At present, Arctic governance is a mixture of sovereign state initiatives and cooperative efforts, rather than a single, comprehensive and integrated regime. Initiatives range through non-binding, soft law measures to binding, hard law instruments. Each of the Arctic states (Figure 1, Introduction) enacts its own legislation in accordance with international law, regional initiatives and national interests. Thus, the laws that govern the Arctic can vary across
territorial borders.186 Nevertheless, transnational cooperation does exist within the mosaic of issue-specific arrangements.187 Development of pan-Arctic governance has been described as a dynamic process of downstream domestic legislation and upstream relevant global instruments creating a network of bilateral, sub-regional and regional arrangements.188 The most prominent upstream region-specific initiative discussed in this thesis is the Arctic Council, which developed subsequent to the Arctic Environmental Protection Strategy (AEPS).189
185 While the concept of the continental shelf as a natural prolongation of land territory was
given customary recognition from 1969 ICJ judgment on the North Seas Continental Shelf Cases, some authors distinguish this custom from the process through which to define the outer limits and consider the technical details and process of Article 76 to not have the ability to become customary. See for instance, ibid., McDorman, at 167, and fn 9; supra n. 84, McDorman, at 303 and fn 9; B. Kwiatkowska, 'Creeping Jurisdiction beyond 200 Miles in Light of the 1982 Law of the Sea Convention and State Practice' (1991) 22(2) Ocean Development & International Law 153, at 157; and D.N. Hutchinson, 'The Seaward Limit to the Continental Shelf in Customary International Law' (1985) 56 British Yearbook of International Law 133, at 184-188. See also supra n. 181, Dixon, at 220 and 227.
186
Melissa A. Verhaag, 'It Is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment' (2003) 15(3) Georgetown International Environmental Law Review 555, at 556.
187
Oran R. Young, 'Governing the Arctic: From Cold War Theater to Mosiac of Cooperation' (2005) 11 Global Governance 9, at 10. See also Timo Koivurova and Erik J. Molenaar, 'International Governance and Regulation of the Marine Arctic: Overview and Gap Analysis' (WWF International Arctic Programme, 2009) which provides an overview of instruments and institutions related to the Arctic
188 Wolfgang E. Burhenne, 'The Arctic: Towards a New Environmental Regime?' (2007)
37(2-3) Environmental Policy and Law 249.
Sources of law
The sources of law and law making of the Arctic operating system are founded on general principles of international law, customary international law, and treaty law. The most significant global, multilateral treaty for the Arctic and the Arctic Ocean is the 1982 LOSC, described previously.190 Implementation of regulatory measures related to the Arctic by states is through national legislation in accordance with international law, including customary international law and as reflected in LOSC.191
Soft law arrangements are prominent features of the Arctic operating system and include the AEPS,192 Arctic Council,193 Northern Forum,194 and Barents Euro-Arctic Regional Council (BEAC/BEAR).195 As mentioned, the most prominent Arctic-specific initiatives include the AEPS and Arctic Council. Within the operating system these provide sources of law and law-making through the influence they have on state practice. Soft law arrangements do not impose legal obligations; however, they may fall within the definition of a treaty, providing another avenue of influence.196 Nonetheless, the lack of intent for the initiatives to be treaties of international law signifies that the initiatives do not carry the same legal fortitude as treaties which are intended to be treaties.197
190Supra n. 3. 191
See, for example, Section 1 of the AEPS which describes this obligation.
192Arctic Environmental Protection Strategy (AEPS) adopted 14 January 1991, 30 ILM 1624. 193Declaration on the Establishment of the Arctic Council (Ottawa Declaration), 19
September 1996, 35 ILM 1382-1390.
194
Tromsø Declaration of the First General Assembly of the Northern Forum, done at Tromsø, Norway, 03 October 1993.
195Kirkenes Declaration on Cooperation in the Barents Euro-Arctic Region, done at the
Conference of Foreign Ministers in Kirkenes, 11 January 1993. At the same time as the BEAC was created, the Regional Council for the Barents Euro-Arctic Region (BEAR) was created as a separate inter-regional Barents cooperation forum under the same objectives as the BEAC. For information see the Barents Euro-Arctic Region and Barents Regional Council at <http://www.beac.st/in_English/Barents_Euro-Arctic_Council.iw3> at 20 August 2009.
196 See above discussion concerning treaties and the Vienna Convention.
197 See discussion in Donald R. Rothwell, The Polar Regions and Development of
There are also region-specific multilateral treaties, which are both products of the operating system and provide sources for further law-making within the operating system. For example, the 1920 Treaty Concerning the Archipelago of Spitsbergen198 awarded sovereignty over the Svalbard archipelago to Norway, allowed other states maintain equal rights to Svalbard resource exploitation199 and kept the islands demilitarized.200 Another example is the 1973 Agreement on the Conservation of Polar Bears.201 Signed by all five of the Arctic Coastal states with polar bears, the agreement recognized the role of habitat protection by advocating actions be taken not only within the sovereign territory of the parties but also in the international waters, requiring joint efforts by neighboring states to protect polar bears.202 While the region- specific multilateral treaties relate to some aspect of the Arctic, they do not come together in one regime, such as that of the Antarctic Treaty System. Nonetheless, these treaties provide normative foundations, exemplify cooperative efforts and provide further sources of law making within the Arctic operating system.203
198
Treaty Concerning the Archipelago of Spitsbergen, signed 09 February 1920, Paris, 41
UNTS 2, 2 LNTS 7, entered into force 14 August 1925 (Spitsbergen Treaty). Original signatories include Denmark, France, Great Britain (including the overseas dominions of Australia, Canada, India, Ireland, New Zealand and South Africa), Italy, Japan, Netherlands, Norway, Sweden, and the United States. There are now over 40 signatory states including Russia, Iceland, and Finland.
199Ibid., Article 3. 200Ibid., Article 9. 201
Agreement on the Conservation of Polar Bears, done at Oslo, 15 November 1973, 13 ILM
13, entered into force 30 September 1976. Signatories are Canada, Denmark, Norway, former Soviet Union and the US.
202Supra n. 186, at 566. Another example is the Convention for the Protection of the Marine
Environment of the North-East Atlantic (OSPAR), done at Paris, 22 September 1992, 32 ILM
1069, entered into force 25 March 1998.
203 There are also numerous bilateral treaties not discussed in this context. Some examples
include the Agreement between the Government of Canada and the Government of the Kingdom of Denmark Relating to Marine Environment, done at Copenhagen, 26 August 1983, 1348 UNTS 121, entered into force 24 August 1983; Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation and Exchange of Notes Concerning Transit of Northwest Passage, 11 January 1988, Ottawa [1989] 28 ILM 142, 144, entered into force 11 January 1988 and Agreement between the Governments of the Kingdom of Norway and the Russian Federation on Cooperation in Environmental Matters, Oslo, 03 September 1992. In force same day; Overenskomster med fremmede makter (Oslo, Norwegian Ministry of Foreign Affairs: 1992), pp. 1532-1535.
Numerous broad spectrum international treaties, while not specific to the Arctic, have far-reaching influence on the Arctic204 and contribute to the operating system. These include, inter alia, the United Nations Convention on Biological Diversity,205 the Convention on Long Range Transboundary Air Pollution206 and the Convention on Persistent Organic Pollutants.207 In light of the absence of an overarching Arctic-specific treaty to consolidate regional efforts in a binding platform, these instruments and their institutions provide different platforms for raising the prominence of issues that impact on the Arctic, as well as a means of establishing a level of transnational compliance. For example, as Stokke comments:
[t]he authority of coastal States, as confirmed in LOSC to regulate the exploitation of shelf resources, means that there is little to constrain regional States from agreeing on more stringent environmental standards for hydrocarbon exploration and production than those laid down globally, should they wish to do so.208
Arctic Environmental Protection Strategy
The Arctic Environmental Protection Strategy (AEPS), which was signed by all eight Arctic States in 1991, created a platform for Arctic-specific
environmental issues.209 Pursuant to soft-law principles, its adoption did not impose legally binding obligations.210 The governments of the Arctic states committed themselves to international cooperation along a number of
204Supra n. 11, at 253 for discussion on multilateral environmental agreements for the Arctic
and the development of regional initiatives.
205Supra n. 8, CBD.
206Supra n. 9, Convention on Long Range Transboundary Air Pollution. 207Supra n. 10, Stockholm Convention.
208
Olav Schram Stokke, 'A Legal Regime for the Arctic? Interplay with the Law of the Sea Convention' (2007) 31(4) Marine Policy 402, at 405.
209 For a history of the development of Arctic regional cooperation and the AEPS initiative
see supra n. 197, at 231-242 and more recently, Timo Koivurova and David VanderZwaag, 'The Arctic Council at 10 Years: Retrospect and Prospects' (2007) 40(1) University of British Columbia Law Review 121-194.
210 David VanderZwaag, Rob Huebert and Stacy Ferrara, 'The Arctic Environmental
Protection Strategy' in Alex G. Oude Elferink and Donald R. Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, Kluwer Law International (2001) 225, at 236. Because the Arctic Council has further formalized the AEPS, decision-making authority, participation and meetings are discussed in relation to the Arctic Council. See discussion around n. 222, 233 and 271.
objectives geared towards protecting the Arctic ecosystem, the achievement of which is carried through national legislation and in accordance with
international and customary law.211 The AEPS committed members to hold regular meetings; include and promote cooperation with Arctic indigenous people; and established four working groups to carry out scientific work on the Arctic environment. The four working groups are: Arctic Monitoring and Assessment Programme (AMAP); Protection of the Arctic Marine
Environment (PAME); Emergency, Prevention, Preparedness and Response (EPPR); and Conservation of Arctic Flora and Fauna (CAFF). In the 1993 Nuuk Declaration, a further task force on sustainable development was added.212
The AEPS can be seen as the first precautionary approach towards considering the long-term protection of the Arctic environment,213 the sustainable and equitable development of natural resources and the respect and protection of indigenous culture, rights and traditions.214 The AEPS contained very ambitious objectives including identifying, reducing and ultimately eliminating pollution. Six pollution areas were chosen as priorities. A review of international mechanisms, treaties and other normative
instruments was also included and action plans were formulated to combat the identified problems. Arctic states were obligated to establish working groups and meet regularly in order to review progress and coordinate actions.215 Terms of cooperation established between states in the AEPS were subject to the laws and regulations of the countries. Each country will make its ‘best efforts to provide resources adequate to carry out its responsibilities’.216 By the 1993 Nuuk Ministerial meeting, the involvement of Senior Arctic Affairs Officials (SAAO/SAO) was formally recognized and the ministers requested
211Supra n. 192 and Arctic Environmental Protection Strategy, Rovaniemi Declaration on the
Protection of Arctic Environment (Rovaniemi, June 1991) <http://arctic-
council.npolar.no/Archives/AEPS%20Docs/artic_environment.pdf> at 01 May 2009.
212 Arctic Environmental Protection Strategy, Nuuk Declaration (1993) <http://www.arctic-
council.org/Archives/AEPS%20Docs/Default.htm> at 03 October 2007.
213
Supra n. 186, at 567.
214Supra n. 212, Nuuk Declaration, Introduction, at 7. 215 Subsection 10, paragraph 1, at 1668, AEPS. 216Ibid., at section 9.1(viii-ix), at 1667-1668.
that the SAOs convene at least once a year.217 These high-level officials were responsible for monitoring and providing guidance in the implementation of the AEPS. Importantly, the AEPS provided a foundation for the elevation of its objectives through the establishment of a governing body: the Arctic Council.218
Arctic Council
In 1996, the Declaration on the Establishment of the Arctic Council absorbed the AEPS,219 and supplemented its Working Groups with the initiation of a Sustainable Development Programme.220 As a multi-stakeholder forum, the Arctic Council provides a mechanism and platform for international
cooperation on key issues concerning the Arctic.221 The Arctic Council expanded the AEPS’s terms of reference to include a broader mandate covering ‘common Arctic issues’. Common issues cover almost any issue except ‘matters related to military security’.222
Decisions on key issues, such as the adoption of specific mandates for a Working Group or cooperative strategic plans, are taken by consensus by delegates of the eight Arctic Council Member States.223 This unique forum also recognizes the important relationship and contributions of indigenous people to the Arctic and has afforded Permanent Participant status to six
217
Supra n. 212, Nuuk Declaration. The name Senior Arctic Affairs Official (SAAO) was changed in the 1996 Iqualuit Declaration to Senior Arctic Official (SAO). See The Arctic Council Rules of Procedure as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, 17-18 September 1998 (Iqaluit, Canada), <http://arctic-
council.org/filearchive/official%20rules%20and%20procedures.pdf> at 10 July 2010.
218
Supra n. 188, at 251.
219 The AEPS cooperation process was not immediately integrated into the Arctic Council.
The final AEPS Ministerial Meeting took place in Alta, Norway in June 1997 where the Alta Declaration was adopted and the SAAOs produced their final ‘Report to the Ministers’. Arctic Environmental Protection Strategy, Alta Declaration (1997) <http://arctic- council.org/filearchive/The%20Alta%20Declaration.pdf> at 06 April 2009.
220Supra n. 193, Ottawa Declaration. 221
Supra n. 188, at 251-253 and n. 210, at 225-248.
222Supra n. 193, Article 1(a), Ottawa Declaration.
223 Member states are Canada, Denmark, Finland, Iceland, Norway, the Russian Federation,
indigenous organizations.224 Permanent Participants must be consulted on all issues prior to being voted on by the Council Member States and are in attendance alongside Member State SAOs. SAOs have carried on their role from the AEPS of guiding and monitoring Arctic Council initiatives.
Observers also participate in the Council and may include non-Arctic States, intergovernmental and inter-parliamentary organizations, and non-
governmental organizations that span regional and global enterprises.225
Arctic Council Working Groups have individual secretariats and objectives. These groups also collaborate on larger projects and initiatives, such as the Arctic Council’s Action Plan to Eliminate Pollution in the Arctic (ACAP) and the Arctic Climate Impact Assessment (ACIA). ACAP was adopted at the 2000 Barrow, Alaska, Ministerial Meeting.226 Priorities of the first phase of ACAP related to findings of the AMAP concerning persistent organic pollutants (POPs), heavy metals, radioactivity and depletion of the ozone layer.227 Ongoing projects have focused on pollution reduction, in particular from the Russian Federation. However, a lack of clear legislation, limited coordination between federal and regional administration, and general implementation problems has hindered ACAP’s progress.228
ACIA was also endorsed at the Barrow Ministerial Meeting as a joint project between AMAP, CAFF and the International Arctic Science Committee
224 The six indigenous groups are: the Russian Association of Indigenous Peoples of the
North; Inuit Circumpolar Conference; Saami Council; Aleut International Association; Gwich’in Council International and Arctic Athabaskan Council. See supra n. 188, at 251. See also Arctic Council, Notes from the Second Ministerial Meeting of the Arctic Council, Barrow, Alaska (12-13 October 2000) (2000) <http://arctic-
council.org/filearchive/barrow_notes.pdf> at 19 August 2009, at 2-4.
225
Observers include non-Arctic states: France, Germany, Poland, Spain, The Netherlands, and the UK; international organizations such as the North Atlantic Marine Mammal Commission and the Nordic Council of Ministers; and NGOs, such as the Northern Forum and the Circumpolar Conservation Union. A complete list of all the observers can be found at
Observers to the Arctic Council <http://arctic-council.org/section/observers> at 21 August 2009.
226 Arctic Council, Barrow Declaration (2000) <http://arctic-
council.org/filearchive/The%20signed%20Barrow%20Declaration.pdf> at 21 April 2009.
227 For a detailed review of ACAP and the Working Groups and initiatives of the Arctic
Council see supra n. 209, Koivurova and VanderZwaag, at 137-155.
(IASC).229 The ACIA Synthesis Report was published in 2004, identifying prevailing climate change trends and implications for Arctic warming.230 In 2004, the Reykjavik Meeting endorsed PAME to develop the Arctic Marine Strategic Plan (AMSP). The AMSP includes a comprehensive assessment of Arctic shipping, protected areas, port facilities and the adequacy of oil and gas guidelines under its mandate.231 In 2009, an ‘Arctic Report Card’ tracking recent environmental changes was published from collaborative work of the Climate Experts Group of AMAP and the Circumpolar Biodiversity
Monitoring Program of CAFF.232 Together, these projects report on Arctic specific issues and highlight areas where government action at the state level may be beneficial.
Based on international soft law, the Council does not enjoy the same legal personality as an international organization or have the regulatory powers and decision-making authority of an institutional regime.233 Governments
voluntarily engage with each project and the informal structure of cooperation has many advantages to states. Participation can be priority focused,
minimizing wasteful expenditure of resources and granting assurances that there is no limitation on a state’s ability to act in its national interest.234 Soft law can often contain content that states would not accept in a legally binding instrument, encompass activities of a range of non-state actors and be easier to adjust or even restructure in response to changing circumstances, adjusting ‘nimbly and without great political cost’.235 Consensus can be more readily
229Supra n. 226.
230 See ACIA, 'Arctic Climate Impact Assessment, Scientific Report' (Cambridge University
Press, 2005); ACIA, 'Impacts of a Warming Arctic: Arctic Climate Impact Assessment Overview Report' (Cambridge University Press, 2004).
231
PAME, Arctic Marine Strategic Plan (AMSP) (24 November 2004)
<http://arcticportal.org/uploads/vx/IW/vxIWcyCi_7UnSBwZDbPVug/AMSP-Nov-2004.pdf> at 06 April 2009.
232
J. Richter-Menge and J.E. Overland, Arctic Report Card 2009 (2009) <http://www.arctic.noaa.gov/reportcard> at 02 November 2009.
233 The absence of legal personality served as a compromise to the United States’ reluctance
to be involved in any new multilateral organization and to enter into any new international financial commitments. Supra n. 210, at 239 and n. 188, at 251 and 254.
234Ibid., n. 188, at 254.
235 Oran R. Young, 'Whither the Arctic? Conflict or Cooperation in the Circumpolar North'
achieved in a forum that is non-binding in nature,236 and can move practical issues forward. Whereas more formalized obligations may reduce the willingness of certain states, such as the US, to sign in,237 or reduce the capacity to move a practical matter forward at all. Nonetheless, moving from discussion to action is also challenging in light of the Council’s limited role as a ‘discussionary and catalytic forum’ with laws and policy dependent on the goodwill of individual national governments. It has been suggested that the profile of the Arctic Council and its practical implementation as a ‘high level forum’ needs to be enhanced.238 Limited funding and a lack of a permanent secretariat may also be considered problematic for the Council.239
Regional fora
Other non-binding fora such as the Northern Forum and the BEAC/BEAR also facilitate discussion and policy directives. The Northern Forum, founded in 1991 as an international organization, is now composed of 24 sub-national