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Rayfuse, Rosemary --- "Warm Waters and Cold Shoulders: Jostling for Jurisdiction in Polar Oceans" [2008] UNSWLRS 56

Last Updated: 12 December 2008

Warm Waters and Cold Shoulders: Jostling for Jurisdiction in Polar Oceans
Rosemary Rayfuse[*]

Abstract

In May 2008 the five Arctic coastal states adopted the Ilullisat Declaration in which they asserted their role as stewards, for the international community, of the Arctic Ocean ecosystem. This paper discusses the legal basis for their claim to stewardship with particular reference to the high seas portion of the central Arctic Ocean, and their assertion that no need exists for a new comprehensive legal regime in respect of those high seas waters. It is argued that while the high seas regime of the Arctic may be extensive, it is not comprehensive. Thus, the legitimacy of the claim to stewardship rests on the willingness and ability of the Arctic coastal states to work to fill the lacunae and address the shortcomings in the legal regime for the high seas of the central Arctic Ocean.

Introduction

Throughout 2007 and 2008 the international community’s attention has been focused, through the looking glass of International Polar Year, on both the fact of global climate change in, and its effects on, the earth’s polar regions. Of profound concern are the effects of climate change on the polar oceans, where warming temperatures are causing poleward shifts in the geographical distribution of species and are leading to increased shipping, tourism, scientific research and other economic activities.[1] The increasingly rapid physical changes at the poles have led inexorably to a resurgence of interest in jurisdictional issues relating to who controls what.

In the Antarctic, the parties to the Antarctic Treaty System (ATS)[2] continue to jostle among themselves and with the rest of the international community over control of the great white continent and its surrounding Southern Ocean. Within the ‘club’, Australia’s assertions of an exclusive economic zone and extended continental shelf off its Antarctic territories have done little to endear it to the other Antarctic Treaty Consultative Parties (ATCPs). Collectively the ATCPs are jostling with non-parties over jurisdiction to control ship-borne Antarctic tourism in the wake of the M/V Explorer disaster, as well as land-based tourism activities including the construction of tourist infrastructure and facilities such as hotels. The problem of non-party flag states continues to challenge the Commission on the Conservation of Marine Living Resources (CCAMLR)[3] which has also recently found itself in contest with the Commission on the Conservation of Southern Bluefin Tuna (CCSBT)[4] over jurisdictional competencies to regulate fishing for Southern Bluefin Tuna that are now moving south into CCAMLR controlled waters.

In the Arctic, the warming climate and corresponding reduction in sea ice cover has been described as having given rise to a frenzied ‘wild west’ mentality,[5] with the Arctic coastal states similarly jostling amongst themselves and with the rest of the international community for jurisdiction to control resources and activities in the Arctic. Disputes over the status of the North West Passage, the ownership of Hans Island, exploitation rights in the waters around the Svalbard archipelago, unresolved maritime boundary delimitations, and extended continental shelf claims as highlighted by Russia’s controversial – albeit legally irrelevant – planting of a flag on the seabed at the North Pole, are manifestations of just some of the jurisdictional challenges that lie ahead in the Arctic. Indeed, worried that increased access to resources will lead to everything from environmental degradation and destruction of Arctic ecosystems, to security threats, instability, and a new ‘cold war’, NGOs and others have been calling on the Arctic states to adopt measures ranging from a voluntary moratorium on all commercial activity in the Arctic to a comprehensive Arctic Treaty covering the entire Arctic and governing all aspects of environmental protection.

On 28 May 2008, the five coastal Arctic States issued the Ilulissat Declaration[6] in which they asserted, “by virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean” their role as stewards, for the international community, of the unique Arctic Ocean ecosystem. Turning a distinctly cold shoulder to the rest of the international community, the Declaration notes that “an extensive international legal framework applies to the Arctic Ocean” and there is therefore “no need to develop a new comprehensive international legal regime to govern the Arctic Ocean”. Rather, the Arctic coastal states will “take steps in accordance with international law both nationally and in cooperation among the five states and other interested parties to ensure the protection and preservation of the fragile marine environment of the Arctic Ocean”. In particular, they will work together and through the International Maritime Organisation (IMO) “to strengthen existing measures and develop new measures to improve the safety of maritime navigation and prevent or reduce the risk of ship-based pollution in the Arctic Ocean”.

This paper discusses the legal basis for the claim by the Arctic coastal states to act as stewards, on behalf of the international community, over the high seas portion of the central Arctic Ocean, and their assertion that no need exists for a new comprehensive legal regime in respect of those high seas waters. It will be argued that the high seas regime of the Arctic, while extensive, is not comprehensive and that the legitimacy of the claim to stewardship therefore rests on the willingness and ability of the Arctic coastal states to work to fill the lacunae and address the shortcomings in the legal regime for the high seas of the central Arctic Ocean.

The Arctic Coastal States as Stewards of the Arctic Ocean

Although not expressly articulated in the Ilulissat Declaration, the implication of the Declaration is that the Arctic coastal states have arrogated unto themselves the role of steward, not just of maritime areas under national jurisdiction, but of the high seas areas of the central Arctic Ocean as well. Precedent for such an assertion certainly exists. Indeed, this is essentially what these same states have done in the Agreement on the Conservation of Polar Bears[7] where they recognise their “special responsibilities” and “special interests” in relation to the protection of polar bears and agree to take action to conserve and manage polar bears through a range of measures including a prohibition on their hunting, killing and capture except in certain specified circumstances. The question is, however, whether this assertion of jurisdiction will ensure the responsible management of the Arctic high seas in accordance with the requirements of due regard for the interests of other states in their use, protection and preservation.

According to the Ilulissat Declaration, the legal basis for the assertion of stewardship jurisdiction appears to rest on the basic jurisdictional principles of the law of the sea including, in particular, the rights of coastal states in respect of ice-covered areas. These rights are articulated in Article 234 of the Law of the Sea Convention (LOSC)[8] which allocates to coastal states bordering such areas “the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within their EEZ, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance”. The only limitations on this right are the requirement to have “due regard to navigation and the protection and preservation of the marine environment”. Thus, while measures adopted cannot interfere with the freedom of navigation on the high seas or through the EEZ, there is otherwise no requirement that design, construction and other standards adopted by the coastal sate must conform to generally accepted international rules and standards.

Whether the Arctic coastal states are acting responsibly under Article 234 may partly be evidenced by the adoption of the Guidelines for Ships Operating in Arctic Ice Covered Waters (the Polar Code) [9] under the auspices of the International Maritime Organisation (IMO). The Guidelines supplement existing flag state treaty obligations relating to ship construction, crewing and operational standards with specific reference to the unique risks posed to navigation in Arctic waters by poor weather conditions, challenging ice conditions, the relative lack of good charts, communications systems and other navigational aids, and the difficulties of rescue or clean-up. The Polar Code sets out a number of additional, specific, construction and operational standards for shipping in polar waters aimed at promoting the safety of navigation and the prevention of pollution from ship operations. For example, the Code calls for the carriage of life saving and fire-extinguishing equipment able to withstand extreme cold, the use of qualified Ice Navigators, structural arrangements adequate to resist global and local ice loads, ship design sufficient to ensure stability in ice even when damaged, installation of equipment and machinery systems designed to withstand cold and ice, carriage of appropriate survival kits and equipment, and effective and redundant navigation systems.

However, the Code “is not intended to infringe on national systems of shipping control”[10] and it consists of voluntary guidelines only. Thus, no guarantees of national implementation and, in particular, of harmonised national implementation by all five coastal states exist. Moreover, enforcement of regulations adopted pursuant to Article 234 is confined to breaches which occur within the EEZ. Article 234 appears to do nothing to assist in the protection of ice-covered high seas areas. Nevertheless, given that any shipping accessing the high seas portion of the Arctic Ocean will have to pass through the EEZ of one or more Arctic coastal state, the theoretical possibility exists for these states, acting either individually or in concert, to exert a significant and possibly ‘chilling’ influence on the navigational rights of other flag states through either the adoption and enforcement of onerous standards or the lack of harmonisation of national with international standards. The legitimacy of this assertion of jurisdiction may therefore be subject to challenge if the coastal states fail to adopt appropriate and appropriately harmonised laws and regulations to implement the Polar Code.

Another potential, albeit currently theoretical, challenge to the legitimacy of jurisdictional claims based on Article 234 arises from the speed at which the physical processes of climate change are affecting the Arctic. Estimates of the time frame for the emergence of an ice-free Arctic Ocean (at least in summer) are constantly being revised downward, with some estimates now suggesting an ice-free summer period as early as 2020. As the sea ice disappears, debates as to the precise meaning of ‘particularly severe climatic conditions’, ‘most of the year’, ‘obstructions’ and ‘exceptional hazards’ can be expected and the applicability of Article 234 challenged.[11] Moreover, if the ecological balance of previously ice-covered areas has already been irreversibly altered by climate change – whether naturally or anthropogenically induced – then the basis for assessing whether such changes could be caused by ship source pollution becomes untenable.[12] In short, while arguably currently legitimate, a jurisdictional claim to assert stewardship rights based on special rights relating to ice-covered areas may, in the not too distant future, cease to be tenable.

Although not referred to in the Ilulissat Declaration, another basis for the assertion of stewardship jurisdiction may rest on an assertion of the Arctic Ocean as an enclosed or semi-enclosed sea. As defined in Article 122 of the LOSC, an enclosed or semi-enclosed sea is a “gulf, basin or sea surrounded by two or more states and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal states”. Article 123 of the LOSC requires costal states bordering an enclosed or semi-enclosed sea to “endeavour directly or through an appropriate regional organisation” to coordinate the management and sustainable utilisation of marine living resources, the implementation of their rights and duties with respect to protection and preservation of the marine environment, and their marine scientific research policies. In addition, they are “to invite, as appropriate, other interested states or international organisations to cooperate with them in furtherance of” these obligations.

While positions differ, the weight of opinion appears to reject the proposition that the Arctic Ocean is an enclosed or semi-enclosed sea.[13] Certainly, a large portion of the Arctic Ocean lies beyond the 200 nautical mile limit, such that it is debatable whether it can be said to consist ‘primarily’ of the territorial sea or exclusive economic zones of the coastal states. In any event, whether the international community accepts or rejects this assertion of stewardship may depend less on the legal characterisation of the waters as enclosed or semi-enclosed and more on the nature and extent of cooperation shown by the coastal states in respecting the legitimate interests of the broader international community in accessing and utilising the high seas of the central Arctic Ocean and its resources. In other words, it will depend on the efficacy of the high seas regime applicable to the central Arctic Ocean.

Legal Regime of the Arctic Ocean High Seas

It is true that an extensive international legal framework already applies to the Arctic Ocean. As the Ilulissat Declaration notes, “the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea”. More precisely, human activities in the high seas are governed by the overarching legal framework of the LOSC and a variety of global treaties and competent international organisations which regulate specific activities such as fishing, shipping and dumping.[14] These include the two implementing agreements to the LOSC, the Implementation Agreement on Part XI[15] and the Fish Stocks Agreement (FSA)[16] as well as the range of treaties adopted under the auspices of IMO, the most relevant of which for present purposes are the MARPOL Convention[17] and the London (Dumping) Convention[18] and the Protocol thereto.[19] Other relevant treaties include the International Convention on the Regulation of Whaling[20] and the Convention on Biological Diversity (CBD).[21]

However, this legal framework, while extensive, is neither wholly comprehensive nor fully functional. Significant shortcomings and lacunae have been identified, including both spatial and substantive gaps and potential overlaps in the various governance and regulatory regimes.[22] In particular, the decentralised and sectoral nature of the legal framework has given rise to a range of inconsistent or insufficient mandates in existing agreements and institutions and has resulted in an overall lack of coordination and cooperation both within and across the various sectors. Also noted has been the lack of incorporation into existing agreements of modern conservation principles and management tools. Even where incorporated, the application and implementation of these principles and tools has been inadequate. Other lacunae include the lack of any specific regime for the conservation and sustainable use of certain components of high seas marine biodiversity, such as most discrete high seas fish stocks, the lack of a regime for assessment of the cumulative impacts of human activities over time and across all the different sectors, and the lack of clarity on the applicable regime relating to high seas marine genetic resources.[23] Neither is there a regime for coordinating activities occurring between the high seas water column and the extended continental shelf of coastal states. This latter point is of considerable importance in the Arctic where coastal states’ claims to the outer or extended continental shelf potentially underlie all but a tiny portion of the high seas water column of the central Arctic Ocean.[24] Finally, the spectre of flag state jurisdiction continues to haunt all agreements applicable to the high seas with effective compliance and enforcement mechanisms generally missing across all regulatory sectors.

In the small area of Arctic Ocean high seas lying beyond national EEZs and between 42o west and 51o east stretching to the North Pole, the situation is somewhat ameliorated by the existence of regional regimes relating to fisheries and protection of the marine environment. The NEAFC Convention[25] applies to all fishery resources including sedentary species, molluscs and crustaceans, except marine mammals, highly migratory species and anadromous stocks. The NASCO Convention[26] applies to all anadromous stocks that migrate beyond areas of national jurisdiction of the coastal states of the North Atlantic throughout their migratory range. With respect to the broader marine environment the OSPAR Convention[27] regulates all existing maritime activities, apart from fishing, whaling and shipping, to the extent these activities are not covered by competent global organisations such as the IMO or the International Seabed Authority. Nevertheless, despite apparently complementary mandates and increasing institutional coherence between the various agreements, significant shortcomings remain and none of these organisations is currently looking at any measures relevant to that portion of the central Arctic Ocean falling under their jurisdiction.[28] In addition, not all five coastal Arctic states are party to all of these agreements and neither are a number of other states which may have an interest in access to and use of the high seas of the central Arctic Ocean. Most importantly, the NEAFC, OSPAR and NASCO regimes only apply to a very small portion of the high seas of the central Arctic Ocean.

Thus, while it is true that an ‘extensive’ legal framework exists for the conduct of activities in the high seas portion of the central Arctic Ocean, this legal framework is neither ‘comprehensive’ nor necessarily ‘effective’. The legitimacy of the Arctic coastal states’ claim to stewardship will therefore depend on their willingness to ensure the continued development of that legal framework in accordance with not only their rights and interests but those of the international community as well.

Legitimising Stewardship

The interests of the international community in the high seas of the central Arctic Ocean include navigational rights, access to high seas fisheries, the conduct of marine scientific research and the general protection of the high seas marine environment. In the Ilulissat Declaration the Arctic coastal states have committed themselves to work together with other interested states to ensure safety of navigation, search and rescue, environmental monitoring and disaster response and scientific cooperation. While the extent and outcomes of this cooperation remain to be seen, three issues not specifically addressed in the Declaration will be particularly relevant to the on-going legitimacy of any assertion of stewardship: military uses of the high seas, access to high seas fisheries, and protection and preservation of the high seas marine environment.

With respect to high seas military uses, the parties to the Ilulissat Declaration have publicly expressed their intention to cooperate in the “orderly settlement of any possible overlapping claims”. They are, of course, in any event bound by general international law principles relating to the peaceful settlement of disputes and the use of force. However, while the Declaration may serve the purpose of temporarily assuaging fears of a global security crisis precipitated by unbridled competition for resources, it does not resolve the question of future militarisation of the Arctic by both Arctic and non-Arctic states.

With respect to high seas fisheries, although currently hypothetical, there can be no doubt that fishing fleets will soon start to follow the fish stocks in their poleward shifts. Ultimately, if warming trends continue, significant high seas fisheries could develop in the central Arctic Ocean resulting in an influx of fishing vessels from non-Arctic states. Precedent exists in the Donut Hole of the Central Bering Sea,[29] the Loop Hole of the Barents Sea[30] and the Banana Hole of the Norwegian Sea,[31] for the assertion by coastal states of regulatory competence over high seas enclaves surrounded by their EEZs. However, this regulatory competence is unenforceable unless all other interested states are involved in the process and consent to its outcomes. Thus, asserting their position as stewards will not preclude the necessity of negotiation and cooperation with non-Arctic states in the management of the fisheries resources of the high seas of the central Arctic Ocean.

With respect to the broader protection and preservation of the marine environment, as discussed above, increasingly international attention is being focused on the well know inadequacies of the high seas legal regime and the means necessary to resolve those inadequacies. The mere assertion by the Arctic coastal states that an “extensive international framework applies to the Arctic Ocean” does nothing to render that framework either comprehensive or effective.

Looking to the future, these three issues could be addressed independently through the conclusion of a series of (at least) three separate multilateral agreements involving all interested states relating to regional demilitarisation of the high seas area of the central Arctic Ocean, establishment of a regional fisheries management organisation or arrangement, and a regional agreement for the protection of the high seas marine environment. An alternate approach, and one perhaps more in keeping with the unique situation and characteristics of the central Arctic Ocean and the interests of the international community in that area, would be the development of a new 21st century governance mechanism open to all states, which demilitarises the area and ensures a cross-sectoral, ecosystem-based, precautionary approach to management and use which embodies modern conservation and management principles. In other words, as I have suggested elsewhere, what is envisaged is an Arctic Ocean regional oceans management organisation (ROMO), having plenary jurisdiction over fisheries, scientific research, navigation, bioprospecting and all other high seas activities and uses, and acting as moderator between the interests of the Arctic coastal states and those of the international community.[32]

Conclusion

In the short term, the physical reality of conditions in the Arctic Ocean may appear to preclude the necessity of developing a new comprehensive international legal regime to govern the high seas of the central Arctic Ocean. However, at some stage in the possibly not too distant future – as the waters warm, ecological boundaries shift, species migrate and waters become increasingly ice-free – the Arctic coastal states will find themselves obliged to respond to the legitimate and lawful interests of other states in access to and use of the high seas of the central Arctic Ocean and its resources. Continuing to turn a cold shoulder now will only serve to alienate and irritate the international community and the jostling for position is not likely to cease.

Both precaution and history show that effective international agreements are easier to reach before vested interests become entrenched. Although it may seem a diversion from their current concerns with delimiting, entrenching and developing their own sovereign rights in the Arctic, the legitimacy of their assertion of the right to act as stewards of the Arctic for the international community and, ultimately, both their national and international security could be enhanced by the Arctic coastal states agreeing to explore the issue of a holistic, comprehensive legal framework for the high seas portion of the Arctic Ocean.

[*] Professor of International Law, Faculty of Law, University of New South Wales, Sydney, Australia. This paper was presented at the International Symposium Looking Beyond the International Polar Year: Emerging and Re-emerging issues in international law and policy for the Polar Regions, held at the University of Akureyri, Iceland, 7-10 September 2008
[1] Impacts of a Warming Arctic: The Arctic Climate Impact Assessment (Arctic Council 2004), the 140 page synthesis report of the ACIA, together with the texts of the Scientific Report (Arctic Council, 2004) and the Policy Report (Arctic Council, 2004), available at <http://amap.no/acia/> . See also IPCC, Fourth Assessment Report: Summary for Policymakers (IPCC, 2007), available at <http://www.ipcc.ch/SPM2feb07.pdf> [2] The Antarctic Treaty System is comprised of four multilateral treaties: the 1959 Antarctic Treaty, the 1972 Convention on the Conservation of Antarctic Seals, the 1982 Convention on the Conservation of Antarctic Marine Living Resources and the 1991 Protocol on Environmental Protection to the Antarctic Treaty.
[3] Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (Canberra, 20 May 1980)
[4] Convention on the Conservation of Southern Bluefin Tune (CCSBT)
[5] J.B. Bellinger, “Treaty on Ice” New York Times, 28 June 2008
[6] Adopted at the Arctic Ocean Conference hosted by the Government of Denmark and attended by the representatives of the five costal states bordering on the Arctic Ocean (Canada, Denmark, Norway, the Russian Federation and the United States of America) held at Ilulissat, Greenland, 27-29 May 2008.
[7] Oslo, 15 November 1973
[8] United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982)
[9] Guidelines for Ships Operating in Arctic Ice Covered Waters (MSC/Circ.1056, MEPC/Circ. 399, 23 December 2002)
[10] Ibid., para P-2.8
[11] D.M. McRae and D.J. Goundrey, ‘Environmental Jurisdiction in Arctic Waters: The Extent of Article 234’ 16(2) University of British Columbia Law Review, (1982) 197
[12] R. Huebert, ‘Article 234 and Marine Pollution Jurisdiction in the Arctic’ in A.G. Oude Elferink and D.R. Rothwell, The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Martinus Nijhoff, 2001) 263
[13] See E. Franckx, Maritime Claims in the Arctic: Canadian and Russian Perspectives (Martinus Nijhoff, 1993) 240-243 and D.R. Rothwell, The Polar Regimes and the Development of International Law (Cambridge University Press, 1996) 211-212
[14] For a comprehensive study of global regimes applicable in the Arctic see L. Nowlan, Arctic Legal Regime for Environmental Protection (IUCN, 2001)
[15] Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (New York, 28 July 1994)
[16] Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York ,4 August 1995)
[17] International Convention for the Prevention of Pollution from Ships (London, 2 November 1972), as modified by the 1978 Protocol (London, 1 June 1978) and as regularly amended
[18] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 29 December 1972)
[19] 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 7 November 1996)
[20] International Convention for the Regulation of Whaling (Washington, 2 December 1946)
[21] Convention on Biological Diversity (Nairobi, 22 May 1992)
[22] For a comprehensive analysis of the gaps in the high seas legal regime see K.M. Gjerde, et al., “Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction”, IUCN Marine Series No. 1, available at http://cmsdata.iucn.org/downloads/iucn_marine_paper_1_2.pdf; K.M. Gjerde et al., “Options for Addressing Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, IUCN Marine Series No. 2, available at http://cmsdata.iucn.org/downloads/iucn_marine_paper_2.pdf . See also Report of the Workshop on High Seas Governance for the 21st Century, New York, 17-19 October 2007, available at http://cmsdata.iucn.org/downloads/iucn_workshop_co_chairs_summary_new_iucn_format.pdf.
For an analysis of gaps and overlaps in the context of high seas fisheries see E.J. Molenaar, ‘Managing Biodiversity in Areas Beyond National Jurisdiction’ 22(1) International Journal of Marine and Coastal Law (2007) 89-124
[23] See,e.g., T. Scovazzi, ‘Bioprospecting on the Deep Seabed: A Legal Gap Requiring to be Filled’ in Francioni and Scovazzi (eds) Biotechnology and International Law (Oxford, 2006) 81; D. Tladi, ‘Genetic Resources, Benefit Sharing and the Law of the Sea: The Need for Clarity’, 13 Journal of International Maritime Law (2007) 183; D.K. Leary, International Law and the Genetic Resources of the Deep Sea (Martinus Nijhoff, 2007)
[24] R. Rayfuse, ‘Melting Moments; The Future of Polar Oceans Governance in a Warming World’ 16:2 Review of European Community and International Environmental Law (2007) 196, 207. For an analysis of the law relating to protection of marine biodiversity on the outer continental shelf see J. Mossop, ‘Protecting Marine Biodiversity on the Continental Shelf Beyond 200 Miles’, 38:3 Ocean Development and International Law (2007) 283
[25] The 1982 Convention on the Future of Multilateral Cooperation in North-East Atlantic Fisheries was amended in 2004 and 2006 and the amended text is being applied provisionally by states parties pending ratification. The 1982 Convention did not define the fisheries to which it extended so there was some doubt as to whether it covered sedentary, molluscs and crustaceans. That doubt has now been removed. The text of the ‘New’ Convention is available at http://www.neafc.org/about/docs/new_convention.pdf
[26] Convention for the Conservation of Salmon in the North Atlantic (Reykjavik, 22 January 1982)
[27] Convention on the Protection of the Marine Environment of the North-East Atlantic (Paris, 22 September 1992). The first four annexes were adopted together with the Convention. Annex V was adopted in 1998 along with Appendix 3 which sets out criteria for identifying human activities for the purpose of Annex V
[28] R. Rayfuse, ‘Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction’ 17:1 Review of European Community and International Environmental Law (2008) 3-13, 7-8
[29] Convention on the Conservation and Management of Pollock resources in the Central Bering Sea (1994)
[30] O.S. Stokke, ‘The Loophole of the Barents Sea Fisheries Regime’ in O.S. Stokke (ed) Governing High Seas Fisheries: The interplay of global and regional regimes (2001) 273
[31] R.R. Churchill, ‘Managing Straddling Fish Stocks in the North-eats Atlantic: A multiplicity of instruments and regime linkages – but how effective a management?’ in O.S. Stokke (ed) Governing High Seas Fisheries: The interplay of global and regional regimes (2001) 235
[32] R. Rayfuse, ‘Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction’ 17:1 Review of European Community and International Environmental Law (2008) 3-13, 12-13