Oil and gas development in the Arctic: Softening of ice demands hardening of international law

Natural Resources Journal

Volumn 49, Issue 3-4, 2010, Pages 825-881

  Casper, Kristin Noelle ^a  

^a UNIVERSITY OF NEW MEXICO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CLIMATE CHANGE; CONTINENTAL SHELF; ENVIRONMENTAL RISK; GAS PRODUCTION; HYDROCARBON EXPLORATION; INTERNATIONAL AGREEMENT; INTERNATIONAL LAW; MARINE POLICY; MARINE RESOURCE; MELTING; OIL PRODUCTION; SEA ICE;

ARCTIC OCEAN;

EID: 77955318360     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (372)

1. ARCTIC COUNCIL, THE ILUUSSAT DECLARATION 2 (Ilulissat, Greenland, May 28, 2008), available at http://arctic-council.org/filearchive/Ilulissat- declaration.pdf [hereinafter THE ILUUSSAT DECLARATION].
2. The Arctic is defined in many ways. In general, most definitions of the Arctic cover at least part of the sovereign land or marine territory of the eight Arctic states. PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 534 (Cambridge University Press 2003) (1995). Rosemary Rayfuse explains that the definition of the Arctic depends on perspective, i.e., ecological, political, etc.: The Arctic is usually referred to as comprising all areas lying north of the Arctic Circle, or 66°33' north latitude. Ecologically speaking, a more accurate defining criterion for the Arctic region may be the northern limit of the tree line, the existence of which is based on temperature. Alternately, the Arctic is also sometimes defined as a northern region where the average July temperature is under 10°C. Both of these ecological descriptions encompass an area considerably larger than that enveloped by the Arctic Circle. For political purposes, too, the definition of the Arctic varies depending on the subject matter under discussion and on the interests of the discussants. Definitions include all areas north of 60° north, or all areas north of the Arctic Circle but with an exception to include all of Iceland, or simply all areas north of the Arctic Circle.
3. Rosemary Rayfuse, Melting Moments: The Future of Polar Oceans Governance in a Warming World, 16 REV. OF EUR. COMMUNITY & ENVTL. INT'L L. 196, 197 (2007).
4. Travis Potts, An Arctic Scramble? Opportunities and Threats in the (Formerly) Frozen North, 23 INT'L. J. MARINME & COASTAL L. 151, 151-52 (2008).
5. See Kate Galbraith, A New Blog on Energy and the Environment, N.Y. TIMES, Sept. 23, 2008, http://www.nytimes.com/2008/09/24/business/businessspecia12/ 24blog.html7-r= 1&scp=2&sq=kate-galbraith%2C= =September=24%2c= 2008&st-nyt ("The opening of the Arctic is a 'perverse situation,' according to Steven Signer, the head of the European climate and energy policy unit for the environmental group WWF, formerly the World Wildlife Fund. 'The same resources which are burned-oil, gas and we should mention coal, as well' are 'the cause of the Arctic to be drillable and despoiled for oil and gas.'").
6. Colin Woodard, Who Resolves Arctic Oil Disputes?, CHRISTIAN SCI. MONITOR, Aug. 20, 2007, http://www.csmonitor.com/2007/0820/p01s02-woeu.html. However, the accuracy of this statistic is not clear.
7. See Potts, supra note 3, at 154 n.17 ("The statistical authority often cited to support this view is the United States Geological Survey's (USGS) 2000 estimate that the Arctic may hold as much as 25% of the world's undiscovered resources." Yet, "[i]t is notable that the USGS findings . . . does [sic] not, in fact, even make mention of the Arctic specifically."
8. (citing http://pubs.usgs.gov/fs/fs-062-03/FS-062-03.pdf)).
9. United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107 [hereinafter UNFCCC], available at http://unfccc.int/essential- background/ convention/items/2627.php.
10. All of the Arctic states are a party to this Convention, which is aimed at the "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system." Id. art. 2.
11. For an explanation of what is meant by exploration and exploitation, see section II(B).
12. This article does not provide in-depth background on the Arctic environment, marine biodiversity, and the impacts of climate change on Arctic communities and peoples, but instead focuses on the existing and future legal framework for the Arctic. Paul Arthur Berkman and Oran R. Young recently wrote that the developments in the Arctic (i.e., the melting sea ice, whch has and will expand access to new shipping routes, fisheries, and oil and gas reserves) "present the international community with a historic opportunity to integrate science and diplomacy." Paul Arthur Berkman & Oran R. Young, Governance and Environmental Change in the Arctic, 324 SCI. 339, 339 (2009).
13. There are many scientific research endeavors regarding the Arctic environment and the impacts of climate change that are currently underway. See, e.g., Scott Polar Research Institute, http://www.spri.cam.ac.uk/;
14. International Arctic Research Center, http://www.iarc.uaf.edu/;
15. and Arctic Research Consortium of the U.S., http://www.arcus.org/
16. (which also contains an extensive list of links to Arctic resources at http://www.arcus.org/arcus/links/index.html).
17. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, 37 I.L.M. 22 (2005) [hereinafter Kyoto Protocol], available at http://unfccc. int?Kyoto-protocol/items/2830.php.
18. To date, 189 Parties of the Convention have ratified this Protocol, and of the Arctic coastal states, the United States is the only non-party. According to the UNFCCC, "[t]he Kyoto Protocol is generally seen as an important first step towards a truly global emission reduction regime that will stabilize [greenhouse gas] emissions, and provides the essential architecture for any future international agreement on climate change." The first commitment period of greenhouse gas (GHG) reductions comes to an end in 2012, and a new international framework must be negotiated and ratified to continue reducing global emissions. Id.
19. The IPCC is a scientific body established by the World Meteorological Organization and the United Nations Environment Programme to authoritatively assess the latest scientific, technical, and socio-economic literature. See IPCC, Intergovernmental Panel on Climate Change, Organization, http://www.ipcc.ch/organization/organization.htm (last visited Mar. 12, 2010).
20. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS REPORT (Cambridge University Press 2008), available at http://www.ipcc.ch/pdf/ assessment-report/ar4/syr/ar4-syr-spm.pdf. The full report consists of the publications of the three Working Groups of the IPCC, together with a Synthesis Report.
21. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE WORKING GROUP I, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS-SUMMARY FOR POLICYMAKERS 7 (Cambridge University Press 2008), available at http://www.ipcc.ch/pdf/assessment-report/ ar4/wgl/ ar4-wg1-spm.pdf (defining "likelihood" page 3, note 6).
22. Press Release, National Snow and Ice Data Center, Arctic Sea Ice Down to SecondLowest Extent; Likely Record-Low Volume (Oct. 2, 2008), available at http://nsidc.org/ news/press/20081002-seaice-pressrelease.html.
23. Australian Broad. Corp. News, Scientist Warns of Ice-Free Arctic this Generation, Sept. 17, 2008, http://www.abc.net.au/news/stories/2008/09/17/ 2367161.htm.
24. See WWF INTERNATIONAL ARCTIC PROGRAMME, ARCTIC CLIMATE IMPACT SCIENCE: AN UPDATE SINCE ACIA (Martin Sommerkorn & Neil Hamilton eds., 2008), available at http://assets.panda.org/dowWoads/final-climateimpact-22apr08.pdf.
25. The author would like to recognize WWF's extensive and valuable research and work on Arctic issues. In 1992, this NGO started its International Arctic Programme, which seeks to combat threats to the Arctic and preserve the Arctic's rich biodiversity in a sustainable way. Over the past 16 years, WWF has developed and produced many credible reports. This article references several WWF reports. Unfortunately, there are not many other NGOs working specifically on Arctic issues. See generally WWF, The Arctic, http://www.panda.org/arctic (last visited Mar. 12, 2010).
26. See ACIA, EXECUTIVE SUMMARY, IMPACTS OF A WARMING ARCTIC: ARCTIC CLIMATE IMPACT ASSESSMENT (Cambridge University Press 2004) [hereinafter ACIA, EXECUTTVE SUMMARY], available at http://www.amap.no/acia.
27. See ACIA, Arctic Climate Impact Assessment, http://www.acia.uaf.edu (last visited Mar. 12, 2010).
28. The report, implemented by two Arctic Council working groups-Arctic Monitoring and Assessment Programme (AMAP) and Carbon Finance and Funds (CFF)-along with an NGO-the International Arctic Science Committee (IASC)-"is a comprehensively researched, fully referenced, and independently reviewed evaluation of arctic climate change and its impact for the region and for the world." ACIA, EXECUTIVE SUMMARY, supra note 16, at Preface.
29. Id. at 10.
30. ROB HUEBERT & BROOKS B. YEAGER, WWF, A NEW SEA: THE NEED FOR A REGIONAL AGREEMENT ON MANAGEMENT AND CONSERVATION OF THE ARCTIC MARINE ENVIRONMENT 6 (2008), available at http://assets.panda.org/downloads/a-new-sea- jan08-final-11jan08. pdf.
31. ACIA, EXECUTIVE SUMMARY, supra note 16, at 11.
32. Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) (to be codified at 50 C.F.R. pt. 17).
33. Potts, supra note 3, at 169.
34. ACIA, EXECUTIVE SUMMARY, supra note 16, at 6.
35. Potts, supra note 3, at 169.
36. See Arctic Peoples: Indigenous Peoples at the Arctic Council, Adaptation Workshop September 20-21, http://ips.arcticportal.org/news/item/175-adaptation- workshopseptember-20-21 (last visited Feb. 18, 2010).
37. Id.
38. Id.
39. See generally Randall S. Abate, Climate Change, the United States, and the Impacts of Arctic Melting: A Case Study in the Need for Enforceable International Environmental Human Rights, 26 STAN. ENVTL. L. J. 3, 7 (2007) ("On December 7, 2005, the Inuit Circumpolar Conference (ICC) filed a petition with the Inter-American Commission on Human Rights of the Organization of American States (OAS), accusing the U.S. government of violating their human rights by fueling global warming.").
40. Patricia Cochran & Taito Nakalevu, Stopping the Slow Wave of Destruction, ARCTIC PEOPLES: INDIGENOUS PEOPLES AT THE ARCTIC COUNCIL, Dec. 6, 2007, http:// ips.arcticportal.org/news/item/161-stopping-the-slow-wave-of- destruction.
41. Press Release, U.S. Geological Survey, Glacier and Ice-Sheet Melting, Sea-Ice Retreat and Coastal Erosion Expected as a Result Qan. 16, 2009), available at http://www.usgs.gov/newsroom/article.asp?ID=2109&from=rss-home;
42. see also, U.S. CLIMATE CHANGE SCIENCE PROGRAM & SUBCOMMITTEE ON GLOBAL CHANGE RESEARCH, PAST CLIMATE VARIABILITY AND CHANGE IN THE ARCTIC AND AT HIGH LATITUDES: FINAL REPORT, SYNTHESIS AND ASSESSMENT PRODUCT 1.2 (Jan. 16,2009), available at http://www.climatescience.gov/Library/ sap/sapl-2/default.php.
43. Rising Sea Levels Set to Have Major Impacts Around the World, SCI.DAILY (Mar. 11, 2009), http://www.sciencedaily.com/releases/2009/03/090310104742.htm.
44. WWF, The Arctic, Threats, http://www.worldwildlife.org/what/wherewework/ arctic/threats.html (last visited Mar. 12, 2010) [hereinafter WWF Arctic].
45. Steve Hargreaves, The Arctic: Oil's Last Frontier, CNN MONEY, Oct. 25, 2006, http:/ /money.cnn.com/2006/09/27/news/economy/arctic-drilling/index.htm.
46. STAUSLAV PATIN, ENVIRONMENTAL IMPACT OF THE OFFSHORE OIL AND GAS INDUSTRY 53 (Elena Caseio trans., EcoMonitor Publishing NY 1999).
47. The stages are comprised of: (1) geological and geophysical survey (seismosurveys, test drilling, and so on); (2) exploration (rig emplacement, exploratory drilling, plugging the well, and others); (3) development and production (platform emplacement, pipe laying, and drilling; hydrocarbon extraction, separation, and transportation; well and pipeline maintenance; and so forth); and (4) decommissioning (disassembling, structural removal, well plugging, and others). Id. at 54.
48. Id. at 57.
49. Id. at 55 tb1.6.
50. ARCTIC COUNCIL, PROTECTION OF THE ARCTIC MARINE ENVIRONMENT (PAME), ARCTIC OFFSHORE OIL AND GAS GUIDELINES §1.5 (Oct. 10, 2002) [hereinafter PAME Guidelines], available at http://old.pame.is/sidur/uploads/ ArcticGuidelines.pdf.
51. PATIN, supra note 35, at 55 tbl.6.
52. Id. at 71.
53. See id. at 53-111.
54. NUKA RESEARCH AND PLANNING GROUP, WORLD WILDLIFE FUND, OIL SPILL RESPONSE CHALLENGES IN ARCTIC WATERS 7 (2008) [hereinafter WWF, OIL SPILL RESPONSE CHALLENGES], available at http://assets.panda.org/dowWoads/nuka-oil-spill- response-reportfinal-jan-08.pdf.
55. Id.
56. Id.
57. Id.
58. Id. at 8.
59. Id. at 5 n.1.
60. WWF Arctic, supra note 33.
61. PAME Guidelines, supra note 39, §1.5.
62. Rune S. Fjellheim & John B. Henriksen, Oil and Gas Exploitation on Arctic Indigenous Peoples' Territories: Human Rights, International Law and Corporate Social Responsibility, 4 GALDU ÈALA: J. INDIGENOUS PEOPLES RTS. 1, 31 (2006).
63. PAME Guidelines, supra note 39, §3.1.
64. According to the Restatement (Third) of Foreign Relations Law, international law "consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical." RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §101 (1987).
65. Public International Law governs the activities of governments in relation to other governments. States and international and intergovernmental organizations create international law. Id. §101 cmts. c-d.
66. Article 38(1) of the Statute of the International Court of Justice is "generally regarded as a complete statement of the sources of international law." IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5 (7th ed. 2008). Article 38 states: (1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly (b) recognized by the contesting states' (c) international custom, as evidence of a general practice accepted as law; (d) the general principles of law recognized by civilized nations (e) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
67. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Statute of the International Court of Justice, art. 38(1), 59 Stat. 1031 (June 26,1985).
68. Thus, international conventions, agreements, treaties, customary law, general principles of law, and secondary sources, such as judicial decisions and teachings of the most highly qualified publicists, constitute international law. See BROWNLIE, supra note 53.
69. Ian Brownlie explains that there are four elements of custom: (1) duration, (2) uniformity, (3) generality of the practice, and (4) opinio juris necessitatis. Id. at 7-8.
70. The fourth element translates to mean that "nations believe that international law (rather than moral obligation) mandates the conduct or practice." BLACK'S LAW DICTIONARY (8th ed. 2004).
71. An example of a customary law is the duty to prevent transboundary harm (also known as the "no harm" principle). States are not allowed "to conduct or permit activities within their territories, or common spaces, without regard for the rights of other states or for the protection of the environ-ment." PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT 104 (2d ed. 2002).
72. The reader should keep in mind the intricacies of the international law so as to understand why the existing instruments that apply to oil and gas exploration and exploitation on the Arctic coastal states' continental shelves will not sufficiently protect the Arctic marine environment. Treaties (a type of hard law) serve as the most frequent method of creating binding international environmental niles. BIRNIE & BOYLE, supra note 53, at 13. A treaty can be a written or oral agreement between states or between states and international organizations, governed by international law. The 1969 Vienna Convention on the Law of the Treaties codifies rules, such as entry into force, reservations, interpretation, and invalidity applicable to written treaties. Vienna Convention on the Law of Treaties, art. 31(1), Jan. 27, 1989, 1155 U.N.T.S. 331. The Convention is not universally ratified; e.g., the United States has not ratified the treaty. Yet, it is believed that the Convention codified the customary international law of treaties, thus applicable to both parties and non-parties. See East Timor (Port. v. Austl.), 1995 I.C.J. 90, 214 (June 30,1995). Fundamentally, treaties are consensual. ANDREW T. GUZMAN, HOW INTERNATIONAL LAW WORKS 183 (2008).
73. Thus, treaties "do not ipso facto bind third states, unless the intention to do so is clearly expressed and the state concerned expressly accepts the benefits or obligations in question" in writing. BIRNIE & BOYLE, supra note 53, at 13.
74. However, treaties may contain provisions which are in effect binding on all states not because of treaty status but because they restate what is already custom. Id. at 14.
75. Also treaty provisions may provide for new rules, which could develop into customary international law over time through state practice and opinio juris. Id.
76. Under international environmental law, treaties developed through multilateral processes "promote lawmaking insofar as the instruments they adopt become generally binding, are translated into customary international law, or evidence general principles of law." ALAN BOYLE & CHRISTINE CHINKIN, THE MAKING OF INTERNATIONAL LAW 210 (2007).
77. However, not all treaties lay down strictly binding rules. A current trend in the environmental arena is to create "framework" treaties that provide for very general requirements for states '"to take all measures' or enact 'all practicable means'" thus requiring states to take further action, such as the conclusion of more specific agreements, the addition of protocols or annexes, or even the adoption of nonbinding guidelines or recommendations. BIRNIE & BOYLE, supra note 53, at 14.
78. One other form of a treaty worth mentioning is a regulatory treaty. A regulatory treaty can take the same shape as an umbrella or framework and link to protocols that entail specific duties, e.g., the 1976 Barcelona Convention on the Protection of the Mediterranean Sea requires states to ratify at least one of the accompanying protocols, such as cooperation in combating oil spills or the dumping of wastes. Id.
79. Thus, treaties may include both binding and nonbinding niles. Soft law, on the other hand, is nonbinding per se, but could potentially be law-making in the same way as treaties, by expressing already recognized customary law or general principles. BOYLE & CHINKIN, supra note 54, at 212.
80. The term soft law is a "convenient description for a variety of non-legally binding instruments used in contemporary international relations," including, but not limited to, inter-state coference declarations (like the 1992 Rio Declaration on Environment and Development), United Nations General Assembly instruments, interpretative guidance by international institutions, codes of conduct, and especially important in this article, guidelines and recommendations by international organizations. Id. at 212-13.
81. See generally SANDS, supra note 2, at 534-36.
82. Id.
83. Id. (quoting the Arctic Environmental Protection Strategy (AEPS)).
84. Id. (citing Declaration on the Establishment of the Arctic Council, Sept. 19, 1996, 35 I.L.M. 1382 (1996)).
85. Declaration on the Establishment of the Arctic Council, els. 2-3.
86. Id. cl. 7.
87. Id. cl. 4.
88. Id. cl. 5.
89. See Arctic Monitoring and Assessment Programme, http://www.amap.no (last visited June 11, 2008).
90. See Sustainable Development Working Group, The Arctic Council, http://portal. sdwg.org (last visited June 11, 2008).
91. See Protection of the Arctic Marine Environment (PAME), http://arcticportal.org/ en/pame (last visited June 11, 2008).
92. PAME Guidelines, supra note 39, §1.1.
93. Id. §1.2.
94. Id. §2.
95. Id. §3.
96. Id. §4.
97. Id. §5.
98. PAME Guidelines, supra note 39, §6.
99. Id. §7.
100. Id. §8.
101. David VanderZwaag, Rob Huebert & Stacey Ferrara, The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters, 30 DENV. J. INT'L L. & POL'Y 131,150 (2001).
102. Barents Euro-Arctic Region, Cooperation in the Barents Euro-Arctic Region, http:/ /www.beac.st/?Deptid=25866 (last visited Oct. 21, 2008).
103. See VanderZwaag, Huebert & Ferrara, supra note 75, at 142-43.
104. Id. at 142.
105. SANDS, supra note 2, at 731 (emphasis added).
106. ORAN R. YOUNG, INSTITUTE OF ARCTIC STUDIES, DARTMOUTH COLLEGE, ARCTIC GOVERNANCE: PREPARING FOR THE NEXT PHASE 5 (2002), available at www.arcticparl.org/-res/ site/File/images/conf5-scpar20021.pdf (commissioned by the Standing Committee of Parliamentarians of the Arctic Region in preparation for a discussion of the future of Arctic governance).
107. SANDS, supra note 2, at 710.
108. Linda Nowlan, Arctic Legal Regime for Environmental Protection 41 (IUCN Environmental Law Programme, Working Paper No. 44, 2001)
109. (citing DONALD ROTHWELL, THE POLAR REGIONS AND DEVELOPMENT OF INTERNATIONAL LAW 7 (1996)).
110. Nowlan, supra note 82, at 41
111. (citing Richard Falk, The Antarctic Treaty System: Are There Viable Alternatives?, in THE ANTARCTIC TREATY SYSTEM IN WORLD POLITICS 399 (Arnfinn Jorgensen-Dahl & Willy Ostreng eds., 1991).
112. According to Nowlan, "[c]ommentators are of the view that ATS represents a model for international environmental law." Id. at 351
113. (citing ROTHWELL, supra note 82).
114. SANDS, supra note 2, at 712.
115. id. at 712-13.
116. British Antarctic Survey, Natural Environment Research Council, Antarctic Treaty, Frequently Asked Questions, http://www.antarctica.ac.uk/about- antarctica/geopolitical/ treaty/faq.php (last visited Feb. 19, 2010).
117. Scientific Committee on Antarctic Research, The Antarctic Treaty, Article IX, www.scar.org/treaty/at-text.html (last visited Feb. 19, 2010).
118. Convention on the Regulation of Antarctic Mineral Resources Activities, arts. 18, 21, June 2,1988, 27 I.L.M. 859, available at www.state.gov/documents/ organization/15282. BIRNIE & BOYLE, supra note 53, at 214.
119. SANDS, supra note 2, at 717.
120. Protocol on Environmental Protection to the Antarctic Treaty, art. 7, Oct. 4, 1991, 30 I.L.M. 1455 [hereinafter 1991 Protocol].
121. Id. arts. 11-12.
122. Id. art. 25(2).
123. 1991 Protocol, supra note 89, art. 25(3).
124. Id. art. 25(5)(a).
125. Id. Annex I, art. 1.
126. TOMMY T.B. KOH, PRESIDENT OF THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA, REMARKS, A CONSTITUTION FOR THE OCEANS 1 (Dec. 10,1982), http://www. un.org/Depts/los/convention-agreements/texts/koh-english.pdf.
127. R.R. CHURCHILL & A.V. LOWE, THE LAW OF THE SEA 19 (2d ed. 1985).
128. United Nations, Table Recapitulating the Status of the Convention and of the Related Agreements, as at 1 January 2010, http://www.un.org/Depts/los/ reference-files/ status2010.pdf;
129. see generally Andrew King, Thawing a Frozen Treaty: Protecting United States Interests in the Arctic with a Congressional-Executive Agreement on the Law of the Sea, 34 HASTINGS CONST. L.Q. 329, 334 (2007).
130. The zones comprise: territorial sea and contiguous zone (part II); straits used for international navigation (part HI); archiWpelagic states (part TV); exclusive economic zone (EEZ) (part V); continental shelf (part VI); high seas (part VII); regime of islands (part VIII); enclosed or semi-enclosed seas (part IX); right of access of landlocked states to and from the sea and freedom of transit (part X); and the area (part XI). United Nations Convention on the Law of the Sea, Dec. 10, 1982,1833 U.N.T.S. 397 [hereinafter UNCLOS], available at www.un.org/Depts/los/convention-agreements/texts/unclos/unclos-e.pdf.
131. CHURCHILL & LOWE, supra note 96, at 119.
132. Id. at 137.
133. Id. at 119.
134. UNCLOS, supra note 98, pt. VI, art. 77(4).
135. Id. pt. V, art. 60, pt. VI, arts. 80-81.
136. Id. pt. VI, art. 77(2).
137. CHURCHILL & LOWE, supra note 96, at 119-20.
138. Id. at 118.
139. UNCLOS, supra note 98, pt. VI, art. 78.
140. CHURCHILL & LOWE, supra note 96, at 153-54;
141. UNCLOS, supra note 98, art. 78(2).
142. UNCLOS, supra note 98, art. 60.
143. Id. art. 60(7);
144. CHURCHILL & LOWE, supra note 96, at 153-54.
145. UNCLOS, supra note 98, art. 60(3).
146. The IMO is the United Nations' specialized agency responsible for improving maritime safety and preventing pollution from ships. See International Maritime Organization, http://www.imo.org/ (last visited Nov. 22, 2008).
147. CHURCHILL & LOWE, supra note 96, at 156.
148. The word "through" was intentionally used. See UNCLOS, supra note 98, art. 82(4).
149. CHURCHIILL & LOWE, supra note 96, at 157.
150. Rayfuse, supra note 2, at 210;
151. Potts, supra note 3, at 151.
152. UNCLOS, supra note 98, art. 123(b).
153. Id. art. 123(d).
154. Rayfuse, supra note 2, at 210.
155. See Huebert & Yeager, supra note 20, at 21.
156. UNCLOS, supra note 98, art. 234.
157. Id. art. 192.
158. Id. arts. 194(2), 195.
159. Id. art. 197.
160. Id. art. 198.
161. Id. art. 199.
162. UNCLOS, supra note 98, art. 200.
163. Id. arts. 204(1)-(2).
164. Id. arts. 205-06.
165. Id. art. 208(1).
166. Id. art. 208(3).
167. Id. art. 208(4).
168. UNCLOS, supra note 98, art. 208(5).
169. Convention for the Protection of the Marine Environment of the North-East Atlantic, pmbl., Sept. 22,1992,32 I.L.M. 1072 [hereinafter OSPAR Convention], available at http:/ /www.ospar.org/html-documents/ospar/html/OSPAR-Convention-e- updated-text2007.pdf#nameddesf=annex3.
170. OSPAR Commission, Welcome to the OSPAR Commission, http://www.ospar. org/eng/html/welcome.html (last visited June 11, 2008).
171. OSPAR Convention, supra note 134, art. 1(a)(i).
172. OSPAR Commission, Region I-Arctic Waters, http://www.ospar.org/content/ content.asp?menu=00420211000000-000000-000000 (last visited Oct. 18, 2008).
173. OSPAR Convention, supra note 134, art. 25(b).
174. Id. art. 25(c).
175. Id. art. 27(2).
176. BIRNIE & BOYLE, supra note 53, at 356.
177. OSPAR Convention, supra note 134, art. 10(1).
178. Id. arts. 10(2)-(3).
179. Id. art. 2 (2)(a).
180. Id. art. 2 (2)(b).
181. Id. art. 2(3).
182. This is not explicitly stated in the Convention. According to the OSPAR Commission, for the purpose of the Convention, the ecosystem approach is defined as: The comprehensive integrated management of human activities based on the best available scientific knowledge about the ecosystem and its dynamics, in order to identify and take action on influences which are critical to the health of marine ecosystems, thereby achieving sustainable use of ecosystem goods and services and maintenance of ecosystem integrity. OSPAR Commission, Principles: Ecosystem Approach, http://www.ospar.org/content/ content.asp?menu= 00430109150000-000000-000000 (last visited Oct. 18, 2008) (emphasis omitted).
183. However, Annex V, article 3(1)(b)(iv), states that it is the duty of the OSPAR Commission "to aim for the application of an integrated ecosystem approach" when drawing up "programmes and measures for the control of the human activities." OSPAR Convention, supra note 134, Annex V, art. 3.
184. Id. Annex III, art. 3.
185. Id. Annex III, art. 2.
186. Id. Annex III, art. 4(1).
187. Id. Annex III, art. 4(2).
188. Id. Annex III, art. 5(1).
189. OSPAR Convention, supra note 134, Annex III, art. 5(2).
190. See OSPAR Decision 98/3 on the Disposal of Disused Offshore Installations, available at http://www.ospar.org/documents/DBASE/DECRECS/ Decisions/od98-03e.doc.
191. OSPAR Convention, supra note 134, Annex V, art. 2.
192. Id. Annex V, art. 3(1)(b)(iv).
193. See OSPAR Recommendation 2003/3 on a Network of Marine Protected Areas, available at http://www.ospar.org/documents/dbase/decrecs/recommendations/ or0303e.doc.
194. OSPAR Convention, supra note 134, Annex V, art. 3.1(a).
195. Id. Annex V, art. 3.1(b).
196. Id. Annex V, art. 3.3.
197. Id. Annex V, art. 5.
198. OSPAR Commission, Offshore Oil and Gas Industry, http://www.ospar.org/ content/content.asp?menu=00210305000000-000000-000000 (last visited Oct. 18, 2008).
199. Id.
200. Id.
201. OSPAR Commission, Climate Change, http://www.ospar.org/content/content. asp?menu=00230307000000-000000-000000 (last visited Oct. 18, 2008).
202. Id.
203. Id.; see also OSPAR COMMISSION, ASSESSMENT OF CLIMATE CHANGE MITIGATION AND ADAPTATION (2009), available at http://www.ospar.org/documents/dbase/ publications/ p00464-climate%20change%20mitigation%20adaptation%20final.pdf.
204. International Convention for the Prevention of Pollution from Ships, pmbl., Nov. 2, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), Feb. 17, 1978,1340 U.N.T.S. 61 [hereinafter MARPOL 73/78].
205. BIRNIE & BOYLE, supra note 53, at 363.
206. MARPOL 73/78, supra note 168, art. 2(4).
207. Id. Annex I, reg. 21.
208. BIRNIE & BOYLE, supra note 53, at 362-63.
209. MARPOL 73/78, supra note 168, Annex I, reg. 1(10).
210. Id. Annex I, reg. 1(10).
211. See id. Annexes I, V (as amended Mar. 17, (1992).
212. Id. Annex I, reg. 21(3).
213. International Convention on Oil Pollution Preparedness, Response and Cooperation, art. 1, Nov. 30, 1990, 1891 U.N.T.S. 78. [hereinafter OPRC].
214. Id. pmbl.
215. See International Maritime Organization, Status of Conventions by Countries, http://www.imo.org/Conventions/mainframe.asp?topic-id=248 (last visited Mar. 12, 2010).
216. OPRC, supra note 177, art. 3(2).
217. Id. art. 4(1)(a).
218. Id. art. 7.
219. Id. pmbl.
220. Id. art. 2(6).
221. The International Maritime Organization (IMO) is the United Nations' specialized agency responsible for improving maritime safety and preventing pollution from ships. International Maritime Organization, General Objectives and Policies, http://www.imo. org/ (last visited Nov. 22, 2008).
222. OPRC, supra note 177, art. 3(1)(a) ("Each Party shall require that ships entitled to fly its flag have on board a shipboard oil pollution emergency plan as required by and in accordance with the provisions adopted by the Organization for this purpose.").
223. Id. art. 4(2) ("Reports under paragraph (1)(a)(i) shall be made in accordance with the requirements developed by the Organization and based on the guidelines and general principles adopted by the Organization. Reports under paragraph (1)(a)(ii), (b), (c) and (d) shall be made in accordance with the guidelines and general principles adopted by the Organization to the extent applicable.");
224. id. art. 5(4) ("Parties should use, in so far as practicable, the oil pollution reporting system developed by the Organization when exchanging information and communicating with other States and with the Organization.").
225. Id. art. 8(1) ("Parties agree to co-operate directly or, as appropriate, through the Organization or relevant regional organizations or arrangements in the promotion and exchange of results of research and development programmes relating to the enhancement of the state-of-the-art of oil pollution preparedness and response, including technologies and techniques for surveillance, containment, recovery, dispersion, clean-up and otherwise minimizing or mitigating the effects of oil pollution, and for restoration.").
226. Id. art. 12(2) ("In carrying out the activities specified in this article, the Organization shall endeavour to strengthen the ability of States individually or through regional arrangements to prepare for and combat oil pollution incidents, drawing upon the experience of States, regional agreements and industry arrangements and paying particular attention to the needs of developing countries.").
227. 1983 Canada-Denmark Agreement for Cooperation Relating to the Marine Environment, pmbl., Aug. 26,1983, 23 I.L.M. 269 [hereinafter 1983 Agreement].
228. Id. art. II.
229. Id. art. IV(1).
230. Id. art. IV(2).
231. Id. art. V.
232. Id. art XIII(1).
233. 1983 Agreement, supra note 190, art. XIII(2).
234. 1993 Agreement Between Denmark, Finland, Iceland, Norway and Sweden Concerning Cooperation in Measures to Deal with Pollution of the Sea by Oil or Other Harmful Substances, art. 2, Mar. 29, 2003, U.N.T.S. vol. 2084 1-36173 [hereinafter 1993 Agreement].
235. Id. art. 3.
236. Id. art. 4.
237. Id. art. 5.
238. Id. art. 6.
239. Id. art. 7.
240. 1993 Agreement, supra note 197, art. 8.
241. Id. art. 12.
242. United Nations Conference on Environment and Development, Rio de Janeiro, Braz., June 14,1992, Rio Declaration on Environment and Development, princ. 5 , UNCED Doc. A/CONF.151.5, 31 I.L.M 873 [hereinafter Rio Declaration].
243. Id. princ. 17.
244. Id. princ. 19.
245. Id.
246. Id. princ. 18.
247. Arie Trouwborst, Lecture on Nature Conservation, International Environmental Law Seminar, Mar. 20, 2008, Utrecht University;
248. see generally ANTONIO CASSESE, INTERNATIONAL LAW 48-53 (Oxford University Press 2005) (2001).
249. SANDS, supra note 2, at 235.
250. Id. at 236.
251. UNCLOS, supra note 98, art. 194(2).
252. BROWNLIE, supra note 53, at 287.
253. SANDS, supra note 2, at 236.
254. Id.
255. Principle 15 of the Rio Declaration states: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Rio Declaration, supra note 205, princ. 15.
256. Trouwborst, supra note 210, at 187.
257. Id. at 187-88. The principle is solidified in more than 60 multilateral treaties and is embedded in several domestic systems. It was also recognized by the International Tribunal for the Law of the Sea in the Southern Blue Fin Tuna cases and in the MOX Plant case, and by the WTO Appellate Body in the 1998 Beef Hormones case. See SANDS, supra note 2, at 273-76.
258. D. BARSTOW MAGRAW & L.D. HAWKE, Sustainable Development, in THE OXFORD HANDBOOK OF INTERNATIONAL ENVIRONMENTAL LAW 614-16 (Daniel Bodansky, Jutta Brunnée & Ellen Hey eds., Oxford University Press 2007).
259. Report of the World Commission on Environment and Development, G.A. Res. 42/187, U.N. Doc. A/RES/42/187 (Dec. 11, 1987).
260. BIRNIE & BOYLE, supra note 53, at 92.
261. PAME Guidelines, supra note 39, §1.3.
262. STEPHEN BOYLE ET AL., U.N. ENV'T PROGRAMME & THE GLOBAL PROGRAMME OF ACTION FOR THE PROT, OF THE MARINE ENV'T FROM LAND-BASED ACTIVITIES, ECOSYSTEM-BASED MANAGEMENT: MARRERS FOR ASSESSING PROGRESS 5 (2006), available at http://www.gpa. unep.org/documents/ecosystem-based-management-english.pdf.
263. See THE ILUULISSAT DECLARATION, supra note 1.
264. Indigenous Portal, The Ilulissat Declaration from the Arctic Ocean Conference, June 24, 2008, http://www.indigenousportal.com/Politics/The- Ilulissat-declaration-from-theArtic-Ocean-Conference.html.
265. Id.
266. T. Koivurova & D. Vander-Zwaag, Canada, the European Union and Arctic Ocean Governance: A Tangled and Shifting Seascape and Future Directions, 18 J. TRANSNAT'L L. & POL'Y (forthcoming 2010).
267. THE ILUUSSAT DECLARATION, supra note 1.
268. Id.
269. Id.
270. Id.
271. Id.
272. Id.
273. THE ILULISSAT DECLARATION, supra note 1.
274. Id.
275. Deb Kelly, Arctic Nations Pledge to Defuse Tensions, OIL DAILY: ENERGY INTELLIGENCE GROUP, June 3, 2008, http://www.accessmylibrary.com/coms2/summary- 0286-34692562ITM.
276. Potts, supra note 3, at 151.
277. Id.
278. Associated Press, Canada to Increase Arctic Military Presence, USA TODAY, July, 9 2008, http://www.usatoday.com/news/world/2007-07-09-canada-arctic-N. htm;
279. Kelly, supra note 237.
280. Kelly, supra note 237.
281. Potts, supra note 3, at 158.
282. Id.
283. UNCLOS, supra note 98, arts. 76(1), 76(4)(a)(i)-(ii);
284. CHURCHILL & LOWE, supra note 96, at 148-49.
285. CHURCHILL & LOWE, supra note 96, at 148-50. See UNCLOS, supra note 98, art. 76(7)-(9).
286. United Nations, Division for Ocean Affairs and the Law of the Sea, Submissions to the Commission, http://www.un.org/Depts/los/clcs-new/commission- submissions.htm (last visited Mar. 12, 2010).
287. Id.
288. King, supra note 97, at 334 (quoting UNCLOS, supra note 98, art. 77(1)) (internal quotations omitted).
289. Press Release, Durham University Media Relations Office, Arctic Map Plots New "Gold Rush" (Aug. 6, 2008), available at http://www.dur.ac.uk/ news/newsitem/?itemno= 6819&rehref=%2Fnews%Farchive%2F&resubj= %20Headlines.
290. See INTERNATIONAL BOUNDARIES RESEARCH UNIT, DURHAM UNIVERSITY, MARITIME JURISDICTION AND BOUNDARIES IN THE ARCTIC REGION (2008), available at http://www.dur.ac. uk/resources/ibru/arctic.pdf.
291. See Koivurova & VanderZwaag, supra note 228, at 272.
292. See PAME Guidelines, supra note 39.
293. Neil Hamilton, Oil - A Dark Future for the Arctic, WWF ARCTIC BULLETIN (WWF Arctic Int'l Programme, Oslo, Nor.), Jan. 2008, at 3, available at http://assets.panda.org/ downloads/ab0108.pdf.
294. Id.
295. See WWF, OIL SPILL RESPONSE CHALLENGES, supra note 43, at 27.
296. Id. at 3.
297. Press Release, U.S. White House, President's Statement on Advancing U.S. Interests in the World's Oceans (May 15, 2007), available at http://georgewbush-whitehouse. archives.gov/news/releases/2007/05/20070515-2. html.
298. Lauren Morello, U.S. Pushes for Law of the Sea Ratification as New Arctic Mapping Project Begins, NY TIMES, July 29, 2009, http://www.nytimes.com/cwire/ 2009/07/29/ 29climatewire-us-pushes-for-law-of-the-sea-ratification-as-89174. html.
299. Id.
300. Id.
301. See generally Mark Jarashow et al., UNCLOS and the Arctic: The Path of Least Resistance, 30 FORDHAM INT'L L.J. 1587 (2007).
302. Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 6th Sess., U.N. Doc. A/ CONF 164/37 (1995), 34 I.L.M. 1542 (1995).
303. CHURCHILL & LOWE, supra note 96, at 157.
304. The "Organization" is the Inter-Governmental Maritime Consultative Organization. MARPOL 73/78, supra note 168, art. 2(7). Full text of the Treaty is available at http://sedac.ciesin.columbia.edu/entri/texts/ pollution.from.ships.1973.html (last visited Mar. 12, 2010).
305. MARPOL 73/78, supra note 168, art. 16(2)(f)(iii).
306. Id. art. 16(3).
307. YOUNG, supra note 80, at 5.
308. Id. at 17.
309. Id. ("[T]here is no need to create such a system [referring to "an integrated governance system based on hard law instruments of the sort exemplified" by the ATS] in order to make progress in meeting the demand for governance in the Arctic. Existing arrangements are doing a creditable job oí addressing some elements of the demand for governance in the far north.") It should be noted that in a recent article, Paul Arthur Berkman and Oran R. Young suggest that "[b]efore sectoral activities accelerate with the diminished sea ice, the window of opportunity is open for all legitimate stakeholders to forever establish their common interests in the central Arctic Ocean as an international space dedicated to peaceful uses." Berkman & Young, supra note 8, at 340.
310. Nowlan, supra note 82, at 57, 66.
311. See TIMO KOIVUROVA & ERDC J. MOLEN AAR, WWF INTERNATIONAL ARCTIC PROGRAMME, INTERNATIONAL GOVERNANCE AND REGULATION OF THE MARDME ARCTIC: OVERVIEW AND GAP ANALYSIS (2009), available at http://www.wwf.se/source.php/ 1223579/ International%20Governance%20and%20Regulation%20of%20the%20Marine%20Arctic.pdf.
312. YOUNG, supra note 80, at 5.
313. UNCLOS, supra note 98, art. 123. For background on the UNCLOS semi-enclosed seas provisions, see supra section IV(A).
314. ORAN R. YOUNG, THE STRUCTURE OF ARCTIC COOPERATION: SOLVDMG PROBLEMS/SEIZDMG OPPORTUNITIES 9 (2004), available at http://arcticparl.org/- res/site/File/static/conf4-sac.pdf (author states this proposition but argues against it in favor of improving the existing arrangements pertaining to the Arctic).
315. Potts, supra note 3, at 174 (quoting Nowlan, supra note 82, at 8).
316. Potts, supra note 3, at 174.
317. William V. Dunlap, Regional and International Cooperation in the Regulation of Energy Resources in the Arctic, in BOUNDARIES AND ENERGY: PROBLEMS AND PROSPECTS 301 (Gerald Blake et al. eds., Kluwer Law International 1998).
318. Nowlan, supra note 82 (citing YOUNG, supra note 274, at 15).
319. Nowlan, supra note 82, at 59-60.
320. GUZMAN, supra note 54, at 172.
321. See supra section III(A).
322. OSPAR Convention, supra note 134, art. 27(2).
323. OSPAR Commission, Region I - Arctic Waters, http://www.ospar.org/content/ content.asp?menu=00420211000000-000000-000000 (last visited Mar. 12, 2010). The website describes Region I, Arctic Waters, as: "[T]he northern OSPAR region, characterized by harsh climate and ice coverage. Although there is a low population density, human activities such as fishing and offshore petroleum production are relatively important. The ecosystems in Region I are rich, in particular it is one of the most important seabird regions in the world."
324. UNCLOS, supra note 98, art. 123(b).
325. UNCLOS, supra note 98, art. 197.
326. Id. art. 208(5).
327. Id. art. 208(1).
328. Potts, supra note 3, at 175.
329. See UNCLOS, supra note 98, arts. 77(1)-(4).
330. As evidenced by the wide adoption of UNCLOS, which contains part XTi (Protection and Preservation of the Marine Environment).
331. As evidenced by the near universal adoption of the Convention on Biological Diversity.
332. See Convention on Biological Diversity, List of Parties, http://www.cbd.int/ information/parties.shtml (last visited June 10, 2008).
333. For example, the Arctic Council created a Sustainable Development Working Group.
334. For more information about these principles, see supra section IV(G).
335. PAPER FROM THE HIGH REPRESENTATIVE AND THE EUROPEAN COMMISSION TO THE EUROPEAN COUNCIL, CUMATE CHANGE AND INTERNATIONAL SECURITY 9 (Mar. 14, 2008) [hereinafter CLIMATE CHANGE AND INTERNATIONAL SECURITY], available at http://www.consilium.europa.eu/uedocs/cms-data/docs/pressdata/en/reports/99387. pdf.
336. Jesper Hansen, Increasing Non-Arctic Interest in the Arctic Council, ARCTIC COUNCIL, Apr. 18, 2008, http://arctic-council.org/article/2008/4/ increasing-non-arctic-interest-in-the-arctic-council (stating that the Arctic is becoming geopolitically important, therefore more and more states and non-state actors want to play a role in the council or industrial development; e.g., China was planning to send six representatives to an Arctic Council meeting in Norway).
337. See 1991 Protocol, supra note 89, art. III(1) ("The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area").
338. Arctic Council, About Arctic Council, http://arctic-council.org/article/ about (last visited Mar. 12, 2010).
339. WWF Arctic, supra note 33.
340. Natural Res. Def. Counsel, Global Warming Puts Arctic on Thin Ice, http://www. nrdc.org/globalwarming/qthinice.asp (last visited Jan. 9, 2010).
341. Id.
342. Non-Arctic Countries Want Membership in Arctic Council, BARENTSOBSERVER, Mar. 10, 2008, http://www.barentsobserver.com/non-arctic-countries-want- membership-in-arcticcouncil.4516094-16180.html.
343. Arctic Council, Rules of Procedure, SAO Report (Iqaluit), Annex 1, as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, in Iqaluit, Can., at 38 (Sept. 17-18, 1998), available at http://www.arctic- council.org/filearchive/official%20 rules%20and%20procedures.pdf.
344. European Union, Northern Dimension Policy Framework Document, at 1 (Nov. 24, 2006), available at http://ec.europa.eu/external-relations/north-dim/docs/ frame-pol-1106-en.pdf.
345. Id. at 3(10).
346. European Union, Northern Dimension Policy Framework Document, supra note 303, at 5.
347. Id. at 1.
348. CUMATE CHANGE AND INTERNATIONAL SECURITY, supra note 294, at 8.
349. Dr. Joe Borg, Member of the European Commission Responsible for Fisheries and Maritime Affairs, The Arctic: A Matter of Concern to Us All, Speech Before the Nordic Council of Ministers (Sept. 9, 2008) (transcript available at http://europa.eu/rapid/press ReleasesAction.do?reference=SPEECH/08/ 415&format=HTML&aged=0&language=EN& guiLanguage-en).
350. See CUMATE CHANGE AND INTERNATIONAL SECURITY, supra note 294, at 9.
351. UNFCCC, supra note 6, pmbl.
352. The European Union (EU) consists of 27 member states. Denmark, Finland, and Sweden are both EU members and Arctic States; however, Iceland is an Arctic state, but not an EU member. Canada, Norway, Russia, and the United States are not EU member states, but are Arctic coastal states. It should be noted that none of the current EU member states are Arctic Ocean coastal states. Koivurova & VanderZwaag, supra note 228, at 254. ("The fact that none of the current EU Member States are coastal states with respect to the Arctic Ocean (not even via the European Economic Area Agreement or via Greenland, which chose in the mid-1980s to withdraw from the then European Economic Community, and hence is not part of the European Communities or the EU) is clearly a major feature and constraint of EU policy regarding the Arctic Ocean.").
353. Dr. Borg mentioned in his speech that the European Commission would be publishing a Communication on the Arctic later in 2008. Borg, supra note 308, at 3.
354. On November 20,2008, the Commission for the European Communities (the Commission) launched a communication regarding the EU's relationship to the Arctic region. Also, the European Parliament adopted a resolution on Arctic Governance suggesting that the Commission: [B]e prepared to pursue the opening of international negotiations designed to lead to the adoption of an international treaty for the protection of the Arctic, having as its inspiration the Antarctic Treaty, as supplemented by the Madrid Protocol signed in 1991, but respecting the fundamental difference represented by the poppulated nature of the Arctic and the consequent rights and needs of the peoples and nations of the Arctic region; believ[ing], however, that as a minimum starting-point such a treaty could at least cover the unpopulated and unclaimed area at the centre of the Arctic Ocean. European Parliament Resolution of 9 October 2008 on Arctic Governance, PARL. EUR. DOC. at 15, available at http://www.europarl.europa.eu/ sides/getDoc.do7pubRef=-//EP/ /TEXT+TA+P6-TA-2008-0474+0‡|:OC+XML+V0//EN.
355. Id.
356. GREG MAGGIO & OWEN J. LYNCH, CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW, HUMAN RIGHTS, ENVIRONMENT, AND ECONOMIC DEVELOPMENT: EXISTDMG AND EMERGDMG STANDARDS IN INTERNATIONAL LAW AND GLOBAL SOCIETY, pt. IV (1997), http://www.ciel. org/Publications/olp3iv2.html.
357. Id.
358. Kyoto Protocol, supra note 9, art. 3(1).
359. See UNFCCC, FRAMEWORR CONVENTION ON CUMATE CHANGE, REPORT OF THE AD HOC WORKING GROUP ON FURTHER COMMITMENTS FOR ANNEX I PARTTES UNDER THE KYOTO PROTOCOL ON ITS RESUMED SIXTH SESSION, HELD IN POZNAN FROM 1 TO 10 DECEMBER 2008 17 (2008), available at http://unfccc.int/resource/docs/2008/awg6/eng/08.pdf.
360. OSPAR Convention, supra note 134, at pmbl.
361. Press Release, OSPAR Commission, OSPAR Pioneers the Protection of the High Seas: OSPAR on Track to Meet the New EU Marine Directive (June 26, 2008), available at http://www.ospar.org/content/news-detail.asp?menu=00600725000000- 000001-000000.
362. Nowlan, supra note 82, at 58.
363. OSPAR Commission, Rules of Procedure of the OSPAR Commission, As Revised at OSPAR 2001 (Annex 29), OSPAR 2002 (Annex 10), OSPAR 2005 (Annex 25), rule 4, available at http://www.ospar.org/documents/DBASE/DECRECS/Agreements/05-17e- Rules% 20of%20Procedure.doc.
364. Id. rule 5.
365. Id. rule 9.
366. OSPAR Convention, supra note 134, Annex III, art. 10.
367. See generally United Nations Economic Commission for Europe, Convention on Environmental Impact Assessment in a Transboundary Context, http://www.unece.org/ env/eia/eia.htin (last visited Jan. 13, 2010).
368. OSPAR Convention, supra note 134, art. 2(2)(a).
369. Id. art. 2(2)(b).
370. Id. art. 2(3)(b).
371. This is not explicitly stated in the Convention. See OSPAR Convention, supra note 134.
372. Neil Hamilton, Director, WWF International Arctic Programme, Should There Be a Future for Oil and Gas in the Arctic?, Presentation for Arctic Frontiers 2008 (Jan. 22, 2008), in ARCTIC FRONTIERS 2008 DOWNLOADS, at 32, http://www.arctic-frontiers.com/index. php?option=com-docman&task=cat- view&gid=40&Itemid=155 (follow 04 Hamilton hyperlink).