not exceed either 350 nm from the baselines or 100 nm beyond the 2,500 meter isobath (a line connecting the depth of 2,500 meters).
64. See UNCLOS, supra note 8, art. 76(5).
65. Under Article 76 of UNCLOS, after a state has become party to the Convention, it has a period of ten years to submit océanographie information justifying the extension of its continental shelf boundaries beyond 200 nm to the Commission on the Limits of the Continental Shelf (CLCS).
66. See id. annex II, art. 4.
67. The CLCS reviews the information submitted by the state and makes recommendations to the state regarding the delimitation of the continental shelf. See Commission on the Limits of the Continental Shelf, Purpose, Functions and Sessions, http://www.un.org/Depts/los/clcs-new/commission-purpose.htm (last visited June 30, 2010). Provided the state follows those recommendations in establishing the outer limits of its continental shelf, the recommendations become "final and binding."
68. UNCLOS, supra note 8, art. 76(8). In 1996, the five Arctic coastal states convened a workshop in Russia to discuss technical and scientific issues arising from the submission of continental shelf claims beyond 200 nm.
69. See IOC/IASC/IHO EDITORIAL BOARD FOR THE INTERNATIONAL BATHYMETRIC CHART OF THE ARCTIC OCEAN, THE CONTINENTAL SHELF BEYOND 200 NAUTICAL MILES IN THE ARCTIC OCEAN: SUMMARY REPORT app. c (1998), available at http://www.ngdc.noaa. gov/mgg/ bathymetry/arctic/copenappc.html. "It was recognized that all five coastal States have valid grounds for developing continental shelf claims beyond their 200 [nm] limits, and that the possibility, if not the likelihood, existed of overlapping claims between neighbouring states."
70. GlobalSecurity.org, Arctic Ocean, http://www.globalsecurity.org/military/ world/war/arctic.htm (last visited May 12, 2010).
71. UNCLOS, supra note 8, art. 77(1).
72. See United Nations, Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, Pursuant to Article 76, Paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982, http://www.im.org/Depts/los/clcs-new/commssion- submissions.htm (last visited July 18, 2010).
73. See United Nations, Commission on the Limits of the Continental Shelf (CLCS): Outer Limits of the Continental Shelf: Submission by the Russian Federation, http://www.un.org/Depts/los/clcs-new/submissions-files/submission- rus.htm (last visited July 18, 2010).
74. See United Nations, supra note 36.
75. See id.
76. See Fisheries and Oceans Canada, Canada's Submission to the Commission on the Limits of the Continental Shelf Under the United Nations Convention on the Law of the Sea (the "Continental Shelf Program"), http://www.dfo-mpo. gc.ca/ae-ve/evaluations/09-10/6b060-eng.htm#chl (last visited June 18, 2010).
77. See Rayfuse, supra note 14, at 207.
78. See id.
79. Agreement for the Implementation of the Provisions of the United Nations on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, 2167 U.N.T.S. 3, available at http://www.un.org/Depts/los/convention- agreements/convention-overview-fish-stocks.htm.
80. The UN defines "straddling" fish stocks as "stocks of fish such as poUock, which migrate between, or occur in both, the economic exclusive zone (EEZ) of one or more States and the high seas. Thus, the definition also includes highly migratory fish stocks." UNEP, UN Atlas of the Oceans, Straddling Stocks, http://www.oceansatlas.org/servlet/CDSServlet?status- ND0xOTk0MSY2PWVuJjMzPSomMzc9a29z (last visited June 27, 2010).
81. ROB HUEBERT & BROOKS YEAGER, A NEW SEA: THE NEED FOR A COOPERATIVE FRAMEWORK FOR MANAGEMENT AND CONSERVATION OF THE ARCTIC MARINE ENVIRONMENT 40 (2008), available at http://assets.panda.org/downloads/a-new-sea-jan08-final- 11jan08.pdf.
82. See North East Atlantic Fisheries Commission, Managing Fisheries in the NEAFC Regulatory Area, http://www.neafc.org/managing-fisheries (last visited May 12, 2010).
83. See North Atlantic Fisheries Organization, About NAFO, http://www.nafo.int/about/frames/about.html (last visited May 12, 2010).
84. See North Pacific Fisheries Management Council, About the Council, http://www. fakr.noaa.gov/NPFMC/about.htm (last visited May 12, 2010).
85. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1.
86. The ACIA was commissioned by the Arctic Council in 2000 and prepared by two of its working groups, the Arctic Monitoring and Assessment Program and the Conservation of Arctic Flora and Fauna, and the International Arctic Science Committee (IASC).
87. See id.;
88. ACIA EXECUTIVE SUMMARY, infra note 53; ACIA, ARCTIC CLIMATE IMPACT ASSESSMENT, POLICY DOCUMENT (2004). The ACIA Synthesis Report, Scientific Report, and Policy Report can be found at http://www.acia.uaf.edu.
89. The IASC is a non-governmental organization that "facilitates cooperation in all aspects of arctic research in all countries engaged in arctic research and in all areas of the arctic region." ACIA, Arctic Climate Impact Assessment, http://www.acia.uaf.edu/ (last visited July 4, 2010);
90. see International Arctic Science Committee, Arctic Portal, http://web.arcticportal.org/iasc/ (last visited June 30, 2010).
91. ACIA, Arctic Climate Impact Assessment, http://www.acia.uaf.edu/ (last visited July 4, 2010).
92. AMAP, AMAP ASSESSMENT REPORT: ARCTIC POLLUTION ISSUES (1998) http://www.amap.no/documents/index.cfm?dirsub=/ AMAP%20Assessment%20Report%20%20Arctic%20Pollution%20Issues. AMAP is one of the Arctic Council's working groups, and is responsible for monitoring the levels of, and assessing the effects of, anthropogenic pollutants in all aspects of the Arctic environment, including humans.
93. See AMAP, Welcome to AMAP-The Arctic Monitoring and Assessment Programme, http://www.amap.no (last visited May 12, 2010).
94. The ACIA was published between the third and fourth IPCC assessment and contributed to the fourth assessment.
95. ARCTIC CUMATE IMPACT ASSESSMENT, supra note 1, at 454.
96. Id. at 2. For a detailed map of how the ACIA demarcated the regions,
97. see ACIA, IMPACTS OF A WARMING ARCTIC: ARCTIC CLIMATE IMPACT ASSESSMENT: EXECUTIVE SUMMARY 18-19 (2004) [hereinafter ACIA EXECUTIVE SUMMARY], available at http://amap.no/acia.
98. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 2.
99. See id. at 695-709 for full details of the region.
100. Id. at 695.
101. See id. at 701.
102. See id.
103. See id. at 696 (citing Bogstad et al.,
104. MULTSPEC-A Multi-Species Model for Fish and Marine Mammab in the Barents Sea, 22 J. N. ATLANTIC FISHERY Sa. 317 (1997).
105. See id.
106. See id.
107. See id. at 704.
108. See id. at 695.
109. As defined above, the term "high seas" refers to those areas of the ocean not included in the territorial sea or internal waters of a State, and located outside of any one country's sovereignty.
110. See supra Part I.A.
111. See ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 707.
112. Id. at 700.
113. See id. at 701.
114. The term "landed abroad" generally refers to fish caught by a ship registered to a particular country and then brought to shore and sold in a country different than that to which the ship is registered.
115. See id. at 701.
116. See id.
117. See id. at 709-31 for full details of the region.
118. Greenland is considered part of Denmark with a "home rule" government, but see supra note 7.
119. See ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 711-12.
120. See id. at 709-10.
121. See id.
122. See id. at 710.
123. See id. at 723-24.
124. See id. at 724.
125. Id.
126. See id.
127. See id.
128. See id.
129. Id.
130. For instance, the Central North Atlantic experienced warming in the 1920s and 1930s, cooling in the 1940s and 1950s, sharp cooling in the 1960s, and warming now again.
131. See id. at 730-31.
132. See id. at 731-46 for full details of the region.
133. See id. at 731.
134. See id. at 732.
135. See id.
136. See id. (changes in the physical environment may have also played a role in fish stock alterations).
137. See id. at 733-35.
138. See id. at 731.
139. See id. at 742.
140. See id. at 741.
141. Id. at 732.
142. See id. at 746-68 for full details of the region.
143. See id. at 746-47.
144. See id. at 747-52.
145. 9a See id. at 746.
146. See id. at 762-63. Note, however, that "[ejconomic value data for the Russian Far East are difficult to locate" and as such, the figure of US$3 billion is based on press reports.
147. Id.
148. See id. at 765.
149. See id. at 746.
150. See id. at 747. This is also spelled "Donut" hole, depending on the source.
151. See id.
152. See id. at 763.
153. See id.
154. See id. at 747.
155. See id. at 763-64.
156. See id. at 766.
157. See id. at 693-94.
158. See Schrank, supra note 9. There is another major type of uncertainty, which centers on the causes (natural or anthropogenic) of past changes of fish populations. This factor in and of itself is not controlling in the discussion at hand, however. Governance regimes and the fishing industry must adapt to changes exacerbated or caused by climate change regardless of what specifically caused the changes.
159. MacKenzie, supra note 10, at 1360.
160. See generally Schrank, supra note 9;
161. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1.
162. Kathleen Miller, Climate Variability and Tropical Tuna: Management Challenges for Highly Migratory Fish Stocks, 31 MARINE POL'Y 56, 66 (2007).
163. See explanation of thermohalines infra note 130.
164. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 770.
165. Olav Schram Stokke, Lee G. Anderson & Natalia Mirovitskaya, The Barents Sea Fisheries, in INTERNATIONAL ENVIRONMENTAL REGIMES: CAUSAL CONNECTIONS AND BEHAVIORAL MECHANSISMS 114 (Oran Young ed., 1999).
166. The information in this geographic analysis is cited from, and can be found in much greater detail at, the following two sources: Stenevik & Sundby, supra note 9, at 19-31;
167. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 695-709.
168. McGoodwin, supra note 5, at 41.
169. See IPCC, Organization, http://ipcc.ch/organization/organization.htm (last visited May 29, 2010).
170. IPCC, The Role of the IPCC and Key Elements of the IPCC Assessment Process, http://www.ipcc.ch/pdf/press/role-ipcc-key-elements-assessmentprocess- 04022010.pdf (last visited June 30, 2010).
171. The four IPCC Assessment Reports were released in 1990, 1995, 2001 and 2007. IPCC, Reports, http://www.ipcc.ch/publications-and-data/publications-and- data-reports.htm (last visited May 12, 2010).
172. McGoodwin, supra note 5, at 42 (citing IPCC 2001 working group report conclusions).
173. See ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1. The ACIA report was developed at the Fourth Arctic Council Ministerial Meeting in Reykjavik, Iceland on November 24, 2004. Arctic Council, Fourth Arctic Council Ministerial Meeting, http://arctic-council.org/meeting/fourth-arctic-council-ministerial- meeting%2C-reykjavik%2C-iceland%2C-november-24%2C-2004 (last visited May 12, 2010).
174. See McGoodwin, supra note 5, at 42. likewise, the Center for Global Change and Arctic System Research (CGCASR) at the University of Alaska reported in 2001 that "[g]lobal climate models indicate that global warming ... will be most acute in polar regions, most likely resulting in changes in the extent of sea ice, increased thawing of permafrost, and melting of polar ice masses, with profound social impacts around the globe." CGCASR, The Role of the Arctic, http://www.cgc.uaf.edu (last visited May 12, 2010).
175. U.S. National Oceanographic and Atmospheric Administration, Climate Variability and Marine Fisheries, http://www.pfeg-noaa.gov/research/ climatemarine/cmffish/cmffishery.html (last visited June 30, 2010).
176. Id.
177. See id.
178. See id.
179. McGoodwin, supra note 5, at 42-43.
180. Schrank, supra note 9, at 9.
181. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 455.
182. See Rögnvaldur Hannesson, Editorial, Introduction, 31 MARINE POL'Y 1, 1 (2007).
183. "Thermohaline circulation is initiated when cooling and freezing of sea water increase the density of surface waters to such an extent that they sink and are exchanged with waters at greater depth." ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 461
184. (citing Broecker et al., Does the Ocean-Atmosphere System Have More Than One Stable Mode of Operation?, 315 NATURE 21, 21-26 (1985)).
185. ACIA EXECUTIVE SUMMARY, supra note 54, at 18.
186. See MacKenzie, supra note 10, at 1348.
187. Hannesson, supra note 130, at 1. This Note does not include aquaculture and capture fisheries in its assessment; rather it pertains specifically to wild fish populations.
188. Schrank, supra note 9, at 12.
189. See ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, passim.
190. Stenevik & Sundby, supra note 9, at 24.
191. Id.
192. See, e.g., id. at 23-24.
193. See generally ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, ch. 13.
194. See, e.g., Stenevik & Sundby, supra note 9, at 20-22.
195. See generally ACIA ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, ch. 13.
196. See generally ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, ch. 4.
197. See id. at 505.
198. Scott Borgerson, Arctic Meltdown: The Economic and Security Implications of Global Warming, FOREIGN AFF., Mar.-Apr. 2008, at 63, 63.
199. See id;
200. National Snow and Ice Data Center, http://nsidc.org/news/press/2007- seaiceminimum/20071001-pressrelease.html (last visited June 30, 2010). The monthly average sea ice extent for September is commonly used to compare the current year's minimum against the long-term monthly average.
201. See id.
202. See ARCTIC CUMATE IMPACT ASSESSMENT, supra note 1, at 997, 1005. However, [t]he decreasing trend in extent of summer arctic sea ice has massively accelerated since publication of [the] ACIA, with the two lowest years on record occurring in 2005 and 2007. . . . [T]he recent acceleration in sea-ice retreat is not captured by most models. Many scientists now speculate that a 'tipping point' could soon be reached, in which multiple positive feedback effects will send sea ice into a low from which it cannot recover-a process which is inadequately simulated in models. After the 2007 low in sea ice extent, scientists at the National Snow and Ice Data Center (NSIDC) speculated that an ice-free Arctic Ocean in summer could occur by 2030. And in a recent synthesis of model results with observations, Whelan et al. (2007) predicted that there will be no summer arctic sea ice by 2013.
203. World Wildlife Fund, ACIA UPDATE, supra note 1, at 7-8.
204. See ARCTIC CUMATE IMPACT ASSESSMENT, supra note 1, at 461-65.
205. Id. at 461
206. (citing Broecker et al., Does the Ocean-Atmosphere System Have More Than One Stable Mode of Operation?, 315 NATURE 21, 21-26 (1985)).
207. See id.
208. Bob Dickson & Stephen Dye, Interrogating the Great Ocean Conveyor, OCEANUS, Sept. 6, 2007, http://www.whoi.edu/oceanus/viewArticle.do?id=20727 ("8.5 million cubic meters (225 million U.S. gallons) of warm, salty Atlantic water passes north across the GreenlandScotland Ridge per second .... As dense water returns south and flows over the ridge, its salinity has decreased from about 35.25 to 34.88 salinity units, and its temperature has dropped from 8.5°C (47°F) to 2°C (35.6°F) or less. Not surprisingly, the ocean's surrendering of that amount of heat to the atmosphere has more than local climatic importance.").
209. See UNITED NATIONS ENVIRONMENT PROGRAMME [UNEP], IN DEAD WATER: MERGING OF CLIMATE CHANGE WITH POLLUTION, OVER-HARVEST, AND INFESTATIONS IN THE WORLD'S FISHING GROUNDS 9, 38-41 (Christian Nellemann et al. eds., 2008).
210. See generally Schrank, supra note 9.
211. Schrank, supra note 9, at 7-8;
212. see Harry Bryden et al., Slowing of the Atlantic Meridional Overturning Circulation at 25°N, 438 NATURE 655, 655-57 (2005).
213. See UNEP, supra note 143, at 40.
214. See generally Schrank, supra note 9.
215. Group on Earth Observations, Continuous Plankton Recorder (CPR) Survey, http://www.earthobservations.com/documents/sbas/ec/85- The%20Continuous%20Plankton%20Recorder%20survey.pdf (last visited July 11, 2010).
216. Gregory Beaugrand et al., Biodiversity and Climate Reorganization of North Atlantic Marine Copepod, 296 SCIENCE 1692, 1692-94 (2002). Even more astonishing is the fact that in 1998 a planktonic plant was recorded in the Northwest Atlantic for the first time in 800,000 years, due to a transfer across the top of Canada facilitated by high rates of melting ice.
217. See UNEP, supra note 149, at 38 fig.9.
218. Perry, supra note 9, at 1912 (citations omitted).
219. See id.
220. UNEP, supra note 143, at 38 (predicting temperature change on an annualized basis, averaged over the extent of the area).
221. See Perry, supra note 9, at 1912.
222. See id. at 1912-13.
223. See id.
224. Id. at 1913.
225. Id. at 1914.
226. Id.
227. See generally Samuel Herrick Jr. et al., Management Application of an Empirical Model of Sardine-Climate Regime Shifts, 31 MARINE POL'Y 71 (2007).
228. See id. at 72-73.
229. See id. at 77-78.
230. See id.
231. Id. at 77.
232. Id. at 71.
233. See Schrank, supra note 9, at 12.
234. See id See generally ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 692-772.
235. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 692.
236. See id. at 694.
237. Id at 692.
238. See ACIA EXECUTIVE SUMMARY, supra note 54, at 18-19.
239. See Northeast Atlantic regional example, supra Part II.B.
240. Primary production is traditionally known as productivity of autotrophic organisms (primarily algae and phytoplankton in the marine ecosystem), whereas secondary production is the productivity of heterotrophic organisms (herbivores, carnivores and detritivores).
241. See ARCTIC CUMATE IMPACT ASSESSMENT, supra note 1, at 719.
242. See id at 727.
243. See id. at 731.
244. See id.
245. See id. at 740.
246. Id. at 999.
247. See ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 698.
248. See id.
249. See id.
250. See id.
251. See id.
252. See id.
253. See id.
254. See id.
255. Miller, supra note 111, at 59.
256. ACIA UPDATE, supra note 1, at 9.
257. See ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 693-94.
258. See generally Schrank, supra note 9.
259. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 729.
260. See id. at 770.
261. See id. at 770-71.
262. Schrank, supra note 9, at 14.
263. See MacKenzie, supra note 10, at 1361.
264. Hannesson, supra note 130, at 2.
265. Id.
266. See id.
267. See id. at 2-3.
268. See McGoodwin, supra note 5, at 40.
269. See ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 771.
270. Schrank, supra note 9, at 17.
271. See MacKenzie, supra note 10, at 1362.
272. MacKenzie, supra note 10, at 1357.
273. Borgerson, supra note 142, at 71.
274. Id at 72.
275. The purpose of UNCLOS is to establish rules to govern all uses of the ocean and its resources. As UNCLOS currently stands, it is widely accepted under international law that a coastal state has jurisdiction over marine biodiversity found within its internal waters and territorial seas, and often over biological diversity in archipelagic waters. See YOSHIFUMI TANAKA, A DUAL APPROACH TO OCEAN GOVERNANCE: THE CASES OF ZONAL AND INTEGRATED MANAGEMENT IN INTERNATIONAL LAW OF THE SEA 133 (2008).
276. In areas of high seas, UNCLOS provides a framework that allows all States to engage in freedom of navigation, overflight, laying of submarine pipelines and cables, fishing, and scientific research. Regulation of these freedoms is subject to international agreement. See UNCLOS, supra note 8.
277. However, since no State is allowed to claim sovereignty over these areas, conflicts often arise, and enforcement and controlled fishing activities become difficult. Rayfuse, supra note 14, at 209. High seas are prone to "over-exploitation, inadequate exercise of flag State responsibilities, and lack of compliance with and enforcement of internationally agreed measures and conflict between different ocean uses."
278. Id.
279. See David Balton, The Bering Sea Doughnut Hole Convention: Regional Solution, Global Implications, in GOVERNING HIGH SEAS FISHERIES 144 (Olav Schram Stokke ed., 2001).
280. See id at 144-46.
281. See id. at 147.
282. See id.
283. See, e.g., Rayfuse, supra note 14, at 212-13.
284. See Alexei Roginko & Matthew LaMourie, Emerging Marine Environmental Protection Strategies for the Arctic, 16 MARINE POL'Y 259, 265 (1992).
285. See Convention for the Protection of the Marine Environment of the North-East Atlantic, Sept. 22, 1992, 32 I.L.M. 1069 (1993), available at http://www.ospar.org/content/ content.asp?menu=00340108070000-000000-000000.
286. North East Atlantic Fisheries Convention, Jan. 24, 1959, 486 U.N.T.S. 158, available at http://ec.europa.eu/world/agreements/ prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect= true&treatyId=503.
287. Convention for the Conservation of Salmon in the North Atlantic, opened for signature Mar. 2, 1982, 1338 U.N.T.S. 33, available at http://www.nasco.int/ convention.html.
288. Agreement Concerning Certain Aspects of Co-operation in the Area of Fisheries, Nor.Ice.-Russ., May 15, 1999, 2070 U.N.T.S. 203, available at http://eelink.net/~asilwildlife/RussIceNorFish.html.
289. See Rosemary Rayfuse, Protecting Marine Biodiversity in Polar Areas Beyond National Jurbdiction, 17 REOEL 3, 7 (2008).
290. See Non-Northern Nations Get More Interested in Arctic Council, CBC NEWS, April 11, 2008, http://www.cbc.ca/canada/north/story/2008/04/11/arctic-council. html.
291. Roginko & LaMourie, supra note 217, at 266.
292. See Rayfuse, supra note 222, at 7.
293. Arctic Council, supra note 15.
294. These other groups include the Nordic Council, the Saamai Council, the Inuit Circumpolar Conference, the International Arctic Science Committee (IASC), the Northern Forum, the North Atlantic Marine Mammal Commission (NAMMCO), the Council of the Barents Euro-Arctic Region (BEAR), and the Standing Committee of the Parliamentarians of the Arctic Region (SCPAR). See LINDA NOWLAN, IUCN ENVIRONMENTAL LAW PROGRAM, IUCN ENVIRONMENTAL POLICY AND LAW PAPER NO. 44, ARCTIC LEGAL REGIME FOR ENVIRONMENTAL PROTECTION 6-7 (2001).
295. Id. at 9.
296. See id. at 16.
297. See id.
298. The Council also serves as a Regional Seas partner with the United Nations Environment Program (UNEP) on a program entitled "Protection of the Arctic Marine Environment (PAME)" with the mandate "to address policy and non-emergency pollution prevention and control measures related to the protection of the Arctic marine environment from both land and sea-based activities." Arctic Council, PAME, http://arctic-council.org/working-group/ pame (last visited June 28, 2010).
299. See NOWLAN, supra note 227, at 16.
300. For instance, the Council drafted a statement detailing regional Arctic concerns that was key to discussions at the Stockholm Convention on Persistent Organic Pollutants (POPs), which resulted in the drafting of the POPs Treaty. See id.
301. Id. at 15.
302. Id. (internal quotation marks omitted)
303. (citing David VanderZwaag, International Commons- The Arctic, in THE YEAR IN REVIEW 266-73 (1998)).
304. Id.
305. Id.
306. Oran Young, The Structure of Arctic Cooperation: Solving Problems/Seizing Opportunities, Paper presented at the Conference of the Parliamentarians of the Arctic Region 14, Aug. 27-29, 2000, available at http://www.arcticparl.org/- res/site/File/static/conf4-sac.pdf.
307. Miller, supra note 111, at 56.
308. Id.
309. See McGoodwin, supra note 5, at 53.
310. See Oran R. Young, Political Leadership and Regime Formation: On the Development of Institutions in International Society, 45 INT'L ORG. 281, 302 (1991). It is important to remember is that although leadership is necessary for a successful regime, it is not sufficient by itself.
311. See generally id. (defining and discussing three leadership forms in depth, of which the two most relevant to this Note and future Arctic governance regimes are structural and intellectual leadership).
312. Id. at 288.
313. Id.
314. Id. at 298.
315. See id.
316. Id. at 299.
317. See id.
318. See id.
319. Focusing solely on MSY leads to fish stock estimation problems, unanticipated interactions between species, incorrect assumptions of surplus production, and a total lack of best-available science integration. See, e.g., Louis Botsford et al., The Management of Fisheries and Marine Ecosystems, 277 SCIENCE 509 (1997);
320. Colin Clark, The Economics of Overexploitation, 181 SCIENCE 630 (1973).
321. Miller, supra note 111, at 68.
322. Id. at 67 (emphasis omitted).
323. Although its definition changes somewhat depending on the context, the precautionary principle is generally defined as the conservation of resources and management of risk when scientific knowledge is uncertain. See SIDNEY J. HOLT & LEE M. TALBOT, NEW PRINCIPLES FOR THE CONSERVATION OF WILD LIVING RESOURCES, 59 WILDLIFE MONOGRAPHS 15-16 (1978). ("Management decisions should include a safety factor to allow for the facts that knowledge is limited and institutions are imperfect .... The magnitude of the safety factor should be proportional to the risk."). The safety factor encompasses anticipation and prevention and should be utilized to "prevent harm, not measure and manage it."
324. Id.
325. Id at 23.
326. Id. at 23.
327. Oran Young, Institutional Linkages in International Society: Polar Perspectives, 2 GLOBAL GOVERNANCE 1, 3 (1996).
328. Id. at 5.
329. See id.
330. See id. at 7.
331. Id.
332. See id.
333. Id. at 9-10.
334. Id. at 10.
335. Id. at 11.
336. Id. at 8.
337. Stokke, Anderson & Mirovitskaya, supra note 114, at 101.
338. Id. at 252.
339. NORTH PACIFIC FISHERY MANAGEMENT COUNOL, FISHERY MANAGEMENT PLAN FOR FISH RESOURCES OF THE ARCTIC MANAGEMENT AREA (2009), available at http://www.fakr.noaa.gov/npfmc/fmp/arctic/ArcticFMP.pdf). The U.S. Secretary of Commerce approved the FMP on Aug. 17, 2009.
340. See id. at ES-1.
341. The FMP states: Pursuant to Title II of the Magnuson-Stevens Act, there is no allowable level of foreign fishing for the fisheries covered by this FMP. While fishing vessels and fish processors of the U.S. have the capacity to harvest and process up to the level of optimum yield of all species subject to other Council FMPs, Council policy as articulated in this Arctic FMP is to prohibit commercial harvests of all fish resources of the Arctic Management Area until sufficient information is available to support the sustainable management of a commercial fishery.
342. Id. at ES-2. NOAA refers to the FMP as the Arctic Fishery Management Plan.
343. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 743.
344. Id.
345. HUEBERT & YEAGER, supra note 44, at 3.
346. Rayfuse, supra note 14, at 214.
347. Id. at 215
348. (referring to Oran Young, Arctic Governance: Preparing for the Next Phase, Paper presented at the Arctic Parliamentary Conference (Aug. 11-13, 2002), available at http://www.arcticparl.org/reports.aspx?id=2989&p=3);
349. see LINDA NOWLAN, supra note 227 (proposing a new regional environmental protection treaty, which was later rejected);
350. Timo Koivurova, Environmental Protection in the Arctic and Antarctic: Can the Polar Regimes Learn From Each Other?, 33 INT'L J. LEGAL INFO. 204, 217-18 (2005);
351. see also David VanderZwaag, Rob Huebert & Stacey Ferrara, The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters, in THE LAW OF THE SEA AND POLAR MARITIME DEUMITATION AND JURISDICTION 225 (ALEX G. OUDE ELFERINK & DONALD R. ROTHWELL eds., 2001).
352. HUEBERT & YEAGER, supra note 44, at 29.
353. See id. at 33.
354. See Rayfuse, supra note 14, at 215.
355. See id.
356. HUEBERT & YEAGER, supra note 44, at 29.
357. See Officials Meet in Ilulissat, SIKU NEWS, May 28, 2008, http://www.sikunews.com/art.html?artid=4943&catid=6.
358. Ilulissat Declaration, May 27-28, 2008, available at http://www.oceanlaw. org/downloads/arctic/Ilulissat-Declaration.pdf.
359. Although the Ilulissat Declaration recognizes the fact that other states will participate in the governance of the region under the International Maritime Organization (IMO), Arctic Council, and other international fora, the other three Arctic nations-Finland, Sweden and Iceland-were pointedly not invited to the meeting; nor were environmental groups and Inuit people. See A Carve-up Deal?, SIKU NEWS, May 28, 2008, http://www.sikunews.com/art.html?artid= 4946&catid=2. Critics worry that such exclusions may "pave[] the way for a land grab by countries who have claims to the continental shelf at the pole."
360. Id.
361. HUEBERT & YEAGER, supra note 44, at 23.
362. Arctic Council, supra note 15.
363. Rayfuse, supra note 14, at 213.
364. See Arctic Council, Working Groups, http://arctic-council.org/section/ working-groups (last visited May 26, 2010).
365. See HUEBERT & YEAGER, supra note 44, at 30.
366. See generally Food & Agriculture Organization of the United Nations, Code of Conduct for Responsible Fisheries (1995), available at ftp://ftp.fao.org/docrep/ fao/005/v9878e/v9878e00.pdf;
367. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature Dec. 4, 1995, 34 I.L.M. 1542, available at http://www.un.org/Depts/los/convention-agreements/convention-overview-fish- stocks.htm [hereinafter UN Fish Stocks Agreement].
368. See UN Fish Stocks Agreement, supra note 285.
369. Rayfuse, supra note 14, at 215.
370. HUEBERT & YEAGER, supra note 44, at 31.
371. ARCTIC CLIMATE IMPACT ASSESSMENT, supra note 1, at 1019.