Marine Policy 164 (2024) 106160
Contents lists available at ScienceDirect
Marine Policy
journal homepage: www.elsevier.com/locate/marpol
The Central Arctic Ocean Fisheries Agreement and Arctic
Indigenous peoples☆
Erik J. Molenaar 1
Deputy Director, Netherlands Institute for the Law of the Sea (NILOS) and associate, Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL), Utrecht
University, the Netherlands
A R T I C L E I N F O
A B S T R A C T
Keywords:
Arctic
Indigenous peoples
Fisheries
Regional fisheries management organizations
Climate change
The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA) is a unique
treaty that deals with a unique scenario: in an area of the high seas where no fishing has ever taken place, it
determines the conditions under which future fishing can commence. Another innovation for which the CAOFA is
less well-known are various aspects relating to Arctic Indigenous peoples. This article examines Arctic Indigenous
issues relating to the CAOFA and focuses in particular on the participation of Arctic Indigenous peoples in the
negotiations on the CAOFA and subsequent meetings of the CAOFA, as well as the needs of, and impacts on,
Arctic Indigenous peoples as considerations in decisions by the CAOFA’s Conference of the Parties (COP) on
commercial and exploratory fishing.
1. Introduction
The Agreement to Prevent Unregulated High Seas Fisheries in the
Central Arctic Ocean (CAOFA)2 is a well-known and unique treaty in
international fisheries law. It deals with a unique scenario: in an area of
the high seas where no fishing has ever taken place, it determines the
conditions under which future fishing can commence. The CAOFA’s
qualified and temporary abstention from high seas fishing3 is a funda­
mental restriction of the freedom of high seas fishing enshrined in
Article 116 of the UNCLOS4 and has never been incorporated in a
regional fisheries treaty or adopted by a regional fisheries body before.
The default in the CAOFA is therefore in principle that fishing is pro­
hibited unless it is permitted.
Another innovation to international fisheries law for which the
CAOFA is less well-known is its extensive integration of various aspects
relating to Arctic Indigenous peoples. These peoples represent about
12,5% of the Arctic’s total population of around four million.5 The
largest are the Inuit, a coastal and maritime people who number
approximately 180,000 and inhabit settlements along the coast of the
central Arctic Ocean (CAO) in Alaska, Canada, Greenland and Russia
(Chukotka).6 Other Arctic Indigenous peoples include the Aleut (in
Russia and the United States), the Athabaskan and the Gwich’in (in
☆
Draft dated 16 April 2024 for publication in Marine Policy. Draft dated 28 August 2023 in preparation of the workshop ‘Innovating for Change in Global Fisheries
Governance’, Tromsø, 14–15 September 2023.
E-mail address: e.j.molenaar@uu.nl.
1
The views in this article are those of the author and not necessarily those of the Netherlands Government or the European Commission. The author is very grateful
to Birgitte Jacobsen for providing comments on a draft.
2
Ilulissat, 3 October 2018. In force 25 June 2021; OJ 2019, L 73/3.
3
Laid down in paras 1 and 3 of Art. 3.
4
United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 United Nations Treaty Series 396; www.un.
org/Depts/los.
5
See the information at https://arctic-council.org/about/permanent-participants/ and Chapter 4 titled ‘Indigenous interests, Indigenous Knowledge, and the
Central Arctic Ocean (CAO)’ of the Synthesis Report on Ecosystem Status, Human Impacts and Management Measures in the Central Arctic Ocean (CAO Synthesis Report;
draft of July 2023; on file with author) developed within the Arctic Council’s Protection of the Marine Environment (PAME) working group.
6
See the information at https://arctic-council.org/about/permanent-participants/icc/. See also D.S. Dorough, “The Rights, Interests and Role of the Arctic Council
Permanent Participants” in R. Beckman, T. Henriksen, K. Dalaker Kraabel, E.J. Molenaar and J.A. Roach (eds) Governance of Arctic Shipping. Balancing Rights and
Interests of Arctic States and User States (Brill/Nijhoff: 2017), pp. 68–103, at pp. 69–71.
https://doi.org/10.1016/j.marpol.2024.106160
Received 17 October 2023; Received in revised form 16 April 2024; Accepted 18 April 2024
Available online 29 April 2024
0308-597X/© 2024 Elsevier Ltd. All rights reserved.
E.J. Molenaar
Marine Policy 164 (2024) 106160
require a simple majority, questions of substance require consensus.13
The 1st and 2nd in-person COPs were held in November 2022 and June
2023 in Incheon, South Korea, and the 3rd in-person COP is also
scheduled to be held there, in June 2024. The COP is supported by the
Scientific Coordinating Group (SCG)whose functions include providing
scientific advice upon request of the COP.14
The geographical scope of the CAOFA is in principle limited to the
“high seas portion of the [CAO]”15; that surrounds the Geographic North
Pole.16 This wording in the CAOFA clarifies that the CAO consists not
only of a high seas portion but also of adjacent coastal State maritime
zones, in particular exclusive economic zones (EEZs) and other 200
nautical mile (nm) maritime zones. Fig. 1 shows the high seas portion of
the CAO, together with the three other high seas pockets in the marine
Arctic.
The CAOFA’s abstention from high seas fishing is laid down in par­
agraphs 1 and 3 of Article 3. Its qualified character is a result of the
following four exceptions in these paragraphs:
Canada and the United States), the Saami (in Finland, Norway, Russia
and Sweden) and around 40 other peoples in Russia.7 For the purpose of
this article, Greenlanders are regarded as a people as well as an Arctic
Indigenous people.8
The objective of this article is to examine Arctic Indigenous issues
relating to the CAOFA. It focuses in particular on two issues: (1) the
participation of Arctic Indigenous peoples in the negotiations on the
CAOFA and subsequent meetings of the CAOFA; and (2) the needs of,
and impacts on, Arctic Indigenous peoples as considerations in decisions
by the CAOFA’s Conference of the Parties (COP) on commercial and
exploratory fishing.
The article continues with ‘An introduction to the CAOFA’ in Section
2, followed by an overview of the ‘Origins, drivers and interests that led
to the adoption of the CAOFA’ in Section 3. Subsequently, Section 4 is
devoted to ‘Arctic Indigenous issues and the CAOFA’, with Section 4.2
focusing on ‘Participation of Arctic Indigenous peoples in the CAOFA
negotiations and meetings’ followed by an analysis of the ‘Needs of, and
impacts on, Arctic Indigenous peoples as considerations in decisions by
the CAOFA COP on commercial and exploratory fishing’ in Section 4.3.
Conclusions are offered in Section 5.
1. Commercial fishing pursuant to an existing regional fisheries man­
agement organization or arrangement (RFMO/A); for instance the
North-East Atlantic Fisheries Commission;
2. Commercial fishing pursuant to one or more RFMO/As established in
the future;
3. Commercial fishing pursuant to interim conservation and manage­
ment measures (CMMs) established by the CAOFA COP; and
4. Exploratory fishing pursuant to the CMMs established by the CAOFA
COP.
2. An introduction to the CAOFA
The negotiation of the CAOFA was a stand-alone process that took
place outside the scope of the Arctic Council or another existing inter­
governmental body. It can be regarded as having consisted of two main
phases. The first took place between the five CAO coastal States (Can­
ada, Denmark in respect of Greenland (Denmark/Greenland),9 Norway,
the Russian Federation and the United States). These States are also
known as the ‘Arctic Five’ and the negotiations between them as the
‘Arctic Five process’ or the ‘coastal States phase’ of the CAOFA negoti­
ations. That process/phase concluded on 16 July 2015 with the adoption
of the non-legally binding Oslo Declaration.10 The second phase of the
CAOFA negotiations is known as the ‘Five-plus-Five process’ and
involved – in addition to the Arctic Five – China, the European Union
(EU), Iceland, Japan and South Korea (also known as the ‘Other Five’) in
their capacity as high seas fishing States or entities. The Five-plus-Five
negotiations ended on 3 October 2018, when the CAOFA was opened
for signature.
The CAOFA entered into force on 25 June 2021 following the formal
adherence of all of the Five-plus-Five.11 The CAOFA does not establish
an intergovernmental organization or a secretariat. Its principal
decision-making body is the COP, which can convene through virtual or
in-person meetings.12 Whereas COP decisions on questions of procedure
The temporary character of the abstention is primarily a conse­
quence of the arrangements on the CAOFA’s duration set out in Article
13. These stipulate that its duration is not indefinite but lasts for an
initial period of 16 years following the CAOFA’s entry into force;
therefore until 25 June 2037. Thereafter, the CAOFA continues to
remain in force for successive five-year periods unless any Party objects.
One possible scenario for the discontinuation of the CAOFA and its
abstention from high seas fishing is their future replacement by a fullyfledged RFMO/A with the usual mandate to regulate fisheries in the high
seas portion of the CAO. In fact, some of the participants in the Five-plusFive process had a preference for establishing such a fully-fledged
RFMO/A straight away, but others – in particular the Arctic Five –
had a strong preference for a concise instrument focused in particular on
the abstention from high seas fishing and the establishment of the Joint
Program of Scientific Research and Monitoring (JPSRM). As a compro­
mise, it was agreed to pursue a so-called ‘stepwise’, ‘step-by-step’ or
‘two-step’ approach by which the CAOFA would function as an interim
arrangement that would eventually be replaced by one or more fullyfledged RFMO/As.17 As examined in more detail elsewhere, even
though the delegations understood the Five-plus-Five negotiations to be
aimed at establishing something else than an RFMA, the nature of the
CAOFA evolved so much during the negotiations that there are good
arguments for classifying the CAOFA as an RFMA, even though not a
fully-fledged one.18
At the time of writing, the abundance and distribution of fish in the
7
See the information at https://arctic-council.org/about/permanent-part
icipants/.
8
See R.L. Johnstone, “The impact of international law on natural resource
governance in Greenland” 56 Polar Record 1–11 (2020) for a discussion on
various definitional issues and other complexities, including the two non-Inuit
minorities in Greenland.
9
In fact, Denmark participated in respect of both Greenland and the Faroe
Islands, but is a CAO coastal State exclusively on account of Greenland (see the
discussion in E.J. Molenaar, “The CAOF Agreement. Key Issues of International
Fisheries Law”, in T. Heidar (ed.) New Knowledge and Changing Circumstances in
the Law of the Sea (Brill/Nijhoff: 2020), pp. 446–476, at pp. 461–462).
10
Declaration concerning the Prevention of Unregulated High Seas Fishing in
the Central Arctic Ocean, Oslo, 16 July 2015 (available at www.regjeringen.no/
en/aktuelt/fishing-arctic-ocean/id2427705/).
11
See the status of participation at https://www.treaty-accord.gc.ca/details.as
px?id=105549.
12
See Art. 5(1) of the CAOFA and Rule 3.4 of the COP Rules of Procedure
(RoP), included in Appendix 9 of the Report of the 1st (2022) in-person CAOFA
COP (on file with author).
13
Art. 6(3) stipulates that a question “shall be deemed to be of substance if
any Party considers it to be of substance”.
14
See para. 3(d) of the SCG Terms of Reference, included in Appendix 7 of the
Report of the 1st (2022) in-person CAOFA COP.
15
This wording is consistently used throughout the CAOFA.
16
See the definition of the ‘Agreement Area’ in Art. 1(a) of the CAOFA.
17
This approach is, inter alia, reflected in Arts 2, 5(1)(c) and 14(3). See
Molenaar 2020a, note 9, at pp. 468–470.
18
See E.J. Molenaar, “Regional Fisheries Management Organizations”, in M.
Chantal Ribiero, F. Loureiro Bastos and T. Henriksen (eds) Global Challenges and
the Law of the Sea (Springer: 2020), pp. 81–109, at pp. 91–92.
2
E.J. Molenaar
Marine Policy 164 (2024) 106160
Fig. 1. high seas pockets in the marine Arctic.
high seas portion of the CAO did not allow for a commercially viable
fishery. For several reasons, it seems unlikely that the COP will authorize
commercial fishing before 2037.19 These reasons include the arrange­
ments on duration in Article 13, consensus decision-making, and the
utilization- and conservation-oriented fisheries interests of the Arctic
Five. In a nutshell, these interests mean that the Arctic Five can be ex­
pected to be overall less inclined to vote in favor of the commencement
of high seas fishing than the Other Five.20
The situation for exploratory fishing is different. Article 3(3) of the
CAOFA entitles Parties to authorize their vessels to conduct exploratory
fishing, provided this occurs “pursuant to” CMMs adopted by the COP on
the basis of Article 5(1)(d). The latter requires (“shall”) the COP to adopt
these CMMs on exploratory fishing within three years of the CAOFA’s
entry into force; prior to 25 June 2024 therefore. Once these CMMs have
been adopted, however, the COP has no so-called approval role for the
actual engagement in specific exploratory fishing plans.21 Article 5(1)
(d)(iii) merely stipulates that “a Party may authorize exploratory fishing
only after it has notified the other Parties of its plans for such fishing and
it has provided other Parties an opportunity to comment on those plans”.
Read in conjunction, Articles 3(3) and 5(1)(d) make the exercise of
each CAOFA Party’s right to engage in exploratory fishing conditional
on the adoption of CMMs by the COP by consensus. It seems likely that
the differences between the fisheries interests of the Arctic Five and
those of the Other Five will also be reflected in their positions and
proposals on substantive and procedural aspects of the envisaged CMMs
on exploratory fishing. Such positions and proposals could be aimed at
19
Such authorization would be based on Arts 3(1)(b) and 5(1)(c)(ii) and is
discussed in subsection 4.3.
20
See Molenaar 2020a, note 9, at pp. 461–463.
21
3
See note 23 and accompanying text.
E.J. Molenaar
Marine Policy 164 (2024) 106160
(unreasonably) constraining exploratory fishing or delaying its
commencement, for instance by proposing conditions in addition to
those laid down in Article 5(1)(d). It is also not clear what the conse­
quences would be if the deadline of 25 June 2024 is not met. A relevant
circumstance in this regard is that, at the time of writing, the abundance
and distribution of fish in the high seas portion of the CAO did not give
rise to concrete interest in commencing exploratory fishing in the near
future. The initial discussions on the CMMs on exploratory fishing will
occur within the COP Ad Hoc Working Group on Exploratory Fishing
(EF-WG).22
Management Council prohibited commercial fishing in the EEZ off
Alaska in the Arctic Ocean “until information improves so that fishing
can be conducted sustainably and with due concern to other ecosystem
components”.26 This prohibition was still in effect at the time of writing.
The United States based its actions in 2007 and 2009 not only on its
precautionary approach to fisheries management in response to
different levels of uncertainty and the need to avoid unregulated fishing,
but also on the “social, economic, cultural and subsistence needs” of
Arctic indigenous communities.27 These needs of Arctic Indigenous
communities may not necessarily only be affected by competition for the
same (transboundary) target species. Species targeted by Arctic Indig­
enous peoples (fish, marine mammals and birds) but not by commercial
fishing, may still be affected by such fishing due to by-catch and
predator-prey relationships.
Commercial and exploratory fishing in the high seas portion of the
CAO can therefore affect fishing and hunting by Arctic Indigenous
peoples in adjacent waters. The utilization- and conservation-oriented
interests of Arctic Indigenous peoples vis-à-vis high seas fishing seem
to be largely similar to those interests of the Arctic five.28 The main
difference is that, as Arctic Indigenous peoples are unlikely to engage in
such fishing themselves, they would be even less supportive of such
fishing than the Arctic Five. But even if they do not hunt or fish in the
high seas portion of the CAO themselves, they are still connected to such
human activities through by-catch and predator-prey relationships. That
connection is in fact more profound, as Arctic Indigenous peoples see
themselves as part of the ecosystem.29
3. Origins, drivers and interests that led to the adoption of the
CAOFA
Climate change was without a doubt one of the principal drivers for
the adoption of the CAOFA. As reflected in the 1st preambular paragraph
of the CAOFA, the high seas portion of the CAO used to be covered by
sea-ice on a year-round basis and thereby made vessel-based fishing
impossible. Anthropogenic-induced climate change has caused sea-ice in
the CAO – including in its high seas portion – to recede and become
thinner, and the distributional ranges of many global fish stocks have
been shifting towards the polar regions. These changes have been
ongoing for several decades, and the pace of change has accelerated
during this period.23 Interest in commencing fishing in the CAO –
including in its high seas portion – can be presumed to be considerable
due to continued high global demand for fish and increasing pressure on
global fish stocks.24
Another principal driver for the adoption of the CAOFA was the
significant lack of knowledge of the ecosystems in the CAO (not only
those in its high seas portion but also those in adjacent coastal State
maritime zones), how these ecosystems would be affected by climate
change and other phenomena (e.g. ocean acidification and increased
fresh-water inflow), and what impacts and effects marine capture fish­
eries would have on target and non-target species (e.g. due to by-catch
or predator-prey relationships) and other ecosystem components (e.g.
bottom fishing impacts on benthic habitats). All such knowledge would
be required pursuant to the ecosystem approach to fisheries (EAF)
management that is at present generally accepted within the interna­
tional community.
The United States was the first of the Arctic Five to respond to these
two principal drivers. In 2007, the United States Senate adopted joint
resolution (SJ Res.) No. 17 of 2007, “directing the United States to
initiate international discussions and take necessary steps with other
Nations to negotiate an agreement for managing migratory and trans­
boundary fish stocks in the Arctic Ocean”.25 This initiative eventually
led to the two phases of stand-alone negotiations described in Section 2.
Moreover, on 5 February 2009 the United States North Pacific Fishery
4. Arctic Indigenous issues and the CAOFA
4.1. Introduction
The CAOFA is one of the few RFMO/As in which Arctic Indigenous
issues are integrated, and of those the CAOFA arguably has the most
extensive integration. Other relevant RFMO/As include the Pacific
Salmon Commission (PSC)30 and the North Atlantic Salmon Conserva­
tion Organization (NASCO).31
In the CAOFA, Indigenous issues are included in the last three pre­
ambular paragraphs and in Article 4(4) and paragraphs 1(b) and 2 of
26
Cf. Sec. E.S. 1.2, at p. ES-2 of the Arctic Fishery Management Plan (FMP)
adopted on 5 February 2009, effective 3 December 2009 (50 CFR Part 679;
Federal Register, Vol. 74, No. 211, of 3 November 2009, p. 56734 (all available
at www.fakr.noaa.gov/npfmc).
27
The citation is from SJ Res. No. 17 of 2007. The references to the precau­
tionary approach and unregulated fishing are included in the Arctic FMP (see
note 26).
28
See Molenaar 2020a, note 9, at pp. 461–463.
29
See Chapter 4 of the CAO Synthesis Report, note 5, at Section 4.2.
30
See the various references to aboriginal rights and fisheries in the Pacific
Salmon Treaty (Treaty between the Government of Canada and the Government
of the United States of America Concerning Pacific Salmon, Ottawa, 28 January
1985. In force 18 March 1985; 1469 UNTS 358, as amended. Consolidated
version available at www.psc.org), e.g. Arts VI(4) and XI(1) and in Chapters 4
and 8.
31
Based on a proposal by Canada, the NASCO Council held a ‘Special Session
on Indigenous Perspectives on Atlantic Salmon: Indigenous Perspectives and
Roles in Atlantic Salmon Conservation’ during its 40th (2023) Annual Meeting
(see the Report of the 40th (2023) Annual NASCO Council Meeting, at paras
7.9–7.16). At this meeting, Canada proposed the creation of a new participatory
status called ‘Indigenous Observers’ which would have the same rights as NGOs
(see Doc. CNL(23)72 ‘Improving the Participation of Indigenous Peoples in
NASCO’). At the time of writing, NASCO Members were supportive of this
proposal and had committed to reach agreement on operationalizing it at the
41st (2024) Annual NASCO Council Meeting, in order to enable participation by
Indigenous Observers at the 42nd (2025) Annual NASCO Council Meeting
(Information provided by the NASCO Secretary to the author by email on 19
February 2024).
22
Report of the 2nd (2023) in-person CAOFA COP, para. 27 and Appendix 10.
See M. Rantanen et al., “The Arctic has warmed nearly four times faster
than the globe since 1979” Communications Earth & Environment (2022), https
://doi.org/10.1038/s43247-022–00498-3; AMAP Arctic Climate Change Up­
date 2021: Key Trends and Impacts (2021); and the Reports of the “Meetings of
Scientific Experts on Fish Stocks in the Central Arctic Ocean” (FiSCAO Meet­
ings), available at https://www.fisheries.noaa.gov/event/fifth-meeting-scientif
ic-experts-fish-stocks-central-arctic-ocean.
24
See the 2022 edition of the State of World Fisheries and Aquaculture
(SOFIA) https://www.fao.org/publications/sofia/2022/en/, for instance Figure
23 at p. 47.
25
Passed by the Senate on 4 October 2007. The House of Representatives
voted in favor of SJ Res. No. 17 in May 2008, which resulted in the Public Law
110–243 of 3 June 2008.
23
4
E.J. Molenaar
Marine Policy 164 (2024) 106160
Article 5. The first of the last three preambular paragraphs recalls the
2007 United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP).32 This landmark instrument elaborates on existing human
rights standards and fundamental freedoms as they apply to the specific
situation of Indigenous peoples, including by: acknowledging their right
to self-determination (Article 3); their right to participate in decisionmaking in matters which would affect their rights (Article 18); and the
acknowledgement that their rights extend to coastal seas (Article 25).33
The reference to the UNDRIP in the CAOFA is significant because such a
reference is lacking in the Oslo Declaration,34 and because Canada and
the United States were among the four States that voted against the
adoption of the UNDRIP in 2007, and the Russian Federation among the
11 States that abstained from voting.35 The reference to the UNDRIP in
the CAOFA can therefore also be understood as endorsement of the
UNDRIP by Canada, the Russian Federation and the United States.
The penultimate preambular paragraph of the CAOFA reads as
follows:
Indigenous Knowledge, among other things pursuant to Article 31 of the
UNDRIP.36 A more recent further step is the 2023 BBNJ Agreement,37
which also recalls the UNDRIP in its Preamble and contains many pro­
visions that require that the traditional knowledge of Indigenous peoples
is taken into account.38
The actual application and possible further operationalization of the
CAOFA provisions on Indigenous Knowledge by the various CAOFA
bodies is expected to be a challenging and time-consuming task. In
preparation of this task, in May 2019 the then signatories to the CAOFA
agreed to convene a workshop “to discuss a mechanism and process for
ensuring participation by representatives of Arctic communities,
including Arctic Indigenous peoples, and for integrating Indigenous and
local knowledge in the JPSRM,”39; which was held in November 2019.40
The outcomes of this workshop were, inter alia, discussed at the 1st
(2021; and only) virtual Meeting of the Preparatory Conference of the
Signatories to the CAOFA. One of the key decisions was broad support
for one single body in which scientific, Indigenous, and local knowledge
would be integrated.41 Since then, however, not much progress on this
integration seems to have been made.42 Agreement nevertheless seems
to have been reached on definitions of Indigenous Knowledge and local
knowledge.43
RECOGNIZING the interests of Arctic residents, including Arctic
indigenous peoples, in the long-term conservation and sustainable
use of living marine resources and in healthy marine ecosystems in
the Arctic Ocean and underlining the importance of involving them
and their communities;
4.2. Participation of Arctic Indigenous peoples in the CAOFA negotiations
and meetings
This paragraph recognizes two related interests: an explicit sub­
stantive interest (“in the […] Arctic Ocean”) and a consequential im­
plicit participatory interest (“the importance […] communities”). The
Preamble to the Oslo Declaration contains comparable wording, by
recognizing “the interests of Arctic residents, particularly the Arctic
indigenous peoples, in the proper management of living marine re­
sources in the Arctic Ocean”. One difference is that, where the CAOFA
uses the term “including”, the Oslo Declaration uses the term “particu­
larly”. As the term “particularly” gives more prominence to the interests
of Arctic Indigenous peoples compared to the term “including”, this can
be interpreted as ‘downgrading’ the prominence of the interests of Arctic
Indigenous peoples in this regard. The issue of participation by Arctic
Indigenous peoples also arises under Article 5(2) and is discussed further
in subsection 4.2.
The last preambular paragraph of the CAOFA reads as follows:
As explained in Section 2, the negotiations on the CAOFA can be
regarded as having consisted of two phases: the Arctic Five process be­
tween June 2010 and July 2015, and the Five-plus-Five process between
December 2015 and October 2018. In both processes, representatives of
Arctic Indigenous peoples – in particular from the Inuit Circumpolar
Council (ICC) – participated in the delegations of Canada, Denmark/
Greenland and the United States. This practice may at least to some
extent have been influenced by the ICC’s 2014 Kitigaaryuit Declara­
tion,44 by which it advocated “for the inclusion of Inuit representatives
on all councils, committees, and commissions formed to address Arctic
36
See N. Bankes “Arctic Ocean Management and Indigenous Peoples: Recent
Legal Developments” in N. Bankes, E.J. Molenaar and T. Henriksen, The Year­
book of Polar Law. Volume 11, 2019 (Brill: 2020), 81–120, at pp. 109–115; and
V. Schatz, “The Incorporation of Indigenous and Local Knowledge into Central
Arctic Ocean Fisheries Management” 10 Arctic Review on Law and Politics
130–134 (2019).
37
Agreement under the United Nations Convention on the Law of the Sea on
the conservation and sustainable use of marine biological diversity of areas
beyond national jurisdiction, adopted on 19 June 2023; doc. A/CONF.232/
2023/4, of 19 June 2023
38
E.g. Arts 7(j), 13, 19(3 and 4(j)), 22(2)(c), 24(3), 26(5), 31(1), 35, 37(4), 44
(1)(b), 48(3 and 4), 49(2), 51(3)(c) and 52(2)(c).
39
Chair’s Statement on the First Preparatory Meeting of the Signatures to the
CAOFA (held in Ottawa, Canada, 29–30 May 2019); on file with author.
40
Chair’s Statement on the Co-Production of Indigenous and Science Knowl­
edge Workshop (held in Yellowknife, Canada, 13–14 November 2019); on file
with author.
41
This is the first of three options identified in the Chair’s Statement on the
2019 Workshop, note 40, at p. 3.
42
See in this regard the Report of the 1st (March 2023) SCG Meeting, para. 32.
43
These are included in Appendix to the JPSRM Framework (Appendix 6 to
the Report of the 2nd (2023) in-person CAOFA COP). The definition of Indig­
enous Knowledge is taken from the ICC’s Circumpolar Inuit Protocols on
Equitable and Ethical Engagement (available at https://www.inuitcircumpolar.
com/), at p. 15. This definition is also included, with some omissions, in the
International Maritime Organization (IMO)’s ‘Revised Guidelines for the
Reduction of Underwater Radiated Noise from Shipping to Address Adverse
Impacts on Marine Life’ (Revised URN Guidelines; Doc. MEPC.1-Circ.906, of 22
August 2023), at p. 3.
44
Available at https://www.inuitcircumpolar.com/declaration-2014-kiti
gaaryuit-english/.
DESIRING to promote the use of both scientific knowledge and
indigenous and local knowledge of the living marine resources of the
Arctic Ocean and the ecosystems in which they occur as a basis for
fisheries conservation and management in the high seas portion of
the central Arctic Ocean,
This paragraph is an important achievement for Arctic Indigenous
peoples as it recognizes Indigenous Knowledge as a distinct source of
information. It is operationalized by Articles 4(4) and 5(1)(b) of the
CAOFA, which impose obligations on the COP to review and take ac­
count of Indigenous Knowledge. The Oslo Declaration merely expresses
a desire to “integrate scientific knowledge with traditional and local
knowledge”. The significance of these differences between the CAOFA
and the Oslo Declaration is even more pronounced due to the fact that
the CAOFA is a legally-binding instrument and the Oslo Declaration is
not. The CAOFA’s provisions on Indigenous Knowledge can therefore be
regarded as a further step in the global trend of recognition of
32
UNGA Res. 61/295, of 13 September 2007.
Art. 25; emphasis added. See also the discussion in L.J. Zahner, The 2018
Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic
Ocean: Background, Motivations and Aspirations (PhD manuscript, 2023;
available at https://athene-forschung.rz.unibw-muenchen.de/85357?result
_nav=first&sortfield1=typ) at pp. 93–96.
34
See note 10.
35
For the voting record see: https://digitallibrary.un.org/record/609197?
ln=en.
33
5
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Marine Policy 164 (2024) 106160
fishing issues”.45
Most, if not all, of the representatives of Arctic Indigenous peoples
that participated in the CAOFA negotiations had also been active in the
Arctic Council as representatives of Permanent Participants. The ICC is
one of the six current Permanent Participants. The status of Permanent
Participants was created to provide for active participation by, and full
consultation with, the Arctic Indigenous representatives within the
Arctic Council.46 Whereas formal decision-making within the Arctic
Council occurs by consensus among the Arctic States – without a right
for Permanent Participants to participate – in practice the objectives of
active participation and full consultation give Permanent Participants
considerable influence during the entire decision-formation phase right
up to the moment when formal decision-making occurs.47
Even though the participatory status of Permanent Participants is
quite unique at the intergovernmental level, it is important to keep in
mind that the Arctic Council is not an intergovernmental organization
established under a legally-binding instrument, and therefore has no
mandate to adopt legally-binding decisions. A similar participatory
status for (Arctic) Indigenous peoples under a legally-binding instru­
ment would be a significant development in international law. It is
submitted that there is nothing in the law of treaties – largely codified in
the 1969 Vienna Convention on the Law of Treaties48 – which precludes
an intergovernmental body established by a treaty from creating a
participatory status that equals, or goes beyond, the status of Permanent
Participants in the Arctic Council. This is also supported by precedents,
in particular the tripartite participation (workers, employers and gov­
ernments) in the International Labor Organization.49
Concerns for precedent-setting are nevertheless likely to be the main
reason why States are hesitant or unwilling to agree to a treaty-based
participatory status similar to the status of Permanent Participants in
the Arctic Council. These concerns were one of the key dilemmas in past
proposals for the strengthening of Arctic governance, for instance the
proposal for a ‘Central Arctic Ocean Framework Treaty’50; and the
proposal to re-establish the Arctic Council under a legally binding in­
strument.51 Whereas support among Arctic States for these proposals
may also have been dependent on granting Arctic Indigenous peoples
organizations only the same participatory status as non-governmental
organizations (NGOs), it can be assumed that support by Arctic Indige­
nous peoples for these proposals was conditional on being granted a
participatory status that at least equals that of the status of Permanent
Participants in the Arctic Council.
These considerations played a role during the CAOFA negotiations;
in particular during the Five-plus-Five process, as the Oslo Declaration
did not establish any institutions. The final outcome of the Five-plusFive negotiations on the issue of the participation of Arctic Indigenous
peoples is laid down in Article 5, titled ‘Review and Further Imple­
mentation’. Its paragraph 2 stipulates:
To promote implementation of this Agreement, including with
respect to the Joint Program of Scientific Research and Monitoring
and other activities undertaken pursuant to Article 4, the Parties may
form committees or similar bodies in which representatives of Arctic
communities, including Arctic indigenous peoples, may participate.
The principal purpose of this paragraph is to provide the CAOFA
Parties – through the COP – with a mandate to form committees or
similar bodies in order to promote the implementation of the CAOFA.
This mandate is also reflected in Rule 13 of the COP Rules of Procedure
(RoP).52 The last part of Article 5(2) of the CAOFA (“in which […] may
participate”) somewhat awkwardly adds an aspect of participation in
these committees and bodies. It specifies that, in case the COP decides to
make use of its mandate to establish committees or bodies, representa­
tives of Arctic communities, including Arctic Indigenous peoples, have
the right to participate in such committees and bodies. This can be
regarded as operationalizing the implicit participatory interest reflected
in the penultimate preambular paragraph (“underlining […]
communities”).
As was already noted, the Oslo Declaration does not establish any
institutions and it is therefore understandable that it deals with the issue
of the participation by Arctic Indigenous peoples in a very different
manner than the CAOFA. The body of the Declaration contains the
following paragraph:
In implementing these interim measures, we will continue to engage
with Arctic residents, particularly the Arctic indigenous peoples, as
appropriate.
Such engagement is clearly more generic than the participatory right
in Article 5(2) of the CAOFA. Moreover, whereas Article 5(2) of the
CAOFA uses the term “including”, the Oslo Declaration uses the term
“particularly”. The same difference in the use of terminology between
both instruments also exists for recognitions of the interests of Arctic
Indigenous peoples (see subsection 4.1). This therefore warrants a
similar conclusion, namely that the use of the term “including” instead
of the term “particularly” can be interpreted as ‘downgrading’ the
prominence of the participatory rights of Arctic Indigenous peoples.
The text of what eventually became Article 5(2) evolved consider­
ably during the Five-plus-Five negotiations. The first draft of 2
November 201553 contained the phrase “which may include represen­
tatives of Arctic indigenous peoples”. The next draft of 20 January
201654 added thereto the words “as they deem appropriate”, which was
likely to be intended to recognize the COP’s authority to decide on this
issue at some stage. The draft of 1 June 201655 changed the relevant
wording to “which may include representatives of Arctic residents,
including indigenous peoples, as part of their delegations or otherwise as
they deem appropriate”. This downgraded Arctic Indigenous peoples to
a subset of Arctic residents but at the same time envisaged the possibility
of participating not just on the delegation of a CAOFA Party but also
through an alternative participatory status established by the COP.
Presumably, this alternative participatory status was meant exclusively
for Arctic residents and/or Arctic Indigenous peoples. Whereas the draft
of August 201656 placed the words “or otherwise” in brackets, the draft
45
At para. 20. See also para. 21 which deals with the engagement and
involvement of Inuit in what became the abstention from high seas fishing in
the CAOFA.
46
Art. 2(4) of the Declaration on the Establishment of the Arctic Council,
Ottawa, 19 September 1996 (available at www.arctic-council.org).
47
See Rules 5, 7, 13, 15, 19 and 25 of the Arctic Council Rules of Procedure, as
revised in 2013 (available at www.arctic-council.org) and the discussion in E.J.
Molenaar, “Current and Prospective Roles of the Arctic Council System within
the Context of the Law of the Sea”, in 27 International Journal of Marine and
Coastal Law 553–595 (2012), at pp. 590–591.
48
Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. In force
27 January 1980, 1155 UNTS 331; www.un.org/law/ilc.
49
W.M. Eichbaum, “The whys and hows of a cooperative mechanism for the
Arctic marine environment” 52 Polar Record 680–685 (2016), at p. 684 also
mentions the 1997 Anti-Personnel Mine Ban Convention and notes that it
“provides for direct involvement of civil society, especially in the demining
process.”
50
T. Koivurova and E.J. Molenaar, International Governance and Regulation of
the Marine Arctic (WWF International Arctic Programme: 2010).
51
‘Conference Statement adopted at the Arctic Parliamentarians’ 10th Con­
ference in 2012, para. 1; and Finland’s Strategy for the Arctic Region 2013
(adopted by Government Resolution on 23 August 2013; Prime Minister’s Of­
fice Publications No. 16/2013), p. 44.
52
See note 12.
On file with author.
54
Ibid.
55
Ibid.
56
Ibid.
53
6
E.J. Molenaar
Marine Policy 164 (2024) 106160
of 5 December 201657 significantly restructured and reformulated the
entire provision into what became the final text of Article 5(2), except
for the replacement of “can participate” by “may participate”.
Based on the final wording in Article 5(2) and its evolution during
the negotiations, it can be concluded that it provides a clear participa­
tory right for Arctic Indigenous peoples that is not subject to any further
decision by the COP. However, they can only exercise this right as part of
the delegations of CAOFA Parties; and not in their own right through a
dedicated participatory status for Arctic Indigenous peoples organiza­
tions.58 This raises the question as to whether Article 5(2) changed
anything to the status quo, because representatives of Arctic Indigenous
peoples had already been included in three delegations (Canada,
Denmark/Greenland and the United States). It can nevertheless be
argued that Article 5(2) has more than symbolic value because it can be
invoked by Arctic Indigenous peoples vis-à-vis relevant CAOFA Parties
that have so far not included representatives of Arctic Indigenous peo­
ples on their delegations (the EU (in respect of Finland and Sweden),
Norway and Russia). During the 1st (2021; and only) virtual Meeting of
the Preparatory Conference of the Signatories to the CAOFA, however,
one of these took the view that the composition of delegations is up to
individual CAOFA Parties. Another CAOFA Party supported that view.59
A peculiarity of Article 5(2) is that it only relates to subsidiary bodies
of the COP, and not to the COP as such. If this will actually have an
impact on practice is difficult to say. At the 1st and 2nd in-person CAOFA
COPs, representatives of Arctic Indigenous peoples (most of which were
affiliated with the ICC) participated on the delegations of Canada,
Denmark/Greenland and the United States.60
Since the CAOFA’s adoption in 2018, various entities have partici­
pated in meetings of the CAOFA as Observers. The status of Observer
was formalized by the adoption of the COP RoP in 2022. Prior thereto,
various entities were allowed to participate in CAOFA meetings as Ob­
servers based on ad hoc agreement by the CAOFA Parties. Among these
was the International Council for the Exploration of the Sea (ICES) and
the World Wide Fund for Nature (WWF) Arctic Programme.
Rule 5.1 of the COP RoP stipulates that “Any entity with an interest
in the work of the Agreement may request to attend a meeting of the
COP, its committees or similar bodies as an observer.” The term ‘entity’
was chosen with Taiwan in mind, even though a Taiwanese request for
Observer status is extremely likely to be blocked by China pursuant to
Rule 5.2. This latter provision implicitly recognizes that all CAOFA
Parties have a veto on requests for Observer status.
The last draft of the COP RoP still contained a list of entities that
would be entitled to apply for Observer status; among them “Arctic
Indigenous peoples organisations”.61 That list was in the end deleted to
resolve the issue of Taiwan. However, its deletion obviously does not
preclude Arctic Indigenous peoples organizations from requesting
Observer status. They would then have to substantiate their interest in
the CAOFA and hope for their requests to secure consensus. The ICC
would be an obvious candidate for many reasons, including its strong
and continuous involvement in the CAOFA negotiations and meetings so
far.
At the time of writing, however, no Arctic Indigenous peoples or­
ganizations had ever applied for Observer status. The only applications
had come from the United Kingdom, ICES and the WWF Arctic Pro­
gramme.62 One reason for the absence of applications by Arctic
Indigenous peoples organizations could be a preference for participation
in delegations of CAOFA Parties, in particular because of the ability to be
directly involved in, and influence, the determination of the positions of
such CAOFA Parties in preparation of decision-making by the COP.
4.3. Needs of, and impacts on, Arctic Indigenous peoples as
considerations in decisions by the CAOFA COP on commercial and
exploratory fishing
This subsection examines the extent to which the needs of, and im­
pacts on, Arctic Indigenous peoples must or can be taken into account as
considerations in decisions by the CAOFA COP on commercial and
exploratory fishing in the high seas portion of the CAO. In case the COP
is required to take account of such considerations, or chooses to do so,
this will inevitably result in constraints on such fishing; for instance in
terms of catch volumes, fishing gear and techniques, and fishing areas.63
As argued in Section 2, the Arctic Five can be expected to be overall
less inclined to vote in favor of the commencement of high seas fishing
than the Other Five. Moreover, it seems likely that the differences be­
tween the fisheries interests of the Arctic Five and those of the Other Five
will also be reflected in their positions and proposals on substantive and
procedural aspects of the envisaged CMMs on exploratory fishing.
Furthermore, as argued in Section 3, Arctic Indigenous peoples are likely
to be even less supportive of commercial and exploratory fishing in the
high seas portion of the CAO than the Arctic Five. This is because they
are unlikely to engage in such fishing themselves, but may still be
affected by it through by-catch and predator-prey relationships.
Reference can here also be made to the practice on domestic fisheries
management of some of the Arctic Five. As described in Section 3, the
actions by the United States in 2007 and 2009 were based in part on the
needs of, and impacts on, Arctic Indigenous peoples. These needs and
impacts are also taken into account by Canada – for instance as part of
the Beaufort Sea Integrated Fisheries Management Framework64 – and
are taken into account ipso facto by Greenland, as Greenlanders are
regarded as a people as well as an Arctic Indigenous people; at least for
the purpose of this article. In light of this practice, as well as the
consistent inclusion of representatives of Arctic Indigenous peoples on
their delegations, it can be assumed that they strongly support the po­
sition that the COP must or should take account of the needs of, or im­
pacts on, Arctic Indigenous peoples in decisions on commercial and
exploratory fishing.
As explained in Section 2, the abstention from high seas fishing in
paragraphs 1 and 3 of Article 3 is subject to four exceptions. The second
exception relates to commercial fishing under the auspices of future
RFMO/As, which is based on the stepwise approach. The establishment
of one or more of such future RFMO/As would then lead to a complete or
partial termination (or ‘lifting’) of the abstention, or the termination of
the CAOFA in its entirety, either by not extending its duration or
otherwise.65
The chapeau of Article 5(1)(c) of the CAOFA contains the so-called
‘trigger’ for the commencement of negotiations to establish one or
more additional RFMO/As. Due to the word “shall” in the chapeau of
Article 5(1), the COP is required to determine whether to commence
63
As regards fishing areas, see the proposal by the WWF Arctic Programme to
prohibit or constrain exploratory fishing in certain parts of the high seas portion
of the CAO “due to specific concerns, such as presence of significant biodiver­
sity values, or migration corridors for marine mammals” (Doc. CAOFA-2023COP2-INFO02).
64
The text of the Beaufort Sea Integrated Fisheries Management Framework is
available here. See also B. Ayles, L. Porta and R. McV Clarke, “Development of
an integrated fisheries co-management framework for new and emerging
commercial fisheries in the Canadian Beaufort Sea” 72 Marine Policy 246–254
(2016).
65
See paras. (2) and (3) of Art. 13.
57
Ibid.
Bankes, note 36, at p. 114, Schatz, note 36, at p. 134 and Zahner, note 33, at
p. 98 arrive at similar conclusions.
59
Based on the notes of the author.
60
See the Report of the 1st (2022) in-person CAOFA COP, Appendix 3; and the
Report of the 2nd (2023) in-person CAOFA COP,
61
See the struck-out Rule 5.4 in Appendix 8 of the Report of the 1st (2022) inperson CAOFA COP.
62
Report of the 2nd (2023) in-person CAOFA COP, para. 3.
58
7
E.J. Molenaar
Marine Policy 164 (2024) 106160
such negotiations. This determination can only be made after the COP’s
preliminary determination that “the distribution, migration and abun­
dance of fish in the Agreement Area would support a sustainable com­
mercial fishery”. That preliminary determination must be based on:
nature of the list would nevertheless allow the COP to integrate such
sources of information in the envisaged CMM on exploratory fishing
anyway; provided again there would be consensus for this.
In summary, whereas the text of the CAOFA provides the COP with a
direct basis to take account of the needs of, or impacts on, Arctic
Indigenous peoples as considerations for decisions on exploratory fish­
ing, such a direct basis does not exist for decisions on commercial fish­
ing. The reference to the JPSRM in the chapeau of Article 5(1)(c) could
nevertheless provide an indirect basis for decisions on commercial
fishing. According to the JPSRM Framework,68 the JPSRM seeks to
conduct four main assessments, one of which is “the potential impacts of
commercial fisheries on Arctic Indigenous communities and local com­
munities that depend on marine ecosystems for sustainable subsistence
harvests”.69 References to the needs of, and impacts on, Arctic Indige­
nous peoples are also included in the research and monitoring questions
that guide the work of the JPSRM.70 As the JPSRM will provide infor­
mation on the needs of, and impacts on, Arctic Indigenous peoples, and
Article 5(1)(c) requires COP decisions on commercial fishing to be based
also on the scientific information derived from the JPSRM, it could be
argued that the COP must also take account of these needs and impacts.
These needs and impacts have also come to the fore during the
preparations for the development of CMMs on exploratory fishing. In
February and March 2023, the COP met twice (virtually) to discuss
drafts of scientific and Indigenous Knowledge questions. The questions
are intended to aid the SCG in providing advice to the COP as part of its
task to develop CMMs on exploratory fishing.71 During the first of these
virtual COPs, one CAOFA Party objected to references to impacts on
Arctic Indigenous peoples and local communities for the reason that
such references are not included in Article 5(1)(d)(ii). However, two
other CAOFA Parties preferred to keep such references, with one of them
also adding that Arctic Indigenous peoples consider themselves part of
the ecosystem. In the end, the references were retained in the final text.
Two of the final questions read as follows:
the scientific information derived from the [JPSRM], from the na­
tional scientific programs, and from other relevant sources, and
taking into account relevant fisheries management and ecosystem
considerations, including the precautionary approach and potential
adverse impacts of fishing on the ecosystems
As regard the words “other relevant sources”, it should be noted that
Article 5(1)(b) contains the same words but is followed by “including
indigenous and local knowledge”. That clarification would presumably
also apply to the chapeau of Article 5(1)(c).66
In addition to scientific information, the preliminary determination
must also take into account “relevant fisheries [….] the ecosystems”.
This wording is at any rate intended to comprise precautionary and
ecosystem approaches to fisheries management. It is noteworthy that no
explicit reference is made to the needs of, or impacts on, Arctic Indig­
enous peoples.
The third exception to the abstention from high seas fishing listed in
Section 2 is commercial fishing under the auspices of the CAOFA COP.
Once the COP has agreed to commence negotiations to establish one or
more additional RFMO/As, Articles 3(1)(b) and 5(1)(c)(ii) authorize it
to adopt interim CMMs on commercial fishing. This can only occur “once
the Parties have agreed on mechanisms to ensure the sustainability of
fish stocks”. The wording of this condition suggests that it is exclusively
oriented to target species and does not take account of broader EAF
management considerations or the needs of, or impacts on, Arctic
Indigenous peoples. However, similar to the stepwise structure of the
chapeau to Article 5(1)(c) discussed above – where the preliminary
determination also takes account of EAF management considerations – it
can be assumed that such EAF management considerations will also be
taken into account for the adoption of interim CMMs on commercial
fishing. Conversely, the text does not seem to provide a direct basis for
also taking account of the needs of, or impacts on, Arctic Indigenous
peoples.
The fourth exception to the abstention from high seas fishing listed in
Section 2 is exploratory fishing. Article 3(3) entitles Parties to authorize
their vessels to conduct exploratory fishing, provided this occurs “pur­
suant to” CMMs adopted by the COP on the basis of Article 5(1)(d). As
reflected in the chapeau to Article 5(1)(d), the COP’s competence to
establish CMMs “for exploratory fishing in the Agreement Area” is very
broad. This is because it is not qualified and because the last sentence
reads “These measures shall provide, inter alia, that”, followed by five
conditions or characteristics that such measures must have as a mini­
mum (“inter alia”). For instance that “exploratory fishing shall be
limited in duration, scope and scale to minimize impacts on fish stocks
and ecosystems”.67
Even though none of the five elements in Article 5(1)(d) explicitly
mention the needs of, or impacts on, Arctic Indigenous peoples, the
COP’s broad competence and the non-exhaustive nature of the list al­
lows the COP to take account of such needs and/or impacts anyway,
provided there would be consensus among the CAOFA Parties for this.
Moreover, Article 5(1)(d)(iii) stipulates: “a Party may authorize
exploratory fishing only on the basis of sound scientific research and
when it is consistent with the [JPSRM] and its own national scientific
program(s)”. No explicit reference is made to ‘other relevant sources’ of
scientific information nor to Indigenous and local knowledge. Presum­
ably, however, the COP’s broad competence and the non-exhaustive
11. What aspects of exploratory fishing should be the focus of data
collection associated with impacts to Indigenous communities and
local communities, including data collection related to pollution and
emissions, noise, sea ice, for the evaluation of possible impacts,
including cumulative impacts, to Indigenous and local subsistence
activities and marine mammal populations in the Pacific and Atlantic
Gateways? How can these impacts be mitigated?
15. What measures should be considered for avoiding, minimizing or
mitigating impacts of exploratory fishing on the Agreement Area and
adjacent areas including on Arctic Indigenous peoples and local
communities whose livelihood depend on Arctic ecosystems?
Whereas both questions relate to the needs of, or impacts on, Arctic
Indigenous peoples, question No. 11 is formulated particularly broad.
The data to be gathered on the impacts of exploratory fishing on Arctic
68
See note 43.
At p. 3
70
See Table 1 at p. 8; in particular overarching question No. 3 (and its specific
question (c)) and specific questions (e) and (f) under overarching question No.
4. See also Appendix 9, which contains excerpts from earlier scientific meetings
that provide examples of topics that should be addressed when establishing
priorities for the JPSRM implementation plan. Some of these examples relate to
the needs of, or impacts on, Arctic Indigenous peoples.
71
The initial draft is included in Doc. CAOFA-2023-VCOP1–01 (on file with
author). The final version is included in the Report of the 1st (March 2023) SCG
Meeting, at p. 5 (see also Doc. CAOFA-2023-VCOP1–01-REV03 (on file with
author)).
69
66
Schatz, note 36, at p. 133 takes the view that the preliminary determination
“must be based on an integration of scientific knowledge derived from the
JPSRM with available indigenous and local knowledge”.
67
Art. 5(1)(d)(ii).
8
E.J. Molenaar
Marine Policy 164 (2024) 106160
Indigenous peoples covers not only by-catch and predator-prey re­
lationships but also pollution (including emissions and noise72) and
cumulative impacts. Such a broad approach to EAF management is un­
likely to have ever been planned by any RFMO/A so far, not even by the
Commission for the Conservation of Antarctic Marine Living Resources;
which is widely regarded as having pioneered EAF management. It
should nevertheless be recognized that, at this stage, these are merely
plans for data gathering. Actually gathering such data, using it as a basis
for scientific advice, and adopting CMMs on exploratory fishing based
thereon by consensus are critical further stages in the application of such
a broad approach to EAF management. However, even if such data is in
the end only partially transposed into CMMs on exploratory fishing, it
may establish significant constraints on such fishing.
(2) has more than symbolic value because it can be invoked by Arctic
Indigenous peoples vis-à-vis other relevant CAOFA Parties (the EU (in
respect of Finland and Sweden), Norway and Russia). If any of these
CAOFA Parties agree with this interpretation remains to be seen.
Since the CAOFA’s adoption in 2018, various entities have partici­
pated in meetings of the CAOFA as Observers. The status of Observer
was formalized by the adoption of the COP RoP in 2022. At the time of
writing, however, no Arctic Indigenous peoples organizations had ever
applied for Observer status. One reason for the absence of applications
by Arctic Indigenous peoples organizations could be a preference for
participation in delegations of CAOFA Parties, in particular because of
the ability to be directly involved in, and influence, the determination of
the positions of such CAOFA Parties in preparation of decision-making
by the COP.
The article also examined the extent to which the needs of, and im­
pacts on, Arctic Indigenous peoples must or can be taken into account as
considerations in decisions by the COP on commercial and exploratory
fishing in the high seas portion of the CAO. In case the COP is required to
take account of such considerations, or chooses to do so, this will
inevitably result in constraints on such fishing; for instance in terms of
catch volumes, fishing gear and techniques, and fishing areas.
The Arctic Five can be expected to be overall less inclined to vote in
favor of the commencement of commercial and exploratory fishing in
the high seas portion of the CAO compared to the Other Five. Moreover,
Arctic Indigenous peoples are likely to be even less supportive of such
fishing than the Arctic Five. This is because they are unlikely to engage
in such fishing themselves, but may still be affected by it through bycatch and predator-prey relationships. In light of the practice by Can­
ada, Denmark/Greenland and the United States in taking account of the
needs of, and impacts on, Arctic Indigenous peoples on domestic fish­
eries management, as well as the consistent inclusion of representatives
of Arctic Indigenous peoples on their delegations, it can be assumed that
they strongly support the position that the COP must or should take
account of the needs of, or impacts on, Arctic Indigenous peoples in
decisions on commercial and exploratory fishing.
Whereas the wording of paragraphs 1(c) and 1(d) of Article 5 of the
CAOFA provides the COP with a direct basis to take account of the needs
of, or impacts on, Arctic Indigenous peoples as considerations for de­
cisions on exploratory fishing, such a direct basis does not exist for de­
cisions on commercial fishing. The reference to the JPSRM in the
chapeau of Article 5(1)(c) could nevertheless provide an indirect basis
for decisions on commercial fishing. This is based on the many refer­
ences to the needs of, or impacts on, Arctic Indigenous peoples in the
JPSRM Framework.
These needs and impacts have also come to the fore during the
preparations for the development of a CMM on exploratory fishing. The
data to be gathered on the impacts of exploratory fishing on Arctic
Indigenous peoples covers not only by-catch and predator-prey re­
lationships but also pollution (including emissions and noise) and cu­
mulative impacts. Such a broad approach to EAF management may not
have been planned by any RFMO/A so far. It should nevertheless be
recognized that, at this stage, these are merely plans for data gathering.
Actually gathering such data, using it as a basis for scientific advice, and
adopting CMMs on exploratory fishing based thereon by consensus are
critical further stages in the application of such a broad approach to EAF
management. However, even if such data is in the end only partially
transposed into CMMs on exploratory fishing, it may establish signifi­
cant constraints on such fishing.
5. Conclusions
The CAOFA is primarily known in international fisheries law for its
unique abstention of high seas fishing, but is also highly innovative for
its extensive integration of Indigenous issues. Of the few RFMO/As that
integrate Indigenous issues, the CAOFA has the most extensive inte­
gration. Such integration is based on the rights of Indigenous peoples –
in particular their right to self-determination – as recognized in the
UNDRIP. The reference to the UNDRIP in the Preamble of the CAOFA is
therefore a significant achievement in itself.
During the negotiations on the CAOFA, representatives of Arctic
Indigenous peoples – in particular from the ICC – participated in the
delegations of Canada, Denmark/Greenland and the United States. The
negotiations led to the inclusion of a clear participatory right for Arctic
Indigenous peoples in Article 5(2) of the CAOFA. Such a right has never
been included in a constitutive instrument of an RFMO/A before, and is
part of a broader trend of stronger participation of Arctic Indigenous
peoples in intergovernmental bodies dealing with Arctic issues (not only
in the Arctic Council system, but also in the International Maritime
Organization (IMO)73) and participation of Indigenous peoples in other
multilateral processes. For instance the negotiations on the BBNJ
Agreement, which have led to the inclusion of many provisions
requiring engagement with, or participation by, Indigenous peoples.74
Whereas Article 5(2) is undeniably a landmark achievement, its
practical implications appear to be modest. Based on the final wording
in Article 5(2) and its evolution during the negotiations, it can be
concluded that it provides a clear participatory right for Arctic Indige­
nous peoples that is not subject to any further decision by the COP.
However, they can only exercise this right as part of the delegations of
CAOFA Parties; and not in their own right through a dedicated partici­
patory status for Arctic Indigenous peoples organizations. Even though
representatives of Arctic Indigenous peoples have already been included
in the delegations of three CAOFA Parties, it can be argued that Article 5
72
Note that in 2023 IMO adopted the Revised URN Guidelines, note 43, which
acknowledge the need for dedicated or more stringent standards in special areas
(see paras 6.15, 6.17, 6.20, 6.21, 6.24 and Table 1) and Inuit Nunaat (paras
6.21–6.22), as well as the separate ‘Draft Guidelines for Underwater Radiated
Noise reduction in Inuit Nunaat and the Arctic’ as circular MEPC.1/Circ.907
(see Doc. MEPC 80/WP.1/Rev.1, of 14 July 2023; the circular is also included
as Annex 2 to Doc. SDC 9/WP.3, of 26 January 2023).
73
In 2021, the ICC was granted IMO consultative status on a provisional basis
for two years (see the Summary of Decisions of the 34th (2021) Extraordinary
Council Session (Doc. C/ES.34/D, of 23 November 2021), at para. 15(c)7. In
July 2023, the ICC’s provisional consultative status with IMO was extended for
two more years (see the Summary of Decisions of the 129th (2023) Council
Session (Doc. C 129/D, of 24 July 2023, at para. 15(c).4). See also the dedicated
attention to Inuit Nunaat in note 72.
74
E.g. 13, 19(2), 21(1 and 2), 32(3), 41(2) and 48(3 and 4). The basis for this
is laid down in Art. 7(k). Note also that requirements on the use of traditional
knowledge of Indigenous peoples (see note 38) will often require engagement
with, or participation by, Indigenous peoples.
Data Availability
No data was used for the research described in the article.
9