The arctic: Towards a new environmental regime?

Environmental Policy and Law

Volumn 37, Issue 2-3, 2007, Pages 249-258

  Burhenne, Wolfgang E ^a  

^a International Council of Environmental Law

Author keywords

[No Author keywords available]

Indexed keywords

ARCTIC ENVIRONMENT; ENVIRONMENTAL PLANNING;

EID: 34247573538     PISSN: 0378777X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (133)

1. L. NOWLAN, Arctic Legal Regime for Environmental Protection, IUCN Environmental Policy and Law Paper No. 44, 2001, p. 2.
2. The Arctic is also known as the Land of the Midnight Sun as a result of the sun's visibility for 24 hours: See http://collections.ic.gc.ca/ arctic/inuit/people.htm.
3. L. NOWLAN, supra note 1, p. 3.
4. J. CRUMP, "Why the Arctic matters", The Environment Times, 3 September 2004 (text available online at: http://www.environmenttimes.net/article.cfm?pageID=l1).
5. WWF International Arctic Programme, "The tip of the iceberg: Chemical contamination in the Arctic", February 2005, p. 5 (text available online at http://www.wwf.ca/AboutWWF/WhatWeDo/ConservationPrograms/RESOURCES/ PDF/ChemicalContaminationintheAreticFeb4.pdf).
6. The CAFF Working Group of the Arctic Council: http://www.caff.is/sidur/ sidur.asp?id=7.
7. http://www.arctic-council.org/en/main/infopage/1/ (last viewed 29/06/ 06). Note other differences with the Antarctic: Antarctica is an uninhabited continent, is non-militarised, and has no commercial or industrial activities.
8. L. NOWLAN, supra note 1, p. 2.
9. The ACIA highlights how immigration in the twentieth century has resulted in the outnumbering of indigenous peoples by non-indigenous peoples; Impacts of a Warming Arctic: Arctic Climate Impact Assessment. ACIA Overview report (part C), p. 6; text of overview report available on line at: http://amap.no/workdocs/ index.cfm?dirsub=%2FACIA%2Foverview.
10. Note the foreseeable extinction of polar bears by the end of the twenty-first century if almost all the sea ice cover is lost. http://www.panda.org/about_wwf/where_we_work/arctic/Problems/index.cfm.
11. See State of the Arctic Environment Report (SOAER) 1997 or AMAP Report on Issues of Concern: Updated Information on Human Health, Persistent Organic Pollutants, Radioactivity and Mercury in the Arctic, September 2000 (text available online at: http://www.amap.no).
12. Note for example Russia's law allowing for the import of spent nuclear waste for storage and disposal (Cited in L. NOWLAN, supra note 1, p. 4).
13. See ACIA Overview Report, supra note 9, p. 8. Such facts increasingly overshadow scientific debates as to whether the cause of recent thawing is natural or human-induced, permanent or temporary, which often engender regression rather than progressive responses.
14. With the assistance of satellite imagery technology, NASA has discovered that the extent of Arctic Summer sea ice reached its lowest level in 2002; http://www.nasa.gov/centers/goddard/news/topstory/2003/ 1023esuice.html.
15. P. BETHGE, "Climate Change Sparks Scrap for Arctic Resources", Spiegel Online, 31 March 2006, http://service.spiegel.de/cache/ international/spiegel/0,1518,druck-409001,00.html (last viewed 12/09/ 06).
16. The ACIA (Arctic Climate Impact Assessment) report highlights the cyclic ramifications of the melting of ice on the climate, as the Arctic's ability to reflect heat back to space is reduced, which in turn accelerates the overall rate of global warming. It further notes how the co-existence of an environmental threat such as climate change may intensify the impacts of another threat such as ozone depletion; see ACIA Overview Report, supra note 9, p. 8. The ACIA is an Arctic Council initiative implemented by the Arctic Monitoring and Assessment Programme (AMAP); Arctic Flora and Fauna (CAFF); and the International Arctic Science Committee (IASC).
17. Speech by Diana Wallis, Member of the European Parliament, Seventh Conference of Parliamentarians of the Arctic Region, Kiruna, Sweden, August 2006.
18. Despite the pursuance of mechanisms such as land claims agreements and establishment of self-governed territories, conflicts remain unresolved, particularly concerning the right to use living and mineral resources; see ACIA Overview Report, supra note 9, p. 6.
19. Renowed organisations representing the interests of indigenous peoples include the Inuit Circumpolar Conference, Saami Council and Russian Association of Indigenous Peoples of the North which are also recognised as Permanent Participants of the Arctic Council (see below for more information).
20. There have been several forced inspections by Norway of Russian trawlers in October 2005; N. GREEN, "Growing International Tension over the Arctic", World Socialist Web Site, 23 November 2005, available at: http://www.wsws.org/articles/2005/nov2005/arct-23n.shtml (last viewed 12/09/06).
21. Sixth Conference of Parliamentarians of the Arctic Region Conference Statement, 5 September 2004. Text available online at: http://www.arcticparl.org/resource/images/ 6th-con_conference_statement.pdf.
22. One of the explanations offered by Young is the "externally-generated and romanticised vision of the Arctic world!"; O.R. YOUNG, The Structure of Arctic Cooperation: Solving Problems/Seizing Opportunities, paper prepared at the request of Finland in preparation for the fourth conference of Parliamentarians of the Arctic Region, Rovaniemi, 27-29 August 2000, p. 3, available at: http://www.arcticparl.org/resource/images/conf4_sac.pdf (last viewed 12/09/06).
23. Ibid. Young highlights how the Arctic served as an 'arena of theatre for the operation of strategic weapons systems' between Russia on one side and the NATO alliance (including the US, Canada, Denmark/ Greenland, Iceland and Norway) on the other (with Finland and Sweden remaining more or less neutral).
24. Ibid.
25. Ibid.
26. Note another proponent of this view: L. NOWLAN, supra note 1.
27. Note for example Canada's laws and policy instruments relating to the Arctic, e.g., the Northern Dimension of Canada's Foreign Policy, http://www.dfaitmaeci.ge.ca/circumpolaire/sec06_ndfp_rpt-en.asp
28. the Northwest Territories Biodiversity Action Plan, Report Two: Gap and Overlap Analysis and Recommendations for Future Actions; text available online at: http://wildlife.enr.gov.nt.ca/pdf/ Biodiversity%20Action%20Plan-FINAL.pdf, or the Arctic Marine Conservation Strategy.
29. For general conservation-related legislation see http://www.cwsscf.ec.ge.ca/theme.cfm?lang=e&category=9. Norway has a new Act providing environmental protection specifically for Svalbard in the Barents Sea which endorses the precautionary and polluter-pays principles and an integrated management plan for the Barents
30. Professor Olav Orheim, Director, Norwegian Polar Institute, Tromsø, Norway, Protecting the environment of the Arctic ecosystem, United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea. Fourth meeting, 2-6 June 2003. See http://www.un.org/Depts/los/consultative_process/documents/no3_npi2.pdf).
31. L. NOWLAN, supra note 1, p. 5.
32. O.R. YOUNG, supra note 22, p. 3. For example, North Slope Borough in Alaska and more recently the Nunavut in the Canadian Arctic.
33. Report on Progress by Sami Parliamentary Council to the Seventh Conference of Parliamentarians of the Arctic Region, Kiruna, Sweden, August 2006: "The Finmark Act entered into force on July 1st 2006. Previously, the state claimed ownership to 96 per cent of the land in Finmark. On the basis of the rights of the Sami people, 45,000 square kilometres of land have been transferred to the people of Finmark. The people of Finmark will own the land jointly through the so-called 'Finmark Estate'. The objective of the Act is to ensure that the land and natural resources in Finmark are managed in the best interests of the inhabitants of the county and as the basis for the Sami culture and the Sami economy. The Act states that over time groups of inhabitants may have acquired a special right to use or to own a particular area. By 1 January 2007, a special commission shall be appointed to look into such rights, and if there is disagreement, the matter will be referred to the Uncultivated Land Tribunal."
34. L. NOWLAN, supra note 1, p. 33.
35. Ibid.
36. Note also the increasing sensitivity of the Arctic States, particularly Canada, to the environmental repercussions on society upon discovery of high-level contaminants in traditional foods of indigenous peoples; L. NOWLAN, supra note 1, p. 7. Note also the discovery of high-level contaminants in traditional foods of indigenous peoples.
37. Both texts were adopted at Rovaniemi, Finland, on 14 June 1991, during the First Ministerial Conference on the Protection of the Arctic Environment.
38. D. VANDERZWAAG, R. HUEBERT, S. FERRARA, "The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Initiatives: Tinkering while the Arctic Marine Environment Totters", Denver Journal of International Law and Policy, Vol. 30(2), 2002, p. 144.
39. AEPS, paragraph 2.1, p. 9.
40. AEPS, paragraph 3, p. 12. Note that other environmental problems including the depletion of the ozone layer and global warming were not addressed because they were already being considered in other fora.
41. AEPS, paragraph 10, p. 42.
42. Ibid.
43. Website of the Indigenous Peoples' Secretariat: www.arcticpeoples.org.
44. L. NOWLAN, supra note 1, p. 8.
45. D. VANDERZWAAG, "International Law and Arctic Marine Conservation - A Slushy, Shifting Seascape", Georgetown International Environmental Law Review, Vol. 9(2), 1997;
46. D. ROTHWELL, The Polar Regions and the Development of International Law, Cambridge Studies in International and Comparative Law, 1996.
47. Both cited in L. NOWLAN, supra note 1, p. 9.
48. L. NOWLAN, supra note 1, p. 15.
49. According to the Arctic Council, "[c]ooperation within the Arctic Council establishes a common knowledge base, spreads information on best practices and lessons learned and has an important role in the development of policy recommendations for national, regional and local leaders"; http://www.arctic-council.org/en/main/infopage/1/ (last viewed 12/09/06).
50. The lack of legal personality served as a compromise for the US which had reservations about the creation of an international organisation. An international forum has also served as a popular institutional model: note for example such status of the Organisation for Security and Cooperation in Europe (OSCE), which, despite its high profile, very significant responsibilities and title, is not an international organisation; E. BLOOM, Office of the Legal Adviser Attorney/Adviser to the Bureau of Oceans and International Environmental and Scientific Affairs, US Department of State, "Arctic Council", text available online at: http://www.state.gov/g/oes/ocns/arc/ac/ (last viewed 12/09/06).
51. Young, agreeing that the Arctic Council is not an international organisation, prefers to treat it as a "proto-regime": O.R. YOUNG, supra note 22, p. 6.
52. Declaration on the Establishment of the Arctic Council, para. 4 (Signed by the representatives of the Arctic States in Ottawa on 19 September, 1996); text available at http://www.arctic-council.org/en/main/infopage/ 73/.
53. Article 2 of the Declaration on the Establishment of the Arctic Council foresees the recognition of "other Arctic organisations of indigenous peoples with majority constituency, representing (a) a single people resident in more than one Arctic state; or (b) more than one Arctic indigenous people resident in a single Arctic state."
54. As listed on the home page of the Arctic Council at http://www.arctic-council.org/en/main/infopage/1/ (last viewed 12/09/06).
55. Rules of Procedure, Rule 26.
56. http://www.arctic-council.org/en/main/infopage/1/ (last viewed 12/09/06).
57. For a full list of Observers see the Arctic Council website at: http://www.arctic council.org/en/main/infopage/9/.
58. Rules of Procedure (18 Sept. 1998), Rule 37. Note that the status of Observer was subject to debate between Arctic States concerned by the potentially conflicting political ideals of certain organisations which should warrant their exclusion from participation at any time, versus a more nuanced approach for the retention of Observer status unless suspended by consensus. E. BLOOM, supra note 44.
59. According to Canada's Northern Dimension of Canada's Foreign Policy (NDFP), the Arctic Council gives political impetus and strategic direction to the circumpolar community; http://www.dfait-maeci.gc.ca/ circumpolar/sec06_ndfp_rpt-en.asp#17 (last viewed 29/06/06).
60. http://www.arctic-council.org (last viewed 28/06/06).
61. http://www.arctic-council.org/en/main/infopage/1/ (last viewed 12/09/ 06). According to the Russian Chair of the Arctic Council, the Council acts as the main mechanism for implementing the principle of sustainable development;
62. Programme of the Russian Federation Chairmanship of the Arctic Council in 2004-2006; text available online at: http://www.arctic-council.org/ files/mainpage/1/Program.doc (last viewed 28/06/06).
63. L. NOWLAN, supra note 1, p. 62.
64. "The Arctic Council should not deal with matters related to military security", as provided in the Ottawa Declaration.
65. http://www.mms.gov/sd/sdworkinggroup.htm.
66. The Terms of Reference were adopted at the 2000 meeting in Barrow, Alaska; text available at: http://www.arctic-council.org/en/main/ infopage/193/.
67. Operating Guidelines for the Sustainable Development Working Group; text available at: http://www.arctic-council.org/en/main/infopage/56/. Note any proposals made pursuant to the Programme must incorporate the procedural requirements as enunciated in the Terms. These terms were developed in acknowledgement of the contested definition of sustainable development, particularly in respect of its relationship with environmental protection. Nowlan highlights the concerns of some NGOs that a focus on the concept of sustainable development would lessen the emphasis on environmental protection, and the notes the counter-arguments that sustainable development would be beneficial for the integration of environmental, social and economic concerns; L. NOWLAN, supra note 1, p. 12.
68. As pointed out by the Swedish State Secretary for Foreign Affairs, Hans Dahlgren, at the Seventh Conference of Parliamentarians of the Arctic Region, Kiruna, Sweden, August 2006: "Conflicting interests in the Arctic can only be reconciled if the Governments of the Arctic states work together and pursue policies for economic and social development throughout the circumpolar Arctic. The sensitivity of Arctic ecosystems, established indigenous rights and local cultures must be fully taken into account and respected. This should be the focus of the discussion on 'Arctic Governance'".
69. In particular the use of the national Russian transport waterway - the Northern Sea Route - as a Euro-Asian sea transport corridor integrated into the world transport system and also the potential development of air transport in the Arctic; Programme of the Russian Federation Chairmanship of the Arctic Council in 2004-2006; text available online at: http://www.arctic-council.org/files/mainpage/1/Program.doc (last viewed 12/09/06).
70. Ibid.
71. Ibid.
72. The Arctic Monitoring and Assessment Task Force was created to assist the Programme in realising its objectives; Declaration on the Protection of the Arctic Environment (Rovaniemi Declaration) 1991 (text available at: http://www.arctic-council.org/en/main/infopage/195/ (last viewed 05/ 06/06).
73. For more information on the AMAP see: http://www.amap.no/.
74. One of two major assessments of the state of pollution is Arctic Pollution 2002. Priority projects include cleaner production and control of PCBs and reduction of new contaminants such as brominated flame retardants. A list of and further details on ACAP projects is available online at: http://acap.arctic-council.org/projects.cfm (last viewed 29/ 06/06).
75. L. NOWLAN, supra note 1, p. 13.
76. More information can be viewed online at: http://acap.arctic-council.org/ index.cfm (last viewed 29//06/06).
77. For an update on the Plan see: http://www.arctic-council.org/en/main/ infopage/126/.
78. The website for this Working Group is http://eppr.arctic-council.org/.
79. http://eppr.arctic-council.org/.
80. However, the EPPR is not a response agency; http://eppr.arctic-council.org/.
81. More information on completed and current projects can be found at http://eppr.arctic-council.org/program.html.
82. Further information about this Group is available at: http://www.pame.is/.
83. http://www.pame.is/.
84. CAFF's home page is: http://www.caff.is/sidur/sidur.asp?id=7.
85. http://www.caff.is/sidur/sidur.asp?id=6&menu=program.
86. The full range of CAFF documents is available on its website.
87. Declaration on the Establishment of the Arctic Council, para. 7, 35 ILM at 1389 (1996). See also Rules of Procedure, Rule 7.
88. Arctic Council Rules of Procedure Rule 26 (18 Sept. 1998). Alternatively, in the absence of a mandate, a new proposal can be worked on by SAOs ultimately for submission to the Ministers, but the SAOs cannot implement a plan on their own; E. BLOOM, supra note 44. Note how the US supported this approach to reiterate that the Council is a forum for exchanging views and not a responsive operational body. In their view, there was nothing to restrict States' competence to act individually or collectively in response, for example, to emergencies.
89. E. BLOOM, supra note 44.
90. http://www.arctic-council.org/en/main/infopage/1/ (last viewed 29/06/06).
91. Arctic Council Rules of Procedure Rule 28 (18 Sept. 1998).
92. [Revised 9-98]; http://www.arctic-council.org/en/main/infopage/192/.
93. Sixth Conference of Parliamentarians of the Arctic Region Conference Statement, 5 September 2004, Part C, section 30; text available online at: http://www.arcticparl.org/resource/images/ 6th-con_conference_statement.pdf.
94. For an consolidated overview of the regional regimes see O.R. YOUNG, supra note 21, pp. 5 7;
95. or L. NOWLAN, supra note 1, pp. 6-7.
96. Signed by Great Britain, on behalf of Canada, Japan, Russia and the US.
97. ignatories include: Sweden, the US, Denmark, Great Britain and Ireland, Norway, Netherlands, France, Italy, India and Japan.
98. An agreement between five states including the Soviet Union and the US. Text available at: http://www.ecolex.org/en/treaties/ treaties_fulltext.php?docnr=1803&language=en.
99. O.R. YOUNG, supra note 22, p. 5.
100. Ibid. p. 6.
101. Northern Forum, Conference of the Parliamentarians of the Arctic Region and its Standing Committee.
102. Barent Euro-Arctic Region, Nordic Council, Svalbard Regime, Barenst Sea Fisheries Regime, JanMayen/Iceland Joint Development Zone, Canada/US Arctic Cooperation Agreement.
103. Aleut International Association, Inuit Circumpolar Conference, Russian Association of Indigenous Peoples of the North, Saami Council.
104. International Arctic Science Committee, International Union for Circumpolar health, Circumpolar Universities Association.
105. http://www.arcticparl.org/.
106. Inter alia, UNEP/GRID Arendal, Multilateral Agreements and their relevance to the Arctic, 2005/2006.
107. D.R. ROTHWELL, "The Arctic Environmental Protection Strategy and International Environmental Cooperation in the Far North", Yearbook of International Environmental Law, Vol. 6, 1995, p. 73.
108. L. NOWLAN, supra note 1, pp. 16-40.
109. 1994 Oslo Protocol on Further Reduction of Sulphur Emission, 1998 Aarhus Protocol on Heavy Metals, 1998 Aarhus Protocol on Persistent Organic Pollutants. In the preambles, the parties to the three instruments recognise that measures to control emissions of sulphur and other air pollutants/heavy metals/persistent organic pollutants would also contribute to the protection of the Arctic environment.
110. As noted on the Council's website, "[c]ooperation within the Arctic Council establishes a common knowledge base, spreads information on best practices and lessons learned and has an important role in the development of policy recommendations for national, regional and local leaders" (http://www.arctic-council.org/en/main/infopage/1/, last viewed 29/06/06).
111. Particularly noticeable is its contribution to research and good management practices via the work of its specialised Working Groups (e.g., the Framework Document for the Sustainable Development Programme (more information may be found online at http://www.arctic-council.org/barrow/chapeau.pdf); or the development of an Arctic Climate Impact Assessment (ACIA) by the IASC, CAFF with the AMAP. Other policy guidance work includes: Arctic EIA Guidelines; Arctic Guide for Emergency Prevention, Preparedness and Response; Arctic Offshore Oil and Gas Guidelines; Arctic Marine Strategic Plan (AMSP); Arctic Council Action Plan to Eliminate Pollution of the Arctic (ACAP).
112. O.R. YOUNG, supra note 22, p. 14.
113. E. BLOOM, supra note 44.
114. http://www.arctic-council.org/en/main/infopage/1/ (last viewed 12/09/06).
115. E. BLOOM, supra note 44.
116. O.R. YOUNG, "Arctic Governance: Bringing the High Latitudes in from the Cold", International Environmental Affairs, Vol. 9(1), 1997, p. 62.
117. The original proposal was to establish the Council by treaty.
118. E. BLOOM, supra note 44.
119. O.R. YOUNG, supra note 22, p. 14.
120. Some authors are of the view that the concrete protection of the Arctic environment can only be achieved through regional solutions; D.R. ROTHWELL, "The Arctic Environmental Protection Strategy and International Environmental Cooperation in the Far North", Yearbook of International Environmental Law, Vol. 6, 1995, p. 105;
121. S.R. HAMILTON, "Toxic Contamination of the Arctic: Thinking Globally and Acting Locally to Protect Arctic Ecosystems and Peoples", Colorado Journal of International Environmental Law and Policy, Vol. 15(1), 2004, p. 113.
122. Alan Boyle has the same position for the protection of marine environment in general: A. BOYLE, "Globalism and Regionalism in the Protection of the Marine Environment", in D. VIDAS (ed.), Protecting the Polar Marine Environment - Law and Policy for Pollution Prevention, Cambridge University Press, 2000, p. 31.
123. See also the contribution of the WWF in this regard, through its analysis and advocacy work of its International Arctic Programme (WWF website at: Www.panda.org).
124. The potential benefits of a regional treaty have been considered by a number of authors and organisations, in particular WWF, through its International Arctic Programme.
125. Inter alia D.R. ROTHWELL, "International Law and the Protection of the Arctic Environment", International and Comparative Law Quarterly, Vol. 44, 1995, p. 307.
126. Inter alia M.A. VERHAAG, "It is not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment", Georgetown International Environmental Law Review, Vol. 15(3), 2003, p. 575.
127. See, for instance, the discussion which led to the revision of the African Convention on the Conservation of Nature and Natural Resources in 2003; IUCN, An Introduction to the African Convention on the Conservation of Nature and Natural Resources, Environmental Law and Policy Paper No. 56, 2004.
128. Olav Schram Stokke, The Law of the Convention and the idea of a Binding Regime for the Arctic Marine Environment, paper prepared for the Seventh Conference of Parliamentarians of the Arctic Region, Kiruna, Sweden, August 2006: "Indeed, given the political impediments to reaching circumpolar agreement on a single comprehensive legal regime for the Arctic - notably the differing interests on the Arctic States on such key issues as shipping and oil and gas activities, and the fact that many of the issues of concern are already regulated in global or regional treaties - the best answer would seem to be a flexible approach to norm-building that seeks productive interplay with existing institutions."
129. Address by Ambassador Hans Corell, former Under-Secretary-General for Legal Affairs of the United Nations, to the Seventh Conference of Parliamentarians of the Arctic Region: "Reflections on the Possibilities and Limitations of a Binding Legal Regime for the Arctic", Kiruna, Sweden, August 2006.
130. See in particular: Olav Schram Stokke, supra note 114.
131. IUCN-CEL Meeting of Experts on Arctic Issues, Ottawa, March 2004.
132. Conference Statement, Seventh Conference of Parliamentarians of the Arctic Region, Kiruna, Sweden, August 2006.
133. A seminar on MEAs and their relevance to the Arctic, convened by UNEP/ GRID Arendal and the Standing Committee for Parliamentarians of the Arctic Region in September 2006 followed up on this recommendation and considered what needs to be done to improve the effectiveness of the MEAs for the Arctic; Arendal Seminar on multilateral environmental agreements and their relevance to the Arctic; Arendal, Norway, 21-22 September 2006.