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