Arctic Governance: Volume 1: Law and Politics 9781784539627, 9781350985377, 9781786732828

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Svein Vigeland Rottem is Director of the Polar Research Programme at the Fridtjof Nansen Institute – one of the world’s leading Arctic research bodies. He received his PhD in Arctic Political Science from the Arctic University at Tromsø. Ida Folkestad Soltvedt is Research Fellow at the Fridtjof Nansen Institute, focusing on Arctic affairs. She holds an MA in Political Science.

ARCTIC GOVERNANCE Volume 1 Law and Politics

SVEIN

EDITED BY VIGELAND ROTTEM AND

IDA FOLKESTAD SOLTVEDT

I.B. TAURIS Bloomsbury Publishing Plc 50 Bedford Square, London, WC1B 3DP, UK 1385 Broadway, New York, NY 10018, USA BLOOMSBURY, I.B. TAURIS and the I.B. Tauris logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2017 This paperback edition published 2020 Copyright Editorial Selection © Svein Vigeland Rottem and Ida Folkestad Soltvedt, 2017 Copyright Individual Chapters © Geir Hønneland, Øystein Jensen, Arild Moe, Øyvind Østerud, Christian Prip, Svein Vigeland Rottem and Olav Schram Stokke, 2017 Svein Vigeland Rottem and Ida Folkestad Soltvedt have asserted their rights under the Copyright, Designs and Patents Act, 1988, to be identified as Editors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Bloomsbury Publishing Plc does not have any control over, or responsibility for, any third-party websites referred to or in this book. All internet addresses given in this book were correct at the time of going to press. The author and publisher regret any inconvenience caused if addresses have changed or sites have ceased to exist, but can accept no responsibility for any such changes. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. ISBN: HB: 978-1-7845-3962-7 PB: 978-0-7556-0112-7 ePDF: 978-1-7867-3282-8 eBook: 978-1-7867-2282-9 Series: Arctic Governance, volume 1 Typeset by OKS Prepress Services, Chennai, India To find out more about our authors and books visit www.bloomsbury.com and sign up for our newsletters.

CONTENTS

Illustrations Introduction Part I

1

Governance

1. The Dynamics of Arctic Development Arild Moe 2. Geopolitics and International Governance in the Arctic Øyvind Østerud and Geir Hønneland 3. Pros and Cons of Institutional Complexity: The Case of Arctic Governance Olav Schram Stokke 4. The Arctic: Environmental Security or Multi-Level Governance? Olav Schram Stokke Part II

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9 23

45 73

Law of the Sea

5. The Law of the Sea and the Arctic Environment Olav Schram Stokke

91

6. Take it to the Limit: Defining the Continental Shelf in the Arctic Øystein Jensen

107

7. Towards a Legal Regime for Arctic Navigation Øystein Jensen

133

8. The Polar Code and the Law of the Sea Øystein Jensen

151

vi Part III

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS The Arctic Council

9. The Arctic Council Between National and International Governance Svein Vigeland Rottem

181

10. The Arctic Council and Biodiversity Christian Prip

205

11. The Arctic Council: Challenges and Recommendations Svein Vigeland Rottem

231

Epilogue

251

Bibliography Index

253 267

ILLUSTRATIONS

Maps Map of the Arctic

ix

Map 8.1 Geographical application of the Polar Code in the Antarctic, as defined in SOLAS regulations XIV/1.2.

157

Map 8.2 Geographical application of the Polar Code in the Arctic, as defined in SOLAS regulations XIV/1.3.

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Map of the Arctic: Claes Lykke Rgner/FNI, 2017

INTRODUCTION

Since the end of the Cold War, there have been two ‘waves’ of interest in the Arctic in international politics, both politically and academically. ‘The age of the Arctic’ commenced in the early 1990s as former adversaries in the East and West agreed to cooperate in this highly securitized area. It started within specific sectors, especially environmental protection and science, as well as in different sub-regions, such as the Barents Euro-Arctic Region, and culminated with the establishment of the Arctic Council in 1996. The second wave, ‘the scramble for the Arctic’, took hold when a Russian scientific expedition planted a Russian flag on the seabed at the North Pole in August 2007. Widely perceived as a Russian demonstration of power in the Arctic, it coincided with the summer ice melt in the Arctic Ocean which by then had reached ominous proportions. There was growing interest moreover in the possibility of prospecting and developing oil and gas resources and using new shipping lanes in the Arctic. An image was created of an anarchic Arctic without law or order, where states could grab as much as they wanted and lay claim to it. But was this a true description? This is what political scientists and international lawyers have been trying to explore. What is the legal and political order in the Arctic, and how effective is it? What are the prospects for resource development and commercial activity? What are the interests of Arctic states and other stakeholders in the region, and how far will they go to defend them? In the wake of the ‘second wave’ of interest in post-Cold War Arctic politics – from around 2007 – the number of publications on Arctic politics has, naturally, increased. Apart from articles in scientific journals, books of general interest have predominated, often promoting a rather alarmist view. A few monographs have appeared, but mostly of limited scope

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geographically (e.g. restricted to the Arctic politics of a particular state) or thematically (e.g. energy). What has been lacking is a more comprehensive, yet also detailed, presentation of integrated themes surrounding developments in the Arctic. Arctic Governance I: Law and Politics is the first of three books where we bring together quality research from the Fridtjof Nansen Institute (FNI) on Arctic issues from some of the most important academics in the field. The FNI is a Norwegian foreign policy and international law research institute located in what used to be the home of Polar explorer and Nobel Peace Prize laureate Fridtjof Nansen (1861–1930). For each of the last three years, the Norwegian Research Council has awarded the institute top place in the field of academic publishing in competition with all the other Norwegian research institutes, across all academic disciplines. Internationally, the FNI is recognized as a major centre of excellence in the law of the sea and Arctic governance. Research on international law and political cooperation in the Arctic has deep roots at the FNI, with the emphasis on environment, energy, fisheries, marine transport, health, security and jurisdictional issues. The FNI monitors Arctic-related processes and cooperation continually, both at circumpolar and regional levels. More recently, the Arctic interests of Asian nations have been an important area of study. The Arctic Governance series will bring together contributions from FNI researchers to the debate about ‘the scramble for the Arctic’. A distinguishing feature of this book series is that it presents research from a tightly integrated group of people studying the same geographical area, albeit with different thematic fields of specialization and from different theoretical angles. In recent years, researchers at FNI have published several books, journal articles, book chapters and reports on (i) the political and legal architecture of the Arctic; (ii) the politics of energy, marine living resources and shipping in the region; and (iii) Arctic policies of different states, especially Norway, Russia and Asian states. The different chapters in the book series will largely build on previously published research in academic journals, reports and chapters in edited volumes (and, in a few instances, chapters in a monograph). It should, however, be emphasized that none of the chapters in this book are identical to the original book chapter or journal article that they are based on; they have all been revised to fit the format of the new series. Some of the more ‘classical’ contributions are only slightly updated and revised. Others have gone through extensive revisions and updates. The extent of these revisions is explained in every chapter. A key point is to show the breadth of FNI’s contributions to the academic debate on the ‘new’ Arctic. Contributions range from general surveys to detailed explorations of narrower issues.

INTRODUCTION

3

In this first book of the three-volume series, the political and legal architecture of the Arctic is in focus. The book is divided into three sections dealing with, respectively, (i) Arctic governance in general; (ii) the Law of the Sea; and (iii) the Arctic Council. Each part consists of three or four chapters, going from the more general to the more detailed. Chapter 1 is by Senior Research Fellow, Arild Moe, a leading expert on Arctic energy and shipping for more than three decades. Taking stock of the development in the Arctic, he asks what the prevailing view of the situation in the Arctic is before giving a broad account of developments in the fields of climate change, commerce and industry, shipping and international cooperation in the region. The next chapter is written by Geir Hønneland, Director of the FNI and an expert on fisheries management in the Arctic, Norwegian High North politics and Russian Arctic identity, and Øyvind Østerud of the University of Oslo and chair of the FNI board of directors. Addressing the heated political discussion of recent years, in the scholarly literature as much as in real life, they tell the story of a region evolving from a potential conflict zone during the Cold War to an arena of international cooperation immediately after. New fears of conflict arose in the mid-2000s, this time related to the region’s natural resources. Chapter 2 explores how the research literature balances these prospects. These rather broad introductions are followed by three chapters written by Olav Schram Stokke, Professor at the Department of Political Science, University of Oslo, and Research Professor at the FNI. Stokke is widely considered for nearly three decades as one of the leading scholars on Arctic affairs. His expertise spans from political architecture and regime interplay in the Arctic to fisheries management and Asian states’ Arctic politics. In Chapter 3 he argues that the conditions are favourable for an adaptive and peaceful management of the Arctic. While globally applicable regimes such as those based on the Law of the Sea Convention offer the best protection of the Arctic environment, regional institutions too can do much to strengthen regulations and implementation. Chapter 4 develops the idea of Arctic institutional complexity as a predicament of Arctic governance, arguing that major economic, political and environmental changes in this region are strongly affected by external processes and non-Arctic players. The second section of the book starts with a revised version of one of Stokke’s most cited contributions to the literature on Arctic governance. Stokke argues against a comprehensive legally binding Arctic environmental regime (an ‘Arctic Treaty’) not least because many of the environmental concerns are already regulated by global or regional treaties. The best solution, he contends,

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would seem to be a flexible approach to norm-building that seeks productive interplay with existing institutions, including the Arctic Council. Senior Research Fellow, Øystein Jensen, an international lawyer specializing in the legal order of the Arctic, especially the delimitation of the Arctic continental shelf and the legal regime for shipping in the Arctic, has three contributions in this book. His first contribution (Chapter 6) is about the establishment of continental shelf limits beyond 200 nautical miles (nm) in the Arctic Ocean, focusing on the legal framework of the Law of the Sea Convention, and addressing state submissions to the Commission on the Limits of the Continental Shelf. In his second chapter (Chapter 7) he gives an introduction to navigational issues in the Arctic context and describes how the ‘Guidelines for Ships Operating in Arctic Ice-covered Waters’ came into being. He also analyzes key elements and the structure of the regulations. The chapter is a slightly revised version of a work that was first published in 2008. His findings on these issues are widely cited and it is one of the most important references to understanding the development of regulations on Arctic shipping. In extension of this, Jensen examines, in Chapter 8, the most recent instrument specifically designed to make navigation in polar waters safer and more environmentally friendly, the International Maritime Organization’s ‘International Code for Ships Operating in Polar Waters’ – the Polar Code. In the last section of this book we take a closer look at the role of the Arctic Council in Arctic governance. Svein Vigeland Rottem, head of the FNI’s Polar Programme and an expert on Arctic governance in general and the Arctic Council in particular, has written two of the chapters in this section. In the first (Chapter 9) he describes the role of the Arctic Council, using the 2013 Agreement on Oil Spill Preparedness and Response to shed light on opportunities and challenges facing the Council in the interface between international and national regulations. He asks what the Arctic Council’s role in Arctic governance is and can be. The second chapter (Chapter 10) in this section is written by Senior Policy Analyst, Christian Prip. Prip holds a Master’s in Law and is an expert in international environmental policy and law with a particular interest in biodiversity and natural resources management. In recent years he has worked more specifically on Arctic environmental governance and the Arctic Council. Discussing biodiversity as one of the focal areas of cooperation under the Arctic Council, he laments the lack of cooperation mechanisms to translate scientific findings into joint and unified action by the Arctic states. Decision making powers and instruments are needed, whether in the form of hard or soft law.

INTRODUCTION

5

The final chapter (Chapter 11) of the book is written by Rottem. Acknowledging the widening of the Arctic Council agenda the main question is what the Council can do to adapt to this development. The chapter offers three suggestions: formulate a clearer vision; take a closer look at coordination and restructuring; and arrange an annual Arctic Week under the auspices of the Arctic Council. We would like to take this opportunity to thank all of the contributors to the book. Thanks also to Tomasz Hoskins and Arub Ahmed at I.B.Tauris for timely and precise information during the project. A special thanks, however, goes to the Director of FNI, Geir Hønneland, for suggesting the idea of a collection of FNI contributions. Svein Vigeland Rottem, Ida Folkestad Soltvedt, Lysaker, September 2017

PART I GOVERNANCE

CHAPTER 1 THE DYNAMICS OF ARCTIC DEVELOPMENT Arild Moe1

Introduction The Arctic is undergoing change, some changes are abrupt, others more gradual. Important also are the changing perceptions of the Arctic. This chapter takes stock of the development in the Arctic with the overarching aim to answer the question: What is the prevailing view of the situation in the Arctic compared with commonly held views a decade or so ago?

The Natural Environment and Climate Change The most visible and striking change in the Arctic over the last decade has been the shrinking ice cover caused by global warming. Over the last three decades the ice cover in September – when it is at its smallest – has shrunk by about 30 per cent.2 Other dramatic climate related impacts are increasing runoff from the Greenland ice cap, melting permafrost and extreme weather. The Arctic undergoes annual seasonal changes more dramatic than found elsewhere.3 The temperature in some places can vary by 50 degrees Celsius in the course of the year. The extent of sea ice reduces by approximately 70 per cent from winter to summer and the land that is covered by snow in winter experiences rich flora during the summer months. Fauna and flora have adapted to the seasonal variations, but not necessarily to the longerterm climate changes. The average temperature in the Arctic is increasing twice as fast as elsewhere in the world. But even if some changes are affecting the whole Arctic, it is important to know that conditions in different parts of

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the Arctic vary widely. Some would say there is not one Arctic, but many Arctics. Most of the Norwegian part of the Barents Sea is, for instance, not affected by ice, unlike other parts of the Arctic at the same latitudes. In the ocean, the ice-covered area grows and shrinks throughout the year, reaching a maximum in March and a minimum in September. The minimum area has in recent decades been shrinking at the rate of about 10 per cent per decade, but with large annual variations. The minimum sea ice in 2014 was the sixth-smallest in recorded history.4 If this trend continues, the Arctic Ocean will be nearly ice-free in late summer within the next few decades. Sea ice plays a critical role in the lives of large animals, like polar bears, seals and walruses, as well as for the algae and plankton on which many Arctic birds, whales and fish stocks depend. Numerous ecosystems, on land and in the ocean, are found exclusively in the Arctic. The Greenland ice sheet is also losing mass over time, since more ice is ‘calving’ from the glaciers than new ice being formed. Whereas the waters surrounding Greenland are infested with icebergs, other areas of high Arctic activity, such as the Norwegian coast, are not affected. Both the considerable climate variability and longer-term climate trends affect the prospects for economic activity over time. In the ocean, the reduction in sea-ice cover facilitates shipping, but higher air temperatures reduce permafrost and threaten to soften the ground, enough to hamper land-based transport and construction. In the atmosphere, the pressure difference between North Atlantic and Arctic air systems can cause severe winter weather in Europe and eastern North America at the same time as the Arctic itself experiences very mild weather. Similar effects are at play in Asia.

Industrial Development Expectations for economic development grew rapidly in the early 2000s. In 2008 the United States Geological Survey (USGS) estimated that the Arctic might contain 13 per cent of the world’s undiscovered oil and 30 per cent of its undiscovered gas.5 Of these hydrocarbon resources, 84 per cent were believed to be offshore, mostly in waters less than 500 metres deep. The resources are not evenly distributed: the highest concentrations are expected to be in north of Alaska and in the western part of Russia’s Arctic. Russia’s expected hydrocarbon resources in the Arctic are the largest outside of the OPEC countries. The resources listed in these assessments are undiscovered – a fact often overlooked. They are geological probabilities based on sometimes relatively weak data and comparisons with other regions with similar geological

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structures. Extensive and long-term exploration is required to actually locate and confirm reserves. Also, the assessments are based on the criterion that the resources can be extracted with the use of existing technology, but they do not take into account cost factors. As always with assessments of mineral resources – what can actually be produced is dependent on the relationship between the extraction cost and the international price of the commodity.6 The numbers from USGS continue to be misunderstood and misused, and with the unconventional gas and oil revolution, which to a large extent has happened after 2008, the percentage base in the USGS assessments becomes almost meaningless since it includes only the world’s undiscovered conventional resources. Nonetheless, there is a high potential for large mineral resources in parts of the Arctic, which remains a basic driver for industrial interest in the region. A decade ago, the development of hydrocarbons offshore and new onshore mineral projects was expected to take off. In 2008 Russia’s Gazprom, Total of France and Statoil from Norway agreed to jointly develop the giant Shtokman gas condensate field in the Russian part of the Barents Sea. The project was huge in itself, but the companies also saw it as a bridgehead to the development of additional Arctic fields, which were regarded as a major future source of supply for the Atlantic LNG market as well as pipeline gas to the European continent.7 After spending more than US $1 billion in preparations, the companies concluded in 2012 that the project would have to be stopped. There were problems along the way, cost increases and disagreement over technical solutions; but it was the gas market that was the straw that broke the proverbial camel’s back. The rapid expansion of shale gas production in the United States took the whole world by surprise. The US went from being the world’s largest importer of LNG to becoming a prospective exporter. This also had repercussions for other markets, since producers of LNG who had ramped up their output plans in anticipation of booming US imports now had to look for other outlets; for example in Europe, putting pressure on the price, and not least changing the long-term price outlook, which was vital for Shtokman and other expensive Arctic projects. Whereas the shale gas revolution with ensuing over-supply and falling prices made much of the Arctic gas unprofitable, Arctic offshore oil was still regarded as commercially attractive. However, increasing costs and technological complications made the oil companies less aggressive than expected and the speed and force of Arctic offshore oil development have abated in recent years. This is especially true for Alaska, but also in other parts of the Arctic there are concerns over costs – partly caused by stronger

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attention to environmental protection. Rising costs are a problem for the oil industry everywhere, but particularly painful in areas that already have high cost and perhaps marginal profits like the Arctic. A prime example of the complications was the repeated delays in Shell’s drilling campaign in the Alaskan offshore. The company withdrew from the Alaskan offshore in 2015, after having spent some US $7 billion there.8 Lower intensity in Arctic offshore development was well underway when the oil price was high. With oil prices well under US $100 per barrel, the speed of development is expected to decrease further. Oil companies maintain that the present low oil price does not affect exploration plans, since that process will take years and if results are positive, commercial production can only be envisaged some 15 –20 years into the future. Logically, it is the price at that point and further on that matters, and not today’s prices. Nevertheless, the current low oil price is affecting the financial situation of oil companies and is making them scale back costly exploration projects. Some will also argue that in an emission-constrained world, regulations that will affect the profitability of oil production are likely to be in place at the time Arctic fields have come on stream – something that changes the commercial calculations for long-term investment today. An argument in favour of development of Arctic petroleum has been diversification of supply sources. This is still a valid argument for some countries, but in general, ample supplies of oil and gas from other regions mean that the Arctic has lost some of its significance in this regard. Big consumers like China and India have a wider choice of suppliers now, and even if interested in more diversification, it seems unlikely that they would pay more for supplies from one particular region than from others. There are big differences in the role of the government as well as organization of offshore petroleum activity in the various Arctic coastal states. In the US, Canada and Greenland the initiative is clearly in private hands. In Norway and Russia, the state is more directly involved, through its ownership in dominant companies as well as state development priorities. But in all countries national policies are important, pushing or holding back development, and each major investment project has its specifics. In the Alaskan Arctic, security of supply and diversification of supplies used to be important political arguments favoring rapid offshore expansion. They have more or less disappeared now, which means that environmental counter-arguments have, in relative terms, become stronger. Nonetheless, it is the commercial assessment, as mentioned above, that is most important. In Canada there is no political push for Arctic offshore development. The oil industry in Alberta in southern Canada is booming and there are

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complications related to devolution of governance to the territories in the Canadian North which introduces an element of uncertainty in development, even if the offshore resources themselves are under federal jurisdiction. Also in Canada there is resistance on environmental grounds. The strongest public support for increased activity seems to be in Greenland, as petroleum development is regarded as a prerequisite to establish a self-sustained economy – and on that basis, full independence from Denmark. But in Greenland also, there is a debate on the merits of offshore expansion. In Norway, where petroleum production is the biggest sector of the economy, a logical argument for Arctic expansion is the need to sustain the oil industry, as production in fields further south is declining. But a strong environmental opposition has led to limiting areas which are to be opened for exploration and an increasingly heated debate related to the environmental consequences of continued reliance on petroleum is taking place. Russia is highly dependent on petroleum revenues and the Arctic has been proclaimed as the resource base of the twenty-first century. The environmental opposition to Arctic drilling is minimal in Russia. After long hesitation and contradictory policies, a series of agreements were concluded between the state-controlled oil company Rosneft and Western oil companies to explore and ultimately develop Arctic’s offshore resources. Of these partnerships the alliance with ExxonMobil was the largest. The sanctions imposed by the US and EU after Russia’s annexation of Crimea and support to separatists in Eastern Ukraine have more or less brought the Arctic offshore campaign to a stand-still, after very promising results were received in the first well drilled in the Kara Sea in August 2014. Rosneft maintains that it has alternative partners who can replace the Western majors, but there is much uncertainty of how reliable this claim is. In any case, Russia must also reconsider its policies in light of the low oil prices and it also has onshore alternatives that may be commercially more attractive.

Shipping The Northern Sea Route (NSR) is the Russian term for the sea route between the Kara Gate in the west and the Bering Strait in the east – out to 200 nautical miles. It overlaps with, but is not the same as, the Northeast Passage – the historical term for the sea passage between the Atlantic and the Pacific, north of Russia. Russia has established regulations for shipping in the NSR area based on Article 234 of the 1982 United Nations Convention on the Law

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of the Sea (UNCLOS), which gives the coastal state special regulatory rights in partly ice-covered areas, as well as historical rights. Russia opened the NSR for international traffic in 1991, but little happened because the shipping industry found the environment too harsh and the commercial terms unattractive, despite the obvious lure of the sea route – shorter distance and reduced sailing time between the Pacific and the Atlantic. Less than ten years ago there was still no international traffic along the NSR. But climate change and less sea ice had made the shipping industry pay closer attention. Starting 2009, Russia began to offer more attractive commercial and administrative terms for usage of the route. This led to a rapid increase – in relative terms – of transit traffic on the route.9 Expansive projections of traffic growth were forecasted in Russia, which had great expectations for the commercial attractiveness of the route. Non-Arctic states, notably China and Korea, also saw a big potential. However, closer scrutiny of the voyages that have taken place reveals considerable reluctance by the shipping industry to commit to use of the route. Uncertain commercial conditions and better understanding of the natural limitations have led to more sober assessments of the international transit potential. Only a small share of the traffic on the NSR is international transit between ports in the Atlantic and the Pacific; some 15 voyages in 2013 and about 5 –6 in the years 2014 and 2015. Most of the traffic on the NSR takes place within Russia or between ports in Russia and abroad, which is referred to as ‘destination shipping’. The potential for growth in this segment is related to the prospects for raw material projects in the Russian North, particularly hydrocarbon projects. The Yamal LNG project, which is based on regular shipments on the NSR throughout the year, has movement eastwards to the North Pacific in the most benign summer season and westwards to Europe in the winter, projected to start at the end of 2017. Some onshore oil projects are also developed with shipment by sea, but the speed of development will depend on the market outlook. The Northwest Passage (NWP), north of Canada and Alaska, may look like an interesting option on the map. This passage is, however, marked by strict depth limitations and more severe ice problems than the NSR. Indeed, ice problems have increased because more drifting ice – caused by climate change – tends to be transported into Canadian waters. The Canadian government does not want to promote the route while there is a pending dispute with the US over its status.10 The sailings taking place are occasional, and regular international transit is not on the horizon. In the longer-term, transit across the Arctic Ocean will be possible. Such sailings would be independent of the Russian administration of NSR, but not

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without complications. Even if ice-free summers in the Arctic are envisaged a few decades from now, predictions are that there will be annual variations. Some summers may still see much ice. Going through the ice with icebreakers may be possible, but costly, and of course the winter season will still have thick ice. Thus, basing trade on this route may be risky. And sailings that would take place will have a serious safety challenge, due to the distances from shore.

Regulations of Shipping According to the UNCLOS, all states have the right to establish territorial seas out to 12 nautical miles from their baselines. Within this limit, the coastal state has sovereignty over the sea, seabed and the airspace. However, the Convention, which was concerned about the conditions for international shipping, ensures that ships from all states have the right to innocent passage through the territorial seas. Coastal states may also establish exclusive economic zones (EEZs), to 200 nautical miles from the baselines,11 but they do not affect the passage of ships, except in the case of partly icecovered areas, as mentioned above. Negotiations on a Polar Code that would specify and harmonize construction, design, equipment, training and environmental protection in partly ice-covered waters began in the early 1990s. The first outcome was a set of non-mandatory Guidelines for Ships Operating in Arctic Ice-covered Waters, approved in 2002. Very important were the standards for classifying ice and wintering capabilities of vessels (polar classes). A binding Polar Code was adopted by the International Maritime Organization in November 2014 and made mandatory under both the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL), because it contains both safety and environment-related provisions.12 The Polar Code entered into force on 1 January 2017. Even if adoption of the code was a very important step, the code will need further development to cover all relevant aspects of Arctic shipping.

International Cooperation in the Arctic – the Arctic Council The Arctic cooperative structure – with the Arctic Council in the lead – was established in a period of low tension between Russia and the West. The Council was set up in 1996 as a high-level forum to address environmental and indigenous issues. States with territories above the Arctic Circle became members, whereas organizations representing the indigenous people of the

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North got the status of Permanent Participants aimed at securing a central role for them in the Council’s deliberations.13 It works by consensus and has no regulatory power. The Netherlands, Germany, the United Kingdom and Poland were admitted as permanent observers on the Council in 1998; later, France and Spain followed. Until a decade ago, the Arctic was low on the international political agenda, despite growing attention to the energy resources, and the Arctic Council was not active. But interest in the region from outside, particularly by the EU and China, and proposals to establish an international treaty for the Arctic, prompted the Arctic coastal states to reaffirm the basic rules of the game in the region – namely the UNCLOS – in the Ilulissat declaration of 2008. When, after 2008, Asian states China, Japan, Korea, Singapore and India, along with Italy and the EU, requested observer status, the proposal was met with resistance among several member states who did not want to let in more ‘outsiders’. The arguments against was that more observers would infringe on national jurisdiction in the Arctic, whereas the supporters of new observers maintained that the Arctic could not be closed and that non-Arctic states would have interests in the region – for instance through shipping – even if most of the Arctic might be under jurisdiction of the coastal states.14 A temporary solution was found as the new applicants were admitted as observers on an ad-hoc basis, but discussions over permanent observer status continued until the Kiruna meeting in 2013 and after the Council had adopted a set of criteria for observers.15 At the ministerial meeting in Kiruna, the applicants were admitted as observers, with the status of EU pending, because of the conflict with Canada over trade in seal-skin products. Since then, finding a proper role for the observers has been an ongoing discussion. Even if the participation of nonArctic states in the workings of the Council has not found its final form, it is argued that the ‘legitimacy’ of non-Arctic participation is now quite widely accepted. The Arctic Council has also over the last few years seen increased institutionalization, with the establishment of a permanent secretariat. The negotiations of two binding agreements among the member states are also important in this respect. The Agreement on cooperation on Aeronautical and Maritime Search and Rescue in the Arctic was signed by the members in 2011 and the Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic in 2013.16 These agreements, adopted by the members, since the Council cannot make binding decisions, also signaled a widening of the thematic scope. There are different opinions

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on how the Council should be developed further; but it remains the only regional forum which includes all the Arctic states.

The Legal Situation and the Continental Shelf Not long ago, a common perception was that the Arctic was filled with unresolved border conflicts and contested areas. This was not correct, but led to dire predictions of conflict by some observers. The phrase ‘race for Arctic resources’ was widely used. In fact the UNCLOS codified a legal situation where seabed resource exploitation in the Arctic Ocean is the concern – almost exclusively – of the five littoral states: Russia, Canada, United States, Denmark/Greenland and Norway. They were given extensive rights to living resources within the EEZs as well. According to the Convention, coastal states automatically have a continental shelf of minimum 200 nm, which may extend to a maximum of 350 nm from baselines, provided the geological connection to the mainland can be established. The deep seabed beyond the national shelves is governed by the International Seabed Authority (ISA), set up by the UNCLOS. UNCLOS established the Commission on the Limits of the Continental Shelf (CLCS) to review documentation from the coastal states of the outer limit of their continental shelves (outside 200 nm). The submission of applications to the commission have, by some, been termed a race, but the process was in fact set in motion by the requirement of having the documentation submitted within 10 years of the enforcement of the Convention, for the state in question. Particular attention has been given to Russia’s claim. Russia submitted its documentation on 20 December 2001. In effect Russia claimed sovereign rights over resources on the seabed area of some 1.2 million sq km outside the 200-mile line. The argument was that ridges on the seabed were geologically linked to the mainland. The commission found the substantiation of the Arctic claim insufficient and asked for more information. Since then, comprehensive research expeditions have been organized to collect data. Interestingly, there have been several instances of data exchange and scientific cooperation with other Arctic states in this effort,17 and Russia has relied on foreign companies to carry out some of the geological work. In August 2015 a new documentation was submitted by Russia to the Commission.18 Norway presented its documentation in 2006 and it was accepted in 2009, thereby being the only Arctic state to get it so far.19 Denmark, with Greenland, made submissions in December 2014.20 The Danish claim, as well as the announced future Canadian claim, overlaps with the Russian claim. This has led some observers to predict a

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potential area of conflict. But dispute does not necessarily mean conflict. First, there is the possibility of several rounds with the commission. That could take decades – and in any case the commission will not decide on conflicting claims; they will have to be settled bilaterally. But even if at the end of the day, it is clear that claims in the Arctic cannot be reconciled or substantiated, all Arctic states may see it in their interest to leave it like that – agree on disagreement, and go on with their business. Apart from a shared interest in preserving the UNCLOS in the Arctic, also a realistic assessment of economic interests should tell that a conflict is not worthwhile. The seabed areas which may be contested are, after all, very deep. It seems unlikely that industrial activity there can become profitable in many decades. And the most authoritative and much-cited assessment of Arctic mineral resources, from the US Geological Survey, maintains that most resources are likely to be found in relatively shallower waters, within the 200-mile limit. Most of these uncontroversial continental shelves are virtually unexplored and it should logically happen first.

Military Developments During the Cold War, the Arctic played an important role in mutual nuclear deterrence between the Soviet Union and the United States. Nuclear submarines with inter-continental missiles were stationed under the ice and hunter-killer submarines were deployed to control the strategic submarines. With the lowering of tensions between East and West, military activity in the Arctic has drastically reduced, even though the deployment of strategic weapons did not end. The emergence of security threats in other parts of the world also helped to turn attention away from the Arctic. In the early 2000s relations between Russia and the West, particularly the US, started to deteriorate, and discussions of possible military conflict in the Arctic reappeared. This coincided in time with the discovery of hydrocarbon reserves and economic potential in the region. The Arctic coastal states, as also other states, adopted Arctic strategies or similar documents where they highlighted their interest in the region, also stressing the need for peace and cooperation, but at the same time maintaining that some security measures were warranted to protect their territories and interests.21 Thus, all Arctic coastal states took steps to enhance military presence in the region. These steps were rather limited though. As concluded in a report from SIPRI: ‘The overall picture is one of limited modernization and increases or changes in equipment, force levels and force structure.’ It is argued that they have nothing to do with power projection. Rather, they are measures to patrol and

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protect national territories against illegal activities. Also, military vessels are used to support civilian research expeditions;22 and even if military activity has increased compared to 10 –15 years ago, it is still low compared to Cold War times. But there has been another significant shift which has graver security implications. The level of trust is quite different from what it was in the 1990s. This means that the ‘interpretation’ of military activity by other states has changed. Rather than accepting statements of the defensive role of military hardware at face value, all military moves are now watched with great suspicion. Developments in the Arctic have elements of a security dilemma – where one state’s actions to become more secure increases another state’s insecurity. And insecurity about the opponent’s intentions may lead to new military moves escalating the insecurity.23 Recent years have seen dramatic rhetoric from several quarters, especially Russia and Canada. Even if it is meant primarily for a domestic audience, it does not improve mutual trust internationally. It is still difficult to see the basis for military conflict within the Arctic region. However, the question is if a spill-over from conflict elsewhere is conceivable. Contact and communication is vital to prevent escalation of distrust. The Arctic lacks a forum for discussion on security issues as the Arctic Council explicitly excluded hard security issues from its agenda when it was established. The establishment of the informal ‘Arctic Security Forces Round Table’, which included all the eight Arctic states as well as others, in 2011, was an attempt to build mutual confidence. But by 2014 Russia was not invited or was unwilling to participate.24

The Normalization of the Arctic? As outlined above, changes have been taking place because of developments within the Arctic, but also because of processes outside the region. From being regarded almost like a restricted area, the Arctic has become a global concern. An important role is played by perceptions, and these are closely linked to awareness and knowledge. Over the last ten years or so there has been a tremendous increase in awareness in the media, in the general public and in knowledge among researchers. Arctic issues are now being discussed with more realism and business has moved from expecting a bonanza to more sober assessments of the potential. Links between the Arctic and global processes are better understood. Newcomers to the Arctic realize that engagement in concrete activities must be based on bilateral relations with Arctic states. At the same time, it is increasingly recognized

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that non-Arctic states have legitimate interests and rights in the region. From being seen by many as a hazy, unexplored, distant area, the Arctic has emerged as a region fairly well-organized and integrated in world affairs. The Arctic has its peculiarities and specific features and challenges, but is becoming a more normal part of the world.

Notes 1. This chapter is a revised version of Arild Moe, ‘The dynamics of Arctic development’, in V. Sakhuja and K. Narula (eds), Asia in the Arctic (Singapore, Springer, 2016), pp. 3 –13. It appears here with kind permission from Springer. 2. National Snow & Ice Data Center (NSIDC), ‘Climate Change in the Arctic’. Available at https://nsidc.org/cryosphere/arctic-meteorology/climate_change. html [Accessed 18 February 2017]. 3. These paragraphs on the natural environment are based on Fridtjof Nansen Institute and DNV, Arctic Resource Development: Risks and Responsible Management (Oslo, Fridtjof Nansen Institute, 2012). 4. National Snow & Ice Data Center (NSIDC), ‘Arctic Sea Ice News and Analysis’. Available at http://nsidc.org/arcticseaicenews/ [Accessed 2 February 2015]. 5. Donal L. Gautier, ‘Assessment of undiscovered oil and gas in the Arctic’, Science, 324/5931 (2009), pp. 1175 – 9. 6. Dag Harald Claes and Arild Moe, ‘Arctic petroleum resources in a regional and global perspective’, in R. Tamnes and K. Offerdal (eds), Geopolitics and Security in the Arctic: Regional Dynamics in a Global World (London, Routledge, 2014), pp. 97 – 120. 7. Arild Moe, ‘Russian and Norwegian petroleum strategies in the Barents Sea’, Arctic Review on Law and Politics 1/2 (2010), pp. 225– 48. 8. Clifford Kraus and Stanley Reed,‘Shell Exits Arctic as Slump in Oil Prices Forces Industry to Retrench’, New York Times (28 September 2015). Available at https:// www.nytimes.com/2015/09/29/business/international/royal-dutch-shell-alaskaoil-exploration-halt.html?_r¼0 [Accessed 24 February 2017]. 9. Arild Moe, ‘The Northern Sea Route: Smooth sailing ahead?’, Strategic Analysis 38/6 (2014), pp. 784– 802. 10. Suzanne Lalonde and Fre´de´ric Lasserre, ‘The position of the United States on the Northwest Passage: Is the fear of creating a precedent warranted?’, Ocean Development and International Law 44/1 (2013), pp. 28 – 72. 11. United Nations Convention on the Law of the Sea, 10 December 1982, art. 57. 12. International Maritime Organization, ‘IMO adopts mandatory code for ships operating in polar waters’, press briefing (21 November 2014). Available at http://www.imo.org/MediaCentre/PressBriefings/Pages/38-nmsc94polar. aspx#.VLY9XjrKx9A [Accessed 18 February 2017]. 13. Torbjørn Pedersen, ‘Debates over the role of the Arctic Council’, Ocean Development and International Law 43/2 (2012), pp. 146 – 56. 14. Olav S. Stokke, ‘Asian stakes and Arctic governance’, Strategic Analysis 38/6 (2014), pp. 770–83.

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15. Arctic Council, Observers (28 July 2016). Available at http://www.arctic-council. org/index.php/en/about-us/arctic-council/observers [Accessed 18 February 2017]. 16. Svein Vigeland Rottem, ‘A note on the Arctic Council agreements’, Ocean Development and International Law 46/1 (2015), pp. 50 – 9. 17. Betsy Baker, ‘Law, science and the continental shelf: The Russian Federation and the promise of Arctic cooperation’, American University International Law Review 25/2 (2010), pp. 252 – 81. 18. United Nations Division for Ocean Affairs and the Law of the Sea, ‘Commission on the Limits of the Continental Shelf (CLCS). Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Partial revised by the Russian Federation’ (1 December 2015). Available at http://www.un.org/depts/los/clcs_new/submissions_files/submissi on_rus_rev1.htm [Accessed 2 February 2017]. 19. Øystein Jensen, ‘Towards setting the outer limits of the continental shelf in the Arctic: On the Norwegian submission and recommendations of the Commission’, in D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation – IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Leiden, Martinus Nijhoff Publishers, 2010), pp. 519 –38. 20. IBRU: Center for Borders Research, ‘Denmark/Greenland make Arctic Ocean continental shelf submission’ (15 December 2014). Available at https://www.dur. ac.uk/ibru/news/boundary_news/?itemno¼23226 [Accessed 18 February 2017]. 21. Lassi Heininen, ‘State of the Arctic strategies and policies – a summary’, Arctic Yearbook (2012). 22. Siemon T. Wezeman, Military capabilities in the Arctic, SIPRI Background Paper (Stockholm, SIPRI, 2012). ˚ tland, ‘Interstate relations in the Arctic: An emerging security 23. Kristian A dilemma?’, Comparative Strategy 33 (2014), pp. 145– 66. 24. US European Command, ‘US, Norway co-host 4th annual Arctic Security Forces Roundtable’ (28 August 2014). Available at http://www.eucom.mil/medialibrary/article/26802/us-norway-co-host-4th-annual-arctic-security-forcesroundtable [Accessed 18 February 2017].

CHAPTER 2 GEOPOLITICS AND INTERNATIONAL GOVERNANCE IN THE ARCTIC Øyvind Østerud and Geir Hønneland1

Introduction The Arctic has been the object of heated political discussion in recent years, in the scholarly literature as in real life. The Arctic icecap is melting, and scientists are uncertain about how this will affect ecosystems. Moreover, considerable deposits of yet-undiscovered oil and gas are believed to exist in the Arctic. Who is to extract the oil when the ice disappears? Who shall control the new shipping routes that are opening up? Will inter-state conflict emerge – is a ‘scramble’ for the Arctic underway? In this chapter, we confront basic research trends in the international relations (IR) literature with an outlook on recent geopolitical transformations in the Arctic. To what extent does the literature reflect major turning points in Arctic international politics over the past decade? We start with a review of recent transformations in international politics in the Arctic, including brief overviews of territorial conflicts, the new strategic environment and new patterns of cooperation among and between Arctic states. Then we examine the English- and French-language literature on international Arctic politics, reviewing it through the lenses of the three major schools of international relations: realism, institutionalism2 and constructivism, with an eye to geopolitical elements. Institutionalism is basically concerned with common interests, norms and spheres of cooperation, also in contexts where international realism identifies economic rivalry and the potential for zero-sum security games. Classical geopolitics, as a brand of realism, offers a more conflict-oriented interpretation

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of the territorial imperatives and border issues connected to state sovereignty. Classical geopolitics connect state power and interstate rivalry to geographical space, location and transport technology, seeking to explain international behaviour and state policy in terms of geographical variables.3 What has been called critical geopolitics – influenced by discourse analysis and social constructivism – is more concerned with the political implications of cartographic representation, linguistic configurations and rhetorical patterns. Critical geopolitics illuminates how statecraft constructs representations of space, location and distance.4 Our ambition here is to explicate theoretical lines of inquiry in the study of the changing conditions in the North, with the confrontation between institutionalism and varieties of classical geopolitical perspectives in focus.5 It should be noted that in our overview of the existing literature on the politics of the Arctic, only contributions from international relations (IR) have been included. There is lively discussion of Arctic politics in the ocean law literature, as well as within areas such as political science, human geography and anthropology, but these are not in focus here.

The Arctic Transformed The Arctic during the Cold War The circumpolar Arctic was an area of strategic confrontation during the Cold War; it was a heavily militarized and politically sensitive region. For the Soviet Union, the Kola Peninsula had the only year-round ice-free port in the European part of the USSR. From this port, the Northern Fleet had access to the Atlantic Ocean. Hiding under the Arctic ice cap, the submarines were the backbone of Soviet second-strike capability. This capability was fortified with the Soviet build-up of naval power from the early 1960s. The Arctic waters and air space were equally important to the USA and its allies, and protecting the sea routes between Europe and the USA became a vital strategic objective. An agreement with Denmark granted the USA free travel and military strongholds on Greenland during World War II. In a revised treaty of 1951, NATO bases were limited to specific areas. During and after the war, the line from Greenland through Iceland to the Azores demarcated a series of stepping stones in the US Atlantic defence. The Thule base in Greenland and the naval air base at Keflavik in Iceland were maintained as geostrategic counterpoints to Soviet aspirations in the High North.6 Increasingly sophisticated surveillance systems were gradually developed and deployed on both sides. The NATO base in the Faroe Islands served the navigation system Loran-C and the airborne radar system

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AWACS. Supersonic aircraft, satellites, surface vessels and submarines patrolled the area. Danish and Norwegian territories played major geostrategic roles towards the north. The power blocs gathered intelligence and asserted themselves across the polar basin. The northernmost parts of the Scandinavian peninsula and the seas further north were densely militarized. One exception was the Svalbard archipelago, which – as specified by the 1920 Svalbard Treaty – was not to have naval bases or fortifications, or be used for warlike purposes. All the same, tensions and mutual suspicions occasionally ran high. During the Cold War, even scientific exploration, mining, fishing and whaling had to operate within the coordinates of the geopolitical contest.

The Arctic after the Cold War The strategic and military significance of the Arctic faded during the 1990s. After the dissolution of the Soviet Union, geostrategic confrontation was replaced by a more civilian agenda of climate change, research cooperation and economic interests. US forces left the Keflavik base in 2006. Cooperation across national borders became institutionalized in the Arctic Council, the Conference of Parliamentarians of the Arctic region, the Northern Forum and other interstate and non-state associations, including indigenous peoples’ organizations. Regional collaboration mechanisms were established – notably, the Barents Euro-Arctic Region and the EU Northern Dimension. Some sources of Cold War tensions left unsolved problems, but they were now considered less acute.7 Several maritime boundary disputes have been solved during the past few decades; others are still on the agenda. The geopolitics of the Arctic has changed from strategic confrontation to exploitation of natural resources, questions of jurisdiction and prospects for new shipping routes. As the reduction in tension after the Cold War has coincided with the shrinking of the ice cap and technological improvements in resource extraction, the Arctic has regained a prominent place on the political map, under quite different circumstances. The polar regions, north and south, are in several ways mirror images of each other.8 Antarctica is an uninhabited continent surrounded by the ocean; the Arctic is a semi-enclosed ocean surrounded by sovereign states with various offshore claims and interests. Whereas the 1959 Antarctic Treaty sought to square territorial state interests with a regime for demilitarized cooperation and scientific research, the international settlement of the Arctic has been less stable or comprehensive, although the UN Convention of the Law of the Sea (UNCLOS) of 1982 provides an important legal framework.

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Temperatures in the Arctic have been rising faster than the global average. If the climate trend of the past few decades continues, the reduction of ice in the summer season will open up new sea lanes of communication north of mainland Canada and north of Siberia. Transport lines between Asia and Europe will be substantially shorter and potentially cheaper than the present routes through the Panama and Suez canals or around the southern capes of Africa and the Americas.9 These commercial prospects add to the potential for energy extraction. There are great reserves of oil, gas and minerals onshore and offshore in the circumpolar area, with new technologies gradually making these reserves more accessible and commercially profitable. The states with an interest in the Arctic are both rivals and partners in their northbound policies. One objective of political research into these policies is to assess the balance points between conflict and cooperation.

Power Games in a New Key New strategic environments Various factors contribute to increased interest and concern about the Arctic – the shrinking ice cap with new shipping routes and easier access to resources; technological advances in the extraction of deep-sea resources and under extreme weather conditions; legal developments that allow for the extension of sovereign rights into the polar basin.10 These developments have raised the economic and geopolitical stakes in the region. Generally, political tension is low in the Arctic, since all parties involved comply with UNCLOS. Thus, most unexplored resources are under national jurisdiction, with procedural agreement on the handling of claims. The USA has not ratified the Convention, but has agreed to comply with it. Military withdrawal may indicate perceptions of greater stability or reduced geostrategic relevance. The NATO base on the Faroe Islands has been dismantled; and in Iceland, the USA has left its Keflavik base as well as most US bases on Greenland. The exception is the Thule base in the northwest, which is now basically a radar station in the US advanced rocket defence, on a par with corresponding bases in Alaska and northern Canada. During the Cold War, the principle of collective security applied also to the Arctic territories of NATO members. Attack or a provocation against one member was to be met by joint forces, according to Article 5 of the North Atlantic Treaty. NATO defence policy has now become more selective, involving coalitions of the willing in case of crisis, in the aftermath of the intervention in Iraq. With the eastward extension of NATO, and the

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new range of threats, Article 5 operations might also be affected. Security challenges in the Arctic are not mentioned in NATO’s Strategic Concept 2010 – because of the transformed power game.11 There is now disagreement among Western countries as to questions of jurisdiction. Canada, for instance, regards the Northwest Passage as its internal waters, whereas the USA claims that it is an international strait.12 The implications of the US dismantling of the Keflavik base in 2006 are also uncertain. Iceland has proposed a Nordic nuclear-free zone, but this has met with little enthusiasm in the other NATO countries. However, the scope for multilateral defence cooperation among Nordic countries has increased.

Maritime and territorial disputes The climate for stability and cooperation in the Arctic stands in contrast to the tense situation during the Cold War. Still, there is a potential for disagreement and rivalry connected to unresolved questions of jurisdiction and clashing interests on transport routes and resources. The rich fishing grounds are fairly well mapped, but uncertainty attends the location of oil, gas and other mineral deposits. Exploitation will be costly, even if the ice is receding. In addition come debates about security alertness, patrolling and formal authority in many of the contested areas.13 Some of the territorial questions have been solved. The border conflict between Norway and Denmark between Jan Mayen and East Greenland was decided by a compromise ruling of the International Court of Justice in 1993. In late April 2010 came the astounding announcement of a negotiated settlement of the maritime border dispute between Norway and Russia in the Barents Sea. Norway had claimed that the contested area should be divided by a line extrapolated from the northeastern borderline on land, whereas Russia had argued that the border at sea should go from the seashore border point and directly towards the North Pole. In the agreement, the contested area was parted closely along the middle. The agreement was particularly welcome in Norway, where it had dual significance – it solved a complicated problem, and it symbolised cooperation between equal parties in the Arctic. It is widely held that Moscow entered into the agreement in order to show to the outside world that Russia is a ‘civilized’ state that can be counted on to follow the rules of the Law of the Sea in the Arctic.14 Several other jurisdictional questions remain unresolved.15 Norway obtained sovereignty over the Spitzbergen Archipelago – Svalbard – in the Paris Treaty of 1920. All the other signatories, some 40 countries, were granted equal rights to fisheries, commercial enterprise and the exploitation of resources on land at Svalbard and within 12 nautical miles from the

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shores. With the establishment of 200-nm exclusive economic zones (EEZ) elsewhere, Norway has argued that it can also establish an EEZ around Svalbard. Most other signatories have disputed this explicitly, Britain in particular. The main argument is that the non-discriminatory principle of the Svalbard Treaty must be applicable also in the 200-mile zone. Norway holds to the literal interpretation of the treaty text, whereas other states argue that the wider ocean areas would have been included in the 1920 treaty if commercial activity outside the territorial waters had been an option at the time. To avoid conflict, Norway has not established an EEZ around Svalbard, but instead a ‘fishery protection zone’. Fisheries management has generally functioned well in the zone,16 but with conflict occasionally erupting. The French newspaper Le Monde made this comment in January 2013: ‘La bataille du Spitzberg relance les rivalite´s dans le Grand Nord alors que la hache de guerre semblait avoir e´te´ (un peu) enterre´e’ (25 January). However, the ultimate battle might be a legal contest at the International Court of Justice. At present, the contested zone is managed under Norwegian supervision, as no other country has been prepared to let the situation become critical. Another potential rivalry concerns the extended continental shelves beyond the EEZs of Denmark/Greenland, Canada and Russia. The treaty of the Law of the Sea has an opening for territorial claims to the continental shelf (but not of the ocean areas) beyond that range. Denmark has argued that the polar underwater ridges extend from the shores of Greenland – a point disputed by both Canada and Russia. The Russian view is that major submarine ridges, and the Lomonosov Ridge in particular, extend from eastern Siberia. Increased accessibility to potential resources over and under the seabed will intensify the geopolitical rivalry in the polar basin. All Arctic countries, however, agree that the provisions of the Law of the Sea Convention shall be followed. According to these provisions, coastal states must submit scientific data to the UN Commission on the Limits of the Continental Shelf (CLCS) along with their entitlement to a specific stretch of the shelf. Territorial land disputes have been limited to one case: disagreement between Canada and Denmark over the small, barren Hans Island in the Nares Strait between Ellesmere Island and Greenland. Hans Island is 1.3 square kilometres, an uninhabited stretch of chalkstone, but national delineation could become significant if profitable deposits of oil and gas deposits are found in the area.

Greenland in transit Geopolitical shifts may disturb the current order in the Arctic. One potential shift is spill-over into the High North from developments in the northern

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Atlantic and the northern Pacific. Tensions among the USA, Russia and China may increase in the quest for resources and control of sea routes. Increased military presence may heighten the risk of misconceptions and misinterpretations, even if international contacts in the Arctic have been stabilised institutionally. Then there is the uncertain future role of Greenland, crucial to the link between the American and European Arctic. Geographically, Greenland is much closer to North America than to Europe. The island is also the key to Denmark’s future in the Arctic. With Danish sovereignty eroding, Denmark finds its status as great power in the High North slipping towards a marginal position. Danish policy has been ambiguous. On the one hand, the military position has been strengthened with its joint command with Greenland and the Faroes from 2009. On the other hand, Greenland has been undergoing gradual decolonization. Home rule was established in 1979; and in a referendum, 75 per cent of the nation of Greenlanders voted for extended self-government from 2009. Extended self-government implies greater control of resources, with Denmark remaining in charge of foreign, defence and financial policy. The overall annual budget grant of 3.5 billion Danish kroner will be reduced in proportion to an increased resource rent. For economic reasons, there has been internal disagreement about the range of self-government and the tempo towards full independence. The Greenlandic Self-Government has not supported Danish claims for extended sovereignty along the Lomonosov Ridge to the North Pole. Seeking to rise above the geopolitical rivalry in the Arctic, Greenland’s position has been that ‘the North Pole belongs to nobody’,17 whereas Denmark sees abandoning the claim as tantamount to a free gift to Russia. Nevertheless, criss-crossing national interests are headed to Greenland apace with Danish withdrawal. US and European companies are planning for offshore oil and gas exploration. The Chinese-controlled company London Mining has been preparing for large-scale iron-ore mining in the south-west, offering infrastructure in return. Uranium deposits have been discovered in the south of Greenland, and ALCOA has developed a prospect for large aluminium works on the west coast. These prospects are controversial on Greenland, as the economic gains and ecological costs are uncertain.18 They are also controversial in Denmark. Chinese mining would initially be based on cheap Chinese labour and Denmark has retained the authority to regulate immigration to Greenland.19 The development towards an independent Greenland is supported by the USA, in line with its earlier aspirations concerning the island.20 Cooperation with US companies is increasing, with prospects for support

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to new hydropower energy, harbours and airports. Geopolitically, the independence movement marks a shift from northwestern Europe towards North America. Denmark finds itself squeezed between indigenous demands and international pressures. The longer-term trend is that Greenland is moving towards the USA also in security policy, possibly with Chinese interests as a rival force. International rivalry is intensified by greater access to natural resources.21 The Thule base is an established bridgehead for the USA, as a reconfirmed leftover from the vital US presence during World War II and then throughout the Cold War. The Greenlanders have sought to extend the scope for manoeuvre in these new conditions by strengthening the Inuit link to peoples in Canada, Alaska and Siberia. In geopolitical terms, these indigenous populations are encircled by strong Great-Power interests around the entire polar basin.

Cooperation or conflict From another perspective, and beyond the case of Greenland, national interests in the High North have no clear boundaries. Denmark tried to limit national claims within an institutional framework by the Ilulissat Declaration in 2008,22 whereby five Arctic coastal states – Denmark (through Greenland), Norway, Russia, USA and Canada – declared that questions of jurisdiction and territorial claims should be solved by negotiations within the existing international legal framework: there was to be no all-out race towards the North Pole. The Ilulissat Declaration was met with some concern from actors outside the five Arctic littoral states, like Iceland, Finland and Sweden, which – if not against the content of the Declaration – felt they had been sidelined in the important decision on the future of the Arctic. The protracted discussions about observer status in the Arctic Council (from China and the EU, among others) show that the institutional framework of the Arctic took time to find a stable and uncontroversial form.23 In mid-May 2013, the Council took a leap forward. Applications for observes status from China, Japan, South Korea, Singapore, India and Italy were all successful, although the Council temporarily stopped short of approving the application from the European Union.24 For many Asian countries, the implications of an Arctic sea-lane from Asia to Europe are a main concern. A French expert on the Arctic, Richard Labe´vie`re, has outlined three alternative geopolitical scenarios in the area:25 1. An Arctic dominated by the USA, including Greenland’s independence but with a stronger US presence on the island. New microstates will,

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paradoxically, strengthen the conditions for US dominance, not least economically. 2. A new regional cold war between the United States and Russia. 3. An Arctic space with stable partition of national sovereignty, respect for the Law of the Sea and strong cooperative institutions. This scenario is in accordance with the Norwegian motto ‘High North, Low Tension’. The balance between tension and stability will be subject to variation in time and space. China is expected to project its power and interests especially in the eastern parts of the Arctic; US concerns will have to be adapted to this geopolitical shift. An order in which the US presence is reversed is also possible in the western parts of the High North, while the cooperative spirit of the Ilulissat Declaration may be preserved and extended to new parties beyond the coastal Arctic states. To substantiate current tendencies in the Arctic, let us examine the perspectives from the institutional and geopolitical research literature more closely.

Arctic Challenges and Political Research From realism to institutionalism During the Cold War, most political studies of the Arctic were strictly empirical, against a realist background that reflected the superpower tension and strategic importance of the region. The Arctic was a front for surveillance, power projection and military rivalry; political analysis described the policies and mutual suspicions in detail, ranging from assessment of military build-up, air and marine activities and the location of strongholds and strategic manoeuvring. Historical Cold War studies of the Arctic have concentrated on the extent and importance of militarization. A prominent example is the two-volume Danish analysis of Greenland during the Cold War, concentrating on covert nuclear deployment.26 Also the literature on politics in the Arctic after the Cold War has been mainly empirical in orientation, but the realist leanings are gone, generally replaced by more speculative expectations of cooperation and peaceful development. This speculative element is not concerned primarily with the basic reduction of tension, but with the kind of cooperation that can be expected in the further opening up of the Arctic.27 Writing in 1988, Archer concluded that conditions were now good for ‘some form of crossborder Arctic cooperation in the humanitarian area, in scientific research and about environmental matters’.28 The first half of the 1990s were dominated by

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descriptions and speculations about the emerging Arctic Environmental Protection Strategy (AEPS), proposed by Finland in 1989 and formally established two years later.29 The AEPS focused on scientific research and monitoring of the Arctic environment; it was subsumed under the Arctic Council after that body was established in 1996. For the rest of the 1990s and the first part of the initial decade of the twenty-first century, descriptions and preliminary assessments of the emerging circumpolar collaboration followed,30 along with substantive evaluations of the (more tangible) regional cooperative arrangements in the European Arctic.31 Three years into the Arctic Council’s existence, Scrivener concluded that creating the Council seemed ‘to have done nothing to increase the momentum of circumpolar cooperation on pollution and conservation issues and to assist the AEPS’s progression beyond monitoring and assessment into the realm of policy action’.32 Later, Young33 and Stokke34 did note several effects of Arctic Council programme activities in feeding in scientific information to binding international agreements. By and large, however, Arctic cooperation – whether circumpolar or regional – was considered to be ‘a thing of the early 1990s’: an immediate post-Cold War initiative that had failed to spark sustainable high-level political interest. The Arctic Council remained a forum for coordinating Arctic environmental monitoring and science, with strong input from the region’s indigenous peoples;35 the regional Barents Euro-Arctic Region collaboration and the EU Northern Dimension were struggling to meet the initial expectations of thriving East – West cooperation on trade and industry.36

A ‘scramble’ for the Arctic? Much changed with the Russian flag-planting in 2007, not only in media discourse (and possibly in actual politics), but also in the literature on Arctic politics. Borgerson (2008) famously captured the atmosphere in his seminal article ‘Arctic Meltdown’: ‘The Arctic Ocean is melting, and it is melting fast. [. . .] It is no longer a matter of if, but when, the Arctic Ocean will open to regular marine transportation and exploration of its lucrative natural-resource deposits.’37 Further: ‘The situation is especially dangerous because there are currently no overarching political or legal structures that can provide for the orderly development of the region or mediate political disagreements over Arctic resources or sea-lanes;’38 and ‘[T]he Arctic countries are likely to unilaterally grab as much territory as possible and exert sovereign control over opening sea-lanes wherever they can. In this legal no man’s land, Arctic states are pursuing their narrowly defined national interests by laying down sonar

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nets and arming icebreakers to guard their claims.’39 This article spurred a wave of new contributions, and the scientific literature on Arctic politics became more of an arena for actual debate. The topic of debate was whether a ‘scramble’ for the Arctic was underway or not. Most participants concluded that Borgerson’s premises were erroneous.40 Yes, they said, there are prospects for considerable new petroleum findings in the Arctic, but most of these will probably lie in areas where national jurisdiction is undisputed (and those located in what might remain of disputed areas are the least commercially interesting). Yes, jurisdiction of the Arctic continental shelf is not yet finally established, but there is an ongoing process under the UN of settling the outer limits of the continental shelf, to which all Arctic nations adhere (and to which potentially strong non-Arctic actors, such as China, have declared that they will also adhere). Above all, there have been hardly any signs of political conflict in the Arctic, and there is good reason to assume that states will see cooperation as their primary choice also in the future. Another substantive debate, also following the ‘scramble for the Arctic’ buzz, concerned the possible need for an overarching Arctic treaty to supplement the existing Law of the Sea (with the 1982 Law of the Sea Convention at its core, supplemented by a range of other global, regional and bilateral agreements in specific functional fields). In 2008, the European Parliament issued a resolution advocating such a treaty, but since then all relevant actors (including the European Parliament) have agreed that the existing Law of the Sea is sufficient as a foundation for elaborating more specific requirements to protect the Arctic environment against adverse effects of possible increased human activity in the Arctic, especially as regards marine transport and petroleum extraction. Some scholars have promoted the idea of an Arctic treaty, for example on the model of the Antarctic Treaty;41 others dismiss it, in line with the political arguments of the Arctic states.42 Finally, at the political level there has been some debate about who should be the legitimate actors in international politics in the Arctic: the ‘Arctic five’ (the states bordering the Arctic Ocean), the ‘Arctic eight’ (the ‘Arctic five’ plus Finland, Iceland and Sweden) or a larger group of states (China and other states repeatedly applied for status as permanent observers in the Arctic Council before they were finally admitted in 2013). The ‘Arctic five’ gathered in Ilulissat in Greenland in 2008, where they issued a declaration stating that the Law of the Sea serves as the foundation for settling jurisdiction in the Arctic Ocean (thus: no need for a new Arctic

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treaty); this led to concerns among the rest of the ‘Arctic eight’, and among indigenous peoples’ associations, that the Arctic Council would be supplanted by the ‘Arctic five’ as the central stage for discussions about circumpolar politics.43

IR theory, empirical research Despite this largely empirical orientation, in the literature on Arctic politics we can catch glimpses of all the three major IR theory traditions: realism, institutionalism and constructivism. Few contributions take their explicit point of departure in matters of theory, but many seem implicitly situated in the institutionalist camp by their preoccupation with international regimes.44 The focus has been on the potential for cooperation and not conflict among the Arctic states. Many early contributions (and some later ones) discuss the possible links between emerging circumpolar arrangements and existing global and regional regimes, for instance under international environmental agreements. Later contributions focus more on the opportunities for boosting the political and institutional clout of the Arctic Council45 and of the role of the Law on the Sea in mitigating potential conflicts among Arctic states.46 A realist stance is apparent in Borgerson’s (2008) article and, to a lesser extent, in several ensuing contributions on energy and geopolitics in the Arctic.47 Many of the books that followed had titles that alluded to Borgerson’s article, like Anderson’s (2009) After the Ice: Life, Death and Politics in the New Arctic, Howard’s (2009) The Arctic Gold Rush, Sale and Potapov’s (2010) The Scramble for the Arctic and Zellen’s (2009) Arctic Doom, Arctic Boom. These books (which referred to Borgerson’s claims, but by and large refuted them) are not theoretical contributions, but are intended more for the general reader. A constructivist approach is applied in studies of the emergence of the Arctic as a region48 – more specifically, in discussions of identity, region building and geopolitics in regional collaboration arrangements in the European Arctic.49 Hence, IR theory has implicitly or explicitly structured the presentation of empirical presentation of Arctic politics, but research on Arctic politics has only to a limited extent spurred theory building or debate between and among (implicitly or explicitly defined) camps. Institutionalist approaches have dominated the field, but seldom sought outside its own confines. Studies either point to the effects of international institutions, or – when they document that such institutions are poorly developed – ask for more of the same thing (that is to say, they take for granted the potential good of international institutions).

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Geopolitics and the French Connection The re-emergence of geopolitics Geopolitics relates political power to geographical space. The term was coined by the Swedish political scientist Rudolph Kjelle´n, at the dawn of the nineteenth century, to connote an organic conception of Great-Power rivalry and expansion. The early Anglo-American geopolitical debate was concerned with the relative importance of land power and sea power, whereas German discourse centred on interstate rivalry in continental space. The prominent geopolitical analyst Halford Mackinder saw the end of European expansion overseas in the early twentieth century.50 Terming this era the Columbian epoch, he saw it as heralding a ‘closed’ geopolitical system as expansion drew to an end. Great-Power rivalry would now intensify, with the Heartland Theory as a major perspective on global politics. This theory held that core of Eurasia was the key to world dominance. Mackinder’s prescriptive concern was to conceive a grand strategy for preserving the Empire. The Arctic played a marginal role in classical geopolitical analysis: it was a barrier, the outer area in geostrategic terms, a field for resource extraction, expeditions and rather low-key rivalry – not a major area of contestation between the Great Powers. In retrospect, we can see that Mackinder underestimated the long-term capabilities of sea powers like the United States, by failing to recognize how technological advances like submarines and intercontinental missiles could bolster the might of marine-based powers. Certainly, military technology figures in the geopolitical equation, but Mackinder and the Heartland theorists had a rather static view of the importance of the steam engine and the railroad that had opened up Eurasia. The Western strategy of the Cold War was a rimland strategy for containment of the USSR through a string of military alliances around the Eurasian Soviet core – ranging from NATO in the European northwest, to CENTO in the Middle East, SEATO in Southeast Asia and ANZUS in the Pacific. Cold War strategies were modelled on classical geopolitical thought. The Columbian epoch was gradually brought to an end with the process of decolonization. A post-Columbian era slowly emerged, half a century after Mackinder’s pioneering analysis. The voluntary dissolution of the USSR, announced on Christmas Day 1991, seems like a spectacular negation of the Heartland Theory. The political tenant to the Eurasian Core Area ended its ambitions of becoming a global hegemon. The Russian successor state was radically disadvantaged in terms of space and power available for pursuing this ambition.

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A more self-assertive Russia has launched new power projections towards the Arctic, due to oil and gas deposits in increasingly accessible waters as the ice recedes. Eastern Eurasia, accordingly, is emerging as a geopolitical stronghold with the rise of China. The Heartland will remain geopolitically significant, but a unified power is less likely. The centre of gravity – in geopolitical terms – is moving towards the North and the East. Geopolitical analysis changed during the twentieth century, no longer being tied up with fin-de-sie`cle Social Darwinism, or with perspectives on power and space at different orders of scale, from the global down to the local level.51 The Arctic is of medium-sized order with a typically circumpolar character spanning the rimlands of three continents and numerous states. The resources, transport routes and strategic importance of this circumpolar area are the geopolitical foci of analysis. Globalization and geopolitics are contrasting images of global developments after the end of the Cold War. While globalization indicates interdependence, transnational flows and obliterated state frontiers, geopolitics conjures up visions of Great-Power games and power politics. The balance has tilted in favour of geopolitics with the rise of China and India, the reassertion of Russia and the repercussions of 9/11. Not only does this balance change over time: it also plays out differently in various parts of the world. Again, the Arctic is a field of tension between contradictory forces.

French geopolitics and the Arctic Geopolitical modes of analysis present counterpoints to institutionalism in current research. French versions of geopolitics have been explicitly concerned with developments in the Arctic. Generally, French geopolitics is less tied up with the overall global power game, compared to the AngloAmerican tradition. It emerged in the interwar period in opposition to the German adaptation of the imperialist heritage from Mackinder.52 French scholars from Yves Lacoste onwards have applied geopolitical analysis, from the grand strategy of superpowers down to the geographical correlates of micro-politics at the most local level.53 French geopolitical analyses of the Arctic are primarily concerned with state rivalries and the quest for strategic resources in the wake of climate change and increased accessibility. With the prospects of a maritime Northern route from Japan to North Europe, ‘a new Russian –American Mediterranean’ has emerged, with the global position of Russia – politically and economically – radically enhanced.54 At the dawn of the post-Cold War era, Amiral Besnault (1992) published Ge´ostrate´gie de l’Arctique. After an extensive overview of physical, economic and political features of the Arctic,

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he concluded – at the swansong of the Cold War – that greater accessibility might intensify the scramble for resources in the region. Given the uncertainties of the future, the combination of economic needs, new opportunities, unresolved sovereignties and spillover from conflicts elsewhere made the Arctic an area of continuous strategic concern. In Besnault’s view, the prolonged strategic importance of the Arctic was ensured by its range of natural resources, the technological innovations available for exploiting them and the sovereignty issues connected to economic zones and beyond.55 In 2008, two geopolitically oriented French analysts, Labe´vie`re and Thual, proclaimed: La bataille du Grand Nord a commence . . .56 They saw more than a symbolic act in the Russian flag that had been planted on the seabed of the North Pole, at a depth of 4200 m, in August the year before. They interpreted the episode as a token of the continued game for economic, environmental and strategic positions in the Arctic, intensified by climatic and technological changes. These changes, they held, are also likely to draw new countries more strongly towards the North, like China and the USA – after a period of receding interest in the aftermath of the Cold War. In this respect, then, the geostrategic centre of gravity in the Arctic is moving from West to East. Labe´vie`re and Thual envisage three possible scenarios in the Arctic region: a new Cold War triggered by Russian assertiveness that will be countered and contained by other Great Powers, the USA in particular; a ‘dream story’ of a steadily more integrated, multi-state community in the Arctic; or, most likely, a US Arctic Ocean based on US reassertion, with Greenland as an extended base, emanating from Thule, filling the position gradually left vacant by long-term Danish withdrawal.57 Labe´vie`re further specified his views on the political drift of Greenland in a review conversation in 2009.58 In a journal symposium on the future of Greenland, Ge´rard Dussouy expanded upon this perspective, showing that in geopolitical terms Greenland is an island extension from the North American continent.59 Downplaying the strategic stakes of the Arctic game, he observed that contrasting interests seemed negotiable and relatively marginal compared to tensions in many other parts of the world.60 A common denominator in French geopolitical analyses of the Arctic has been the combination of resource availability, contested sovereignties and power games. The institutions of cooperation are downplayed in this geopolitical concentration on resources, transport routes and state rivalry. If the peace is still preserved, that is due to negotiable issues and the limited importance of unresolved questions. Furthermore, predictions are replaced

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by more open-ended scenarios. In contrast to classical Anglo-Saxon and German geopolitics, French analyses operate on scales from the global to the local. While geopolitical perspectives in most countries – certainly in the USA, the UK and Russia – have fluctuated with the international climate (extensive in times of crisis, at low ebb during more stable times) – geopolitics has remained a strong analytical tradition in France since the 1960s. There has also been consistent interest in developments in the Arctic, both as an aspect of superpower strategy and as a collection of geopolitical regions in their own right. Various geopolitical modes for analysing the Arctic have long been evident in French analyses.

Conclusion There is potential for both cooperation and conflict in the Arctic, depending on perspective and focus. Many severe problems have been solved, either within the framework of international treaties like the UNCLOS of 1982 and bodies like the Arctic Council, or in bilateral negotiations, like the maritime delimitation between Russia and Norway in the Barents Sea. Other issues might lead to heightened tensions if conditions in some of the major powers develop unfavourably. The political significance of the Arctic changed radically with the end of the Cold War. During that era, the region had been a geopolitical rimland of the first order. The Kola Peninsula had the major ports for the Soviet Northern Fleet and the bases for submarines with nuclear missiles. The circumpolar North was a central access route for strategic weapons from East and West, heavily guarded by advanced surveillance systems. In the aftermath of the Cold War, the Arctic became tightly woven into interstate cooperative institutions. Strategic tensions subsided to the benefit of common interests and commercial interchange, even if some disputes remained unsolved. However, actual cooperation was limited mainly to low-politics issue areas such as environmental protection and indigenous peoples’ rights. In the new century, the geopolitical importance is again increasing. Climate change, technological advances and the quest for resources are the major sources of change. The Arctic represents an expansion field for national sovereignty in the quest for resources and passage. The geopolitical status of the High North is being transformed from outer to inner crescent – a strategic zone with new modes of cooperation, but also with international disagreement over maritime areas and access routes beyond the circumpolar land-area. In classical geopolitics, the Arctic was a remote area which

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separated Europe from Asia in the north. Today it is becoming a contested field with cooperative institutions and joint initiatives intertwined with national rivalries over more easily available resources – or the potential and prospect of such resources. Institutionalism has been the dominant approach in English-language studies of Arctic politics since the end of the Cold War – and, thus far, tension has been running low and the existing cooperative framework seems robust. Geopolitical analyses like those prevalent in the French literature are more tuned to the potential for rivalries if resources should become scarcer, if there is a spillover from conflicts originating elsewhere, if a crucial country develops more aggressive policies, or if a critical episode gets out of hand. Still, recent geopolitical analyses evade deterministic deductions from the geographical correlates of states. The very nature of the Arctic environment helps to reduce the potential for acute state rivalries. Resource exploitation and transport will remain costly for a long time to come. Certainly, the North Pole is a symbolic prize worth a flag contest – but it is hardly profitable.

Notes 1. This chapter is a revised version of Øyvind Østerud and Geir Hønneland, ‘Geopolitics and international governance in the Arctic’, Arctic Review on Law and Politics 5/2 (2014), pp. 156 – 76. 2. We use the term ‘institutionalism’ instead of the closely related concept ‘liberalism’ in this chapter, as the argument of this tradition in the study of international politics in the Arctic is more that ‘institutions matter’ than questions related to complex interdependence among the Arctic states. See Ronald B. Mitchell, ‘Regime design matters: International oil pollution and treaty compliance’, International Organization 48/3 (1994), pp. 425– 58. 3. See Gerry Kearns, Geopolitics and Empire. The Legacy of Halford Mackinder (Oxford, Oxford University Press, 2009). ´ . Tuathail, Critical Geopolitics (London, Routledge, 1996); Klaus 4. Gearo´id O Dodds, Global Geopolitics: A Critical Introduction (Harlow, Pearson Education, 2005). ´. 5. For the full range of contributions now labeled as ‘geopolitical’ see: Gearo´id O Tuathail, Simon Dalby and Paul Routledge (eds), The Geopolitics Reader, second edition (London, Routledge, 2006). 6. The major research publication here is Niels-Jørgen Nehring, Grønland under den kalde krig I – II (Copenhagen, DUPI, 1997); cf. also individual reports from this officially commissioned project, like Nikolaj Petersen, The H.C. Hansen Paper and Nuclear Weapons in Greenland, DUPI Report 1997/2 (Copenhagen, DUPI 1997) and Negotiation the 1951 Greenland Defence Agreement, DUPI Report 1997/3 (Copenhagen, DUPI 1997). 7. Siemon T. Wezeman, Military Capabilities in the Arctic, SIPRI Background Paper (Stockholm, SIPRI, 2012).

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8. Jeppe Strandsbjerg, Cartography and Geopolitics in the Arctic Region, DIIS Working Paper 2010:20 (Copenhagen, 2010), p. 8ff. 9. Charles K. Ebinger and Evie Zambetakis, ‘The geopolitics of the Arctic melt’, International Affairs 85 (2009), pp. 1215 – 32. 10. Michael Byers, Who Owns the Arctic? (Vancouver, 2009). 11. Charles M. Perry and Bobby Andersen, New Strategic Dynamics in the Arctic Region (Cambridge, Institute for Foreign Policy Analysis, 2012); Heather A. Conley et al., A New Security Architecture for the Arctic (Washington, DC, Centre for Strategic and International Studies, 2012). 12. However, both speak of it as a ‘managed’ conflict in their respective Arctic strategies, though. 13. Helga Haftendorn, ‘NATO and the Arctic: Is the Atlantic alliance a cold war relic in a peaceful region now faced with non-military challenges?’, European Security, 20/3 (2012), pp. 337 – 61; Annika B. Rosamond, Perspectives on Security in the Arctic, DIIS Report 2011:09 (Copenhagen, DIIS, 2011). 14. Arild Moe, Daniel Fjærtoft and Indra Øverland, ‘Space and timing: Why was the Barents Sea delimitation dispute resolved in 2010?’ Polar Geography 34/3 (2011), pp. 145 –62. 15. Christian Le Mie`re and Jeffrey Mazo, Arctic opening: Insecurity and opportunity (IISS, 2013); Richard Labe´vie`re and Francois Thual, La Bataille du Grand Nord a Commence´ . . . (Paris, Perrin, 2008). 16. Geir Hønneland, ‘Compliance in the fishery protection zone around Svalbard’, Ocean Development and International Law 29/41 (1998), pp. 443– 56. 17. Personal communication with native participants at a conference in Nuuk, April 2013. 18. Cindy Vestergaard and France Bourgouin, ‘Should Greenland mine its uranium?’, DIIS Policy Brief (Copenhagen, DIIS, 2012). 19. Report in the Norwegian quality daily Aftenposten, 11 February 2013. 20. Charles Emmerson, The Future History of the Arctic (London, The Bodley Head, 2010), pp. 91 – 4, pp. 103– 4. 21. Cf. Sarah Johnstone, ‘Greenland: Rare Earth in the Arctic’, (IISS, 2012). See also Jørgen Taagholt and Jens C. Hansen, Greenland: Security Perspectives (Alaska, Arctic Research Consortium of the United States, 2001). 22. Nicolaj Petersen, ‘The Arctic as a new arena for Danish foreign policy: The Ilulissat initiative and its implications’, Danish Foreign Policy Yearbook (Copenhagen, 2009). 23. Torbjørn Pedersen, ‘Debates over the role of the Arctic Council’, Ocean Development and International Law 43/2 (2012), pp. 146 – 56. 24. See IISS Strategic Comments, Vol. 19, Comment 16 (June 2013). The Kiruna declaration (2013) states: ‘The Arctic Council receives the application of the EU for observer status affirmatively, but defers a final decision on implementation until the Council ministers are agreed by consensus that the concerns of Council members.’ 25. Richard Labe´vie`re, ‘Le grand nord en question’, Nordiques 20 (2009), pp. 9– 21. 26. Nehring, Grønland under den kalde krig. 27. The following paragraphs are a condensed version of Geir Hønneland, ‘Introduction’, in G. Hønneland (ed.), Research Collection on the Politics of the Arctic (Cheltenham, Edward Elgar, 2014).

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28. Clive Archer, ‘General features of political development and possibilities for cooperation in the Arctic’, Current Research on Peace and Violence 11/4 (1988), pp. 137–45, p. 140. 29. Olav S. Stokke, ‘The northern environment: is cooperation coming?’, Annals of the American Academy of Political and Social Science 512 (1990), pp. 58 – 68; Alexei Roginko and Matthew LaMourie, ‘Emerging marine environmental protection strategies for the Arctic’, Marine Policy 16/4 (1992), pp. 259 – 76; David D. Caron, ‘Toward an Arctic environmental regime’, Ocean Development and International Law 24/4 (1993), pp. 377– 92. 30. David Scrivener, ‘Arctic cooperation in transition’, Polar Code 35/192 (1999), pp. 51 – 8; Oran R. Young, ‘Can the Arctic Council and the Northern Forum find common ground?’, Polar Record 38/207 (2002), pp. 289– 96 and ‘Governing the Arctic: from Cold War theatre to mosaic of cooperation’, Global Governance 11/1 (2005), pp. 9– 15. 31. Iver B. Neumann, ‘A region-building approach to Northern Europe’, International Studies 20/1 (1994), pp. 53 – 74; Geir Hønneland, ‘Identity formation in the Barents Euro-Arctic region’, Cooperation and Conflict 33/3 (1998), pp. 277 – 97; Pami Aalto, Simon Dalby and Vilho Harle, ‘The critical geopolitics of Northern Europe: Identity politics unlimited’, Geopolitics 8/1 (2003), pp. 1– 19. 32. Scrivener, ‘Arctic cooperation in transition’, p. 57. 33. Young, ‘Governing the Arctic: from Cold War theatre to mosaic of cooperation’. 34. Olav S. Stokke, ‘Environmental security in the Arctic: The case for multilevel governance’, International Journal 66/4 (2011), pp. 835 – 48. 35. Scrivener, ‘Arctic cooperation in transition’. 36. Hønneland, ‘Identity formation in the Barents Euro-Arctic Region’; Christopher S. Browning, ‘The region-building approach revisited: The continued othering of Russia in discourses of region-building in the European North’, Geopolitics 8/1 (2010), pp. 45 – 71. 37. Scott S. Borgerson, ‘Arctic meltdown: The economic and security implications of global warming’, Foreign Affairs 87 (2008), pp. 63 – 77, p. 63. 38. Ibid., p. 71. 39. Ibid., pp. 73 – 4. 40. See e.g. Ebinger and Zambetakis, ‘The geopolitics of the Arctic melt’; Klaus Dodds, ‘Flag planting and finger pointing: The Law of the Sea, the Arctic and the political geographies of the outer continental shelf’, Political Geography 29/2 (2010), pp. 63–73; Ian G. Brosnan, Thomas M. Leschine and Edward L. Miles ‘Cooperation or conflict in a changing Arctic’, Ocean Development and International Law 42/1–2 (2011), pp. 173–210. 41. Donald Rothwell, ‘The Arctic in international affairs: Time for a new regime?’, Brown Journal of World Affairs 15/1 (2008), pp. 241– 53. 42. Olav S. Stokke, ‘A legal regime for the Arctic? Interplay with the Law of the Sea Convention’, Marine Policy 31/4 (2007), pp. 402– 8; Alf H. Hoel, ‘Do we need a new legal regime for the Arctic Ocean?’, International Journal of Maritime and Coastal Law 24/2 (2009), pp. 443– 56; Oran R. Young, ‘If an Arctic treaty is not the solution, what is the alternative?’, Polar Record 47/4 (2011), pp. 327 –34. 43. Pedersen, ‘Debates over the role of the Arctic Council’. 44. See e.g. Enno J. Harders, ‘In quest of an Arctic legal regime: Marine regionalism – a concept of international law evaluated’, Marine Policy 11/4 (1987), pp. 285–98;

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45. 46. 47.

48.

49.

50. 51. 52.

53.

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS Hoel, ‘Do we need a new legal regime for the Arctic Ocean?’; Brosnan et al., ‘Cooperation or conflict in a changing Arctic’; Stokke, ‘Environmental security in the Arctic: The case for multilevel governance’; Young, ‘If an Arctic treaty is not the solution, what is the alternative?’. E.g. Timo Koivurova, ‘Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic governance’, Polar Record 46/2 (2010), pp. 146 – 56. E.g. Stokke, ‘A legal regime for the Arctic? Interplay with the Law of the Sea Convention’. Younkyoo Kim and Stephen Blank, ‘The Arctic: A new issue on Asia’s security agenda’, Korean Journal of Defence Analysis 23 (2011), pp. 303 – 20; Margaret Blunden, ‘The new problem of Arctic stability’, Survival 51 (2009), pp. 121 – 41 and ‘Geopolitics and the Northern Sea Route’, International Affairs 88 (2012), pp. 115 –29. Pertti Joenniemi, ‘Competing images of the Arctic: A policy perspective’, Current Research on Peace and Violence 12/3 (1989), pp. 111–29; Carina Keskitalo, Negotiating the Arctic: The Construction of an International Region (London, Routledge, 2003) and ‘International region-building: Development of the Arctic as an international region’, Cooperation and Conflict 42/2 (2007), pp. 187–205; Lassi Heininen and Heather N. Nicol, ‘The importance of the northern dimension foreign policies in the geopolitics of the circumpolar north’, Geopolitics 12/1 (2007), pp. 133 – 65; Elana Wilson, ‘Arctic unity, Arctic difference: Mapping the reach of northern discourses’, Polar Record 43/225 (2007), pp. 125–33. Neumann, ‘A region-building approach to Northern Europe’; Hønneland, ‘Identity Formation in the Barents Euro-Arctic Region’; Aalto et al., ‘The Critical Geopolitics of Northern Europe: Identity Politics Unlimited’; Browning, ‘The region-building approach revisited: The continued othering of Russia in discourses of region-building in the European North’. Halford Mackinder, ‘The geographical pivot of history’, Geographical Journal 23 (1904), pp. 421– 37; Kearns, Geopolitics and Empire. The Legacy of Halford Mackinder. See for instance, Robert D. Kaplan, The Revenge of Geography (New York, Random House, 2012) and Zbigniew Brzezinski, Strategic Vision (New York, Basic Books, 2012). See Philipe M. Defarges, Introduction a` la ge´opolitique (Paris, E´d. Du Seuil, 2005), p. 109ff. Defarges outlines the varieties of geopolitical traditions in various countries in Europe and overseas. On the ‘French School of Geopolitics’ see also Geoffrey Parker, ‘Ratzel, the French school and the birth of alternative geopolitics’, Political Geography 19/8 (2000), pp. 957 –69. The French journal of geography and geopolitics, He´rodote, was founded by Lacoste in 1976. See the relatively recent volume by Yves Lacoste, Ge´opolitique (Paris, Larousse, 2006). See also the comprehensive volume by Aymeric Chauprade, Ge´opolitique (Paris, Ellipses, 2007). Chauprade has an explicitly realist orientation as editor of Revue francaise de ge´opolitique. See also a concise overview by Philippe M. Defarges, Introduction a` la ge´opolitique. French ge´opolitique is both Left and Right, one characteristic feature being the employment of geopolitical analysis on any scale, from the global to the local.

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Chauprade, Ge´opolitique, p. 751. Amiral Besnault, Ge´ostrategie de l’Arctique (Paris, Economica, 1992), p. 398ff. Labe´vie`re and Thual, La Bataille du Grand Nord a Commence´ . . . Ibid., pp. 185– 7, 188 – 207. Labe´vie`re, ‘Le grand nord en question’. Ge´rard Dussouy, ‘L’oce´an Arctique dans le nouveau contexte ge´opolitique mondial’, Nordiques 18 (2008 – 9), pp. 23 – 31. 60. Ibid., p. 31.

54. 55. 56. 57. 58. 59.

CHAPTER 3 PROS AND CONS OF INSTITUTIONAL COMPLEXITY: THE CASE OF ARCTIC GOVERNANCE Olav Schram Stokke1

Introduction A whole suite of institutions at province, national, and international levels may influence developments in the Arctic, and efforts to use them for such purposes have multiplied in recent years. Sub-national governments cooperate through several circumpolar or narrower bodies, including the Northern Forum and the Barents Regional Council. National Arctic policy documents are routinely developed and refined not only by regional states but also by non-Arctic players like Germany, Japan, and the EU.2 One EU body, the European Commission, is a founding member of the Barents EuroArctic Region; another, the European Parliament, has controversially called for a comprehensive international environmental treaty applicable to the Arctic Ocean. The USA’s initiative for creating a regional high-seas fisheries management organization for the Arctic Ocean obtained some success with the 2014 agreement among the Arctic coastal states on ‘the need for interim precautionary measures to prevent any future commercial fisheries without the prior establishment of appropriate regulatory mechanisms’.3 Spatially distant but geopolitically rising states such as China, India and South Korea have stepped up their Arctic activities and have made ultimately successful bids for permanent observer status in the foremost regional organization for addressing issues of circumpolar interest: the Arctic Council. At the global level, the International Maritime Organization, a specialized UN agency responsible for safety at sea and protection of the marine environment from

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vessel-based pollution, has responded to rapid increases in Arctic shipping by negotiating and adopting a legally binding Polar Code with more stringent requirements as to vessel construction and equipment, training and discharges. Against the backdrop of this dynamic complex of existing or emerging institutions engaged in Arctic governance, two views vie for predominance. One is that such complexity constrains the legitimacy and effectiveness of each institution, generating contested and weak governance signals. With rising temperatures, rapidly receding sea ice, and closer integration of Arctic activities into the global economy, contested substantive norms might imply unclear or substantively inadequate constraints on industrial actors interested in natural resources or Arctic shipping lanes. Those arguing from this perspective often advocate more integration of the relevant institutions, for instance by creating a comprehensive, substantively ambitious and legally binding environmental treaty.4 The competing view holds that such institutional integration is neither feasible nor necessary, and that today’s allocation of management authority under international law provides an adequate and legitimate framework for governing activities within the sectors of Arctic activities likely to experience growth in the coming years.5 This chapter aims to substantiate a third position in the discourse on Arctic governance: one that acknowledges the need for greater correspondence among governance activities within these and other relevant institutions, yet rejecting the view that this requires integration in the sense of unified decision making, explicit coordination, or formal inter-regime hierarchy.6 Specifically, I argue that Arctic institutional complexity follows inevitably from the enmeshment of Arctic change in wider environmental, economic and political processes, and that such complexity neither signals nor promotes inter-state discord. In fact, institutional complexity offers certain advantages over a unified structure – including less vulnerability to setbacks in any single cooperative process and better opportunities for reaping cooperative gains whenever the sets of relevant, or cooperatively inclined, actors vary across issue-areas. Exploiting such advantages, however, and avoiding disruptive institutional interplay, requires that states and others are aware of potential interaction and engage in interplay management: deliberate efforts to improve the quality of institutional interplay. My argument proceeds in three steps. The next section brings out the highly complex nature of Arctic governance, with many distinctive institutional venues for setting Arctic policy agendas, for addressing regional problems, and for developing rules applicable to regional activities. I then identify a set of generic drivers of institutional complexity, active in the

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Arctic but also in many other regions: external dependency; the legal allocation of regulatory competence; and the fact that institutions differ in their capacities to occupy certain governance niches, including knowledge building, norm development and rule enforcement. Such institutional-niche considerations weigh heavily also in the subsequent section, which examines the consequences of institutional complexity for the overall ability to deal with Arctic problems in areas such as resource management, shipping, and environmental protection.

The Complexity of Arctic Governance In what ways is the Arctic characterized by institutional complexity? What is the division of labour among the various bodies that contribute to regional governance? This section situates the institutional complexity phenomenon in the broader governance field and then identifies a string of international institutions engaged in Arctic affairs. An important feature of this complexity is that national institutions as well as certain international bodies involving also non-Arctic players are far more active as regulators than are the Arctic-specific institutions that emerged in the 1990s, including the Arctic Council.

Institutional complexes For many years, research on international institutions has focused on the creation, operation and consequences of individual ‘regimes’ as the core governance structure of various issue-areas in international affairs.7 Alongside the proliferation of institutional arrangements in global governance and their rising density and scope, scholars have gradually acknowledged that the activities within separate institutional arrangements often overlap or complement each other.8 Under such circumstances, governance of a particular issue-area is best understood as the result of the interplay of several relevant institutions, with one or more institutions affecting the contents, operations, or consequences of another institution, whether at the same level of governance or at a different level. Studying institutional complexes entails taking an aggregate view of such institutional interaction. Terminology differs but considerable agreement exists regarding the conceptual core and empirical significance of the phenomenon in focus. Among the terms in use are ‘clusters’,9 ‘regime complexes’,10 ‘governance architectures’,11 and ‘institutional complexes’.12 Key conceptual components are the plurality of institutions that are distinctive in terms of decision making and participation yet deal with the

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same activity, or aspects of the same activity, usually in a non-hierarchical manner. This formulation is compatible with the often-cited definition offered by Raustiala and Victor13 of a regime complex as a set of ‘partially overlapping and non-hierarchical institutions governing a particular issue-area’ – but, unlike them, I do not preclude hierarchy. Although international organizations and treaties are not usually vertically ordered, elements of formal or actual subordination may nevertheless exist due to broader principles of international law, specific treaty provisions,14 or differences in the political priorities that powerful actors assign to each elemental regime.15 Most scholars writing about institutional complexity agree that the phenomenon is increasingly pervasive in global governance, not least in the environmental area, as steadily new or more ambitious governance arrangements and instruments are agreed upon by states or NGOs. Each arrangement tends to narrow in on a specific policy domain, while also being increasingly attentive to cross-sector concerns arising from connections within ecosystems or among activities. This broad trend towards greater institutional complexity within issue-areas of governance is no less evident in the Arctic,16 as the remainder of this section will show.

Regional institutions Arctic affairs have been drawing the attention of more and more players, and now loom large for several fairly recent regional bodies as well as numerous broader institutions that previously showed scarce interest in Arctic issues. Several processes have contributed to this change. The end of the Cold War and lower military tension in the North paved the way for deeper and more formalized cooperation on economic, environmental and cultural matters, as well as greater involvement of foreign companies in commercial activities. Changes in the global economic balance have spurred interest in new transport corridors between Asia, Europe and North America, and in new energy provinces like the Arctic. Rising temperatures, with the retreat of multi-year ice, have raised expectations of easier access to natural resources in the Arctic Ocean as well as in coastal areas. Also contributing to the surge of interest in Arctic affairs has been the ongoing accumulation of knowledge through scientific investigation and the mapping and assessment of natural resources. Today a string of sub-regional or circumpolar institutions regularly brings together politicians, government officials and non-state actors including scientists, business interests and environmental organizations to address a range of Arctic affairs. Up until the late 1980s, in contrast, international

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institutions operating across the East – West divide were few and far between.17 In the European segment of the Arctic Ocean, the only issuearea with a track record of in-depth, institutionalized East –West collaboration was fisheries.18 International relations were marked by the strategic sensitivity of the region, stemming from the role of strategic nuclear submarines deployed in Arctic waters, and the corresponding early-warning systems for missiles, in support of the military deterrence between the two superpowers.19 Then, in 1987, Soviet leader Gorbachev launched an initiative for broader and deeper collaboration with his nation’s Arctic neighbours, thereby triggering a wave of collaborative initiatives in the North.20 Western states as well as NGOs were quick to heed these cooperative signals, viewing improvements in general East –West relations as a window of opportunity for creating an institutional infrastructure that had been largely lacking. As is often the case, denser multilateral ties emerged first among NGOs, but regional states quickly joined in, spurring a veritable ‘cooperative Olympics’ in the Arctic. An informal network of polar scientists eager to improve the compatibility of data compiled by Western and Soviet scientists created the International Arctic Science Committee in 1990. Next in line was a Finnish initiative which produced the intergovernmental Arctic Environmental Protection Strategy (AEPS), including a string of permanent working groups tasked with various programme activities. In 1998, those working groups were incorporated into the Arctic Council, a body that had been formally established two years before on a Canadian initiative and today is clearly the foremost of the Arctic-specific international institutions.21 Biannual ministerial meetings adopt declarations directing Council activities, with implementation overseen by the members’ Senior Arctic Officials. Working groups in areas like environmental monitoring, biodiversity protection, and sustainable development prepare environmental assessment reports and other studies, sometimes involving non-binding recommendations on such matters as environmental toxics, climate change, oil and gas activities, and shipping. Ad hoc task forces have dealt with, inter alia, the development of regional international agreements on Search and Rescue (2011) and Marine Oil Pollution Preparedness and Response (2013). A Permanent Secretariat has been operational since 2013, as has a Project Support Instrument for improving regional capacities in areas such as integrated hazardous waste management. Alongside with this circumpolar institution, several narrower processes provide institutional means for communication and coordination across Arctic boundaries. The Barents Euro-Arctic Region (BEAR) emerged in 1993 as

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the result of a Norwegian initiative; its Barents Council brings together representatives of the governments of the Russian Federation, the Nordic states and the European Commission, while a Regional Council involves province-level governments and indigenous peoples’ organizations in the region.22 Another sub-regional body, the Council of Baltic Sea States, has engaged in environmental and health issues in parts of the Arctic, although its main geographical emphasis lies somewhat further south.23 The Arctic Military Environmental Cooperation (AMEC) began in 1996 and for many years provided a vehicle for cooperation among the defence ministries of Norway, Russia, the USA and the UK for dealing with some of the severest environmental legacies from the Soviet period: the vast amounts of poorly managed high-level nuclear waste.24 An important feature of these Arctic-specific institutions has been their basis in soft-law instruments (that is, without legally binding force) and their emphasis on programme activities such as knowledge building and capacity enhancement rather than international regulation. Environmental monitoring soon emerged as the specialization of the Arctic Council, with its Arctic Monitoring and Assessment Programme busily examining pathways and levels of environmental toxics as well as their effects on human health and Arctic flora and fauna. Other working groups have formed nuclei for more specialized assessments, like those on Arctic oil and gas, Arctic biodiversity, and Arctic marine shipping. As to capacity enhancement, the Health Programme of the Barents Euro-Arctic Region has helped fund and coordinate efforts to combat communicable diseases like HIV and tuberculosis, and various internationally funded projects under the Arctic Council Action Plan to Eliminate Pollution in the Arctic have sought to improve the collection, storage and decontamination of hazardous substances in Northwest Russia – especially PCB and now-banned pesticides.25 Also the recent international agreements negotiated under the Arctic Council (but adopted by the Arctic states, since the Council is a soft-law body) on search and rescue and oil spill preparedness should be seen as capacity-enhancement endeavours. The former clarifies the spatial division of responsibility for maritime and aeronautical search and rescue, improves lines of communication among the relevant agencies in Arctic states, and sets procedures for border crossing during rescue operations.26 These agreements are legally binding, but their aim is to improve the maritime infrastructure, not to regulate maritime activities as such. Thus, quite a few international bodies with an Arctic focus have emerged since the early 1990s – some narrowing in on a specific issue-area, others with a broad substantive scope. Among the forces driving the

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creation of these circumpolar or sub-regional institutions that focus on knowledge building and capacity enhancement was the determination to exploit a window of opportunity to enable the Russian Federation and the other Arctic states to work together within robust cooperative institutions.

Global institutions addressing Arctic issues Important as Arctic region-specific institutions are, they rarely engage in regulatory activities. The sole exception remains fisheries, and here a broader institution that involves a number of European port states has recently become more important for effective governance. In most other areas, ranging from environmental protection to Arctic maritime transport, any regulatory activities occur primarily in multilateral institutions with broader membership and spatial ambit. As regards fisheries, two international institutions are central for managing fish stocks in the European segment of the Arctic Ocean, stocks that are shared among the coastal states or straddle into the adjacent highseas areas. The world’s biggest cod stock, Northeast Arctic cod, is managed under the bilateral Norwegian –Russian Joint Commission on Fisheries, which meets annually to adopt and allocate total quotas and other regulations for cod and other shared stocks.27 Straddling stocks are managed under a network of bilateral agreements linked to the North-East Atlantic Fisheries Commission (NEAFC); the NEAFC has recently acquired a role also in the system for improving compliance with Northeast Arctic cod regulations, specifically by providing the necessary port-state controls after Barents Sea fishers began landing their catches in European ports outside the Arctic.28 Also with continental shelf resources, important international regulatory institutions are multilateral and involve states beyond the region. All the Arctic states are party to the IMO MARPOL Convention, which places legally binding restrictions on emissions and discharges, sometimes more stringent for floating or fixed offshore platforms than for ships. The OSPAR Convention on Marine Pollution in the North East Atlantic regulates the shelf activities of Norway and Denmark/Greenland as well as 13 non-Arctic coastal states and the European Commission.29 The Convention prohibits the disposal and abandonment of any offshore installation at sea, with certain exceptions subject to a national decommissioning permit. Following the 2010 Macondo accident in the Gulf of Mexico, a formal German proposal to prohibit deepwater drilling in the Arctic was stopped only by adamant protests from Greenland and the UK. The OSPAR Offshore Oil and Gas

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Strategy has generated more stringent discharge regulations than those globally applicable under the IMO, especially with respect to chemicals and oil in produced water, and also serves as a vehicle for developing and sharing Best Available Technology (BAT) standards. Similar comments apply to Arctic shipping. The global IMO is the main venue here, as evidenced in the efforts to strengthen the substance, scope and form of the 2002 Guidelines for Ships Operating in Arctic Ice-covered Waters. The Polar Code, adopted in 2015, commits the IMO membership of 162 states to legally binding rules that are more compatible with the special challenges to maritime transport in a region marked by environmental sensitivity, high latitudes and remoteness from densely populated areas. Arctic maritime sensitivities revolve mostly around oil spill risks,30 made graver by the slowness of evaporation and bacteriological degradation, and inadequate technologies for retrieving oil from ice. Among the special challenges that derive from high latitude are icing and poor satellite coverage, whereas the remoteness of Arctic shipping lanes explains the scarcity of hydrographic information, navigational aids and emergency response capacity. One obvious aspect of Arctic complexity is the rising number of institutions at different governance levels seeking to influence developments. Some of the international bodies focus on the Arctic in particular, helping regional states to coordinate their knowledge building efforts and enhance their capacities in areas like maritime infrastructure and the application of environmental technologies. International regulation of Arctic activities, however, is undertaken primarily in venues with a broader spatial ambit and wider participation. We now turn to the reasons for this division of labour.

Drivers of Arctic Complexity As noted above, the mushrooming of Arctic cooperative bodies in the 1990s was triggered by improvements in East –West relations, associated with the transition from the Soviet Union to the Russian Federation. The more general factor at work here is the Arctic dependency on processes on a spatially broader scale, relevant not only geopolitically but also in terms of economy, environmental change and legal developments. This openness of the Arctic to a wide range of influences from beyond the region has been one important driver of institutional complexity; another is the allocation of regulatory competence over various ocean uses under international law. Those drivers also imply clear differences among regional

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and global institutions as to their capacities to occupy certain governance niches effectively.

External dependency Many of the governance challenges drawing the attention of more and more Arctic or global institutions derive from processes and developments outside the region. Commercial interest in Arctic natural resources is fuelled by the rising demand for certain commodities produced in large quantities in the North, notably petroleum, minerals and seafood. Arctic resource extraction depends on high commodity prices, since harsh environmental conditions and remoteness from major markets mean operational costs typically higher than for corresponding activities undertaken further south. Since the mid1990s, the main game-changer in the markets for Arctic commodities has been the geo-economic rise of certain Asian and Latin American ‘emergent economies’, especially China, India and Brazil. The expanding role of these countries in world production and consumption, and their dependency on natural resources found in other parts of the world, also account for the interest in new sea-lanes for transport, like the Northern Sea Route that links Europe with Asia and Pacific America. More recently, however, the financial crisis that began in 2008 and the development of technologies that make production of shale gas and shale oil much less expensive, in the USA and elsewhere, have tempered some of the readiness to invest in costly and risky Arctic petroleum projects, as evident in the 2012 decision to postpone development of the Russian Shtokman gas field.31 Thus we see that the pace of Arctic economic development is determined not only by the policies of Arctic states or the international rules that apply in the region, but also by the availability of alternative investment opportunities elsewhere, including the institutions that affect their lucrativeness. Also environmental challenges in the North derive in large part from activities and decisions made outside the region. Most of the changes currently underway in the region are associated with a rise in mean temperatures that is roughly twice the global average, driven mostly by greenhouse gas (GHG) emissions in industrial and urban centres further south. The same is true for the hazardous substances that bio-accumulate in Arctic food chains and threaten regional ecosystems. The pole-bound atmospheric and oceanic circulation systems, as well as rivers draining into the Arctic seas, transport a range of toxic substances that originate or volatilize further south – including heavy metals like mercury and persistent organic pollutants (POPs). Arctic-specific institutions cannot deal with these problems without engaging other international institutions with broader

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participation. That is why various UN-based regulatory processes have been so important for regulating the use, production and trade of hazardous substances that end up in the Arctic, notably the 2001 Stockholm Convention on POPs32 and the 2013 Minamata Convention on Mercury.33 The major drivers of Arctic environmental problems are located outside the region, and so the most important Arctic environmental agreements are necessarily global in scope. Moreover, in some of the cases when Arctic challenges do originate in activities within the region, the financial resources and technologies needed for tackling them are found outside the region. For more than two decades, a string of international institutions has helped to raise safety levels at nuclear installations and storages of radioactive waste in Northwest Russia.34 The Kola Peninsula, which borders on both Finland and Norway, is home to Russia’s Northern Fleet, and has for decades had the greatest concentration of nuclear installations in the world. During the early 1990s, the world was alerted to a severe nuclear fuel-cycle and waste-flow problem in the region, centred on grossly inadequate capacities for interim storage, treatment and containment of high-level waste and for transporting it to long-term storage or reprocessing facilities.35 Even worse, the severity of the problem was intensifying, with the upcoming decommissioning of a great many nuclear submarines in the Northern Fleet. State-security and environmental-security threats combined to motivate Western states to commit substantial resources for raising safety standards at Northwest Russian nuclear facilities, military as well as civilian, and for removing bottlenecks in the flows of nuclear wastes and spent nuclear fuels.36 Due to differences in membership, objectives and capacities, various international institutions, most of them involving non-Arctic states as well, have played complementary roles in overall efforts to mitigate nuclear threats in the region. A bilateral US –Russian institution formed the early core of this Arctic nuclear-safety complex, focusing on the removal of nuclear weapons and their launchers, and funded by the US Cooperative Threat Reduction (CTR) programme, the first major foreign-financing muscle employed for nuclear-safety purposes in Russia. A ‘softer’, societal security threat is posed by the risk of radionuclides being accidentally released into the environment, disrupting Arctic ecosystems and the commercial activities that depend on them. Well-publicized reports of radioactive contamination of spawning grounds or growth areas for valuable Arctic fish stocks, for instance, would presumably reduce demand and thereby hurt regional fisheries. These environmental-security threats weighed heavily on Norway’s decision to develop a costly programme in

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support of Northwest Russian nuclear safety.37 Russia has drawn up bilateral agreements on nuclear-safety collaboration with major donor states, notably France, Germany, Italy, Norway, Sweden, the UK and the USA. At the sub-regional level, as noted, the AMEC involved the defence ministries of certain Arctic states as well as the UK. The Arctic Council has placed radionuclides on the list of substances examined under its Arctic Monitoring and Assessment Programme (AMAP) and has also organized nuclear-accident exercises under its Emergency Prevention, Preparedness and Response (EPPR) working group. In addition, many broader institutions have been active – most notably the G8 with its Global Partnership against the Spread of Weapons and Materials of Mass Destruction, the International Atomic Energy Agency (IAEA), and the Northern Dimension Environmental Partnership (NDEP). Bilateral, regional and global institutions have played important but different roles in increasingly more concerted efforts to cope with the security threats associated with the major Arctic challenge of radioactive waste in Northwest Russia. Arctic institutional complexity, in short, derives in large part from the interconnectedness of the region with global economic, environmental and political processes. Many Arctic problems are caused by non-Arctic activities, or require non-Arctic action for their solution.

Regulatory competence Another key determinant of Arctic institutional complexity is the allocation of legal competence over regional activities, set forth in international ocean law as codified in the 1982 UN Law of the Sea Convention (UNCLOS). This treaty has 168 parties (as of February 2017); although the USA has yet to ratify it, major provisions of UNCLOS codify international customary law and are therefore binding on all states. Important elements of this globally applicable international law have had ambivalent effects on Arctic complexity: extended coastal state jurisdiction over natural resources has helped to reduce institutional complexity, whereas special rules on maritime regulation in ice-covered waters places Arctic shipping on the regulatory agenda of several institutions, national as well as international. One factor that greatly reduces the complexity of Arctic international governance is that the region’s living and non-living natural resources are located predominantly within the maritime zones of the five Arctic coastal states – Canada, Denmark/Greenland, Norway, Russia and the USA. Under UNCLOS, coastal states have sovereign rights to regulate and exploit natural resources in the water masses, the seabed, as well as the subsoil of their exclusive economic zones (EEZs), which may extend 200 nautical miles from

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the baselines. With Arctic-wide emergence of EEZs, many fish stocks that used to be regulated under management regimes involving numerous states could now be managed nationally or under bilateral coastal-state regimes. For seabed and subsoil resources – which include oil, gas and mineral nodules – those rights extend even further, throughout the natural prolongation of the coastal state’s land territory (the ‘continental shelf’), within certain overall limits. Thus, it should have come as no surprise when the five Arctic coastal states made clear in their 2008 Ilulissat Declaration, partly in response to calls for a new international treaty on Arctic environmental protection, that they see no reason why they should cede any of the regulatory leeway conferred upon them by international law as regards management of natural resources and the environment: ‘By virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean the five coastal states are in a unique position to address these possibilities and challenges [and] . . . have a stewardship role in protecting’ Arctic ecosystems.38 As regards Arctic resource management, coastal-state institutions are the ones to watch. For Arctic shipping, however, the situation is more complex. This is because the EEZ concept reflects a balance between coastal-state arguments that multilateral resource management had failed to conserve living resources and the determination of major maritime states like the USA, the Soviet Union and the UK to retain navigational rights and freedoms for commercial and naval vessels.39 The UNCLOS sets maximum standards for what states may demand of a vessel flagged by another state – and as those regulatory ceilings become lower, the further away from the coastline a vessel operates. In ports and internal waters, coastal states have the same monopoly on regulation and rule enforcement as on land.40 In the territorial sea, they may ‘adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels’ as long as they do not impede ‘innocent passage’ or go beyond ‘generally accepted international rules and standards’ as regards ‘the design, construction, manning or equipment of foreign ships’.41 In their EEZs, however, coastal states are not allowed to set any rules beyond those ‘conforming to and giving effect to generally accepted international rules and standards established through the competent international organization’42 – meaning the IMO. These general constraints on coastal-state regulatory action explain why IMO-based treaties form the backbone of the global shipping regime, but for ‘ice-covered areas within the limits of the exclusive economic zone’, the UNCLOS ‘ice Article’ 234 modifies this situation.43 It grants coastal states

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‘the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels’, provided that those rules show ‘due regard to navigation’. Ambiguity as to whether these rights apply also landwards of the EEZ, and therefore might restrict the right to unimpeded transit passage that foreign vessels have in straits used for international navigation, renders Article 234 contestable as a basis for ambitious coastal-state regulation of Arctic shipping.44 Canada and Russia have adopted standards on vessel discharges and design, construction, equipment, and manning in Arctic waters adjacent to their coasts stricter than the standards agreed in IMO instruments.45 Rather than relying primarily on Article 234, however, both states claim that parts of the shipping lanes in question are internal waters. Those claims have been explicitly contested by the USA, and in the case of Canada also by the EU.46 In summary, the sovereign rights that coastal states have over most of the natural resources available in the Arctic serve to constrain the roles of international institutions in resource management, but such institutions remain central in other areas like climate change, the combat of environmental toxics, and shipping. Many of the environmental problems of the Arctic originate in activities outside the region, and the retention of most of the flag-state monopoly on shipping regulation and enforcement means that broader institutions, especially the IMO, have roles to play also in the governance of activities within the region.

Institutional niche advantages The extent of outside dependency and the specific allocation of regulatory competence vary across issue-areas, and can account for much of the institutional complexity found in Arctic governance. That explanation can be further specified by the concept of institutional niches, which I relate to certain generic tasks of governance. The core idea is that institutions differ in their capacities to perform each of those tasks, and that such differences drive complexity. In ecology, a ‘niche’ refers to the placement of a species or population in an ecosystem, notably that part of the resource domain where it out-competes other local populations. Organizational analysts have used this term to narrow in on the relationship between institutional features and the ability to extract the resources necessary for organizational survival.47 Elsewhere I have identified several distinctive governance tasks that those operating an institution may address, providing reasons for states to invest time and energy in the institution.48 One task is to build knowledge about the severity of a problem and the effects of various options for dealing with it.

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We noted above that the Arctic Council opted for such a niche right from the outset, especially through its AMAP activities. A second governance task is the elaboration of behavioural norms, whether soft-law instruments or binding rules. Over time, two other tasks have gained in importance for international institutions: providing means for responding to non-adherence to such norms, either by enhancing the administrative, technological or financial capacities of regime members that find implementation difficult or by enforcing rules through structures for behavioural monitoring, compliance review, and some form of punishment.49 A niche concept linked to those generic tasks helps explain the division of labour among sub-regional, circumpolar and global institutions in Arctic governance. The emphasis that regional institutions have given to knowledge building and capacity enhancement reflects certain distinctive advantages those bodies have over others for mobilizing the funds and expertise needed for conducting those two governance tasks effectively. For instance, the Arctic Council was better placed than broader, UN-based institutions in generating willingness among regional states to cover the costs of a long-term monitoring and research programme on the environmental toxics that flow into the region and the damage they inflict on regional ecosystems as well as human health. That greater willingness to pay derived in part from a perception that broader security interests in the region would be well-served by a stable, reasonably successful circumpolar institution crossing the old East –West divide in the Arctic.50 Environmental monitoring is a benign area of cooperation for achieving such success, since it does not impinge on controversial issues of sovereignty and jurisdiction. Similar comments are in order for capacity enhancement. Especially during the 1990s, when Russian public finances were in disarray, the preparedness of Western governments to cover parts of the costs of environmental clean-up projects, for instance in connection with inadequate storage of toxic pesticides and nuclear waste, was important for realizing such activities. Outside willingness to fund environmental projects frequently requires substantial interdependencies between donor and recipient countries – and since mutual dependence is usually stronger among neighbouring states, regional or sub-regional institutions are often better placed for dealing effectively with the capacity-enhancement task than are global ones. The interdependence mechanism, where regional institutions are wellplaced for promoting costly problem solving, is relevant also to another kind of capacity enhancement: resource pooling for reasons of efficiency. Consider the emergence of cooperation on search and rescue (SAR) or oil

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spill preparedness in the Arctic, which emerged first at the sub-regional level and has only recently become circumpolar. One explanation is that the synergies achievable in these areas are greater among close neighbours than in the wider circumpolar area. For instance, Norwegian –Russian SAR collaboration dates back to the 1950s, and bilateral oil spill preparedness cooperation began already in the 1980s. Years before the Arctic Council established a task force to explore the basis for a circumpolar SAR instrument, the member states of the Barents Euro-Arctic Region arranged a series of Barents Rescue training exercises among the relevant agencies on each side, and in 2008 adopted an international agreement with points of contact and procedures for notification of emergencies, mutual assistance, and border crossings.51 On the other side of the Arctic, Canada, Russia, and the USA have also created cooperative structures in these areas since the late 1980s. Regional and especially sub-regional institutions have niche advantages in the governance task of capacity-enhancement because interdependencies are closer and more multifaceted, frequently justifying international transfer or financial or technological resources. In the Arctic case, the broader security interest in enmeshing Russia within cooperative institutional structures has provided additional incentives for such transfer, and for investing in the environmental monitoring programmes that made knowledge building an early specialization of the Arctic Council. In contrast, the external dependency of the Arctic region and the allocation of regulatory competence over maritime activities leave global institutions far better equipped than regional ones to occupy the regulatory niche in many environmental sectors and in shipping. International regulation of GHG emissions has for more than two decades been centred on the UN Framework Convention on Climate Change. The universal membership of that regime made it better placed for regulatory action than more narrow institutions, because mitigation of GHG emissions must involve major contributors throughout the world. Its poor regulatory performance after the Kyoto Protocol reflects the failure of regime members to exploit that advantage, notably their inability to find a burden-sharing formula that might induce the USA as well as large emerging-economy states like China, India, and Brazil to assume legally binding commitments.52 No less than in the climate area, regulatory progress on environmental toxics requires international institutions with memberships comprising also non-Arctic states simply because the discharges that end up in the High North originate in industrial centres further south. As we have seen, shipping presents a mixed picture. International law constrains the rights of coastal states to regulate foreign vessels unilaterally, thus placing the IMO well,

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especially for costly matters like design, manning and equipment, although those constraints are less severe in ice-covered waters than elsewhere. As the IMO Polar Code negotiations demonstrate, however, Arctic as well as nonArctic states have seen it in their interest to explore the basis for setting common standards also in such waters within a global framework.53 Global international institutions have a regulatory edge over regional ones whenever activities outside the Arctic generate regional problems and whenever regional activities fall under the jurisdiction of non-Arctic states. The niche concept thus helps to integrate the other two drivers of institutional complexity in the Arctic, offering a concise yet nuanced explanation. External dependency and the allocation of competence inherent in UNCLOS generate differentials across international institutions in terms of how well equipped they are to conduct important governance tasks. Jointly, these factors help to explain the large number of national and international institutions that are relevant to Arctic governance, as well as the emphasis among regional institutions on knowledge building and capacity-enhancement and the predominance of global institutions in the regulatory governance task, especially as regards shipping, environmental toxics, and climate change.

Institutional Complexity and Effective Governance What does such complexity imply for the ability of states to realize potential gains from cooperation? The co-existence of numerous distinctive institutions within an area of international governance, with separate sets of objectives and instruments, has certain merits and some potential downsides. This section shows that the Arctic experience cannot substantiate the worries expressed by some observers and practitioners that institutional complexity implies inefficiency, normative ambiguity and greater risk of international discord. An important reason for the conducive division of institutional tasks that marks Arctic governance is deliberate interplay management by those operating the institutions in question. In examining the pros and cons of complexity, it will prove useful to look at each governance task separately.

Knowledge building As regards the generation of knowledge that can support joint decision making, Alter and Meunier54 have argued that institutional complexity leads to fragmentation of scientific research, exacerbating problems of bounded rationality for state decision makers and making them increasingly

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dependent on non-governmental advisors or ‘knowledge brokers’, like civil society organizations or business actors, with agendas of their own. Others have warned that fragmented knowledge building typically yields wasteful duplication of activities and insufficient research on processes that cross sector lines.55 However, empirical studies of international environmental governance indicate that states are increasingly aware of these possible challenges of complexity, and that they deliberately seek to counteract them.56 States frequently create their own knowledge brokers, by instructing assessment structures under existing international institutions to examine whether and how results from corresponding bodies under other international institutions might affect their scientific or technical inputs to political decision making. In the context of Arctic governance, we noted above that the Arctic Council was particularly well placed to generate willingness to pay for the long-term monitoring and research programme necessary for documenting the sources, pathways and impacts of hazardous substances that flow into the region. Since the AMAP programme was tailormade to fit the screening criteria in use by a special UN Economic Commission for Europe (ECE) Task Force set up to identify chemicals in particular need of regulation under the Convention on Long-Range Transboundary Air Pollution (CLRTAP), institutional complexity proved highly compatible with an ongoing regulatory process that involved the most relevant dischargers of industrial pollution.57 Mutual awareness of ongoing scientific or diplomatic activities in interacting institutions can generate cross-institutional knowledge in support of conducive interplay.

Regulation On the regulatory side of governance, many scholars have worried that institutional complexity breeds normative ambiguity or even open contradictions.58 Indeed, Raustiala and Victor59 have shown that prospective ambiguity can motivate states to enhance institutional complexity, as evident in the international politics of plant genetic resources. In that policy area, states favouring stronger intellectual property-right protection have championed regulation under the global trade regime, whereas many developing countries and others have pushed for substantively competing rules that would put into practice either the benefit sharing principle of the Convention on Biological Diversity or the common-heritage principle of the FAO-related network of gene banks.60 It would be a mistake, however, to ascribe the normative tension that sometimes ensues from such ‘forum shopping’ to institutional complexity. Such tension results from the underlying political disagreement that would exist also under a more

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unified institutional framework. There is little basis for assuming that less complexity would yield unambiguous norms under such circumstances – equally or more probable outcomes are deadlocked negotiations, vague norms that mask disagreements, or watered-out rules. Conversely, the regulatory forum-shopping opportunity inherent in institutional complexity is a two-way street that may allow not only ‘strategic inconsistency’61 but also provision of leadership by a smaller set of states that agree on more ambitious norms than those achievable within a broader setting. Efforts to protect the North-East Atlantic marine environment under the OSPAR Commission, for instance, were greatly enhanced by the creation of a new institution, a series of North Sea Conferences with narrower membership, higher political saliency and more intrusive performance review procedures than the existing international regime.62 The more ambitious norms agreed upon under the North Sea Conferences were subsequently taken up by the broader regime. Institutional complexity, therefore, can help states to overcome the slowest-boat problem that marks consensus-based international governance, paving the way for ‘faster-boat’ solutions that may attract a broader following later on.

Capacity enhancement Risks associated with duplication and normative tension are also in focus for those who see institutional complexity as an impediment to effective response under international regimes whenever states have failed to implement agreed policies or to comply with legal commitments. According to this argument, uncoordinated investment in diverse capacity-enhancement projects under separate international institutions fails to capitalize fully on the scarce resources made available for such purposes. Yet the long-standing efforts of the United Nations Environment Programme (UNEP) to coordinate capacityenhancement activities under global international institutions have met with only limited success, in part because states have not been willing to endow this institution with strong financial means for inducing cross-regime coordination.63 We noted above that willingness to finance foreign capacityenhancement is often greater among states marked by dense relationships of interdependence, which speaks against a coordination strategy that relies exclusively on global, overarching bodies such as UNEP. Decentralized coordination can be a way to maximize the capacity-enhancement potential of several regional initiatives with separate financial muscles, as evidenced in the multi-level international efforts to improve nuclear safety in Northwest Russia after the break-up of the Soviet Union. A Contact Expert Group was set up by the International Atomic Energy Agency to allow exchange of information

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on the more than 200 international projects underway in the area, and to encourage coordination and provide recommendations on specific projects. A core function of this group was to establish priorities among the nuclear safety challenges in the region. Those priorities were then confirmed and specified in a ‘master plan’ that the Russian authorities drew up with support from, and subsequent endorsement of, numerous Western states willing to provide project funding, typically under bilateral or sub-regional arrangements with Russia.64 Institutional complexity can provide a larger number of platforms for mobilizing international capacity enhancement funds, and need not preclude decentralized coordination.

Rule enforcement Whereas capacity enhancement aims to facilitate rule compliance by positive means, rule enforcement seeks to deter rule violation by monitoring behaviour and imposing costs on non-adherence. Like knowledge building and norm development, rule enforcement can be negatively as well as positively affected by institutional complexity. Normative tension or inconsistency across regimes undermines the ‘compliance pull’ of an international institution, making it easier to justify non-adherence.65 However, the same is true for a substantively vague norm – which, as noted, is what the underlying political disagreement is likely to yield within an integrated structure. Biermann and associates66 suggest that closer integration between environmental institutions and the World Trade Organization (WTO) might ameliorate competitiveness worries in connection with costly environmental measures, and thus advance the environmental agenda. An even more probable effect of such integration, however, would be detrimental to ambitious environmental governance. Today several international environmental regimes, including the regime for protection of stratospheric ozone, encourage or oblige their members to impose trade restrictions on non-participants and non-compliers.67 Had explicit approval by the WTO been required, as would be the case in a more integrated structure, such strengthening of the enforcement systems in important environmental sectors would have been much more difficult to achieve – consider here the slow and miniscule progress achieved under the Doha round of global trade negotiations on the relationship between trade and environmental standards. Instead of seeking such explicit approval, those operating international environmental regimes have adapted their trade-related compliance measures to fit the general exemptions of the global trade regime, thereby minimizing the risk of having such measures challenged under the WTO’s binding dispute settlement system.68 Indeed,

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Gehring69 has indicated that a division of labour has emerged between the international trade regime and multilateral environmental agreements: whereas the WTO defines the general criteria that states must heed when considering ‘green’ trade measures, the environmental treaties provide arenas for designing and adopting such measures. It was institutional complexity that allowed the emergence of means of enforcement that would have been very difficult to obtain within an integrated structure that required explicit approval under the global trade regime. In short, institutional complexity can be conducive, provided those who operate the elemental institutions are aware of potential pitfalls and take steps to avoid them. Coordination of knowledge building and capacity enhancement may occur in decentralized ways, without any overarching institutions. States operating international regimes have reasons as well as incentives for avoiding or softening contradictions among substantive norms or rule-enforcement procedures. Indeed, institutional complexity itself frequently reflects successful attempts to exploit cooperative gains among subsets of states or in specific issue-areas, gains that would have been harder to realize within a unified institutional system.

The role of interplay management We have seen that reaping the gains and avoiding the pitfalls of institutional complexity require awareness of institutional interplay and deliberate action on the part of those who operate the institutions – what is known as interplay management.70 In correspondence with findings from earlier research,71 the experience with Arctic governance in areas such as environmental protection, shipping and resource management shows that such interplay management can be conducted also without overarching institutions or formal cross-regime coordination. Thus, the division of labour that has emerged in the effort to combat Arctic environmental toxics, with the Arctic Council specializing in knowledge building and capacity enhancement and leaving regulatory work to UN-based institutions with broader membership, is conducive because the Council was particularly well placed to generate the funds needed for enhancing regional monitoring activities and for transferring clean production, storage and chemicals-destruction technologies from Western firms to Northwest Russian operations. No direct inter-institutional coordination was required to make the complexity conducive. The environmental scientists and officials involved in one of these various intergovernmental processes tend to be active also in the others – Canadian David Stone, for instance, was both chair of AMAP and co-chair of the ECE

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task force evaluating the need for stronger POPs measures under CLRTAP.72 Interplay management proceeded on the basis of overlapping participants who were well aware of the advances and bottlenecks that marked each institution’s work on the problem. Similar comments are in order with respect to shipping: the Arctic Council concentrates on knowledge building, most prominently by the Arctic Marine Shipping Assessment,73 and capacity-enhancement initiatives centred on search and rescue collaboration and oil spill preparedness and response. Those are the governance tasks the Arctic grouping of states are particularly well equipped to take on, given their long experiences with Arctic marine operations and – especially within the dyads of neighbouring Arctic states – the synergies derivable from pooling scarce maritime infrastructures.74 A global institution, with a membership flagging 98 per cent of the world’s merchant fleet and capable of adopting legally binding rules, is much better placed for producing international regulation that can help to raise the safety of Arctic maritime transport, as evidenced in the placement of the Polar Code negotiations within the IMO. Again, no formal links were necessary to obtain such a conducive division of labour – the Arctic Council is not even among the more than 60 intergovernmental organizations with observer status under the IMO. Nor was any overarching structure or inter-institutional coordination involved when the NEAFC stepped in to support the rule-enforcement activities under the Norwegian–Russian Joint Fisheries Commission, as it did by amending its Scheme of Control and Enforcement to apply beyond its regulatory area (the high seas) and comprise also frozen fish taken in the regional EEZs.75 The rising complexity of this enforcement system was conducive due to a dramatic change in the production and marketing strategies of Russian fisheries companies. Previously, these actors landed their produce in the ports of Norway and Russia, allowing the catch reports of fishers to be cross-checked against the landings received by processors to complement at-sea inspection in the monitoring of rule compliance. Around 2000, however, Russian vessels shifted their direct landings from Norwegian to various European ports, rendering those compliance measures inadequate. Estimates of unreported catches of North-east Arctic cod indicated Russian quota-overfishing rising from 20 per cent in 2002 to nearly 40 per cent in 2005, with potentially severe impacts on stock sustainability, distribution of gains, and quota responsibility among managers and fishers.76 The extension of the NEAFC scheme obliged all members, including every major port state in the North-east Atlantic, to prohibit any NEAFC vessel from landing or transshipping frozen fish in its port unless the flag states confirms that the catch

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has been taken under its quota. Similar to the environmental toxics case, the mobilization of the NEAFC scheme for enforcing non-NEAFC regulations was obtained not by cross-institutional coordination but by some members in one regime – here, Norway, and then Russia too – pressing for complementary measures in another, better-equipped regime. In short, therefore, engagement by many institutions in efforts to address certain problems may allow each of them to specialize in governance tasks they are particularly well equipped to conduct. The fact that numerous institutions impinge on Arctic governance is not as special as some commentators and practitioners have implied, nor is it necessarily a problem. Rather, such complexity can be conducive, provided it reflects a niche-sensitive division of institutional labour achievable also without firm integration.

Conclusion Institutional complexity is a predicament of Arctic governance because major economic, political and environmental developments in this region depend heavily on external processes and on non-Arctic players. Whether such complexity is a curse or a blessing depends on the quality of the interplay among the institutions involved – in particular, on whether their division of labour is accepted by the major states and reflects their respective niche advantages, meaning that each body concentrates on governance tasks it is particularly well equipped to conduct. In this chapter, I have argued that Arctic institutional complexity is reflective of such institutional niche advantages. I have distinguished among four governance tasks and shown that the Arctic institutions that emerged after the Cold War are especially well placed to generate the resources needed for knowledge building and capacity enhancement. In contrast, broader international institutions, often global ones, are in a better position to extract legally binding commitments from the relevant sets of players in those important issue areas where non-Arctic states and industries are prominent, including shipping, climate politics, and discharges of environmental toxics. In view of the rise in Arctic industrial and maritime activities, each of these areas may require stronger regulation and more intrusive enforcement, but Arctic-specific institutions are not best venues for such strengthening. Achieving the conducive complexity that marks Arctic governance has required interplay management, that is, deliberate effort among those who operate the institutions to exploit differentials in niche advantages.

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However, it has not required integration of decision making, centralized coordination, or even formal communication among the institutions involved. In the Arctic cases reviewed here, interplay management has proceeded in a decentralized manner, based on partly overlapping participation and leadership provided by those regime members who are particularly concerned. This pattern corresponds with earlier findings from research on interplay management in international environmental governance.

Notes 1. This chapter is a revised and abridged version of Olav S. Stokke, ‘Institutional complexity in Arctic governance: Curse or blessing?’ in L. C. Jensen and G. Hønneland (eds), Handbook of the Politics of the Arctic (Cheltenham, Edward Elgar, 2015), pp. 328–51; it appears here with kind permission from Edward Elgar. 2. See e.g. Germany, ‘Guidelines of the German Arctic Policy’ (Berlin, Federal Foreign Office, 2013), Japan, ‘Japan’s Arctic Policy (Headquarters for Oceans Policy, 2015) and EU, ‘An integrated European Union policy for the Arctic’ (High Representative of the Union for Foreign Affairs and Security Policy, 2016). 3. Fisheries and Oceans Canada, ‘Joint Statement – Recently Convened Five Arctic Coastal States Meeting’, Government of Canada, February 27 2014. Available at http://news.gc.ca/web/article-en.do?mthd¼ index&crtr.page ¼1&nid¼819859 [Accessed 21 February 2017]. 4. Timo Koivurova and Erik J. Molenaar, International Governance and Regulation of the Marine Arctic (Oslo, WWF International Arctic Program, 2009). 5. Alf H. Hoel, ‘Do we need a new legal regime for the Arctic Ocean?’, International Journal of Marine and Coastal Law 24/2 (2009), pp. 443– 56; Norwegian Ministry of Foreign Affairs, The Norwegian Government’s High North Strategy (Oslo, Ministry of Foreign Affairs, 2006). 6. See also Olav S. Stokke, ‘A legal regime for the Arctic? Interplay with the Law of the Sea Convention’, Marine Policy 31/4 (2007), pp. 402 – 8; ‘Environmental security in the Arctic: The case of multilevel governance’, International Journal 66/4 (2011), pp. 835 – 48; ‘International environmental governance and Arctic security’, in R. Tamnes and K. Offerdal (eds), Geopolitics in the Arctic: Regional Dynamics in a Global World (London, Routledge, 2014), pp. 121– 46; Oran R. Young, ‘Building an international regime complex for the Arctic: Current status and next steps’, Polar Journal 2/2 (2012), pp. 391 – 407. ¨ rn, ‘The study of international 7. Marc A. Levy, Oran R. Young and Michael Zu regimes’, European Journal of International Relations 1 (1995), pp. 267– 330; Olav S. Stokke, ‘Regimes as governance systems’, in O. R. Young (ed.), Global Governance: Drawing Insights from the Environmental Experience (Cambridge, MIT Press, 1997), pp. 27 – 63. 8. Oran R. Young, ‘Institutional linkages in international society: Polar perspectives’, Global Governance 2/1 (1996), pp. 1 – 24; Olav S. Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (Oxford,

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9. 10. 11. 12. 13. 14.

15.

16.

17. 18.

19. 20.

21. 22. 23. 24. 25. 26.

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS ¨ r and Thomas Gehring (eds), Oxford University Press, 2001); Sebastian Oberthu Institutional Interaction in Global Environmental Governance: Synergy and Conflict Among International and EU Policies (Cambridge, MIT Press, 2006); Sebastian ¨ r and Olav S. Stokke (eds), Managing Institutional Complexity: Regime Oberthu Interplay and Global Environmental Change (Cambridge, MIT Press, 2011). Young, ‘Institutional linkages in international society: Polar perspectives’; ¨ r and Gehring, Institutional Interaction in Global Environmental Oberthu Governance: Synergy and Conflict among International and EU Policies. Kal Raustiala and David G. Victor, ‘The regime complex for plant genetic resources’, International Organization 55 (2004), pp. 277 – 309. Frank Biermann, Philipp Pattberg, Haaro Van Asselt and Fariborz Zelli, ‘The regime complex for plant genetic resources: A framework for analysis’, Global Environmental Politics 9/4 (2009), pp. 14 – 40. ¨ r (eds), Managing Institutional Complexity: Regime Interplay and Stokke and Oberthu Global Environmental Change. Raustalia and Victor, ‘The regime complex for plant genetic resources’, p. 279. Mark Axelrod, ‘Savings clauses and the “chilling effect”: Regime interplay as ¨ r and O. S. Stokke (eds), constraints on international governance’, in S. Oberthu Managing Institutional Complexity: Regime Interplay and Global Environmental Change (Cambridge, MIT Press, 2011). Olav S. Stokke, ‘Trade measures and climate compliance: Institutional interplay between WTO and the Marrakesh Accords’, International Environmental Agreements: ¨ r and Stokke (eds), Politics, Law and Economics 4 (2004), pp. 339–57; Oberthu Managing Institutional Complexity: Regime Interplay and Global Environmental Change. Stokke, ‘Environmental security in the Arctic: The case of multilevel governance’; ‘International environmental governance and Arctic security’; Young, ‘Building an international regime complex for the Arctic: Current status and next steps’. Oran R. Young, ‘The age of the Arctic’, Foreign Policy 61 (1985), pp. 160– 79; Olav S. Stokke, ‘The Northern environment: Is cooperation coming?’, Annals of the American Academy for Political and Social Science 512/1 (1990), pp. 58 –69. Geir Hønneland, Making Fishery Agreements Work: Post-Agreement Bargaining in the Barents Sea Fisheries (Cheltenham, Edward Elgar Publishing, 2012); Olav S. Stokke, Disaggregating International Regimes: A New Approach to Comparison and Evaluation (Cambridge, MIT Press, 2012). Stokke, ‘International environmental governance and Arctic security’. Olav S. Stokke and Ola Tunander, The Barents Region: Cooperation in Arctic Europe (London, Sage, 1994); Olav S. Stokke, Geir Hønneland and Peter J. Schei, ‘Pollution and conservation’, in O.S. Stokke and G. Hønneland (eds), International Cooperation and Arctic Governance: Regime Effectiveness and Northern Region Building (London, Routledge, 2007). Ibid. Stokke and Tunander, The Barents Region: Cooperation in Arctic Europe. Ibid. Stokke, ‘International environmental governance and Arctic security’. Stokke et. al., ‘Pollution and conservation’. Svein V. Rottem, ‘The Arctic Council and the Search and Rescue Agreement: The case of Norway’, Polar Record 50/254 (2013), pp. 284 – 92.

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27. Stokke, Disaggregating International Regimes: A New Approach to Comparison and Evaluation. 28. Olav S. Stokke, ‘Trade measures and the combat of IUU fishing: Institutional interplay and effective governance in the Northeast Atlantic’, Marine Policy 33/2 (2009), pp. 835– 48. 29. See http://ospar.org; membership data as of 21 February 2017. 30. Protection of the Arctic Marine Environment (PAME), Arctic Marine Shipping Assessment (AMSA) (2009). Available at www.pame.is/index.php/projects/arcticmarine-shipping/amsa [Accessed 21 February 2017]. 31. Dag H. Claes and Arild Moe, ‘Arctic petroleum resources in a regional and global perspective’, in R. Tamnes and K. Offerdal (eds), Geopolitics in the Arctic: Regional Dynamics in a Global World (London, Routledge, 2014), pp. 97 – 120. 32. Henrik Selin, Towards International Chemical Safety: Taking Action on Persistent ¨ ping, Linko ¨ ping University, 2000), p. 133. Organic Pollutants (POPs) (Linko 33. Steinar Andresen, Kristin Rosendal and Jon B. Skjærseth, ‘Why negotiate a legally binding mercury treaty’, International Environmental Agreements: Politics, Law and Economics 13 (2012), pp. 425 – 40. 34. Stokke, ‘International environmental governance and Arctic security’. 35. Ibid. 36. Ibid. 37. Ibid. 38. Arctic Ocean Conference, Ilulissat Declaration, 28 May 2008. Available at http:// oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf [Accessed 21 February 2017]. 39. Stokke, ‘A legal regime for the Arctic? Interplay with the Law of the Sea Convention’. 40. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 105, Article 2011, paragraph 3. 41. Ibid., Article 211, paragraph 4. 42. Ibid., Article 211, paragraph 5. 43. Olav S. Stokke, ‘Regime interplay in Arctic shipping governance: Explaining regional niche selection’, International Environmental Agreements: Politics, Law and Economics 13/1 (2013), pp. 65 – 85. 44. Kristin Bartenstein, ‘The “Arctic exception” in the Law of the Sea Convention: A contribution to safer navigation in the Northwest Passage?’, Ocean Development and International Law 42 (2011), pp. 22 – 52, p. 45. 45. VanderZwaag et al., Governance of Arctic Marine Shipping (Dalhousie, Dalhousie University, 2009), p. 67. 46. R. Douglas Brubaker, ‘Straits in the Russian Arctic’, Ocean Development and International Law 32 (2001), pp. 263 – 87, p. 277; Bartenstein, ‘The “Arctic exception” in the Law of the Sea Convention: A contribution to safer navigation in the Northwest Passage?’, p. 35. 47. Michael T. Hannan and John Freeman, ‘The population ecology of organizations’, American Journal of Sociology 82/5 (1977), pp. 929– 64; Howard E. Aldrich, Organizations Evolving (London, Sage, 1999). 48. Olav S. Stokke, ‘Interplay management, niche selection, and Arctic environ¨ r and O.S. Stokke (eds), Managing Institutional mental governance’, in S. Oberthu Complexity: Regime Interplay and Global Environmental Change (Cambridge, MIT

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49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69.

70. 71. 72.

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS Press, 2011), pp. 143 – 70; Stokke, ‘Regime interplay in Arctic shipping governance: Explaining regional niche selection’. Stokke, ‘International environmental governance and Arctic security’. Stokke et al., ‘Pollution and conservation’. www.barentsinfo.fi/beac/docs/Agreement_Emergency_Prevention_Preparedness_ and_Response_English.pdf [Accessed 21 February 2017]. See e.g. Ole Røgeberg, Steinar Andresen and Bjart Holtsmark, ‘International climate treaties: The case for pessimism’, Climate Law 1/1 (2012), pp. 177 – 97. Stokke, ‘Regime interplay in Arctic shipping governance: Explaining regional niche selection’. Karen J. Alter and Sophie Meunier, ‘The politics of international regime complexity’, Perspectives and Politics 7/1 (2009), pp. 13 – 24. Adil Najam, Michaela Papa and Nadaa Taiyab, Global Environmental Governance: A Reform Agenda (Winnipeg, International Institute for Sustainable Development, 2006). ¨ r and Stokke (eds), Managing Institutional Complexity: Regime Interplay and Oberthu Global Environmental Change. See Stokke, ‘Interplay management, niche selection, and Arctic environmental governance’. See e.g. Biermann et al., ‘The fragmentation of global governance architectures: A framework for analysis’. Raustiala and Victor, ‘The regime complex for plant genetic resources’. ¨ r and Stokke (eds), Managing Institutional Complexity: Regime Interplay and Oberthu Global Environmental Change. Raustiala and Victor, ‘The regime complex for plant genetic resources’, p. 301. Jon B. Skjærseth, Olav S. Stokke and Jørgen Wettestad, ‘Soft law, hard law, and effective implementation of international environmental norms’, Global Environmental Politics 6 (2006), pp. 104– 20. Maria Ivanova, ‘UNEP in global environmental governance: Design, leadership, location’, Global Environmental Politics 10/1 (2010), pp. 30 – 59. Stokke, ‘International environmental governance and Arctic security’. Daniel W. Drezner, ‘The power and peril of international regime complexity’, Perspectives on Politics 7/1 (2009), pp. 65 – 70, p. 66. Bierman et al., ‘The fragmentation of global governance architectures: A framework for analysis’, p. 29. Scott Barrett, Environment and Statecraft: The Strategy of Environmental TreatyMaking (Oxford, Oxford University Press, 2003). Stokke, ‘Trade measures and the combat of IUU fishing: Institutional interplay and effective governance in the Northeast Atlantic’. Thomas Gehring, ‘The institutional complex of trade and environment: Toward ¨ r and an interlocking governance structure and a division of labour’, in S. Oberthu O.S. Stokke (eds), Managing Institutional Complexity: Regime Interplay and Global Environmental Change (Cambridge, MIT Press, 2011), pp. 227–54. Stokke, Governing High Seas Fisheries: The Interplay of Global and Regional Regimes. ¨ r and Stokke (eds), Managing Institutional Complexity: Regime Interplay and Oberthu Global Environmental Change. Stokke et al., ‘Pollution and conservation’, p. 176.

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73. Protection of the Arctic Marine Environment (PAME), Arctic Marine Shipping Assessment (AMSA) (2009). Available at www.pame.is/index.php/projects/arcticmarine-shipping/amsa [Accessed 21 February 2017]. 74. Stokke, ‘Regime interplay in the Arctic shipping governance: Explaining regional niche selection’. 75. Stokke, ‘Trade measures and the combat of IUU fishing: Institutional interplay and effective governance in the Northeast Atlantic’. 76. Ibid.

CHAPTER 4 THE ARCTIC: ENVIRONMENTAL SECURITY OR MULTI-LEVEL GOVERNANCE? Olav Schram Stokke1

Introduction Can the rapid changes associated with a warmer Arctic give rise to international conflicts and undermine the environmental security of this region? What division of labor between Arctic institutions and broader regimes can provide governance of regional economic activities that is effective as well as legitimate? In this chapter, I argue that the conditions are favorable for adaptive and peaceful management of the Arctic: a dynamic governance framework is already in place, and inter-state jurisdictional rivalry is modest. Globally applicable regimes like those based on the Law of the Sea Convention offer most of the support for Arctic environmental security but regional institutions too can play important roles in strengthening substantive regulations and enhancing their implementation, not least by influencing other institutions. My argument that the Arctic governance framework is strong and dynamic contrasts with widely circulated reports about an ‘ongoing race for natural resources’,2 in which the Arctic states are allegedly engaging in ‘unilateral grabs’ and approaching a ‘diplomatic gridlock’.3 In the next section, I substantiate the political stability inherent in the firm jurisdictional bases that exist for adopting and enforcing binding regulation of regional economic activities, the advanced state of affairs regarding delimitation of Arctic maritime zones, and the clear articulation of cooperation in Arctic policy documents from major states in recent years.

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My second main argument, that circumpolar institutions derive their regulatory potential primarily from their ability to affect other institutions, runs counter to claims by some scholars,4 practitioners,5 and civil-society organizations that a new and legally binding comprehensive treaty for protecting the Arctic environment is badly needed. To back up my position, I show in the subsequent section why the eight member states of the Arctic Council are either too few or too many for dealing effectively with the management challenges associated with greater commercial interest in the Arctic. The final section summarizes the argument and draws some political implications for Arctic governance, including the highly topical issue of non-Arctic state involvement in work under the Council.

Arctic Change and Environmental Security The alarmist propositions that melting polar ice will rapidly make hitherto inaccessible natural resources and trading rules economically viable, in turn triggering latent jurisdictional issues and politically explosive situations, do not stand up to closer scrutiny. A warmer Arctic is equally likely to entail rougher weather conditions, greater density of moving ice, and thawing permafrost – all rendering Arctic operations more difficult and costly. Any increases in the commercial use of Arctic resources and sea routes will therefore occur gradually. The allocation among states of competence to regulate those activities is clear-cut and firmly based in international law, with unsettled boundaries managed cooperatively and the Arctic states emphasizing their commitments to legal rules that are strongly compatible with their self-interest. This section examines the economic, legal, and political factors that serve to uphold Arctic environmental security.

Economic stabilizers Inherent in the concept of environmental security is the understanding that threats arising from environmental degradation and resource rivalry may prove severe enough to generate violent conflict. As Daniel Deudney shows, those promoting this concept have implied the need for strong international institutions with cross-sectoral mandates and capacity to take extraordinary measures to mitigate such risks.6 For instance, in 1988 Soviet Foreign Minister Eduard Shevardnadze proposed ‘a discussion on how to turn the United Nations Environmental Programme into an Environmental Council capable of taking effective decisions to ensure ecological security’.7 The same underlying worry – that rapid changes are stretching existing international regimes beyond their capacity – has led some observers and

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practitioners in Arctic affairs to call for urgent measures, like a freeze ‘of commercial fishing activities in the high seas of the Arctic Ocean’,8 a ‘moratorium on certain new oil exploration activities in deep waters’,9 and, as noted, the creation of a new and comprehensive regional agreement for environmental protection. Global warming undoubtedly affects the Arctic with particular force, with rebound effects further south. Temperature rises of more than twice the global average are influencing the heat exchange between land, air, and water. Atmospheric studies have indicated a new connectivity between changing Arctic wind patterns and colder, snowier weather in southern locations.10 Multi-year ice is diminishing at an alarming rate: the 2016 seaice minimum is the second-lowest on record in satellite history.11 These developments are amplified by a distinctly Arctic feedback mechanism: receding snow and ice exposes darker ocean surface, thereby enhancing heat absorption and accelerating further melting. Contributing to the Arctic amplification is also the weakening of the ocean-circulation regime known as the Beaufort Gyre, which results in cold water masses increasingly flowing out of the Arctic into adjacent seas. The calving of a 290 km2 segment of the Petermann Glacier in North-west Greenland during summer 2010 amounted to nearly three times the average annual area loss of marine-terminating glaciers during the 2000s.12 Within a few decades – considerably sooner than predicted in the Arctic Climate Impact Assessment (ACIA) – these various processes are likely to transform the Arctic Ocean from an ice-covered sea to a seasonally open sea, for the first time in 15 million years. Particularly threatened by these developments are ice-dependent species like ice algae, marine mammals, and certain sea birds. Changes in water temperatures and salinity will also impinge on the migratory patterns of boreal fish stocks. On land, significant movement of the permafrost boundary and of tree-lines is already underway, entailing a gradual displacement of Arctic deserts by tundra, and of tundra by forests, with corresponding changes in the spatial distribution and diversity of species.13 These rapid and interconnected changes explain why the Arctic is sometimes called ‘a global weather kitchen’. They will certainly influence the occurrence of marine and terrestrial living resources in the region and the physical conditions for shipping. However, the relationships between these environmental changes and the commercial viability of Arctic economic activities are not straightforward. Whereas the receding ice will improve access to some onshore and offshore areas, other impacts – like higher mobility of sea ice, more frequent calving, wilder weather, and greater coastal erosion – can be expected to create new

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operational challenges and risks for Arctic offshore transport and petroleum operations.14 Thawing permafrost already undermines existing onshore infrastructures for Arctic resource exploitation, including roads, buildings, and pipelines. Similarly, as the Arctic Marine Shipping Assessment15 points out, it is only the multi-year ice that is expected to disappear: throughout this century, navigation through the Northeast and the Northwest Passages will continue to struggle with sea ice except for a few months during summer. This continuity has significant impact on the commercial viability of trans-Arctic shipping as compared to the longer routes through the Suez or Panama canals, because navigation in ice requires purpose-built vessels, greater energy use, higher insurance costs, and costly ice-breaker escort.16 As regards living resources, higher temperatures will increase the primary production of plankton, but growth conditions may deteriorate due to the light impairment induced by rougher weather. In the European segment of the Arctic, the zooplankton species Calanus finmarchicus is crucial to the food chain that links the primary production to commercial species like capelin and cod, and researchers fear that higher temperatures will favor less nutritious Calanus species currently found further south.17 Despite rapid environmental changes, therefore, continuity marks many of the factors that constrain trans-Arctic shipping, while the climate effects on the economics of Artic resource use remain ambiguous. From the perspective of environmental security, the significance of such continuity is to give states and other actors more time to adapt and improve the governance system that surrounds regional commercial activities.

Legal stabilizers Another stabilizer, in addition to the continuing relevance of operational constraints on economic activities, is the Law of the Sea Convention, which is globally applicable and provides for differentiated competence to regulate ocean use by activity and distance from the coast. This treaty has 168 parties (Feburary 2017) and, although the USA has yet to ratify, its major provisions codify international customary law and are binding on all states. It reflects a political balance struck between coastal-state demands for control over natural resources and maritime-state requests for unrestricted navigation.18 Coastal states have sovereignty over the territorial sea, which may extend 12 nautical miles from the baselines, but cannot deny foreign-vessel passage that is ‘innocent’ – that is, not involving certain specified activities like threats of force, deliberate pollution, and the like. Coastal-state regulatory leeway is more circumscribed in straits used for international navigation and in the exclusive economic zones (EEZs). An EEZ may extend to 200 nautical

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miles and involves sovereign rights to regulate and exploit natural resources in the water masses, seabed, and subsoil. As regards seabed and subsoil resources like mineral nodules, oil, and gas, those rights extend even further, throughout the natural prolongation of the coastal state’s land territory (the ‘continental shelf’), within certain overall limits. Finally, on the high seas beyond the EEZs, flag states retain their near-monopoly on regulation of vessel operations but must cooperate with other states on the management of marine living resources. For all the activities expected to increase in the Arctic, therefore, the Law of the Sea Convention allocates regulatory competence in undisputed ways. The Arctic coastal states have been leading proponents and clear beneficiaries of the jurisdictional differentiation that emerged in this Convention, and thus have little interest in undermining it.

Political stabilizers The political stability inherent in a clear jurisdictional allocation is supported by the political determination among Arctic states to deal with potentially contentious issues cooperatively and peacefully. Here we can note how they have dealt with the maritime boundary delimitations that became necessary when coastal states obtained extended jurisdiction over their continental shelves and exclusive economic zones. A large proportion of these international boundaries are now settled, including all those in the European segment of the Arctic, and the remaining ones are managed cooperatively. Denmark/Greenland’s western continental shelf boundary towards Canada up to 828 N was agreed already in 1973. A 1990 treaty drawing up the boundary between Russia and United States in the Bering and Chukchi Seas is applied provisionally, pending ratification by the Russian Duma. The main unsettled international boundary today is that between Canada and the USA in the Beaufort Sea. In addition Russia, Denmark/ Greenland, and Canada may have overlapping Central Arctic Ocean continental shelf claims associated with the Lomonosov Ridge. This relatively high rate as regards boundary settlement is impressive, especially when we consider that the presence of ice has so far severely restricted the scope of marine activities in most of the region and hence reduced the practical use of delimitation.19 Moreover, all Arctic coastal states have either submitted or are preparing geological and bathymetrical documentation of claims to the Commission on the Limits of the Continental Shelf, in accordance with Article 76 of the Law of the Sea Convention. No less important is the long-standing inclination of Arctic states to cooperate on resource management issues also when boundaries are not finalized. During

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35 of the 40 years it took to negotiate the Barents Sea boundary, Norway and Russia operated and gradually deepened one of the most successful international shared-stock management regimes, which includes the world’s biggest cod stock.20 As early as in 1977, Canada and the USA developed a joint marine contingency plan in the contended Beaufort Sea, and have revised it regularly.21 Since 2006, Canada and Denmark/Greenland have collaborated on the collection of seismic and bathymetric data in the area beyond their agreed boundary.22 In a similar vein, Russia’s Prime Minister Putin has stated that he had ‘no doubts at all that the existing issues in the Arctic, including those related to the continental shelf, can be resolved in a spirit of partnership through negotiations and on the basis of existing international law’.23 Both the high rate of Arctic boundary settlement and the manner in which Arctic states manage non-settled boundaries indicate strong determination to deal cooperatively with contested issues. Also, the Arctic policy documents prepared by the states of the region indicate political determination to maintain regional stability. The US Arctic Region Policy strongly recommends the Senate to ratify the Law of the Sea Convention and emphasizes multilateral institutions and collaboration with other states in such key areas as environmental protection, safety at sea, and the improvement of maritime infrastructure.24 International cooperation is prominent also in Russia’s Arctic Strategy, issued in 2008, with its emphasis on how agreements and coordination with other states can help ensure that regional natural resources under national jurisdiction and greater use of the Northern Sea Route will benefit Russian society.25 According to this policy document, preserving the Arctic as a zone of peace and cooperation is among Russia’s main interests in the Arctic, operationalized as ‘guaranteeing mutually beneficial bilateral and multilateral cooperation between the Russian Federation and other Arctic states on the basis of international treaties’.26 In a recent statement of its Arctic foreign policy, Canada makes clear that the ‘most important pillar . . . is the exercise of our sovereignty over the Far North’, but quickly adds that it ‘will seek to resolve boundary issues in the Arctic region, in accordance with international law’.27 No less firm in its commitment to international rules and collaborative frameworks is Norway, the first among the Arctic states to launch a comprehensive Arctic strategy, pledging to base ‘management of living marine resources . . . on the rights and duties set out in Law of the Sea’, to ‘further develop people-to-people cooperation’, and to ‘strengthen our cooperation with Russia’.28 Whether large or small, the states of the region have developed Arctic policy documents compatible with their highly cooperative ‘body language’

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regarding potentially conflictive issues like maritime boundary delimitation and transboundary resource management. To summarize, then, the rapid environmental changes underway in the Arctic do not pose severe threats to the environmental security of the region. Shifts in access to natural resources and new sea lanes of communication are slow and ambiguous, providing adequate time to devise appropriate responses. Arctic states deal with their jurisdictional issues, including boundary delimitation, in compliance with international law, and their statements on Arctic policy emphasize legal commitments and international institutions. The political stability deriving from this pervasive determination to deal cooperatively with interdependent management problems is reinforced by a legal framework that allocates regulatory and enforcement jurisdiction over Arctic economic activities in a way that is differentiated, globally legitimate, and clearly in the interest of all Arctic coastal states.

Dependence on Multi-level Governance A globally applicable governance framework supported by all the Arctic states certainly enhances environmental security, but dynamism regarding substantive regulation of economic activities is also necessary. Unlike those who see the adoption of a region-wide, binding, and comprehensive treaty for environmental protection as the best way to ensure such dynamism, I maintain that effective means for dealing with such key issues as climate change, marine pollution from land-based sources, shipping, fisheries management, and petroleum activities must be either broader or narrower than the leading circumpolar institution, the Arctic Council.

Climate change Many of the rapid changes currently underway in the Arctic natural environment are due to the changing climate – but a relatively young softlaw institution like the Arctic Council, with its narrow membership, can play only a modest role in efforts to combat this essentially global problem. For nearly two decades now, mitigation of greenhouse gas emissions has been addressed under the UN Framework Convention on Climate Change and other international institutions. Contributions from the Arctic Council have been primarily of the fact-finding type, most saliently in the 2005 Arctic Climate Impact Assessment (ACIA).29 Its associated Policy Document contained some of the clearest statements subscribed to by the George W. Bush administration on the need for action on global warming. The ACIA

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report enjoyed greater and more positive media attention in the USA than do the more comprehensive assessment reports regularly produced by the UNbased Intergovernmental Panel on Climate Change. 30 Part of the explanation is the leading role played by US scientists in the ACIA assessment work, as well as the fact that the ACIA report singled out the indigenous peoples of Alaska as being among those most severely and most immediately affected by global warming. Findings from the ACIA factored into the work under the global climate regime and contributing to broader processes is also what the Arctic Council Task Force on Short-Lived Climate Forcers aspires to do. This task force was set up in 2009 and focuses on such drivers as black carbon, methane, and tropospheric ozone whose combined climate impact is comparable to that of carbon dioxide but their shorter lifetimes mean that successful mitigation will have more immediate effects on global warming. Like carbon dioxide, however, short-lived climate forcers originate predominantly in northern mid-latitudes,31 so effective mitigation will necessitate action by non-Arctic states as well. Arctic Council contributions are highly relevant to combating climate change, but mostly by generating knowledge that may fuel regulatory processes in broader institutions.

Hazardous substances Also, the problem of toxic compounds cold-trapped and bio-accumulating in Arctic ecosystems and threatening the health of Arctic residents requires mitigation effort beyond the eight Arctic states, since much of the discharges occur further south. When seeking international regulatory action in the late 1980s, therefore, Canada focused on broader processes, notably under the Convention on Long-Range Transported Air Pollution (CLRTAP), which covers Europe and North America, and the UN Environmental Programme, which provided the venue for negotiating the global 2001 Stockholm POPs Convention and the 2013 Minimata Convention on Mercury.32 In all of these cases, findings from the Council’s Arctic Monitoring and Assessment Programme (AMAP) were important, demonstrating that POPs and heavy metals have more dramatic human effects in the Arctic than those documented at lower latitudes.33 Those substances bio-accumulate in the fatty tissue and blood of some species, including marine mammals and sea birds, central to the diet of Arctic indigenous residents.34 Several distinctive features of the Arctic Council, especially the wide recognition of its specialization in collaborative knowledge building35 and its long-standing emphasis on indigenous concerns, combined to give saliency to these reports, but – as with climate

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change – the region’s vulnerability to hazardous substances requires action under regimes with broader membership.

Shipping Regulatory advances in international regimes that involve non-Arctic states are necessary also to deal effectively with the challenges stemming from the expansion of Arctic maritime transport. The Law of the Sea Convention sets maximum standards concerning what states may request of a vessel flagged by another state – and those regulatory ceilings become lower, the further away from the coastline a vessel operates.36 In ports and internal waters, coastal states have the same monopoly on regulation and rule enforcement as they do on land, and also in the territorial sea they may ‘adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels’ as long as they do not impede innocent passage. In the EEZs, however, coastal states can unilaterally only set rules ‘conforming to and giving effect to generally accepted international rules and standards established through the competent international organization’ – meaning the International Maritime Organization (IMO), a specialized agency under the UN. Should the coastal state consider those rules and standards inadequate for certain sensitive areas, it must seek IMO approval even for relatively modest interventions like compulsory pilotage or requirements to use particular sea lanes to reduce the risks of grounding or collision. Further, it ‘shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards’. These constraints on coastal-state or regional regulatory initiatives explain why the IMO was the preferred venue when some states, around 1990s, proposed negotiating a polar code specifying and harmonizing construction, design, equipment, and other requirements for vessels operating in ice-covered waters.37 In 2002, the IMO adopted the nonmandatory Guidelines for Ships Operating in Arctic Ice-covered Waters,38 revised in 2009 along with a decision to commence work on a mandatory code aiming for completion in 2012.39 Elevation of the voluntary Polar Guidelines to such mandatory status was among the recommendations of the Arctic Council’s Arctic Marine Shipping Assessment.40 A legally binding Polar Code was adopted in 2015, and the Arctic Council working group for Protection of the Arctic Marine Environment (PAME) has actively engaged in various follow-up activities involving member states as well as observers. As with climate and toxics issues, therefore, Arctic institutions certainly have a role to play when it comes to

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vessel construction and equipment rules – but only in conjunction with broader regimes.

Resource exploitation As regards governance of natural-resource exploitation, in contrast, circumpolar institutions are so far eclipsed not by broader regimes but by narrower ones. Conservation and use of fisheries resources are among the issues where the Law of the Sea Convention encourages regional management regimes,41 but ‘regionality’ here refers to the set of states engaged in harvesting the same stock, based either on zonal attachment or historical catches.42 For stocks straddling the high seas and coastal-state zones, parties to the 1995 UN Fish Stocks Agreement may not legally allow their fishers to operate in an area regulated by a regional regime without joining or cooperating with it.43 However, a stock that gradually changes its migratory pattern due to temperature changes and becomes increasingly available in Arctic waters is unlikely to be harvested by all Arctic states – which calls into question the need for a circumpolar body. Moreover, zonal attachment or historical catches might imply that certain non-Arctic states have legitimate interests in the stock. Thus, current Arctic high-seas fisheries are managed primarily under the North East Atlantic Fisheries Commission, which includes non-Arctic states and enjoys regulatory competence with respect to waters outside national jurisdiction in the European segment of the Arctic Ocean. Although a fisheries regime with circumpolar reach would involve a larger set of states than those likely to engage in harvesting of any particular stock, the five Arctic coastal states have for several years examined whether a basis exists for creating a regional fisheries management organization pertaining to high-seas areas in the Central Arctic Ocean. The process is precautionary in the sense that no one expects any significant commercial opportunities in the foreseeable future outside the area already covered by NEAFC. As I have argued elsewhere, however, a regime with a membership confined to Arctic coastal states would run counter to the spirit as well as the letter of international fisheries law.44 That is probably why the five-country talks have recently been extended to include other interested states and entities, including the EU, China and Japan.45 Also for petroleum activities, international law supports a regional approach – but, again, the Arctic eight do not stand out as the most promising grouping for achieving regulatory progress. According to the Law of the Sea Convention, in adopting laws and regulations to prevent, reduce, and control pollution from seabed activities under national jurisdiction,

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states ‘shall endeavour to harmonize their policies in this connection at the appropriate regional level’.46 Despite this encouragement, the Arctic Council has made no attempts to create rules that are more ambitious or exercise greater normative pull than those already provided by broader international fora. The soft-law standards contained in its Arctic Offshore Oil and Gas Guidelines, regularly reviewed and updated, are derived from and invoke existing and legally binding instruments – including the Law of the Sea Convention, various agreements drawn up under the International Maritime Organization, and regional treaties.47 One reason for such non-assertiveness on the part of the Arctic Council is that vulnerability to oil spill damage is primarily sub-regional rather than circumpolar. Moreover, the five Arctic coastal states have few incentives for negotiating constraint on their exercise of sovereignty concerning a sector of strategic significance within a venue framework that also includes non-coastal states. Thirdly, there is in the European segment of the Arctic an existing institution that covers also nonArctic areas and is already engaged in rule-making. Thus, the regime based on the 1992 OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic has passed several legally binding decisions under an Offshore Oil and Gas Industry Strategy pertaining to best available technology requirements and discharges from platforms. Russia is currently the only state bordering on the North-east Atlantic that is not a signatory to that agreement. As with fisheries, various sub-regional institutions are probably better placed than the Arctic Council to provide venues for negotiating stronger international commitments regarding coastal-state rules on petroleum activities on their continental shelves. In all the sectors likely to see rising economic activity, therefore, the Arctic Council is either too big or too small to play a decisive regulatory role. In such important areas as climate change, hazardous compounds, and maritime transport, broader institutions are more important because much of the activity that gives rise to environmental challenges either occurs outside the region or falls under the jurisdiction of non-Arctic states. Narrower institutions, whether coastal states or international arrangement involving sub-sets of them, are better placed for effectively managing the rise of regional offshore petroleum activities or the greater availability of commercial fish stocks.

Conclusion and Policy Implications Environmental security remains satisfactory in the Arctic despite rapid environmental changes and increasing economic activities. The Arctic

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states have relatively few unsettled maritime boundary issues; they manage the remaining ones in a cooperative manner; and they articulate their Arctic aspirations in policy documents that emphasize the rule of law and the need for international cooperation. Moreover, there already exists a legally binding, globally legitimate legal framework governing those economic uses of the region that are likely to expand in the years ahead, one capable of responding flexibly to the new challenges emanating from greater economic activity. Those adequate responses must involve other institutions besides regional ones like the Arctic Council because many of the regional environmental problems originate outside of the Arctic or involve actors beyond the jurisdictional reach of the states of the region. The fact that Arctic environmental challenges cannot be addressed without significant contributions from broader or global institutions brings us to the question of how those operating the Arctic Council should deal with the interest shown by non-Arctic states in using their observer status under the Council to engage more deeply with working-group and other Council activities. Already, assessment reports in areas such as shipping, toxics, and climate change have raised the saliency of the Arctic dimension of broader problems and helped mobilize political energy among states outside the region. Wider involvement of non-Arctic states would expand the set of states and actors with knowledge about and ownership in Arctic Council assessments and recommendations, thereby enhancing the Council’s ability to act as a catalyst for regulatory advances in broader institutions with relevant competence. Such regulatory dynamism in broader regimes is indeed necessary for the effectiveness of the overall governance system and for maintaining environmental security in the Arctic.

Notes 1. This chapter is a revised and abridged version of Olav S. Stokke, ‘Environmental security in the Arctic: The case for multi-level governance’, International Journal: Canada’s Journal of Global Policy Analysis 66/4 (2011), pp. 835 –48; it appears here with kind permission from Canadian Institute of International Affairs. 2. Resolution of 9 October 2008 on Arctic governance, item 13 (European parliament, 2008). Available at www.europarl.europa.eu [Accessed 22 February 2017]. 3. Scott G. Borgerson, ‘Arctic meltdown: The economic and security implications of global warming’, Foreign Affairs 87/2 (2008), pp. 63 – 77, pp. 71, 73. 4. Timo Koivurova and Erik J. Molenaar, International Governance and Regulation of the Marine Arctic (Oslo, WWF, International Arctic Program, 2009); Kristin N. Casper, ‘Oil and gas development in the Arctic: Softening of ice

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5. 6. 7. 8.

9.

10. 11.

12.

13.

14. 15. 16. 17. 18. 19.

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demands hardening of international law’, Natural Resources Journal 49/3–4 (2009), pp. 825–82. Resolution of 9 October 2008 on Arctic governance, item 15 (European parliament, 2008). Available at www.europarl.europa.eu [Accessed 22 February 2017]. Daniel Deudney, ‘The case against linking environmental degradation and national security’, Millennium 19/3 (1990), pp. 461– 76. Nico Schrijver, ‘International organization for environmental security’, Bulletin of Peace Proposals 20/2 (1989), pp. 115 –22, p. 118. S.J. Res. 17. Joint Resolution Directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean (Washington, DC, US Congress, June 3 2008). Terry Macalister, ‘UK winning fight to soften international scrutiny of offshore drilling’, The Guardian, 23 December 2010. Available at www.guardian.co.uk [Accessed 22 February 2017]. Quoted by Macalister from a proposal, reportedly tabled by Germany, during a 2010 Ministerial meeting under the OSPAR Convention; on the response by Greenland deputy foreign minister Inuuteq Holm Olsen, see Terry Macalister, ‘EU clashes with Greenland over international stewardship of Arctic’, The Guardian, 15 October 2010. Available at www. guardian.co.uk [Accessed 22 February 2017]. James E. Overland, Muyin Wang and John Walsh, ‘Atmosphere’, in J. A. RichterMenge and J. E. Overland (eds), Arctic Report Card 2010 (10 November 2010), pp. 8–15. Available at www.arctic.noaa.gov/reportcard [Accessed 22 February 2017]. National Snow & Ice Data Center (NSIDC), ‘2016 ties with 2017 for second lowest Arctic sea-ice minimum’ (15 September 2016). Available at http://nsidc.org/arcti cseaicenews/2016/09/2016-ties-with-2007-for-second-lowest-arctic-sea-ice-mi nimum/ [Accessed 21 February 2017]. Jason Box, John Cappelen, David Decker, Xavier Fettweis, Thomas L. Mote, Marco Tedesco and Roderik Sylvester Willo van de Wal, ‘Greenland’, in J. A. Richter-Menge and J. E. Overland (eds), Arctic Report Card 2010 (10 November 2010), pp. 55–64. Available atwww.arctic.noaa.gov/reportcard [Accessed 22 February 2017]. Arctic Monitoring and Assessment Programme (AMAP), Conservation of Arctic Flora and Fauna (CAFF) and International Arctic Science Committee (IASC), Arctic Climate Impact Assessment (ACIA) (Cambridge, Cambridge University Press, 2005), p. 998. Arctic Monitoring and Assessment Programme (AMAP), Arctic Oil and Gas (Oslo, AMAP 2007), p. 12. Protection of the Arctic Marine Environment (PAME), Arctic Marine Shipping Assessment (AMSA) (2009), p. 25. See also Lawson W. Brigham, ‘The fast-changing maritime Arctic’, Proceedings of the US Naval Institute 410 (2010), pp. 55 – 9. Ellen Øseth, Nor ACIA Report on Climate Change in the Arctic: Consequences for Life in the North, Report Series No, 136 (Tromsø, Norwegian Polar Institute, 2010). See Chapter 5, ‘The Law of the Sea and the Arctic Environment’, in this volume. Robin Churchill, ‘Claims to maritime zones in the Arctic’, in A. G. O. Elferink and D. R. Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation (Hague, Springer, 2001), p. 108.

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20. Olav S. Stokke, ‘Trade measures and the combat of IUU fishing: Institutional interplay and effective governance in the Northeast Atlantic’, Marine Policy 33/2 (2009), pp. 339– 49. 21. Timo Koivurova, Erik Molenaar and David VanderZwaag, ‘Canada, the EU and the Arctic Ocean governance: A tangled and shifting seascape and future directions’, Journal of Transnational Law and Policy 18/2 (2009), pp. 248– 98. 22. Whitney Lackenbauer, ‘From polar race to polar saga: An integrated strategy for Canada and the circumpolar world’, Foreign Policy for Canada’s Tomorrow (Toronto, Canadian International Council, 2009), p. 39. 23. Vladimir Putin, Speech at the International Forum ‘The Arctic: Territory of Dialogue’, RIA Novosti, 23 September 2010. Available at www.arctic.ru/ [Accessed 22 February 2017]. 24. White House, National Security Presidential Directive and Homeland Security Presidential Directive 66/HSPD 25 (Washington, DC, 2009). 25. Russian Federation, ‘The Foundations of Russian Federation Policy in the Arctic until 2020 and Beyond’ (translation from Russian by M. Rusnak and I. Berman, issued 18 September 2008), Journal of International Security Affairs 18 (2010), ¨ tz, ‘On Thin Ice? (Mis)interpreting Russian pp. 97 – 105; see also Roderick Kefferpu Policy in the High North’, CEPS Policy Briefs 205 (Brussels, CEPS, 2010). 26. Ibid. 27. Government of Canada, Statement on Canada’s Arctic Foreign Policy: Exercising Sovereignty and Promoting Canada’s Northern Strategy Abroad (Ottawa, Government of Canada, 2010), pp. 4 –10. Available at www.international.gc.ca [Accessed 22 February 2017]. 28. Norwegian Ministry of Foreign Affairs, The Norwegian Government’s High North Strategy (Oslo, Ministry of Foreign Affairs, 2006), pp. 8 –9; New Building Blocks in the North. The next Step in the Government’s High North Strategy (Oslo, Ministry of Foreign Affairs, 2009). Available at www.regjeringen.no. [Accessed 22 February 2017]. 29. Arctic Monitoring and Assessment Program (AMAP), Conservation of Arctic Flora and Fauna (CAFF) and International Arctic Science Committee (IASC), Arctic Climate Impact Assessment (ACIA) (Cambridge, Cambridge University Press, 2005). 30. Alf H. Hoel, ‘Climate Change’, in O.S. Stokke and G. Hønneland (eds), International Cooperation and Arctic Governance: Regime Effectiveness and Northern Region Building (London, Routledge, 2007), pp. 112 – 37. 31. Arctic Monitoring and Assessment Programme (AMAP), Update on Selected Issues of Concern: Observations, Short-Lived Climate Forcers, Arctic Carbon Cycle, and Predictive Capability (Oslo, AMAP, 2009), p. 7. Available at www.am ap.no. [Accessed 22 February 2017]. 32. Henrik Selin, Towards International Chemical Safety: Taking Action on Persistent ¨ ping, Linko ¨ ping University, 2000), p. 133. Organic Pollutants (POPs) (Linko 33. Olav S. Stokke, ‘Protecting the Arctic environment: The interplay of global and regional regimes’, Yearbook of Polar Law 1/1 (2009), pp. 349 – 69. 34. Eric Dewailly and Christopher Furgal, ‘POPs, the environment, and public health’, in D.L. Downie and T. Fenge (eds), Northern Lights Against POPs: Combatting Toxic Threats in the Arctic (Montreal, McGill-Queen’s Press, 2003), pp. 3 – 21.

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35. Peter Stenlund, ‘Lessons in regional cooperation from the Arctic’, Ocean and Coastal Management 45/11 –12 (2002), pp. 835– 9, p. 837. 36. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 105, Article 211. 37. Lawson W. Brigham, ‘The emerging international polar navigation code: Bi-polar relevance?’, in D. Vidas (ed.), Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Cambridge, Cambridge University Press, 2000), pp. 221 –43. 38. Øystein Jensen, ‘Arctic shipping guidelines: Towards a legal regime for navigation safety and environmental protection?’, Polar Record 44/229 (2008), pp. 107 – 14. 39. Heike Deggim, International Requirements for Ships Operating in Polar Waters (London, IMO, 2009), p. 7. 40. Protection of the Arctic Marine Environment (PAME), Arctic Marine Shipping Assessment (AMSA) (2009), p. 6. 41. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 105, Articles 63 –4 and 116 –19. 42. Olav S. Stokke, ‘Managing straddling stocks: The interplay of global and regional regimes’, Ocean and Coastal Management 43/2 (2000), pp. 205– 34. 43. United Nations Fish Stocks Agreement, 4 December 1995, 2167 UNTS 3, Article 8. 44. Olav S. Stokke, ‘Asian stakes and Arctic governance’, Strategic Analysis 38/6 (2014), pp. 770–83. 45. Fisheries and Oceans Canada, ‘Joint Statement – Recently Convened Five Arctic Coastal States Meeting’, 27 February 2014. Available at http://news.gc.ca/web/ article-en.do?mthd¼index&crtr.page¼1&nid¼819859 [Accessed 21 February 2017]. 46. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 105, Article 207. 47. Kristine Offerdal, ‘Oil, gas and the Arctic environment’, in O. S. Stokke and G. Hønneland (eds), International Cooperation and Arctic Governance: Regime Effectiveness and Northern Region Building (London, Routledge, 2007), pp. 138– 63; Olav S. Stokke, ‘Protecting the Arctic environment: The interplay of global and regional regimes’, The Yearbook of Polar Law Online 1/1 (2009), pp. 349 –69.

PART II LAW OF THE SEA

CHAPTER 5 THE LAW OF THE SEA AND THE ARCTIC ENVIRONMENT Olav Schram Stokke1

Introduction The idea of a binding legal regime for the Arctic, inspired by the one already existing for the Antarctic, has been articulated by various civil-society organizations, among them the International Union for Conservation of Nature and Nature Protection (IUCN)2 and the World Wide Fund for Nature (WWF).3 In 2004, the Standing Committee of Parliamentarians of the Arctic Region was asked to ‘[c]onsider possibilities to initiate a process which over time could lead to a binding legal regime for conservation and sustainable use of the Arctic and its marine environment’, an issue debated at the Seventh Conference of Parliamentarians of the Arctic Region, held in Kiruna in August 2006.4 This chapter outlines some implications of the United Nations Law of the Sea Convention for recent such proposals to establish a comprehensive and legally binding regime specifically targeting the Arctic marine environment. I sketch the broad architecture of that document and the scope it allows for regional regimes with stronger rules than those spelt out in the Convention. Against that background I review various contributions by Arctic softlaw institutions, especially the Arctic Council, to international efforts to protect the Arctic environment and examine whether those contributions would be significantly enhanced by the adoption of a comprehensive legal regime.

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Global Law, Regional Regimes The First UN Conference on the Law of the Sea, held in Geneva in 1958, produced four global conventions – on the high seas, the territorial sea and the contiguous zone, the continental shelf, and fishing and conservation of the living resources of the high seas.5 By 1982, the nine-year-long Third UN Conference on the Law of the Sea had succeeded in producing a comprehensive Convention covering all segments of the ocean space and specifying rules on a wide range of uses.6 This Law of the Sea Convention (LOSC) codified changes that had occurred in customary international law since the adoption of the Geneva Conventions, most saliently the right of coastal states to establish 200-nautical mile exclusive economic zones (EEZ). The EEZ concept placed the coastal state in the driver’s seat for most activities undertaken within such a zone, including resource utilization, environmental protection and scientific research – but not navigation, which remained a high-seas freedom also within the EEZ.7 Indeed, an EEZ is not a national space, since the coastal state does not have full sovereignty – only certain sovereign rights and jurisdiction. The EEZ concept reflects the balance that had to be struck between coastal states that argued that multilateral resource management had failed to conserve living resources, and those major states – including the USA, the Soviet Union, and the UK – that were set on retaining the freedom of navigation for commercial and naval vessels. Two dimensions must be kept in mind when examining the rights of various categories of states (mainly coastal states and flag states) laid down in the LOSC: they vary as to spatial segment, and as to type of activity. The general pattern is that the right of coastal states to set and enforce rules on various activities decreases with distance from the coastline; and it is more extensive for scientific research and resource management than for navigation. In ports and internal waters, that is, waters on the landward side of the baseline of the territorial sea, coastal states have the same monopoly on regulation and enforcement of all activities as they do on land.8 With respect to navigation, due to its global nature, the set of measures that coastal states can take unilaterally is somewhat constrained in the territorial sea, which may extend 12 miles from the baselines; it is even further constrained in the EEZ. A coastal state also enjoys exclusive management authority over natural resources found in the continental shelf, including those parts that extend beyond 200 miles from the baselines. The resources found on the deep seabed beyond the continental shelves – notably nodules containing such

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strategic minerals as cobalt and copper – are defined in the LOSC as the ‘common heritage of mankind’ and made subject to a specific regime.9 Beyond its EEZ and continental shelf, a coastal state generally has few rights or obligations that are not also held by others, except that conservation measures under regional fisheries management regimes on stocks straddling between an EEZ and the high-seas area are to be compatible with coastal state measures.10 Particular rules apply to spatial areas with certain physical or socioeconomic characteristics, such as enclosed or semi-enclosed seas, straits used in international navigation, and areas that are ice-covered for most of the year.11 Article 234 on ice-covered areas originated in Canada’s concern with foreign vessel traffic in the Canadian Arctic, and enables coastal states to pass and enforce especially strict rules on vessel-source pollution. Canada’s 1985 Arctic Waters Pollution Prevention Act established a 100-mile zone in Arctic waters where special standards apply for vessel construction, crewing and pollution standards.12 In some fields, such as conservation and use of shared fisheries resources, the Law of the Sea Convention strongly encourages regional management regimes.13 With respect to stocks occurring both on the high seas and in waters where states exercise sovereign rights, that encouragement was upgraded to an obligation in the 1995 UN Fish Stocks Agreement, which stipulates that only states that have joined such regimes or adhere to their rules may participate in the harvesting of straddling or highly migratory fish stocks.14 Similar encouragement of regional solutions is articulated in LOSC provisions on pollution from land-based sources or seabed activities under national jurisdiction. Thus, in adopting laws and regulations to prevent, reduce and control such pollution, states ‘shall endeavour to harmonize their policies in this connection at the appropriate regional level’.15 In some other issue areas, however, the LOSC restricts the leeway for regional action, by setting either ‘floors’ or ‘ceilings’ for regional regimes. An important example of substantive floors, or minimum standards, are the provisions on dumping. Any regionally agreed standards and recommended practices ‘shall be no less effective . . . than the global rules and standards’, meaning those set forth under the London Convention 1972.16 Above that floor, however, there is nothing in the LOSC to keep states from agreeing among themselves to require stricter dumping regulations for vessels operating within their EEZ. For instance, an environmental agreement targeting the Baltic Sea banned dumping of all radioactive waste as early as in 1974, nearly two decades before a similar ban was agreed globally.17 Arctic institutions – especially the Arctic Military Environmental Cooperation,

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which involved the foreign ministries of Norway, Russia, the UK and the USA – played an important role in improving Russia’s treatment facilities for low-level waste, thereby enabling it to join a global ban on the dumping of such material.18 While dumping is subject to minimum requirements, the LOSC sets maximum standards for rules on other kinds of vessel pollution by foreign vessels – and those ceilings become lower, the further away from the coastline a vessel operates.19 Thus, in internal waters and ports, states ‘which establish particular requirements’ shall only ‘give due publicity to such requirements’ and communicate these to the International Maritime Organization (IMO).20 In the territorial sea as well, states are free to ‘adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels’ as long as innocent passage is not impeded.21 In the EEZ, however, there is considerably less leeway: coastal states can unilaterally only set rules ‘conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference’ – meaning through the IMO.22 The Law of the Sea Convention entered into force in 1994 and is legally binding on those 168 parties that have ratified or acceded to the Convention.23 Included here are all Arctic states except the USA. Important parts of the Convention, including the EEZ concept and the extent of the territorial sea, have now entered into the body of customary law and are therefore binding on all states, whether or not they have joined the Convention.

Arctic Institutions and the Environment In 1991, a Finnish initiative to set up a cooperative intergovernmental vehicle for protection of the Arctic environment produced the Arctic Environmental Protection Strategy (AEPS), a soft-law instrument that created a string of permanent working groups tasked with various programme activities.24 The four original AEPS activity areas, each coordinated by a working group, were the Arctic Monitoring and Assessment Programme (AMAP), Conservation of Arctic Flora and Fauna (CAFF), Emergency Prevention, Preparedness and Response (EPPR) and Protection of the Arctic Marine Environment (PAME).25 When the Arctic Council was established in 1996, it was to ‘coordinate and oversee’ the AEPS groups as well as the new Working Group on Sustainable Development; later, a sixth working group was added, the Arctic Contaminants Action Programme (ACAP).

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Decisions of the Arctic Council are made by biannual ministerial meetings, in the form of non-binding declarations that give direction for future work under the Council. Day-to-day operations of the Council are taken care of by the countries’ Senior Arctic Officials, normally polar or Arctic ambassadors. The Arctic Council acquired a permanent secretariat in 2013, located in Tromsø, Norway; work under the Council is dependent on its members for direct national financial contributions and willingness to act as lead country for specific projects. This section sketches the roles played by the Arctic Council in developing measures for protection of the Arctic marine environment, with special attention to environmental monitoring, oil and gas activities, shipping and discharges of hazardous substances. First, however, it seems useful to consider a limitation on the potential effectiveness of any Arctic-specific regime that does not stem from the legal obligations set forth in the LOSC.

Arctic imports of pollutants An important feature common to Arctic territories is that they serve as reservoir, or sink, for many hazardous substances that have been generated and discharged elsewhere. Most of the radionuclides currently found in Arctic marine and terrestrial environments originate from activities outside the region.26 Main sources are reprocessing plants in the UK and in France, atmospheric nuclear tests conducted 50 or 60 years ago, and fallout from the Chernobyl accident in 1986. Also, many other pollutants have been produced and discharged well outside the Arctic. Strong south – north air flows, rivers and ocean currents transport a range of hazardous compounds into and within the Arctic. Particular worries concern persistent organic pollutants (POPs), including organochlorine pesticides used in agriculture, industrial chemicals such as polychlorinated biphenyls (PCB), and various combustion products. The low temperatures of the Arctic serve as a ‘cold trap’ for some of these POPs, preventing their further transport. Similarly, some heavy metals found in high concentrations in the Arctic, mercury not least, originate largely from waste incineration and coal-burning power plants and residential heaters as far away as Eastern China – and these are discharges expected to accelerate in the future due to economic growth.27 The effects of POPs and heavy metals on humans are more dramatic in the Arctic than those documented at lower latitudes because such substances bio-accumulate in the fatty tissue and blood of some species, including marine mammals and sea birds, that are important in the diet of

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Arctic indigenous residents. The Inuit of Canada and Greenland have among the highest exposures to PCB and mercury measured on the planet. Foetuses and infants relying on breast milk are particularly vulnerable.28 These hazardous substances also demonstrate the close links that can exist between pollution and conservation issues. Some of the highest PCB levels ever measured in fat and blood have been found in polar bears around Svalbard and Franz Josef Land, with studies indicating negative impacts on immune systems and reproduction.29 Such effects are all the more dramatic because this is a species already threatened by declining ice extension due to global warming, and by increased hunting activities.30

Monitoring the Arctic environment Environmental monitoring activities have emerged as the ‘specialization of the Arctic Council’.31 AMAP examines pathways and levels of hazardous contaminants, including POPs, heavy metals, radionuclides and hydrocarbons; studies their effects on human health and Arctic flora and fauna; and assesses impacts of climate change.32 A series of high-profiled reports have been prepared on Arctic challenges, including two comprehensive AMAP Assessment Reports and several more specific ones in such areas as health, climate change, oil and gas activities, and shipping.33 These authoritative reports on the state and dynamics of the Arctic environment are based on data acquired through national and international research and monitoring programmes. The main role of AMAP has been to harmonize ongoing activities, by coordination and review of National Implementation Plans in light of the AMAP Trends and Effects Programme, and to promote studies and monitoring activities to close identified knowledge gaps. In the case of POPs, for instance, Denmark was induced by AMAP to upgrade existing ad-hoc investigations to a systematic and longterm monitoring programme.34 The Persistent Toxic Contaminants project under AMAP, with funding from the Arctic states and several international institutions, engaged the Russian ministries of natural resources and health as well as the Russian Federal Service for Hydrometeorology and Environmental Monitoring (Rosgidromet) in assessing the significance of aquatic food chains as pathways of exposure for indigenous peoples, the relative importance of local and distant sources, and the role of atmospheric and riverine transport.35 Similarly, the USA, which had provided very little data on POPs for the first AMAP assessment, intensified its collection of data from Alaska for the second assessment, partly in collaboration with Canadian colleagues.36

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Thus, the soft-law nature of the AEPS and the Arctic Council has not impeded their ability to induce states to invest more in Arctic environmental monitoring and to harmonize some of those activities. There can be no doubt that the high priority accorded to environmental monitoring in the 1991 Declaration on the AEPS implied strong expectations within and outside the Arctic that governments would intensify such activities. For the Arctic states as a group, environmental monitoring has stood out as an attractive object of cooperation – in part because it does not raise controversial questions about the appropriateness of international regulation, but also because of the substantial benefits of harmonizing data collection and analysis throughout the circumpolar area, especially given the high costs of conducting environmental research in the Arctic.

Arctic oil and gas Hydrocarbons are among the pollutants prioritized under the Arctic Council. Its Oil and Gas Assessment, published in 2007, updated and expanded on the hydrocarbon evaluations provided in the comprehensive AMAP assessment reports. In its early years, the main focus of the working group on Emergency Prevention, Preparedness and Response was on petroleum activities, with the Circumpolar Map of Resources at Risk from Oil Spills in the Arctic37 as an important output. Later on the scope was expanded to include nuclear installations and other facilities that use or store hazardous material, and natural disasters. The authority of the coastal states, as confirmed in the LOSC, to regulate the exploitation of shelf resources means that there is little to constrain regional states from agreeing on more stringent environmental standards for hydrocarbon exploration and production than those laid down globally, should they wish to do so. As pointed out by Offerdal,38 however, the strategic significance of oil and gas resources has led to reluctance among Arctic petroleum states to place binding regulation of such matters on the Arctic agenda. Indeed, the normative activities of Arctic Council working groups have been modest in this area, with few efforts to create rules that are more ambitious or more specific than those already embraced in broader international fora. A recurrent activity under the working group on Protection of the Arctic Marine Environment, for instance, has been to encourage Arctic states to sign and ratify international conventions of particular relevance to regional marine pollution.39 More substantively, this working group has also engaged – sometimes jointly with the EPPR – in developing Arctic guidelines for certain activities that pose threats to the

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Arctic environment. The most prominent example is the Arctic Offshore Oil and Gas Guidelines, adopted first in 1997 and regularly reviewed and updated. More specific products include the Field Guide for Oil Spills Response in Arctic Waters and the less formal Manual on a Shoreline Cleanup Assessment Technique. The latter, adapted for Arctic conditions, is meant to enable residents and decision makers to draw an accurate picture of the nature and extent of shoreline oiling following a spill, as this is one necessary condition for effective response.40 Explicitly non-binding, these various documents are intended to support governments and operators of Arctic installations and vessels in their efforts to enhance environmental safety, pinpointing and responding to conditions specific to this region – such as low temperatures, ice presence and long periods of darkness. They provide information about the practices of Arctic states considered to be the most advanced on the issues in question, and to some extent articulate norms developed under broader international organizations, such as the IMO or regional pollution regimes like the OSPAR Convention on marine pollution. The normative force of these various guidelines is low, however, and there has been no systematic review of whether governments or others actually make use of them. Had the norms articulated in these documents been legally binding, their level of implementation would probably have been subjected to greater scrutiny. On the other hand, given the caution that states usually display in accepting legal constraints on their freedom of action in areas important to them, negotiating such rules would have been far more difficult.41 Moreover, as illustrated for instance by the North Sea Conferences held regularly over more than two decades since the first in 1984, procedures for review of follow-up activity can be introduced also for non-binding norms.

Arctic shipping In the preceding, the restrictions placed by the LOSC on coastal state regulation of navigation beyond its territorial sea were noted – notably that such regulation shall conform to and give effect to ‘generally accepted’ rules, that is, those adopted under the IMO. Should the coastal state consider the IMO rules inadequate for certain sensitive areas, it must seek approval from this ‘competent international organization’ – even for relatively modest interventions such as requirements to use particular sea lanes. For instance, on 24 April 2006, Norway submitted to the IMO a proposal for mandatory ship routing with a traffic separation scheme for tankers and other cargo ships off the coast of Northern Norway, from Vardø to Røst. The proposed routing system involves shifting the routes of vessels away

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from the coast, in order to avoid grounding and to separate north- and south-bound traffic. Under the LOSC, any additional measures taken by the coastal state ‘shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards’.42 Given these constraints, and the navigational interests of leading powers that have produced them, it is not surprising that the Arctic Council has chosen to tread gently when it comes to the issue of Arctic shipping. PAME is the most relevant working group here: it has produced several evaluations of policy priorities regarding environmental hazards related to increased regional shipping, the most ambitious of which is the Arctic Marine Shipping Assessment, completed in 2009.43 Some soft normative activities have also been undertaken, including the Guidelines for Transfers of Refined Oil and Oil Products in Arctic Waters.44 Beyond this, the Arctic Council has provided a platform for encouraging regional states to join or participate more extensively in spatially broader environmental instruments, including the LOSC.45 Successes have been few and far between. Although Canada and Denmark have recently ratified the Convention, it is unlikely that the signals provided through the Arctic Council were significant drivers behind those decisions; and, as noted, the USA still remains outside the LOSC. Similarly, despite continuous encouragement, also in several Ministerial Declarations, Russia has not joined the comprehensive and ambitious OSPAR Convention on marine pollution in the North-east Atlantic.

Long-range transported toxics An important achievement of the Arctic Council with respect to transnational flows of hazardous substances is to have extended the sampling of such pollutants to the entire circumpolar area and clarified the pathways and mechanisms involved.46 Normative contributions have been more indirect, in that the Arctic Council has sought to influence normative developments under spatially broader institutions. Of particular interest in this respect is the development ˚ rhus POPs Protocol under the of stricter rules on POPs, first in the 1998 A Convention on Long-Range Transboundary Air Pollution (CLRTAP) and then in the global 2001 Stockholm Convention. Following the adoption of the AEPS, delegates from the eight Arctic states expressed their concern about the Arctic health effects of POPs to the Executive Body of CLRTAP. Given the political weight of this group of states, this is likely to have contributed to a subsequent strengthening of the mandate of the task force

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that examined the basis for a POPs protocol.47 Moreover, the period of producing the first AMAP Assessment overlapped with the negotiation of the POPs Protocol; and the fact that the AMAP chair was also co-chair of the Task Force on POPs meant that Arctic findings could be fed into the process continuously.48 It seems likely that those findings added to the perception that there existed a firm scientific basis for action. On the other hand, the ˚ rhus impacts of Arctic Council activities on the adoption or contents of the A Protocol should not be over-estimated. Knowledge of extraordinarily high exposure to POPs among some Arctic residents preceded AMAP;49 and Selin’s50 in-depth study of the POPs Protocol highlights research and monitoring activities by certain Arctic states – especially Canada and Sweden – rather than AMAP or other Arctic Council activities. With the global Stockholm Convention on POPs, Inuit organizations ˚ rhus played an active role, which they had done only towards the end of the A 51 Protocol process. Particular attention was given to engaging US support for an ambitious instrument, and the US chairmanship of the Arctic Council in the period 1998–2000 provided a platform for exerting Alaskan influence on those who defined US positions in the global POPs negotiations.52 According to the Conference Chair, representatives of indigenous and environmental organizations influenced the multilateral negotiations in a productive way and also ensured sustained publicity on the process.53 The Arctic dimension of the POPs problem was symbolized by a carving of an Inuit woman that was placed on the Chair’s table throughout the multilateral negotiations – but caution is again required in assessing the real impacts of the Arctic Council on the negotiated outcome. It seems safe to note that findings generated under AMAP formed part of the scientific basis that substantiated the need for stricter regulations; that participation by Inuit organizations in the Arctic Council strengthened their awareness and knowledge about international POPs politics and improved their access to, and general relations with, Canadian foreign policy makers; and that Arctic Council meetings held in the USA provided platforms for actors (also in Alaska) who favoured an ambitious global instrument for exerting pressure on US foreign policy makers. In view of the limits on what can be achieved under Arctic institutions, due to the role of this region as a sink for hazardous pollutants discharged elsewhere, the normative focus on broader institutions is quite understandable. The role played by the Arctic Council in strengthening POPs rules under CLRTAP and the Stockholm Convention depended not on the legal status of this institution but on the environmental monitoring activities it had generated and, to some extent, its profiled involvement of indigenous organizations.

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Regional sources of environmental toxics Important as external flows are, activities within Arctic states also generate a substantial share of regional marine pollution – including organochlorines, heavy metals, and hydrocarbons. Some of the largest and most heavily industrialized centres in Russia are found on the banks of rivers that branch into the Arctic seas. This is true of the Norilsk mining and metallurgical complex, the West Siberian oil and gas industries, the huge Kuznetz coal basin, and even the nuclear reprocessing plant in Mayak, near Chelyabinsk on the south-eastern slopes of the Urals. The Yenisei and Ob are the main channels for river-borne pollution into the Arctic. Similarly, as much as twothirds of the atmospheric heavy metals found in the High Arctic originate from industrial activities in Northwestern Russia, as does most of the sulphur found within the Polar Circle.54 Major sources are the smelters in the Kola Peninsula near Russia’s Nordic borders and in Norilsk further east. While international regulation of activities involving discharges of hazardous materials has occurred in broader fora, the Arctic Council has focused on enhancing the capacity to implement such rules, especially in Russia. Under PAME’s Regional Programme of Action to Eliminate Pollution from Land-Based Activities, several projects have aimed at developing and implementing a Russian Plan of Action. Tangible results have been achieved under what is now known as the Arctic Contaminants Action Plan, not least with respect to PCBs in Russia. In addition to proposing legislative measures and outlining strategies for introducing substitutes, internationally funded ACAP projects have identified existing stockpiles of this material and collected large amounts for safer storage and ultimate destruction. Envisaging application of state-of-the-art technology, this Arctic Council endeavour has now moved to demonstrations of how PCB can be destroyed. A three-year proposed plan developed in 2002 involved the destruction of nearly ten per cent of the PCB believed to remain in Russia, but subsequent implementation was limited by the inability to identify, and receive permission for, an appropriate site for destruction facilities.55 Pesticides are another area in which the Arctic Council has spurred practical problem-solving efforts. Having identified various priority regions where obsolete or prohibited pesticides might have considerable effect on the Arctic environment, several ACAP projects have enabled inventorying of most stocks and repackaging and safe storage of more than a thousand tonnes of pesticides, with destruction as the next step.56 Similarly, training programmes on cleaner production, tailored for engineers at the metallurgical complex in Norilsk, aimed at yielding

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substantial reductions in energy use and emissions of carbon dioxide and nitrogen oxides.57 Other ACAP activities have targeted mercury, dioxins, furan, as well as short-lived climate forcers, providing knowledge about releases, concentrations and cleaner production options and developing demonstration projects to reduce release of these substances.58 The same is true of the most recent substance addressed under this action plan – brominated flame retardants, which originate in electric and electronic equipment, insulation material and transport vehicles. As with the case of imported pollution, what the Arctic Council has contributed to reducing regional sources of hazardous pollution has been programme activities rather than the development of stronger international rules.

Conclusion This brief examination of how Arctic institutions relate to the Law of the Sea Convention makes it clear that the latter imposes some constraints on regional regimes, especially with respect to navigation beyond the territorial sea. It also shows that the AEPS and the Arctic Council have strengthened environmental governance in the region in several ways: by improving the knowledge base for environmental measures; by preparing practical guidance on how to reduce risks associated with activities that involve threats to the Arctic environment; by highlighting in broader regulatory fora the Arctic dimension of problems like long-range transported hazardous compounds; and by supporting the capacity of Arctic states to implement existing commitments. A legally binding Arctic environmental regime would not serve to enhance any of those functions significantly. Indeed, given the political impediments to reaching circumpolar agreement on a single comprehensive legal regime – notably the differing interests of Arctic states on such key issues as shipping and oil and gas activities, and the fact that many of the issues of concern are already regulated in global or regional treaties – the best answer would seem to be a flexible approach to norm-building that seeks productive interplay with existing institutions.

Notes 1. This chapter is a revised and abridged version of Olav S. Stokke, ‘A Legal Regime for the Arctic? Interplay with the Law of the Sea Convention’, Marine Policy 31/4 (2007), pp. 402 – 8; it appears here with kind permission from Elsevier Science.

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2. 3. 4. 5. 6. 7. 8. 9.

10. 11. 12.

13. 14.

15. 16.

17.

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That article in turn built on a paper I had prepared for the Seventh Conference of Parliamentarians of the Arctic Region, Kiruna, Sweden, 2– 4 August 2006. On the agenda for that conference was whether Arctic parliamentarians should ‘[c]onsider possibilities to initiate a process which over time could lead to a binding legal regime for conservation and sustainable use of the Arctic and its marine environment’. Linda Nowlan, ‘Arctic legal regime for environmental protection’, IUCN Environmental Policy and Law Paper No. 44 (2001), pp. 1– 70. Samantha Smith, ‘Time for an Arctic convention?’, Arctic Bulletin 1 (Oslo, WWF International Arctic Programme, 2004). See Conference of Parliamentarians of the Arctic Region, Sixth Conference of Parliamentarians of the Arctic Region (Nuuk, 3 – 6 September 2004). Available at www.arcticparl.org [Accessed 21 February 2017]. Of these, the Fishing and Conservation Convention was ratified by only 37 states. Most major fishing states did not sign, and it remained largely a paper tiger. The second UN Conference on the Law of the Sea, held in 1960, had failed to produce agreement on the extent of the territorial sea. United Nations Convention on the Law of the Sea (LOSC), 10 December 1982, 1833 UNTS 105, Article 58 and 87. Among other high-seas freedoms retained is the laying of submarine cables and pipelines. On the drawing of baselines, see LOSC Articles 5 – 8. Bernard H. Oxman, ‘The 1994 Agreement relating to the implementation of Part XI of the UN Convention on the Law of the Sea’, in D. Vidas and W. Østreng (eds), Order for the Oceans at the Turn of the Century (Dordrecht, Martinus Nijhoff Publishers, 1999), pp. 15 – 35. United Nations Fish Stocks Agreement, 4 December 1995, 2167 UNTS 3, Article 7, in conjunction with LOSC Article 63, paragraph 2. See LOSC Articles 34 – 36 (straits), 122 – 123 (enclosed and semi-enclosed seas), and 234 (ice-covered areas). Cynthia Lamson, ‘Arctic shipping, marine safety and environmental protection’, Marine Policy 11/1 (1987), pp. 3 –15. This legislation has subsequently been amended and now applies within 200 nautical miles, more compatible with Article 234, which applies to ‘ice-covered areas within the exclusive economic zone’. LOSC Articles 63 – 64 and 116– 119. United Nations Fish Stocks Agreement, 4 December 1995, 2167 UNTS 3, Article 8. On the negotiation and regional implementation of this agreement, see Olav S. Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (Oxford, Oxford University Press, 2001). LOSC Article 207, paragraph 3 (land-based activities), and Article 208, paragraph 4 (seabed activities). Alan Boyle, ‘Globalism and regionalism in the protection of the marine environment’, in D. Vidas (ed.), Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Cambridge, Cambridge University Press, 2000), pp. 19 – 33; LOSC Article 210, paragraphs 4 and 6. The London Convention was reorganized in a 1996 Protocol which is not yet in force. Olav S. Stokke, ‘Nuclear dumping in Arctic seas: Russian implementation of the London Convention’, in D. G. Victor, K. Raustiala and E. B. Skolnikoff (eds),

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19. 20. 21.

22. 23. 24. 25. 26. 27. 28.

29.

30.

31. 32. 33. 34.

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge, MIT University Press, 1998), pp. 475 – 517. International Maritime Organization (IMO), Russian Federation accepts ban on dumping of radioactive wastes under 1972 London Convention, IMO Briefing 2005:26 (2005). For a broader discussion of international cooperation on storage and treatment of radioactive waste in the Arctic, see Olav S. Stokke, ‘International environmental governance and security in the Arctic’, in R. Tamnes and K. Offerdal (eds), Geopolitics and Security in the Arctic: Regional Dynamics in a Global World (London, Routledge, 2014). Boyle, ‘Globalism and regionalism in the protection of the marine environment’. LOSC Article 211, paragraph 3. Ibid., paragraph 4. Passage is ‘innocent so long as it is not prejudicial to the peace, good order or security of the coastal State’; among the acts considered as prejudicial in those respects are ‘wilful and serious pollution contrary to this Convention’; LOSC Article 19, paragraphs 1 and 2(h). LOSC Article 211, paragraph 5. This status is per 3 February 2017; see www.un.org/depts/los [Accessed 21 February 2017]. David Scrivener, Environmental Cooperation in the Arctic: From Strategy to Council (Oslo, 1996); Oran R. Young, The Arctic Council: Marking a New Era in International Relations (New York, Twentieth Century Fund, 1996). Declaration on the Protection of the Arctic Environment, 14 June 1991. Arctic Monitoring and Assessment Programme (AMAP), Arctic Pollution 2002 (Oslo, 2002), p. 59. Ibid. Eric Dewailly and Christopher Furgal, ‘POPs, the environment, and public health’, in D. L. Downie and T. Fenge (eds), Northern Lights Against POPs: Combatting Toxic Threats in the Arctic (Montreal, McGill-Queen’s Press, 2003), pp. 3– 21. Lars-Otto Reiersen, Simon Wilson and Vitaly Kimstach, ‘Circumpolar perspectives on persistent organic pollutants: The Arctic Monitoring and Assessment Programme’, in D. L. Downie and T. Fenge (eds), Northern Lights Against POPs: Combatting Toxic Threats in the Arctic (Montreal, McGill-Queen’s Press, 2003), pp. 60 – 86, p. 76. David VanderZwaag, ‘International law and Arctic marine conservation and protection: A slushy, shifting seascape’, Georgetown International Environmental Law Review 9/2 (1997), pp. 303 –45; Øystein Wiig, ‘Isbjørnen truet av utryddelse’ (‘Polar bear threatened with extinction’), Aptenposten, 25 September 2005. Available at www.aftenposten.no/meninger/kronikker/article 112 1817.ece [Accessed 22 February 2017]. Peter Stenlund, ‘Lessons in regional cooperation from the Arctic’, Ocean and Coastal Management 45/11 –12 (2002), pp. 835– 9, p. 837. Arctic Monitoring and Assessment Programme (AMAP), AMAP strategy 2004þ (Oslo, AMAP 2004). AMAP reports are available at http://www.amap.no/ [Accessed 21 February 2017]. Reiersen, Wilson and Kimstach, ‘Circumpolar perspectives on persistent organic pollutants: The Arctic Monitoring and Assessment Programme’, p. 64.

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35. On this and other Arctic Council activities, see www.arctic-council.org/ [Accessed 21 February 2017]. 36. Henry P. Huntington and Michelle Sparck, ‘POPs in Alaska: Engaging the USA’, in D. L. Downie and T. Fenge (eds), Northern Lights Against POPs: Combatting Toxic Threats in the Arctic (Montreal, McGill-Queen’s Press, 2003), pp. 214 – 23, p. 221. 37. Emergency Prevention, Preparedness and Response (EPPR), Circumpolar Map of Resources at Risk from Oil Spills in the Arctic (EPPR, 1998). 38. Kristine Offerdal, ‘Oil, gas and the environment’, in O. S. Stokke and G. Hønneland (eds), International Cooperation and Arctic Governance: Regime Effectiveness and Northern Region Building (London, Routledge, 2007). 39. Protection of the Arctic Marine Environment (PAME), Report to the third ministerial conference on the protection of the Arctic environment (Inuvik, 20 – 21 March 1996). 40. Edward H. Owens and Gary A. Sergy, The Arctic SCAT Manual: A Field Guide to the Documentation of Oiled Shorelines in Arctic Environments (Edmonton, Environment Canada, 2004). 41. Jon B. Skjærseth, Olav S. Stokke and JørgenWettestad, ‘Soft law, hard law, and effective implementation of international environmental norms’, Global Environmental Politics 6/3 (2006), pp. 104– 20. 42. LOSC Article 211, paragraph 6. Such requirements may indeed be agreed upon, as in the case of the 2004 Convention on Ballast Water Management. 43. Documents and other resources are available at www.pame.is [Accessed 21 February 2017]. 44. Protection of the Arctic Marine Environment (PAME), Guidelines for Transfers of Refined Oil and Oil Products in Arctic Waters (PAME, 2004). 45. Protection of the Arctic Marine Environment (PAME), Report to the third ministerial conference on the protection of the Arctic environment (Inuvik, 20 – 21 March 1996). 46. Reiersen, Wilson and Kimstach, ‘Circumpolar perspectives on persistent organic pollutants: The Arctic Monitoring and Assessment Programme’. 47. Ibid., p. 61. 48. Ibid., p. 68. 49. Dewailly and Furgal, ‘POPs, the environment, and public health’. 50. Henrik Selin, Towards International Chemical Safety: Taking Action on Persistent ¨ ping, Linko ¨ ping University, 2000); Henrik Selin, Organic Pollutants (POPs) (Linko ‘The UNECE CLRTAP POPs Protocol’, in D.L. Downie and T. Fenge (eds), Northern Lights Against POPs: Combatting Toxic Threats in the Arctic (Montreal, McGillQueen’s Press, 2003), pp. 111 – 32. 51. Terry Fenge, ‘POPs and Inuit: Influencing the global agenda’, in D. L. Downie and T. Fenge (eds), Northern Lights Against POPs: Combatting Toxic Threats in the Arctic (Montreal, McGill-Queen’s Press, 2003), pp. 192– 213. 52. Huntington and Sparck, ‘POPs in Alaska: Engaging the USA’, pp. 221 –2. 53. John A. Buccini, ‘The long and winding road to Stockholm: The view from the Chair’, in D. L. Downie and T. Fenge (eds), Northern Lights Against POPs: Combatting Toxic Threats in the Arctic (Montreal, McGill-Queen’s Press, 2003), pp. 224 –56, p. 250.

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54. Arctic Monitoring and Assessment Program (AMAP), Arctic Pollution Issues: A State of the Arctic Environment Report (Oslo, AMAP 1997), pp. vii, 97 – 9. 55. Arctic Council Action Plan to Eliminate Pollution in the Arctic (ACAP), ACAP progress report to Senior Arctic Officials (Syktyvkar, 26 – 27 April 2006). 56. See Arctic Council Action Plan to Eliminate Pollution in the Arctic (ACAP), ACAP progress report to Senior Arctic Officials (Yakutsk, 6– 7 April 2005); documents and other resources deriving from ACAP activities are available at http://www.arctic-council.org/index.php/en/acap-home [Accessed 21 February 2017]. 57. Arctic Council Action Plan to Eliminate Pollution in the Arctic (ACAP), ACAP progress report to Senior Arctic Officials (Svartsengi, 23 – 24 October 2003). 58. See Arctic Council Action Plan to Eliminate Pollution in the Arctic (ACAP), ACAP progress report to Senior Arctic Officials (Yakutsk, 6– 7 April 2005); documents and other resources deriving from ACAP activities are available at http://www. arctic-council.org/index.php/en/acap-home [Accessed 21 February 2017].

CHAPTER 6 TAKE IT TO THE LIMIT: DEFINING THE CONTINENTAL SHELF IN THE ARCTIC Øystein Jensen1

Introduction Climate change and the assumption that a significant proportion of the world’s undiscovered oil and gas deposits lie beneath the Arctic seabed have turned the Arctic into a region of considerable geopolitical interest. Natural conditions aside, the region is also attracting attention because of an ongoing legal process. With the exception of the United States, all coastal states bordering the Arctic Ocean are party to the United Nations Convention on the Law of the Sea (the LOS Convention).2 The LOS Convention stipulates that a coastal state which is a party to the Convention, and which intends to establish the outer limits of its continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, shall submit the particulars concerning such outer limits to the Commission on the Limits of the Continental Shelf (the Commission) no later than ten years after the entry into force of the LOS Convention for that state.3 As of February 2017, the Commission has processed and made final recommendations on one submission related to the Arctic Ocean: the submission filed by Norway in 2006.4 The submissions of Denmark/Greenland and Russia are currently under examination by the Commission. The submission by Canada has still to be lodged, while the United States are still not a Party to the LOS Convention. This chapter is about the establishment of continental shelf limits beyond 200 nautical miles (nm) in the Arctic Ocean, focusing on the legal framework

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of the LOS Convention. Following a brief introduction to the LOS Convention’s legal framework for the continental shelf, two issues in particular are examined. First, emphasis is placed on the definition of the continental shelf in Article 76 of the LOS Convention, including key legal issues related to the application of this provision to the central Arctic basin seabed. Second, the status of the domestic implementation by various states on setting the limits of the continental shelf beyond 200 nm in the Arctic is reviewed. The chapter also provides some reflections regarding potential maritime delimitations between neighbouring states beyond 200 nm in the Arctic Ocean.

Legal Framework Substantive rights Article 77 of the LOS Convention specifies that a coastal state has ‘sovereign rights’ with regard to exploration and exploitation of the resources of its continental shelf. The coastal state is not given ‘sovereignty’ over the continental shelf, but the concept of ‘sovereign rights’ covers the most important aspect: exclusive access to non-living resources such as oil and gas, as well as the living organisms belonging to sedentary species.5 The rights granted are exclusive – ‘sovereign’ – in the sense that it is up to the coastal state alone to decide whether it will make use of its rights to explore and exploit the resources of its continental shelf. Other states may not engage in such activities without the explicit consent of the coastal state. There is a difference here from the coastal state’s rights in the exclusive economic zone in that continental shelf rights are generally not associated with commitments relating to the conservation and utilization of resources,6 benefit sharing and rights of landlocked and geographically disadvantaged states.7 Article 82 of the LOS Convention does impose a certain constraint, however, requiring the coastal state to cede a certain amount of tax on the production of the resources found on the continental shelf beyond 200 nm as ‘payments or contributions’ to the other State Parties, developing countries in particular. However, the duty to make such payments and contributions is triggered only if the coastal state actually chooses to exploit the resources of the seabed beyond 200 nm. The Arctic coastal states have also shown an interest in benefiting from exclusive jurisdiction over the continental shelf. In May 2008, a team of scientists from the US Geological Survey (USGS) conducted a study of the likelihood of finding new oil and gas fields in the Arctic. The team assessed the potential of all petroleum areas north of the Arctic Circle and estimated

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that ‘90 billion barrels of oil, 1,669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids may remain to be found in the Arctic, of which approximately 84 per cent is expected to occur in offshore areas’.8 What percentage of these resources lie respectively within and beyond 200 nm from the coastal states’ baselines is unclear. Regardless of this uncertainty – and despite the harsh climate and limited existing infrastructure – the seabed of the Arctic Ocean clearly contains significant quantities of non-living resources, a discovery that has already triggered the interest of the surrounding coastal states, and may well be subject to exploitation in the not-too-distant future.

Definition of the continental shelf The most complicated issue in relation to implementation of the LOS Convention’s continental shelf regime in the Arctic Ocean is deciding which part of the seabed is ‘continental shelf’ in the legal sense. The legal definition of ‘continental shelf’ is given in Article 76 of the LOS Convention. It consists of ten paragraphs, most of which (paragraphs 2 to 8) relate exclusively to the limits of the continental shelf where it extends beyond 200 nm from the baselines. Under Article 76 of the LOS Convention, the right of a coastal state to determine the outer limits of its continental shelf is established by means of two criteria – based on either natural prolongation to the end of the continental margin, or at a distance of 200 nm from the baselines from which the breadth of the territorial sea is measured. These two criteria differ in nature. Whereas the 200-nm option is a geographical limit which does not have to correspond to that part of the continental shelf that is a natural prolongation of the continent under the sea, the outer edge of the continental margin denotes a geo-morphological feature that can be determined geologically and is susceptible to the natural prolongation test.9 If a state decides to claim a shelf of 200 nm, Article 76 will have little further relevance. However, if a state makes an ‘extended’ claim beyond that distance, certain peculiarities of the LOS Convention’s continental shelf regime come to light. First, the formula set out in Article 76 of the LOS Convention for delineating the outer limits of the continental shelf beyond 200 nm applies other criteria than distance from the coast. Article 76 is essentially designed to allow the coastal state to claim as its continental shelf all parts of the ocean floor extending ‘beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin’.10 The LOS Convention thus enables the coastal state to claim as ‘continental shelf’ all parts of the ocean floor which scientists consider to

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be the continental shelf, the continental slope and the continental rise.11 To determine exactly where the continental rise ends as it meets the deep ocean seabed (that is, the seabed defined in Article 1 of the LOS Convention as the ‘Area’), Article 76 offers two alternatives: the depth-of-sediment test measured from the ‘foot of the slope’ (the ‘Irish formula’);12 or a series of lines 60 nm from the ‘foot of the slope’ (the ‘Hedberg formula’).13 A vital exercise under both alternatives is therefore to identify the ‘foot of the slope’, which according to Article 76 is defined as ‘the point of maximum change in the gradient at its base’.14 The definition of the ‘foot of the slope’, however, creates a further difficulty in the application of Article 76, as does the application of the maximum constraint lines for determining the seaward extent of the continental shelf provided for.15 Furthermore, Article 76 means that a coastal state must make a number of submarine measurements and identify the various parts of the Article 76 formula in order to determine how to measure them on the basis of the different options permitted. And Article 76 does not operate with the standard definitions and principles used by geologists for establishing the outer edge of the continental margin: it contains a new legal definition of and process for defining the shelf and setting the outer limits. Therefore, states cannot simply rely on pre-existing scientific understandings of the ocean floor when they delineate their outer limits – they must gather and interpret fresh data according to Article 76.16

Procedures The second novelty, compared to how the outer limits of other maritime zones are established under the LOS Convention, relates to the procedure by which the outer limits of the continental shelf beyond 200 nm are determined. The most distinctive element of this approach is the institutional dimension, represented by the above-mentioned specialized treaty body, set up to oversee the application of Article 76: the Commission on the Limits of the Continental Shelf. The Commission is established by Annex II of the LOS Convention. To support its claim to a continental shelf extending beyond 200 nm from the baselines, a coastal state must present a factual submission to the Commission. It has 21 members, all scientists and all elected by the State Parties to the Convention.17 According to Article 3 of Annex II to the LOS Convention, the Commission has two functions: first, to ‘consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nm, and make recommendations in accordance with Article 76’; and second,

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to ‘provide scientific and technical advice, if requested by the coastal State concerned during preparation of such data’. The main function of the Commission centres on the former duty: to examine the data and information submitted by a coastal state to back up its delineation of the outer limits of its continental shelf, and then make recommendations to that state. There is no escape from this procedure. All coastal states intending to establish outer limits beyond 200 nm from the baselines, and which are Parties to the LOS Convention, must follow this procedure in making a submission. We can therefore summarize the procedures for establishing the outer limits beyond 200 nm under the LOS Convention as follows. After the coastal state has provisionally delineated the outer limits on the basis of the provisions of the LOS Convention, it shall submit information on these limits to the Commission within a determined (10-year) deadline.18 The Commission then follows the procedure set out in Annex II to the LOS Convention, and prepares recommendations to the coastal state on matters related to the establishment of the outer limits. The Commission then submits its recommendations to the coastal state. Importantly, the outer continental shelf limits subsequently established by a coastal state ‘on the basis of’ the Commission’s recommendations are – according to Article 76, paragraph 8, of the LOS Convention – legally ‘final and binding’.

Specific Legal Issues Related to the Continental Margin beyond 200 Nautical Miles in the Arctic Ocean There are five coastal states adjacent to the Arctic Ocean with potential claims to the continental shelf: Russia, Norway, Canada, the USA and Denmark/Greenland. There are no sovereignty disputes and the states have, as in other sea areas, established adjacent maritime zones permitted under international law, that is, territorial waters, contiguous zones and 200-mile zones.19 There remains one fundamental question, however, and that is where exactly the outer limits of the continental shelf beyond 200 nm in the Arctic Ocean lie. In light of Article 76 of the LOS Convention, two legal issues stand out in this regard: the concept of natural prolongation and the application of constraint lines for determining the maximum seaward extent of the continental shelf.

Natural prolongations For any coastal state, the process of establishing the outer limits of its continental shelf under the LOS Convention begins by determining whether

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it is legally entitled to delineate the outer limits throughout the natural prolongation of its land territory to either a) the outer edge of the continental margin, or b) only up to a distance of 200 nm from the baselines, if the outer edge of the continental margin does not extend up to that distance. This process – described by the Commission in its Scientific and Technical Guidelines as the ‘test of appurtenance’20 – has only two possible outcomes. Or put differently: Article 76, paragraph 1 of the LOS Convention distinguishes between two different scenarios as regards the seaward extension of the legal continental shelf. If a coastal state cannot demonstrate that the continental shelf extends beyond 200 nm, the outer limits of its continental shelf shall be delineated at 200 nm, as prescribed in Article 76, paragraph 1. In this case, the coastal state is not obliged to make a submission to the Commission, and the Commission is not called upon to make recommendations on those limits. If, however, a coastal state can demonstrate that the outer edge of its continental margin extends beyond 200 nm from the baselines, it is entitled to delineate the outer limits of its continental shelf in accordance with Article 76, paragraphs 4– 10, of the LOS Convention. The coastal state is then required to make a submission to the Commission within a determined deadline.21 At the most basic level, this test of appurtenance seems to create certain difficulties for three Arctic coastal states in particular (Canada, Denmark/ Greenland and Russia) in delineating the outer limits of their continental shelves in the Arctic Ocean. The first difficulty concerns the admissibility of particular seafloor highs as natural prolongations that justify the extension of continental shelf rights beyond 200 nm. The criterion ‘natural prolongation’ is contained in Article 76, paragraph 1 of the LOS Convention. It implies that as long as the submerged seabed is a ‘natural prolongation’ of a land territory, this seabed may be part of the legal continental shelf. However, discontinuities in the continental margins may be an acute problem in relation to the seafloor highs that extend across the Arctic Ocean, conjoining Russian, Greenlandic and Canadian territory: in this case the Lomonosov, Alpha and Mendeleev seafloor highs. Even a cursory glance at maps of the Arctic Ocean seabed will reveal the contours of morphological ruptures separating the seabed outside Russia/Canada/Greenland from the seabed comprising the said seafloor highs. This issue came into focus when Russia made a submission to the Commission in 2001. Russia laid claim to a continental shelf stretching all the way to the North Pole, thereby encompassing parts of the Lomonosov, Alpha and Mendeleev seafloor highs. But Russia’s 2001 shelf submission caused several other states to react, including Canada, Denmark, Japan,

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Norway and the USA. The Lomonosov, argued the latter, is a ‘freestanding feature in the deep, oceanic part of the Arctic Ocean basin, and not a natural component of the continental margins of either Russia or any other State’.22 The USA also questioned Russia’s classification of the Alpha and Mendeleev.23 It has been reported that the Commission also took issue with regard to whether the said seafloor highs could be considered submerged prolongations of Russia’s adjacent landmasses.24 In its recommendations to Russia in 2002, the Commission concluded that Russia would have to make a new and revised submission with respect to the central Arctic Ocean.25 Thus, in principle, the Commission neither disagreed nor agreed with the Russian delineation of its extended continental shelf; it simply recommended additional research.26 At a seminar in St. Petersburg in 2003 – at which more than 30 Russian and non-Russian speakers discussed geoscientific topics relevant to the implementation of Article 76 – Russia responded to the Commission’s recommendations by indicating its intention to carry out a new round of fieldwork in the Arctic for the purpose of obtaining additional data.27 A new submission from Russia with respect to the Arctic Ocean was lodged on 3 August 2015.28 It would be premature at this juncture to conclude whether any of the seafloor highs in the Arctic basin constitute ‘natural prolongations’ of the adjacent territories. One of the main purposes of the ongoing studies by Canada and Denmark/Greenland of the Arctic seabed is precisely to furnish evidence that Lomonosov should be considered part of the continental shelf, thereby constituting the submerged prolongation of their respective territories. Still, it is clear that the question of which parts of the ocean floor actually make up the natural extension of the surrounding land masses is one of the really problematic issues facing the coastal states as well as the Commission in relation to Article 76, and it is a question which – interestingly enough – seems to come to the forefront in the Arctic Ocean. Here mention may be made of the 2012 Bay of Bengal Case, in which the International Tribunal for the Law of the Sea (ITLOS) had to deal with the meaning of ‘natural prolongation’ in the context of Article 76 of the LOS Convention. This case concerned the maritime boundary dispute between Bangladesh and Myanmar in the Bay of Bengal with respect to the territorial sea, the exclusive economic zone and the continental shelf, including the continental shelf beyond 200 nm. Bangladesh and Myanmar differed in their understanding of the concept of ‘natural prolongation’. Bangladesh argued that the criterion ‘natural prolongation of its land territory’ in Article 76, paragraph 1 referred to the

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need for geological as well as geo-morphological continuity between the land mass of the coastal state and the seabed beyond 200 nm, and that, in the case of Myanmar, such continuity was absent; there could therefore be no entitlement beyond 200 nm.29 Accordingly, Bangladesh held that natural prolongation beyond 200 nm was a concept that had to be established on the basis of geological and geo-morphological evidence, that is, that natural prolongation has an appropriate geological foundation. In favour of such interpretation, Bangladesh invoked the ordinary meaning of the words ‘natural prolongation’, international jurisprudence, as well as the Scientific and Technical Guidelines and the practice of the Commission. Myanmar, on the other hand, held that ‘natural prolongation’ was a legal term without any such scientific or geological connotations.30 According to Myanmar, the practice of the Commission, the object and purpose of Article 76 and the legislative history of that provision, suggested that the controlling concept was not natural prolongation, but the ‘outer edge of the continental margin’, as precisely defined by the two formulae provided in Article 76, paragraph 4 of the LOS Convention. Thus, in the view of Myanmar, scientific facts such as the origin of sediment on the seabed or in the subsoil, the nature of sediment and the basement structure or tectonics underlying the continents had no relevance for determining the extent of entitlement to the continental shelf under Article 76.31 The Tribunal agreed with Myanmar. It held that while the concept of natural prolongation first arose in the 1969 North Sea Continental Shelf Cases, it had never been defined, and observed that during the Third United Nations Conference on the Law of the Sea (UNCLOS III), the notion of natural prolongation was employed as a concept to lend support to the trend towards expanding national jurisdiction over the continental margin.32 The ITLOS therefore rejected Bangladesh’s contention that by reason of the ‘significant geological discontinuity’ dividing the Burma plate from the Indian plate, Myanmar was not entitled to a continental shelf beyond 200 nm.33 Accordingly, geological discontinuity was not deemed relevant for determining the entitlement of Myanmar. Or, put differently, only geomorphology (the outer physical appearance of the seabed) and not geology (the composition of the subsoil, etc.), was relevant in determining whether there was an overlapping continental shelf. This conclusion has accordingly been described as ‘a rebuttal of natural prolongation as a geological concept’.34 Here it is natural to ask whether the decision in the Bay of Bengal Case will affect the interpretation and application of Article 76 by Canada, Denmark/ Greenland and Russia in relation to the concept of natural prolongation,

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specifically in relation to the above-mentioned ‘ruptures’ in the continental margin adjacent to their Arctic Ocean coastlines. The ITLOS judgment indicates that coastal states (and the Commission) should focus on the geo-morphological properties of the seabed when interpreting ‘natural prolongation’. The decision can therefore also be understood as suggesting that geological aspects have little or no importance in relation to the interpretation of the term ‘natural prolongation’ under Article 76. That being said, I feel there are some weak points in the Tribunal’s argumentation in the Bay of Bengal Case as related to the issue of natural prolongation. First, it is unclear what the ITLOS actually means by the statement that the natural prolongation in Article 76, paragraph 1 does not constitute ‘a separate and independent criterion a coastal State must satisfy in order to be entitled to a continental shelf beyond 200 nm’.35 After all, ‘natural prolongation’ – used in conjunction with the term ‘submerged prolongation’ in Article 76, paragraph 3 – is the criterion which basically determines the breadth of a state’s continental shelf where it extends beyond 200 nm.36 When the ITLOS further states that ‘the notion of natural prolongation and that of continental margin under article 76, paragraphs 1 and 4, are closely interrelated’ and that ‘[t]hey refer to the same area’, it actually seems that the Tribunal is confusing the question of entitlement (regulated by Article 76, paragraphs 1 and 3) with the specific procedure by which the outer edge of the continental margin is determined (regulated by Article 76, paragraph 4). In his Separate Opinion, Judge Gao summed up what in my view is a justified criticism of the judgment on this point: [B]y stating that ‘[e]ntitlement to a continental shelf beyond 200 nm should thus be determined by reference to the outer edge of the continental margin’, the Judgment seems to prescribe that the outer edge of the continental margin by itself constitutes a separate and independent criterion of entitlement to a continental shelf beyond 200 nm. This is certainly not a correct interpretation of article 76 of the Convention.37

The mixing of the question of how the outer edge of the continental margin is determined with how the term ‘natural prolongation’ shall be understood is confusing. These are two separate questions, and the former does not belong in a discussion of the ‘meaning of natural prolongation’. The Tribunal should therefore have rejected Myanmar’s contention according to which the rules in Article 76, paragraph 4, of the LOS Convention on how the outer edge of the continental margin is established are the rules which

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determine the extent of the continental shelf beyond 200 nm. Instead, Myanmar’s argument should have been accepted solely because, in the view of the Tribunal, geological factors are not relevant in determining whether the criterion of ‘natural prolongation’ is fulfilled or not. The lesson the Arctic coastal states may learn from the Bay of Bengal Case is what was emphasized above: Whether or not Lomonosov constitutes a ‘natural prolongation’ of the surrounding continents depends on the geo-morphological character of the seabed.

Maximum constraint lines and classification of seafloor highs While the concept of ‘natural prolongation’ will play an important part in the discussion on which parts of the Arctic Ocean seabed are construed in legal terms as parts of a ‘continental shelf’, application of this concept alone cannot provide all the legal answers. In delineating the outer limits of the continental shelf beyond 200 nm in the Arctic, there is another issue which is problematic in the application of Article 76, one which the Commission doubtless encountered in evaluating the 2001 Russian submission. If the seafloor highs stretching across the Arctic Ocean are in fact valid as submerged prolongations of the surrounding coastal state’s land territory, should they be considered submarine ‘ridges’ or submarine ‘elevations’? This is a critical distinction, as the category of ‘elevation’ confers a more favourable maximum limitation on the extent of the continental shelf under the LOS Convention. According to Article 76, paragraphs 5 and 6 of the LOS Convention, the continental shelf can extend to 350 nm from the baselines on submarine ridges, and to either 350 nm or 100 nm beyond the 2,500metre isobath on submarine elevations. If the said seafloor highs were to be legally classified as elevations, estimates indicate that only two relatively small enclaves in the entire Arctic Ocean would remain part of the Area: the Gakkel Ridge and a smaller seabed area in the Canada Basin.38 Unfortunately, the distinction between ‘ridges’ and ‘elevations’ is not clearly established under Article 76 of the LOS Convention. Nor is it perfectly clear in the Scientific and Technical Guidelines of the Commission.39 However, it is worth noting that the term ‘submarine elevations’ is followed by the qualification ‘that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs’. Thus, a basis for the distinction – and the more favourable maximum limitation on the extent of the continental shelf on elevations – may lie in the fact that submarine elevations can be distinguished as separate features which are a more ‘integral’ part of the prolongation of the land mass than ridges.40 As Harald

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Brekke and Philip Symonds also argue, a basis for the LOS Convention’s distinction between ridges and elevations could lie in the morphologic, geologic and tectonic relationship of the seafloor high to the land mass.41 In its 2015 revised submission, Russia renewed its assertion that the seafloor highs in the central Arctic basin are ‘submarine elevations that are natural components of the continental margin’. The Russian submission had the continental shelf extend beyond the North Pole. The North Pole is, however, located at a more seaward position than 350 nm from the baselines of Russia and, hence, at a more seaward position than the LOS Convention permits a continental shelf to extend on submarine ridges. In its submission, Denmark/Greenland also claimed that the continental shelf extended into the central Arctic Ocean. Canada will also have to take a position on the issue about the classification of the seafloor highs in the central Arctic Ocean in its forthcoming submission. To the non-party USA – which also uses the substantive definition of the continental shelf in Article 76 of the LOS Convention as the basis for delineating its shelf beyond 200 nm in the Arctic – the question is also relevant in relation to the Chukchi Plateau off the north coast of Alaska. The USA was arguing as early as UNCLOS III that seafloor highs such as the Chukchi plateau were covered by the term ‘submarine elevations’, and thus not subject to the 350-nm limitation provided for under Article 76, paragraph 6, of the LOS Convention: The United States understands that features such as the Chukchi plateau and its component elevations, situated to the north of Alaska, are covered by this exemption, and thus not subject to the 350 mile limitation set forth in paragraph 6. Because of the potential for significant oil and gas reserves in the Chukchi plateau, it is important to recall the U.S. statement made to this effect on April 3, 1980 during a Plenary session of the Third United Nations Conference on the Law of the Sea, which has never given rise to any contrary interpretation. In the statement, the United States representative expressed support for the provision now set forth in article 76(6) on the understanding that it is recognized that features such as the Chukchi plateau situated to the north of Alaska and its component elevations cannot be considered a ridge and are covered by the last sentence of paragraph 6.42

For now, however, the question is how Canada will position itself with regard to the legal classification of the Arctic Ocean seafloor highs in its awaited submission. And then, what conclusions the Commission will adopt in its recommendations to Russia, Denmark/Greenland and Canada

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and, eventually, how these coastal states will treat the issue in their domestic legislation.

Submissions and Recommendations: State-by-State Overview Norway Norway lodged its submission on the outer limits of the continental shelf beyond 200 nm from the baselines ten years after the LOS Convention entered into force for Norway, on 27 November 2006.43 The information submitted by Norway was intended to support the claim that its continental shelf extended beyond 200 nm in three distinct areas: the Banana Hole in the Norwegian and Greenland Seas, the Loophole in the Barents Sea, and the Western Nansen Basin in the Arctic Ocean. On 27 March 2009, the Commission adopted, by consensus, its recommendations to Norway.44 The Commission generally agreed with the way Norway had established the outer edge of the continental margin in both the Banana Hole area and the Loophole in the Barents Sea.45 Notably, the entire seabed in the Loophole was considered as forming part of the submerged prolongation of the landmasses of mainland Norway and Svalbard.46 In the Western Nansen Basin, however, the Commission disagreed with Norway in relation to one of the two critical ‘foot-of-the-continental-slope points’ intended to form the basis for the establishment of the outer edge of the continental margin.47 With respect to the foot-of-the-continental-slope point related to the continental margin of the Franz-Victoria Fan adjacent to the Barents Sea shelf, the Commission was of the opinion that Norway had not presented sufficient geological/geophysical data to support the establishment of the original foot-of-the-continental-shelf point contained in the submission. A revised foot-of-the-slope point was therefore defined (at a more seaward position, in fact), following a series of communications between Norway and the sub-commission.48 In determining the outer edge of the continental margin in the Western Nansen Basin, Norway had, in its submission, relied partly on fixed points based on the provision concerning sediment thickness, contained in Article 76, paragraph 4 (a)(i), of the LOS Convention. The remaining fixed formula points were based on arcs constructed at a distance of 60 nm from the footof-the-continental-shelf point, in accordance with Article 76, paragraph 4 (a) (ii). Subsequently, with respect to the exact delineation of the outer limits, the constraint lines in Article 76, paragraphs 5 and 6 were taken into

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consideration. Norway had invoked only the distance constraint criteria, that is, the 350-mile rule for determining the maximum seaward extent of the continental shelf. The territorial sea baselines of Norway in respect of the ‘outer continental shelf’ in the Nansen Basin are related to the Svalbard archipelago. As affirmed by the Commission, the fixed formula points clearly lie within the 350-mile limit in this area. Subsequently, the Commission recommended establishing the outer limits of the continental shelf in accordance with Article 76, paragraph 7 of the LOS Convention, by straight lines not exceeding 60 nm in length, defined by coordinates of latitude and longitude.49 In the easternmost part of the Nansen Basin, however, the outer limits of Norway’s continental shelf connect to the outer limits of Russia’s continental shelf. Despite the 2010 delimitation agreement between Norway and Russia in the Barents Sea and the Arctic Ocean,50 the connection of the easternmost fixed formula point of the outer limit of the continental shelf of Norway and the westernmost fixed formula point of the outer limit of the Russian continental shelf in this area is pending a new and revised submission from the Russian Federation. In respect of this part of the Nansen Basin, the Commission thus advised Norway to proceed by establishing the basis of the outer edge of the continental margin based on formula points on arcs constructed at a distance of 60 nm from the easternmost foot-of-thecontinental-shelf point in accordance with Article 76, paragraph 4 (a)(ii) of the LOS Convention.51 In respect of the westernmost parts of the Nansen Basin there are overlapping claims to seabed areas related to Denmark/Greenland. Only an agreement for the delimitation of maritime areas within 200 miles has been concluded and entered into force, on 2 February and 2 June 2006, respectively.52 As stated in the preamble to that agreement, however, Norway and Denmark/Greenland intend to revert to the delimitation of the continental shelf beyond 200 nm once the outer limits have been established – north and/or south of the agreed delimitation boundary.53 In light of the recommendations issued by the Commission in response to Norway’s submission, what now remains is the incorporation of the outer limits of the related segment of Norway’s continental shelf in domestic law. Norway’s outer continental shelf limits will, it is assumed, be codified in the form of a regulation issued pursuant to Act No. 72 of 29 November 1996 relating to petroleum activities,54 but possibly not before all Norwegian delimitation agreements concerning the continental shelf beyond the 200-nm limit have been concluded. As of mid-December 2013, what remain to be concluded for Norway are the delimitation agreements beyond 200 nm

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with Denmark/Greenland in the Norwegian Sea and the Arctic Ocean, and the delimitation between Norway and Iceland and Denmark/Faeroes in the southernmost Norwegian Sea (the ‘Banana Hole’). Thereafter – if the limits are established ‘on the basis of’ the Commission’s recommendations – the outer limits will have ‘final and binding’ legal force, as provided for under Article 76, paragraph 8 of the LOS Convention. For Norway, it will be important to follow closely the recommendations of the Commission to other states, not least as they pertain to the Nansen Basin, where Norway’s shelf extends into that of Russia.

The Russian Federation As noted, the Russian Federation was the first coastal state to make a submission to the Commission concerning the outer limits of the continental shelf beyond 200 nm. Russia included in its submission the continental shelf in the central Arctic Ocean. Russia ratified the LOS Convention in 1997, so its submission was definitely a timely one. As regards the central Arctic Ocean, the Commission nevertheless concluded that Russia would have to ‘make a revised submission . . . based on the findings contained in the recommendations’.55 Given the lack of public information on both Russia’s submission and the Commission’s response, we can only wonder why the Commission asked Russia to make a new continental shelf submission. However, it seems likely that the data supplied by Russia were insufficient for the Commission to substantiate whether the seafloor highs in the central Arctic basin were natural prolongations of Russia’s continent and/or a wrong application of the LOS Convention’s rules regarding maximum constraint lines on elevations and ridges. On 3 August 2015, Russian submitted to the Commission a new and partial revised submission with respect to the outer limits of its continental shelf beyond 200 nm in the central Arctic Ocean. The area of continental shelf beyond 200 nm in the Arctic Ocean covers 1,191,347 square kilometres, that is, approximately 100,000 square kilometres more than in Russia’s 2001 Submission. Segments of the outer limits and the sea floor areas bounded by these limits are divided into six main areas. In addition, one section of the Submission is devoted to describing the intersection of the last segment of the western outer limit and the delimitation line between Norway and Russia in the Barents Sea and the Arctic Ocean.56 The revised Russian submission puts certain substantive matters to the test, including the concept of natural prolongation and the classification of seafloor highs into the categories of Article 76, paragraph 6, of the LOS

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Convention. Also with respect to the easternmost seabed area (Chukchi Sea), where it seems as if Article 76 has not been applied by Russia, questions may arise. Based on the Executive Summary, the Revised Submission indeed appears to be founded on more extensive scientific documentation than the 2001 Submission. The scientific complexity of Russia’s 2015 continental shelf Submission may, however, be the biggest challenge for the Commission thus far. Russia’s Revised Submission goes back millions of years and explores the theories of the geological origins of the different parts of the Arctic seafloor. The uncertainty on the proof/evidence of facts to be utilized by the Commission is thus one of the challenges raised by the 2015 Russian Revised Submission. The new Submission has, in line with Commission practice, been put at the front of a long and growing queue of first-time submissions and the sub-commission commenced its work on the submission during its 41st session, from 8 to 12 August 2016.57

Canada It is one of the priorities of Canada’s Northern Strategy to submit a claim to a continental shelf beyond 200 nm.58 On 6 December 2013, Canada submitted to the Commission a partial submission for seabed areas in the Atlantic Ocean, organized in three sections: the Labrador Sea, the Grand Banks and Nova Scotia.59 However, Canada is currently working to define also the outer limits of its continental shelf in the Arctic Ocean. In the Arctic Ocean, Canada potentially has a significant area of continental margin beyond 200 nm.60 In the west, the continental margin area beyond 200 nm is in the Beaufort Sea/Canadian Basin.61 In the east, the continental margin beyond 200 nm is associated with the Alpha, Mendeleev and Lomonosov seafloor highs.62 Canada ratified the LOS Convention on 7 November 2003. Under Article 4 of Annex II to the LOS Convention, Canada has ten years to make a submission to the Commission. Through its ‘Extended Continental Shelf Programme’ (ECSP), Canada has since 2004 aimed to prepare a submission to the Commission. The ECSP is a joint federal effort, comprising three departments: the Department of Foreign Affairs and International Trade Canada (DFAIT), Fisheries and Oceans Canada (DFO) and Natural Resources Canada (NRCan). The latter two are responsible for preparing the submission from the scientific and technical angles, and for engaging with the Commission as it evaluates the submission. The DFAIT is responsible for undertaking the diplomatic work and overall engagement with the

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Commission, and for ensuring the legality of the content of the submission as per Article 76 of the LOS Convention.63 Canada’s ECSP has gone through different phases. In the first formative phase (2004 – 7), a survey plan was made, including the establishment of the governmental network. In the second phase (2005 – 12), scientific and technical data were collected to support Canada’s submission to the Commission regarding the outer limits. Also, in 2005, an agreement on joint data acquisition was signed by Canada and Denmark/Greenland.64 The agreement has formed the basis for extensive collaboration between the two countries in order to acquire the necessary data regarding an extended continental shelf claim, inter alia, in the Arctic Ocean. Since 2009, several Canadian –Danish data-collection projects have been conducted in the Arctic.65 Canada has also worked extensively with both Russia and the USA in mapping the Arctic Ocean seafloor for the purpose of making a submission under Article 76.66 As of February 2017, a continental shelf submission by Canada related to the Arctic Ocean has yet to be lodged.

Denmark/Greenland Denmark ratified the LOS Convention on 16 November 2004. Following this ratification, the Danish Ministry of Science, Innovation and Higher Education – in cooperation with the governments of Greenland and the Faeroes – launched the Danish Continental Shelf Project (CSP). The purpose of the CSP is to identify potential claim areas and to acquire, interpret and document the data necessary for a submission to the Commission under the LOS Convention.67 On 15 December 2014, Denmark submitted to the Commission information on the limits of the continental shelf beyond 200 nm from the territorial sea baselines in respect of the northern continental shelf of Greenland. The submission was the third partial submission relating to the establishment of the outer limits of the continental shelf appurtenant to Greenland.93 The consideration of the submission was included in the provisional agenda of the 38th session of the Commission, held in New York in September 2015. According to the submission, the outer limits of the northern continental shelf of Greenland on the Eurasia side of the Lomonosov Ridge extend to the 200-nm limit of Norway (Svalbard) at one end and to the 200-nm limit of the Russian Federation at the other. On the Amerasia side of the Lomonosov Ridge the outer limits extend to the 200-nm limit of Canada at one end and to the 200-nm limit of the Russian Federation at the other. Denmark’s submission therefore contends that the seafloor highs and other features in the central Arctic Ocean – including the Lomonosov Ridge,

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the Gakkel Ridge, the Alpha-Mendeleev Ridge complex and the Chukchi Borderland – are all morphologically continuous with the land mass of Greenland, and thereby constitute integral parts of the northern continental margin of Greenland. Notably, it is argued that the Lomonosov Ridge shares a common geological history with the onshore areas of Greenland and the Canadian Arctic Archipelago. According to Denmark, the Lomonosov Ridge is thus both morphologically and geologically an integral part of the northern continental margin of Greenland. Or, legally: the central Arctic Ocean seabed, including the alluring North Pole area, is contended to be ‘continental shelf’ in terms of Article 76 of the LOS Convention. The submission also makes specific reference to potential overlaps of entitlement to the northern continental shelf of Greenland. It is noted that the outer limits of the continental shelf of Canada may overlap the shelf of Greenland, but that this matter is already subject to consultations between the parties. As to the seabed area between Greenland and Svalbard, the submission makes reference to the 2006 delimitation agreement between Denmark and Norway concerning the continental shelf and fisheries zones, in which the parties explicitly express their intention to revert to the delimitation of the continental shelf beyond 200 nm in connection with the establishment of their outer limits. The submission also refers to an agreement of 27 March 2014 between Denmark and the Russian Federation regarding potential overlaps of continental shelf entitlements. It is also noted that the potential claimed entitlement of the USA to continental shelf in the Arctic Ocean could overlap with the outer limits of the northern continental shelf of Greenland, and that this matter is subject to consultations. Thus, and in referring to Article 76, paragraph 10 and Article 9 of Annex II to the LOS Convention, the submission makes clear that any final delimitations will be determined through bilateral agreements. As of February 2017, no sub-commission has yet been established by the Commission to examine the Danish submission.

United States The USA has not ratified the LOS Convention. When the LOS Convention was adopted in 1982, President Ronald Reagan not only very publicly refused to sign it: he also sent Donald Rumsfeld, then Special Envoy to the Middle East, on a globetrotting mission to explain the US opposition to the new Convention, on the grounds that ‘no national interest of [the USA] could justify handing sovereign control of two-thirds of the Earth’s surface over to the Third World’, and that it was ‘apparent that the underdeveloped nations

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who . . . control the General Assembly were looking for a free ride at [US] expense, again’.68 Even though the LOS Convention today has the backing of the US military, the US Chamber of Commerce and all Secretaries of State since its adoption, it has not yet been ratified by the US Senate. Treaty ratification requires that 2/3 of the US Senate votes in favour of approval. The fierce opposition of some conservatives has successfully blocked ratification. In 2012, 34 Senators signed a letter, urging US Senate Foreign Relations Committee Chairman John Kerry to vote against the treaty.69 Critics have argued that the LOS Convention represents an unacceptable form of global collectivism, that the Convention is a threat to US sovereignty and that it, for instance, is full of unwieldy environmental regulations. Formally, the USA is therefore still bound only by the 1958 Convention on the Continental Shelf,70 whose Article 1 gives a different definition of the continental shelf from that now contained in Article 76 of the LOS Convention.71 It also means that the USA does not have the right to file a submission and have its provisional delineation of the outer limits adjacent to the coast of Alaska examined by the Commission. But non-ratification by the USA also means that the ten-year deadline does not apply. Despite the lack of ratification, the US government is currently mapping its continental shelf beyond 200 nm, including the Arctic Ocean. This work is directed and coordinated by the ‘US Extended Continental Shelf Task Force’, an interagency body chaired by the Department of State, with covice-chairs from the National Oceanic and Atmospheric Administration, and the Department of the Interior. Ten additional agencies participate in the Task Force. Its mandate is to establish the full extent of the continental shelf of the USA, in line with international law.72 The USA has previously stated that the substantive elements of Article 76 of the LOS Convention reflect customary international law, and that it intends to delineate the seaward limits of its continental shelf in conformity with Article 76: [T]he Interagency Group on Ocean Policy and Law of the Sea has determined that the proper definition and means of delimitation in international law are reflected in Article 76 [. . .] At such time in the future that it is determined desirable to delimit the outer limit of the continental shelf of the United States beyond two hundred nautical miles [. . .] such delimitation shall be carried out in accordance with paragraphs (4), (5), (6) and (7).73

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Furthermore, before George W. Bush left office in 2009, he issued a Directive establishing US policy with respect to the Arctic region.74 Fundamentally, the Secretary of State is called upon to continue to seek the consent of the US Senate to accede to the LOS Convention.75 In anticipation of US ratification, however, US Arctic policy is to be implemented, according to the Directive, in a manner ‘consistent with customary international law as recognized by the United States, including with respect to the law of the sea’.76 Section D of the Directive – titled ‘Extended Continental Shelf and Boundary Issues’ – underscores that defining with certainty the area of the Arctic seabed and subsoil in which the USA may exercise sovereign rights over natural resources is critical to national interests, and that the most effective way to achieve international recognition and legal certainty for an extended continental shelf is through the procedures available to States Parties to the LOS Convention.77 All actions shall thus be taken by the Secretary of State to ‘establish the outer limit of the continental shelf appertaining to the United States, in the Arctic and in other regions, to the fullest extent permitted under international law’.78 To this end, the definition of the continental shelf in the LOS Convention forms the basis of the work of the US Extended Continental Shelf Task Force, which is currently conducting surveys in the Arctic Ocean aimed at giving the USA a head start in collecting and analysing data for its extended continental shelf, if the Senate at some point should act favourably on US accession to the LOS Convention. Since 2003, the Task Force has therefore conducted several cruises to collect scientific data in the Arctic Ocean, most recently with the USCG Cutter Healy, which set sail from Barrow, Alaska, on 25 August 2012. According to the Task Force, these research trips have resulted in ‘fascinating scientific discoveries such as the existence of previously unknown seamounts in the Arctic Ocean’.79 That could well affect the placement of the outer limit related to the Chukchi Plateau north of Alaska – the legal classification of which is the main concern of the USA with regard to a continental shelf beyond 200 nm.

Delimitation Some remarks on potential maritime delimitation of the continental shelf beyond 200 nm in the Arctic Ocean are also pertinent. An extensive Arctic Ocean continental shelf is likely to give rise to various overlapping seabed claims, whose resolution will depend on the application of delimitation agreements.80 The delimitation agreement between Russia and Norway concerning the Barents Sea and the Arctic Ocean entered into force on 7 June

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2011 and delimited, inter alia, the continental shelf beyond 200 nm in the Barents Sea (the ‘Loophoole’ area).81 Disputes may also arise in the central Arctic Ocean, involving Denmark/Greenland, Canada and Russia. In principle, there is nothing unique about the Arctic in this respect, since the LOS Convention provides a generally applicable legal framework.82 In the Bay of Bengal Case, for instance, the ITLOS held that the delimitation method to be employed in the present case for the continental shelf beyond 200 nautical miles should not differ from that within 200 nm. Accordingly, the equidistance/relevant circumstances method continues to apply for the delimitation of the continental shelf beyond 200 nm.83

However, certain factors stand out in the category of ‘relevant circumstances’ under the jurisprudence of the International Court of Justice, on the basis of which tentative median lines have been adjusted. First, there is the extraordinary complexity of the Arctic, with its semi-enclosed seas surrounded by several continental landmasses and the consequent configuration of the seabed. Second, there is the role of perception, which, with regard to sources of minerals/energy beyond national control, has had a major impact on the development of the law of the sea so far, and which will inevitably add increasing urgency to the need to resolve the issue of Arctic maritime boundaries.84 Third – but that is relevant not only to the Arctic – we have the ‘re-emergence’ of the concept of natural prolongation under the definition of the continental shelf in the LOS Convention, and the potential relevance of natural prolongation for the delimitation of the ‘outer’ continental shelf between states. Could not, for instance, the location of the foot of the slope be a relevant factor to be taken into account when determining what constitutes an ‘equitable’ solution in the delimitation of the continental shelf beyond 200 nm?85 Perhaps ITLOS did not get it completely right after all – and the delimitation method to be employed for the continental shelf beyond 200 nm should in fact differ from that within 200 nm.

Conclusion All Arctic coastal states, including the USA, abide by the LOS Convention’s definition of the continental shelf in the process of determining the outer limits of the continental shelf beyond 200 nautical miles in the Arctic Ocean. In the unsynchronized process of submissions, recommendations and

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national implementation, Norway is at the most advanced stage, and is about to complete the process of prescribing the limits to the north of the Svalbard archipelago in its national legislation. The submissions by Denmark/Greenland and Russia are currently under examination by the Commission, while we are still awaiting the submission of Canada. One obvious problem with the LOS Convention’s continental shelf regime in the Arctic is non-ratification on the part of the USA. As the US Senate has so far successfully blocked ratification, the USA is not entitled to make a submission to the Commission. Accordingly, the US delineation will not be subject to the same process of delineation as that applying to other coastal states. Pending ratification by the USA, there can – in technical legal terms – be no concerted coastal state approach to implementation of Article 76 in the Arctic Ocean. The material point with regard to the extent of the continental shelf beyond 200 nm in the Arctic Ocean depends on whether the seafloor highs that stretch across the Arctic basin comprise natural extensions of the North American and the Russian continents. And if so, should they be legally classified as submarine ridges or submarine elevations? In this regard, the Commission on the Limits of the Continental Shelf will continue to play a key role. The Commission receives submissions from coastal states; it performs a substantive assessment of each submitting coastal state’s tentative delineation and thereafter issues its recommendations. And, importantly, the outer limits that the coastal state establishes ‘on the basis of’ the Commission’s recommendations become legally ‘final and binding’.86 It remains to be seen, however, how the Commission will handle the many questions of legal interpretation that will arise when Article 76 is to be applied in the central Arctic Ocean. Not merely objective scientific criteria are in focus; Article 76 is a treaty provision which must be interpreted and applied using the rules on treaty interpretation. Above all, the process of determining the outer limits of the continental shelf in the Arctic Ocean thus far has shown that states do adhere to international law. Let me, however, conclude this chapter by pointing to an important issue, lex ferenda, regarding time limits and what currently appears to be a somewhat fast-paced process of mapping the Arctic seabed. First of all, implementation of international law of this importance should not require coastal states to embark on what would seem to be a race against the clock. In ice-covered waters, it is extraordinarily demanding to collect and analyze data describing the geophysical characteristics of the seabed and subsoil. Second, establishing the outer limits of the continental shelf beyond 200 nm

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in the Arctic Ocean is unlikely to have much practical significance for the foreseeable future. Conventional oil and gas technology still lacks the capabilities needed for operating effectively and safely in the extreme Arctic conditions. Notable is the absence of an adequate international regime for oil spill contingencies and environmental protection in the Arctic – and that is what should perhaps have been the overriding priority of states at this point.

Notes 1. This chapter is a revised version of Øystein Jensen, ‘The seaward limits of the continental shelf beyond 200 nautical miles in the Arctic Ocean: legal framework and state practice’, in L. C. Jensen and G. Hønneland (eds), Handbook of the Politics of the Arctic (Cheltenham, Edward Elgar, 2015), pp. 227 –46. 2. United Nations Convention on the Law of the Sea (hereinafter the LOS Convention), 10 December 1982. Reprinted in International Legal Materials, Vol. 21, 1982, p. 1245. 3. Article 4 of Annex II to the LOS Convention. The deadline was modified in 2001 by a decision of the Meeting of the States Parties as ‘having commenced on 13 May 1999’ for states for which the LOS Convention had entered into force before that date (UN doc. SPLOS/72, of 29 May 2001, ‘Meeting of States Parties Eleventh Meeting’). In 2008, the Meeting further decided that the 2009 deadline could consist only in the submission of ‘preliminary information’ and description of the status of preparation and intended date for making a full submission (UN doc. SPLOS/184, of 21 July 2008, ‘Report of the eighteenth Meeting of States Parties’). Thus the Parties to the LOS Convention have decided that a state’s deadline can be met by the provision of preliminary information signalling the state’s intent to make a full submission later. Under the Commission’s Rules of Procedure, also a submission relating to only one portion of a state’s continental shelf – a ‘partial’ submission – can satisfy the prescribed deadline (Rule 3 of Annex I to the Rules of Procedure of the Commission. UN Doc. CLCS/40/Rev. 1, of 17 April 2008, ‘Rules of Procedure of the Commission on the Limits of the Continental Shelf). 4. UN doc. CLCS/62, of 20 April 2009, ‘Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission’, paragraphs 15 – 19. 5. See Article 77, paragraph 4 of the LOS Convention. 6. See Articles 61 and 62 of the LOS Convention. 7. See Articles 62, 69 and 70 of the LOS Convention. 8. See Kenneth J. Bird et al., Circum-Arctic resource appraisal; estimates of undiscovered oil and gas north of the Arctic Circle (US Geological Survey, 2008). Available at pubs.usgs.gov/fs/2008/3049/ [Accessed 2 February 2017]. 9. Said Mahmoudi, The Law of Deep Seabed Mining: A Study of the Progressive Development of International Law Concerning the Management of the Polymetallic Nodules of the Deep Sea-Bed (Stockholm, Almqvist & Wiksell International, 1987), p. 73.

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10. Article 76, paragraph 1, of the LOS Convention. 11. David Colson, ‘The delimitation of the outer continental shelf between neighboring states’, American Journal of International Law, 97/1 (2003), pp. 91 – 107, p. 93. 12. Article 76, paragraph 4 (litra a, i), of the LOS Convention. 13. Article 76, paragraph 4 (litra a, ii), of the LOS Convention. 14. Article 76, paragraph 4 (litra b), of the LOS Convention. 15. See Article 76, paragraphs 5 and 6, of the LOS Convention, according to which the maximum extent of the continental shelf is 350 nm from the baselines from which the territorial sea is measured, or 100 nm from a depth of 2,500 metres. 16. Anna Cavnar, ‘Accountability and the Commission on the Limits of the Continental Shelf: Deciding who owns the ocean floor’, Cornell International Law Journal 42/3 (2009), pp. 387 –440, pp. 398 – 9. 17. Article 2 of Annex II to the LOS Convention. 18. Article 4 of Annex II to the LOS Convention. 19. See Robin Churchill, ‘Claims to maritime zones in the Arctic – Law of the Sea normality or polar peculiarity’, in A. G. Elferink and D. Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Hague, Nijhoff, 2001), pp. 105 –24. 20. Paragraph 2.2 of the Scientific and Technical Guidelines of the Commission describes the test of appurtenance as the process for examining how a coastal state establishes the outer edge of the continental margin to determine its legal entitlement to the extended continental shelf under Article 76, paragraph 4 (UN doc. CLCS/11, of 13 May 1999, ‘Scientific and technical guidelines of the commission on the limits of the continental shelf’). 21. Article 4 of Annex II to the LOS Convention. 22. Sean Murphy, ‘Contemporary practice of the United States relating to international law: US reaction to Russian continental shelf claim’, American Journal of International Law 96/4 (2002), pp. 969– 70. 23. Ibid. 24. Ron Macnab, ‘The outer limits of the continental shelf in the Arctic Ocean’, in M. Nordquist, J. N. Moore and T. H. Heidar (eds), Legal and Scientific Aspects of Continental Shelf Limits (Leiden, Nijhoff, 2004), pp. 301–11, p. 303. 25. A brief summary of the recommendations is contained in the UN SecretaryGeneral’s annual report on oceans and the law of the sea (UN doc. A/57/57/Add.1, of 8 October 2002, ‘Oceans and the law of the sea. Report of the SecretaryGeneral’, paragraph 41). 26. See press release from the Ministry of Foreign Affairs of the Russian Federation of 30 July 2007: Commentary Regarding a Question from RIA Novosti Concerning the Russian expedition in the Arctic Ocean Area. Available at www.un.int/russia/ new/MainRoot/docs/off_news/300707/newen1.htm [Accessed 13 February 2017]. 27. Ron Macnab and Lindsay Parson, ‘Continental shelf submissions: the record to date’, International Journal of Marine and Coastal Law 21/3 (2006), pp. 309 – 22, p. 312. 28. UN doc. CLCS/93, of 18 April 2016, ‘Progress of work in the Commission on the Limits of the Continental Shelf’. Available at http://www.un.org/depts/los/clcs_ new/commission_documents.htm [Accessed 22 February 2017].

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29. Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, paragraph 426. Available at www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/ C16_Judgment_14_03_2012_rev.pdf [Accessed 2 February 2017]. 30. Ibid., paragraph 427. 31. Ibid. 32. Ibid., paragraphs 432 and 433. 33. Ibid., paragraph 438. 34. Irini Papanicolopulu, ‘From the North Sea to the Bay of Bengal: maritime delimitation at the international Tribunal for the Law of the Sea’, comment on the blog of the European Journal of International Law (2012). Available at http:// www.ejiltalk.org/from-the-north-sea-to-the-bay-of-bengal-maritime-delimitationat-the-international-tribunal-for-the-law-of-the-sea/ [Accessed 2 February 2017]. 35. Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, paragraph 435. 36. See Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, in ICJ Reports (1985), p. 13, p. 33 (paragraph 34). See also Bjørn Kunoy, ‘A geometric variable scope of delimitations: The impact of a geological and geomorphological title to the outer continental shelf’, Austrian Review of International and European Law 11/1 (2006), pp. 49 – 78, p. 68. 37. Separate Opinion of Judge Gao, paragraph 90. Available at www.itlos.org/ fileadmin/itlos/documents/cases/case_no_16/C16.sep_op.Gao.rev.Ewith_ maps.pdf [Accessed 13 February 2017]. 38. Macnab, ‘The outer limits of the continental shelf in the Arctic Ocean’, p. 302. 39. See paragraphs 7.2 and 7.3 of the Scientific and Technical Guidelines of the Commission (UN doc. CLCS/11, of 13 May 1999, ‘Scientific and technical guidelines of the commission on the limits of the continental shelf’). 40. See also report by the International Law Association’s Committee on the Outer Continental Shelf from the Toronto Conference, Legal issues of the outer continental shelf (Toronto, 2006), pp. 4 – 7. Available at www.ila-hq.org [Accessed 13 February 2017]. 41. Harald Brekke and Philip Symonds, ‘The ridge provisions of article 76 of the UN Convention on the Law of the Sea’, in M. Nordquist, J. N. Moore and T. H. Heidar (eds), Legal and Scientific Aspects of Continental Shelf Limits (Leiden, Nijhoff, 2004) pp. 169, 200, p. 187. 42. Senate Treaty Document 103 – 109, p. 56. Reprinted in Third United Nations Conference on the Law of the Sea, Official Records, Vol. VIII (New York: United Nations, 1977), p. 36. 43. Norway had ratified the LOS Convention on 24 June 1996. 44. Summary of the recommendations on the website of the Division for Ocean Affairs and the Law of the Sea (DOALOS) is available at www.un.org/Depts/los/ index.htm. 45. The Commission did not, however, agree with Norway’s use of the combined constraint line for a small part of the Banana Hole. See Øystein Jensen, ‘Towards setting the outer limits of the continental shelf in the Arctic: On the Norwegian submission and recommendations of the commission’, in D. Vidas (ed.), Law,

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46. 47.

48. 49. 50.

51. 52. 53. 54. 55. 56. 57. 58.

59. 60.

61.

62.

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Technology and Science for Oceans in Globalisation – IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Leiden, BRILL, 2010), pp. 519 – 38, pp. 532 – 4. Summary of the recommendations on the website of the Division for Ocean Affairs and the Law of the Sea (DOALOS), p. 7. Under Article 76, paragraph 4, of the LOS Convention the foot of the slope is a key reference for both formulae used to identify where exactly the continental rise ends as it meets the deep seabed. Paragraph 4 (litra b), defines the foot of the slope as ‘the point of maximum change in the gradient at its base’. Summary of the recommendations on the website of the Division for Ocean Affairs and the Law of the Sea (DOALOS), pp. 11 – 13. Ibid., pp. 15 – 17. See Øystein Jensen, ‘Treaty between Norway and the Russian Federation concerning maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean’, International Journal of Marine and Coastal Law, 26/1 (2011), pp. 151 –68. Summary of the recommendations on the website of the Division for Ocean Affairs and the Law of the Sea (DOALOS), p. 16. See Alex G. O. Elferink, ‘Maritime delimitation between Denmark/ Greenland and Norway’, Ocean Development and International Law 38/4 (2007), pp. 375 – 80. Text reprinted in ibid., pp. 378 – 9. Text in Hans Flock and Birger S. Lassen (eds), Norges Lover (1687 – 2006) (Mikkeli, 2007), pp. 2096 – 112. UN doc. A/57/57/Add.1, of 8 October 2002, ‘Oceans and the Law of the Sea. Report of the Secretary-General’, paragraph 41. On the Russian submission, see generally Øystein Jensen, ‘Russia’s revised Arctic seabed submission’, Ocean Development and International Law 47/1 (2016), pp. 72 – 88. UN Doc. CLCS/93, of 18 April 2016, ‘Progress of work in the Commission on the Limits of the Continental Shelf’. Available at http://www.un.org/depts/los/clcs_ new/commission_documents.htm [Accessed 22 February 2017]. See Department of Indian affairs and northern development Canada, Canada’s Northern Strategy: Our North, Our Heritage, Our Future (Ottawa, Department of Indian affairs and northern development Canada, 2009), p. 12. Available at www. northernstrategy.gc.ca/cns/cns.pdf. [Accessed 22 February 2017]. See overview of submissions at the website of DOALOS: www.un.org/depts/los/ clcs_new/submissions_files/submission_dnk_61_2012.htm. Ted McDorman, ‘The Outer Continental Shelf Limits in the Arctic Ocean: Legal Framework and Recent Developments’, in D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation – IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Leiden, BRILL, 2010), pp. 499– 520, p. 517. In this area, the continental margin is defined using sediment thickness formula (the ‘Irish formula’). See Jacob Verhoef and David MacDougall, ‘Delineating Canada’s Continental Shelf according to the United Nations Convention on the Law of the Sea’, Journal of Ocean Technology 3 (2008), pp. 1– 5, p. 4. In this area, the continental margin is defined using the 60-miles-from-the-footof-the-slope (the ‘Hedberg’) formula. See ibid.

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63. Information available at www.international.gc.ca/continental/index.aspx. 64. Information available at the website of Denmark’s continental shelf Project: a76. dk/greenland_uk/north_uk/index.html. 65. Global Affairs Canada, Canada’s Extended Continental Shelf Program (Ottawa, Global Affairs Canada, 2011). Available at http://www.international.gc.ca/gacamc/publications/evaluation/2011/cecsp_ppcec11.aspx?lang¼ eng [Accessed 19 February 2017]. 66. Ibid. 67. Information available at the website of the CSP: a76.dk/lng_uk/main.html 68. Edwin Meese III, ‘Still lost on the Law of the Sea Treaty’, Los Angeles Times, 5 June 2012. 69. Kristina Wong and Sean Lengell, ‘DeMint: Law of the Sea Treaty Now Dead’, The Washington Times, 16 July 2012. 70. United Nations Convention on the Continental Shelf, 29 April 1958. Published in United Nations Treaty Series, Vol. 499, p. 311. 71. The United States ratified the United Nations Convention on the Continental Shelf in 1961. 72. Information available at the website of the US Extended Continental Shelf Task Force: continentalshelf.gov/. 73. See J. Ashley Roach and Robert W. Smith (eds), ‘United States Policy Governing the Continental Shelf of the United States of America’, issued 17 November 1987, in J. A. Roach and R. W. Smith, U.S. Responses to Excessive Maritime Claims (Hague, Nijhoff, 1996), pp. 201 – 2. See also Robin R. Churchill and A.V. Lowe, The Law of the Sea (Manchester, Manchester University Press, 1999), p. 150: ‘It would be difficult to argue that any continental shelf claim consistent with the article 76 formula was not compatible with customary international law’. 74. White house, National Security Presidential Directive and Homeland Security Presidential Directive (Doc. NSPD-66/HSPD-25) (January 9 2009). Available at www.fas.org/irp/offdocs/nspd/nspd-66.htm [Accessed 19 February 2017]. 75. Ibid., Section III (C, 5, litra d). 76. Ibid., Section I (B). 77. Ibid., Section III (D, 1). 78. Ibid., Section III (D, 4, litra a). 79. Information available at the website of the US Extended Continental Shelf Task Force: continentalshelf.gov/. 80. See Article 83 of the LOS Convention. 81. Jensen, ‘Treaty between Norway and the Russian Federation concerning maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean’, pp. 151 – 68. 82. McDorman, ‘The Outer Continental Shelf Limits in the Arctic Ocean: Legal Framework and Recent Developments’, p. 517. 83. Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, paragraph 455. 84. Øystein Jensen, ‘Limits of the continental shelf in the Arctic’, European Society of International Law – Reflections, 2/4 (2013), pp. 1– 4, pp. 3– 4. 85. See further in Øystein Jensen, The Commission on the Limits of the Continental Shelf: Law and Legitimacy (Leiden, BRILL, 2014), pp. 142– 52. 86. Article 76, paragraph 8, of the LOS Convention.

CHAPTER 7 TOWARDS A LEGAL REGIME FOR ARCTIC NAVIGATION Øystein Jensen1

Introduction A frozen region once of interest only to a small number of indigenous populations, scientists and explorers, the contemporary Arctic has emerged as a region of considerable economic and military importance, but also of environmental concern. Several emerging law of the sea issues concern this peculiar part of the world ocean. Some of these appear quite imminent; others belong to the more distant future. Some are spread over the entire Arctic Ocean; others are more limited in scope. They all have one hallmark in common though: the strains of applying global law of the sea solutions in the specific context of the Arctic region.2 This chapter focuses on one issue that in the near future may threaten to alter the face of the Arctic: increased pressure resulting from the growth of commercial shipping. In 2002, the International Maritime Organization adopted the ‘Guidelines for Ships Operating in Arctic Ice-covered Waters’. These Guidelines have become a key recent international instrument responding to such concerns. This chapter reviews how the Guidelines came into being, analyzes key elements and structure of the regulations, the potential repercussions of a binding regime, as well as the relevance and likelihood of implementing the Guidelines in the Antarctic as well.

Extent and Prospective Developments for Arctic Navigation Navigation in Arctic waters is unique compared to all other ship operations. In 1820, Arctic explorer and scientist William Scoresby wrote: ‘The navigation

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of the Polar seas, which is peculiar, requires in a particular manner, an extensive knowledge of the nature, properties and usual motions of the ice, and it can only be performed to the best advantage by those who have long experience with working a ship in icy conditions.’3 Due to the remoteness of the region, errors in navigation mistakes can be fatal, for both operators and the environment. The biggest challenge is ice; from October to June the Arctic Ocean remains largely ice-locked, making surface navigation impossible for all vessels except icebreakers. Ice in all its forms represents a significant obstacle to ships operating anywhere in polar waters.4 Large tabular sections of ice-islands break away from ice shelves to join the moving ice-pack. Icebergs break off glaciers in northeastern Canada and in Greenland. Many of these navigational hazards move southward into the shipping lanes of the Atlantic. Historically, Arctic shipping was largely confined to supply of communities during the summer season. Today, Arctic navigation is split into many categories: commercial vessels, including tankers and fishing vessels; vessels for recreation and tourism; scientific research vessels; icebreakers for re-supply; and vessels engaged in offshore exploration. Traffic density is concentrated on several specific areas. Additionally, there are ongoing naval navigation and covert submarine operations in the Arctic Ocean, which offers the shortest route between Russia and North America. Most of the navigation is carried by a sparse network of water routes – especially the Northwest Passage, connecting the Atlantic and Pacific Oceans through the archipelago of Canada; and the Northern Sea Route, which stretches some 2,800 kilometres along the Russian Arctic coast from Novaya Zemlya to the Bering Strait. Estimates foresee considerable increases in Arctic shipping, due not least to the opening of new oil and gas fields.5 Recent years have also witnessed considerable population growth in Arctic settlements. For instance, the native communities of northern Canada have among the fastest rates of population growth in the world.6 There are also possible implications of climate changes for Arctic navigation. There is increasing documentation of accelerated melting and retreat of ice in the Arctic due to global warming. The resultant improvement in accessibility may lead to greater use of the Arctic sea areas. Over time, that might contribute to opening the Arctic Ocean as a major trade route. The military importance may also expand, as may other marine uses, such as fisheries. Policies and regulations need to be designed, both to limit the impacts on the Arctic environment and to improve navigation safety.

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A New Tool for Navigation Safety in the Arctic: The IMO Guidelines for Ships Operating in Arctic Ice-Covered Waters In addition to extensive national enactments, a new legal regime for icenavigation began to emerge on the international agenda in the 1990s. Mindful of the disaster of the oil tanker Exxon Valdez off the coast of Alaska in 1989, Germany proposed the inclusion of the following rule in Chapter II-1 of the SOLAS Convention:7 ‘Ships intended for service in Polar Waters should have suitable ice strengthening for Polar conditions in accordance with the rules of a recognized classification society.’8 Member states largely supported Germany’s recognition that vessels operating in polar waters needed adequate ice strengthening. The matter was referred to the IMO Sub-Committee on Ship Design and Equipment (DE), which appointed Canada to lead an Outside Working Group (OWG) of technical experts to develop special rules for ships operating in polar waters. Between 1993 and 1997 the OWG met annually, seeking to harmonize technical rules for polar shipping and to create recommendatory provisions.9 Included in the process were members of national and regional maritime authorities, academics, commercial shipping companies and classification societies. The result was the draft International Code of Safety for Ships in Polar Waters, submitted by Canada, on behalf of the OWG, to the DE’s 41st Session in London in 1998. It set out rules for construction, navigation and equipment, with the aim ‘to provide that all ship operations in Polar Waters meet internationally acceptable standards’.10 The DE decided that the draft Polar Code should be forwarded to IMO’s technical committees for further review. In 1999, the 71st session of the Marine Safety Committee (MSC) reviewed the draft Polar Code. By that time, the 1998 Antarctic Treaty Consultative Meeting had already expressed its concern, maintaining that the draft failed to account adequately for the special conditions of the Antarctic, and adding that a Code, if in a proper form, would be highly relevant for the Antarctic region as well. It was noted that the OWG involved in preparing the draft Polar Code had been drawn from Northern Hemisphere maritime countries and, as a consequence, had not fully taken cognizance of the environmental, operational, legal and political differences between the Arctic and Antarctic. Specifically, the Meeting considered that information on current best practices of Antarctic shipping would be useful in further developing the Antarctic elements of the code. The Meeting also discussed the inclusion of special training and qualification requirements for ship’s officers and crews operating in the Antarctic and that special navigation/communications equipment standards for Antarctica should be

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examined.11 In other words, the Antarctic Treaty parties were not completely satisfied with the draft Polar Code and wanted separate discussion, not least regulation, to that effect. The proposed Code had perhaps gone beyond the technical issues previously considered by the MSC and the DE. The area of application was one point of criticism. The Polar Code had been expanded to apply to the Antarctic region as well – yet, it was argued, without sufficient consideration of the implications for that region. The draft Code also aimed at designating the Arctic and Antarctic as ‘Special Areas’ for the purposes provided for in the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978.12 However, the draft Code was not considered to be the appropriate mechanism in this respect. Moreover, it was inconsistent with international law of the sea in some important aspects. It required prior notification from ships entering the exclusive economic zones of a coastal state – an obligation not contained in the United Nations Convention on the Law of the Sea.13 It also provided for separate requirements to, inter alia Regulation 12 – 1, Chapter II-1 of the SOLAS Convention, by declaring a limit on the application of doublebottoms higher than the one stipulated there. In view of the dissatisfaction of some IMO member states as to various solutions set forth in the draft Code, the MSC decided that the Polar Code should be further developed as recommendatory Guidelines. However, it was to be confined to the Arctic, thus excluding the Antarctic from the area of application. Furthermore, inconsistencies with international treaties would have to be removed, and the future Code should include only aspects not already covered by other instruments. The Marine Environment Protection Committee (MEPC), at its 48th session in October 2002, and the MSC, at its 76th session in December 2002, approved the recommendatory Guidelines for Ships Operating in Arctic Icecovered Waters. Member states were invited to bring the Guidelines to the attention of ship-owners and other parties concerned with the operation of ships in Arctic ice-covered waters.

Scope and Elements of the Guidelines The Guidelines include general, construction, equipment and operational parts, subdivided into chapters. Recognition of the Arctic as a significant area for international shipping is underlined. It is emphasized that the Arctic environment imposes additional demands on ship systems, and that safe operation in such conditions requires special attention.14 With regard

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to Part D – Environmental Protection and Damage Control – provisions are specifically made ‘with due regard to the lack of waste reception and repair facilities, communications limitations, unique navigational and environmental hazards and limited response capabilities of available assistance’.15 The Guidelines aim to address the additional provisions deemed necessary for consideration beyond the existing requirements of any other applicable convention or code. They have not been developed as a stand-alone document, but as a supplement to other instruments. The SOLAS Convention is especially mentioned in paragraph 1.2 of the Preamble. The provisions of the Guidelines are recommendatory.16 Just what was originally intended, however, can be deduced from several indicators. The title suggests a binding nature, a ‘Code’.17 The first proposal to include an amendment to the SOLAS Convention also indicates that the regulations were meant to be compulsory. However, this issue was not decided at the MSC in 1997.18 The status of the regulations was to be determined later.

Area of application The Guidelines relate to ships operating in Arctic ice-covered waters as defined in paragraph G-3.2. ‘Ship’ is defined in paragraph 3.22 as ‘any vessel covered by the SOLAS Convention’. This excludes from the area of application fishing vessels, pleasure yachts, wooden ships of primitive build, cargo ships of less than 500 gross tonnage and naval vessels, whereas passenger ships and cargo ships of 500 gross tonnage or more engaged on international voyages are subject to the regulations.19 As regards geographical application, ‘Arctic ice-covered waters’ is defined in paragraph G-3.2. The Guidelines are applicable to all parts of the Arctic Ocean. Certain areas are, however, excluded – for example, all the mainland coast of Norway, and the waters adjacent to the Kola Peninsula in Russia. Seaice concentrations of 1/10 coverage or greater which pose a structural risk to ships are also an unconditional requirement in the definition of ‘ice-covered waters’. Determining the exact level of ice coverage is always difficult, but the Guidelines provide for no objective method in this respect. Nor is there any time criterion, in contrast to Article 234 of the LOS Convention, which stipulates that ice must be present ‘most of the year’. Equipment Part B of the Guidelines is concerned with equipment for fire safety, lifesaving and navigation. In view of the extreme Arctic climate, specific guidance is provided for the operation of each category. For example, for fire

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safety it is specified that re-fuelling of ships should be carried out taking into account the special conditions imposed by low temperatures, and that fireextinguishing systems should be designed or located so that they are not made inaccessible by ice or snow accumulation.20 There are also specific rules for personal and group survival kits. One important requirement is that all lifeboats carried by Polar Class ships should be of the fully enclosed type. Other ships should carry tarpaulins to provide complete coverage of their lifeboats.21 Concerning navigational equipment, it is noted that the performance standards and other applicable guidance for equipment of Chapter 12 of the Guidelines should be applied ‘mutatis mutandis as per SOLAS Chapter V’. The provisions of Chapter 12 are thus not to be considered as additional to the requirements stipulated under the SOLAS Convention. Rather, equipment fitted or carried in compliance with Chapter V of the SOLAS Convention should be considered as part of the recommended equipment complemented by relevant provisions of the Guidelines.

Operational procedures Part C of the Guidelines pays special attention to operational procedures, crewing and emergency equipment. All ships operating in Arctic ice-covered waters are to carry an operating manual and a training manual for all Ice Navigators on board.22 With regard to crewing, the most important provisions concern the Ice Navigator, defined in paragraph G-3.10 as: ‘any individual who, in addition to being qualified under the STCW Convention, is specially trained and otherwise qualified to direct the movement of a ship in ice-covered waters.’ These requirements are further qualified in paragraph 14.2, which stipulates that an Ice Navigator should have ‘documentary evidence of having satisfactory completed an approved training Programme in ice navigation’. The training programme should provide knowledge required for navigating a vessel in ice-covered waters – including ice indications, ice maneuvering, the use of ice forecasts, atlases and codes, icebreaking operations and effect of ice accretion on vessel stability. The rules in Chapter 14 complement paragraph 1.2, which specifies that all ships operating in Arctic ice-covered waters should carry at least one certified Ice Navigator.23 Finally, Part D of the Guidelines contains rules on environmental protection and damage control. According to paragraph 16.1.2, there should be procedures for the protection of the environment both in the ship’s operating manual (for normal operations) and in the Shipboard Oil Pollution Emergency Plan (SOPEP) according to MARPOL 73/78 (for accident conditions).

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Harmonization of Technical Standards: The Development of Ships Polar Classes and Relation to IACS Rules The Guidelines introduce a system for designating different levels of capability for vessels navigating in Arctic waters. The regulations differentiate between Polar Class ships and Non-Polar Class ships; to the latter only Part B and C of the Guidelines are to apply.24 Part A of the Guidelines, concerning construction provisions, is to apply to Polar Class ships only.25 A Polar Class Ship is defined in paragraph G-3.18 as ‘a ship for which a Polar Class has been assigned’. It is recognized that not all ships will be able to navigate safely in all areas of the Arctic at all times of the year. In the Guidelines, seven Polar Classes are listed, based on environmental conditions. Polar Class 7 is the least capable, limited to vessels operating in summer/autumn in thin, ‘first-year’ ice, whereas ships of Polar Class 1 are to be capable of operating year-round in all Arctic ice-covered waters. The Guidelines make reference to the parallel effort undertaken by the International Association of Classification Societies (IACS). According to paragraph 1.1.4 of the Guidelines, all Polar Class ships and their equipment should be: ‘designed, constructed and maintained in compliance with applicable national standards of the Administration or the appropriate requirements of a recognized organization which provide an equivalent level of safety for its intended service.’ On 1 July 2006, the IACS adopted ‘Unified Requirements for Polar Ships’. They will enter into force in March 2008 – which means that all IACS members will incorporate these into their rules in the near future. The Unified Requirements are not mandatory but are recommended for ships navigating in polar waters. As such they provide a way of building and operating in accordance with a recognized standard. Similar to the Guidelines, the IACS Unified Requirements also work with a polar class notion. In order to be considered for Polar Class notation as listed in the IACS Unified Requirements, a ship must comply with certain technical requirements. Throughout the IACS Unified Requirements, the Polar Class notation is used in order to indicate the differences between classes with respect to operational capability and strength.26 The IACS Unified Requirements do not at any point directly conflict with the IMO Guidelines and should thus be considered as supplementary in technical matters with regard to important aspects not specifically dealt with in the Guidelines, such as hull and machinery. There are, however, formal differences to be aware of; IMO member governments are subject to the Guidelines, while the IACS Unified Requirements apply solely to the

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members of the association. In this context it must be noted that more than 90 per cent of the world’s cargo carrying tonnage is covered by the classification design and construction rules and standards set by the ten Member Societies and one Associate of IACS. Furthermore, in contrast to the current Guidelines, the Unified Requirements are based on both Arctic and Antarctic conditions. According to paragraph I 1.1 of the IACS Unified Requirements they apply to ships intended for navigation in ice-infested ‘polar waters’, without any further geographical specification. Hence, when it comes to classification of ships for polar navigation, practical needs seem to have prevailed over political perspectives.

The Quest For Safer Arctic Navigation The Guidelines reflect some of the narrowness of the standards setting approach of maritime safety regulation. Although they will most likely prove to offer important guidance for all actors involved in navigation in the High North, several questions remain. Are there any deficiencies in the current arrangement? Should the Guidelines be made mandatory? If so, what legal and practical repercussions are likely? And finally, should they be made applicable to the Antarctic as well?

Substantial shortcomings The current Guidelines do have certain substantial shortcomings. There exists no model training course for Ice Navigators or qualification scheme for individuals who are to operate vessels in ice-covered waters. According to paragraph 1.2.1, all ships operating in Arctic ice-covered waters are to carry at least one Ice Navigator. Paragraph 14.2 of the Guidelines stipulates further that an Ice Navigator should have documentary evidence of having satisfactorily completed an approved training programme in ice navigation. However, that paragraph is phrased in rather broad terms, stipulating merely that a training programme should provide ‘knowledge, understanding and proficiency required for operating a ship in Arctic ice-covered waters’. While the provision does take note of the severe and special circumstances faced by ship operators in ice-covered waters, provision could easily have been made for a more detailed training programme. Moreover, there is no requirement as to documented navigation service in Arctic ice conditions. Relevant experience, similar to paragraph 26 (3)(b) of the Canadian Arctic Shipping Pollution Prevention Regulations,27 should perhaps also be a basic requirement within the Guidelines.

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The Guidelines also fail to provide sufficient regulations concerning icing. This is a typical phenomenon in the Arctic Ocean, when cold temperatures result in spray blown off the sea freezing immediately on contact with a vessel. If the ice is not regularly removed, it will build up on the ship’s structure and may cause the vessel destabilize or capsize. Paragraph 10.4 of the Guidelines determines that ‘[c]omponents of the fire-fighting system which may be exposed to icing which could interfere with the proper functioning of that component should be adequately protected’ (emphasis added). Moreover, paragraph 11.5.3 reads that ‘[i]ce accretion should be regularly removed from the lifeboats and launching equipment to ensure ease of launching when required [and that an] icing removal mallet should be available in the vicinity of the lifeboats’. This serious hazard of iceinfested navigation should nevertheless have been regulated more extensively within the Guidelines. The Guidelines should have been more explicit on how best to prevent, mitigate and avoid sea-spray icing of vessels, for instance by referring to the environmental and vessel characteristics that determine the potential for such icing – like wind speed, air temperature and ship speed. Also, provision could have been made for alternative ice-removal equipment and how to better protect vital components on deck. In this regard, it may also be queried why only Polar Class Ships are subject to the important provisions of structures, subdivision and stability in Part A, Chapter 2 and 3. Surely, also for vessels without any Polar Class notation, account should be taken of the effect that, for instance, icing may have on stability calculations.28

The harmonization process: still a two-tier safety regime? As noted, the Guidelines must be considered in relation to the IACS Unified Requirements for Polar Ships. A substantial analysis of the IACS requirements nevertheless illustrates that the process of harmonization is not fully accomplished. For instance, according to paragraph I 2.14 of the IACS Unified Requirements ‘[t]he stem and stern frame are to be designed according to the requirements of each member society’ (emphasis added). Furthermore, paragraph I 2.15.2 of the requirements provides that the ‘[l]oad definition and response criteria are to be determined by each member society’ (emphasis added). Not least, the examples above show that a certain margin of leeway is still accorded to each member society. By referring to the rules of individual classification societies, Polar Class ships navigating in Arctic waters may still be certified under differing standards. Furthermore, the IACS Unified Requirements are very much still under development. Many items are not included. For instance, there are no

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specific hull requirements for icebreakers, no strength requirements for stem and stern frame, no ice compression loads in the midship region and no specific welding requirements. With regard to machinery, the current IACS Unified Requirements fail to provide sufficiently for propulsion power, steering gear and, not least, arrangements for icing control. Further improvement is thus necessary, as well as the development of rules to cover other aspects of navigation operations in cold climates.29

Deficits of a non-binding regime? According to paragraph 1.3 of the Guidelines, ‘their wording should be interpreted as providing recommendations rather than [in] a mandatory direction’. Moreover, the Guidelines merely invite the member governments to bring the regulations ‘to the attention of shipowners, ship designers, shipbuilders, ship repairers, equipment manufactures and installers and all other parties concerned with the operation of ships in Arctic ice-covered waters’.30 By definition, such recommendations are not legally binding. Still, the Guidelines aim at enhancing effectiveness through national and international implementation mechanisms. Since no follow-up procedures are provided for, actual application becomes evident only through state practice and the extent to which international shipping complies. Have the member states in fact brought the Guidelines to the attention of the relevant actors? And do the regulations have any legal impact on national legislation? As of today, no state has implemented the regulations through binding legislation. They remain international recommendatory provisions only. In that respect, their real effect stands untested. On the other hand, this is not surprising – domestic codification involves great strains and expenses. Without a legal obligation to do so, codes of conduct are rarely given compulsory status. In a non-binding form, the Guidelines’ contribution to maritime safety in ice-covered waters seems rather limited. However, the ultimate practical impact of the regulations depends on actual application, and not merely on which legal status they acquire upon adoption in global and national fora. Even express disclaimers, like that contained in paragraph 2.8 of the Guidelines that they ‘are not intended to infringe on national systems of shipping control’, cannot preclude the possibility of practical implementation. This is for instance observed in Norway, where navigation instructors use the Guidelines for training purposes. Another example that illustrates the impact of such non-binding regulations is the IMO ‘Guidelines for vessels with dynamic positioning systems’.31 Dynamic positioning is a system for automatically maintaining a

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ship’s position and heading by using her own propellers and thrusters. The system is much used in the offshore oil industry. Based on the IMO Guidelines, classification societies such as Det Norske Veritas, Germanischer Lloyd, Lloyd’s Register and American Bureau of Shipping have issued their own rules for dynamic positioned ships by corresponding class notations. If they are adopted timely and are substantially relevant, as in that case, also regulations of a non-binding nature may have important practical effects.

Repercussions of a Binding Regime Even though the Guidelines may have positive practical effects, it may still be questioned whether they represent a satisfactory substitute for treaty law. What might be some possible repercussions of introducing mandatory regulations? One important aspect should be noted at the outset: there already exists a framework for a binding legal regime for Arctic navigation. The Arctic is an ocean, and is thus under the regime of the law of the sea, which comprises the principles and rules of treaty and customary law between States relating to the uses of all sea areas. The Guidelines could thus be incorporated in one or more conventions by means of amendments, upon which they would become binding on signatory states. From a legal technical perspective, the introduction of mandatory Arctic regulations could be easily achieved, with the SOLAS Convention as probably the most appropriate avenue. It is nevertheless important to emphasize that, on a global scale, Arctic shipping is at present still a marginal activity. Moreover, any ratification process would have to involve many non-regional states. Among IMO members it may be difficult to mobilize necessary interest from flag states that are not much involved in Arctic shipping. Also, the world merchant fleet has many vessels sailing under flags of convenience. This arrangement may hamper the effectiveness of important conventions – likewise a binding regime for Arctic shipping. Binding rules must also take cognizance of the legal issues yet to be resolved in the Arctic Ocean. The jurisdictional map of the Arctic Ocean is still a work in progress. Several issues remain to be addressed by the Arctic coastal states in order to achieve equitable projections of national sovereignty and jurisdiction. The Arctic Ocean is not unusual in this respect; all over the globe there are numerous unresolved maritime limits and boundaries. On the other hand, the remaining issue of defining coastal state jurisdiction in the Arctic Ocean is not by itself in contradiction with a binding regime for polar shipping. All Arctic states are already obliged by international rules that, to a great

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extent and if implemented, impose obligations also within their territorial waters and exclusive economic zones. Of course, it is difficult to predict the exact conduct of Arctic coastal states regarding the introduction of binding regulations. There is, however, a legal incentive for Arctic coastal states to implement a regional framework of cooperation that would enable them to devise effective solutions to shared problems, such as shipping. Part IX of the LOS Convention advocates cooperation among coastal states that border enclosed or semi-enclosed seas. Specifically, Article 123 encourages states to work together, through the involvement of other interested states or organizations, in the protection and preservation of the marine environment. The Arctic states would probably benefit by maintaining an ongoing and wide-ranging dialogue with a view to harmonizing rules and standards.

Emerging port-state jurisdiction Introducing a compulsory regime will have to rely to a considerable extent on port-state control, as an important supplementary mechanism for enhancing implementation and facilitating enforcement of agreed rules (although certain limitations of port-state control will of course persist due to the nature of Arctic shipping, of which one part is in transit only). By creating a sort of universal jurisdiction, Article 218 of the LOS Convention represented a novel development.32 According to this provision, a port state has the power to undertake investigations and prosecute discharge violations wherever they have taken place beyond national jurisdiction. Extension of port-state jurisdiction is also provided for in Article 211(3) of the LOS Convention, whereby states are authorized to ‘establish particular requirements for the prevention, reduction and control of pollution of the marine environment’ as a condition for entry into their ports or internal waters. Note should be taken of the 1982 Paris Memorandum of Understanding on Port State Control in implementing Agreements on Maritime Safety and Protection of the Marine Environment.33 The Paris MOU applies between the maritime authorities of 25 countries, including all Arctic coastal states. The authorities commit themselves to maintaining an effective system of port-state control to ensure that foreign merchant ships calling at a port of any of the states concerned comply with the standards stipulated in such relevant instruments as MARPOL 73/78 or the SOLAS Convention. Underlying this trend is the determination of coastal and port states to be actively involved in improving safety at sea and the protection of the marine environment. In Arctic waters, port-state control will be highly practical.

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Long-distance voyages in foreign maritime zones will give Arctic port states both the incitement and the opportunity to monitor compliance with international regulations. Even though primary responsibility for the effective application of legal standards still rests with the authorities of the flag state, port-state control has proven to support a regional approach in preventing substandard vessels from operating.34

New challenges for monitoring Arctic navigation One important impediment to binding Arctic regulations lies in the difficulties for maritime monitoring activities. Maritime traffic has long been managed by means of Vessel Traffic Services (VTS). However, traditional instruments – for instance, automatic identification system (AIS)35 – will not be sufficient with regard to all potential vessel movements within the Arctic. The development of Long Range Identification and Tracking (LRIT) is more relevant. At its 81st Session in 2006, the MSC adopted new regulations for LRIT under Chapter V of the SOLAS Convention. LRIT will be introduced as a mandatory requirement for all passenger ships and cargo ships of 300 gross tonnage and more engaged in international voyages. The regulations maintain the right of the flag state to protect appropriate information about its own ships, while giving coastal states access to information about ships sailing off their coasts. The main difference between LRIT and AIS is the range. Under the SOLAS regulations, coastal states are entitled to receive information about ships navigating within a distance of 1000 nautical miles off their coasts! This measure clearly enables states to better identify and enhance compliance by vessels far from land.

Bi-polar Relevance? The Antarctic Treaty System aims at covering all activities in the south polar region. It has demonstrated that cooperation among states may be achieved and maintained despite the existing legal controversies. However, the Antarctic model is of less importance to the Arctic, for many reasons. Firstly, the involvement of non-regional states is negligible in the Arctic, but is of high importance in the Antarctic. Secondly, the strategic importance of the Arctic is today greater than in the case of Antarctic. And finally, the Arctic area is inhabited, while in Antarctica there are scientific bases, etc., but no permanent human settlement.36 Nevertheless, the question can be raised whether the Guidelines are relevant to Antarctic shipping as well, mandatory or not. In the original proposal, the Guidelines were intended to cover both Polar Regions, but the

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IMO then decided to exclude the Antarctic from the area of application. The Antarctic Treaty Consultative Meeting (ATCM) held in Lima in 1999 nevertheless decided to give priority to the issue of shipping and to convene a meeting of experts to develop draft guidelines specific for Antarctic navigation. At the ATCM XXVII in Cape Town in 2004 it was decided to transmit revised guidelines to the IMO with a request that they be considered at the earliest opportunity.37 Only minor revisions to the Arctic Guidelines were made in the proposal forwarded to the IMO. For instance, throughout the Guidelines, the term ‘Arctic’ is replaced with ‘Arctic and Antarctic’. Moreover, an adapted introduction is added to the introductory paragraph P-1.1 that discusses the differences between the two Polar Regions. As of July 2007, the proposed revision of the Guidelines is pending consideration by the IMO. The 50th Session of the DE Committee, however, noted that there was full support for revising the Guidelines to make them applicable to the Antarctic region as well. In order to progress in this matter, member governments and international organizations were invited to submit specific proposals for amendments to the Guidelines at the 51st Session of the DE. There are differences between the two Polar Regions, also with regard to shipping. Vessel operations in the Southern Ocean are basically passenger liners (tourist cruisers), scientific research vessels, and re-supply ships. Commercial transport and transit are far less important. Navigational conditions also differ significantly. Nevertheless, the process within the ATCMs now shows the change of attitude as to applying the Guidelines to Antarctic waters, albeit in somewhat modified form. It is the opinion here that the IMO should give serious consideration to this development and the proposed amended draft of the Guidelines. Although patterns and types of transportation differ between the Arctic and the Antarctic, the substantial, safety inducing elements of the Guidelines will be important also for Antarctic shipping. The purely formal changes suggested by the ATCM in Cape Town prove that the Guidelines today are generally acceptable to the Antarctic Treaty Parties. As long as they do not challenge the delicate sovereignty balance in the Antarctic, the technical requirements for the ships involved in Antarctic navigation, with due regard for the practicalities of such navigation (base supply etc.), may serve as an important regulatory supplement. Moreover, the IACS Unified Requirements apply to all ‘polar’ ships: they are not restricted to Arctic vessels. The process within the maritime industry has thus continued regardless of the Antarctic Treaty Parties’ earlier wish for postponement and the IMO decision to regulate Arctic navigation only.

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Despite the differences in shipping activity in the Arctic and the Antarctic, navigation in both polar regions exposes crew, vessel and the environment to many of the same ice-related risks and challenges.

Conclusion The Arctic Guidelines contain several significant provisions and represent an important step towards improved regulatory framework for an emerging segment of global shipping – that which takes place in ice-infested waters. Summarizing the discussion above it is nevertheless the opinion here that the Guidelines in their non-binding form provide only a limited contribution to maritime safety in the Arctic and should only be considered as a first step. However, it is stressed that adopting the Guidelines as a binding instrument will have foreseeable repercussions under international law. Given the likely future development of Arctic shipping, it is thus of utmost importance that the present Guidelines are generally updated in order to take into account technical developments since their approval in 2002, and also that any shortfalls in today’s arrangement be addressed in the near future.

Notes 1. This chapter is a slightly revised version of Øystein Jensen, ‘Arctic shipping guidelines: towards a legal regime for navigation safety and environmental protection?’, Polar Record 44/2 (2008), pp. 107– 14. For more information on the current situation see Chapter 8, ‘The Polar Code and the Law of the Sea’, of this volume. 2. Davor Vidas, ‘Emerging Law of the Sea issues in the Antarctica maritime area: a heritage for the new century?’, Ocean Development and International Law 31 (2000), pp. 197 –222. 3. William Scoresby, An Account of the Arctic Regions With a History and Description of The Northern Whale-Fishery (Edinburgh, A. Constable & Co, 1969). 4. Lawson Brigham, ‘The emerging international polar navigation code: bipolar relevance?’, in D. Vidas (ed.), Protecting the Polar Marine Environment – Law and Policy for Pollution Prevention (Cambridge, Cambridge University Press, 2000), pp. 244 – 61. 5. S. Svenning, ‘The international shipping community and oil transportation in the north’, Arctic Operational Platform (ARCOP), Report of Workshop 7 (2005), pp. 31 – 2. 6. Bob Gorman, Presentation by Enfotec Technical Services Inc. at the Arctic Marine Transport Workshop, 28 – 30 September 2004, organized by Institute of the North, US Arctic Research Commission and the International Arctic Science Committee. 7. International Convention for the Safety of Life at Sea (hereinafter SOLAS Convention), 1 November 1974, 1184 UNTS 3, p. 2.

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8. IMO doc. MSC 59/30/32, of 12 April 1991, ‘Requirements for Ships Intended for Polar Waters’. 9. IMO doc. MSC 68/23, of 12 June 1997, section 20.5, ‘Report of the Maritime Safety Committee on the 68th Session’. 10. IMO doc. DE 41/10, annex I, p. 3, of 1998, ‘International Code of Safety for Ships in Polar Waters’. 11. Secretariat of the Antarctic Treaty, Final Report of the 22nd Antarctic Treaty Consultative Meeting (Tromsø, 25 May – 5 June 1998), paragraphs 85 –95. 12. International Convention for the Prevention of Pollution from Ships of 1973, as modified by the Protocol of 1978 (hereinafter MARPOL 73/78), 17 February 1978. Text reprinted in International Legal Materials; Vol. 12, 1973, pp. 1, 319ff (Convention) and International Legal Materials, Vol. 17, 1978, pp. 546ff (Protocol). 13. United Nations Convention on the Law of the Sea (hereinafter the LOS Convention), 10 December 1982. UN doc. A/CONF. 62/122. Text reprinted in International Legal Materials, Vol. 21, 1982, pp. 126 l ff. 14. IMO doc. MSC/Circ.1056/MEPC/Circ.399, of 23 December 2002, ‘Guidelines for Ships Operating in Arctic Ice-Covered Waters’ (hereinafter the Guidelines), preamble paragraphs 1.1, 1.2, 2.3, 2.5 and 2.6. 15. Ibid., paragraph 16.1.1. 16. Ibid., preamble paragraph 1.3. 17. Referring to the ‘International Code of Safety for Ships in Polar Waters’, as submitted to the DE’s 41st session. 18. IMO doc. MSC 68/23, of 12 June 1997, section 20.5, ‘Report of the Maritime Safety Committee on the 68th Session’. 19. Regulation 3, Chapter I, SOLAS Convention. 20. Paragraphs 10.1 and 10.3 of the Guidelines. 21. Paragraph 11.5.1 of the Guidelines. 22. Paragraph 13.1 of the Guidelines. 23. Paragraph 1.2.1 of the Guidelines. 24. Paragraphs 1.1.2 and 1.1.3 of the Guidelines. 25. Paragraph 1.1.2 of the Guidelines. 26. International Association of Classification Societies (IACS), ‘Unified Requirements’ (1 July 2006), paragraph I/1.2.2. 27. Published in Consolidated Acts and Regulations of Canada, 1978, Chapter 356. 28. Paragraph 3.1.1 of the Guidelines. 29. Wilhelm Magelssen, presentation by Det Norske Veritas at the Fridtjof Nansen Institute seminar ‘Future (trans)Arctic shipping. Legal, regulatory and administrative white spots’, 10 April 2007. 30. The Guidelines. 31. IMO doc. MSC/Circ. 645, of 6 June 1994, ‘Guidelines for Vessels with Dynamic Positioning Systems’. 32. Mario Valenzuela, ‘Enforcing rules against vessel-source degradation of the marine environment: coastal, flag and port state jurisdiction’, in D. Vidas and W. Østreng (eds), Order for the Oceans at the Turn of the Century (Hague, Martinus Nijhoff Publishers, 1999), pp. 485 – 506, p. 496. 33. Paris Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment, 1 July 1982. Text reprinted in Ratification Maritime Conventions, Vol. I.2.100.

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34. Erik J. Molenaar, ‘Port state jurisdiction: toward comprehensive, mandatory and global coverage’, Ocean Development and International Law 31 (2007), pp. 225 –57. 35. Regulation 19, Chapter V, SOLAS Convention. 36. Philip Kunig, ‘Arctic’, in R. Bernhardt (ed.), Encyclopedia of Public International Law Volume I (Amsterdam, North-Holland Publishing Company, 1992), pp. 244 –7. 37. Secretariat of the Antarctic Treaty, Final report on the 27th Antarctic Treaty Consultative Meeting (Cape Town, 24 May – 4 June 2004), decision 4.

CHAPTER 8 THE POLAR CODE AND THE LAW OF THE SEA Øystein Jensen1

Introduction In recent years the international community has taken considerable steps in the direction of new legal tools to address safety and environmental risks associated with polar navigation. In November 2014, the Marine Safety Committee (MSC) of the International Maritime Organization (IMO) adopted the maritime safety provisions of the International Code for Ships Operating in Polar Waters (henceforth: the Polar Code)2 as well as amendments3 to the International Convention for the Safety of Life at Sea, 1974, as amended (SOLAS).4 In May 2015, IMO’s Marine Environment Protection Committee (MEPC) followed suit, and adopted the environmental protection provisions of the Polar Code and a series of amendments to the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 (MARPOL),5 to ensure that the mandatory provisions become legally binding. The Polar Code entered into force on 1 January 2017. The Polar Code is a technical instrument, and an attractive object of study for those interested in details concerning requirements for matters such as ship construction, rescue equipment, and training requirements for crew on board ships trading in Arctic and Antarctic waters. However, the new regulations also merit analysis in the broader context of international law – not least, the relationship of the Polar Code to the international legal framework pertaining to navigation in all oceans included in the United Nations Convention on the Law of the Sea (LOS Convention).6

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This chapter examines the new Polar Code in the context of general aspects of international law and the LOS Convention, starting with the drafting history of the Polar Code. Emphasis is placed on the final consolidation phase of development, when regulating polar navigation emerged as a renewed item on the IMO agenda and the aim was to make legally binding international law, not merely recommendations. Next, the main contents of the Polar Code are reviewed, focusing on the Code’s regulations on safety measures and pollution prevention. Finally, the following implications for international law are analyzed: treaty interpretation in light of the legislative techniques utilized in the Polar Code; the prominence of the regulations of the Polar Code in the context of the LOS Convention’s concept of ‘generally accepted international rules and standards’; and the relationship of the Polar Code to Article 234 of the LOS Convention.

Legal Development The legislative history of the Polar Code can be roughly divided into three stages of development. The first period, 1991 – 2002, saw initiatives for making navigation in polar ice-covered waters safer and more environmentally friendly brought to the agenda of the IMO for the first time, culminating in the 2002 guidelines for ships operating in Arctic ice-covered waters. The second stage of development, 2002 –9, was characterized by initiatives to expand the guidelines to include Antarctic waters as well. In the final stage of development, 2009 – 15, the process of transforming the regulations from mere guidelines to binding legal obligations re-emerged on the IMO agenda. Work on the Polar Code has been coordinated by the IMO Sub-Committee on Ship Design and Equipment (DE). Following IMO’s restructuring of its sub-committees, the Sub-Committee on Ship Design and Construction (SDC) took over this responsibility in 2014. Various working groups have had responsibility for proceeding with the work, with correspondence groups continuing between sessions. The parent bodies have been MSC, with respect to safety provisions, and MEPC, with respect to environmental provisions. The following review presents some key aspects of more than 25 years of this development.

1991– 2002 Initiatives for a new legal regime for polar navigation were triggered by the Exxon Valdez disaster off the coast of Alaska in 1989. During the 59th session of

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the MSC in 1991, Germany proposed inclusion of the following rule in SOLAS: ‘Ships intended for service in Polar Waters should have suitable ice strengthening for Polar conditions in accordance with the rules of a recognized classification society.’7 MSC referred the matter to its DE sub-committee, which allowed an informal Outside Working Group (OWG) to develop proposed guidance regarding technical concerns for ships operating in polar waters.8 The work resulted in a draft, ‘International Code of Safety for Ships in Polar Waters,’ submitted to DE 41 in 1998.9 The draft code aimed to ensure that all ship operations in polar waters would meet ‘internationally acceptable standards’.10 Since DE 41, however, many States and stakeholders had made submissions to the draft code.11 A significant set of changes was subsequently introduced by MSC. For instance, MSC directed that Antarctic waters were to be excluded from the Code’s geographical application.12 Also any provision in the Code inconsistent with international law should be removed.13 A revised draft of the Code, ‘Guidelines for Ships Operating in Arctic Polar Waters,’ was developed by a correspondence group established by DE 41.14 A new version of the Code, now titled ‘Guidelines for ships operating in Arctic ice-covered waters,’15 was prepared, and DE 44 agreed in principle to the draft guidelines.16 With some modifications agreed in plenary, MEPC 48 (October 2002),17 and MSC 76 (December 2002), subsequently approved the ‘Guidelines for Ships Operating in Arctic Ice-covered Waters.’18

2002– 9 Two years after adoption, the Arctic Shipping Guidelines re-emerged on the IMO agenda. In view of the increase in shipping activities in Antarctic waters, the Antarctic Treaty Consultative Meeting (ATCM) requested19 that the IMO should amend the guidelines to make them applicable to ships operating in ice-covered waters in the Antarctic as well.20 MSC 79 (2004) considered ATCM’s request.21 The damage to, capsize and sinking of MV Explorer while operating in Antarctic waters in 2007 gave further momentum to the initiative, and the correspondence group working on the Code between DE sessions considered several issues raised by this event.22 Moreover, the US now supported revisions to the Code that would broaden application of the guidelines to ships operating in Antarctic waters. Further, in January 2009, the US submitted proposals to MSC that would recast the guidelines as mandatory requirements.23

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DE 52 agreed to give its working group the task of finalizing the guidelines, and asked the group consider expanding the agenda to include the US proposals on mandatory requirements mentioned above.24 A two-way approach was proposed. First, the guidelines should be formulated in such a way that they could serve as a basis for future development. Second, a new item, on developing a mandatory instrument for ships operating in polar waters, should be included on the agenda.25 DE 52 instructed the working group first to finalize the revised guidelines and second to prepare a justification for a new agenda item: ‘Development of a Code for ships operating in polar waters’.26 A draft resolution on ‘Guidelines for ships operating in polar waters’ – Resolution A.1024(26) – was approved by MSC 8627 and MEPC 59.28 The new guidelines were subsequently adopted by the 26th session of the IMO Assembly on 2 December 2009.

2009– 15 Although the new guidelines were first finalized and adopted in December 2009, initiatives to develop mandatory requirements had emerged earlier that year. The first US proposal was submitted in January; a few months later Denmark, Norway and the US formally proposed that appropriate subcommittees should start developing mandatory requirements for ships operating in the polar regions.29 A new high-priority item on ‘Development of a mandatory Code for ships operating in polar waters’ was approved by MSC in May 2009.30 The target completion date was 2012.31 Work on the new Polar Code continued at DE 55 and 56, in which the working group further developed technical aspects of the draft. Important procedural imperatives also came under discussion, notably options for making a future Polar Code mandatory. Subsequently, DE did two things. First, it urged the parent bodies – MEPC and MSC – to prioritize discussions on how to make the Code formally binding.32 Second, it requested that the IMO Secretariat submitted a document to MEPC 62, in which the Legal Office explored options for making the Code’s provisions mandatory.33 The Legal Office outlined three options. The first option entailed amending SOLAS by adding a new chapter that incorporated the entire Polar Code by reference in the regulations and subject to the tacit amendment procedures of that convention.34 The second option was to amend both SOLAS and MARPOL by adding a new chapter to SOLAS that mandated the parts of the Polar Code relating to ship safety, as well as by amending one or more Annexes of MARPOL that addressed the environmental protection aspects of the Code. The third option was to develop an entirely new stand-alone

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convention on ships operating in polar waters – with the Code either incorporated by reference and subject to the amendment requirements of the new convention, or attached as an annex to the new convention. MEPC 63 decided to follow the second option. Accordingly, all relevant existing instruments were to be amended to mandate the associated provisions of the Code.35 In November 2012, MSC 91 also proposed following the second option. The Code would thus comprise a general part, a part on safety measures, and a part on pollution prevention measures. It would be adopted under the relevant applicable IMO instruments; specific maritime safety and pollution prevention requirements could be amended independently.36 DE 57, in March 2013, made significant progress in further developing the Polar Code. A draft chapter on environmental protection for consideration by MEPC 65 was finalized.37 In principle, agreement was also reached on definitions of the categories of ships covered by the Code. It was also agreed that all ships operating in polar waters be required to carry a ‘Polar Ship Certificate’ and a ‘Polar Water Operation Manual’.38 Taking into account the decisions reached by MEPC 63 and MSC 91 mentioned above, DE also agreed that parts of the Code would be adopted by separate MSC and MEPC resolutions.39 The aim was to finalize the Code in 2014. Following a restructuring of IMO sub-committees, in 2014 DE became the ‘Sub-Committee on Ship Design and Construction’ (SDC). At its first session in January 2014 – at the time when the MV Akademik Shokalskiy was trapped in thick ice in Commonwealth Bay in Antarctica – SDC continued its work on the Polar Code. SDC agreed, in principle, to the draft ‘International Code for ships operating in polar waters (Polar Code)’, for submission to MEPC 66 and MSC 93, with a view to adoption. There was also agreement on the text of the associated SOLAS and MARPOL amendments.40 The draft Code now included measures covering safety (part I-A) and pollution prevention (part II-A), as well as recommendatory provisions on both (parts I-B and II-B).41 SDC drafted a new ‘Chapter XIV’ of SOLAS to make the safety part of the Code (Introduction and part I-A) mandatory.42 Proposed draft amendments to MARPOL were also developed, to make the Introduction and part II-A mandatory under different annexes to that convention.43 MSC 93 and MEPC 66 were subsequently invited to approve the drafts, subject to deciding on the text remaining throughout the Code, and with a view to final adoption at MSC 94 and MEPC 67. MSC 94, held in London 17 –21 November 2014, adopted the safetyrelated provisions of the Polar Code44 and amendments to SOLAS.45 MEPC 68 (London, 11 – 15 May 2015) adopted the environmental regulations of

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the Code46 and associated amendments to MARPOL to make the Code mandatory.47 A historic milestone in the development of international shipping law had been reached.

Procedural and Substantive Aspects There are now four new IMO resolutions in place. First, the text of the Polar Code – ‘International Code for Ships Operating in Polar Waters (Polar Code)’ – is included in Resolution MSC.385(94) of 21 November 2014, whereby MSC adopted the safety-related provisions of the Introduction, and the whole of parts I-A and I-B of the Polar Code. Second, the final text of the Code is also included in Resolution MEPC.264(68) of 15 May 2015, whereby MEPC adopted the Introduction as related to environmental protection, and the whole of parts II-A and II-B of the Polar Code. Third, there are the amendments to SOLAS – ‘Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended’ – included in Resolution MSC.386(94), and adopted by MSC on 21 November 2014. Fourth, there are the rules for amending MARPOL – ‘Amendments to the Annex of the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973’ – included in Resolution MEPC.265(68), and adopted by MEPC on 15 May 2015. We focus first on the latter two of these instruments, as they have made Parts I-A and II-A of the Polar Code legally binding in the sense of being implemented through SOLAS and MARPOL. The safety provisions of the Polar Code are now a new ‘Chapter XIV – Safety Measures for Ships Operating in Polar Waters’ under SOLAS, which entered into force on 1 January 2017.48 The environmental provisions of the Polar Code (that is, Part II-A) are included in MARPOL through amendments in Annexes I, II, IV and V, which also entered into force 1 January 2017.49

SOLAS chapter XIV According to Regulation 3, paragraph 1, of SOLAS Chapter XIV, ships to which the chapter applies ‘shall comply with the requirements of the safetyrelated provision of the Introduction and with part I-A of the Polar Code’. However, which ships do these new safety rules apply to, and in which waters? In terms of geographical application, ‘polar waters’ are defined in Regulation 1, paragraph 4, as ‘Arctic waters and/or the Antarctic area’. While the ‘Antarctic area’ is simply defined as the ‘sea area south of latitude 608 S’, ‘Arctic waters’ required a more detailed definition. Intended for illustrative

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Map 8.1 Geographical application of the Polar Code in the Antarctic, as defined in SOLAS regulations XIV/1.2. Source: IMO Doc. MEPC 68/21/Add.1, Annex 10.

purposes only, a useful figure showing the maximum extent of Arctic waters application is included in the ‘Introduction’ to the Polar Code (see Figures 8.1 and 8.2). All sea areas north of latitude 608 N are covered by the area of the Code’s application, except for those where ice is not present. Here it should be noted that the Polar Code applies to the sea areas adjacent to Svalbard, Norway’s remote Arctic archipelago, visited by many cruise liners every year. As regards ship types, Regulation 2, paragraph 1, provides that (unless expressly provided otherwise) Chapter XIV shall apply to ‘ships operating in polar waters, certified in accordance with chapter I [of SOLAS]’. Accordingly, not all ships are subject to the regulations. First, SOLAS, as the main rule, applies only to ships on ‘international voyages’.50 An ‘international voyage’ under SOLAS is defined as a ‘voyage from a country to which the present Convention applies to a port outside such country, or conversely’.51 A pertinent issue is whether vessels operating solely in the waters off Antarctica are excluded from the area of application. The context indicates that whether or not a ship actually calls at a port in another country is not

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Map 8.2 Geographical application of the Polar Code in the Arctic, as defined in SOLAS regulations XIV/1.3. Source: IMO Doc. MEPC 68/21/Add.1, Annex 10.

decisive – more important is that such vessels operate ‘in polar waters’. This is supported by the fact that non-international trading voyages in the Antarctic maritime area are similar in nature to ‘international voyages’ and should therefore be considered ‘international voyages’. Importantly too, the purpose of the Polar Code and SOLAS – stated in the preamble of the Code – is to increase the safety of ships’ operations and mitigate negative impacts on passengers, crew and the environment in polar waters. Obviously, perils of the sea do not distinguish between ships engaged in international or noninternational voyages. Applying the new provisions to ‘non-international voyages’ would be an important response to the urgent need to enhance the safety of ships and people navigating off Antarctica. Unless expressly provided for, Regulation 3 of Chapter I also determines that the Convention does not apply to ships of war and troopships, cargo ships of less than 500 gross tons, ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts not engaged in trade, and fishing vessels. Chapter XIV provides additional exceptions. First, it follows from Regulation 2, paragraph 2 that ships constructed before 1 January 2017 shall merely meet ‘the relevant requirements of the Polar Code by the first

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intermediate or renewal survey, whichever occurs first, after 1 January 2018’. It is not obvious how to construe the meaning of the term ‘relevant requirements’, but, apparently, the Code in toto applies only to new ships, that is, ships constructed after 1 January 2017. Second, Regulation 2, paragraph 4 provides that ships owned or operated by a contracting State and used only in ‘Government non-commercial service’ are exempted from the regulations. Typically, these are military vessels, including coast guard vessels. Nevertheless, under Regulation 2, paragraph 4 these ships are also ‘encouraged’ to act in a manner consistent with the new safety provisions. Certain substantive limitations as regards the scope of application of the provisions of the new Chapter must be mentioned. First, according to Regulation 2, paragraph 3 Part I-B of the Code is recommendatory only (the safety measures of the Code are divided into Parts I-A and I-B, with only the rules in Part I-A being binding). Second, Regulation 4 allows ‘alternative design and arrangements’ to those in the Polar Code regarding certain substantive areas. Regulation 4 aims to ‘provide a methodology for alternative design and arrangements for structure, machinery, and electrical installations, fire safety and life-saving appliances and arrangements. However, if alternative design or arrangements are used, such design and arrangements shall be approved in accordance with Regulation 4, paragraph 3.52

MARPOL While a new and separate chapter of SOLAS will render the safety provisions (in Part I-A) of the Polar Code mandatory, the environmental provisions (in Part II-A) of the Code are to be implemented by amending four different annexes of MARPOL. There will thus not be a separate ‘Polar Code’ chapter of MARPOL.53 Amendments to Annex I concern regulations for preventing pollution by oil. Amendments to Annex II consist of regulations for the control of pollution of noxious liquid substances in bulk. Amendments to Annex IV contain regulations for preventing pollution from ship sewage. Finally, amendments to Annex V are on regulations for preventing pollution from ship garbage. Changes to these annexes have taken the form of rather minor amendments of the wording to various regulations. Some paragraphs have been added or replaced, and existing paragraphs renumbered. Importantly, however, new chapters on scope of application are included in each annex, all titled ‘International Code for Ships Operating in Polar Waters’. In these chapters, the geographical and personal scope

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of application of the new provisions is determined: the Polar Code and polar waters are defined, and the ships that fall under the regulations are specified. It was deemed necessary to have such a separate chapter in each of the annexes because there is no overarching chapter concerning the scope of application, similar to the new SOLAS ‘Chapter XIV’.

Structure and key substantive aspects The Polar Code consists of a preamble, an introduction and two main parts. The preamble contains general statements regarding the overarching objectives and purpose of the Code. Section 5 calls for safety measures to reduce ‘the probability of an accident’. As States have generally aimed to identify the most risky activities related to polar navigation, section 7 of the preamble provides for a ‘risk-based approach’ to ensure that a ‘holistic’ approach has been utilized to reduce identified risks. The drafters thus seem to recognize that while there may be certain weak points in the Code, as a whole it is regarded as acceptable. This sort of ‘fallback protection mechanism’ is noteworthy – the drafters appear to be seeking to protect themselves from criticism with respect to parts of the Code that are indeed admitted as being too weak. The following elements are particularly important to note in the Code’s ‘Introduction’. Regulation 3.1 contains a list of sources of hazards. Regulation 3.2 introduces a situation-based approach as regards such risks, that is, that risks vary on the basis of geographical location, the amount of ice-cover, and so on. This rule provides a basis for interpreting the Code more strictly in some circumstances. For instance, the term ‘appropriate survival resources’ has different meanings depending on whether it is applied to waters that are entirely ice-covered or waters that are not markedly ice-covered.54 Safety provisions The Polar Code’s safety measures are contained in Parts I-A and I-B. Regulation 1.1 of the former specifies that each chapter should consist of an ‘overall goal’, ‘functional requirements to fulfil the goal’ and ‘regulations’. In addition to an overarching goal and purpose, each chapter consists of both functional and deterministic regulations. The functional requirements describe, for instance, the qualities of a ship’s stability relative to the ship’s functionality.55 A ship meets a functional requirement when its design and arrangements comply with all the regulations associated with the functional requirement.

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Regulations 1– 3 to 1 – 5 of Chapter 1 set out three basic requirements for all ships covered by the Code. First, under Regulation 1.3, ‘every ship’ is subject to certain certification provisions. Second, according to Regulation 1.4 there are specific minimum requirements as regards ‘performance standards’: these minimum requirements derive from the standards specified in SOLAS. Third, there is an obligation to conduct an ‘operational assessment’ of a ship’s ability to operate in polar waters, also regarding potential risks associated with such navigation.56 Taken together, these seem to be appropriate ‘minimum’ requirements that must be met before any ship is allowed to operate in ice-covered waters. More specific safety measures of the Code are contained in Chapters 2– 12. All ships shall carry a polar manual (Chapter 2); there are rules regarding ship structure (Chapter 3); subdivision and stability (Chapter 4); watertightness and watertight integrity (Chapter 5); machinery installations (Chapter 6); fire safety and protection (Chapter 7); life-saving appliances and arrangements (Chapter 8); safety of navigation (Chapter 9); communications (Chapter 10); voyage planning (Chapter 11); and manning and training (Chapter 12). Importantly, according to Regulation 12.3, ‘adequate’ qualifications for crew members will vary from area to area, and also depend on the type of ship in question. The strictest qualification requirements apply to tankers and passenger ships. Extensive references to other instruments is a striking element of the Polar Code. First and foremost, it is interesting to note that private actors have been accorded a role in this legal instrument. Notably, in the provisions regarding ship structure, reference is made to regulations developed by the International Association of Classification Societies (IACS), an organization consisting of 12 global marine classification societies. According to Regulation 3, IACS ‘Requirements concerning Polar Class’ are particularly relevant.57 These requirements are also referred to under Regulation 6.3 in connection with machinery installations. Thus while the Polar Code contains its own categorization of ships intended for polar navigation (‘Category A ship’, ‘Category B ship’ and ‘Category C ship’), there are numerous references to standards developed by IACS. In Regulation 11.3 on requirements for voyage planning, reference is made to certain IMO instruments. Chapter 12 refers to the provisions of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) and the STCW Code.58 There are also several references to SOLAS in the Code’s provisions on safety measures, as well as in its preamble and general provisions.59

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Part I-B of the Polar Code – in which the mandatory ‘shall’ has been replaced by ‘should’ throughout – is less comprehensive than Part I-A. However, the recommendatory part contains important additional guidance regarding introduction of the Code and Part I-A, including provisions on ship structure (Regulation 4) and navigation safety (Regulation 10).

Pollution-prevention measures The mandatory environmental provisions of the Polar Code are contained in Part II-A, which has chapters on various types of pollution – oil, noxious liquid substances in bulk, garbage, and so on. The structure is different compared to the safety part. There are no overarching goals followed by functional and deterministic requirements: the environmental chapters use the term ‘operational requirements’. Chapter 1 on oil pollution also has regulations on ‘structural requirements’. The chapters on prevention of pollution by sewage from ships (Chapter 4) and garbage from ships (Chapter 5) include separate ‘definitions’. In Arctic waters, any discharges into the sea of oil or oily mixtures from any ship are prohibited.60 In addition, any discharge of noxious liquid substances, or mixtures containing such substances, is prohibited in Arctic waters.61 The prohibition related to discharge of sewage, however, applies to ‘polar waters’, and includes the Antarctic maritime area. With regard to garbage from ships, Annex V of MARPOL shall apply, but the Polar Code provides for additional and separate regulations with regard to the Arctic62 and the Antarctic.63 The main impression is of strict regime regarding pollution from oil and noxious liquid substances in bulk. Relevant Annexes of MARPOL are made applicable to sewage (Chapter 4) and garbage (Chapter 5) – Annexes IV and V, respectively. The provisions on sewage apply to all polar waters. In making Annex V of MARPOL applicable to pollution from garbage, however, the Polar Code contains stricter and more extensive additional regulations for the Arctic64 than for the Antarctic.65 In Part II-B of the Polar Code, recommendatory environmental provisions are included. The regulations related to oil pollution are noteworthy, in particular Regulation 1.1, under which ships are ‘encouraged to apply regulation 43 of MARPOL Annex I when operating in Arctic waters’. Regulation 43 provides special requirements for the use or carriage of oil in Antarctic areas. Regulation 4 should also be noted: until the International Convention for the Control and Management of Ships Ballast Water and Sediments, 2004 (BWM Convention)66 enters into force, the provisions of the ‘Guidelines for

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ballast water exchange in the Antarctic treaty area’ should be taken into consideration along with other relevant guidelines developed by the IMO.67

Interplay of Vague and Substantive Rules When the work on the Polar Code entered its final phase in 2010, it was emphasized that a goal-based approach should be utilized as a key regulative concept for developing structural design.68 Such goal-based design has gained prominence and may even become a general principle in ship design as the methodology used to develop structural standards.69 In essence, a regulative approach based on goals places the focus on overall goals rather than prescriptive rules. As such it seeks to replace prescriptive and deterministic regulations with goal-oriented standards. There are clear expressions of a goal-based approach in the Polar Code, most notably in each chapter of the safety part: they contain prescriptive provisions supported by both overall goals and functional requirements. On the other hand, this legislative technique has also resulted in a striking mix of precise and vague provisions, which are likely to have implications for interpretations of the Polar Code. The provisions on goals and on functional requirements under each chapter of Part I-A of the Code (for instance rules 7.1 and 7.2, respectively) can be seen both as a context for interpreting the deterministic regulations (rule 7.3), and as rules to ensure an interpretative result based on object and purpose. A purposive or teleological approach to interpretation is clearly in accordance with Article 31(1) of the Vienna Convention on the Law of Treaties.70 It means stressing the overarching objectives of each relevant chapter of the Code and putting less emphasis on the wording of the deterministic or technical provisions. Highlighting overall goals and purposive considerations in an interpretation of the Code’s descriptive characteristics may give greater room for maneuver for national authorities to fulfill their obligations under the Code; admitting a broad ‘margin of appreciation’ provides certain flexibility and may even permit interference with the prescriptive regulations. Power of discretion, however, does not necessarily imply a lower standard of protection. In the long run, it may also result in stricter standards.71 In the context of the Code’s provision on safety measures, the nature of the regulations is a crucial factor in determining how much latitude can actually be accorded to national authorities. Not all types of international norms are particularly amenable to a margin of appreciation decision making methodology. Many of the Polar Code’s prescriptive regulations are

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highly technical and precise, leaving little room for flexibility. Consider Regulation 4.3.1.1. on stability in intact conditions: In order to comply with the functional requirement of paragraph 4.2.1, for ships operating in areas and during periods where ice accretion is likely to occur, the following icing allowance shall be made in the stability calculations: 1. 30 kg/m2 on exposed weather decks and gangways; 2. 7.5 kg/m2 for the projected lateral area of each side of the ship above the water plane; and 3. the projected lateral area of discontinuous surfaces of rail, sundry booms, spars (except masts) and rigging of ships having no sails and the projected lateral area of other small objects shall be computed by increasing the total projected area of continuous surfaces by 5 per cent and the static moments of this area by 10 per cent.

Now, is there room for considering object and purpose in an interpretation of such an obligation? There is perhaps no ‘inherent uncertainty’ at all in such norms.72 That makes it difficult to see how a State, in interpreting the Code, could possibly lower standards at the domestic level.73 Most of the Polar Code’s regulations are neither flexible standard-type norms nor very discretionary. The efficacy of utilizing a goal-based approach in developing the Polar Code’s provisions is therefore not readily apparent.

Regulatory Interplay The Polar Code’s provisions also prompts discussion on the relationship and interplay of the new regulations with other international shipping regulations. Here we will consider certain legal implications of the Code in relation to the broader context of international law, including legislative arrangements and provisions of the LOS Convention.

The Polar Code as external rules of reference under the LOS Convention An emergent legal issue is whether the provisions in the Polar Code can be said to be ‘generally accepted international rules and standards’ (GAIRAS) and thereby covered by a relevant rule of reference in the LOS Convention. Instead of providing rules and regulations directly applicable to State Parties, in several instances the LOS Convention functions merely as an

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umbrella framework, offering only general rules ‘primarily apportioning competence while leaving technical rules and regulations to the relevant conventions, already existing or still to be created’.74 Importantly, by becoming a party to the 1982 Convention, states ipso facto accept the legal technique of law-making by reference inherent in the very notion of generally accepted international rules and standards [. . .] Consequently, flag states, coastal states and port states can enforce concrete international rules and standards which are generally accepted irrespective of the form they have taken [. . .] This Conclusion does not infringe the pacta tertiis principle, since the consensual nature of international law is satisfied by the fact that states, party to the 1982 Convention, did agree to accept the rule of reference.75

The considerable extent to which international rules and standards originated outside the LOS Convention is relevant in context of the Convention is a major change compared to how the rules of reference mechanism had been applied under the 1958 High Seas Convention.76 A similar procedure was also followed in the 1995 Straddling Fish Stocks Agreement,77 under which States Parties agree in advance to be subjected to the regulations enacted by regional fisheries organizations to which a given State may not adhere or whose regulations it may not have consented to.78 Basically then, GAIRAS concerns prescriptive and enforcement jurisdiction either of flag States (in which case, it constitutes a mandatory minimum) or of coastal States (where it represents a facultative maximum). For instance, as regards the right of the coastal State to adopt laws and regulations relating to innocent passage under Article 21 of the LOS Convention, paragraph 2 of Article 21 determines that such laws and regulations shall not apply to the ‘design, construction, manning or equipment’ of foreign ships unless they are giving effect to generally accepted international rules or standards. Thus, if a rule or standard is deemed ‘generally accepted’, the exception will apply. Accordingly, the Polar Code will establish an upper limit for the content of national legislation and will serve as a point of reference with regard to which regulations the coastal State has a right to establish for foreign vessels navigating in the territorial sea. Likewise in Article 211, paragraph 2, concerning pollution from vessels: Laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag shall ‘at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or

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general diplomatic conference’. In such cases, the Polar Code will establish a lower limit for the content of national legislation and provide a point of reference for the regulatory measures a flag State is obliged to establish. Domestic regulations conforming to GAIRAS may also often be enforced by the coastal State.79 Are, then, the provisions of the Polar Code in fact ‘generally accepted international rules and standards’? This question has engendered much theoretical debate. Key points raised are: (1) Where should such international rules or standards be developed? (2) To which norms do the concepts apply? (3) When does a norm become ‘generally accepted’?80 Accordingly, this is not only a question about endorsement by States, it is also about qualitative requirements with respect to the regulations in question. As regards where a generally accepted international rules or standards should be developed, it should be stressed that the Polar Code has been adopted by the organization designated by the LOS Convention as competent with respect to safety and environmental aspects regarding vessels. The LOS Convention mentions the IMO explicitly only once,81 but generally calls upon the ‘competent international organization’82 to develop rules and standards pertaining to navigation safety and environmental protection. Alternatively, such regulations should be developed through ‘general diplomatic conference’.83 Considering that the LOS Convention elsewhere refers to whichever international organization is competent in the circumstances, indicates that, in principle, there may be several organizations that are ‘competent’ with regard to the regulation of shipping. The International Labour Organization (ILO) and the International Atomic Energy Agency (IAEA) also develop international regulations in relation to shipping. That the IMO is the primary competent international organization as regards navigation and related maritime matters is, however, widely accepted84 and also follows from the drafters’ intentions, as expressed during the Third United Nations Conferences on the Law of the Sea (UNCLOS III).85 One complicating factor regarding the Polar Code, however, is that the mandate to adopt regulations in several places has been ‘delegated’ to a private entity: IACS. Although IACS rules are included by reference and not directly incorporated in the Polar Code, its regulations are legally relevant because they are referred to as ‘acceptable’ standards.86 As extra-legal norms they may also be important in interpretations of the Code. For example,

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what is considered an acceptable minimum in terms of ship structure will depend on IACS specifications. Accordingly, some of the regulations to which the Code refers were not developed by States. Therefore it may be argued that the Code was not wholly developed by ‘the competent international organization’ or at a ‘general diplomatic conference’. The obvious counterargument, however, is that States have accepted the reference to IACS regulations in the Code, and so State consent is present. With respect to the type of norm to which the concept of GAIRAS can apply, provisions that are incorporated into binding instruments such as SOLAS and MARPOL (the Introduction, Parts I-A and II-A of the Polar Code) will undeniably constitute ‘rules and standards’. To be covered by a relevant rule of reference in the LOS Convention, however, they must also meet certain additional qualitative requirements. For instance, since Article 211, paragraph 5 deals with pollution from vessels, only norms relating to and with the purpose of protecting the marine environment from pollution from vessels will qualify as GAIRAS under that provision.87 Likewise, the rule of reference in Article 21, paragraph 2 of the LOS Convention covers safety related provisions. In context of the Polar Code, however, the first question that arises is whether rules of reference in the LOS Convention also include the recommendatory parts of the Polar Code, that is, those regulations not incorporated in MARPOL or SOLAS but which remain non-legally binding as IMO resolutions. Distinction in the denotation of the two terms ‘rules’ and ‘standards’ would seem to lie in the capacity of ‘standards’ to cover a wider range of sources.88 Yet, while the term does not necessarily point to something that is already binding on subjects, there is doubt as to how far the term can be understood to extend.89 On the one hand, also the recommendatory parts of the Polar Code were developed by the IMO. Thus their origin can be traced back to States acting through the competent international organization. On the other hand, non-binding instruments do not have any obvious indication of the intent of States to be bound. On the contrary, States may have accepted the recommendatory parts of the Polar Code precisely because of their non-binding nature. The fact that parts of the Code have been singled out as ‘recommendatory only’ is a strong contextual argument that its recommendatory provisions cannot be considered as GAIRAS either.90 With regard to the Polar Code, there is a second issue that arises concerning the scope of GAIRAS: Are wholly private undertakings that

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establish, for instance, construction requirements covered? This question is relevant in the context of the above discussion on IACS regulations. Again, however, the rules of references in the LOS Convention refer back to standards that originate from international organizations and general diplomatic conferences.91 This strongly indicates that IACS standards cannot be accepted as GAIRAS, since these regulations were developed beyond the sphere of States and without their input. Thus far, the conclusion is that all parts of the Polar Code, including IACS regulations, have been endorsed by States through the ‘appropriate’ body for them to qualify as GAIRAS under the LOS Convention. It is argued, however, that the recommendatory parts and IACS regulations do not qualify as ‘rules and standards’ with respect to the GAIRAS-test. For the mandatory elements of the Polar Code (the Introduction, Parts I-A and II-A) a final issue to address would be to examine what level of acceptance a source of international law must meet before it can function as an external rule of reference under the LOS Convention.92 In other words: will the binding provisions of the Polar Code become ‘generally accepted’ as part of SOLAS and MARPOL? Various standards have been proposed for assessing whether such acceptance is present.93 Does mere adoption suffice for a rule to be ‘generally accepted’? Is entry into force required? Is even wider acceptance than entry into force required – for instance, so that the threshold for considering rules as ‘generally accepted’ is that they have attained the status of customary international law?94 Whether a rule is deemed ‘generally accepted’ must be assessed in terms of the specific instrument at hand. With regard to the provisions of the Polar Code, it could be argued that since the Code has been adopted by (two of the bodies of) the IMO – in which the vast majority of the world’s States participate – it is sufficient for regulations to be labelled as ‘generally accepted’. However, acceptance of international law should require at least that States actually ratify an instrument, that is, follow domestic procedures for making international law binding for that particular State. The first level – adoption – is not sufficient. Entry into force, however, does not necessarily suffice for an instrument to be deemed ‘generally accepted’. Of relevance is what is required for a particular instrument to enter into force: an instrument that requires, say, only five ratifications for entry into force cannot be said to be ‘generally accepted’ merely because that number of ratifications has been achieved. In the case of SOLAS, however, the number of ratifications required for entry into force is of a different kind. As seen, the new provisions were

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deemed to have been accepted unless more than one third of the contracting governments to these conventions, or contracting governments combined merchant fleets of which constitute not less than 50 per cent of the gross tonnage of the world’s merchant fleet, notify objections.95 Since no objections were raised, the amendments entered into force on 1 January 2017.96 As of 11 February 2016, SOLAS had 162 contracting States, which flag about 99 per cent of merchant ships around the world in terms of gross tonnage. Thus, it is safe to conclude that these provisions have become ‘generally accepted’. Likewise, the amendments to MARPOL were deemed to have been accepted unless, prior to 1 July 2016, not less than one third of the Parties, or the combined merchant fleets constituting not less than 50 per cent of the gross tonnage of the world’s merchant fleet, have communicated objections to the amendments.97 No objections were raised, and the MARPOL amendments entered into force on 1 January 2017. Unlike SOLAS, however, the MARPOL amendments are spread across different Annexes, and not all of the Annexes have been ratified by the same number of States. As of 11 February 2016, Annexes I and II had been ratified by 153 States, which flag about 99 per cent of merchant ships around the world in terms of gross tonnage. Annex IV had been ratified by 136 States (flagging 90.75 per cent); and Annex V by 148 States (flagging about 98 per cent). Annex IV represents the lowest number of contracting States/percentage of world tonnage. However, if more than 90 per cent of merchant ships around the world in terms of gross tonnage are bound by the regulations, also here it seems safe to conclude that the regulations will be sufficiently endorsed upon entry into force. Alone, the large number of ratifications/percentage of world tonnage would indicate that the Polar Code provisions in SOLAS and MARPOL are ‘generally accepted’. It could, however, also be argued that true acceptance – or ‘general acceptance’ – of international law will only have taken place after the vast majority of the world’s States have taken steps to implement these regulations at the domestic level. Then State behaviour and whether States actually live up to their obligations is the decisive element.98 In that case, however, it will indeed take some time until the test of general acceptance is fulfilled. States’ actual compliance is also a difficult undertaking, and requires detailed examination. At the outset, it should therefore be assumed that States will act in accordance with the obligations that rest on them.99 Upon entry into force the Polar Code provisions incorporated in SOLAS and MARPOL will therefore have passed the test of general acceptance, and its provisions will be covered by relevant rules of references in the context of the LOS Convention.

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Relationship to Article 234 of the LOS Convention As regards environmental protection specifically, the LOS Convention contains a special provision relating to coastal State jurisdiction within the limits of the EEZ that are partially or completely covered by ice: Article 234. The relationship between Article 234 and the Polar Code provisions has to some extent been addressed through the negotiations process.100 However, with the Code’s provisions legally binding, it is important to clarify the relationship between the new provisions and Article 234. The primary question is whether Article 234 still has any relevance, or whether this ‘exception’ has become redundant with the finalization and adoption of the environmental measures of the Polar Code, and the attendant changes to SOLAS and MARPOL. The main point is that a coastal State does not necessarily have to employ Article 234 in setting stricter regulations against pollution within the limits of its EEZ. With the adoption of the Polar Code, it is now likely that States will invoke Article 211, paragraph 5 as the basis for national environmental measures. This is so because Article 211 gives coastal States the right to adopt laws and regulations to prevent, limit and control ship pollution that are in accordance with generally accepted international rules and standards established by the IMO or through general diplomatic conferences. In other words, if the Polar Code’s provisions come to be deemed ‘as conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference’, the coastal State will be able to use Article 211 as a basis for stricter national measures, with no need to invoke Article 234 of the LOS Convention. Does this then mean that Article 234 is without legal significance? On no account. It would seem that Article 234 is relevant if a coastal State wants to impose even stricter rules than those in the Polar Code. In contrast to Article 211, Article 234 is not limited to rules adopted by the IMO: what restricts the coastal State in Article 234 is that the provisions shall take due regard of the shipping industry and to the protection and conservation of the marine environment based on the best available scientific material. Nevertheless, some important issues of interpretation arise. We may ask if adoption of the Polar Code ‘subsumes’ any other international rules pertaining to safety or the environment in polar waters, that is, that Article 234 also must be limited to IMO regulative efforts – in other words, that LOS Article 234 must be interpreted in light of the subsequent development of and reliance on standards developed by the IMO.101

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A central reason for concluding that adoption of the Polar Code does not eliminate Article 234 as an alternative basis for adopting stricter environmental (or safety) standards must be that Article 234 does not contain any reference to ‘generally accepted international rules and standards’. Thus, as noted, Article 234 is not limited to rules adopted by the IMO. Nevertheless, the specification in Article 234 that national measures shall take due regard of navigation may limit domestic regulations in accordance with the Polar Code; regulations that go beyond what is required by the Polar Code will hamper those decisions which indeed have been taken by the international community. This would, however, also mean ‘sidelining’ Article 234 and pulling it down to the level of the Polar Code, which does not fit well with the wording of the provision, notably that there is no inclusion of ‘generally accepted international rules and standards’. According to Article 234, States shall merely pay ‘due regard to navigation’. It is not inconceivable that a coastal State, finding some provisions in the Polar Code too weak, may seek to establish stricter requirements pursuant to Article 234. The Polar Code is clearly not a perfect instrument to ensure sufficient regulation of shipping in ice-covered waters. Despite the fact that the negotiations that resulted in the Code were founded on good science, the provisions represent a political compromise – as is always the case in international law. In a negotiation situation, some provisions end up too weak; Article 234 can work as a safety net for such cases, and so that it is still possible to increase the level of (safety and) environmental protection with basis in that provision. In light of the wording of Article 234, and the principle of freedom of navigation in the EEZ, it may be necessary for States to justify why an even higher level of protection than the Polar Code is necessary. The key point to emphasize here, however, is that Article 234 still lives its own life as an alternative jurisdictional basis beyond the requirements of the Polar Code. Support for considering Article 234 as an alternative jurisdictional basis is also found in the two conventions that give binding effect to the Code’s provisions, despite the different approaches of SOLAS and MARPOL with regard to how their provisions relate to other rules of international law. MARPOL contains a general provision in its Article 9(2): Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to Resolution 2750C (XXV) of the General Assembly of the United Nations nor the present or future claims

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and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.

SOLAS does not contain such an overall savings clause applicable to the entire Convention. In Chapter XIV, Regulation 2.5, it was therefore necessary to specify: ‘Nothing in this chapter shall prejudice the rights or obligations of states under international law.’ While somewhat different in approach, under both SOLAS and MARPOL it is still so that implementation of the Polar Code’s provisions is not to affect the rights and obligations that States have under other international law instruments. Article 234, as part of the LOS Convention, obviously falls in this category, and provides a basis for designating waters within the limits of the EEZ as a ‘special area’ where stricter rules can be invoked. It is not known whether any States Parties have reached agreement to modify or suspend operation of Article 234 in accordance with Article 311, paragraph 3 of the LOS Convention.

Conclusion The adoption of the Polar Code, with attendant amendments to MARPOL and SOLAS, marks the end of nearly 25 years of IMO-work focusing on international maritime regulation for polar shipping. It has become essential to have special rules for this purpose, as navigation in the polar regions is expected to increase in the years to come. The effectiveness of the new rules has been secured by making the new regulations part of maritime conventions, with close to global support. As is common with international law, the rules of the Polar Code are the result of negotiated compromises. A pertinent question is therefore whether all of the rules are sufficiently stringent. In addition, the Code and its provisions entail several implications and challenges that are relevant to the broader context of international law. One important aspect relates to treaty interpretation. How shall treaty obligations that are partly very technical, and partly consist of provisions that focus on object and purpose, be interpreted? Some chapters in the Polar Code contain both general and detailed substantive rules. Technical prescriptions are, however, difficult to interpret in any other way than in accordance with the ordinary meaning of the words used. It can thus be questioned how successful the goal-based legislative technique used by the Code has, in fact, been. Provisions on object and purpose will make considerable sense where related provisions open up for different

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interpretive options. However, in situations where the regulations are very precise, overall goal-based regulations may prove redundant. Another implication is the GAIRAS-test – that is, whether or not the Polar Code, or any of its provisions, can be said to form part of the extended normative framework of the LOS Convention in terms of shipping regulations. It has been argued that the mandatory requirements of the Polar Code – those regulations incorporated into SOLAS and MARPOL – are to be considered as GAIRAS since they entered into force. With respect to the non-binding parts of the Polar Code, however, these should not be considered ‘rules and standards’ under the GAIRAS-test: a decisive factor is that States may have accepted the recommendatory parts of the Polar Code precisely because of their nonbinding nature. Moreover, IACS standards are likely to fail to qualify as GAIRAS since these regulations – despite being subject to State consent – were developed beyond the sphere of States and without their input. A third implication relates to the interplay between the Polar Code and Article 234 of the LOS Convention. It has been argued that the new provisions of MARPOL and SOLAS will not impinge on the opportunities that a coastal State has to invoke Article 234. Article 234 is still an alternative basis for adopting stricter rules for ice-covered parts of the EEZ. It may be argued, however, that the criterion ‘due regard to navigation’ – as stated in Article 234 – must be understood in light of the provisions of the Polar Code. This may imply that Article 234 needs to be interpreted in light of regulative efforts taken by the IMO. Concluding that the Polar Code is the normative ‘maximum’, however, does not stand well with the basic fact that Article 234 is in force and that it contains no explicit reference to rules developed by the IMO.

Notes 1. This chapter is a revised and updated version of Øystein Jensen, ‘The international code for ships operating in polar waters’, Arctic Review on Law and Politics 7/1 (2016), pp. 60 – 82. Available at www.dx.doi.org/10.17585/arcti c.v7.236. 2. IMO doc. MSC.385(94), of 21 November 2014, ‘International code for ships operating in polar waters (polar code)’. 3. IMO doc.MSC 94/21/Add.1, Annex 6, of 21 November 2014, ‘International code for ships operating in polar waters (polar code)’. 4. International Convention for the Safety of Life at Sea (SOLAS Convention), 1 November 1974, 1184 UNTS p. 3. 5. International Convention for the Prevention of Pollution from Ships of 1973, as modified by the Protocol of 1978 (MARPOL 73/78), 17 February 1978. Text reprinted in

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6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS International Legal Materials, Vol. 12, 1973, pp. 1, 319ff (Convention) and International Legal Materials, Vol. 17, 1978, p. 546ff (Protocol). United Nations Convention on the Law of the Sea (LOS Convention), 10 December 1982, 1833 UNTS p. 3. IMO doc. MSC 59/30/32, of 12 April 1991, ‘Requirements for Ships Intended for Polar Waters’. Øystein Jensen, ‘Arctic shipping guidelines: towards a legal regime for navigation safety and environmental protection’, Polar Record 44 (2008), pp. 107–14, p. 108. Code in IMO Doc. DE 41/WP.7, Annex 1, of 1998. See also IMO doc. DE 41/10, Annex 1, of 1998, ‘International Code of Safety for Ships Operating in Polar Waters’. Ibid., p. 3. IMO doc. DE 42/14/1, of 8 January 1999, ‘International Code of Safety for Ships in Polar Waters (Polar Code)’. IMO doc. DE 43/12, of 23 December 1999, ‘Development of Guidelines for Ships Operating in Ice-Covered Waters’. Ibid. Ibid., attachment. Part 1 in IMO Doc. DE 43/WP.10. Part 2 in IMO Doc. DE 44/12, of 18 June 2000, ‘Development of Guidelines for Ships Operating in Ice-Covered Waters’, Annex 2. See also IMO Doc. DE 44/WP.2. IMO doc. SLF 44/8, of 15 June 2001, ‘Development of Guidelines for Ships Operating in Arctic Ice-Covered Waters’. IMO doc. MEPC 48/21, of 24 October 2002, ‘Report of the marine environment protection committee on its forty-eight session’. IMO doc. MSC/Circ.1056 – MEPC/Circ.399, of 23 December 2002, ‘Guidelines for ships operating in Arctic ice-covered waters’. See IMO docs. MSC 79/8/2, of 18 August 2004, ‘Outcome of the XXVIIth Antarctic Treaty Consultative Meeting’, and MSC 79/INF.2., of 20 August 2004, ‘Outcome of the XXVIIth Antarctic Treaty Consultative Meeting’. See Secretariat of the Antarctic Treaty, Final report on the 27th Antarctic Treaty Consultative Meeting (Cape Town, 24 May – 4 June 2004), decision 4, p. 189. IMO doc. MSC 79/23, of 20 December 2004, ‘Report of the maritime safety committee on its seventy-ninth session’. IMO doc. DE 52/INF.4, of 12 December 2008, ‘Guidelines for Ships Operating in Arctic Ice-Covered Waters’. IMO doc. DE 52/9/2, of 9 January 2009, ‘Amendments to the Guidelines for Ships Operating in Arctic Ice-Covered Waters’, paragraphs 3– 5. IMO doc. DE 52/21, of 14 April 2009, ‘Report to the Maritime Safety Committee’. Ibid. Ibid., paragraph 9.9. IMO doc. MSC 86/26, of 12 June 2009, ‘Report of the Maritime Safety Committee of the eighty-sixth session’. IMO doc. MEPC 59/24, 27 July 2009, ‘Report on the Marine Environment Protection Committee on its fifty-ninth session’. IMO doc. MSC 86/23/9, of 24 February 2009, ‘ Mandatory application of the polar guidelines submitted by Denmark, Norway and the United States’.

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30. IMO doc. MSC 86/26, of 12 June 2009, ‘Report of the Maritime Safety Committee of the eight-sixth session’, paragraphs 23.32 – 23.34. 31. Ibid., paragraph 23.32. 32. IMO doc. DE 56/25, of 28 February 2012, ‘Report to the Maritime Safety Committee’, paragraph 10.8. 33. IMO doc. MEPC 62/11/4/Add.1, of 6 May 2011, ‘Note by the Secretariat: Legal opinion on making the Polar Code mandatory’. 34. Ibid., paragraph 4. 35. IMO doc. MEPC 63/23, of 14 March 2012, ‘Report of the Marine Environment Protection Committee on its sixty-third session’, paragraphs 11.9 – 11.18. 36. IMO doc. MSC 91/22, of 17 December 2012, ‘Report of the Maritime Safety Committe on its ninety-firsth session’, paragraph 8. 37. IMO doc. DE 57/25, of 5 April 2013, ‘Report of the Maritime Safety Committe and the Marine Environment Protection Committee’, paragraph 11.40. 38. Ibid., paragraph 11.39. 39. Ibid., paragraph 11.10. 40. IMO Doc. SDC 1/26, of 11 February 2014, ‘Report to the maritime Safety Committee’, paragraph 3.67. 41. Ibid., Annex 3. 42. Ibid., paragraph 26.1. 43. Ibid., paragraph 26.2. 44. Res. MSC.385(94), of 21 November 2014, ‘International code for ships operating in polar waters (polar code)’. See also IMO doc. MSC 94/21, of 26 November 2014, ‘Report of the Maritime Safety Committe on its ninety-fourth session’. 45. Res. MSC.386(94), of 21 November 2014, ‘Amenments to the International Convention for the Safety of Life at Sea, 1974, as amended’. 46. Res. MEPC.264(68), of 15 May 2015, ‘International Code for Ships Operating in Polaw Waters (Polar Code)’. 47. Res. MEPC.265(68), of 15 May 2015, ‘Amendments to the annex of the protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973’. 48. Res. MSC.386(94), of 21 November 2014, ‘Amenments to the International Convention for the Safety of Life at Sea, 1974, as amended’, no. 3. 49. Res. MEPC.265(68), of 15 May 2015, ‘ Amendments to the annex of the protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973’, paragraph 3. 50. Regulation 1, litra a, of Chapter I, Part A, of SOLAS. 51. Ibid., Regulation 2, litra d, 52. Which in turn refers to Guidelines for the Approval of Alternatives and Equivalents as Provided for in Various IMO Instruments (IMO doc. MSC.1/Circ.1455, of 24 June 2013), Guidelines on Alternative Design and Arrangements for SOLAS Chapters II-1 and III (IMO doc. MSC.1/Circ.1212, of 15 December 2006), and Guidelines on Alternative Design and Arrangements for Fire Safety (IMO doc. MSC/Circ.1002, of 26 June 2001), as applicable. 53. Res. MEPC.265(68), of 15 May 2015, ‘Amendments to the annex of the protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973’. 54. Regulation 8.3.3.3 (sub-paragraph 2) of the Polar Code.

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55. Chapter 4, Part I-A of the Polar Code. 56. Regulation 1.5, Part I-A of the Polar Code. 57. Throughout the entire negotiation process, classification societies played an important role, specifically through the establishment of ‘ice classes’ assigned to a ship on the basis of its operational capability and strength of construction. In August 2006, the work of IACS on ice classes culminated in the release of ‘Unified Requirements for Polar Ships’, standardizing global ice classification specifications. Seven ‘polar classes’ were established, under which Polar Class 1 relates to ships in year-round operation in all polar waters, whereas Polar Class 7 relates to ships engaged in summer/autumn operation in thin first-year ice which may include old ice inclusions. Regulations available at www.iacs.org.uk. 58. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 7 July 1978, 1361 UNTS, p. 190. The Convention incorporates the 2010 Manila Amendments to the Annex, which were adopted in Manilla 25 June 2010 and entered into force 1 January 2012. 59. Regulations 4.3.2.1 and 9.3.2.1 of the Polar Code. 60. Regulation 1.1.1, Part II-A of the Polar Code. 61. Regulation 2.1.1, Part II-A of the Polar Code. 62. Regulation 5.2.1, Part II-A of the Polar Code. 63. Regulation 5.2.2, Part II-A of the Polar Code. 64. Regulation 5.2.1, Part II-A of the Polar Code. 65. Regulation 5.2.2, Part II-A of the Polar Code. 66. International Convention for the Control and Management of Ships Ballast Water and Sediments (BWM Convention), 13 February 2004; not yet in force. Text in IMO doc. BWM/CONF/36, of 16 February 2004, ‘Adoption of the final act and any instruments, recommendations and resolutions resulting from the work of the conference’. 67. IMO doc. MEPC.163(56), of 13 July 2007, ‘Guidelines for ballast water exchange in the Antarctic treaty area’. 68. IMO doc. DE 54/WP.3, of 27 October 2010, ‘Development of a Mandatory Code for Ships Operating in Polar Waters’, p. 5. ¨ rg Peschmann, ‘Goal-based standards and risk-based 69. See Rainer Hamann and Jo design’, Ship Technology Research 60 (2013), pp. 46 – 56, and Apostolos Papanikolaou (ed.), Risk-Based Ship Design – Methods, Tools and Applications (Heidelberg, Springer, 2009). See also IMO doc. MSC 80/6/6, of 4 March 2005, ‘Goal-based new ship construction standards’. 70. Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS, p. 331. 71. Ole K. Fauchald, ‘Regulatory frameworks for maritime transport in the Arctic’, in J. Grue and R.H. Gabrielsen (eds), Marine Transport in the High North (Trondheim, Novus, 2011), pp. 73 – 92, p. 82. 72. Yuval Shany, ‘Toward a general margin of appreciation doctrine in international law?’, European Journal of International Law 16/5(2005), pp. 907 – 40, p. 914. 73. As there is nothing in SOLAS, MARPOL and the LOS Convention to prevent States – in their capacity as flag States – from imposing more stringent standards on their vessels, the same cannot be said about a higher level of stringency.

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74. See the Committee on Coastal State Jurisdiction Relating to Marine Pollution of the International Law Association (ILA), Report of the London Conference (2000), p. 32. Available at www.ila-hq.org/ [Accessed 10 March 2016]. 75. Ibid., pp. 45 – 6. 76. Knut E. Skodvin, Freedom of Navigation in the Exclusive Economic Zone under the LOS Convention: Balancing Coastal and Maritime State Interests (Bergen, University of Bergen, 2013), p. 361. 77. Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. See UN Doc. A/CONF.164/37, of 8 September 1995. 78. See the Committee on Coastal State Jurisdiction Relating to Marine Pollution of the International Law Association (ILA), Report of the London Conference (2000), p. 50. Available at www.ila-hq.org/ [Accessed 10 March 2016]. 79. See for instance Article 211, paragraph 5, of the LOS Convention, which provides that coastal States may, for purposes of enforcement, adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to GAIRAS. 80. Lindy S. Johnson, Coastal State Regulation of International Shipping (New York, Oceana, 2004), p. 74. 81. See Article 2, paragraph 2, of Annex VIII, of the LOS Convention. 82. As particularly related to shipping, see Article 22, paragraph 3 (a), Article 41, paragraphs 4 and 5, Article 53, paragraph 9, Article 60, paragraphs 3 and 5, Article 211, paragraphs 1, 2, 3 and 5 (a), Article 217, paragraphs 1, 4 and 7, Article 218, paragraph 1 and Article 220, paragraph 7, of the LOS Convention. 83. As particularly related to shipping, see Article 211, paragraphs 1, 2 and 5, Article 217, paragraphs 1 and 4 and Article 218, paragraph 1, of the LOS Convention. 84. Erik Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Hague, Kluwer Law International, 1998), p. 136. 85. See Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. 4 (Dordrecht, Martinus Nijhoff Publishers, 1985), p. 15. 86. For instance, Regulation 3.3.2 provides that the collective dimensions of the various parts of category A and B ships (‘scantlings’) shall be approved by taking into account ‘standards acceptable to the [IMO]’. By footnote, reference is explicitly made to IACS’ Unified Requirements concerning Polar Class. Likewise for the provisions on machinery installations in Chapter 6 of the safety regulations, where Regulation 6.3.2 stipulates that, in approving materials of exposed machinery and foundations, account shall be taken of standards acceptable to the IMO. Explicit reference, by footnote, is made to IACS’ Unified Requirements. 87. Depending also, of course, of whether the criterion ‘generally accepted’ is fulfilled. 88. Skodvin, Freedom of Navigation in the Exclusive Economic Zone under the LOS Convention: Balancing Coastal and Maritime State Interests, p. 364. 89. Robin R. Churchill and Alan V. Lowe, The Law of the Sea (Manchester, Manchester University Press, 1999), p. 347. 90. For the view that rules and standards are restricted to those laid down in instruments intended to be binding, see, for instance, Alan Boyle, ‘Marine

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91.

92. 93. 94. 95. 96. 97. 98. 99. 100.

101.

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS pollution under the Law of the Sea Convention’, American Journal of International Law 79 (1985), pp. 347– 72, p. 357. While the wording in Article 211, paragraph 5, of the LOS Convention explicitly refers to ‘the competent international organization’ or ‘general diplomatic conference’, no such positive reference is made in Article 21, paragraph 2, concerning rules on design, construction, manning, or equipment. Skodvin, Freedom of Navigation in the Exclusive Economic Zone under the LOS Convention: Balancing Coastal and Maritime State Interests, p. 362. Ibid., p. 377. See generally Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, pp. 152 – 7. IMO doc MSC.385(94), of 21 November 2014, ‘International Code for Ships Operating in Polar Waters (the Polar Code)’, paragraph 2. Res. MSC.386(94), of 21 November 2014, ‘Amenments to the International Convention for the Safety of Life at Sea, 1974, as amended’. Res. MEPC.265(68), of 15 May 2015, ‘Amendments to the annex of the protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973’. Bernard H. Oxman, ‘The duty to respect generally accepted international standards’, New York University Journal of International Law and Politics 24 (1991), p. 152. Skodvin, Freedom of Navigation in the Exclusive Economic Zone under the LOS Convention: Balancing Coastal and Maritime State Interests, p. 383. See generally Ted McDorman, ‘A note on the potential conflicting treaty rights and obligations between the IMO’s Polar Code and article 234 of the Law of the Sea Convention’, in S. Lalonde and T. L. McDorman (eds), International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand (Nijhoff, 2015), pp. 141– 59. Fauchald, ‘Regulatory frameworks for maritime transport in the Arctic’, p. 83.

PART III THE ARCTIC COUNCIL

CHAPTER 9 THE ARCTIC COUNCIL BETWEEN NATIONAL AND INTERNATIONAL GOVERNANCE Svein Vigeland Rottem1

Introduction The Arctic Council is often referred to as being the most important international forum in the Arctic. By setting up a permanent secretariat in Tromsø, Norway, and signing the first internationally binding agreement created under the auspices of the Council, it has increased its political visibility. The Agreement on Aeronautical and Maritime Search and Rescue in the Arctic (hereafter the SAR Agreement) was signed at the May 2011 ministerial meeting at Nuuk, Greenland;2 the permanent secretariat was officially opened in conjunction with the Arctic Frontiers Conference, winter 2013.3 There was further evidence of a proactive Arctic Council at the May 2013 ministerial meeting at Kiruna, Sweden, with the signing of a new binding international agreement. This time the agreement dealt with oil spill preparedness and response (Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic hereafter the Oil Spill Agreement).4 Thus, the Arctic Council is considered as an important body, both as a producer of knowledge and as an arena for the drafting of binding international agreements. This chapter uses the agreement on oil spill preparedness and response to exemplify the type of impact one could expect Arctic Council initiatives to have on Arctic governance. Although the agreement was not drawn up by the Council, it was negotiated by the eight permanent members of the Council, and the Council constituted the negotiation framework.

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One question is how the agreement has influenced policy in its field. Some might say it is too early to assess its practical impact. In this chapter, we are therefore equally interested in examining its substance and potential importance and ask what the signing of the Oil Spill Agreement indicates about the balance between international and national governance in the Arctic. Norway is used as an illustrative case and was a driving force behind the agreement signed at the 2013 ministerial meeting at Kiruna. This is not to say the analysis below has no relevance to the other Arctic states. An analysis of the effect of the agreement on national priorities might also tell us something about the wider importance of working together on issues affecting the Arctic and the balance between international and national governance in the Arctic. Thus, the ambition of this chapter is twofold; to explain the reality of the Oil Spill Agreement and what this might tell us about future agreements. And secondly address the balance between international and national governance in the Arctic. A key argument is that the Arctic Council falls somewhere in between. Before we examine the substance of the agreement, it is necessary to present a brief account of the Arctic Council. This to establish the context in which the agreement arose as well as portraying the Council’s evolution from collaborative body tasked with protecting the environment in the North to an arena capable of negotiating binding international agreements.

A Short Story on the Arctic Council In the 1980s the Arctic was marked by the strategic military rivalry between the US and Soviet Union. At the same time, there was growing awareness of the environmental problems affecting the region.5 In his famous Murmansk speech, Mikhail Gorbachev expressed his ambition to change the Arctic into ‘a zone of peace’.6 The stated objective of Canada and the US at the time was also to transform the Arctic into a region of cooperation.7 In September 1989, Finland’s government called on the Arctic states to work together to protect the Arctic environment – the so-called Rovaniemi process.8 It was decided that the various countries’ authorities with a responsibility for the Arctic environment should meet regularly.9 The undertaking came to be known as the Arctic Environmental Protection Strategy (AEPS). In 1995, Canada expressed a wish to see the AEPS expanded into an international organization. This proposal met with resistance, however – the US in particular was sceptical. The Arctic governments agreed then to organize the enterprise as a forum. The Council is a forum without a ‘legal personality’ and therefore not an international organization as such.10

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In 1996, the Arctic Council was officially established through the Ottawa Declaration.11 The statutes governing the Council were decided at the ministerial meeting at Iqaluit, Canada, in 1998.12 A key requirement here is that all decisions in the forum and subordinate working groups are to be made by consensus.13 The actual work of the Council proceeds on three levels: ministerial; senior civil servant (SAOs – Senior Arctic Officials); and working groups. When the Arctic states hold ministerial meetings – which constitute the highest decision making authority and usually occur every second year – they tend to attract the attention of the public. In the early years, member states were frequently represented by civil servants at these meetings. This is no longer the case; the 2011 ministerial meeting at Nuuk in Greenland was attended by both Russian Foreign Minister Sergei Lavrov and US Secretary of State Hillary Clinton. The presence of the two countries’ foreign ministers (John Kerry and Sergei Lavrov) added lustre to the Kiruna meeting, moreover. This is indicative of the Council’s increased importance as a discussion forum in recent years (but also as a launching pad for binding agreements negotiated by the Arctic states). By their declarations from the ministerial gatherings the member states show how they would like the Council to evolve.14 This is where the basic policy underlying the Council’s work finds expression. The participation of the US and Russian foreign ministers gives these statements further political weight.15 At the official level, the so-called SAOs convene at least twice a year. They serve as a liaison between ministerial and workgroup levels. The SAOs are senior civil servants empowered by their respective governments to manage and oversee the work of the Council on a daily basis.16 Nevertheless, most of the work is done in the working groups.17 They are producers of scientific knowledge whose work involves identifying and analysing Arctic challenges.18 Such challenges include everything from mercury levels to guidelines for Arctic shipping. The working groups have been described as the powerhouse of the Arctic Council.19 Another aspect worth emphasizing in this general picture is the voluntary funding of the projects and work of the Council by the member states. This means, among other things, that the working groups need to apply for funding from a variety of sources. Further, programmes and projects must be approved by all member states before they can get underway, and governments can be quite selective when it comes to financing projects. The Council does not have a separate programme budget.20 Member states’ perception of the Council’s role is thus the Council’s real driving force (or counter force).21

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We can subdivide the history of the Council into three periods. In the first period, from 1996 to the mid-2000s, research on Arctic pollution was at the top of the agenda, illustrated by the high levels of toxins and heavy metals. Much of this pollution is carried northwards by ocean and air currents. The working groups submitted (and continue to submit) reports addressing this challenge. Their work has informed climate negotiations22 and international conventions on various contaminants (such as the International Mercury Convention23 and Stockholm Convention on Persistent Organic Pollutants – POPs).24 Several working groups (including Protection of the Arctic Marine Environment (PAME) and Arctic Monitoring and Assessment Programme (AMAP)) are continuing to work on these conventions as part of their principal activity.25 Climate change received greater attention in the work of the Council in the early 2000s. This was most evident in the most publicized scientific work done under Council auspices, the Arctic Climate Impact Assessment (ACIA).26 According to the assessment, the Arctic is in a unique position with regard to climate change: the first signs of the global consequence of climate change will be felt here. The Council concentrated, thus, in this period on mapping consequences of global warming and on adaptation to climate change. Furthermore, limiting the emission of so-called short-lived greenhouse gases such as soot, methane and tropospheric ozone is one of several particularly challenging items on the mitigation agenda. The Council has nonetheless focused mainly in recent years on what can be done to adapt to climate change and to respond to the growing interest in the Council as a forum for international cooperation. This concerns in particular dealing with the steady rise in activity in the North, a result not least of the retreating sea-ice cover. The agreements on search and rescue and oil spill preparedness and response are just two expressions of this development. As we have also seen, the Arctic has been influential on the foreign policy agendas of the Arctic states and others with a stated interest in the region.27 All of the Arctic states have presented Arctic strategy documents in recent years, for example.28 Canada’s 2009 Arctic Foreign Policy sets out fairly explicitly Canada’s views concerning the Council’s future role. The Council, it says, is the key forum for collaboration on Arctic affairs, and Canada will work to strengthen the forum.29 This positive approach towards the future of the Arctic Council is found in Denmark as well. For example, Denmark would like the Council to become a ‘decision making organization’.30 The strategic documents of the three states without an Arctic coastline (Iceland, Finland and Sweden) also highlight the Council as the central

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forum for addressing Arctic-related issues. They express their respective government’s commitment to strengthening the Council’s role. Key actors have, on the other hand, claimed that non-littoral Arctic states have taken a less active part in the work of the Council (apart from Iceland).31 A point to be made is that the rights and responsibilities of the littoral states (Arctic five) are by virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean much more comprehensive than both non-littoral Arctic states and non-Arctic states, a fact that I’ll come back to later in this chapter. If we look at the two Great-Power members, namely the US and Russia, they are also sympathetic to the part played by the Council. A US presidential directive issued in January 2009 on the Arctic highlights the key role of the Council in facilitating cooperation on Arctic issues.32 This is also emphasized in the US 2013 Arctic Strategy.33 The positive attitude towards the SAR and Oil Spill Agreements are concrete expressions of this. Secretary of State Hillary Clinton’s participation at the 2011 Nuuk meeting and Secretary of State John Kerry’s at the 2013 Kiruna meeting also testify to the importance of the Arctic in US foreign policy.34 In recent years, the Russian government has issued several documents detailing its Arctic strategy, stressing again the importance of the Council to facilitate international cooperation.35 Russia has long wanted to play a key role in the development of search and rescue operations in the Arctic, a concrete expression of which could be seen in their participation in the drafting of the SAR Agreement. Russia’s engagement was also evident in the drafting of the Oil Spill agreement. Working with others, Russia spearheaded the work which eventually resulted in the two agreements. Norway chaired the Council from autumn 2006 to spring 2009, a key period in the formulation of Norway’s High North policy and Arctic strategy. Norwegian interest in the Council rose as well, with the government describing the Arctic Council as ‘the main multilateral forum in the North’.36 Efforts to establish a permanent secretariat at Tromsø were also important. In the recent White Paper on the High North titled ‘The High North: Visions and Strategy’,37 the government underlined its commitment to ensuring a well-functioning Council. Norway’s Arctic policy, the government wrote, was developed mainly in the context of the Council.38 However, there have been disagreements between the littoral states (‘the inner five’) and the three other member states (Iceland, Sweden and Finland) of the Arctic Council. In 2008 an Arctic Ocean conference, organized by Denmark’s Foreign Minister Per Stig Moeller, was set up in Ilulissat, Greenland. The main message from these meetings was that the UNCLOS provides a solid framework for responsible management of the Arctic Ocean

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by the Arctic Coastal states. But, several other questions were on the agenda, including polar oil and mineral exploration, maritime security, transportation and environmental regulations. Other Arctic Council states, namely Iceland, Finland and Sweden, were clear opponents of a development where littoral states narrowed down the Arctic cooperation structure. The Arctic Council was the right venue for discussing pan-Arctic challenges. But, they were not opponents of the main message from the group: The Law of the Sea also applies in the Arctic Ocean. Nevertheless, the differences seems to have been toned down, but they are still of importance when discussing the variable geometry of governance over key issues, a point that will be discussed later in this chapter. In connection with the Kiruna ministerial meeting, however, the question of Observer status for the EU and non-Arctic States headed the agenda. China, India, Italy, Japan, Singapore and South Korea were indeed granted permanent Observer status. The EU as well, but Canada and the EU needed to agree first on the wider terms before the EU’s Observer status was finally confirmed. The tense relationship between Canada and the EU over the matter of ban on seal products was the main cause for the delay.39 Although the EU and Canada seems to have found common ground, the EU is still not granted permanent Observer status. Russia doesn’t want that. In the aftermath of the Russian annexation of Crimea, relations between Russia and the other member states of the Arctic Council have deteriorated. Geopolitical tensions are to some extent spilling over into Arctic cooperation. At the ministerial meeting in Iqaluit, Canada, in April 2015, the ministers agreed to defer decisions on pending Observer applications. Nevertheless, the desire for Observer status on the part of the EU and several non-Arctic states shows that the region is perceived as important by stakeholders outside the geographically limited Arctic region. The Arctic Council is popular. In light of the increased attention the Arctic Council is getting one should ask: Can the role of the Observers be enhanced without undermining the position and influence of the Permanent Participants?40 The involvement of the Arctic indigenous communities on issues of sustainable development and environmental protection has been and is vital in the Arctic Council. There have been concerns about diminution of Permanent Participants, visibility and influence in the Council when an increasing number of Observers are admitted. However, a key provision when reviewing Observer’s contributions to the Arctic Council work is to have demonstrated political willingness as well as financial capability to contribute to the work of the Permanent Participants and other Arctic indigenous groups. How this

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provision has been applied and understood by the Observers should, however, be further debated. It could be maintained that it is in the best interest of the Arctic’s indigenous people that non-Arctic maritime states strengthen their role in Arctic Council meetings and working group sessions. Observers will then be given the opportunity to work on Arctic issues in a cooperative and informed manner. If Observers were not included in Arctic Council work they could turn to forums and processes where indigenous groups are marginalized. Moreover, the standards regulating the Observer’s participation preserve the formal privileges of the Permanent Participants. But increased Observer participation could extend the Council’s agenda to such a degree that the Permanent Participants will have to make stronger prioritizations. Widening the agenda could also put pressure on their capacity, as they have limited human and financial resources. The main point is that the Arctic has undergone a political renaissance, the difference this time being the accent on cooperation rather than conflict.41 In this context, the Council is perceived as a relevant arena by all the Arctic states, permanent participants and many non-Arctic states. Given this positive attitude to working together in the Council, one would believe the forum to have an impact. An analysis of the Oil Spill Agreement is therefore of interest. Furthermore, an analysis of the agreement can also tell us something about what kind of agreement it is, the potential for the AC to go from a decision shaping to a decision making organization and how it fits in between national and international governance in the Arctic.

Arctic Cooperation on Oil Spill The Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic was signed at the 2013 ministerial meeting at Kiruna and is structured along the same line as the SAR Agreement signed in 2011. It defines the respective states’ area of responsibility, ‘cooperation’ being the key word. Oil spill preparedness and response has a relatively long history in the Arctic. The Arctic Council (and for that matter AEPS) was and remains by and large a platform to facilitate cooperation on environmental matters. The extraction and transport of oil and gas are two of the greatest threats facing the Arctic environment at present.42 As the rate of activity grows, so will the gravity of the challenge, according to AMAP, one of the working groups under the Council.43 Recognition of this fact was a central factor in the 2004 – 5 Arctic Climate Impact Assessment (ACIA), and the concern to address the oil spill hazard has also led the Council’s

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working groups to prepare non-binding guidelines for oil and gas operations in the region.44 One of the reasons for this growth in interest in the Arctic is the undiscovered oil and gas deposits in the region. In 2000, the United States Geological Survey presented figures indicating that 24 per cent of the world’s undiscovered oil and gas resources might be found in the Arctic.45 A new report came out in 2008 giving the Arctic a 13 per cent share of undiscovered global oil resources and 31 per cent of undiscovered global gas resources.46 The figures do not say much about when and how these potential resources could be recovered, and at the same time several commentators, we note, are critical to having an oil industry in the Arctic. Furthermore, despite the considerable attention given to Arctic offshore petroleum resources in recent years, actual industrial activity is still very limited. Only two fields are in production on the Arctic continental shelf – one in Norway and one in Russia. The main activity is exploration and there are big differences in the force as well as organization of offshore petroleum activity in various Arctic coastal states. In the US, Canada and Greenland the initiative is clearly in private hands, and only in Greenland does it seem to be strong public support for increased activity. In Norway and Russia the state is more directly involved, through its ownership in dominant companies as well as state development priorities. However each major investment project has its specifics and the speed and force of Arctic offshore petroleum development seem to have abated somewhat in recent years. This is especially true for Alaska, but also in other parts of the Arctic there are concerns over costs – partly caused by stronger attention to environmental protection. Very significant is the gas market revolution which has made Arctic offshore gas much less commercially attractive. This development, however, doesn’t preclude the fact that work on oil spill prevention, preparedness and response is needed in the region. The steady growth in shipping activity in the region is, of course, another relevant aspect of the region’s oil spill scenario. There is wide variation in the burgeoning traffic in the region as a whole. For example, in 2013, 71 ships transited the Northern Sea Route (NSR), a route Russia hopes to establish as its northern export highway.47 Ice conditions in the North-west Passage are much harder, and we are unlikely to see a significant increase in commercial shipping there. But we see a growing interest in North-American Arctic development and tourism.48 Cruise traffic is increasing in Greenlandic waters, too, and has led to a debate on the capacity of coast guards and accident and rescue teams to deal with a major accident. In 2012 and 2013 Denmark/Greenland conducted

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two SAR exercises at some distance from Greenland’s east coast. In both cases, it was a cruise ship that had run into difficulties in a remote Arctic area and an oil spill scenario is also relevant in this context.49 Both exercises were evaluated, and challenges were revealed regarding infrastructure and capacity to cover the vast distances in the Arctic. The evaluations also noted the increased likelihood of extreme weather events caused by a changing climate, and possibly leading to an increase in accidents in the region. What these examples have in common is the light they shed on the challenges we find as to capacity and infrastructure in the Arctic. This insight is also relevant in Norwegian Arctic waters, knowing that 80 per cent of Arctic shipping passes through Norwegian waters.50 The opening of hydrocarbon exploration and development, a large fishing fleet, and increased tourism (especially around Svalbard) put pressure on the existing structure. These pan-Arctic developments have lifted the question of international and regional cooperation on maritime safety on the international political agenda. As already mentioned, the Arctic Council has been exploring the political and scientific ramifications of oil and gas extraction and its likely growth trajectory. This work has been done primarily by the working groups. Norway has been an active leader in this process as well; as early as 2009 the government suggested that member states of the Council should get together and negotiate an oil spill agreement. If we look at the political aspect first, Norway lobbied for an oil spill agreement. So much can be elicited from Norway’s co-chairmanship of the Task Force appointed to draw up the Agreement, and indeed Norway’s 2009 call for such an agreement. There are several reasons Norway would want an oil spill agreement. It could be argued that it enhance the legitimacy of the oil and gas industry in the North.51 There could be, in other words, an element of pre-emption in the drafting of the agreement. At the same time, it could be claimed, an agreement would also indicate an indirect acceptance of oil and gas operations in an area which some would like to see closed to the industry altogether. In 2011, a task force was appointed to draft the text. It was co-chaired by the US, Russia and Norway. And in May 2013 the agreement was signed at the ministerial meeting in Kiruna. If we look at the wording of the Agreement its main objective is stated in Article 1, ‘to strengthen cooperation, coordination and mutual assistance among the Parties on oil pollution preparedness and response in the Arctic in order to protect the marine environment from pollution by oil’.52 It can be described as an agreement on collaboration and coordination. It consists of 23 articles and

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five appendices setting out, among other things, the national contact points and several non-binding operational guidelines. The latter have ‘provisions to guide cooperation, coordination and mutual assistance for oil pollution preparedness and response in the Arctic’. 53 When we explore the ‘impact’ of this Agreement created within the Arctic Council framework we can distinguish two different factors that illustrate the Agreement’s importance and relevance: capacity and organization. They will be discussed as we proceed with our presentation of the Agreement. First, the Agreement refers in the beginning to several other international obligations, each of which provides a framework for oil spill preparedness and response, the most important being the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation,54 and the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties.55 Note is made moreover of the work done under the International Maritime Organization (IMO) and UNCLOS. While it is thus part of a broader regime, it is still the first regional agreement on oil spill preparedness in the Arctic.56 Article 6 expresses the commitment of the Parties in the event of an accident to notify other states likely to be affected.57 How such a system would work in practice, on the other hand, is difficult to say before seeing it in action in a major oil spill that affects more than one state. The Agreement does not detail the resources needed for such operations beyond the minimum national system, namely a ‘national contingency plan or plans for preparedness and response to oil pollution incidents’.58 Second, the Agreement repeatedly urges the signatories to promote cooperation and information exchange. This will be partly reflected in joint exercises in which other stakeholders can take part and where the relevant provisions of the Agreement can be implemented in the field.59 So far, two exercises have been conducted. One by Canada in 2014,60 and one under US lead in 2016.61 Moreover, the Agreement states that ‘each Party shall bear its own costs deriving from its Implementation of this Agreement’.62 The Agreement doesn’t enhance the financial capacity of the Arctic Council. The Agreement does not automatically generate more resources. It does not increase oil recovery capacity in Norway. It was precisely this realization that attracted most attention in connection with the Kiruna meeting, a criticism mounted in particular by dismayed NGOs with WWF and Greenpeace in the forefront.63 They attacked the Agreement precisely for saying nothing about the type of technology and resources the signatories should have put in place. The critics also urged the Parties to work for a ban

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on heavy oil in the region and to address the challenges arising from lack of technology to clean up oil in ice-covered waters.64 Third, no new formal structures beyond the Meetings of the Parties are provided for under the Agreement. 65 The Agreement encourages the signatories to hold such a meeting no later than one year after the Agreement’s entry into force. The meetings can also be used to amend the appendices to the Agreement. These meetings can be held as a rule in conjunction with general Arctic Council meetings. Moreover, relevant operational parties are urged to take part in discussions on matters of importance to the Agreement.66 But no new organizational structures have been put in place to oversee the implementation of the Agreement. It could however be argued that the Emergency Prevention, Preparedness and Response Working Group (EPPR) under the Arctic Council could perform this function. But, as of writing, the signatories themselves must take steps to facilitate and monitor progress. Thus, the countries chairing the Arctic Council have an important role to play in this. Furthermore, we find a number of parallel and complementary mechanisms to promote cooperation. With regard to Norway, collaboration with Russia is perceived as the most important factor, one which according to key stakeholders is successful.67 Norway and Russia signed an agreement on oil spill response in the Arctic as early as 1994, thus providing for a joint, integrated contingency plan for oil pollution in the Barents region, and establishing, among other things, guidelines on notification procedures and joint exercises.68 Other bilateral cooperation mechanisms have subsequently been added to the Agreement.69 It is also the case that nationally formulated preparedness and safety guidelines imposed on the industry tend to dictate how oil and gas exploration shall proceed in the Arctic. It is only in extreme situations that a government will itself lead an oil spill response. The most important job for the different governments is therefore to set standards for the industry. The Arctic states have different regulatory regimes for oil and gas extraction.70 With regard to shipping, work done under the IMO – especially related to the drafting of a Polar Code – is central. But in emphasizing oil spill preparedness and response, national regulations and capacities are key. We can therefore speak of a regulatory regime with different institutions performing complementary functions,71 a point that will be discussed in the next session of this chapter. As to the Oil Spill Agreement negotiated by the Arctic states the main purpose is not to set standards or specify capacity levels, but to coordinate collaboration through the exchange of information and conduct of joint exercises.

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A final observation should be made. The Agreement emphasizes the primacy of Law of the Sea as the leading international framework. The Preamble to the Agreement refers moreover to the need to take relevant provisions in the Law of the Sea into consideration where necessary. Article 16 is even more specific. ‘Nothing in this Agreement shall be construed as altering the rights or obligations of any Party under other relevant international agreements or customary international law as reflected in the 1982 United Nations Convention on the Law of the Sea.’72 Signature states are thus unambiguous on this point. In a Norwegian context, it is a perception that has defined the creation of the government’s Arctic policy. This basic standard is immutable. Summing up, it is difficult to identify any operational consequences of the Agreement (apart from the exercise conducted in Canada). On the one hand, it is arguably immature to conclude about its ‘effect’. On the other hand, it has been criticized for an alleged lack of ambition. It is more important as a symbol of Arctic cooperation, then, than as a practical mechanism. The wording of the Agreement places few obligations on the signatories, and more sophisticated regional agreements, such as those between Norway and Russia, will continue to be more important. But we must be careful not to dismiss the value of the Agreement altogether. It is a part of a larger regulatory universe. Most importantly in this context, it finds expression in exercises and practical cooperation. In this sense, the Agreement can establish and underpin formal and informal interorganizational action, and streamline communication procedures in the event of a major oil spill in the Arctic. For Norway, however, bilateral cooperation with Russia will remain of prime importance, for geographical and institutional reasons.73 One final point: the Agreement itself emphasizes that it shall not hinder cooperation with other states: ‘Any Party may, where appropriate, seek cooperation with States not party to this Agreement that may be able to contribute to activities envisaged in this Agreement, consistent with international law’.74 Again, we see the breadth of the Agreement, stressing exchange of information and joint exercises.

The Arctic Council Between National and International Governance The Oil Spill Agreement is suited to the framework of the Arctic Council. A great deal of time and effort has been spent at the Council over the years on matters of relevance to the agreement. By addressing the necessary

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environmental measures in response to the growth in commercial activity in Arctic waters, the working groups have accumulated a unique expertise. Again, however, this is an agreement centred on information exchange and exercises, and focus is on preparedness and response, not preventive measures. It is limited in scope. One of the main reasons why the agreement has no guidance regarding oil and gas operations in the region is because the five coastal states are wary of limiting their sovereignty in an area of strategic importance.75 Thus, it can be argued that it will have a greater effect when standard of conduct is worked out and implemented for the oil and gas sector, shipping and tourism industries by the national governments and in international forums. The Arctic Council falls somewhere in between. The United Nations Convention on the Law of the Sea (UNCLOS) provides the fundamental international legal framework for governance in Arctic waters. By ensuring rights and responsibilities of coastal states and flag states, and providing a framework for delimiting maritime zones according to their legal status, the UNCLOS remains the core international legal framework for all human activities at sea. As to continental shelf resources, coastal states enjoy exclusive management authority but they are, however, strongly encouraged ‘to harmonize their policies in this connection at the appropriate regional level’.76 As the UNCLOS grants coastal states jurisdiction within their exclusive economic zones (EEZs) coastal states have the right and responsibility to respond to incidents threatening the marine environment at sea. The predominant mode of governance for Arctic petroleum activities will remain unilateral management by each of the five coastal states, and the Law of the Sea gives the coastal state relatively free control in regulation of continental shelf activities, a point that was firmly underlined by the five littoral states at the meeting in Ilulissat in 2008. Nonetheless, several international and transnational norm-making processes have impact on Arctic coastal-state regulation and govern petroleum-related activities, particularly on shipping. When it comes to oil pollution response and safety, we need to distinguish between oil and gas exploration/extraction and transport (connected to oil and gas extraction, but also to shipping as such). The community of stakeholders is diverse and wide-ranging, and government agencies have key roles in the supervision and formulation of standards and regulations.77 The maritime transport activities necessary for exploration, development and production of hydrocarbons are mostly subject to flag state jurisdiction, so effective regulation requires global action under the International

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Maritime Organization (IMO). The IMO has emerged as the primary arena for crafting governance arrangements for Arctic shipping. The IMO activities most relevant to Arctic oil and gas concern platform-related provisions of the MARPOL Convention and the development of a mandatory Polar Code for vessels that operate in ice-covered waters. All the Arctic states are parties to the MARPOL Convention, which places legally binding restrictions on emissions and discharges. The IMO Polar Code negotiations aim at strengthening the substance, scope and form of the 2002 Guidelines for Ships Operating in Arctic Icecovered Waters, and generate more stringent and legally binding requirements concerning vessel construction and equipment, training and discharges. This work responds to the special challenges that we find in Polar areas, namely icing, poor satellite coverage and hydrography and scarce emergency response capacity. Accordingly, work under the auspices of the IMO, including sensible guidelines and expertise on cruise ships navigating in the area,78 along with national measures (such as establishment of shipping lanes) will have the greatest preventive effect. Additionally, some segments of the Arctic shelves are subject to mandatory rules developed under the OSPAR Convention on Marine Pollution in the North East Atlantic. Among the Arctic states, Norway and Denmark/Greenland are bound by these rules, as are 13 non-Arctic coastal states and the European Commission. The Convention prohibits the disposal and abandonment of any offshore installation at sea, with certain exceptions subject to a national decommissioning permit. Moreover, The OSPAR Offshore Oil and Gas Strategy have generated more stringent discharge regulations than those globally applicable under the IMO, especially with respect to chemicals and oil in produced water. Furthermore, even as regards shelf activities the Arctic coastal states have seen it in their interest to commit themselves under several soft-law institutions. And here the Arctic Council is considered important. The Arctic Council is listed in the Yearbook of International Organizations for 2012 – 13 as a ‘limited or regionally-defined’ organization with intergovernmental and international organizations as members. However, the Council lacks the ability to make binding decisions. Thus, the agreement on oil spill preparedness and response was negotiated under the auspices of the Arctic Council between the eight Arctic states. While not definitive criteria, international organizations that can take binding actions and, therefore, provide governance direction generally possesses three features:

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(1) a hard-law instrument of establishment; (2) at least one subordinate unit (or an organ) that can operate independently; and (3) establishment and recognition under international law. The Arctic Council, however, cannot operate separately from the eight Arctic states that created it, nor can it obligate other states or organizations to take specific measures because of its soft-law nature. The Arctic Council, therefore, lacks international legal personality. However, since 2002 the Arctic Council has upheld a set of Arctic Offshore Oil and Gas Guidelines and numerous other soft-law instruments that summarize best environmental practices, and provided a venue for negotiating a legally binding agreement on marine oil pollution preparedness and response. But as argued previously in this chapter the ambition of the agreement should not be exaggerated. The agreement aim to coordinate coastal-state capabilities better, not to limit their exercise of sovereign rights in their management of shelf activities and it is not addressing capacity growth. Tellingly, the mandate of a Task Force set up by the Arctic Council in 2013 to prepare an instrument regarding the prevention of oil spills made no mention of legal commitments.79 Thus, national regulatory standards are among the chief instruments for such prevention. However, work done under the auspices of the Arctic Council has played a role in energizing negotiations within IMO. Hence, also covering preventive measures. Alongside with these binding or non-binding governmental processes, industry-based private governance is increasingly significant for Arctic petroleum activities. A major accident involving a large oil spill in the Arctic would have severe repercussions on the entire scope of industries involved in regional hydrocarbon resource development. Thus, through the Barents 2020 initiative Arctic petroleum players like Gazprom, Rosneft, Statoil and Total have developed standards for oil and gas operations in the Barents Sea that have been fed into the ISO work on cold-region petroleum and natural gas activities.80 What can be drawn from this is that legally binding commitments have become more stringent over time, and coastal states as well as flag states and industry actors are also increasingly observant to non-binding or privately developed norms regarding commercial operations on the Arctic shelves. However, in short, the constraints that international and transnational regimes place on the Arctic coastal states with respect to offshore oil and gas activities are relatively loose and go no further than each coastal state has been ready to

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accept. This is also very much apparent in the work of the Arctic Council and in the Oil Spill Agreement. In the continuation of the argument above, an important question to ask is: what does the agreement tell us about the Arctic Council’s potential to become a platform for the creation of future agreements of significance to developments in the Arctic? In recent debates three issues have received particular attention: fisheries, biodiversity/protected areas and mitigation measures (short-lived climate forcers).81 However, on these issues the Arctic Council is again both too narrow and too broad a platform for deeper cooperation.82 If we look at the fishing industry, the management of these resources is based on migration patterns across the countries’ various economic zones. Regional and often bilateral arenas (such as the Norwegian – Russian Fisheries Commission) would thus be the more natural choice for agreements. If the international fishing fleet moves deeper into the Arctic Ocean, new regulatory mechanisms might be needed. There is great uncertainty regarding the likelihood of new and commercially attractive fisheries in Arctic waters. The Arctic coastal states have taken steps to establish precautionary principles (stating that more research is needed) in the Arctic Ocean.83 The challenge is, however, that large parts of the Central Arctic Ocean is high seas and thus open to access for several countries. The coastal states lack the authority to make decisions about such matters without reaching out to non-Arctic states attracted to fisheries in the Arctic Ocean. Thus, the coastal states recognize the necessity of consulting non-Arctic states. The littoral states and Iceland are affected most by these issues. The Arctic Council is therefore less appropriate as a venue for expanding cooperation resulting ultimately in a binding international agreement on fisheries in the Arctic Ocean. When it comes to issues of biodiversity and protected areas, the biggest challenge is again one of sovereign rights and jurisdiction. Arctic coastal states want to be in the driving seat in their respective economic zones and continental shelf areas. This is also evident in the strategies adopted by the Arctic states for the region. Only Sweden and Finland, which are not Arctic coastal states, are willing to contemplate any regulation of the region under the auspices of the Arctic Council. So when the member states show interest in addressing these issues at an official level in the Council, the Council’s capacity to provide information on which to base decision making is again more important than actually taking decisions by negotiating an agreement between the eight member states. In the early and mid-2000s, the climate received mounting attention in the Council’s work. These developments included a stronger focus on

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mitigation measures. In 2009, a task force was appointed to investigate shortlived climate forcers. A possible ripple effect of setting up a temporary task force of this type would be a recommendation to negotiate an internationally binding agreement under the auspices of the Council. This effort has so far not resulted in such a recommendation. While this may have several reasons, the main argument is that, although the release for example of black carbon in the polar regions is expected to have a greater impact on the climate in polar regions than emissions in non-polar regions, implementing mitigation measures is essentially a global issue. It must and should therefore mainly be addressed in other forums. Again, the Council’s main role is as a producer of knowledge to feed into processes with wider international participation.

Conclusion The significance of the Arctic Council is growing. It would not be particularly controversial to say that Norway (and for that matter the other coastal states) are sympathetic to the idea of expanding the Council and giving it a more prominent role. This positive approach has enabled the creation of a permanent secretariat at Tromsø, and the signing of two binding international agreements negotiated by the eight permanent members of the Council. This notwithstanding, we can conclude that the Agreement in focus here has had little practical impact on Norwegian policy making in the Arctic in terms of expanding capacity and changing organizational structures. That does not mean that common resources, joint exercises and shared experiences, as envisaged by the Agreement, are useless. Nor does it mean that it has no political and symbolic value to the Council as such. The Agreement is anyway mostly what the different governments make of it. The Arctic Council is a useful and pertinent venue for the creation of Arctic policy, in close cooperation with the Observers and Permanent Participants, but perhaps of equal importance, as a producer of knowledge and part of a wider patchwork of international bodies in the Arctic. The work done under the leadership of the Council helps set the Arctic agenda. How much influence agreements negotiated under the auspices of the Arctic Council exert on the everyday activity in the Arctic is, however, as this chapter shows, a more complex question to answer. It is, nevertheless, too early to say whether the Oil Spill Agreement will gain the substantive force some would like it to have, but symbolically it is nonetheless important. In light of climate change and growth of commercial operations in the Arctic, and perceptions of the Council as a vital forum for

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cooperation in the region, it is perhaps not so surprising that the Parties have successfully orchestrated binding international agreements on search and rescue and oil spill preparedness and response. Moreover, although the eight member states have signed two binding international agreements in recent years, it is difficult (and perhaps not particularly useful) to imagine a further expansion of the Council’s operational scope. The Arctic Council will remain to all intents and purposes a ‘decision shaping’ body, more than a ‘decision making’ one, despite the two agreements of recent years, two agreements with a narrow scope stressing coordination and cooperation and not standards and restrictions on Arctic coastal states action in the region. At the same time we must not forget that both states with an Arctic coastline and non-littoral states constitute the Arctic Council and the importance of consulting and discussing Arctic issues with indigenous groups (the Permanent Participants) must be underlined. This doesn’t mean the Council will have no decisive impact on the shape of the Arctic in the years ahead. However, as the analysis in this chapter shows, the agreement has not significantly altered operational conditions in the Arctic. This is not a surprising conclusion given the youth of the agreement, and it would therefore be premature to draw firm conclusions. At the same time, it does not express a desire on the part of the member states of the Arctic Council to press ahead at the same pace with regard to negotiating binding international agreements. The most important thing at the moment is to conduct joint exercises, learn from them and make it as easy as possible for the Arctic coastal states to communicate with each other. Furthermore, the Arctic Council is part of a regime complex of international cooperation (at the global, pan-Arctic, bilateral and public-private level) in the region. The Agreement on oil spill preparedness and response fits well into this picture. UNCLOS provides the fundamental international legal framework for governance in Arctic waters, thus the region is to a large extent what the littoral states make of it. And, it is fair to conclude that the Arctic Council is still in search of its place in the Arctic between international and national governance.

Notes 1. This chapter draws on Svein V. Rottem, ‘The Arctic Council and the Search and Rescue Agreement: The case of Norway’, Polar Record 50/1 (2014), pp. 284 – 92, ‘A note on the Arctic Council agreements’, Ocean Development and International Law 46/ 1 (2015), pp. 50 – 9, and ‘The Arctic Council in Arctic

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3. 4.

5. 6.

7. 8. 9.

10. 11.

12.

13. 14. 15.

16.

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governance: The significance of the Oil Spill Agreement’, in L. Jakobsen and N. Melvin (eds), The New Arctic Governance (Oxford, Oxford University Press, 2016), pp. 147 – 74. Agreement on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011. Available at http://arctic-council.npolar.no/accms/export/sites/default/en/ meetings/2011-nuuk-ministerial/docs/Arctic_SAR_Agreement_EN_FINAL_for_ signature_21-Apr-2011.pdf [Accessed 8 February 2017]. During the joint Nordic presidency of the Council from 2006 to 2013, the Council had a temporary secretariat at Tromsø. The official opening of the permanent secretariat took place in May 2013, however. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013. Available at http://www.arctic-council.org/eppr/agreementon-cooperation-on-marine-oil-pollution-preparedness-and-response-in-the-arctic/ [Accessed 8 February 2017]. Torbjørn Pedersen, ‘Debates over the role of the Arctic Council’, Ocean Development and International Law 43/2 (2012), pp. 146– 56. Mikhail Gorbachev, The Speech in Murmansk at the ceremonial meeting on the occasion of the presentation of the Order of Lenin and the Gold Star Medal to the city of Murmansk, 1 October 1987. Available at https://www.barentsinfo.fi/docs/ Gorbachev_speech.pdf [Accessed 8 February 2017]. Pedersen, ‘Debates over the role of the Arctic Council’. Ibid. The eight circumpolar countries are USA, Russia, Canada, Sweden, Finland, Denmark (including Greenland), Norway and Iceland. Five states have coastal state rights in Arctic areas: the US, Russia, Canada, Denmark/Greenland and Norway. Evan T. Bloom, ‘Establishment of the Arctic Council’, American Journal of International Law 93/3 (1999), pp. 712 – 22. In addition to the eight Arctic states, a number of indigenous organizations have status as permanent participants of the Council. Several states and organizations are also accredited observers. For information on the organizational structure, see www.arctic-council.org. Arctic Council, Arctic Council Rules of Procedure (1998). Available at https:// oaarchive.arctic-council.org/bitstream/handle/11374/940/2015-09-01_Rules_ of_Procedure_website_version.pdf?sequence¼ 1 [Accessed 8 February 2017]; David Scrivener, ‘Arctic environmental cooperation in transition’, Polar Record 35/192 (1999), pp. 51 – 8. Ibid. Oran R. Young, ‘If an Arctic Ocean treaty is not the solution, what is the alternative?’, Polar Record 47/4 (2011), pp. 327 – 34, p. 333. Foreign Minister Sergey Lavrov didn’t attend the Ministerial Meeting in Iqaluit, Canada, April 2015. This could be seen in light of the ongoing crisis in Ukraine. However, in this chapter I will not speculate any further as to why Lavrov didn’t attend. The Ukraine conflict’s spill-over into Arctic affairs is clearly important, but will not be discussed here. Olav S. Stokke, ‘Regime interplay in Arctic shipping governance: Explaining regional niche selection’, International Environmental Agreements: Politics, Law and Economics 13/1 (2013), pp. 65 – 85, p. 72.

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17. The Arctic Council has six working groups. For an overview, see http://www.arcticcouncil.org/index.php/en/about-us/working-groups. 18. Paula Kankaanpa¨a¨ and Oran R. Young, ‘The effectiveness of the Arctic Council’, Polar Research 31/0 (2012), pp. 1– 14. Available at http://www.polarresearch.net/ index.php/polar/article/view/17176 [Accessed 8 February 2017]. 19. Olav S. Stokke, ‘En indre sirkel i Arktisk Ra˚d?’, Nordlys, 28 April 2010. Available at http://www.fni.no/doc&pdf/OSS-nordlys-2010-04-28.pdf [Accessed 8 February 2017]. 20. Stokke, ‘Regime interplay in Arctic shipping governance: Explaining regional niche selection’, p. 72. 21. Rottem, ‘The Arctic Council and the Search and Rescue Agreement: The case of Norway’. 22. Se´bastien Duyck, ‘Which canary in the coalmine? The Arctic in the international climate change regime’, in T. Koivurova, G. Alfredsson and W. Hasanat (eds), The Yearbook of Polar Law, Vol. 4 (Leiden, Brill, 2012), pp. 583– 617. 23. Minamata Convention on Mercury, 10 October 2013. The Convention has not entered into force as of February 2017. 24. Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 UNTS 119. 25. See Kankaanpa¨a¨ and Young, ‘The effectiveness of the Arctic Council’ for an analysis of the working groups’ perception of their role and importance in international cooperation. 26. Arctic Monitoring and Assessment Program (AMAP), Conservation of Arctic Flora and Fauna (CAFF) and International Arctic Science Committee (IASC), Arctic Climate Impact Assessment (ACIA) (Cambridge, Cambridge University Press, 2005). The idea for an assessment was aired in the mid-1990s, though the work didn’t start until around 2000. 27. Alyson J. K. Bailes and Lassi Heininen, Strategy Papers on the High North or the Arctic: A Comparative Study Analyses (Reykjavik, 2012). 28. For an overview of these strategies, see http://www.arctic-council.org/index.php/ en/document-archive/category/12-arctic-strategies. 29. Global Affairs Canada, Statement on Canada’s Arctic Foreign Policy (Ottawa, Global Affairs Canada, 2010). Available at http://www.international.gc.ca/ polar-polaire/assets/pdfs/CAFP_booklet-PECA_livret-eng.pdf [Accessed 8 February 2017]. 30. Danish Ministry of Foreign Affairs, Kingdom of Denmark Strategy for the Arctic 2011 –2020 (Copenhagen, Danish Ministry of Foreign Affairs, 2011), p. 52. 31. Rottem, ‘A note on the Arctic Council agreements’. 32. White House, National Security Presidential Directive/Homeland Security Presidential Directive 25 (NSPD 66/HSPD 25) (Washington, DC, 2009). Available at http://georgewbush-whitehouse.archives.gov/news/releases/2009/01/20090112-3. html [Accessed 8 February 2017]. 33. White House, National Strategy for the Arctic Region (Washington, DC, 2013). Available at http://www.whitehouse.gov/sites/default/files/docs/nat_arctic_ strategy.pdf [Accessed 8 February 2017]. 34. See also Pedersen, ‘Debates over the role of the Arctic Council’, for a detailed account of US involvement in the Council. It could be argued that the change over from a Republican to a Democratic administration could have caused a shift in US foreign policy in favour of the Arctic. Others have pointed to the personal

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35. 36.

37.

38. 39. 40.

41. 42.

43. 44.

45. 46. 47.

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involvement of the two foreign ministers. John Kerry’s focus on issues concerning the ocean’s importance and status has also been mentioned. The Macondo oil spill also raised the political stakes in the United States, see Rottem, ‘A note on the Arctic Council agreements’. Katarzyna Zysk, ‘Russia’s Arctic Strategy: Ambitions and constraints’, Joint Force Quarterly 57 (2010), pp. 102 –10. Norwegian Ministry of Foreig Affairs, Proposisjon til Stortinget (forslag til stortingsvedtak) for budsjetta˚ret 2010, Proposition to the Storting No. 1 (2009– 10) (Oslo, Ministry of Foreign Affairs, 2009), p. 106. Available at https://www. regjeringen.no/contentassets/96647358e0474baabad41cfc346fb832/no/pdfs/ prp200920100001_uddddpdfs.pdf [Accessed 21 February 2017]. Norwegian Ministry of Foreign Affairs, Report No. 7 (2011–12) The High North – visions and strategies (Oslo, Ministry of Foreign Affairs, 2012). Available at https:// www.regjeringen.no/contentassets/a0140460a8d04e4ba9c4af449b5fa06d/en-gb/ pdfs/stm201120120007000en_pdfs.pdf [Accessed 8 February 2017]. Ibid., p. 78. For an analysis of this conflict, see Njord Wegge, ‘Politics between science, law and sentiments. Explaining the European Union’s ban on trade with seal products’, Environmental Politics 22/2 (2013), pp. 255 – 73. The following organizations are Permanent Participants of the Arctic Council: Arctic Athabaskan Council (AAC), Aleut International Association (AIA), Gwich’in Council International (GCI), Inuit Circumpolar Council (ICC), Russian Association of Indigenous Peoples of the North (RAIPON) and the Saami Council (SC). For more information see: http://www.arctic-council.org/index.php/en/ about-us/permanent-participants. The Ukraine-crisis has of course consequences for Arctic cooperation. In this chapter, however, this will not be discussed further. Arctic Monitoring and Assessment Programme (AMAP), AMAP Assessment Report: Arctic Pollution Issues (Oslo, AMAP, 1998). Available at http://www.amap.no/ documents/doc/amap-assessment-report-arctic-pollution-issues/68 [Accessed 8 February 2017]; Protection of the Arctic Marine Environment (PAME), Arctic Offshore Oil & Gas Guidelines (PAME, 2002). Available at http://www.pame.is/ images/03_Projects/Offshore_Oil_and_Gas/Offshore_Oil_and_Gas/ArcticGuide lines.pdf [Accessed 8 February 2017]. Arctic Monitoring and Assessment Programme (AMAP), Arctic Oil & Gas (Oslo, AMAP, 2007). Available at http://www.amap.no/oil-and-gas-assessment-oga [Accessed 8 February 2017]. Protection of the Arctic Marine Environment (PAME), Arctic Offshore Oil & Gas Guidelines (PAME, 2002). Available at http://www.pame.is/images/ 03_Projects/Offshore_Oil_and_Gas/Offshore_Oil_and_Gas/ArcticGuidelines.pdd [Accessed 8 February 2017]. US Geological Survey, USGS. World Petroleum Assessment (2000). Available at https://pubs.usgs.gov/fs/fs-062-03/FS-062-03.pdf [Accessed 8 February 2017]. Ibid. Malte Humpert, Arctic shipping: An analysis of the 2013 Northern Sea Route season (The Arctic Institute, 2013). Available at http://www.thearcticinstitute. org/wp-content/uploads/2014/10/Arctic-Shipping-Analysis-of-the-2013-NSRSeason.pdf [Accessed 8 February 2017].

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48. Office of the Auditor General in Canada, Report of the Commissioner of the Environment and Sustainable Development. Chapter 3 Marine Navigation in the Canadian Arctic (Ottawa, Office of the Auditor General, 2014). Available at http://www.oag-bvg.gc.ca/internet/docs/parl_cesd_201410_03_e.pdf [Accessed 8 February 2017]. 49. Joint Arctic Command, Search and Rescue Exercise Greenland Sea 2013 (SAREX 2013). Final report (2013). Available at http://www2.forsvaret.dk/omos/organisation/ arktisk/SAREX/Pages/SAREX.aspx [Accessed 8 February 2017]. 50. Norwegian Ministry of Foreign Affairs, Norway’s arctic policy for 2014 and beyond (Oslo, Ministry of Foreign Affairs, 2014). Available at https://www. regjeringen.no/globalassets/departementene/ud/vedlegg/nord/nordkloden_en. pdf [Accessed 8 February 2017]. 51. Rottem, ‘A note on the Arctic Council agreements’. 52. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013. 53. Ibid., Appendix IV. 54. International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), 30 November, 1990, 1891 UNTS 77. 55. International Convention Relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties, 29 November, 1969, 970 UNTS 211. 56. Sergei Vinogradov, ‘The impact of the Deepwater Horizon: The evolving international legal regime for offshore accidental pollution prevention, preparedness and response’, Ocean Development and International Law 44/4 (2013), pp. 335– 62, p. 351. 57. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013. 58. Ibid., Article 4. 59. Ibid., Article 13 (3– 4). 60. For further information on the exercise see: https://oaarchive.arctic-council.org/ handle/11374/404. 61. For further information on the exercise see: http://arctic-council.org/eppr/wpcontent/uploads/2016/10/2016_09_04_EPPR_Report_SAOs_Portland.pdf. 62. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013, Article 15 (1). 63. It is interesting to note that the WWF was represented on the Norwegian delegation drafting the Agreement and enjoys observer status in the Arctic Council. 64. Rottem, ‘A note on the Arctic Council agreements’. 65. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013, Article 14. 66. Ibid., Article 14 (2). 67. Are K. Sydnes and Maria Sydnes, ‘Norwegian – Russian cooperation on oil-spill response in the Barents Sea’, Marine Policy 39/1 (2013), pp. 257 – 64, p. 260. 68. Norwegian Ministry of Fisheries and Coastal Affairs, Report No. 14 (2004 –5) Pa˚ den sikre siden – sjøsikkerhet og oljevernberedskap’ (Oslo, Ministry of Fisheries and Coastal Affairs, 2005). Available at https://www.regjeringen.no/no/ dokumenter/stmeld-nr-14-2004-2005-/id406094/ [Accessed 8 February 2017].

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69. Sydnes, A. and Sydnes, M., ‘Norwegian – Russian cooperation on oil-spill response in the Barents Sea’, p. 260. 70. Jennifer Dagg, Peggy Holroyd, Nathan Lemphers, Randy Lucas and Benjamin Thibault, Comparing the offshore drilling regulatory regimes of the Canadian Arctic, the U.S., the U.K., Greenland and Norway (Pembina Institute, 2011). 71. Stokke, ‘Regime interplay in Arctic shipping governance: Explaining regional niche selection’. 72. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013, Article 16. 73. Maria Sydnes and Are K. Sydnes, ‘Oil spill emergency response in Norway: Coordinating interorganizational complexity’, Polar Geography 34/4 (2011), pp. 299 –329. 74. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013, Article 17. 75. Olav S. Stokke, ‘Environmental security in the Arctic. The case for multilevel governance’, International Journal 66/4 (2011), p. 847. 76. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 105, Article 208. 77. For an introduction to Norwegian regulations, see the factsheet issued by the Norwegian Ministry of Petroleum and Energy in 2013 (OED 2013), available at http://npd.no/en/Publications/Facts/Facts-2013/. For a pan-Arctic analysis see Dagg et al., Comparing the Offshore Drilling Regulatory Regimes of the Canadian Arctic, The U.S., the U.K., Greenland and Norway (Pembina Institute, 2011). 78. The work done under the auspices of the Association of Arctic Expedition Cruise Operators is also relevant in this regard. See http://www.aeco.no/. 79. Olav S. Stokke, ‘The promise of involvement: Asia in the Arctic’, Strategic Analysis 37/4 (2013), pp. 474 – 9. 80. International Organization for Standardization (ISO), ISO 19906:2010 Petroleum and natural gas industries – Arctic offshore structures (2010). Available at http://www.iso.org/iso/catalogue_detail.htm?csnumber¼ 33690 [Accessed 8 February 2017]. 81. Rottem, ‘A note on the Arctic Council agreements’. 82. Stokke, ‘Environmental security in the Arctic. The case for multilevel governance’, p. 836. 83. See e.g. http://www.nytimes.com/2013/04/17/world/agreement-would-regulatefishing-in-arctic-waters.html?_r¼2&.

CHAPTER 10 THE ARCTIC COUNCIL AND BIODIVERSITY Christian Prip1

Introduction As reflected in the opening sentence of the Arctic Biodiversity Assessment (ABA) 2013,2 attention to the unique biodiversity of the Arctic has increased dramatically in recent years. One reason is the growing understanding of the significant contributions to the physical, chemical and biological balance of our planet provided by the vast Arctic wilderness areas where ecosystem processes continue to function in a largely natural state. Growing demands from outside and within the region for large-scale exploitation of Arctic oil and gas and other mineral resources have led to further awareness of the fragility of Arctic ecosystems. Arctic biodiversity is a matter of global concern, with both the Arctic and the broader international community having a mutual interest in cooperation to ensure its conservation and sustainable use.3 Biodiversity is one of the focal areas of cooperation under the Arctic Council (AC),4 dealt with mainly under its working group on Conservation of Arctic Flora and Fauna (CAFF),5 but also as a concern to be taken into account by other AC working groups. Beyond doubt, work carried out under CAFF has helped to generate new knowledge and awareness of Arctic biodiversity within and beyond the circumpolar region. Stewardship of Arctic biodiversity is a particular responsibility of the Arctic states.6 However, in many aspects the Arctic constitutes a range of border transcending ecosystems with their own distinct features: threats to these ecosystems must be dealt with by all the states sharing them, through

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cross-border responses. Focusing on the work of CAFF, this chapter explores how conservation and sustainable use of biodiversity is being addressed by the AC as a pan-Arctic issue. To what extent does the AC provide institutional and legal means for joint action, in a time of increasing threats and global attention to Arctic biodiversity? That is the focus of this chapter, not the performance of the individual Arctic states in protecting Arctic biodiversity. Arctic cooperation and governance in general are well covered in the literature. Arctic environmental cooperation has been dealt with to some extent, but there has been only modest coverage of Arctic cooperation specifically related to biodiversity.7 This chapter begins with an overview of how biodiversity has been institutionally addressed in the Arctic context, including an outline of the development and trends in CAFF over the years. Specific attention is paid to cooperation aimed at the creation of a pan-Arctic network of protected areas, which will require political commitment and decision making across Arctic states to be successful. Multilateral regimes relevant for Arctic biodiversity and AC/CAFF’s alignment with these are examined, and a brief comparative review of parallel processes and events outside the biodiversity context is provided.

Working Group on Conservation of Arctic Flora and Fauna (CAFF) Background The CAFF working group was established in 1991 under the Arctic Environmental Protection Strategy (AEPS), a precursor to the Arctic Council, and was officially inaugurated in April 1992.8 Recognizing their shared ecosystems with its unique flora and fauna, the eight Arctic States agreed to ‘cooperate for the conservation of Arctic flora and fauna, their diversity and their habitats’,9 and established the CAFF programme as a ‘distinct forum for scientists, indigenous peoples and conservation managers . . . to exchange data and information on issues such as shared species and habitats and to collaborate, as appropriate for more effective research, sustainable utilization and conservation’.10 CAFF objectives are: . .

to collaborate for more effective research, sustainable utilization and conservation; to cooperate to conserve Arctic flora and fauna, their diversity and their habitats;

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to protect the Arctic ecosystem from human-caused threats; to seek to develop more effective laws, regulations and practices for flora, fauna and habitat management, utilization and conservation; to work in cooperation with the Indigenous Peoples of the Arctic; to consult and cooperate with appropriate international organizations and seek to develop other forms of cooperation; to regularly compile and disseminate information on Arctic conservation; and to contribute to environmental impact assessments of proposed activities.11

CAFF predated the UN Conference on Environment and Development (UNCED) in Rio de Janeiro in 1992 and thereby also the adoption of Agenda 21 and the Convention on Biological Diversity (CBD). However, the first CAFF work programme was established in 1993 after the UNCED and reflected this important development in international environmental governance by including as one of its objectives to provide ‘a mechanism to develop common responses on issues of importance for the Arctic ecosystem, such as development and economic pressures, conservation opportunities and political commitments (e.g. to international Conventions, the Rio Declaration and Agenda 21, the World Charter for Nature)’.12 When the Arctic Council was established in 1996, CAFF became one of its working groups. Soon afterwards, CAFF started to work on a thematic basis supported by expert sub-groups and a lead-country approach – an approach followed throughout CAFF’s history. Themes include flora, seabirds, protected areas, stressors of biodiversity and integration of indigenous peoples and their knowledge. In the ensuing years, various strategic documents were released with an international focus and responding to the CBD, which had recently entered into force.13

Arctic Council with CAFF as a forum for scientific cooperation on biodiversity The Arctic Climate Impact Assessment (ACIA) 2005,14 prepared by CAFF, the Arctic Monitoring and Assessment Programme (AMAP) and the International Arctic Science Committee (IASC), provided important guidance for subsequent biodiversity activities. In addition to focusing on the serious effects of climate change on biodiversity and ecosystems at a time when there was little global attention to this relationship, the ACIA highlighted the lack of knowledge about Arctic ecosystems, and made a range of recommendations. As a result, CAFF changed its focus, from a largely species- and habitat-centred approach to an ecosystem-based approach

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consistent with the launch of the global Millennium Ecosystem Assessment in 2005 and the growing international attention to ecosystems and the services they provide.15 ACIA also marked a gradual shift in CAFF’s focus from cooperation on administrative and political issues to scientific cooperation through monitoring and assessment activities.16 The ACIA recommendations contributed to the development of CAFF’s Circumpolar Biodiversity Monitoring Programme (CBMP), an international network of scientists, government agencies, indigenous organizations and conservation groups working together to improve the detection, understanding and reporting of Arctic biodiversity status and trends.17 The CBMP focuses on the major ecosystems of the Arctic – freshwater, coastal, marine and terrestrial. The culmination of CAFF as a forum for scientific cooperation and knowledge generation came with the release of the Arctic Biodiversity Assessment (ABA) at the May 2013 Arctic Council Ministerial Meeting in Kiruna, Sweden.18 ABA provides a comprehensive description of the status and trends of Arctic biodiversity and describes stressors, knowledge gaps and conservation and research priorities. The presentation is divided into five components: (1) (2) (3) (4) (5)

Arctic Biodiversity Trends 2010 – selected indicators of change; scientific assessment; scientific synthesis; report for policy makers; and Life Linked to Ice: a guide to sea-ice associated biodiversity in a time of rapid change.

The report for policy makers offers 17 recommendations for dealing with the key findings, grouped under three cross-cutting themes: (1) the significance of climate change as the most serious underlying driver of overall change in biodiversity; (2) the necessity of taking an ecosystem-based approach to management; (3) the importance of mainstreaming biodiversity by making it integral to other policy fields, for instance by ensuring biodiversity objectives are considered in development standards, plans and operations.

CAFF and protected areas Another indication of CAFF’s shift in focus from policy formulation and application to monitoring and assessment activities was the de facto

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termination of work on a Circumpolar Protected Areas Network (CPAN) around 2004. This had been an early high priority of CAFF with quite ambitious policy objectives.19 Already in 1991 the Arctic Council forerunner, the Arctic Environmental Protection Strategy (AEPS), had identified the development of a network of Arctic protected areas as an important work area. The aim was set out in greater detail at the inaugural meeting of CAFF in 1992 and was politically endorsed by a ministerial meeting in 1993: ‘the Ministers requested the CAFF Working Group to Prepare a Plan for developing a network of Arctic protected areas that will ensure necessary protection of Arctic ecosystems, recognize the role of indigenous cultures, and provide a common process by which Arctic countries may advance formation of circumpolar protected areas’.20 A CPAN Strategy and Action Plan was developed which highlighted the Arctic environment as being of global significance and requiring a regional cooperative effort for its conservation.21 CPAN was also seen as a response to Convention on Biological Diversity (CBD), which had recently entered into force, and its call upon parties to establish a system of protected areas (Art. 8) as well as the CBD recommendations ‘that countries examine means of implementing the Convention on a regional level’.22 Various actions were identified, to be taken at the national and regional levels. As described by Koivurova, in the first years of CAFF there was clear momentum for promoting CPAN. A standing committee for CPAN was established, which the USA was nominated to lead. However, in 2004 CPAN came to a halt when its co-chairs resigned and no other Arctic state was prepared to take over the leadership.23 According to the Arctic Council website, CPAN is ‘dormant’.24 Reports of CAFF meetings do not clearly reveal the underlying causes of CPAN’s termination, but CAFF stakeholders have indicated to this author that, due to sovereignty consideration, some Arctic states were not politically prepared to engage in work that would affect the governance of their national protected areas and lead towards a transboundary network.25 Similarly, Koivurova argues that the termination of CPAN could be seen as an acknowledgement by CAFF that, with limited resources and government officials represented at expert rather than political level, the working group was better suited for scientific cooperation free of the ‘policy’ aspects of CPAN.26 Koivurova mentions another reason cited by stakeholders: that CPAN ‘competed’ with and was overtaken by the CBD Programme of Work on

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Protected Areas adopted in 2004 at COP7,27 which also aimed at establishing networks of protected areas and reporting requirements for countries. That argument, however, seems to overlook the fact that the CBD Programme of Work generally deals with national and regional networks of protected areas. Hence, the CBD as well as other global environmental forums have increasingly called for regional implementation mechanisms, for which AC/ CAFF could be well suited.28 Protected areas were again addressed by the ABA 2013. It recommends advancing the protection of large areas of ecologically important marine, terrestrial and freshwater habitats, taking into account ecological resilience in a changing climate and building upon existing international and national processes and networks (Policy Recommendation 5). As regards marine protected areas, a 2013 assessment (AMSAIIC) identified 95 areas across each of 16 Arctic large marine ecosystems, covering 12 million km2 – more than half the total ice-covered area of the marine Arctic – as marine areas of heightened ecological and cultural significance.29 AMSAIIC was carried out by CAFF in collaboration with its two sister AC working groups, the Arctic Monitoring and Assessment Programme (AMAP) and the Sustainable Development Working Group (SDWG). While these sea areas were identified as sensitive to shipping activities, they were selected on the basis of their ecological importance to fish, birds and/or mammals. Thus, the assessment could serve as the basis for identifying sea areas in need of protection from impacts beyond shipping as well. The AMSAIIC is also relevant to the CBD-initiated global process for identifying and describing Ecologically or Biologically Sensitive Sea Areas (EBSAs) around the world.30 Moreover, in 2015 the Working Group on the Protection of the Marine Environment (PAME) issued a Framework for a Pan-Arctic Network of Marine Protected Areas (MPA).31 This sets out a common vision for Arctic cooperation in MPA network establishment and management, based on international best practices and previous Arctic Council initiatives. It aims to support Arctic states in developing their MPA networks and charting a course for future collaborative planning, management and actions. Despite their non-binding nature, these developments, with the ABA recommendation on protected areas, the AMSAII identification of sensitive marine ecosystems and now the MPR framework for a network of marine protected areas, indicate a return to formulating policies on protected areas in the Arctic.

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Latest developments in the Arctic Council and CAFF related to biodiversity The increasing global awareness of Arctic biodiversity was clearly evident at the Arctic Biodiversity Congress in Trondheim, Norway, in December 2014 – the largest gathering in the history of the Arctic Council.32 The 450 participants comprised a mix of scientists, policy makers, government officials and representatives of indigenous peoples, industry and civil society. The two main challenges for the Arctic Council, as expressed by presenters at the Congress, were to develop an umbrella strategy for sustainable development that would include, as a core component, conservation and sustainable use of biological resources, while maintaining traditional ways of life for Arctic peoples; and to speed and scale up actions to implement the recommendations of the ABA and international commitments on biodiversity such as the Aichi targets under the CBD.33 Among actions suggested at the Congress was the development of ‘binding agreements related to the conservation and/or sustainable use of biodiversity’ – however, with no further specification. Another action suggested was the expansion of both the marine and terrestrial protected areas network and monitoring its effectiveness. Moreover, various actions were suggested for mainstreaming biodiversity concerns across sectoral policies and activities. These include biodiversity as a fundamental component of Environmental Impact Assessments, Strategic Environmental Assessments and risk assessments; mapping biodiversity hot spots and biologically and ecologically sensitive areas on a scale appropriate for industry to use in planning; inclusion of biodiversity in national accounting so that the true value of healthy Arctic ecosystems can be recognized; and expansion of the responsibility for taking care of biodiversity and implementing ecosystem-based management in marine, terrestrial, freshwater and coastal ecosystems.34 The report of the co-chairs also noted diverging views on the role of the AC and CAFF. While many Conference participants felt that this should not go beyond assessments, monitoring and data management, there were also many who felt that the AC and CAFF should now move towards policy formulation.35 Also in 2015, CAFF published a plan for implementation of the 17 ABA recommendations organized in two-year implementation periods.36 The plan is presented as a living document to be reviewed and updated every two years. It was developed in cooperation with other AC working groups and external stakeholders and applies to the AC as a whole. CAFF will prepare annual reports on progress towards implementation. Key

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actions for 2015 – 17 include: mainstreaming biodiversity, reducing stressors on migratory birds, ecosystem services evaluation, communications and outreach, adaptation to climate change, invasive species, pollution, safeguarding critical areas, improving knowledge and public awareness and developing indicators. Although the implementation plan is meant to concern what are referred to as the ABA policy recommendations, the plan only to a very limited extent provides for the development of policies, norm-setting or other outcomes aimed at achieving a direct causal impact on the conservation and sustainable use of Arctic biodiversity. Once again, the vast majority of the actions mentioned concern generating new knowledge, guidance, recommendations, public awareness, data collection and outreach activities by CAFF or other AC bodies, sometimes in collaboration with individual Arctic states. One exception to that pattern is a recommendation for the third phase of the plan (2017 – 19) to ‘Develop, as needed, binding and/or voluntary agreements/standards that work towards the harmonization of industry-specific and cross-industry standards related to the conservation and/or sustainable use of biodiversity’.37 Another exception concerns phase two (2015 – 17) to ‘Execute international exercises under the Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic and maintain and update the Operational Guidelines’.38 Here the executive character of the action is directly linked to and authorized by one of the two legally binding agreements concluded under AC auspices. On the whole, however, the limited orientation of the implementation plan towards ‘action on the ground’ indicates that the Arctic Council is still not ready to move from scientific cooperation and policy shaping to policy making in the field of biodiversity.

International Agreements Related to Biodiversity, and Arctic Alignment with These Several multilateral agreements to which Arctic states to varying degrees are parties include explicit and implicit obligations for states to conserve and sustainably use biodiversity. These agreements have increasingly come to focus on Arctic biodiversity. From the beginning, CAFF viewed its activities as an Arctic response to the global biodiversity commitments included in these agreements. Let us now examine the main global agreements as regards framing AC work on biodiversity, with special emphasis on the Convention on Biological Diversity and correlations between the work of AC/CAFF and the international agreements.

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The Convention on Biological Diversity (CBD) The CBD was signed by a large number of states at the Rio Summit (UNCED) in 1992; it entered into force in 1993 and has now almost universal global membership – including all Arctic states except the USA. Unlike earlier nature conservation conventions, which covered either threatened species, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973) or the Convention on Migratory Species (CMS) (1979), or threatened habitats, such as the Ramsar Convention (1971), the CBD covers all aspects of biodiversity: the diversity of ecosystems, species and genetic diversity. Its objectives are the conservation and sustainable use of biodiversity and the fair and equitable sharing of benefits from the use of genetic resources. This represents a shift of paradigm from traditional nature conservation to view biodiversity in light of and as an important component of sustainable development. Also as a new concept, the CBD includes provisions to protect the traditional knowledge, innovations and practices of indigenous and local communities in relation to biodiversity. Although the CBD does not itself address regional approaches to implementation, many of its COP decisions do.39 In spite of the CBD, with its many work programmes and national biodiversity strategies and action plans developed in most countries, the global decline in genetic, species and ecosystem diversity has continued, and the pressures on biodiversity have remained constant or have increased.40 In response, the CBD COP 10 in 2010 adopted a Strategic Plan for Biodiversity 2011 – 20 with a shared vision, mission, five strategic goals and 20 targets (‘the Aichi Biodiversity Targets’).41 ABA from 2013 refers to itself as a regional contribution to the attainment of these targets.42 Information from ABA was used in preparing the Fourth Global Biodiversity Outlook, launched at the 12th COP meeting in October 2014. Throughout the ABA, reference is made not only to the uniqueness of Arctic biodiversity but also to the increasing threats from human activities, often due to factors outside the Arctic. The overall approach of the CBD, recognizing both the intrinsic value of biodiversity and the essential ecosystem services it provides to people, is shared with CAFF. The Ecosystem Approach was recognized by CAFF as a cornerstone approach for conservation in the Arctic before the CBD adopted it, together with 12 principles, in 200043 as ‘the primary framework for action under the Convention’ and described as ‘a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way’.44

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The Ecosystem Approach includes the concept of adaptive management – particularly relevant in the Arctic, due to the severe impacts on ecosystem functioning caused by climate change.45 CAFF’s Circumpolar Biodiversity Monitoring Programme (CBMP), with its ecosystem-based monitoring plans for freshwater, terrestrial and marine, coastal ecosystems, is an example of application of the approach. Concerning another important topic on the international biodiversity agenda, The Economics of Ecosystems and Biodiversity (TEEB), a scoping study on the Arctic was published in 2015.46 Related to the Ecosystem Approach is the sustainable use of biodiversity components, the second objective of the CBD. As stated in the ABA, unsustainable use of mammals, birds and fish was historically the most significant pressure on Arctic biodiversity. While much of this pressure has been significantly lessened by improved management and regulation, it has not been eliminated, according to the assessment. CAFF’s work on monitoring and assessments has addressed threats to biodiversity, including unsustainable use, and made recommendations on measures to overcome these threats. Nevertheless, attention in CAFF has been unevenly distributed among species groups, with most attention to flora and birds, some attention to terrestrial mammals – and less attention to marine mammals and fish, despite their significance for Arctic community livelihoods. One explanation could be the political sensitivity often associated with the management of marine mammals and fish stocks in the region.47 The mainstreaming of biodiversity across sectors as a means to address the underlying causes of biodiversity loss is another topic at the core of implementing the CBD and featuring prominently in the Aichi Targets.48 This is also a top CAFF priority: it is one of the three main themes of the ABA, with recommendation 4 requiring ‘the incorporation of biodiversity objectives and provisions into all Arctic Council work and encourage the same for ongoing and future international standards, agreements, plans, operations and/or other tools specific to development in the Arctic. This should include, but not be restricted to, oil and gas development, shipping, fishing, tourism and mining.’49 Mainstreaming has also been expressed through the close involvement of CAFF in the work of other Arctic Council working groups, especially AMAP and PAME and their biodiversity considerations. The CBD was innovative in giving global recognition to knowledge innovations and customary practices of indigenous and local communities as important tools for safeguarding biodiversity. Further, the CBD adopted an

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innovative approach to community participation, by establishing a special open-ended working group where government and indigenous representatives co-chair and participate on an equal footing.50 To a large extent this is also the approach of the AC including CAFF. The Council recognizes the importance of traditional and local knowledge and therefore seeks to include traditional ecological knowledge where possible. In terms of the participation of indigenous organizations in the working process, six major Arctic indigenous organizations have been granted Permanent Participant status in the Arctic Council, entitling them to participate in the Arctic Council and its working groups with full consultation rights. The impact of climate change on biodiversity ranks high on the international biodiversity agenda, inspired not least by ACIA and its focus on this problem for Arctic biodiversity. Monitoring, assessment and developing indicators have been important for the CBD in evaluating trends and progress towards targets set out in strategic plans. As noted, these are core AC activities and can therefore be regarded as the primary area of AC/CAFF contributions to the CBD and related international regimes most recently being expressed through the CBMP and the ABA. In fact, the CAFF contributions on the various thematic areas of the CBD agenda described above could also be categorized under this heading. CBMP is recognized as one of four regional Biodiversity Observations Networks of the Global Earth Observation System of Systems – Biodiversity Observations Networks (GEO BON).51 Arctic indicators developed under CBMP have taken into account global biodiversity indicators developed under the CBD, and the CBMP is a partner to the Global Biodiversity Indicators Partnership (BIP).52 Thereby, CAFF is also an actual and potential contributor to the recently established Intergovernmental Panel for Biodiversity and Ecosystem Services (IPBES), ‘as the leading intergovernmental body for assessing the state of the planet’s biodiversity, its ecosystems and the essential services they provide to society’.53 While the Arctic Council has acknowledged the CBD, the CBD has acknowledged the Council as an important regional forum. In 2010, a Resolution of Cooperation between CAFF and the CBD was signed; and the CBD COP at its 11th meeting in 2012 adopted decision XI/6, with 11 paragraphs on Arctic biodiversity.54 These paragraphs, inter alia, call upon the CBMP to deliver Arctic biodiversity status and trends information as a contribution to tracking progress towards achievement of the Aichi Biodiversity Targets. Decision XI/6 also expresses appreciation of the Arctic Council’s collaboration with indigenous and local communities, and encourages Parties and relevant organizations to ensure their full and

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effective participation in research projects and programmes on Arctic biodiversity.

The Ramsar Convention on Wetlands The Ramsar Convention was the first of the biodiversity-related conventions: adopted in 1971, it entered into force in 1975. Its mission is ‘the conservation and wise use of all wetlands through local, regional and national actions and international cooperation, as a contribution towards achieving sustainable development throughout the world’.55 Originally, the Ramsar Convention focused on wetlands as habitats for waterfowl, but because of the high economic, scientific, cultural and recreational value of the world’s wetlands, the concept of ‘wise use’ was introduced – basically an ecosystem approach. The Convention has 168 parties and includes all the Arctic states. According to the Ramsar Convention Secretariat, 60 per cent of the terrestrial area of the Arctic is covered by wetlands and 68 Ramsar Sites have been designated in the Arctic.56 Arctic wetlands provide significant ecosystem services; they are biodiversity hotspots and play a crucial role in permafrost protection and water regulation. However, Arctic wetlands are also undergoing active degradation induced by human impacts and climate change.57 CAFF and the Ramsar Convention signed a Resolution of Cooperation in 2012. Cooperation takes place on a regional basis through the Ramsar regional ‘NorBalWet’ Initiative covering the Nordic countries and the countries around the Baltic Sea, but NorBalWet also acts as Ramsar’s operational arm for cooperation with CAFF and for developing a focus on Arctic wetland ecosystems and their crucial role in climate change.58 The Convention on Migratory Species (CMS) The importance of multilateral cooperation for the conservation of migratory species was recognized by the UN Conference on the Human Environment in Stockholm in 1972, which mandated the elaboration of a broad convention. This led to the negotiation of the Convention on Migratory Species of Wild Animals (CMS).59 The CMS entered into force in 1983 and has since been ratified by 120 countries, including four Arctic States (Finland, Sweden, Norway and Denmark with the Faroe Islands and Greenland). The CMS includes various types of requirements for conservation, depending on the degree of threat to the species in question. Those considered endangered are listed in Annex I, while Appendix II lists species seen as ‘merely’ having an unfavourable conservation status and

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in need of international agreements for their conservation and management. The most comprehensive agreement under CMS is the Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA), which entered into force in 1999. It encompasses 554 populations of 255 waterbird species whose ranges include Europe, Africa, the Middle East, parts of West-Central Asia and parts of the Arctic. The geographic area covers 118 states, of which 63 are Parties to the AEWA, including five Arctic states (Iceland, Finland, Sweden, Norway and Denmark with the Faroe Islands and Greenland).60 The Arctic is home to several species – especially birds – that migrate both to and from other parts of the world and within the Arctic. Migratory species are an important indicator of ecosystem health, which makes the CMS and AEWA highly relevant to the work of CAFF. A recent important contribution to these international commitments is the Arctic Migratory Birds Initiative (AMBI) initiated by CAFF in 2013. This project will require enhanced cooperation among the Arctic states themselves and with non-Arctic states that host Arctic birds during the non-breeding season.61

United Nations Convention on Law of the Sea (UNCLOS) and the protection of Arctic marine biodiversity Recognizing the Arctic as one ecosystem that requires joint, transboundary management is particularly important in relation to the marine ecosystem. For marine areas beyond national jurisdiction this is self-evident, but it is also highly relevant to areas within the jurisdictions of each Arctic coastal state, given the special geographical and ecological conditions of the often ice-covered waters. This makes the United Nations Convention on the Law of the Sea (UNCLOS), which provides for a comprehensive regime of law governing all uses of the oceans and their resources, another important global treaty for the protection of Arctic biodiversity – although the Convention does not explicitly refer to the term.62 All Arctic states are Parties to UNCLOS, except the USA.63 UNCLOS applies to marine areas under and beyond national jurisdiction. Most of the Arctic marine areas are under coastal-state jurisdiction, but there are also areas of high seas beyond national jurisdiction in the Central Arctic Ocean, the Northern Pacific and Northern Atlantic. For these areas UNCLOS is the only legal instrument with provisions on the conservation and sustainable use of marine resources, and thereby biodiversity. To emphasize the importance of this concern and make more specific the rather broad provisions of UNCLOS, the UN General Assembly in 2015 decided to launch a process for the development of an international legally binding instrument

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under UNCLOS on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction.64 UNCLOS Article 19465 sets out the general requirement of due diligence to protect the marine environment from pollution. This includes taking measures ‘to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.66 The general obligation is specified in more detailed provisions until Article 237.67 With particular relevance to the Arctic, Article 234 provides Coastal States with the right to take legal measures to prevent, reduce and control marine pollution from vessels in ice-covered areas.68 Articles 61 to 6469 concern obligations for States to conserve and sustainably use marine living resources in the Exclusive Economic Zone, as do Articles 116 to 120 regarding the High Seas.70 Chapter XIII of the Convention provides for a global regime for marine scientific research.71 UNCLOS requires States to collaborate directly or through competent international organizations to protect and preserve the marine environment at the international and regional levels. These requirements include Article 197 concerning pollution, Article 63 on stocks of living resources occurring within more than one Exclusive Economic Zone and Article 118 regarding management of living resources in the high seas.72 Several global and regional agreements build on UNCLOS environmental provisions. These include legally binding agreements regulating shipping negotiated under the auspices of the International Maritime Organization (IMO), where one of particular importance for Arctic marine ecosystem was concluded in 2015: the International Code for Ships Operating in Polar Waters (Polar Code), expected to enter into force in 2017, and with its main goal being ‘to provide for safe ship operation and the protection of the polar environment’.73 There are also several regional seas agreements, some developed under the auspices of UNEP, that relate to UNCLOS.74 UNCLOS and the related provisions referred to above are dealt with by the Arctic Council mainly through its working group on the Protection of the Arctic Marine Environment (PAME). The mandate of PAME is to address policy and non-emergency pollution prevention and control measures related to the protection of the Arctic marine environment from land- and sea-based activities.75 These measures are often addressed in cooperation with CAFF when they relate to marine biodiversity. Concerning other biodiversity-related agreements, the Council has contribution mainly through monitoring and assessment activities. Specifically regarding the Central Arctic Ocean (areas within and beyond national jurisdiction), the five coastal states in 2008 agreed to the Ilulissat

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Declaration, which acknowledges UNCLOS as a key instrument for, inter alia, protection of the marine environment including ice-covered areas. The coastal states also declare that for the moment they see no need to develop a new comprehensive international legal regime for governing the Arctic Ocean.76 In addition, in July 2015 the five states signed the Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean,77 which acknowledges that commercial fishing in this area is unlikely to occur in the near future. Nevertheless, the dramatic reduction of Arctic sea ice and other environmental changes in the Arctic, combined with the still-limited scientific knowledge about marine resources in this area, necessitate a precautionary approach to prevent unregulated fishing in the area. The next section discusses the recent establishment of a task force to consider future needs for strengthened cooperation on Arctic marine areas as well as mechanisms to meet these needs.

Summary: international biodiversity commitments To a large extent, commitments related to international biodiversity concerns have guided the work of the Arctic Council as regards generating new knowledge on Arctic biodiversity – knowledge that in return has proven very useful for the various global biodiversity-related regimes and has contributed to greater global awareness on Arctic biodiversity. Lacking executive powers, however, the Arctic Council has not been in a position to take more direct measures in response to international commitments on the conservation and sustainable use of biodiversity.

Recent Developments in the Arctic Council outside the Biodiversity Context Many of the deliverables of AC working groups can be classified as technical and/or scientific knowledge generation and dissemination, as is the case with CAFF deliverables. However, some areas outside CAFF have moved beyond this point. Above all this applies to the conclusion of two legally binding agreements: on aeronautical and maritime search and rescue (2011)78 and oil spill preparedness and response (2013).79 A further indication is the establishment of time-delimited task forces with specific action-oriented mandates and expected outputs. One example here is the Task Force for Action on Black Carbon and Methane, established by the Arctic Ministerial in 2013 in Kiruna, Sweden, to develop arrangements on actions for achieving greater reductions of black

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carbon and methane emissions in the Arctic. This is the result of an Arctic Council Framework for Action on Enhanced Black Carbon and Methane Emission Reductions, which includes actions at the national, pan-Arctic and global levels.80 At the Arctic Ministerial in 2013, a task force was mandated to prepare a legally binding agreement on Arctic scientific cooperation. Its mandate was renewed at the 2015 Arctic Ministerial in Iqaluit, Canada.81 Also at the Iqaluit Arctic Ministerial, a task force was established on Arctic marine cooperation.82 Its mandate is to consider future needs for strengthened cooperation on Arctic marine areas as well as mechanisms for meeting these needs, and to make recommendations on the nature and scope of any such mechanisms. This includes considerations on whether a cooperative mechanism should be formed within or outside the existing structure of the Arctic and whether it should be based on a legally or nonlegally binding agreement.83

Conclusion Here we may note one key message from the December 2014 Arctic Biodiversity Congress: ‘there is a wide gap between what we know and how we act. Although research to fill gaps in knowledge is still needed, there is enough knowledge about what needs to be done to act now.’84 As noted in the report of the co-chairs, ‘A companion to that message is the urgent need to shorten the time it takes for scientific understanding to be translated into policy in the Arctic.’ 85 This statement reflects a basic dilemma for the Arctic Council: first-class scientific work has been generated, documenting with ever-greater strength that actions on the ground are needed to reduce the loss of Arctic biodiversity. However, the cooperation mechanisms for translating these scientific findings into coordinated and joint action by the Arctic states are not in place.86 During the first years, Arctic Council cooperation under CAFF seemed to include an executive and normative element, as expressed not least through the establishment of a Circumpolar Protected Area Network, which was considered a cornerstone of CAFF activities.87 However, at that time the AC and CAFF were not able to handle issues of such a political nature affecting the territorial sovereignty of the Arctic states, and CAFF gradually developed into a body for mainly technical and scientific cooperation.88 The value of this cooperation cannot be underestimated. Through its monitoring and assessments, CAFF has contributed considerably to improving the knowledge base on Arctic biodiversity. CAFF has also

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delivered consistent high-quality communication activities and materials on Arctic biodiversity to a variety of audiences. International processes and fora have been provided with new knowledge, which has helped to increase international attention on issues of importance to Arctic biodiversity. This has put Arctic biodiversity in a global context – an achievement comparable to the catalytic achievements of AMAP in informing and influencing global processes on the severe effects on the Arctic environment of climate change and heavy metal and chemicals contamination. The high attendance rate and diversity of participants at the 2014 Arctic Biodiversity Congress attest to this. A major challenge for the AC and CAFF today is how to best harness the knowledge and capacity to help enable informed, timely and effective decisions in the face of cumulative and accelerating change – as called for by the Arctic Biodiversity Assessment (ABA) and by decisions under the international agreements with which CAFF claims to be closely aligned. In terms of commitments, these agreements cover far more than generating knowledge and raising awareness on biodiversity. They also require direct measures to tackle the causes of biodiversity loss – both the direct causes and the root causes – measures that the AC and CAFF are currently not authorized to take. In dealing with these causes, the role of the AC and CAFF at the pan-Arctic level has been at best indirect, through generating new knowledge. To what extent has the work of CAFF influenced individual Arctic states and other relevant actors in their actions for Arctic biodiversity? That is an obvious field for further research. The discourse on strengthening Arctic biodiversity management largely mirrors the general discourse on strengthening the Arctic Council and giving it more decision making power, as propounded by scholars and NGOs, but also by actors like the European Parliament. Proposals have been made for replacing the AC’s ‘lightweight’ non-regulatory statutes with an overarching Arctic treaty regime, in some cases referring to the Antarctic Treaty System as the inspiration.89 As much AC cooperation concerns environmental protection, this would be likely to feature prominently in such an overall treaty, including provisions for safeguarding Arctic ecosystems and biodiversity. Time may be working for such a treaty solution: in recent years, the Arctic has been rising higher and higher on the foreign policy agendas of Arctic and non-Arctic states alike.90 However, such a general transformation of the Arctic Council is not under discussion at the moment, nor are there any signs that it will be in the near future. Instead, AC has moved in a more policy making and normative direction through issue-specific regimes, like the conclusion of legally binding

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agreements on Search and Rescue in 2011 and Oil Spill Preparedness and Response in 2013.91 Although these agreements are very general in terms of state obligations, they hold important symbolic value and the potential to set a precedent for binding agreements in other areas.92 The two agreements seem already to have influenced the Council, through the mandate set by the 2015 Iqaluit Declaration, for task forces to continue to prepare a legally binding agreement on Arctic scientific cooperation and to consider the need for a pan-Arctic cooperation mechanism to protect the Arctic marine environment – an agreement that may be legally binding. On that basis, would it be feasible to work towards another legally binding agreement to protect Arctic biodiversity? One challenge here is the broad scope of biodiversity and its overlap with several AC thematic areas on which activities of various types may already have been initiated. These include the 2013 oil spill agreement and the current process of considering an Arctic marine environment mechanism – both of which are highly relevant for Arctic marine biodiversity. In that light, it would seem more realistic to continue the current trend whereby binding agreements evolve in piecemeal fashion within more limited and specialized areas, while making sure that biodiversity concerns are properly reflected. That would also be in excellent agreement with the CBD and ABA objectives of promoting biodiversity mainstreaming. Such agreements could be directly under AC framework, or outside as regional agreements under international regimes (as with the Polar Code under IMO) but still with AC serving a role as regional mechanism. One such agreement could concern the establishment of an Arctic protected areas network, thereby reviving an early flagship theme of CAFF. The issue of marine protected areas could be dealt with in the AC task force on marine cooperation. Legally binding agreements are not a prerequisite for strengthening Arctic biodiversity management, as this could also be achieved through the introduction of ‘soft-law’ instruments, often a first step towards legally binding instruments – and perhaps, in the Arctic context, the most practical, realistic and quickest way to strengthen management and policy making. There is no official definition of the ‘soft law’, but a very broad and simple understanding refers to normative provisions in non-binding texts.93 Soft law is often expressed through codes of conduct, guidelines, standards and so on. In the literature, Arctic cooperation has been widely regarded as already building on soft-law instruments,94 but recent CAFF cooperation on biodiversity – with the notable exception of the 2013 ABA policy recommendations – can hardly be classified as soft law, given the strong focus on assessing, monitoring and collecting data and lack of normative

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instruments. An example of a more typical soft-law instrument under the AC, and which could inspire biodiversity-related instruments in its design, is the Arctic Council Framework for Action on Enhanced Black Carbon and Methane Emissions Reductions, adopted by Arctic ministers in 2015. The Arctic Council and its working group on the Conservation of Arctic Flora and Fauna should continue to do what they are best at doing as regards biodiversity: generating scientific knowledge on the state of Arctic biodiversity and acting as a catalyst within and beyond the circumpolar region. However, when this knowledge clearly points to the need for coordinated or joint solutions to protect Arctic biodiversity, instruments – hard or soft – should be developed for action. Indeed, recent developments under the Arctic Council have paved the way for precisely such types of instruments.

Notes 1. This chapter is a revised version of Christian Prip, ‘The Arctic Council and biodiversity – need for a stronger management framework?’, Nordic Environmental Law Journal 2 (2016), pp. 37–53. It appears here with kind permission from Nordic Environmental Law Journal. 2. Conservation of Arctic Flora and Fauna (CAFF), Arctic Biodiversity Assessment (ABA) (Akureyri, 2013). Available at http://www.arcticbiodiversity.is/the-report [Accessed 26 January 2017]. 3. There exists no official definition of ‘the Arctic’ in a geographical sense, and different working groups under the Arctic Council use different boundaries. This chapter, with its biodiversity focus, assumes the boundaries normally used by CAFF: on land, the natural treeline marks the southern boundary; at sea, the Bering Sea and the North Atlantic down to Iceland and the Faroe Islands are included. See map on CAFF website, available at http://www.caff.is/ about-caff. 4. See Arctic Council website at http://www.arctic-council.org/index.php/en/. 5. See CAFF website at http://www.caff.is/. 6. The Arctic states are here defined as Canada, Denmark with the Faroe Islands and Greenland, Iceland, Norway, Finland, Sweden, the Russian Federation and the United States of America. 7. On Arctic governance in general and Arctic environmental governance, see Oran R. Young, Creating Regimes: Arctic Accords and International Governance (Ithaca, Cornell University Press, 1998); Olav S. Stokke and Geir Hønneland (eds), International Cooperation and Arctic Governance: Regime Effectiveness and Northern Region Building (London, Routledge, 2007); Olav S. Stokke, ‘Interplay manage¨ r and ment, niche selection, and Arctic environmental governance’, in S. Oberthu O.S. Stokke (eds), Managing Institutional Complexity: Regime Interplay and Global Environmental Change (Cambridge, MIT Press, 2011), pp. 143–70; Timo Koivurova, ‘Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic

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8.

9. 10. 11. 12. 13.

14.

15. 16. 17. 18. 19. 20. 21.

22. 23.

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS governance’, Polar Record 46/2 (2010), pp. 146 – 56. Available at http://journals. cambridge.org/download.php?file¼ %2FPOL%2FPOL46_02%2FS0032247409 008365a.pdf&code¼e60dffbb5f97b1238eb4aa14d4bda045 [Accessed 25 January 2017]; Paula Kankaanpa¨a¨ and Oran R. Young, ‘The effectiveness of the Arctic Council’, Polar Research, 31/0 (2012), pp. 1 – 14. Available at http://dx.doi.org/10. 3402/polar.v31i0.17176 [Accessed 25 January 2017]. On biodiversity governance, see Timo Koivurova, ‘Governance of protected areas in the Arctic’, Utrecht Law Review, 5/1 (2009), pp. 44 –60. Conservation of Arctic Flora and Fauna (CAFF), Programme for the conservation of Arctic flora and fauna framework document (CAFF, 1993). Available at http://www.caff.is/administrative-series/all-administrative-documents/137-caffframework-document [Accessed 26 January 2017]. Ibid., p. 1. Ibid. Ibid., pp. 1– 2. Ibid., p. 2. These are Cooperative strategy for the conservation of biological diversity in the Arctic region (1997). Available at https://oaarchive.arctic-council.org/bitstream/ handle/11374/180/Cooperative_Strategy_Conservation_BioDiv_Arctic_Region_ CAFF_Program_1997.pdf?sequence¼1&isAllowed¼y; Strategic plan for the conservation of Arctic biological diversity (1998). Available at https://oaarchive. arctic-council.org/bitstream/handle/11374/164/Strategic_Plan_Conservation_ Arctic_BioDiv_Sept_1998.pdf?sequence¼1&isAllowed¼y; Arctic flora and fauna recommendations for conservation (2002). Available at https://oaarchive.arcticcouncil.org/bitstream/handle/11374/1588/MM03_CAFF_Recommendations.pdf? sequence¼1&isAllowed¼y. Arctic Monitoring and Assessment Program (AMAP), Conservation of Arctic Flora and Fauna (CAFF), International Arctic Science Committee (IASC), Arctic climate impact assessment: imapcts of a warming Arctic (Cambridge, Cambridge University Press, 2004). Available at http://www.amap.no/documents/doc/impacts-of-awarming-arctic-2004/786 [Accessed 26 January 2017]. For more information on the Millennium Ecosystem Assessment see http://www. millenniumassessment.org/en/index.html. Koivurova, ‘Governance of protected areas in the Arctic’. See CAFF website at http://www.caff.is/monitoring. CAFF, Arctic Biodiversity Assessment (ABA) (Akureyri, CAFF, 2013). For an analysis of achievements in Arctic cooperation regarding protected areas, see Koivurova, ‘Governance of protected areas in the Arctic’. Arctic Environmental Protection Strategy (AEPS), The Nuuk Declaration on Environment and Development in the Arctic (Nuuk 16 September 1993). Conservation of Arctic Flora and Fauna (CAFF), CPAN Strategy and Action Plan, CAFF Habitat Conservation Report no. 6 (Trondhem, CAFF, 1996). Available at http://www.caff.is/strategies-series/95-cpan-strategy-and-actionplan [Accessed 26 January 2017]. Ibid., p. 12. Koivurova, ‘Governance of protected areas in the Arctic’; Conservation of Arctic Flora and Fauna (CAFF), Management Board Meeting Minutes 1– 3 February 2005, Helsinki, Finland Minutes (2005), p. 4.

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24. See Arctic Council website at https://oaarchive.arctic-council.org/handle/ 11374/148 [Accessed 26 January 2017]. 25. This is supported by the following quote from minutes of the CAFF board meeting in February 2008 which discussed a possible resumption of CPAN: ‘The challenge which faces CPAN now is how best to continue? CPAN has in the past run into difficulties as each CAFF country has its own protected areas policy and therefore may not need any outside suggestions on how these policies should be structured. Thus, in order to proceed, CPAN needs to focus more on generalities and the international context.’ 26. Koivurova, ‘Governance of protected areas in the Arctic’. 27. Ibid.; Secretariat of the Convention on Bilogical Diversity, CBD Programme of Work on Protected Areas (2004). Available at https://www.cbd.int/doc/ publications/pa-text-en.pdf [Accessed 26 January 2017]. 28. Goal 1.3. of the above is to ‘establish and strengthen regional networks, transboundary protected areas (TBPAs) and collaboration between neighbouring protected areas across national boundaries’. 29. Arctic Monitoring and Assessment Program (AMAP), Conservation of Arctic Flora and Fauna (CAFF) and Sustainable Development Working Group (SDWG), Identification of Arctic marine areas of heightened ecological and cultural significance: Arctic Marine Shipping Assessment (AMSA) IIc (2013). Available at http://www.amap.no/documents/doc/identification-of-arctic-marine-areas-of%20heightened-ecological-and-cultural-significance-arctic-marine-shippingassessment-amsa-iic/869 [Accessed 26 January 2017]. 30. See https://www.cbd.int/ebsa/. As part of the EBSA process, CAFF provided data, scientific and technical support, and participated in an Arctic regional workshop to facilitate the description of EBSAs in the Arctic in Finland in March 2014 (see Report of the Arctic Regional Workshop to Facilitate the Description of Ecologically or Biologically Significant Marine Areas, available at http://www. cbd.int/doc/?meeting¼ EBSAWS-2014-01). 31. Protection of the Arctic Marine Environment (PAME), Framework for a Pan-Arctic Network of Marine Protected Areas (PAME, 2015). Available at https://oaarchive. arctic-council.org/bitstream/handle/11374/417/MPA_final_web.pdf?sequence¼ 1&isAllowed¼y [Accessed 26 January 2017]. 32. Risa Smith, Tom Barry and Finn Katera˚s, Arctic biodiversity congress: co-chairs report (2014). Available at http://www.caff.is/assessment-series/10-arctic-biodi versity-assessment/284-arctic-biodiversity-congress-co-chairs-report [Accessed 26 January 2017]. 33. Ibid. 34. Ibid. 35. Ibid. 36. Conservation of Arctic Flora and Fauna (CAFF), Actions for Arctic biodiversity, 2013 –2021: Implementing the recommendations of the Arctic biodiversity assessment (CAFF, 2015). Available at www.caff.is/actions-for-arctic-biodiversity2013-2021 [Accessed 26 January 2017]. 37. Ibid. 38. Ibid. 39. See e.g. paragraph 5 of decision X/2 Strategic Plan for Biodiversity 2011 – 2020 in which the Conference of the Parties ‘Urges regional organizations to consider the

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40. 41. 42.

43.

44. 45.

46.

47.

48.

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS development or updating of regional biodiversity strategies, as appropriate, including agreeing on regional targets, as a means of complementing and supporting national actions and of contributing to the implementation of the Strategic Plan for Biodiversity 2011 – 2020,’ available at https://www.cbd.int/ decision/cop/?id¼12268. See Global Biodiversity Outlook (GBO 3) (2010). Available at http://www.cbd.int/ gbo3/. See decision X/2 Strategic Plan for Biodiversity 2011 – 2020. Secretariat of the Convention on Biological Diversity, Strategic plan for biodiversity 2011 –2020 and the aichi targets (2011). Available at https://www. cbd.int/doc/strategic-plan/2011-2020/Aichi-Targets-EN.pdf [Accesed 26 January 2017]. Under the CBD, the ecosystem approach is described as a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way, although it is often referred to as ‘an ecosystem-based approach’ in the CAFF context. Fifth meeting of the Conference of the Parties to the Convention on Biological Diversity, Decision V/6 Ecosystem Approach (2000). Available at https://www. cbd.int/decisions/cop/?m¼cop-05 [Accessed 8 February 2017]. ‘Adaptive management’ refers to the fact that ‘ecosystem processes are often nonlinear, and the outcome of such processes often shows time-lags. The result is discontinuities, leading to surprise and uncertainty. Management must be adaptive in order to be able to respond to such uncertainties and contain elements of “learning-by-doing” or research feedback.’ Secretariat of the Convention on Biological Diversity, The Ecosystem Approach (CBD Guidelines) (2004). Available at https://www.cbd.int/doc/publications/ea-text-en.pdf [Accessed 26 January 2017]. Conservation of Arctic Flora and Fauna (CAFF), UNEP, WWF Global Arctic Program and GRID-Arendal, The economic of ecosystems and biodiversity: scoping study for the Arctic (CAFF, 2015). Available at http://www.caff.is/adminis trative-series/292-the-economics-of-ecosystems-and-biodiversity-teeb-scopingstudy-progress-report [Accessed 26 January 2017]. The selective approach to species groups has gradually shifted with CBMP and its ecosystem-based approach. For example, the marine expert monitoring group covers all marine species groups. Also the ABA addresses fish and marine mammals alongside other species and includes specific recommendations (10c and d) on planning and managing commercial fisheries in international waters and on fishing technologies and practices. See Arctic Species Trend Index (ASTI): Tracking Trends in Arctic Marine Populations, available at http://www. caff.is/assessment-series/view_document/28-Arctic-species-trend-index-trackingtrends-in-Arctic-marine-populations. Under Strategic Goal A, ‘Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society’, the first four Aichi targets address general awareness-raising on the value of biodiversity, integration of biodiversity concerns into national and local development plans and strategies, phasing out harmful subsidies and promoting positive incentives for biodiversity, promoting sustainable consumption and production and keeping the use of natural resources within safe ecological limits. See https://www.cbd.int/sp/targets/.

THE ARCTIC COUNCIL AND BIODIVERSITY 49. 50. 51. 52. 53. 54.

55. 56. 57. 58. 59. 60. 61. 62. 63.

64.

65. 66. 67. 68. 69.

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CAFF, Arctic biodiversity assessment (ABA), p. 18. See https://www.cbd.int/convention/wg8j.shtml. See http://geobon.org/. See http://www.bipindicators.net/. Convention on Biological Diversity, IPBES. Available at https://www.cbd.int/ sbstta/ipbes.shtml [Accessed 27 January 2017]. Eleventh meeting of the Conference of the Parties to the Convention on Biological Diversity, Decision XI/6 Cooperation with other conventions, international organizations, and initiatices (2012). Available at https://www.cbd.int/decisions/ cop/?m¼cop-11 [Accessed 27 January 2017]. Ramsar, ‘The ramsar convention and its mission’. Available at http://www.ramsar. org/about/the-ramsar-convention-and-its-mission [Accessed 27 January 2017]. Ramsar, ‘How about the Arctic wetlands?’ Available at http://www.ramsar.org/ news/how-about-arctic-wetlands [Accessed 27 January 2017]. Wetlands International, ‘What are wetlands?’ Available at https://www.wetlands.org/wetlands/what-are-wetlands/ [Accessed 27 January 2017]. NorBalWet, ‘Nordic-Baltic wetlands initiative is a regional initiative for the ramsar convention on wetlands’. Available at http://www.norbalwet.org/ [Accessed 27 January 2017]. Convention on Migratory Species of Wild Animals (CMS), 23 June 1979, 1651 UNTS 333. Available at http://www.cms.int/en/convention-text [Accessed 27 January 2017]. Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA) (1995). Available at www.unep-aewa.org [Accessed 27 January 2017]. Conservation of Arctic Flora and Fauna (CAFF), Arctic Migratory Birds Initiative (AMBI) (2013). Available at http://www.caff.is/arctic-migratory-birds-initiativeambi [Accessed 27 January 2017]. Alf H. Hoel, ‘Oceans governance, the Arctic Council and ecosystem-based management’, in L.C. Jensen and G. Hønneland (eds), Handbook of the Politics of the Arctic (Cheltenham, Edward Elgar Publishing, 2015), pp. 265 – 80. The USA, however, considers UNCLOS provisions other than Part XI (which deals with the International Seabed Area) as customary international law and thereby binding (See Robin Churchill, ‘The exploitation and management of marine resources in the Arctic: law, politics and the environmental challenge’, in L.C. Jensen and G. Hønneland (eds), Handbook of the Politics of the Arctic (Cheltenham, Edward Elgar Publishing, 2015), pp. 147 – 84). UN General Assembly Resolution 69/292, Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/69/292 (19 June 2015). Available at http://www.un.org/ en/ga/search/view_doc.asp?symbol¼A/RES/69/292 [Accessed 27 January 2017]. United Nations Convention of the Law of the Sea (UNCLOS), 10 December 1982, 1833 UNTS 105. Available at http://www.un.org/depts/los/convention_agreements/ texts/unclos/unclos_e.pdf [Accessed 27 January 2017]. Ibid., Article 194.5. Ibid., Article 237. Ibid., Article 234. Ibid., Article 61 – 64.

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70. Ibid., Article 116 –20. 71. Ibid., part XIII. 72. Ibid., Article 197, 63, 118. Articles 122 and 123 deal with regional cooperation between states bordering ‘Enclosed or Semi-Enclosed Seas’. It has been argued that while the Central Arctic Ocean as an ‘ocean’ and not a ‘sea’ may not fully satisfy the definition of a semi-enclosed sea area in Article 122, it nevertheless shares similar properties. Thus an analogous cooperation system could legitimately be applied mutatis mutandis for the Central Arctic Ocean. See Joshua Owens, ‘Enclosed and semi-enclosed seas: Does the Arctic count?’, China Oceans Law Review 13/2 (2013), pp. 204 – 18. The Ilulissat Declaration and the declaration to prevent unregulated fisheries referred to below exemplify such cooperation. 73. IMO Resolution MSC.385 (94), of 21 November 2014, ‘International Code for Ships Operating in Polar Waters (Polar Code)’; IMO Resolution MEPC. 264(68), of 15 May 2015, ‘International Code for Ships Operating in Polar Waters (Polar Code)’. The Polar Code applies to Arctic and Antarctic waters. 74. Protection of the Arctic Marine Environment (PAME), The Arctic Ocean Review, Phase I Report (2009 – 2011) 2nd edition (2011). Available at http://www.pame.is/images/03_Projects/AOR/Reports/AOR_Phase_I_Report_ to_Ministers_2011_2nd_edition_Nov_2013_b-1.pdf [Accessed 26 January 2017]. 75. Protection of the Arctic Marine Environment (PAME), PAME Work Plan 2015 – 2017 (PAME, 2015). Available at http://www.pame.is/index.php/shortcode/pamework-plan [Accessed 26 January 2017]. 76. Arctic Ocean Conference, The Ilulissat Declaration (2008). Available at http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf [Accessed 26 January 2017]. The coastal states are the USA, Russia, Canada, Norway and Denmark (in respect of Greenland). 77. Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean, 16 July 2015. Available at https://www.regjeringen.no/globalassets/ departementene/ud/vedlegg/folkerett/declaration-on-arctic-fisheries-16-july2015.pdf [Accessed 27 January 2017]. 78. Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011. Available at https://oaarchive.arctic-council.org/ handle/11374/531 [Accessed 26 January 2017]. The agreement entered into force in 2013. 79. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013. Available at http://arctic-council.org/eppr/agreementon-cooperation-on-marine-oil-pollution-preparedness-and-response-in-thearctic/ [Accessed 26 January 2017]. This agreement has not yet entered into force. 80. Black Carbon and Methane Expert Group, Enhanced black carbon and methane emissions reductions: an Arctic Council framework for action (2015). Available at https://oaarchive.arctic-council.org/bitstream/handle/11374/610/ACMMCA09_ Iqaluit_2015_SAO_Report_Annex_4_TFBCM_Framework_Document.pdf? sequence¼1&isAllowed¼y [Accessed 27 January 2017]. 81. Arctic Council, Iqaluit Declaration, paragraph 44 (2015). Available at https:// oaarchive.arctic-council.org/bitstream/handle/11374/662/EDOCS-3431-v1-

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82. 83.

84. 85. 86.

87.

88. 89.

90. 91. 92. 93. 94.

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ACMMCA09_Iqaluit_2015_Iqaluit_Declaration_original_scanned_signed_ version.PDF?sequence¼7&isAllowed¼y [Accessed 27 January 2017]. Ibid., paragraph 43. Arctic Council, Senior Arctic Officials’ Report to Ministers (2015), p. 78. Available at https://oaarchive.arctic-council.org/bitstream/handle/11374/494/ACMMCA09_ Iqaluit_2015_Iqaluit_SAO_Report_to_Ministers_formatted_v.pdf.pdf?sequence¼ 1&isAllowed¼y [Accessed 26 January 2017]. Smith, Barry and Katera˚s, Arctic biodiversity congress: co-chairs report, p. 4. Ibid. Similarly, Koivurova argues: ‘the assessments the council has sponsored seem increasingly to challenge the very fundaments of the cooperation’ (Koivurova, ‘Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic governance’). Olav S. Stokke, Geir Hønneland and Peter J. Schei, ‘Pollution and conservation’, in O. S. Stokke and G. Hønneland (eds), International Cooperation and Arctic Governance: Regime Effectiveness and Northern Region Building (London, Routledge, 2007), pp. 78 – 111. Koivurova, ‘Governance of protected areas in the Arctic’. European Parliament, European Parliament resolution of 9 October 2008 on Arctic governance (2008). Available at http://www.europarl.europa.eu/sides/ getDoc.do?type¼TA&language¼EN&reference¼P6-TA-2008-474 [Accessed 26 January 2017]; Linda Nowlan, ‘Arctic Legal Regime for Environmental Protection’, IUCN Environmental Policy and Law Paper No. 44 (2001), pp. 1 – 70. Available at http://www.iucn.org/themes/law/info04.html [Accessed 25 January 2017]; Philippe Sands, Principles of International Environmental Law (second edition) (Cambridge, 2003), p. 731. On the discourse in general, see Timo Koivurova, ‘Environmental protection in the Arctic and Antarctic: Can the polar regimes learn from each other?’, International Journal of Legal Information, 33/2 (2005), pp. 204– 18. Available at http://scholarship.law.cornell.edu/ijli/vol33/iss 2/5 [Accessed 25 January 2017]; Koivurova, ‘Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic governance’; Kankaanpa¨a¨ and Young, ‘The effectiveness of the Arctic Council’. Svein V. Rottem, ‘A note on the Arctic Council agreements’, Ocean Development and International Law, 46/1 (2015), pp. 50 – 9. Although the two agreements have been signed by the eight Arctic states, they do not formally constitute Arctic Council proceedings, as the Council has no formal authority to make decisions legally binding on its members. Rottem, ‘A note on the Arctic Council Agreements’; Kankaanpa¨a¨ and Young, ‘The effectiveness of the Arctic Council’. Dinah Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford, Oxford University Press, 2000). Koivurova, ‘Environmental protection in the Arctic and Antarctic: Can the polar regimes learn from each other?’.

CHAPTER 11 THE ARCTIC COUNCIL: CHALLENGES AND RECOMMENDATIONS Svein Vigeland Rottem1

Introduction The purpose of this chapter is to discuss the place of the Arctic Council (AC) in Arctic governance with a specific focus on the role of the working groups (WGs). The main conclusion to be drawn is that while the Council plays a crucial role in the formulation of Arctic policy, there is a growing debate on the potential for improving operations at the Council. We find here a variety of views concerning the challenges facing the Council and the steps required to tackle them. And although many more or less critical evaluations have been undertaken of the Council, fewer workable solutions have been suggested. This chapter discusses the Council’s role in Arctic governance and key contributions to the debate on challenges facing the AC, not least the multilateral audit on the Arctic states’ national authorities’ work with the AC, where challenges to do with the Council’s modus operandi are presented.2 Finally we discuss three questions with immediate bearing on the role of the WGs and suggest what can be done to remedy the situation. The chapter does not undertake a critical assessment of a particular WG or member state, but it does look at long-standing challenges of greater or lesser relevance to each of the WGs and member states. This chapter could not have been written without discussions with key people at the Council. The recommendations set out in the final part of the chapter are based largely on these interviews and are situated between what is politically possible and what is rational from the point of

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view of the different parties. No reference is made to any particular statement by any particular individuals, although a list of interviewees is attached.3

The Widening of the Arctic Council Agenda The AC is frequently referred to as the most important international forum in the Arctic. The establishment of a permanent secretariat in Tromsø, Norway, and the signing of two internationally binding agreements (2011 and 2013) created under the auspices of the AC have raised its political prominence in the past five years. Furthermore, in connection with the 2013 Kiruna ministerial meeting the question of observer status for the EU and non-Arctic States headed the agenda. China, India, Italy, Japan, Singapore, and South Korea were granted permanent observer status, and the number of observers is at the time of writing 32.4 Aspirations to acquire observer status on the part of the EU and several non-Arctic states show how the region is perceived as important by stakeholders outside the geographically limited Arctic region. However, the inclusion of more and more stakeholders in the work of the Council raises questions as to capacity and coordination, especially at the WG level. Furthermore, the AC has produced substantial knowledge on Arctic issues, and informed the debate on challenges and opportunities in the region, ranging from research on climate change, introduction of shipping guidelines and emphasizing regional health issues. It is a significant player in the region as a producer of knowledge, presenter of guidelines and recommendations, Arctic environment assessment and monitoring body, and arena for the drafting of binding international agreements. In 1996, the Council was running 30 projects; today the number is 80 and is likely to grow. It is against this background that challenges of capacity and coordination need to be addressed. Despite the challenges, the Arctic has undergone significant changes, and is today an arena of cooperation rather than conflict; indeed, the Council is often portrayed as a soft security instrument, enabling dialogue in a time of international tensions. The future of the AC, however, depends on delivering as expected and on continuing to be a significant player in terms of practical politics by means of knowledge transfers and implementation of decisions and actions. The main question in this chapter is what the AC, including the WGs, should do to adapt to the widening of the Arctic agenda both in relation to projects and participants. In this respect three key points will be discussed:

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(1) How to establish a more coherent and clearer vision for work at the Council. The scope of the work undertaken by the Council has widened in recent years, as has the number of projects. This could lead to overlap between the WGs and challenges as to prioritizing within the AC structure. (2) How to strengthen coordination between the bodies of the AC. With the increasing workload and broader agenda there is need for a formalized discussion on whether today’s WG structure meets the challenges of a ‘new’ Arctic. (3) How to accommodate and benefit from local, regional, and global stakeholders. Key stakeholders should be encouraged to work together on Arctic issues in a cooperative and informed manner. In this chapter, the emphasis is on the WGs and their attempts to meet the challenges noted above. The WGs have been portrayed as the backbone of the AC. However, in the opinion of some, they have developed almost organically over the years and their structure is not as efficient as it could be. Working-group mandates sometimes cover the same ground. One could also ask whether the WGs correspond to the priorities and needs of the AC. Before discussing what can be done to streamline the work of the AC, coordinate its efforts, and integrate Arctic knowledge more efficiently, a potted history of developments in the AC would be useful. Moreover, the Council’s role in Arctic governance will be touched upon.

The Arctic Council in Short Three main periods define the Council’s history. In the first period, from 1996 to the early 2000s, research on pollution in the Arctic was at the top of the agenda. This research uncovered high levels of toxins and heavy metals, much of which was carried northwards by ocean and air currents. The work of the WGs within this field has since enlightened climate negotiations and international conventions on various pollutants, among them the International Mercury Convention and the Stockholm Convention on Persistent Organic Pollutants. Several WGs (particularly Arctic Monitoring and Assessment Programme (AMAP)) remain involved in work on these conventions as part of their principal activity. In the second defining period covering the early and mid-2000s, the Council focused on climate change in particular, as is evidenced by the most publicized scientific work carried out under the Council’s auspices: the Arctic Climate Impact Assessment (ACIA) (2004 – 5).5 According to the ACIA, climate changes are being experienced

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particularly intensely in the Arctic, where the average temperature has risen at nearly twice the rate as the rest of the world in the past few decades.6 Accordingly, this period of the Council’s history was marked by a clear focus on identifying and corroborating the consequences of global warming and adaptation to climate change. Additionally, the Council worked on a number of challenging items to do with mitigation, including limits on the emission of so-called short-lived greenhouse gases such as soot, methane, and tropospheric ozone. In recent years, in what can be said to be the third defining period, the Council has widened its agenda even more and concerned itself with what can be done to respond to the growing interest in the Arctic as such, and in the Council as an arena of international cooperation. This new phase came about largely in response to mounting political interest in the Arctic and steady rise in activity in the North, partly as a result of the retreating sea-ice cover. The SAR and Oil Spill agreements are just two examples of this extended focus. Thus, the AC has developed from a forum discussing environmental issues in a remote region into one addressing a wide range of questions with local, regional and global ramifications. The AC has gone from addressing environmental issues to everything. The encompassing question is then how the Council is to find its role in the governance of the Arctic. The WGs have accumulated unique expertise through their regular assessment of the environmental measures necessary to respond to the growth in commercial activity in Arctic regions. However, the agreements and guidelines created under the umbrella of the AC are limited in scope, mainly because the Arctic littoral states are wary of limiting their sovereignty in areas of strategic and economic importance. It is important to underline that UNCLOS provides the fundamental international legal framework for governance in Arctic waters. By ensuring rights and responsibilities of coastal states and flag states, UNCLOS remains the core international legal framework for all human activities at sea. The predominant mode of governance for Arctic commercial activities will continue therefore to be unilateral management by each of the Arctic littoral states, a point that was firmly underlined by the Arctic littoral states at a meeting in Ilulissat in 2008.7 Moreover, Arctic challenges are also global challenges, and can only be addressed in international forums. Clearly, the work done in the AC should inform international regulations/agreements, but the AC can only be part of the solution, not the solution. Thus, AC’s role in Arctic governance lies in between the international and national frameworks. However, what we see is that the Arctic littoral states – and for that matter non-littoral states – have

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committed to a certain level of oversight by several ‘soft-law’ institutions, and it is within this group the AC has its relevance. The Council lacks the ability to make binding decisions, so mechanisms such as the Oil Spill Agreement and the SAR Agreement are negotiated under the auspices of the AC by the eight Arctic states. As such, the AC does not have an international legal personality, nor is it an international organization in the strict sense of the term. Therefore, its role will most likely remain as a supplier of information for decision making and processes with a wider international participation. This does not mean the Council will have no decisive impact on Arctic governance in the years ahead, or function as an arena for drafting several international binding agreements. States both with an Arctic coastline and without are represented by the Council, and its value as a forum for consulting and discussing Arctic issues should not be underestimated. The AC is a convenient and appropriate venue where aspects of Arctic policy can be drafted in close consultation with key stakeholders. Of equal importance is its position as a producer of knowledge within the wider patchwork of international bodies whose work affects the Arctic. The activities undertaken under the leadership of the Council help set the Arctic agenda. This broad debate on the AC in Arctic governance is essential to understand and should be borne in mind when discussing the role and structure of the WGs.

Debate on Structures and Role The role and structure of the WGs have been subject to debate in the AC, consultant studies, and in the scientific literature. A short introduction to key contributions is needed. At the plenary meeting of Senior Arctic Officials (SAOs) in Anchorage 21 –22 October 2015, a joint memorandum of a multilateral audit on the Arctic states’ national authorities’ work with the AC was presented.8 The audit was carried out in accordance with a strategic plan signed by the participating Supreme Audit Institutions (SAIs).9 The work on the multilateral audit was led and coordinated by Norway and the Russian Federation. Key findings were: (i) changes in the Arctic have elevated the importance of international cooperation in the Arctic; (ii) The AC has contributed to enhanced cooperation, governance, and scientific knowledge; (iii) the Council faces key challenges related to its organizational structure, establishing priorities, funding its work, and ensuring effective implementation of voluntary recommendations adopted by member states; (iv) indigenous groups make important contributions to the Council, but face challenges participating.10

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When discussing key challenges, the audit stresses the rise in the number of ongoing projects, from about 30 in 1996 to about 80 currently. The AC has broadened its scope and increased its workload. The multilateral audit underlines the challenges arising from this growing workload in managing and funding the work and ensuring the effectiveness of its recommendations. How the institutional structure may be optimized to improve performance is therefore discussed. Interesting to note, there are very different views concerning the Council’s structure and the question of overlapping mandates. Some working groups (AMAP, Emergency Prevention Preparedness and Response (EPPR), and the Sustainable Development Working Group (SDWG)) referred to overlaps as a challenge, others (Arctic Contaminants Action Programme (ACAP), Protection of the Arctic Marine Environment (PAME) and Conservation of Arctic Flora and Fauna (CAFF)) found the current organizational structure adequate. 11 The multilateral audit also found that communication among WGs has improved. WG chairs (and secretaries) meet more often for information sharing. The September 2015 Tromsø meeting (involving four of the WGs) and the SAO-Chair-WGs meeting in Reykjavik in December 2015 is evidence of that.12 Furthermore, the establishment of the permanent secretariat could improve coordination and give support to the WGs. This is especially relevant for ACAP and EPPR, now located in Tromsø. The increasing use of task forces (TFs) to address emerging issues is also discussed. A challenge is that establishing TFs may take resources from WGs efforts and projects. However, they provide helpful complementary expertise within a certain timeframe. With the approval of Senior Arctic Officials and Ministers, WGs identify their project priorities. However, the Multilateral Audit underscores the substantial autonomy of the WGs. The development of the Tracking Tool for Arctic Council Deliverables and Ongoing Work has improved AC’s ability to inventory and track the status of ongoing projects.13 But the Council lacks the mechanisms to prioritize work across the WGs and TFs. Some actors would like to see high-level national representatives to enhance their coordination of the WGs. This is again connected to the lack of a long-term strategy, leading to challenges in channelling experts and economic resources. Given the 80 ongoing projects and ever widening scope and workload, this challenge has to be addressed. Furthermore, the lack of reliable funding is a hindrance to the effectiveness of the Council. The Project Support Instrument is a relevant tool here.14 The Multilateral Audit concludes that AC’s recommendations are broad and general and therefore difficult to implement as is the tracking of implementation status.

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The lack of a coherent feedback mechanism at the national level is another problem. So while the Audit addresses various challenges in the work of the Council it does not ponder how they could be overcome. In 2001, Pekka Haavisto at the Finnish Institute of International Affairs produced a report on the structure of the AC.15 During the Finnish Chairmanship from 2000 to 2002, the Arctic Chair commissioned a consultant study for the SAO meeting in Rovaniemi, 12 – 13 June, 2001. After additional consultations the review report was sent to the 2002 Ministerial Meeting, at Inari, Finland, for finalization. At the meeting the Ministers endorsed the report’s recommendations. However, all views, opinions, and recommendations therein were the consultant’s own. 16 In interviews conducted in connection with this work, the continuing relevance of the 2001 report was underlined. The 2001 report is ambitious and sets short-term and longterm options for the structure of the AC. The report is wide in scope and addresses several questions concerning the role of the AC. Overlaps, gaps, unnecessary competition, financial problems, and cost-efficiency are discussed. The 2001 report also looks at the idea of reorganizing the AC and reducing the number of WGs to two: the monitoring group and the implementation group. In this structure an expanded AMAP would act as the overall monitoring and assessment group and implementation activities would be assembled under PAME. The actual proposed structure is, however, more modest. The argument against such a comprehensive restructuring is that one should take full advantage of the work being done today and in the past. Personnel resources, networks, data collected, and motivation of individuals and member states, should be carefully maintained. The proposed new structure therefore consists of four working groups: Brown, Blue, Green, and Rainbow. The Brown group consist of AMAP and ACAP. Monitoring procedures created by AMAP and the action plan ACAP has based on monitoring reports will form the basis of the action against industrial pollution. This holistic approach combines monitoring and implementation. In the Blue group, PAME and EPPR constitute the oceanic group, emphasizing the institutional work on marine pollution. The Green group consists of CAFF as the Programme and action group for living resources and biodiversity conservation. A combination of the monitoring functions of AMAP and CAFF is also discussed in this regard, whereby AMAP would take care of biodiversity monitoring too. The idea for an overarching monitoring group was also raised by my interviewees. The fourth group is the Rainbow group in which SDWG will focus on sustainable development issues. Although not implemented, some of the

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2001 report’s proposals could inform the discussion of the structure and effectiveness of the Council. In 2008, the Norwegian Chairmanship acted on this debate. The 2008 Norwegian report was presented at the SAO meeting in Kautokeino, Norway, 19 – 20 November 2008. Key points were: funding/resources, priorities/focus, WG coordination/communication, and outreach. Funding is described as a major concern with potential implications for project outcomes.17 The struggle for funding is also highlighted by my interviewees. Closely connected to funding is the question of prioritization. One recommendation is to establish long-term goals against which to assess work priorities and another to tie the work Programme of the AC to an assessment of longerterm needs and goals. The point on WG coordination and communication prioritization is again key. The value of regular meetings between the SAO Chair and WG chairs is another highlighted point. Finally, the report discusses the important work of outreach. One recommendation of particular relevance is for the AC to strengthen coordination with other institutions and bodies active in the Arctic, including the involvement of observers. There is quite a substantial scientific literature on AC issues.18 An interesting and important contribution is Paula Kankaanpa¨a¨ and Oran Young’s survey from 2012.19 The effectiveness of the AC has exceeded the expectations of many, they say. But it is important to investigate what steps could be taken to secure and improve the effectiveness of the AC in the coming years. They prepared a questionnaire on the AC’s effectiveness designed to elicit the views of people familiar with the Council and its work. In their conclusion the good performance in the realm of knowledge generation, issue framing, and agenda setting is stressed. As to adjustments, they make a distinction between internal matters and external issues. On internal matters, their focus is on the configuration of the WGs and the division of labour between them and the TFs. As to external issues, it is vital the authors say to engage the interest of regional and local constituencies, along with major non-Arctic states. The effectiveness of the AC has thus been the subject of considerable attention at the national, WG, SAO and ministerial levels as well as independent research. And just by looking at the minutes of Ministerial Meetings, SAO meetings, and other AC meetings, we see that the questions of a clearer vision, improved coordination, and increased participation are increasingly debated. One of latest contributions to this debate is the December 2015 Reykjavik meeting of SAOs and WG chairs.20 Matters discussed here included coordination of WG work plans and scheduling,

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engagement with Permanent Participants (PPs), integration of traditional and local knowledge (TLK), relations between WGs and TFs and with external bodies. The meeting was described as an important occasion at which to discuss future and reoccurring questions on WG issues. What this short review reveals is the myriad of different diagnoses of the AC, and possible remedies. Ways of increasing the effectiveness of the Council are also attracting increased attention. However, it is difficult to find a common ground. There is no quick fix, and it will take time to find the optimal institutional structure of the AC, if possible at all. At the same time a lot of work has been done of late on strengthening coordination and information sharing among the WGs, both formally and informally. It is obviously necessary to balance what is political feasible and what seems rational from the point of view of any particular affected party, be that a member state, a representative of a WG or a PP. Since every WG and every state is different, the function, role, and focus of the Council’s work will always be debated. There is no such thing as ‘one’ Arctic, and the agenda of every Arctic state will reflect that insight. It should be a key ambition, however, to create a common vision/strategy, improve coordination, and establish maintainable arenas for participation. In the last part of this chapter, three key points will be discussed.

Vision, Coordination, and Participation With this general discussion of the Council in Arctic governance and the short review of earlier analyses as a background, we can now take a closer look at the opportunities and challenges we find in the structure of the WGs. The introductory discussion was also necessary to understand the Council’s potential and establish which of the proposed changes are politically feasible. In this part of the chapter I will present a few recommendations, the basis of which and the discussions associated with them derive mainly from the interviews conducted for the purpose of this work and key points from earlier analysis. The main question this chapter poses is: what steps should the AC, including its WGs, take to accommodate the growing range of projects and number of parties with a stake in the Arctic? A broadly conceptualized research question like this needs a closer definition. The main focus here is on the WGs, but also in collaboration and cooperation with PPs, observers, SAOs and ministeriallevel officials. The following discussion is structured under three headings (cf. the questions in introduction): vision; structure and coordination; and participation.

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Vision Inasmuch as the AC was set up as a forum with environmental challenges as its primary field of work, some of my interviewees say the Arctic has changed faster than the adjustments in the various WGs. Many have highlighted a need for a comprehensive vision of Arctic cooperation. Work on such a vision must be integrated at all levels in the AC, including ministerial, SAO, and WG levels. One of the main features of Arctic cooperation is the rotating chairmanship. The arrangement has two important attributes. First, it gives member states an opportunity to set the agenda for their chairmanship and to initiate political processes considered of particular importance to the government involved. In extension of this, each member state obtains a right of ownership to which direction the Council should be heading in. It also generates greater interest and involvement of member states. On the other hand, the rotating chairmanship also leads to a loss in continuity and the risk that the states that do not have the chairmanship will be less inclined to devote themselves to certain political priorities. At worst, the work of the Council will receive less attention because the Arctic agenda is insufficiently incorporated in the relevant Ministries of the member states. While the AC as a consensus body may avoid this problem to some extent, as long as it is not an international organization with the capacity and opportunity to penalize states for not implementing political decisions, it is a challenge that will not go away. The question is how the work of the Council can be given greater legitimacy in the member states, a legitimacy which in turn will foster wider political attention toward the work of AC during periods without a chairmanship. Finland’s Arctic Strategy 2013 has a possible remedy: an Arctic summit.21 It could be held, for example, every four years.22 It would be natural in this connection to draft a comprehensive vision of the direction the Council should be taking and identify the issues deserving of special attention.23 Such a mission statement could in turn guide the work of the SAOs and WGs, and increase the pressure on the bodies of the AC to coordinate and focus on activities that harmonize with the overall vision as formulated at the highest political level. On the other hand, however, it could result in the work of WGs not getting the desired attention. The problem with this recommendation is of course that the political level will only focus on what is politically opportune during the period in question. But it will nevertheless enhance work in specific political priority areas. That does not necessarily mean that important work relating to the Arctic will be forgotten, but that in certain periods the Council should put

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more political weight on certain fields. One consequence is that other important Arctic issues of a more regional, national, or local nature will have to be prioritized nationally, and thereby attract less attention at the level of the Council, particularly from the SAOs, and in consequence pan-Arctic challenges will be prioritized. This could ensure wider support for an overarching vision and hopefully give all states a sense of ownership to the work of the Council. During the drafting of this overarching strategy, it would make sense to incorporate a larger number of sectoral ministries. Challenges linked to the involvement of sectoral ministries were also mentioned by my interviewees on several occasions. A closer definition of the Council’s work could also improve coordination and, ultimately, implementation of decisions, and here the sectoral ministries could be given a more active role (see also below). The underlying reason behind this recommendation is the Council’s growing portfolio. Given the Council’s current structure – its small secretariat not least – there is a limit to the number of Programmes, projects, and fields of activity it can manage without compromising practical implementation and a strong capacity to set the political agenda. If we apply a similar logic to the WGs, it would be worthwhile to, for example, explore CAFF’s strategy: Actions for Arctic Biodiversity 2013 – 2021 – Implementing the Recommendations of the Arctic Biodiversity Assessment.24 The document spells out an extensive strategy that can be updated and revised every two years. If there are no special reasons to avoid longer-term strategies, the WGs should draft strategies for longer periods. Some of the smaller WGs (such as ACAP and EPPR) might find the strategy rather daunting to begin with. EPPR has nevertheless procedures for updating its strategy every five years via the SAOs. The work of these groups would still probably lie closer to the overall vision. The role of ACAP and EPPR (and for that matter also SDWG) would act more likely as functional units doing the practical work on specific actions. There is insufficient space in this chapter to discuss in detail how it should be done, but an obvious example is the role of the EPPR in the implementation of the two binding international agreements negotiated by the member states of the Council. A clearer vision/strategy for the work done at the Council, both at political and WG levels, will enhance continuity and allow for a more structured and coordinated approach to whatever political issues have been given priority. It is, in other words, a top-down initiative, the focus of which is on substance rather than organization. The political priorities (vision) would still inevitably affect the structure and coordination of the WGs.

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Structure and Coordination The establishment of a permanent secretariat in Tromsø boosted the Council’s knowledge-transfer capacity. It may also make it easier to coordinate the work of the Council’s various bodies. As already mentioned, at present, the Council’s WGs have 80 ongoing projects. The Council has expanded its portfolio and is focusing on numerous projects, some of which cover the same ground in part. A degree of overlap is not surprising. To take one example, virtually all of the groups have a maritime focus. There is broad awareness of these issues in the Council’s work, as can be seen in formal and informal forums for coordinating procedures and potential project overlaps. The Reykjavik meeting of December 2015 exemplifies a forum where the working group secretariats and chairmanship can discuss these issues.25 On the other hand, opinions are divided as to the scale of the challenge, as the multilateral audit on the Arctic states’ national authorities’ work with the AC shows. It therefore makes sense to ask whether overlapping should lead to a change in the structure of the WGs and a possible reduction in their number. Again, the opinions of my interviewees are divided. While the objective of this chapter is not to give a final recommendation on reducing the number of WGs or restructuring them, that should not prevent a critical debate taking place about overlapping mandates and action to improve coordination. On the basis of interviews and earlier evaluations, some problem areas have evidently received more attention than others and it would be natural in this context to note which, although this should not be taken as evidence that similar problems are not found in and between the other WGs. A recurring issue is the relationship between CAFF and AMAP. In the 2001 report on the working group structure, a merger of these two groups is discussed. According to the argument in favour, the groups cover some of the same ground, and having two scientific assessment groups can seem somewhat contrived. The question is whether a merger should be recommended in the present circumstances. A top-down merger of two of the Council’s most important WGs would be politically challenging. One feature of the Council’s work is that the WGs are spread among the member states. This type of geographical arrangement with, for instance, CAFF based in Iceland and AMAP in Norway, spreads ownership of the work of the Council. A merger would require centralization and pose considerable practical problems. A strong case would have to be made to convince the parties of the usefulness of merging the two groups. That is not to say the matter should not be discussed, and whether it might not strengthen the Council in the

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end, but it could also risk undermining established networks and dampening the motivation of personnel and member states. It might also be noted that CAFF’s clear focus on biodiversity stands on its own two feet, and the same can be said of AMAP’s work on contaminants. These areas can clearly not be understood independently of each other, but any reorganization must plainly be based on the substantive challenges, not structural considerations as such. SDWG attracts repeated attention in interviews and previous evaluations. The question is whether the WGs should all have a clear element of sustainability or whether issues concerning sustainable development in the Arctic should be delegated to a specific group, albeit with strong ties to the Arctic Economic Council. SDWG is the working group that is least like the others due to, among other things, its defined focus on sustainable development. Anyway, in the data gathered while preparing this project, SDWG’s role is a recurring theme, although ideas on how SDWG should be integrated with the other WGs or possibly strengthened are in short supply. However, a recurring challenge is that SDWG is to local in its sphere of operations. There is a need to elevate the priority of matters of importance to the entire Arctic population. Relevant fields here are education, health, and similar socio-economic demographics in Arctic areas. In my data material, relations between PAME and EPPR are another recurring issue. The division of tasks between PAME and EPPR is unclear. It is particularly in the field of pollution prevention one sees the overlaps. Basically, EPPR is more technical while PAME is more policy-oriented. According to my interviewees there is room for improvement and a need for further clarification of the groups’ respective mandates. We have also observed in recent years the appearance of several task forces (TF). The creation of task forces allows certain issues to climb up the agenda but some of my interviewees were nevertheless worried about potential competition between the TFs and WGs, not least for funding. The practice of creating several TFs and expert groups also expands the portfolio (both structurally and thematically), causing possible challenges for coordination and project overlap. At the same time, the recommendations and agreements negotiated within the TFs need to be followed up. Again, EPPR is a useful example. The group plays a key role in implementing the 2013 agreement. The question is whether it was necessary to set up a separate TF when EPPR could have been a natural place to draft the agreement. Steps should be taken to move the work of the TFs into the existing WG structure when there are no clear reasons against.

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In a broader, more comprehensive debate on working group mergers, the discussion in the 2001 report is a sensible place to start. The distinction between assessment/monitoring and implementation/follow-up was also mentioned by several interviewees. Any restructuring should anyway be embedded throughout the AC. One recommendation would therefore be to set up an expert panel to look at the question of coordination and restructuring. The balance between the purely scientific functions and implementation functions should be given priority here. A clear mandate is also required. It would be unwise and premature to issue a clear recommendation regarding the structure of the AC’s WGs on the basis of data assembled in connection with this project. It is nevertheless important to identify challenges and propose ways in which they can be overcome. This debate must involve all relevant stakeholders (PPs, SAOs and WGs). While the discussion could lead to changes in the structure of the WGs, it doesn’t have to. It is clear that earlier restructuring and reorganization proposals were not sufficiently integrated at the SAO, WG, and member-state levels. This may explain in part why these issues keep on appearing without any comprehensive changes resulting from them. This is not to say these debates have not led to a clearer awareness of the coordination challenges, something one can see by the action taken to improve collaboration across WGs. In continuation of the debate on coordination at the Council level, several of my interviewees underscored that the main challenge at the Council is national coordination. Here, however, standards differ considerably among the eight member states. Since the challenges facing the individual governments are different, recommendations must be based on studies of each country. Some issues are common to all, however. Procedures enabling the transfer of knowledge when SAOs are replaced should be strengthened; there needs to be a clearer inclusion of sector ministries; national coordination forums need to be set up; and there needs to be a sharper focus on implementation of recommendations and guidelines issued by the AC. Data collected (reviews and interviews) suggest that all states could make improvements in this respect. This matter will not be discussed further here. That the SAO level is being encouraged to take further steps to facilitate national coordination, which in turn will strengthen implementation, is not unnatural in light of the data collected for this project. The national implementation of the reports by the Supreme Audit Institutions would be a good place to start. By enhancing coordinated participation of relevant stakeholders, it should also be possible at the Council level to improve coordination. This is discussed under the final heading.

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Participation There has been an important discussion in the AC over the past few years on whether to admit a larger number of observers.26 Questions concerning participation have enjoyed prominence on the agenda. But the participation discussion should not be limited to the new observers allocated a seat at the Kiruna 2013 meeting. Earlier observers and PPs must also be included, along with national sectoral ministries and other regional and international cooperation forums, despite the fact that the status of the PPs is obviously completely different from that of the observers and other relevant stakeholders. A recurring challenge at the AC is the frequency of travel and growing number of meetings. Both were mentioned by several interviewees. One remedy could be to arrange one of the two annual SAO meetings in a capital city. This would lower the participation threshold for relevant stakeholders, including observers. In connection with such a SAO meeting, the WGs could conduct workshops on issues of relevance to the agenda. WGs convene in advance of SAO meetings already, but strengthening this practice would allow for further coordination. This should apply both to the design of new projects and running of existing ones. One may therefore recommend an annual ‘Arctic Week’ to be arranged in the capital of the current chairmanship. Some may object that the last thing the Arctic needs is another seminar on challenges and opportunities in the region. It is therefore important to emphasize the meeting’s function, namely to support the work of the Council, not simply as an opportunity for Arctic networking and brainstorming. The proposal is also based on what kind of role the Council plays in Arctic governance. The primary task of the Council, and in particular the WGs, is to inform relevant national (sector ministries for example) and international decision making forums (IMO, CBD, Stockholm Convention, etc.). Other relevant regional organizations such as the Barents Euro-Arctic Council, Arctic Coast Guard Forum, etc. could also be involved in this extended meeting. Of course, this will eventually depend on the meeting’s agenda. It would arguably make the parties more aware of the Council’s role in Arctic governance. It is nevertheless important to maintain a clear footprint in the Arctic region, by arranging the majority of the Council’s meetings in Arctic areas. Participation is also closely associated with financing. An obvious example is the Indigenous Peoples’ Secretariat fund, which is currently being discussed.27 In connection with increased participation of observers, indigenous groups could also raise awareness among relevant stakeholders of

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their central role in the Arctic. A clearer vision in the Council could also attract more political attention and in turn increased funding, cf. first section. One final point that deserves mention here is the observers’ role in the Council, especially in the WGs. There is a general perception that the inclusion of new observers has been successful. Following the decision in Kiruna in 2013, it was still evident that the observers’ role remains somewhat vague. The prepared guidelines were considered to be general, causing among other the adoption at the October 2015 SAO meeting in Anchorage, Alaska, of an amendment to the manual for observers.28 Having said that, efforts to coordinate procedures to include observers in WGs should not be terminated. This question was also discussed at the SAO-Chair-WGs meeting in Reykjavik in December 2015.29 The format should be formalized and independent of the priorities of the different chairmanships. An alternative would be to look at how to make this clearer in the AC rules of procedure. Several interviewees stressed the crucial role of the observers, and despite varying participation rates in the WGs, we have seen a positive change, with observers offering ideas on specific issues to the WGs. So we have seen a change from more general political attention on the Arctic to a clearer desire to contribute scientific resources to the WGs.

Conclusion It is important to recognize that the Council is but one element in the governance of the Arctic. States will be the most important stakeholders and UNCLOS the guiding framework. This means that even if the Council is transformed into a treaty-based international organization, it will continue in its key role to promote knowledge-generation and issue recommendations (and in some cases to constitute a framework for negotiating binding international agreements) on developments in the Arctic, which can be utilized at global, regional, national, and local levels. The essential question is how best to apply the knowledge already generated within the framework of the Council, in the sense that knowledge of the Arctic obtains value in the practical formulation of policy via implementation and knowledge transfer. The point of departure for this chapter is that the Council is increasingly perceived by stakeholders as a relevant forum for working together on Arctic challenges and opportunities, at the same time as the Council’s portfolio has expanded in step with mounting political focus on the region. In this debate, it is however again important to realize what the role of the Council is in Arctic governance. The Council is primarily a supplier of

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knowledge, not an international organization with a powerful mechanism to monitor and supervise the implementation of binding decisions. But we may note that the signing of binding international agreements by the eight member states is a signal of a new age, although both agreements concern cooperation and coordination and provide no guidance on the management of natural resources. Insofar as the Council does not change its character and achieves a stronger international legal status, the main task will still be to take part in relevant political processes at the national and international level. It is on this basis that the issues of vision, structure, coordination, and participation have been discussed here. The proposal to draft a clearer vision for the Council by, for example, creating an Arctic Summit, is based on the constant reference by my interviewees to the challenges relating to the need for continuity and a clear strategy. With regard to structural changes and closer coordination, one of the key findings in this chapter is the extremely wide variation in opinions of the scale of the problem and how it can be resolved. It would therefore be unwise to recommend a specific solution. The interviews conducted for this project reveal the lack of an integrated discussion of the challenges facing the Council and how to tackle them. The Council should therefore appoint an expert panel to discuss and recommend steps to improve coordination, identify overlaps, and propose if necessary a reorganization of the structure of the WGs. Interviewees were, nevertheless, clear that it is at the national level that coordination presents the greatest difficulties. This was also highlighted in the multilateral audit. It would therefore be prudent to study this work carefully and take the necessary action. The final question dealt with in this chapter concerned participation. A discussion of participation is closely related to the debate on the Council’s position in Arctic governance. Its role today is said mainly to be as a supplier of knowledge, but also, a soft-law mechanism in the preparation of guidelines and recommendations. If this work is to be strengthened, it is crucial that operating agencies such as the Arctic Coast Guard, search and rescue agencies, and oil spill services communicate and work together. It should therefore be a goal to set up cooperation forums for these services. One recommendation would be to locate a SAO meeting in a capital city and invite relevant organizations to attend and take part in an Arctic Week. This proposal is closely tied to the idea of a clearer vision, but also to the practical challenge of the growing frequency of travel. This will obviously be a challenging process and therefore an argument in favour of strengthening the permanent secretariat. The proposals presented here can be criticized for

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being too comprehensive or extensive. They will require, among other things, a general discussion on the Council’s priorities in an Arctic shaped by continual change. Nevertheless, in light of the data collected in this project, it would appear a necessary step. Despite a recurring debate on the challenges and opportunities of the Council’s work, there are still shortcomings in the implementation of broader initiatives that only treat the symptoms not the causes of the recurring challenges. Evidence indicates that coordination between the WGs, communication between SAO and WG levels, and involvement of relevant stakeholders have been strengthened, but given ever wider participation and an expanding portfolio, additional action should be considered. It is in this context the recommendations presented here should be seen.

Interviewees (with position and title when interviewed) Tom Barry, Executive Secretary, CAFF International Secretariat Tom Fries, Communications, Arctic Council Secretariat Susan E. Harper, Director General and Senior Arctic Official, Canada Else Berit Eikeland, Senior Arctic Official, Norway Alexander Shestakov, Director, WWF Global Arctic Programme Martin Forsius, AMAP Chair Morten Skovgaard Olsen, Programme Coordinator, Danish Energy Agency Lars Otto Reiersen, Executive Secretary, AMAP International Secretariat Nina Buvang Vaaja, Deputy Director, Arctic Council Secretariat Elle Merete Omma, Executive Secretary, Arctic Council Indigenous People’s Secretariat Martin Sommerkorn, Head of Conservation, WWF Global Arctic Programme Oran Young, Professor, Institutional and International Governance, Environmental Institutions

Notes 1. This chapter is an extended and revised version of Svein V. Rottem, The Arctic Council: Vision, Structure and Participation (Oslo, the Fridtjof Nansen Institute, 2016). 2. Arctic Council, The Arctic Council: Perspectives on a changing Arctic, the Council’s work, and key challenges. A joint memorandum of a multilateral audit on the Arctic States’ national authorities’ work with the Arctic Council (2015). Available at https://oaarchive.arctic-council.org/bitstream/handle/11374/1527/ EDOCS-2698-v1-ACSAOUS201_Anchorage_2015_10-1-1_Multilateral_Audit_ Report.pdf?sequence¼1&isAllowed¼y [Accessed 23 January 2016].

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3. All interviews were conducted winter 2015/2016. 4. Arctic Council, Kiruna Declaration (2013). Available at https://oaarchive.arcticcouncil.org/bitstream/handle/11374/93/MM08_Final_Kiruna_declaration_w_ signature.pdf?sequence¼1&isAllowed¼y [Accessed 9 February 2017]. 5. Arctic Monitoring and Assessment Program (AMAP), Conservation of Arctic Flora and Fauna (CAFF) and International Arctic Science Committee (IASC), Arctic climate impact assessment: impacts of a warming Arctic (ACIA) (Cambridge, Cambridge University Press, 2004). 6. Ibid., p. 8. 7. Arctic Ocean Conference, Ilulissat Declaration (2008). Available at http://www. oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf [Accessed 26 January 2017]. 8. Arctic Council, The Arctic Council: Perspectives on a changing Arctic, the Council’s work, and key challenges. A joint memorandum of a multilateral audit on the Arctic States’ national authorities’ work with the Arctic Council (2015). 9. In this chapter only findings by the Multilateral Audit are presented. It would, of course, be of great interest to compare and analyze all the SAIs, but due to the scope and length of this chapter, this is not possible. 10. Arctic Council, The Arctic Council: Perspectives on a changing Arctic, the Council’s work, and key challenges. A joint memorandum of a multilateral audit on the Arctic States’ national authorities’ work with the Arctic Council (2015), p. 1. 11. Ibid., p. 9. 12. Ibid., p. 10. 13. Ibid. 14. Ibid., pp. 10 – 11. 15. Pekka Haavisto, Review of the Arctic Council Structures. Consultant’s Study (Helsinki, Finish Institute of International Affairs, 2001). Available at https:// oaarchive.arctic-council.org/bitstream/handle/11374/449/ACSAO-FI01_6_AC_ Structure_final.pdf?sequence¼1 [Accessed 23 January 2017]. 16. Arctic Council, SAOs report to ministers on the review of the Arctic Council structures (Oulu, 2002). Available at https://oaarchive.arctic-council.org/ bitstream/handle/11374/515/ACSAO-FI03_8_Structure_review.pdf?sequence‘¼1& isAllowed¼y [Accessed 23 January 2017]. 17. Arctic Council, Improving effectiveness and efficiency of the Arctic Council (Kautokeino, 2008). Available at https://oaarchive.arctic-council.org/bitstream/ handle/11374/1668/3084-v1-ACSAONO04_Kautokeino_2008_13_2_Effectiveness_Efficiency.pdf?sequence¼1&isAllowed ¼ y [Accessed 23 January 2017]. 18. Olav S. Stokke and Geir Hønneland (eds), International Cooperation and Arctic Governance: Regime Effectiveness and Northern Region Building (London, Routlegde, 2007); Timo Koivurova and David VanderZwaag, ‘The Arctic Council at 10 years: Retrospect and prospects’, University of British Columbia Law Review 40/1 (2007), pp. 121 – 94; Oran R. Young, ‘Whither the Arctic? Conflict or cooperation in the circumpolar north’, Polar Record 45/1 (2009), pp. 73 – 82: Timo Koivurova, ‘Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic governance’, Polar Record 46/2 (2010), pp. 146 – 56; Erik J. Molenaar, ‘Current and prospective roles of the Arctic Council system within the context of the Law of the Sea’, The International Journal of Marine and Coastal Law 27/1 (2012), pp. 553 – 95.

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19. Paula Kankaanpa¨a¨ and Oran R. Young, ‘The effectiveness of the Arctic Council’, Polar Research 31/0 (2012), pp. 1– 14. Available at http://www.polarresearch.net/ index.php/polar/article/view/17176 [Accessed 23 January 2017]. 20. Arctic Council, Summary Report: SAO-Chair-WGs meeting Reykjavik (Reykjavik, 2015). Available at https://oaarchive.arctic-council.org/bitstream/handle/ 11374/1714/EDOCS-3190-v1-ACSAOUS202_Fairbanks_2016_2-3_SAOChairWGChair_meeting_report.pdf?sequence¼1&isAllowed¼y [Accessed 9 February 2017]. 21. Prime Minister’s Office Finland, Finland’s Strategy for the Arctic Region 2013 (Helsinki, Prime Minister’s Office Finland, 2013), p. 44. Available at http://vnk. fi/documents/10616/334509/Arktinenþ strategiaþ2013þen.pdf/6b6fb723-40ec4c17-b286-5b5910fbecf4 [Accessed 23 January 2016]. 22. It could in this connection be mentioned that during what we might choose to call the Nordic presidency, the Nordic countries did formulate a common strategy. 23. At the 2013 ministerial meeting in Kiruna, the document ’Vision for the Arctic’ was presented. The document is broadly formulated and can be criticized for lacking a clear prioritization of the Council’s work. See Arctic Council, Vision for the Arctic (2013). Available at https://oaarchive.arctic-council.org/bitstream/ handle/11374/287/MM08_Kiruna_Vision_for_the_Arctic_Final_formatted%20% 281%29.pdf?sequence¼1&isAllowed¼y [Accessed 23 January 2017]. 24. Conservation of Arctic Flora and Fauna (CAFF), Actions for Arctic biodiversity 2013 –2021 – Implementing the recommendations of the Arctic biodiversity assessment (CAFF, 2015). Available at http://www.caff.is/administrative-series/293actions-for-arctic-biodiversity-2013-2021-implementing-the-recommendationsof-th [Accessed 23 January 2017]. 25. Arctic Council, Summary Report: SAO-Chair-WGs meeting Reykjavik (Reykjavik, 2015). 26. Piotr Graczyk, ‘Observers in the Arctic Council – evolution and prospects’, The Yearbook of Polar Law Online 3/1 (2011), pp. 575– 633. ´ lgu Fund (Portland, 2016). Available at 27. Indigenous Peoples’ Secretariat, The A https://oaarchive.arctic-council.org/bitstream/handle/11374/1812/EDOCS3816-v1A-ACSAOUS203_Portland_2016_7-2_Algu_Fund.PDF?sequence¼ 1& isAllowed¼y [Accessed 14 February 2017]. 28. Arctic Council, Observer Manual for Subsidiary Bodies (2013, amended in 2015 and 2016). Available at https://oaarchive.arctic-council.org/bitstream/ handle/11374/939/EDOCS-3020-v1B-Observer-manual-with-addendum-finalized_ Oct2016.PDF?sequence¼8&isAllowed¼y [Accessed 23 January 2017]. 29. Arctic Council, Summary Report: SAO-Chair-WGs meeting Reykjavik (Reykjavik, 2015).

EPILOGUE

In this first book of a series of three, we set out the general legal and political structure as it applies to the Arctic. We introduced early in the book the major debates on the Arctic to give the reader an idea of the principal items on the agenda when the ‘new’ Arctic is discussed. The Law of the Sea is considered by all the Arctic coastal states as the essential legal framework in terms of obligations and rights in the area. This is unlikely to change. It is impossible to discuss Arctic governance without an understanding of the importance of the Law of the Sea. At the same time, the Arctic Council is also seen as the most important international forum in the region. It is important to note, however, that the Arctic Council is not an international body in the legal sense. It has no legal personality. This doesn’t mean the work of the forum is unimportant, only that it cannot issue legally binding rules. This is exemplified by the Search and Rescue Agreement and the Oil Pollution, Preparedness and Response Agreement, both of which were negotiated by the eight Member States, not the Council as such. What the contributors to the book are all at pains to point out is that the Arctic is not facing imminent conflict. The parties work together to regulate how one may act in the area. The Arctic Council has also established a meaningful platform for the production of knowledge and exchange of views on key issues affecting the Arctic. Researchers at FNI were not party to the antagonistic discourse between 2007 and 2012, which still occurs in the media and public debate from time to time. All of the contributions adopt a dispassionate, rational attitude to the often widespread rumours of the Arctic as a new Klondike or portal to new conflicts. This restrained approach is also evident in the next book in the series, where we look at three key issues in the development of the Arctic: energy,

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living marine resources and shipping. In focus in that volume is the commercial development of the region. What are the opportunities and limitations? An insight into these issues still requires an understanding of how activity is regulated in the north. In this first book we’ve hopefully provided the reader with a good overview, thus preparing the ground for the ensuing analysis of the economic potential of the Arctic. The next book in the series is therefore named: Arctic Governance II: Energy, Living Marine Resources and Shipping.

BIBLIOGRAPHY

Aalto, Pami, Simon Dalby and Vilho Harle, ‘The critical geopolitics of Northern Europe: Identity politics unlimited’, Geopolitics 8/1 (2003), pp. 1– 19. Aldrich, Howard E., Organizations Evolving (London, Sage, 1999). Alter, Karen J. and Sophie Meunier, ‘The politics of international regime complexity’, Perspectives and Politics 7/1 (2009), pp. 13 – 24. Anderson, Alun, After the Ice: Life, Death and Politics in the New Arctic (London, Virgin Books, 2009). Andresen, Steinar, Kristin Rosendal and Jon B. Skjærseth, ‘Why negotiate a legally binding mercury treaty’, International Environmental Agreements: Politics, Law and Economics 13 (2012), pp. 425 – 40. Archer, Clive, ‘General features of political development and possibilities for cooperation in the Arctic’, Current Research on Peace and Violence 11/4 (1988), pp. 137–45. Arctic Council Action Plan to Eliminate Pollution in the Arctic (ACAP), ACAP progress report to Senior Arctic Officials (Svartsengi, 23 – 24 October 2003). ———, ACAP progress report to Senior Arctic Officials (Yakutsk, 6 – 7 April 2005). ———, ACAP progress report to Senior Arctic Officials (Syktyvkar, 26 – 27 April 2006). Arctic Council, Arctic Council Rules of Procedures (1998). ———, SAOs report to ministers on the review of the Arctic Council structures (Oulo, 2002). ———, Improving effectiveness and efficiency of the Arctic Council (Kautokeino, 2008). ———, Observer Manual for Subsidiary Bodies (2013, amended in 2015 and 2016). ———, Vision for the Arctic (2013). ———, Kiruna Declaration (2013). ———, Iqaluit Declaration (2015). ———, Senior Arctic Officials’ Report to Ministers (2015). ———, Summary Report: SAO-Chair-WGs meeting Reykjavik (Reykjavik, 2015). ———, The Arctic Council: perspectives on a changing Arctic, the Council’s work, and key challenges. A joint memorandum of a multilateral audit on the Arctic States’ national authorities’ work with the Arctic Council (2015). ———, Observers (2016). Arctic Environmental Protection Strategy (AEPS), The Nuuk Declaration on Environment and Development in the Arctic (16 September 1993). Arctic Monitoring and Assessment Program (AMAP), Arctic Pollution Issues: A State of the Arctic Environment Report (Oslo, AMAP, 1997). ———, AMAP assessment report: Arctic pollution issues (Oslo, AMAP, 1998).

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INDEX

9/11 attacks, 36 Africa, 26, 217 Agenda, 21, 207 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (SAR Agreement), 16, 181, 185, 187, 189, 235, 251 Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEWA), 217 Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Agreement on Oil Spill Preparedness and Response (Oil Spill Agreement), 181– 98, 222, 235, 251 Alaska, 10, 11 – 12, 13, 14, 26, 30, 80, 96, 100, 117, 124, 135, 188 Anchorage, 235, 246 Barrow, 125 Exxon Valdez disaster, 135, 152 – 3 ALCOA, 29 Alpha Ridge, 112 – 13, 121, 123 Alter, Karen J., 60 – 1 Americas, 26, 53 Antarctica, 25, 91, 135, 145 – 7, 152– 73 Commonwealth Bay, 155 Antarctic Treaty (1959), 25, 33, 135, 145– 7, 163 Antarctic Treaty Consultative Meeting (ATCM), 146

Archer, Clive, 31 Arctic Biodiversity Assessment (ABA), 205, 208, 210, 211, 212, 214, 221, 222 Arctic Circle, 15, 108 Arctic Climate Impact Assessment (ACIA), 75, 79 – 80, 184, 187, 207, 208, 215, 233 Arctic Coast Guard Forum, 245, 247 Arctic Contaminants Action Plan (ACAP), 101 –2, 236, 237, 241 Arctic Council, 3, 4, 5, 16, 17, 30, 33 – 4, 38, 45, 47, 50, 55, 74, 83 – 4, 91 – 102, 181– 98, 231– 48, 251 AEPS, 32, 49, 187 biodiversity, 205– 23 climate change, 79, 80 environmental protection, 91 establishment (1996), 1, 25, 94 meetings, 94 – 5 monitoring, 96 – 7 security, 19 shipping, 65, 81 Arctic Council Task Force on Short-Lived Climate Forcers, 80, 195 Arctic Economic Council, 243 Arctic Environmental Protection Strategy (AEPS), 32, 49, 94, 97, 99, 102, 182, 187, 206, 209 Arctic Marine Shipping Assessment, 65, 76, 81, 99 Arctic Migratory Birds Initiative (AMBI), 217

268

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS

Arctic Military Environmental Cooperation (AMEC), 50, 55, 93 – 4 Arctic Monitoring and Assessment Programme (AMAP), 55, 58, 61, 64, 80, 94, 96, 100, 184, 187, 207, 210, 214, 221, 233, 236, 237, 242, 243, 248 Arctic Ocean, 1, 14, 33, 37, 45, 47, 49, 56, 101, 107, 133 – 47, 186, 196, 217, 218 continental shelf, 4, 77, 107– 28 fishing, 75, 82 ice, 10, 32, 75 Nansen Basin, 118 Arctic Offshore Oil and Gas Guidelines, 83, 98, 195 Arctic Treaty, 3, 33 – 4 Arctic Week, 5 Asia, 2, 10, 26, 30, 38, 48, 53, 217 Atlantic Ocean, 10, 13, 14, 24, 29, 65, 83, 99, 121, 134, 194, 217 Automatic Identification System (AIS), 145 Azores, 24 Baltic Sea, 93 Bangladesh, 113, 114 Barents Euro-Arctic Council, 245 Barents Euro-Arctic Region, 1, 25, 32, 45, 49– 50, 59 Barents Regional Council, 45, 50 Barents Sea, 27, 195 Barents 2020 initiative, 195 continental shelf, 118 fishing, 51, 52 Franz-Victoria Fan, 118 Loophole, 118, 126 Norway, 10, 28, 38, 78, 119, 120, 125 – 6 oil and gas, 191, 195 Russia, 11, 28, 38, 78, 119, 120, 125 –6 Barry, Tom, 248 Bay of Bengal, 113 Bay of Bengal case, 113 – 16, 126 Beaufort Gyre, 75 Beaufort Sea, 77, 78, 121 Bering Sea, 77 Bering Strait, 13, 135 Besnault, Amiral, 36, 37

Best Available Technology (BAT) standards, 52 Borgerson, Scott S., 32, 33, 34 Brazil, 53, 59 Rio de Janeiro, 207, 213 Brekke, Harald, 116 – 17 Britain see United Kingdom Bush, George W., see Bush administration Bush administration, 79, 125 Canada, 16, 19, 28, 30, 57, 59, 77, 80, 93, 100, 126, 182, 186, 188, 190, 192 Alberta, 12 – 13 Arctic Foreign Policy, 184 Arctic Waters Pollution Prevention Act (1985), 93 Beaufort Sea, 78 continental shelf, 111, 112, 113, 121 – 2, 123 Department of Foreign Affairs and International Trade Canada (DFAIT), 121 Extended Continental Shelf Program (ECSP), 121 –2 Fisheries and Oceans Canada (DFO), 121 icebergs, 134 Inuit, 96, 100 Iqaluit, 183, 186, 220, 222 LOS Convention, 17, 30, 99, 107, 117, 127 Natural Resources Canada (NRCan), 121 Northwest Passage, 14 petroleum, 12 – 13 resources, 55 temperatures, 26 Cape Town, 146 Chernobyl accident (1986), 95 China, 12, 14, 16, 29, 30, 31, 33, 36, 37, 45, 53, 59, 82, 95, 186, 232 Chukchi Borderland, 123 Chukchi Plateau, 117, 125 Chukchi Sea, 77, 121 Circumpolar Biodiversity Monitoring Programme (CBMP), 208, 214 Circumpolar Protected Areas Network (CPAN), 209, 220

INDEX Clinton, Hillary, 185 Cold War, 1, 3, 18, 19, 24 – 6, 27, 30, 31, 32, 35, 36 – 7, 38 – 9, 48, 66, 182 Columbian epoch, 35 Commission on the Limits of the Continental Shelf, 4, 17, 77, 107 – 28 Conference of Parliamentarians of the Arctic region, 25 Conservation of Arctic Flora and Fauna (CAFF), 94, 205 – 23, 236, 237, 241, 242, 243, 248 continental shelf, 4, 51, 107– 28 Convention on Biological Diversity (CBD), 207, 209, 210, 213– 16, 222, 245 Convention on the Continental Shelf (1958), 124 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973), 213 Convention on Long-Range Transboundary Air Pollution (CLRTAP), 61, 65, 80, 99, 100 Convention on Migratory Species (CMS) (1979), 213, 216, 217 Council of Baltic Sea States, 50 Crimea, 13, 186 Danish Continental Shelf Project (CSP), 122 Denmark, 13, 24, 28, 29, 30, 96, 154, 184, 185, 188, 194, 216, 217 Beaufort Sea, 78 borders, 27, 126 continental shelf, 51, 77, 111, 112, 113, 119 – 20, 122– 3 Lomonosov Ridge, 123 LOS Convention, 17, 30, 99, 107, 117, 122, 123, 127 Norway, 123 resources, 55 Russia, 123 Deudney, Daniel, 74 Doha, 63 Dussouy, Ge´rard, 37 Ecologically or Biologically Sensitive Sea Areas (EBSAs), 210

269

Economics of Ecosystems and Biodiversity, The (TEEB), 214 EEZs see exclusive economic zones Eikeland, Else Berit, 248 Ellesmere Island, 28 Emergency Prevention, Preparedness and Response (EPPR) working group, 55, 94, 97, 191, 236, 237, 241, 243 EU Northern Dimension, 25, 32 Eurasia, 35, 36 Europe, 10, 14, 26, 30, 36, 38, 48, 53, 80, 217 European Commission, 45, 50, 51, 194 European Parliament, 33, 45 European Union (EU), 13, 16, 25, 30, 32, 45, 82, 186, 232 exclusive economic zones (EEZs), 15, 17, 28, 55 – 6, 57, 65, 76 – 7, 81, 92, 93, 94, 136, 144, 170, 171, 172, 173, 193 ExxonMobil, 13 Faroe Islands, 24, 26, 29, 120, 216, 217 financial crisis (2008), 53 Finland, 30, 32, 33, 54, 182, 184, 185, 186, 196, 216, 217, 240 Rovaniemi process, 182, 237 Finnish Institute of International Affairs, 237 Forsius, Martin, 248 France, 11, 16, 38, 55, 95 Franz Josef Land, 96 Fridtjof Nansen Institute (FNI), 2 – 5, 251 Fries, Tom, 248 G8, 55 Gakkel Ridge, 116, 123 Gazprom, 11, 195 Gehring, Thomas, 64 generally accepted international rules and standards’ (GAIRAS), 164–8, 173 Geneva Conventions, 92 Germany, 16, 45, 55, 135 Global Biodiversity Indicators Partnership (BIP), 215 Global Earth Observation System of Systems – Biodiversity Observations Networks (GEO BON), 215 Gorbachev, Mikhail, 49, 182

270

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS

Grand Banks, 121 greenhouse gas (GHG) emissions, 53, 59 Greenland, 9, 10, 24, 28, 29, 30, 31, 33, 78, 126, 185, 188, 194, 216, 217 continental shelf, 51, 77, 111, 112, 113, 119 – 20, 122– 3 East Greenland, 27 icebergs, 10, 134 Inuit, 96, 100 LOS Convention, 17, 30, 107, 117, 127 Nuuk, 181, 183, 185 Petermann Glacier, 75 resources, 12, 13, 55 Thule base, 24, 30, 37 Greenland Sea, 118 Greenpeace, 190 Gulf of Mexico, 51 Haavisto, Pekka, 237 Hans Island, 28 Harper, Susan E., 248 Heartland Theory, 35 High Seas Convention (1958), 165 HIV, 50 Hønneland, Geir, 3 Iceland, 24, 26, 30, 33, 120, 184, 185, 186, 217 Keflavik, 24, 25, 26, 27 Reykjavik, 236, 238, 242 Ilulissat declaration (2008), 16, 30, 31, 33, 56, 185, 193, 218– 19 India, 12, 16, 30, 36, 45, 53, 59, 114, 186, 232 indigenous peoples, 25, 30, 32, 34, 38, 50, 80, 96, 100, 133, 186 – 7, 198, 206– 9, 211, 213, 214, 215, 235 Indigenous Peoples’ Secretariat, 245, 248 Interagency Group on Ocean Policy and Law of the Sea, 124 Intergovernmental Panel for Biodiversity and Ecosystem Services (IPBES), 215 International Arctic Science Committee (IASC), 49, 207

International Association of Classification Societies (IACS), 139– 43, 161, 166 International Atomic Energy Agency (IAEA), 55, 62 – 3, 166 International Code of Safety, 135 International Convention for the Control and Management of Ships Ballast Water and Sediments, 2004 (BWM Convention), 162 – 3 International Convention for the Prevention of Pollution from Ships (MARPOL), 15, 51, 136, 138, 144, 151– 73, 194 International Convention for the Safety of Life at Sea (SOLAS), 15, 135, 136, 137, 138, 144, 145, 151– 73 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 138, 161– 2 International Court of Justice (ICJ), 27, 28, 126 International Labour Organization (ILO), 166 International Maritime Organization (IMO), 45, 52, 56, 57, 59 – 60, 81, 83, 94, 98, 151 –73, 190, 191, 193– 5, 218, 222, 245 Guidelines for Ships Operating in Arctic Ice-covered Waters, 15, 52, 133, 136, 137, 138, 139 – 41, 145– 7, 153, 194 Marine Safety Committee (MSC), 135 – 6, 137, 151 – 6 Polar Code, 4, 15, 52, 60, 65, 135 – 6 Ship Design and Equipment (DE), 135, 136, 146, 152 Sub-Committee on Ship Design and Construction (SDC), 152 International Mercury Convention, 184, 233 International Relations (IR), 23 – 4, 34 International Seabed Authority (ISA), 17 International Tribunal for the Law of the Sea (ITLOS), 113– 15, 126

INDEX International Union for Conservation of Nature and Nature Protection (IUCN), 91 Inuit peoples, 30, 96, 100 Iqaluit Declaration, 222 Italy, 16, 30, 55, 186, 232 Japan, 16, 30, 36, 45, 82, 112, 186, 232 Jensen, Øystein, 4 Kankaanpa¨a¨, Paula, 238 Kara Gate see Kara Strait Kara Sea, 13 Kara Strait, 13 Kerry, John, 124, 185 Kiruna meeting 2006, 91 2013, 16, 181, 182, 183, 185, 186 – 7, 189, 200, 208, 219, 232, 245, 246 Kjelle´n, Rudolph, 35 Koivurova, Timo, 209 Kola Penninsula, 24, 38, 54, 101, 137 Kuznetz coal basin, 101 Kyoto Protocol, 59 Labe´vie`re, Richard, 30 – 1, 37 Labrador Sea, 121 Lacoste, Yves, 36 Lavrov, Sergei, 183, 234 Law of the Sea Convention (1982) (LOS Convention), 3, 17 – 18, 26, 27, 28, 31, 34, 38, 60, 76 – 7, 91 – 102, 107– 28, 133– 47, 151 –73, 192, 193, 198, 251 Arctic Treaty, 33 ˚ rhus POPs Protocol, 99 A Article 76, 77, 108 – 24, 127 Article 234, 13 – 14, 56 – 7, 93, 137, 152, 170– 2, 173, 218 biodiversity, 217– 19 fisheries, 82, 83 Geneva conference (1958), 92 legal framework, 4, 25, 56, 246 resources, 83 security, 73 shipping, 15, 81, 136

271

Third United Nations Conference on the Law of the Sea (UNCLOS III), 114, 117, 166 Le Monde (newspaper), 28 Lima, 146 Lloyd’s Register and American Bureau of Shipping, 143 LNG, 11, 14 Lomonosov Ridge, 28, 29, 77, 112, 113, 116, 121, 122, 123 London, 155 London Mining, 29 Long Range Identification and Tracking (LRIT), 145 Loran-C, 24 LOSC see Law of the Sea Convention (1982) Mackinder, Halford, 35, 36 Macondo accident (2010), 51 Marine Environment Protection Committee (MEPC), 136, 151, 152– 6 Marine Oil Pollution Preparedness and Response (2013), 49 Marine Protected Areas (MPA), 210 Mendeleev Ridge, 112 –13, 121, 123 Meunier, Sophie, 60 – 1 Middle East, 123, 217 Moe, Arild, 3 Moeller, Per Stig, 185 Moscow, 27 MV Akademik Shokalskiy, 155 MV Explorer, 153 Myanmar, 113 – 15 Nansen Basin, 118 – 20 Nansen, Fridtjof, 2 Nares Strait, 28 NATO, 24, 26, 27, 35 North Atlantic Treaty (1949), 26 – 7 Strategic Concept (2010), 27 Netherlands, 16 New York, 122 NorBalWet, 216 Norilsk, 101 North America, 29, 30, 37, 48, 80, 134 North Atlantic, 10

272

ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS

North-East Atlantic Fisheries Commission (NEAFC), 51, 65–6, 82 Northeast Passage, 13, 76, 188 see also Northern Sea Route Northern Dimension Environmental Partnership (NDEP), 55 Northern Fleet, 24, 54 Northern Forum, 45 Northern Sea Conference, 62, 98 Northern Sea Route (NSR), 13 – 15, 53, 78, 134, 188 North Pole, 1, 27, 29, 30, 37, 39, 112, 117, 123 Northwest Passage (NWP), 14, 27, 76, 134 Norway, 2, 3, 10, 27, 55, 98, 137, 154, 182, 185, 188, 190, 191, 192, 197, 216, 217, 235 Banana Hole, 118, 120 Barents Sea, 10, 28, 38, 78, 119, 120, 125 – 6 continental shelf, 51, 111, 118– 20, 122 Denmark, 123 fisheries, 65 – 6 Kautokeino, 238 Kola Penninsula, 54 LOS Convention, 17, 30, 107, 127 policy, 12 resources, 11, 13, 55 Røst, 98 Russia, 119, 120, 125– 6 Svalbard, 25, 27 – 8, 96, 118, 119, 122, 157, 189 Tromsø, 95, 181, 185, 197, 232, 236, 242 Trondheim, 211 Vardø, 98 waste, 50, 94 Norwegian Research Council, 2 Norwegian –Russian Joint Commission on Fisheries, 51, 65, 196 Norwegian Sea, 118, 120 Nova Scotia, 121 Novaya Zemlya, 134 Offerdal, Kristine, 97 Olsen, Morten Skovgaard, 248

Olympics, 49 Omma, Elle Merete, 248 OPEC countries, 10 OSPAR Convention on Marine Pollution in the North East Atlantic, 51 – 2, 62, 83, 98, 194 Østerud, Øyvind, 3 Ottawa Declaration, 183 Pacific Ocean, 13, 14, 29, 35, 134, 217 Panama Canal, 26, 76 Paris Treaty (1920), 27 PCBs (polychlorinated biphenyls), 50, 95, 96 Permanent Participants (PPs), 15 – 16, 186– 7, 197, 239, 244, 245 Poland, 16 Polar Class ships, 138, 139, 141, Polar Code (International Code for Ships Operating in Polar Waters), 4, 15, 45, 81, 151– 73, 194, 218, 222 POPs (persistent organic pollutants), 53– 4, 65, 95, 96, 99 – 100 ˚ rhus POPs Protocol, 99 – 100 A Minamata Convention on Mercury (2013), 54, 80 Stockholm Convention (2001), 54, 80, 99, 100, 184, 233, 245 Task Force on POPs, 100 Prip, Christian, 4 Protection of the Arctic Marine Environment (PAME), 81, 94, 97, 99, 101, 184, 210, 214, 218, 236, 237 Putin, Vladimir, 78 Ramsar Convention (1971), 213, 216 Raustiala, Kal, 48, 61 Reagan, Ronald, 123 Reiersen, Lars Otto, 248 Rio Declaration, 207 Rosneft and Western, 13, 195 Rottem, Svein Vigeland, 5 Rumsfeld, Donald, 123 Russia, 2, 3, 12, 18 – 19, 28, 29, 31, 38, 50, 51, 52, 59, 62 – 3, 78, 101, 137, 188, 189, 192, 235

INDEX Barents Sea, 38 borders, 27, 77, 83 continental shelf, 111, 112, 113, 120 – 1, 122 Crimea, 13, 186 Denmark, 123 Duma, 77 fisheries, 65 – 6 LOS Convention, 17, 27, 30, 57, 107, 116, 117, 127 North Pole, 1 Norway, 119, 120, 125– 6 NSR, 14 nuclear safety, 54 – 5 Ob River, 101 OSPAR, 99 resources, 10, 11, 13, 14, 29, 36, 55 shipping, 15 St Petersburg, 113 submarine routes, 134 Urals, 101 waste, 50, 54, 55, 94 Yenisei River, 101 Russian Federal Service for Hydrometeorology and Environmental Monitoring (Rosgidromet), 96 Russian Federation see Russia Scoresby, William, 133– 4 scramble for the Arctic, 1, 2, 23, 32 – 4, 37 Scrivener, David, 32 Search and Rescue (2011), 49, 58 – 9, 222 Selin, Henrik, 100 Senior Arctic Officials (SAOs), 235 Shell, 12 Shestakov, Alexander, 248 Shevardnadze, Eduard, 74 Shipboard Oil Pollution Emergency Plan (SOPEP), 138 Shtokman gas, 11, 53 Siberia, 26, 28, 30, 101 Singapore, 16, 30, 186, 232 SIPRI, 18 Social Darwinism, 36 Sommerkorn, Martin, 248 Southern Ocean, 146 South Korea, 14, 16, 30, 45, 186, 232 Soviet Northern Fleet, 38

273

Soviet Union (USSR), 18, 24, 25, 35, 52, 56, 62, 92 Spain, 16 Standing Committee of Parliamentarians of the Arctic Region, 91 Statoil, 11, 195 Stokke, Olav Schram, 3, 32 Stone, David, 64 Straddling Fish Stocks Agreement (1995), 165 Suez Canal, 26, 76 Supreme Audit Institutions (SAIs), 235 Sustainable Development Working Group (SDWG), 210, 236, 237, 241, 243 Svalbard archipelago, 25, 27 – 8, 96, 118, 119, 122, 123, 127, 157, 189 Jan Mayen, 27 Spitzbergen Archipelago, 27 Svalbard Treaty (1920), 25, 28 Sweden, 30, 33, 55, 100, 181, 184, 185, 186, 196, 208, 216, 217 see also Kiruna meeting UN Conference on the Human Environment, Stockholm, 216 Symonds, Philip, 117 Task Force for Action on Black Carbon and Methane, 219 Thual, Franc
ois, 37 Total, 11, 195 Ukraine, 13 UN Commission on the Limits of the Continental Shelf, 28 UN Conference on Environment and Development (UNCED), 207, 213, 216 UN Economic Commission for Europe (ECE) Task Force, 61, 64 – 5 UN Fish Stocks Agreement (1995), 82, 93 UN Framework Convention on Climate Change, 59, 79 United Kingdom, 16, 28, 38, 50, 51, 55, 92, 94 nuclear plants, 95 United Nations, 33, 81, 172 General Assembly, 124, 172, 217

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ARCTIC GOVERNANCE, VOL.1: LAW AND POLITICS

Intergovernmental Panel on Climate Change, 80 United Nations Convention on the Law of the Sea (UNCLOS) see Law of the Sea Convention United Nations Environment Programme (UNEP), 62, 74, 80, 218 United States, 24, 27, 30, 37, 59, 77, 124, 154, 188, 189, 190 Arctic policy, 78, 125 Beaufort Sea, 78 Cold War, 18, 31 continental shelf, 111, 123 – 5 geopolitics, 38 Kyoto Protocol, 59 LOS Convention, 17, 26, 30, 76, 78, 99, 107, 117, 123– 5, 217 military bases, 26, 27 National Oceanic and Atmospheric Administration, 124 nuclear safety, 55 POPs, 96 resources, 11, 12, 29, 53, 55, 92 waste, 50, 94 United States Geological Survey (USGS), 10, 11, 108 University of Oslo, 3

USCG Cutter Healy, 125 US Chamber of Commerce, 124 US Cooperative Threat Reduction (CTR) programme, 54 US Department of State, 124 US Department of the Interior, 124 US Extended Continental Shelf Task Force, 124, 125 US Geological Survey, 18, 108 US Senate, 78, 124, 125, 127 USSR see Soviet Union Vaaja, Nina Buvang, 248 Vessel Traffic Services (VTS), 145 Victor, David G., 48, 61 Vienna Convention on the Law of Treaties, 163 World Charter for Nature, 207 World Trade Organization (WTO), 63 – 4 World War II, 24, 30 World Wide Fund for Nature (WWF), 91, 190, 248 Young, Oran, 32, 238, 248 Zellen, Barry S., 34