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of global regionalization: the governance of a changing Arctic

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Abstract. Unprecedented changes have affected the Arctic region in the last decades, mostly due to climate change. The possibility of an increased usage of the region and of its further deterioration, has posed questions over the need of rethinking its governance structure, moving towards the proposal of a specific regional treaty adoption. Considering the legal framework that applies to the Arctic and the instruments of soft law developed so far, a compari- son with the Antarctic Treaty System will be proposed in order to understand if an Antarctic treaty based model could be a feasible option for the governance of the region. The article concludes by explaining why the continuing use of a soft-law-based approach, rather than the bargaining of a regional treaty, can be considered a valid alternative, as far as it prevents the overlap among existing legal constraints and favour the inclusion of all relevant actors, enabling therefore the creation of an integrated Arctic governance..

Keywords: Arctic, Governance, International Relations, International Public Law, The Law of the Sea, Hard and Soft Law Instruments.

Introduction

The Arctic region has increased its international relevance in the last decades, due to the interaction with climate change. The melting of the ice is opening up new routes of navigation, creating the possibility of resources use and exploitation (e. g. hydrocarbons and fishery), as well as endangering Arctic ecosystems and the human environment.

These unprecedented changes, together with the absence of a regional legal system regulating such activities, may be considered as an opportunity to increase commerce, tourism and economic profit in general. At the same time, and even more when not properly addressed, these prospects may become uncertain and threatening, rather than desirable opportunities for sustainable development.

As well as interests, also key actors are multiple and possibly contrasting in nature, Arctic states, global and regional stakeholders, NGOs and Arctic indigenous peoples.

From sovereignty claims over maritime areas or the willingness to play a marginal role in a rationale of economic profit, to the needs of indigenous peoples to preserve their tradition and environment; all play a different role and advocate for varied rights.

In such a context, where the anarchic character of international relations is prevailing, the juridical standpoint should serve to give greater assurance about the legality of the actions taken and the demands made by the involved subjects, helping in the process of creating a coherent structure of governance.

Considering the United Nations Convention on the Law of the Sea as the legal regime that first and foremost applies to the Arctic Ocean, one should also remember that the Convention itself was not exclusively designed to regulate the region, and therefore it could result incomplete.

This has opened new questions over which could be- and if it is needed the elaboration of- a more appropriate legal regime given the significant changes the region is experiencing.

In answering this question, the article will conclude by supporting that a more coherent governance for the Arctic region would be reached through the use of a soft- law- based approach, where soft law instruments (e. g. General Principles of International Law, Declarations) are applied alternatively or rather complementary to the existing legal framework.

The Arctic region

Defining the Arctic region has proved troublesome, as its changing character makes it controversial to agree on a concerted definition. Geographically, one can refers to the Arctic as the lands above the sea level and the waters-fro- zen or not-surrounding the North Pole and opposite to the Antarctic, more specifically as the terrestrial and marine areas north of the Arctic circle, at a latitude of 66 32' North [1].

The importance of properly outlining the region relates with the aim of analyzing its legal status and governance, especially if one considers the changes experienced by the region in the last decades due to global warming (e. g. melting of sea-ice, erosion of littorals, thawing of permafrost, increase in sea levels) and therefore, the possibility of increased use by Arctic states (Canada, Denmark/ Greenland, Norway, the Russian Federation, The United States, Iceland, Finland and Sweden), Arctic inhabitants and international stakeholders.

In this view, a study from the USGS[1] has estimated that the region contains substantial amounts of undiscovered oil and gas, what can be considered an attractive opportunity of exploitation, together with the foreseen increase of shipping through the Northwest Passage or the Northern Sea Route, and the growth in available fishing stocks.

Notwithstanding the outlining of an "Arctic race" in a future of increasing resources' demand [7], this eventuality have been prevented so far by extreme climate conditions, that makes expensive and burdensome undertaking any operation, but also by the high degree of engagement created within regional actors. Both the application of the existing legal constrain and its further development through means of cooperation, have favoured an increased institutionalization of the regional governance.

From a juridical point of view indeed, it would be inaccurate to affirm that a legal vacuum is prevailing in the North Pole [9; 8]. Due to its physical conformation, an ocean surrounded by land, where water prevails in comparison with mainland, the legal regime that applies to the Arctic is the one guaranteed under the United Nations Convention on the Law of the Sea (UNCLOS, 1982).

Even if the Convention makes expressed reference to the Polar regions just at few disposals, as in the case of Art. 234[2] [3], it represents the legal bases on which Arctic states and the international community rely for the definition of their maritime areas, as well as for the management of resources and the solution of arising disputes [10].

Under the same UNCLOS, the UN Commission on the Limits of the Continental Shelf (CIjCS) has been established for the delineation of the outer limits of continental shelfs, the extension of which may be proposed within ten years from the date of ratification.

At date the United States has not ratified the UNCLOS, what may become controversial in future adjudications of maritime boundaries, but it compromises to its key provisions, recognizing it as customary law.

In light of what we have seen so far, with the UNCLOS being the fundamental governance mechanism in the region, one should also bear in mind the existence of other multilateral global or regional treaties created as a response to practical needs, and possibly envisaging a scenario of uncertainty or fragmentation.

This has fostered the proposal for the bargaining of a single legal regime for Arctic governance, expressively designed to meet its peculiarities. Despite the possibility of better manage environmental risks, global wanning and issues of indigenous representation by the adoption of a comprehensive regional regime, at date no political agreement have emerged among Arctic states.

On the contrary, they have reaffirmed their adherence to the Law of the Sea by issuing the Ilulissat Declaration of 2008[4] and engaging in a circumpolar cooperation process, realized within the Arctic Council.

Initiated on the wake of the Murmansk Speech[5], the process that leaded to the creation of the Arctic Council concluded in 1996 with the signing of the Ottawa Declaration. At present, the Council is an intergovernmental forum dedicated to sustainable development and environmental protection, where all relevant regional and extra- regional actors are represented with different degrees of participation and decision-making powers.

Besides its structure, what it is interesting for the analysis, is that the Council has served as the political forum where Arctic and non- Arctic states, and the indigenous peoples, have coordinated their actions inspired by the principles of cooperation an environmental law, developed an effective cooperative approach and agreed on peculiar issues, giving consistency to the existing legal framework.

This informs about the importance of a regional governance conceived by means of soft law, whereas binding decisions would result impossible- or at least more difficult- to achieve. Two examples of these practice are represented by the consensus arose around the controversial topics of rescue activities at sea and oil pollution, where the Council has served as forum of political bargain, enabling the adoption of the Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic (Arctic SAR Agreement, 2011) and of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response (OPPRA, 2013) under its auspices, setting a relevant case- law for its policy-shaping powers [16].

These practice stands as evidence of a rule system that roots on the principles of cooperation, and as an example of regional governance conceived by means of soft law, a common trend when dealing with matters related with International Environmental Law or of great geostrategic relevance.

Especially where a common ground among parties has been difficult to be found, a more flexible norm- building approach has been preferred to the adoption of binding agreements or no regulation at all.

Moreover, this process seems more suitable when dealing with subjects related to environmental protection, the dynamic character of which requires to ground on emerging scientific evidence. Finally, the lack of a centralized legislative body in the international setting, limits the enforcement of international environmental law to states, which will be discouraged from behaving as free riders when compromised in voluntary systems of cooperation [5].

In making up some of the shortcomings left by binding law therefore, Arctic states have relied on the development of alternative and more region-based mechanisms of governance and cooperation through the use of soft law instruments, inspired by the principle of cooperation and sustainable development or by the adoption of declarations of political significance; possibly preparing the ground for future and more stringent commitments.

The Antarctic Treaty, a model for the future?

After having introduced the most relevant characteristics of the Arctic region and the features of its institutionalization, one may ask whether the Antarctic Treaty System may be considered as an alternative to the existing legal framework or to the Arctic cooperation system.

A comparison with the Antarctica seems natural if one considers ice extension, extreme climate conditions and the richness in natural resources, but looking more deeply, one would realise that the regions share also significant differences [22].

First of all, the Antarctica is a terrestrial space, while the Arctic is an ocean or a set of ice seas. No indigenous peoples live in the Antarctic and the human presence is restricted to seasonal scientific research expeditions. Lastly, while the Antarctica enjoys a specific regime- the Antarctic Treaty System (ATS, 1959) the Arctic region has no specific legal constraints and is mostly governed by the Law of the Sea.

The article do not want to deeply analyze the ATS, but it considers its arrangement to discuss whether it might be proposed as a model of binding legal regime for conservation and sustainable use of the Arctic and its marine en- vironment.

On the one hand, the conclusion of such a broad regime for the region would enable Arctic states to ensure the environment, to secure a peaceful coexistence among states and in some extent, to regulate all feasible actions northward, providing a more coherent system of governance for both Arctic states and the International Community. On the other hand, looking more deeply, the ATS seems unable to provide a model for Arctic governance for several reasons.

Even if many still support this option, it seemed more feasible before the adoption of the Ilulissat Declaration by Arctic coastal states. The acknowledgement of the Law of the Sea as the regime governing the Arctic Ocean by those actors that should be the first concerned with the conclusion of an Arctic Treaty, has granted the UNCLOS the value of international framework convention. This not only discourage the bargain of an alternative regional treaty, but it also highlights the interest of Arctic states in pursuing their sovereignty claims over territories and maritime areas, rather than suspend them. Even if disputes in the Arctic are few[6], coastal states seem not willing and able to renounce to their sovereignty aspirations. Moreover, as the provides a complex but complete system for the extension of the continental shelf beyond the 200 n.m., several Arctic states have already initiated these process [14].

If we extend the spectrum of concerned actors then, we will see that the conclusion of a treaty on the model of the Antarctic one would possibly exclude the participation of other relevant actors, such as indigenous peoples, non Arctic states and NGOs. Undoubtedly Arctic states should be the sole rights holders on their territories, but the peculiarities of the Arctic, the urgency of its environmental deteriorating conditions and the global climate change, calls on the need to include other actors in its management, and the fact that the Arctic is a region permanently inhabited by a large indigenous population, should not be underestimated [18].

These indigenous communities indeed- through their transnational organizations and active participation in the Arctic Council or in other international fora- have not only obtained the recognition of their traditional knowledge as fundamental in managing Arctic resources and environment, but also increasing rights of internal self-determination. This challenges the conclusion of any treaty that does not adequately integrates the environmental component of human rights and that neglects the forms of self-government already developed in Canada and Greenland [6].

In some extent the ATS, through the Antarctic Treaty Consultation Meetings, have permitted the evolution of its architecture by the negotiation of additional collateral agreements, to further specify its application and extend the participation from other states.

But the Arctic urgencies need to be quickly resolved, whereas the conclusion of such a regional regime would require long bargaining processes before entering into force. Moreover, even if an Antarctic type- model treaty for the Arctic would provide a solid and specific legal base for dealing with environmental hazard or the solution of sovereignty controversies, the efficacy of this treaty could be undermined by an overlap with the UNCLOS or the UNFCCC arrangements.

Considering the reluctance of some relevant Arctic actors to compromise to those binding framework conventions, as stressed by the US behaviour, it remains questionable whether the US, but also Canada and the Russian Federation, would be inclined to the negotiation of an even more stringent regional treaty. This eventuality could diminish their freedom of maneuver in an age where the access to resources such as hydrocarbons and oil appears central in geostrate- gic considerations, and perceived as better attainable by the conclusion of bilateral arrangements.

Conclusions

In this context, an inclination for a soft- law approach may be helpful in addressing this uncertainties, at least where hard- law instruments cannot properly be used or seem inadequate.

The assimilation of general principles, declarations, guidelines and other non- binding tools, if properly integrated with those of hard- law, could make up for existing shortcomings, creating a multi-level but complete legal system for Arctic governance.

The peculiar nature of the North Pole, a fragile region threatened by environmental risks in which the involved actors are many and varied, as well as their interests; requires the integration of existing framework agreements with statements, guidelines and other soft law instruments whenever applicable, in order to strengthen Arctic cooperation in a globalized world.

Indeed, a soft- law based approach is already at the bases of the political body operating in the Arctic, the Arctic Council, where all Arctic and non-Arctic players have been granted with differentiated roles and rights of participation, according to their legal status and the dealt matter. This has been possi- ble thanks to an engagement inspired to a principle of cooperation, whereas this would have resulted impossible or harder by other means.

Moreover, the same practice within the Arctic Council has revealed that an integrate approach between hard and soft- law instruments, does not exclude a progress or further developments of the latter in specific regional agreements, as in the cases of the ArcticSAR and the OPPRA Agreements.

sum up, the Arctic should not be considered as a context of legal vacuum, conversely it could be described as an over regulated but fragmented system.

So far it does not require the development of additional and overlapping regulations, but a more accurate and structured integration of all declarations and principles existing at the soft- law level, serving as a laboratory for international cooperation and as an example of good governance.

In conclusion, more than considering the Antarctic Treaty as a model treaty for the Arctic region, its analysis has underlined the peculiarities and different characteristics of the North Pole, which should be governed and regulated as a unique case, beyond misleading analogies.

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  • [1] As estimated by the U.S. Geological Survey report (USGS) in 2008, the undiscoveredquantity of oil and gas in the Arctic Ocean is around 90 billion barrels of oil, 1,669 trillioncubic feet of natural gas, and 44 billion barrels of natural gas liquids. USGS. Circum-Arctic
  • [2] Resources Appeaisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle.USGS Fact Sheet 2008-3049. Denver, Colorado, 2008.
  • [3] M...Coastal States have the right to adopt and enforce non-discriminatory laws andregulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severeclimatic conditions and the presence of ice covering such areas for most of the year createobstructions or exceptional hazards to navigation, and pollution of the marine environmentcould cause major harm to or irreversible disturbance of the ecological balance. Such lawsand regulations shall have due regard to navigation and the protection and preservation ofthe marine environment based on the best available scientific evidence... UN The UnitedNations Convention on the Law of the Seaw Montego Bay (1982).
  • [4] ...In this regards, we recalll that an extensive international framework applies to theArctic Ocean as discussed between our representatives at the meeting in Oslo on 15 and 16October 2007 at the level of senior officials. Notably, the law of the sea provides for importantrights and obligations concerning the delineation of the outer limits of the continental shelf,the protection of the marine environment, including ice-covered areas, freedom of navigation,marine scientific research, and other uses of the sea. We remain committed to this legalframework and to the orderly settlement of any possible overlapping claims [4].
  • [5] "...Let the North of the globe, the Arctic, become a zone of peace. Let the North Pole bea pole of peace... [12].
  • [6] Currently there are nearly ten agreements involving all Arctic coastal states in differentcombination, but also few pending controversies: a territorial dispute on Hans Island, betweenCanada and Denmark located in the Kennedy Channel, in the Nares Strait; a maritime disputein the Beaufort Sea between Canada and the United States.
 
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