Arctic Yearbook 2015 - Page 430

430 Arctic Yearbook 2015 One of the earliest instances of cooperation among the Arctic Five – although not necessarily conceived as belonging to the domain of the international law of the sea – is the 1973 Agreement on the Conservation of Polar Bears. So far, the Arctic Five’s process on Arctic Ocean fisheries is not inconsistent with international law. Most importantly, nothing in the Oslo Declaration suggests that the Arctic Five’s commitments will be imposed on non-signatories. The Declaration only observes that the Arctic Five “intend to continue to work together to encourage other States to take measures in respect of vessels entitled to fly their flags that are consistent with these interim measures.” This will probably above all be done by means of the envisaged broader process. While the Arctic Five’s process on Arctic Ocean fisheries has so far arguably been in conformity with international law, there are certainly concerns about the envisaged broader process. First, the Arctic Five have repeatedly and explicitly claimed a lead role in the development of international regulation of high seas fishing in the central Arctic Ocean. The Nuuk Chairman’s Statement describes their lead role as “appropriate.” At earlier occasions, one or more of the Arctic Five argued their lead role to be based on their ‘special/particular responsibility’ and ‘unique interest and role’ as Arctic Ocean coastal states. The Oslo Declaration is silent about the Arctic Five’s lead role, however, and contains instead a clarification of the Declaration’s rationale and international legal basis, with particular reference to the precautionary approach. This does not mean that the Arctic Five have renounced their lead role. Among other things, they are likely to maintain full control on the crucial and sensitive issue of participation in the broader process. If participation would indeed consist of Five-plus-Five, this would be open to challenges of inconsistency with the freedom of high seas fishing and the right of all states with a ‘real interest’ to participate in RFMOs/As that have a partial or exclusive high seas mandate. The difficulty for such challenges is that Five-plus-Five would be largely in line with the current overall practice on membership or participation within such RFMOs/As. It should also be kept in mind that there are currently no commercially viable fisheries in the high seas of the central Arctic Ocean and this may remain unchanged for a considerable number of years to come. Finally, as noted above, it may well be that the Arctic Five are considering more inclusive participation than Five-plus-Five. Another reason why the Arctic Five claimed a lead role was to significantly shape the substantive output of the broader process. The Oslo Declaration stipulates that the measures resulting from the broader process are to be