Reflecting on the Role of the Arctic Council vis-à-vis a Future International Legally Binding Instrument on Biodiversity in Areas Beyond National Jurisdiction

1 Introduction

The question of the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ) has been under discussion for over 15 years. The existence of relevant legal gaps for the governance of areas beyond national jurisdiction (ABNJ),¹ and the related urgent need to develop norms and mechanisms aimed at protecting such vulnerable marine ecosystems was already recognised within the UN institutional setting during the 2003 meeting of the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS).²

This was followed by the decision of the United Nations General Assembly (UNGA) in 2004 to establish an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of BBNJ.³ This decision initiated what is now commonly referred to as the BBNJ process, which went through a preliminary⁴ and a preparatory⁵ phase before the UNGA launched a formal intergovernmental conference (IGC) on 24 December 2017.⁶ The IGC has a mandate to address, “together and as a whole,” four substantive topics: (i) marine genetic resources (MGRs), including questions concerning the sharing of benefits; (ii) measures such as area-based management tools (ABMTs), including marine protected areas (MPAs); (iii) environmental impact assessments (EIAs); and (iv) capacity-building and the transfer of marine technology.⁷

The aim of the IGC is to develop an “international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction” (ILBI).⁸ While the BBNJ negotiations represent an important opportunity “to promote a dynamic, inclusive, and adaptive approach to oceans governance,”⁹ it was also stressed that “a major concern in negotiating the ILBI is the avoidance of the potential for fragmentation of the law and decision-making procedures.”¹⁰ And indeed, one key problem is how to integrate the future ILBI within an already crowded global and regional normative landscape, where many instruments, frameworks and bodies operate with complementary, overlapping and sometimes competing mandates. In this respect, UNGA, in setting out the mandate of the IGC, reaffirmed that “the work and results” of the IGC “should be fully consistent” with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).¹¹ Additionally, and this is the central focus of this article, UNGA recognised that “this process and its result should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.”¹²

The notion of not undermining, which appeared, in that particular formulation, rather late in the BBNJ process,¹³ and the problem of its interpretation is in many ways an important point of disagreement between countries that support a global approach to BBNJ governance, and those which, by contrast, favour a regional model. Despite the introduction of a third alternative – referred to as the hybrid approach¹⁴ – that should bridge these divergent points of view into a compromise position, the concept of not undermining remains central to the negotiations. At the same time, however, its meaning remains affected by an “undeniably significant ambiguity.”¹⁵

The geographical focus of this article will be the Arctic, as this region is particularly significant vis-à-vis the BBNJ negotiations for at least three reasons. First, the Arctic marine environment possesses a rich biodiversity; however, it is also extremely vulnerable to human activities and environmental change arising from both regional and global processes.¹⁶ Second, the Arctic may be significantly affected by the future ILBI, because it is a region where key legal and governance gaps exist (for example, in relation to the topic of ABMTs, including MPAs).¹⁷ Third, the Arctic coastal States – Russia, the United States, Norway, Canada and Denmark with respect to Greenland – as well as other regional coastal States, such as Iceland, have always considered that UNCLOS provides, in principle, a sufficient framework for marine environmental governance in the Arctic.¹⁸ They have thus not been particularly in favour of a global approach to BBNJ governance throughout the BBNJ process.¹⁹ The Arctic Ocean has thus far not been devoted specific attention at the BBNJ negotiations, though some scholars have started exploring the potential implications of the likely future applicability of the ILBI to some parts of the Arctic Ocean.²⁰ For instance, Koivurova and Caddell described the “ILBI as a potential milestone in Arctic governance,”²¹ arguing that the Arctic Council, described as an intergovernmental “high level forum” tasked to facilitate cooperation on Arctic issues,²² “may provide particularly fertile ground for achieving the objectives of the ILBI within this region.”²³

Against this backdrop, this article aims at further investigating the role of the Arctic Council vis-à-vis the future ILBI. One key question that arises in this regard is whether the Arctic Council qualifies as a relevant regional body that the future ILBI should not undermine.

The article will proceed as follows. Section 2 discusses the notion of not undermining and what it may mean when applied to relevant bodies, as well as, more broadly, how the ILBI will likely determine its institutional relationship with relevant bodies. Section 3 then provides a short overview of the role of the Arctic Council in Arctic Ocean governance. Section 4 reflects on the relationship between the ILBI and the Arctic Council, and, in so doing, discusses whether the Arctic Council can be considered as a relevant regional body that shall not be undermined. Section 5 offers some conclusions.

2 The notion of not undermining

UNGA Resolution 72/249 stipulates, as mentioned above, that the BBNJ “process and its results should not undermine existing relevant legal instruments and frameworks” as well as “relevant global, regional and sectoral bodies.”²⁴ This normative criterion, first mentioned in the Report of the BBNJ Working Group (BBNJ WG) in 2014,²⁵ was arguably “a manoeuvre to break a deadlock” among the delegations in terms of how the ILBI should be integrated normatively and institutionally within the existing framework for BBNJ.²⁶ More specifically, the notion of not undermining is said to have emerged during the work of the BBNJ WG in relation to the perceived need, on the part of some delegations, to put in place a “safeguard” to ensure that the UN Fish Stocks Agreement (FSA),²⁷ and the broader framework of international fisheries law with its system of regional fisheries management bodies would not be negatively affected by a future treaty.²⁸

The term undermine, which either means to “erode the base or foundation of (a rock formation)” or to “lessen the effectiveness, power, or ability of [something], especially gradually or insidiously,”²⁹ is, however, not a “term of art.”³⁰ Its semantic scope is broad and, as has been noted, “highly ambiguous.”³¹ This ambiguity may have allowed the BBNJ process to move forward during its early stages by accommodating varying views on how to integrate the future ILBI within the existing landscape of instruments, frameworks and bodies with relevant competence for the conservation of marine biodiversity in ABNJ.³² Yet, it has also prompted criticism in the literature,³³ and it poses some problems in terms of how to manage the institutional relationships between the ILBI and other instruments and bodies. While there have been a number of attempts at enucleating a precise meaning of the notion of not undermining,³⁴ uncertainties remain as to its scope and implications, and there are likely to be even more complex issues at the time of its implementation.³⁵

There are, additionally, different views on the role of the notion. Scanlon, for example, stressed the importance of the notion of not undermining for “defining the scope and function” of a future ILBI.³⁶ By contrast, Oude Elferink suggested that “the role of the ‘not undermining’ requirement in the negotiations should not be over-estimated,” arguing that the terminology should not undermine in UNGA Resolution 72/249 “was acceptable to the various interests involved and certainly is flexible enough to justify different approaches to the institutional framework of the ILBI.”³⁷ Oude Elferink further argued that, in this respect, “the design of the institutional framework of the ILBI will not be based on a specific interpretation of the term ‘not undermine’,”³⁸ and predicted that the question of how to determine the relationship between the ILBI and other relevant instruments, frameworks and bodies will probably be addressed “in tandem” or after the BBNJ delegations have reached agreement on the institutional design of the ILBI.³⁹

At the time of writing, neither the future institutional arrangements nor the question of how the ILBI would determine its relationship to relevant legal instruments, frameworks and bodies have been settled. We will thus proceed on the tentative basis of the revised draft of the ILBI,⁴⁰ which was circulated by the President of the Conference after the third session of the IGC. In terms of the future institutional arrangements of the ILBI, the revised draft text foresees the establishment of (1) a Conference of the Parties (COP); (2) a Scientific and Technical Body; (3) a Secretariat and (4) a Clearing-House Mechanism in Articles 48–51, respectively. The precise competences which those different institutional elements of the ILBI would be entrusted with is, however, still an open question. The revised draft text also contains several indications regarding the question of how the ILBI and its eventual institutional components would relate to other relevant legal instruments, frameworks and bodies. A key provision in this regard is Article 4(3) of the revised draft text, which provides that:

[t]his Agreement shall be interpreted and applied in a manner that [respects the competences of and] does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies.

As a conflict clause,⁴¹ Article 4(3) would determine the normative and institutional relationship between the ILBI and other relevant instruments, frameworks and bodies.⁴² In its current form, Article 4(3) notably uses the term undermine and if the final conflict clause in the ILBI does so as well, the term undermine and its interpretation will be of continuing relevance.

Unlike UNGA Resolution 72/249, which used the wording “should not undermine,” Article 4(3) uses the wording “shall” in connection with the criterion of not undermining relevant instruments, frameworks and bodies. Hence, Article 4(3) would not be of recommendatory character, but formulates a legal obligation instead. That said, BBNJ delegations voiced different understandings of the meaning of not undermining during IGC I, II and III,⁴³ which means that at the time of writing, it appears unlikely that the delegations will eventually agree on a specific meaning in the sense of Article 31(4) of the Vienna Convention on the Law of Treaties (VCLT). The meaning of the term undermine in Article 4(3) of the revised draft text would thus have to be determined by interpreting this term primarily in light of its ordinary meaning, context as well as object and purpose.⁴⁴ While the first meaning of undermining, as already mentioned, refers to rock erosion, it is its second meaning, namely “to lessen the effectiveness, power, or ability of’ something,”⁴⁵ that is the appropriate starting point with respect to this article.⁴⁶

Scanlon argued that this meaning offers only limited interpretative guidance, since the terms effectiveness, power and ability differ, which in turn begs the question of which term to rely on.⁴⁷ In addition, she suggested the meaning of to undermine could be different in the context of legal instruments and frameworks, as opposed to relevant bodies.⁴⁸ For instance, while not undermining a legal instrument could “suggest a requirement to not undermine the obliga-tions [sic] in that instrument,” she argued that not undermining a relevant body could in contrast require “respecting its existing decisions, not creating an overlapping man-date [sic] or frustrating its ability to operate.”⁴⁹ Here, Scanlon further suggested that, in the context of relevant bodies, the criterion of not undermining could either mean not to undermine “the authority or mandate of existing bodies” as well as the “measures” adopted under their auspices or instead merely not undermining “the effectiveness or objectives of existing frameworks and bodies.”⁵⁰ These two divergent interpretations would in turn have very different implications for the institutional relationship between the ILBI and any relevant global, regional or sectoral body. The first interpretation would protect the authority and mandate of relevant bodies vis-à-vis any future body under the ILBI, whereas the second interpretation’s focus on the effectiveness of relevant bodies would not preclude future institutional elements/bodies under the ILBI to have an overlapping mandate or competence to adopt measures, so long as this would not undermine, i.e. lessen, the effectiveness of the relevant existing or future global, regional, subregional or sectoral body in question.⁵¹ Given its ambiguous character, the ordinary meaning of the notion thus only offers limited interpretative guidance, especially in relation to the identification of relevant bodies.

That said, the meaning of not undermining in Article 4(3) could be informed by how the term is used elsewhere in the revised draft text.⁵² For example, Article 15(4) of the revised draft text,⁵³ which deals with international cooperation and coordination in the context of ABMTs, uses the term not to undermine specifically in the context of effectiveness, by stipulating that “[m]easures adopted in accordance with this Part shall not undermine the effectiveness of measures adopted by coastal States in adjacent areas within national jurisdiction.” Interpreting not undermining in Article 4(3) to be directed at the effectiveness of relevant instruments, frameworks and bodies could also be supported by how the term to undermine is used in the FSA.⁵⁴ Here, the notion is mainly used in the context of the effectiveness of conservation and management measures,⁵⁵ which could suggest a similar interpretation in the context of the BBNJ process focussing on the effectiveness of relevant instruments, frameworks and bodies.⁵⁶ Yet, in Article 15 of the revised draft text as well as in the FSA, the notion of not undermining is generally directed at the effectiveness of conservation measures and not in the context of “institutional competence.”⁵⁷ In contrast, in UNGA Resolution 72/249 as well as in Article 4(3) of the revised draft text, the notion of not undermining has a broader scope, especially as it is applied to relevant bodies for BBNJ.⁵⁸ This could militate against an interpretation that merely focuses on not undermining the effectiveness of relevant bodies for BBNJ.⁵⁹

Additionally, Article 4(3) includes, albeit in brackets,⁶⁰ a requirement to apply and interpret the ILBI in a way that “respects the competence” of relevant global, regional, subregional and sectoral bodies. The inclusion of this additional requirement in a final conflict clause in the ILBI would evidently resolve the question of whether the notion of not undermining is directed at the mandate, authority or competence of relevant bodies, or instead at their effectiveness. Whether a future conflict clause in the ILBI will include the explicit requirement of respecting the competence of relevant bodies for BBNJ is, however, far from settled. For instance, the Core Latin American Group (CLAM) commented on Article 4 of the revised draft text by emphasising the need for “legislative harmonization and the participation of other international instruments and organi[s]ations to ensure that there is no over-regulation or interference in other jurisdictions or competences.”⁶¹ To that end, the CLAM pointed out “that the key for achieving the mandate of not undermining [was] […] to fully observe the competencies of the relevant forums, organisms and instruments” and supported the requirement to respect the competence of relevant bodies for BBNJ in Article 4(3) of the revised draft text.⁶² The United States also proposed, albeit without an explanation, to keep the requirement to respect the competence of relevant bodies for BBNJ in Article 4(3) of the revised draft text.⁶³ The International Chamber of Shipping went even further by suggesting that Article 4(3) should include the requirement to “fully” respect the competence of relevant bodies for BBNJ.⁶⁴ Monaco, in contrast, suggested deleting the reference to respecting the competence of relevant bodies for BBNJ and instead including a direct reference to the effectiveness of relevant legal instruments, frameworks and bodies that should not be undermined.⁶⁵ South Africa criticised Article 4 of the revised draft text more fundamentally,⁶⁶ and instead indicated support for Article 4 of the first draft text:⁶⁷

The current definition is not supported, as it has undergone deletion of previous text which was important. The text which was deleted was trying to achieve a very important aspect, namely that unless this treaty has priority when it comes to the conservation and sustainable use of biodiversity, other legal instruments and bodies can still pursue their own agendas potentially to the detriment of the implementation of this agreement. […] This treaty, to achieve its potential, needs to have priority when it comes to the conservation and sustainable use of biodiversity in ABNJ.⁶⁸

Finally, the International Union for Conservation of Nature (IUCN) suggested to change the requirement to respect the competence of relevant bodies for BBNJ to a requirement that the future ILBI “shall be interpreted and applied in a manner that […] promotes coherence and cooperation and does not undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies.”⁶⁹

Given that the wording of a future conflict clause in the ILBI remains an open question, this matter will have to be further discussed by the delegations once the IGC resumes its work, possibly in 2021. Nonetheless, two comments appear noteworthy at this point. First, too strict an interpretation of the requirement of not undermining may work against the very purpose of adopting a new treaty. South Africa emphasised precisely this aspect in a way that resonates with the observation made by Gjerde, Clark and Harden-Davies, namely by saying that “[f]or the new agreement to achieve its stated goal of conserving and sustainably using marine biological diversity of areas beyond national jurisdiction, it must improve upon the status quo.”⁷⁰ Additionally, institutional relationships built on the notion of not undermining may emphasise institutional conflicts and “turf wars,” though it may be more useful to emphasise the positive elements of coherence and cooperation, as increasingly suggested by commentators.⁷¹

Even if the explicit requirement to respect the competence of relevant bodies is not be included in the final conflict clause, the following can be noted. So far, we have focused exclusively on how the notion of not undermining has been captured in Article 4(3) of the revised draft text as a tool to determine the normative and institutional relationship between the ILBI and other relevant legal instruments, frameworks as well as relevant bodies for BBNJ. Yet, while Article 4(3) or a similar conflict clause in the ILBI would determine the relationship between the ILBI and relevant instruments, frameworks and bodies on a general level, the revised draft text also includes more specific provisions, which would be relevant for how the institutional components of the ILBI are envisioned to interact with other relevant bodies. For example, Article 48(4)(c) of the revised draft text would require a future COP to:

[p]romote cooperation and coordination with and among relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies, with a view to promoting coherence among efforts towards, and the harmonization of relevant policies and measures for, the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction [, including by establishing processes for cooperation and coordination with and among relevant global, regional, subregional and sectoral bodies] [, including by inviting other global, regional, subregional and sectoral bodies to establish processes for cooperation].⁷²

Although Article 48(4)(c) still contains a lot of bracketed text, a similar provision in the final ILBI would determine more specifically, and in a more nuanced way, how the COP, as one of the potential institutional components of the ILBI, should interact with other relevant bodies. In this way, Article 48(4)(c) would arguably constitute lex specialis vis-à-vis a general conflict clause, such as Article 4(3). It thus appears that the question of whether the notion of not undermining should be interpreted so as to be directed at the effectiveness or competence of relevant bodies for BBNJ would be of secondary importance if the final text for the ILBI were to include more specific provisions that determine how its individual institutional components should interact with other relevant bodies for BBNJ. In addition, specific provisions, such as Article 48(4)(c), could also inform the interpretation of the term not to undermine in a general conflict clause, such as Article 4(3) of the revised draft text.

Of course, all the preceding analysis remains tentative, given that the negotiating process is ongoing. It remains far from clear when a new agreement will be adopted and whether it will contain the current draft articles, and, if so, in what form, given all the remaining brackets and the underlying disagreements. As illustrated above in relation to the revised draft text, some delegations have been consistently pushing for a well-defined recognition of the obligation of the ILBI not to undermine existing instruments, framework and bodies. Others, by contrast, have more broadly emphasized the need for enhanced cooperation, coordination and coherence among existing instruments, frameworks and bodies of the ILBI. This latter focus is important as it would emphasise the positive and collaborative relationship of the ILBI to other bodies and highlight potential synergies.⁷³ Having offered a brief outline of the range of the meanings of and negotiating positions on the notion of not undermining, including the tensions between a negative and conflict-oriented and a positive and collaborative inflection of the notion, it is now time to turn our attention towards the Arctic Council. The next section will discuss the role of the Arctic Council in Arctic governance, while the subsequent section will address a number of questions related to whether or not the Arctic Council is one of the bodies the ILBI should not undermine, as well as what role the Arctic Council may play in relation to Arctic governance once the ILBI is adopted.

3 The Arctic Council and Arctic Ocean Governance

The existing governance framework for the Arctic Ocean is complex, and consists of a web of global (e.g. UNCLOS and the Convention on Biological Diversity (CBD))⁷⁴ and regional instruments.⁷⁵ The Arctic Ocean is therefore far from being “an international law vacuum.”⁷⁶ Yet, as it lacks a “comprehensive regional regime,”⁷⁷ regional cooperation in the Arctic has been, to a considerable degree, facilitated by the “soft power” of the Arctic Council.⁷⁸

The Arctic Council was established in 1996 by the non-legally binding 1996 Ottawa Declaration as “a high level forum” with the aim to facilitate “cooperation, coordination and interaction […] on common Arctic issues, in particular issues of sustainable development and environmental protection,” while questions of “military security” are explicitly excluded from its mandate.⁷⁹ The Arctic Council has eight Member States, namely Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden and the United States of America.⁸⁰ In addition, up to seven Arctic Indigenous peoples organisations can be accorded the status of Permanent Participants,⁸¹ as a means to ensure their “active participation and full consultation,”⁸² whereas non-Arctic States, inter-governmental and inter-parliamentary organisations as well as non-governmental organisations may be granted the status of observer.⁸³

The Arctic Council holds its ministerial meetings on a biennial basis, while the Senior Arctic Officials (SAOs), who are appointed by every member State of the Council, meet “at least twice a year.”⁸⁴ Since 2013, the Arctic Council has appointed a permanent secretariat in Tromsø, Norway, which shall facilitate the activities of the Arctic Council, inter alia, by strengthening its “administrative capacity,” as well as “by providing continuity, institutional memory, [and] operational efficiency.”⁸⁵ The bulk of the work of the Arctic Council is, however, conducted within its six working groups (WGs):⁸⁶ (i) the Arctic Contaminants Action Program (ACAP); (ii) the Arctic Monitoring and Assessment Programme (AMAP); (iii) the Conservation of Arctic Flora and Fauna (CAFF); (iv) the Emergency Prevention, Preparedness and Response (EPPR); (v) the Protection of the Arctic Marine Environment (PAME) as well as (vi) the Sustainable Development Working Group (SDWG).⁸⁷ For example, the PAME WG adopted the non-binding Framework for a Pan-Arctic Network Of Marine Protected Areas,⁸⁸ and, more recently, issued the Arctic Protected Areas: Indicator Report.⁸⁹ Given its nature as an intergovernmental high-level forum, the Arctic Council lacks, however, the competence to adopt legally binding decisions or instruments,⁹⁰ which is why the Council has, for the most part, functioned as “a forum for study and discussions”⁹¹ of Arctic issues, and, in this regard, fulfilled a “monitoring and assess-ment [sic] role” through its WGs.⁹² Yet, the Arctic Council has occasionally also fulfilled “a decision-shaping role or a limited regulatory role.”⁹³

Amidst concerns that the current governance framework for the Arctic Ocean was inadequate to respond to regulatory challenges, there has been much debate on whether a regional treaty for the Arctic Ocean, potentially modelled after the Antarctic Treaty System (ATS), was necessary.⁹⁴ Proposals were put forward to transform the Arctic Council from a high-level intergovernmental forum into an international organisation based on a legally binding treaty.⁹⁵ Responding to such suggestions, the Arctic coastal States (Canada, Denmark, Norway, the Russian Federation and the United States of America), which are commonly referred to as the Arctic 5, adopted the 2008 Ilulissat Declaration.⁹⁶ In the latter declaration, the Arctic 5 stated that there was “no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.”⁹⁷ Instead, they pointed to “an extensive international legal framework […] [applicable] to the Arctic Ocean,” specifically emphasising the law of the sea.⁹⁸ In addition, the Arctic 5 emphasised the role of the Arctic Council for Arctic Ocean governance and expressed their commitment “to continue to contribute actively to the work of the Arctic Council.”⁹⁹

While the Arctic 5 thus opposed any “new comprehensive international regime” for the Arctic Ocean in the 2008 Ilulissat Declaration,¹⁰⁰ they adopted, together with the other member States of the Arctic Council,¹⁰¹ issue-specific agreements on various topics, such as scientific cooperation, search and rescue and oil spill preparedness.¹⁰² These agreements were negotiated under the auspices of the Arctic Council,¹⁰³ and some commentators have underlined the role of the Council, through e.g. EPPR, in facilitating the implementation of some of these agreements.¹⁰⁴ This has prompted Molenaar to conceptualise the policy-shaping and treaty facilitation role of the Arctic Council in terms of the “Arctic Council System” (ASC).¹⁰⁵ The idea of an ACS, which offers a useful way of capturing the governance role of the Arctic Council, does not, however, capture developments that have been occurring outside of the sphere of influence of the Council.¹⁰⁶ One example of this is the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement),¹⁰⁷ which was not negotiated under the auspices of the Arctic Council, but instead by the Arctic 5, together with China, Iceland, Japan, South Korea and the European Union (EU).¹⁰⁸

In light of the above-mentioned concerns that the current governance framework for the Arctic Ocean was inadequate, the Arctic Council established two Task Forces on Arctic Marine Cooperation (TFAMC). The first was set up in 2015 in order “to assess future needs for a regional seas program or other mechanism, as appropriate, for increased cooperation in Arctic marine areas.”¹⁰⁹ In its final report, TFAMC I identified various “functional needs” for Arctic marine cooperation,¹¹⁰ noting the potential of “further exploring the establishment of a new Arctic Council subsidiary body, in combination with complementary enhancements to existing Arctic Council mechanisms.”¹¹¹ Interestingly, TFAMC I explicitly mentioned the BBNJ process in its final report by noting that TFAMC was “cognizant that the commitments our respective governments undertake in global fora […] represent the standards against which our marine cooperation outcomes will be measured.”¹¹² In 2017, TFAMC II was mandated by the Arctic Council to develop the terms of reference […] for a possible new subsidiary body as well as “recommendations for complementary enhancements to existing Arctic Council mechanisms.”¹¹³ Yet, the SAOs decided in 2018 to limit the mandate of TFAMC II to recommendations only.¹¹⁴ The process of developing a new subsidiary body under the Arctic Council has consequently stagnated. This notwithstanding, the recommendations for complementary enhancement of the Arctic Council’s institutions included setting up “a SAO-based mechanism to guide the marine work of the Arctic Council and improve coordination on marine issues in the Arctic Council.”¹¹⁵ Thus, despite insistent questions on “whether the current institutional set-up of the Council will be sufficient to address future challenges and ambitions,”¹¹⁶ there has been no political will to strengthen the institutional capacity of the Arctic Council so far. Nor has there been much enthusiasm among the Arctic States to adopt a comprehensive regional treaty for the Arctic Ocean. Against this backdrop, the next section reflects on the implications of the likely future applicability of the ILBI to some parts of the Arctic Ocean with a specific emphasis on the role of the Arctic Council vis-à-vis the ILBI.

4 The Arctic Council and the ILBI

The ILBI is envisioned to apply to “areas beyond national jurisdiction,” i.e. the high seas and the Area.¹¹⁷ Hence, the ILBI will apply to the considerable high seas portion of the Arctic Ocean and the Area, although the exact extent of the latter remains an open question,¹¹⁸ since the Arctic coastal States are still in the process of delineating their respective outer continental shelf beyond 200 nautical miles pursuant to Article 76 UNCLOS.¹¹⁹

As mentioned in the introduction, Koivurova and Caddell characterised the “ILBI as a potential milestone in Arctic governance,”¹²⁰ and more specifically argued that the Arctic Council “may provide particularly fertile ground for achieving the objectives of the ILBI within this region.”¹²¹ Others, by contrast, have urged institutional developments to ensure effective Arctic conservation and the continuing relevance of the Arctic Council vis-à-vis the ILBI.¹²² Since the BBNJ negotiations are ongoing, it is too early to assess whether and to what extent the Arctic Council will indeed play an active role in achieving the objectives of the ILBI, which will likely be “the long-term conservation and sustainable use of marine [BBNJ] […] through effective implementation of the relevant provisions of the [LOS] Convention and further international cooperation and coordination.”¹²³ Yet, two intertwined points will likely have a bearing on the eventual role the Arctic Council will or can play: the institutional structure of the ILBI and the way the ILBI will define its relation with other instruments, frameworks and bodies.

The first point targeting the institutional structure of the ILBI is, in fact, a question of whether the agreement will adopt a global, regional or – perhaps most likely – some form of hybrid approach.¹²⁴ As stressed above, Arctic coastal States have consistently resisted a global legal and governance framework for BBNJ, favouring by contrast a regional approach that shall not undermine existing regional and sectoral bodies.¹²⁵ A similar position is held by some of the other members of the Arctic Council (notably Iceland) and by States with an “active Arctic interest,”¹²⁶ such as China, Japan and South Korea.¹²⁷ The second point relates to how the ILBI will define its normative and institutional relationship with other instruments, frameworks and bodies. In this respect, a key question is whether the Arctic Council could be regarded as a “relevant regional body” which shall not be undermined by the future ILBI. It is to this question that we now turn.

In its current form, Article 4(3) of the revised draft text uses the wording relevant global, regional, subregional and sectoral bodies. This begs two questions: first, whether the Arctic Council can be subsumed under the term bodies. Second, if the Arctic Council can be considered a body for the purposes of the ILBI, a follow-up question is then whether the Arctic Council is a relevant body, and whether relevance is an all or nothing question or whether relevance may relate to certain functions only (as discussed in section 4.2).

While the question of whether the Arctic Council could be subsumed under the term body has not yet received much attention, it was observed that the Arctic Council lacks “legal personality or formal status as an international organi[s]ation,” which could mean that “it is highly doubtful, at least prima facie, that it could be considered as one of the [relevant] bodies” the ILBI should not undermine.¹²⁸ Others have observed that “[g]iven that the ILBI will prefer to cooperate with (or at least not undermine) regional mechanisms, there appears to be particular scope to advance the four thematic priorities of the ILBI through the Arctic Council.”¹²⁹ Though, on the basis of this observation, it is doubtful whether it is possible to derive any conclusive argument about whether the Arctic Council could qualify as a body in the sense of the UNGA Resolution 72/249. Additionally, neither the latter resolution, nor Article 4(3) of the revised draft text define the term “bodies.” According to the Oxford Dictionary, the term body has various meanings.¹³⁰ The first meaning refers to “[t]he physical structure, […] of a person or an animal.”¹³¹ The more fitting meaning in the current context would, however, be “[a]n organized group of people with a common purpose or function.”¹³² Here, the Oxford Dictionary mentions as two examples “a regulatory body” as well as “international bodies of experts.”¹³³

Given the lack of a definition of a body in the revised draft text and the broadness of the ordinary meaning of the term, the Arctic Council, as a “high level forum,” could perhaps be considered as a body. This conclusion can be supported by the fact that both UNGA Resolution 72/249 and Article 4(3) of the draft text refer to the term body and not international organisation. Unlike the notion of body, international organisation is a term of art in international law.¹³⁴ For instance, Article 2(a) of the ILC Draft Articles on the Responsibility of International Organi[s]ations (Draft Articles) defines the term international organisation for the purpose of the Draft Articles as “an organi[s]ation established by a treaty or other instrument governed by international law and possessing its own international legal personality.”¹³⁵ Since the Arctic Council was not established by a treaty or other instrument governed by international law and lacks legal personality, in principle it would not qualify as an international organisation.¹³⁶ The fact that Article 4(3) of the revised draft text does not use the term international organisation but the notion of body instead appears, however, to support the view that the Arctic Council could be subsumed under the notion of regional body in the sense of Article 4(3) of the revised draft text.

As mentioned in section 2, the notion of not undermining relevant instruments, frameworks and bodies presumably emerged during the work of the BBNJ WG in relation to the perceived need, on the part of some delegations, to “safeguard” the Fish Stocks Agreement and the broader framework of international fisheries law, including regional fisheries management bodies.¹³⁷ This could point to a more restricted meaning of the term body, in the sense of a regulatory body with legal personality under international law.¹³⁸ In that respect, while not conclusive, the history of the emergence of the term body may be of some interpretative relevance as part of the drafting history.¹³⁹

Additionally, the notion of not undermining was at first one of a constellation of concepts that were discussed during the BBNJ WG sessions.¹⁴⁰ In fact, the Appendix to a 2014 letter from the Co-Chairs of the BBNJ WG to the President of the General Assembly indicates that the discussion focused on the broader notion that a potential new instrument “[s]hould not undermine, duplicate or change existing instruments.”¹⁴¹ Other terms and formulations capturing similar concerns were also included, such as the idea that a new treaty would need to “[r]espect and complement the existing mandates of relevant organi[s]ations and avoid duplications” or should not “subordinate existing instruments.”¹⁴² Some delegations further emphasised how “[d]ecision-making for regional and sectoral activities should remain with the relevant regional and sectoral organi[s]ations.”¹⁴³ During the BBNJ WG, the focus thus seemed to have been related to avoid interfering with the decision-making of regional organisations or duplicating or changing existing instruments, and both terms seem to indicate a specific legal basis that may exclude informal arrangements or fora. However, as already mentioned, the terminology shifted during the BBNJ process from the original reference to organisations in the BBNJ WG to the subsequent term body. This raises a question of whether the terminological shift indicates that the later use of the term body captures the intention of deliberately broadening the scope of the concept of not undermining to bodies other than international organisations.

Unless the future ILBI specifically clarifies the meaning and definitional scope of the term body, it may seem reasonable to consider that the choice of the term body as opposed to international organisation, in light of the broad ordinary meaning of the former, may support the interpretation that the Arctic Council can be regarded as a body for the purposes of the not undermining clause.

Yet, even if the Arctic Council can be considered a body for the purposes of the ILBI, a follow-up question is whether the Council would also be a relevant body. There are two questions to address in this respect: first, the subject matter relevance; second, the regulatory relevance. As for the first question, the Arctic Council’s mandate encompasses, as mentioned above, cooperation, coordination and interaction on common Arctic issues, particularly issues of sustainable development and environmental protection. As such, it overlaps with the overall objectives of the ILBI – the conservation and sustainable use of marine biodiversity – and with at least one of its substantive topics, that is, ABMTs, including MPAs. For example, as noted above, the PAME WG of the Arctic Council adopted the non-binding Framework for a Pan-Arctic Network of Marine Protected Areas,¹⁴⁴ and, more recently, issued the Arctic Protected Areas: Indicator Report.¹⁴⁵ We can thus say, with a degree of safety, that the Arctic Council is, from a subject matter perspective and with particular regard to the question of MPAs, a relevant body from the perspective of the subject matter.

The second question targeting the regulatory relevance is more complex. Article 6(3) of the revised draft text envisages, albeit in bracketed text, that “States Parties shall cooperate to establish new global, regional and sectoral bodies, where necessary.” More specifically in relation to the topic of ABMTs, the revised draft text also envisions, again in bracketed text, that “States Parties shall cooperate to establish […] an instrument, framework and body” with the capacity to establish ABMTs in case “there is no relevant legal instrument or framework or relevant global, regional, subregional or sectoral body” with such capacity.¹⁴⁶ It is thus fairly clear that the focus on regional bodies hinges on their regulatory capacity, i.e. on their competence to adopt specific conservation measures, such as, the designation of MPAs. In regions where a body with such competence does not exist, the ILBI envisions, albeit tentatively at this stage, the creation of such body. By contrast, the Arctic Council, as a high-level intergovernmental forum for cooperation, does not have competence to designate MPAs, adopt conservation measures or any legally binding decisions.¹⁴⁷ Thus, it seems to be excluded from the scope of these provisions, which in turn leads to the consideration that, even though it may be considered a body (or a framework, for that matter),¹⁴⁸ it may not be a relevant body for the purposes of the not undermining clause. In other words, even if the Arctic Council could, in abstract, be considered a body for the purposes of the ILBI, there would not be much to undermine in practice, given that it can neither adopt any regulatory measure, such as MPAs, nor impose legally binding obligations on its members. However, there may be more to consider. For example, if the ILBI requires or encourages the establishment of bodies with regulatory competence in relation to the designation of MPAs in regions where no such bodies exist, this could re-start the stagnated process to develop a subsidiary body under the Arctic Council, given that Arctic States have historically favoured a regional approach, and have been consistently focused in their role as stewards of the Arctic. Additionally, the lack of regulatory competence does not necessarily entail the lack of relevance in other respects. In fact, a potential further question relates to the relevance of the Arctic Council with respect to the process of identification of MPAs, a role already fulfilled today. Relatedly, one could ask whether the Arctic Council could be undermined by the operation of one of the envisioned bodies to be adopted under the ILBI, namely a scientific and advisory body that may have a mandate that overlaps with that of the Arctic Council.

One such question has been raised in the context of the CAOF Agreement and, in particular, in terms of Article 14(3) of the CAOF Agreement, which stipulates that “[t]his Agreement shall not undermine nor conflict with the role and mandate of any existing international mechanism relating to fisheries management.” Such international mechanisms relating to fisheries management would arguably include scientific advisory bodies, as confirmed by the Norwegian Government’s proposal to Parliament to ratify the CAOF Agreement.¹⁴⁹ With respect to Article 14, this proposal observes that the CAOF Agreement shall not undermine¹⁵⁰ existing international fisheries management mechanisms,¹⁵¹ and mentions specifically the International Council for the Exploration of the Sea (ICES).¹⁵² The reference to the ICES is interesting for our purposes. While the ICES, unlike the Arctic Council, is an international organisation under international law, both, nonetheless, provide scientific knowledge that needs to be operationalised by competent international bodies. As the question of not undermining is thus in the context of the CAOF Agreeement also linked to scientific advisory bodies, the overlap or conflict of competence may be related to Article 4 of the CAOF Agreement, which sets out to establish a Joint Program of Scientific Research and Monitoring. It is then, perhaps, reasonable to raise the question also in relation to any overlap of mandate between the Arctic Council (as such or with more specific reference to one of its WGs) and a scientific body to be established under the ILBI, notwithstanding the fact that the Arctic Council is not an international organisation. In this context, it is, however, reasonable to consider that the question at stake is really one of duplication of functions (and thus also of efficiency), rather than one of undermining stricto sensu, though duplication is one of the elements of the notion of not undermining, at least according to some commentators.¹⁵³ This consideration may be also strengthened if one looks at the outcome document of the 2017 UN Ocean Conference, “Our Ocean, Our Future: Call for Action.”¹⁵⁴ The document, in fact, affirms “the need to enhance the conservation and sustainable use of oceans and their resources by implementing international law as reflected in the United Nations Convention on the Law of the Sea.” It further emphasises how “actions to implement [Sustainable Development] Goal 14 should be in accordance with, reinforce and not duplicate or undermine existing legal instruments, arrangements, processes, mechanisms or entities” and reiterates how UNCLOS “provides the legal framework for the conservation and sustainable use of oceans and their resources.”¹⁵⁵

The ILBI may not only determine institutional relations and cooperation at a general level, but also more specifically. For example, Article 49 of the revised draft text, which establishes a Scientific and Technical Body, specifies in its current form that such a body “may also draw on appropriate advice from [existing arrangements, such as the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection], [relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies], as well as other scientists and experts, as may be required.” The language used in this draft article points to operative words such as coordination and cooperation, rather than undermining. In this respect, Article 49 of the revised draft text serves as another example that the draft text appears to be moving away from a narrow focus/approach on not undermining and shifts rather towards focusing on coherence, cooperation and coordination between its different institutional components and other relevant (regional) bodies. This shift of focus has been, indeed, encouraged by the existing literature,¹⁵⁶ and also seems to be a more reasonable approach for achieving the overall objectives of the ILBI and UNCLOS, of which the ILBI shall be an implementing agreement. Indeed, a similar shift towards focusing on cooperation and coordination, instead of not undermining, has, in part, occurred in the context of the CAOF Agreement.¹⁵⁷

5 Conclusion

This article has reflected on the role of the Arctic Council vis-à-vis a future ILBI and, in doing so, explored the question of whether the Arctic Council can be considered one of the bodies that the ILBI shall not undermine. This question captures the intersection of several important aspects of the negotiations. First, the question of not undermining, which remains central to the negotiations and is far from being settled. Second, and more broadly, the institutional arrangement of the ILBI, and relatedly the debate on whether the ILBI should have a prominently global or regional approach. Third, these aspects are concretised in relation to the Arctic, which is particularly significant vis-à-vis the BBNJ negotiations (i) given its ecological vulnerability; (ii) because important legal and governance gaps exist; and finally, (iii) because Arctic States have consistently preferred a regional approach to BBNJ governance throughout the BBNJ process.¹⁵⁸

The Arctic Ocean has not been devoted specific attention at the BBNJ negotiations thus far, although some scholars have started exploring the potential implications of the likely future applicability of the ILBI to those parts of the Arctic Ocean that lie beyond national jurisdiction. Since the BBNJ negotiations are still ongoing, it is too early to precisely assess the role of the Arctic Council vis-à-vis the ILBI. Its role will, however, likely depend on several elements: (i) the institutional structure and design of the ILBI; (ii) whether the Arctic Council could be regarded as a relevant regional body, and in relation to which function; and (iii) how the ILBI will determine its institutional relationship with relevant bodies. However, we have attempted to raise some of these questions and discuss possible ways to answer them in light of the available documents, such as the revised draft text. In this respect, the article has first explored the meaning of the concept of undermining, as well as the (limited) existing literature that has attempted to interpret the term. The article has subsequently discussed the Arctic Council, especially its structure and its mandate, in order to assess whether it can be considered as a body for the purposes of the not undermining clauses contained in the latest draft text of the ILBI, albeit partly still in tentative and bracketed form. The question, however, has several dimensions. Indeed, even if the Arctic Council can formally be considered as a body, it still needs to be a relevant one. While the answer to the first question may well be positive, the answer to the second is negative, to the extent that the Arctic Council has, for instance, neither the competence to designate MPAs nor to adopt any legally binding measures made applicable therein. A different answer may be given if one focuses on relevance with respect to a more limited function. A brief illustration was given in relation to the role of the Arctic Council and of its relevant WGs. This more limited role refers to the production of scientific knowledge that may be instrumental for identifying MPAs or to implement an ecosystem approach to the conservation of Arctic biodiversity. In this respect, the Arctic Council may function as a network of regional scientific bodies that feed into the ILBI and its overarching global bodies, thus contributing in a coherent, cooperative and coordinated manner to the overall achievement of the global goals of ocean governance. This integration would, moreover, build on the networks of collaboration that the different WGs of the Arctic Council already participate in.¹⁵⁹ Additionally, should the ILBI require the establishment of regional bodies able to designate MPAs in regions where there are no such bodies, this might re-start the stagnated process to develop a subsidiary body under the Arctic Council. In this sense, new life could be infused into the project of enhanced marine Arctic cooperation that fell short of its ambitions.

Ultimately, the very focus on the notion of not undermining may be counterproductive for the ILBI and for ocean governance more broadly insofar as it emphasises conflicts of competence rather than synergies. Indeed, too stringent an interpretation of the notion of not undermining, combined with a broad understanding of the term body, could stifle the capacity of the ILBI to effectively achieve its objectives and to implement UNCLOS at the outset, which hinges to a larger extent on its ability to “improve upon the status quo.”¹⁶⁰

Yet, the ILBI already contains some language that focuses on the positive dimensions of coherence, coordination and cooperation, and it would be useful if the future draft texts for the ILBI would further strengthen this shift in focus towards synergies to frame the relationship between the ILBI and other relevant instruments and bodies. Then, the key issue would be to address how to coordinate the activities of instruments and bodies with overlapping or similar competences so as to achieve what are ultimately the overarching goals of biodiversity conservation and of protection and preservation of the marine environment enshrined in UNCLOS and the CBD.¹⁶¹ Some commentators have begun indicating some ways to effectively shift the focus,¹⁶² but much work remains to be done, especially in terms of how to integrate this shift coherently throughout the ILBI and how to ensure that this shift gathers consensus among negotiators. This task clearly exceeds the scope of this article, however, we hope this article is a contribution in that direction.