Ensuring the Protection of Arctic Marine Biodiversity in the Face of Climate Change

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1 Ensuring the Protection of Arctic Marine Biodiversity in the Face of Climate Change Jennifer Jeffers School of Law and College of Natural Resources University of California, Berkeley 33 rd Annual Conference for the Center for Oceans Law and Policy Friday, May 22, 2009 Seward, Alaska

2 OVERVIEW Current state of Arctic biodiversity Existing legal frameworks governing Arctic and their applicability to marine biodiversity considerations Scope of climate change effects on specific Arctic ecosystems and species Human threats to Arctic marine biodiversity Suggestions of governance regime responses and options for the future to better ensure protection of Arctic marine biodiversity

3 BIODIVERSITY Provides goods and services to sustain human life, food and health needs of growing populations, scientific value, ethical and aesthetic values BUT, facing increasing threats and rapid extinction on global scale Many of these threats are human induced Unsustainable exploitation Destructive extraction and exploration practices Damage from ships Introduction of invasive species and marine pollution Dumping of hazardous wastes New threat has appeared climate change (CC) Arctic region facing increasing challenges to biodiversity on an unprecedented scale

4 CURRENT STATE OF ARCTIC BIODIVERSITY Arctic Climate Impact Assessment (ACIA) Most comprehensive independently reviewed evaluation of Arctic climate change effects, Arctic Biodiversity Assessment (ABA) Provide synthesis of most current scientific research on Arctic biodiversity, scientific and policy reports, Circumpolar Biodiversity Monitoring Program (CBMP) Effort to harmonize monitoring efforts across Arctic, identify trends and pressures, used to assist policymakers, 2010 International Polar Year ( ) Scientific program focused on the Arctic and the Antarctic, March 2007 to March 2009

5 CLIMATE CHANGE EFFECTS ON ARCTIC ECOSYSTEMS AND SPECIES Fish stocks CC effects on fisheries still very uncertain due to scarce baseline data, immense number of inter-relating factors involved Production and distribution of fish depends strongly on environmental conditions Projections: Southern limit for colder fish species will move northward shrink current range and decrease abundance Warmer water fish distributions will move northward expand current range and increase abundance Fish with slow reproduction rates and those at northernmost range limits most threatened Species overlap expected as species move northward at different rates, also impacts transboundary migration issues Heavy anthropogenic pressure will further complicate expected reactions to CC

6 CLIMATE CHANGE EFFECTS ON ARCTIC ECOSYSTEMS AND SPECIES Seabirds 60+ species inhabit the region, 40+ nest there Changes in distribution, breeding, time in region, migration routes Species already at range limits face extinction due to habitat loss New competition for limited resources Increased susceptibility to diseases Marine Mammals Ecosystem Sentinels CC will have negative repercussions on most marine mammals due to changes in and loss of sea ice reducing populations to vulnerable levels Most impacted: polar bears, walrus, ice-inhabiting seals, narwhals Certain cetaceans also delaying migration, expanding feeding ranges, remaining in polar waters over winter Species current systems stressed behavior and physiology becoming altered

7 HUMAN THREATS TO BIODIVERISTY Fishing Reduction in extent and duration of ice Increase fishing activity, extend harvesting time, place further pressure on depleted or threatened fish stocks Shipping Northwest and Northeast Passages Historically ice covered potential to become ice-free New shipping routes highly lucrative commercial shipping and access to previously inaccessible oil/gas fields and fisheries Contested legal status over Northwest Passage could have severe consequences for marine biodiversity and protection Increased maritime traffic = vessel source pollution, ocean dumping, noise pollution and safety concerns

8 HUMAN THREATS TO BIODIVERISTY Oil and Gas Extraction USGS 2000 assessment nearly ¼ of world s undiscovered hydrocarbons in Arctic ( trillion barrels of oil) 2007 Report Future of the Arctic potential significantly less USGS B barrels of oil, 1,669 trillion cubic feet of natural gas, 44B barrels of natural gas liquids; 84% offshore Still high uncertainty, costs unknown, jurisdictional issues Any exploration could have significant impacts on biodiversity Extension of Continental Shelf Claims UNCLOS Article 76 and CLCS Significant incentive to extend shelf (protection of biodiversity?) Submissions by Russia, Norway, Iceland & Denmark, Canada soon May 2008: Ilulissat Declaration Arctic states will not negotiate alternative regime for the Arctic above and beyond UNCLOS

9 LEGAL FRAMEWORKS FOR BIODIVERSITY PROTECTION General Arctic Legal Framework No individual treaty regime specifically governs the Arctic Primary governance regimes are those of Arctic sovereign states, UNCLOS, International Seabed Regime One exception: Agreement on the Conservation of Polar Bears The Arctic Council Oversees inter-arctic governmental cooperation High level intergovernmental forum but no independent legal power

10 LEGAL FRAMEWORKS FOR BIODIVERSITY PROTECTION Legal Framework for Biodiversity No Arctic-wide binding legal instrument exists governing the conservation and sustainable use of marine biodiversity Arctic forums are non-binding and recommendatory only Arctic Council, North Atlantic Marine Mammal Commission UNCLOS and the Convention on Biological Diversity (CBD) serve as main overarching legal frameworks for the region Numerous other international and regional legal agreements have linkages to marine biodiversity IMO agreements (MARPOL, London Convention), International Convention on Regulation of Whaling, CITES, several FAO fisheries instruments, and various regional seas agreements

11 LEGAL FRAMEWORKS FOR BIODIVERSITY PROTECTION UNCLOS Only 2 provisions that explicitly relate to biological diversity Article 194(5): Measures to Prevent, Reduce and Control Pollution of the Marine Environment Mandates the protection of rare and fragile habitats and species Likely that obligation is too general to be effective in conserving biodiversity, however Article 196(1): Use of Technologies or Introduction of Alien or New Species Obligates States to take measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species to the ocean which may cause harmful changes

12 LEGAL FRAMEWORKS FOR BIODIVERSITY PROTECTION UNCLOS UN General Assembly (UNGA) resolutions State jurisdiction over marine biodiversity mandate? Within EEZ: Articles 56, 61, 194, 196, 56 Coastal state can exercise jurisdiction over conservation of biodiversity? Continental Shelf: Article 77, common law, natural resources definition Coastal state does not have jurisdiction over most organisms? Article 194 States must conserve continental shelf biodiversity? High Seas: Articles 117, 118, 119 fish stocks only Article 145 ISA has enforcement power to conserve biodiversity on seabed

13 LEGAL FRAMEWORKS FOR BIODIVERSITY PROTECTION CBD Single most important international convention for protecting world s biodiversity All Arctic States (except US) have ratified As a framework convention, CBD structure consists of flexible commitments that Parties interpret & implement at national level Also aligns closely to UNCLOS, applicable to the EEZ and continental shelf But, has its limits Only applies within a State s national jurisdiction Otherwise, limited to cooperation between States Does not address transboundary marine biodiversity Leaves details of obligations up to each State to enforce Does not take into account geographical and ecological differences

14 LEGAL FRAMEWORKS FOR BIODIVERSITY PROTECTION CBD Main criticism is that biodiversity loss has not been halted Developments in CBD program of work Jakarta Mandate 2010 Biodiversity Target But, no CBD provision that addresses climate change or pollution: major contributors to biodiversity loss! Focusing instead on mitigation and adaptation measures Using ecosystem approach and adaptive management 9 th COP met in May 2008 Proposals to integrate CC activities within CBD programs of work Although a start, many gaps still exist

15 POSSIBLE PATHS FORWARD? Even with all legal instruments in place, major gaps and shortcomings exist New threats have also emerged, which are not regulated at all in current biodiversity regime Includes CC and associated mitigation/adaptation measures Very little coordination of marine biodiversity protection in areas of high seas and extended continental shelf

16 POSSIBLE PATHS FORWARD? Strengthen Existing Legal Frameworks Obvious choice given current limitations of UNCLOS and CBD in effectively conserving marine biodiversity Bolster Arctic Council Look to other agreements (under IMO, FAO, etc) to review policies/activities and pursue conservation within their mandates Use CBD as a coordinating mechanism Arctic Treaty for Protection of Marine Biodiversity General Arctic Treaty not realistic (Ilulissat Declaration) BUT, possible to have treaty similar to Polar Bear Agreement, but more comprehensive? Open to non-arctic States and additional stakeholders

17 POSSIBLE PATHS FORWARD? Establishment of Marine Protected Areas (MPAs) Have ability to work under CBD mandate to utilize MPAs to conserve biodiversity but it isn t being done Integrate MPAs into existing agreements and areas beyond national jurisdiction Other ideas? Creation of National Parks in Arctic to preserve areas of highest marine biodiversity Seasonal or permanent closures of areas to fishing, exploration, and resource exploitation Creation of Arctic-wide Regional Fisheries Management Organization to manage fish stocks More??

18 CONCLUSION Legal regime must be comprehensive and ecosystembased Climate change and biodiversity loss in the Arctic does not occur in isolation but has global repercussions Confronting biodiversity loss in the Arctic allows us to better understand, and prepare for, the protection and conservation of biodiversity on a global scale