Ocean Governance in the High North

By Ambassador David Balton and Rear Admiral Cari Thomas, U.S. Coast Guard

Undiscovered oil and gas are but two of the types of resources that may be available; exact estimates are thought to include more than 13 percent of the world’s oil and 30 percent of its gas. In Alaska, energy-sector employment comprises more than 35 percent of the state’s total available jobs. Increases in revenues through tourism also may be on the rise, as more than 1.2 million visitors are expected to use the region in 2013, an upswing of more than 300 percent.

Because of the increase in open Arctic Ocean, access to shipping routes, energy and mineral reserves, and fisheries resources becomes possible. Just as communities need to plan for various land uses, nations must plan for the new and expanding ocean uses in the Arctic. Without this, the safety of the people that may transit the waters, the well-being of the coastal Arctic communities, the sustainability of the resources that the area provides, and the smart stewardship of the environment all can be compromised.

Since the early days of sailing ships, the world’s oceans have been used for a number of purposes. Whether for exploration, transportation and trade, for sovereignty goals, or to sustain the citizens using the resources from the sea, ships have been the most efficient ways of accomplishing these ends. But with any adventure at sea comes risk, as sailors know all too well. Some of the world’s worst maritime disasters involved ships engaged in all of those purposes.

Throughout history, nations have used ships as instruments of power, to transport troops for self-defense, or in the conquest of another nation’s territory. In 415 B.C., Athens expended its remaining reserves in an attempt to beat the Spartans in the Peloponnesian War. In the Sicilian Expedition, the Athenian fleet included 134 ships and 130 supply boats, and more than 27,000 troops and crews. In the end, ships, soldiers, and sailors were lost. 2 In 1945, several more well-known maritime tragedies occurred: the loss of the Wilhelm Gustloff , in which upward of 10,000 German soldiers and civilians died, the loss of the Yamato and 2,475 Japanese crewmen, and the loss of the USS Indianapolis (CA-35) and 883 sailors.

Similarly, ships engaged in trade and transportation have met disaster. Probably the most well known was the sinking of the Titanic in 1912, in which 1,517 passengers and crew died. This loss led to the adoption of the first International Safety of Life at Sea convention—SOLAS, outlining international rules for the safety of ships and their passengers and crew. As transoceanic shipping grew in the early 20th century, so did the need for better governance to set global standards and requirements. The International Maritime Organization (IMO) was established and functioning by 1959. Topics of concern included carrying dangerous cargo, standardized measurements for tonnage, pollution, and search and rescue.

Hands Across the (Icy) Water

As human activity in the Arctic began to grow, the nations of the region saw the need to strengthen international coordination on Arctic issues. The Arctic Council, created in 1996, is the only diplomatic forum focused solely on the entire region. Its membership is limited to the eight nations with land territory above the Arctic Circle: Canada, Denmark (via Greenland), Finland, Iceland, Norway, Russia, Sweden, and the United States. Twelve other nations are currently accredited observers to the Arctic Council, with others seeking that status as well. A number of non-governmental observers—environmental groups, academia, and private-sector organizations—are either already participating as observers or wish to do so.

Six groups representing most of the indigenous peoples of the Arctic also have the status of “permanent participants” in the council. Although only governments have formal decision-making authority, the permanent participants in practice have very significant influence within the forum.

Six standing working groups of the council undertake projects on technical and scientific issues. Most projects are relatively low-key and non-controversial, while a small number are more politically significant and require negotiated outcomes. The most notable project thus far was the 2004 Arctic Climate Impact Assessment which took the first-ever comprehensive look at the impacts, both environmental and social, of climate change in the Arctic. Other major council products include the 2009 Arctic Off-Shore Oil and Gas Guidelines and the 2008 Assessment of Oil and Gas Activities in the Arctic . The council also created temporary bodies to carry out specific initiatives, including task forces to develop specific international agreements for the region.

Overseeing the work of the subsidiary bodies and managing the day-to-day operation of the council are eight Senior Arctic Officials (SAOs), one from each member nation. The SAOs are senior foreign-policy makers in their governments, and they advise their foreign ministers on Arctic Council matters.

The council meets at the ministerial level every two years to approve the work program for the biennium and to adopt any significant finished projects. Each of the eight Arctic nations holds the chairmanship of the council for two-year periods on a rotating basis. Sweden held the chairmanship until May 2013, to be followed by Canada (2013–15) and the United States (2015–17).

Protecting the Environment, Rescuing the Distressed

In 2011 the council completed its progress report on the 2009 Arctic Marine Shipping Assessment (AMSA), the most comprehensive analysis ever undertaken of trends relating to shipping into, out of, and through the region. The United States, Canada, and Finland led the AMSA project, based on a mandate in the Arctic Council 2004 Reykjavik Declaration.

The AMSA included recommendations in three areas: enhancing marine safety, protecting people and the environment, and building the marine infrastructure. These non-binding recommendations have helped set the agenda of the council, Arctic and non-Arctic states, international organizations, and shipping interests.

The Arctic nations have already implemented two of the key recommendations from AMSA, namely, the development of a search-and-rescue agreement and another on marine oil-pollution preparedness and response. A third recommendation—safety and environmental standards for shipping in both polar regions—is also moving forward through the IMO.

It was common practice among the earliest mariners to assist one another in distress. Eventually, customary international law required mariners to assist each other on the sea because of the time and space required to perform rescues. As the IMO has matured, developing regulations for preventing collisions at sea and assigning global responsibilities for the conduct of search-and-rescue coordination have been developed.

For all the changing conditions of the Arctic Ocean, one thing has not changed: the basic rules of international law relating to oceans. These laws apply to the Arctic in the same way that they apply to all the oceans. The international legal oceanic framework remains the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The United States has not yet become party to it, despite the fact that we recognize its basic provisions as reflecting customary international law and follow them as a matter of long-standing policy.

Our status as a non-party to the UNCLOS, however, puts the United States at a disadvantage in a number of fundamental respects, most of which lie beyond the scope of this discussion. But our efforts to address the changing Arctic region bring at least two of those disadvantages into sharp focus.

First, we are the only Arctic nation that is not party to the UNCLOS. As our neighbors debate new ways to collaborate on Arctic Ocean issues, they necessarily will rely on the UNCLOS as the touchstone for their efforts. The United States will continue to take part in these initiatives, but our non-party status deprives us of the full range of influence we would otherwise enjoy in these discussions.

Second, the four other nations that border the central Arctic Ocean—Canada, Denmark/Greenland, Norway, and Russia—are advancing their claims to the continental shelf in the Arctic beyond 200 nautical miles from their coastal baselines. The UNCLOS not only establishes the criteria for claiming such areas of continental shelf, it also sets up a process to secure legal certainty and international recognition of the outer limits of those shelves. The United States also believes that it will be able to claim a significant portion of the Arctic Ocean seafloor as part of our continental shelf. But as a non-party to the UNCLOS, we place ourselves at a serious disadvantage in obtaining that legal certainty and international recognition.

Code of the North

As noted earlier, the IMO is developing a mandatory code for ships operating in Polar regions—the so-called “Polar Shipping Code.” It will replace existing non-mandatory guidelines for ships operating in ice-covered waters that the IMO first approved for the Arctic in 2002 and revised in 2009 to include Antarctic waters. We anticipate that work on the code will continue through 2014.

We envision it to include both mandatory regulations and non-mandatory elements. The mandatory provisions will take the form of amendments to existing IMO instruments such as the Convention for the Safety of Lives at Sea (SOLAS), the International Convention for the Prevention of Pollution from Ships, and other relevant instruments. The new code will address unique hazards for ships operating in polar waters, taking into account factors such as the extreme operating conditions and remoteness of polar regions. Requirements such as ship-design and engineering standards (including hull-strength requirements), equipment, operations, manning and training (including the need for a qualified ice navigator in appropriate cases), and similar items will be included. These are often referred to collectively as the “safety chapters” of the Polar Code. It will also contain an “environmental chapter” addressing mitigation of potentially adverse environmental impacts of shipping operations.

The United States has joined many other IMO delegations in supporting the view that the safety chapters should be implemented through amendments to SOLAS or other appropriate instruments as soon as those chapters are completed and that implementation of them should not be unnecessarily delayed if the environmental chapter is still in development. However, we also believe that development of this chapter is too important to be put on hold while the safety chapters are finalized. We need to bring all aspects of the code on line promptly to deal with the significant increase in polar shipping that has already begun.

For several years, the United States has expressed concern about the lack of an international mechanism to manage potential fishing in the high-seas portion of the central Arctic Ocean. We have noted that vessels from any nation could begin fishing in this area in the near future. In 2008 Congress passed a joint resolution calling on the United States to initiate discussions with other relevant governments to address the situation. President George W. Bush signed the joint resolution into law as P.L. 110-243. In particular, the law envisions one or more international fisheries agreements for the management of Arctic fisheries as an ultimate objective. Until such an agreement or agreements are in effect, the law provides that “the United States should support international efforts to halt the expansion of high-seas fishing activities in the high seas of the Arctic Ocean.”

Fisheries and the Future

The United States has also taken the unprecedented step of closing its own exclusive economic zone (EEZ) north of Alaska to any commercial fishing until domestic fisheries managers have sufficient information on the ecosystem of that area to allow fisheries to proceed on a well-regulated basis.

We also propose developing a new international agreement to cover the high-seas area of the Arctic Ocean beyond our EEZ. Such an agreement could have the following elements:

• A requirement that the parties authorize their vessels to conduct fishing in the area only after establishing one or more regional or subregional fisheries-management organizations to manage fishing in accordance with modern international standards

• Promotion of cooperative scientific research to improve the understanding of the ecosystem(s) of the area, and to help determine whether fish stocks might exist in the area now or in the future that could support sustainable harvesting

• Promotion of coordinated monitoring of the area.

Both the U.S. Navy and Coast Guard are examining strategic requirements and capability analyses to operate in the Arctic, which could include the extended outer continental shelf. The Navy’s 2011 Arctic Capabilities Based Analysis (CBA) acknowledges shifting summer sea ice; the value of the economic potential from oil, gas, and mineral development; the estimates of time and expense reduction from the use of an Arctic route; and the dwindling national-resource capabilities. Mission-criticality analysis was performed in the CBA that considers regional-security cooperation, conflict prevention, and sea control to all be in the possible environmental conditions with related time lines. This analysis appears to predict the future: Climatologist David Robinson of Rutgers University states that the Arctic could be ice-free well before 2050. 3 Countries such as China are offering trade deals and investing in resource development in Denmark (including its self-governing state of Greenland), Sweden, and Iceland. 4

In the face of Hurricane Sandy, researchers acknowledged that “planet Earth is a dangerous place, where extreme events are commonplace and disasters are to be expected.” 5 With extreme events, competition for natural resources, and the increased use of the Arctic comes the need to have policy and procedures in place for disaster management so that mitigation, preparedness, and response-and-recovery plans can occur. National Geographic Society futurist Andrew Zolli has written about how, for a nation, a community, a people, or a system, resilience is critical in the face of disruption. 6 Because the Arctic Ocean feeds both economies and ecosystems, both require resilience for long-term sustainability. Without improved governance, our country risks having a disaster occur without the ability to respond or recover from it.

1. http://nsidc.org/arcticseaicenews/2012/09/arctic-sea-ice-extent-settles-... .

2. George Willis Botsford, Hellenic History (New York: Macmillan, 1956).

3. Chip Reid, “Extreme weather could come with record Arctic Ocean ice melt,” CBS News Interactive, 20 September 2012, www.cbsnews.com .

4. Elizabeth Rosenthal, “Race is On as Ice Melt Reveals Arctic Treasures,” The New York Times , 18 September 2012.

5. Roger Pielke Jr., “Hurricanes and Human Choice,” The Wall Street Journal , 1 November 2012.

6. Andrew Zolli, Resilience: Why Things Bounce Back (New York : Free Press, 2012).

Ambassador Balton is the Deputy Assistant Secretary for Oceans and Fisheries in the Department of State’s Bureau of Oceans, Environment and Science.

Rear Admiral Thomas is the Commander of Coast Guard District 14.




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