Governance of Arctic Shipping Balancing Rights and Interests of Arctic States and User States

Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States examines potential cooperative mechanisms for balancing rights and interests of Arctic States and user States in light of experiences with Southeast Asian cooperative mechanisms.


Introduction
The international community's interest in the Arctic increased spectacularly in the period between 2004 and 2008. Prior to that, international cooperation on the (marine) Arctic mainly involved Arctic States, and regional cooperation occurred largely by means of non-legally binding instruments and informal fora, rather than through legally binding instruments and intergovernmental organisations. The launch of the Arctic Climate Impact Assessment (ACIA)1 in 2004 contributed to broadening recognition within the international community that climate change is largely driven by anthropogenic pollution. This recognition grew even more after the dramatic Arctic sea-ice loss in 2007,2 which spread a sense of alarm and urgency within the international community.
Another game changer was the Russian Federation's planting of its flag on the geographical North Pole's deep seabed in 2007, during the gathering of data on the outer limits of its continental shelf. The Russian Federation's flag planting triggered a number of reactions and counter-reactions. The first of these was the incorrect perception by many-e.g., media, academics, environmental non-governmental organisations (NGOs) and the European Parliament-that the flag planting heralded the last land-grab on earth and a resource bonanza that was unchecked due to an international law vacuum. This incorrect perception was then followed by the incorrect assumption that it would be logical For use by the Author only | © 2017 Koninklijke Brill NV marine Arctic will have at least one pocket of the Area-the deep seabed beyond the continental shelves of coastal States13-more clarity on this will take seas fishing in the central Arctic Ocean, see e.g., http://www.dfo-mpo.gc.ca/international/ media/statement-declaration-eng.htm, accessed 15 March 2017. See also the use of 'Central Arctic Ocean' by Denmark, Iceland and Norway in the context of the OSPAR Commission's consideration of an Arctic Ice High Seas MPA' (marine protected area; see infra note 177 and accompanying text). 12 Map prepared by David Swanson and reproduced here with his permission. 13 UNCLOS, supra note 6, Art 1(1)(1). Arctic coastal States have also established maritime zones that are not explicitly recognised by UNCLOS but are not inconsistent with it either. Examples include 'territorial waters' , which comprise both (marine) internal waters and the territorial sea,15 and 200 nautical mile (nm) maritime zones derived 14 Map used with permission of the Pew Charitable Trusts. 15 E.g., Act No 57, 27 June 2003, on Norway's Territorial Waters and Contiguous Zone. Note also that the concept of territorial waters is used in Article 2 of the 1920 Spitsbergen Treaty (Treaty concerning the Archipelago of Spitsbergen, adopted 9 February 1920, 2 LNTS (entered into force 14 August 1925)).

Figure 2.2 High seas pockets in the marine Arctic14
For use by the Author only | © 2017 Koninklijke Brill NV from the EEZ, in which a coastal State only claims some of the sovereign rights and jurisdiction to which it is entitled pursuant to Article 56 of UNCLOS-for instance, the Fishery Zone (a de facto exclusive fishery zone (EFZ)) established by Norway around the island of Jan Mayen. 16 The consistency of EFZs with international law is based on their incorporation into customary international law-probably already in the early 1970s-and the principle of in maiore stat minus (who can do more can also do less). The Fisheries Protection Zone (FPZ) established by Norway around Svalbard in 197717 is derived from an EFZ and relied on the EFZ's status as customary international law at the time of its establishment. Rather than designating an EFZ or even an EEZ, however, Norway opted for an FPZ to take account of the diverging views among States on the geographical scope of the Spitsbergen Treaty18 (see section 3 below).
UNCLOS also recognises the existence of so-called 'historic bays' and 'historic titles' in Articles 10(6), 15 and 298(1)(a)(i). These are part of a coastal State's internal waters-or in exceptional circumstances its territorial sea19provided the requirements under international law on acquisition of title to territory-i.e., effective occupation demonstrated by continuous and peaceful display of State authority in conjunction with explicit recognition or acquiescence by the international community-are met.20 As examined in Chapters 6 and 7 of this Volume, both the Russian Federation and Canada have claims to historic bays or historic waters located within the marine Arctic.
Chapter 6 on the Russian Federation also examines Russia's reliance on the sector principle or theory in the Arctic, which may have had some relevance for its maritime boundaries with Norway and the United States.21 So far, however, 16  For use by the Author only | © 2017 Koninklijke Brill NV Russia has not explicitly exercised coastal State jurisdiction based on the sector principle or theory and has also been in compliance with the rules and procedures on the outer limits of coastal State maritime zones laid down in UNCLOS. It will be interesting to see, however, if this remains unchanged with regard to the Russian Federation's future actions concerning its still unfinished procedure before the CLCS in relation to the geographical North Pole. Finally, reference can be made to the practice of Norway, the Russian Federation and the United States relating to so-called 'grey areas' . These areas-which are not maritime zones proper-are located within 200 nm from the baselines of one State but situated on the other State's side of the maritime boundary. The EEZ-derived sovereign rights and jurisdiction in these areas have been ceded by the former State to the latter State by means of treaties.22

2.2
Maritime Boundaries and Limits Various boundaries in the marine Arctic are still under negotiation, namely between Canada and Denmark/Greenland in the Lincoln Sea, and between Canada and the United States in the Beaufort Sea. Also, while boundary negotiations between the Russian Federation and the United States led to the adoption of a bilateral boundary treaty, it has only been ratified by the United States. 23 As regards the continental shelf beyond 200 nm in the marine Arctic, the submissions by Denmark, Iceland and Norway have so far led to positive recommendations. The Russian Federation made a revised submission in respect of the Arctic Ocean in August 2015 and Denmark made a submission in respect of the Northern Continental Shelf of Greenland in December 2014. Canada made a submission in respect of the Atlantic Ocean in December 2014, while informing the CLCS that a submission in respect of the Arctic Ocean will be 22  If the recommendations of the CLCS reveal an overlap between continental shelf entitlements-as is highly likely-bilateral, trilateral or perhaps even multilateral negotiations will be needed to agree on maritime boundaries relating to the outer continental shelf.25 As completion of the procedures involving the CLCS is expected to take a considerable number of years, clarity on the location of such boundaries will only materialise in the more distant future. This overview of the maritime zones, boundaries and limits in the marine Arctic clearly illustrates that-apart from the FPZ around Svalbard-it is not significantly different from most other marine regions and Oceans. Only the Southern Ocean around the Antarctic continent stands apart, due to the disagreement on sovereignty over Antarctic land territory.

International Disputes Relevant to the Marine Arctic
The Arctic and the Antarctic are both polar regions, but are fundamentally different from the perspective of international law. The Arctic is not subject to a disagreement on sovereignty over territory that is even remotely similar to the disagreement that exists in the Antarctic. The only dispute on title to land territory in the Arctic is that between Canada and Denmark/Greenland with regard to the tiny Hans Island in the Nares Strait. For use by the Author only | © 2017 Koninklijke Brill NV island in two,27 but at the time of writing this had not (yet) happened. Shared sovereignty by means of a condominium would be an alternative option.28 It may well be that resolution of the dispute can only be accomplished in conjunction with agreement on maritime delimitation in the Lincoln Sea and the Arctic Ocean. Various other Arctic-specific international law of the sea disputes exist as well. First, the disagreements on the legal status of the Northwest Passage and other waters within the Canadian Arctic Archipelago, waters within the Northern Sea Route, and the consistency of associated straight baselines with international law. These disputes are examined in Chapters 6 and 7 of this Volume.
Second, the disagreement between Norway and several other parties to the Spitsbergen Treaty on the treaty's geographical scope of application (see above). Norway takes the position that the Treaty, and thereby its key provisions on equal access and non-discrimination, do not apply seaward of the outer limit of the territorial sea. A number of other parties to the Treaty, however, take the view that the Treaty applies to all maritime zones generated by Svalbard.29 In view of these different positions, Norway established an FPZ off Svalbard-while insisting on its right to establish an EEZ (or EFZ)-and allows a limited number of parties to the Treaty to fish in the FPZ, based largely on historic track records.30 The relevance of the Spitsbergen Treaty for international merchant shipping and its regulation by Norway is examined in Chapter 8 of this Volume.

4
The International Legal Framework for the Marine Arctic 4.1 Introduction As noted in section 1, UNCLOS and its two Implementation Agreements function as the cornerstone of the international law of the sea. They are supplemented by a multitude of global, (sub-)regional and bilateral instruments and For use by the Author only | © 2017 Koninklijke Brill NV bodies, acts adopted by such bodies, and rules from other sources, including customary international law. This domain is so extensive that even a concise overview cannot possibly be provided here. 31 A crucial distinction in this domain is that between its global component on the one hand, and its regional, sub-regional and bilateral component on the other. Global instruments apply in principle also to the entire marine Arctic and so does the competence of the bodies established by these instruments (if any). Conversely, the geographical scope of (sub-)regional and bilateral instruments and their bodies' competence (if any) is inherently limited and is commonly explicitly specified.32 Participation in these instruments and bodies as well as their relationships and compatibility with global and other (sub-) regional and bilateral instruments and their bodies, is therefore of obvious significance.
The (sub-)regional and bilateral component of the international legal framework of the marine Arctic is highly fragmented and complex. This is partly caused by the fact that the marine Arctic comprises not only the Arctic Ocean but also parts of the North Atlantic and the North Pacific Oceans (see Figure 2.2 above). Moreover, while the Arctic Council's substantive mandate is almost unlimited,33 and the Council is at present generally accepted to be the principal intergovernmental body for Arctic cooperation, its Members do not intend the Council to eventually replace or subsume all pre-existing (sub-) regional or bilateral instruments and bodies, or to preclude new (sub-)regional or bilateral instruments and bodies from being created. Examples in this regard are instruments and bodies relating to the conservation and management of marine mammals34 and fish stocks, for instance the 1973 Agreement on the Conservation of Polar Bears35 and its Meetings of Parties (MOPs),36 and 31 For an overview, see The Arctic Ocean Review Phase I Report (2009)(2010)(2011) For use by the Author only | © 2017 Koninklijke Brill NV the regional fisheries management arrangement (RFMA) on high seas fishing in the central Arctic Ocean that is the likely outcome of the 'Five-Plus-Five' meetings that commenced in December 2015.37 The point of departure is that these instruments and bodies will continue to exist formally on a stand-alone basis alongside the Arctic Council.

4.2
The Global Component Relating to International Merchant Shipping Regulation of international merchant shipping is predominantly carried out by global bodies, of which the International Maritime Organization (IMO) is unquestionably the most prominent. The pre-eminence of global bodies is a direct consequence of the global nature of international merchant shipping and the interest of the international community in globally uniform minimum regulation. This interest and the pre-eminence of global bodies are safeguarded in several ways by UNCLOS, whose framework on navigation can be regarded as generally accepted on account of the near-universal participation in UNCLOS38 and the fact that non-parties to UNCLOS do not have significant objections to this framework.
As explained in Chapter 4 of this Volume, UNCLOS recognises the various navigational rights and freedoms of flag States and connects flag and coastal State jurisdiction over international merchant shipping in most instances by so-called 'rules of reference' to the substantive rules and standards adopted within the IMO. So-called 'generally accepted international rules and standards' (GAIRAS) constitute a mandatory minimum for flag State jurisdiction and an optional maximum for coastal State jurisdiction.39 UNCLOS nevertheless contains a few exceptions which entitle coastal States to impose more stringent rules and standards on transiting foreign vessels. The principal exception is laid down in Article 234 entitled 'Ice-covered areas' and provides: Coastal States have 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 the limits of the For use by the Author only | © 2017 Koninklijke Brill NV exclusive economic zone, 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. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.
Article 234 was included in UNCLOS as a result of the efforts of Canada in particular, which sought to ensure that its 1970 Arctic Waters Pollution Prevention Act (AWPPA) and underlying regulations and orders would no longer be regarded as inconsistent with international law. The negotiations on Article 234 were predominantly conducted by Canada, the then Soviet Union, and the United States, and were closely connected to what eventually became Article 211(6), which enables coastal States to impose tailor-made rules and standards in designated areas of their EEZs.40 This negotiation history does not mean, however, that any common interpretation that these three States may have with respect to Article 234, would necessarily be opposable to other parties to UNCLOS; whether flag or coastal States. While Article 234 contains a number of ambiguities-not unlike many other provisions in UNCLOS, and in fact many other treaties-its key purpose is to provide a coastal State with broader prescriptive and enforcement jurisdiction in ice-covered areas than it would normally have in its maritime zones. In particular, in contrast with Article 211(6), Article 234 does not envisage a role for a 'competent international organization' such as the IMO in case the coastal State takes the view that more stringent standards than GAIRAS are needed.
As Article 234 indicates, jurisdiction is subject to several restrictions and can only be exercised for a specific purpose. One such restriction follows from the words 'for most of the year' . Decreasing ice-coverage will mean that Article 234 can gradually be relied on in fewer areas. At the time of writing, Canada, Denmark (in relation to Greenland), Norway (in relation to Svalbard), the Russian Federation, and the United States would be entitled to exercise jurisdiction pursuant to Article 234. Chapters 6 to 8 of this Volume examine which of these States have also actually made use of this entitlement. Whereas For use by the Author only | © 2017 Koninklijke Brill NV nothing in Article 234 or elsewhere in UNCLOS explicitly excludes its application to waters off the Antarctic continent, this is precluded at present and for the foreseeable future due to the fundamental disagreement on title to territory in Antarctica and the consequential absence of universally recognised coastal States in Antarctica.
As regards the phrase 'within the limits of the exclusive economic zone' , it is submitted that the better interpretation is that this merely indicates the outer limits of the EEZ, and does not exclude the territorial sea.41 This interpretation is consistent with a key feature of the international law of the sea, namely more comprehensive State authority in coastal State maritime zones closer to the coast compared to more distant coastal State maritime zones. Moreover, foreign vessels will in most-if not all-scenarios have to pass through an EEZ before or after navigating through a territorial sea. A requirement to comply with unilateral so-called 'static' (i.e., continuously applicable) standardsi.e., construction, design, equipment and manning (CDEM) standards-while navigating in an EEZ, implies that these will also be complied with during navigation in the adjacent territorial sea. Finally, within their territorial seas, Article 21(2) of UNCLOS provides coastal States at any rate with a separate exception to impose unilateral standards other than CDEM standards (e.g., discharge and navigation standards).
The purpose for which jurisdiction can be exercised pursuant to Article 234 is 'the prevention, reduction and control of marine pollution from vessels' . Even though 'navigation' is mentioned twice in Article 234, it does not explicitly grant jurisdiction for the purpose of ensuring maritime safety. It is nevertheless submitted that Article 234 allows regulations that have environmental protection as a primary purpose and maritime safety as a secondary purpose as well as regulations for which both purposes are more or less equally important.42 UNCLOS does not explicitly address the scenario of waters that are both icecovered and subject to the regime of transit passage, but many commentators argue that the inclusion of the stand-alone Article 234 in the separate Section

4.3
Regional Cooperation and the Law of the Sea UNCLOS and the Fish Stocks Agreement are in many ways framework conventions and do not contain the substantive (material) standards that are necessary for actual regulation, for instance safety standards to deal with cases like the sinking of the Titanic or conservation and management measures to prevent overfishing of target species or by-catch of non-target species. Regulation by States individually cannot provide effective solutions for human activities with an inherent or potential transboundary dimension, and multilateral cooperation at the appropriate level is therefore essential.
Which level of regulation-bilateral, (sub-)regional or global-is appropriate, depends mainly on the activity itself. If activities or their impacts are not confined to a particular region-for instance international merchant shipping and activities that produce greenhouse gases-they are often best regulated at the global level. Regional regulation can, for example, be necessary due to the spatial distribution of particular species or habitats, or the spatial reach of land-based and/or marine pollution. Enclosed or semi-enclosed seas, like the Black and Mediterranean Seas, are obvious candidates for regional approaches, as is also reflected in Article 123 of UNCLOS. Regional regulation may also be able to create a level playing field and regional uniformity, which could, inter alia, be attractive to companies that operate in multiple jurisdictions or consider doing so.
Regional regulation has disadvantages as well. Often, regulation can only be applied on an inter se basis-as between the regional States-due to the pacta tertiis principle. States that have not consented to such regulation therefore enjoy 'free rider' benefits. The pacta tertiis problem can manifest itself in various ways, for instance by vessels of third States that operate in the region itself or by transboundary impacts from outside the region. More stringent For use by the Author only | © 2017 Koninklijke Brill NV regional regulation can also create competitive disadvantages in comparison with other regions. UNCLOS encourages or imposes (qualified) obligations to cooperate at the regional level.45 A similar approach is pursued by various global organisations and their instruments that are part of the global framework of the law of the sea. As a consequence, regional cooperation exists, inter alia, in the following fields:46 1. Merchant shipping: see next subsection; 2. Pollution incidents: including but not limited to incidents relating to merchant shipping-whether by means of monitoring, control and surveillance,47 or contingency planning, preparedness and response (e.g., the Arctic MOSPA48 and its MOPs); 3. Search and rescue: including but not limited to incidents relating to merchant shipping-for instance through the Arctic SAR Agreement49 and its MOPs; 4. Marine environmental protection: in particular through Regional Seas programmes-the majority of which are supported or coordinated by the United Nations Environment Programme (UNEP)50-and large marine For use by the Author only | © 2017 Koninklijke Brill NV ecosystem (LME) mechanisms, many of which are supported by the Global Environment Facility (GEF)51;52 5. Conservation and management of marine living resources: including through regional fisheries management organisations (RFMOs) and RFMAs, other types of regional fisheries bodies (RFBs; including those (also) dealing with marine mammals)53 as well as regional bodies exclusively aimed at the conservation of marine species; and 6. Marine scientific research, for example through the International Council for the Exploration of the Sea (ICES), the North Pacific Marine Sciences Organization (PICES), and the Arctic Scientific Cooperation Agreement54 that was negotiated under the auspices of the Arctic Council at the time of writing.
Owing to the large number and considerable diversity of these regional bodies and their instruments, it is not possible to provide even a concise overview of their key features and differences; not even those relating to the marine Arctic.55 One aspect is nevertheless worth singling out: as a general rule, the States participating as full members in these regional regimes do so in their capacity as a coastal State. There are two exceptions to this general rule: the instruments of the Antarctic Treaty System, and RFMOs or RFMAs whose regulatory areas consist partially or entirely of high seas. The former exception is directly linked to the agreement to disagree on the question of sovereignty over land territory in Antarctica, and the latter is a result of the freedom of high seas fishing. The Arctic Council is not covered by these two exceptions. As discussed in section 5, only regional States can be Members of the Council and this is in principle consistent with international law. Regulation As concluded above, UNCLOS does not require or encourage regional regulation in the domain of merchant shipping, as this would undermine UNCLOS's objective of globally uniform minimum standards and the related primacy of the IMO. This notwithstanding, UNCLOS explicitly allows unilateral prescription by coastal States in some scenarios-one of which is Article 234-and implicitly by port and flag States more generally. Nothing in UNCLOS prevents coastal, port or flag States from exercising these rights collectively at the regional level. The legality of regional residual port State prescriptive jurisdiction is in fact acknowledged by Article 211(3) of UNCLOS, which merely requires regional States to give due publicity to such action.
Moreover, IMO practices and several of its instruments explicitly acknowledge a State's residual prescriptive jurisdiction in its capacity as a port State,56 as a coastal State (e.g., in relation to ballast water exchange and anchoring) or in all three capacities (i.e., as a flag, port or coastal State), provided such exercise is consistent with international law.57 It is nevertheless understandable that the official position by IMO Members on regional regulation is that this should be avoided in view of the risk it poses to the IMO's authority and the desirability of globally uniform minimum standards.58 As such a risk is in principle not posed 56 E.g., Regulation 21 (8)(2)  For use by the Author only | © 2017 Koninklijke Brill NV by (anticipatory) regional implementation of IMO instruments in a manner that respects the pacta tertiis principle, however, this is explicitly allowed or even encouraged. This has for instance led the Arctic Council to pursue regional implementation of the IMO's SAR Convention59 by means of the Arctic SAR Agreement60 and regional implementation of the IMO's OPRC 9061 and Intervention Convention62 by means of the Arctic MOSPA.63 Another example is the anticipatory-but recommendatory-regional implementation of aspects of the BWM Convention64 pursued jointly by the Members of the OSPAR Commission,65 HELCOM66 and the parties to the Barcelona Convention67.68 These instances of (anticipatory) regional implementation do not affect other States: the first two instances because they only implement and operationalise coastal State obligations and the last because it is pursued exclusively on a flag State basis (even though within a specified geographical area There are in fact very few examples of regional exercises of residual coastal or port State prescriptive jurisdiction that affect third States. The main exception is the European Union (EU), which has exercised residual jurisdiction in a (de facto) port, coastal and flag State capacity.71 In addition, various regulations in Annex IV to the Helsinki Convention72 constitute residual prescriptive jurisdiction in all three capacities as well.73 4.4.2 Enforcement As regional cooperation and coordination on enforcement does not undermine globally uniform minimum standards, it is not prohibited or constrained by UNCLOS. Whereas UNCLOS does not encourage such regional action either, the 1991 IMO Assembly Resolution A.682(17) 'Regional Co-operation in the Control of Ships and Discharges' did, and triggered the creation of a global network of regional arrangements on port State control (PSC) modelled on the then already almost decade-old Paris MOU.74 These regional PSC Arrangements for merchant shipping were established to enhance compliance with internationally agreed standards by means of commitments to carry out harmonised and coordinated inspections and to take predominantly corrective enforcement action (i.e., detention for the purpose of rectification). The instruments in which these internationally agreed standards are contained are commonly referred to as the 'relevant instruments' , and include the main IMO instruments. A participating Maritime Authority will only apply relevant instruments that are not just in force generally but also for that Maritime Authority.75 Some applicability gaps can therefore be expected. For use by the Author only | © 2017 Koninklijke Brill NV The Arrangements are non-legally binding and-rather than States as such-Maritime Authorities are parties to them.76 Saving-clauses have nevertheless been incorporated in the Arrangements to ensure that nothing in them affects residual port State jurisdiction, which includes the right to take more onerous enforcement measures.77 The expansion in participation in the Paris MOU and the creation and expansion of eight new arrangements since then,78 means that almost complete global coverage has now been achieved.79 While the Arctic Ocean/region and the Southern Ocean/Antarctic region constitute gaps in global coverage, this does not necessarily mean that these gaps require the establishment of new regional PSC Arrangements.80 Whereas regional PSC Arrangements are primarily aimed at addressing non-compliance by ships, account can also be taken of the performance of the flag States of these ships. The Paris MOU, for instance, not only requires its Maritime Authorities to detain a ship to ensure that deficiencies are rectified, but also to refuse a ship access to port following multiple detentions.81 Refusal of access to port depends among other things on whether or not the flag State appears on the annual grey or black lists.82 Finally, mention should be made of the following regional mechanisms aimed at enforcement of vessel-source pollution violations:  For use by the Author only | © 2017 Koninklijke Brill NV While the substantive mandate of the Council thus relates in particular to sustainable development and environmental protection, it is otherwise only subject to the restriction of 'common Arctic issues' . A footnote to Article 1 specifies, however, that the Council 'should not deal with matters related to military security' . The use of the voluntary term 'should'-which is appropriate for a non-legally binding instrument-nevertheless indicates that the Council could deal with such matters anyway, provided there is consensus to do so. In fact, as the Ottawa Declaration is not legally binding, it does not pose much of an obstacle to the Members if they would wish to go even beyond the already very broad mandate of the Council.
The Ottawa Declaration does not specify the geographical mandate of the Arctic Council and, as indicated earlier, there is no generally accepted geographical definition of the term 'Arctic' . Accordingly, different components and outputs of the Arctic Council can have different geographical scopes.93 This is by no means unique; a similar approach has been pursued in the Antarctic Treaty System, where the spatial scope of the CAMLR Convention94 includes a more northerly marine area that is not included in the spatial scope of the Antarctic Treaty.95 The Arctic Council has three categories of participation: Members, Permanent Participants and Observers. All eight Arctic States are Members; in fact-as noted above-they are Arctic States on account of their establishment of the Council and its predecessor, the AEPS.96 As neither the Ottawa Declaration nor the Council's Rules of Procedure97 entitle non-Arctic States or entities to become Members, the Council is essentially 'closed' . This is in principle consistent with international law. In view of the Council's current mandate and main approaches, current international law does not provide non-Arctic States and entities with a clearly applicable and unqualified entitlement to become a Member. The situation would, for example, be different if the Council were to engage in regulation that interferes with rights of third States or entities (e.g., the freedoms of fishing and navigation on the high seas) 93 E.g., Arctic SAR Agreement, supra note 49, Art 3(1) and Annex, para (1); Arctic MOSPA, supra note 48, Art 3(1) and (2); and Arctic Scientific Cooperation Agreement, supra note 54, Art 1 and Annex 1. For use by the Author only | © 2017 Koninklijke Brill NV in a manner that would be inconsistent with the pacta tertiis principle (e.g., by means of at-sea high seas enforcement).98 There are currently six Permanent Participants, namely the Arctic Athabaskan Council (AAC), the Aleut International Association (AIA), the Gwich'in Council International (GCI), the Inuit Circumpolar Council (ICC), the Russian Arctic Indigenous Peoples of the North (RAIPON) and the Saami Council. Article 2 of the Ottawa Declaration opens the door to new Permanent Participants, provided that one of the two criteria included in Article 2 is met and that the number of Permanent Participants remains smaller than the number of Members. This means that there is at present room for one more Permanent Participant. Chapter 3 of this Volume provides an in-depth examination of the interests and roles of the Permanent Participants in relation to Arctic shipping.
Subsection 5.2 devotes more in-depth attention to the third participatory category in the Arctic Council: Observers.
Decision-making within the Council occurs by consensus among the Members.99 While the Permanent Participants are not entitled to participate in formal decision-making, they have considerable influence in the decisionformation phase prior to formal decision-making, due to the purposes for which the category of Permanent Participants was created, namely 'active participation and full consultation with the Arctic indigenous representatives within the Arctic Council' .100 Finally, as the Council is 'merely' a highlevel intergovernmental forum, it cannot adopt legally binding decisions or instruments. The legally binding Arctic SAR Agreement and the Arctic MOSPA were negotiated within Task Forces established by the Council, and thereby under its auspices. However, their formal adoption and signature took place by ad-hoc diplomatic conferences held in conjunction with the Nuuk (2011) and Kiruna (2013) Ministerial Meetings. This has given rise to the concept of the ACS discussed in subsection 5.4. The 2017 Ministerial Meeting is intended to be used for the signature of the Arctic Scientific Cooperation Agreement that was negotiated within the Scientific Cooperation Task Force (SCTF) at the time of writing.
The operation of the Arctic Council revolves around the bi-annual Ministerial Meetings where, inter alia, the Council's output is formally approved or endorsed, new projects and future work plans are adopted, and For use by the Author only | © 2017 Koninklijke Brill NV other important decisions, for instance on applications for Observer status, are made. The Council is formally led by a bi-annual rotating chairmanshipheld by the United States between 2015 and 2017-and assisted by the Arctic Council Secretariat-based in Tromsø, Norway-led by its Director. The Chair is not only responsible for preparing for the next Ministerial Meeting-in particular to ensure that targets agreed at the previous Ministerial Meeting are met-but also for the Senior Arctic Officials (SAOs) meetings generally held twice each year, as well as the day-to-day operation of the Council.101 Most of the substantive work of the Council takes place within its six 'permanent' Working Groups, namely: 1. Arctic Contaminants Action Program (ACAP); 2. Arctic Monitoring and Assessment Programme (AMAP); 3. Conservation of Arctic Flora and Fauna (CAFF); 4. Emergency Prevention, Preparedness and Response (EPPR); 5. Protection of the Arctic Marine Environment (PAME); and 6. Sustainable Development Working Group (SDWG).
Besides establishing additional 'permanent' working groups, the Council can also establish bodies with a limited period of operation, namely Task Forces or other subsidiary bodies (e.g., Expert Groups).102 As noted above, three legally binding instruments have been negotiated within such Task Forces.

5.2
Arctic Council Observers The status of Observer with the Arctic Council is available for three categories of entities, namely (a) non-Arctic States; (b) inter-governmental and interparliamentary organisations, global and regional; and (c) NGOs.103 As at 19 June 2017, there were a total of 39 Observers; with 13 in category (a), 13 in category (b) and 13 in category (c).104 Table 2.1 below provides an overview of the non-Arctic States that held, or had applied for, Observer status at the time of writing. In the context of this Volume, it is worth highlighting that the four most important Asian shipping States-China, Japan, Korea (ROK) and Singapore-all had Observer status at the time of writing.
For use by the Author only | © 2017 Koninklijke Brill NV The 2015 Iqaluit Ministerial Meeting deferred a decision on all then pending applications for Observer status 'with the goal of deciding on them' at the upcoming 2017 Fairbanks Ministerial Meeting.105 This seemed to a considerable extent due to diverging positions on how to deal with the EU application. The EU applied for category (b) Observer status prior to the 2009 Tromsø Ministerial Meeting, but a final decision on its application is still forthcoming. The lack of consensus for approving the EU's application was initially caused by its (consideration of) restrictions on the import of seal products and subsequently (also) by its sanctions on the Russian Federation following Russia's annexation of Crimea in early 2014 and the subsequent events in eastern Ukraine. For use by the Author only | © 2017 Koninklijke Brill NV During the period 1996-2009, interest in category (a) Observer status with the Arctic Council was relatively minor. Four of the six Observers (Germany, the Netherlands, Poland and the United Kingdom) had already participated as accredited observers with the AEPS and only two new applications were made (France and Spain) during this period. Judging by the lack of procedural consistency on the continuation or re-accreditation of Observer status in this period,107 the Arctic States and Permanent Participants did not really consider Observer status to be an important issue. This changed profoundly in the run-up to the 2009 Tromsø Ministerial Meeting when, triggered by the events in 2007-2008 described in section 1, the Arctic States and Permanent Participants were confronted with applications by, inter alia, China, the EU, Italy and Korea.
The inability to reach consensus on these applications in 2009 was caused by a number of factors. Prominent among these was the then already ongoing debate on the strengthening or reform of the Council, including on the role therein for non-Arctic States and entities. Concerns existed that premature steps could prejudice progress. Moreover, as regards China and the EU, there were concerns that participation by these large global players might lead to the subordination of Permanent Participants to Observers within the Council. Arctic States and Permanent Participants are also likely to have had concerns on the geopolitical implications of the involvement of these two large global players as well as others that might follow in their footsteps, and a scenario where Arctic States would be outnumbered by non-Arctic States and entities. Strong sentiments and anxieties about changes to the status quo and about who 'belongs' in the Arctic and who does not, are likely to have played a role as well. This was in particular relevant for the EU application, as the EU considered imposing import restrictions on seal products at the time, thereby upsetting several Arctic States and Permanent Participants. Many of the concerns that existed in 2009 are equally, or even more, relevant today.
The 2011 Nuuk Ministerial Meeting adopted the so-called 'Nuuk Observer Rules' and decided that these would be applied to the pending applications,108 thereby deferring a substantive decision to 2013. The Task Force for Institutional Issues (TFII) established in 2011 was, inter alia, charged with amending the original (1998) Arctic Council Rules of Procedure109 to ensure the integration of the Nuuk Observer Rules, and-at a later stage-with drafting an 'Observer manual' . The amended Rules of Procedure and the 'Observer Manual for Subsidiary Bodies' were eventually adopted in 2013110 and applied to most of the then pending applications. The amendments relate in particular to Rules 37 and 38 as well as Annex 2. They comprise, inter alia, abolishment of the status of ad hoc Observer, formalisation of the review process, clarity on reaccreditation, continuation and associated decision-making, and a list of seven broad, cumulative criteria for admission.
Amended Rules 37 and 38 read as follows: 37. Once observer status has been granted, Observers shall be invited to the meetings and other activities of the Arctic Council unless SAOs decide otherwise. Observer status shall continue for such time as consensus exists among Ministers. Any Observer that engages in activities which are at odds with the Council's Declaration or these Rules of Procedure shall have its status as an Observer suspended. 38. The primary role of Observers is to observe the work of the Arctic Council. Observers contribute through their engagement in the Arctic Council primarily at the level of working groups. In meetings of the Arctic Council's subsidiary bodies to which Observers have been invited to participate, Observers may, at the discretion of the Chair, make statements after Arctic States and Permanent Participants, present written statements, submit relevant documents and provide views on the issues under discussion. Observers may also submit written statements at Ministerial meetings.
Observers may propose projects through an Arctic State or a Permanent Participant but the total financial contributions from all Observers to any given project may not exceed the financing from Arctic States, unless otherwise decided by the SAOs.
The second sentence of Rule 37 clarifies that Observer status can be discontinued (suspended) at any time at the initiative of the Foreign Affairs Minister of one single Arctic State. So far, however, this has never actually happened; also not before 2013. There have so far nevertheless been at least three instances in which applications for ad hoc Observer status have been rejected, namely by The balance between the rights and obligations of Observers-in particular non-Arctic States-has been a sensitive issue for a number of years. This may in part be caused by insufficient awareness among non-Arctic State Observers that current international law does not provide them with a clearly applicable and unqualified entitlement to participate in the Council; let alone a right to become a Member (see previous subsection). Some non-Arctic State Observers are nevertheless dissatisfied with their limited rights pursuant to Rules 37 and 38 and the rather broad and cumulative admission criteria laid down in paragraph 6 of Annex 2 to the Rules of Procedure.
None of the three treaties that have so far been negotiated under the auspices of the Arctic Council provide for accession by non-Arctic States and entities, regardless of them having Observer status. As regards the Arctic SAR Agreement and the Arctic MOSPA this is also understandable, as an entitlement under international law for them to accede cannot be readily identified. The Arctic Scientific Cooperation Agreement is a somewhat different case due to all States' entitlements on marine scientific research pursuant to UNCLOS.114 However, as the geographical scope of the Arctic Scientific Cooperation Agreement includes both land territory, coastal State maritime zones and areas beyond national jurisdiction,115 it is still permissible to limit participation to Arctic States. This distinction between the Arctic SAR Agreement and the Arctic MOSPA on the one hand, and the Arctic Scientific Cooperation Agreement on the other, may also explain-in part-why the formers' negotiation-processes did not involve non-Arctic State Observers-even though some explicitly requested this116-while the latter's negotiation-process was open to all categories of Observers, and several non-Arctic States also exercised this entitlement. But broader support for transparency and inclusiveness is likely to have been another reason for the broader participation in the third negotiation-process.
For the sake of completeness, it should be mentioned that none of the three new Arctic bodies established in 2014 and 2015 (see subsection 5.4) entitle non-Arctic States to become (full) Members, with only the AORF providing observer status to petroleum safety regulatory agencies from non-Arctic States (regardless of their having Observer status with the Arctic Council).117 In addition to broadening participation in the negotiation of the Arctic Scientific Cooperation Agreement, the Arctic Council has actively explored other opportunities for participation by Observers in Arctic Council activities118 and various formats to enable dialogue with Observers.119

5.3
The Roles of the Arctic Council An appropriate point of departure for an analysis of the roles of the Arctic Council is the Council's mandate as laid down in the Ottawa Declaration. Whereas paragraph (a) of Article 1-cited above in full-lists 'cooperation, coordination and interaction' , its paragraphs (b) and (c) mention the Council's role in overseeing and coordinating its Working Groups, and paragraph (d) reads 'disseminate information, encourage education and promote interest in Arctic-related issues' .
The Arctic Council's role in monitoring and assessment is probably what the Council is known best for. For the purpose of this Volume, reference can be For use by the Author only | © 2017 Koninklijke Brill NV made to the Arctic Marine Shipping Assessment (AMSA).120 However, the AMSA was in fact more than an assessment as it contained negotiated policy recommendations.121 The Council's role in providing non-legally binding policy and regulatory guidance has gradually become stronger and more prominent, culminating in such outputs as policy statements, 'regulatory' guidelines,122 recommendations, and best practices.123 The non-legally binding status of these outputs is a consequence of the fact that the Council is a high-level intergovernmental forum. In case legally binding output was desirable, however, the Council resorted to its so-called 'decision-shaping' role. A good example in this regard is IMO's decision to commence negotiations on a legally binding Polar Code in response to a proposal by three Arctic Council Members,124 based on a recommendation agreed within the AMSA.125 However, the Council did not confine itself to a decision-shaping role with two other AMSA recommendations, namely in relation to search and rescue, and preparedness and response to oil pollution incidents.126 In both cases, it decided to take action to ensure regional implementation of global instruments-namely the ICAO Convention127 and the IMO's SAR Convention, OPRC 90 and Intervention Convention-by commencing negotiations for pan-Arctic instruments under its auspices.
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5.4
The Arctic Council System (ACS) This author introduced the concept of the ACS some years ago to clarify that legally binding instruments such as the Arctic SAR Agreement and the Arctic MOSPA-and their institutional components-can be part of the Council's output even though they are not formally adopted by it due to the fact that the Council is a high-level intergovernmental forum.128 Whereas the concept of the Antarctic Treaty System (ATS) has been formally recognised by the Antarctic Treaty Consultative Parties, the concept of the ACS has not been formally recognised by the Council's Members and Permanent Participants. In fact, the acronym ACS is currently widely used to denote the Arctic Council Secretariat.129 The ACS concept consists of two basic components. The first component is made up of the Council's constitutive instrument, other Ministerial Declarations, other instruments adopted by the Arctic Council, and the Council's institutional structure. The second component consists of legally binding instruments negotiated under the Council's auspices and their institutional components. The Arctic SAR Agreement and the Arctic MOSPA as well as their MOPs130 belong to this category, and so will the future Arctic Scientific Cooperation Agreement and its MOPs.131 The linkage between the Council and this second component is not confined to the instruments' mere negotiation under the Council's auspices, but also comprises a considerable and increasing extent of substantive and institutional integration. This relates in particular to the role of the EPPR Working Group under the Arctic MOSPA as well as the Arctic SAR Agreement. As regards the former, not only was EPPR closely involved during its negotiation-in particular by developing its Appendix IV 'Operational Guidelines'-but in 2013 it was also tasked to ensure that Appendix IV remains up to date.132 Among the implementation activities undertaken by EPPR are those developed by its Exercise Design Team (EDT), for instance: 128 Molenaar, supra note 46. 129 The acronym ATS is occasionally also used to denote the Antarctic Treaty Secretariat. The situation with the Arctic Scientific Cooperation Agreement is somewhat different, as none of the existing Arctic Council bodies is an obvious candidate to perform an implementation or other role under this Agreement. Its Article 12(1) contains wording that is virtually identical to that in Article 14(1) of the Arctic MOSPA cited above, but also adds: 'including inviting Arctic Council Permanent Participants and Arctic Council Observers to observe and provide information' . It is submitted that this advances integration with the Arctic Council even further.
Three The AORF's Terms of Reference specify that it is an intergovernmental forum with membership limited to Arctic States, represented by their offshore petroleum regulatory agencies.147 Instead of referring to the Framework Plan, Article II(2)(a) of the AORF Terms of Reference specifies that one of the objectives of the AORF is furthering the recommendations of the TFOPP 'to enhance the capacity of Arctic offshore petroleum safety regulators to prevent marine oil pollution through regular exchanges of knowledge and experience' . The composition of the AORF Management Committee is coordinated with the chairmanship of the Arctic Council.148 Rather than mentioning particular Arctic Council bodies, Article II(1)(c) of the AORF Terms of Reference stipulates that the AORF 'may collaborate with the Arctic Council and other international fora, as appropriate' . The PAME and EPPR Working Groups would nevertheless be of principal importance.
In contrast with the AEC and the AORF, the establishment of the ACGF in October 2015 did not follow preparatory work by an Arctic Council body, whether a Task Force or some other body. The ACGF is an independent, intergovernmental forum whose memberships consists of 'Agencies Representing Coast Guard Functions' of the Arctic States aimed, among others, at supporting 'agreements between Arctic States, such as those made under the auspices of the Arctic Council, related to coast guard functions' .149 Rather than merely complementing the Council or the ACS, such support can be regarded as implementation of the Arctic SAR Agreement and the Arctic MOSPA. In light of the exclusion of 'matters related to military security' of the Council's mandate, it is worth noting that neither the ACGF Joint Statement nor the ACGF Terms of Reference150 use the word 'military' in conjunction with 'security' . As six of the eight participating Agencies have a military or semi-military character,151 however, it may ultimately also serve as a cooperative mechanism to fill this gap in the Council's mandate. A significant extent of institutional integration between the ACGF and the Arctic Council exists as well. The ACGF will be led by a Chair that rotates in tandem with the chairmanship of the Arctic Council,152 and there is ample evidence of increasingly close cooperation and coordination with the EPPR Working Group.153 The brief analysis of these three recently established Arctic bodies reveals a varying extent of integration-substantively as well as institutionally-with the Arctic Council and the ACS. The ACGF appears to be the most integrated and the AEC the least.154 However, none of the bodies are part of the Council because they were not formally established by the Council. Also, none were established pursuant to a legally binding instrument negotiated under the Council's auspices. For the time being, the latter criterion is an objective and useful criterion for determining whether or not a body belongs to the ACS.
Leaving definitional issues aside, however, it would be quite understandable if the establishment of three new Arctic bodies within such a short time-span would be regarded as institutional proliferation. Increased efforts on institutional coordination and cooperation seem at any rate justified. The Arctic Council's 2016 Guidelines for Relationships with Outside Bodies155 may be of some help in this regard. 149  For use by the Author only | © 2017 Koninklijke Brill NV

The Future Evolution of the Arctic Council and the ACS in the Context of International Law
The Arctic Council is at present generally accepted by the international community as the principal intergovernmental body for Arctic cooperation. The Council's primacy in this regard is, inter alia, underscored by the significant interest of non-Arctic States in obtaining Observer status with the Council; in particular since 2008 (see subsection 5.2 above). Milestones of the Council's pathway to primacy are its contribution to the 2004 ACIA-which broadened recognition within the international community that climate change is largely driven by anthropogenic pollution-and its 2009 AMSA Report, which delivers on the need to address inadequacies in the international governance and regulatory regime of the marine Arctic in light of climate change.
The main challenge to the Council's crystallising primacy was-arguablyposed by the high-level cooperation between the Arctic Five following the The 2008 Ilulissat Declaration not only emphasised the applicability of the international law of the sea to the Arctic Ocean, but also observed that the Arctic Five saw 'no need to develop a new comprehensive international legal regime to govern the Arctic Ocean' . This responded to proposals such as those of the World Wide Fund for Nature (WWF) for a 'regional agreement on the management and conservation of the Arctic marine environment' early in For use by the Author only | © 2017 Koninklijke Brill NV Antarctic Treaty Secretariat in 2004, which was not regarded as having transformed the Antarctic Treaty's decision-making body-the Antarctic Treaty Consultative Meeting-into an intergovernmental organisation. The status of an intergovernmental body is above all determined by the positions of relevant States in this regard. It is in this light sufficient to observe that there are no indications that any of the Arctic Council Members regard the Council at present as an intergovernmental organisation.
The question nevertheless remains whether the current institutional set-up of the Council will be sufficient to address future challenges and ambitions. While support for re-establishing the Council pursuant to a treaty has in the recent past also been expressed by Arctic Council participants-namely by Finland165 and the Conference & Standing Committee of Parliamentarians of the Arctic Region166-the required consensus among the Arctic Council Members to commence such negotiations is not even remotely in sight. A key concern of the Permanent Participants is the risk of losing the very influential participatory status they currently have in the Arctic Council. As international law is inherently dynamic, however, nothing fundamental prevents the Arctic States from progressively developing international law by giving Arctic indigenous peoples a similar participatory status under a treaty. 167 At the time of writing, discussions on the development of an Arctic Council Strategic Plan and within the Task Force on Arctic Marine Cooperation (TFAMC) indicated that there is a quite minimal appetite for institutional change. As regards the Arctic Council Strategic Plan, delegations at the October 2016 SAOs For use by the Author only | © 2017 Koninklijke Brill NV of the Russia's maritime zones. In addition, four Members have no coastal State maritime zones in the remaining area at all, namely Finland, Iceland, Norway and Sweden. It is therefore not difficult to imagine that ambitious and 'costly' proposals by these four could be perceived by the Russian Federation as insincere and unbalanced, as they impose no burden on them and a very heavy burden on the Russian Federation. Finally, it should not be forgotten that-despite encouragement174-the Russian Federation has not become a Member of the OSPAR Commission, even though the OSPAR Maritime Area overlaps with Russia's maritime zones.
The pace and direction of progress within the TFAMC is also influenced by the pace and direction of progress within the PrepCom of the BBNJ Process.175 Some, if not all, Arctic States are likely to proceed cautiously in both processes in order to ensure coherence between their positions and thereby avoid compromising their positions and interests.
Recent developments in the OSPAR Commission relating to a proposal for an OSPAR 'Arctic Ice High Seas MPA' in OSPAR Region I (Arctic Waters) should be highlighted as well. At the meeting of the OSPAR Commission's Biodiversity Committee in early 2016, the Kingdom of Denmark objected to further consideration of this proposal within the OSPAR Commission, inter alia, referring to the on-going work of the Arctic Council's TFAMC as well as the overlap between the proposed MPA and areas included in the Kingdom of Denmark's submission to the CLCS.176 Subsequently, Iceland and Norway sided with the Kingdom of Denmark, jointly taking the view that area-based management measures in the 'Central Arctic Ocean' are better left to the Arctic Council, inter alia, due to participation of all relevant coastal States in that body. 177 It For use by the Author only | © 2017 Koninklijke Brill NV is submitted that these three Arctic States thereby implicitly assert the Arctic Council's primacy over the OSPAR Commission as regards area-based management measures in the overlap-area between OSPAR Region I and the area they refer to as the 'Central Arctic Ocean' . However, the Arctic Council's output on area-based management has so far178 been fundamentally different from that of the OSPAR Commission, notably due to the former's lack of multilateral designation and adoption of associated restrictions on human activities. One of the concrete implications of the abovementioned primacy-assertion is therefore that adoption of area-based management measures in the overlap-area between OSPAR Region I and the 'Central Arctic Ocean' that are both multilateral and multi-sectoral cannot be expected in the near future.

Conclusions
As was pointed out early on in this Chapter, the global component of the law of the sea also applies to the marine Arctic. The same is in fact true for global instruments and bodies that belong to other domains of international law. While a legal vacuum therefore does not exist at the global level, in view of the current and projected impacts of climate change, the marine Arctic evidently needs tailor-made implementation of these global instruments, including by regional bodies such as the Arctic Council. Except for the tiny Hans Island-which is claimed by Canada as well as Denmark/Greenland-there are no disputes on title to territory in the Arctic. As nothing remotely similar to the fundamental disagreement on title to territory in Antarctic exists in the Arctic, the Antarctic Treaty is clearly not a suitable model for the Arctic.
Apart from archipelagic waters, all the generally accepted maritime zones also occur in the marine Arctic. This, and the absence of significant disputes on title to territory, means that, from a law of the sea perspective, the marine Arctic is not really different from other marine regions and Oceans, with the notable exception of Article 234 of UNCLOS. It is submitted that this general conclusion is not affected by Arctic-specific practices (e.g., the Fisheries Protection For use by the Author only | © 2017 Koninklijke Brill NV Zone established by Norway around Svalbard, and the Russian Federation's ambiguous-but also unpredictable-reliance on the sector theory), Arcticspecific disputes (e.g., on straight baselines, historic title or waters, the regime of navigation in (parts of) the Northwest Passage and the Northern Sea Route, and the geographical scope of the Spitsbergen Treaty) or the unresolved maritime boundaries and limits in the marine Arctic. The global component of the international law relating to international merchant shipping also applies to the marine Arctic. UNCLOS is the cornerstone of this global component, and recognises or establishes the navigational rights and freedoms of flag States, the jurisdictional balance on navigation between flag, coastal and port States, and IMO's key role in ensuring globally uniform minimum regulation. However, whereas IMO's primacy in the international regulation of international merchant shipping is generally accepted, regional action relating to merchant shipping can still be useful or desirable, and is not necessarily inconsistent with UNCLOS. Cases in point are the Arctic SAR Agreement and the Arctic MOSPA negotiated under the Arctic Council's auspices to ensure regional implementation of IMO instruments. Other domains for which regional action would not lead to incompatibility or conflict with IMO output include monitoring, surveillance, inspection, and enforcement as well as the international law of the sea (e.g., resolving disputes or furthering implementation).
The pace in which the Arctic Council has evolved since its establishment in 1996 is significant. Milestones in this evolution were the establishment of the Arctic Council Secretariat and the de facto creation of what this author has called the concept of the Arctic Council System (ACS). The ACS concept consists of two basic components. The first is made up of the Council's constitutive instrument, other Ministerial Declarations, other instruments adopted by the Arctic Council and the Council's institutional structure. The second component consists of legally binding instruments negotiated under the Council's auspices and their institutional components. The linkage between the two components comprises a considerable and increasing extent of substantive and institutional integration. This relates in particular to the role of the EPPR Working Group.
In 2014 and 2015, the Arctic's institutional complexity increased further by the establishment of three new bodies, namely the AEC, the AORF and the ACGF. While none of these has been formally established by the Council or pursuant to a legally binding instrument negotiated under its auspices, all three have different extents of integration-substantively as well as institutionallywith the Arctic Council and the broader ACS. Rather than forming part of the Council or the broader ACS, however, they could be regarded as belonging to a new, more peripheral category of Arctic cooperative mechanisms. The establishment of these new bodies may well be regarded as institutional proliferation, and require at any rate increased efforts on institutional coordination and cooperation. The Arctic Council's 2016 Guidelines for Relationships with Outside Bodies may be helpful in this regard.
Even though the Arctic Council's substantive mandate is almost unlimited, but at present significantly under-utilised, more optimal use and associated institutional change is in principle constrained by existing (sub-)regional or bilateral instruments and bodies. As a general rule,179 it can be assumed that the Arctic States have no desire to replace or subsume existing (sub-)regional or bilateral instruments and bodies, or to preclude new (sub-)regional or bilateral instruments and bodies from being created. Pertinent examples are instruments and bodies relating to the conservation and management of marine mammals and fish stocks, for instance the currently on-going Five-plus-Five process on international regulation of high seas fishing in the central Arctic Ocean. In view of the widening acceptance of ecosystem-based ocean management, however, one would expect increasingly closer coordination and cooperation between the Arctic Council and these formally stand-alone instruments and bodies.
Further evolution of the Council and the broader ACS seems inevitable, but the timeframe in which this is to occur is very uncertain. One wildcard in this regard is the commencement of the United States' Trump Administration in January 2017. While the broader ACS will at any rate expand further with the envisaged adoption of the Arctic Scientific Cooperation Agreement in conjunction with the Arctic Council's Ministerial Meeting in 2017, the discussions on the Arctic Council Strategic Plan and the slow progress in the TFAMC towards the end of 2016, suggest that further evolution will occur later rather than sooner.