Alternatives for an arctic treaty - Evaluation and a new proposal

Review of European Community and International Environmental Law

Volumn 17, Issue 1, 2008, Pages 14-26

  Koivurova, Timo ^a  

^a UNIVERSITY OF LAPLAND   (Finland)

Author keywords

[No Author keywords available]

Indexed keywords

ANTARCTIC TREATY; ARCTIC ENVIRONMENT; ENVIRONMENTAL PROTECTION; INTERNATIONAL AGREEMENT;

EID: 42349095756     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2008.00580.x     Document Type: Article

References (78)

1. For an analysis, see D.R. Rothwell, The Polar Regions and the Development of International Law (Cambridge University Press, 1996), at 229-231.
2. The 1973 Agreement on the Conservation of Polar Bears (Oslo, 15 November 1973).
3. For a recent warning of this type, see 'Drawing Lines in Melting Ice', The Economist (18 August 2007), 47.
4. Iceland also has areas of territorial sovereignty above the Arctic Circle, as its territorial sea extends above the Circle. For an analysis of the various definitions, see T. Koivurova, Environmental Impact Assessment in the Arctic: A Study of International Legal Norms (Ashgate, 2002), at 25-28.
5. Agreement on the European Economic Area (Brussels, 17 March 1994).
6. Ibid. A special Protocol was adopted as part of the EEA Agreement to the effect that Norway may decide whether to apply the EEA Agreement to Svalbard or not (Protocol 40). Norway decided to exclude the Islands. See G. Ulfstein, The Svalbard Treaty: From Terra Nullius to Norwegian Sovereignty (Scandinavian University Press, 1995), at 299.
7. Treaty Relating to Svalbard (Paris, 9 February 1920).
8. For a good overview of the governance framework in the Arctic, see Arctic Human Development Report (Stefansson Arctic Institute, 2004), especially Chapters 5 and 6.
9. One exception is the tiny Hans Island between Greenland and Canada's Ellesmere Island, over which both Canada and Denmark assert sovereignty; thus it was left out of the maritime boundary delimitation agreement between the two countries. For an analysis, see M. Carnaghan and A. Goody, Canadian Arctic Sovereignty: Challenges to Canada's Arctic Sovereignty, c. Hans Island (Canadian Library of Parliament, Political and Social Affairs Division (PRB05-61E, 26 January 2006)), available at .
10. These are the so-called Banana Hole in the Norwegian Sea, the Barents Sea Loophole and the Bering Sea Doughnut Hole.
11. The International Seabed Authority was established by the United Nations Convention on the Law of the Sea and the Agreement relating to the Implementation of Part XI of the Convention. See United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982) (UNCLOS); and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (New York, 28 July 1994), Article 156. The deep seabed authority governs the deep seabed (the so-called 'Area' - the ocean bottom beyond the continental shelves of the coastal states) on behalf of humankind.
12. See the various submissions to the Commission on the Limits of Continental Shelf by the Russian Federation in 2001 and Norway in 2006, and reactions to these by other States, on the Commission's website at .
13. For an analysis, see T. Koivurova, Environmental Impact Assessment in the Arctic: A Study of International Legal Norms (Ashgate, 2002), 56-64. The most recent example was the conclusion of an Agreement between the Government of the Kingdom of Norway on the one hand, and the Government of the Kingdom of Denmark together with the Home Rule Government of Greenland on the other hand, concerning the delimitation of the continental shelf and the fishery zones in the area between Greenland and Svalbard (Copenhagen, 20 February 2006).
14. This argument has been made by Oran Young. See O. 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), available at .
15. For a recent analysis, see T. Koivurova and D. VanderZwaag, 'The Arctic Council at 10 Years: Retrospect and Prospects', 40:1 UBC Law Review (2007), 121, at 124-128.
16. It was re-titled the Arctic Contaminants Action Program.
17. For an analysis, see T. Koivurova and D. VanderZwaag, n. 15 above, at 128-159.
18. D. VanderZwaag, R. Huebert and S. Ferrara, 'The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters', 30:2 Denver J. Intl L. & Policy (2002), 131, at 166-171.
19. O. Schram Stokke, 'The Law of the Sea 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, 2-4 August 2006), available at .
20. H. Corell, 'Reflections on the Possibilities and Limitations of a Binding Legal Regime', 37:4 Environmental Policy and Law (2007), 321.
21. Ibid., at 324.
22. Yet, a number of countries still hold the view that they possess some sort of sovereignty in the Antarctic. See P. Vigni, 'Antarctic Maritime Claims: "Frozen Sovereignty" and the Law of the Sea', O. Elferink and D.R. Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Martinus Nijhoff, 2001). Recently, the UK Government announced plans to claim sovereignty over a large area of the seabed around a British portion Antarctica, which then provoked, for example, Chile to make a similar kind of announcement. See 'Chile Repeats Own Arctic Claim', BBC News (19 October 2007), available at .
23. 'Long-term Scientific Monitoring and Sustained Environmental Observation in Antarctica' (Resolution 3 (2007) of the XXX Antarctic Treaty Consultative Meeting in New Delhi, 11 May 2007), available at , stated: 'Long-term Scientific Monitoring and Sustained Environmental Observation in Antarctica. The Representatives... Noting that the Arctic Council Ministerial Meeting of 26 October 2005 [sic] urged all member countries of the Arctic Council to maintain and extend long-term monitoring of change in all parts of the Arctic as well as to create a coordinated Arctic observing network'. For an overview, see T. Koivurova, 'Environmental Protection in the Arctic and Antarctic: Can the Polar Regimes Learn From Each Other?', 33:2 International Journal of Legal Information (2005), 204.
24. See Salekhard Ministerial Declaration (Salekhard, 26 October 2006), at 3, available at (original emphasis).
25. The Preamble to the Antarctic Treaty recognises 'that it is in the interest of all mankind that Antarctica shall continue for ever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord'. See Antarctic Treaty (Washington, 1 December 1959), Preamble.
26. The ATS is built on the Antarctic Treaty of 1959 and the interconnected web of other treaties, of which only the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991) is directly linked to the 1959 Treaty. The other treaties are the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (Canberra, 20 May 1980) and the Convention on the Conservation of Antarctic Seals (CCAS) (London, 11 February 1972).
27. See J. Brunnée, 'Common Areas, Common Heritage, and Common Concern', in D. Bodansky, J. Brunnée and E. Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2007), 550, at 563.
28. See Antarctic Treaty, n. 25 above, Articles XIII and IX(2), which create two categories of members, those who do not conduct substantial research activity but have become parties (non-consultative parties), and those who do (consultative parties) and thus have full rights to participate in Antarctic Treaty Consultative Meetings.
29. See D.R. Rothwell, n. 1 above, at 451-452.
30. See B. Hart Dubner, 'On the Basis for the Creation of a New Method of Defining International Jurisdiction in the Arctic Ocean', 13:1 Mo. Envtl L. & Pol'y Rev. (2005), 1. The author, however, unrealistically suggests extending a 'no development' zone to the baselines of the eight surrounding countries, which assumedly means territorial sea baselines.
31. See M.A. Verhaag, 'It Is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment', 15:4 Georgetown Int'l Envtl. L. Rev. (2003), 555.
32. See D.R. Rothwell, n. 1 above, at 242-244.
33. D. Pharand, 'The Draft Arctic Treaty: An Arctic Region Council Proposal' (Canadian Arctic Resources Committee, 1991), available at .
34. See Antarctic Treaty, n. 25 above, Article III of the Arctic Regional Council proposal by Pharand stipulates "Membership" in the following terms: 'The founding Members of the Council shall be the eight States whose territory projects north of the Arctic Circle... The admitted Members may be States, Governmental and Non-Governmental Organizations, territorial and regional governments. Such States, organizations, and governments are eligible for membership if they have demonstrated a substantial interest in the work of the Council and a capacity to further its purposes. Admission shall be decided by the Assembly upon the recommendation of the Commission. Commentary: To permit participation of all those with sufficient interest, the Council is open to membership of other States (such as France, Germany, Japan, the United Kingdom), organizations of States (such as the European Community), NGOs (such as the ICC [Inuit Circumpolar Conference]) and territorial governments (such as Alaska, Yukon, N.W.T., Greenland) and regional governments (such as Chakotskiy, Nunavik and the Nordic Sami Council)'. At present, there are 45 States that are parties to the Antarctic Treaty, of which 27 are consultative parties, with the power to take part in decision-making in Antarctic Treaty Consultative Meetings (ATCMs). The non-consultative parties can participate in ATCMs but do not have the right to take part in decision-making.
35. Ibid., Article XII(2a).
36. P. Sands, Principles of International Environmental Law, 2nd edn (Cambridge University Press, 2003), at 731 (emphasis added). This can be contrasted with Gail Osherenko's and Oran Young's view, according to which 'simplistic comparisons between the Arctic and the Antarctic do more to confuse the analysis of prospects for international cooperation in the Arctic region than to shed light on this topic'. See G. Osherenko and O. Young, The Age of the Arctic (Cambridge University Press, 1989), at 244.
37. L. Nowlan, Arctic Legal Regime for Environmental Protection (IUCN Environmental Policy and Law Paper No. 44), Parts V and VI, available at .
38. A sixth annex, which had been stipulated in Article 16 of the Protocol, was adopted as Annex VI, Liability Arising From Environmental Emergencies, by the twenty-eighth ATCM in Stockholm on 14 June 2005; it is currently being ratified by the consultative parties. See Protocol on Environmental Protection to the Antarctic Treaty, no 26 above.
39. See L. Nowlan, n. 37 above, Part VI. Problems that she highlights include: (1) the time and expense of formal treaty negotiations could act as a barrier to the continuation of soft law development; (2) a formal new organization, such as a treaty secretariat, could be expensive to operate; (3) a comprehensive regime can be difficult to obtain support for, and consequently difficult to implement - the best example of this phenomenon is UNCLOS, which took 11 years from negotiation to entering into force, and is still not implemented worldwide; and (5) many international treaties are already taking the special needs of the Arctic into account, such as the Convention on Persistent Organic Pollutants (Stockholm, 22 May 2001) - pursuing Arctic-specific goals in existing global regimes may be faster, less expensive and more effective for the environment.
40. R. Rayfuse, 'Melting Moments: The Future of Polar Oceans Governance in a Warming World', 16:2 RECIEL (2007), 196.
41. This International Polar Year (IPY) will be the fourth of its kind, the most recent being organized 50 years ago (1957-1958). It is not a single year but a two-year period loosely corresponding to the two years mentioned in the name (2007-2008). The fourth IPY will start in March 2007 and end by March 2009 to allow for two summer field seasons at both poles. See generally .
42. See CCAMLR, n. 26 above.
43. See R. Rayfuse, n. 40 above, at 216.
44. For a view from a scholar who took part in the UNCLOS negotiations, see K. Hakapää, 'Vessel-Source Pollution in the UN Law of the Sea Convention: Some Assessment as of Today', Liber Amicorum Bengt Broms: Celebrating His 70th Birthday (16 October 1999) (PMS Print Oy Helsinki, 1999), 97, at 113-116.
45. UNCLOS, n. 11 above, Article 234, reads: 'Ice-covered areas. Coastal States have the right to adopt and enforce nondiscriminatory laws and regulations 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 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'. These criteria are largely overlapping, since if ice is present in an area for most of the year, the other conditions are normally also fulfilled.
46. The 1998 Iqaluit meeting of the Arctic Council gave a mandate to the PAME working group to assess current and potential shipping activities in the Arctic in light of what, if any, additional Arctic shipping measures were required. This included working on an International Code of Safety for Ships Operating in Polar Waters (Polar Code) under the auspices of the International Maritime Organization (IMO), which eventually lead the IMO to adopt these as Guidelines for Ships Operating in Arctic Ice-Covered Water (IMO MSC/Circ. 1056, MEPC/Circ. 399, 23 December 2002).
47. See D.M. Johnston, 'The Future of the Arctic Ocean: Competing Domains of International Public Policy', 17 Ocean Yearbook (2003), 596, at 600-602. For a very early proposal to this effect, see W. Lakhtine, 'Rights Over the Arctic', 24 American Journal of International Law (1930), 703-717.
48. See T. Koivurova and D. VanderZwaag, n. 15 above, at 180-183.
49. UNCLOS, n. 11 above, Article 122 reads: 'For the purposes of this Convention, "enclosed or semi-enclosed sea" means a gulf, basin or sea surrounded by two or more States and connected to another sea by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal states'. There is a wide outlet from the Arctic Ocean to the Atlantic Ocean at the Greenland Sea, and this outlet is not within the EEZs of the coastal States. For a view that the Arctic Ocean cannot be classified as a semi-enclosed sea, see E.J. Harders, 'In Quest for an Arctic Legal Regime: Marine Regionalism - A Concept of International Law Evaluated', 11:4 Marine Policy (1987), 285-298. For a recent argument, see D. Pharand, 'The Arctic Waters and the Northwest Passage: A Final Revisit', 38:1/2 Ocean Development and International Law (Jan-Jun 2007), 3-69.
50. D. Brubaker, Marine Pollution and International Law (Belhaven Press, 1993), 294-432.
51. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (New York, 4 August 1995).
52. R. Hansson, 'Climate Change, Energy and Governance in the Arctic', PowerPoint presentation at a seminar organised by the Arctic Parliamentarians in Oslo (28 November 2005) (on file with the author). See also S. Smith, 'Editorial', 1 WWF Arctic Bulletin (2004), 3, available at .
53. See WWF, 'New Rule Needed for the Arctic' (17 August 2007), available at .
54. For example, the Arctic Council Rules of Procedure were adopted by the first ministerial conference of the Arctic Council in Iqaluit in 1998. See Arctic Council Rules of Procedure as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting (Iqaluit, 18 September 1998), available at . The Rules of Procedure of the Arctic Council organize the work of the Council in a detailed and systematic manner, a state of affairs that was lacking in AEPS cooperation. The Rules cover topics such as how to convene different types of meetings under the Council; the launching process for programmes and projects; and the function of subordinate bodies.
55. The 10 key findings of the ACIA Overview Report are as follows: (i) the Arctic climate is now warming rapidly and much larger changes are projected; (ii) Arctic warming and its consequences have worldwide implications; (iii) Arctic vegetation zones are very likely to shift, causing wide-ranging impacts; (iv) the diversity, ranges and distribution of animal species will change; (v) many coastal communities and facilities face increasing exposure to storms; (vi) reduced sea ice is very likely to increase marine transport and access to resources; (vii) thawing ground will disrupt transportation, buildings and other infrastructure; (viii) indigenous communities are facing major economic and cultural impacts; (ix) elevated ultraviolet radiation levels will affect people, plants and animals; and (x) multiple influences will interact to cause increased impacts to people and ecosystems. See Impacts of a Warming Arctic: ACIA Overview Report (Cambridge University Press, 2004), at 10-11.
56. The author realised this idea during discussions with Professor Nigel Bankes from the University of Calgary.
57. A. Diduck et al., 'Unpacking Social Learning in Social-Ecological Systems: Case Studies of Polar Bear and Narwhal Management in Northern Canada', in F. Berkes et al. (eds), Breaking Ice: Renewable Resource and Ocean Management in the Canadian North (University of Calgary Press, 2005), 269, at 271-272. Social learning is 'learning taking place at collective levels'.
58. Reykjavik Declaration (Reykjavik, 24 November 2004), available at , particularly the section entitled 'Climate Change in the Arctic'.
59. The programme for the Norwegian 2006-2008 chairmanship can be downloaded at .
60. For an analysis, see T. Koivurova and D. VanderZwaag, n. 15 above, at 162-173.
61. Another development that manifests the 'resilience gap' in the Arctic Council and induces us to think about the future status of the Council is the human rights petition whereby the Inuit of the US and Canada have asked the Inter-American Commission on Human Rights to declare that the US has breached many of its human rights through its irresponsible climate policy. The petition can be downloaded from the Earth Justice website at .
62. Compare this with, e.g., H. Corell, 'Reflections on the Possibilities and Limitations of a Binding Legal Regime', 37:4 Environmental Policy and Law (2007), 321, at 322-323.
63. The only exception is the Nordic Council, which went further and adopted the following recommendation directed at the Nordic Council of Ministers: 'The Nordic Council recommends to the Nordic Council of Ministers that in cooperation with the Arctic Council the aim is to create a legal system pertaining to the Arctic'. See Pohjoiset merialueet käsittävästä oikeustieteellisestä tutkimuksesta ja Arktista koskevasta oikeusjärjestelmästä [Legal Research Pertaining to the Northern Marine Regions and Arctic Legal Regime] (26 April 2006).
64. See the report of the Seventh Conference of the Parliamentarians of the Arctic Region, Kirkuna, Sweden, 2-4 August 2006 (Recommendation No. 28, 4 August 2006), at 23, available at .
65. See Report on Recommendations from the Adrenal Seminar on Multilateral Environmental Agreements and their Relevance to the Arctic, Adrenal, Norway, 21-22 September 2006 (Adrenal, 22 September 2006), at 2, available at .
66. See W.E. Burhenne, 'The Arctic: Towards a New Environmental Regime?', 37:2/3 Environmental Policy and Law (2007), 249-256, at 255.
67. The possible benefits of establishing a treaty include encouraging greater political and bureaucratic commitments; establishing firmer institutional and financial foundations; transcending the vagaries of changing governmental viewpoints and shifting personnel; giving 'legal teeth' to environmental principles and standards; and raising the public profile of regional challenges and cooperation needs. For an overview of the pros and cons of the treaty approach, see T. Koivurova and D. VanderZwaag, n. 15 above, at 178-180.
68. See L. Nowlan, n. 37 above.
69. See R. Rayfuse, n. 40 above.
70. See R. Hansson, n. 52 above.
71. Summarized in Arctic Athabascan Council, 'Improving the Efficiency and Effectiveness of the Arctic Council: A Discussion Paper' (presented at the SAO meeting in Tromsø, Norway, 12-13 April 2007), available at .
72. 'Paper prepared by Norway on the topic of revising the Arctic Council Focal Point, Draft Text for a discussion paper on the future of the Focal Point for ACIA follow-up at the upcoming Focal Point meeting', in Report to SAOs from Focal Point for ACIA Follow-up Activities (Arctic Council, 2006), Annex 8.
73. See generally, the Arctic Climate Impact Assessment Final Scientific Report (Cambridge University Press, 2005).
74. See Arctic Human Development Report, n. 8 above.
75. See 'Common objectives and priorities for the Norwegian, Danish and Swedish chairmanships of the Arctic Council (2006-2012)' (Arctic Council, 2006), available at .
76. These organisations are: The Arctic Athabascan Council, the Gwich'in Council International, the Aleut International Association, the Inuit Circumpolar Council, the Saami Council and the Russian Association of Indigenous Peoples of the North.
77. See generally, T. Koivurova and L. Heinämäki, 'The participation of indigenous peoples in international norm-making in the Arctic', 42:221 Polar Record (2006), 101.
78. For an analysis see, e.g., L-O. Reiersen, S. Wilson and V. Kimstack, 'Circumpolar Perspectives on Persistent Organic Pollutants: The Arctic Monitoring and Assessment Programme', in D.L. Downie and T. Fenge (eds), Northern Lights Against POPs: Combating Toxic Threats in the Arctic (McGill-Queen's University Press, 2003).