Conservation and Sustainable Use of Arctic Marine Biodiversity:

• Author: Tore Henriksen
• Pages: 91-120

249

[start kap]

Conservation and Sustainable Use of

Arctic Marine Biodiversity:

Challenges and Opportunities

Tore Henriksen, University of Tromsø, Norway 1

Abstract: e status of the mar ine Arctic as ‘the last w ilderness’ may be chal-

lenged in future by increased activ ities provided by the melting of the sea ice.

e fragile ecosystems a nd habitats may come under threat. In this art icle the

international law on conservation and sustainable use of ma rine biodiversity

is explored where the ecosystem approach has been developed, and these legal

and semi-legal norms are related to the marine A rctic. Particu larly challeng-

ing is to implement the ecosystem approach within the mar itime jurisdiction.

Although still a w ilderness, state practice indicates that implementation wil l not

be any easier in the Arctic, a nd that it will not become a laboratory for new legal

regimes. Most likely sectoral regu latory regimes will be extended or developed as

dierent threats materializ e. One of the main challenges wil l be to ensure proper

coordination between these to apply the ecosystem approach.

Keywords : Arctic, international envi ronmental law, biodiversity, law of the sea

1. Introduction

Biodiversity and ecosystem were introduced as legal terms in international law

through the 1992 Convention on Biodiversity (hereaer also CBD).2 e con-

cepts have subsequently been included in international sheries law such as t he

1. Tore Henriksen is professor dr. jur is at the Faculty of Law, University of Tromsø, Nor way.

2. Convention on Biological Diversity, adopted 5 June 1992 , in force 29 December 1993, 1760

UN Tre aty Se rie s, p. 29.

Arctic Review o n Law and Politics, vol. 1, 2/2010 p. 249-278. ISSN 18 91-625 2

tore henriksen

250

1995 Fish Stocks Agreement (hereaer also FSA)3 and regiona l seas conventions

such as the OSPAR Convention.4 e prevailing approach to the regulation of hu-

man activities in international environmental law has been and still is sectoral.

e 1982 UN Convention on the Law of the Sea (hereaer LOS Convention) pro-

vides a good example, as states have separate obligat ions on the conservation and

management of living marine resou rces and on protection and preservation of the

marine env ironment.5 Furthermore, the obligation to protect the environment is

separated into several obligations dependent on the sources of pollution, such as

shipping, petroleum activ ities and land-based activities. e biodiversity a nd eco-

system concepts add more holistic perspectives to conser vation and management

of the marine environment, expressed through concepts such as the ecosystem

approach. Applying the ecosystem approach would imply that states assess and

manage the cumulative eec ts of dierent human activities (e.g. shing and pol-

lution) and natural variations in context.

e main objective of this article is to present and assess obligations on the

conservation and sustai nable use of biodiversity and the implications for the ma-

3. Agreement for the Implementation of the Prov isions of the United Nations Convention on

the Law of the Sea of 10 Decemb er 1982 Relating to the Conservat ion and Management of

Straddli ng Fish Stocks and High ly Migratory Fish Stock s, New York, 4 August 1995, in force

11 December 2001, United Nations, Tr eat y Se ri es, vol. 2167, p. 3, Article 5 (g).

4. Convention on t he Protection of the Mar ine Environment of the Nor th–East Atlant ic Annex

V on the protection and c onservation of the ecos ystems and biological di versity of the mari-

time area, Pa ris, 22 September 1992, in force 25 Ma rch 1998, United Nations Trea ty S eri es,

vol. 2354, p. 70.

5. United Nations Convention on the L aw of the Sea, 10 December 1982, in force 16 November

1994, United Nations, Tr eat y Se ri es, vo l. 1833, p. 3. Obligations on living mari ne resources

are found in Par t V (Article 61) and Part VII (Article 119), while obligat ions to prevent pol-

lution from dierent sou rces are regulated in Pa rt XII.