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Environmental Governance of the Great Seas — The Arctic: The Region of the Century

Tuesday, 18 February 2014
by Joseph F. C. DiMento, Professor of Law and Planning, University of California Irvine, USA, & Hermanni Backer, Professional Secretary of the Helsinki Commission
Environmental Governance of the Great Seas — The Arctic: The Region of the Century
Introduction

The Arctic is a very special place. It is a region and it is an ocean. But “[t]here is no universally accepted definition of [the] Arctic Ocean” (Koivurova and Duyck, 2010 @ p.180). A working definition might include “the tree line (the northernmost boundary where trees grow) or the 10 °C isotherm (the southernmost location where the mean temperature of the warmest month of the year is below 10° C °).” Geographically, others conclude that the Arctic Circle begins at 66°, 33”latitude. For some international law purposes the Arctic is defined by memberships in institutions and governance mechanisms of the entities in the “Arctic region.”  

As a region the Arctic is populated, sparsely, but much more so than its polar counterpart, Antarctica.  It has had a significant indigenous people population for more than 4000 years (Avataq Cultural Institute, 2011). According to estimates, one fifth of the world’s oil and gas resources are in the Arctic. In 2008, the USGS (United States Geological Survey) estimated that areas north of the Arctic Circle may have 13% of the undiscovered oil in the world, 30% of the undiscovered natural gas, and 20% of the undiscovered natural gas liquids on Earth. Most of these resources are offshore. The Arctic, like many regional seas, is characterized by the presence of important minerals, significant biodiversity, and animal and marine life although there is currently no commercial fishing in the high seas of the Arctic Ocean.

The region faces many threats and pressures. Most all serious observers consider climate change to be the greatest and most serious challenge for the Arctic. The Arctic is “on the front line” of the climate change fight.[1] [Changes in climate will provide opportunities for development in the region to be sure--with associated benefits.]  However, it has been estimated that the impact of climate change there will be twice as intense as the change in other regions of the world”.[2]

By the end of this decade, the Arctic may be free of ice during the summer months. Concomitant with climate change is release of methane from the permafrost and acidification of the sea (Young, 2011). Recently other atmospheric challenges have been identified. High levels of extremely reactive molecular chlorine have been discovered in the Arctic atmosphere: “the first time that molecular chlorine has been measured in the Arctic, and the first time that scientists have recorded such high levels of molecular chlorine in the atmosphere.[3] Then there are the threats from oil and gas development. The United States, the Russian Federation, Norway and Canada are among the nations working on exploitation activities in various states of development. Some of the 19 geological basins making up the Arctic have already experienced oil and gas exploration. With the opening of the areas and resource exploitation comes an increasing probability of accidents and spills of diesel and other fuels  as the volume  of shipping though the more easily navigated passages increases by many times. With shipping also come the usual maritime dumpings and leaks but also a potential threat from one of the devices that are allowing opening of the region itself: the immensely powerful nuclear ice breaking submarine. The environmental risks associated with new oil and gas extraction include as well associated effects on land. The latter includes drawing of pipelines across tundra areas, from the Arctic shorelines to more densely populated parts of the world.  

These pressures and an expanding tourism business and the ever increasing strategic military importance of the area have serious implications not only for the natural environment but for native human inhabitants.

All these issues bring to the fore concern over the ability of the international community [or parts of it] to manage the fragile environment of the Arctic. Is the existing framework adequate? What changes are advisable?

The Existing Governance “Cluster”

The existing framework of international management of the Arctic is a cluster of law, policy, and management initiatives, some of which go back several decades. The region is home to a number of multi-level governance systems that together comprise what some scholars call the expanding “Arctic regime complex.” Among those that affect most or all of the Arctic states are those that are part of the cluster of other regional seas programs [DiMento and Hickman, 2012].  The Table lists many of these.

-    United Nations Law of the Sea  (UNCLOS)
-   Agreement for the Implementation of the Provisions of the Convention on the Law of the Sea of December 1982 Relating to the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks
-   Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention)
-    Convention on Fishing and Conservation of Living Resources of the High Seas
-    The Convention on Wetlands (RAMSAR Convention)
-    Convention on International Trade in Endangered Species (CITES)
-    International Convention for the Regulation of Whaling
-    International Convention on Persistent Organic Pollutants (POPS)
-    Global Programme of Action for the Protection of the Marine Environment from Land Based Activities
-    The Agreement on the Conservation  of Polar Bears
-    Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (The  London Convention) -    The UN Framework Convention on Climate Change (UNFCC)
-    The Kyoto Protocol
-    The International Convention for the Prevention of Pollution from Ships (MARPOL)
-    The 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation
-   The CMS or Bonn Convention (The Convention on the Conservation on Migratory Species of Wild Animals)
-    The Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention)
-    The Convention on Biological Diversity (CBD)
Table.   ARCTIC INTERNATIONAL LAW CLUSTER COMPONENTS

Within the cluster also are bi-lateral agreements [e.g. The 1983 Canada-Denmark Agreement] and multilateral agreements [e.g. 1920 Treaty between Norway, The United States of America, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Ireland and the British overseas Dominions and Sweden concerning Spitsbergen]. To this long list must be added national legislation which has intended positive effects on the Arctic environment. When describing the elements of the cluster that fit within elements of national  law we mean first the exercise of sovereignty in the region, the substantive law that  guides in that sovereign area, as well as [and  further complicating the analysis], the extraterritorial reach of national law.

Perhaps most fundamental to Arctic governance is The United Nations Convention on the Law of the Sea (UNCLOS III). It applies to the entire Arctic Basin and is in force in all of the Arctic states except for the United States, which itself recognizes the relevant provisions as customary international law. Arctic nations control the exclusive economic zones, allowing them to govern the resources and activities in the water column and ocean surface; these can extend 200 nautical miles from the shore and are generally coextensive with the Continental Shelf (CS). The Commission on the Limits of the Continental Shelf (CLCS) makes recommendations on matters related to the limits of a nation’s CS. Based on the LOS “it is still very much the coastal states that are responsible  for managing the ocean…The Arctic Ocean is to a large extent subject to the sovereign rights and jurisdiction of its coastal states and art 234 of the LOS Convention even accords those states expanded powers to coastal shipping in the ice-covered areas…however…[the] …central Arctic Ocean is high seas.”[4]

Although some commentators and some in the media have focused on the potential for territorial disputes in the Arctic there have been surprisingly few to this point, although the recent submission by Canada and actions by the Russian Federation create uncertainty as to future resolution.[5]

Soft Law is also relevant to the region, principles that apply to at least some of the Arctic states. These include the precautionary principle and guidelines of international organizations such as the International Maritime Organization [e.g. Guidelines on Arctic Shipping]. Also as elaborated in the 1993 Nuuk Declaration on Environment and Development in the Arctic:
8. "We believe that development in the Arctic must incorporate the application of precautionary approaches to development with environmental implications, including prior assessment and systematic observation of the impacts of such development. Therefore we shall maintain, as appropriate, or put into place as quickly as possible, an internationally transparent domestic process for the environmental impact assessment of proposed activities that are likely to have a significant adverse impact on the Arctic environment and are subject to decisions by competent national authorities. To this end we support the implementation of the provisions of the Convention on Environmental Impact Assessment in a Transboundary Context.   
The Arctic Coastal States also, relevant to next steps and the major question facing the international community about the need for additional international law, adopted The Ilulissat Declaration in which they concluded that there is “no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.”

Partly based on the work around the Arctic Environmental Protection Strategy of 1991, the Ottawa Declaration established the Arctic Council in 1996 as a forum for promoting cooperation, coordination and interaction in the region. It includes the governments of Canada, Russia, Denmark (covering also Greenland and Faroe Islands), Norway, the United States, Sweden, Finland, and Iceland, and also, uniquely, the indigenous peoples of the Arctic: Athabaskan, Aleut, Gwich’in, Inuit, Sami and the 41 indigenous peoples in Russia represented by the Russian Association of Indigenous Peoples of the North (RAIPON).  As to these peoples Principle 7 of the 1993 Nuuk Declaration states:    
“We recognize the special role of indigenous peoples in environmental management and development in the Arctic, and of the significance of their knowledge and traditional practices, and will promote their effective participation in the achievement of sustainable development in the Arctic.”
In addition, some states and entities with Arctic interests are involved as observers. Full membership, including voting rights, in the Arctic Council is restricted to the eight countries with territory in the region. Six international organizations representing Arctic Indigenous Peoples have permanent participant status. But this group is now outnumbered by 12 other states that have won observer status and can attend meetings. Just last year, China was among those granted observer status. In addition to China, the other nations granted this status were India, Italy, Japan, Singapore and South Korea. The European Union has also lobbied for such status, so far unsuccessfully.

With the major environmental challenges noted above and significant geo political changes in the region, the Arctic Council has evolved from a fairly obscure international organization to one of increasing importance in Arctic governance. The Arctic Search and Rescue Agreement was the first binding treaty concluded under the Council’s auspices in 2011. In 2013 the “Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic” was signed. It aims to establish a framework to substantially improve the procedures for tackling oil spills in the Circumpolar region. There are more agreements under negotiating including on pollution prevention, science, and fisheries.

However The Arctic Council generally creates non-binding guidelines [although it has assumed a convening role to pull states to consider entering treaties]. And it has no security role. The Arctic Council does not have an international legal personality as that term is used in international law to denote that the entity is recognized under the law as having privileges, responsibilities, rights, protections, and liabilities.    

In addition to the Arctic Council, discussions on Arctic issues are also taking place in other international fora, including the Spitsbergen Treaty cooperation, the North Atlantic Coastguard Forum, and the Conference of the Parliamentarians of the Arctic Region. The International Maritime Organization (IMO) is also in the process of developing a draft international code of safety for ships operating in polar waters (the ‘Polar Code’) and some progress has been made on its provisions.

Enough Law?

Many scholars and policymakers are not sanguine about the adequacy of the existing Arctic governance system, and they call into question the effectiveness of the embryonic regime. There is however a considerable and deep split in thinking about the need for new law. That split reflects the existing political interests and powers of the Arctic states and the states of the Arctic Council, and permanent participants and observers and would-be observers. But it also results from very different views of what promotes effective environmental governance.

Independent of whether new law is indicated few would argue against the need for work to make effective attempts at implementing existing obligations. Arctic stakeholders may benefit from lessons learned elsewhere.

First, in the ongoing developments associated with Arctic cooperation, lessons may come from the successes, and failures, of efforts in other great seas.  The value of looking to other regions may be illustrated for example by the work undertaken for the Arctic marine oil pollution preparedness and response regime, noted above. During the ongoing negotiations, Baltic cooperation on oil pollution preparedness and response under the Helsinki Commission (HELCOM) was offered as a good parallel example from a near-arctic sea with severe ice winters, even if smaller in size. With the signing of the Helsinki Convention in 1974, the coastal countries of the Baltic managed to foster mutual trust in the middle of the cold war period, and create an operational regional response system to pollution incidents. For more than 30 years information on ship accidents and response capacity itself has been shared with a minimum of delay. Joint procedures are tested annually in regional HELCOM Balex Delta pollution response exercises at sea. Importantly, the cooperation has also fostered a framework of financial rights and obligations clarifying the terms of provision of international assistance.  

It should be noted that comparisons of regional seas program effectiveness can be complicated. Dramatically different capabilities of the regions, different economic conditions, and varying ages of initiatives are all at play. The Baltic region is one of considerable resources of all kinds, from financial to technical. Yet many of the Arctic players share these characteristics too. Also, related to the question of whether there is enough law is that of too much law [“treaty paralysis” that overwhelms smaller and less rich nations without capacities to implement—or perhaps even to participate meaningfully—in negotiations]; this does not seem to be a concern for  most Arctic stakeholders.  

Beyond regional seas lessons, the findings of much scholarship and policy analysis on international environmental governance in general underscore the essential role of cooperation among nations which share both economic, but also environmental protection interests. Several decades of analysis suggests that among the ideas meriting additional consideration   are:  exchange of information about best practices across the areas of management responsibility [including but not limited to activities like marine spatial planning and coastal zone management]; even greater public participation; and careful further consideration of Large Marine Ecosystems and other ecological institutional management concepts. In addition experiences recognize the value of policy issue linkages such as in seeing climate change as an opportunity to bring greater visibility to the sea and to attract resources associated with concerns over mitigation and adaptation. “Carbon and the seas” may serve as the focus of a convention that includes the Arctic region states.

Although the Arctic sea already has very strong institutions and traditions for scientific assessments, especially AMAP[6] established in 1991, it is important to further strengthen the Science-Policy connection. As elsewhere this can be done by publishing new information in formats that managers and policy makers can easily access and understand as well as by enhanced sharing of data through use of open source tools and standardized processes. So too efforts to promote information exchange and communication at a national level (e.g. between national focal points) can provide a basis for improving cooperation among the member states.

Perhaps the wisest choice is to selectively and judiciously add new international law[7] while concentrating primarily on implementation of the most important obligations and commitments of the existing cluster. The focus here is converting existing legal obligations to activity that makes a difference in practice; making law work, is the objective.


ENDNOTES

  1. Michael  Beyers, Newkirk Center for Science and Society video presentation, 2010
  2. Koivurova 2013 @ 5 citing ARCTIC MONITORING AND ASSESSMENT PROGRAM, IMPACTS OF A WARMING ARCTIC (2004)
  3. http://www.sciencerecorder.com/news/high-levels-of-molecular-chlorine-discovered-in-arctic-atmosphere/#ixzz2qJXbqFUR
  4. Koivurova and Duyck, 2010@ 184. Also relevant is Article 76 on extended continental shelves. (Beyers 2013)
  5. These zones are not fully fixed.  There are areas where claims are being made and contested. One of the most significant is the claim to the North Pole by Canada. This is an area where Russia and to a lesser extent Denmark have also indicated that they have claim. But Canada met its informal obligation under the ten year deadline of filing in order to justify continental shelf claims beyond the 200 mile limit.
  6. http://www.amap.no/
  7. As to new international law, the future may see an agreement on a high seas protocol, spelling out environmental protection obligations in areas beyond national jurisdiction.  


WORKS CITED
  • Avataq Cultural Institute, 2011, Arctic Chronology, source:
    http://www.avataq.qc.ca/en/Institute/Departments/Archaeology/Discovering-Archaeology/Arctic-Chronology
  • Michael Byers, International Law and the Arctic, Cambridge University Press, Cambridge, 2013
  • Joseph F. C. DiMento and Alexis Hickman, Environmental Governance of the Great Seas: Law and Effect. Edward Elgar, 2012.
  • Timo Koivurova, The Dialectic of Understanding Progress in Arctic Governance,  22 Michigan State International Law Review  1, 2013.
  • Oran Young, If an Arctic Ocean Treaty is not the solution, what is the alternative?, Polar Record 47 (243): 327-334 (2011).
  • Timo Koivurova and Sebastien Duyck. A new ocean to govern: Drawing on the lessons learned in marine management to govern the emerging Arctic Ocean, in David Leary and Balakrishna Pisupati (editors), The Future of International Environmental Law, Tokyo: United Nations University Press (2010), pp 179-200.


Joseph F.C. DiMento, PhD, JD. is Professor of Law, and of Βusiness, Transportation Science,  and Planning at the University of California Irvine.  His areas of research and teaching are in international and domestic environmental law and urban planning and land use. He is the author or co-author of thirteen books, most recently with Alexis Hickman, Environmental Governance of the Great Seas: Law and Effect, EE, 2012;   with Cliff Ellis, Changing Lanes, Visions and Histories of Urban Freeways, MIT Press 2013; with Pamela Doughman, ed Climate Change, What it Means for Us, Our Children and our Grandchildren MIT 2nd ed 2014. He was former director of UC Irvine's Newkirk Center for Science and Society, established in May 2001 with the goal of improving science's response to community needs and to increase the effective uses of scientific results for the benefit of society.

Hermanni Backer, M.Sc. (Marine Ecology) and LL.M (Public International Law), is currently working as the Professional Secretary of the Helsinki Commission responsible for groups related to Maritime activities and Oil response. Over the last ten years he has been working with, and published on, various aspects of marine environmental policy, science and law -including ecosystem approach and marine spatial planning. During 2011-2012 he coordinated the Plan Bothnia project -a trans-boundary Sweden-Finland maritime spatial planning pilot in the Baltic Sea and co-edited with Manuel Frias the award winning book Planning the Bothnian Sea -available through the project website.



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