1 Introduction
The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA)1 is a unique treaty that deals with a unique scenario: in an area of the high seas where no fishing has ever taken place, it determines the conditions under which future fishing may commence. The CAOFA’s qualified and temporary abstention from high seas fishing2 is a fundamental restriction of the freedom of high seas fishing enshrined in Article 116 of the United Nations Convention on the Law of the Sea (UNCLOS)3 and has never been incorporated in a regional fisheries treaty or adopted by a regional fisheries body before. The default in the CAOFA is therefore that fishing is prohibited unless it is permitted. Only the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (CBS Convention)4 is somewhat comparable with the CAOFA, with the key difference that the former’s prohibition of high seas fishing was adopted following the collapse of the Central Bering Sea pollock (Gadus chalcogrammus) stock. So far, there has been no recommencement of fishing for pollock in the high seas portion of the Bering Sea, as the substantive and procedural conditions for this have not been satisfied.5
Based on the list of questions drawn up to guide this volume as a whole (see the Annex to chapter 1), this chapter seeks to answer two main research
The terminology, typology and definitions used in this chapter are in line with those adopted in chapter 2. The non-use measure examined in this chapter is the qualified, temporary and treaty-based abstention from fishing in the high seas portion of the central Arctic Ocean (CAO) laid down in the CAOFA. As the abstention relates exclusively to the human activity of marine capture fishing, it is a single-sectoral non-use measure. Fishing is aimed at the extraction of marine living resources and, as these are renewable resources, can be a sustainable activity. Besides the risk of over-exploitation and possible collapse of target fish stocks, however, fishing can also impact non-target species due to by-catch or predator-prey relationships (ie associated and dependent species) or other ecosystem components (eg bottom fishing impacts on benthic habitats). The abstention of all fishing implies an abstention from the use of all fishing gears.
2 An Introduction to the CAOFA
The negotiation of the CAOFA was a stand-alone process that took place outside the scope of the Arctic Council or another existing intergovernmental body. It can be regarded as having consisted of two main phases. The first took place between the five CAO coastal States (Canada, Denmark in respect of Greenland,6 Norway, the Russian Federation and the United States). These States are also known as the ‘Arctic Five’ and the negotiations between them as the ‘Arctic Five process’ or the ‘coastal States phase’ of the CAOFA negotiations.
In conjunction with these two phases of negotiations, five scientific meetings were convened between 2011–2017 in order to support the negotiations with scientific information and prepare for the CAOFA’s implementation.11 The work of these so-called “Meetings of Scientific Experts on Fish Stocks in the Central Arctic Ocean” (FiSCAO Meetings) was continued after the adoption of the CAOFA by the Provisional Scientific Coordination Group (PSCG), which had three meetings between 2020 and 2022.
The CAOFA entered into force on 25 June 2021 following the formal adherence of all of the Five-plus-Five.12 The CAOFA does not establish an intergovernmental organisation or a secretariat. Its principal decision-making body is the Conference of the Parties (COP), which convenes through in-person or virtual meetings.13 Whereas COP decisions on questions of procedure require a simple majority, questions of substance require consensus (see further subsection 4.4).14 The first three in-person COPs were held in November 2022, June 2023 and June 2024 in Incheon, South Korea. The COP is supported by the Scientific Coordinating Group (SCG) – which is the successor of the PSCG – whose
The geographical scope of the CAOFA is limited to the “high seas portion of the [CAO]” that surrounds the Geographic North Pole (see Figure 6.1, included in subsection 4.2.2).16 The cited wording in the CAOFA clarifies that the CAO consists not only of a high seas portion but also of adjacent coastal State maritime zones, in particular exclusive economic zones (EEZs). As there is no generally accepted definition of the CAO, however, there is also no agreement on its outer limits.
The CAOFA’s abstention from high seas fishing is laid down in paragraphs 1 and 3 of Article 3. Its characterisation as an abstention is based on the paragraphs’ wording, which reflect the Parties’ willingness to agree that their vessels shall not be authorised to engage in commercial and exploratory high seas fishing. The abstention can be regarded as qualified due to four exceptions, which are discussed further in subsection 4.3. The temporary character of the abstention is primarily a consequence of the arrangements on the CAOFA’s duration set out in Article 13. These stipulate that its duration is not indefinite but lasts for an initial period of 16 years following the CAOFA’s entry into force; therefore until 25 June 2037. Thereafter, the CAOFA continues to remain in force for successive five-year periods unless any Party objects.
One possible scenario for the discontinuation of the CAOFA and its abstention from high seas fishing is their replacement by a fully-fledged regional fisheries management organisation (RFMO) or arrangement (RFMA; together RFMO/A) with the usual mandate to regulate fisheries in the high seas portion of the CAO. In fact, some of the participants in the Five-plus-Five process had a preference for establishing such a fully-fledged RFMO/A straight away, but others – in particular the Arctic Five – had a strong preference for a concise instrument focused in particular on the abstention from high seas fishing and the establishment of the Joint Program of Scientific Research and Monitoring (JPSRM). As a compromise, it was agreed to pursue a so-called ‘stepwise’, ‘step-by-step’ or ‘two-step’ approach by which the CAOFA would function as an interim arrangement that would eventually be replaced by one or more fully-fledged RFMO/As.17 As examined in more detail elsewhere, even though
3 Origins and Drivers that Led to the Adoption of the CAOFA
Climate change was without a doubt one of the principal drivers for the adoption of the CAOFA. As reflected in the 1st preambular paragraph of the CAOFA, the high seas portion of the CAO used to be covered by sea-ice on a year-round basis and thereby made vessel-based fishing impossible. Anthropogenic-induced climate change has caused sea-ice in the CAO – including in its high seas portion – to recede and become thinner, and the distributional ranges of many global fish stocks have been shifting towards the polar regions. These changes have been ongoing for several decades, and the pace of change has accelerated during this period.19 Interest in commencing fishing in the CAO – including in its high seas portion – can be presumed to be considerable due to continued high global demand for fish and increasing pressure on global fish stocks.20
Another principal driver for the adoption of the CAOFA was the significant lack of knowledge of the ecosystems in the CAO (not only those in its high seas portion but also those in adjacent coastal State maritime zones), how these would be affected by climate change and other phenomena (eg ocean acidification and increased fresh-water inflow), and what impacts and effects marine
The United States was the first of the Arctic Five to respond to these two principal drivers. Already in October 2006, its North Pacific Fishery Management Council (NPFMC) started devoting attention to Arctic fisheries management in the Northern Bering Sea and the EEZ off Alaska north of the Bering Strait. On 5 February 2009 the NPFMC prohibited commercial fishing in the EEZ off Alaska in the Arctic Ocean “until information improves so that fishing can be conducted sustainably and with due concern to other ecosystem components”.21 This prohibition was still in effect at the time of writing.
As some of the fish stocks that already occurred in the EEZ off Alaska north of the Bering Strait, or would occur there in the future, might be or become transboundary, the United States also took steps to ensure that its actions for its own maritime zones would be complemented by (similar or equivalent) international action. These steps were also motivated by concerns of a ‘boom-and-bust’ scenario similar to what happened in the high seas pollock fishery in the Bering Sea in the late 1980s. In 2007, the United States Senate adopted joint resolution (SJ Res.) No. 17 of 2007, “directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean”.22 Pursuant to this resolution, the United States initiated a series of bilateral and multilateral discussions during 2007–2009 to explore options for a suitable mechanism or body for convening negotiations. This eventually led to the two phases of stand-alone negotiations – both chaired by Ambassador David Balton from the United States Department of State – and the associated FiSCAO Meetings described in section 2.
The United States based its actions in 2007 and 2009 on its precautionary approach to fisheries management in response to different levels of uncertainty, the need to avoid unregulated fishing, as well as the “social, economic, cultural and subsistence needs” of Arctic indigenous communities.23 These
As regards the precautionary approach to fisheries management and the need to avoid unregulated fishing, the United States’ actions were also compatible with Article 6 of the UN Fish Stocks Agreement (UNFSA)24 – titled “Application of the precautionary approach” – as well as Article 8(5) of the UNFSA and paragraph 3.3.2 of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.25 The latter two provisions reflect the commitment by the international community to ensure full high seas coverage with RFMO/As as part of the objective of avoiding unregulated high seas fishing. The integration of the precautionary approach and the need to avoid unregulated fishing are discussed further in section 4. Due to space constraints, issues relating to Arctic Indigenous Peoples cannot be examined here.26
Various non-State actors also had significant influence on the negotiations that culminated in the CAOFA. Representatives of Arctic Indigenous Peoples – in particular from the Inuit Circumpolar Council (ICC) – participated in the delegations of Canada, Greenland (as part of the delegation of the Kingdom of Denmark)27 and the United States, and the delegation of the United States also included representatives of environmental non-governmental organisations (NGOs; in this case The Pew Charitable Trusts).
Arctic governments to take a lead in developing an international agreement to address fisheries in the central Arctic Ocean, based on sound scientific and precautionary principles, and starting with a catch level of zero as a reflection of the state of understanding of the fisheries ecology of the region.28
The letter received wide coverage and attention, and is regarded as having been an important driver in promoting action by the Arctic Five.29 Following the signature of the 2015 Oslo Declaration, a series of non-governmental ‘CAO Asia Dialogues’ were held in China, Japan and South Korea in order to raise awareness and understanding in these States of the issues at hand, and support for the Five-plus-Five process.30
Finally, reference should also be made to the commitments in 2016 by the fishing industry – facilitated by Greenpeace – not to expand fishing for Arctic cod (Gadus morhua) into areas of the North-East Atlantic Ocean where regular fishing had not taken place before.31
4 Key Elements of the CAOFA’s Abstention from Fishing
4.1 Objective
The objective of this Agreement is to prevent unregulated fishing in the high seas portion of the central Arctic Ocean through the application of precautionary conservation and management measures as part of a long-term strategy to safeguard healthy marine ecosystems and to ensure the conservation and sustainable use of fish stocks.
This wording clearly reflects the stepwise or two-step approach that was pursued during the Five-plus-Five process. Accordingly, the first step of the objective of the CAOFA is to prevent unregulated fishing in the high seas portion of
The initial objective of the CAOFA is also reflected in the full title of the CAOFA and its Preamble. Article 2 clarifies that this initial objective is achieved “through the application of precautionary” conservation and management measures (CMMs), which refers primarily to the abstention from high seas fishing laid down in Article 3. The 9th (unnumbered) preambular paragraph stipulates that the prevention of unregulated fishing is “consistent with the precautionary approach”. The CAOFA in its entirety can also be regarded as an application or operationalisation of the precautionary approach to fisheries management as commercial and exploratory fishing will only be allowed in case certain conditions are met (see subsection 4.3).
4.2 Geographical and Species Coverage
The determination of the geographical scope of the CAOFA – the Agreement Area – was motivated by several reasons and has various implications. As the CAOFA’s geographical scope is identical to that of the 2015 Oslo Declaration, that determination had essentially already been made during the Arctic Five process. The two subsections below deal with several choices with which the delegations of the Arctic Five were confronted.
The wording and location of the definition of the Agreement Area remained a contentious issue up until the very last stages of the Five-plus-Five negotiations. This was due to the still unresolved dispute on the geographical scope of the Spitsbergen Treaty33 and thereby its application to Svalbard’s Fisheries Protection Zone (FPZ) and (outer) continental shelf, which are immediately adjacent and partly subjacent to the Agreement Area.34
A fundamental choice was whether the actions of the Arctic Five would be confined to the high seas or would also cover adjacent coastal State maritime zones. It seems that the Oslo Declaration’s joint programme of scientific research was intended to relate to the CAO in its entirety.35 However, there does not seem to have been any serious consideration of applying its qualified abstention from fishing also to adjacent coastal State maritime zones.36 The United States might have been supportive of the latter option, as it had already prohibited commercial fishing in the EEZ off Alaska in the Arctic Ocean in late 2009. Canada may perhaps have been willing to consider the latter option – possibly partially – in light of its 2008 New Emerging Fisheries Policy,37 other relevant fisheries policies and support for adopting an approach for the Canadian part of the Beaufort Sea similar to that adopted by the United States for the EEZ off Alaska in the Arctic Ocean.38 Whereas the position of Denmark/Greenland at the time was unclear, it seems unlikely that Norway and Russia would have supported coverage of adjacent coastal State maritime zones. This is due to the large-scale commercial fisheries that were already ongoing in the Barents Sea at the time, and the absence of a ‘logical’ boundary between the Barents Sea and the CAO. However, the United States did not seek to persuade any of the other Arctic Five to take similar or equivalent action in their coastal
It is not difficult to understand that limiting the abstention of fishing to the high seas portion of the CAO facilitated its acceptance among the Arctic Five, because this left their international rights to fish in their own maritime zones unaffected.40 This was very different for the Other Five, as the high seas portion of the CAO was, and still is, the only part of the CAO where they have a robust international right to fish. This was and remains a fundamental difference between the fisheries interests of the Arctic Five on the one hand, and those of the Other Five on the other hand.41 In essence, it means that, while there will be different scenarios leading to the occurrence of a fish stock in the high seas portion of the CAO that would allow for the commencement of a commercially viable fishery, the Other Five can be expected to be overall more inclined to vote in favour of the commencement of high seas fishing than the Arctic Five. The Arctic Five may only be supportive of such a commencement if they intend to participate in the fishery themselves or, if they do not intend to do so, if this would not significantly conflict with their coastal State fisheries interests.
These coastal State fisheries interests could be predominantly utilisation-oriented or predominantly conservation-oriented.42 Conflict with utilisation-oriented coastal State interests of the Arctic Five could for instance arise in case of a straddling fish stock, which is a fish stock occurring in one or more EEZs and the adjacent high seas. Those of the Arctic Five that would allow fishing for such a stock in their own maritime zones adjacent to the high seas portion of the CAO have a clear interest to withhold support for the commencement of fishing for the high seas component of the stock. The high seas would then act as a de facto reserve for the replenishment of the stock’s coastal component. Moreover, before a northward expansion of a fish stock reaches the high seas portion of the CAO, the stock will first have to traverse the adjacent coastal State maritime zones. Depending once again on different scenarios, one or more of the Arctic Five could therefore be in a position to
Conflict with conservation-oriented coastal State fisheries interests of the Arctic Five could also arise in relation to a straddling fish stock. Those of the Arctic Five that would prohibit fishing for such a stock in their own maritime zones
Consistent with Article 7 of the 1995 Agreement, coastal States Parties and other Parties shall cooperate to ensure the compatibility of conservation and management measures for fish stocks that occur in areas both within and beyond national jurisdiction in the central Arctic Ocean in order to ensure conservation and management of those stocks in their entirety.
It is submitted that this provision does not adequately address the aforementioned imbalance because it applies exclusively to transboundary fish stocks. It does not require the Arctic Five to conduct fisheries management in their own adjacent maritime zones in accordance with a similar or equivalent level of stringency as that is applicable to the high seas. The provision will therefore only trigger constraints on fishing by the Arctic Five in their maritime zones adjacent to the high seas portion of the CAO sometime in the future, once the northward migration of fish stocks reaches the high seas portion.
The main reason why the Other Five were nevertheless prepared to accept the abovementioned imbalance is that their participation in the CAOFA strengthens their position in Arctic governance. This is not so much true for Iceland, which is also an Arctic State on account of its membership of the Arctic Council – the principal intergovernmental body for Arctic cooperation – along with the Arctic Five. Conversely, China, Japan and South Korea merely have Observer status in the Arctic Council – obtained in 2013 – whereas the EU was merely granted de facto Observer status that year.44
The fact that membership of the Arctic Council is limited to the eight Arctic States is not inconsistent with current international law.45 However, the balance between the rights and obligations of Arctic Council Observers – in particular non-Arctic States and the EU – has been a sensitive issue for many years. In light of the inferior participatory status of non-Arctic States and entities in the Arctic Council, the ‘Arctic Council System’,46 and the new, more peripheral Arctic bodies established in 2014 and 2015,47 it is understandable that China, the EU, Japan and South Korea welcomed the opportunity to participate on an equal footing with Arctic States in the Five-plus-Five process. Similarly, these three States and the EU shared a clear interest in bringing the Five-plus-Five process to a successful conclusion, as that would offer the prospect of obtaining an equal participatory status as Arctic States in the CAOFA.
4.2.2 Geographical and Species Overlaps with Other RFMO/As
The Agreement Area overlaps in particular with the geographical and species mandates of the following two RFMO/As:48 (1) the North-East Atlantic Fisheries Commission (NEAFC) established by the Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (NEAFC Convention);49 and (2) the Joint Norwegian Russian Fisheries Commission (JNRFC) established by the Agreement between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry (JNRFC Agreement).50 Whereas the Agreement Area also overlaps with the geographical mandate of the North Atlantic Salmon Conservation Organization (NASCO),51 this has only limited practical relevance in light of the prohibition on high seas salmon fishing included in Article 2(1) of the NASCO Convention.52
Which species are covered by the CAOFA can be deduced from the definition of ‘fish’ in Article 1(b), which means “species of fish, molluscs and crustaceans except those belonging to sedentary species as defined in Article 77 of [UNCLOS]”. The exclusion of sedentary species would for instance be pertinent for snow crab (Chionoecetes opilio), which appears to be regarded by Canada, the EU, Norway and Russia as a sedentary species,53 but possibly not by the
The overlap between the Agreement Area and the NEAFC Convention Area56 is shown in Figure 6.1. NEAFC’s species mandate can be deduced from
High seas portion of the CAO and NEAFC Convention Area
As regards the JNRFC Agreement, nothing in its title, preamble or body is explicitly devoted to its geographical scope. The Agreement – and thereby the mandate of JNRFC – is therefore not exclusively confined to the maritime zones of Norway and Russia, the adjacent high seas areas or the Barents Sea. Fisheries for species whose distributional ranges extend into the high seas pocket of the Barents Sea (the so-called Loophole) or beyond the Barents Sea into the Norwegian Sea, the Greenland Sea or the CAO – including the high seas portion of the Norwegian Sea (the so-called Banana Hole) and the high seas portion of the CAO – therefore fall in principle within JNRFC’s mandate.58
The JNRFC Agreement does not define the species mandate of JNRFC, and merely contains a reference to “the living resources of the sea” in its preamble. Its constitutive instrument therefore provides JNRFC with an essentially unlimited species mandate. The practice of JNRFC has also confirmed this, for instance by its regulation of the harvesting of harp and hooded seals.59
Whereas the undefined geographical mandate of JNRFC meant that a geographical overlap between the CAOFA and JNRFC could not be avoided during the CAOFA negotiations, this is different for the geographical overlap between the CAOFA and NEAFC. The two phases of the CAOFA negotiations could also have agreed to exclude the ‘Atlantic segment’ of the high seas portion of the CAO from the Agreement Area. During the Arctic Five phase, however, Norway apparently strongly opposed a proposal in this regard.60 If accepted, this would have meant that Svalbard’s FPZ and outer continental shelf would not be immediately adjacent, and partly subjacent, to the Agreement Area. This would have possibly posed a risk to Norway’s status as a CAO coastal State in the context of the CAOFA and the associated entitlements such States could (potentially) have pursuant to the CAOFA. Moreover, Norway is also likely to have been cognizant of the fact that, even though recognition of its status as a CAO coastal State and the associated entitlement to participate on an equal
The overlap between the Agreement Area and the NEAFC Convention Area was also discussed during the early stages of the Five-plus-Five process, but no delegation felt strongly about avoiding it. Assurances that the role and mandate of NEAFC would not be undermined are included in Article 14(4) of the CAOFA and in the 7th (unnumbered) preambular paragraph.61 The implications of these overlaps for fishing under the auspices of NEAFC and JNRFC will be discussed in the next subsection.
4.3 Exceptions to the Abstention from Fishing
As noted in section 2, there are four exceptions to the abstention from fishing in paragraphs 1 and 3 of Article 3.62 These paragraphs read as follows:
Each Party shall authorize vessels entitled to fly its flag to conduct commercial fishing in the Agreement Area only pursuant to:
conservation and management measures for the sustainable management of fish stocks adopted by one or more regional or subregional fisheries management organizations or arrangements, that have been or may be established and are operated in accordance with international law to manage such fishing in accordance with recognized international standards, or
interim conservation and management measures that may be established by the Parties pursuant to Article 5, paragraph 1(c)(ii).
[….]
A Party may authorize vessels entitled to fly its flag to carry out exploratory fishing in the Agreement Area only pursuant to conservation and management measures established by the Parties on the basis of Article 5, paragraph 1(d).
Commercial fishing63 is therefore governed by paragraph 1 and exploratory fishing64 by paragraph 3. Paragraph 1 contains three exceptions to the
The first exception concerns commercial fishing pursuant to existing RFMO/As. There was consensus among the Five-plus-Five that NEAFC qualifies as an RFMO. Whereas NEAFC never had a prohibition on fishing in the Atlantic segment of the high seas portion of the CAO in effect, there has not been any fishing for species regulated by NEAFC in these waters so far.
As regards JNRFC, some delegations were not convinced that it qualifies as an RFMO or an RFMA. As argued elsewhere by this author, there are nevertheless good arguments in favour of qualifying JNRFC as an RFMA.65 The phrase “[…] and are operated in accordance with international law” was proposed by these delegations in furtherance of their positions and their associated concern that fishing by Norwegian and Russian vessels under the auspices of JNRFC in the high seas portion of the CAO would constitute an exception to the abstention.66
Similar to NEAFC, whereas JNRFC never had a prohibition on fishing in the high seas portion of the CAO in effect, such fishing had not occurred there at the time of writing. Reference should nevertheless be made to two legally binding instruments adopted in 2021 and 2022: the December 2021 Norway-United Kingdom Arrangement on Fisheries Cooperation,67 and the April 2022 Norway-EU Ad-hoc exploratory consultations in relation to the fisheries in ICES areas 1 and 2.68 These two instruments were intended to resolve the disputes that had arisen in December 2020 between Norway, on the one hand, and the
The second exception relates to commercial fishing under the auspices of future RFMO/As. This is based on the stepwise approach. The establishment of one or more of such RFMO/As would then lead to a complete or partial termination (or ‘lifting’) of the abstention, or the termination of the CAOFA in its entirety, either by not extending its duration or otherwise.71
the scientific information derived from the [JPSRM], from the national scientific programmes, and from other relevant sources, and taking into account relevant fisheries management and ecosystem considerations,
including the precautionary approach and potential adverse impacts of fishing on the ecosystems.
The third exception is commercial fishing under the auspices of the COP of the CAOFA. Once the COP has agreed to commence negotiations to establish one or more additional RFMO/As, Articles 3(1)(b) and 5(1)(c)(ii) authorise it to adopt interim CMMs on commercial fishing. This recognises that it may take a considerable number of years before negotiations to establish an RFMO/A are concluded and the RFMO/A is also formally established.
At the time of writing, the limited abundance and distribution of fish in the high seas portion of the CAO did not allow for a commercially viable fishery.72 For several reasons, it seems unlikely that the COP will authorise commercial fishing before 2037. These include the arrangements on duration in Article 13, consensus decision-making, and the utilisation- and conservation-oriented fisheries interests of the Arctic Five. As explained in subsection 4.2.1, these interests mean that the Arctic Five can be expected to be overall less inclined to vote in favour of the commencement of high seas fishing than the Other Five.
The fourth exception is exploratory fishing. Article 3(3) of the CAOFA entitles Parties to authorise their vessels to conduct exploratory fishing, provided this occurs ‘pursuant to’ CMMs adopted by the COP on the basis of Article 5(1)(d). The latter requires (“shall”) the COP to adopt these CMMs on exploratory fishing within three years of the CAOFA’s entry into force; before 25 June 2024 therefore. Once these CMMs have been adopted, however, the CAOFA does not give the COP an approval role for the actual engagement in specific exploratory fishing plans. Article 5(1)(d)(III) merely stipulates that “a Party may authorize exploratory fishing only after it has notified the other Parties of its plans for such fishing and it has provided other Parties an opportunity to comment on those plans”. Instead of this latter duty of notification combined with limited review, some delegations proposed during the Five-plus-Five negotiations that specific authorisations on exploratory fishing would need prior approval by the COP. That proposal failed to attract sufficient support.73
Read in conjunction, Articles 3(3) and 5(1)(d) make the exercise of each CAOFA Party’s right to engage in exploratory fishing conditional on the
As expected, the differences between the fisheries interests of the Arctic Five and those of the Other Five were reflected in their positions and proposals on substantive and procedural aspects of the envisaged CMMs on exploratory fishing. Some of these positions and proposals were aimed at constraining or delaying the commencement of exploratory fishing, by proposing conditions in addition to those laid down in Article 5(1)(d). It is unclear what the consequences would be if the new, softer deadline of June 2025 is not met either. Fortunately, at the time of writing, the abundance and distribution of fish in the high seas portion of the CAO did not give rise to concrete interest in commencing exploratory fishing in the near future.
4.4 Decision-Making and Duration
In light of the fundamental difference between the fisheries interests of the Arctic Five and the Other Five as explained in subsection 4.2.1, it was clear from early on in the Five-plus-Five negotiations that the rules and procedures for decision-making would be the most difficult issue to resolve. This was underlined further by repeated assertions by some of the Arctic Five of their special role in the high seas portion of the CAO and demands for preferential treatment in decision-making and the conditions for the CAOFA’s entry into force. Such a special role and preferential treatment were opposed by essentially all of the Other Five. Not only because of their fisheries interests but also due to concerns for the precedent-setting effects this would have for ‘multilateral’
The negotiations on decision-making had converged to multiple decision-making procedures towards the end of the 5th Meeting (March 2017). Decisions on questions of substance would, in the absence of consensus, be made by a three-fourths majority including at least three of the Arctic Five. A separate decision-making procedure would be applied for the determination to commence negotiations to establish one or more RFMO/As (see subsection 4.3). In such a scenario, the commencement of commercial fishing could be delayed for a period of up to two years at the request of a particularly affected coastal State. As became clear at the outset of the 6th Meeting (November 2017), however, these arrangements no longer enjoyed sufficient support, because one of the Arctic Five demanded a veto for the Arctic Five and some of the Other Five rejected any special role of the Arctic Five in decision-making whatsoever. During the last hours of the 6th Meeting, the delegations agreed on one single decision-making procedure for all matters of substance – ie consensus decision-making – as part of a package-deal on decision-making, conditions for the CAOFA’s entry into force and the Agreement’s duration. The package-deal’s element on decision-making is laid down in Article 6 of the CAOFA.
The idea of having a ‘sunset clause’ or some other limitation on the duration of the CAOFA had been floated in advance of the 6th Meeting. This mechanism had proved to be crucial for the successful adoption of the Ross Sea region marine protected area by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) in October 2016.78 Experience with the substantive and procedural conditions for re-commencing fishing for pollock in the Bering Sea Donut Hole are certain to have been in the minds
Support for some sort of sunset clause quickly spread at the 6th Meeting once progress on decision-making stalled. Discussion centred above all on the length of the initial period of duration and the procedure by which duration could be extended. Proposals on the initial period of duration ranged from 10 to 30 years. The delegations that favoured a longer initial period were eventually prepared to settle for 16 years once agreement had in principle been reached on the requirements for entry into force. They assumed that there would be a considerable number of years between the agreement on the text of the CAOFA in November 2017 and the CAOFA’s entry into force, which would amount to a de facto extension of the initial period of duration. The period eventually turned out to be about 3.5 years. Finally, reference should be made to Article 12 of the CAOFA, which contains each party’s right to withdraw from the Agreement by means of a written notification to the depositary.
During the negotiations on the COP’s Rules of Procedure (RoP), several Parties had a preference for decision-making by a qualified majority for some matters, for instance on applications for observer status and inviting individuals or organisations to attend the COP. The negotiations on these issues can be regarded as relating to the nature of particular decisions; procedural or substantive. Moreover, Parties can also agree – by consensus – on exceptions to the general rules in Article 6. In the end, however, it was agreed that all matters would be subject to consensus decision-making.81 This was due to the insistence by some Parties – implicitly or explicitly – that the decisions under discussion had a substantive nature and/or that they were not prepared to accept exceptions to the general rule.
As explained in section 2, the negotiations on the CAOFA was a stand-alone process that consisted of two phases. The composition of participation in the first – CAO coastal States – phase was quite evident.82 The Arctic Five – led by the United States – then initiated a broader process that became known as the Five-plus-Five phase because the commitments of the Arctic Five in the Oslo Declaration were not opposable to other States and entities. The Other Five appear to have been invited to this second phase for a number of reasons, including: representation of all Arctic States; relative proximity to the high seas portion of the CAO; capability and interest in distant-water, high latitude fisheries; participation in ‘nearby’ RFMO/As; the desire to ensure that the Arctic Five were not outnumbered by non-CAO coastal States and entities; and the preference to keep the negotiations to a manageable size. The principal reason for not inviting Taiwan despite its presumed capability and interest in distant-water, high latitude fisheries, is likely to have been the wish to avoid having to address – in the presence of China – the complexities associated with Taiwan’s disputed status under international law.83
Article 8 of the CAOFA – titled ‘Non-Parties’ – is modelled to a large extent on Article 33 of the UNFSA. It requires CAOFA Parties to encourage non-Parties to take measures consistent with the CAOFA and to take measures consistent with international law to deter undermining activities by vessels of non-Parties. As already noted, the limited abundance and distribution of fish in the high seas portion of the CAO did not allow for a commercially viable fishery at the time of writing. Even if such a fishery would be commercially viable for CAOFA Parties, however, the non-opposability of the CAOFA’s abstention from fishing to non-Parties is unlikely to pose problems in practice. This is due to the technological and logistical challenges of distant-water, high latitude fisheries, in particular when CAOFA Parties can be assumed not to open their ports for vessels of non-Parties.
Pursuant to Article 11(1) of the CAOFA, the Agreement enters into force after all the Five-plus-Five have formally adhered to it. Article 10 stipulates that, once the Agreement has entered into force “the Parties may invite other States with a real interest to accede to this Agreement”. The use of “States” implies
Besides the requirement relating to statehood, the CAOFA only contains one substantive eligibility criterion/requirement: that of real interest. It thereby uses the same terminology as Article 8(3) of the UNFSA and is the first constitutive instrument of an RFMO/A to do so. This is not necessarily commendable or troublesome, however, as there is no generally accepted definition or interpretation of the notion of real interest. Everything will therefore depend on the Parties’ practice in interpreting and applying this criterion/requirement, and the perspective from which this practice is assessed. The Parties have given themselves the widest possible margin of appreciation in, on the one hand, inviting non-user States and flag States engaged in fishing or wishing to do so to accede and, on the other hand, rejecting requests by the same categories of States that wish to be invited to accede. The same result could therefore also have been achieved by not including any substantive criterion at all.85
If any States and, if so, how many, will be invited to accede is highly speculative, except for the fact that no further CAO coastal States can be invited as all are already involved. This necessarily means that all accessions will increase the number of high seas fishing States and entities. Even though consensus decision-making gives the Arctic Five a de facto veto, they may not feel comfortable to be (significantly) outnumbered. None of the current participants are also likely to be keen to invite high seas fishing States capable of becoming significant competitors for the resources. Some of the Arctic Five could nevertheless be favourable to inviting non-user States, and some of the Other Five could be favourable to inviting like-minded, but ‘relatively insignificant’ high seas fishing States.86 Finally, the fact that not only the original Five-plus-Five are entitled to object to the extension of the duration of the CAOFA pursuant to Article 13(2) – and thereby terminate the Agreement – but new parties have this entitlement as well, will probably mean that the Original Parties will proceed with extreme caution when considering potential new parties.
5 Conclusions
The non-use measure examined in this chapter is the qualified, temporary and treaty-based abstention from fishing in the high seas portion of the CAO laid down in the CAOFA. This abstention and related arrangements determine the conditions under which a future commercial fishery may commence.
The principal drivers that led to the adoption of the CAOFA included climate change – which has, inter alia, caused sea-ice in the CAO to recede and become thinner, and many global fish stocks to shift towards the polar regions – the significant lack of knowledge of CAO ecosystems, and the needs of, and impacts on, Arctic Indigenous Peoples. In conjunction with the precautionary approach to fisheries management and the need to avoid unregulated fishing, these drivers formed the basis on which the United States initiated and led the two negotiation processes that culminated in the adoption of the CAOFA.
The abstention from fishing in the high seas portion of the CAO managed to attract support from the Five-plus-Five for different reasons. Although the possibility to extend the abstention to adjacent coastal State maritime zones was not really discussed during either of the two negotiation processes, it speaks for itself that having the abstention confined to the high seas was of paramount importance to the Arctic Five. Of critical importance for the Other Five – except for Iceland – were their strengthened position in Arctic governance, because participation in the negotiation and operation of the CAOFA
At the time of writing, the limited abundance and distribution of fish in the high seas portion of the CAO did not allow for a commercially viable fishery. For a number of reasons – including the arrangements on duration, consensus decision-making, and the utilisation- and conservation-oriented fisheries interests of the Arctic Five – it seems unlikely that the COP will authorise commercial fishing before 2037. The non-opposability of the CAOFA’s abstention from fishing to non-Parties is unlikely to pose problems in practice due to the technological and logistical challenges of distant-water, high latitude fisheries. This would probably even be true in case fishing would become commercially viable for CAOFA Parties.
Acknowledgments
The author is very grateful to the editors, Nadia Bouffard, Nicolas Kempf and various other persons for providing information or comments on drafts. The views in this chapter are those of the author and not necessarily those of the Netherlands Government or the European Commission.
Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA) (signed 3 October 2018, entered into force 25 June 2021) OJ 2019 L 73/3.
CAOFA, art 3(1) and (3) (discussed in subsection 4.3).
United Nations Convention on the Law of the Sea (UNCLOS) (signed 10 December 1982, entered into force 16 November 1994) 1833 UNTS 396.
Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (CBS Convention) (signed 16 June 1994, entered into force 8 December 1995) 34 ILM 67 (1995).
See eg CBS Convention, arts IV(1)(a) and VII, Part 1 of the Annex, and the reports of the annual Conferences of the Parties (COPs) to the CBS Convention, available at <https://www.fisheries.noaa.gov/alaska/international-affairs/annual-conference-parties-convention-conservation-and-management-pollock-resources> accessed 20 June 2024.
In fact, Denmark participated in respect of both Greenland and the Faroe Islands, but is a CAO coastal State exclusively on account of Greenland (see the discussion in E. J. Molenaar, “The CAOF Agreement. Key Issues of International Fisheries Law”, in T. Heidar (ed), New Knowledge and Changing Circumstances in the Law of the Sea (Brill Nijhoff 2020) 446–476, 461–462.
See the table in Molenaar (n 6) 453.
Norwegian Ministry of Foreign Affairs, “Coastal states decide on measures to combat unregulated fishing in the Arctic Ocean” (Oslo, 16 July 2015), available at <https://www.regjeringen.no/en/aktuelt/fishing-arctic-ocean/id2427705/> accessed 20 June 2024.
Further clarification of the capacities in which the Other Five participated in the Five-plus-Five negotiations is provided in the text accompanying (n 44) and (n 83).
See the table in Molenaar (n 6) 453.
ibid.
See the status of participation at Government of Canada, “Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean” (3 October 2018), available at <https://www.treaty-accord.gc.ca/details.aspx?id=105549> accessed 20 June 2024.
See eg CAOFA, art 5(1) and Rule 3.4, CAOFA COP Rules of Procedure (RoP), included in Appendix 9 of the Report of the 1st (2022) in-person CAOFA COP, available at <https://vlab.noaa.gov/web/caofa> accessed 27 August 2024.
CAOFA, art 6(3) stipulates that a question “shall be deemed to be of substance if any Party considers it to be of substance”.
See eg SCG Terms of Reference, para 3(d) (Appendix 7 of the Report of the 1st (2022) in-person CAOFA COP (n 13)).
This wording is consistently used throughout the CAOFA. See CAOFA, art 1(a) for the definition of the ‘Agreement Area’.
This approach is, inter alia, reflected in CAOFA, arts 2 (examined in subsection 4.1), 5(1)(c) and 14(3). See Molenaar (n 6) 468–470.
See E. J. Molenaar, “Regional Fisheries Management Organizations” in M. Chantal Ribiero, F. Loureiro Bastos and T. Henriksen (eds), Global Challenges and the Law of the Sea (Springer 2020) 81–109, 91–92.
See M. Rantanen et al, “The Arctic has warmed nearly four times faster than the globe since 1979” (2022) 3 Communications Earth & Environment, 168; Arctic Monitoring and Assessment Programme (AMAP), Arctic Climate Change Update 2021: Key Trends and Impacts. Summary for Policy-makers AMAP, Tromsø, Norway, 2021) 16, available at <https://www.amap.no/documents/doc/arctic-climate-change-update-2021-key-trends-and-impacts.-summary-for-policy-makers/3508> accessed 20 July 2024; FiSCAO, Reports of the Meetings of Scientific Experts on Fish Stocks in the Central Arctic Ocean (FiSCAO Meetings, 1 March 2022), available at <https://www.fisheries.noaa.gov/event/fifth-meeting-scientific-experts-fish-stocks-central-arctic-ocean> accessed 20 June 2024.
See eg FAO, “The State of World Fisheries and Aquaculture – Towards Blue Transformation” (2022), available at < https://digitallibrary.un.org/record/3978694?v=pdf> accessed 11 April 2025, Figure 23 at 47.
Arctic Fishery Management Plan (FMP), North Pacific Fishery Management Council, adopted 5 February 2009, effective 3 December 2009, 50 CFR Part 679, sec E.S. 1.2, ES-2; Federal Register, vol 74, no. 211 (3 November 2009), 56734, available at <https://www.npfmc.org/wp-content/uploads/ArcticFMP-1.pdf> accessed 11 April 2025.
Passed by the Senate on 4 October 2007. The House of Representatives voted in favour of SJ Res. No 17 in May 2008, which resulted in the Public Law 110–243 of 3 June 2008.
The citation is Government of the United States, “S. J. Res. 17, 110th Congress” (Congress 2007), available at <https://www.govtrack.us/congress/bills/110/sjres17/text/enr> accessed 20 June 2024. The references to the precautionary approach and unregulated fishing are included in the Arctic FMP, see (n 21).
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 (signed 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3.
FAO, “International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing” (adopted 2 March 2001, endorsed 23 June 2001), available at <https://www.fao.org/fishery/en/ipoa-iuu> accessed 20 June 2024.
See N. Bankes, “Arctic Ocean Management and Indigenous Peoples: Recent Legal Developments” in N. Bankes, E. J. Molenaar and T. Henriksen (eds), The Yearbook of Polar Law, Volume 11, 2019 (Brill 2020) 81–120, 109–115; E. J. Molenaar, “The Central Arctic Ocean Fisheries Agreement and Arctic Indigenous Peoples” (2024) 164 Marine Policy 106160.
In fact, it can be argued that Greenlanders can be regarded as an Arctic Indigenous People. See eg R. L. Johnstone, “The Impact of International Law on Natural Resource Governance in Greenland” (2020) 56 Polar Record e21, 1–11, for a discussion on various definitional issues and other complexities, including the two non-Inuit minorities in Greenland.
On file with author. Other parts of the letter are cited in P. Harrison et al, “How Non-Government Actors Helped the Arctic Fisheries Agreement” (2020) 2 Polar Perspectives 8.
Harrison et al (n 28) 8.
ibid 9–11.
On file with author.
See, for instance, NAFO Convention, art II. Convention on Cooperation in the Northwest Atlantic Fisheries (NAFO) [originally named “Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries”] (signed 24 October 1978, entered into force 1 January 1979) 1135 UNTS 369 (as amended); consolidated version available at <https://www.nafo.int/Home/NAFO-Governance> accessed 11 April 2025, which reads: “The objective of this Convention is to ensure the long term conservation and sustainable use of the fishery resources in the Convention Area and, in so doing, to safeguard the marine ecosystems in which these resources are found”.
Treaty concerning the Archipelago of Spitsbergen (signed 9 February 1920, entered into force 14 August 1925) 2 LNTS 7.
For a discussion see E. J. Molenaar, “Participation in the Central Arctic Ocean Fisheries Agreement” in A. Shibata, L. Zou, N. Sellheim and M. Scopelliti (eds), Emerging Legal Orders in the Arctic: The Role of Non-Arctic Actors (Routledge 2019) 132–170, at 153–154. See also the declaration made by Iceland upon ratification of the CAOFA, available at <https://www.treaty-accord.gc.ca/details.aspx?id=105549> accessed 20 June 2024; and the text accompanying (n 67–70).
Whereas the text on the joint programme of scientific research after the second bullet applies only to the high seas portion of the CAO, the sentence “We desire to promote scientific research, and to integrate scientific knowledge with traditional and local knowledge, with the aim of improving the understanding of the living marine resources of the Arctic Ocean and the ecosystems in which they occur” indicates an intention to apply this more broadly.
Email from an official of the United States government to author (31 March 2023).
Government of Canada, “New Emerging Fisheries Policy” (2008), available at <https://www.dfo-mpo.gc.ca/reports-rapports/regs/efp-pnp-eng.htm> accessed 20 June 2024.
See also E. J. Molenaar, “Arctic Fisheries and International Law. Gaps and Options to Address Them” (2012) 1 Carbon & Climate Law Review 63–77, 71. For more recent developments, see B. Ayles, L. Porta and R. McV Clarke, “Development of an integrated fisheries co-management framework for new and emerging commercial fisheries in the Canadian Beaufort Sea” (2016) 72 Marine Policy 246–254; Fisheries and Oceans Canada, Fisheries Joint Management Committee, Inuvialuit Game Council, and Inuvialuit Regional Corporation, Beaufort Sea Integrated Fisheries Management Framework for the Inuvialuit Settlement Region, Canada (2014) 64, available at <https://fjmc.ca/wp-content/uploads/2016/08/Beaufort-Sea-Integrated-Fisheries-Management-Framework-2014-FINAL-version.pdf> accessed 20 June 2024.
See (n 36).
UNCLOS, arts 2(1), 49(1), 56(1)(a) and 77(4).
The ensuing observations are not immediately applicable to Denmark in respect of the Faroe Islands and Greenland, whose hybrid status in the negotiations means it has a much more complex set of interests.
The Arctic Five also have utilisation-oriented as well as conservation-oriented interests in relation to the natural resources of their outer continental shelves underlying the high seas portion of the CAO (see, inter alia, CAOFA, art. 1(b); UNCLOS, arts 77(1) and 78(2)).
See eg L. Zou and H. P. Huntington, “Implications of the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea for the management of fisheries in the Central Arctic Ocean” (2018) 88 Marine Policy 132–138, 135.
Arctic Council, Kiruna Declaration (The Eight Ministerial Meeting of the Arctic Council, 15 May 2013, Kiruna, Sweden), available at <https://oaarchive.arctic-council.org/items/bc9e3845-fb69-40e8-a1da-0b516c4ffbd6> accessed 20 June 2024. The EU, which is not a State but an intergovernmental organisation sui generis, represented all of its than 28 Member States in the Five-plus-Five process. Three of these 28 are Arctic States, namely mainland Denmark, Finland and Sweden, but neither of these is a CAO coastal State. This means that the EU acted in a de facto capacity as high seas fishing State, with three of the 28 Member States represented by it being Arctic States.
See E. J. Molenaar, “The Arctic, the Arctic Council, and the Law of the Sea”, in R. Beckman, T. Henriksen, K. Dalaker Kraabel, E. J. Molenaar and J. A. Roach (eds), Governance of Arctic Shipping. Balancing Rights and Interests of Arctic States and User States (Brill Nijhoff 2017) 24–67, 46–47.
See E. J. Molenaar, “Current and Prospective Roles of the Arctic Council System within the Context of the Law of the Sea” (2012) 27 International Journal of Marine and Coastal Law 553–595.
Arctic Economic Council, Arctic Economic Council (Arctic Council, Tromsø, Norway), available at <https://arcticeconomiccouncil.com/> accessed 20 June 2024; the Arctic Offshore Regulators Forum (AORF); and the Arctic Coast Guard Forum (ACGF), 2015, available at <https://www.arcticcoastguardforum.com/> accessed 20 June 2024. For an analysis see Molenaar (n 45) 53 and 57–59.
The qualification of these bodies as RFMO/As is dealt with in subsection 4.3 below.
Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (NEAFC Convention) (signed 18 November 1980, entered into force 17 March 1982) 1285 UNTS 129, as amended (consolidated version available at <https://www.neafc.org/basictexts>.
Agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Kingdom of Norway concerning mutual relations in the field of fisheries (JNRFC Agreement) (signed 15 October 1976, entered into force 21 April 1977) 1157 UNTS 139, art III(1).
See Convention for the Conservation of Salmon in the North Atlantic Ocean (NASCO Convention) (signed 2 March 1982, entered into force 1 October 1983) 1338 UNTS 33, art 1(1); and the line of argumentation in J. J. Maguire, P. McGinnity and E. J. Molenaar, “Report of the Third NASCO Performance Review” (Council Report, 14 March 2023) NASCO doc. CNL(23)17, 9, available at <https://nasco.int/wp-content/uploads/2023/05/CNL2317rev_Report-of-the-Third-NASCO-Performance-Review.pdf> accessed 21 June 2024.
See (n 51).
As regards Canada and the EU: letter dated 5 August 2015 from the European Commission Directorate-General for Maritime Affairs and Fisheries (DG MARE) to the Director General, “Subject: Snow Crab Fisheries in the NEAFC Regulatory Area” (Brussels), available at <https://www.politico.eu/wp-content/uploads/2017/06/SPOLITICO-17061514340.pdf accessed 21 June 2024> accessed 28 July 2024; as regards Norway and Russia this is reflected in: Note Verbale No. 96/15 from the Mission of Norway to the EU (30 October 2015) (on file with author).
As suggested in the letter by DG MARE (n 53).
See E. J. Fedewa et al, “Recent Shifts in Northern Bering Sea Snow Crab (Chionoecetes Opilio) Size Structure and the Potential Role of Climate-Mediated Range Contraction” (2020) 181–182 Deep Sea Research Part II: Topical Studies in Oceanography 104878; C. Szuwalski et al, “Climate change and the future productivity and distribution of crab in the Bering Sea” (2021) 78(2) ICES Journal of Marine Science 502–515.
The NEAFC Convention Area is defined in NEAFC Convention, art 1(a).
This is a consequence of the phrases “area(s) under the jurisdiction of a Contracting Party” which also cover outer continental shelves, see NEAFC Convention, arts 5 and 6.
See, JNRFC Agreement, art 7.
As reflected in JNRFC, The Protocols of the Annual Joint Norwegian Russian Fisheries Commission (JNRFC) Meetings, available at <https://www.jointfish.com/> accessed 28 July 2024.
Information provided to the author through email on 16 June 2018 by two participants of one delegation to the Arctic Five negotiations at the time.
For further analysis see eg Molenaar (n 6) 456–457.
Para 4 deals with “scientific research activities involving the catching of fish”.
Defined in CAOFA, art 1(d) as “fishing for commercial purposes”.
Defined in CAOFA, art 1(e) as “fishing for the purpose of assessing the sustainability and feasibility of future commercial fisheries by contributing to scientific data relating to such fisheries”.
See Molenaar (n 18) 90–91.
Note also that the 7th (unnumbered) preambular paragraph explicitly mentions NEAFC but not JNRFC or any other regional fisheries bodies, and also contains the phrase “established […] international law”. For a more in-depth discussion see Molenaar (n 6) 458–459.
Text available at Norwegian Ministry of Industry and Fisheries, “Norway and Great Britain agree on fisheries agreement” (Press Release, 21 December 2021), available at <https://www.regjeringen.no/no/aktuelt/norge-og-storbritannia-enige-om-fiskeriavtale/id2893070/> accessed 21 June 2024; United Kingdom’s Department for Environment, Food & Rural Affairs, “Fisheries: cooperation between the UK and Norway” (Policy Paper, 13 January 2022), available at <https://www.gov.uk/government/publications/fisheries-cooperation-between-the-uk-and-norway> accessed 21 June 2024.
Text available at European Commission, “Fisheries: EU and Norway strengthen cooperation for sustainable fishing in the Northeast Arctic” (Press Release, 28 April 2022), available at <https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2722> accessed 21 June 2024; Norwegian Ministry of Industry and Fisheries, “Understanding between Norway and the EU on fishing in the fishing protection zone at Svalbard and in the northern waters”, available at <https://www.regjeringen.no/no/aktuelt/forstaelse-mellom-norge-og-eu-om-fiske-i-fiskevernsonen-ved-svalbard-og-i-de-nordlige-farvann/id2910636/> accessed 21 June 2024.
The incremental process of seaward extension of coastal State authority. For a discussion see Molenaar (n 34) 142–145.
For a more in-depth discussion see E. J. Molenaar, “Overlapping Geographical Mandates of RFMO s” in B. Kunoy, T. Heidar and C. Yiallourides (eds), International Fisheries Law (Routledge forthcoming) at section 4.4.
CAOFA, art 13, paras (2) and (3).
See eg the results of various expeditions including the 2019–2020 Multidisciplinary drifting Observatory for the Study of Arctic Climate (MOSAiC) expedition discussed in the Report of the 3rd (2022) PSCG Meeting (available at <https://vlab.noaa.gov/web/caofa> accessed 14 April 2025) at 11, which indicate that fish density in the high seas portion of the CAO is extremely low and most fish are small.
Based on the notes of the author.
Report of the 2nd (2023) in-person CAOFA COP, para 27 and Appendix 10, available at <https://vlab.noaa.gov/web/caofa> accessed 27 August 2024.
Report of the 3rd (2024) in-person CAOFA COP, para 23 and Appendix 7, available at <https://vlab.noaa.gov/web/caofa> accessed 27 August 2024. This decision has some similarities with the decision of the States Parties to the UNCLOS (SPLOS) on the deadline set out in art 4 of Annex II to the UNCLOS (as reflected in Decision SPLOS 72 (May 2001)).
Agreement under the UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, signed 20 September 2023. Not in force). Certified true copy available at <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-10&chapter=21&clang=_en>.
Molenaar (n 34), at 144–145 and 167–168. See also E. J. Molenaar, “Multilateral Creeping Coastal State Jurisdiction and the BBNJ Negotiations” (2021) 36 International Journal of Marine and Coastal Law 5.
See CCAMLR Conservation Measure 91–05 (2016), paras 20–21; see also the discussions by Urrutia in chapter 5 and by Guggisberg in chapter 13.
See (n 5).
Pursuant to International Convention for the Regulation of Whaling (ICRW) (signed 2 December 1946, entered into force 10 November 1948) 161 UNTS 72, arts III(2) and V(1), this requires a three-fourths majority. See also the discussion by Jeffries and Latos in chapter 7.
See the alternative text of Rules 5.2 and 5.6 of the last draft of the COP RoP included in Appendix 8 of the Report of the 1st (2022) in-person CAOFA COP (n 13). Rule 5.6 was in the end left out entirely. The only instance in which the COP RoP use a qualified majority is in relation to the quorum in Rule 9.1.
But see eg (n 60) and accompanying text on Norway’s reasons for opposing the exclusion of the Atlantic segment of the high seas portion of the CAO from the Agreement Area.
For a more extensive discussion see Molenaar (n 34) 162–164. It should also be noted that the term ‘entity’ in Rule 5.1 of the CAOFA COP RoP was chosen with Taiwan in mind, even though a Taiwanese request for Observer status is extremely likely to be blocked by China pursuant to Rule 5.2.
See also (n 83).
Similar to eg NEAFC Convention, art. 20(4); (n 49).
See also R. Rayfuse, “Regulating Fisheries in the Central Arctic Ocean: Much Ado About Nothing?” in N. Vestergaard, B. A. Kaiser, L. Fernandez and J. N. Larsen (eds), Arctic Marine Resource Governance and Development (Springer 2018) 35–51, 47–48.
As indicated by J. Rumble, Head of the Polar Regions Department, United Kingdom’s Foreign, Commonwealth and Development Office, “Arctic Governance Observer Event” (Online event organised by the Icelandic Chairship of the Arctic Council, 21 April 2021).
Report of the 2nd (2023) in-person CAOFA COP, para 3 (n 74) and Report of the 3rd (2024) in-person CAOFA COP, para 3 (n 75).
Report of the 3rd (2024) in-person CAOFA COP, para 41 (n 75).
ibid para 42.