The Routledge Handbook of Polar Law 9780367711702, 9781032519982, 9781003404828

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THE ROUTLEDGE HANDBOOK OF POLAR LAW

Polar law describes the normative frameworks that govern the relationships between humans, States, Peoples, institutions, land and resources in the Arctic and the Antarctic. These two regions are superficially similar in terms of natural environmental conditions, but the overarching frameworks that apply are fundamentally different. The Routledge Handbook of Polar Law explores the legal orders in the Arctic and the Antarctic in a comparative perspective, identifying similarities and differences. It points to a distinct discipline of “polar law” as the body of rules governing actors, spaces and institutions at the poles. Four main features define the collection: the Arctic-Antarctic interface; the interaction between global, regional and domestic legal regimes; the rights of Indigenous Peoples; and the increasing importance of private law. While these broad themes have been addressed to varying extents elsewhere, the editors believe that this Handbook brings them together to create a comprehensive (if never exhaustive) account of what constitutes polar law today. Leading scholars in public international and private law and experts in related fields come together to offer unique insights into polar law as a burgeoning discipline. Yoshifumi Tanaka is Professor of International Law, with specif ic focus on the law of the sea, at the Faculty of Law, University of Copenhagen. He is a member of the Centre for Private Governance (CEPRI) and the Research Group SHOC (Shipping and Ocean Law). He holds a DES and a PhD from the Graduate Institute of International Studies, Geneva (currently the Graduate Institute of International and Development Studies, Geneva), and a LLM from Hitotsubashi University, Tokyo. He is the single author of f ive books: Predictability and Flexibility in the Law of Maritime Delimitation (2006; 2nd ed. 2019), A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (Routledge 2008), The International Law of the Sea (1st ed., 2012; 4th ed. 2023), The Peaceful Settlement of International Disputes (2018) and The South China Sea Arbitration: Toward an International Legal Order in the Oceans (2019). He has published widely in the f ields of the law of the sea, international environmental law and peaceful settlement of international disputes. Rachael Lorna Johnstone is Professor of Law at the University of Akureyri, Iceland, and Professor of Law at Ilisimatusarf ik (University of Greenland). Rachael grew up on the north coast of Scotland before studying law at the University of Glasgow, the European Academy of Legal Theory in Brussels and the University of Toronto. Her legal education is of the Western model, a mix of common law and civil law traditions. It is to her discredit that despite studying for eight years in three countries with colonial histories, she graduated from each of them with very little knowledge of colonialism or Indigenous law. She took up a teaching post at the University of Akureyri, Iceland, in 2003, where she has since been based. In 2011, she enrolled in the university’s master’s programme in polar law and began to specialise increasingly in that f ield. Rachael has also taught and conducted research in various capacities at Ilisimatusarf ik (the University of Greenland) since 2011 and she has learned a great deal from Inuit scholars, not least her Greenlandic students. In the past decade, she has turned her attention increasingly to the rights of Indigenous Peoples amid broader questions of decolonisation of international law. This entails conscious “unlearning” of many of the assumptions of and about international law that constrained her earlier research. She does not presume to speak on behalf of Indigenous Peoples or present an Indigenous viewpoint. Vibe Ulfbeck is Professor of Private Law with a special focus on maritime law at the Faculty of Law, University of Copenhagen. She holds an LLM from University of Cambridge, UK and a Dr. Jur. degree from the University of Copenhagen. She is the director of CEPRI (Centre for Private Governance), head of the Research Group SHOC (Shipping and Ocean Law) and founder of the Sustainability Hub at the Law Faculty. She has written extensively on contract law, tort law and maritime law issues and takes a special interest in the role of private actors in carrying out public interest tasks. She is the author of a number of articles concerning the exploitation of minerals in the Arctic and the co-editor of the books Responsibilities and Liabilities for Commercial Activity in the Arctic: The Example of Greenland (Routledge 2016), Law and Responsible Supply Chain Management: Contract and Tort, Interplay and Overlap (Routledge 2019) and Maritime Organisation, Management and Liability: A Legal Analysis of New Challenges in the Maritime Industry (2021).

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THE ROUTLEDGE HANDBOOK OF POLAR LAW

Edited by Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck; individual chapters, the contributors The right of Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck to be identif ied as the authors of the editorial material and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks and are used only for identif ication and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-0-367-71170-2 (hbk) ISBN: 978-1-032-51998-2 (pbk) ISBN: 978-1-003-40482-8 (ebk) DOI: 10.4324/9781003404828 Typeset in Bembo by Apex CoVantage, LLC

CONTENTS

List of Illustrations List of Acronyms and Abbreviations List of Contributors Acknowledgements

x xi xv xxiv

  1 Polar Law as a Burgeoning Discipline Rachael Lorna Johnstone, Yoshifumi Tanaka and Vibe Ulfbeck

1

PART I

International Legal Order in the Polar Regions

13

SECTION A

Legal Regimes Governing the Polar Regions

15

  2 Polar Legal System Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck

17

  3 Territorial Claims to Antarctica Patrizia Vigni

33

  4 Challenges Relating to Baselines in Polar Regions Suzanne Lalonde and Clive Schof ield

47

  5 Maritime Boundary Delimitation in the Polar Regions Bjarni Már Magnússon and Snjólaug Árnadóttir

63

v

Contents

  6 The Jurisdiction of Coastal States in Ice-Covered Waters Suzanne Lalonde and Ted L. McDorman

84

  7 Navigational Rights and Freedoms in Polar Regions Erik Franckx

103

  8 Scientif ic Research in the Polar Regions Betsy Baker

123

  9 The Changing Maritime Security Landscape in the Polar Regions Sof ia Galani

141

10 Dispute Settlement and the Polar Regions Donald R. Rothwell

157

SECTION B

Environmental Protection of the Polar Regions

173

11 Two Models on Environmental Protection of the Polar Regions Yoshifumi Tanaka

175

12 Environmental Impact Assessment in the Polar Regions Romain Chuffart and Julia Jabour

189

13 Climate Change and the Polar Regions Tim Stephens

205

14 Protection of Biological Diversity in the Polar Regions by Marine Protected Areas Ingvild Ulrikke Jakobsen 15 Wilderness Protection in the Polar Regions Antje Neumann

220 240

SECTION C

Polar Resource Management

261

16 Regulation of Fisheries in the Polar Regions Rosemary Rayfuse

263

17 Marine Mammals in the Polar Regions Malgosia Fitzmaurice and Robert C. Steenkamp

279

vi

Contents

18 International Regulation of Mineral Resources Activities in the Polar Regions Alan D. Hemmings and Timo Koivurova

303

PART II

Regional Issue of International Institutions and Actors

321

SECTION A

Institutional Approach to the Polar Governance

323

19 The IMO and Outstanding Maritime Safety and Environmental Issues under the Polar Code Marel Katsivela

325

20 The International Seabed Authority and the Polar Regions Edwin Egede

342

21 The Arctic Council and Its “Legislative” Activities Natalia Loukacheva

356

22 The Antarctic Treaty Consultative Meetings as a Forum of Law-Making Luis Valentín Ferrada

366

SECTION B

Rights of Indigenous Peoples

383

23 Colonisation at the Poles, Incomplete Decolonisation and the Creation of Indigenous Peoples Rachael Lorna Johnstone

385

24 Indigenous Rights and Human Rights Paul Patton

408

25 The Girjas Saami Case: Indigenous Peoples’ Right to Dispose Freely of Natural Resources Jan Mikael Lundmark

424

26 Natural Resource Development in the Arctic and the Question of Saami Land Rights in Finland Tanja L. Joona and Juha Joona

437

vii

Contents SECTION C

Special Issues

457

27 The Evolving Constitution of Greenland Sune Klinge, Helle Krunke, Manasse Lars Mikaelsen and Natuk Lund Olsen

459

28 Svalbard Tore Henriksen

475

29 Japan and the Polar Regions Kentaro Nishimoto

498

30 China and the Polar Regions Nengye Liu, Sanna Kopra and Jiliang Chen

512

PART III

Private Governance in the Polar Legal System

527

SECTION A

Natural Resources

529

31 Mineral Exploitation Licences in Greenland: The Modif ication Issue Rasmus Grønved Nielsen and Vibe Ulfbeck

531

32 Sustainable Development in Contract Law: Greenland Impact Benef it Agreements (IBAs) Lone Wandahl Mouyal

548

33 Meaningful Stakeholder Consultation and Social Impact Assessment Karin Buhmann

564

34 Corporate Governance and Alaska Native Corporations Grant Christensen

582

35 Mutually Agreed Terms, Arctic Genetic Resources and Private International Law David Leary 36 China’s Investment Treaties with the Arctic States: Time for Revision? Maxim Usynin

viii

596 613

Contents SECTION B

Shipping in the Polar Regions

629

37 Charterparty Contracts and Clauses for Arctic Shipping Richard L. Kilpatrick

631

38 Oil Pollution Liability for Polar Shipping Erik Røsæg

646

39 Polar Cruise Ship Tourism and Liability for Injuries of Passengers and Workers – Are They in the Same Boat? Vibe Ulfbeck and Marlene Louise Buch Andersen 40 Shipping, Insurance and the Polar Code Trine-Lise Wilhelmsen and Hans Jacob Bull

662 674

Index692

ix

ILLUSTRATIONS

Figures 7.1 Shipping routes in the Arctic 22.1 ATCM decision-making process 22.2 ATCM decision-making requirements

115 374 379

Tables 13.1 Summary of climate impacts on the polar regions 35.1 Examples of products on the market derived from Arctic genetic resources

207 598

Maps 2.1 2.2 26.1 26.2 26.3 40.1

Map of the Antarctic Map of Arctic administrative areas Map of the borders of the Lapp villages Map of the common Forest of Inari Map of land use projects in the reindeer-herding areas in Finland Map over excluded and conditional trading areas

x

18 19 440 448 453 681

ACRONYMS AND ABBREVIATIONS

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 1998 Arctic Council AC ACAP Arctic Contaminants Action Programme Working Group (Arctic Council) Arctic Environmental Protection Strategy, 1991 AEPS AMAP Arctic Monitoring and Assessment Programme Working Group (Arctic Council Areas of Particular Environmental Interest APEI Arctic SAR Agreement Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 2011 Antarctic Specially Managed Area ASMA ASPA Antarctic Specially Protected Area AT Antarctic Treaty, 1959 ATA Antarctic Treaty Area ATCM Antarctic Treaty Consultative Meeting ATS Antarctic Treaty System BBNJ Biological Diversity Beyond National Jurisdiction BWM Convention International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 Conservation of Arctic Flora and Fauna Working Group (Arctic CAFF Council) Convention for the Conservation of Antarctic Marine Living Resources CAMLR Convention CAOFA International Agreement to Prevent Unregulated Fishing in the High Seas of the Central Arctic Ocean, 2018 (Central Arctic Ocean Fisheries Agreement) Convention on Biological Diversity, 1992 CBD Aarhus Convention

xi

Acronyms and Abbreviations

CCAMLR CCAS CEE CEP CERD CHM CITES CLCS CP CRAMRA CSR ECHR EEA EEZ EIA EPPR Espoo Convention EU FPIC FSA

HSMs IA IASC IATTO IBA ICARP ICCPR ICES ICESCR ICJ ICJ Statute ICRW IEE IFC IK

Commission for the Conservation of Antarctic Marine Living Resources Convention on the Conservation of Antarctic Seals 1972 Comprehensive Environmental Evaluation (Antarctic Treaty Systemcontext) Committee for Environmental Protection (Antarctic Treaty System) Convention on the Elimination of All Forms of Racial Discrimination, 1965 Common Heritage of Mankind Convention on International Trade in Endangered Species of Wild Flora and Fauna, 1973 UN Commission for the Limits of the Continental Shelf Consultative Party (to Antarctic Treaty) Convention for the Regulation of Antarctic Mineral Resource Activities, 1988 (not in force) Corporate social responsibility European Convention on Human Rights and Fundamental Freedoms, 1950 European Economic Area exclusive economic zone Environmental impact assessment Emergency Prevention Preparedness and Response Working Group (Arctic Council) Convention on Environmental Impact Assessment in a Transboundary Context, 1991 European Union free, prior and informed consent Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December  1982 Relating to the Conservation of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995 Historic Sites and Monuments Impact assessment International Arctic Science Committee International Association of Antarctica Tour Operators Impact benef it agreement The International Conference on Arctic Research Planning International Covenant on Civil and Political Rights, 1966 International Council for the Exploration of the Sea International Covenant on Economic, Social and Cultural Rights, 1966 International Court of Justice Statute of the International Court of Justice, 1945 International Convention on the Regulation of Whaling 1946 Initial Environmental Assessment (Antarctic Treaty System) International Finance Corporation Indigenous Knowledge

xii

Acronyms and Abbreviations

Internationally Legally Binding Agreement International Labour Organization Indigenous and Tribal Peoples Convention, 1989 International Maritime Organization Intergovernmental Panel on Climate Change International Polar Year International Seabed Authority Indigenous Technical Knowledge International Tribunal for the Law of the Sea International Whaling Commission Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, 2003 Kyoto Protocol to the UNFCCC, 199 Kyoto Protocol LOSC UN Convention on the Law of the Sea, 1982 MARPOL International Convention for the Prevention of Pollution from Ships, 1973/78 nautical miles M MOSPA Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic Memorandum of Understandings MOUs MPA Marine Protected Area Madrid Protocol Protocol on Environmental Protection to the Antarctic Treaty, 1991 MSC Marine Scientif ic Research Nagoya Protocol Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benef its Arising from the Utilization, 2010 NCP National contact point OECD Organization for Economic Cooperation and Development OHCHR Off  ice of the United Nations High Commissioner for Human Rights Convention for the Protection of the Marine Environment of the OSPAR North-East Atlantic, 1992 Declaration on the Establishment of the Arctic Council, 1996 Ottawa Declaration PA Preliminary Assessment (Antarctic Treaty System) PAME Protection of the Marine Environment Working Group (Arctic Council) Paris Agreement, 2015 Paris Agreement Part XI Implementation Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, 1994 Agreement PBRS Polar Bear Range States PBSG Polar Bear Study Group PICES North Pacif ic Marine Science Organization Polar Code International Code for Ships Operating in Polar Waters PSSA Particularly Sensitive Sea Area RFMO Regional Fisheries Management Organisation Rovaniemi Declaration Declaration on the Protection of the Arctic Environment, 1991 The Scientif ic Committee on Antarctic Research SCAR ILBI ILO ILO C169 IMO IPCC IPY ISA ITK ITLOS IWC Kiev Protocol

xiii

Acronyms and Abbreviations

SCTF SDGs SDWG SIA SLO SOLAS TLK UN UN Charter UN Framework UNDRIP UNFCCC UNGPs UNTS VCLT WG

The Task Force for Enhancing Scientif ic Cooperation in the Arctic UN Sustainable Development Goals Sustainable Development Working Group (Arctic Council) Social impact assessment Social licence to operate International Convention for the Safety of Life at Sea, 1974 Traditional and Local Knowledge United Nations Charter of the United Nations, 1945 UN Protect, Respect and Remedy: a Framework for Business and Human Rights, 2008 United Nations Declaration on the Rights of Indigenous Peoples, 2007 United Nations Framework Convention on Climate Change, 1992 UN Guiding Principles on Business and Human Rights, 2011 United Nations Treaties Series Vienna Convention on the Law of Treaties 1969 Working Group (Arctic Council)

xiv

CONTRIBUTORS

Marlene Louise Buch Andersen is Assistant Professor at CEPRI (Centre for Private Governance), the Faculty of Law, University of Copenhagen. She holds a bachelor’s and a master’s degree in business administration and commercial law from Copenhagen Business School (CBS) and a PhD degree in law from the University of Copenhagen. Her research focuses on insurance law and its interaction with workers’ compensation schemes and tort law. Snjólaug Árnadóttir is Assistant Professor at the law department of Reykjavik University, Director of the Centre for Law on Climate Change and Sustainability (CLoCCS) and member of the International Law Association Committee on International Law and Sea Level Rise. Snjólaug has a PhD degree in law from the University of Edinburgh and among her publications is Climate Change and Maritime Boundaries: Legal Consequences of Sea Level Rise (Cambridge University Press, 2021). Betsy Baker is an Alaska-based international lawyer and Global Fellow at the Wilson Center Polar Institute. Her decades of work on ocean law and Arctic policy as law professor, consultant and director of an Alaska-based marine science organisation include projects for the Inuit Circumpolar Council, Arctic Council PAME working group, the Ocean Conservancy, the US State Department Off ice of Ocean and Polar Affairs and many others. Her ongoing work with marine scientists, policymakers and resource managers active in the polar areas includes service on science advisory panels for major transdisciplinary Arctic research projects in the EU, Finland, Japan and the United States. Karin Buhmann is a co-founder and lead of the UArctic Thematic Network on Arctic Sustainable Resources and Social Responsibility, a circumpolar and interdisciplinary network. She is a professor at the University of Southern Denmark (Department of Law), where she serves as the director of the Centre for Law, Sustainability and Justice since 2021. She is also Professor of Business and Human Rights at Copenhagen Business School (CBS). Her current research focuses on resource governance in the Arctic and fair transitions in view of the societal and human rights impacts of energy adaptation to urgently mitigate climate change. She also works with wider issues of law and governance for sustainable development that respects and protects human rights in the short, medium and long terms and ensures that companies act with due diligence in regard to their societal

xv

Contributors

impacts. She has published widely on resource governance, the societal responsibilities of business enterprises, evolution of sustainability norms and regulatory options to advance the agreement and uptake of such norms. Hans Jacob Bull is Professor Emeritus of Law at the Scandinavian Institute of Maritime Law, Faculty of Law, University of Oslo. His primary f ield of expertise is insurance law, including marine insurance law, maritime law, road transport law and petroleum law. He was chairman of the committee preparing the Norwegian Marine Insurance Plan 1996, and its subsequent versions from 1997 to 2007, and was also involved in the revision of its successor, the Nordic Marine Insurance Plan of 2013 version 2016. He has written extensively in his f ields of interest: Scandinavian maritime law: The Norwegian angle (with Thor Falkanger and Lasse Brautaset, 4th ed., 2017), Forsikringsrett (Insurance law) (2008), Handbook on hull insurance (with Trine-Lise Wilhelmsen, 2nd ed. 2017), Norwegian cargo insurance (with Trine-Lise Wilhelmsen, 2012) and Innføring I veifraktrett (Introduction to road transport law) (2nd ed. 2000). Jiliang Chen is a PhD student in international law with a research focus on the governance of the high seas. He holds a bachelor’s degree in environmental science and a master’s degree in environmental management. Before joining MQU, he had been working on international environmental policy for NGOs in China, including Greenovation Hub, Heinrich Boell Foundation (China Desk) and Institute for Environment and Development. Since 2007, he has regularly participated in international environmental negotiations such as the UN climate negotiation and the Antarctic Treaty–related meetings. In the last decade, his work has been focused on the conservation of marine biodiversity in areas beyond national jurisdiction, including the Antarctic Ocean. He has been actively publishing on relevant topics in the mass media and in academic journals. Grant Christensen is Assistant Professor of Law at Stetson University and was previously Professor of Law and Aff iliated Professor of American Indian Studies at the University of North Dakota. He also serves as an associate justice on the Appellate Court for the Fort Peck and Assiniboine Sioux Tribes. He earned his JD from Ohio State University and his LLM in Indigenous Peoples Law and Policy from the University of Arizona. Romain Chuffart is a PhD student in law at Durham Law School, Durham University, in the United Kingdom. His doctoral research is supported by the Durham Arctic Research Centre for Training and Interdisciplinary Collaboration and funded by the Leverhulme Trust.  His research focuses on Indigenous rights and sovereignty in Arctic environmental governance. Romain holds an MA in polar law from the University of Akureyri, Iceland. He also has experience working on the Arctic and international law issues at academic and research institutions in Greenland, Russia, Japan and Norway. He is the president and managing director of the Arctic Institute – Centre for Circumpolar Security Studies, a think tank in Washington DC, USA. Edwin Egede, PhD, is Professor of International Law and International Relations in the School of Law and Politics at Cardiff University. He is also an adjunct professor at South Africa’s Nelson Mandela University’s Department of Public Law. He has also served as a consultant for the United Nations, the International Seabed Authority and the African Union. He conducts research in the areas of law of the sea, public international law, human rights in Africa, and international organisations, specif ically the United Nations and the African Union. He has published widely in these f ields and presented academic and professional papers at a number of international conferences. xvi

Contributors

Luis Valentín Ferrada is a Chilean lawyer, PhD in law, and Professor of International Law at the Faculty of Law of the Universidad de Chile. He is one of the principal investigators at the Millennium Institute Biodiversity of Antarctic and Sub-Antarctic Ecosystems (research line on Antarctic and Sub-Antarctic governance). He is an arbitrator at the Permanent Court of Arbitration (The Hague) for the Protocol on Environmental Protection to the Antarctic Treaty. Malgosia Fitzmaurice holds the chair of public international law at the Department of Law, Queen Mary University of London. Since 2019, she has been elected an associate member of the Institue de Droit International, and in 2021 she was awarded the doctorate honoris causa of the University of Neuchâtel. She specialises in international environmental law, the law of treaties and Indigenous Peoples. She publishes widely on these subjects. She has delivered a lecture on the International Protection of the Environment at The Hague Academy of International Law. Professor Fitzmaurice was invited as a visiting professor to and lectured at various universities, such Berkeley Law School, University of Kobe and Panthéon-Sorbonne (Paris I). She is the editor-in-chief of International Community Law Review and of the Brill/Nijhoff book series Queen Mary Studies in International Law. Erik Franckx is Professor at the Vrije Universiteit Brussel, Honorary Professor at the Nelson Mandela University and professeur émérite at the Université libre de Bruxelles. He holds moreover teaching assignments at the Sorbonne Université Abu Dhabi, United Arab Emirates, and the University of Akureyri, Iceland. Erik has been serving between 2017 and 2022 as president of the Belgian Society for International Law and was appointed by Belgium as expert in marine scientif ic research for use in special arbitration under the 1982 United Nations Convention on the Law of the Sea since 2004, as expert in maritime boundary delimitation to the International Hydrographic Organization since 2005 and as arbitrator under the Convention on the Law of the Sea starting in 2014. Between 2006 and 2018, he was appointed by his country as member of the Permanent Court of Arbitration in The Hague, the Netherlands. Sof ia Galani (LLB, LLM, PhD, FHEA) is Assistant Professor of Public International Law at the Panteion University of Social and Political Sciences and a scientif ic advisor at the Scientif ic Committee of the Hellenic Parliament. Previously, she held a senior lectureship (2021) and a lectureship (2015–20) at the University of Bristol, UK. She is the author of Hostages and Human Rights: Towards a Victim-Centred Approach? (CUP, 2021) and a co-editor (with Professor Sir Malcolm Evans) of Maritime Security and the Law of the Sea: Help or Hindrance? (EE, 2020). Alan D. Hemmings is a specialist on Antarctic governance and an Adjunct Professor at the Gateway Antarctica Centre for Antarctic Studies and Research at the  University of Canterbury in New Zealand. He has Antarctic operational experience in Antarctica with the British, French and New Zealand national programmes and participated in many diplomatic, specialist and scientif ic Antarctic Treaty System meetings over three decades. His research focus is on Antarctic governance and geopolitics, including the contemporary roles of territorial sovereignty, nationalism and securitisation in Antarctic policy and the influence of the transforming global political order on Antarctic affairs. Tore Henriksen is Professor of Law at UiT the Arctic University of Norway. His research is in law of the sea, particularly international f isheries law and international marine environmental law. Professor Henriksen was director of the K.G. Jebsen Centre for the Law of the Sea (2013–19) and xvii

Contributors

of the Norwegian Centre for the Law of the Sea – NCLOS (2019–21). He is now the dean of the Faculty of Law, UiT the Arctic University of Norway. Julia Jabour, PhD., is a former Adjunct of the Institute for Marine and Antarctic Studies, University of Tasmania. Julia has been researching, writing and lecturing on polar governance for more than 30 years. She has visited Antarctica six times and been an observer on the Australian delegation at Antarctic Treaty consultative meetings on a number of occasions. She has taught in seven countries and hosted the annual Polar Law Symposium in Hobart in 2014 and 2019. She was a visiting professor at Kobe University Graduate School of International Cooperation Studies in 2018, 2020 and 2022 (the latter two, virtually). Ingvild Ulrikke Jakobsen is Professor and Director of the Norwegian Centre for the Law of the Sea (NCLOS), Faculty of Law, UiT the Arctic University of Norway. Jakobsen has taught and published extensively within international law of the sea and environmental law. Her PhD was on marine protected areas in international law and was completed in 2010. Jakobsen has broad experience as a research project leader. She is currently the project leader of the project Developing Good Ocean Governance in the Arctic in Times of Rapid and Unpredictable Changes, funded by the Norwegian Research Council. Juha Joona, Doctor of Laws, works as a senior researcher at the Northern Institute for Environmental and Minority Law at the Arctic Centre of the University of Lapland. Juha Joona comes from a reindeer-herding family. His academic research focuses on the branch of legal history and real estate law in the geographic area of Northern Finland. Most of the topics in his research deal with the land and water rights of the Indigenous Saami People. Joona has a long experience on land use issues dealing with traditional livelihoods, reindeer herding, f ishing and hunting in the context of other land uses, such as mining and wind power. Joona was awarded the Olaus Magnus Prize for his work. Tanja L. Joona, Dr.Soc.Sci., is Associate Professor of Public International Law and works as a senior researcher at the Arctic Centre of the University of Lapland. Currently, she is the Finnish institutional leader of the H2020 project JustNorth (2020–23): Toward Just, Ethical and Sustainable Arctic Economies, Environments and Societies. Tanja L. Joona’s main research interests focus on the Arctic region, especially comparative legal and political aspects of Indigenous Saami society and issues dealing with traditional livelihoods, international human rights law and identity questions in the context of justice and equality. Tanja L. Joona is a regular contributor to the Yearbook of Polar Law and participant at the Polar Law Symposium. She has also several positions of trust at the University of Lapland and in the society in her own community and in the Province of Lapland. Marel Katsivela, PhD, is Associate Professor at the University of Ottawa since 2010. She is currently teaching maritime law (in French) at the Programme de Common Law en Français and common law torts - civil law extra-contractual liability at the Programme de Droit Canadien (bijural program) of the University of Ottawa. Her research lies in the areas of maritime law and comparative tort law and she has published articles and books in both these areas. She is a member of the bars of New York, Piraeus (Greece) and Ontario (Canada). Before joining the University of Ottawa, Dr  Katsivela taught at the College of the Bahamas Department of Law in Nassau (Bahamas) for four years.

xviii

Contributors

Richard L. Kilpatrick is Associate Professor of Business Law at the College of Charleston in Charleston, South Carolina (USA). He teaches commercial law, international business law and maritime law and publishes on a range of maritime and international commercial law issues. He holds a juris doctor degree from Tulane University Law School and is a member of the Illinois bar and Maritime Law Association of the United States. Sune Klinge is Assistant Professor of Constitutional Law, tenure track, at the Faculty of Law, University of Copenhagen. Sune is also part-time external teacher at the University in Greenland in EU law focusing on the special relationship between Denmark, EU and Greenland as an OCT (overseas countries and territories). Sune has also done research about the legal regulation and lack of the same for asylum seekers and refugees in Greenland. Timo Koivurova is Research Professor at the Arctic Centre, University of Lapland, and specialises in the law relating to Arctic and Antarctic regions, as well as international environmental law and law of the sea. Sanna Kopra is a Senior Researcher at the Northern Institute for Environmental and Minority Law of the Arctic Centre at the University of Lapland, Finland. She is also a Senior Fellow at The Arctic Institute – Center for Circumpolar Security Studies in Washington, DC. Her research focuses on global environmental politics, international norms of responsibility and international politics in the Arctic. She is the author of China and Great Power Responsibility for Climate Change (Routledge, 2019) and a co-editor of Chinese Policy and Presence in the Arctic (Brill, 2020). Helle Krunke is Professor of Constitutional Law and Head of the Centre for European and Comparative Legal Studies (CECS), at the Faculty of Law, University of Copenhagen. She is First Vice President for the International Association of Constitutional Law (IACL): www.iacl-aidc.org/en/. Helle Krunke has, inter alia, worked intensively with Comparative Nordic Constitutional Law and co-edited with Björg Thorarensen The Nordic Constitutions: A  Comparative and Contextual Study (Hart Publishing, 2018). Her most recent book is with Hanne Petersen and Ian Manners (eds.), Transnational Solidarity: Concept, Challenges and Opportunities (CUP, 2020). Suzanne Lalonde is Professor of Public International Law and the Law of the Sea at the Law Faculty of the Université de Montréal. She holds a PhD in public international law from the University of Cambridge. Her research and publications focus on core international legal principles, in particular, those pertaining to sovereignty and the determination of boundaries on land and at sea, with an emphasis on the Arctic. Co-editor of Ocean Development and International Law from 2017 to 2019, she is a member of the Canadian Arctic Security Working Group and the North American Arctic Defence and Security Network. David Leary is Professor of Law at the University of Technology Sydney, Australia, where he teaches undergraduate and postgraduate courses in public international law, law of the sea, international environmental law and private international law. With a wide range of research interests, he broadly describes his research as “law at the frontiers of science and technology.” He has conducted research and published in diverse areas, such as international law and Arctic and the Antarctic; international law dimensions of technology, such as biotechnology, nanotechnology, synthetic biology and drones; deep-sea mining; and climate change and renewable energy.

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Contributors

Nengye Liu, (LLB and LLM, Wuhan; PhD, Ghent) is Associate Professor of Law at Yong Pung How School of Law, Singapore Management University. Prior to moving to Singapore, he taught at three Australian universities (UNE, Adelaide and Macquarie). Liu is an internationally recognised authority in the f ields of the law of the sea and international environmental law. Liu has taken the lead to edit two books: The European Union and the Arctic (Brill, 2017) and Governing Marine Living Resources in the Polar Regions (Edward Elgar, 2019). He has also published 40+ refereed journal articles and book chapters and delivered 100+ presentations about his research f indings across f ive continents. Since 2021, he has been serving as the co-chair of American Society of International Law’s International Environmental Law Interest Group and a member of the Governing Board, IUCN Academy of Environmental Law. He also sits on the editorial board of Marine Policy and Ocean Development and International Law. Natalia Loukacheva PhD, SJD, is a senior research scientist at the ARCTICenter, University of Northern Iowa. Formerly, she was Associate Professor and Canada Research Chair in Aboriginal Governance and Law at University of Northern British Columbia; a researcher at the Munk School of Global Affairs, University of Toronto; Nansen Professor of Arctic Studies at the University of Akureyri; Adjunct Professor at Osgoode Hall Law School; a fellow at the Canadian Global Affairs Institute; and an associate at the Stefansson Arctic Institute. She was the founding director of the Polar Law Programme and taught polar law at the University of Akureyri. She authored The Arctic Promise: Legal and Political Autonomy of Greenland and Nunavut (University of Toronto, 2007) and edited the Polar Law Textbook (Norden, 2010), Polar Law Textbook II (Norden, 2013) and Polar Law and Resources (Norden, 2015). Jan Mikael Lundmark is a Swedish lawyer. He has published several research papers/articles on the topic of Indigenous rights. He was awarded a PhD in law from Durham University (Ustinov College) England, in 2022; an MA in polar law from the University of Akureyri, Iceland, in 2018; and an MS  in social anthropology from the University of Gothenburg, Sweden, in 2008. The author is specialised in European human rights law on the right to private life and property rights. His other areas of specialisation include Swedish administrative law. Bjarni Már Magnússon is Professor at the Department of Law at Bifröst University in Iceland. Formerly, he was Professor at the Department of Law, Reykjavik University. His teaching and research focus is mainly on international law. Professor Magnússon holds a PhD from the University of Edinburgh (2013) and is a Chevening and Fulbright alumni. Among his work is the monograph The Continental Shelf beyond 200 Nautical Miles: Delineation, Delimitation and Dispute Settlement. He recently joined the working group of the Icelandic government on the preparation of submissions to the Commission on the Limits of the Continental Shelf and frequently advises various entities on international law. Ted L. McDorman has written numerous articles concerning Arctic Ocean legal issues. He has recently retired from the Law Faculty at the University of Victoria in British Columbia, Canada. Manasse Lars Mikaelsen was born and raised in Arsuk, a small village of South Greenland. He works for the government of Greenland, within the Department of Constitution. He has a master’s degree in social sciences from the University of Greenland. His master’s thesis explores the historical development of Greenland, its increasing autonomy within the Kingdom of Denmark and its progress towards independence.

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Contributors

Lone Wandahl Mouyal is Associate Professor in Business Law and Sustainability at the Faculty of Law at the University of Copenhagen, where she also obtained her PhD degree. She has signif icant knowledge about the interactions between commercial interests, human rights and sustainable development. She has published extensively within this area and participates regularly in conferences in and outside of Denmark. Prior to obtaining a permanent position at the Faculty of Law, she worked as an attorney-at-law at a global law f irm and as an in-house lawyer in the f inancial sector and obtained practical experience advising on a broad range of issues, including integration of ESG in commercial contracts, human rights due diligence, political risk management and Arctic governance. Antje Neumann is Associate Professor of Law at the University of Akureyri, Iceland, where she has been teaching and conducting research in the f ield of polar law since September 2019. Previously she conducted her doctoral studies on wilderness protection in Antarctica, taking into account case studies in the Arctic. Her background lies in international environmental law, specif ically related to the polar regions. In this context, she has been engaged in geopolitical studies towards the High North and worked as a legal advisor for the German government concerning the implementation of the Environmental Protocol to the Antarctic Treaty into domestic legislation. Her current research activities cover ethical perspectives of environmental law in relation to the Arctic and the Antarctic and studies on proactive management of tourism in Iceland and Antarctica. Rasmus Grønved Nielsen is Associate Professor of Administrative Law at the Faculty of Law, University of Copenhagen. He received his LLM in 2016 at the University of Copenhagen and defended his dissertation on administrative contracts in 2021 and achieved the Danish doctoral degree (doctor juris) at the University of Copenhagen. His research covers, in particular, (1) the interaction between private and public law when public authorities act as private law agents, (2) European administrative law, especially the influence of the European Convention of Human Rights, and (3) the history of administrative law. Kentaro Nishimoto is Professor of International Law at the School of Law, Tohoku University and Arctic Environment Research Center, National Institute of Polar Research, Japan. His research mainly focuses on the international law of the sea. He is currently the research director for Strategic Goal 4 (Legal/Policy Response and Research Implementation for a Sustainable Arctic) of the Arctic Challenge for Sustainability II (ArCS II) project, which is Japan’s national flagship project for Arctic research. He has advised the government of Japan in various capacities, including as an advisor to the Japanese delegation to the intergovernmental conference on BBNJ. Natuk Lund Olsen is the head of the Department of Constitution placed in the prime minister’s off ice at the government of Greenland. The division focuses on the Greenland Self-Government Act, the constitution, independence, self-determination and the areas which are still governed from Denmark. She also chairs the Greenlandic Agricultural Council and is aff iliated to the University of Greenland with her PhD dissertation “The Meaning of Kalaalimernit: Greenlandic Foods, Cultural Identity and Changes.” She studied political history at Aarhus University, where she gained interest in the development of Greenlandic political capital, resulting in her thesis about the Greenland becoming part of the Danish Realm. Paul Patton is Hongyi Chair Professor of Philosophy at Wuhan University, Emeritus Professor of the University of New South Wales and a fellow of the Australian Academy of the Humanities. He

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Contributors

co-edited Political Theory and the Rights of Indigenous Peoples (CUP, 2000) and has published widely on issues related to the rights of Indigenous Peoples. Recent publications include “The limits of decolonization and the problem of legitimacy” in David Boucher and Ayesha Omar (eds.) Decolonisation: Evolution and Revolution (Wits University Press, 2023); “Philosophical Foundations for Indigenous Economic and Political Rights,” International Journal of Social Economics (46: 11, 2019); and “Philosophical Justif ications for Indigenous Rights” in Corinne Lennox and Damien Short (eds.) Handbook of Indigenous Peoples’ Rights (Routledge, 2016). Rosemary Rayfuse is Emerita Scientia Professor in International Law in the Faculty of Law and Justice at UNSW Sydney. She has published widely in the law of the sea and other areas of public international law, including international environmental law, international f isheries law, polar oceans governance and the normative effects of climate change on international law. She is the editor of the Research Handbook on International Marine Environmental Law (Edward Elgar, 2015), now in its second edition (Edward Elgar, 2023). She is a fellow of the Academy of Social Sciences in Australia and a member of the UN’s Joint Group of Experts on the Scientif ic Aspects of Marine Environmental Protection (GESAMP). Erik Røsæg is Professor of Law at the Institute of Private Law, University of Oslo. He was formerly the director of the Scandinavian Institute of Maritime Law and has worked at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order. He teaches and writes in the f ields of law of the sea, maritime law and third-party interests in commercial law. He has been much involved in the negotiations of liability conventions in the IMO, chairs the Norwegian Maritime Law Commission and has chaired other committees preparing draft legislation. He has published extensively in national and international journals and books, and he has been a speaker and consultant in a number of jurisdictions. He is currently involved in the Oslo Law of the Sea Forum. Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University, and a fellow of the Australian Academy of Law. His research has a specif ic focus on law of the sea, polar law and implementation of international law within Australia as reflected in 27 authored, co-authored and edited books, and over 200 articles, book chapters and notes. Rothwell’s recent books include Islands and International Law (2022) and Rothwell and Letts (eds.) The Law of the Sea in South East Asia: Environmental, Navigational and Security Challenges (2020). Clive Schof ield is Head of Research at the WMU-Sasakawa Global Ocean Institute, World Maritime University in Malmö, Sweden, and Professor at the Australian Centre for Ocean Resources and Security (ANCORS), University of Wollongong (UOW), Australia. He holds a PhD from the University of Durham, UK and an LLM from the University of British Columbia (UBC). His research interests relate to international maritime boundary delimitation and geo-technical issues in the law of the sea on which he has published over 200 scholarly papers. Clive is an observer on the Advisory Board on the Law of the Sea (ABLOS), is a member of the International Law Association’s Committee on International Law and Sea Level Rise and has been involved in the peaceful settlement of international boundary disputes through negotiations, mediation and cases before international courts and tribunals. Robert C. Steenkamp is a press off icer at the International Tribunal for the Law of the Sea and a researcher at the University of Hamburg. He holds an LLB and an LLM from the University of Pretoria and a PhD from the University of Hamburg. He has taught, published and advised on subjects xxii

Contributors

related to the law of the sea, international environmental law, the law of international organisations and international dispute settlement. Tim Stephens is Professor of International Law at the University of Sydney Law School. He teaches and researches in public international law with his published work focusing on the international law of the sea, international environmental law, international dispute settlement and the polar regions. He is a fellow of the Australian Academy of Law. Maxim Usynin is Assistant Professor at CEPRI – Centre for Private Governance, Faculty of Law, University of Copenhagen, and a member of SHOC, the Shipping and Ocean Law Research Group at the faculty. He holds a bachelor’s degree in law from Saint Petersburg State University, master’s degree in law from the Russian School of Private Law; two LLM degrees in public international law and maritime law, respectively, from the University of Oslo; and a PhD degree in law from the University of Copenhagen. Maxim’s research focuses on doctrinal, comparative and empirical studies of maritime law, international investment law and arbitration, and transnational regulation of business activities. Patrizia Vigni is Associate Professor of International Law at the Department of Business and Law of the University of Siena (Italy). She obtained her degree in law from the University of Siena, 1992; magister juris from the University of Oxford (UK), 1996; and doctorate in international law from the University of Siena, 1998. She has taught several courses at the University of Siena since 2001, including EU Law, international organisations, international dispute settlement and international trade law. Her main research f ields are the Antarctic Treaty System, the law of the sea, diplomatic and consular protection, EU citizenship and the protection of cultural heritage. She was legal advisor to the Italian Delegation at the Antarctic Treaty consultative meetings until 2014. Trine-Lise Wilhelmsen is Professor of Law at the Scandinavian Institute of Maritime Law, Faculty of Law, University of Oslo. Her primary f ield of expertise is insurance law, including marine insurance law, tort law, transport law and maritime law. She has written a great number of articles within these f ields and is also co-author/author of several books, including Handbook on hull insurance (with Hans Jacob Bull, 2nd ed. 2017), Norwegian cargo insurance (with Hans Jacob Bull, 2012), Om Erstatningsrett (Tort law, with Birgitte Hagland, 2017) and Rett i havn (Transport law in port, 2006). She was the secretary of the committee preparing the Norwegian Marine Insurance Plan 1996 and its subsequent versions from 1997 to 2007 and a chairman of this committee for the 2010 revision. She was also the chairman for the committee preparing the Nordic Plan 2013 and its subsequent versions, including the latest revision in 2023.

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ACKNOWLEDGEMENTS

This anthology is founded on the generosity of the many leading and emerging scholars of polar law whom the editors have encouraged, cajoled and begged to volunteer their insights. We are grateful to the authors for their contributions to the Handbook. We also thank staff of Routledge – in particular, Siobhán Poole and Sanjo Joseph Puthumana – for their support.

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1 POLAR LAW AS A BURGEONING DISCIPLINE Rachael Lorna Johnstone, Yoshifumi Tanaka and Vibe Ulfbeck

Introduction: The Emergence of Polar Law In the early 2000s, Guðmundur Alfreðsson, Ágúst Þór Árnason, Timo Koivurova and David Leary planted the seeds of what would become a thriving academic discipline: polar law. Alfreðsson chose the term heimskautaréttur (“polar law”) to describe the laws, norms and processes that facilitate human governance of the Arctic and Antarctic and this was already part of the discussions for the development of legal education and research at the University of Akureyri, Iceland, which welcomed its f irst undergraduate students in 2003. The university held a preparatory conference with international experts to develop polar law in 2007.1 The f irst Polar Law Symposium was held in Akureyri in 2008, co-organised by the United Nations University-Institute of Advanced Studies (Japan) and the University of Akureyri with support from Tilburg University (Netherlands) and the Northern Institute for Environmental and Minority Law, Arctic Centre (Finland). The four aforementioned scholars, alongside Kees Bastmeijer, formed the organising committee for the f irst symposium.2 This coincided with the launch of the master’s programme in polar law at the University of Akureyri.3 These initiatives were amongst dozens connected to the Fourth International Polar Year (2007–08).4 The Polar Law Institute, also based in Akureyri, was founded in 2009 and supports,

1 Guðmundur Alfreðsson and Ágúst Þór Árnason, “Fullveldið og heimskautarétturinn (Sovereignty and Polar Law),” in Fullveldi í 99 ár. Safn ritgerða til heiðurs dr. Davíð Þór Björgvinssyni sextugum (Sovereignty for 99 Years. A Collection of Essays in Honour of Davíð Þór Björgvinsson at Sixty), ed. Svala Ísfeld Ólafsdóttir (Reykjavík: Hið íslenzka bókmenntafélag, 2017), 267–80, 274. 2 David Leary, “Editor’s Note,” Yearbook of Polar Law 1 (2009): xiii–xv; David Leary et al., Looking Beyond the International Polar Year: Emerging and Re-emerging Issues in International law and Policy in the Polar Regions (Japan: UNU-IAS, 2009), 7–10. 3 Guðmundur Alfreðsson and Timo Koivurova, “Introductory Words,” Yearbook of Polar Law 1 (2009): xi–xii. 4 See International Polar Year 2007–08, accessed September 30, 2010, www.ipy.org/; see also David Leary, “Looking Beyond the International Polar Year: What are the Emerging and Re-emerging Issues in International Law and Policy in the Polar Regions?” Yearbook of Polar Law 1 (2009): 1–19, 2.

1 DOI: 10.4324/9781003404828-1

Rachael Lorna Johnstone, Yoshifumi Tanaka and Vibe Ulfbeck

inter alia, the symposia.5 Polar law has since become a distinct research niche with a dedicated and growing community of “polar lawyers.” The master’s programmes at the University of Akureyri continue to grow, attracting a diverse student body that includes not only students from Arctic States and the original Antarctic Treaty Parties but also young scholars from Asia and Africa.6 The Polar Law Symposium is held annually (including in online and hybrid format during the COVID-19 pandemic) and has been hosted in Akureyri (2008, 2009, 2010, 2013 and 2016), Nuuk (2011), Rovaniemi (2012 and 2017), Hobart (2014 and 2019), Fairbanks and Anchorage (2015), Tromsø (2018), Kobe (2020 online and 2021 hybrid), Reykjavík (2022) and Torshavn (2023). The Kobe symposia attracted over 200 participants and the recent in person symposia consistently over 100. The Yearbook of Polar Law7 follows the symposia, publishing peer-reviewed contributions primarily developed from the symposia presentations. Meanwhile, Natalia Loukacheva, a contributor to this volume, formerly professor at the University of Akureyri (now Senior Research Scientist at the ARCTICenter, University of Northern Iowa) and regular participant at the Polar Law Symposia, edited three polar law textbooks.8 As Hemmings and Rothwell explain, connections between the polar regions have been identif ied in legal scholarship for over a century.9 Common features of the polar regions, such as icecovered waters, low population density and geographical distance from colonising powers, have led to distinctive polar legal solutions, giving rise to theories of Arctic exceptionalism, Antarctic exceptionalism and (perhaps more rarely) polar exceptionalism.10 Furthermore, it must also be noted that the polar regions share common legal elements and challenges.11 The polar regions undoubtedly have features that distinguish them from other regions of the world (as well as from each other) but exceptionalism should not be overstated. They cannot be understood, let alone governed, without reference to global systems and processes, including the law of treaties, law of the sea, international environmental law, sovereignty, colonisation and decolonisation, international organisations, human and State security, human rights, climate, biodiversity, scientif ic research, the global economy and more. While the emphasis in this Handbook is on legal regimes, it must be stressed that polar law is closely linked to other academic disciplines, such as international relations theory and practice, history and anthropology and economics – all of which must be understood in light of the serious environmental challenges facing the polar regions in the Anthropocene.

5 “About Polar Law Institute,” Polar Law Institute, accessed October  28, 2022, www.polarlaw.is/en/moya/page/ about-polar-law-institute. 6 “Polar Law,” University of Akureyri, accessed October 28, 2022, www.unak.is/english/study/education/degree-seekingstudents/polar-law. 7 “The Yearbook of Polar Law,” Brill, accessed October 28, 2022, https://brill.com/view/serial/POLA. 8 Natalia Loukacheva, ed., Polar Law Textbook (Copenhagen: Nordic Council of Ministers, 2010); Natalia Loukacheva, ed., Polar Law Textbook II (Copenhagen: Nordic Council of Ministers, 2013); Natalia Loukacheva, ed., Polar Law and Resources (Copenhagen: Nordic Council of Ministers, 2015). 9 Donald R. Rothwell and Alan D. Hemmings, “Evolution of a Polar Law,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 458–60. 10 Ibid., 460 (but see 462, arguing that as regards (at least) territorial claims, “polar exceptionalism  .  .  . is diff icult to sustain”). 11 See Chapter 2 of this Handbook.

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Polar Law as a Burgeoning Discipline

Polar Law as a Burgeoning Discipline Although to the editors’ knowledge, the University of Akureyri is the only school offering a polar law programme per se, strong teaching and research programmes are conducted at other universities, including the University of Lapland’s specialisation in Arctic law (within the broader frame of its interdisciplinary Arctic Centre), Antarctic law at the University of Canterbury, the law of the sea and the rights of Indigenous Peoples with specialisation on Arctic issues at UiT the Arctic University of Norway and the polar law and private governance project of University of Copenhagen. The Thematic Network of the University of the Arctic on Arctic Law, coordinated through the University of Lapland’s Arctic Centre, is very active.12 Outside the polar regions, the Polar Cooperation and Research Centre at Kobe University is led by international legal experts while the China-Nordic Arctic Research Center is more interdisciplinary but includes Arctic policy-making and legislation amongst its research themes. The rapid expansion and internationalisation of polar law has led to a comparable increase in publications. In addition to the aforementioned Yearbooks of Polar Law (14 to date) and polar law textbooks, Routledge hosts its own Research in Polar Law series (six volumes to date)13 and Brill has Studies in Polar Law (three books to date).14 Rothwell and Hemmings released their anthology of seminal articles from 1910 to 2017 in International Polar Law.15 Karen Scott and David VanderZwaag published a Research Handbook on Polar Law in 2020, which contains an impressive collection of cutting-edge analysis from established experts in the f ield. The Arctic Review on Law and Politics (established 2010)16 and the series Current Developments in Arctic Law (established 2013)17 feed an increasing demand for scholarship on Arctic law. There are literally countless books and articles addressing specif ic themes within polar law, such as law of the sea at the poles, Indigenous rights in the Arctic, the Antarctic Treaty System (ATS) and the Arctic Council and hundreds more on polar geopolitics, economics and sociology. Interdisciplinary polar scholarship, including polar legal analysis, is found in journals such as Polar Record,18 the Polar Journal19 and the book series Springer Polar Sciences (24 titles).20

Four Features of Our Handbook Given this wide array of scholarship in polar law, what does this Handbook bring to the discipline? The editors sought to curate a collection built around four main features: the Arctic-Antarctic interface; the interaction between global, regional and domestic legal regimes; the rights of Indigenous Peoples in the context of decolonisation; and the increasing importance of private law in polar governance. While these broad themes have been addressed to varying extents elsewhere, the

12 “University of the Arctic Thematic Network on Arctic Law,” Arctic Centre, accessed October 28, 2022, www.arctic centre.org/EN/research/networks/arctic-law. 13 “Routledge Research in Polar Law,” Routledge, accessed October  28, 2022, www.routledge.com/ Routledge-Research-in-Polar-Law/book-series/RRPL. 14 “Studies in Polar Law,” Brill, accessed October 28, 2022, https://brill.com/view/serial/SPLW. 15 Donald R. Rothwell and Alan D. Hemmings, eds., International Polar Law (Cheltenham: Edward Elgar, 2018). 16 “Arctic Review on Law and Politics,” NOASP, accessed October 28, 2022, https://arcticreview.no/index.php/arctic. 17 “Current Developments in Arctic Law,”Lauda, accessed October 28, 2022, https://lauda.ulapland.f i/handle/10024/62309. 18 “Polar Record,” Cambridge Core, accessed October 28, 2022, www.cambridge.org/core/journals/polar-record. 19 “The Polar Journal,” Taylor & Francis Online, accessed October 28, 2022, www.tandfonline.com/journals/rpol20. 20 “Springer Polar Sciences,” Springer, accessed October 28, 2022, www.springer.com/series/15180/books.

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Rachael Lorna Johnstone, Yoshifumi Tanaka and Vibe Ulfbeck

editors believe that this Handbook brings them together to create a comprehensive (if never exhaustive) account of what constitutes polar law today.

The Arctic-Antarctic Interface There are relatively many books dealing with either the Arctic or the Antarctic but there remain rather few examining both in a single volume. Even within the texts available (including this one), many chapters address only one or the other which is sometimes necessary given the fundamental distinctions between the two legal orders. Where possible, the chapters in the Handbook address governance of the polar regions together from comparative perspectives. In so doing, the Handbook attempts to systematise polar law as the body of rules governing spaces, actors and institutions surrounding the Arctic and the Antarctic.

The Interaction of Global, Regional, Domestic and Indigenous Legal Regimes Polar law does not exist in a vacuum and cannot be examined in any meaningful way without reference to global processes, including, not least, international law. While the polar regions are distinct in many respects, they are not separated from the rest of the world by lines of latitude. It is both obvious and superf icial to note that there is no equivalent to the ATS or the Arctic Council in any other part of the world but the same can be said of any regional system, including NATO, the European Union (EU), the African Union or the Asia-Pacif ic Economic Cooperation. All these systems rely on and react to global norms and changes. At the most obvious level, the ATS can only exist at all because of the constancy of the law of treaties. The relative stability of the Arctic pivots on principles of State sovereignty and maritime boundaries but these are also increasingly challenged by developments in decolonisation and the rights of Indigenous Peoples. The harsh (to humans) climate that is at the heart of polar imaginaries is part of a global climate system even if the crisis is felt more sharply at the poles. Mitigation and adaptation strategies cannot be devised at anything less than global level. However, international law and policy requires domestic implementation and domestic and constitutional arrangements contribute in turn to the evolution of State practice – for example, in areas of environmental law and Indigenous Peoples’ rights.

The Rights of Indigenous Peoples The volume addresses important and evolving issues in the rights of Indigenous Peoples in a dedicated section but Indigenous Peoples’ rights, activism, influence and governance are integrated in most of the chapters concerning the Arctic. Other excellent volumes exist examining, inter alia, the international law about Indigenous Peoples,21 the laws of Indigenous Peoples22 and Arctic Indigenous

21 E.g. Irene Watson, ed., Indigenous Peoples as Subjects of International Law (Abingdon: Routledge, 2017); Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Abingdon: Routledge, 2016); Corrine Lennox and Damien Short, eds. Handbook of Indigenous Peoples’ Rights (Abingdon: Routledge, 2018); Evlira Pulitano, ed., Indigenous Rights in the Age of the UN Declaration (Cambridge: Cambridge University Press, 2012). 22 E.g. Christina Allard and Susann Funderud Skogvang, eds., Indigenous Rights in Scandinavia: Autonomous Sami Law (Abingdon: Routledge, 2021); John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2017); John Borrows, Law’s Indigenous Ethics (Toronto: University of Toronto Press, 2019); John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010).

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Polar Law as a Burgeoning Discipline

Peoples’ history and culture.23 This collection makes no attempt to compete with them. However, Indigenous participation in law-making and implementation in and for the Arctic is a fundamental characteristic of polar law that is manifested in the analyses that follow of the Arctic Council, environmental law, resource management and investment.

Private Law as Part of Polar Law The legal issues of the Arctic and the Antarctic have been discussed mainly from the perspective of public international law and most of the volumes to date have been authored or edited by experts in public international law.24 However, in recognition of the increasing role of private actors in international affairs, including in the polar regions, the editors consider it necessary to take a closer look at private law as it influences governance of the polar regions, through, for example, contracts, corporate governance and liability issues in particular in the areas of exploitation of natural resources and shipping.

A Global Perspective on Polar law Recognising that polar governance is no longer the f iefdom of Arctic States, Antarctic claimant States or Western current and erstwhile superpowers, the 48 contributors and three editors of this volume hail from all inhabited continents and include Saami and Inuit scholars. The selection of topics, for which the editors bear responsibility, may inadvertently reflect certain biases arising from their own legal training and culture but they sought a wide range of perspectives. As a result, the contributors may take different views on certain themes and the editors did not insist on any common interpretations of contested issues. Disagreement in academia is the fuel of discovery. Nevertheless, certain themes recur in the chapters that follow: The f irst is the importance of a legal order in the polar regions. The polar regions are not frontier regions, a new “Wild West” or legal voids and are not otherwise describable by any similar alarming headline. The scope of State jurisdiction in the polar regions is decided by international law and human activities in the regions are governed by law, national and international. Thus, no State can unilaterally change the legal order in the polar regions by expanding the scope of its jurisdiction. Be it the law of treaties, the law of the sea and maritime law, international investment law, Indigenous rights and human rights or fundamental principles of State sovereignty, most actors follow most international law most of the time in the polar regions. While there can be debates about the adequacy and effectiveness of international rules and principles or more fundamental disagreements about the proper purpose of international rules and principles, there can be a little doubt that a rule-based international order operates at the poles. The second theme concerns the implications of climate change for the polar regions. The polar regions are affected more rapidly than other regions by anthropogenic climate change.25 This is caused overwhelmingly by activities conducted outside of the polar regions and therefore cannot be mitigated by regulation targeted at the polar regions. Other environmental challenges, including persistent organic pollutants and threats to biodiversity, follow a similar logic: impacts of decisions

23 E.g. Timo Koivurova et al., eds., Routledge Handbook of Indigenous Peoples in the Arctic (Abingdon: Routledge, 2021); Leslie McCartney and Gwich in Tribal Council, Our Whole Gwich’in Way of Life Has Changed / Gwich’in K’yuu Gwiidandài’ Tthak Ejuk Gòonlih (Edmonton: University of Alberta Press, 2020). 24 One exception is Vibe Ulfbeck, Anders Møllman and Bent Ole Gram Mortensen, eds., Commercial Activities in the Arctic – the Example of Greenland (Abingdon: Routledge, 2018). 25 See Chapter 13 of this Handbook.

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and activities elsewhere have a disproportionate impact on the Arctic and Antarctic. However, the changes from warming at the poles will be felt globally, including through sea-level rises, changes in rain distribution and storm patterns and ocean currents. Polar climate impacts such as reduced ice and snow cover (reducing the albedo effect) and permafrost melt (releasing methane into the atmosphere) trigger feedback loops. The third theme is the diversity of actors. States are no longer, if they ever were, the only actors in polar governance. The f irst Peoples to populate the Arctic negotiate alongside States in developing rules to govern the region and there is increasing recognition in international and domestic fora of their substantive rights to exercise jurisdiction over their own members, land and resources. Complex intergovernmental fora, not only the ATS and the Arctic Council but also various UN bodies and specialised agencies such as the International Maritime Organisation, the International Seabed Authority, the UN Human Rights Committee, the World Trade Organisation, as well as the EU, all make, interpret or apply laws pertaining to polar governance. Non-governmental organisations, international corporations and industry bodies also seek to influence legal developments and can have direct impacts on practice (for example, by campaigning on environmental issues, establishing guidelines on megaprojects or refusing insurance for hazardous activities). The fourth theme relates to polar law in global perspectives. The polar regions may be cushioned from certain global tensions but they are not isolated from them. This is playing out in real time as the Russian aggression on Ukraine increasingly complicates cooperation with Russia through the Arctic Council, within the ATS and in bilateral relations with most polar powers. At the time of writing, the seven non-combatant Arctic States were making a tentative restart to Arctic Council projects amongst themselves.26 However, with Russia controlling half the Arctic landmass, half the Arctic coastline, half the Arctic population and nearly two-thirds of Arctic economic production, an Arctic Council without Russia hardly merits the name. The 44th Antarctic Treaty Consultative Meeting in Berlin in May–June 2022 ended in impasse though that is perhaps nothing new.27 It is glib to point out that the challenges facing the polar regions and the inhabitants of the Arctic are just as urgent as ever and that cooperation is required to address them but it is equally important to uphold the most fundamental principle of international law – the prohibition of the use of force against the territorial integrity of another sovereign State. The Indigenous Peoples of the Arctic risk being caught once more in the (so far only metaphorical) crossf ire as they were in the Cold War. Four of the six permanent participants at the Arctic Council have Russian membership (of which RAIPON has solely Russian membership). The participants in Arctic governance, State and nonState alike, must navigate channels for practical cooperation without giving any succour to the Russian invasion or indicating any recognition of Russian sovereignty in occupied regions of Ukraine.

The Structure of the Handbook The Handbook is divided into three parts. Part I deals with global legal issues respecting the polar regions. In so doing, Part I of this volume provides the foundation of polar law. This part consists of three sections. Section A examines fundamental issues of legal regimes governing the polar regions in

26 “Joint Statement on the Limited Resumption of Arctic Council Cooperation,” Government of Iceland, June 8, 2022, www.government.is/diplomatic-missions/embassy-article/2022/06/08/Joint-statement-on-the-limited-resumptionof-Arctic-Council-cooperation/. 27 “XLIV Antarctic Treaty Consultative Meeting,” accessed October  28, 2022, https://atcm44-berlin.de/en/0_atcmxliv-english/.

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Polar Law as a Burgeoning Discipline

international law, inter alia, limits and delimitation, State jurisdiction, navigation, scientif ic research, maritime security and international dispute settlement. First, the editors open Section A with an analysis of the polar legal system (Chapter 2). In this chapter, the editors present a perspective on polar law as a legal system. Then Patrizia Vigni addresses territorial claims to Antarctica (Chapter 3). Vigni suggests that some adaptations to the ATS are needed with a view to reconciling the diverse positions concerning Antarctic claims and to ensuring the widest participation in the governance of Antarctica. Next, Suzanne Lalonde and Clive Schof ield examine the issues of maritime baselines in the polar regions (Chapter 4). In particular, Lalonde and Schof ield highlight the critical importance of baselines to the delineation of the outer limits to maritime claims and the delimitation of maritime boundaries. In Chapter 5, Bjarni Már Magnússon and Snjólaug Árnadóttir discuss the State practice on maritime delimitation in the polar regions. Magnússon and Árnadóttir assess that the Arctic States have been quite successful in delimiting their overlapping maritime claims within 200 nautical miles (M) of their baselines. Suzanne Lalonde and Ted L. McDorman consider the issues of coastal State jurisdiction in ice-covered waters with specif ic focus on Article 234 of the UN Convention on the Law of the Sea (LOSC) (Chapter 6). Lalonde and McDorman argue that it would be counterproductive to the environmental health of the Arctic marine environment to accept that the applicability of Article 234 is based on a mathematical calculation of the presence of ice or an uncertain assessment of causes of a navigational hazard. Erik Franckx examines navigational rights and freedoms in the polar regions, including the Trans-Polar Route, the Northeast Passage and Northwest Passage in the Arctic (Chapter 7). Franckx then concludes that even though there are some convergences, navigational rights in the Arctic and the Antarctic remain clearly distinct. Betsy Baker addresses scientif ic research in the polar regions (Chapter 8). She presents key components of global and regional instruments relevant to the conduct of scientif ic research at the poles. Sof ia Galani considers maritime security in the polar regions, in light of the increasing presence of non-State actors (Chapter 9). In this chapter, Galani demonstrates that multiple issues associated with shipping, such as risks to safety of life, pollution and transnational illegal activities, can pose signif icant threats to the security of the polar oceans. Finally, Donald R. Rothwell reviews mechanisms of international dispute settlement in the polar regions (Chapter 10). Rothwell assesses that as shown by the Antarctic Treaty and the ATS, the polar regions have been subject to some distinctive and innovative dispute settlement mechanisms that are not replicated elsewhere. Section B then addresses contemporary issues regarding environmental protection of the polar regions, including the protection of biological diversity. Yoshifumi Tanaka examines environmental protection of the polar region by applying two models (Chapter  11). According to Tanaka, the protection of the Arctic environment relies on the decentralised-relational model and that of the Antarctic environment rests on the institutional-communitarian model. The two models coexist in the polar regions. Next, Romain Chuffart and Julia Jabour examine the environmental impact assessment (EIA) processes in the polar regions (Chapter 12). In this chapter, Chuffart and Jabour analyse various instruments relating to EIA in the Arctic and EIA procedures in the ATS focusing on the Madrid Protocol. In Chapter 13, Tim Stephens assesses the impacts of climate change on polar regions. Stephens observes that even though the ATS and the Arctic Council do not have any competence to address greenhouse gas emissions, both the Antarctic and Arctic regimes have been highly active in addressing climate issues within their own areas of competence. Ingvild Ulrikke Jakobsen discusses protection of marine biological diversity in the polar regions with specif ic focus on marine protected areas (MPAs) (Chapter  14). There, Jakobsen highlights some challenges of MPAs in the polar regions, such as a lack of coordination of instruments and bodies that provide for the establishment of MPAs. Finally, Antje Neumann deals with wilderness protection in the polar regions (Chapter 15). According to Neumann, the existing sets of wilderness protection seem to 7

Rachael Lorna Johnstone, Yoshifumi Tanaka and Vibe Ulfbeck

be highly inadequate and, thus, decisive steps to cope with the factors diminishing polar wilderness are required. Section C moves on to discuss the management of natural resources, both living and nonliving resources, in the polar regions. In Chapter 16, Rosemary Rayfuse examines the regulation of f ishing in the polar regions, focusing particularly on the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement) and the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention). According to Rayfuse, as the real test for the CAOF Agreement is yet to come, there is much to be learned from the CAMLR Convention experience in the meantime. Malgosia Fitzmaurice and Robert  C. Steenkamp analyse the international legal framework applicable to polar bears and certain species of cetaceans and pinnipeds found at the poles (Chapter 17). In particular, Fitzmaurice and Steenkamp highlight the evolutionary nature of the instruments on this subject. Finally, Alan D. Hemmings and Timo Koivurova address exploitation of mineral resources in the polar regions (Chapter  18). After examination of international mechanisms and regulation of polar mineral resources under the regional regimes of the Arctic Council and ATS and in relation to the continental shelf and deep seabed under the LOSC, Hemmings and Koivurova highlight challenges in the Arctic and Antarctic, respectively. Part II of the Handbook examines the roles, rights and influences of the main actors in polar law. It is likewise divided into three sections: the f irst on intergovernmental institutions, the second on Indigenous Peoples and the third on selected countries and Svalbard. Marel Katsivela opens the f irst section with an assessment of the role of the International Maritime Organisation (IMO), looking in particular at the Polar Code and outstanding issues (Chapter 19). She shows that the Polar Code is not the f inal word in polar shipping governance and that the IMO can – if States are willing – make important contributions to human and environmental security in polar shipping. Edwin Egede considers the International Seabed Authority’s (ISA) powers and responsibilities to manage the common heritage of mankind of the seabed beyond national jurisdiction in the polar regions (Chapter 20). Once the maritime delineations are f inalised, there will be a fairly small Area in the Arctic Ocean on which any extractive activities would require a contract with the ISA. The extent of the Area in the Southern Ocean is unsettled and will remain so as long as the claimant States’ sovereignty is frozen but Egede argues that the Madrid Protocol’s ban on mining cannot supersede the regime of the Area which is controlled by the ISA. Nevertheless, Egede concludes that the ISA strategic plan is paying insuff icient attention to the polar regions. Natalia Loukacheva continues the section with an analysis of the capacity and impact of the Arctic Council to influence law-making in the Arctic (Chapter 21). As an intergovernmental forum without any legislative power, it cannot create or join international treaties in its own name but Loukacheva shows how it has been the locale for the negotiation of three binding treaties and she considers the potential for further instruments. However, she also notes the importance of “soft law” mechanisms agreed through the Arctic Council. Luis Valentín Ferrada offers a complementary analysis of the ATS, explaining the decision-making processes for the Antarctic (Chapter 22). Unlike the Arctic Council, the Antarctic Treaty consultative meeting can agree standards that bind all parties – but States Parties do not all participate on an equal basis. Section B consists of four chapters on the rights of Indigenous Peoples. Rachael Lorna Johnstone sets out the historic and legal basis for Indigenous rights in light of colonisation and decolonisation (Chapter 23). She shows that Indigenous Peoples have a much longer and more effective occupation of their Arctic homelands than the colonial States that profess to hold sovereignty over them. She identif ies the source of Indigenous rights in the incomplete decolonisation processes of the 20th century, which distinguished Colonial Peoples (entitled to full self-determination) and other colonised 8

Polar Law as a Burgeoning Discipline

Peoples according to the “salt-water thesis.” Indigenous Peoples have more limited rights to manage their own affairs and resources. Paul Patton then examines the relationship between Indigenous rights and human rights according to three frames of reference (Chapter 24). Indigenous rights can be viewed as an extension of human rights; human rights can be considered a usurpation of Indigenous culture and value-systems that is an extension of colonisation; or Indigenous rights can be understood as a process of negotiation (sometimes implicit) between colonial States and the Peoples they have colonised. Jan Mikael Lundmark continues the section with a close analysis of those rights in action: the case of the Girjas Saami (Chapter 25).28 In this case, the Swedish Supreme Court upheld the Saami association’s exclusive right to manage small game and f ish on their territory. Lundmark identif ies further issues that Sweden must now address as it seeks to balance different interests (including between different groups of Saami). Tanja L. Joona and Juha Joona then examine one of the most pressing issues facing Indigenous Peoples, States and investors: the rights of Indigenous Peoples regarding development of their land and resources (Chapter  26). Saami are profoundly affected by climate change but they risk also bearing the costs of the energy transition as renewable energy projects are proposed and developed on their lands. Joona and Joona consider the conflicts over land use from the perspective of justice and Indigenous rights. Section C of Part II presents various country perspectives, as well as Svalbard. Sune Klinge, Helle Krunke, Manasse Lars Mikaelsen and Natuk Lund Olsen open this section with an analysis of the evolving constitution of Greenland in light of the ongoing work of the Constitutional Commission for Greenland (Chapter 27). This study highlights the challenges and the potential for Peoples engaging in a cautious and peaceful transition towards increased self-determination. Tore Henriksen follows with a close study of two related controversies regarding interpretation of the Svalbard treaty: the geographical application of the treaty and the extent of Norwegian power to regulate maritime activities to protect the vulnerable environment (Chapter 28). Most States accept that the archipelago generates maritime zones according to the LOSC but the contracting parties (as well as scholars) disagree as to whether the Svalbard treaty’s provisions on equal rights to exploit resources apply in these zones. They also disagree as to whether Norway can establish unilaterally environmental standards and apply these to the vessels of other States Parties. Two perspectives on polar law from Asian States follow. Kentaro Nishimoto discusses Japan’s polar credentials which he argues pivot on peace, promotion of science and sustainable use (Chapter 29). Historically, Japan has been more focused on the Antarctic but the last decade has seen increasing attention in the north. Nengye Liu, Sanna Kopra and Jiliang Chen critically evaluate China’s narrative of the “balance between protection and use” at the poles (Chapter 30). They discuss China’s stated polices and its engagement in the main bodies for Arctic and Antarctic governance. They f ind that China is not always consistent in its approach and expect greater clarity on delivery of the anticipated Antarctic law and revision of China’s Arctic strategy. Part III deals with private governance and private law aspects of polar governance. Section A focuses on multiple issues regarding the use of natural resources in private law. Section B analyses the issues concerning shipping particularly from the viewpoints of maritime law. Rasmus Grønved Nielsen and Vibe Ulfbeck open section A  by focusing on the concept of the license for minerals exploitation and the central question of the right of the public authority subsequently to

28 NJA 2020:3 (Girjas Sami village) SSC.

9

Rachael Lorna Johnstone, Yoshifumi Tanaka and Vibe Ulfbeck

make amendments to the terms of the license (Chapter 31). Using the example of Greenland, the authors show that while the license is issued by a public authority, its legal implications can only be understood by combining public law with analysis of private contract law. Following up on this, Lone Mouyal Wandahl analyses the legal nature of impact benef it agreements and their connection with the licenses (Chapter 32). The chapter shows how contract is used as a tool to handle socioeconomic concerns in the Arctic region. The next contribution is by Karin Buhmann who focuses on sustainability challenges connected with the launching of commercial projects in the Arctic (Chapter 33). The question is how to establish stakeholder consultation and impact assessment in a way that is not only formally correct but also in reality meaningful. The next contribution, by Grant Christensen, shifts the focus from contracts to companies and presents the governance model of the Alaska Native Corporations (Chapter 34). This new model modif ies traditional corporate governance by establishing a role for all stakeholders in a community as shareholders, thereby sticking to traditional Indigenous principles of not separating labour from capital. David Leary then turns attention to the commercialisation of Arctic genetic resources and analyses issues related to the transfer of treaty-based obligation to the contractual level and in particular private international law aspects in this regard (Chapter 35). Staying with the company and investment theme, the contribution by Maxim Usynin closes section A by focusing on China’s investment treaties with Arctic States (Chapter 36). It is concluded that current Chinese investment treaties do not take into account sustainability concerns and grant rights to private investors that may effectively block forward-looking ambitions of Arctic development. He concludes that the treaties should be updated. Section B on maritime law perspectives opens with a contribution by Richard L. Kilpatrick, who reflects on the new challenges posed to commercial shipping through the Northern Sea Route (Chapter 37). It is shown how this may present new risks that will need to be dealt with at the contractual level between shipowners and charterers. The risk theme is also central in the next contribution by Erik Røsæg, who deals with the liability of shipowners for oil pollution in the Arctic and Antarctic (Chapter 38). The contribution shows that neither general conventions nor the special Antarctic liability regime in the Antarctic Treaty have been designed for oil spills in the high seas. In continuation of the liability theme, the next contribution is by Vibe Ulfbeck and Marlene Louise Buch Andersen and is concerned with the cruise ship tourism industry and the liability for injuries to passengers and crew (Chapter 39). The chapter focuses on liability for the special risks posed by shipping in the polar regions and points out that although passengers and crew are onboard the same ship, entirely different liability regimes apply to these two groups in case of an accident. Furthermore, private governance through the use of flags of convenience may affect the position of the seafarers more than the position of passengers. The section is concluded with a contribution by Trine-Lise Wilhelmsen and Hans Jacob Buhl, who address the impact of the Polar Code on issues of marine insurance both with regard to personal injury and property damage (Chapter 40). The consequences of setting aside the obligations in the Polar Code are compared to the consequences of setting aside both statutory law and private regulation.

Conclusion The variety of contributors and contributions to the Routledge Handbook of Polar Law demonstrates, in the view of the editors, that polar law is an established academic discipline. Yet the discussions that follow also show that there remain many challenges and uncertainties ahead. Law cannot solve every problem that awaits, but legal scholarship can point to potential solutions that the diverse actors in polar law must negotiate and agree together.

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Polar Law as a Burgeoning Discipline

Polar law is a discipline that merits further study. The editors have organised the Handbook in three main parts and reflecting four main features: the Arctic-Antarctic interface; the interaction between global, regional and domestic legal regimes; the rights of Indigenous Peoples in the context of decolonisation; and the increasing importance of private law in polar governance. In so doing, the editors hope to have curated an anthology of interest to practitioners and scholars of polar law that will lead to further development of this burgeoning discipline.29

29 As the authors and editors neared the f inal stages of preparing this Handbook, the Russian Federation invaded Ukraine, triggering a hiatus in international cooperation, including pertaining to the polar regions. The temptation to include an examination of the implications of Russia’s aggression for polar law in each chapter was resisted because it would unduly delay the project and burden the contributors. The situation is so unpredictable and fast-moving that the revisions themselves could be out of date by the time of publication. The editors make some general remarks about the impact of the illegal invasion in Chapter 2.

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PART I

International Legal Order in the Polar Regions

SECTION A

Legal Regimes Governing the Polar Regions

2 POLAR LEGAL SYSTEM Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck

Introduction What is polar law? To answer this question, this chapter seeks to clarify the concept of polar law by examining key elements that characterise the law. The existence of a separate and distinctive body of rules of international law applicable to the polar regions has been conf irmed by commentators and practitioners. There is little doubt that these rules form part of a body of polar law.1 However, it is not suggested that human activities in polar regions are regulated by international law only. Currently the role of municipal law, public or private, that regulate activities of natural and juridical persons in the polar regions is also increasingly important because activities of private actors are likely to increase owing to the growing accessibility of the regions due to climate change and everadvancing technology. This development also brings into play maritime law to regulate shipping in the polar regions. Hence, to understand properly a real picture of polar law, there is a need to examine norms applicable to the polar regions in a more comprehensive manner. For the purposes of the Handbook, polar law is broadly def ined as a body of norms of international and municipal law that applies to the polar regions.2 Following the introduction, this chapter clarif ies the scope of polar law. This chapter then addresses the functions and the structure of polar law, respectively. Next, the chapter moves on to examine actors in polar law. Finally, this chapter addresses contemporary challenges that arise in polar law before offering conclusions.

1 Donald R. Rothwell and Alan D. Hemmings, “Evolution of a Polar Law,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 456. 2 There is no universally established def inition of “polar law.” For instance, The Polar Law Textbook def ines “polar law” as “a developing f ield of law that deals with the international and domestic legal regimes that are applicable to the Arctic or the Antarctic, or both.” Polar Law Textbook, ed. Natalia Loukacheva (Copenhagen: TemaNord, 2010), 13.

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DOI: 10.4324/9781003404828-4

Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck

The Scope of Polar Law Spatial Scope of Polar Law Polar law is characterised primarily by its geographical scope. As regards the Antarctic, Article VI of the Antarctic Treaty provides the following:

Map 2.1  Map of the Antarctic

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Polar Legal System

Map 2.2  Map of Arctic administrative areas

The provisions of the present Treaty shall apply to the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.3 The 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) applies the same area of direct application as the Antarctic Treaty,4 while it requires the parties to “commit themselves to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems.”5 For the purposes of the conservation of marine living resources, the spatial

3 December 1, 1959. Entered into force June 23, 1961. Text in: 402 UNTS 71. 4 Article 1(b). Adopted October 4, 1991. Entered into force January 14, 1998. Text in: 2941 UNTS 9. 5 Article 2. According to Scott and VanderZwaag, “the reference to ‘dependent and associated ecosystems’ in Article 2 of the Protocol has not been used in practice as a basis to expand its regulatory reach.” Karen N. Scott and

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Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck

scope of the Antarctic Treaty was further expanded by the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), providing, This Convention applies to the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem.6 Overall, polar law applicable to the Antarctic covers the conventional scope def ined by the Antarctic Treaty and the CAMLR Convention. By contrast, the spatial scope of polar law applicable to the Arctic is not clear-cut since there are multiple def initions of the Arctic.7 For example, the Arctic Monitoring and Assessment Programme (AMAP) proposes four criteria: the Arctic Circle, climate, vegetation and oceanography.8 According to the simplest def inition, the Arctic is def ined by the Arctic Circle (66°32ʹN).9 On the basis of temperature, the Arctic is also def ined as “the area north of the 10°C July isotherm, i.e. north of the region which has a mean July temperature of 10°C.”10 Furthermore, the Arctic is def ined as the inner-circle area of the treeline, which is the northern limit of tree growth or, precisely speaking, “a transition zone between continuous boreal forest and tundra, with isolated stands of trees.”11 According to oceanographic characteristics, the limits of the marine Arctic are situated “along the convergence of cool, less saline surface waters from the Arctic Ocean and warmer, saltier waters from oceans to the south.”12 In the end, for the purposes of the AMAP assessment, AMAP def ined the geographical scope of the Arctic on the basis of a compromise among various def initions.13 Other working groups of the Arctic Council have adopted different def initions of the Arctic according to their purposes.14 At the treaty level, the scope of “the Arctic” varies. For instance, the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue (the Arctic SAR Agreement) in the Arctic def ines the scope of its application by a continuous line connecting specif ic coordinates according to each contracting party.15 The 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (the MOSPA Agreement) specif ies the geographical scope of the application of the Agreement in some detail.16 Likewise, the 2017 Agreement on

David L. VanderZwaag, “Introduction to Polar Law,” in Research Handbook on Polar Law (Cheltenham: Edward Elgar, 2020), 4. 6 Article 1 of the CAMLR Convention. Adopted May 20, 1980. Entered into force April 7, 1982. Text in: 1329 UNTS 47. 7 Rachael L. Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Nijhoff, 2015), 7–8. 8 AMAP, Assessment Report: Arctic Pollution Issues (Oslo, Norway: Arctic Monitoring and Assessment Programme, 1998), 9–10. 9 Ibid., 9. 10 Ibid. 11 Ibid., 9–10. 12 Ibid., 10. 13 Ibid. 14 GRID-Arendal, “Boundaries of the Arctic Council Working Groups,” https://grid-arendal.herokuapp.com/ resources/8387. 15 Annex. Entered into force January 2013. The electronic text is https://oaarchive.arctic-council.org/handle/11374/531. 16 Article 3. Entered into force March 25, 2016. The text of the Agreement is https://oaarchive.arctic-council.org/handle/ 11374/529. Each contracting party def ines the geographical scope. For instance, the application area of Canada is “marine areas above 60 degrees North” and that of Norway is “marine areas above the Arctic Circle.”

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Polar Legal System

Enhancing International Arctic Scientif ic Cooperation (the Arctic Scientif ic Cooperation Agreement) def ines the “identif ied geographical areas” according to each contracting party.17 The three treaties commonly take an approach that each contracting party def ines the geographical scope of the application of each treaty, without establishing a uniform def inition of “the Arctic.” Each Arctic State, meanwhile, def ines its “Arctic regions” for itself, with the exception of Iceland, which asserts that its entire territory is within the Arctic.

Material Scope of Polar Law Polar law is also characterised by the diversity of issues. Indeed, as this Handbook demonstrates, polar law deals with a wide range of issues. In this regard, it must be stressed that polar law addresses not only special issues of the polar regions but also issues relating to common interests of the international community as a whole. In fact, the Antarctic Treaty recognised that “it is in the interest of all mankind that Antarctica shall continue for ever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.”18 Likewise, the Madrid Protocol declared that “the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems is in the interest of mankind as a whole.”19 Furthermore, the protection of the marine Arctic constitutes a crucial part of the protection of the marine environment as required under the UN Convention on the Law of the Sea (LOSC).20 Given that the protection of the marine environment can be considered as a common interest of the international community, the protection of the marine Arctic constitutes part of community interests.21 Moreover, as will be discussed in Part II of this Handbook, the protection of the rights of Indigenous Peoples is of critical importance in the Arctic region. Law and practice of the protection of the rights of Indigenous Peoples in the Arctic region is both informed by and provides important insights into the status and protection of Indigenous Peoples in other regions. In light of this, it is important to note that polar law is not merely a regional law, even though the spatial scope of the application of polar law is limited to the Arctic and the Antarctic.

Temporal Scope of Polar Law Ecological, economic and political conditions surrounding the polar regions may change over time. Technology is also constantly developing. Accordingly, there is a need to adapt the existing rules of polar law to new circumstances. As regards the Antarctic, after the adoption of the 1959 Antarctic Treaty, the Convention for the Conservation of Antarctic Seals (CCAS) was adopted in 1972.22 Subsequently, the CAMLR Convention was adopted in 1980. In 1988, the Convention on the

17 Annex 1. Signed on May 11, 2017. Entered into force May 23, 2018. The text of the Agreement is https://oaarchive. arctic-council.org/handle/11374/1916. For instance, the Identif ied Geographical Areas of the Kingdom of Denmark covers “the territory of the Kingdom of Denmark including Greenland and the Faroes and its marine areas above the southern limit of the Greenland exclusive economic zone and the Faroese f isheries zone.” 18 Preamble. Emphasis added. 19 Ibid. 20 Adopted December 10, 1982. Entered into force November 16, 1994. Text in: 1833 UNTS 3. 21 Millicent McCreath, “Community Interests and the Protection of the Marine Environment within National Jurisdiction,” ICLQ 70 (2021): 569. 22 Adopted June 1, 1972. Entered into force March 11, 1978, 27 UNTS 441.

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Regulation of Antarctic Mineral Resource Activities was adopted,23 although the Convention never entered into force and was superseded by the 1991 Madrid Protocol. The Madrid Protocol itself is evolutionary. It contained four original annexes and two were added later (only one of which is in force).24 Furthermore, various recommendations and binding instruments have been adopted through the Antarctic Treaty consultative meeting (ATCM). As will be discussed in the next section, these treaties and instruments formulate the so-called the Antarctic Treaty System (ATS). Likewise, webs of instruments, binding or non-binding, regarding the Arctic are developing. The development of the instruments can be traced back to the 1920 Svalbard Treaty.25 Subsequently the Agreement on the Conservation of Polar Bears (the Polar Bears Agreement) was concluded in 1973.26 Furthermore, three aforementioned treaties – that is, the Arctic SAR Agreement, the MOSPA Agreement and the Arctic Scientif ic Cooperation Agreement – were adopted under the auspices of the Arctic Council. More recently, the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement) was adopted in 2018.27 In addition, the International Code of Safety for Ships Operating in Polar Waters (Polar Code) was adopted under the auspices of the IMO in 2014.28 The Polar Code, which applies in Arctic and Antarctic waters, constitutes a key instrument with a view to securing safe ship operation and protecting the polar environment by addressing risks present in polar waters.29 In summary, polar law governing the Arctic and the Antarctic evolves over time in response to new challenges. In this sense, one can say that polar law is a dynamic legal f ield.

Functions of Polar Law In broad terms, polar law performs three functions that are closely interlinked. The f irst function is to coordinate various interests of States, by spatially distributing jurisdiction of States. The spatial distribution of State jurisdiction is one of the key functions of international law and the same holds true of international law governing the polar region (coordination function).30 Given that oppositions and conflicts of various interests exist in the polar regions, the coordination function of polar law should be crucial. The second function of polar law is to provide a legal framework for promoting international cooperation in the polar regions (cooperation function). No single State can govern the Antarctic or the Arctic alone. Thus, the proper management of the Antarctic and the Arctic necessitates international cooperation. In fact, international cooperation is a prerequisite for the protection of common interests of the international community in polar regions, such as protection of the polar

23 Adopted June 2, 1988. Not entered into force. 24 In addition to Annexes I to IV, which were adopted in 1991, together with the Madrid Protocol, Annex V and Annex VI were adopted in 1991 and 2005, respectively. While Annex V entered into force in 2002, Annex VI has not yet entered into force. 25 See Chapter 30 of this volume. 26 Entered into force May 26, 1976. Text in: 2898 UNTS, p. 243. 27 Adopted October 3, 2018. Entered into force June 25, 2021. The text of the Agreement is www.dfo-mpo.gc.ca/inter national/agreement-accord-eng.htm. For the CAOF Agreement, see Chapter 16 of this volume. 28 Resolution MSC.385(94), Adopted on November 21, 2014. Entered into force January 1, 2017. Report of the Marine Safety Commission on Its Ninety-Fourth Session, MSC 94/21/Add. 1, Annex 6, https://wwwcdn.imo.org/local resources/en/MediaCentre/HotTopics/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf. 29 Ibid., Introduction, para. 1. 30 Further, see Chapter 6 of this volume.

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Polar Legal System

environment, including wild species and biological diversity, promotion of scientif ic research, protection of the rights of Indigenous Peoples and ensuring security. Polar law provides a legal framework for promoting international cooperation in the polar regions thereby protecting common interests of the international community. Third, polar law regulates various economic activities of natural and judicial persons in the polar regions (economic function). This function is of particular importance in the f ields of, inter alia, shipping, investment, natural resource licences and the tourist industry.

The Structure of Polar Law Polar law consists of two different legal f ields: law applicable to the Antarctic (i.e. Antarctic law) and that applicable to the Arctic (i.e. Arctic law)

Antarctic Law: the Antarctic Treaty System The Antarctic is governed through the so-called Antarctic Treaty System (ATS). Under Article 1(e) of the Madrid Protocol, the ATS means “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.” Specif ically the ATS is composed by the following treaties: the 1959 Antarctic Treaty, the 1972 Convention for the Conservation of Antarctic Seals, the 1980 CAMLR Convention and the 1991 Madrid Protocol.31 The treaties constitute the principal sources of the ATS. What is of central importance in this regard is that all territorial claims over Antarctica were suspended at the time of the adoption of the Treaty.32 Thus, the Antarctic is collectively governed through the ATS, not territorial sovereignty of individual States. The ATS is characterised by three elements that are interlinked. First, as regards law-making, regulatory measures governing the Antarctic are to be collectively formulated by the Antarctic Treaty consultative meeting (ATCM). Under Article IX (1)(f) of the Antarctic Treaty, such measures cover: (a) use of Antarctica for peaceful purposes only; (b) facilitation of scientif ic research in Antarctica; (c) facilitation of international scientif ic cooperation in Antarctica; (d) facilitation of the exercise of the rights of inspection provided for in Article VII of the Treaty; (e) questions relating to the exercise of jurisdiction in Antarctica; and (f ) preservation and conservation of living resources in Antarctica. In fact, the ATCM has adopted various measures, decisions and resolutions.33 In this connection, attention must be paid to the normative coherence within the ATS because coherence should be

31 For the ATS, see Jill M. Barrett, “The Antarctic Treaty System,” in Research Handbook on Polar Law (Cheltenham: Edward Elgar, 2020), 40; Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996), 110–54. 32 Article IV of the Antarctic Treaty. Further, see Chapter 3 of this volume. 33 For a difference of measures, decisions, and resolutions, see Decision 1 (1995): Measures, Decisions, Resolutions and Recommendations. Reproduced in Antarctica in International Law, eds. Ben Saul and Tim Stephens (Oxford: Hart Publishing, 2015), 179. See also Chapter 22 of this volume.

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a crucial element of legal system. In this regard, Article 4 of the Madrid Protocol provides the following: 1. This Protocol shall supplement the Antarctic Treaty and shall neither modify nor amend that Treaty. 2. Nothing in this Protocol shall derogate from the rights and obligations of the Parties to this Protocol under the other international instruments in force within the Antarctic Treaty system. Under Article 5 of the Madrid Protocol, the parties are also required to avoid any inconsistency between the implementation of international instruments within the ATS and of the Protocol. Under Article III of CAMLR Convention, the contracting parties, whether or not they are Parties to the Antarctic Treaty, agree that “they are bound by the obligations contained in Articles I and V of the Antarctic Treaty.” Thus normative coherence is ensured within the ATS. Second, the ATS contains a mechanism to adopt legally binding decisions. Under Article IX(4) of the Antarctic Treaty, the measures referred to in Article IX(1) is to be effective “when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings held to consider those measures.”34 Under the CAMLR Convention, conservation measures are to be adopted by CCAMLR.35 Conservation measures adopted by CCAMLR are, in principle, binding upon all members of the Commission 180 days after such notif ication.36 Third, the ATS is equipped with compliance procedures. Each contracting party to the Antarctic Treaty whose representatives are entitled to participate in the ATCM has the right to designate observers to carry out any inspection in accordance with Article VII(1). Each observer is to have complete freedom of access at any time to any or all areas of Antarctica.37 Furthermore, Article VII(3) provides that “[a]ll areas of Antarctica, including all stations, installations and equipment within those areas, and all ships and aircraft at points of discharging or embarking cargoes or personnel in Antarctica, shall be open at all times to inspection by any observers” designated in accordance with Article VII(1). Thus, compliance with the Antarctic Treaty is ensured by the inspection by the observers. The inspection system is also included in the Madrid Protocol.38 As regards the CAMLR Convention, compliance with measures taken by the CCAMLR is ensured by the Standing Committee on Implementation and Compliance (SCIC).39 In summary, in the ATS, the compliance with norms and measures is supervised by a third party or organ. All in all, the ATS has institutional mechanisms for adopting legally binding measures and, to certain extent at least, ensuring compliance with the measures. Hence, it may be said that the ATS is relatively an institutionalised legal system.

34 In accordance with paragraph 1(a) of Decision 1(1995), “[a] text which contains provisions intended to be legally binding once it has been approved by all the Antarctic Treaty Consultative Parties will be expressed as a Measure recommended for approval in accordance with paragraph 4 of Article IX of the Antarctic Treaty, and referred to as a ‘Measure.’ ” Decision 1 (1995). See also Decision 2 (2011), Annex 1: ATCM Revised Rules of Procedure, para. 24. 35 Article IX(1). 36 Article IX(6)(b). Exceptions are provided in Article IX(6)(c) and (d). 37 Article VII(2). 38 Article 14. Further, see Chapter 11 of this volume. 39 CCAMLR, Standing Committee on Implementation and Compliance (SCIC) Terms of Reference and Organization of Work, Basic Documents, December 2019, 109, para. 2, www.ccamlr.org/en/system/f iles/e-pt8_0.pdf.

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Arctic Law Most of the Arctic is under the territorial sovereignty, sovereign rights and national jurisdiction of the coastal States in the region. Unlike the Antarctic, there is no framework treaty governing the Arctic. As a consequence, the Arctic legal system is less institutionalised compared to the ATS. In this regard, three observations can be made. First, unlike the ATS, there is no institutional machinery for formulating norms governing the Arctic. A  principal intergovernmental forum is provided by the Arctic Council. However, the Arctic Council is not a legislative body and the Council itself cannot adopt treaties.40 Accordingly, treaties concerning the Arctic are to be adopted by groups of States on the case-by-case basis that may include States from other regions. Examples include the Svalbard Treaty and the the CAOF Agreement.41 Second, there is no machinery for adopting legally binding measures in the Arctic. It is true that the Arctic Council issues various guidelines and action plans, thereby providing a basis for the making of Arctic policy.42 The role of the Council in Arctic policy-making should not be underestimated.43 Nonetheless, the Arctic Council has no power to adopt measures that are legally binding upon member States of the Council.44 Third, unlike the ATS, compliance procedures remain less developed in the binding treaties regarding the Arctic. There is no compliance procedure in the Polar Bears Agreement. Disputes relating to the three treaties agreed through the Arctic Council (though existing independently of it) are to be resolved through negotiations or consultations.45 Even though the implementation of the CAOF Agreement and the MOSPA Agreement is to be reviewed at the meeting of the parties, compliance procedures need further elaboration. In addition, instruments adopted by the Arctic Council are not subject to any compliance procedures because they are not legally binding. Accordingly, the compliance with norms governing the Arctic relies on the goodwill of States. Since there is no superior organ that directs the behaviour of States, Arctic law is essentially designed to regulate horizontal relationships between States with involvement of the permanent participants (organisations of Arctic Indigenous Peoples). Overall, Arctic law can be considered as a decentralised legal system.

Polar Law as a Legal System In summary, the polar legal system should be considered as a dual legal system that consists of two different types of legal system. One is an institutionalised legal system (i.e. the ATS) and the other is

40 Timo Koivurova, Pirjo Kleemola-Juntunen and Stefan Kirchner, “Arctic Regional Agreements and Arrangements,” in Research Handbook on Polar Law (Cheltenham: Edward Elgar, 2020), 73–74. 41 Ilulissiat, Greenland, October  3, 2018, OJ L 73/3 (March  15, 2019), www.mofa.go.jp/mofaj/f iles/000449233.pdf. Entered into force June 25, 2021. 42 For instance, the Arctic Council issued “Guidelines for Implementing an Ecosystem Approach to management of Arctic Marine Ecosystems” in 2019. See https://oaarchive.arctic-council.org/handle/11374/2390. In May 2021, the Arctic Council issued “Regional Action Plan on Marine Litter in the Arctic.” 43 Tore Henriksen, “The Arctic Ocean, Environmental Stewardship, and the Law of the Sea,” UC Irvine Law Review 6 (2016): 61, 78. 44 See Chapter 21 of this volume. See also Erik Molenaar, “Participation in the Central Arctic Ocean Fisheries Agreement,” in Emerging Legal Orders in the Arctic: The Role of Non-Arctic Actors, eds. Akiho Shibata et al. (London: Routledge, 2019), 147. 45 Arctic SAR Agreement, Article 17, MOSPA Agreement, Article 18, Arctic Scientif ic Cooperation Agreement, Article 15.

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a decentralised legal system (i.e. Arctic law).46 However, this does not mean that polar law is merely an amalgam of the Antarctic and Arctic laws. Polar law contains some elements that are common to the Antarctic and Arctic laws. Among other things, four elements merit closer attention.47 Environmental protection: Both the Arctic and Antarctic are ice-covered areas and the polar environment is vulnerable. Furthermore, the environments of the Arctic and Antarctic are commonly threatened by climate change. Hence, the protection of the environment, including wild species and biological diversity, constitutes a common issue of the Antarctic and Arctic.48 In this regard, the Madrid Protocol clearly stated that “[t]he protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, . . . shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.”49 As regards the Arctic, the 2021 Reykjavik Declaration reaff irmed “our commitment to the protection of the Arctic environment.”50 The remoteness and harsh environmental conditions necessitate particular rules applicable to the polar regions. As regards navigation, for instance, the Polar Code was adopted in order to provide for safe ship operation and the protection of the polar environment by addressing risks present in polar waters.51 Cardinal principles and concepts of international law governing environmental protection, such as the no-harm principle, the precautionary principle and the obligation to cooperate, are equally applicable to the protection of the environment of the Antarctic and the Arctic. Scientif ic research: The polar regions are crucial for scientif ic research.52 To date, scientif ic research has been the preeminent activity in the Antarctic.53 In this regard, the Antarctic Treaty provides obligations to ensure freedom of scientif ic investigation in Antarctica and cooperation in various provisions.54 The Madrid Protocol recognised the value of Antarctic as “an area for the conduct of scientif ic research, in particular research essential to understanding the global environment.”55As regards the Arctic, the Arctic Scientif ic Cooperation Agreement seeks “to enhance cooperation in Scientif ic Activities in order to increase effectiveness and eff iciency in the development of scientif ic knowledge.”56 Given that credible data are a prerequisite for the governance of the polar regions, promotion of scientif ic research should be a key common issue in polar law. Peaceful uses: The Preamble of the Antarctic Treaty clearly recognises that “it is in the interest of all mankind that Antarctica shall continue for ever to be used exclusively for peaceful purposes.” Thus, Article I of the Antarctic Treaty provides that “Antarctica shall be used for peaceful purposes

46 Related to this, the concept of Arctic Council system is claimed by Molenaar. This concept also denotes polar law governing the Arctic. In this connection, Molenaar highlighted “fundamental differences between the international regimes for the Arctic and the Antarctic.” 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 (2012): 553, 572–73. 47 See also Scott and VanderZwaag, “Introduction to Polar Law,” 12–15. 48 Further, Chapter 11 of this volume. 49 Article 3(1). 50 Declaration of the Foreign Ministers of the Arctic States at the 12th Ministerial meeting of the Arctic Council held in Reykjavik, Iceland, May 20, 2021, https://oaarchive.arctic-council.org/handle/11374/2600. 51 Introduction, para. 1. Resolution MSC.385(94). Adopted November 21, 2014. Entered into force on January 1, 2017. Report of the Marine Safety Commission on Its Ninety-Fourth Session, MSC 94/21/Add. 1, Annex 6, https://www cdn.imo.org/localresources/en/MediaCentre/HotTopics/Documents/POLAR%20CODE%20TEXT%20AS%20 ADOPTED.pdf. 52 On this issue, see Chapter 8 of this volume. 53 Scott and VanderZwaag, “Introduction to Polar Law,” 13. 54 Articles II, III(1), and IX(1). 55 Article 3(1). 56 Article 2.

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only.”  Indeed, Antarctica was the f irst international demilitarised space.57 As regards the Arctic, peaceful purposes have been aff irmed by various instruments though it is not demilitarised and States are entitled to conduct military activities within the conf ines of general international law. But a commitment to peace in the Arctic has been reiterated specif ically and has been at the heart of cooperation in the Arctic Council and its predecessor, the Arctic Environmental Protection Strategy. For instance, the Nuuk Declaration explicitly referred to “the importance of peace, stability, and constructive cooperation.”58 The commitment to maintain peace, stability and constructive cooperation in the Arctic was also reaff irmed by the 2021 Reykjavik Declaration. Article 301 of the LOSC also provides an obligation regarding peaceful uses of the seas. Thus, as with other branches of international law, peaceful uses constitute a crucial element in polar law. Russian’s unprovoked invasion of Ukraine in 2022 shattered the mutual trust that Arctic States are fundamentally committed to peace in the Arctic. Even though the invasion is not in the Arctic, per se, the proximity of the aggression to the Arctic alongside thinly veiled threats towards Finland and Sweden, should they seek shelter in NATO, triggered a break in diplomatic relations and cooperation through the Arctic Council. Up until this time, Arctic cooperation had been sheltered from broader international tensions, including the consequences of Russia’s illegal annexation of Crimea in 2014. International cooperation: The ATS can be considered as a wholly cooperative international framework.59 The need for international cooperation has also been highlighted by various instruments governing the Arctic. For instance, the Arctic SAR Agreement recognised “the great importance of cooperation among the Parties in conducting search and rescue operations.”60 Likewise the MOSPA Agreement recognised the importance of “cooperation to promote and encourage the conservation and sustainable use of the marine and coastal environment and its natural resources.”61 Furthermore, as the International Tribunal for the Law of the Sea (ITLOS) stated, “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law.”62 The same holds true of the protection of the polar environment. Overall international cooperation is a prerequisite for environmental protection, scientif ic research, and peaceful use of the polar regions. Hence, it could well be said that international cooperation constitutes a cardinal principle of polar law.63 In summary, both the Antarctic and Arctic laws are characterised by four common elements – environmental protection, scientif ic research, peaceful uses and international cooperation. Together, they provide a nexus of Antarctic and Arctic laws. In this light, it may be possible to consider polar law as a distinct legal f ield governing the polar regions. Importantly, polar law is not merely a random mosaic of specif ic norms. Rather it must be considered as a legal system that has coherent and meaningful relationships between norms on the basis of cardinal principles and legal instruments.

57 Scott and VanderZwaag, “Introduction to Polar Law,” 12. 58 Preamble Nuuk Declaration, “The Seventh Ministerial Meeting of the Arctic Council” (May 12, 2011), Nuuk Greenland, https://oaarchive.arctic-council.org/handle/11374/92. 59 Scott and VanderZwaag, “Introduction to Polar Law,” 12. 60 Preamble. 61 Ibid. 62 MOX Plant case (Ireland v. United Kingdom) (Provisional Measures), ITLOS Case No. 10, [2001] ITLOS Reports 110, para. 82. The dictum was conf irmed by ITLOS in: Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS Case No. 12, [2003] ITLOS Reports 25, para. 92; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, ITLOS Case No. 21, [2015] ITLOS Reports 2015, 43, para. 140. 63 Scott and VanderZwaag, “Introduction to Polar Law,” 12.

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Actors of Polar Law Next, this section examines actors of polar law. The actors of polar law are diverse, including States, Indigenous Peoples, international organisations and private actors.

States At the international law level, the State constitutes a principal subject of polar law. In this regard, care should be taken, in noting that the role of States is not uniform in polar law. In the ATS, the role of contracting parties to the Antarctic Treaty are differentiated between consultative parties and non-consultative parties. Consultative parties refer to 12 original signatory States to the Antarctic Treaty and each contracting party that “demonstrates its interest in Antarctica by conducting substantial scientif ic research activity there, such as the establishment of a scientif ic station or the despatch of a scientif ic expedition” in accordance with Article IX(2) of the Antarctic Treaty.64 Under Article IX(4), the regulatory measures concerning the Antarctic are to be decided by approval of all the consultative parties at the ATCM. While non-consultative Parties are allowed to participate in the ATCM, they have no vote. As regards the Arctic, only eight Arctic States – Canada, the Kingdom of Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden and the United States – are the members of the Arctic Council.65 Related to this, the so-called Arctic Five – Canada, the Kingdom of Denmark, Norway, the Russian Federation, and the United States – highlighted their self-proclaimed stewardship role in the protection of the Arctic Ocean.66 However, it is not suggested that the Arctic States, either the Arctic Eight or the Arctic Five, enjoy a special status in international law. Article 234 of the LOSC provides limited powers to regulate shipping for the purposes of environmental protection in ice-covered waters for Arctic coastal States whose exclusive economic zones are ice-covered for more than half of the year but otherwise, the LOSC does not furnish a special jurisdiction to the Arctic States. Furthermore, observer status of the Arctic Council is open to non-Arctic States and intergovernmental and non-intergovernmental organisations. The presence of non-Arctic States seems to be increasing in the Arctic.67 However, participation by non-Arctic States, international organisations and fora, and non-governmental organisations in the Arctic Council as observers is subject to strict criteria and regular review, not least that they must all recognise the sovereignty and sovereign rights of the Arctic States and uphold international law. This is a clear message that the Arctic as a whole is not a commons comparable to the Antarctic.68

64 Currently 29 out of 53 contracting parties to the Antarctic Treaty are consultative parties. 65 For Arctic States, see Mary Durfee and Rachael L. Johnstone, Arctic Governance in a Changing World (Lanham: Rowman and Littlef ield, 2019), 52–67. 66 See, for instance, the Ilulissat Declaration. Adopted in Ilulissat, Greenland on May  28, 2008, https://cil.nus.edu.sg/ wp-content/uploads/2017/07/2008-Ilulissat-Declaration.pdf. However, the stewardship role of the Arctic Five was not shared by Finland, Sweden and Iceland. According to the three States, this is a matter for the Arctic Council. Christian Prip, “The Way Towards Strengthened Marine Cooperation in the Arctic,” The Jclos Blog 2 (2017), https://site.uit.no/ nclos/2017/11/03/the-way-towards-strengthened-marine-cooperation-in-the-arctic/. 67 See Chapters 29, 30, 31, 32 and 33 of this volume. 68 Arctic Council Rules of Procedure, as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, Iqaluit, Canada, September 17–18, 1998, and revised by the Arctic Council at the Eighth Arctic Council Ministerial Meeting, Kiruna, Sweden, May  15, 2013, Rule 36 and Annex 2, at: https://oaarchive.arctic-council.org/ handle/11374/940.

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Indigenous Peoples Indigenous Peoples by def inition pre-exist the States in which they live, States whose frontiers cut across their historic territories. In the Arctic there are dozens of Indigenous Peoples, with over 40 in Arctic Russia alone. They constitute at least 10% of the Arctic population (around 400,000 individuals) but are probably more as not all groups that self-identify as Indigenous are recognised as such by the States in which they now live and not all individuals who self-identify as Indigenous are included in off icial numbers.69 With families and communities having been separated for decades through the Cold War, Indigenous Peoples were the f irst to cooperate across State borders as it drew to a close. They were also instrumental in the establishment of the Arctic Council.70 Six international Indigenous organisations are permanent participants within the Arctic Council, one of which (the Russian Association of Indigenous Peoples of the North, RAIPON) has exclusively Russian members and three others include Russian members.71 The history of Indigenous-led cooperation in the Arctic provides some hope that Indigenous organisations can keep the lines of communication open when States cannot. RAIPON is closely allied with the Russian government and has expressed support for the 2022 invasion of Ukraine.72 However, a competing coalition of Indigenous Peoples’ organisations in Russia, the International Committee of Indigenous Peoples in Russia, has unambiguously condemned the aggression.73

International Organisations The role of international organisations is of particular importance in specif ic f ields of polar law. For instance, the International Maritime Organisation (IMO) performs a crucial role in the law-making with regard to the safety of navigation.74 As regards the exploration and exploitation of marine mineral resources, the role of the International Seabed Authority (ISA) merits mention.75 The ISA is an international organisation which is composed of the contracting parties to the LOSC. The exploration and exploitation of mineral resources in the Area, which is “the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction,”76 are controlled by the ISA.77 Thus, the activities in the Area in the polar regions are subject to the jurisdiction of the ISA. In addition

69 See Durfee and Johnstone, Arctic Governance in a Changing World, 42–43 and Chapter 26 of this Handbook. 70 Thomas S. Axworthy and Ryan Dean, “Changing the Arctic Paradigm from Cold War to Cooperation: How Canada’s Indigenous Leaders Shaped the Arctic Council,” Yearbook of Polar Law 5 (2013): 7–43. 71 Arctic Council, “Permanent Participants,” accessed September  24, 2022, www.arctic-council.org/about/ permanent-participants/. 72 Letter from RAIPON to the President of the Russian Federation, March 1, 2022, no. 64, Indigenous Russia, “RAIPON supports the decision of President Putin to start the war in Ukraine,” accessed September 24, 2022, https://indigenousrussia.com/archives/19434. 73 International Committee of Indigenous Peoples of Russia (ICIPR), “Statement of the International Committee of Indigenous Peoples in Russia,” March  10, 2022, The Polar Connection, “Statement of the International Committee of Indigenous Peoples of Russia,” March  11, 2022, accessed September  24, 2022, https://polarconnection.org/ international-committee-of-indigenous-peoples-of-russia/. 74 The IMO does not have the power to adopt treaties itself and the organ must convene diplomatic conferences for this purpose. Article 2(b) of the 1948 Convention on the International Maritime Organisation. 289 UNTS, 48. Entered into force March 17, 1958. Further, see Chapter 19 of this volume. 75 See Chapter 20 of this volume. 76 LOSC, Article 1(1)-(1). 77 LOSC, Article 153(1).

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to global international organisations, regional international organisations are also active in the polar regions. For example, the European Union (EU) participates in several Arctic Council’s working groups, task forces and expert groups.78

Private Actors Private actors increasingly play an important role in the polar regions and in Polar Law. Thus, due to climate change, both the Arctic and the Antarctic are becoming more accessible and there is increased awareness of business opportunities. Examples include cruise shipping for tourism purposes, commercial shipping, mining activities and related infrastructure projects. This brings shipowners, charterers, insurers, mining companies, construction companies and other related business actors to the polar regions. Moreover, some of the activities carried out by private parties have clear public interest dimensions. For instance, mineral extraction projects may have environmental and social effects on local communities and in certain areas, extraction of rare earth minerals cannot be done without also producing uranium as a by-product. Furthermore, the use of foreign labour for large scale projects in the Arctic may involve geopolitical interests. In this sense, the role played by private actors is not of a purely commercial nature but may have more far-reaching consequences.

Challenges of Polar Law As will be discussed in the Handbook, polar law encounters multiple challenges with regard to, inter alia, protection of biological diversity, f isheries regulation, resource management, wilderness protection, protection of the rights of Indigenous Peoples and impacts of climate change. Furthermore, currently the impacts of Russia’s invasion of Ukraine on polar law are becoming a matter of serious concern. It is not possible at the time of writing to predict the medium- or long-term consequences of Russia’s aggression on polar law. Even so, it cannot pass unnoticed that Russia’s invasion of Ukraine can affect the basic functions of polar law. Probably the most important impact relates to international cooperation. As explained earlier, promotion of international cooperation is a crucial function of polar law. After Russia’s invasion of Ukraine, however, the Arctic Council has stopped all off icial meetings of the Council.79 Furthermore, many scientif ic projects with Russia have been paused. For instance, Max Planck Institute for Biogeochemistry decided to freeze the funding used to pay personnel at Northeast Science Station on the Kolyma River in Siberia to study climate change in the Arctic environment.80 The suspension of international scientif ic cooperation can prevent effective protection of the Arctic environment, including impacts of climate change on the Arctic, because of the shortage of credible data. Russia’s invasion of Ukraine also influences Ukrainian scientists’ life at the Ukrainian research base in the Antarctic.81 Furthermore, there is concern that in the future, the suspension of international cooperation with Russia can influence other f ields that require international cooperation, such as

78 EU, Statement by the European Union on Its Contribution to the Work of the Arctic Council, 12th Ministerial Meeting of the Arctic Council, May  20, 2021, https://oaarchive.arctic-council.org/bitstream/handle/11374/2664/ MMIS12_2021_REYKJAVIK_Observer-Statement_Adhoc_EU.pdf?sequence=1&isAllowed=y. 79 See https://twitter.com/arcticcouncil; Joint Statement on Arctic Council Cooperation Following Russia’s Invasion of Ukraine, March 3, 2022, www.state.gov/joint-statement-on-arctic-council-cooperation-following-russias-invasion-of-ukraine/. 80 See www.reuters.com/article/us-ukraine-crisis-russia-science-insight-idAFKCN2M203Q. 81 See www.theguardian.com/world/2022/mar/16/nowhere-to-return-ukrainian-scientist-in-antarctica-watches-warunfold-from-afar.

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search and rescue,82 oil pollution preparedness and response83 and prevention of unregulated highseas f isheries.84 It must also be noted that the scope of the continental shelf of Canada, Denmark vis-à-vis Greenland, the Russian Federation, and the United States overlap in areas beyond 200 nautical miles (M).85 In this regard, the four States mutually agreed that they should not lodge objection to the submission of information to the Commission on the Limits of the Continental Shelf (CLCS).86 Accordingly, the Arctic States would enter into negotiation to delimit the overlapping areas on the basis of the Commission’s recommendations. However, Russia’s invasion of Ukraine might prevent future negotiations with regard to maritime delimitation of the overlapping areas of the continental shelf beyond 200 M. Moreover, the Russian invasion might also affect economic activities in the polar regions, such as the use of the Northern Sea Route by the maritime industry. Preliminary shipping numbers for the 2022 summer season show a precipitous decline.87 However, it is not suggested that polar law as a legal system will cease to function in the future. In fact, the ATS continues to govern Antarctica. The LOSC, including its international dispute settlement system, continues to apply to the marine Arctic and oceans surrounding the Antarctic. Hence, one can say that the legal framework of polar law remains the same. Furthermore, polar law may provide a source of inspiration for new developments. For example, new types of governance models for companies have been developed for companies in the Arctic regions that have a stronger focus on community involvement and protection of Indigenous rights. In parallel to this, also new types of contracts have been developed with the aim of ensuring social benef it to local communities of commercial projects. Whereas the need to balance commercial interests with community and environmental interests is particularly clear in the polar regions, the new models could serve as inspiration and perhaps be applicable also outside the Arctic where the same type of balancing of interests must in reality must be done.

Conclusion Polar law as a burgeoning discipline is increasingly important in international relations. The polar regions clearly do not exist in splendid isolation from global processes – be they geophysical or anthropological. However, we maintain that there are suff icient idiosyncrasies of governance at

82 International cooperation is key in the Arctic Search and Rescue Agreement. See Articles 2, 9 and 10. 83 The MOSPA Agreement refers to international cooperate in many provisions. See, for instance, Articles 1, 4(2), 8(3), 12(1), 13(1), 14(2), 17 and 21(2). 84 The CAOF Agreement provides obligations to cooperate in ensuring the compatibility of conservation and management measures for f ish stocks that occur in areas both within and beyond national jurisdiction in the central Arctic Ocean (Article 3(6)) and scientif ic activities (Article 4(1)). Entered into force June  25, 2021. The text is www.mofa.go.jp/ mofaj/f iles/000449233.pdf. 85 See Chapter 5 of this volume. 86 See Norway’s Note Verbale of January  21, 2014, www.un.org/Depts/los/clcs_new/submissions_f iles/submission_ dnk_68_2013.htm; Norway’s Note Verbale of December 17, 2014, Canada’s Note Verbale of December 29, 2014, and Russia’s Note Verbale of July 21, 2015; The United States’ Note Verbale of October 30, 2015, www.un.org/Depts/ los/clcs_new/submissions_f iles/submission_dnk_76_2014.htm; the United States’ Communication of August 28, 2019, and Denmark’s Communication of August 29, 2019, www.un.org/Depts/los/clcs_new/submissions_f iles/submission_ can1_84_2019.html. 87 Malte Humpert, “International Shipping on Northern Sea Route Collapses As Foreign Companies Stay Away,” High North News, September 12, 2022, www.highnorthnews.com/en/international-shipping-northern-sea-route-collapsesforeign-companies-stay-away.

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both poles that merit close examination and indeed suff icient commonalities to constitute a distinct body of polar law. It is argued that environmental protection, scientif ic research, peaceful uses and international cooperation constitute key components that characterise polar law as a distinct body of law. Polar law is a dynamic legal f ield involving various actors – States, Indigenous Peoples, international organisations and private actors. At the same time, polar law encounters multiple challenges. In fact, peaceful cooperation to promote common interests – science, environment, human development – may now be under threat to a greater degree than seen in the past six decades. But that makes it more important than ever to identify, emphasise and prioritise the strengths in polar law. We believe that polar law can provide a source of inspiration for new developments of national and international laws.

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3 TERRITORIAL CLAIMS TO ANTARCTICA Patrizia Vigni

Introduction The historical origin of the territorial claims to Antarctica dates back to the “heroic era,” in which discovery expeditions were sponsored by States, such as France, Norway and, in particular, the United Kingdom, that desired to enlarge their sphere of territorial, political and economic power.1 The occupation of Antarctica on behalf of these States did not initially arouse the concern of the international community due to the limited activities that these States could perform in the Antarctic area by reason of the adverse climate conditions. Nevertheless, after World War II, the tensions occurring both between States asserting rights over Antarctica and within the international context compelled the political powers to establish an international regime for the governance of this area of the planet: namely, the Antarctic Treaty (AT).2 The AT neither recognises nor denies State sovereignty over the Antarctic territories.3 The AT States Parties are divided into claimant States asserting territorial sovereignty over some areas of the Antarctic continent4 and non-claimant States that, by contrast, do not recognise these assertions. The AT and the legal regime,5 which has developed from it, has been so far quite successful at managing Antarctic issues in spite of the contrasting positions of the States Parties with regard to the legitimacy of sovereignty claims over the area. However, the signif icant political and social changes that have affected the international community since the adoption of the AT and the development of other f ields of international law have

1 See Donald R. Rothwell, “Sovereignty and the Antarctic Treaty,” Polar Record 46 (2010): 17. 2 The Antarctic Treaty, Washington, DC. December 1, 1959, Entered into force June 23, 1961. Text in: 402 UNTS 71 (AT). 3 There also exists an Antarctic area over which no sovereign rights are claimed, the so-called unclaimed sector. See Alan D. Hemmings and Neil Gilbert, “Antarctica’s Unclaimed Sector,” Antarctic 33 (2015): 44. 4 Claimant States are Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom. 5 The def inition of Antarctic Treaty System (ATS) is provided in article 1(e) of the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), according to which ATS “means the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.” Protocol on Environmental Protection to the Antarctic Treaty, Madrid October 4, 1991, Entered into force January 14, 1998, Text in: 2941 UNTS 9.

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DOI: 10.4324/9781003404828-5

Patrizia Vigni

raised the question whether territorial claims to Antarctica may still have any raison d’être in the current international political and legal framework. Thus, the legal status of existing territorial claims to Antarctica must be ascertained according to the diverse times and conditions through which these claims have been asserted and consolidated.

The Origin of Territorial Claims to Antarctica States claiming territorial sovereignty in Antarctica base these claims upon different factual and legal grounds the validity of which is not always acknowledged under international law. For example, France, Norway and the United Kingdom declared their claim in the f irst half of the 20th century on the basis of the discovery of the continent resulting from the expeditions of some of their nationals.6 However, discovery as such does not entail the recognition of the ground of these claims. In fact, some form of physical occupation of the Antarctic territory is required after its discovery.7 Occupation is one of the modes of acquisition of sovereignty over a territory according to international law.8 The precondition allowing the occupation of a territory is that it must be terra nullius.9 Antarctica has never had an Indigenous human population and was not occupied by any country when British, French and Norwegian explorers reached it for the f irst time. In addition, the Antarctic continent could not be considered as res communis omnium, or a common good, the appropriation of which is forbidden under international law.10 In fact, although the concept of res communis has been acknowledged since the times of the Roman Empire, the only “good” that has been embraced in this def inition is the sea.11 In addition, the principle of the common heritage of humankind, which may be considered as a most elaborated conceptual category of “common goods,” has been only recently recognised in international law.12 Thus, the occupation of Antarctic territories could be justif ied under the international rules that were in force at the time in which France, Norway and the United Kingdom had access to these territories for the f irst time. However, the acquisition of uninhabited territories only occurs as a result of their effective occupation. Effective occupation requires the administration and control of occupying States over some territories. Thus, the legitimacy of the sovereignty claims that France, Norway and the United Kingdom asserted over Antarctica could not be merely acknowledged because of the fact that their nationals reached the South Pole twice or three times. Simultaneously, the continuous control of a

6 For the view that explorers were invested with sovereignty authority, see Klaus J. Dodds, “Sovereignty Watch: Claimant States, Resources, and Territory in Contemporary Antarctica,” Polar Record 47 (2011): 233. 7 In this regard, the arbitral award relating to the dispute affecting the Island of Palmas specif ies that “an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered.” Island of Palmas case (Netherlands v. USA), April 4, 1928, in 2 UN Reports of International Arbitral Awards, 831, 846. 8 For the historic origin of the principle according to which appropriation requires occupation see Hugo Grotius, Mare Liberum (1609), 24 as commented by John Salter, “Hugo Grotius. Property and Consent,” Political Theory 29 (2001): 537. 9 For the view that at there was the perception that Antarctica was res nullius before the discovery of explorers, see Christy Collis, “Territories Beyond Possession? Antarctica and Outer Space,” The Polar Journal 7 (2017): 290. 10 For the original def inition of res communis, see Institutiones Justiniani (533). 11 For a thorough analysis of the concept of res communis, see Percy Thomas Fenn Jr, “Justinian and the Freedom of the Sea,” American Journal of International Law 19 (1925): 716, 721. 12 The principle of “common heritage of humankind” has been formulated for the f irst time at the end of the 1960s in order to prevent appropriation of the resources of the deep seabed and celestial bodies. For a recent analysis of the concept of “common heritage of humankind,” see John E. Noyes, “The Common Heritage of Mankind: Past, Present, and Future,” Denver Journal of International Law and Policy 40 (2011): 447. See also Moragodage C. W. Pinto, “The Common Heritage of Mankind: Then and Now,” RCADI 361 (2013): 9–130.

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State is hard to demonstrate in an area, such as Antarctica, where human life is not sustainable due to its critical climate conditions (at least, unless climate change will totally alter these conditions).13 Thus, according to some judicial rulings and doctrinal opinions that were provided in the early 20th century, the effectiveness of the occupation of Antarctic territories should be assessed in line with criteria other than the ones that are applied with respect to the areas of the planet, which are less inaccessible.14 Among such criteria, special attention must be paid to the intent of the occupying States to maintain the control over a specif ic area and its resources.15 In particular, the relevant conduct of the British and Norwegian governments demonstrating their intent to exercise sovereignty over the claimed Antarctic territories may be traced back to the 1920s and 1930s, when they off icially declared their sovereignty over these territories.16 The importance of this event was also demonstrated by the fact that, following these declarations, other States, such as Argentina and Chile, made off icial statements in which they also claimed sovereignty over Antarctica.17 In addition, all States claiming sovereignty over Antarctic territories, the so-called claimant States, adopted domestic legislation asserting their rights to a territorial sea over the adjacent maritime areas corresponding to these territories.18 When these assertions were declared, customary international law already recognised territorial sovereignty of coastal States with respect to the territorial sea and sovereign rights over the continental shelf.19 In this regard, the declarations of maritime areas of claimant States might be considered as rather redundant. However, the very purpose of these States was to consolidate their territorial claims through the declaration of the corresponding maritime areas. Nevertheless, even from a strictly logical point of view, the recognition of maritime claims is clearly conditional upon the legitimacy of territorial assertions and not the other way around. In sum, even if the effective occupation of inhospitable lands may be recognised regardless of the continuous presence and control of the occupying States over the claimed territories, the intent of

13 For the view that technological developments and climate change may facilitate the occupation of Antarctica in the near future, see Donald R. Rothwell and Alan D. Hemmings, “Evolution of a Polar Law,” in Research Handbook on Polar Law, ed. Karen N. Scott (Cheltenham: Edward Elgar Publishing, 2020), 455, 462. 14 This conclusion has been also reached in several arbitral awards and decisions of the Permanent Court of International Justice stating that effective occupation may be ascertain according to different criteria when diverse circumstances occur. See Island of Palmas case, 846, Case of Clipperton Island (1931) (Mexico v. France), January 28, 1931, in 2 UN Reports of International Arbitral Awards, 1105, 1110 and Legal Status of Eastern Greenland (Denmark v. Norway), judgement, April 5, 1933, Permanent Court of International justice (ser. A/B) No. 53, 21, 39. For the relevance of this case law, see Arthur Watts, International Law and the Antarctic Treaty System (Cambridge: Grotius, 1992), 121. For the view that occupation occurred in Antarctica by means of the exploitation of resources, see Peter A. Bernhardt, “Sovereignty in Antarctica,” California Western International Law Journal 5 (1975): 318. 15 See Dodds, “Sovereignty Watch,” 231. 16 The declarations of France and the United Kingdom took place in 1924 while Norway proclaimed its sovereignty over Queen Maud territories in 1939. For a thorough analysis of the off icial claims to sovereignty over Antarctica, see Shirley V. Scott, “Ingenious and Innocuous? Article IV of the Antarctic Treaty as Imperialism,” The Polar Journal 1 (2011): 54. 17 For the signif icance of these off icial assertions of sovereignty, ibid. 18 For example, Australia proclaimed its territorial sea in 1973 by Australia with regard to its Antarctic and sub-Antarctic territories. In this regard, see Ruth Davis, “Australia in Antarctica and the Southern Ocean: Exploration, Exploitation and Conservation,” in Southern Ocean Fishing. Policy Challenges for Australia, eds. Sam Bateman and Donald R. Rothwell (Wollongong: Centre for Maritime Policy, University of Wollongong, 1998), 41. Besides, Chile aff irmed the existence of a territorial sea corresponding to its Antarctic territories in the same act in which it def ined the extent of the territorial claim. See Decreto Supremo no. 1747 of November 1940, at www.vchile.cl/Navegar?idNorma=1017683 (last visited March 9, 2021). 19 For the view that coastal States have a ipso facto and ab initio title to the continental shelf resources facing their coastline, see North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), International Court of Justice (ICJ), judgement, February 20, 1969, ICJ Reports 1969, 3, 22, para. 19.

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these States must result from unambiguous acts that are signif icant from both the legal and political point of view.20 Such unambiguous acts of occupation cannot be exemplif ied by the mere discovery of an unknown land that some nationals of a State have made for their sense of adventure. Similarly, the subsequent adoption of domestic legislation sanctioning sovereignty and sovereign rights over the Antarctic territories, the territorial sea and the continental shelf cannot legitimise the lack of the previous effective occupation of these lands. In fact, this legislation cannot constitute the foundation of such an occupation but rather would be only a consequence of it. Other States, such as, in particular, the four claimant States that are located in the Southern Hemisphere, have justif ied their sovereignty claims over Antarctica on the ground of the geographical proximity of the South Pole with respect to their mainland territories.21 This argument seems to be unpersuasive due to the fact that the latter territories cannot be properly considered as contiguous to Antarctica due to their signif icant physical distance. Second, the ground of geographical proximity may not as such validate the legitimacy of Antarctic claims under international law. In fact, territorial proximity is a factual element that needs to be complemented by a legal title or the effective occupation of contiguous territories in order to allow the recognition of a close link between a State and these territories.22 For this reason, the argument relating to geographical proximity is not effective to identify the legitimate sovereign State in case of the overlap of the assertions of sovereignty of different States over the same territories, which is actually a problem affecting the claims of some States over Antarctica.23 In view of that, States have invoked the ground of geographical proximity together with other arguments to legitimise their Antarctic sovereignty claims.24 For example, Argentina and Chile base their assertions of sovereignty on the fact that they inherited their rights from the colonial State to which their Antarctic territories used to belong – namely, Spain. Thus, in these States’ view, the legitimacy of their claims should be reinforced by the reference to the uti possidetis principle both in its original and most modern interpretation.25 This principle serves to def ine the extent of a claim of a State (the former colony) over a territory according to the delimitation of the boundaries existing at the time of the administration of the colonial State.26 In this regard, Argentina and Chile have invoked two historic acts, the 1493 Papal Bull and 1494 Treaty of Tordesillas, which decreed the partition of the territories of the Southern Hemisphere among the Spanish and Portuguese

20 For the view that the occupation of the Antarctic continent is not effective, see Scott, “Ingenious and Innocuous?” 55. Conversely, another legal tenet upholds that the effectiveness of the control over an area must be ascertained by comparing the conducts of the different States attempting to exercise such control. See Bernhardt, “Sovereignty in Antarctica,” 326. 21 See Dodds, “Sovereignty Watch,” 233. 22 For the view that “an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered,” see the Island of Palmas case, 846. See also Bernhardt, “Sovereignty in Antarctica,” 340. 23 The claim of the United Kingdom over the Antarctic peninsula partially overlaps both the Argentine and Chilean claims over this area. See Bruno Arpi, “Maps Have Meaning: Why Does a Recent Argentine Map Have Potential Implications for Antarctic Governance?” Australian Journal of Maritime and Ocean Affairs 13 (2021): 79–93. 24 This ground is also mentioned by Bernhardt, “Sovereignty in Antarctica,” 340. 25 For an in-depth analysis of this principle see John Bassett Moore, Costa Rica Panama Arbitration: Memorandum on Uti Possidetis (Rosslyn, VA: Commonwealth, 1913) and, most recently, Malcolm N. Shaw, “The Heritage of States: The Principle of Uti Possidetis Today,” British Yearbook of International Law 67 (1996): 75. 26 For the application of the uti possidetis principle with respect to decolonisation see Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), International Court of Justice, judgement, December 22, 1986, ICJ Reports 1986, 554, 566, para. 23. For the analysis of the uti possidetis principle with respect to Antarctic claims see Scott, “Ingenious and Innocuous?” 55.

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Empires.27 This reasoning does not appear to be particularly convincing. The mentioned legal acts patently sanctioned the apportionment of the already known and occupied territories of the Southern Hemisphere. In fact, when the Papal Bull and Treaty of Tordesillas were adopted, the existence of the Antarctic continent was just speculated.28 As a consequence, Argentina and Chile could not invoke the uti possidetis principle with respect to their claimed Antarctic territories, over which the rights of the Spanish and Portuguese Empires did not exist at the time of the adoption of the legal acts from which these rights should have stemmed according to the view of Argentina and Chile. Moreover, from a strictly legal point of view, both the Papal Bull and Treaty of Tordesillas were not binding with respect to States other than Spain and Portugal.29 Thus, the Argentine and Chilean claims over Antarctica would need to be justif ied according to different grounds in order to be opposable at the international level. Other States, such as New Zealand, have supported their claims on the ground that they acquired sovereignty over Antarctic territories at the beginning of the 20th century following the transfer of the title from the United Kingdom.30 Such argument could be deemed as valid only if the rights of the transferor State, the United Kingdom, had been undisputable at the time of the transfer of sovereignty over Antarctic territories to New Zealand. Nevertheless, as aff irmed earlier, the discovery of the United Kingdom of these territories cannot be considered as an unambiguous act demonstrating the effective occupation from which sovereign rights should be inferred. Thus, New Zealand cannot have acquired valid sovereign rights from a holder that did not enjoy them in an irrefutable manner. In addition, the argument of geographical proximity has been also associated with the “sector principle.” According to this rule, the extent of sovereignty claims relating to the polar regions should be delimited by using the coastline of a State and the Pole as boundaries. For example, on the basis of the “sector principle,” France, New Zealand and the United Kingdom have claimed the Antarctic territories that comprise the sectors circumscribed by the coastline of the sub-Antarctic islands, over which these States enjoy undisputable sovereignty, and the South Pole.31 Neither the rule basing sovereignty on the transfer of the title from a former colonial State nor the “sector principle” seems to be an effective criterion to validate Antarctic territorial claims.32 On the one hand, the transfer of a title to territory is conditional upon the fact that the transferred rights were indisputably recognised at the time of their transmission. In contrast, the territorial sovereignty of the Spanish and British Empires corresponding to Antarctic territories do not appear to have been def initely acknowledged at the international level. On the other hand, the “sector principle” was formulated to delimit the maritime claims of coastal States over the Arctic Ocean, which is

27 For a thorough analysis of these legal instruments, see Collis, “Territories Beyond Possession?” 290. 28 See Hugh R. Mill and Fridtjof Nansen, “Polar Regions,” in Encyclopædia Britannica 11th edition, ed. Hugh Chisholm (Cambridge: Cambridge University Press, 1911), 938. 29 Strictly speaking, the bull was an act of the Pope, who was only the head of a single State and chief of a religious group. Similarly, the Treaty of Tordesillas was a mere bilateral agreement that could not bind third States. 30 For the signif icance of the ground based on the transfer of sovereignty to Australia and New Zealand, see Gillian Triggs, “The Antarctic Treaty System: A Model of Legal Creativity and Cooperation,” in Science Diplomacy: Antarctica, Science, and the Governance of International Spaces, eds. Paul Arthur Berkman, Michael A. Lang, David W. H. Walton, and Oran R. Young (Washington, DC: Smithsonian Institution Scholarly Press, 2011), 39. 31 For a thorough analysis of the attempts of application of the “sector principle” to Antarctica, see J.S. Reeves, “Antarctic Sectors,” The American Journal of International Law 33 (1939): 519. 32 For the view that the “sector principle” is not recognised under international law and, thus, its application is not required, see Bernhardt, “Sovereignty in Antarctica,” 338. For a more recent view against the recognition of the “sector theory” in international law see Rothwell-Hemmings “Evolution of a Polar Law,” 463.

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circumscribed by the coastline of these States. Instead, the application of this theory appears to be unsuitable for the Antarctic continent, which is separated from the mainland of the claimant States by the Atlantic and Pacif ic Oceans. Therefore, grounds other than occupation do not appear to be very convincing to support the legitimacy of Antarctic territorial claims. Finally, beside these claims, attention must be paid to the fact that the United States (and, later, the Soviet Union, as well) has always demonstrated its interest in the management of Antarctica. Although this demonstration has never entailed a proper territorial claim, the intent of the United States to exercise its control over the activities occurring in the Antarctic area was quite patent particularly after World War II.33 This “intent to control” has never been thoroughly expressed and enforced. Nevertheless, the territorial claims and corresponding “atypical” occupation of current claimant States would have probably had a different fate if the United States had concretely exercised its control over the Antarctic continent. In short, no existing claim to sovereignty over Antarctica appears to be def initely well-founded under international law. The most solid ground to aff irm sovereignty still remains occupation. Nevertheless, States claiming sovereignty over Antarctic territories on the basis of this ground, such as the United Kingdom and Norway, have unequivocally demonstrated neither their effective occupation nor their will of exercising their sovereign powers with respect to the other members of the international community that occurred to operate in their claimed Antarctic territories. Not surprisingly, territorial claims over Antarctica have so far mainly remained on paper.

The Status of Territorial Claims to Antarctica According to the Antarctic Treaty The uncertain legal status of Antarctic territorial assertions and the tensions affecting the States the claims of which overlapped34 led the superpowers (in particular the United States) and other States that were interested in carrying out activities in Antarctica to seek for the settlement of these frictions. The objective of these States was to establish a multilateral regime that could satisfy both the need to pacify the Antarctic region and the desire to maintain access to the area.35 Following the international conference that was organised during the 1957–1958 International Geophysical Year,36 the AT was adopted by the seven States asserting sovereign rights over Antarctica, the Soviet Union, the United States, and other States, such as Belgium, Japan, and South Africa, that had interest in carrying out activities in the Antarctic continent although they did not claim sovereignty over it.37

33 For an overall analysis, see David. A. Colson, “The United States Position on Antarctica,” Cornell International Law Journal 19 (1986): 291, at footnote 5. For a view recognising the relevance of the “claim to control” of the United States and Soviet Union, see Collis, “Territories Beyond Possession?” 291. According to some legal tenet, this claim of control should be considered as a new form of colonialism. For this view, see Scott, “Ingenious and Innocuous?” 57. 34 The toughest disputes affected the overlapping claims of Argentina and Chile with the assertion of the United Kingdom. The two disputes were submitted to the ICJ, but the Court denied its jurisdiction over these cases. Antarctica Cases (United Kingdom v Argentina; United Kingdom v Chile) ICJ, Order of March 16, 1956, ICJ Reports 1956, 12. The unsettled disputes also risked leading to armed conflicts among the parties. Thus, this situation must be considered as one of the main reasons of the acceleration of the negotiations of a treaty regulating the government of Antarctica. 35 Scott, “Ingenious and Innocuous?” 58. 36 For the relevance of the Geophysical Year as a part of the diplomatic process leading to the adoption of the AT, see Scott, “Ingenious and Innocuous?” 52. 37 The interests of these non-Claimant States mainly concerned Antarctic resources. See Collis, “Territories Beyond Possession?” 290. Together with Belgium, Japan, and South Africa, Poland was one of the AT Signatory Parties that did not

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Article IV of the AT is the norm dealing with Antarctic territorial claims. The main purpose of this article is to freeze the status of Antarctica at the time of the adoption of the AT. Article IV states the following: 1. Nothing contained in the present Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty shall be asserted while the present Treaty is in force. Although, according to paragraph 1 of article IV, no AT provisions entail a renunciation or diminution of asserted rights or any basis of claim, this norm does not resolve the uncertainty relating to the legitimacy of sovereignty claims that, as aff irmed earlier, have been based on several grounds. The ambiguous solution that is envisaged in article IV was primarily aimed at avoiding the outbreak of the conflicts, from which the AT’s negotiations originated.38 Thus, article IV does not determine the legitimacy of the grounds upon which territorial claims are based but rather it is conf ined to safeguarding Antarctic claims as such.39 The ambivalent approach that is adopted in article IV should also serve to preserve the positions of both claimant and non-claimant States as to the recognition or non-recognition of the claims to sovereignty over Antarctic territories.40 This solution has been traditionally identif ied with the name of “bifocal approach.”41 While paragraph 1 of article IV freezes claims at the time of the adoption of the AT, paragraph 2 regulates the positions of claimant and non-claimant States once the AT has entered into force. First of all, under paragraph 2, States cannot use the activities that they are allowed to perform in

claim sovereignty over Antarctica. However, Poland’s participation was mainly due to the intent of the Soviet Union of enhancing the role of the Socialist Bloc in the Antarctic area rather than in the concrete interest of Poland in carrying out activities in this area. 38 For the ambiguity of the wording of article IV, see Triggs, “The Antarctic Treaty System: A Model of Legal Creativity and Cooperation,” 39. 39 For this view, see Watts, International Law and the Antarctic Treaty System, 128. For the view according to which article IV of the AT recognises the existence of claims, see Indi Hodgson-Johnston, “Australian Politics and Antarctic Sovereignty: Themes, Protagonists and Antagonists,” Australian Journal of Maritime and Ocean Affairs 7 (2015): 183. 40 Article IV(1)(c) of the AT. 41 Bifocal approach means that AT Parties must create norms, which, although establishing the same duties and rights for all States Parties, can be differently construed by claimant and non-claimant States on the basis of their acknowledgement or denial of territorial sovereignty in Antarctica. For a thorough analysis of the concept of bifocal approach, see Tucker Scully, “The Development of the Antarctic Treaty System,” in Science Diplomacy: Antarctica, Science and the Governance of International Spaces, eds. Paul A. Berkman et al. (Washington DC: Smithsonian Institution Scholarly Press, 2011), 29.

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Antarctica according to the AT as bases for asserting sovereign rights. Therefore, an AT State Party, which has occupied some Antarctic territories to establish a scientif ic station or a State that has adopted domestic rules to administer the activities of its nationals in Antarctica, cannot invoke these conducts as valid grounds for asserting sovereignty over these territories according to the general rules of international law. Moreover, paragraph 2 of article IV of the AT does not allow new claims or the enlargement of existing ones. Therefore, territorial claims, including their boundaries and overlaps, survive as long as the AT is in force. Simultaneously, non-claimant States are allowed to maintain the same position that they had at the time of the adoption of the AT, but they cannot assert their own sovereignty over Antarctic territories. In this regard, the position of the United States is noteworthy because, under paragraph 2 of article IV, it retains the right to claim the control over the entire AT area (ATA) according to its 1959 position. Some legal tenets have criticised the outcome resulting from the application of article IV of the AT because, in their view, this “freezing approach” has prevented the evolution of the legal status of Antarctica towards some most modern forms of governance of the ATA.42 Certainly, the ambiguous solution that has been endorsed in the AT is not fully satisfactory. Such critiques argue that the AT, as any other 60-year-old regime, needs to be adapted to current political and factual circumstances. However, the “bifocal approach” has so far undeniably served to ensure peace and cooperation among the AT Parties.43 Article IV only refers to “territorial sovereignty.” However, claimant States have also asserted territorial sovereignty over the territorial sea and the sovereign rights over the continental shelf corresponding to their claimed Antarctic territories. The assertions affecting maritime areas should be considered as part of the general territorial claims that are safeguarded under article IV of the AT. In fact, claimant States had already declared these maritime areas at the time of the adoption of the AT.44 In addition, the international law of the sea has evolved since 1959 by extending the rights of coastal States with respect to the exclusive economic zone. This evolution may patently entail a challenge for the enforcement of the prohibition of extending existing claims that is sanctioned in paragraph 2 of article IV of the AT. The status of maritime claims must be also assessed according to article VI of the AT that def ines the ATA.45 First of all, according to this article, the AT also applies to ice shelves that must be, therefore, embraced in the territorial claims that are recognised under article IV.46 Moreover, article VI safeguards the rights of States in the high seas that are located in the ATA. This provision may give rise to two opposite interpretative solutions. On the one hand, it might entail that all Antarctic waters are high seas, and thus, claims to sovereignty over maritime areas should be considered as inconsistent with article VI. On the other hand, the reference to high seas might imply that Antarctic waters include both high seas and waters under State jurisdiction. This ambiguous wording of article VI matches the language of article IV sanctioning the bifocal

42 Dodds, “Sovereignty Watch,” 237; Scott, “Ingenious and Innocuous?” 53. 43 Julia Jabour and Melissa Weber, “Is It Time to Cut the Gordian Knot of Polar Sovereignty?” Review of European, Comparative, and International Environmental Law 17 (2008): 27. 44 See footnote 18. See also Chapter 7 of this volume. 45 According to article VI, the AT area (ATA) is the area south of 60° South Latitude. 46 For this view, see Bernhardt, “Sovereignty in Antarctica,” 308.

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approach.47 Thus, claims affecting the Antarctic waters seem to be legitimised by the joint application of these two AT articles. Finally, the approach originating from the coordinated application of articles IV and VI of the AT has been also endorsed in other international legal instruments that are applicable in the ATA. In particular, the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) also makes the provisions of article IV of the AT binding with respect to the CAMLR States Parties that are not parties to the AT.48 Thus, the legitimacy or, at least, the effectiveness of the bifocal approach, as applied to Antarctic sovereignty claims, seems to have been also acknowledged at the international level.49 So far, claimant States have not exercised their asserted sovereignty over the Antarctic in a patent manner. In particular, they have refrained from enforcing their claimed rights, at least, with respect to the nationals of third countries, including the citizens of non-claimant States.50 AT States Parties have mainly regulated the activities that are carried out in Antarctica according to the jurisdictional criterion of the nationality of the operators.51 However, in some circumstances, the application of some form of territorial jurisdiction appears to be unavoidable. For example, States enforce domestic legislation with respect to all people, including the nationals of third States, who perform activities in their Antarctic stations.52 Actually, this power does not seem to originate from the assertion of territorial sovereignty. In fact, non-claimant States also apply their domestic norms with respect to all the members of their Antarctic expeditions and within their Antarctic stations. Rather, this form of State jurisdiction may be considered as a sort of control that a State exercises with respect to a group of persons with whom has a strict link when other jurisdictional criteria, such as the principles of territorial sovereignty and nationality, are not applicable.53 The “sovereignty neutrality”54 that is envisaged in the AT has not helped to clarify the legal status of territorial claims to Antarctica. However, it has served to mitigate the frictions that would have

47 See Donald R. Rothwell, “A Maritime Analysis of Conflicting International Law Regimes in Antarctica and the Southern Ocean,” Australian Yearbook International Law 16 (1995): 158. 48 See Article IV(1) of the Convention on the Conservation of Antarctic Marine Living Resources. Convention on the Conservation of Antarctic Marine Living Resources, Canberra May 20, 1980, Entered into force April 7, 1982, Text in: 1329 UNTS 47 (CAMLR Convention). 49 See also article 1(1) of the Convention for the Conservation of Antarctic Seals (CCAS), London June 1, 1972, Entered into force March 11, 1978, Text in: 1080 UNTS 175. 50 Since the adoption of the AT, Claimant States have mainly reaff irmed their sovereignty assertions at the domestic level. One of the most bizarre forms of consolidation of the sovereignty claims entails the transfer of Argentine pregnant women to the Antarctic territories that are claimed by Argentina in order to grant Argentine passports to the new-borns. For a thorough analysis of these types of conducts aimed at consolidating Antarctic claims, see Dodds, “Sovereignty Watch,” 234. 51 For the view that jurisdictional criterion based on nationality is dominant in the ATS due to its incorporation in article VIII of the AT, see Rothwell, “Sovereignty and the Antarctic Treaty,” 18. 52 For the view that claimant States exercise their jurisdiction in their Antarctic station on the basis of the principle of territorial sovereignty, see Dodds, “Sovereignty Watch,” 235. 53 According to a most updated doctrinal view, a distinction should be made between de jure and de facto sovereignty in Antarctica. In this regard, de jure sovereignty would entail the regime resulting from article IV of the AT while de facto sovereignty would result from the concrete enforcement of ATS obligations that claimant and non-claimant States have ensured for sixties years by any available jurisdictional means. For this view, see Shirley V. Scott, “Antarctic: Competing Claims and Boundary Disputes,” in Research Handbook on Polar Law, ed. Karen N. Scott (Cheltenham: Edward Elgar Publishing, 2020), 147, 162. 54 For this def inition, see Triggs, “The Antarctic Treaty System: A Model of Legal Creativity and Cooperation,” 43.

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emerged from the enforcement of the claimed sovereign powers of claimant States and made the Antarctic Treaty system (ATS) one of the most successful international legal regimes.

Present and Future Challenges to the Current Governance of Antarctica Although the regime originating from article IV of the AT seems to have ensured the successful coexistence of Antarctic territorial claims and the need to manage Antarctica in the common interest in the last 60 years, this regime is currently subject of criticism both at the internal and external level. The most serious frictions occurring between the AT Parties affect some conducts that claimant States have performed to consolidate their assertions. First of all, condemnation was raised by non-claimant States due to the declaration of the maritime areas corresponding to the claimed Antarctic territories. As aff irmed earlier, the territorial sea and continental shelf seems to be part of the claims that are covered by article IV of the AT. By contrast, some doubts arise with respect to the legitimacy of the declarations of claimant States of an exclusive economic zone (EEZ)55 and of the information56 that these States have submitted to the Commission on the Limits of the Continental Shelf in order to extend the external limit of their Antarctic continental shelf beyond 200 M in accordance with article 76(7) of the UN Convention on the Law of the Sea (LOSC).57 In spite of the fact that these declarations and requests have not modif ied the legal status of Antarctic waters under the AT, non-claimant States have f irmly condemned these assertions that, in their view, entail an enlargement of existing claims in contrast to article IV of the AT.58 In response to this argument, claimant States have upheld that the proviso of article IV must be interpreted consistent with the current rules of the international law of the sea. Thus, the claims to the EEZ and requests for the extension of the outer limit of the continental shelf should be covered by article IV along with the assertions of the territorial sea and continental shelf. Regardless of the consistency of these new assertions with respect to the object and purpose of article IV of the AT, which actually appears to be quite doubtful, these conflicts of views have provoked distrust and suspicion among the AT Parties. The recurrence of these types of conducts may patently jeopardise the spirit of cooperation that has characterised this regime since its origin.

55 For example, Australia proclaimed an Antarctic Fishing Zone in 1979, which was followed by the declaration of an exclusive economic zone (EEZ) in 1994. Similarly, the United Kingdom statute establishing a maritime zone for British sub-Antarctic islands explicitly denies the possibility of exercising enforcement powers, which it otherwise has under the statute, over those waters, which fall within the geographic scope of the AT. See No. 3 Fisheries (Conservation and Management) Ordinance 1993, Section 5 (1) (United Kingdom). This concerns the 200 nautical miles (M) zone surrounding the South Sandwich Islands. 56 Among claimant States, Australia, Argentina and Norway submitted information affecting the area below 60 degrees south latitude. France and the United Kingdom only proposed the extension of their continental shelf corresponding to their sub-Antarctic islands that are located beyond the ATA and over which sovereignty is not disputable. For a thorough analysis of this issue, see Ted L. McDorman, “The International Legal Regime of the Continental Shelf with Special Reference to the Polar Regions,” in Polar Law Textbook II, ed. Natalia Loukacheva (Copenhagen: Nordic Council of Ministers, 2013), 77; Alan D. Hemmings and Tim Stephens, “Australia’s Extended Continental Shelf: What Implications for Antarctica?” Public Law Review 20 (2009): 9. 57 UN Convention on the Law of the Sea, Montego Bay December 10, 1982, Entered into force November 16, 1994, Text in: 1833 UNTS 396 (LOSC). See Chapter 5 of this volume. 58 The United States was the strongest opponent to these declarations of the claimant States. For the view that this objection was aimed at preserving the US claim of control over the entire Antarctic area and, thus, must be equated to the enforcement of sovereign powers, see Dodds, “Sovereignty Watch,” 233.

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Moreover, in some circumstances, claimant States have attempted to exercise their territorial sovereignty in their claimed Antarctic territories and waters in order to provide adequate enforcing instruments that are not established in the AT.59 This choice was primarily aimed at making the substantive obligations of the AT most effective. In particular, some claimant States have attempted to ensure the surveillance over illegal f ishing60 by sending military vessels in the ATA61 or through the enforcement of their domestic legislation with respect to nationals of third States that had performed illegal activities in the claimed Antarctic waters.62 These conducts of claimant States have raised tensions (and even disputes) with non-claimant States that have considered the exercise of these sovereign powers as a breach of some of the most relevant norms of the AT, such as, for example, the prohibition of military activities in the ATA and the obligation of subjecting operators to the sole jurisdiction of their State of nationality.63 Therefore, the political balance that article IV of the AT establishes between the positions of claimant and non-claimant States appears to be very fragile and conditional upon the conscientious application of the obligations of the AT by all States Parties. On the other hand, territorial claims over Antarctica have been challenged by States that are not parties to the AT. In particular, these States have criticised the bifocal approach because it keeps the issue of sovereignty over Antarctica unresolved. Some third States have suggested that the Antarctic should be governed by an international regime in the interest of the international community.64 In this regard, the proposal of recognising Antarctica as a part of the common heritage of humankind would have a crucial impact on the legal status of Antarctic territorial claims.65 In fact, according to this proposal, Antarctica should be considered as res communis and, thus, unsusceptible to be subject to State sovereignty.66 However, in recent times, the inflexible approach emerging from the concept

59 For the view that the AT does not provide effective enforcing instruments in particular with respect to the activities carried out by the nationals of third countries, see Triggs, “The Antarctic Treaty System: A Model of Legal Creativity and Cooperation,” 48. 60 For example, in 2004, Australia established the Southern Ocean Maritime Patrol and Response Programme in order to contrast illegal f ishing. For an overview, see Dodds, “Sovereignty Watch,” 239. 61 For example, in 1999 New Zealand sent Te Kaha, an Anzac-class frigate, to the Ross Sea to prevent illegal f ishing of Patagonian toothf ish. See Dodds, “Sovereignty Watch,” 236. 62 In particular, some claims were raised before Australian courts in order to denounce the whaling activities of Japanese companies. See, for example, Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, Federal Court of Australia, January 15, 2008 [2008] FCA 3. In this case, the Australian Federal Court recognised its jurisdiction while the conduct had occurred in the ATA. However, the subsequent intervention of the Australian government interrupted the judicial proceedings. For a thorough analysis of this case, see Triggs, “The Antarctic Treaty System: A Model of Legal Creativity and Cooperation,” 45. 63 See articles I and VIII of the AT. 64 For a detailed analysis of the discussions relating to the “Question of Antarctica” within the UN framework, see Peter J. Beck, “Antarctica and the United Nations,” in Handbook of the Politics of Antarctica, eds. Klaus Dodds, Alan D. Hemmings, and Peder Roberts (Cheltenham: Edward Elgar Publishing, 2017), 255. 65 In this regard, see, for example, the declaration of Malaysia at the 1982 UN General Assembly Meeting, Doc. A/37/ PV.10. For the view that a more nuanced analysis of the common heritage principle would allow its application to Antarctica, see Francesco Francioni, “Antarctica and the Common Heritage of Mankind,” in International Law for Antarctica, eds. Francesco Francioni and Tullio Scovazzi (Milan: Giuffrè, 1987), 137. For an avant-garde view recognising the revolutionary spirit of the common heritage principle – namely, the capability of ensuring the governance of common goods irrespective of the State-centric approach characterising the international legal order – see Prue Taylor, “The Concept of Common Heritage of Mankind,” in Research Handbook on Fundamental Concepts of Environmental Law, ed. Douglas Fisher (Cheltenham: Edward Elgar Publishing, 2016), 306. 66 The f irst State that proposed to declare Antarctica as res communis was India in 1956. However, due to the small number of existing developing States during the 1950s, the two superpowers the Soviet Union and United States were able to keep the United Nations out of the government of Antarctica. See Rothwell, “Sovereignty and the Antarctic Treaty,” 18.

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of “common heritage of humankind” has been progressively superseded by forms of governance, according to which the protection of common goods (the so-called global commons) may coexist with State sovereignty.67 For example, the regimes concerning the protection of the ozone layer,68 biodiversity and climate ensure the protection of these “goods” in the general interest even if these goods are in part located under State territorial jurisdiction. In line with this approach, the concept of common concern has been formulated in the Preambles of 1992 UN Framework Convention on Climate Change69 and, later, of the 2015 Paris Agreement.70 This concept reconciles the need to preserve certain “common environmental goods” in the interest of humankind with the recognition of State sovereignty over these goods.71Accordingly, the fact that “common goods” are subject to State jurisdiction does not absolve sovereign States from the obligation of preserving these goods for the benef it of the international community as a whole. In this regard, the common concern principle seems to reflect the same approach that has been adopted in the provisions of the AT. While the Preamble of the AT sanctions that “is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes,” article IV still allows States Parties to claim territorial sovereignty in the Antarctic.72 This approach has so far restrained AT States Parties, in particular claimant States, from carrying out activities in Antarctica for their mere self ish interests. Nevertheless, the past and current ability of the AT of ensuring the preservation of the Antarctic in the collective interest does not, as such, legitimise the assertions of sovereignty over this area in particular from the point of view of the States that are not parties to the AT. Moreover, the emerging forms of governance that have recently originated in international environmental law might also assist to discourage new States,73 which are interested in having an active role in the management of Antarctica, from attempting to occupy this continent. These States, which are not bound by the AT, might in fact seek to occupy some Antarctic territories to claim their own territorial sovereignty, regardless of the fact that, according to article IV of the AT, new

67 For a thorough analysis of this matter, see Susan Buck, The Global Commons. An Introduction (Washington, DC: Island Press, 1998). The coexistence of the protection of common goods and State sovereignty has been also the subject matter of the negotiations of an agreement regulating the management of marine biodiversity beyond national jurisdiction. See UN Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, Draft Agreement under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, March  4, 2023, https://www.un.org/bbnj/sites/www.un.org.bbnj/f iles/ draft_agreement_advanced_unedited_for_posting_v1.pdf. 68 Convention for the Protection of the Ozone Layer, Vienna May 22, 1985, Entered into force September 22, 1988, Text in: 1513 UNTS 293. 69 UN Framework Convention on Climate Change. Rio May 9, 1992, Entered into force March 21, 1994, Text in: 1771 UNTS 107. 70 UN Framework Convention on Climate Change COP, Paris Agreement, Paris December 12, 2015, Entered into force November 4, 2016, accessed March 14, 2021, https://treaties.un.org/doc/Publication/UNTS/No%20Volume/54113/ Part/I-54113-0800000280458f37.pdf. For a preliminary analysis of this agreement see Daniel Bodansky, “The Paris Climate Change Agreement: A New Hope?” American Journal of International Law 110 (2016): 288. 71 For a thorough analysis of this principle, see Frank Biermann, “Common Concern of Humankind: The Emergence of a New Concept of International Environmental Law,” Archives des Völkerrechts 34 (1996): 426. 72 For the view that the AT envisages a regime ensuring the co-administration of the Antarctic, see Rüdiger Wolfrum, “Common Interest and Common Heritage in Antarctica,” in Handbook of the Politics of Antarctica, eds. Klaus Dodds, Alan D. Hemmings and Peder Roberts (Cheltenham: Edward Elgar Publishing, 2017), 142. 73 For an overview relating to this issue, see Ashley Coates, “Geopolitics Threatens Antarctica’s Future as a Peaceful Hub for Science,” Independent, March 29, 2017, accessed March 12, 2021, www.independent.co.uk/news/science/geopoliticsthreats-antarctica-future-as-peaceful-hub-for-science-oild-mining-land-grab-territorial-a7622721.html.

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claims are prohibited. This issue might entail serious divergences between the positions of the States Parties to the AT, in particular claimant States, and third States if the latter resolved to exploit the Antarctic continent for their self ish interests. For example, the increasing need for fresh water makes Antarctic ice appealing to a number of States.74 However, the most controversial aspect relating to the claims to territorial sovereignty over the Antarctic territories concerns the moral justif ication of these assertions. According to some legal tenets,75 sovereignty claims entail a form of colonialism that has been crystallised by the provisions of article IV of the AT while colonial States have progressively disappeared in other areas of the planet.76 This crystallisation is also revealed by the fact that developing States are signif icantly underrepresented in the ATS.77 The absence of an Antarctic Indigenous population has prevented the opposition against the claimed sovereignty of the seven claimant States from within. This opposition only arose from other States. Thus, the AT embodies the solution emerging from the involvement of non-claimant States in the governance of Antarctica. This treaty has so far ensured the peaceful and cooperative governance of Antarctica. Certainly, some adjustments of the ATS seem to be needed in order to reconcile the assertion of claimant States of sovereignty over Antarctica with the diverse position of third States and ensure the widest participation to the governance of this unique area of the planet.

Conclusions At the beginning of the 20th century, the occupation of Antarctic territories was carried out almost in the same manner in which States had historically begun to assert control of other areas of the planet that were not easily accessible – namely, by means of discovery. Nevertheless, as aff irmed earlier, occupying States did not consolidate their “claimed occupation” of Antarctic territories in the subsequent years in concrete terms so as to obtain both the effective control of these areas and the international recognition of their assertions to consolidate their title. Therefore, when these States off icially declared their claims some decades after the initial discovery, objections were raised both by other States claiming sovereignty over Antarctica and the two then superpowers. In sum, the recognition of the legitimacy of Antarctic territorial claims seems to have been controversial at that time. In addition, the adoption of the AT, which precisely occurred with the purpose of mitigating the conflicts between the diverse States as to the legal status of sovereignty claims over Antarctica, has established a sort of “sovereignty neutrality” in this area. In fact, claimant States must abstain from exercising their claimed sovereign rights, especially with respect to the nationals of third States in order to comply with the provisions of article IV of the AT. Even if article IV has frozen the status of Antarctic territorial claims at the time of the adoption of the AT, its provisions have actually denied any concrete possibility of enforcement of such claims as long as the AT is in force.78

74 For the increasing relevance of ice to respond to the need for fresh water, see Cory J. Lewis, “Iceberg Harvesting: Suggesting a Federal Regulatory Regime for a New Freshwater Source,” Boston College Environmental Affairs Law Review 42 (2015): 439. For the controversial legal status of Antarctic ice, see Bernhardt, “Sovereignty in Antarctica,” 303. 75 See Scott, “Ingenious and Innocuous?” 53; Klaus Dodds and Christy Collis, “Post-colonial Antarctica,” Handbook of the Politics of Antarctica (Cheltenham: Edward Elgar Publishing, 2017), 50. 76 Further, see Chapter 23 of this volume. 77 For the importance of the involvement of developing States in the ATS, see Scott, “Ingenious and Innocuous?” 52. 78 For the view that the AT has weakened sovereignty claims by prohibiting their concrete enforcement see Scott, “Ingenious and Innocuous?” 59.

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Moreover, the consolidation of Antarctic territorial claims seems to be quite impracticable in the future due to the evolution that has affected the international legal and political context. A large number of new States originated through the decolonisation process that began after the adoption of the AT. Some of these States acceded to the AT as non-claimant States. Thus, the States asserting sovereignty over Antarctica have increasingly lost leverage both within the ATS and at the international level. New concepts have been formulated for the governance of goods of common interest, including geographic areas, especially in the f ield of international environmental law. Among these new concepts, the principles of “the common heritage of humankind” and “common concern” have achieved large recognition at the international level. These emerging trends of the international legal framework call for stronger cooperation among the AT States Parties and between these States and third countries.79 Thus, some adaptations of the ATS are needed. In particular, most effective enforcing instruments must be adopted to ensure the compliance with the substantive obligations of the AT on behalf of all State and private actors operating in Antarctica. However, these enforcing instruments may not entail the revitalisation of claimed territorial sovereignty. This outcome would not only jeopardise the functioning of the AT, but it would expose the Antarctic continent to territorial occupation and conflicts once more.

79 Ibid., 60.

46

4 CHALLENGES RELATING TO BASELINES IN POLAR REGIONS Suzanne Lalonde and Clive Schof ield

Introduction Baselines are fundamental to the rights of coastal States over maritime spaces under international law, and the United Nations Law of the Sea Convention (LOSC) in particular.1 This is in keeping with the well-established principle that the land dominates the sea,2 with baselines along the coast providing the international legal representation of the land/sea interface. Accordingly, the outer limits of the territorial sea, the contiguous zone and the exclusive economic zone (EEZ) are delineated, respectively, at 12, 24 and 200 nautical miles (M) measured from baselines.3 With respect to the outer limits of the continental shelf, it is well acknowledged that where these limits lie seawards of 200  M their determination is a complex task involving multiple factors. However, distance measurements from baselines, notably the 200 and 350 M limits, remain important considerations.4 Additionally, baselines often play an important role in the delimitation of maritime boundaries as a consequence of the enduring and, indeed, increasing popularity of equidistance lines in this context,5 the construction of which is dependent on the location of baselines along the coasts of the States involved.6

1 United Nations Convention on the Law of the Sea (Montego Bay, December 10, 1982, in force November 16, 1994) 1833 UNTS 396 [hereinafter, LOSC or the Convention]. 2 North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands, Judgement of February 20, 1969, ICJ Reports 1969, p. 3, at para. 96. 3 It can also be noted that internal waters are def ined as lying on the landward side of baselines in accordance with LOSC, Article 8(1). 4 See LOSC, Article 76(1) and (5). 5 Arguably, this is especially the case since the advent of the three-stage approach to maritime delimitation articulated by the International Court of Justice (ICJ) in the Black Sea case that requires, at the f irst stage of that process, that a provisional delimitation line should be established using geometrically objective methods “unless there are compelling reasons that make this unfeasible in the particular case.” See Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), judgement of February 3, 2009, [2009] ICJ Reports 61, para.116. 6 International Hydrographic Organization (IHO) (with the International Oceanographic Commission and the International Association of Geodesy), A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, 6th ed. (Monaco: International Hydrographic Bureau, 2020) [hereinafter, TALOS Manual], Chapter 6, 4–8.

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DOI: 10.4324/9781003404828-6

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The LOSC provides for multiple types of baselines along the coast.7 With respect to the polar regions, two types of baselines are of particular relevance – normal and straight baselines. Normal baselines are essentially the default baselines along the coast, applicable in the absence of other baseline claims. Article 5 of the LOSC provides that except where otherwise provided for in the Convention, the normal baseline for measuring the breadth of the territorial sea is the “low-water line along the coast as marked on large-scale charts off icially recognised by the coastal State.” This phrasing has led to such baselines being referred to as “territorial sea baselines,” but as noted, they are relevant to delineating the outer limits of other maritime zones under the LOSC. Article 5 of the LOSC does not, however, indicate which of the many potential low-water lines that intersect with the coast should be used, thus leaving this for the coastal State to determine.8 The traditional view has been that as the location of the low-water line and thus normal baselines fluctuate or “ambulate” over time, so the maritime jurisdictional limits measured from them will necessarily also potentially shift and change.9 A caveat to this is that not all of the baseline along the coast necessarily contributes to the delineation of the outer limits of maritime claims. Instead, only the most seaward or protuberant parts of the coast, such as headlands, provide controlling or critical basepoints used to construct the “envelope of arcs” delineating an outer limit at a given distance measured from baselines.10 It follows that if these critical basepoints remain stable, even if there is signif icant recession in the location of normal baselines elsewhere along the coast such as in an embayment, the outer limit for the maritime jurisdictional zone in question will remain stable.11 Straight baselines have also been def ined by four of the f ive Arctic Ocean coastal States. Article 7(1) of the LOSC provides that in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. While the objective of Article 7 of the Convention is clear, that is, to deal with especially complex coastal conf igurations, the article lacks clear-cut objective tests of the different circumstances

7 Namely, “normal” baselines (Article 5), straight baselines (LOSC, Article 7), river closing lines (Article 9), bay closing lines (Article 10) and in respect of archipelagic States [archipelagic baselines] (Article 47). Additionally, permanent harbour works forming an integral part of a harbour system can be “regarded as forming part of the coast” for the purposes of delineating the outer limits of the territorial sea (LOSC, Article 11). 8 The level of the low water line and thus the normal baseline is determined by the choice of vertical datum, which is the level of reference for vertical measurements, such as depths and heights of tide as illustrated on nautical charting. In practice, charting authorities tend to opt for a conservative or low vertical datum due to safety of navigation considerations. See TALOS Manual, Chapter 2, 16–20. 9 Michael W. Reed, Shore and Sea Boundaries: The Development of International Maritime Boundary Principles through United States Practice, vol. 3 (Washington, DC: U.S. Department of Commerce, National Oceanic and Atmospheric Administration, 2000), at 185. See also Coalter G. Lathrop, J. Ashley Roach and Donald R. Rothwell, eds., “Baselines under the International Law of the Sea: Reports of the International Law Association (ILA) Committee on Baselines under the International Law of the Sea,” Brill Research Perspectives on the Law of the Sea 2, no. 1–2 (2019): 57–58. 10 See TALOS Manual, Chapter 5, 5–7. See also Chris Carleton and Clive Schof ield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, Maritime Brief ing 3, No. 3 (Durham: International Boundaries Research Unit, 2001), 62. 11 It also follows as a matter of simple geometry that the narrower the zone of maritime jurisdiction the outer limits of which are being def ined, the more critical basepoints are required to construct the envelope of arcs. In practice, therefore, far more critical basepoints are required to delineate a 12 M territorial sea limit as opposed to a 200 M EEZ limit.

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justifying the drawing of straight baselines.12 As Prescott dryly observed shortly after the Convention was opened for signature, “the imprecise language [of Article 7] would allow any coastal country, anywhere in the world, to draw straight baselines along its coast.”13 The ICJ has, however, indicated in unequivocal terms that the method of straight baselines in accordance with Article 7 of the LOSC is an “exception to the normal rules for the determination of baselines” and “must be applied restrictively.”14 It is also important to note that straight baselines are not entirely divorced from the location of normal baselines. This is because they need to be tied back or anchored to the low-water line along the coast, such that each system of baselines is “closed.”15 The key distinguishing factor for polar coastlines relates to ice. Arctic coastlines are either ice covered, fringed or have a substantial ice content while Antarctica is almost entirely covered by an enormous ice sheet. Increasingly, these coastlines are subject to anthropogenically induced climate change impacts, notably higher atmospheric and oceanic temperatures, increased frequency and intensity of extreme weather events and signif icant and accelerating global sea level rise.16 These impacts are wreaking rapid and radical changes to the cryosphere in both the Arctic and Antarctic with signif icant implications with respect to baselines along the coast. While warming and melting of polar ice may reveal more of the coastline that had hitherto been ice-covered, thus making it easier to locate and survey normal baselines, these impacts point towards increased erosion, inundation and retreat and thus radical alterations in the location of polar coasts.17 It is important to note that the LOSC does not make reference to the polar regions and the challenges of def ining baselines on ice-bound coasts.18 This chapter proceeds by examining the Arctic and Antarctic regions in turn, reflecting the signif icant physical as well as legal and geopolitical differences between these distinct polar regions. With respect to the Arctic, challenges related to the def inition of baselines along Arctic coastlines where erosion represents a major concern are considered, followed by a review of the baselines practice of the Arctic States. As regards the Antarctic, the discussion of the challenges associated

12 See, for example, J. R. Victor Prescott and Clive H. Schof ield, The Maritime Political Boundaries of the World, 2nd ed. (Leiden and Boston: Martinus Nijhoff Publishers, 2005), 145–47; Yoshifumi Tanaka, The International Law of the Sea, 2nd ed. (Cambridge: Cambridge University Press, 2015), 50; Coalter G. Lathrop, J. Ashley Roach, and Donald R. Rothwell, eds., Baselines under the International Law of the Sea: Reports of the International Law Association Committee on Baselines under the International Law of the Sea (Leiden and Boston: Brill, 2019), 66–82. 13 J. R. Victor Prescott, The Maritime Political Boundaries of the World (London: Methuen, 1985), 64. 14 Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Merits) [2001] ICJ Reports 40, at 103, para. 212. See also, International Court of Justice (ICJ), Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Judgment, 21 April 2022, paras 234–260. 15 The United Nations Group of Experts report on baselines indicates with respect to the application of straight baselines that “whether the baselines are drawn along the coast of an island or of the mainland, the system must start and f inish on or above the low water line” and that where straight baselines were drawn connecting a fringe of islands, “all the intermediate basepoints must be located on or above the low water line.” See United Nations, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (New York: DOALOS, 1989), 23. 16 Michael Meredith et al., eds., “Chapter 3: Polar Regions,” in IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (Intergovernmental Panel on Climate Change, 2019) [IPCC Special Report], approved at its 51st Session held from September 20–23, 2019, 203–20, www.ipcc.ch/srocc/home/. 17 See, for example, Davor Vidas, David Freestone and Jane McAdam, eds., “International Law and Sea Level Rise: Report of the International Law Association Committee on International Law and Sea Level Rise,” Brill Research Perspectives on the Law of the Sea 2, no. 3 (2019); Clive H. Schof ield, “Climate Change and Changing Coasts: Geophysical and Jurisdictional Implications of Sea Level Rise,” Korean Journal of International and Comparative Law 5, no. 1 (2017): 36–60. See also Clive H. Schof ield and David Freestone, “Islands Awash Amidst Rising Seas? Sea Level Rise and Insular Status under the Law of the Sea,” International Journal of Marine and Coastal Law 34 (2019): 391–414. 18 See Chapter 6 of this volume.

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with def ining baselines on Antarctica’s icy margins leads to an appraisal of the proposals that have been advanced to address these issues, accompanied by a review of the limited State practice in this respect. It is suggested that the baselines provisions set out in the LOSC are ill-suited to both the Arctic and Antarctic, especially in an era of climate crisis. Concluding considerations are therefore offered as to whether a bespoke rule concerning baselines is required for either or both of the polar regions.

Baselines in the Arctic Challenges Relating to the Def inition of Baselines on Arctic Coastlines In the Arctic region, a longstanding and substantial practical challenge with respect to baselines has been locating low-water lines along the coast under covering layers of ice. However, as has been well documented, the Arctic Ocean has witnessed dramatic declines in sea ice cover in recent years such that the IPCC indicated that sea ice changes experienced in the Arctic were “unprecedented for at least 1,000 years.”19 The signif icant diminution of ice coverage in the Arctic, during the summer season especially, has served to expose Arctic coastlines (often exposing headlands and other solid land features) to a far greater extent than previously. This signif icant change, coupled with developments in surveying technologies, has greatly improved the ability to more accurately locate low-water lines along formerly predominantly ice-covered coastlines, allowing both normal baselines and the turning points of straight baselines to be better determined.20 While Arctic coasts are more exposed and accessible, there are strong grounds for suspecting that they are also more dynamic meaning that even if coasts are surveyed to modern standards, the baselines in question may well continue to change location, potentially swiftly.21 Approximately, 65% of Arctic coastlines comprise unlithif ied – that is, non-rocky – coastlines.22 These coasts are predominantly ice-rich, meaning that they are vulnerable to slumping, subsidence and erosion as temperatures rise.23 Additionally, Arctic coasts have become exposed to erosive forces at a speed and on a scale never before experienced as a consequence of the melting of fast ice – that is, ice fastened to the coast – which has served to remove a protective buffer along shorelines and expose them

19 See IPCC Special Report, “Summary for Policy Makers” (SPM), 4–5. 20 There are still, however, signif icant technical limitations in terms of obtaining the required detailed information and important challenges, such as the high cost of surveying in the Arctic. For more information, see Clive H. Schof ield and Blanche Sas, “Uncovered and Unstable Coasts – Climate Change and Territorial Sea Baselines in the Arctic,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde and Ted L. McDorman (Boston: Martinus Nijhoff, 2015), 291–334, at 306–7. 21 See Schof ield and Sas, “Uncovered and Unstable Coasts,” 301–3; Clive H. Schof ield and Suzanne Lalonde, “Rising Seas and Retreating Coasts: The Implications of Sea-level Rise for the Arctic,” International Journal of Marine and Coastal Law 35 (2020): 468–97, 474. 22 International Arctic Science Committee, Land-Ocean Interactions in the Coastal Zone (LOICZ), Arctic Monitoring and Assessment Programme (AMAP) and International Permafrost Association, State of the Arctic Coast 2010: Scientif ic Review and Outlook (Geesthacht, Germany: LOICZ International Project Off ice, 2011), 24–27 [State of the Arctic Coast Report], at 32. See also Arctic Coastal Dynamics Database project which estimated that 25% of Arctic coastlines affected by the presence of permafrost. See Hugues Lantuit, Pier Paul Overduin, Nicole Couture, et al., “The Arctic Coastal Dynamics Database: A New Classif ication Scheme and Statistics on Arctic Permafrost Coastlines,” Estuaries and Coasts 35 (2012): 383–400, at 390–91. 23 See United Nations Environment Programme (UNEP), “Policy Implications of Warming Permafrost” (2012), at 11–12, http://wedocs.unep.org/bitstream/handle/20.500.11822/8533/-Policy%20implications%20of%20warming%20perma frost-2012permafrost.pdf?sequence=3&isAllowed=y

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to wave and storm action. Moreover, sea level rise, understood by the IPCC to be rising at a rate “unprecedented over the last century,”24 provides an elevated base level, enhancing the impact of waves and storm surges such that the IPCC specif ically identif ies communities living in low-lying Arctic locations as being vulnerable to “high to very high risks” from sea level rise well before the end of this century in the case of high-emissions scenarios.25 Consequently, high rates of coastal erosion – for example, 10–30 m per year for coasts on the Beaufort Sea – have been reported.26

State Practice on Baselines in the Arctic The Arctic region has witnessed substantial baselines practice, especially concerning straight baselines with four of the f ive Arctic coastal State def ining systems of straight baselines.27 Norway was the f irst Arctic State to claim straight baselines, doing so for parts of its northern mainland coast in 1935.28 These baseline claims, and the maritime claims measured from them, were challenged by the United Kingdom, leading to a case before the ICJ.29 The Court, in its 1951 judgement, found that Norway’s system was “not contrary to international law.”30 This landmark ruling substantially influenced the codif ication of the international law of the sea on this issue with language from the Court’s judgement f inding its way into the 1958 Convention on the Territorial Sea and Contiguous Zone31 and the LOSC.32 In particular, the ICJ found that where a coast is “deeply indented and cut into,” the “sinuosities” and “derogations” caused by the rugged character of the coastline meant that the “low-water mark can no longer be put forward as a rule” resulting in the need for “the application of a different method.”33 This alternative method was found to be straight baselines, which, “within reasonable limits, may depart from the physical line of the coast.”34 Subsequently, Norway def ined straight baselines relating to the island of Jan Mayen in 195535 and Svalbard in

24 The rate of global mean sea level rise in the period 2006–15 reported as approximately 2.5 times that for the period 1901–90. See, IPCC, SPM, 10. 25 Ibid., 32. 26 State of the Arctic Coast Report, at 12; Lantuit, at 393–94. Concerning the Beaufort Sea in particular, see Catherine Puckett, Helen Gibbons, Benjamin Jones, et al., “Erosion Doubles Along Part of Alaska’s Arctic Coast: Cultural and Historical Sites Lost,” Sound Waves, May 2009, accessed March 30, 2020, https://archive.usgs.gov/archive/sites/soundwaves. usgs.gov/2009/05/research2.html. The authors cautioned that the observed rates of erosion might represent “a short term episode,” but that they might also be indicative of a future pattern of erosion in the Arctic. 27 See Schof ield and Lalonde, “Rising Seas and Retreating Coasts,” 476–82. 28 Royal Decree of July 12, 1935, relating to the Baselines for the Norwegian Fishery Zone as regards that part of Norway which is situated to the north of 66°28ʹ8N latitude, www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFiLES/NOR_1935_Decree.pdf. A  further Royal Decree of June  14, 2002, as amended by the Crown Prince Regent’s Decree of October 10, 2003. See also Tullio Scovazzi, “Sovereignty Over Land and Dea in the Arctic Area,” Agenda Internacional XXIII (2016): 169–96. 29 Fisheries case, judgement of December 18, 1951, ICJ Reports 1951, 116. 30 Ibid., 143. 31 See Article 4 of the Convention on the Territorial Sea and Contiguous Zone (Geneva, April 29, 1958, in force September 10, 1964) 516 UNTS 205. 32 The provisions of Article 4 of the 1958 Convention on the Territorial Sea and Contiguous Zone were largely retained in the LOSC. See LOSC, Article 7. 33 Fisheries case, 129. 34 Ibid. 35 See Crown Prince Regent’s Decree of June  30, 1955, www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFiLES/NOR_1955_Decree.pdf; Royal Decree of August 30, 2002, Regulations relating to the limit of the Norwegian territorial sea around Jan Mayen, www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFiLES/ NOR_2002_Regulations.pdf.

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1970.36 With respect to the straight baselines def ined for Svalbard, it has been reported that a number of the straight baseline segments def ined intersect with glacier tongues projecting out to sea.37 Additionally, Schof ield and Sas identify nine basepoints associated with icecaps or glaciers.38 While these basepoints refer to ice features, it is, however, unclear whether they are actually located on ice. The Kingdom of Denmark def ined straight baselines for part of the west coast of Greenland in 1963 but did not at that time do so further north than Perlernerit (Cape York) due to concerns over inadequate understanding as to the location of baselines on this predominantly ice-bound coast.39 These uncertainties led Canada and Denmark, when they negotiated their 1974 continental shelf boundary agreement to include scope for readjustment. This innovative practice is a rarity in international boundary agreements, which do not usually contemplate changes to an agreed line in order to deliver certainty and stability with respect to international boundaries.40 Subsequently, in 2004, in light of new surveys, a slight modif ication of the boundary line was made.41 Further, in 2012 when Canada and Denmark announced an agreement in principle on a maritime boundary out to 200 M in the Lincoln Sea, they indicated that further technical adjustments were to be made to the 1973 Agreement – these amendments were included in Canada and Denmark’s landmark agreement of 14 June 2022 which provided for EEZ delimitation, delimitation of continental shelf areas seawards of 200 M from baselines along the coast in both the Labrador and Lincoln Seas as well as division of Tartupaluk/Hans Island, sovereignty over which had previously been disputed.42 These straight baselines were subsequently revised in 197643 and extended further north in 198044 before being further revised in 2004.45 Additionally, Denmark def ined straight baselines on behalf

36 See Royal Decree of September 25, 1970, concerning the Delimitation of the Territorial Waters of Parts of Svalbard, www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFiLES/NOR_1970_DelimitationDecree; and Royal Decree of June  1, 2001, Regulations relating to the limits of the Norwegian territorial sea around Svalbard, www. un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFiLES/NOR_2001_DecreeTS.PDF. 37 United States Department of State, “Straight Baselines – Svalbard,” Limits in the Seas, No. 39 (Washington, DC: Bureau of Oceans and International and Scientif ic Affairs, 1972), 5, https://2009-2017.state.gov/documents/organization/ 61539.pdf. 38 Schof ield and Sas, “Uncovered and Unstable Coasts,” 316. 39 Ibid. 40 Agreement between Denmark and Canada relating to the Delimitation of the Continental Shelf between Greenland and Canada, adopted December 17, 1973, entered into force March 13, 1974, 950 UNTS 147, Article 4. 41 Exchange of Notes Constituting an Agreement to Amend the 1973 Canada – Denmark Continental Shelf Agreement, April 5 and 20, 2004, Canada Treaty Series 2009/27. Ted L. McDorman and Clive H. Schof ield, “The Arctic Unscrambled: Clarifying Competing Claims and Disputes,” in The Edward Elgar Handbook on Polar Law, eds. Karen N. Scott and David Vanderzwaag (Cheltenham: Edward Elgar Publishers, 2020), 124–45. 42 Canada, Department of Foreign Affairs, Trade and Development, “Canada and Kingdom of Denmark Reach Tentative Agreement on Lincoln Sea boundary,” Press Release, November  28, 2012, www.international.gc.ca/media/aff/ news-communiques/2012/11/28a.aspx; and, Ministry of Foreign Affairs/Udenrigministeriet, Kingdom of Denmark, “Canada and the Kingdom of Denmark, Together with Greenland, Reach Historic Agreement on Longstanding Boundary Disputes,” June  14, 2022, https://via.ritzau.dk/pressemeddelelse/canada-and-the-kingdom-of-denmarktogether-with-greenland-reach-historic-agreement-on-longstanding-boundary-disputes?publisherId=13560888&rele aseId=13653450. 43 See Executive Order No. 629 of December  22, 1976, www.un.org/Depts/los/LEGISLATIONANDTREATIES/ PDFFiLES/DNK_1976_Order629.pdf. 44 See Executive Order No. 176 of May 14, 1980, www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFiLES/ DNK_1980_Order.pdf. 45 Royal Decree on Amendment of Royal Decree on Delimitation of the Territorial Waters of Greenland, October 15, 2004, Law of the Sea Bulletin 56 (2004), 126–32, www.un.org/Depts/los/doalos_publications/LOSBulletins/bulletin pdf/bulletin56e.pdf.

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of the Faroe Islands in 1976.46 Scovazzi commented in 2004 that no detailed academic analysis had been done of these baselines and the Greenland ice shelves and tongues to ascertain whether and/ or to what extent they extended into the sea and to assess whether any ice features had been used as basepoints.47 This continues to be the case. Schof ield and Sas identif ied two potentially problematic basepoints, Oodaaq and Nordostrundigen.48 The former was reported by an American expedition in 1996 to be “flooded,” with a single rock only three inches above the water, which by 2011 had apparently disappeared.49 The latter potentially includes a point on the Flade Isblik glacier as it protrudes into the sea. However, both Molde50 and Kaye51 suggest that Denmark’s straight baselines relating to Greenland do not include basepoints located on ice. The Soviet Union def ined an extensive system of straight baselines, incorporating lines joining 391 basepoints stretching from the boundary with Norway to Cape Neshkan in the Chukchi Sea.52 As Scovazzi explains, this legislation, which is today applied by the Russian Federation, provides that the waters of the White Sea, south of the line connecting Cape Svyatoy and Cape Kanin; the waters of Cheshskaya Bay, south of the line connecting Cape Milulkin and Cape Svyatoy (Timanskiy); and the waters of Baydaratskaya Bay, southeast of the line connecting Cape Yuribeysalya and Cape Belushiy, are “internal waters, as waters historically belonging to the Soviet Union.”53 While separate sets of basepoints are def ined on individual islands, certain islands, notably Novaya Zemlya, the Severnaya Zemlya group and most of the islands of the archipelago of Novaya Sibir, are joined to the continent by segments of the straight baselines.54 This means that the Kara Strait, the Vil’kitski and Sokal’skii Straits as well as the Sannikov and Dimitri Laptev Straits are claimed as part of the internal waters of the Russian Federation. It appears that two basepoints, 218 and 219, in the Russian straight baseline system, stated as coinciding with the western and eastern extremities of the Polyarny Glacier, otherwise known as the Molotov/Arctic Icecap, are now located in the sea.55 Canada def ined the outer limit of its “historic internal waters”56 in 1985.57 The 139 lines so def ined skirt the outer perimeter of Canada’s Arctic archipelago from the boundary with the United

46 Ordinance No. 599 of December 21, 1976, on the Delimitation of the Territorial Sea around the Faroe Islands, www. un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFiLES/DNK_1976_Ordinance599.pdf. 47 Tullio Scovazzi, “The Baseline of the Territorial Sea: The Practice of Arctic States,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Martinus Nijhoff Publishers, 2001), 69–84, at 76. 48 Schof ield and Sas, “Uncovered and Unstable Coasts,” 312–13. 49 The American Top of the World Expedition 1996, Report, http://home.earthlink.net/~topofworld/island.htm. 50 Jorgen Molde, “The Status of Ice in International Law,” Nordisk Tidsskrift for International Ret 51 Fasc. 3–4, (1982): 164–78, at 165. 51 Stuart B. Kaye, “Territorial Sea Baselines along Ice Covered Coasts: International Practice and Limits of the Law of the Sea,” Ocean Development and International Law 35 (2004): 75–102, at 89; Erik Franckx, Maritime Claims in the Arctic, Canadian and Russian Perspectives (Dordrecht: Martinus Nijhoff, 1993), 84. 52 Scovazzi, “The Baseline of the Territorial Sea,” 175. See Decree on the Conf irmation of a List of Geographic Coordinates Determining the Position in the Arctic Ocean, the Baltic Sea and the Black Sea from the Width of the Territorial Waters, Economic Zone and Continental Shelf of the USSR is Measured, January 15, 1985. 53 Scovazzi, “The Baseline of the Territorial Sea,” 175–76. 54 Ibid., 176. 55 Schof ield and Sas, “Uncovered and Unstable Coasts,” 318–19. See also Kaye, “Territorial Sea Baselines,” 82. 56 Statement in the House of Commons by Secretary of State for External Affairs, Joe Clark, “Secretary of State for External Affairs September 10, 1985,” Canadian Yearbook of International Law 24 (1986): 326, reprinted in Politics of the Northwest Passage, ed. Franklin Griff iths (Kingston and Montreal: McGill-Queen’s University Press, 1987), 269. Emphasis added. 57 The Territorial Sea Geographical Coordinates (Area 7) Order, SOR/85–872, enacted pursuant to the Territorial Sea and Fishing Zones Act, RSC 1970, c T-7, as amended.

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States (Alaska) in the Beaufort Sea to the entrance to Hudson Strait (between Labrador and Baff in Island) in the Labrador Sea. McDorman has argued that the Canadian lines were drawn simply to identify the precise extent of Canada’s historic internal waters in the Arctic rather than as straight baselines subject to Article 7 of the Convention.58 This has not, however, forestalled their assessment by other interested States and publicists, according to the international legal rules on the application of straight baselines.59 The views of commentators have been mixed with respect to whether Canada has used ice features in the construction of its straight baseline system.60 If basepoints were indeed located on ice features, the signif icant melting of sea ice, fast ice and changes to ice shelves that has occurred over the last 40 years certainly raise concerns over these elements within Canada’s straight baselines system.61 Finally, the United States, in stark contrast to the other Arctic littoral States, has not def ined straight baselines along its Arctic coasts, instead relying on normal baselines consistent with lowwater lines along the coast. This is in keeping with the longstanding view of the United States that straight baselines should be applied restrictively.62 Indeed, the US routinely protests against what it regards as excessive maritime claims, including those related to baselines, especially where they are viewed as infringing navigational freedoms.63 The US therefore objects to both Canada and the Russian Federation’s inclusion of what it regards as straits used for international navigation as part of their internal waters.64 The United States is not alone in making such protests. For example, following the proclamation of its Arctic baselines, the Canadian government received a protest from the member States of the European Community through the British High Commission in Ottawa.65

Antarctica Writing in 1992, Gautier highlighted that the literature was “incoherent” on the critical question of whether the “new law of the sea embodied in the United Nations Convention of 1982” would eventually apply to the Antarctic Ocean.66 As Green explains, during the UNCLOS III negotiations, the question of the inclusion of Antarctica was hotly debated on the grounds of its perceived “commons status” by many developing countries.67 “In order to avert the possibility of jeopardizing

58 Ted L. McDorman, Salt Water Neighbours: International Ocean Law Relations between the United States and Canada (New York: Oxford University Press, 2009), 249. 59 See, for example, J. A. Roach and R. W. Smith, Excessive Maritime Claims, 3rd ed. (Boston: Martinus Nijhoff Publishers, 2012), 111. 60 Kaye suggests that not but Franckx and Killas differ. See, Kaye, “Territorial Sea Baselines,” 89; Franckx, “Maritime Claims in the Arctic,” 98; and, Mark Killas, “The Legality of Canada’s Claim to the Waters of the Arctic Archipelago,” Ottawa Law Review 19 (1987): 95–136, at 128. Schof ield and Sas indicate that that Capes Bicknor, Discovery and Nares may have basepoints located on ice. See Schof ield and Sas, “Uncovered and Unstable Coasts,” 309. 61 Schof ield and Sas, “Uncovered and Unstable Coasts,” 310. 62 While the United States is not a party to the LOSC, it regards most of the Convention’s provisions as reflective of customary international law. 63 Roach and Smith, Excessive Maritime Claims, 6–9. 64 For a summary of the American protest, see US Department of State, Telegram No. 151842, May 17, 1985, reprinted in Off ice of Ocean Affairs, “United States Responses to Excessive National Maritime Claims,” Limits in the Seas, no. 112 (September 3, 1992): 73–74, https://2009-2017.state.gov/documents/organization/58381.pdf. 65 See British High Commission Note No. 90/86 of July 1986, reproduced in Off ice of Ocean Affairs, at 29–30. 66 Philippe Gautier, “The maritime area of the Antarctic and the new Law of the Sea,” in The Antarctic environment and international law, ed. Joe Verhoeven (Bath: Graham & Trotman, 1992), 133. 67 Julia Green, “Antarctic EEZ Baselines: An Alternative Formula,” International Journal of Marine and Coastal Law 11, no. 3 (1996): 334, footnote 2.

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the whole conference over the one issue of the Antarctic, the f inal LOSC omitted any specif ic reference to it.”68 In the intervening decades, it appears as if the debate has been resolved in favour of the general application of the LOSC to Antarctica and the Southern Ocean. Scott, for example, refers to the Antarctic and law of the sea regimes having “evolved in tandem” and that given the global nature of the regime for the oceans, “the ATS [Antarctic Treaty System] has of necessity accommodated developments in the law of the sea.”69 For his part, Rothwell asserts that “[b]ecause both polar regions incorporate large areas of ocean, the law of the sea plays an important role in their respective legal regimes.”70 However, while experts now agree that the LOSC and the Antarctic Treaty System intersect, there is also a general acknowledgement that the law of the sea raises some very diff icult questions in Antarctica, “many of which continue to be unanswered.”71 For example, the Antarctic’s unique political and legal architecture raises sensitive issues with regard to the drawing of baselines. These issues centre around whether there are, in fact, any “coastal States” in Antarctica with maritime entitlements72 and whether claims to maritime jurisdiction are an “extension” of sovereign claims in violation of Article IV.273 of the Antarctic Treaty.74 However, these and other politico-legal considerations are deftly explored in Chapters 3 and 5, and 7 of this Handbook and will therefore not be broached in this contribution. Rather, this chapter will focus on the diff iculty of reconciling the rules governing baselines in the LOSC with the unique physical environment of the Antarctic and, more specif ically, the pervasive presence of ice. The starting point will be a consideration of the type of ice prevalent in Antarctica in order to better understand its impact on the application of the LOSC regime.75

Antarctic Ice While both polar regions are covered by “vast domes of ice,”76 Antarctic ice is for the most part different from Arctic ice. Although pack ice and sea ice, prevalent in the Arctic, also surround the

68 Ibid. 69 Shirley V. Scott, “The Evolving Antarctic Treaty System: Implications of Accommodating Developments in the Law of the Sea,” in The Law of the Sea and the Polar Regions, eds. Erik J. Molenaar, Alex G. Oude Elferink and Donald R. Rothwell (Leiden: Martinus Nijhoff Publishers, 2013), 17. 70 Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996) 261. See also Patricia Vigni, “The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area,” Max Planck Yearbook of United Nations Law 4 (2000): 492. 71 Rothwell, Polar Regions, 261. 72 Vigni succinctly sums up the central issue: “Indeed, the def inition of maritime zones implies the presence of Coastal States whose very existence in Antarctica is controversial.” Vigni, “The Interaction,” 493. 73 Article IV(2), adopted in 1959, states, “No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force” (emphasis added). 74 Adopted December 1, 1959, entered into force June 23, 1961, 402 U.N.T.S. 71. There are currently 53 States party to the Antarctic Treaty. 75 Kaye, “Territorial Sea Baselines,” 77. 76 British Antarctic Survey, “Ice,” www.bas.ac.uk/about/antarctica/geography/ice/.

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Antarctic continent for much of the year, the vast ice sheet that covers well over 90% of Antarctica is not duplicated in the Arctic, save with respect to Greenland.77 Ice can generally be divided into two main categories: continental ice and sea ice. As Joyner describes, continental ice takes three forms: ice sheets (continental glaciers), mountain glaciers (conf ined in paths of movement) and shelf ice.78 The Antarctic ice sheet covers an area of almost 14 million km2 and contains 30 million km3 of ice and around 60% of the world’s total fresh water (90% of the world’s surface fresh water).79 Researchers at Adelaide University describe ice shelves as thick plates of ice, up to several hundred metres thick, that are connected to a landmass.80 Rothwell and Kaye explain that ice shelves, which fringe about three quarters of the Antarctic coast, are in constant motion, “continually advancing as they are pushed further out from the continent by the ice behind them.”81 Joyner adds that ice shelves are usually “attached to the continental shelf or seafloor, but many protrude further out to float upon the sea itself.”82 In addition to continental ice, various types of sea ice are also found around Antarctica and the three most common are fast ice, pack ice and icebergs.83 Kaye and Rothwell explain that fast ice, characteristically attached to land, is frozen seawater that clings to the shores of rocks, inlets and bays. Though subject to seasonal variations, this ice can be relatively permanent.84 Armstrong and his colleagues def ine pack ice as “any area of sea, river or lake ice other than fast ice.”85 Pack ice is present in the Southern Ocean for much of the year and expands considerably during the winter encompassing an area that can exceed 20 million km2.86 However, in the summer, on average 85% of the Antarctic pack ice melts.87 Armstrong et al. def ine an iceberg as a “large mass of floating or stranded ice greatly varying in shape . . . which has broken away from a glacier.”88 A 2018 Australian research study identif ied a crucial link between sea ice loss and ice shelf stability.89 According to Massom of the Australian Antarctic Division, sea ice “acts as a protective buffer to ice shelves, by dampening destructive ocean swells before they reach the ice shelf edge,” but when lost, “storm-generated ocean swells can easily reach the exposed ice shelf,” resulting in increased calving from the shelf front.90

77 Kaye, “Territorial Sea Baselines,” 77. He refers to Joyner, who notes that the Greenland ice sheet is, for the most part, conf ined to the interior of the island, so it rarely forms coastal ice shelves. Christopher C. Joyner, “Ice-Covered Regions in International Law,” Natural Resources Journal 31, no. 1 (1991): 220–21. 78 Joyner, “Ice-Covered Regions,” 220. 79 British Antarctic Survey, “Ice.” 80 Ibid. 81 Donald D. Rothwell and Stuart Kaye, “Law of the Sea and the Polar Regions – Reconsidering the Traditional Norms,” Marine Policy 18, no. 1 (1994): 44. 82 Joyner, “Ice-Covered Regions,” 225. 83 Stuart Kaye and Donald B. Rothwell, “Australia’s Antarctic Maritime Claims and Boundaries,” Ocean Development and International Law 26, no 3 (1995): 203. 84 Ibid., referring to Terence Armstrong et al., Illustrated Glossary of Snow and Ice, 2nd ed. (Cambridge: Scott Polar Institute, 1973), 14. 85 Ibid., 31. 86 Christophe C. Joyner, Antarctica and the Law of the Sea (Dordrecht: Martinus Nijhoff, 1992), 197. 87 Kaye and Rothwell, “Australia’s Antarctic Maritime Claims,” 203, citing Marine Resources Project, University of Manchester, Marine Resources of the Polar Regions: Scientif ic and Technological Priorities 27 (1986). 88 Armstrong, Illustrated Glossary, 20. 89 Robert A. Massom, Theodore A. Scambos, et al., “Antarctic Ice Shelf Disintegration Triggered by Sea Ice Loss and Ocean Swell,” Nature 558 (2018): 383–89. 90 University of Adelaide, “Ocean Waves.”

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The study documents f ive major ice shelf disintegration events between 1995 and 2009, each one during periods when sea ice was signif icantly reduced or absent. During one such event, over the course of only a few days, the collapse of the Larsen B Ice Shelf in 2002 removed an area of 3,320  km2 of ice that had been in place for the previous 11,500  years. Additionally, in May 2021, it was reported that the world’s largest iceberg, nearly four times the size of New York City (4,320 km2), had broken off the Ronne Shelf and was floating in the Weddell Sea.91 Another report published in August 2020 warned that Antarctica’s ice shelves have lost nearly four trillion metric tons of ice since the mid-1990s.92 Currents of warm ocean water originating in the Pacif ic and Indian Oceans appear to be the culprit. The warmer ocean water is melting the ice shelves from the bottom up, causing them to lose mass faster than they can refreeze. This fraying and melting of the ice shelves, which is accelerating due to climate change, will be an important consideration when analysing the different options that have been put forward for establishing baselines around the Antarctic coasts.

Establishing Baselines Around the Icy Antarctic Continent As discussed earlier, the normal baseline for measuring the breadth of maritime zones is the lowwater line along the coast. As Green pointedly states, the major problem in baseline determination in Antarctica stems from the diff iculty of actually f inding a low-water mark. The incidence of icefree coastline in Antarctica is negligible in terms of its total length (5%); however, this signif ies that there are a few places, particularly along the peninsula, where it is possible to detect a low-water mark.93 Green suggests that where the low-water mark can be detected, it should be used as the normal baseline. Furthermore, islands should be taken into account in establishing this “normal” section of the Antarctic baseline. Green also maintains that there are areas along the Antarctic coastline where Article 7 straight baselines might be appropriate – that is to say, localities where “the coastline is deeply indented and cut into” or where there is “a fringe of islands along the coast in its immediate vicinity.”94 However, given the limited extent of visible coastline in Antarctica, clearly the rules in Articles 5 and 7 only provide a limited solution. Green also refers to a “rather more obscure suggestion”: to disregard the ice completely and determine the actual position of the bedrock coastline.95 She acknowledges that the coastline could be made evident by computer modelling but argues that this would hardly be a true representation of the modern Antarctic coastline, contending that “the ice is a more or less permanent feature of the Antarctic.”96 She cites Article 6 of the LOSC (reefs) and Article 9 (mouths of rivers) as two examples of how the intrinsic nature of the land determines the essential character of the baseline.97

91 The Guardian, May  19, 2021, www.theguardian.com/world/2021/may/20/worlds-largest-iceberg-nearly-four-timessize-of-new-york-forms-in-antarctica. 92 Chelsea Harvey, “Antarctica’s Ice Shelves Have Lost Millions of Metric Tons of Ice,” Scientif ic American, August 12, 2020, www.scientif icamerican.com/article/antarcticas-ice-shelves-have-lost-millions-of-metric-tons-of-ice/. 93 Green, “Antarctic EEZ Baselines,” 349. 94 Ibid., 349–50. It should be noted that the examples cited in support refer to bays and straight baselines across the mouth of such bays – a question regulated by Article 10 of the LOSC. Furthermore, the reference to Prydz Bay and the fact of its mouth being less than 400 km across create some confusion as only juridical bays with mouths of 24 M or less can be enclosed. 95 Ibid., 345. 96 Ibid. 97 Ibid., footnote 36.

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This insistence on ice as an integral component of Antarctica’s coastal architecture leads Green to suggest that it must be considered as part of the landmass for the purpose of determining the baselines.98 This suggestion is supported by many other leading experts but with important differences in terms of their proposed methodology. The various proposals are also inevitably intertwined with the long-standing debate over the exact legal status of ice. It is beyond the scope of this chapter to comprehensively canvass the many arguments pertaining to the status of ice under international law. For the purposes of this investigation into Antarctic baselines, it can be broadly stated that the principal cleavage is between ice that is produced upon land or attached to terrestrial features and ice formed in the ocean and which is free floating. Kaye suggests that there is “complete consensus” that ice formed from the ocean “would not be suitable for the drawing of baselines.”99 The general rejection of sea ice as capable of generating territorial sea baselines explains why proposals based on the winter maximum or summer minimum extent of sea ice are not seriously entertained. The propensity for substantial yearly variations and the prospect of claimant States gaining an artif icial advantage if the winter maximum were to be used are also cited as reasons for excluding such proposals.100 What support there is for treating ice as land, according to Kaye, relates to ice “produced upon land, and through natural forces.”101 Referring to Prescott and Schof ield, Homan identif ies as a f irst approach using the edge of the permanent ice over the Antarctic continent, which, given that it is both visible and capable of being charted, offers “an obvious baseline.”102 A second approach, and one that has garnered substantial support, would be to use the edge of the ice shelves as the baseline.103 Indeed as Kaye relates,104 many experts have indicated that as they are of a permanent nature, ice shelves “may be assimilated to land and used as baselines for the territorial sea.”105 Both Zuccaro106 and Joyner107 suggest that the Antarctic Treaty itself may imply such a view in the construction of Article VI, which specif ically distinguishes ice shelves from the high seas. Prescott takes the pragmatic position that because of the practical diff iculties of identifying a baseline f ixed to the buried land, and because the ice never disappears, the obvious solution is to permit baselines drawn at the edge of the ice shelf.108

 98 Ibid., 346.  99 Kaye, “Territorial Sea Baselines,” 27. This is certainly the view of Pharand who argues that unless the ice is part of an ice shelf attached to land, it cannot be treated as land. Donat Pharand, The Law of the Sea of the Arctic with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973), 194–97. It is also on the grounds of this distinction that Rothwell argues in favour of using fast ice for the purposes of determining baselines. Rothwell, “The Law of the Sea,” 115. 100 Green, “Antarctic EEZ Baselines,” 345. 101 Kaye, “Territorial Sea Baselines,” 27. This is certainly the view of Pharand, who argues that unless the ice is part of an ice shelf attached to land, it cannot be treated as land. Donat Pharand, The Law of the Sea of the Arctic with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973), 194–97. It is also on the grounds of this distinction that Rothwell argues in favour of using fast ice for the purposes of determining baselines. Rothwell, “The Law of the Sea,” 115. 102 Anna Homan, “Maritime Zones in Antarctica,” Australia & New Zealand Maritime Law Journal 20 (2006): 72. She refers to Prescott and Schof ield, Maritime Political Boundaries, 537. 103 Ibid. 104 The authors cited in this paragraph are all identif ied by Kaye, “Territorial Sea Baselines,” 78. 105 Pharand, The Law of the Sea, 187–88. Kaye also refers to Alfred Van der Essen, “Chapter 17 – The application of the law of the sea to the Antarctic continent,” in Antarctic Resources Policy, ed. Francisco Orrego-Vicuña (Cambridge: Cambridge University Press, 1983), 234. 106 Emil A. Zuccaro, “Iceberg Appropriation and the Antarctic’s Gordian Know,” California Western International Law Journal 9 (1979): 414. 107 Joyner, “Ice-Covered Regions,” 226. 108 J. R. Victor Prescott, “Boundaries in Antarctica,” in Australia’s Antarctic Policy Options, ed. Stuart Harris (Canberra: Australian National University, 1984), 93.

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Homan refers to a variation of this proposal, one that uses the “grounding zone” where the ice shelf meets the seabed.109 Green is a strong proponent of using such a “grounding line or zone,” which she describes as the boundary between free-floating and grounded or partially grounded ice.110 She admits that the determination of the grounding line is a complicated process and that “the points at which an ice feature becomes grounded may extend through a zone as wide as 250 km.”111 In Homan’s opinion, the fact that the grounding zone is only ascertainable via satellite and radar imagery makes it an impractical basis for the drawing of baselines.112 Kaye readily acknowledges that there are sound arguments against the utilisation of ice shelves, chief among them their dynamic nature.”113 Experts have proposed different strategies to counter the problem of ice shelf instability which is only increasing under the impact of climate change. Auburn proposes a system using the extent of the ice shelf at a known date, with an allowance of an arbitrary distance (50 miles) for seaward extensions.114 Zuccaro, for his part, suggests that the average extent of the shelf could be determined and used.115 Boyd is of the view that a combination of the Auburn and Zuccaro strategies might be the best solution.116 However, as Kaye relates, Joyner disapproves of such a scheme stating “neither historic treatment of sea ice, nor current norms of international law, nor the requirements of jurisdictional practicability support the adoption of such an open-ended maritime jurisdiction.”117 Rothwell and Kaye also refer to the second paragraph of Article 7 of the LOSC as potentially useful in dealing with the dynamic nature of Antarctic ice, highlighting that the article allows for the application of straight baselines where the coastline is highly unstable. Both authors, however, express some reservations. Rothwell, while readily acknowledging that Antarctic coastlines are highly unstable, doubts whether Article 7(2) was “designed to deal with the situation where through an ice shelf calving the ‘furthest seaward extent’ of the low-water line can in a matter of seconds retreat by a considerable distance from where it was previously.”118 Beyond the “popular view” that basepoints can be determined from the outer edge of ice shelves, to quote Rothwell,119 other proposals have been put forward but with little traction. Kaye, for example, explores the possible application and use of the “sector theory.”120 While he rejects the appropriateness of a formal sector claim in the delimitation of Antarctic maritime boundaries, he speculates that the use of meridians as maritime boundaries might have some useful application. “By claiming a wedge of land and sea, the claimant State would not need to indicate where its maritime

109 Homan, “Maritime Zones,” 73. 110 Green, “Antarctic EEZ Baselines,” 348. 111 Ibid., 348, footnote 39. 112 Homan, “Maritime Zones,” 73. 113 Kaye, “Territorial Sea Baselines,” 78. 114 Francis M. Auburn, Antarctic Law and Politics (Bloomington: Indiana University Press, 1982), 36–37. 115 Zuccaro, “Iceberg Appropriation,” 419. 116 Susan B. Boyd, “The Legal Status of the Arctic Sea Ice: A Comparative Study and a Proposal,” Canadian Yearbook of International Law 22 (1984): 139. 117 Christopher C. Joyner, “The Exclusive Economic Zone and Antarctica: The Dilemmas of Non-Sovereign Jurisdiction,” Ocean Development and International Law 19 (1988): 474. 118 Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996), 270–71. 119 Rothwell, The Polar Regions, 269. 120 Kaye, “Territorial Sea Baselines,” 85. Essentially, the theory involves the claiming of land and sea areas in a ‘pie-shaped’ wedge having its point at the pole and following meridians down to a point at a particular parallel.

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jurisdiction began and ended. Ice could expand and recede without altering the coastal State’s sector, nor its jurisdiction.”121 Along the same lines – of simplifying matters by avoiding the need to draw territorial sea baselines – Kaye suggests that an alternative solution might be to determine the extent of the EEZ by f ixing its outer limit instead of trying to determine its inner limit. Specifying latitude lines at a distance of approximately 200 nautical miles from the average edge of the ice would provide certainty as to the extent of the EEZ and rights relating to shipping and f isheries.122 Finally, Joyner suggest that baselines for offshore maritime jurisdictional zones in Antarctica could be drawn “geologically, according to subglacial land structures comprising outer margins of the continental shelf.”123 This approach, he argues, would bring greater stability and regularity to baseline construction; “the subglacial continental shelf is part of the ocean floor, stable and enduring.”124 Homan describes Joyner’s proposal as a “strict constructionist” solution and believes that it presents distinct advantages. “Although its ascertainment would initially require signif icant scientif ic undertakings, modern seismic detection techniques are amply sophisticated, and once charted it will not be continuously changing.”125

Antarctic State Practice Green succinctly summarises the principal obstacle in regard to the drawing of baselines in Antarctica: The problem is that while various suggestions have been made on the legal status of ice or where to theoretically place baselines, no country has yet taken the initiative and attempted to apply any one particular formula to their Antarctic claimed territory.126 Indeed, Kaye writes that if Arctic State practice is rare, “then that concerning Antarctic regions is even more limited” and mostly concerns statements made by Antarctic claimants in the period before the adoption of the 1959 Antarctic Treaty.127 Referencing a letter from the British foreign secretary to the Norwegian ambassador in London, Kaye indicates that early practice by Britain and New Zealand reveals that these States were of the view that the ice shelves in Antarctica were to be treated as land.128 This position, Kaye explains, was consistent with the view adopted at an imperial conference which discussed Antarctic matters in November 1926.129 Kaye also refers to a 1940 letter from the Chilean ambassador to the British

121 Ibid., 85–86. 122 Ibid., 88. See also Kaye’s discussion of the possible application of Article 9 of the LOSC “Mouths of rivers” at page 88 and the concept of ‘historic waters’ at pages 89–91. 123 Joyner, “Ice-Covered Regions,” 230. 124 Ibid. 125 Homan, “Maritime Zones,” 73. 126 Green, “Antarctic EEZ Baselines,” 344. 127 Kaye, “Territorial Sea Baselines,” 84. 128 “[H]is Majesty’s Government in Great Britain and New Zealand are of the opinion that, in the case of an ice barrier such as the Ross Barrier which is to all intents and purposes, a permanent extension of the land proper, there is good reason for treating the Barrier as if it were terra f irma.” William M. Bush, Antarctica and International Law, vol. 3 (Dobbs Ferry: Oceana, 1996), 59, quoted in ibid. 129 Ibid.

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foreign secretary, which conf irms that some type of ice was regarded by Chile as capable of possessing “adjacent territorial sea.”130 However, as regards the actual drawing of baselines, Rothwell writes that “there is little evidence that any of the Antarctic territorial claimants have given much consideration to either baselines or basepoints around their Antarctic coastlines.”131 As Vigni documents,132 almost all claimant States have declared maritime zones adjacent to their Antarctic territories by adopting specif ic national legislation or by including territorial and maritime claims in the same act. Yet none of them have identif ied specif ic basepoints or drawn baselines for those national zones. Australia is an illustrative case in point. While Australia extended its territorial sea claim from 3 to 12 M in 1990,133 and proclaimed an EEZ offshore the Australian Antarctic Territory [AAT] in 1994,134 Kaye and Rothwell report that “no serious consideration has yet been given to the proclamation of specif ic baselines around the AAT.”135 Australian law, the two experts comment, simply refers to “baselines established under international law”136 as applicable to Australian external territories, such as the AAT. Such ambiguity, and the uncertainty it breeds, risks jeopardising “the peaceful uses of the seas and oceans.”137 Climate change and the disrupting effect it is having on baselines is not a polar-specif ic problem but a global issue. Pacif ic island States, whose very existence is threatened by sea level rise, have opted for the “f ixing” of baselines and maritime zones as the most equitable and stable solution.138 The Antarctic claimant States could follow their lead and, using a combination of methods – an outcome envisaged by the LOSC – establish and then f ix territorial sea baselines: (1) using, where possible, the traditional low-water mark at the period of the summer minimum ice coverage, including that of islands; plus (2) straight baselines where appropriate; plus (3) the outer edge of ice shelves determined on the basis of an average extent. Reliance on the outer limit of ice shelves rather than any other option canvassed earlier could be justif ied on the basis that it is the solution supported by a majority of international publicists and to a limited extent international practice.139 Fixing the baselines using the average extent of the ice shelves over a set period would also overcome the uncertainty posed by their fraying and melting under the impact of accelerating climate change. A novel approach, as suggested by Green, could also be for the Antarctic Treaty States themselves rather than the claimant States unilaterally, to determine appropriate baselines for the whole continent on the basis of this three-pronged formula.140

130 Ibid., 315. 131 Rothwell, The Polar Regions, 271. 132 See Table 5.1 “Antarctic Maritime Claims” in Patricia Vigni, “Antarctic Maritime Claims: ‘Frozen Sovereignty’ and the Law of the Sea,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Kluwer Law International, 2001), 104. 133 Commonwealth of Australia Gazette, No. S 297, Nov. 13, 1990. 134 Commonwealth of Australia Gazette, No. S 290, July 28, 1994. 135 Kaye and Rothwell, “Australia’s Antarctic Maritime Claims,” 205. 136 Commonwealth of Australia Gazette, No. S 290, July 28, 1994. 137 Fourth preambular paragraph to the LOSC. 138 Karen Scott, “Rising Seas and Pacif ic Island Boundaries,” September 3, 2018, accessed March 30, 2020, available on the website of the Australian Institute of International Affairs at www.internationalaffairs.org.au/australianoutlook/ rising-seas-and-pacif ic-maritime-boundaries/. 139 Kaye, “Territorial Sea Baselines,” 93. 140 Green, “Antarctic EEZ Baselines,” 347. “Because the decisions of the Consultative Party Meetings are made by consensus, the issue would not be settled until each party was in agreement.” It should be noted that as envisaged by Green, the third method would be to use the “ice grounding line.” See ibid., 348–49.

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Conclusions It is apparent that the baseline provisions provided by the LOSC are less than ideal when applied to predominantly ice-covered coasts in both the Arctic and Antarctic regions, though to different degrees and with distinct potential response options in international law. In the Arctic, with the notable exception of the United States, extensive systems of straight baselines have been def ined. However, it appears that a number of the key basepoints used to def ine these straight baseline systems are either under threat or already now located in the sea. While the rapid reduction in ice cover in the Arctic in northern summers will allow for better observation and surveying of coasts such that basepoint adjustments can occur, Arctic coasts are vulnerable to potentially rapid and radical erosion resulting in the recession of baselines along the coast. In the face of the threat of sea level rise, it is notable that the option of f ixing baselines and therefore maritime limits as well as maritime boundaries is being pioneered by the Pacif ic island States.141 An analogous approach to address coastal instability is potentially applicable and may be attractive to the Arctic coastal States. In contrast, the baselines provisions of the LOSC appear to be wholly unsuited for application to the Antarctic continent. This is illustrated by the variety of options proposed to deal with baseline issues for Antarctica, as well as the lack of consensus on a preferred approach. Consequently, the ideal response would be international agreement on a specif ic rule to deal with Antarctica’s unique circumstances as a continent almost entirely covered by vast ice sheets. Precisely what this specif ic rule consists of would clearly be something up to concerned States to negotiate, perhaps through the Antarctic Treaty System’s consultative party meetings.142 There does appear to be a convergence of expert opinion in favour of relying on the edge of ice shelves, as discussed earlier. A concern here, however, is that climate change impacts are likely to become more severe, leading to greater instability in the locations of ice shelf edges in the future. If ice shelf edges prove to be too unstable to utilise for baseline purposes, then arguably the option of declaring and f ixing baselines and maritime jurisdictional limits derived from them, as proposed for the Arctic, may be of greater merit. An additional counterpoint to proposals for a special baseline regime for Antarctica also stems from Antarctica’s unique status, though in geopolitical rather than environmental and geophysical terms. That is, the view of many States that sovereignty claims to parts of Antarctica are invalid and that therefore no coastal States exist in Antarctica means that there is no need to resolve the issue of baselines along its coast. Ultimately, ice remains the critical consideration in dealing with polar baselines issues. What is also apparent is that the ongoing climate crisis has already had and will cause signif icant ongoing impacts on ice-covered coasts. This chapter has outlined the contours of these challenges and canvassed the options to address them. It remains up to the coastal States concerned and the international community at large to resolve these baseline concerns in polar regions in practice.

141 See Freestone Schof ield, “Islands Awash,” 404–8, and Schof ield and Lalonde, “Rising Seas and Retreating Coasts,” 490–95. 142 As suggested by Green, “Antarctic EEZ Baselines,” 347.

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5 MARITIME BOUNDARY DELIMITATION IN THE POLAR REGIONS Bjarni Már Magnússon and Snjólaug Árnadóttir

Introduction Maritime boundary delimitation consists of “drawing a demarcation line, a boundary, between two neighbouring States when the geographical situation does not allow both the parties concerned to enjoy their title to its full extent.”1 Political considerations, however, complicate the process in practice.2 After all, boundaries are not simply lines on a map but serve to def ine the territorial scope of a political order and separate it from others.3 Even though boundary issues have triggered serious disputes and armed conflict throughout previous centuries, importantly, “maritime boundary issues do not normally seem to engage the same level of political attention as many disputes over land territory.”4 The reason for this is that “resultant agreements are often viewed as economic or technical.”5 In fact, few maritime boundary agreements are considered overwhelmingly political.6 However, in some instances, for instance, in the South China Sea, especially when involving natural resources, nationalism or other sensitive factors, boundary delimitations have caused severe turbulence in the relationships between States. Although the development in the High North is sometimes portrayed as a “Scramble for the Arctic,” it must be kept in mind that the Arctic is neither the Wild West of the 19th-century American frontier nor the 21st-century South China Sea.7  International law places power struggles in

1 Prosper Weil, The Law of Maritime Delimitation – Reflections (Maureen MacGlashan translation, Cambridge: Cambridge Grotius Publications Limited, 1989), 48. 2 Victor Prescott and Clive Schof ield, The Maritime Political Boundaries of the World, 2nd ed. (Leiden: Martinus Nijhoff, 2005), 224. 3 Matthew Craven and Rose Parf itt, “Statehood, Self-determination and Recognition,” in International Law, ed. Malcolm Evans, 5th ed. (Oxford: Oxford University Press, 2018), 177–226, 224. 4 Bernard Oxman, “Political, Strategic and Historical Considerations,” in International Maritime Boundaries, eds. Jonathan Charney and Lewis Alexander, vol. I (Dordrecht: Martinus Nijhoff, 1993), 3–40, 12. 5 Ibid. 6 Ibid. 7 Bjarni Már Magnússon and Charles Norchi, “Geopolitics and International Law in the Arctic,” in Routledge Handbook of Arctic Security, eds. Gunhild Hoogensen Gjørv, Marc Lanteigne, and Horatio Sam-Aggrey (London: Routledge, 2020), 246–57, 247.

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the Arctic within structural limits that States generally respect.8 In the Ilulissat Declaration, the f ive coastal States bordering the Arctic Ocean – Canada, the Kingdom of Denmark, Norway, Russia and the United States – stated that they remained committed to the legal framework applicable to the Arctic Ocean “and to the orderly settlement of any possible overlapping claims.”9 By contrast, power struggles concerning territorial claims in Antarctica were “frozen” by the 1959 Antarctic  Treaty.10 The legal and political realities in the Polar Regions therefore are not the same. No specif ic treaty system applies to the Arctic in the same way as to Antarctica. While the Arctic has clearly def ined coastal States that are undoubtedly entitled to maritime zones, sovereignty is disputed over a large portion of the territory capable of generating maritime entitlements in the Antarctic. Consequently, a core question in Antarctica is whether any coastal States exist there. Because “the land dominates the sea,”11 as the International Court of Justice (hereinafter, the ICJ) famously stated, some have pointed out that “[m]aritime boundary disputes in the Antarctic context are of a secondorder nature insofar as they arise only because of assertions of territorial rights, which are in turn recognized by only a small minority of the international community.”12 This chapter aims to address maritime boundary delimitations in the polar regions. The chapter f irst discusses the main aspects of maritime jurisdiction and maritime boundary delimitation. It further discusses agreed and unresolved maritime boundaries in the Arctic. Subsequently, a few issues concerning possible maritime boundary delimitations in Antarctica are addressed before offering conclusions.

Maritime Boundary Delimitation and the Law of the Sea Most maritime boundaries are negotiated between States and the Arctic is no exception. States generally prefer negotiations to adjudication because they allow for considering various factors that courts and tribunals tend to ignore.13 While courts and tribunals must delimit maritime boundaries based on international law (unless empowered to act ex aequo et bono14), States can be more creative in their solutions.15 The Arctic States have been rather successful in concluding maritime boundaries. Most of them have been negotiated without third-party involvement. The only currently unresolved maritime boundary within 200 nautical miles (hereinafter M) in the Arctic Ocean is in the Beaufort Sea between the United States and Canada. The situation is more complex regarding the continental shelf beyond 200 M in the Arctic, but the States involved are engaged in a constructive process, based on the international law of the sea.16

8 Ibid. 9 Ilulissat Declaration, May 28, 2008, 48 ILM 362. 10 Adopted December 1, 1959, entered into force June 23, 1961, 402 UNTS 71. 11 North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands & Denmark) (Judgement) [1969] ICJ Reports 3, 51, para. 96. 12 Shirley V. Scott, “Antarctic: Competing Claims and Boundary Disputes,” in Research Handbook in Polar Law, eds. Karen L. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar Publishing, 2020), 147–62, 160. 13 See e.g. Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge: Cambridge University Press, 2005), 255. 14 See Article 38(2) of the ICJ Statute. 15 See Cissé Yacouba and Donald McRae, “The Legal Regime of Maritime Boundary Agreements,” in International Maritime Boundaries, eds. David Colson and Robert Smith, vol. V (Leiden: Martinus Nijhoff, 2005), 3281–304, 3304. 16 See e.g. Ted L. McDorman and Clive Schof ield, “The Arctic Ocean Unscrambled: Competing Claims and Boundary Disputes,” in Research Handbook in Polar Law, eds. Karen L. Scott and David L. VanderZwaag (Cheltenham: Edward

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LOSC and the Modern International Law of the Sea All coastal States are entitled to maritime zones. The United Nations Convention on the Law of the Sea (hereinafter LOSC or the Convention) govern the entitlement to maritime zones and the rights and obligations within these zones.17 The maximum breadth of each maritime zone is measured from baselines along relevant coasts.18 Baselines either follow the low-water line along relevant coasts or straight lines joining appropriate points on the coast.19 Whereas the territorial sea can only extend 12 M from baselines, the contiguous zone can extend to 24 M and the exclusive economic zone (hereinafter EEZ) to a maximum distance of 200 M from baselines.20 All States have an inherent right to a continental shelf of 200 M. Furthermore, if a coastal State fulf ils complex geoscientif ic criteria laid out in the Convention,21 its continental shelf may extend even further. Overlapping maritime claims are delimited based on the LOSC and corresponding customary international law. States are obligated to negotiate in good faith “with the genuine intention of achieving a positive result.”22 This does not necessarily entail establishing segregated boundaries. Indeed, the ultimate goal of delimitation under LOSC Articles 74 and 83 is to achieve an equitable solution. States are also required to enter into provisional arrangements pending delimitation of the EEZ and continental shelf,23 and such practical solutions can become f inal. However, disputes concerning the delimitation of maritime boundaries are subject to the mandatory procedures of LOSC Part XV. This includes compulsory procedures entailing binding decisions by courts or tribunals,24 unless States have opted out of such procedures, which is permissible under LOSC Article 298(1)(a)(i). Canada and Russia are among the States that have exercised their right to exclude maritime boundary delimitation from compulsory dispute settlement, which makes it diff icult judicially to settle delimitation disputes concerning the continental shelf beyond 200 M in the Arctic Ocean. Still, the States must conciliate such disputes at the request of either party if they fail to agree otherwise within a reasonable period.25 Different rules apply when delimiting maritime boundaries, depending on the maritime zone in question.26 This means that there can be different maritime boundaries in respect of different

Elgar Publishing, 2020), 124–46, 145–46; Clive Schof ield and Andreas Østhagen, “A Divided Arctic: Maritime Boundary Agreements and Disputes in the Arctic Ocean,” in Handbook on Geopolitics and Security in the Arctic (Cham: Springer, 2020), 171–86, 185–86. 17 Adopted December 10, 1982, entered into force November 16, 1994, 1833 UNTS 3. 18 Any part of the ocean that falls on the landward side of baselines is subject to the regime of internal waters and archipelagic States are entitled to archipelagic waters. 19 See LOSC Articles 5, 7 and 47. 20 LOSC Articles 3, 33, 57 and 76. 21 LOSC Article 76(4). 22 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States) (judgement) [1984] ICJ Reports 246, 299, para. 112(1). See also Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (Preliminary Objections) [2017] ICJ Reports 1, 37, para. 90. 23 LOSC Articles 74(3) and 83(3). 24 Whichever forum is applicable under LOSC Article 287(1). 25 See LOSC Article 298(1)(a)(i). The provision further provides “that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission.” 26 See LOSC Articles 15, 74 and 83.

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maritime zones between the same States in the same area.27 However, international courts and tribunals often establish single boundaries delimiting all relevant maritime zones.28

Maritime Boundary Delimitation Maritime boundary delimitation within 200 M from baselines may delimit the territorial sea, EEZ and/or the continental shelf. Three distinct provisions of the LOSC govern the delimitation of these various maritime zones. LOSC Article 15 governs the delimitation of the territorial sea. LOSC Article 15 codif ies the customary equidistance/special circumstances rule.29 It provides that States with opposite or adjacent coasts cannot extend their territorial seas beyond a line that is equally distant from the closest points on relevant baselines unless special circumstances or historic title justify a departure from that line. Base points are identif ied on each State’s coastline, and a boundary is constructed at an equal distance from the nearest points along each State’s coastline.30 After a provisional boundary is constructed based on valid base points, special circumstances are examined to determine whether the equidistance line must be adjusted.31 These circumstances can also justify resorting to a different method of delimitation.32 LOSC Articles 74 and 83 govern the delimitation of the EEZ and continental shelf between neighbouring States. LOSC Articles 74 and 83 stipulate that [t]he delimitation of the [EEZ/continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the [ICJ], in order to achieve an equitable solution. These provisions are identical, except where the former refers to the EEZ, the latter refers to the continental shelf. The LOSC does not explicitly govern delimitation of an exclusive f isheries zone, but the customary law reflected in LOSC Article 74 also governs delimitation of the exclusive f isheries zone.33 Unlike LOSC Article 15, Articles 74(1) and 83(1) do not refer to one specif ic method of delimitation. Instead, they provide that delimitation agreements be based on international law as it may evolve through State practice and judicial settlement. Despite a degree of flexibility, these provisions carry three clear obligations. First, maritime boundaries delimiting EEZ and continental shelf boundaries shall be effected by agreements between coastal States with overlapping claims. Second, these agreements must be established based on international law. Third, the delimitation must produce an equitable solution.

27 Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (Cambridge: Cambridge University Press, 2015), 218. 28 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Merits) [2001] ICJ Reports 40, 93, paras. 173–74; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) (judgement) [2007] ICJ Reports 659, 739–41, paras. 265–71. 29 Qatar v. Bahrain, [2001] ICJ Reports 40, 94, para. 176. 30 Ibid., 94, para. 177. 31 Ibid., 94, para. 176. 32 See Nicaragua v. Honduras, [2007] ICJ Reports 743–45, paras. 280–81. 33 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) (judgement) [1993] ICJ Reports 38, 59, para. 47.

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The law governing maritime boundary delimitation is largely found in case law. As conf irmed by the ICJ in Nicaragua v. Colombia, the customary international law relevant for delimitation of the continental shelf is “reflected in the case law of this Court, the International Tribunal for the Law of the Sea (ITLOS) and international arbitral courts and tribunals.”34 The case law constitutes “an acquis judiciare . . . and should be read into articles 74 and 83 of the Convention.”35 The ICJ presented the so-called three-stage approach in the Black Sea case of 2009.36 Under this approach, f irst, a provisional boundary line is to be drawn using geometrically objective standards.37 Normally, this is an equidistance line. Then, the Court will assess whether there are any “factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result.”38 The third step involves a “disproportionality test” to evaluate whether the boundary line will “lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line.”39 Recent decisions have shown a clear preference for this method.40 Still, international courts and tribunals can resort to different methods where “compelling reasons” make the three-stage approach “unfeasible.”41 Courts and tribunals generally apply the three-stage approach with very few exceptions.42 The quest for objective criteria has led to a clear judicial focus on geographic circumstances, as opposed to f isheries, for example,43 or considerations of Indigenous peoples.44 However, maritime boundary agreements often refer to economic or environmental considerations and the exploitation of f ish stocks or minerals.45 In addition to establishing maritime boundaries, some of these agreements entail provisions on cooperation between the parties relating to joint development zones, exploiting and managing natural resources, or other issues, such as protecting the marine environment.46

34 Territorial and Maritime Dispute (Nicaragua v. Colombia) (judgement) [2012] ICJ Reports 624, 666, para. 114. 35 Bay of Bengal Maritime Boundary (Bangladesh v. India) (2014) XXXII RIAA 1, 105, para. 339. 36 Maritime Delimitation in the Black Sea (Romania v. Ukraine) (judgement) [2009] ICJ Reports 61. 37 Ibid., 101, para. 116. 38 Ibid., 101–3, para. 120. 39 Ibid., 103, 129–30, paras. 122, 214–15. 40 See Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (judgement) [2021] ICJ Reports 1, 43, para. 122; Maritime Delimitation in the Caribbean Sea and the Pacif ic Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua) (judgement) [2018] ICJ Reports 139, 190, para. 135; Nicaragua v. Colombia 695–96, paras. 190–94. 41 Romania v. Ukraine, [2009] ICJ Reports 61, 101, para. 116. See also Bangladesh v. India 104–5, paras. 338–9. 42 In State practice, Tanaka has pointed out that approximately 84% of agreements employ the equidistance method for all or part of maritime boundaries between opposite coasts, and around 56% of maritime delimitation agreements use the equidistance method for all or part of their maritime boundaries between States with adjacent coasts. Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation, 2nd ed. (Oxford: Hart, 2019), 190–91. 43 Delimitation of the Exclusive Economic Zone and the Continental Shelf (Barbados v. Trinidad and Tobago) (2006) XXVII RIAA 147, 211, para. 228. 44 See McDorman and Schof ield, “The Arctic Ocean Unscrambled,” 141–44. 45 Barbara Kwiatkowska, “Economic and Environmental Considerations in Maritime Boundary Delimitations,” in International Maritime Boundaries, eds. Jonathan Charney and Lewis Alexander, vol. 1 (Dordrecht: Martinus Nijhoff, 1993) 75–113, 75–76. See also Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation, 381–83. 46 Yacouba and McRae, “The Legal Regime of Maritime Boundary Agreements,” 3291.

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Delimitation of the Continental Shelf Beyond 200 M LOSC states clearly that “[t]he rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or any express proclamation.”47 This is why planting a one-metrehigh titanium Russian flag on the North Pole in 2007 had no legal effect.48 Establishing the continental shelf beyond 200 M has two aspects, delineation and delimitation. In this context, delineation refers to drawing a line between the continental shelf and the Area, which LOSC Article 76 governs. Under Article 76(1), the continental shelf extends throughout the natural prolongation of the land territory to the outer edge of the continental margin or to a distance of 200 M from baselines where the outer edge does not extend up to that distance.49 The continental shelf “consists of the seabed and subsoil of the shelf, the slope and the rise.”50 Article 76(4)(a) provides two methods to def ine the outer edge of the continental margin. Article 76(5) introduces two constraints that limit the continental shelf ’s maximum extent: A limit of 100 M from the 2,500-metre-deep isobath or 350 M from the coastal State’s baselines. Article 76(6) contains a specif ic rule regarding submarine ridges that puts the limit for such ridges at 350 M from the baselines. There is an exception for submarine elevations, which are natural components of the continental margin.51 This provision is important in the Arctic because of the Arctic Ocean’s ridge features. In the delineation process, the Commission on the Limits of the Continental Shelf (hereinafter CLCS) plays an important role in verifying whether coastal States’ submissions to the CLCS – which contains information about the outer continental shelf ’s maximum extent – are in conformity with Article 76.52 After examining a submission, the CLCS makes recommendations “to coastal States on matters related to the establishment of the outer limits of their continental shelf.”53 If the coastal State accepts the recommendations and establishes the continental shelf based on the recommendations, the limits so established are “f inal and binding.”54 Note that only the coastal State can establish these limits. The LOSC creates a f irewall between the delineation and delimitation of the outer continental shelf. Article 76(10) states that “[t]he provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.” Article 9 of Annex II elaborates Article 76(10) and declares that “[t]he actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts.” However, States can make so-called non-objection agreements that allow for considerations of CLCS submissions without prejudice to future delimitation negotiations, and all relevant parties in the Central Arctic Ocean have made such statements.55

47 LOSC Article 77(3). 48 See Michael Byers, International Law and the Arctic (Cambridge: Cambridge University Press, 2013), 92–93. 49 LOSC Article 76(1). 50 Ibid., paragraph 3. 51 See Ron Macnab, “Submarine Elevations and Ridges: Wild Cards in the Poker Game of UNCLOS Article 76,” Ocean Development & International Law 39 (2008): 223–34. 52 The role of the Commission is elaborated in Annex II of LOSC. A list of submissions, recommendations, preliminary information documents, executive summaries of submissions, diplomatic notes responding to submissions and other relevant material related to the work of CLCS is found on the Commission’s website http://˂www.un.org/depts/los/ clcs_new/clcs_home.htm. 53 LOSC Article 76(8). 54 Ibid. 55 See Rule 46 and Annex I to the CLCS, “Rules of Procedure of the Commission on the Limits of the Continental Shelf,” 2008, UN Doc. CLCS/40/Rev.1, Rule 46 and Annex I.

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For delimitation purposes, international courts and tribunals have declared that the continental shelf, within and beyond 200 M, is in law a single continental shelf.56 Although factors that may be deemed relevant enough to adjust the provisional equidistance line could be based on Article 76, international courts and tribunals have not taken this position.57 In essence, they have applied the three-stage approach in the same manner within and beyond 200 M.

The Arctic A majority of overlapping maritime claims in the Arctic have been peacefully delimited. The following sections provide an overview of concluded maritime boundaries in the region, partially concluded boundaries, and unresolved, overlapping claims.

Concluded Maritime Boundaries in the Arctic Iceland – Norway (Jan Mayen) Iceland and Norway concluded an agreement in May  1980 acknowledging Iceland’s 200  M EEZ.58 Fisheries considerations heavily affected this agreement. The States were unable to reach a decision regarding the continental shelf boundary’s location and agreed to refer the issue to a Conciliation Commission.59 The Commission delivered its recommendations and another agreement was concluded in October 1981 on that basis. It delimits the overlapping continental shelf entitlements between Iceland and Jan Mayen and effectively establishes a single-purpose maritime boundary, aligned with the EEZ boundary referred to in the earlier agreement.60 Consequently, Iceland gained its full entitlement to a 200 M EEZ and continental shelf, making this boundary quite favourable to Iceland. Indeed, the agreement creates a joint development zone for exploring and exploiting hydrocarbon resources,61 but a much larger portion of the joint development zone lies within Norwegian waters (61%).62 Furthermore, while both States are entitled to a quarter of the revenue gained from oil and gas extracted from waters on each other’s side,63 Iceland has exclusive rights to hydrocarbon deposits that straddle the joint zone and Icelandic waters.64

56 See Bjarni Már Magnússon, The Continental Shelf Beyond 200 Nautical Miles (Leiden: Brill Nijhoff, 2015), 136–37. 57 Ibid., 169–73. 58 Agreement between Iceland and Norway Concerning Fishery and Continental Shelf Questions (adopted May 28, 1980, entered into force June 13, 1980), 2124 UNTS 225, preamble. 59 Ibid., Article 9. For the report of the Conciliation Commission, see Reports of International Arbitral Awards (RIAA) 27 (2008), 1. 60 Agreement between Norway and Iceland on the continental shelf between Iceland and Jan Mayen (adopted October 22, 1981, entered into force June 2, 1982) 2124 UNTS 247, Article 1. See also Additional Protocol to the Agreement of May 28, 1980, between Iceland and Norway concerning Fishery and Continental Shelf Questions and the Agreement derived therefrom of October 22, 1981, on the Continental Shelf between Jan Mayen and Iceland, adopted November 11, 1987, entered into force May 27, 1998, 2127 UNTS 227; Additional Protocol to the Agreement of December 18, 1995, between Norway and Denmark concerning the Delimitation of the Continental Shelf in the Area between Jan Mayen and Greenland and the Boundary between Fishery Zones in the Area, adopted November 11, 1997, entered into force May 27, 1998, 2100 UNTS 180. 61 Agreement between Norway and Iceland on the continental shelf between Iceland and Jan Mayen (n 60) Articles 2–6. 62 McDorman and Schof ield, “The Arctic Ocean Unscrambled,” 131. 63 Agreement between Norway and Iceland on the continental shelf between Iceland and Jan Mayen (n 60) Articles 5–6. 64 Ibid., Article 8.

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Denmark (Greenland) – Norway (Jan Mayen) Norway and Denmark could not agree on a maritime boundary between Jan Mayen and Greenland, and they submitted their dispute to the ICJ. The Court handed down its decision in 1993 and the States concluded an agreement in 1995, establishing a continental shelf and f isheries zone boundary.65 The agreement is based on the ICJ’s judgement, making this the only judicially delimited maritime boundary of the polar regions. When plotting the boundary, the ICJ began with a provisional equidistance line and adjusted it with reference to special or relevant circumstances.66 The Court clearly employed the equidistance/relevant circumstances methodology and took account of the proportionality between coastal lengths.67 However, it stands out from the bulk of related jurisprudence because the Court placed unprecedented importance on f isheries.68 In other cases, relevant circumstances have been limited almost entirely to coastal geography, but the ICJ decided in the Jan Mayen case to shift the provisional median line eastwards, considering capelin’s seasonal migration.69 It also found the presence of ice to be potentially relevant because it was “a considerable seasonal restriction of access to the waters.”70 Still, the ice did not prevent the exploitation of capelin (the only commercially exploitable f ish resource in the area) and, consequently, did not lead to adjusting the provisional boundary line.71

Denmark (Faroe Islands) – Iceland – Norway: Agreed Minutes Approach An interesting approach to the delimitation of the continental shelf beyond 200 M occurs in the trilateral Agreed Minutes between Denmark (the Faroe Islands), Iceland and Norway (Jan Mayen and mainland Norway) in the Southern Part of the Banana Hole of the Northeast Atlantic from September  20, 2006.72 An important factor in making the Agreed Minutes “was the desire to achieve a tripartitely negotiated solution of issues without giving rise to a number of complex legal issues.”73 The Agreed Minutes def ined bilateral continental shelf boundaries between the opposite States subject to each of the States showing before the CLCS that the continental margin adjacent to each of the three States extends to the boundary limit. The agreed boundary line has six f ixed points that divide the area into three parts. Norway has approximately half (55,528 km²) of the negotiated area, and Iceland and the Faroe Islands share the other half (56,000 km²); Iceland has 29,000  km², and the Faroe Islands has 27,000  km².74 Many of the boundary lines resemble

65 Agreement between Denmark and Norway concerning the Delimitation of the Continental Shelf in the Area between Jan Mayen and Greenland and Concerning the Boundary between the Fishery Zones in the Area, adopted December 18, 1995, entered into force May 27, 1998, 1903 UNTS 171. 66 Denmark v. Norway (n 33), 60–64, paras. 51, 54, 56 and 59. 67 Ibid., 69, para. 69. 68 Ibid., 71–72, para. 75–76. 69 Ibid., 72, para. 76. 70 Ibid., 73, para. 78. 71 Ibid. 72 The Norwegian Ministry for Foreign Affairs, “Agreed Minutes on the Delimitation of the Continental Shelf beyond 200 Nautical Miles between the Faroe Islands, Iceland and Norway in the Southern Part of the Banana Hole of the Northeast Atlantic,” September  20, 2006, accessed June  29, 2021, www.regjeringen.no/en/dokumenter/Agreed-Minutes/ id446839/. 73 Rolf Fife, “Denmark/The Faroes-Iceland-Norway,” Report Number 9–26 in International Maritime Boundaries, eds. David A. Colson and Robert W. Smith, vol. VI (Leiden: Martinus Nijhoff, 2011), 4532–552, 4544. 74 See para 8 of the 2006 Agreed Minutes (n 72).

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equidistance lines with adjustments.75 All parties to the Agreed Minutes have received recommendations from the CLCS regarding the area in question.76 Because each party to the Agreed Minutes documented their entitlement to the continental shelf beyond 200 M, there is no need to use its complex provisions for adjusting the boundaries. According to the Agreed Minutes, “the f inal delimitations will be effected by the simultaneous entry into force of the three bilateral agreements.”77 The three agreements were signed in October 2019 and entered into force in mid-December 2022.78

Norway – Russia The f irst maritime boundary concluded in the Arctic Ocean was the 1957 Agreement between Norway and the Soviet Union concerning the Sea Frontier in the Varangerfjord.79 It addresses the territorial sea and continental shelf between the two neighbouring States. The treaty was substituted in 2007 and the boundary line was extended. When Norway and the Soviet Union established 200  M zones in the 70s, it caused an overlap of approximately 155,000  km2 in the Barents Sea and of approximately 20,000 km2 in the Arctic Ocean. The 2010 Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean80 marked the end of a 40-year-old maritime boundary dispute between the parties. The treaty delimits an area that can be divided into three parts. The f irst begins at the mouth of the Varangerfjord and extends to 200 M from the mainlands of Norway and Russia. . . . The second area is in the middle of the Barents Sea beyond 200 miles (the Barents Sea Loophole). . . . The third area is in the northern Barents Sea.81 The treaty reveals little about the delimitation method except that the preamble refers to the LOSC’s provisions. A  joint statement the Russian president and the Norwegian prime minister made a few months before the treaty’s conclusion reveals more.82 According to the statement, delegations from the parties recommended “a delimitation line on the basis of international law in order to achieve an equitable solution”83 and that the line should divide “the overall disputed area in two parts of approximately same size.”84 The only relevant factor mentioned is “the effect of

75 Fife, “Denmark/The Faroes-Iceland-Norway,” 4543. 76 Norway 2012, Denmark (Greenland) 2014 and Iceland 2016. 77 Para 10 of the 2006 Agreed Minutes (n 72). 78 Gildistaka samninga um afmörkun landgrunnsins í Síldarsmugunni, December 29, 2022, accessed March 12, https:// www.stjornarradid.is/efst-a-baugi/frettir/stok-frett/2022/12/29/Gildistaka-samninga-um-afmorkun-landgrunnsinsi-Sildarsmugunni/. 79 Adopted February 15, 1957, entered into force April 24, 1957, 312 UNTS 289. 80 Adopted September  15, 2010; entered into force July  7, 2011; 50 ILM 1113 (hereinafter 2010 Russia-Norway Agreement). 81 Tore Henriksen and Geir Ulfstein, “Maritime Delimitation in the Arctic; The Barents Sea Treaty,” Ocean Development and International Law 42 (2011): 1, 1. 82 Joint Statement on Maritime Delimitation and Cooperation in the Barents Sea and Arctic Ocean, accessed June 29, 2021, www.regjeringen.no/upload/UD/Vedlegg/Folkerett/030427_english_4.pdf. 83 Ibid., 2. 84 Ibid.

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major disparities in respective coastal lengths.”85 The eight-coordinate delimitation line is a single line within 200 M. As mentioned, part of the boundary extends beyond 200 M (north of Svalbard and Franz Josef Land). In 2002, eight years before the treaty’s conclusion, the CLCS indicated in its recommendations to Russia that a ratif ied maritime boundary agreement with Norway in the Barents Sea “would represent the outer limits of the continental shelf of the Russian Federation extending beyond 200 M in the Barents Sea.”86 In addition, in 2009, the CLCS accepted Norway’s entitlement to the relevant continental shelf beyond 200 M.87 In short, before the boundary agreement’s conclusion, the CLCS acknowledged the two States’ entitlements to the relevant area beyond 200 M. One of the treaty’s interesting features is that it creates a special area (grey area) in which Russia can exercise the sovereign rights and jurisdiction derived from the EEZ jurisdiction that Norway would otherwise be entitled to exercise under international law in the absence of an agreement between the parties.88 A similar trade-off exists in the 1990 Agreement between the US and Soviet Union, which is discussed in the following section. In sum, the 2010 Agreement is an important achievement that contributes to peace and stability in the Arctic. It delimits maritime areas between a NATO member State and Russia, and thereby fully solves an old cold war dispute that could have been more diff icult to solve in the aftermath of Russia’s annexation of Crimea in 2014 and particularly after its invasion of Ukraine in 2022.

Partially Agreed Boundaries in the Arctic Denmark (Greenland) – Norway (Svalbard) An agreement concluded in 2006 concerned the maritime boundary between Denmark and Norway in the Greenland Sea.89 It delimits a continental shelf and f isheries zone boundary based on an equidistance line between Greenland and Svalbard.90 However, this is only a partial boundary because it does not delimit overlapping claims to the continental shelf beyond 200 M. Thus, further negotiations can be expected once the CLCS issues its recommendations.91 The 2006 Agreement seemingly gives full effect to Svalbard.92 This is noteworthy because sovereignty over Svalbard is subject to an agreement that limits its capacity to generate maritime entitlements. Svalbard is an archipelago, midway between Norway and the North Pole and was

85 Ibid. 86 Oceans and the Law of the Sea: Report of the Secretary-General, UN Doc. A/57/57/Add.1 (October 8, 2002) 9, para. 39. 87 Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission made by Norway in Respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on November 27, 2006 (March 27, 2009), 15–16, para. 40. 88 Article 3(1) of the 2010 Russia-Norway Agreement. 89 Agreement between Norway and Denmark together with the Home Rule government of Greenland on the other hand, concerning the Delimitation of the Continental Shelf and the Fisheries Zones in the Area between Greenland and Svalbard, adopted February 20, 2006, entered into force June 2, 2006, 2378 UNTS 21. 90 McDorman and Schof ield, “The Arctic Ocean Unscrambled,” 133–34. 91 Ibid., 133–35. See also Agreement concerning the Delimitation of the Continental Shelf and the Fisheries Zones in the Area between Greenland and Svalbard, preamble. 92 See Chapter 28 of this volume.

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once considered terra nullius.93 The 1920 Spitsbergen Treaty affords sovereignty over the land to Norway94 but with an important caveat. The agreement restricts Norway’s sovereignty95 as it grants all 46 States Parties equal rights to certain activities, such as f ishing, on the archipelago and in the surrounding maritime areas (at least the territorial sea).96 Norway has sought to restrict other States’ rights by establishing a Norwegian f isheries protection zone, and States Parties disagree on whether the special rights apply exclusively in the territorial sea (as explicitly provided for in the agreement) or all maritime zones around Svalbard.97 While Norway submits that the Spitsbergen Treaty has no bearing on maritime zones beyond the territorial sea, Iceland and Russia have strongly opposed this interpretation and have argued that their special rights extend to other maritime zones.98 Despite these differences, Svalbard can generate traditional maritime zones and affect the location of maritime boundaries with opposite States.99 Thus, the disagreement concerning Svalbard does not affect the delimitation of maritime boundaries but rather the exclusiveness of the entitlements within.

Canada – Denmark (Greenland) The 1973 Agreement relating to the Delimitation of the Continental Shelf between Greenland and Canada100 created a 1,450 M maritime boundary. The boundary was plotted using the equidistance method of delimitation. The agreement has been employed to other maritime zones and consequently has become an all-purpose maritime boundary.101 It extends from Davis Strait in the south to the Lincoln Sea in the north and terminates in the Robeson Channel, before it enters the Arctic Ocean. One of the treaty’s interesting aspects is how it avoided the sovereignty dispute concerning Tartupaluk (Hans Island) (the islet between Ellesmere Island and Greenland), the only disputed territory in the Arctic (until recently), without even mentioning it. The boundary stopped just to the south of the islet and then continued north of it. Consequently, there was a small gap in the boundary line. This technique allowed the two States to avoid the unresolved dispute, which does not affect the boundary line.

 93 See Geir Ulfstein, “Spitsbergen/Svalbard,” in Max Planck Encyclopedias of Public International Law, ed. Rüdiger Wolfrum (Oxford: Oxford University Press, 2019), paras. 7–9.  94 See Treaty concerning the Archipelago of Spitsbergen (adopted February 9, 1920, entered into force August 14, 1925) 2 LNTS 7, Article 1.  95 Robin Churchill and Geir Ulfstein, “The Disputed Maritime Zones around Svalbard,” in Changes in the Arctic Environment and the Law of the Sea, eds. Myron Nordquist, John Norton Moore, and Tómas Heiðar (Leiden: Martinus Nijhoff, 2010), 551–94, 573; Christopher R. Rossi, “A Unique International Problem: The Svalbard Treaty, Equal Enjoyment, and Terra Nullius: Lessons of Territorial Temptation from History,” Washington University Global Studies Law Review 15 (2015): 93–136, 95 and 97.  96 Churchill and Ulfstein, “The Disputed Maritime Zones around Svalbard,” 563; Articles 2 and 3 of the Spitsbergen Treaty.  97 See David H. Anderson, “The Status Under International Law of the Maritime Areas Around Svalbard,” Ocean Development and International Law 40 (2009): 373–84; Christopher R. Rossi, “A Unique International Problem,” 105.  98 See Churchill and Ulfstein, “The Disputed Maritime Zones around Svalbard,” 557–59, 565; Rossi, “A Unique International Problem,” 109.  99 McDorman and Schof ield, “The Arctic Ocean Unscrambled,” 128. 100 Adopted December 17, 1973, entered into force March 13, 1974, 950 UNTS 147 (hereinafter 1973 Canada-Denmark Agreement). 101 Byers, International Law and the Arctic, 30.

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This is not the only interesting aspect of the treaty. A slight adjustment to the boundary line was made to the original one in 2004. The agreement unusually provided that [i]f new surveys or resulting charts or maps should indicate that the dividing line requires adjustment, the Parties agree that an adjustment will be carried out on the basis of the same principles as those used in determining the dividing line.102 This method “recognizes the imperfect understanding of the location of the baselines in the context of ice-covered coasts, as well as recognizing the technical diff iculties associated with undertaking survey work at high latitudes.”103 In 2012, the two States extended the boundary line, in principle, in the Lincoln Sea to the 200 M limit. Equidistance was applied and further technical adjustments were made to the 1973 Agreement.104 Ten years later, in June 2022 Canada and Denmark (Greenland) signed a delimitation agreement and resolved the outstanding boundary issues over Hans Island; the maritime boundary on the continental shelf within 200 M, including the Lincoln Sea; and the continental shelf beyond 200 M in the Labrador Sea.105 The agreement sends a strong message about the two States’ commitment to the international legal order and peaceful dispute settlement at a diff icult time for international law. The 2022 Agreement provides a permanent status of the preliminary boundary agreement from 2012 in the Lincoln Sea. This means that the maritime area between the States in the Lincoln Sea is divided with an equidistance line. It has been argued that this indicates that the two States will most likely “argue for the application of an equidistance approach also further north, in the Arctic Ocean, where the Danish and the Canadian continental shelf both allegedly overlap with areas subject to Russian claim of entitlement.”106 The solution regarding Hans Island was to divide it in two parts along the natural ridges of the island.107 In the Labrador Sea, the two parties divided the continental shelf beyond 200 M. The disputed area in question was 79,000 km2. Although the delimitation considerations are not public, it seems that the delimitation line is based on an equidistance line with minor adjustments that extends the previously agreed maritime boundary line from 1973.108

102 Article 4(2) of the 1973 Canada-Denmark Agreement. 103 McDorman and Schof ield, “The Arctic Ocean Unscrambled,” 135. 104 Jacques Hartmann, “Canada and Denmark reach agreement on the Lincoln Sea Boundary,” EJIL: Talk! (2013), accessed July 1, 2021, www.ejiltalk.org/canada-and-denmark-reach-agreement-on-the-lincoln-sea-boundary/. 105 Government of Canada, “Canada and the Kingdom of Denmark, Together with Greenland, Reach Historic Agreement on Long-Standing Boundary Disputes,” The Government of Canada, 2022, accessed July 11, 2022, www.canada. ca/en/global-affairs/news/2022/06/canada-and-the-kingdom-of-denmark-together-with-greenland-reach-historicagreement-on-long-standing-boundary-disputes.html; Ministry of Foreign Affairs of Denmark, “Canada and the Kingdom of Denmark, Together with Greenland, Reach Historic Agreement on Longstanding Boundary Disputes,” Ministry of Foreign Affairs of Denmark, 2022, accessed July 11, 2022, https://um.dk/en. 106 Signe Busch, “The Last Bottle of the Whisky-War: A Commentary on the Boundary Delimitation Agreement on Disputed Areas between Canada and Denmark (Greenland),” The NCLOS Blog, 2022, accessed July 9, 2022, https:// site.uit.no/nclos/2022/06/14/the-last-bottle-of-the-whisky-war-a-commentary-on-the-boundary-delimitationagreement-on-disputed-areas-between-canada-and-denmark-greenland/. 107 Ibid. 108 Ibid.

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Russian Federation – United States The 1990 Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary109 created the longest maritime boundary in the world. It is approximately 1,600 M in length. In general, the boundary line follows one version or another of the line under the 1867 Convention by which Russia sold Alaska to the United States.110 The 1990 Agreement is a complete boundary for the two States. The negotiations took nine years and were highly political. Considerations of hydrocarbon resources and f isheries were prominent in the negotiations.111 The boundary line “extends from the Bering Strait north along a meridian through Chukchi Sea” far into the Arctic Ocean “and southwestward from the Bering Strait through the Bering Sea to the 167° East meridian of longitude in the North Pacif ic Ocean.”112 Importantly, the exact endpoint (terminus) in the Arctic is undef ined, but it heads straight in the direction to the North Pole. This well-known technique avoids prejudicing third States’ rights – that is, Canada. The boundary line extends into the Chukchi Sea and divides the two parties’ EEZs and the continental shelf within and beyond 200 M in the Arctic. The United States supports using the boundary line beyond 200 M in the Arctic Ocean because it is “consistent with the mutual interests of Russia and the United States in stability and expectations, and with Article 9 of Annex II” of the LOSC, as stated in the note verbale of the United States to the UN concerning Russia’s 2001 CLCS submission.113 Similar to the 2010 Norway-Russia Treaty, this treaty creates a special area. Actually, the treaty creates two such areas. One, the eastern special area, is in the Arctic Ocean adjacent to the 200 M limits of Alaska. There, one party can exercise the sovereign rights and jurisdictions compatible with EEZ entitlements that the other party would otherwise be entitled to exercise under international law in the absence of agreement between the parties.114 The agreement provides, Such exercise of sovereign rights or jurisdiction derives from the agreement of the Parties and does not constitute an extension of its [EEZ]. To this end, the Russian Federation shall take the necessary steps to ensure that any exercise on its part of such sovereign rights or jurisdiction in the Special Area shall be so characterized in its relevant laws, regulations and charts.115 Although the agreement has served its purposes, it has never been entered into force. The United States ratif ied the agreement quickly after its conclusion. On the other hand, the Soviet Union, later Russia, has not ratif ied it due to opposing the outcome because the boundary line in the Bering Sea runs signif icantly to the west of where an equidistance line would be located. Some have pointed out that “[o]pponents of the treaty attribute this result to the weak negotiating position of the Soviet

109 Adopted June 1, 1990; entered provisionally into force June 15, 1990; not in force; 29 ILM 941 (1990 USA-USSR Agreement). 110 David Colson, “The Delimitation of the Outer Continental Shelf between Neighboring States,” American Journal of International Law 97, no. 1 (2003): 91–107, 96. 111 Elizabeth Verille, “United States-Soviet Union,” Report Number 1–6 in International Maritime Boundaries, eds. Jonathan Charney and Lewis Alexander, vol. I (Dordrecht: Martinus Nijhoff, 1993), 447–60, 450. 112 Ibid., 447–48. 113 Note Verbale of the Permanent Mission of the United States of America to the Secretary General of the United Nations (February 28, 2002) UN Doc. CLCS.01.2001.LOS/USA 1. 114 Article 3(1) and (2) of the 1990 USA-USSR Agreement. 115 Ibid., Article 3(3).

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Union, which was literally disintegrating as the talks were taking place.”116 This does not mean that the parties do not respect the agreement. When signing the agreement, the two parties entered into an exchange of notes, in line with the law of treaties,117 whereby pending the entry into force of that Agreement, the parties agree to abide by the terms of the Agreement. Russia’s CLCS submissions from 2001 and 2015 indicate that it respects the boundary within and beyond 200 M.118 Furthermore, under Article 18 of the Vienna Convention on the Law of Treaties, Moscow has a legal obligation not to defeat the object and purpose of the agreement pending ratif ication. Moscow has observed this legal duty despite current bilateral tension over issues arising from outside the region.

Overlapping Claims in the Marine Arctic Canada – Unites States Canada and the United States have overlapping maritime claims in an area of the Beaufort Sea that is approximately 6,250 M2.119 The United States maintains that these entitlements remain undelimited, but the two States’ views on this matter differ.120 Canada submits that the 1825 Treaty established a maritime boundary concerning Alaska’s border.121 Great Britain and Russia concluded this agreement, but it became binding on Canada and the US through succession. It separates Alaska from the Yukon–Northwest Territories and governs entitlements on the North-West Coast of America and navigation of the Pacif ic Ocean. Article III of the agreement establishes a boundary on land along the 141° west meridian to the outer edge of the frozen ocean and Canada perceives that the same trajectory should extend seaward to delimit overlapping maritime entitlements.122 However, the United States argues that the agreement establishes no maritime boundary and that such a boundary should be delimited based on equidistance from the land-boundary terminus.123 Both States have maintained positions that align with their interests but the issue becomes more complicated when considering potential claims beyond 200 M. There, the equidistance line works in Canada’s favour and Canada’s position relying on the 141° west meridian benef its the United States.124

The Central Arctic Ocean The CLCS’s role complicates delimitations of the continental shelf beyond 200 M compared to other maritime zones. In the Arctic Ocean, all parties, except for the United States, have made submissions to the CLCS, and they have all made non-objection statements that allow for considerations of

116 Byers, International Law and the Arctic, 34. 117 See Article 25 of the Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force January 27, 1980, 1155 UNTS 311. 118 McDorman and Schof ield, “The Arctic Ocean Unscrambled,” 137. 119 David H. Gray, “Canada’s Unresolved Maritime Boundaries,” Geomatica 48, no. 2 (1994): 131, 135. 120 See Byers, International Law and the Arctic, 59. 121 Great Britain/Russia: Limits of their Respective Possessions on the North-West Coast of America and the Navigation of the Pacif ic Ocean (adopted February 16, 1825) 75 Consolidated Treaty Series 95. 122 Canada, Fishing Zones of Canada (Zone 6) Order, Consolidated Regulations of Canada (1978), c 1549, 13747–750. 123 United States, Department of State, “Exclusive Economic Zone and Maritime Boundaries,” Public Notice 2237, August 23, 1995, 60 Federal Register: 43825–829. 124 McDorman and Schof ield, “The Arctic Ocean Unscrambled,” 139.

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CLCS submissions without prejudice to future delimitation negotiations, as previously mentioned. Therefore, the interplay between the CLCS procedure and the delimitation procedure has largely been taken care of and is not an obstacle to solve the disputes in the Central Arctic Ocean. Russia made the f irst submission to the CLCS in 2001 and received the CLCS’s f irst recommendations in 2002. The Commission did not accept Russia’s original submission because of certain flaws and asked Russia to amend the part concerning its continental shelf in the Arctic Ocean. Russia made a partially revised submission in 2015 for the Arctic Ocean. The 2015 submission covered a slightly larger area compared to the one in the original 2001 submission. On March 31, 2021, Russia submitted to the CLCS two addenda containing additional data and added a large area to its submission, thereby extending its submission to the 200 M limits of Canada and Denmark (in respect of Greenland). Thereby, Russia’s submissions covered 70% of the continental shelf of the Central Arctic Ocean.125 In the beginning of February 2023, CLCS made its recommendations to Russia about the Arctic Ocean. Although the CLCS did not approve the whole of the approximate two million square kilometres claimed by Russia, a large chunk of it was accepted, disapproving only approximately 300.000 square kilometres. The CLCS asked for further data in one particular area, to which Russia responded with a revised submission in mid-February, submitting further data in regard to the local part of the Amundsen Basin.126 Norway submitted its data to the CLCS in 2006 concerning the West Nansen Basin (in the Central Arctic Ocean) and the Loop Hole (Barents Sea). Norway received its recommendations on November 27, 2009, and established the outer limits of its continental shelf on that basis. Denmark presented its partial submission to the CLCS in respect of Greenland’s northern continental shelf in 2014. Canada made a preliminary submission to the CLCS in 2013 and a full submission in 2019. Canada and Denmark await the CLCS’s review. Because the US is not a State Party to the LOSC, it is questionable whether the CLCS would consider a submission from the country. The US, the only non-party to the LOSC of the Arctic States, has strongly indicated that it intends, based on customary international law, to establish the continental shelf in line with the criteria in Article 76.127 Based on the submissions, the main complexities in the Arctic concern submarine ridges and elevations. As an example, there is a trilateral overlap between the submissions of Canada, Denmark and Russia on the Lomonosov Ridge – a signif icant feature of the seafloor of the northern central Arctic Ocean (which the CLCS accepted as a submarine elevation in February 2023) – and adjacent areas including the North Pole. In fact, the Danish and Russian submissions overlap profoundly and reach each other’s 200 M limits. Canada’s submission is modest insofar as its outer limits do not reach the 200 M zones of Russia or Greenland (Denmark). After the 2021 addendum of Russia’s submission, there clearly is an intense overlap between Canada and Russia in the Canada Basin/Alpha Rise area. An overlap between Canada and the US in the Canada Basin/Alpha Rise area is also expected when the US asserts its rights on the US side of the 1990 Agreement line.128 As previously noted,

125 Kamrul Hossain, “Russia’s Proposed Extended Continental Shelf in the Arctic Ocean: Science Setting the Stage for Law,” The Polar Connection, 2021, accessed June 29, 2021, https://polarconnection.org/russia-extended-continentalshelf-arctic/. See also www.un.org/Depts/los/clcs_new/submissions_f iles/submission_rus_rev1.htm. 126 Bjørn Kunoy, “Recommendations on the Russian Federation’s Proposed Outer Continental Shelf in the Arctic Area,” EJIL: Talk! (2023), accessed March  12, 2023, https://www.ejiltalk.org/recommendations-on-the-russianfederations-proposed-outer-continental-shelf-in-the-arctic-area/. 127 See e.g. Kevin Baumert, “The Outer Continental Shelf Under Customary International Law,” American Journal of International Law 111 no. 4 (2017): 827–72. 128 McDorman and Schof ield, “The Arctic Ocean Unscrambled,” 141.

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Russia and the United States have already concluded a maritime boundary beyond 200 M that is applicable between the two States if they are the only ones entitled to the relevant area. One could write a long legal and technical analysis and speculate in detail how Canada, Denmark (Greenland), the US and Russia will divide the Arctic seafloor. However, in the end, it is clear that almost every aspect of the outer limits of the continental shelf beyond 200 M in the Arctic will be solved through bilateral maritime boundary agreements with the flexibility inherent in the negotiations that lead to such agreements. Politics and diplomacy likely will be in the front seat. In 2016, Denmark rejected Russia’s call to decide swiftly a maritime boundary, insisting that the CLCS should f inish its task before the States enter into boundary negotiations.129 The wait could take years. It is possible that it will take decades to solve the remaining maritime boundary disputes in the Arctic, as is common with maritime boundaries.

The Antarctic The situation in Antarctica is very different from that in the Arctic. In fact, Antarctica is unlike any other place on earth because its territory is not separated into traditional political units.130 Claims to sovereignty in Antarctica are largely contested and a large sector of Antarctica has not been claimed by States. The issue of sovereignty is highly relevant for any discussion on maritime boundaries because maritime entitlements depend on territorial sovereignty over the coastal front. The following sections explore the legal regime governing the Antarctic, the presence of coastal States and practice in CLCS submissions. A distinction is drawn between States Parties to the Antarctic Treaty claiming territorial sovereignty on continental Antarctica and non-claimant States, opposing those assertions.131 A  further distinction will be made between States claiming maritime entitlements based on islands near Antarctica, as opposed to territory within Antarctica.

The Antarctic Treaty Several States made claims to territorial sovereignty when the Antarctic Treaty was concluded in 1959. In particular, Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom asserted territorial sovereignty over parts of the Antarctic continent.132 States Parties to the Antarctic Treaty agreed to freeze their claims to territorial sovereignty as they were at the entry into force on June 23, 1961. This reserved the claimant States’ positions, those potentially having sovereignty claims in Antarctica, and those opposed to such claims.133 Article IV provides, No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.134

129 Richard Milne, “Denmark Rejects Russia Call for Swift Talks on Arctic Rights,” Financial Times, September 12, 2016, accessed July 2, 2021, http://ft.com/cms/s/0/d1810bd4-77e5-11e6-97ae-647294649b28.html#axzz4K4fS2Ahf. 130 Scott, “Antarctic: Competing Claims and Boundary Disputes,” 148. 131 See Patrizia Vigni, “Territorial Claims to Antarctica,” Chapter 3 of this volume. 132 Ibid. 133 Antarctic Treaty Article IV; Bernard H. Oxman, “Antarctica and the New Law of the Sea” Cornell International Law Journal 19, no. 2 (1986): 211–47, 214. 134 Antarctic Treaty Article IV(2).

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The Antarctic Treaty never refers to maritime zones or coastal jurisdiction.135 Even so, maritime claims should be considered in conjunction with territorial claims subject to Article IV of the Antarctic Treaty because maritime claims only derive from legitimate claims to territory. This suggests that Article IV covers the claims to maritime zones that predate the Antarctic Treaty – the territorial sea and continental shelf. Less clear is whether claims to an EEZ and the continental shelf beyond 200 M fall subject to the Antarctic regime.136 The 1980 Convention on the Conservation of Antarctic Marine Living Resources137 incorporates many aspects of the Antarctic Treaty and expressly refers to “coastal state jurisdiction under international law.”138 It extends the application of Article IV to maritime claims,139 which further suggests that, in this context, maritime claims can be assimilated to claims of territorial sovereignty. Unsurprisingly, States take different positions on this issue. Non-claimant States maintain that EEZ claims and efforts to extend the continental shelf represent unlawful enlargements of existing claims. In contrast, States claiming sovereignty in Antarctica adopt an evolutionary interpretation to Article IV, arguing that it safeguards maritime claims flowing from sovereign territory under the current law of the sea.140

Are There Any Coastal States in Antarctica? The question “Who is the coastal State?” is essentially a question of, “Who holds territorial sovereignty?”141 After all, maritime entitlements derive from territorial sovereignty over the coastal front.142 Therefore, one could say that coastal States in Antarctica are those having sovereignty over coastlines that generate maritime entitlements within Antarctica. In other words, coastal States are those having sovereignty over either the Antarctic coast or sub-Antarctic islands whose maritime zones stretch into the Southern Ocean. However, it is no easy task to determine which States have sovereignty over coastlines generating maritime entitlements in Antarctica because territorial claims in the region are largely contested and/or frozen. The sub-Antarctic islands, in the area between 45° and 60° south, are Bouvet/Bouvetøya (Norway), Crozet (France), Heard and MacDonald (HIMI) (Australia), Kerguelen (France), Prince Edward and Marion (South Africa), South Georgia and the South Sandwich Islands.143 These islands generate maritime entitlements in the proximity of Antarctica and some even below the Antarctic convergence. The islands do not fall subject to the Antarctic Treaty regime, and therefore, their capacity to generate maritime entitlements is not subject to the restrictions imposed by the Antarctic Treaty. Indeed, States Parties have not specif ically challenged the right to claim maritime entitlements below 60° south if it extends from land that is beyond the scope of the Antarctic Treaty,

135 Oxman, “Antarctica and the New Law of the Sea,” 224. 136 Further, see Vigni, “Territorial Claims to Antarctica,” Chapter 3 of this volume. 137 Adopted May 20, 1980, entered into force April 7, 1982, 1329 UNTS 47. 138 Ibid., Article IV. 139 See Oxman, “Antarctica and the New Law of the Sea,” 216. 140 Vigni, “Territorial Claims to Antarctica,” Chapter 3 of this volume. 141 See Jill Barrett, “UNCLOS: A ‘Living’ Treaty?” in Law of the Sea: UNCLOS as a Living Treaty, eds. Jill Barret and Richard Barnes (London: The British Institute of International and Comparative Law, 2016), 3–40, 10–11; Chagos Marine Protected Area (Mauritius v United Kingdom) (2015) XXXI RIAA 359, 457–58, paras. 207–12. 142 Continental Shelf (Libyan Arab Jamahiriya/Malta) (judgement) [1985] ICJ Reports 13, 40–41, para 49. 143 Alan D. Hemmings and Tim Stephens, “The Extended Continental Shelves of Sub-Antarctic Islands: Implications for Antarctic Governance,” Polar Record 46, no. 4 (2010): 312–27, 314.

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and the CLCS has conf irmed that it can justify a claim to the continental shelf beyond 200 M in Antarctica.144 The sovereignty over these sub-Antarctic islands is undisputed, with one exception. The South Sandwich Islands are subject to a sovereignty dispute between Argentina and the United Kingdom. The islands are capable of generating a continental shelf that extends into the Southern Ocean, below 60° south. Argentina and the United Kingdom have claimed maritime entitlements on the basis of these islands and submitted relevant information to the UN secretary-general regarding their maritime limits.145 Still, they may not be able to establish f inal and binding continental shelf limits beyond 200 M because the CLCS is unable to review submissions concerning disputed territory without the express consent of both States.146 Sovereignty over the Antarctic coast is also contested. In fact, “[d]e jure sovereignty in Antarctica is shared.”147 If no State has territorial sovereignty over the Antarctic coast, there is no sovereign that can exercise jurisdiction over maritime zones.148 Article IV safeguards sovereignty claims asserted before the adoption of the Antarctic Treaty, but these were generally not recognised when the Treaty was adopted.149 Some States have categorically rejected claims to territorial sovereignty and a refusal to recognise territorial claims in Antarctica entails refusal of the validity of derived maritime claims.150 A lack of territorial sovereignty would mean that there are no coastal States in Antarctica,151 but several States have put forth maritime claims. If one concedes that the contested sovereignty claims in Antarctica bestow coastal State status on certain States, there still may be restrictions on which maritime zones can be claimed and how far seaward they can extend. Indeed, the law of the sea has evolved since 1959, but a contemporaneous interpretation of the Antarctic Treaty might freeze maritime claims because they occurred at the time of the treaty’s conclusion. However, the LOSC codif ied a new entitlement to an EEZ and extension of the territorial sea and continental shelf. Article IV of the Antarctic Treaty stipulates that “[n]o new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.”152 This could mean that the maritime claims of potential coastal States cannot extend beyond what was justif ied in 1959. Most signif icant, this means that no State could claim an EEZ (or an exclusive f isheries zone) in Antarctica.153 However,

144 Ibid., 315. 145 See United Kingdom of Great Britain and Northern Ireland, Proclamation (Maritime Zone) No. 1 of 1993, accessed November  15, www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFiLES/GBR_1993_Proclamation1. pdf; M.Z.N. 10. 1996. LOS of September 16, 1996, accessed November 15, www.un.org/Depts/los/LEGISLATION ANDTREATIES/PDFFiLES/mzn_s/mzn10.pdf. 146 See para. 5 of Annex I of Rules of Procedure of the Commission on the Limits of the Continental Shelf. CLCS, Doc. CLCS/40/Rev.1. (April 11, 2008). 147 Scott, “Antarctic: Competing Claims and Boundary Disputes,” 160. 148 Oxman, “Antarctica and the New Law of the Sea,” 222. 149 Ibid., 154; Karen N. Scott, “Managing Sovereignty and Jurisdictional Disputes in the Antarctic: The Next Fifty Years,” Yearbook of International Environmental Law 20, no. 1 (2010): 3–40, 4. 150 Vigni, “Territorial Claims to Antarctica,” Chapter 3 of this volume. See also Oxman, “Antarctica and the New Law of the Sea,” 222. 151 Oxman, “Antarctica and the New Law of the Sea,” 222. 152 Antarctic Treaty Article IV(2). 153 Scott, “Antarctic: Competing Claims and Boundary Disputes,” 159 referring to FM Auburn, Antarctic Law and Politics (London: C Hurst & Co, 1982), 104; Arthur Watts, International Law and the Antarctic Treaty System (Cambridge: Grotius, 1992), 124; Stuart B. Kaye and Donald R. Rothwell, “Southern Ocean Boundaries and Maritime Claims: Another Antarctic Challenge for the Law of the Sea?” Ocean Development and International Law 33 (2002): 359–89, 380.

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one could also perceive that this provision has no bearing on maritime claims because those claims do not qualify as claims to territorial sovereignty.154 The entitlement to a continental shelf and territorial sea predates the Antarctic Treaty. The coastal front of Antarctica, before the Antarctic regime was agreed upon, generated such entitlements. After all, States are entitled to a territorial sea without any proclamation to that end,155 and the entitlement to a continental shelf exists ipso facto and ab initio as an extension of the land territory.156 Still, the lack of clear sovereignty over the territory in Antarctica may now affect historic maritime entitlements’ legitimacy. At least, States could be expected to demonstrate the presence of sovereign rights to maritime zones to prevent their expiration.157 Out of the potential coastal States in Antarctica, Australia seems to have been most diligent in asserting its maritime entitlements because it has claimed a territorial sea, contiguous zone, EEZ and continental shelf extending from the Antarctic coast.158 Yet these entitlements seem to rest on weak foundations because Australia has refrained from exercising relevant jurisdiction over foreign vessels in the absence of expressed consent.159

Practice in CLCS Submissions States that potentially have maritime entitlement in Antarctica must clarify the extent of their title as they relate to the continental shelf beyond 200 M.160 They must submit relevant data to the CLCS to establish these limits, and they must do so within ten years after they became bound by the LOSC or by May 13, 2009.161 Preliminary submissions can suff ice to halt the ten-year deadline.162 This deadline for CLCS submissions forces States to directly address sovereign maritime claims in Antarctica and their connection to Article IV of the Antarctic Treaty.163 An Antarctic claimant State’s submission to the CLCS that concerns Antarctica may be inconsistent with Article IV(2) of the Antarctic Treaty. On the other hand, a claimant State’s failure to make a submission to the CLCS might be tantamount to surrendering it.164 This has posed a time-sensitive dilemma for Antarctic claimant States, but Australia found a solution that preserved the status quo Article IV of the Antarctic Treaty requires.165 Australia made a submission to the CLCS in 2004 but requested that the CLCS refrain from issuing recommendations concerning the continental shelf

154 Scott, “Antarctic: Competing Claims and Boundary Disputes,” 160. 155 John E. Noyes, “The Territorial Sea and Contiguous Zone,” in The Oxford Handbook of the Law of the Sea, eds. Donald Rothwell, Alex Oude Elferink, Karen Scott, and Tim Stephens (Oxford: Oxford University Press, 2016), 91–113, 94. 156 UNCLOS article 77(3); North Sea Continental Shelf Cases (n 11) 22, para. 19. 157 Scott, “Antarctic: Competing Claims and Boundary Disputes,” 156. 158 Ibid., 157. See Commonwealth of Australia Gazette No. 56 of 1953 (September 11, 1953), 2563, reprinted in Bush, note 12, vol. 2, 172–73; Commonwealth of Australia Gazette No S 297 (November 13, 1990), reprinted in Australian Year Book of International Law 13 (1992): 278. 159 Scott, “Antarctic: Competing Claims and Boundary Disputes,” 157, referring to Australian Attorney-General, Outline of Submissions of the Attorney-General of the Commonwealth as Amicus Curiae in Humane Society International v. Kyodo Senpaku Kaisha in the Federal Court of Australia, No. NSD 1519 of 2004, para. 16. 160 UNCLOS Article 76(8). 161 See UNCLOS Annex II, Article 4; UNCLOS, Meeting of States Parties May 29, 2001, UN Doc. SPLOS/72. 162 See UNCLOS, Meeting of States Parties June 20, 2008, UN Doc. SPLOS/183. 163 Scott, “Managing Sovereignty and Jurisdictional Disputes in the Antarctic,” 7, 17. 164 Ibid., 17. 165 Scott, “Antarctic: Competing Claims and Boundary Disputes,” 157, referring to Peter Willetts, “Delimitation of the Argentine Continental Shelf,” South Atlantic Council Occasional Papers, no. 14, 2016, accessed June 29, 2021, www.staff. city.ac.uk/p.willetts/SAC/OP/OP14UPDT.PDF, 11.

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in Antarctica.166 Norway followed the same approach in 2009167 as did Argentina in 2016.168 New Zealand, the United Kingdom and France applied a different methodology, making partial submissions excluding Antarctica but reserving their right to make future submissions.169 Chile made a submission relating to the continental shelf of Easter Island Province on December 21, 2020, but it has not been presented to the CLCS at the time of this writing;170 thus, it is unclear which approach was adopted. The international community and States Parties to the Antarctic Treaty have not provided very detailed responses to the Antarctic submissions.171 The States’ responses have nevertheless contained a common thread. First, they wish for the LOSC and the Antarctic system to work in harmony.172 Second, they express that the responding State, in line with Article IV of the Antarctic Treaty, does not recognise any State’s right to territorial sovereignty in the Antarctic area and, consequently, over the continental shelf of the submarine areas adjacent to the continent of Antarctica.173 Third, the responding State notes that it expects that the CLCS will not take any action with respect to the section of the coastal States’ submission regarding the continental shelf of the areas adjacent to the continent of Antarctica.174 A similar response to the same issue is to acknowledge with appreciation the submitting State’s request to the CLCS “that it not take any action on the portion of its submission relating to continental shelf adjacent to Antarctica.”175 It is safe to assume that sub-Antarctic islands can generate entitlements to the continental shelf beyond 200 M in the Antarctic Treaty area.176 Indeed, the CLCS has issued recommendations concerning Australia’s continental shelf beyond 200 M and conf irmed the legitimacy of claims generated by Heard and MacDonald and Macquarie islands in the Antarctic Treaty area.177 Therefore, sub-Antarctic territory should be distinguished from territory within the Antarctic Treaty area. However, the CLCS can only consider submissions concerning undisputed territory, which explains

166 CLCS, “Fifteenth Session,” 2005, UN Doc. CLCS/44, para. 23. 167 CLCS, “Twenty-f ifth Session,” 2010, UN Doc. CLCS/66, para. 41; see also Scott, “Managing Sovereignty and Jurisdictional Disputes in the Antarctic,” 17 and Scott, “Antarctic: Competing Claims and Boundary Disputes,” 158. 168 CLCS, “Forty-third Session,” 2017, UN Doc. CLCS/98, para. 77; see also Scott, “Antarctic: Competing Claims and Boundary Disputes,” 158. 169 CLCS, “Eighteenth Session,” 2006, CLCS/52, Item 7; CLCS, “Twenty-second Session,” 2008, UN Doc. CLCS/60, Item 10; CLCS, “Twenty-f ifth Session” (166) Item 9; see also Scott, “Managing Sovereignty and Jurisdictional Disputes in the Antarctic,” 18 and Scott, “Antarctic: Competing Claims and Boundary Disputes,” 158. 170 “Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, pursuant to article 76, paragraph 8, of the United Nations Convention on the Law of the Sea of December 10, 1982,” CLCS, 2021, accessed June 29, 2021. 171 Scott, “Antarctic: Competing Claims and Boundary Disputes,” 158. 172 See e.g. Note Verbale of the Permanent Mission of the United States of America to the Secretary General of the United Nations (June 4, 2009); Note Verbale of the Permanent Mission of Germany to the United Nations (April 5, 2005) Note no. 88/2005. 173 See e.g. Note Verbale of the Permanent Mission of India to the Secretary General of the United Nations (July 5, 2005) No.NY/ PM/443/1/98; Note Verbale of the Permanent Mission of the Kingdom of the Netherlands to the United Nations (September 30, 2009) No. NYV/2009/2459. 174 See e.g. Note Verbale of the Permanent Mission of the Russian Federation to the United Nations (August  24, 2009) No. 2282/N; Note Verbale of the Permanent Mission of Japan to the United Nations (November 19, 2009) SC/09/390. 175 See e.g. Note Verbale of the Permanent Mission of the Kingdom of the Netherlands to the United Nations (September 30, 2009) NYV/2009/2458; Note Verbale of the Permanent Mission of the Russian Federation to the United Nations (December 9, 2004) No. 739/n; 176 Hemmings and Tim Stephens, “The Extended Continental Shelves of Sub-Antarctic Islands: Implications for Antarctic Governance,” 314–15. 177 Ibid., 314, referring to Summary of the recommendations of the Commission on the Limits of the Continental Shelf in regard to the submission made by Australia on November 15, 2004. New York: CLCS, 14–15.

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why the CLCS decided not to address the continental shelf beyond 200 M put forth by Argentina and the United Kingdom extending from the South Sandwich Islands.178 Clearly, the CLCS may be expected to need several years, probably decades, to review and issue recommendations on all the submissions made thus far.179 Therefore, whether and to what extent the continental shelf beyond 200 M will give rise to maritime delimitation in Antarctica remains to be seen.

Conclusion The Arctic States have been quite successful in delimiting their overlapping maritime claims within 200 M of their baselines. There are several instances of overlapping maritime claims in the Arctic, and all but one have been agreed upon within 200 M, at least partially. The maritime boundary that remains disputed within 200 M is in the Beaufort Sea between Canada and the United States. While the United States maintains that the boundary is un-delimited, Canada submits that the 1825 Treaty concerning Alaska’s border also delimits a maritime boundary. The situation is more complex beyond 200 M from baselines and overlapping entitlements to the continental shelf beyond 200  M in the Arctic Ocean and remains unresolved. However, despite various assertions about a rush for Arctic resources or a scramble for the Arctic, the States involved are engaged in a constructive process, following the procedures set out in the international law of the sea. The Arctic States generally have adopted methodologies the international courts and tribunals developed, but they also applied some novel approaches. Political factors complicate negotiating maritime boundaries, and consequently these negotiations often depart from the transparent process and neutral criteria relied upon in judicial proceedings. Most of the Arctic region’s maritime boundaries were concluded without third-party involvement with only two exceptions. The dispute concerning the continental shelf and f isheries zone boundary between Norway and Denmark was submitted to the ICJ, and the agreement concerning the continental shelf between Iceland and Norway was concluded on the basis of recommendations of a Conciliation Commission. Maritime delimitation in Antarctica has not been as straightforward. This is due to the complicated and unusual state of sovereignty in the region. Claims to territorial sovereignty in Antarctica are generally contested, and the Antarctic Treaty imposes restrictions on increasing claims to sovereignty. This may affect the validity of maritime claims because they are only generated by a coastal front and afforded to sovereign coastal States. If there are no coastal States with full sovereignty in Antarctica, then there are no maritime entitlements to delimit. Still, States claiming sovereignty over various parts of the Antarctic coastline have put forth unilateral maritime claims, which have been addressed in submissions to the CLCS and the CLCS has conf irmed the presence of entitlements to the continental shelf beyond 200  M in Antarctica, extending from sub-Antarctic islands. It remains to be seen whether those claims will give rise to maritime delimitation in Antarctica, but at present, it is the only continent with no delimited maritime boundaries.

178 CLCS, “Twenty-fourth Session,” 2005, UN Doc. CLCS/64, paras. 76–77. 179 Alex G. Oude Elferink, “The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?” Netherlands Yearbook of International Law 40 (2009): 121–81, 133.

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6 THE JURISDICTION OF COASTAL STATES IN ICE-COVERED WATERS Suzanne Lalonde and Ted L. McDorman

Introduction Polar ocean areas, in particular the Arctic Ocean, have been at the forefront of global attention for over a decade. Much of this attention relates to national jurisdictional claims and maritime boundaries, frequently framed around the image of a “race” ’ for the resources. This is not the view, however, of the Arctic Ocean littoral States (Canada, Denmark [vis-à-vis Greenland], Norway, the Russian Federation and the United States) as was made clear in the 2008 Ilulissat Declaration: [T]he law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientif ic research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims. This framework provides a solid foundation for responsible management by the f ive coastal States and other users of this Ocean through national implementation and application of relevant provisions. We therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.1 These f ive States, plus Iceland, have over a long period asserted and exercised their coastal State jurisdictional rights in the Arctic pursuant to the 1982 United Nations Convention on the Law of the Sea (LOSC),2 to which all of these States, with the exception of the United States, are parties. Thus, the Arctic States have claimed 12 nautical miles (M) territorial seas with the exception of the Greenland territorial sea. They have also claimed 200 M exclusive economic zones (EEZs) and have, where possible, asserted their rights over continental shelf areas beyond 200 M.3

1 Ilulissat Declaration, adopted May 28, 2008 (2009), 48 ILM 362. 2 Adopted December 10, 1982, entered into force November 14, 1994, 1833 U.N.T.S. 397 [LOSC]. 3 See LOSC, Articles 3, 57 and 76. It should be noted that according to Order No. 191 of May 27, 1963, on the Delimitation of the Territorial Sea of Greenland, Greenland’s territorial, sea is limited to 3 M. The Order is available on the DOI: 10.4324/9781003404828-8 84

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As elsewhere in the world, there are disputes and uncertainty over the precise location of these zonal areas as they are all based on the construction of baselines concerning which there are differences of views and interpretation.4 And there are overlapping claims – maritime boundary disputes.5 The primary focus of this chapter is on Article 234, titled “Ice-covered Areas,” which is the only provision in the LOSC that specif ically applies to Arctic/polar waters. It is also the sole provision in section 8 of Part XII, “Protection and Preservation of the Marine Environment” of the Convention. Under Article 234: Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientif ic evidence. The primary approach of this chapter is “episodic” and “political” – a story. The framework “episodes” are • Canada’s enactment of the 1970 Arctic Waters Pollution Protection Act (AWPPA);6 • the negotiation of Article 234 at the Third UN Conference on the Law of the Sea (UNCLOS III); • the 2010 Canada NORDREG controversy at the International Maritime Organization (IMO); and • Russia’s ambitious development of the Northern Sea Route (NSR). Breaking from this approach are the f inal two sections that look at two specif ic legal questions concerning Article 234: • In light of the effects of global climate change on ice conditions in the polar regions, may Article 234 at some point have no application? • Does Article 234 apply to Antarctica, which is part of the larger question, does the LOSC apply in Antarctica given the controversy over the existence (or not) of coastal States? The history of Article of 234 and the subsequent controversies concerning the application and interpretation of the Article have often been tied to or had in the background the navigational regimes of the international law of the sea, in particular, the regime applicable to vessel passage in straits used for international navigation set out in the 1958 Territorial Sea and Contiguous Zone

Ecolex website at: www.ecolex.org/details/legislation/order-on-the-delimitation-of-the-territorial-sea-of-greenlandorder-no-191-of-1963-lex-faoc032395/. 4 See Chapter 4 of this volume. 5 See Chapter 5 of this volume. 6 Arctic Waters Pollution Prevention Act, Revised Statutes of Canada 1985, ch. A-12, as amended.

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Convention7 and Part III of the LOSC8 and the regime of historic waters based on customary international law9 and their application as regards the Canadian waters of the Northwest Passage and certain Russian waters of the Northern Sea Route.

The 1970 Arctic Waters Pollution Protection Act (AWPPA) Article 234 emerged as the result of the sharp difference of views between Canada and the United States regarding Canada’s legal authority to control US commercial vessel traff ic in Arctic waters asserted to be Canadian. The controversy arose in 1969–70 when test voyages were conducted to evaluate the technical and economic feasibility of moving oil by tankers from the US north (Alaska) through Arctic waters adjacent to Canada and on to ref ineries on the US east coast.10 More pointedly, the international legal dispute centred on whether or not the Northwest Passage was an international strait with the accompanying right of unimpeded vessel transit, as asserted by the United States.11 Within Canada, the legal dispute became an intense and very public political issue concerning national sovereignty in the Arctic in the face of the United States’ unwillingness to ask for Canada’s consent for the voyage of a US commercial vessel. It is interesting to note that, despite the opposing legal positions of the two governments, the vessel engaged in what has been described as “practical co-operation,” which included having a Canadian Coast Guard ice-breaker escort and a Canadian government off icial with Arctic navigation experience onboard the US vessel.12 Seeking a legal-political middle ground between minimal coastal State authority over foreign vessels and the more extensive authority based on historic waters, Canada adopted the 1970 Arctic Waters Pollution Prevention Act (AWPPA). The legislation relied on the so-called “functionalist approach” and asserted the authority of Canada to establish and enforce vessel safety and environmental standards within a 100 M pollution protection zone. A key feature of the AWPPA was the absence of a requirement for vessels to obtain the permission of Canada, thus directly avoiding the US sensitivities respecting navigational rights in international straits, without conceding Canada’s rights regarding the Northwest Passage. The adoption of the AWPPA in 1970 calmed the political “sovereignty” storm within Canada, though the act only came into force in 1972 following consultations with other States and stakeholders regarding the detailed vessel standards.13 The asserted 100 M pollution protection zone in

7 Convention on the Territorial Sea and Contiguous Zone, adopted April 29, 1948, entered into force September 10, 1964, 516 U.N.T.S. 205. 8 LOSC, Articles 34–45. 9 See Clive R. Symmons, Historic Waters and Historic Rights in the Law of the Sea: A Modern Reappraisal, 2nd ed. (Leiden and Boston: Brill and Nijhoff, 2019). 10 See, generally, Ted L. McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (New York: Oxford University Press, 2009), 67–74. 11 There is a rich literature concerning the legal status of the Northwest Passage. See, for example, McDorman, Salt Water Neighbours, 225–30; Donat Pharand, “Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law 38, no. 1/2 (2007): 3–69; Suzanne Lalonde, “The Northwest Passage,” in Canada and the Maritime Arctic: Boundaries, Shelves and Waters, eds. P. Whitney Lackenbaeur and Suzanne Lalonde (Peterborough: Trent University, 2020) 107–61; and note “The Potential-Use Test and the Northwest Passage,” Harvard Law Review 133 (2020): 2579. See also Chapter 7 of this volume. 12 I. L. Head and P. E. Trudeau, The Canadian Way: Shaping Canada’s Foreign Policy (Toronto: McClelland and Stewart, 1995), 28; J. Kirton and D. Munton, “The Manhatten Voyages and Their Aftermath,” in Politics of the Northwest Passage, ed. F. Griff iths (Montreal: McGill-Queens Press, 1987), 71–73. 13 McDorman, Salt Water Neighbours, 74.

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1970 predated the international acceptance of 200 M exclusive economic zones and arrived at a time when the United States was vigorously contesting claims to 200 M “patrimonial seas” by certain Latin America States. Not surprisingly, the United States reacted strongly to Canada’s Arctic Waters legislation clearly concerned, in part, with the potential ramif ications of a 100 M zone precedent being established by its neighbour. One of the flurry of US diplomatic notes at the time captures this point: [O]ur efforts to limit extensions of coastal State sovereignty over the high seas worldwide will be damaged when other nations see that a country – physically, politically and economically – as close to the United States as Canada feels it can undertake such action in the face of United States opposition.14

The Third United Nations Conference on the Law of the Sea The 1970 AWPPA also arrived during the pre-negotiations of what was to be the LOSC.15 At and prior to the UNCLOS III, Canada sought international legal support for the AWPPA. Article 234 has been described as “one of the few provisions . . . the terms of which were directly negotiated by the States concerned . . . and incorporated without opposition” into what was to become the LOSC.16 Article 234 was negotiated by Canada, the Soviet Union and the United States. A 1974 US State Department Message reports that the Soviet Union had indicated that the “Arctic question was to be kept out of ” UNCLOS III as it was “not possible to separate land and maritime interests in the Arctic.”17 As this became politically less feasible, the Soviet Union sided with Canada vis-à-vis the United States on many of what were to become the elements of Article 234.18 Solski has summarised that “Article 234 suited the political goals of the Soviet Union, once it became apparent that the USSR could not avoid the question of the Arctic at UNCLOS III.”19 As between Canada and the United States, US acceptance of Article 234 was contingent on Canadian support for the international straits regime in the LOSC.20 Canada provided this support

14 Note from the [United States] Secretary of State to the Embassy of Canada, April 14, 1970, in Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States) ICJ Pleadings) Oral Arguments, Documents (Gulf of Maine Pleadings) vol. 5, Annex 8 to Reply to the United States, 529–39 and 535–37. See, McDorman, Salt Water Neighbours, 72. 15 For recent detailed reviews of the negotiation of Article 234 during the UNCLOS III, see Jan Jakub Solski, “The Genesis of Article 234 of the UNCLOS,” Ocean Development and International Law 52, no. 1 (2021): 1–19; James Kraska, “Governance of Ice-Covered Areas: Rule Construction in the Arctic Ocean,” Ocean Development and International Law 45, no. 3 (2014): 260–71. See also Donald McRae, “The Negotiation of Article 234,” in Politics of the Northwest Passage, ed. Franklyn Griff iths (Montreal: McGill-Queens University Press, 1987), 98–114. 16 Shabtai Rosenne and Alexander Yankov, United Nations Convention on the Law of the Sea 1982: A Commentary, vol. IV (Dordrecht: Nijhoff, 1991), 393. 17 Message from the US Embassy in London to the U.S. Department of State, Secretary of Defense, Secretary of State, “LOS: Regional Pollution Agreement for Arctic,” Conf idential message, May 3, 1974, Declassif ied and released, U.S. State Department June 30, 2005. See Solski, “The Genesis of Article 234,” footnote 74. 18 See, generally, Solski, “The Genesis of Article 234,” 14. 19 Ibid., 18. 20 See Kraska, “Governance of Ice-Covered Areas,” 265.

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with the unstated caveat that the Northwest Passage did not meet the criteria of being an international strait. A key feature of Article 234 is that it is the only provision in the LOSC that permits a coastal State to adopt and enforce within its 200 M zone national laws and regulations with more stringent standards for vessels than the existing internationally accepted rules.21 Put a different way, coastal State vessel-standard regulations adopted pursuant to Article 234 are not subject to the approval of the IMO, the body with the responsibility to develop and approve safety and environmental standards for vessels. This was an important issue for the Soviet Union22 and has been described as “one of the certitudes” of Article 234.23 Other fundamental components of the laws and regulations adopted pursuant to Article 234 are that • • • •

warships and other government vessels are exempted from the laws;24 the laws are to be non-discriminatory; the laws are to be “based on the best available scientif ic evidence”; and the laws “shall have due regard to navigation.”25

The provision is not without ambiguity. It has been colourfully described as “a witch’s brew, a caldron of legal uncertainty.”26 As has been written by Molenaar, the LOSC “does not explicitly address the scenario of waters that are both subject to Article 234 and the regime of transit passage, that attaches to international straits.”27 The author indicates, however, that academic opinion supports the “dominance of Article 234 over transit passage.”28 This may well be the case as regards commercial vessels, but it is less likely to apply to warships and State vessels, given the exemption to Article 234 set out in Article 236 for sovereign immune vessels. This has been described as “the greatest uncertainty” of Article 234.29 The proviso that “laws and regulations shall have due regard to navigation” imposes an uncertain degree of limitation on what “laws and regulations” a coastal State may adopt under Article 234.30 A broad understanding that “due regard to navigation” means regard as to navigational rights, such as innocent passage, transit passage or navigational high seas rights in the 200 M EEZ, would trump or completely circumscribe coastal State rights under Article 234. It is to be noted that unlike other “due regard” provisions in the LOS Convention,31 the “due regard” wording in Article 234 is tied

21 Rosenne and Yankov, UN Convention on the Law of the Sea, 393. 22 Solski, “The Genesis of Article 234,” 13. 23 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, no. 1/2 (2011): 37. 24 LOSC, Article 236. 25 Ibid., Article 234. 26 Cynthia Lamson and David VanderZwaag, “Arctic Waters: Needs and Options for Canadian-American Cooperation,” Ocean Development and International Law 18, no. 1 (1987): 81. 27 Erik J. Molenaar, “The Arctic, the Arctic Council, and the Law,” in Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States, eds. Robert C. Beckman et al. (Leiden and Boston: Brill Nijhoff, 2017), 36–37. 28 Ibid. 29 Armand de Mestral, “Article 234 of the United Nations Convention on the Law of the Sea: Its Origins and Its Future,” in International Law and Politics of the Arctic Ocean; Essays in Honor of Donat Pharand, eds. Suzanne Lalonde and Ted L. McDorman (Leiden and Boston: Brill and Nijhoff, 2015), 123. 30 See, in detail, Bartenstein, “The Arctic Exception,” 21 and generally, 20–24. See also R. Douglas Brubaker, The Russian Arctic Straits (Leiden and Boston: Nijhoff, 2005), 56–57. 31 LOSC, Articles 56(2) and 58(3).

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to “navigation” rather than being tied to “navigational rights.” Bartenstein has concluded that there is neither express nor implied support for the view that “due regard to navigation” in Article 234 refers to any of the navigational rights regimes found in the LOS Convention.32 She argues that “due regard” refers to “the reasonableness of the coastal state’s measures with respect to the needs of international navigation”33 and that the “due regard” phrase suggests that what was envisioned was a sui generis navigational regime for Arctic waters.34 She describes the coastal State – navigation balance in Article 234 as follows: Due regard has to be paid to the navigation as well as to the protection and preservation of the marine environment. Hence, linking navigational and environment considerations in this clause seems to indicate that the balance struck can, and even should, be different from the balance struck in the innocent passage and the transit passage regimes, giving relatively greater weight to environmental considerations.35 This appears to be the approach taken by Canada, as noted in the next section. The United States has articulated its understanding of Article 234 as follows: The purpose of article 234 . . . is to provide the basis for implementing the provisions applicable to commercial and private vessels found in the 1970 Canadian Arctic Waters Pollution Prevention Act . . . while protecting fundamental U.S. security interests in the exercise of navigational rights and freedom throughout the Arctic.36 Rosenne and Yankov make the same observation, with the additional footnote that Canada’s Arctic legislation “was widely regarded as being in violation of international law” when enacted.37 The United States has explicitly accepted that Article 234 is part of customary international law.38

The 2010 Canada NORDREG Controversy In 2010, Canada expanded its Arctic waters pollution prevention zone from 100 M to 200 M and made mandatory what had long been voluntary, that most non-government vessels entering into the Northern Canada Vessel Traff ic Services Zone (NORDREG), which covers Canada’s Arctic EEZ, are to report to and receive clearance from Canadian authorities.39

32 Bartenstein, “The Arctic Exception,” 21. See also Kristin Bartenstein, “Between the Polar Code and Article 234: The Balance in Canada’s Shipping Safety and Pollution Prevention Regulations,” Ocean Development and International Law 50, no. 4 (2019): 350–51. 33 Bartenstein, “The Arctic Exception,” 20. 34 Ibid., 24. 35 Ibid., 45. 36 United States, “Commentary – The I982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part XI,” attached to “Message from the President transmitting United Nations Convention on the Law of the Sea, U.S., Senate Treaty Document 39, 103d Congress, 2d. Session IV (1994),” 40. 37 Rosenne and Yankov, UN Convention on the Law of the Sea, 398, footnote 7. 38 Brian Hoyle, “The United States Government Perspective,” in The United States without the Law of the Sea Treaty: Opportunities and Costs, ed. Lawrence Juda (Wakef ield, Rhodes Island: Times Press, 1983), 35. 39 Northern Canada Vessel Traff ic Services Zone Regulations and Order Amending the Shipping Safety Control Zones Order, Canada Gazette Part 11, Vol. 144, No. 13, June 23, 2010. Since 1977, Canada had a voluntary ship reporting system in place for Canada’s Arctic waters up to 100 M. This section draws, with modif ications, from Ted L. McDorman, “National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada,” in The Law

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The Canadian measure resulted in questions and concerns raised by the United States and several other States as to whether the revised regulations were consistent with the rights afforded to Arctic States under Article 234. The direct response of the United States was that the obligation to obtain clearance constituted a requirement for permission to enter and transit Canada’s waters which was not supported by Article 234.40 At the IMO, the United States indicated that it did not believe that the new Canadian northern zone regulations were consistent with key law of the sea principles related to freedom of navigation, including the right of innocent passage and the right of transit passage through straits used for navigation.41 The United States proposed that the IMO Maritime Safety Committee (MSC) should • “determine” that Canada’s NORDREG system has not been established in a manner consistent with the applicable IMO requirements for a “mandatory ship reporting and vessel traff ic services system”; • recommend that ships comply with the NORDREG system on a voluntary basis; and • “request” Canada to submit an appropriate proposal to IMO if it wishes to make “its ship reporting and vessel traff ic services systems mandatory.”42 It is to be noted, however, that the United States expressly supported “Canada’s intention to provide for the safety of navigation” in the Arctic area.43 In its submission to the MSC, Canada asserted that Article 234 provided “a complete legal justif ication in international law for NORDREG,”44 such that Canada was under no obligation to bring the NORDREG system before the IMO for assessment or approval. It was pointed out that in October 2010, Canada had provided detailed information to the IMO on the NORDREG ship reporting system and that in this document Canada formally sought the “recognition” of the system by the IMO.45 Canada requested the MSC to “support” the NORDREG initiative.46 The invocation by Canada of Article 234 as a “complete legal justif ication in international law for NORDREG” marked the f irst time that Canada had directly relied upon Article 234 to support a new initiative in Canada’s Arctic waters.

of the Sea Convention: US Accession and Globalization, ed. Myron H. Nordquist et al. (Leiden and Boston: Nijhoff, 2012), 409–24. See also James Kraska, “The Northern Canada Vessel Traff ic Services Zone Regulations (Nordreg) and the Law of the Sea,” International Journal of Marine and Coastal Law 30 (2015): 225–54. See also Chapter 7 of this volume. 40 United States, “Diplomatic Note,” August 18, 2010, para. 4 and United States Embassy, “Letter to Canadian Department of Transport,” March 19, 2010, para. 4, in Digest of United States Practice in International Law, 2010 (Oxford: Oxford University Press, 2010), 515–18. 41 IMO, Sub-Committee on Safety of Navigation, “Report to the Maritime Safety Committee,” Doc. NAV/56/20, August 31, 2010 (Report of the 56th session of the Sub-Committee), para. 19.21. 42 Ibid., para. 10. For an overview of vessel traff ic management in the LOS Convention and at the IMO, see Ted L. McDorman, “Canada’s Vessel Traff ic Management Regime: An Overview in the Context of International Law,” in The Regulation of International Shipping: International and Comparative Perspectives, eds. Aldo Chirocop et al. (Leiden and Boston: Martinus Nijhof, 2012), 511–15. 43 IMO, “Report to the Maritime Safety Committee,” para. 2. 44 Canada, “Comments on Document MSC 88/11/2,” IMO Doc. MSC/88/11/3, October 5, 2010, para. 5. 45 Canada, “Information on the Mandatory Canadian Ship Reporting System in Canada’s Northern Waters (NORDREG),” IMO Doc SN.l/Circ.291, October 5, 2010. 46 Canada, “Comments,” para. 12.

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The MSC meeting report indicates that Germany, while supporting Canada’s intentions, “shared the views and concerns expressed by the United States,” in particular, that mandatory ship reporting systems and vessel traff ic services had to be assessed through the IMO processes as the IMO was “the only competent organization” to deal with such matters.47 Only Singapore made direct reference to Article 234. In its statement, Singapore commented, [I]t is not readily apparent how the mandatory ship reporting and VTS system established under NORDREG ties in with the fundamental purpose of Article 234 . . . , which is to allow for the prevention, reduction and control of marine pollution. The need for such a mandatory system should be supported by the best available evidence. Even though Article 234 allows the coastal State to impose measures that would prevent, reduce and control marine pollution, these are to be done with “due regard to navigation.” It is, however, not clear to my delegation how the proposed requirement for clearance would adequately give “due regard to navigation.”48 Canada asserted that as NORDREG promoted safe and eff icient navigation, the system was not problematic under “due regard to navigation.”49 The chair of the MSC summarised that “a majority of delegations had expressed appreciation for Canada’s efforts while a number expressed the view that Canada should have submitted its proposal to the Organization.”50 On the substance of the discussions, the chair • indicated it was “a legal issue” that was not under the purview of the MSC; • encouraged the respect of the relevant IMO guidelines; and • noted that the documents highlighted “ongoing bilateral discussions.”51 The revised NORDREG has been in operation for a decade without public controversy or being revisited at the IMO.

Article 234 and the IMO Polar Code Article 234 received little attention during the negotiation of the IMO Polar Code if, for no other reason, that the principal discussions in the working group concerned highly technical marine engineering and related matters.52 Canada was concerned not to have any aspect of the Polar Code interfere with or undermine its Arctic legislation and the rights under Article 234. There was also a sense that Canada and the United States did not wish to have a public replay of the 2010 NORDREG controversy.

47 IMO, “Report of the Maritime Safety Committee on Its Eighty-Eighth Session,” IMO Doc MSC 88/26, December 15, 2010, para 11.35. 48 Singapore, “Statement to MSC,” Ibid., para. 11.36. 49 Canada, “Comments,” para. 5. 50 IMO, “Report of the 88th Session,” para. 11.39. 51 Ibid. 52 International Code of Safety for Ships Operating in Polar Waters Resolution, MSC.385(94), Adopted on November 21, 2014, Report of the Marine Safety Commission on Its Ninety-Fourth Session, MSC 94/21/Add. 1, Annex 6. Entered into force January 1, 2017. For the Polar Code, see also Chapters 7 and 19 of this volume.

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While the Polar Code exists as a single document, it is composed of a number of amendments made to the International Convention for the Prevention of Pollution from Ships (MARPOL Convention)53 and the addition, through an amendment, of a new chapter to the International Convention for the Safety of Life at Sea (SOLAS Convention).54 The result is that Part I-A and B of the Polar Code is a new Chapter XIV of the SOLAS Convention and Part II-A and B of the Polar Code involves amendments to the MARPOL Convention. While not explicitly in the Polar Code document, the Resolution of adoption of the amendments to the SOLAS Convention contains Regulation 2(5), which is now part of the SOLAS Convention. This regulation deals with the application of the new Chapter XIV and states, “Nothing in this chapter shall prejudice the rights and obligations of States under international law.”55 Regulation 2(5) is designed to deal with the question of the relationship between the new chapter of the SOLAS Convention in the Polar Code and the rights of coastal States under Article 234, with the wording indicating that Article 234 rights take precedence. The MARPOL Convention Article 9(2)56 is understood to have the same legal effect.57 While recognising this,58 Chircop notes that the relationship between the Polar Code and Article 234 should be seen as “complementary, because Article 234 assumes that international standards and rules apply” but “provides coastal states with the power to elevate those standards further. . . .”59

VI. Russia and the Northern Sea Route Legal Regime As noted earlier, the Soviet Union played a signif icant role in the development of the content of Article 234. However, Russia has not been as clear or as vocal as Canada respecting the relationship between its national legislation and Article 234.

53 International Convention for the Prevention of Pollution from Ships (MARPOL), November 2, 1973, and 1978 Protocol of Amendment, February 17, 1978, 1340 U.N.T.S. 61. IMO Resolution MEPC.265 (68), May 15, 2015, amends the MARPOL Convention. 54 International Convention for the Safety of Life at Sea (SOLAS), November 1, l 974, 1184 U.N.T.S. 2. IMO Resolution MSC.386 (94), November 21, 2014, amends the SOLAS Convention by adding a Chapter XIV to the SOLAS Convention. 55 IMO Resolution MSC.386 (94), Regulation 2(5). 56 MARPOL, Article 9(2): Nothing in the present Convention shall prejudice the codif ication and development of the law of the sea by the United Nations Conference on the Law of the Sea . . . , nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.

On June 30, 2016, Canada communicated a Declaration to the IMO concerning the Polar Code amendments of/to MARPOL reaff irming the declaration made when Canada became a party the MARPOL Convention and indicating, in effect, Canada’s view that Article 234 supersedes the MARPOL Convention. See IMO, “Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions as of May 27, 2021,” at p. 170, available on the IMO website at: www.imo.org/ en/About/Conventions/Pages/StatusOfConventions.aspx. 57 See, generally, T. L. 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 International Law and Politics of the Arctic Ocean, eds. Suzanne Lalonde and T. L. McDorman (Leiden: Brill and Nijhoff, 2015), 141–59. 58 Aldo Chircop, “Jurisdiction Over Ice-Covered Areas and the Polar Code: An Emerging Symbiotic Relationship?” Journal of International Maritime Law 22, no. 4 (2016): 275, 287. 59 Ibid., 283.

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It appears that the f irst specif ic international reference to Article 234 as supporting the Russian Northern Sea Route legislative regime came in 2013 when the Netherlands’ vessel Arctic Sunrise entered the Northern Sea Route without the necessary permission under national Russian law.60 The vessel was boarded by Russian off icials, who indicated that the denial of permission to enter “included express reference to rules of navigation for the area enforced in accordance with Article 234 of the Convention.”61 Violation of the Rules of navigation in the water area of the Northern Sea Route, adopted and enforced by the Russian Federation in accordance with article 234 of the United Nations Convention of the Law of the Sea, 1982: navigation in the water area of the Northern Sea Route without the permission of the Northern Sea Route Administration, as well as actions in this creating potential threat of marine pollution in the water area of the Northern Sea Route, ice-covered for most part of the year.62 Solski comments that this 2013 communication indicates a shift by Russian authorities to reliance on Article 234 rather than history to justify the Northern Sea Route legislative regime.63 A subsequent event involving the Arctic Sunrise resulted in the seizure of the vessel by Russian authorities and the Netherlands commencing Arbitral proceedings against Russia in which the Russian Federation did not participate. The Annex VII Arbitral Tribunal concluded, [T]he measures taken by Russia against the Arctic Sunrise . . . did not constitute a lawful exercise of Russia’s enforcement right as a coastal State under . . . Article 234 of the Convention.64 The wording in this quote from the Award is, however, a bit misleading. The Tribunal did not assess, apply or interpret Article 234. Rather, the Tribunal determined that at no time had Russia invoked Article 234 as a justif ication for its actions. There was also some doubt, according to the Tribunal, as to whether the incident had occurred within waters that would be captured by Article 234.65 Fields has argued that the “Russian interpretation· and application of Article 234 is largely consistent with that of Canada.”66 Gavrilov, a Russian law of the sea expert, asserts: “The integrity and

60 In The Matter of The Arctic Sunrise Arbitration (The Netherlands and Russian Federation), Award on the Merits, August 14, 2015, Permanent Court of Arbitration, Case No. 2014–02, available on the Permanent Court of Arbitration at www.pca-cpa. org, para. 295. For instructive recent articles concerning the Russian legislative regime for the Northern Sea Route, see Viatcheslav Gavrilov, “Russian Legislation on the Northern Sea Route Navigation: Scope and Trends,” Polar Journal 10, no. 2 (2020): 273–84; Jan Jakuab Solski, “The Northern Sea Route in the 2010s: Development and Implementation of Relevant Law,” Arctic Review on Law and Politics 11 (2020): 383–410. 61 Ibid. 62 Ministry of Transport of the Russian Federation, Federal Agency of Maritime and River Transport, Federal State Institution, The Northern Sea Route Administration, Notif ication No 77, September 20, 2013, see ibid., para. 295, footnote 282. 63 Solski, “The Northern Sea Route,” 389 and 390. Concerning the Russian historic claims to Arctic Straits, see R. Douglas Brubaker, The Russian Arctic Straits (Leiden and Boston: Nijhoff, 2005). 64 Arctic Sunrise Arbitration, para. 297. 65 Ibid., para. 296. 66 Stanley P. Fields, “Article 234 of the United Nations Convention on the Law of the Sea: The Over-looked Linchpin for Achieving Safety and Security in the U.S. Arctic?” Harvard National Security Journal 7, no. 1 (2016): 80 and see Viatcheslav

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specif ics of the legal status of the Northern Sea Route and the authority of the Russian Federation to control its use by vessels of other states . . . is directly supported by Article 234.”67 The United States, for its part, has commented that it “understands that the Northern Sea Route scheme is based on Article 234.”68 In a May  2015 “Diplomatic Note,” the United States raised a number of concerns about the Russian legislation and practices regarding the Northern Sea Route and whether certain measures are consistent with the wording of Article 234.69 First, that a requirement for prior notif ication and permission does not meet the condition in Article 234 that regulations must have due regard to navigation. Second, not all of the waters of the Northern Sea Route are ice-covered for most of the year. Third, per Article 236 of the LOS Convention, Article 234 regulations do not apply to sovereign immune vessels. Fourth, that it appears that only Russian icebreakers are to be utilised and, if so, this is “inconsistent with the nondiscriminatory aspects of Article 234.”70

Climate Change and Article 234 A harbinger of the future of Arctic shipping is the January 2021 headline: “A Step Closer to YearRound Shipments on the Northern Sea Route.”71 More directly relevant for the possible future of Article 234 is the 2019 headline: “Russia and Canada may lose their legal claim to Arctic seaways as ice melts, experts say.”72 This latter headline reflects the views on Article 234 of several US commentators. Their perspective is that Article 234 jurisdiction is intrinsically tied to specif ic conditions being present, such as “severe climatic conditions” and “ice covering for most of the year” that “create obstructions or exceptional hazards to navigation.” It is noteworthy that the 2015 US “Diplomatic Note” referred to “not all of the waters of the Northern Sea Route [being] ice-covered for most of the year.”73 What constitutes “ice covering for most of the year” or “severe climatic conditions”? Does it mean that the marine area has to be entirely covered by ice for at least 6 months of the year? The 2015 US note appears to suggest that the entire Northern Sea Route has to be ice covered “for most of the year” to meet the threshold criterion of Article 234.74 However, does the hazard to navigation dramatically change if there is an area of open water in the midst of a shipping route or if only 49% of the transit route is ice covered? Is it possible that Article 234 jurisdiction, because of variable ice conditions, might not apply in 2030 but would apply in 2031 or would apply in one part of a vessel’s

Gavrilov, “Legal Status of the Northern Sea Route and Legislation of the Russian Federation: A Note,” Ocean Development and International Law 46, no. 3 (2015): 261. 67 Gavrilov, “Legal Status of the Northern Sea Route,” 260. 68 United States, “Diplomatic Note,” May 29, 2015, reprinted in Digest of United States Practice in International Law – 2015, ed. CarryLyn D. Guymon (Washington: United States Department of State, 2015), 526–28. 69 United States, “Diplomatic Note,” 527. 70 Ibid. 71 Atle Staalesen, “A Step Closer to Year-Round Shipments on Northern Sea Route,” The Barents Observer, January 18, 2021, https://thebarentsobserver.com/en/arctic-lng/2021/01/step-closer-year-round-shipments-northern-sea-route. 72 Melody Schreiber, “Russia and Canada May Lose Their Legal Claim to Arctic Seaways as Ice Melts, Experts Say,” Arctic Today, April  4, 2019, www.arctictoday.com/russia-and-canada-may-lose-their-legal-claim-to-arctic-seaways-as-icemelts-experts-say/. 73 United States, “Diplomatic Note,” 517. 74 Ibid. “Moreover, the United States questions the scope of the Northern Sea Route area and whether that entire area is ice-covered for most of the year, particularly in the western portion of the Route.”

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polar routing but not another? Furthermore, who would make such a determination given that the IMO was clearly put at arms lengths by the States that negotiated Article 234? A different view of Article 234 is to focus on the clear purpose of the provision, which is to deal with “exceptional hazards to navigation” that “could cause harm or irreversible disturbance of the ecological balance” in the polar marine environment. This would ensure the application of Article 234 beyond the vagaries of fluctuating duration and percentages of ice coverage as long as conditions in polar waters (ice, temperature, weather) involve a risk to navigation not experienced elsewhere. This is the conclusion of the detailed legal interpretative analysis undertaken by three Russian scholars.75 They posit that the “presence of ice cover should be treated not as an indispensable prerequisite for gaining or losing special rights by coastal States, but as means for the geographical delimitation of the region in which those rights are to be exercised.”76 They assert that the “main purpose of Article 234 is to preserve the sensitive Arctic”77 and detail the numerous and unique challenges to polar shipping that exist in addition to ice coverage,78 also noting that the melting ice makes Arctic navigation more dangerous not less dangerous.79 A distinguished Canadian academic provides a clear answer to the “armchair experts who may suggest that the AWPPA is no longer required” in the face of ice loss: In the f inal analysis, the reason which gave rise to the AWPPA – unique hazards to navigation and exceptionally fragile ecological conditions – as well as the special circumstances of Canada’s indigenous Arctic peoples, will remain far into the future as this generation can reasonably contemplate. For all these reasons article 234 will remain vital for the protection of these interests.80

Article 234 and Maritime Jurisdiction in Antarctica Writing in 1992, Gautier highlighted that the literature was “incoherent” on the critical question of whether the “new law of the sea embodied in the United Nations Convention of 1982” would eventually apply to the Antarctic Ocean.81 According to some authors, the Convention of 1982 is deprived of all effect with respect to the South Pole, any reference to the Antarctic having been carefully avoided in the preparatory work owing to the divergence of opinion on this question.82

75 Viatcheslav Gavrilov, Roman Dremligua, and Rustambek Nurimbetov, “Article 234 of the United Nations Convention on the Law of the Sea and Reduction of Ice Cover in the Arctic Ocean,” Marine Policy 106 (2019): 1–6. https://doi. org/10.1016/j.marpol.2019.103518. 76 Ibid., 3. 77 Ibid., 5. 78 Ibid. 79 Ibid. 80 De Mestral, “Article 234,” 124. 81 Philippe Gautier, “The Maritime Area of the Antarctic and the New Law of the Sea,” in The Antarctic Environment and International Law, ed. Joe Verhoeven (Bath: Graham & Trotman, 1992), 133. 82 Ibid.

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Triggs was cited as one such learned commentator, having opined in a 1987 paper on jurisdictional problems within the Antarctic Treaty System (ATS) that “it is clear that the Convention does not and was never intended to include Antarctica and its surrounding waters and deep seabed because the issue was deliberately excluded from the Conference as potentially divisive.”83 Of course Gautier acknowledged that there were other opinions, including that of Van der Essen, who insisted that the LOSC applied in principle to the polar regions (Arctic and Antarctic) “save for the practical impossibilities due to the very nature of those regions.”84 In the intervening decades, it appears as if the debate has been resolved in favour of the general application of the LOSC to Antarctica and the Southern Ocean. In his 1996 volume The Polar Regions and the Development of International Law, Rothwell asserts in the f irst sentence of the chapter dedicated to “[t]he polar regions and the law of the sea” that “[b]ecause both polar regions incorporate large areas of ocean, the law of the sea plays an important role in their respective legal regimes.”85 Vigni refers more specif ically to the unavoidable overlap between the ATS and the LOSC.86 Scott, in turn, refers to the Antarctic and law of the sea regimes having “evolved in tandem” and that given the global nature of the regime for the oceans, “the ATS has of necessity accommodated developments in the law of the sea.”87 While most experts now agree that the LOSC and the ATS intersect, there is also a general acknowledgement that the law of the sea raises some very diff icult questions for the ATS, “many of which continue to be unanswered.”88 One of the most challenging developments in the law of the sea for the ATS has been the expansion of maritime zones that coastal States may claim, particularly the EEZ. Article 234 of the LOSC, and the jurisdiction it confers upon coastal States “within the limits of the exclusive economic zone,” thus represents one of those diff icult questions as it is intrinsically connected to the controversial status of maritime claims in Antarctica. Other contributions in this Handbook have delved into the questions of whether there are any coastal States in Antarctica with maritime entitlements.89 Certainly, as Oxman emphasises, a “signif icant number of non-claimant States do not recognize the validity of any of the territorial claims in Antarctica.”90 Rothwell conf irms that express recognition of Antarctic territorial claims exists only amongst some of the territorial claimants.91 However, Rothwell argues that

83 Gillian D. Triggs, “Chapter  8: The Antarctic Treaty System: Some Jurisdictional Problems,” in The Antarctic Treaty Regime, ed. Gillian D. Triggs (Cambridge: Cambridge University Press, 1987), 92. 84 “Sauf pour les impossibilités pratiques dues à la nature même de ces regions” (translation by S. Lalonde). Alfred Van der Essen, “Les regions Arctiques et Antarctiques,” in Traité du nouveau droit de la mer, eds. René-Jean Dupuy, Daniel Vignes, and Mohaned Bennouna (Paris: Economica/Bruylant, 1985), 463. 85 Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996) 261. 86 Patricia Vigni, “The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area,” Max Planck Yearbook of United Nations Law 4 (2000): 492. 87 Shirley V. Scott, “Chapter 2: The Evolving Antarctic Treaty System: Implications of Accommodating Developments in the Law of the Sea,” in The Law of the Sea and the Polar Regions, eds. Erik J. Molenaar, Alex G. Oude Elferink, and Donald R. Rothwell (Leiden: Nijhoff, 2013), 17. 88 Rothwell, Polar Regions, 261. 89 See Chapters 3, 5 and 7 of this volume. Vigni succinctly sums up the central issue: “Indeed, the def inition of maritime zones implies the presence of Coastal States whose very existence in Antarctica is controversial.” Vigni, “The Interaction,” 493. 90 Bernard Oxman, “Antarctica and the New Law of the Sea,” Cornell International Law Journal 19, no. 2 (1986): 213. 91 Donald R. Rothwell, “A Maritime Analysis of Conflicting International Law Regimes in Antarctica and the Southern Ocean,” Australia Yearbook of International Law 15, no. 1 (1994): 158. He notes that Argentina, Chile and the United Kingdom contest the validity of their various claims over the Antarctic peninsula. Ibid.

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the debate over the legal validity of the territorial claims should not act as an impediment to the assertion of maritime claims. No doctrine exists in international law requiring coastal State sovereignty to have been formally recognised before a maritime claim can be asserted. It therefore remains open to the territorial claimants to assert maritime claims offshore Antarctica.92 Joyner reports that Australia, Argentina, France and Chile have in fact each proclaimed EEZs offshore their Antarctic sectors.93 States have also established 200 M EEZ around Antarctic and subAntarctic islands under their uncontested sovereignty: France in respect of Kerguelen and Crozet; Australia around Heard, MacDonald and Macquarie Islands; South Africa in regard to the Prince Edward Islands; and the United Kingdom around South Georgia and the South Sandwich Islands. As parties to the LOSC, these States are bound by the obligations imposed by Part V but can also invoke the sovereign rights and the jurisdiction conferred by the Convention’s EEZ regime, including Article 234. According to Rothwell, “[i]t is considered by many commentators, and apparently assumed by its negotiators, that article 234 only applies to the Arctic and does not have an impact in the Southern Ocean.”94 This assessment, Rothwell explains, is based on the view referred to above that the UNCLOS III expressly excluded Antarctica from its consideration.95 While this may have been the view adopted during the conference negotiations, Rothwell insists that there is nothing in the LOSC to suggest that it has a limited area of application.96 Vigni concurs, emphasising that “although during the IIIrd Conference on the Law of the Sea the applicability of article 234 was excluded with regard to the Antarctic area, the def initive text of the article is silent in this respect.”97 In her opinion, “article 234 appears to be relevant as providing possible evidence of the intent of States parties to UNCLOS in dealing with the management of iced zones including Antarctica.”98 This must be the correct conclusion; as Rothwell points out, the Southern Ocean clearly meets the physical characteristics of an ice-covered area. Gautier also emphasises that Article 234 is of “some” relevance to the South Pole since it provides that a “marine area may be subject to special treatment because of its particular conditions.”99 Vigni reaches a similar conclusion: “Although the legitimacy of the delimitation of the EEZ in Antarctic seas is controversial, the general content of Article 234 could be interpreted to suggest the applicability of this norm also to the Antarctic area.”100 On its terms then, as Rothwell asserts, “article 234 does give to the Antarctic territorial

 92 Ibid. Rothwell refers to Daniel Patrick O’Connell, International Law, 2nd ed., vol. I (London: Stevens, 1970), 140–41, in support of the assertion that international recognition is not a prerequisite for the assertion of maritime claims.  93 Christopher C. Joyner, “The Antarctic Treaty and the Law of the Sea: Fifty Years on,” Polar Record 46, no. 1 (2010): 15.  94 Rothwell, “A Maritime Analysis,” 175.  95 President Amerisinghe, speaking [as the representative of Sri Lanka] at the 30th session of the General Assembly declared, “I should make it clear that the question of the status of Antarctica is in no way linked with the issues before the United Nations Conference on the Law of the Sea.” See 30 GAOR, 238th meeting, para. 36 (1975), quoted in Rosenne and Yankov, United Nations Convention on the Law of the Sea, 393, footnote 1.  96 Rothwell, Polar Regions, p. 295.  97 Vigni, “The Interaction,” 513, footnote 85. She cites F. M. Auburn, Antarctic Law and Politics (Bloomington: Indiana University Press, 1982), 126, in support.  98 Vigni, “The Interaction,” 513.  99 Gautier, “The Maritime Area,” 134. 100 Vigni, “The Interaction,” 153.

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claimants some scope for more extensive offshore jurisdiction in the Southern Ocean.”101 However, while maintaining that there is the potential for the Antarctic territorial claimants to rely upon Article 234, Rothwell indicates that as of 1994, none had taken this opportunity.102 No evidence of Article 234 could be found in any of the national instruments adopted by the claimant States in regard to their Antarctic territory or islands in the intervening decades. Rothwell explains that EEZ claims raise particular diff iculties for the territorial claimants as regards article IV(2) of the Antarctic Treaty,103 more acute than either the territorial sea or the continental shelf.104 He speculates that this may be the reason that some Antarctic claimants, while asserting more extensive maritime claims, do not enforce them against foreign nationals. He cites as an example the Australian EEZ offshore the Australia Antarctic Territory (AAT) in which only Australian vessels and nationals are subjected to Australian law.105 Joyner conf irms this reticence: “Signif icantly, claimant states are not pushing application of their domestic laws establishing these zones on other governments involved in Antarctic affairs.”106 Mention could also be made of Gautier’s brief reference to the “particular nature of the southern marine ecosystem” and his belief that it can be considered “as an obstacle to the unfettered use of the prerogatives usually recognized as being those of coastal states.”107 It is unclear whether these and other considerations may have deterred the Antarctic claimant States from invoking Article 234 as a justif ication for national laws and regulations to control marine pollution from vessels within the limits of their EEZ offshore their Antarctic territories. It may be that Article 234 can be invoked by the Antarctic consultative parties in the exercise of what some experts refer to as their “global jurisdiction”108 or “common jurisdiction or global competence.”109 As Vicuña explains, the two traditional theses, (1) that national jurisdictions may be exercised in the region, and (2) that national jurisdictions are not to be recognised, have been joined by a third thesis (3) that a form of collective jurisdiction should be exercised by the Consultative Parties to the Antarctic Treaty.110

101 Rothwell, “Maritime Analysis,” 175. 102 Ibid. 103 Article IV(2) adopted in 1959 states, “No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force” (emphasis added). It should be noted that Rothwell argues that EEZ claims are not contrary to Article IV(2), emphasising, among other considerations, that such claims do not constitute a “claim to territorial sovereignty.” See Rothwell, “Maritime Analysis,” 162–63. 104 Ibid. 105 See the discussion in ibid., 164. In a more recent publication, he refers to Australia’s Environment Protection and Biodiversity Conservation Act 1999, which created an Australian Whale Sanctuary including offshore the AAT and in which whaling is prohibited. While the act applies to all persons and vessels, and thus to foreign nationals, Rothwell indicates that no Australian government agency has sought to actively enforce the prohibition. Donald R. Rothwell, “Polar Territorial and Maritime Sovereignty in the Twenty-First Century,” in Sovereignty, Statehood and States Responsibility, eds. Christine Chinkin and Freya Baetens (Cambridge: Cambridge University Press, 2015), 115–16. 106 Joyner, “The Antarctic Treaty,” 16. 107 Gautier, “The Maritime Area,” 135. 108 Alfred Van der Essen, “Chapter 17 – The Application of the Law of the Sea to the Antarctic Continent,” in Antarctic Resources Policy, ed. Francisco OrregoVicuña (Cambridge: Cambridge University Press, 1983), 234. 109 Gautier, “The Maritime Area,” 123. 110 Francisco Orrego Vicuña, “Chapter 18 – The Application of the Law of the Sea and the Exclusive Economic Zone to the Antarctic Continent,” in Antarctic Resources Policy, ed. Francisco Orrego-Vicuña (Cambridge: Cambridge University Press, 1983), 249.

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Indeed, according to Van der Essen, “given the internal contradiction in Article IV of the Treaty and the uncertainties posed by Article VI,” much of the success of the Antarctic Treaty can be attributed to Article IX which he describes as “the fundamental provision of the Treaty.”111 The article, which provides for regular consultative meetings, “has led the participating States to cooperate closely and to exercise jointly a type of global jurisdiction in Antarctica.”112 [T]hese “consultative” meetings have imperceptibly come to be a form of legislative body for Antarctica. . . . In effect, the recommendations, once approved, are applicable to all of Antarctica, with no distinction between claimed and unclaimed regions. . . . The result is that the “consultative meetings,” in spite of the mental reservations which Article IV surely permits, actually exercise a type of global jurisdiction over all of Antarctica.113 Gautier also refers to experts who, “wishing to avoid the stumbling-block which an aff irmation of sovereignty would create,” have preferred to look towards the concepts of “common jurisdiction” or “global competence” of the consultative parties over the polar continent.114 He embraces this approach, declaring that it “suff ices to state that the members of the Antarctic system exercise a collective competence which has been granted to them by the Antarctic Treaty and the subsequent acts.”115 Furthermore, he considers it “reasonable” to accept that this common jurisdiction exercised over the continent, whatever it basis, naturally authorises them to benef it from certain rights over the surrounding sea.116 However, he cautions that this joint jurisdiction only offers to the consultative parties “a limited control over the space normally subjected to the jurisdiction of the coastal state.”117 Gautier defends the jurisdiction of the consultative parties as far as measures designed to protect the marine environment are concerned since they “follow the philosophy developed by the Convention on the Law of the Sea of 1982, of which an important part is dedicated to the protection of the marine environment.”118 However, he cautions that the exclusive rights with economic aims, which are conferred upon the holders of a continental shelf or of an exclusive economic zone, seem to be less defendable especially if one considers the aff irmation, many times repeated, that the Antarctic system is presumed to represent the interests of humanity.119

111 Van der Essen, “Chapter 17,” 234. See also Pannatier who declares that Article IX “has turned out to be of crucial importance.” Serge Pannatier, “Acquisition of Consultative Status under the Antarctic Treaty,” Polar Record 30, no. 173 (1994): 123. 112 Van der Essen, “Chapter 17,” 234. 113 Ibid., 235. Emphasis added. 114 According to Orrego Vicuña, this approach has the added merit of permitting “the status of maritime areas adjacent to unclaimed territories to be resolved satisfactorily . . . These maritime areas, regardless of the status of the shore, will thus be subject to regulation and joint jurisdiction by the Consultative Parties within the context of an international system of functional cooperation.” Orrego Vicuña, “Chapter 18,” 247–48. 115 Gautier, “The Maritime Area,” 123. 116 Ibid., 126–27. 117 Ibid., 127. 118 Ibid., 134. 119 Ibid. In the conclusion to his chapter, Gautier revisits this point: “The respect of the freedom of the high seas conf irmed by the Treaty of 1959, the silence of this treaty with regard to the economic stakes, as well as the increasing concern for

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On the basis of this distinction, Article 234 – specif ically designed to prevent irreparable harm to the marine environment – would arguably represent a justif iable exercise of collective jurisdiction. Nussbaum reaches a similar conclusion. Emphasising that the LOSC does not exclude the possibility that a union of States can lawfully exercise rights under part V, he asserts that the parties to the Antarctic Treaty can consensually “assert exclusive rights to the Antarctic offshore areas up to 60˚ South Latitude.”120 However, such a common assertion of authority would only be binding upon non-parties so long as the treaty parties “acted in accordance with the fundamental principles of the ATR” and exercised their jurisdiction “for the benef it of all mankind.”121 What is not entirely clear is whether the consultative parties would want to or need to invoke Article 234 to counter the threat of vessel source pollution and thus serve the interests of humankind or whether they might achieve the same end simply by exercising the authority conferred upon them under the ATS.122 Indeed, Van der Essen declares that “without exaggeration” the recommendations adopted by the consultative parties can be “likened to a code of regulations which carries all the weight of the unanimous approval necessary for their entry into force.”123 Referring specif ically to Article 234 and the authority it confers upon coastal States to “adopt and enforce nondiscriminatory laws and regulations to prevent, reduce and control pollution of the marine environment by ships,” Van der Essen writes in 1983, The consultative meetings have seen themselves as having authority in Antarctica in this regard for quite some time, as attested to by the 1964 Agreed Measures (Article VII, paragraph 3), the numerous recommendations creating specially protected areas and, to cite only the most recent example, Recommendation X-7 of October  1979 regarding oil pollution of the Antarctic marine environment.124 Experts such as Van der Essen125 and Gautier also highlight that recommendations adopted at Antarctic Treaty consultative meetings (ATCMs) have been the driving force behind the adoption of binding international instruments that have since become an integral part of the ATS.126 The 1980 Canberra Convention, for example, recognises in its sixth preambular paragraph that the Antarctic Treaty consultative parties bear “prime responsibilities for the protection and preservation of

the environment, would all seem to prevent the Consultative Parties from acting in the maritime area as if in sovereign territory.” Ibid., 137. 120 Ulrich J. Nussbaum, “Legal Status of Antarctic Off-Shore Areas,” Antarctic and Southern Ocean Law and Policy Occasional Papers 6 (1993): 1. 121 Ibid. 122 Pannatier declares that the decision-making power resides exclusively with the Antarctic Treaty consultative parties. See Pannatier, “Acquisition,” 123. 123 Van der Essen, “Chapter 17,” 235. 124 Ibid., 242. Article VII, paragraph 3 of the 1964 Agreed Measures provides, “Each Participating Government shall take all reasonable steps towards the alleviation of pollution of the waters adjacent to the coast and ice shelves.” See www. ecolex.org/details/treaty/agreed-measures-for-the-conservation-of-antarctic-fauna-and-flora-tre-000079/. 125 Van der Essen, “Chapter 17,” 242. 126 “However, it cannot be denied that there is a link uniting these Conventions [1972 Convention for the Protection of Seals and 1980 Convention on the conservation of marine living resources in the Antarctic] with the Treaty of 1959 since each one of them was preceded by a recommendation of the Consultative Parties underlining the necessity of its creation.” Gautier, “The Maritime Area,” 128.

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the Antarctic environment.”127 Of even greater signif icance, the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), the product of a range of environmental provisions agreed at several ATCMs, includes Annex IV targeting the “Prevention of Marine Pollution.”128 Its provisions set out a number of rules and obligations that could also be justif ied under Article 234. For example, all “ships engaged in or supporting Antarctic operations, while operating in the Antarctic area” (Article 2) must observe prohibitions and restrictions relating to the discharge of oil (Article 3), noxious liquid substances (Article 4), sewage (Article 6), the disposal of garbage (Article 4) and the design, construction, manning and equipment of ships (Article 10). Thus, there seems little doubt that Article 234 can be invoked by the Antarctic claimant States and those States with recognised sovereignty over islands in Antarctic and sub-Antarctic seas. It is also possible that the Antarctic Treaty consultative parties, in the exercise of their “collective jurisdiction,” will continue to develop measures that, while not expressly invoking Article 234, are inspired by the same concerns and dictate obligations of a similar nature. For as Gautier aptly comments, “in reality, the Consultative Parties, whatever their sensibilities, are not adverse to considering the destiny of the maritime area.”129

Conclusion The origin of Article 234, the 1970 enactment of the AWPPA, was a f ix to a political problem within Canada as the government sought to demonstrate to the Canadian public its resolve in the face of what was perceived as a “sovereignty dispute” with the United States over the Northwest Passage. The negotiation and adoption of Article 234 at the UNCLOS III was another political f ix, designed to accommodate Canadian and Soviet Union interests in the Arctic while protecting the navigational interests of both the United States and the Soviet Union. Other States were not involved. The Arctic and Antarctic were simply not on the international agenda. The Arctic sprang onto the international marine and, indeed, the global agenda in 2007–08 with the much hyped, though totally inaccurate, “race for the Arctic resources” headlines and the release of the rather more accurate 2009 “Arctic Marine Shipping Assessment Report.”130 The 2010 NORDREG “flash in the pan” was a small part of this “polar awakening.” The US response to the new Canadian regulations was predictable as Canada expanded its Arctic zone from 100 to 200 M and replaced voluntary vessel consent with compulsory vessel consent. In the background at IMO, some States expressed concern over allowing a coastal State to unilaterally impose a mandatory traff ic management regime in an international strait, an issue that had also arisen regarding Australian measures in the Torres Strait.131 Article 234 was not so much overlooked in the Polar Code discussions, as the provision was accepted as a given with the issue being one of legal technicality and potential conflicting treaty

127 Convention on the conservation of Antarctic marine living resources, adopted May  20, 1980, entered into force April 7, 1982, 1329 U.N.T.S. 47. 128 Protocol on Environmental Protection to the Antarctic Treaty, adopted October 4, 1991, entered into force January 14, 1998, 2941 U.N.T.S. 3. 129 Gautier, “The Maritime Area,” 126. 130 Arctic Council, “Arctic Marine Shipping Assessment 2019 Report,” https://pame.is/projects/arctic-marine-shipping/ 217-projects/amsa/amsa-documents. 131 See Suzanne Lalonde, “The Arctic Exception and the IMO’s PSSA Mechanism: Assessing their Value as a Source of Protection for the Northwest Passage,” International Journal of Marine and Coastal Law 28, no. 3 (2013): 583–87.

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obligations132 rather than one of substance. The motivation and urgency to develop and conclude the Polar Code arose from the potential increase in vessel traff ic in polar waters and the reality that these waters are unlike other areas of navigation for a multitude of reasons of which ice conditions is only one. It would indeed be counterproductive to the environmental health of the Arctic marine environment, as well as inconsistent with the purpose of Article 234, to accept that the applicability of the article is based on a mathematical calculation of the presence of ice or an uncertain assessment of what causes a hazard to navigation. While Antarctica was clearly off the table during the negotiations that resulted in the LOSC, this does not mean that the States that have Antarctic land claims are legally barred or prohibited from making jurisdictional claims to ocean zones in Antarctic waters, and this includes the right to rely on Article 234.

132 See McDorman, “A Note on the Potential Conflicting Treaty Rights,” 141–59.

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7 NAVIGATIONAL RIGHTS AND FREEDOMS IN POLAR REGIONS Erik Franckx

Introduction Writing about navigational rights and freedoms in both polar regions in a single contribution may give the impression that a uniform single regime exists. Even though the polar regions are often referred to in terms of similarity, the better starting point is rather that both poles in reality have little in common. Understanding the differences, as far as their respective geography, geology, climate and strategic value are concerned, helps to explain why the applicable legal regime in the southern polar region is based on internationalisation, whereas with respect to the northern polar region that regime rather started developing by means of the “creeping jurisdiction” of coastal States in the region.1 In the area of navigational rights and freedoms a similar caveat seems to be in order.2 If the different maritime zones and navigational rights and freedoms of the contemporary law of the sea seem to be fully applicable in the Arctic Ocean, as will be demonstrated, the absence of sovereign claims in the Antarctic at present3 rather points in the direction that the waters surrounding that

1 Erik Franckx, Maritime Claims in the Arctic: Canadian and Russian Perspectives (Dordrecht: Martinus Nijhoff Publishers, 1993), 6–8. 2 Kristin Bartenstein and Aldo Chircop, “Polar Shipping Law,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar Publishing Limited, 2020), 389–90 (indicating that the term polar shipping law “may indeed create the false impression that there is a homogeneous and distinct body of law,” quod non). 3 In view of the Antarctic Treaty. Multilateral convention, December 1, 1959, UNTS, vol. 402, 71, 72–84 (1962), Art. IV. This treaty entered into force on June 23, 1961. Hereinafter Antarctic Treaty. It was concluded by seven States having territorial claims to parts of the Antarctic continent (in chronological order: United Kingdom, New Zealand, France, Australia, Norway, Chile and Argentina) and f ive States not having (made) such claims (in alphabetical order: Belgium, Japan, South Africa, the former Soviet Union and the United States), but all of whom had participated in the International Geophysical Year (1957–58). They form the group of original consultative parties (Art. IX (1)), and together with possible countries obtaining that status at a later stage, with the consent of the original consultative parties (Art. XIII (1)) and on the condition that they fulf il certain conditions and only for as long as they do so as far as this latter group of consultative parties is concerned (Art. IX (2)), these are the countries that can further the objectives of the treaty through a system of regular consultative meetings. Other States have the possibility to become a State Party to this open treaty as well (Art. XIII (1)), but without a right to vote in those consultative meetings. For further details see Chapters 3 and 22 of this volume.

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continent can be considered as high seas, or at least, for present purposes, subject to the freedom of navigation.4 Consequently, the present contribution will deal with both polar areas in turn.5 Before doing so, however, a preliminary question that needs to be answered relates to whether the LOSC6 applies to the polar regions or not. Before concluding, another part will specif ically be devoted to the socalled Polar Code7 drawn up to be applied in both polar regions simultaneously, thus implying that despite the presence of many divergencies, some similarities between the two poles nevertheless exist as far as the legal regulation of navigation is concerned.

Application of the LOSC to the Polar Regions The law of the sea is a codif ied branch of international law. This has to be regarded as one of the major achievements of the United Nations so far. After the failed attempt by its predecessor, the League of Nations, to codify the law on territorial waters in 1930, the United Nations codif ied the entire law of the sea not only once, in 1958,8 but even a second time in 1982 by adopting the

4 As will be seen infra, the possibility for the claimant States to establish maritime zones in the Antarctic remains very much contested at present. As it concerns in casu foremost the 200 nautical miles (M) exclusive economic zone (EEZ), this in principle makes no difference from a navigational perspective because the freedom of navigation, as applicable on the high seas, remains operational in this zone according to the United Nations Convention on the Law of the Sea (Multilateral convention, December 10, 1982, UNTS, vol. 1833, 3, 397–581 (1998), Art. 58 (1) (“Rights and duties of other States in the exclusive economic zone”), with specif ic further reference to Art. 87 (“Freedoms of the high seas”). This convention entered into force on November 16, 1994. Hereinafter LOSC). 5 It is true that when compared to other oceans, certain specif ic shipping characteristics applicable in both polar areas can be highlighted, as, for instance, the common feature that they are of lesser use for commercial shipping than the other oceans (Donald R. Rothwell, “The Polar Regions and the Law of the Sea,” in Polar Geopolitics?: Knowledges, Resources and Legal Regimes, eds. Richard C. Powell and Klaus Dodds (Cheltenham: Edward Elgar, 2014), 32), but this does not seem to undercut the approach taken by the present contribution – namely, that both poles, when compared inter se, are better treated separately. 6 With its 167 States parties and the European Union (status as of August 1, 2021), the representative nature of its membership, while at the same time taking into account the fact that some countries may have a lesser interest in the subject matter, as, for instance, land-locked States, this treaty is believed to have become today the Constitution for the Oceans, as envisaged by its founding fathers. Remarks made by Tommy Koh, President of the Third United Nations Conference on the Law of the Sea (UNCLOS III), on December 6 and 11, 1982, www.un.org/depts/los/convention_agreements/ texts/koh_english.pdf. 7 International Code for Ships Operating in Polar Waters (Polar Code). The initial code was adopted by the International Maritime Organization (IMO) in two stages. First, the Maritime Safety Committee adopted Resolution MSC.385(94) of November 21, 2014, containing the maritime safety part of the Polar Code. Subsequently, the Maritime Safety Committee adopted Resolution MEPC.265(68) of May 15, 2015. The Polar Code became effective on January 1, 2017. This code is an evolving document, as seafarers’ requirements have already been added in the meantime and further changes are envisaged. For a good general description, see Heike Deggim, “The International Code for Ships Operating in Polar Waters,” in Sustainable Shipping in a Changing Arctic, eds. Lawrence P. Hildebrand, Lawson W. Brigham, and Tafsir Johansson (Cham: Springer, 2018), 15–35. Focussing on new developments, see J. Ashley Roach, “Beyond the Polar Code: IMO Measures for Assuring Safe and Environmentally Sound Arctic Navigation,” in Sustainable Shipping in a Changing Arctic, eds. Lawrence P. Hildebrand, Lawson W. Brigham, and Tafsir Johansson (Cham: Springer, 2018), 51–71. A consolidated version of the Polar Code can be consulted at https://wwwcdn.imo.org/localresources/en/MediaCentre/ HotTopics/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf. 8 Four separate conventions were adopted at that time, namely: Convention on the Territorial Sea and the Contiguous Zone. Multilateral convention, April 29, 1958, UNTS, vol. 516, 205, 206–24 (1966). This convention entered into force on September 10, 1964; Convention on the Continental Shelf. Multilateral convention, April 29, 1958, UNTS,

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LOSC. Normally, when the International Law Commission (ILC) is successful in preparing a draft convention and that document is subsequently adopted at an international conference convened by the General Assembly, the outcome stands the test of time.9 The law of the sea forms an exception to this rule and the partial redef inition of navigational rights and freedoms, such as in international straits and archipelagic waters, formed an essential part in the successful conclusion of this second codif ication exercise in whose preparation the ILC was not involved. The question whether the so-called Constitution for the Oceans also applies to polar regions seems nevertheless justif ied for several reasons, the foremost being that this document does not explicitly mention the polar regions, either the Antarctic or the Arctic, a single time in the more than 300 articles that it contains.10 Moreover, when the UNCLOS III negotiations started in 1973, its president, already at an early stage of these negotiations, put on record that the question of the status of Antarctica is in no way linked with the issues before the United Nations Conference on the Law of the Sea and, therefore, this question should not delay agreement on a new Convention on the Law of the Sea.11 It has moreover been argued that one of the reasons that the consultative parties decided to start negotiations in 1977 to draw up an agreement on the management of the living resources of the Antarctic was exactly because they feared that otherwise the UNCLOS III negotiations might well have taken up the issue instead.12 Nevertheless, as the Antarctic Treaty makes explicit

vol. 499, 311, 312–20 (1965). This convention entered into force on June 10, 1964; Convention on the High Seas. Multilateral convention, April 29, 1958, UNTS, vol. 450, 11, 82–102 (1964). This convention entered into force on September 30, 1962; and Convention on Fishing and Conservation of the Living Resources of the High Seas. Multilateral convention, April 29, 1958, UNTS, vol. 559, 285, 286–300 (1967). This convention entered into force on March 20, 1966.  9 It will suff ice to provide the following examples: Convention on Diplomatic Relations. Multilateral convention, April 18, 1961, UNTS, vol. 500, 95, 96–126 (1965). This convention entered into force on April 24, 1964; Convention on Consular Relations. Multilateral convention, April 24, 1963, UNTS, vol. 596, 261, 262–322 (1969). This convention entered into force on March 19, 1967; and Convention on the Law of Treaties. Multilateral convention, May 22, 1969, UNTS, vol. 1155, 331, 332–53 (1987). This convention entered into force on January 27, 1980. All these agreements still govern at present the respective f ields of international law that they codif ied. 10 Perusal of the proceedings of the UNCLOS I, moreover, reveals that the terms “Antarctic,” “Arctic” and “polar” were never mentioned. Donald R. Rothwell and Christopher C. Joyner, “The Polar Oceans and the Law of the Sea,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Martinus Nijhoff Publishers, 2001), 3. 11 Statement by Ambassador Hamilton Shirley Amerasinghe of Sri Lanka on October  8, 1975, before the 30th session of the United Nations General Assembly (U.N. Doc. A/30/PV.2380, para. 36), https://digitallibrary.un.org/ record/745467/f iles/A_PV-2380-EN.pdf. 12 M. J. Peterson, “Antarctic Implications of the New Law of the Sea,” Ocean Development and International Law 16, no. 2 (1986): 155–56. These negotiations were successful and resulted in the Convention on the Conservation of Antarctic Marine Living Resources. Multilateral convention, May 20, 1980, UNTS, vol. 1329, 47, 48–59 (1994). This convention entered into force on April 7, 1982. Hereinafter CAMLR Convention. More generally, it has been argued that this proactive attitude is necessary for the mere survival of the system. Shirley V. Scott, “The Evolving Antarctic Treaty System: Implications of Accommodating Developments in the Law of the Sea,” in The Law of the Sea and the Polar Regions: Interactions Between Global and Regional Regimes, eds. Erik Jaap Molenaar, Alexander Gerard Oude Elferink and Donald R. Rothwell (Leiden: Martinus Nijhoff Publishers, 2013), 25.

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reference to the high seas,13 the convincing argument can be made that the law of the sea applies there.14 Also with respect to the Arctic, doubts have been raised in certain Russian quarters as to whether the LOSC applies there.15 If such a submission were to be correct, this would be particularly problematic because, contrary to the Antarctic, no other conventional framework exists in the Arctic governing navigational rights and freedoms that could be relied upon instead.16 But as argued by the present author elsewhere, this strand of thinking to be found in the Russian legal literature is believed to be a minority view that clearly does not represent the off icial Russian position at present.17 In conclusion, it can safely be submitted that, despite the mentioned possible hesitations, the LOSC “applies in theory to the polar regions, saving the practical impossibilities attributable to the very nature of these regions,” as stated by a privileged observer who participated in the UNCLOS III negotiations.18 With respect to navigation, ice can certainly be considered one of these polar factors that needs special attention. And even though, as stated earlier, the LOSC does not explicitly mention the Antarctic or the Arctic, it nevertheless contains a separate section containing a single article, both titled “Ice-covered areas.”19 Based on the particular drafting history of this article, which indicates it was directly negotiated between Canada, the former Soviet Union and the

13 Antarctic Treaty, Art. VI. This article states, “The provisions of the present Treaty shall apply to the area south of 60° South Latitude, including all the ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of rights, of any State under international law with regard to the high seas within that area.” 14 Donald R. Rothwell, “Polar Oceans Governance in the 21st Century,” Ocean Yearbook 26, no. 1 (2012): 344. 15 Erik Franckx, “UNCLOS and the Arctic?” Belgian Review of International Law 47, no. 1 (2014): 166–69. 16 Russia signed the Ilulissat Declaration on May 28, 2008 (as reprinted in ILM 48, no. 2 (2008): 382–83) in which the f ive Arctic rim countries aff irmed that “an extensive international legal framework applies to the Arctic Ocean” and that, more specif ically, the law of the sea contains important rights and obligations concerning, inter alia, “freedom of navigation . . . and other uses of the sea.” But whether this declaration can be considered to represent a binding international agreement between the parties under international law is not immediately clear. It is moreover interesting to note in this respect that the Ilulissat Declaration was partly an answer by the f ive Arctic rim countries to the initiative taken around that time by others who wanted to create an international legal framework in the Arctic modelled after the Antarctic example. 17 Franckx, “UNCLOS and the Arctic,” 170–81. This argument was further corroborated by an authoritative Russian source, published about the same time. See Vladimir Golitsyn, “The Legal Regime of the Arctic,” in The IMLI Manual on International Maritime Law, Volume I, The Law of the Sea, eds. David Joseph Attard, Malgosia Fitzmaurice, and Norman A. Martinez Gutiérrez (Oxford: Oxford University Press, 2014), 464, who writes, “The legal regime of the Arctic Ocean is governed by the [LOSC] . . . and by customary international law.” The conclusion that this particular strand of Russian authors does not represent the government position seems further to be substantiated by the Ilulissat Declaration (supra note 16), whatever its true raison d’être or legal nature. 18 Alfred van der Essen, “The Arctic and Antarctic Regions,” in A Handbook on the New Law of the Sea: Vol. 1, eds. RenéJean Dupuy and Daniel Vignes (Dordrecht: Nijhoff, 1991), 525. In the same sense, another UNCLOS III participant expressed the view with respect to the Antarctic that the law of the sea applies “however, modif ied to reflect the continent’s special characteristics.” Francisco Orrego Vicuña, “The Application of the Law of the Sea and the Exclusive Economic Zone to the Antarctic Continent,” in Antarctic Resources Policy: Scientif ic, Legal and Political Issues, ed. Francisco Orrego Vicuña (Cambridge: Cambridge University Press, 1983), 244. 19 LOSC, Art. 234. Section  8, containing this article, falls under Part XII “Protection and preservation of the marine environment.”

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United States in order to f ind a solution to a common Arctic issue,20 it is sometimes even referred to as the “Arctic article”21 or the “Arctic exception”22 of the LOSC. This article will receive further attention in the part on navigational rights in the Arctic, but it is mentioned here already as it further substantiates the argument that this particular article is additional proof that the LOSC does apply to the Arctic, and potentially to the Antarctic as well, as its formulation does not seem to exclude that possibility23 despite the fact that is was originally conceived for application in an Arctic context as just explained.24

The Antarctic The regulation of navigational rights and freedoms was not one of the reasons that States decided in 1959 to draw up a legal regime for the Antarctic. The most pressing issue by far at that time was the regulation of the territorial claims,25 made by some but contested by others.26 Other essential considerations included the dedication of Antarctica to peaceful purposes,27 the freedom of scientif ic investigation28 and its denuclearisation.29 Navigational issues only slipped in through the backdoor, as side aspects related to the mentioned focal points covered by the Antarctic Treaty.

20 Erik Franckx and Laura Boone, “Article 234. Ice-Covered Areas,” in United Nations Convention on the Law of the Sea: A Commentary, ed. Alexander Proelß (Baden-Baden: Nomos, 2017), 1571–73. 21 United Nations Convention on the Law of the Sea, 1982: A Commentary: Vol. 4, eds. Myron H. Nordquist, Shabai Rosenne and Alexander Yankov (Dordrecht: Nijhoff, 1991), 393. 22 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, no. 1 (2011): 22–52. 23 Donald R. Rothwell and Stuart Kaye, “Law of the Sea and the Polar Regions: Reconsidering the Traditional Norms,” Marine Policy 18, no. 1 (1994): 50. In the same sense, see also, for instance, Tullio Scovazzi, “The Antarctic Treaty System and the New Law of the Sea: Selected Questions,” in International Law for Antarctica, eds. Francesco Francioni and Tullio Scovazzi (The Hague: Kluwer Law International, 1996), 392; Philippe Gautier, “The Maritime Area of the Antarctic and the New Law of the Sea,” in The Antarctic Environment and International Law, eds. Joe Verhoeven and Philippe Sands (London: Graham & Trotman, 1992), 134, even though the latter author is not sure whether it would be wise to apply a rule, based on coastal State jurisdiction, to the Southern Ocean. 24 See supra notes 20–22 and accompanying text. 25 As explained in more detail in Chapter 3 of this volume. 26 As indicated supra note 3. With seven claimant States, some of them with overlapping claims, three non‑claimant States not asserting to have a basis for presenting such a claim themselves (Belgium, Japan and South Africa) and two nonclaimant States indicating moreover that they did have such basis for a proper claim but were simply not advancing it for the moment (former Soviet Union and the United States) provided an explosive mix at the end of the Second World War that urgently needed a solution. Rolph Trolle-Anderson, “The Antarctic Scene: Legal and Political Facts,” in The Antarctic Treaty Regime: Law, Environment and Resources, ed. Gillian D. Triggs, Studies in Polar Research (Cambridge: Cambridge University Press, 1987), 58. About the clear belief of the former Soviet Union and the United States that they had a valid legal basis at that time to make a claim themselves, see Roberto E. Guyer, “The Antarctic System,” Recueil des Cours de l’Académie de Droit International 139, no. 2 (1973): 161–62. 27 Antarctic Treaty, Art. I. 28 Ibid., Arts II-III. The only direct implication on navigational rights is that all contracting parties must give advance notice of all expeditions to Antarctica undertaken by its ships or nationals or organised in or proceeding from its territory (Art. VII (5)(a)). 29 Ibid., Art. V.

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Legal Conundrum The way forward proved to be the “freezing”30 of these claims, making use of the so-called “ice-box technique” as described by Mouton,31 for as long as the treaty would last.32 If the unclear formulation of this most delicate matter in the treaty33 helped to defuse the sovereignty problem at the end of the 1950s,34 it nevertheless contained the germ35 that later would develop into outspoken antagonistic opinions of the consultative parties concerning its possible application at sea.36 Article IV of the Antarctic Treaty has to be read in conjunction with the article addressing the scope of its f ield of application,37 which is itself extremely diff icult to interpret38 and has been said to open up a “maze of alternatives.”39 The essence of the matter was the impact of the putting into abeyance of the question of territorial sovereignty just mentioned on the maritime claims in a branch of international law that f irmly espoused the maxim la terre domine la mer40 around the time the f irst territorial claim in Antarctica was made by the United Kingdom in 1908.41 Indeed, when the Antarctic Treaty was being drawn up, the navigational rights at sea, just codif ied by the Geneva conventions of 1958,42 were divided between a right of innocent passage in a relative narrow strip,43 with all the rest of the oceans being

30 Terminology often used in a legal context in this respect. See, for example, Hazel Fox, “The Relevance of Antarctica to the Lawyer,” in The Antarctic Treaty Regime: Law, Environment and Resources, ed. Gillian D. Triggs, Studies in Polar Research (Cambridge: Cambridge University Press, 1987), 78. 31 M. W. Mouton, “The International Regime of the Polar Regions,” Recueil des Cours de l’Académie de Droit International 107, no. 3 (1962): 252–59. 32 Antarctic Treaty, Art. IV (2) in f ine. 33 Antarctic Treaty, Art. IV. For further details, see Chapter 3 of this volume. 34 It consequently fully deserves the epithet “ingenious.” See, for instance, Christopher C. Joyner and Ethel R. Theis, Eagle over the Ice: The U.S. in the Antarctic (Hanover: University Press of New England, 1997), 37. This provision was even further strengthened in Art. IV of the CAMLR Convention, which has itself been labelled as “le chef-d’oeuvre de l’ambiguité antarctique.” Tullio Scovazzi, “Les zones côtières dans l’Antarctique,” in International Law for Antarctica/Droit international de l’Antarctique, eds. Francesco Francioni and Tullio Scovazzi (Milano: Giuffrè, 1987), 322. 35 Alfred van der Essen, “L’antarctique et le droit de la mer,” Revue Iranienne des Relations Internationales, no. 5–6 (1976): 92–93 (indicating how the consultative parties, by means of carefully worded recommendations, were able to move forward as far as the application of the Antarctic Treaty to its maritime areas was concerned during the early years of its operation). 36 At the same time, it has, for instance, been described in the literature as an “ingenious formula of agreeing to disagree” (Trolle-Anderson, “The Antarctic Scene,” 60), “a purgatory of ambiguity” (J. Michel Marcoux, “Natural Resource Jurisdiction on the Antarctic Continental Margin,” Virginia Journal of International Law 11, no. 3 (1970): 397), or that it “appears to mean all things to all states” (Gillian Triggs, “The Antarctic Treaty Regime: A Workable Compromise or a Purgatory of Ambiguity,” Case Western Reserve Journal of International Law 17, no. 2 (1985): 201). 37 Antarctic Treaty, Art. VI, as reproduced (supra note 13). 38 Last minute changes to the text being partly responsible. See Alfred van der Essen, “The Application of the Law of the Sea to the Antarctic Continent,” in Antarctic Resources Policy: Scientif ic, Legal and Political Issues, ed. Francisco Orrego Vicuña (Cambridge: Cambridge University Press, 1983), 233. 39 Bernard H. Oxman, “Antarctica and the New Law of the Sea,” Cornell International Law Journal 19, no. 2 (1986): 229. 40 Affaire des Grisbådarna (Norvège c. Suède) Award (October 23, 1909) PCA 1908–01, 5–6, www.haguejusticeportal.net/ index.php?id=6130. 41 Letters Patent of July 21, 1908, as reprinted in British Foreign and State Papers 101 (1909): 76. 42 See supra note 8. 43 Convention on the Territorial Sea and the Contiguous Zone, Arts 14–23. Even though no agreement could be reached on the breadth of the territorial sea at that time, this convention at least indirectly excluded a territorial sea of more than 12 M, i.e. the maximum limit established for the contiguous zone (ibid., Art. 24 (2)). Some consultative parties, like Argentina and Chile, already claimed a 200 M territorial sea, but these claims did not carry much international weight

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subjected to the regime of the freedom of navigation.44 Since there was no territorial sovereignty to be protected, however, the territorial sea claims in the Antarctic, expressed by some while contested by others, had “mainly a symbolic signif icance” during those early days.45 It is interesting to note that some of these early territorial claims to the Antarctic not only def ined the sector to which they applied but also explicitly included the territorial sea in that claim.46 The legal argument developed by such countries is that the “freezing” provision only concerns the territorial sovereignty whereas maritime claims have no territorial content.47 Six of the seven claimants have proclaimed territorial seas off Antarctica, with Norway reserving the right to do so.48 These countries, however, faced the problem of determining the baseline from which to start measuring these territorial sea claims in an Antarctic context.49 On the other side of the spectrum one f inds a country like the United States, a non-claimant State, contesting the legality of these territorial claims. It argues in essence that, based on the maxim that the land dominates the sea, one needs a sovereign on land f irst to be able to have maritime zones, but it is exactly this sovereignty on land that has been suspended for as long as the Antarctic Treaty lasts. What is more, the legal check as to the validity of the territorial claims made on the Antarctic continent has also been put on hold and remains to be completed.50 According to the United States, consequently, there simply are no territorial seas off the coast of Antarctica51 resulting in the conclusion that the high seas reach right up to the Antarctic coastline.52 This issue, however, soon became more prominent on the agenda of the consultative parties as maritime zones over which coastal States could exercise sovereignty or sovereign rights started to expand culminating in the question whether the claimant States could establish EEZs around Antarctica. Additional legal arguments were advanced on both sides, all f inding again their origin in the “freezing” provision of the Antarctic Treaty – namely, in the part stipulating that “no new claim, or

at the time they were made. Ann L. Hollick, U.S. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981), 153–59. 44 Convention on the High Sea, Art. 2 (1). 45 Peterson, “Antarctic Implications,” 142. 46 This was, for instance, the case with respect to the Chilean claim of 1940, as duly stressed by Orrego Vicuña, “The Application,” 244. 47 Ibid., 245. 48 Christopher C. Joyner, “The Antarctic Treaty and the Law of the Sea: Fifty Years On,” Polar Record 46, no. 1 (2010): 15. Norway’s territorial sea legislation is applicable off Antarctica but has not yet entered into force. Norwegian Ministry of Foreign Affairs, Norwegian Interests and Policy in the Antarctic (Meld. St. 32 (2014–2015) Report to the Storting (white paper): 34, www.regjeringen.no/contentassets/cef2a67e958849689aa7e89341159f29/en-gb/pdfs/ stm201420150032000engpdfs.pdf. 49 As explained in more detail in Chapter 4 of this volume. 50 This interpretation of Art. IV of the Antarctic Treaty fully served the interests of the United States. Without having to make a claim itself, this country would prof it utmost by having free access to the whole continent and offshore areas as well. Over time, moreover, the effective sovereignty of the claimant States would be reduced, leading one author to consider this particular article as an expression of imperialism. Shirley V. Scott, “Ingenious and Innocuous? Article IV of the Antarctic Treaty as Imperialism,” Polar Journal 1, no. 1 (2011): 51–62. 51 Letter from Donald L. McKernan, Coordinator of Ocean Affairs and Special Assistant to the Secretary of State, to Richard A. Frank, Center for Law and Social Policy, May 15, 1972, stating, “Since the United States does not recognize that any States have sovereign rights in the Antarctic in the United States view there is no territorial sea off the coast of Antarctica” (quoted by Gregory P. Wilson, “Antarctica, the Southern Ocean, and the Law of the Sea,” JAG Journal 30, no. 1 (1978): 66 note 81). See also infra note 57. 52 Christopher C. Joyner, “The Exclusive Economic Zone and Antarctica,” Virginia Journal of International Law 21, no. 4 (1980): 719.

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enlargement of an existing claim, to territorial sovereignty in Antarctica shall be made.”53 In favour of the claimant States, the argument focused on the word “territorial.” Because the EEZ is a zone where the coastal State has certain sovereign rights, and not sovereignty, it is very different from the territorial sea and would fall outside the reach of the mentioned prohibition.54 On the opposite side, the argument rather zoomed in on the word “new.” If States claimed territorial seas during the late 1950s, the notion of EEZ only emerged much later, which would make it fall under the said provision and thus be prohibited from being claimed.55 The proclamation of an EEZ by Australia in 1994,56 and the reaction of the United States protesting its application to the Australian Antarctic Territory,57 well illustrates the lingering problematic application of the Antarctic Treaty as far as maritime areas are concerned and the principled positions that parties are forced to take in this respect. But at the same time, the Australian example very well illustrates how consultative parties nevertheless apply these principled positions with much restraint in practice.58 A closer analysis of this Australian enactment indeed reveals that it was in fact, just like its 1979 predecessor, establishing a 200-mile f ishing zone of the Australian Antarctic Territory, not meant to be applied to foreign nationals and their vessels.59 Besides Australia, also Argentina, France and Chile have made EEZ claims in addition to the territorial sea that they declared.60 But again, a similar deference by the claimant States to the position of other consultative parties has been noted.61 It is through moving slowly forward together in regulating particular issues

53 Antarctic Treaty, Art. IV (2). 54 Francisco Orrego Vicuña, Antarctic Mineral Exploitation: The Emerging Legal Framework, Studies in Polar Research (Cambridge: Cambridge University Press, 1988), 132. 55 An aspect stressed, for instance, by Rainer Lagoni, “Antarctica: German Activities and Problems of Jurisdiction Over Marine Areas,” German Yearbook of International Law 23 (1980): 399–400; James Crawford and Donald R. Rothwell, “Legal Issues Confronting Australia’s Antarctica,” Australian Year Book of International Law 13 (1990): 81; and Tullio Treves, “High Seas,” in Max Planck Encyclopedia of Public International Law Online, ed. Anne Peters (Oxford: Oxford University Press, 2011), para. 7, http://opil.ouplaw.com/home/EPIL. But see Francisco Orrego Vicuña and Maria Teresa Infante, “Le droit de la mer dans l’Antarctique,” Revue Générale de Droit International Public 84, no. 1 (1980): 345 (arguing that at least in the case of Chile, the establishment of an EEZ preceded the Antarctic Treaty). 56 Australia, Seas and Submerged Lands Act 1973 – Proclamation under section 10B (26/07/1994), www.legislation.gov.au/ Details/F2013C01020. This proclamation entered into effect on August 1, 1994, and was made applicable in its Section I (a)(ii) to the external territories of Australia, a notion which includes the Australian Antarctic Territory. 57 The exchange of diplomatic notes (Embassy of the United States to the Australian Department of Foreign Affairs and Trade, sent on March 31, 1995, and the reply of August 8, 1995), as reprinted in Australian Year Book of International Law 17 (1996): 383–84. The American note contains the following statement: “the United States does not recognize any claim to territories in Antarctica and does not recognize that a claim to territorial sovereignty in Antarctica is capable of creating any sort of maritime jurisdiction,” whereas the Australian note simply argued that this country is applying the LOSC. 58 Patrizia Vigni and Francesco Francioni, “Territorial Claims and Coastal States,” in Handbook on the Politics of Antarctica, eds. Klaus Dodds, Alan D. Hemmings, and Peder Roberts (Cheltenham: Edward Elgar Publishing, 2017), 249 (concluding that “[i]t seems evident, therefore, that claimant States recognize the priority of the ATS over other norms and principles of general international law that may give support to their claims”). 59 For a clear overview, see Stuart Kaye and Donald R. Rothwell, “Australia’s Antarctic Maritime Claims and Boundaries,” Ocean Development and International Law 26, no. 3 (1995): 208–11. 60 Joyner, “The Antarctic Treaty,” 15. A related problem are the maritime claims concerning islands located outside of the Antarctic Treaty area, but within the CAMLR Convention area. Tim Stephens, “An Icy Reception Or a Warm Embrace? The Antarctic Treaty System and the International Law of the Sea,” in Handbook on the Politics of Antarctica, eds. Klaus Dodds, Alan D. Hemmings, and Peder Roberts (Cheltenham: Edward Elgar Publishing, 2017), 443–44. 61 For a good overview, see Vicuña, “Antarctic Mineral Exploitation,” 147–49; and Tim Stephens and Ben Boer, “Enforcement and Compliance in the Australian Antarctic Territory: Legal and Policy Dilemmas,” in Looking South: Australia’s Antarctic Agenda, eds. Lorne K. Kriwoken, Julia Jabour, and Alan D. Hemmings (Annadale: Federation Press, 2008),

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of concern in the waters south of 60° south latitude, either by means of recommendations adopted at consultative meetings or the conclusion of separate, but related agreements,62 that the consultative parties have managed to act proactively and in concert in the maritime f ield.63 As wittingly remarked by Oxman, the Antarctic Treaty may well apply to the extent that matters are subject to coastal State jurisdiction under the LOSC, such as exploration and exploitation of natural resources or the regulation of pollution from ships in the EEZ, but it “does not apply to navigation, overflight, . . . or other high seas rights and freedoms enjoyed by all states under international law.”64

Application in Practice The conclusion to be reached, therefore, is that the navigational rights in the Antarctic are foremost governed by the principle of freedom of navigation. When the consultative parties decide to start regulating particular issues, either by means of recommendations or on a conventional basis, navigational rights may be affected for the States Parties to the Antarctic Treaty System in the waters surrounding the Antarctic.65 But how they will affect others remains even at present a delicate interplay between the Antarctic Treaty System on the one hand and the law of the sea on the other. No major shipping routes cross the Southern Ocean,66 except maybe for Drake Passage, which is sometimes the preferred route over the more restricted Strait of Magellan or Beagle Channel chosen by navigators sailing between the Atlantic and Pacif ic Oceans in the Southern Hemisphere. Many of the navigational activities taking place in the Southern Ocean are related to the Antarctic Treaty System. The increasing relevance of such shipping activities, either related to tourism or scientif ic research,67 have propelled marine pollution and tourism to f igure prominently on the agenda of the consultative parties.68 As marine pollution will be addressed in the part covering the Polar Code, tourism, which has been labelled as one of the new problems of environmental protection in the

60–65. See also Scovazzi, “Les zones côtières,” 301 (indicating that the French proclamation of an EEZ around Adélie Land has not been activated). 62 The so-called Antarctic Treaty System consists at present of the following conventions in force: Convention for the Conservation of Antarctic Seals. Multilateral convention, June 1, 1972, UNTS, vol. 1080, 175, 176–212 (1985). This convention entered into force on March 11, 1978; CAMLR Convention; and Protocol on Environmental Protection to the Antarctic Treaty. Multilateral protocol, October 4, 1991, UNTS, vol. 2941, 3, 9–70 (2019). This protocol entered into force on January 14, 1998. Hereinafter Madrid Protocol. 63 Vicuña, “Antarctic Mineral Exploitation,” 134–59. 64 Oxman, “Antarctica,” 231. 65 As remarked by Gautier, the operation of the Antarctic system demonstrates a willingness of all the consultative parties to exercise certain rights offshore. The fact that the non-claimants contest the establishment of maritime zones by the claimants is by no means aimed at subtracting these zones from the operation of the Antarctic Treaty System, but rather to remedy the flaws of the law of the sea, based as it is on the maxim that the land dominates the sea. Gautier, “The Maritime Area,” 126. 66 When the Panama Canal opened up in 1914, merchant traff ic taking the so-called Clipper Route fell into desuetude. Stephens, “An Icy Reception,” 448. 67 Federica Mucci and Fiammetta Borgia, “The Legal Regime of the Antarctic,” in The IMLI Manual on International Maritime Law, eds. David Joseph Attard, Malgosia Fitzmaurice and Norman A. Martinez Gutiérrez, vol. I (Oxford: Oxford University Press, 2014), 506. 68 See, for instance, the off icial website of the Secretariat of the Antarctic Treaty, www.ats.aq/index_e.html.

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Antarctic,69 will be turned to next in view of the unabated rise in the number of visitors each year, most of which use vessel transportation to visit the region.70 The Antarctic Treaty does not mention “tourism.” In response to the f irst sea-borne tourist expeditions that started in the early 1960s71 and apparently were admissible activities by deduction since they served peaceful purposes, the consultative parties started making recommendations on the issue in 1966.72 But when the industry really started picking up during the 1980s, the competence of the consultative parties was more f irmly established by means of the adoption of the Madrid Protocol, which this time did explicitly include tourism as an activity that could be modif ied, suspended or cancelled when considered detrimental to the Antarctic environment.73 This triggered at the same time all the six annexes to the Madrid Protocol to become applicable to tourism activities.74 Besides, a good number of legally binding and non-binding instruments were subsequently adopted at the occasion of the consultative meetings,75 with the industry moreover being disposed to self-regulate its activities.76 But the sore point of the system as it functions at presents remains its implementation, which relies heavily on collective efforts of the States Parties to the Madrid Protocol to ensure that the tourist activities under their jurisdiction comply with the provisions of the Protocol.77 A closer analysis how this works in practice reveals that careful distinctions remain nevertheless to be made between the States Parties to the Madrid Protocol and those States that are not.78 The sovereignty issue, in other words, still haunts the system from its “ice box” to come back to the metaphor used by Mouton when the system had just been created.79

69 Silja Vöneky and Sange Addison-Agyei, “Antarctica,” in Max Planck Encyclopedia of Public International Law Online, ed. Anne Peters (Oxford: Oxford University Press, 2011), paras 91–96, http://opil.ouplaw.com/home/EPIL. 70 These f igures have doubled between the 2014–15 and 2019–20 Antarctic tourist season. Compare the f igures provided by Holger Martinsen (“Some Remarks on the Application of ‘Antarctic International Law’ to Tourist and NonGovernmental Activities in Antarctica,” Belgian Review of International Law 51, no. 2 (2018): 507) with the latest f igures available from the International Association of Antarctica Tour Operators (https://iaato.org/wp-content/ uploads/2020/07/IAATO-on-Antarctic-visitor-f igures-2019-20-FiNAL.pdf). 71 Martinsen, “Some Remarks,” 506. 72 Rosamunde J. Codling, “Sea-Borne Tourism in the Antarctic: An Evaluation,” Polar Record 21, no. 130 (1982): 6, describing the many diff iculties encountered while doing so. Ibid., 6–8. See also Martinsen, “Some Remarks,” 510–11. 73 Madrid Protocol, Art. 3 (4), building further on Art. VII (5) of the Antarctic Treaty. See also Arts 8 (2) on environmental impact assessment and 15 (1)(a) concerning emergency response action. 74 No annex on tourism, however, was provided for, even though some were of the opinion that this would have been preferable. See Mike G. Richardson, “Regulating Tourism in the Antarctic: Issues of Environment and Jurisdiction,” in Implementing the Environmental Protection Regime for the Antarctic, ed. Davor Vidas (Dordrecht: Kluwer, 2000), 77–79. 75 For a detailed overview, see Daniela Liggett and Emma Stewart, “The Changing Face of Political Engagement in Antarctic Tourism,” in Handbook on the Politics of Antarctica, eds. Klaus Dodds, Alan D. Hemmings, and Peder Roberts (Cheltenham: Edward Elgar Publishing, 2017), 372–87. 76 For an overview, see, for instance, Erik J. Molenaar, “Sea-Borne Tourism in Antarctica: Avenues for Further Intergovernmental Regulation,” International Journal of Marine and Coastal Law 20, no. 2 (2005): 260–62 and 266–70. See also Martinsen, “Some Remarks,” 513–16, and with respect to the self-regulation of the industry, 517–18. 77 Madrid Protocol, Art. 13. 78 For a detailed analysis, see Alexia de Vaucleroy, “The Exercise of Jurisdiction in Antarctica: A Comparative Analysis From the Perspective of Belgium, France and the United Kingdom,” Belgian Review of International Law 51, no. 2 (2018): 550–80. 79 See supra note 31 and accompanying text.

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The Arctic Navigational rights and freedoms in the Arctic substantially differ from the ones just described in the Antarctic. This has to be explained by the totally different setting in which navigation takes place in the Arctic when compared to the Antarctic. First of all, the Arctic is “mediterranean,” i.e. an ocean surrounded by land, connecting the Atlantic and Pacif ic Oceans, with three navigational passages80 crossing the area that substantially shorten the distance between Asia and Europe. It concerns the Northeast Passage,81 the Northwest Passage82 and the Trans-Polar Passage.83 Based on theoretical calculations, the last route is probably to be preferred as far as the magnitude of potential cost savings is concerned, followed by the Northeast and Northwest Passages, in that order.84 However, reality indicates that the harsh sailing conditions because of the presence of the ice will probably, as a result of climate change, f irst and foremost favour the Northeast Passage.85 If the number of ships making use of the latter passage is still not to be compared with those making use of the Suez Canal,86 it is nevertheless indicative that when the Ever Given blocked the latter passage for six days in March 2021, Russia immediately started to promote the potential of the Northeast Passage as a viable alternative.87 Since the disappearance of

80 Michel Voelckel, “Les routes maritimes de l’Arctique,” Annuaire du Droit de la Mer 2006 11 (2007): 160 (emphasising that in an Arctic setting the word “passage,” eliciting an obstacle, was for a long time preferred over “route”). 81 Russia normally describes that part of the Northeast Passage that makes use of its Arctic maritime zones, i.e. up to the 200 M limit of its EEZ, between Novaia Zemlia and the Bering Strait as the Northern Sea Route. See Figure 7.1. For a map posted by the Administration of the Northern Sea Route of the Ministry of Transport of the Russian Federation, see www.nsra.ru/en/of itsialnaya_informatsiya/granici_smp.html. What the exact use is of the “functional boundaries” of the Northern Sea Route, extending to the south-eastern Barents Sea and to the Anadur Gulf of the Bering Sea, besides the just described “administrative boundaries,” remains highly unclear. Making such a distinction, see Alexander S. Skaridov, “Northern Sea Route: Legal Issues and Current Transportation Practice,” in Changes in the Arctic Environment and the Law of the Sea, eds. Myron H. Nordquist, John Norton Moore, and Tomas H. Heidar (Leiden: Nijhoff, 2010), 285. 82 This route has made use of seven alternatives for transit passages. As described by Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law 38, no. 1/2 (2007): 18 and 29–30. See Figure 7.1. 83 Contrary to the Northeast and Northwest Passages, this route, covered in its totality by a regime of freedom of navigation as this route essentially would use the high seas part of the Arctic Ocean, EEZ of coastal States on the Atlantic side and rights of transit passage through the Bering Strait, has not been used for commercial transit passage so far because of the severe ice conditions still present there. See Figure 7.1. 84 Willy Østreng et al., Shipping in Arctic Waters: A Comparison of the Northeast, Northwest and Trans Polar Passages (Berlin: Springer, 2013), 351–52. 85 Arctic Council, Arctic Marine Shipping Assessment 2009 Report (Second Printing) (Arctic Council, sine loco, 2009), 112–14, https://www.pmel.noaa.gov/arctic-zone/detect/documents/AMSA_2009_Report_2nd_print.pdf, highlighting the remaining diff iculties with the Northwest Passage. It is moreover interesting to see that a recent survey amongst shipping companies active in the Arctic resulted in the f inding that they generally welcomed the Polar Code but, at the same time, were less familiar with the specif ic Canadian regulations, a sign the researchers conducting the survey interpreted as indicating that the Northwest Passage is not currently being considered as a potential regular shipping route contrary to the Northeast Passage. Pauline Pic et al., “The Polar Code and Canada’s Regulations on Arctic Navigation: Shipping Companies’ Perceptions of the New Legal Environment,” Polar Journal 11, no. 1 (2021): 112. 86 The number of ships crossing the entire Northern Sea Route on a yearly basis – for instance, 62 in 2020 (Jonathan Saul, “The Northern Sea Route Saw a Record Number of Ships Transit in 2020,” Arctic Today, December 9, 2020, www.arctic today.com/the-northern-sea-route-saw-a-record-number-of-ships-transit-in-2020/) – rather compares to the average number of ships passing the Suez Canal on a daily basis, which was somewhat less than 40 during the same period (Average Daily Number of Transits in the Suez Canal from January 2019 to February 2021, Statista, July 23, 2021, www. statista.com/statistics/1127798/average-number-of-transits-in-the-suez-canal-per-day/). 87 Vladimir Soldatkin, “Suez Canal Debacle Shows Value of Northern Sea Route, Russia Says,” Reuters, March 29, 2021, www.reuters.com/article/us-egypt-suezcanal-russia-arctic-idUSKBN2BL0X0; Thomas Nilsen, “Making Fun of Suez

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the Soviet Union from the political map of the world, the interest of foreign shipping has waxed and waned. The year 2010 can, for instance, be considered a milestone for the international commercial use of this route.88 But when Russia started to require vessels exporting its northern natural resources to fly its own flag in 2018, followed by the additional requirement for these vessels to be Russian built, the foreign interest appears at present restricted to the international transit of goods between the Atlantic and Pacif ic Oceans.89 Secondly, if the use of submarines in the Antarctic does not provide much strategic advantage, the Arctic, on the other hand, proves to be the ideal place for submarines to operate. The ever moving ice cover, its thickness and the f iring range of missiles today not only make the Arctic a perfect hiding place but also allow submarines to surface and strike almost any target in the Northern Hemisphere before returning to their hiding mode once again.90 Underwater navigation, as well as the legal regime applicable to it,91 is in other words an issue always to be kept in mind when discussing navigational rights and freedoms in the Arctic. Third, the presence and exploitation of mineral resources92 has been a main driver in the development of navigation in the Arctic. The present and projected increase in cargo transportation along the Northern Sea Route is very much related to the exportation of mineral resources along the Russian northern coastline.93 Starting from the premise that the LOSC applies to the Arctic, these differences, when compared to the Antarctic, result in the fact that a much wider spectrum of navigational rights and freedoms needs to be addressed in the present part. Of all the navigational rights covered by the LOSC,94 only the right of archipelagic sea lane passage need not be addressed in the absence of any archipelagic State in the Arctic.95

Pile-up, Rosatom Promotes Russia’s Arctic Route as an Alternative,” The Independent Barents Observer, March 25, 2021, https://thebarentsobserver.com/en/industry-and-energy/2021/03/making-fun-suez-traff ic-jam-rosatom-promotesnorthern-sea-route. 88 For a detailed account of the different voyages by foreign flagged vessels taking place during that year, see Erik Franckx and Laura Boone, “New Developments in the Arctic: Protecting the Marine Environment From Increased Shipping,” in The Law of the Sea Convention: US Accession and Globalization, eds. Myron H. Nordquist, John Norton Moore, Alfred H. A. Soons and Hak-So Kim (Leiden: Martinus Nijhoff Publishers, 2012), 187–93. 89 For a good recent overview of these developments during the f irst decade following the opening up of the Northern Sea Route in 2010, see Bjørn Gunnarsson and Arild Moe, “Ten Years of International Shipping on the Northern Sea Route: Trends and Challenges,” Arctic Review on Law and Politics 12 (2021): 4–30. See also Arild Moe, “A New Russian Policy for the Northern Sea Route? State Interests, Key Stakeholders and Economic Opportunities in Changing Times,” Polar Journal 10, no. 2 (2020): 209–27 (concluding that Russia’s Northern Sea Route policy is becoming more inward-looking again). 90 In Russia, for instance, it is the Northern Fleet that receives most of the newest nuclear submarines. Thomas Nilsen, “Northern Fleet Gets Priority in Receiving New Ballistic Missile Subs,” The Barents Oberver, May 15, 2021, https:// thebarentsobserver.com/en/security/2021/05/northern-fleet-gets-priority-receiving-new-ballistic-missile-subs. 91 About the intricate legal problems involved, see, for instance, Erik Franckx, “La collision entre deux sous-marins, un américain et un russe, dans la baie de Kola (mer de Barents),” Espaces et Ressources Maritimes 1992 6 (1993): 33–50. 92 Contrary to the Antarctic, where exploitation of mineral resources has been prohibited by the Madrid Protocol, Art. 7. 93 Xiaoyang Li, Natsuhiko Otsuka and Lawson W. Brigham, “Spatial and Temporal Variations of Recent Shipping Along the Northern Sea Route,” Polar Science 27 (2021), doi: 10.1016/j.polar.2020.100569. 94 As conveniently listed in Yoshifumi Tanaka, “Navigational Rights and Freedoms,” in The Oxford Handbook of the Law of the Sea, eds. Donald R. Rothwell, Alexander Gerard Oude Elferink, Karen N. Scott and Tim Stephens (Oxford: Oxford University Press, 2015), 538, Table 24.1. 95 In everyday parlance notions like “Canadian archipelago” or “Spitzbergen archipelago” can be noted, but these archipelagos do not fulf il the requirements of the legal def inition to be found in the LOSC, Art. 46 (b).

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Figure 7.1  Shipping routes in the Arctic Source: Czesław Dyrcz, “Safety of Navigation in the Arctic,” Zeszyty Naukowe Akademii Marynarki Wojennej (Scientif ic Journal of Polish Naval Academy) 58, no. 4 (211) (2017): 138. Reproduced by kind permission of the author, as adapted.

Trans-Polar Passage If in the future the Trans-Polar Passage were to become feasible from a navigational point of view, this could be covered almost in its totality be a regime of freedom of navigation as this route essentially would use the high seas part of the Arctic Ocean. The entrance on the Atlantic side would not cause any diff iculties in this respect as the Norwegian Sea between Iceland and Norway ends up in the north in the ice-free Fram Strait connecting with the Arctic Ocean. With a width of about 243 M, the latter is not a legal strait, allowing ships to make use of the freedom of navigation when transiting the EEZ part of it.96 The entrance on the Pacif ic side is of a totally different nature. Even though the Bering Strait is about 46 M at its narrowest point between continents, the maritime boundary between the two

96 LOSC, Art. 58 (1).

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countries runs between Big and Little Diomede Islands, belonging to Russia and the United States, respectively, where the distance is only about 2 M. Because of the location of these islands, together with Fairway Rock about 8 M east of Little Diomede Island, Bering Strait can, in terms of width,97 be considered to fulf il the requirements of a legal strait.98 But for the regime of transit passage to apply, the strait must also be used for international navigation. On the basis of the increasing number of vessels making use of the strait at present and the expected further growth,99 it can be safely assumed that the Bering Strait also fulf ils that legal condition as well.100 The fact that Russia and the United States jointly introduced a proposal to the IMO in 2018 to establish two-way shipping routes in the area further corroborates this point.101 Since the United States, contrary to Russia,102 has no system of prior authorisation in operation to sail through its EEZ in the Arctic Ocean, the use of this route would be totally governed by the regime of freedom of navigation, with transit passage being applicable while crossing the Bering Strait.

Northeast and Northwest Passages The situation, however, becomes much more complex when navigational rights are considered in the more promising routes – namely, the Northwest Passage – or even more so the Northeast Passage. Both gatekeepers of these passages – namely, Canada and Russia – very much extended their national jurisdiction almost simultaneously during the 1960s and the 1980s by using similar techniques sometimes beyond what was generally acceptable at the time the claims were made.103 This was remarkable for this evolution took place during the heyday of the Cold War, with the United States always trying to contain these developments. One of the methods employed, for instance, was the use of straight baselines in the area. As in the Antarctic context,104 the issue of baselines has specif ic characteristics in the Arctic, especially when trying to establish the navigational regimes in the Northeast and Northwest Passages. As these issues are, however, dealt with in more detail elsewhere in the present publication,105 suff ice it to say that their legality has been contested. Depending on the position one takes, navigational rights may vary between the regime of internal waters on the inside of these baselines,106 and transit passage

 97 Ibid., Art. 36 a contrario.  98 Stressing this particular aspect of the width of the Bering Strait, see Ana Gemma López Martín, International Straits: Concept, Classif ication and Rules of Passage (Heidelberg: Springer, 2010), 62–63.  99 On vessel traff ic in the Bering Strait and its expected increase, see Henry P. Huntington et al., “Vessels, Risks, and Rules: Planning for Safe Shipping in Bering Strait,” Marine Policy 51 (2015): 120–21. 100 Donald R. Rothwell, “International Straits and Trans-Arctic Navigation,” Ocean Development and International Law 43, no. 3 (2012): 273–74, and by the same author “The United States and Arctic Straits the Northwest Passage and the Bering Strait,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde and Ted L. McDorman (Leiden: Brill Nijhoff, 2015), 175–76; and A. N. Vylegzhanin, “Legal Status of the Bering Strait: Historical and Legal Context,” Jus Gentium: Journal of International Legal History 2 (2017): 512–14. 101 The system was adopted by the IMO Maritime Safety Committee (MSC) at its 99th session (May 16–25, 2018). See IMO Doc. SN.1/Cir.336, May 25, 2018. This voluntary scheme, recommended for ships of 400 gross tonnage and upwards, is attached as Annex IV. For a discussion including maps, see Henry P. Huntington et al., “The Role of Areas to Be Avoided in the Governance of Shipping in the Greater Bering Strait Region,” Marine Policy 110 (2019), doi: 10.1016/j.marpol.2019.103564. 102 See infra note 115 and accompanying text. 103 For a detailed account, see Franckx, Maritime Claims, 75–107, 145–97, 293–98. 104 See supra note 49 and accompanying text. 105 See Chapter 4 of this volume. 106 Possibly subject to a regime of innocent passage according to the LOSC, Art. 8 (2).

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on the other extreme. Because of this fundamental difference of opinion, Canada and the United States have tried to alleviate the concrete diff iculties they encountered in practice by concluding an “agreement to disagree.”107 Canada allows US icebreakers to make use of the Northwest Passage on condition that the vessels conduct marine scientif ic research while doing so, which allows the United States to ask for permission in conformity with the LOSC but is subsequently interpreted by Canada as permission to enter the Northwest Passage. It is only a practical solution to a very specif ic problem, without settling the underlying legal issue on which both parties continue to hold totally different positions. The latter agreement, moreover, only concerns US icebreakers but not, for instance, other government vessels, such as warships or submarines,108 or commercial vessels more generally.109 Another method relies on the application of the LOSC provision on ice-covered areas,110 which is also treated elsewhere in more detail.111 Both Canada and Russia have made extensive use of this provision, and suff ice it, once again, to state that the application of their respective national legislation enacted on that basis has given rise in practice to international concern. The United States, not being a party to the LOSC, does not contest Article 234 as such, which it considers to form part of customary international law112 but rather the application made of it in Canadian and Russian State practice, as will be addressed next. With respect to the Northern Sea Route, the United States issued a letter of protest113 after the Russian Federation reworked their Rules of Navigation in 2013.114 A good number of issues are raised in this letter that the United States considers contrary to Article 234, including that the requirement of prior notif ication or permission does not give “due regard to navigation” and is not

107 Agreement on Arctic Cooperation. Canada; United States of America, January 11, 1988, UNTS, vol. 1852, 59, 60–62 (1995). This agreement entered into force on January 11, 1988. As such, there are certain similarities with the manner in which the sovereignty issue in the Antarctic was settled (see supra note 36). Promoting this Antarctic approach in casu, see also Donald R. Rothwell, “The Canadian-U.S. Northwest Passage Dispute: A Reassessment,” Cornell International Law Journal 26, no. 2 (1993): 332–34, 360–66, and 368–72. 108 As specif ically stressed by Bernard H. Oxman, “Canada’s Arctic Waters,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde and Ted L. McDorman (Leiden: Brill Nijhoff, 2015), 199–200. 109 Ted L. McDorman, Salt Water Neighbors: International Ocean Law Relations Between the United States and Canada (New York: Oxford University Press, 2009), 250 (conf irming the very limited f ield of operation and emphasising that the agreement left the respective underlying legal positions of both parties intact (pp. 248–51)). 110 For an extensive bibliography on this particular issue, see Franckx and Boone, “Article 234,” 1567–68. 111 See Chapter 6 of this volume. 112 See, for instance, Brian Hoyle, “The United States Government Perspective,” in The United States without the Law of the Sea Treaty: Opportunities and Costs, ed. Lawrence Juda (Wakef ield: Time Press, 1983), 135. This author was the director of the Off ice of Law and Policy of the US Department of State. More generally, aff irming based on general State practice that even other States are now estopped from protesting this Arctic regime, see R. Douglas Brubaker, The Russian Arctic Straits (Leiden: Nijhoff, 2005), 108. But see Voelckel, “Les Routes Maritimes,” 170. 113 Diplomatic Note of the United States to the Russian Federation regarding its Northern Sea Route, May 29, 2015, reprinted in CarrieLyn D. Guymon, ed., Digest of United States Practice in International Law (Washington, DC: Off ice of the Legal Adviser, United States Department of State, 2015), 526–28. 114 Jan Jakub Solski, “New Developments in Russian Regulation of Navigation on the Northern Sea Route,” Arctic Review on Law and Politics 4, no. 1 (2013); Erik Franckx, “The ‘New’ Arctic Passages and the ‘Old’ Law of the Sea,” in Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea, ed. Henrik Ringbom (Leiden: Brill, 2015), 201–10, also describing the ensuing practice; and Viatcheslav Gavrilov, “Russian Legislation on the Northern Sea Route Navigation: Scope and Trends,” Polar Journal 10, no. 2 (2020): 276–78, also describing later changes. Ibid., 278–81.

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compatible more generally with the exercise of navigational rights and freedoms,115 warships should be exempted in accordance with Article 236, not allowing foreign flagged-icebreakers infringes the “non-discriminatory” nature of the regulation, and not all areas covered by the Northern Sea Route can be considered as ice-covered “for most of the year,”116 The Arbitral Tribunal in the Arctic Sunrise Arbitration did not have to rule on the issue as the incident had occurred in the Barents Sea and, thus, outside of the Northern Sea Route.117 Russia, absent in the proceedings, apparently did not claim that Article 234 was applicable to the incident.118 The Tribunal did, however, refer to an earlier incident with the same vessel that same summer when it had entered the Northern Sea Route without permission.119 That particular incident led to a letter of protest of the Dutch government stating that “the special measures concerning the Northern Sea Route cannot result in an unbridled restriction of the freedom of navigation.”120 Concerning the legal status of the Northwest Passage, Canada and the United States have quite different positions. In short, Canada claims these waters to be internal waters, not only because they are located on the inside of their system of straight baselines, as just referred to, but also on the basis of historic legal title, whereas the United States is of the opinion that the navigational rights of innocent and even transit passage are applicable.121 The United States also put on record the many problems it had concerning non-compatibility with Article 234 when Canada made its Northern Canada Vessel Traff ic Service Zone Regulations (NORDREG), a vessel traff ic service and ship

115 Or as stated recently by a Russian commentator: “Russia has so far de facto placed under its control the navigation of all foreign vessels in the NSR water area, without de jure extending its sovereignty thereto.” Viatcheslav Gavrilov, “Russian Legislation on the Northern Sea Route Navigation: Scope and Trends,” Polar Journal 10, no. 2 (2020): 282. 116 Contra Viatcheslav V. Gavrilov, Roman Dremliuga, and Rustambek M. Nurimbetov, “Article 234 of the 1982 United Nations Convention on the Law of the Sea and Reduction of Ice Cover in the Arctic Ocean,” Marine Policy 106 (2019), doi 10.1016/j.marpol.2019.103518, making the argument that ice cover reduction will have no impact on the application of Art. 234 LOSC. See also Roman Dremliuga, “A Note on the Application of Article 234 of the Law of the Sea Convention in Light of Climate Change: Views From Russia,” Ocean Development and International Law 48, no. 2 (2017): 128–35. A textual interpretation seems to go the other way: Jacques Hartmann, “Regulating Shipping in the Arctic Ocean: An Analysis of State Practice,” Ocean Development and International Law 49, no. 3 (2018): 292; Rolf Einar Fife, “Les régions polaires,” in Traité de droit international de la mer, eds. Mathias Forteau and Jean-Marc Thouvenin (Paris: Editions A. Pedone, 2017), 508–9; and Voelckel, “Les routes maritimes,” 173, 182 and 190. 117 See supra note 81. 118 The Arctic Sunrise Arbitration (Netherlands v. Russia), Annex VII Arbitration under the LOSC, Award on the Merits, August  14, 2015, paras 296–97, https://pcacases.com/web/sendAttach/1438 (Arctic Sunrise Arbitration). As duly remarked by Yoshifumi Tanaka, “Changing Paradigms in the Law of the Sea and the Marine Arctic,” International Journal of Marine and Coastal Law 35, no. 3 (2020): 457. 119 The Arctic Sunrise Arbitration, para. 296 and further reference in note 284. 120 Franckx, “The ‘New’ Arctic Passages,” 210, where this incident is also analysed in some detail (ibid., 207–10). 121 Clearly capturing this difference of legal opinions, see, for instance, Aldo Chircop, Peter G. Pamel, and Miriam Czarski, “Canada’s Implementation of the Polar Code,” Journal of International Maritime Law 24, no. 6 (2018): 431–32; David L. VanderZwaag, “Canada’s Arctic Disputes: Cooperative Bridges, Foggy Futures,” in A Bridge over Troubled Waters: Dispute Resolution in the Law of International Watercourses and the Law of the Sea, eds. Hélène Ruiz Fabri, Erik Franckx, Marco Benatar, and Tamar Meshel (Leiden: Brill Nijhoff, 2020), 447–49; and by the same author David L. VanderZwaag, “Canada and the Governance of the Northwest Passage: Rough Waters, Cooperative Currents, Sea of Challenges,” in Navigating Straits: Challenges for International Law, eds. David D. Caron and Nilufer Oral (Leiden: Brill Nijhoff, 2014), 99–101.

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reporting system grosso modo operational in waters north of latitude 60° up to the exterior limit of the Canadian EEZ,122 mandatory in 2010.123

The Polar Code The Polar Code, operational since 2017, is addressed elsewhere in the present publication.124 Nevertheless, two aspects deserve special attention in the framework of navigational rights and freedoms. Firstly, its f ield of application to both polar areas merits to be stressed, which makes it rather atypical in the present overview. Secondly, a few words will have to be devoted to its relation to Article 234 LOSC, as this issue still seems open to conjecture at present. Before turning to these issues, it seems nevertheless relevant to stress that even though one could have expected Canada and Russia to try as much as possible to protect their existing national legal frameworks, which they both did, they did not really present a common front during the negotiations at IMO as they both started from a different perspective: Canada focusing on the protection of the marine environment, in order to buttress its sovereignty claim, and Russia focusing on resource exploitation and its economic and military interest in the region as a flag State.125

Field of Application The application to both polar areas did not come easy.126 The originally drafted set of non‑legallybinding guidelines, which was f irst developed for the Arctic in 2002,127 was only extended to

122 For a description of NORDREG, see, for instance, Kristin Bartenstein, “Navigating the Arctic: The Canadian NORDREG, the International Polar Code and Regional Cooperation,” German Yearbook of International Law 54 (2011): 89–91. 123 For an overview of the diplomatic exchanges that took place, as well as other initiatives taken by the United States in this respect at IMO, see Wilcox, Elizabeth R., ed., Digest of United States Practice in International Law, 2010 (Oxford: Oxford University Press, 2010), 514–21. At IMO, the debates were inconclusive (Erik Jaap Molenaar, “Options for Regional Regulation of Merchant Shipping Outside IMO, with Particular Reference to the Arctic Region,” Ocean Development and International Law 45, no. 3 (2014): 278) resulting in Canadian and U.S. authors arguing their case. See, for instance, on the Canadian side: Ted L. McDorman, “National Measures of Navigation in Arctic Waters: NORDREG, Article 234 and Canada,” in The Law of the Sea Convention: US Accession and Globalization, ed. Myron H. Nordquist (Leiden: Nijhoff, 2012), 409–24 and by the same author “Canada, the United States and International Law of the Sea in the Arctic Ocean,” in Polar Oceans Governance in an Era of Environmental Change, eds. Tim Stephens and David L. VanderZwaag (Cheltenham: Edward Elgar, 2014), 261–66; on the U.S. side: James Kraska, “The Northern Canada Vessel Traff ic Services Zone Regulations (NORDREG) and the Law of the Sea,” International Journal of Marine and Coastal Law 30, no. 2 (2015): 225–54. See also Chapter 6 of this volume. 124 See Chapters 19 and 40 of this volume. 125 Dorottya Bognar-Lahr, “In the Same Boat? A Comparative Analysis of the Approaches of Russia and Canada in the Negotiation of the IMO’s Mandatory Polar Code,” Ocean Development and International Law 51, no. 2 (2020): 150–53, and by the same author focusing on Russia’s attitude, “Russia and the Polar Marine Environment: The Negotiation of the Environmental Protection Measures of the Mandatory Polar Code,” Review of European, Comparative and International Environmental Law 27, no. 1 (2018): 35–44. 126 Lawson W. Brigham, “The Emerging International Polar Navigation Code: Bi-Polar Relevance?” in Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention, ed. Davor Vidas (Cambridge: Cambridge University Press, 2000), 259–62. 127 IMO MSC, Guidelines for Ships Operating in Arctic Ice-covered Waters, IMO Doc. MSC/Circ.1056 and MEPC/ Circ.399 (2002).

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Antarctica in 2009.128 When it was decided to make it a legally binding document, the option was chosen to use the tacit acceptance procedures under the SOLAS129 and MARPOL130 conventions.131 This uniform application of the Polar Code in both polar areas, however, does not automatically imply that the same navigational rules will be applicable, as illustrated by the use and carriage of heavy fuel oils (HFOs). Even though the HFO issue had already been settled in the Antarctic by means of the introduction of a prohibition in 2011,132 a similar prohibition did not apply to the Arctic, and the introduction of the Polar Code did not change that133 because negotiations aimed at introducing such an HFO prohibition for the Arctic in the Polar Code failed.134 One had to wait until 2021 for such a ban to be f inally adopted.135 This HFO ban, it should be noted, will moreover only become fully operational medio 2029.136

Relationship with Article 234 Another intriguing issue, described by one author as the elephant in the room,137 is the question whether there exists a relationship between the Polar Code and Article 234, more particularly its provision on “due regard to navigation”: does the Polar Code create a minimum that Canada and Russia can supplement, or does it rather provide a maximum that these countries cannot surpass? This was already a heavily debated question at the time of its adoption.138 Even after its entry into force the dust has not yet completely settled,139 with Canadian and Russian authors

128 IMO Assembly, Guidelines for Ships Operating in Polar Waters, IMO Doc. A.1024(26) of December 2, 2009. 129 Convention for the Safety of Life at Sea. Multilateral convention, November 1, 1974, UNTS, vol. 1184, 2, 278–453 (1987), Art. VIII. This convention entered into force on May 25, 1980. 130 International Convention for the Prevention of Pollution from Ships. Multilateral convention, November 2, 1973, UNTS, vol. 1340, 61, 184–265 (1992), as amended by Protocol to the International Convention for the Prevention of Pollution from Ships. Multilateral protocol, February 17, 1978, UNTS, vol. 1340, 61, 62–89 (1992). Both documents entered into force on October 2, 1983. 131 J. Ashley Roach, “A Note on Making the Polar Code Mandatory,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde and Ted L. McDorman (Leiden: Brill Nijhoff, 2015), 125–40. 132 Z. Sun, “International Regulation of Heavy Fuel Oil Use By Vessels in Arctic Waters,” International Journal of Marine and Coastal Law 34, no. 3 (2019): 521–22, indicating that the prohibition was extended to such fuel being used as ballast after an incident with a f ishing vessel in 2014. 133 As stressed by Karen N. Scott and David L. VanderZwaag, “Polar Oceans and Law of the Sea,” in The Oxford Handbook of the Law of the Sea, eds. Donald R. Rothwell, Alexander Gerard Oude Elferink, Karen N. Scott and Tim Stephens (Oxford: Oxford University Press, 2015), 729. 134 The Polar Code f inally only included a recommendatory provision for the Arctic. Sun, “International Regulation,” 522–23. 135 Jonathan Saul, “UN Adopts Ban on Heavy Fuel Oil Use by Ships in Arctic,” Reuters, June 17, 2021, www.reuters.com/ business/energy/un-adopts-ban-heavy-fuel-oil-use-by-ships-arctic-2021-06-17/. 136 Anna Bradford and James Gamble, “Ban on Heavy Fuel Oil in the Arctic is Too Weak,” Policy Options, April 13, 2021, https://policyoptions.irpp.org/magazines/april-2021/ban-on-heavy-fuel-oil-in-the-arctic-is-too-weak/. 137 Dorottya Bognar, “The Elephant in the Room: Article 234 of the Law of the Sea Convention and the Polar Code As an Incompletely Theorised Agreement,” The Polar Journal 8, no. 1 (2018): 182–203. 138 Franckx and Boone, “Article 234,” 1584–85. See also Chapter 6 of this volume. 139 Zhen Sun and Robert Beckman, “The Development of the Polar Code and Challenges to Its Implementation,” in Global Commons and the Law of the Sea, ed. Keyuan Zou (Leiden: Brill Nijhoff, 2018), 324 (indicating that one of the questions that remains to be addressed is whether the Canadian and Russian regulations are consistent with the Polar Code).

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generally arguing that it remains a mere minimum140 and mainly United States scholars arguing otherwise.141

Conclusions When comparing navigational rights and freedoms in the Antarctic and Arctic, the main conclusion to be reached is that, even though there are points of convergence, navigational rights in the Arctic and the Antarctic remain clearly distinct. This is often to be explained by the different settings in which these rules have to operate. To give but one telling example, touched upon earlier: The reason that the prohibition of HFO could be established much earlier in the Antarctic when compared to the Arctic142 has simply to do with the absence of cargo moves in the Antarctic, a continent moreover subject to internationalisation, whereas such prohibition directly impacts the daily economic activities in the Arctic, with States not interested in costly self-regulation.143 The Polar Code, forming a rare direct link between the navigational regimes applicable at both poles, simply proved incapable of materialising that uniformity. A recent survey conducted with persons making use of the Polar Code in daily practice, moreover, reveals that insuff icient differentiation between its application in an Antarctic and Arctic context is generally agreed to form one of its shortcomings.144

140 For the Canadian point of view, see, for instance, Aldo Chircop, “The Polar Code and the Arctic Marine Environment: Assessing the Regulation of the Environmental Risks of Shipping,” International Journal of Marine and Coastal Law 35, no. 3 (2020): 569 (stating that reliance on Art. 234 is one of the options for coastal States “to take legislative and enforcement action with respect to pollution risks above and beyond IMO standards”), and the same author making a similar point in “Canada and the Polar Code: Balancing Unilateralism and Multilateralism in the Regulation of Arctic Shipping,” Belgian Review of International Law 51, no. 2 (2018): 401, and “Jurisdiction Over Ice-Covered Areas and the Polar Code: An Emerging Symbiotic Relationship?,” Journal of International Maritime Law 22, no. 4 (2016): 283; Kristin Bartenstein, “Between the Polar Code and Article 234: The Balance in Canada’s Arctic Shipping Safety and Pollution Prevention Regulations,” Ocean Development and International Law 50, no. 4 (2019): 350–52; and Ted L. McDorman, “Old Issues and New Developments Respecting International Navigational Rights and Obligations in Arctic Waters,” in The Belt and Road Initiative and the Law of the Sea, ed. Keyuan Zou (Leiden: Brill Nijhoff, 2020), 50–51. For the Russian point of view, see, for instance, Andrey Todorov, “Russia’s Implementation of the Polar Code on the Northern Sea Route,” Polar Journal 11, no. 1 (2021): 35–38, and by the same author “Coping With Def iciencies in the Polar Code: A Russian Perspective,” Polar Journal 10, no. 2 (2020): 325–26; M. Skaridova and A. Skaridov, “Implementation of the Polar Code in the Context of the Russian Arctic Policy and Northern Sea Route Regulation: A Commentary,” Journal of International Maritime Law 24, no. 6 (2018): 480–82 (mentioning compliance, but at the same time pointing at differences, with special emphasis on Art. 234 LOSC); and Yulia Bobrova, Anatoly Kapustin, and Vladimir Vasilyev, “The Northern Sea Route: National Legal Regime and the Polar Code,” Belgian Review of International Law 51, no. 2 (2018): 413–18 (rather emphasising the aspect of conformity). 141 J. Ashley Roach, Excessive Maritime Claims (Leiden: Brill Nijhoff, 2021), 593–94 (emphasising the lex specialis argument) and for a non-US source, see also Saied Satei, “The Legal Status of the Northwest Passage: Canada’s Jurisdiction or International Law in Light of Recent Developments in Arctic Shipping Regulation?” in Sustainable Shipping in a Changing Arctic, eds. Lawrence P. Hildebrand, Lawson W. Brigham, and Tafsir Johansson (Cham: Springer, 2018), 249–50 (Polar Code should be suff icient to meet Canada’s environmental concerns). About the implementation by the United States, see Phillip A. Bühler, “US Polar Policy and Implementation and Interpretation of the Polar Code: Background and Prognosis,” Journal of International Maritime Law 24, no. 6 (2018): 493–99. 142 See supra notes 132–136 and accompanying text. 143 Sun, “International Regulation,” 523–25. 144 Meric Karahalil et al., “The Evaluation of the Polar Code By the Survey Conducted With Those Who Have Sailed in Polar Regions, and Suggestions for Further Improvement,” Marine Policy 128 (2021), doi: 10.1016/j.marpol. 2021.104502.

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What both poles do have in common is that legal ingeniousness is often relied upon to sidestep irreconcilable legal positions by the parties involved. Agreements to disagree help the parties forward at present, in the Antarctic and in the Arctic, sometimes written down in an international agreement but sometimes also simply subsumed and lingering below the horizon. The robustness of these kinds of solutions, unfortunately, always depends on what the future may bring. And if some development upsets the fragile equilibrium at its root, one is often simply projected back in time. Again, one example will suff ice to drive home this point. When the French Navy vessel Rhône conducted a transit through the Northern Sea Route during the month of September 2018,145 this was the f irst foreign government vessel having sailed the entire route without apparently having asked for permission.146 A Russian source on the incident, the title of which indeed suggests that no such permission was asked, however, states that the vessel was escorted by a Russian icebreaker, something the reports in the French press did not reveal according to this same Russian source.147 And when such an event occurs, one is in fact back at square one, with the press reporting national positions and scholars making assumptions of what impact this may have on the right of innocent passage, especially as related to warships, transit passage, the status of certain straits148 – all things which differ little from similar evaluations already made in the past.149 Unless these fundamental underlying sources of conflict are solved one day, they will be like sleeping dogs lying around, but awaiting to be disturbed by some (un)intended event.

145 Sandra Ferrer, “Arctique: le passage Nord-Est franchi pour la première fois par la Marine française,” leDroit, Octobre 2, 2018, www.ledroit.com/actualites/monde/arctique-le-passage-nord-est-franchi-pour-la-premiere-fois-par-la-marinefrancaise-5c9f848d1911b9bb8691d02e7a738ed3. 146 Even the United States has stopped attempting to sail the whole Northern Sea Route by means of a surface vessel more than half a century ago. Sean Fahey, “Access Control: Freedom of the Seas in the Arctic and the Russian Northern Sea Route Regime,” Harvard National Security Journal 9, no. 2 (2018): 196. 147 Vladimir Scsherbakov, “Flot NATO vorvalsiia v Russkuiu Arktiku (NATO Fleet Breaks Into the Russian Arctic),” Nezavisimoe, October 4, 2018, https://nvo.ng.ru/nvo/2018-10-04/100_181004flot.html. A French news livestream of the preceding day, however, clearly stated that the transit by the Rhône had been effectuated without any icebreaker assistance, something which the accompanying video seems to conf irm www.google.com/url?sa=t&rct=j&q=&esrc= s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjYzbWPwI7yAhVWO-wKHXHQC3cQuAIwAnoECAM QBg&url=https%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DBk0nzmrypmM&usg=AOvVaw31FmYaNbzA HK883XS9H5HH. 148 See, for instance, Jan Jakub Solski, “Navigational Rights of Warships Through the Northern Sea Route (NSR) – All Bark and No Bite,” May  31, 2019, https://site.uit.no/nclos/2019/05/31/navigational-rights-of-warships-throughthe-northern-sea-route-nsr-all-bark-and-no-bite/. 149 See, for instance, Erik Franckx, “Non-Soviet Shipping in the Northeast Passage, and the Legal Status of Proliv Vil’kitskogo,” Polar Record 24, no. 151 (1988): 269–76.

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8 SCIENTIF IC RESEARCH IN THE POLAR REGIONS Betsy Baker

Introduction: The Polar Regions and Polar Science The international legal regime for conducting scientif ic research in the polar regions is f irmly anchored in global and regional agreements. The regime’s foundations are stable as it enters the 2020s but would benef it from reinforcements to withstand the converging stressors of climate change, increased geopolitical interest from beyond the polar regions, scientif ic and technological advances and the welcome amplif ication of Indigenous and other forms of knowledge relevant to understanding the poles and their signif icance for the planet.1 With the polar regions warming three to four times faster than the rest of the planet,2 sustained research on changes in the Arctic and the Antarctic, their contributions to climate change and their role in global atmospheric and oceanic systems is essential. Instructive comparisons of physical, biological and geopolitical characteristics in the Arctic and Antarctica are manifold.3 Three of the most basic comparisons are also the most relevant to the legal regime for polar science: (1) people reside permanently in the Arctic but not the Antarctic; (2) in the Arctic, sovereign States assert territorial jurisdiction, while the Antarctic Treaty (AT) effectively suspends State’s territorial claims; and (3) the Arctic is an ocean mostly surrounded by land while Antarctica is a vast continent surrounded by ocean. The f irst difference implicates the need for

1 Timing precludes discussion of the disruption to polar scientif ic cooperation (still occurring as this chapter goes to press in March 2023) resulting from Russia’s further invasion of Ukraine in February 2022, but see e.g. Alison Snyder and Andrew Freedman, “Polar Science Threatens to Crack under Strain of Russia’s War in Ukraine,” Axios (April 7, 2022), https://www.axios.com/2022/04/07/arctic-polar-science-russia-collaboration-ukraine-war. 2 Kyle R. Clem et al., “Record Warming at the South Pole during the Past Three Decades,” Nature Climate Change 10 (2020): 762–70, and Mika Rantanen, “The Arctic Has Warmed Nearly Four Times Faster than the Globe Since 1979,” Communications, Earth & Environment 3 (2022): 168. 3 Julia Jabour and Marcus Haward, “Antarctic Science: Politics and IPY Legacies,” 101–24; Donald R. Rothwell, “The IPY and the Antarctic Treaty System: Reflections 50 Years Later,” in Legacies and Change in Polar Sciences, Historical, Legal and Political Reflections on the International Polar Year, eds. Jessica Shadian and Monica Tennberg (London and Burlington, VT: Ashgate, 2009), 125–44; Alex Oude Elferink, Erik J. Molenaar, Donald R. Rothwell, “The Regional Implementation of the Law of the Sea and the Polar Regions,” in The Law of the Sea and the Polar Regions. Interactions between Global and Regional Regimes, eds. Erik J. Molenaar et al. (Leiden and Boston: Martinus Nijhoff, 2013), 1–16.

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scientists working in the Arctic to engage with Indigenous knowledge (IK), local knowledge and community research needs and desires, as well as co-production of knowledge. The second and third differences implicate the level of authority States have or are subject to regarding scientif ic activity in each region and the relatively greater attention to marine scientif ic research in the Arctic compared to robust programs of terrestrial and marine research in Antarctica. One biophysical trait the regions share is that species and pollutants may travel very long distances along marine and atmospheric pathways to reach one or both poles,4 rendering collective international instruments more likely to address the issues successfully than individual State efforts. Regarding polar science, “the primary similarity between the Arctic and the Antarctic is their importance in adding to the scientif ic understanding of global processes, and of intrinsic polar processes.”5 This shared import is true even though the regions contrast “in terms of topography, land and ocean distribution, oceanic and atmospheric circulations, ecology and the nature of human intervention.”6 How the polar regions are changing in response to climate change and related factors is recognised at the highest levels, including the IPCC 2019 Special Report on Oceans and Cryosphere: The polar regions are losing ice, and their oceans are changing rapidly. The consequences of this polar transition extend to the whole planet, and are affecting people in multiple ways.7 Changes observed include shifts in movement and location of f ish stocks, variability in ocean temperature, salinity, and productivity, dramatically diminished sea ice extent and thickness, and oceanic and atmospheric circulation patterns.8 Scientif ic and technical developments transforming polar science in the early 21st century include genetic technologies, autonomous research platforms and deep-sea mining potential, combined with increased demand for rare earth minerals, shipping, and the management and linkage of vast volumes of data, including that generated by interdisciplinary, citizen science and, in the north, IK.

Global Components of the Legal Regime for Polar Science The UN Convention on the Law of the Sea (LOSC)9 is the most signif icant global agreement in the legal regime for conducting marine polar scientif ic research. It is complemented by the regional arrangements in the Arctic and Antarctic discussed in the next section, as well as national research programs. The LOSC applies directly only to research in marine areas but interfaces with several multilateral agreements relevant to terrestrial and atmospheric phenomena in the polar regions, such as the Convention on Biological Diversity (CBD)10 and UN

4 Ibid., Oude Elferink et al., “Regional Implementation,” 1. 5 Jabour and Haward, “Antarctic Science,” 102. 6 Richard Hodgkins, “Polar Feedbacks in a Changing Climate,” in The Routledge Handbook of the Polar Regions eds. Mark Nuttal et al. (London and New York: Routledge, 2018) [Routledge HB PR (2018)], 251–62, 251. 7 Michael Meredith and Martin Sommerkorn et al., “Polar Regions,” in IPCC Special Report on the Ocean and Cryosphere in a Changing Climate, eds. H.-O. Pörtner et al. (IPCC, 2019, in press), 205. See also Jacqueline Richter Menge et al., NOAA Arctic Report Card 2020, 15 Years of Arctic Observation: A Retrospective (Washington, DC: NOAA, 2021). 8 See e.g. Jabour and Haward, “Antarctic Science,” 201. 9 LOSC, Montego Bay, December 10, 1982, 1833 UNTS 396. Entered into force November 16, 1994. 10 CBD, Rio de Janeiro, June 5, 1992, 1760 UNTS 79. Entered into force December 29, 1993.

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Framework Convention on Climate Change (UNFCCC).11 Emerging principles that affect the conduct of science may be found in other instruments like the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).12 The international law of the sea, including the 1982 LOSC, anchors the global legal regime for the oceans.13 Preceded by the four conventions adopted at the 1958 First UN Conference on the Law of the Sea held in Geneva,14 the LOSC has been ratif ied by 168 States Parties and many of its provisions are considered customary international law.15 Two additional agreements implement the LOSC, one on deep-sea mining and the other on f ish stocks.16 Negotiations for a third implementing agreement on biodiversity beyond national jurisdiction (BBNJ) concluded with an agreed text on March  4, 2023, which was expected to be formally adopted soon thereafter.17 Prior to the 1958 LOS Conference, marine scientif ic research (MSR) was largely unconstrained, even though the coastal State’s right to regulate MSR in its territorial waters was presumed. Following adoption of the four Geneva Conventions, MSR was not among the rights of foreign vessels in the territorial sea. Inclusion of the exclusive economic zone (EEZ) in the 1982 LOSC combined with its other provisions to give coastal States an “almost exclusive” right to regulate scientif ic activity in their territorial sea, EEZ and on their continental shelf, which together then constituted almost 40% of the world’s oceans.18 LOSC Art. 87 explicitly recognises what was implied in the 1958 Continental Shelf Convention:19 that the freedom of scientif ic research is a high-seas freedom, albeit subject now to Part VI on the Continental Shelf and Part XIII, which is dedicated exclusively to MSR and begins with Art. 238: All States . . . and competent international organizations have the right to conduct marine scientif ic research subject to the rights and duties of other States as provided for in this Convention.

11 UNFCCC, New York, May 9, 1992, 1771 UNTS 107. Entered into force March 21, 1994. 12 UN General Assembly, Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295), September 13, 2007. 13 Donald R. Rothwell, “Polar Oceans Governance in the 21st Century,” Ocean Yearbook 26 (2012): 343–60, 344, 346. J. Ashley Roach, “Today’s Customary International Law of the Sea,” Ocean Development & International Law 45 (2014): 239–59. 14 The 1958 Geneva UN Conference on the Law of the Sea produced four conventions: Territorial Seas and the Contiguous Zone, High Seas, Fishing and Conservation of the Living Resources of the High Seas, and Continental Shelf. United Nations Codif ication Division Publications, https://legal.un.org/diplomaticconferences/1958_los/. 15 All Arctic States except the United States are party to LOSC; 27 of 29 consultative parties to the Antarctic Treaty are party to the LOSC, Peru and the United States being the two exceptions. 16 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of December 10, 1982, New York, July 28, 1994, 1836 UNTS 42. Entered into force July 28, 1996; Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, August 4, 1995, 2167 UNTS 3. Entered into force December 11, 2001. 17 “UN Delegates Reach Historic Agreement on Protecting Marine Biodiversity in International Waters,” UN News (March  5, 2023), https://news.un.org/en/story/2023/03/1134157. See also “Draft Agreement 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,” https://www.un.org/bbnj/sites/www.un.org.bbnj/f iles/draft_agreement_ advanced_unedited_for_posting_v1.pdf. 18 John A. Knauss, “The Effects of the Law of the Sea on Future Marine Scientif ic Research and of Marine Scientif ic Research on the Future Law of the Sea,” Louisiana Law Review 45 (1985): 1201–19, 1201–4. 19 Ibid., 1205.

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Their right to conduct MSR in the water column beyond the EEZ is thus a high-seas freedom. On the continental shelf and landward of the high seas, however, MSR is subject to coastal State consent, which may be implied as stipulated (Art. 252), while explicit coastal State consent is required in the territorial seas (up to 12 M) (Art. 245). The LOSC requires MSR to comply with all relevant regulations, including environmental regulations “adopted in conformity with the Convention,” Art. 240(c), and with those established by or pursuant to other international and regional agreements and national legislation adopted in conformity with the LOSC, Art. 240(d). General obligations of global and regional cooperation regarding the oceans are elaborated throughout the LOSC and give States considerable leeway in how they will shape that cooperation in at least two respects: “what constitutes the appropriate framework for cooperation and the content of the rules of a specif ic regulatory regime.”20 Under Art. 239, all States “shall promote and facilitate the development and conduct of MSR.” While this may not rise to a binding legal obligation to conduct ocean research, other articles (e.g. Arts. 242–245, 255, 266, and 275–277) express “specif ic formulations of the duty to promote MSR and international cooperation in scientif ic endeavors.”21 The fact that MSR is not def ined in the LOSC raises such questions as whether pure and applied science are both considered MSR22 and determining which new technologies are covered by the rules of Part XIII.23 Recent examples include the evolution and expanded use of research tools such as drifting ice-tethered observatories and underwater autonomous vehicles (UAVs)24 to measure oceanographic characteristics, or remote in-situ data collection via satellite sensing to detect surface ice and other phenomena.25 Issues range from how to characterise these tools under Part XIII to what liability exists under the Convention, if any, for harm caused by those technologies. How the ice-tethered and UAV technologies are classif ied (e.g. as a scientif ic research installation or as [presumably more mobile] research equipment) in turn affects the researching State’s obligations, among others, to notify coastal States of the onset, geographic location, use and/or removal of technologies under Arts. 246 and 249. Liability issues extend to whether the State sponsoring the research or the researching entity itself is liable for infringements of the LOSC. Both inquiries have practical

20 Oude Elferink et al., “Regional Implementation,” 3. 21 Anna-Maria Hubert, “The New Paradox in Marine Scientif ic Research: Regulating the Potential Environmental Impacts of Conducting Ocean Science,” Ocean Development & International Law 42 (2011): 329–55. 22 Generally speaking, they are, but see e.g. Chuxiao Yu, “Implications of the UNCLOS Marine Scientif ic Research Regime for the Current Negotiations on Access and Benef it Sharing of Marine Genetic Resources in Areas Beyond National Jurisdiction,” Ocean Development & International Law 51, no. 1 (2020): 2–18. Hua Zhang, “Redef ining Marine Scientif ic Research in UNCLOS, Could Evolutionary Interpretation Play Any Role?” in Marine Scientif ic Research, New Marine Technologies and the Law of the Sea, eds. Kayuan Zuo and Anastatsia Telesetsky (Leiden: Brill and Nijhoff, 2020), 40–62. 23 Hilde Woker et al., “The Law of the Sea and Current Practices of Marine Scientif ic Research in the Arctic,” Marine Policy 115 (2020): 103850. 24 Woker et al., “The Law of the Sea and Current Practices,” describe an ice-tethered observatory “as a buoy equipped with different sensors to perform measurements in the ice and/or the underlying water column. The term ‘ice-tethered’ refers to the deployment of the observatory, which is done by drilling a hole in the ice and lowering the observatory into the underlying water column until the sensors reach the targeted depth.” Ibid., 6. AUVs are “programmable, robotic vehicles that, depending on their design, can drift, drive, or glide through the ocean without real-time control by human operators. Some AUVs communicate with operators periodically or continuously through satellite signals or underwater acoustic beacons to permit some level of control.” Woods Hole Oceanographic Institution, www.whoi.edu/ what-we-do/explore/underwater-vehicles/auvs/. 25 Woker et al., “The Law of the Sea and Current Practices,” 6.

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consequences for those engaged in marine research with similar technologies in the polar regions.26 The challenge is how to “give effect” to LOSC obligations, including balancing the freedom of scientif ic research with protecting the marine environment without hampering MSR.27 No global counterpart to the LOSC exists for the conduct of terrestrial or atmospheric research. Other multilateral conventions governing environmental and resource matters that reference science relate only indirectly to the conduct of research, including polar research.28 Their relevant provisions generally indicate the importance of science for the purpose of the agreement by requiring science-based decisions and the use of best available science, establishing science advisory bodies or mandating research cooperation.29 Arctic Council WGs have also worked with the broader scientif ic community to contribute to the formation or ongoing work of several multilateral environmental agreements.30 Other instruments also influence the global legal regime for science by articulating emerging principles and practices that can shape the international community’s understanding of how science and knowledge are conducted. The UNDRIP Art. 31.1 declares the right of Indigenous Peoples “to maintain, control, protect and develop their  .  .  . traditional knowledge  .  .  .  , as well as the manifestations of their sciences, technologies and cultures,” and their intellectual property over that knowledge. This goes well beyond the conditional commitment of States some 15 years earlier in CBD Art. 8(j), to “as far as possible and as appropriate” and subject to national legislation, “respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity” and promote their wider application with approval and involvement of Indigenous Peoples. No global treaty has yet mandated the use of IK alongside scientif ic knowledge in management decisions, but a regionally legally binding Arctic-specif ic agreement has. The 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA)31 explicitly acknowledges the UNDRIP in the preamble and stipulates the use of IK in research programs (Art. 4.4) and decisions by the parties (Art. 5.1.b). In the Arctic, diverse expressions of the importance of Indigenous rights and knowledge since the UNDRIP and the relatively greater advocacy power of groups such as Inuit Circumpolar Council (ICC) and the permanent participants can be traced from the UNDRIP to the CAOFA and the mention of IK in the Arctic Science Cooperation Agreement (SCA).32 Related needs include understanding that IK, traditional ­knowledge

26 For examples, see Woker et al., “The Law of the Sea and Current Practices,” passim, and Tobias Hofmann and Alexander Proelss, “The Operation of Gliders under the International Law of the Sea,” Ocean Development & International Law, 46, no. 3 (2015): 167–87, referencing, e.g. the 1993 Draft Convention on the Legal Status of Ocean Data Acquisition Systems, Aids and Devices. 27 Woker et al., “The Law of the Sea and Current Practices,” 8. 28 Mark Nuttall, “Conservation and Environmental Governance in the Polar Regions,” in Routledge HB PR (2018) (London and New York: Routledge, 2018), 416–31 (discussing many such conventions). 29 Hubert, “The New Paradox,” 337. Such science references include the CBD (Art. 12, Research/Training), UNFCCC Paris Agreement (Art. 7.5, best available science), Stockholm Convention on Persistent Organic Pollutants (Art. 11, Research, development/monitoring), Minimata Convention on Mercury (Art. 17, Information exchange). 30 Akiho Shibata, “Japan and 100 Years of Antarctic Legal Order: Any Lessons for the Arctic,” Yearbook of Polar Law 7 (2015): 3–54, 34. 31 Ilulissat, October 3, 2018. Entered into force June 25, 2021, OJ L 73, 15.3.2019, pp. 3–8. For the CAOF Agreement, see Chapter 16 of this volume. 32 The Agreement on Enhancing International Arctic Scientif ic Cooperation, Fairbanks, May 11, 2017. Entered into force May 23, 2018, http://hdl.handle.net/11374/1916. See e.g. Nigel Bankes, “Arctic Ocean Management and Indigenous Peoples: Recent Legal Developments,” Yearbook of Polar Law 11 (2019): 81–120.xf.

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and local knowledge are distinct knowledge sources,33 protecting the intellectual property rights of IK holders,34 and practising genuine co-production of knowledge to involve IK holders and scientists as equal partners from the inception in identifying and ref ining research questions through to the project’s end.35 Antarctica has no Indigenous population, but scientif ic endeavour there has expanded the range of relevant knowledge sources in its own way. That other disciplines now work alongside and interdisciplinarily with the natural sciences is reflected, such as in the inclusion of a human dimensions component in the 2007–2008 International Polar Year (IPY) and in the establishment by the Scientif ic Committee on Antarctic Research (SCAR) of a Standing Committee on Humanities and Social Sciences in 2018.36

Arctic and Antarctic Regional Agreements in Global and Polar Context In 2019 the IPCC concluded, The capacity of governance systems in polar regions to respond to climate change has strengthened recently, but the development of these systems is not suff iciently rapid or robust to address the challenges and risks to societies posed by projected changes.37 A similar conclusion applies to the legal regime for the poles, which complements and is a subset of polar governance systems.38 The fact that the regional legal regimes for the Arctic and Antarctic are largely independent of one another is both a strength and weakness of polar governance generally and as it relates to polar research. Both regional regimes, however, must interact with each other and with the global legal regime for polar science to effectively implement agreed norms, such as the ecosystem and precautionary approaches to resource management.39 Resolution of any conflict between treaties is found in the general rules of international law, such as lex specialis and specif ic treaty provisions addressing the relationship between agreements.

33 Inuit Circumpolar Council, Policy Paper on the Matter of “Local Communities” (2020), distinguishes between IK and local knowledge. See also IASC Handbook of Procedures & Guidelines, Version: April 16, 2020; Helen Wheeler et al., “The Need for Transformative Changes in the Use of Indigenous Knowledge Along with Science for Environmental Decision-Making in the Arctic,” People and Nature, 2, no. 3 (2020): 544–56. 34 E.g. the September 2021 Arctic Council Seminar on Intellectual Property Rights of Indigenous Peoples to Knowledge, Cultures, and Languages in the Times of Digitalization; Robert P. Wheelersburg and Sean Melvin, “Indigenous Intellectual Property Rights in the Arctic,” Arctic Yearbook 2017 (2017): 1–15. 35 E.g. Carolina Behe and Raychelle Daniel, “Indigenous Knowledge and the Co-production of Knowledge Process: Creating a Holistic Understanding of Arctic Change,” State of the Climate in 2017. Bulletin of the American Meteorological Society 99, no. 8 (2018): Si–S310, eds. Jessica Blunden, Derek S. Arndt, and Gail Hartf ield, doi:10.1175/2018BAMSSta teoftheClimate.1., Sidebar 5.2, S160–61. 36 Anthropocene Antarctica: Perspectives from the Humanities, Law and Social Sciences, eds. Elizabeth Leane and Jeffrey McGee (London: Routledge, 2019). 37 Meredith and Sommerkorn et al., eds., “Polar Regions,” 208, italics added. 38 Rasmus Gjedssoø Bertelsen, “The International Political Systemic Context of Arctic Marine Resource Governance,” in Arctic Marine Resource Governance and Development, eds. Niels Vestergaard et al. (Cham, Switzerland: Springer, 2018), 3–17, 4. 39 Molenaar et al., The LOS and the Polar Regions, vii, 7. For territorial claims to Antarctica, see Chapter 3 of this volume.

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The Antarctic lacks a permanent human population yet possesses a well-established system of binding legal agreements anchored in the umbrella of AT,40 which effectively places territorial claims to the continent in abeyance through Article IV. By contrast, the Arctic has some four million permanent residents, eight Arctic States (A8) with established sovereign territory41 and no overarching regional treaty, although three legally binding multilateral agreements between the A8 were negotiated under the auspices of the Arctic Council (AC) on narrow topics in the 2010s. Independent of the AC, a subset of Arctic States signed the CAOFA, which stipulates the use of science, IK and local knowledge in joint research programs and decision-making. Despite these differences, each pole possesses “a regional body with cross-sectoral competence” – the ATCM (Antarctic Treaty consultative meeting) and the AC – as well as “a number of sectoral regimes in relation to such issues as f isheries and navigation.”42 The ATCM and AC held their f irst joint meeting in 2009.43 Others have noted the contrast of Antarctica having a coherent legal system with an overarching agreement while the populated Arctic does not.44 The difference is explained primarily by the fact that clearly recognised territorial entitlements in the Arctic exist pursuant to State sovereignty, but also in part by the geopolitics of their regimes’ respective founding eras. These were separated by three decades of developments in legal and scientif ic responses to the challenges facing the two regions. The A8 established the AC in 1996 as the successor to their 1991 Arctic Environmental Protection Strategy (AEPS),45 which generated unprecedented scientif ic cooperation between Russia and the other Arctic States. Both institutions were direct products of the Cold War thaw embraced by Mikhail Gorbachev in his pragmatic and conciliatory 1987 speech at Murmansk. This was the era of burgeoning international environmental law46 and the 1994 entry into force of the LOSC, which offered a new legal framework to the predominantly marine Arctic. The AT, by contrast, was signed almost 30 years earlier, a year after signature of the 1958 Conventions on the Law of the Sea and when international environmental law was merely a “glimmer” on the horizon.47 Scientif ic cooperation in the International Geophysical Year (IGY) 1958–59 was a bright spot in otherwise tense relations between the USSR and many other States. Four IPYs and a half-century later, the link between science and the legal regimes in both poles has been simultaneously cemented and challenged as they increasingly interact with new “actors, interests and regimes.”48

40 The Antarctic Treaty, Washington, December 1, 1959, 402 UNTS 711. Entered into force June 23, 1961. 41 Canada, Denmark in respect of Greenland, Finland, Iceland, Norway, Russian Federation, Sweden, United States. 42 Oude Elferink et al., “Regional Implementation,” 16. 43 Joint Session of the ATCM and the Arctic Council, 50th Anniversary of the Antarctic Treaty, Washington DC, April 6, 2009), www.state.gov/secretary/rm/2009a/04/121314.htm. 44 Jabour and Haward, “Antarctic Science,” 101 ff. 45 AEPS, June 14, 1991, International Legal Materials 30: 1624–69. Ottawa Declaration on the Establishment of the Arctic Council, September 19, 1996. 46 See e.g. Edith Brown Weiss, “The Evolution of International Environmental Law,” Japanese Yearbook of International Law 54 (2011): 1–27. 47 Ibid., 2. 48 Klaus Dodds, “The Antarctic Treaty, Territorial Claims and a Continent for Science,” in Routledge HB PR (2018) (London and New York: Routledge, 2018), 265–74, 272–73.

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Antarctic Regional Agreements for Scientif ic Research: The Antarctic Treaty System The Antarctic Treaty System (ATS49) has the “fundamental purpose” of protecting the Antarctic continent and the waters south of 60°S as a region of peace and science50 and comprises four main instruments. Their combined rules, especially those of the AT Protocol on Environmental Protection (Madrid Protocol), constitute “the only real limitation that has been imposed on the freedom of scientif ic research throughout the duration of the treaty.”51 Article II of the AT cements “Freedom of scientif ic investigation in Antarctica and cooperation toward that end” as a foundation to the ATS. The level of a State’s scientif ic activity determines authority within the AT. Voting status is accorded to the consultative parties (CPs) – the 12 original members and subsequently acceding States who demonstrate their “interest in Antarctica by conducting substantial scientif ic research activity there, such as the establishment of a scientif ic station or the dispatch of a scientif ic expedition” (Art. IX.2). The 1980s and 1990s saw increased interest in Antarctic resources combined with growing concerns over AT exclusivity, the high barrier to CP status and the proliferation of research stations on the wilderness continent that resulted from the “substantial scientif ic research activity” requirement for CP status. These factors helped lead to an expanded understanding of what constitutes “substantial” activity and an increase in CP membership.52 The SCAR was established in 1958 to build on the IGY’s surprisingly productive and collaborative international science in Antarctica amidst Cold War and other tensions. Founded as a body of the International Council for Science (ICSU), SCAR is not mentioned in the AT but the CPs relied on a SCAR report at their f irst consultative meeting (1961) to help rectify the lack of specif ic conservation measures in the AT and encouraged SCAR to continue its advisory work which “so effectively facilitated international cooperation in scientif ic investigations” (Recommendation I– IV).53 SCAR continued to provide independent and objective scientif ic advice to the AT in early years on such matters as sealing and biomass, contributing to development of the related conventions (CCAS and CAMLR) that are now part of the ATS.54 Following political disagreements over SCAR’s capacity in the 1980s/1990s, subsequent reforms and SCAR’s positive engagement with

49 The Protocol on Environmental Protection to the Antarctic Treaty, Madrid January 14, 1998. Entered into force January 14, 1998. 2491 UNTS 5778. Montreal Protocol Art. 1(e), def ines “Antarctic Treaty system” (lower case “s”) as “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.” 50 John R. Dudeney and David W. H. Walton, “Leadership in Politics and Science Within the Antarctic Treaty,” Polar Research 31, no. 1 (2012): 1.1–2. AT Art. I, “Antarctica shall be used for peaceful purposes only,” and Art II, “Freedom of scientif ic investigation in Antarctica and cooperation toward that end,” as practised in the IGY shall continue. Montreal Protocol Art. 2 designates Antarctica “as a natural reserve, devoted to peace and science.” But see Dodds, “The Antarctic Treaty,” 266, challenging “a near-dominant view that the [AT’s] genesis lies with the IGY and the altruistic scientist and diplomats.” See also Chapter 22 in this volume regarding the ATS. 51 Rothwell, “The IPY,” 125–44, in Shadian and Tennberg, Legacies and Change. 52 Dodds, “The Antarctic Treaty,” 272–73; Sanjay Chaturvedi, “The Future of Antarctica: Minerals, Bioprospecting, and Fisheries,” in Routledge HB PR (2018) (London and New York: Routledge, 2018), 403–15, 406. 53 Recommendation I-IV quoted in D. W. H. Walton, “The Scientif ic Committee on Antarctic Research and the Antarctic Treaty,” in Science Diplomacy, eds. Paul A. Berkman et al. (Washington, DC: Smithsonian Institution Scholarly Press, 2011), 75–88, 78. On conservation measures at the 1961 meeting see Recommendation I-VIII and III-VIII, discussed at Walton, “The Scientif ic Committee on Antarctic Research and the Antarctic Treaty.” 54 Walton, “The Scientif ic Committee on Antarctic Research and the Antarctic Treaty”; Kevin Hughes et al., “Antarctic Environmental Protection: Strengthening the Links Between Science and Governance,” Environmental Science & Policy 83 (2018): 86–95, 91, observes that SCAR has observer status at the CCAMLR but does not directly provide the Commission with advice.

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the Madrid Protocol’s Committee for Environmental Protection, SCAR’s recognised strengths now include bringing the work of scientists from multiple countries and disciplines to bear on scientif ic and policy problems that are diff icult for countries to tackle on their own.55 For example, recommendations from the 2019 ATCM annual meeting include ATCM R6 on hydrographic mapping of Antarctica and ATCM R7 on the Role of SCAR in Providing Scientif ic Advice to Support the Work of the ATS. SCAR produces codes of conduct and recommendations for a range of scientif ic activities in Antarctica primarily involving environmental and related guidance for f ieldwork.56 Common and complementary obligations for the conduct of scientif ic activity in Antarctica emerge from the AT (Arts. II and VII), Madrid Protocol (Art. 6.1), ATCM Recommendations and SCAR’s advisory work: providing advance notice and information exchange regarding planned scientif ic activity, exchanging personnel, sharing scientif ic observations and results, following common data management recommendations, and cooperating on matters relating to environmental planning, assessment, facilities siting and joint expeditions.57 CAMLR conservation measures (CMs) dealing with “Research and Experiments” relate broadly to the taking of living organisms found south of the Antarctic Convergence.58 The Madrid Protocol (Art. 8 and Annex I) subjects scientif ic activity in Antarctica to environmental impact assessment (EIA). The obligation to avoid “adverse effects on climate or weather patterns” in Madrid Protocol Art. 3(2)(b)(i) has been suggested as a basis for requiring EIAs to also evaluate climate change implications of the proposed scientif ic activity.59

The Regional ATS – International Law of the Sea Relationship: Ambiguity and Restraint The AT, its Madrid Protocol and the CAMLR Convention have three different spatial scopes, each with the potential to interact differently with LOSC provisions on MSR.60 The AT and Madrid Protocol apply to the area the AT def ines as the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area. (AT Art. VI, italics added)

55 Walton, “The Scientif ic Committee on Antarctic Research and the Antarctic Treaty”; Hughes et al., “Antarctic Environmental Protection,” 91. 56 A current list is maintained at www.scar.org/policy/scar-codes-of-conduct/. National research bodies also maintain codes of conduct for Antarctica (e.g. www.antarctica.gov.au/science/australian-antarctic-science-strategic-plan/ information-for-scientists/research-guidelines/code-of-conduct-in-research/). 57 René Lefeber, “Marine Scientif ic Research in the Antarctic Treaty System,” in The LOS and the Polar Regions, eds. Erik J. Molenaar et al. (Leiden and Boston: Martinus Nijhoff, 2013), 325, n. 18 lists multiple examples. 58 See Art. IX, CAMLR Convention and e.g. CM 24–01(2019), The Application of [CMs] to Scientif ic Research, on catch limits, research plans, vessel and reporting requirements. 59 Duncan French and Karen Scott, “International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late,” Melbourne Journal of International Law 10 (2009): 631, 645. The ATCM 2019 Strategic Work Plan called for considering effects of Antarctic science activity on climate at the 2020 meeting, subsequently cancelled due to the global pandemic. Bob Frame and Alan D. Hemmings, “Coronavirus at the End of the World: Antarctica Matters,” Social Sciences & Humanities Open (2020): 100054, 5. 60 Oude Elferink et al., “Regional Implementation,” 8–9, 13, in Molenaar et al., The LOS and the Polar Regions, detail the impact of multiple def initions on interactions between the regimes applicable to the polar oceans and marine regions.

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As noted, “freedom of scientif ic research” is one of those high seas rights (LOSC Art.87.1.f), subject to LOSC Part VI (continental shelf) and Part XIII (MSR). Some consider the “high seas” reference in AT Art. VI ambiguous because of States’ divergent views regarding the legal status of land within the Antarctic Treaty Area (ATA), notwithstanding the “agreement to disagree” over sovereign rights and jurisdiction contained in AT Art. IV. Such diverging views “complicate” the determination of what marine areas are high seas and which rules should govern MSR in the ATA: those of the LOSC or those of the ATS.61 Others see Article IV as implying “at least in practical terms” the absence of coastal State jurisdiction but requiring ongoing consideration of how the instruments of the ATS relate to the international law of the sea and global rules developed in its framework.62 The Madrid Protocol def ines the ATA as “the area to which the provisions of the Antarctic Treaty apply in accordance with Article VI of that Treaty,” Art. 1(b). But two Madrid Protocol references to “the Antarctic environment and dependent and associated ecosystems”63 have led observers to interpret its geographic scope as extending beyond the ATA to associated ecosystems north of the 60°.64 Further, because the Madrid Protocol applies only to the area south of 60°S, it excludes “part of the Antarctic marine ecosystem between the parallel of 60° S and the Antarctic Convergence.”65 Given that the CAMLR Convention references the Antarctic Convergence to def ine its spatial scope (Art. 1.1), its coverage differs from that of the AT and Madrid Protocol by referring both to geographic limits and to living resources relative to those limits.66 Assuming that non-recognition of coastal State jurisdiction in the ATA is the practical implication of AT Art. IV, Lefeber posits that the presumed absence (or suspension) of such jurisdiction could mean that, for the purposes of MSR, “the high seas are contiguous to the shores of the land area” and the “relevant provision of the LOSC would apply to all MSR in the ATA.”67 If the States whose claims are in abeyance pursuant to the AT were not obligated under that treaty to refrain from exercising their territorial claims, he argues, the LOSC MSR rules would apply and those States could determine how research is conducted in those areas. Lefeber’s concern, however, is that States that do not recognise those territorial claims would not accept applicability of the LOSC MSR rules.68 The “bifocal approach” that characterises the AT helps address this uncertainty by permitting parties to apply common obligations to AT activities “in a way that each side, claimant

61 Lefeber, “Marine Scientif ic Research,” 323–41, 327–29, lists views ranging from considering such land to be (1) national territory, (2) terra nullius, (3) res communis or (4) common heritage of mankind. Philipp P. Nickels, “Revisiting Bioprospecting in the Southern Ocean in the Context of the BBNJ Negotiations,” Ocean Development & International Law 51, no. 3 (2020): 195, asserts that state practice supports “the interpretation that favors the applicability of the Antarctic Treaty to the maritime parts” of the ATA. For territorial claims to Antarctica, see Chapter 3 of this volume. 62 Oude Elferink et al., “Regional Implementation,” 8. 63 Art. 2 (the Madrid Protocol objective is “the comprehensive protection” thereof) and Art. 3 (requiring that scientif ic activities in the ATA to “limit adverse impacts” thereon). 64 Nickels, “Revisiting Bioprospecting,” 196. 65 Oude Elferink et al., “Regional Implementation,” 9, n. 26. 66 CAMLR Convention, Art. 1.1: “This Convention applies to the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem.” 67 Lefeber, “Marine Scientif ic Research,” 328–29. 68 Ibid., 329. For this hypothetical situation, Lefeber proposes that “collective jurisdiction” be exercised by non-state entities such as a collectivity of ATCPs.

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and non-claimant alike, can view as consistent with its basic legal position.”69 Scully illustrates this approach by example of a non-claimant State (NCS) citizen seeking to research in land areas claimed by a claimant State (CS). The bifocal approach allows the CS to say it has granted permission and the NCS to say it has exercised authority to allow its own scientist to work anywhere, under conditions the NCS sets, and further that the NCS need not request permission from the CS. Despite their different legal positions, “each side agrees that the research go forward under commonly agreed conditions.”70 While the example deals with terrestrial research, the approach could be modif ied for MSR should a challenge arise to applying LOSC MSR rules in the ATA. This bifocal approach is a crucial basis for cooperation in the ATS and reflects the fundamental principle of restraint by all parties. That principle effectively recognises that the effort to determine which position is to prevail on the question of territorial sovereignty or jurisdiction in Antarctica is not only unnecessary but also undesirable.71 Dodds conf irms that the ATS “relies on individual and collective restraint as all parties recognize that the sovereignty of Antarctica remains unsettled.”72 The principle of restraint may also be useful in yet unidentif ied situations where disagreement over jurisdiction in the ATA could otherwise prevent cooperation. The interplay between the divergent spatial def initions in the AT, Madrid Protocol and CAMLR Convention can also be seen in the negotiations for an international legally binding instrument (ILBI) on BBNJ as an implementing agreement for the LOSC.73 “To the extent that the future ILBI will apply to the Southern Ocean, the exact area of overlap would . . . need to be determined specif ically for each of the relevant ATS instruments, as they differ in their geographical scope.”74 That there is even a question whether the ILBI will apply in the Southern Ocean highlights another potential issue raised by the BBNJ negotiations: whether the regional ATS can assert authority over bioprospecting within the ATA and thus circumvent or minimise the reach of the ILBI. The ATS has been slow to act on bioprospecting, raising signif icant and unresolved concerns among not only proponents of preserving its authority over all activity in the ATA75 but those who feel the ATS does not yet have an adequate framework to regulate bioprospecting.76 Other potential flashpoints between the regional ATS and the emerging international law of the sea regime for BBNJ77 relate to def ining bioprospecting, its characterisation as a scientif ic or

69 Tucker Scully, “The Development of the Antarctic Treaty System,” in Science Diplomacy: Science, Antarctica, and the Governance of International Spaces, eds. Paul A. Berkman et al. (Washington DC: Smithsonian Institution Scholarly Press, 2011), 29–38, 31. 70 Ibid., 31. 71 Ibid., 3. Cf. Oude Elferink et al., “Regional Implementation,” 8. 72 Dodds, “The Antarctic Treaty,” 273. 73 Nickels, “Revisiting Bioprospecting,” 193–216, 203. 74 Ibid., 196. 75 D. W. H. Walton, “Losing Control – the Future Management of Bioprospecting in the Antarctic Treaty Area,” Antarctic Science 29, no. 5 (2017): 395. 76 Rothwell, “The IPY,” 137; Nickels, “Revisiting Bioprospecting,” 196. The ATCM’s primary statement on bioprospecting from 2009 implies that AT Art. II’s freedom of scientif ic investigation extends to the “freedom of bio-prospecting” as “subject to the provisions” of the AT. ATCM Resolution 9 (2009). A. F. Barros-Platiau et al., “Bioprospecting in Antarctica: Obligations and Challenges,” in Governing Marine Living Resources in the Polar Regions, eds. Nengye Liu, Cassandra Brooks, and Tianbao Qin (Cheltenham: Edward Elgar, 2019), 177–95. 77 Rothwell, “The IPY,”134–35.

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commercial activity78 implicating the need for benef it-sharing,79 and whether the ATS or the ILBI would be stricter on prior notif ication and licensing of bioprospecting activity.80 Partial resolution to some of these issues may yet occur in the f inal ILBI negotiations – also delayed by the global pandemic – but some tensions will likely remain even after they conclude. Practitioners and academics alike have provided voluminous commentary to guide those discussions.81

Arctic Regional Agreements and Scientif ic Research Early Science-Dependent Agreements For regulating the conduct of marine research in the Arctic, regional agreements for MSR are complementary and secondary to the global LOSC,82 and none is specif ic to regional terrestrial research. Only a handful of Arctic-specif ic multilateral agreements on any topic existed prior to the 2000s. The earliest modern regional agreements with some connection to science or research were typically specialised resource treaties and predated the AC.83 While these agreements do not regulate how science is to be conducted per se,84 they either mandate or rely on scientif ic research activity, as with the 1973 Agreement on the Conservation of Polar Bears.85 The Polar Bear Treaty mandates that the f ive polar-bear-range States (PBRSs) shall both manage polar bear populations in keeping with “sound conservation practices based on the best available scientif ic data” (Art. II) and “conduct national research programmes on polar bears,” coordinating and consulting with other parties “as appropriate” (Art. VII) (italics added). The parties may allow the taking of polar bears when carried out for subsistence-related purposes under Art. III(d)–(e), and “bona f ide scientif ic purposes” under Art. III(a), provisions directed in part at protecting scientif ic activities like tagging and recapture, especially in a transboundary setting.86 The commitment to produce guidelines for cooperative research, monitoring and conservation initiatives further obligates the parties

78 The conflict of interest between bioprospecting in the ATA for scientif ic purposes and its enormous potential for national and personal commercial self-interest predates BBNJ negotiations. Questions include who owns Antarctic biodiversity and on what legal and ethical grounds and whether commercial for-prof it activities relating to bioprospecting in Antarctica should be considered “peaceful uses” under the AT. Chaturvedi, “The Future of Antarctica,” 409–10; Alan D. Hemmings, “Does Bioprospecting Risk Moral Hazard for Science in the Antarctic Treaty System?” Ethics in Science and Environmental Politics 10 (2010): 5–12. 79 Lefeber, “Marine Scientif ic Research,” 326. 80 Nickels, “Revisiting Bioprospecting,” 200–1, Chaturvedi, “The Future of Antarctica,” 409. 81 Kristine D. Kraabel, “Institutional Arrangements in a BBNJ Treaty: Implications for Arctic Marine Science,” Marine Policy (2020), Corrected Proof, available online January 9, 2020; Harriet Harden-Davies, “The Next Wave of Science Diplomacy: Marine Biodiversity Beyond National Jurisdiction,” ICES Journal of Marine Science 75 (2018): 426–34. 82 See also Bankes, “Arctic Ocean Management,” 84 ff. 83 Scientif ic efforts from the interwar to Cold War periods, not addressed here, tended to be unilateral but necessarily engaged existing agreements like the Spitsbergen Treaty and influenced the IPY 1932–1933 and IGY 1957–1958. See e.g. Ronald E. Doel et al., “Strategic Arctic Science: National Interests in Building Natural Knowledge – Interwar Era Through the Cold War,” Journal of Historical Geography 44 (2014): 60–80. 84 Shibata, “Japan and 100 Years,” 20–21, considers the 1920 Spitsbergen Treaty a possible framework for research in the treaty area if interpreted through the lens of a 1991 agreement between the Japanese and Norwegian research institutes on Japanese Arctic Research in Ny Ålesund that stipulated open access for research for all foreign scientists, not just Japanese scientists (noting the bilateral agreement did not constitute the type of convention foreseen by Art. 5 of the Spitsbergen Treaty “laying down the conditions under which scientif ic investigations may be conducted”). 85 Oslo, November 15, 1973, 2898 USTS 243, Entered into force May 26, 1976. 86 James Tierney, “The Polar Bear Treaty and the Changing Geography of the High Arctic,” Journal of Animal Law & Ethics 3 (2009): 141–71, 153.

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to fund those activities and enact domestic legislation consistent with the agreement.87 The 2020 PBRS biennial meeting opening statements addressed polar bear conservation as “a broad ecological challenge that could benef it from enhancing science as well as continued engagement of Indigenous Peoples in polar bear management and conservation.”88 This reflects two contemporary and evolving challenges currently facing Arctic science generally: ecosystem management and the role of IK and IK holders in resource management. As between the PBRS and their scientif ic advisory body, observers consider the PBRS stronger advocates for the involvement of use of IK and knowledge holders in polar bear co-management.89

The 2017 Agreement on Enhancing International Arctic Scientif ic Cooperation (SCA) The Task Force for Enhancing Scientif ic Cooperation in the Arctic (SCTF) established by the AC ministers in 2013 served as a forum for the A8 to negotiate the 2017 Arctic Scientif ic Cooperation Agreement (SCA).90 Permanent participants and AC observers – non-Arctic States, intergovernmental organisations and non-governmental organisations – also attended but SCA membership is limited to the A8. Setting aside for the moment the interests of non-A8 State researchers, the membership limitation primarily reflects the sovereign territorially based nature of their obligations under the agreement: to facilitate entry to and exit from their territory of researchers, equipment, samples and data (Art. 4), access to national civilian research infrastructure and logistics support (Art. 5) and to marine, terrestrial, coastal, and atmospheric areas in the Arctic “consistent with international law for the purpose of conducting Scientif ic Activities” (Art. 6.1) and to facilitate processing of applications to conduct MSR under the provisions of the LOSC (Art. 6.2). These provisions improve the legal environment for scientif ic research compared to most bilateral agreements on science cooperation in the Arctic, which typically do not facilitate access to land or atmospheric areas.91 The SCA represents a culmination of national and international discussions of the need for improved access to research sites and infrastructure and movement of researchers, samples and equipment across borders, long a challenge for scientists of any nationality.92 Like the ATS, the SCA

87 Elizabeth Peacock et al., “Conservation and Management of Canada’s Polar Bears (Ursus maritimus) in a Changing Arctic,” Canadian Journal of Zoology 89, no. 5 (2011): 371–88, 371. 88 Meeting Outcome Report, Meeting of the Polar Bear Range States, Longyearbyen, Svalbard, Norway, March  4–6, 2020, 1st page. 89 Bankes, “Arctic Ocean Management,” 104–5. The IUCN Polar Bear Study Group formally assumed this advisory role in 2013. 90 Signed at the Fairbanks 2017 AC Ministerial meeting, the SCA was the third legally binding agreement negotiated under AC auspices, following those on search and rescue (2011) and marine oil pollution (2013). The United States, Russia and initially Sweden chaired the SCTF. Malgorzata Smieszek, “The Agreement on Enhancing International Arctic Scientif ic Cooperation: From Paper to Practice,” Polar Yearbook 2017 (2017): 439–45, 443. See also Evan Bloom, “The Arctic Council Produces a New Arctic Science Cooperation Agreement,” Arctic Yearbook 2016 (2016): 222–24. 91 Smieszek, “The Agreement,” 443. Akiho Shibata and Maiko Raita, “An Agreement on Enhancing International Arctic Scientif ic Cooperation: Only for the Eight Arctic States and Their Scientists,” Yearbook of Polar Law 8 (2016): 129–62, 124. 92 Yoshinobu Takei, “Marine Scientif ic Research in the Arctic,” in The LOS and the Polar Regions, eds. Erik J. Molenaar et al. (Leiden and Boston: Martinus Nijhoff, 2013), 348–51; Shibata and Raita, “An Agreement,” 141; Susanne WasumRainer, “Conclusion of the Chair,” in Arctic Science, International Law and Climate Change – Legal Aspects of Marine Science in the Arctic Ocean, eds. Susanne Wasum-Rainer et al. (Heidelberg: Springer Verlag, 2012), 307–10. Ibid. for scientists’ accounts of navigating pre-SCA legal requirements for Arctic research: Uwe Nixdorf, “Arctic Research in Practice,” 67–82; Larry Mayer, “Arctic Marine Research: The Perspective of a US Practitioner,” 83–96.

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“recognises the Arctic region as a distinct legal sphere requiring integrated treatment,” but93 unlike the AT, the SCA does not specify the freedom of scientif ic research as a matter of international law, despite requests from some delegations.94 Rather than regulate the conduct of Arctic science, the SCA’s narrow purpose is “to enhance cooperation in Scientif ic Activities in order to increase effectiveness and eff iciency in the development of scientif ic knowledge about the Arctic” (Art. 2). The agreement leaves room for non-Party scientists to participate in SCA benef its if they qualify as a partner, by def ining “Participant” to include the “Parties’ contractors, grantees and other partners acting with or on behalf of any Party or Parties involved in Scientif ic Activities under this Agreement” (Art. 1, italics added). The SCA recognises non-Parties’ “signif icant scientif ic expertise and invaluable contributions to scientif ic activities,” specif ically those of AC permanent participants and observers (11th preambular paragraph). Although the SCA exists independently of the AC, the parties negotiated it with input from the AC permanent participants, who represent Indigenous Peoples of the Arctic.95 While the negotiating record is inconclusive on the level or effect of permanent participant contributions,96 the SCA references traditional and local knowledge (TLK) three times without def ining it.97 “Scientif ic Activities” include “collecting, processing, analyzing, and sharing scientif ic data, ideas, results, methods, experiences, and traditional and local knowledge” (Art. 1). Parties “shall encourage” participants to use TLK in planning and conducting scientif ic activities, and the parties themselves shall encourage communication between participants and TLK holders and encourage holders of TLK “as appropriate” to participate in scientif ic activities (Art. 9). Nonetheless, attention is required to ensure that formulation and implementation of agreements like the SCA are suff iciently inclusive of Indigenous interests.98 The 2018 Utqiaġvik Declaration of the ICC, a permanent participant, calls for Inuit review of the consultation process of the Arctic Council that led to the Arctic Science Cooperation Agreement, and all appropriate United Nations agencies to identify actions to ensure these legal instruments adhere to the human rights aff irmed in the [UNDRIP].99 Observers to the AC also attended SCTF meetings and contributed substantively to the discussions despite having no formal consultative role.100 SCTF members acknowledged that many Arctic scientists and research institutions are from outside the Arctic, reiterating respect for their rights even though the SCA does not provide for non-Arctic State accession.101 The fact that “[s]cientif ic cooperation activities with non-Parties related to Arctic science [may] be taken into account when reviewing the implementation” (Art. 12.3) acknowledges the importance of scientists’ contributions

 93 Akiho Shibata, “The Arctic Science Cooperation Agreement, A Perspective from Non-Arctic Actors,” in Emerging Legal Orders in the Arctic, The Role of Non-Arctic Actors, eds. Akiho Shibata et al. (London and New York: Routledge, 2019), 207–25.  94 Ibid., Shibata (2019), 210, 209; Shibata and Raita, “An Agreement,” 137.  95 Bloom, “The Arctic Council Produces.”  96 Bankes, “Arctic Ocean Management,” 91.  97 On distinguishing between IK, TK and LK, see text at note 32.  98 See e.g. Sara Olsvig, “Direct and Meaningful Participation in the Implementation of the Arctic Science Agreement,” in Supporting Implementation of the Arctic Science Agreement (Tufts: Fletcher School of Diplomacy, 2019), 573–976X (online).  99 Ibid. 100 Shibata, “Arctic Science Cooperation Agreement,” e.g. p. 216 ff. 101 Ibid., 214.

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regardless of nationality. Under Art. 17.1 Parties may continue to “enhance and facilitate cooperation with non-Parties with regard to Arctic science.” Art 17.2 effectively extends the SCA’s research access benef its to non-Party scientists by allowing Parties to cooperate with non-Parties and to apply measures with them consistent with the SCA. While the SCA focuses on access, the need for a regional hard law regime for the conduct of Arctic research may have precluded by the scientif ic cooperation foundational to the AC and the AEPS.102 An even more signif icant factor, however, was the 1994 entry into force of the LOSC, whose overarching framework for all activity in the world’s oceans, including MSR, applies to the Arctic Ocean and adjacent seas.103 SCA provisions on access and permitting are consistent with the LOSC, under which coastal State jurisdiction may be exercised in ways that are more supportive of international cooperation regarding MSR, provided the balance of coastal and other States’ rights and obligations regarding MSR is maintained.104 The SCA takes relevant provisions of the LOSC fully into account, especially those of Part XIII, “as they relate to promoting and facilitating the development and conduct of [MSR] for peaceful purposes” (11th preambular paragraph). Further, the agreement terms shall not be construed as altering any party’s rights or obligations in relevant international agreements or international law (Art. 16).

The Multiple Actors, Institutions and Instruments of Arctic Science Governance With no overarching regional legal structure comparable to the ATS, the States, individuals and institutions involved in Arctic research have coalesced less around a legal regime than around governance mechanisms,105 whether generated by States or other entities with related subject matter authority. The SCA, Art. 1, def ines “Scientif ic Activities” broadly to include planning and implementing scientif ic research projects and programs, expeditions, observations, monitoring initiatives, surveys, modelling, and assessments; training personnel; planning, organizing and executing scientif ic [meetings]; collecting, processing, analyzing, and sharing scientif ic data, ideas, results, methods, experiences, and traditional and local knowledge; developing sampling methodologies and protocols; preparing publications; and developing, implementing, and using research support logistics and research Infrastructure. This broad understanding of all that is involved in the scientif ic enterprise necessarily implies the involvement of State and non-State actors and activities. The SCA names multiple research entities, most or all of which involve Arctic and non-Arctic scientists and organisations. By “[r]ecognizing the excellent existing scientif ic cooperation already under way,” by 11 organisations and initiatives identif ied by name, including IK institutions “and many others,”106 the SCA offers a pointed reminder that Arctic science is not provincial but truly

102 Ibid. 103 See also the Ilulissat Declaration, Arctic Ocean Conference of May 28, 2008, ILM 48: 362. 104 Shibata, “Arctic Science Cooperation Agreement,” 209. 105 Oran Young, “Governing the Arctic: From Cold War Theater to Mosaic of Cooperation,” Global Governance 11 (2005): 9–15, 10. Mathias Koenig-Archibugi, “Global Governance,” in The Handbook of Globalisation, ed. Jonathan Michie (Cheltenham: Edward Elgar, 2019), 1–9, 1, references Young’s earlier writings to discuss governance “as the establishment and operation of rule systems facilitating the coordination and cooperation of social actors – [and distinct from government] – understood as an organisation in charge of administering and enforcing those rules.” 106 SCA, 13th preambular paragraph.

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international and that States are not the only actors whose practices shape and are subject to the rules and principles governing Arctic science. These multiple actors in turn contribute coordination, science priorities, non-binding guidelines and codes of conduct and other conf idence- and community-building measures to the governance of Arctic science. The range of actors and breadth of scientif ic activities invoked in the SCA reflect what has been called “one of the most unique aspects of Arctic governance”: the role played by scientists, other non-State actors and their relationship building in policy development and decisions.107 Scientif ic activity by independent and government researchers frequently precedes or accompanies the negotiation and implementation of treaty-based resource management organisations, allowing presentation of differing scientif ic conclusions as to the need and bases for such instruments. For example, f ive international f isheries science meetings accompanied negotiation of the CAOFA,108 yet early on not all participants were persuaded of the need for an agreement. In the Arctic, Indigenous Peoples’ organisations also provide influential input, including IK, within and beyond the AC and, in some instances, as members of national delegations to treaty negotiations. NGOs, many of whom boast sizable scientif ic teams, can also influence discussions as off icial observers to organisations.109 The International Conference on Arctic Research Planning (ICARP), in collaboration with the International Arctic Science Committee (IASC),110 produces the def initive statement of Arctic research priorities every ten years, based on input from a broad range of national science program, academic and independent entities and scientists.111 Those collectively identif ied priorities both reflect and inform national and international science needs and ambitions, rendering the ICARP a non-binding but influential science policy institution. The Integrated Ecosystem Assessment for the Central Arctic Ocean, a joint project of the Arctic Council PAME working group (representing the A8 and permanent participants), ICES (a f isheries research and science advisory body) and PICES (an intergovernmental scientif ic organisation), has the potential to inform national and regional decisions on resource management and ocean policy.112 Other non-binding components of Arctic science governance include “large-scale international, synoptic research programmes,” like the IPY that some see as “part of the repertoire of science policy instruments” and codes of conduct for research in the Arctic.113 Scientif ic programs and conferences with broad participation and clear goals can result in agreed or aspirational standards and even constitute turning points for the Arctic science community. The Arctic Observing Summit held at the Arctic Science Summit Week in 2016 exhibited a norm-shifting influence by including

107 Lassi Heininen, Heather Exner-Pirot, and Joël Plouffe, “Governance & Governing in the Arctic: An Introduction to Arctic Yearbook 2015,” Arctic Yearbook 2015 (2015): 13–25, 15. 108 Rosemary Rayfuse, “The Role of Law in the Regulation of Fishing Activities in the Central Arctic Ocean,” Marine Policy 110 (2019): 103562–3567. 109 See David Balton, “Implementing the New Central Arctic Ocean Fisheries Agreement,” in New Knowledge and Changing Circumstances in the Law of the Sea, ed. Tomas Heidar (Leiden: Brill, 2020), 433; Erik J. Molenaar, “The CAOF Agreement: Key Issues of International Fisheries Law,” in New Knowledge and Changing Circumstances in the Law of the Sea, ed. T. Heidar (Leiden: Brill, 2020), 446, and Peter Harrison et al., “How Non-Government Actors Helped the Arctic Fisheries Agreement,” Wilson Center Polar Perspectives, no. 2 (2020). 110 The SCA names ICARP and IASC in 8th and 11th preambular paragraphs. Malgorzata Smieszek, “25 Years of the International Arctic Science Committee (IASC),” Polar Yearbook 2015 (2015): 437–43, highlights IASC milestones. 111 Young, “Governing the Arctic,” 12; Smieszek, “25 Years,” 441. 112 International Council for the Exploration of the Sea (ICES); North Pacif ic Marine Science Organization (PICES). 113 Michael Bravo, “Preface,” in Legacies and Change in Polar Sciences, Historical, Legal and Political Reflections on the International Polar Year, eds. Jessica Shadian and Monica Tennberg (London and Burlington, VT: Ashgate, 2009), xv; Hubert, “The New Paradox,” passim, details codes of conduct for environmentally responsible ocean research globally.

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as the f irst of seven recommendations in its conference statement the call to “[d]evelop international principles and protocols that establish ethical guidelines for research, for the involvement of Arctic IK holders, for the use of IK and the co-production of knowledge.”114 Highlighting this priority was possible due to long running efforts on the part of the IK holders and scientists who worked with or supported them. The 2000s have seen increased promulgation by Indigenous groups of related tools such as the ICC’s Utqiaġvik Declaration (2018) and Ethical and Equitable Engagement Synthesis Report (2021).115 Non-binding but influential codes of conduct for Arctic research in and with Indigenous communities in the north have existed since the 1990s and several have been updated or created since the mid-2010s as with the Ottawa Traditional Knowledge Principles adopted at the 2015 Ministerial of the Arctic Council, the IASSA Principles and Guidelines for Conducting Ethical Research in the Arctic updated in 2020.116

Conclusions The legal regime for polar science has adapted over time to reflect changes in key assumptions from the formative years of international scientif ic cooperation in the Antarctic and the Arctic.117 Like the Antarctic before it, the Arctic has moved from the periphery of geopolitical activity to more global interest in its resource potential. Climate change continues to signif icantly affect both regions and their key roles in moderating atmospheric and oceanic circulation and has accelerated increased accessibility to a warming and ice-diminished Arctic. The regime’s accomplishments and challenges include the following: Reconsidering insider States and interested States. The ATCM eventually accommodated growing interest in Antarctica beyond its original membership within the framework of the ATS, after the AT and its effective suspension of territorial claims was well established and a state’s consultative status was tied to its level of scientif ic activity in Antarctica. The eight Arctic States are instead working out how to include scientif ic interests of non-Arctic States on a treaty-by-treaty basis, relying at times on their established sovereignty to distinguish protectively those interests from their own. The Arctic Science Cooperation Agreement, for example, limits membership to the A8 but extends access benef its to non-Arctic research partners. The Central Arctic Ocean Fisheries Agreement (CAOFA) involves f ive Arctic States, four non-Arctic States and the European Union, yet its preamble recognizes “the special responsibilities and special interests of the central Arctic Ocean coastal States” when it comes to f ish stocks in the CAO. The legal regime for polar research appears stable but flexible enough to accommodate continued shifts in the balance

114 www.arcticobservingsummit.org/sites/arcticobservingsummit.org/f iles/AOS%20Conference%20Statement_Final_ RELEASED-2016–03–23.pdf. 115 Inuit Circumpolar Council (2018), Utqiaġvik Declaration: https://secureservercdn. net/104.238.71.250/hh3.0e7. myftpupload.com/wp-content/uploads/2018_Utqiagvik_Declaration.pdf; Inuit Circumpolar Council (2021), Ethical and Equitable Engagement Synthesis Report: A  collection of Inuit rules, guidelines, protocols, and values for the engagement of Inuit Communities and Indigenous Knowledge from Across Inuit Nunaat. Synthesis Report. International. 116 A partial listing of such resources, “Conducting Research with Northern Communities Documented Practices and Resources for Productive, Respectful Relationships Between Researchers and Community Members,” is at www.arcus. org/resources/northern-communities. 117 Oran R. Young, “Is It Time for a Reset in Arctic Governance?” Sustainability 11, no. 16 (2019): 4497, examines some of those changed assumptions in a broader Arctic context.

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between insider and interested States while maintaining the core structures and functions that make it work. Expanding the range of knowledge sources. The CAOFA, which entered into force in 2021, is also the f irst binding agreement to require managers to take account of Indigenous knowledge in decision-making. This is but one reflection of the welcome and growing acceptance within the Arctic scientif ic community of IK holders and other sources of knowledge as essential partners in polar research. Indigenous advocacy and leadership have driven this change and produced protocols, guidelines, and other tools for the co-production of knowledge, with similar developments in international research bodies such as the IASC. In the Antarctic, with no Indigenous population, the expansion of knowledge sources is reflected, e.g. in the addition of human dimensions to the IPY 2007–08 and subsequent related standing committees to SCAR. Clarifying treaty interactions. Thirty-three years passed between entry into force of the AT in 1961 and the LOSC in 1994, with the latter establishing a global regime for the conduct of marine scientif ic research. Terrestrial scientif ic research at both poles is addressed by regional arrangements, national laws, and codes of conduct, and implicated in such global agreements as the CBD and UNFCCC, which do not directly regulate the conduct of research. Negotiations for the BBNJ implementing agreement to the LOSC highlight differences between the Antarctic and Arctic legal structures for marine science, such as the def inition and characterization of bioprospecting, and the need for benef it sharing. The resolution of these and other issues has the potential to clarify the relationship of both legal structures to the LOSC, and to require greater interaction with each other, strengthening governance of polar science at both poles.

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9 THE CHANGING MARITIME SECURITY LANDSCAPE IN THE POLAR REGIONS Sof ia Galani

Introduction The American political scientist Nicholas Spykman once wrote that geography is “the most fundamentally conditioning factor in the formulation of national policy because it is the most permanent.”1 Nothing could be further from the truth in the case of the polar regions. It is the changing landscape and receding ice that has caused a rush of national initiatives and increased human activity in the polar regions. This is not to say that States showed an interest in the polar regions only after the impact of climate change became more visible. Conflicting claims and interests had existed well before. In Antarctica, several States had made overlapping territorial claims by the 1950s.2 These tensions heightened during the Cold War when the United States and the Soviet Union started showing an increasing interest in the region.3 The situation proved more complex in the Arctic Ocean which the United States and Soviet Union used as a theatre of operations and dominance creating an “Ice Curtain” between Alaska and Siberia.4 The overlapping territorial claims in the Antarctic and the “race to resources” narrative promoted by the media in relation to the Arctic have given rise to fears for a potential military confrontation.5 This chapter will discuss maritime security in the Southern Ocean and the Arctic Ocean and will explain that it is not the traditional security threats that challenge maritime security in the

1 Nicholas J. Spykman, “Geography and Foreign Policy, I,” The American Political Science Review 32 (1938): 28–50, 29. 2 Donald R. Rothwell, Karen N. Scott and Alan D. Hemmings, “The Search for ‘Antarctic Security,’ ” in Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives, eds. Alan D. Hemmings, Donald R. Rothwell, and Karen N. Scott (London: Routledge, 2012), 2. 3 Donald R. Rothwell, “Maritime Security in the Polar Regions,” in The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes, eds. Erik J. Molenaar, Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Brill, 2013), 368–69. 4 Oran R. Young, “Governing the Arctic: From Cold War Theater to Mosaic of Cooperation,” Global Governance 11 (2005): 9–15, 9; Peter A. Iseman, “Lifting the Ice Curtain,” New York Times (October 23, 1988), www.nytimes. com/1988/10/23/magazine/lifting-the-ice-curtain.html. 5 Financial Times, “Scramble for the Arctic” (August  19, 2007), www.ft.com/content/65b9692c-4e6f-11dc-85e70000779fd2ac; Terry Macalister, “Climate Change Could Lead to Arctic Conflict, Warns Senior Nato Commander,” The Guardian (October  11, 2010), www.theguardian.com/environment/2010/oct/11/nato-conflict-arctic-resources;

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polar regions. In both poles, States have found constructive ways to cooperate and rely on hard and soft law initiatives to govern the oceans, including the ATS,6 the 1982 Law of the Sea Convention (LOSC)7 and the agreements negotiated under the auspices of the Arctic Council (AC).8 In contrast, this chapter will argue that it is the increasing presence of non-State actors, such as shipping/ oil/gas companies, f ishing boats and criminals, that can adversely affect maritime security in the polar regions. The existing governance frameworks can, to an extent, enable States to tackle the emerging threats posed by non-State actors but achieving maritime security in the polar regions requires effective law enforcement and a better understanding of the polar oceans through maritime domain awareness (MDA).9 While these tools are much needed for achieving and maintaining maritime security in all oceans, heightened military activities and concentration of warships in the polar regions cause challenges as they are often regarded as adversarial and power projection. This risks detracting the attention of States from the real threats arising from non-State actors, undermining in this way their efforts to achieve maritime security in the polar oceans. It is therefore important that States reconsider maritime security in the polar oceans and the responses to it in order to develop a proactive approach that will allow States and other interested actors to maintain maritime security in the Southern and Arctic Oceans. By revisiting our understanding of maritime security in the polar regions, this chapter aims to review change and continuity of the issues of maritime security in the polar regions and consider ways of enhancing maritime security in the polar oceans.

Understanding Maritime Security The term “maritime security” has been around for some time but is yet to be given a f ixed def inition.10 The lack of direct references to maritime security in LOSC has also left its def inition open for interpretation.11 Traditionally, maritime security has been understood to refer to coastal security, naval warfare and interstate disputes.12 After 9/11, the meaning of maritime security became much

Scott G. Borgerson, “Arctic Meltdown: The Economic and Security Implications of Global Warming,” Foreign Affairs 87 (2008): 64–77. 6 The ATS consists of the Antarctic Treaty, December 1, 1969, 402 UNTS 71; the 1964 Agreed Measures for the Conservation of Antarctic Fauna and Flora, Recommendations III–VIII, adopted at ATCM III (1964); the Convention for the Conservation of Antarctic Seals, June 1, 1972, 1080 UNTS 175; the Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, 1329 UNTS 47; the Protocol on Environmental Protection to the Antarctic Treaty, October 4, 1991, 30 ILM 1461. 7 1982 United Nations Convention on the Law of the Sea, December 10, 1982, 1833 UNTS 397. 8 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, May 12, 2011, https:// oaarchive.arctic-council.org/bitstream/handle/11374/531/EDOCS-3661-v1-ACMMDK07_Nuuk_2011_SAR_ Search_and_Rescue_Agreement_signed_EN_FR_RU.PDF?sequence=5&isAllowed=y; Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, May 15, 2013, www.arctic-council.org/eppr/agreementon-cooperation-on-marine-oil-pollution-preparedness-and-response-in-the- arctic; Agreement on Enhancing International Arctic Scientif ic Cooperation, May 11, 2017, https://oaarchive.arctic-council.org/handle/11374/1916. 9 MDA is def ined in the US National Plan to Achieve Maritime Domain Awareness for the National Strategy for Maritime Security (October 2005), ii, www.dhs.gov/sites/default/f iles/publications/HSPD_MDAPlan_0.pdf. See also the discussion in section “Law Enforcement and Maritime Domain Awareness (MDA) in the Polar Regions.” 10 Christian Bueger, “What Is Maritime Security?” Marine Policy 53 (2015): 159–64, 159. 11 Sof ia Galani and Malcolm D. Evans, “The Interplay between Maritime Security and the 1982 United Nations Convention on the Law of the Sea: Help or Hindrance?” in Maritime Security and the 1982 United Nations Convention on the Law of the Sea: Help or Hindrance? eds. Malcolm D. Evans and Sof ia Galani (Cheltenham: Edward Elgar, 2020), 8–11. 12 Natalie Klein, Joanna Mossop, and Donald Rothwell, “Australia, New Zealand and Maritime Security,” in Maritime Security: International Law and Policy Perspectives from Australia and New Zealand, eds. Natalie Klein, Joanna Mossop, and Donald Rothwell (London: Routledge, 2010), 5.

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broader to encompass illegal activities committed by non-State actors, such as terrorists or smugglers.13 The importance of maritime security keeps growing but its exact meaning remains elusive. Its scope has become as large and diverse as the different threats posed by criminals at sea ranging from illegal f ishing to oil theft and the sabotage of submarine cables to cybersecurity attacks. Maritime (in)security has a diverse impact on the marine environment, the economy and human security, which does not help the delineation of the concept of maritime security either.14 Given the diff iculties in agreeing on a f ixed def inition of maritime security, it has become common practice to understand maritime security differently across time and space and “[i]nevitably, maritime security can mean different things to different people.”15 The same holds true for the polar oceans where the importance of maritime security keeps evolving. Rothwell has rightly pointed out that “maritime security in the polar regions is not a topic that traditionally has been the focus of signif icant attention in traditional maritime security discourse.”16 With the exception of certain security concerns that emerged mainly during the Cold War, the polar oceans were mostly considered safe. This is mainly attributed to the harsh climate conditions of the polar regions that have kept human activity and maritime traff ic to a minimum. Climate change, however, keeps altering the polar landscape with State and non-State actors alike seeking to exploit the opportunities that the polar oceans have to offer. This is why it is time to revisit our understanding of maritime security in the polar regions and evaluate how it can be achieved.

Traditional Maritime Security in the Polar Regions The use of the polar oceans for military purposes and the competition of States over untapped resources and the disputes over unclaimed territories in the Antarctic have given rise to both legitimate and extravagant security concerns.17 This section will explore some of these concerns as well as how the existing legal frameworks address them. It will explain that in spite of the fears for a potential conflict, traditional maritime security is no longer a cause of concern in the polar oceans.

The Southern Ocean In Antarctica, national security concerns arose from overlapping territorial claims in the continent.18 Some of the earliest claims were recorded at the beginning of the twentieth century and the early explorations of Antarctica.19 By the 1950s, seven States (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom) had made territorial claims with the Antarctic peninsula being the most disputed area because of overlapping claims made by three States, Argentina,

13 Galani and Evans, “The Interplay between Maritime Security and LOSC,” 4–8. 14 Bueger, “What Is Maritime Security?” 161. 15 Natalie Klein, Maritime Security and the Law of the Sea (Oxford: Oxford University Press, 2011), 2. 16 Rothwell, “Maritime Security in the Polar Regions,” 368. 17 Borgerson, “Arctic Meltdown,” 64–77; Teemu Palosaari and Frank Möller, “Security and Marginality: Arctic Europe after the Double Enlargement,” Cooperation and Conflict 39 (2003): 255–81; Rebecca Pincus, “Security in the Arctic: A Receding Wall,” in Diplomacy on Ice: Energy and the Environment in the Arctic and Antarctic, eds. Rebecca Pincus and Saleem H. Ali (New Haven: Yale University Press, 2015), 161–68. 18 See Chapter 3 of this volume. 19 Rothwell et al., “The Search for ‘Antarctic Security,’ ” 7.

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Chile and the United Kingdom.20 The tensions heightened during the Cold War because of the signif icant presence of the United States and the Soviet Union in Antarctica. Although these States did not make any territorial claims, they preserved their right to do so, and evidence showed that the Southern Ocean was used for testing nuclear weapons.21 Fears that the Cold War might spill over into the Antarctic prompted its demilitarisation. The Antarctic Treaty was negotiated against these fears and its Preamble recognised that “in the interest of all mankind . . . Antarctica shall continue for ever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.” The Antarctic Treaty neutralised military security threats by prohibiting military activities and holding territorial claims in abeyance. Indeed, Article I of the Antarctic Treaty conf irmed that Antarctica shall be used for peaceful purposes only and prohibited “any measures of a military nature, such as the establishment of military bases and fortif ications, the carrying out of military manoeuvres, as well as the testing of any type of weapons.” Nuclear explosions and the disposal of radioactive material are prohibited under Article V of the treaty. With reference to the assertion of territorial claims over Antarctica, Article IV did not question the validity of the existing claims but did not validate them either. It further sought to put a halt to further territorial assertions over the Antarctic while the Antarctic Treaty is in force. Setting aside State sovereignty over the Antarctic meant that States could not assert enforcement powers which prevented friction between States and placed more emphasis on the promotion of scientif ic research. The Antarctic Treaty restrictions apply to the area south of 60° south latitude without affecting the exercise of rights on the high seas within that area in accordance with international law.22 The Antarctic Treaty has been in force for more than 50 years and has proved remarkably successful in providing security and stability for Antarctica and the Southern Ocean.23

The Arctic Ocean The success of the Antarctic Treaty is one of the reasons that the adoption of a similar model has been advocated for the Arctic.24 However, while the efforts to demilitarise the Antarctic were taking place, military activities were intensifying in the Arctic. During the Cold War, the Arctic became a theatre for operations for the deployment of strategic weapons systems, including nuclear weapons and nuclear submarines.25 Following the waning of the Cold War and the watershed speech by Mikhail Gorbachev in 1987 that called for more cooperation in the Arctic, several demilitarisation and denuclearisation efforts took place.26 Military security, however, never ceased to be a highly

20 Donald R. Rothwell, “The Antarctic Treaty as a Security Reconstruct,” in Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives, eds. Alan D. Hemmings, Donald R. Rothwell, Karen N. Scott (London: Routledge, 2012), 35–36. 21 Rothwell et al., “The Search for ‘Antarctic Security,’ ” 2. 22 Article VI of the Antarctic Treaty. 23 Rothwell, “The Antarctic Treaty as a Security Reconstruct,” 37–39; Julia Jabour, “Pharand’s Arctic Treaty, Would an Antarctic Treaty-Style Model Work in the Arctic?” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde, Ted L. McDorman, and Donat Pharand (The Hague: Brill, 2015), 89–95. 24 Donald R. Rothwell, “Polar Lessons for an Arctic Legal Regime,” Cooperation and Conflict 29 (1994): 55–76. 25 Rothwell, “Maritime Security in the Polar Regions,” 369; Michael Byers, International Law and the Arctic (Cambridge: Cambridge University Press, 2013), 246. 26 Oran R. Young, “The Arctic in Play: Governance in a Time of Rapid Change,” The International Journal of Marine and Coastal Law 24 (2009): 423–42, 426–28; Annika Bergman Rosamond, “Perspectives on Security in the Arctic Area,” DIIS Report (2011): 15–16, https://pure.diis.dk/ws/f iles/61204/RP2011_09_Arctic_security_web.pdf; Byers, International Law and the Arctic, 254.

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sensitive and contentious issue for the Arctic States. This is evidenced by their decision to leave military security off the agenda of the AC in its founding document adopted in 1996. A footnote added to Article 1 (1) of the Ottawa Declaration states that “the Arctic Council should not deal with matters related to military security.”27 This reference was added at the insistence of the United States, which at the time had a military advantage over the post-Soviet Russia, and was arguably aimed at maintaining the nuclear balance between the United States and Russia.28 More recent incidents, such as the planting of the Russian flag on the North Pole seafloor by the Russian scientist, explorer and politician Artur Chilingarov, reinforced the importance of sovereignty in the region. The move was considered a reaff irmation of Russia’s view that the Lomonosov Ridge is part of the country’s continental shelf which was reflected in its 2001 submission to the Commission on the Limits of the Continental Shelf (CLCS) and sparked a strong reaction by the United States, Canada and Denmark.29 While the planting of the flag had nothing but a symbolic character, it caused a flow of national initiatives and several submissions were made to the CLCS for the delimitation of the outer limits of the continental shelf of the Arctic States in the Arctic Ocean.30 The “race to resources” narrative mainstreamed by the media in combination with the fears that the thawing ice is creating an international law vacuum in the Arctic renewed the concerns for a potential conflict in the region.31 These concerns, however, have no legal basis. Despite the distinct physical characteristics of the Arctic Ocean, there is no legal basis to suggest that the Arctic Ocean is not governed by LOSC.32 Accordingly, the jurisdiction and enforcement powers of the f ive Arctic Ocean coastal States – Canada, Denmark (via Greenland), Norway, Russia and the United States – are determined by LOSC. While some disagreements regarding the outer limit of continental shelves remain in the Arctic,33 States have relied on LOSC to substantiate their rights in an “exemplary manner.”34 Russia, for example, in spite of its nationalistic rhetoric in the Arctic, was the f irst Arctic State to make a submission to the CLCS and has sought scientif ic information to support its original and revised submission to the CLCS.35 The importance of the law of the sea was also highlighted in the 2008

27 Declaration on the Establishment of the Arctic Council, Ottawa, September 19, 1996, https://oaarchive.arctic-council. org/handle/11374/85. 28 Byers, International Law and the Arctic, 254. 29 Timo Koivurova, “The Actions of the Arctic States Respecting the Continental Shelf: A Reflective Essay,” Ocean Development & International Law 42 (2011): 211–26, 218; Ted L. McDorman, “The Continental Shelf beyond 200 NM: Law and Politics in the Arctic Ocean,” Journal of Transnational Law & Policy 18 (2009): 155–94, 176–79. 30 For the national initiatives, see Pincus, “Security in the Arctic,” 164; Arirld Moe and Olam Schram Stokke, “Asian Countries and Arctic Shipping: Policies, Interests and Footprints on Governance,” Arctic Review on Law and Politics 10 (2019): 24–52, 26. For the submissions of Russia, Norway, Denmark and Canada to the CLCS in line with Article 76 of LOSC, see www.un.org/Depts/los/clcs_new/commission_submissions.htm. The United States cannot make a submission to the CLCS as it has not ratif ied LOSC but has been collecting data regarding the outer limits of its continental shelf in the Arctic Ocean. 31 Koivurova, “The Actions of the Arctic States,” 212–14; 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 (2012): 553–95, 556. 32 See also Chapter 7 of this volume. 33 Vladimir Golitsyn, “Continental Shelf Claims in the Arctic Ocean: A Commentary,” The International Journal of Marine and Coastal Law 24 (2009): 401–8. 34 Koivurova, “The Actions of the Arctic States,” 216. See also Asim Zia, Ilan Kelman and Michael H. Glantz, “Arctic Melting Tests the United Nations Convention on the Law of the Sea,” in Diplomacy on Ice: Energy and the Environment in the Arctic and Antarctic, eds. Rebecca Pincus and Saleem H. Ali (New Haven: Yale University Press, 2015), 132–36. 35 The initial and the revised submission to the CLCS can be found here: www.un.org/Depts/los/clcs_new/submissions_ f iles/submission_rus_rev1.htm and www.un.org/Depts/los/clcs_new/submissions_f iles/submission_rus.htm.

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Ilulissat Declaration of the f ive Arctic Ocean littoral States in which it was stated that “the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf ” and “a solid foundation for responsible management by the f ive coastal States.”36 The Arctic Ocean coastal States used the document to reinforce their sovereign rights and jurisdiction in the Arctic Ocean, but in doing so, they reiterated their commitment to complying with the international law of the sea in the assertion of these rights and to orderly settling any overlapping claims. Other actors with an increasing interest in the Arctic, such as China and the European Union, have also acknowledged that LOSC applies to the Arctic.37 Admittedly, LOSC cannot hold back the competition of States for a strong presence in the Arctic Ocean, including through military means. Indeed, in demonstrating their sovereign interests, the Arctic States have relied on strong military presence.38 The willingness of States, however, to acknowledge the application of LOSC to the Arctic Ocean and comply with it, as well as to declare their commitment to maintaining peace, stability and constructive cooperation in the region, alleviates the fears of an emerging legal vacuum that could be exploited by States and lead to conflict.39

Maritime Security and Non-State Actors in the Polar Regions The discussion of military activities and territorial claims showed that it is not the threats to traditional maritime security that troubles the two polar regions. The existing legal frameworks have been effective in addressing the existing and emerging traditional maritime security threats. The receding ice, however, does not allow only States to be active in the polar waters but non-State actors too. It is the view of this author that it is the emerging activities of non-State actors, such as shipping/oil/gas companies, f ishing boats or criminals, that can challenge maritime security in the polar regions. Mapping all the threats posed by non-State actors does not f it within the scope of this chapter. The focus will therefore be on security risks originating from increased navigation opportunities in the polar waters and its associated threats, including safety of shipping, marine pollution and transnational crimes. The melting ice has started transforming the Southern Ocean and the Arctic Ocean. Despite predictions that these oceans will become ice-free, large parts of the oceans remain covered in ice and the conditions vary from the one part of the ocean to the other. This has made polar waters more navigable but not less hazardous. This is evidenced by the increasing number of recorded accidents in the polar oceans which further shows that the more vessels that navigate in these waters, the

See also Bjørn Kunoy, “Recommendations on the Russian Federation’s Proposed Outer Continental Shelf in the Arctic Area,” EJIL: Talk! (March  3, 2023), www.ejiltalk.org/recommendations-on-the-russian-federations-proposed-outercontinental-shelf-in-the-arctic-area/?utm_source=mailpoet&utm_medium=email&utm_campaign=ejil-talk-newsletterpost-title_2. 36 The Ilulissat Declaration, Arctic Ocean Conference (May  27–29, 2008), https://arcticportal.org/images/stories/pdf/ Ilulissat-declaration.pdf. 37 China’s Arctic Policy (January  2018), http://english.www.gov.cn/archive/white_paper/2018/01/26/content_ 281476026660336.htm; Joint Communication to the European Parliament and the Council, An integrated European Union policy for the Arctic (Brussels, April 27, 2016), 4. 38 Xueping Li, “Arctic Governance and China’s First Arctic Policy: An UNCLOS Perspective,” The Yearbook of Polar Law X (2008): 359–85, 369. See also A Blue Arctic, Department of the US Navy (January 2021), 2, https://media.defense. gov/2021/Jan/05/2002560338/-1/-1/0/ARCTIC%20BLUEPRINT%202021%20FiNAL.PDF/ARCTIC%20 BLUEPRINT%202021%20FiNAL.PDF. 39 See, for example, the Kiruna Declaration (2013), Iqaluit Declaration (2015) and Fairbanks Declaration (2017).

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higher the risks are for the safety of shipping and the fragile ecosystems.40 The safety of shipping is regulated by LOSC and the instruments adopted under the auspices of the International Maritime Organization (IMO), with the most signif icant one being the International Code for Ships Operating in Polar Waters (the Polar Code), which came into force on January 1, 2017, but the challenges in enforcing those instruments in the polar regions differ.41

The Arctic Ocean In the Arctic, commercial shipping is anticipated to increase because of the transpolar sea route that connects the Atlantic with the Pacif ic Ocean. Navigating through the Northwest Passage (NWP) reduces the route between Europe and Asia by 2,172 nautical miles and voyages through the Northern Sea Route (NSR) could be reduced by approximately 3,000 nautical miles.42 Both routes offer alternatives to other intercontinental shipping chokepoints, such as the Malacca Strait, Suez Canal and Panama Canal.43 The deep-water route of NWP can also accommodate supertankers and container ships that exceed the “Panamax” dimensions and can no longer navigate through the Panama Canal.44 Predicting the exact number of transits or the trade volume has been diff icult because it depends on many variables, such as the weather, the length of navigable season, the route, the ship size, the ship type and cargo.45 However, a growth in all forms of shipping with different types of vessels, including icebreakers, tankers, f ishing boats and cruise ships, has already been recorded in the Arctic waters.46 Despite being the world’s smallest ocean, travelling through the Arctic has the potential to connect 75% of the world’s population which leaves the door ajar to non-freight transport.47 The Arctic Ocean contains part of the high seas, but this can be accessed only after vessels navigate through the exclusive economic zone (EEZ) or the territorial waters of the f ive Arctic Ocean coastal States and only through the NWP and NSR. This means that the shipping safety standards can be more easily enforced through the jurisdiction of the Arctic Ocean coastal States. Under

40 Karen N. Scott, “Maritime Security and Shipping Safety in the Southern Ocean,” in Maritime Security: International Law and Policy Perspectives from Australia and New Zealand, eds. Natalie Klein, Joanna Mossop and Donald R. Rothwell (London: Routledge, 2010), 119–20; Rolf Tamnes, “Arctic Security and Norway,” in Arctic Security in an Age of Climate Change, ed. James Kraska (Cambridge: Cambridge University Press, 2011), 55. 41 IMO, International Code for Ships Operating in Polar Waters (Polar Code) (Safety-related provisions) (November 21, 2014) IMO Resolution MSC. 385(94). 42 Peter Johnston, “Arctic Energy Resources: Security and Environmental Implications,” Journal of Strategic Security 5 (2012): 13–32, 21–22. 43 Michael Byers and Suzanne Lalonde, “Who Controls the Northwest Passage?” Vanderbilt Journal of International Law 42 (2009): 1133–210, 1141–142; Frédéric Lasserre, Leah Beveridge, Mélanie Fournier, Pierre-Louis Têtu and Linyan Huang, “Polar Seaways? Maritime Transport in the Arctic: An Analysis of Shipowners’ Intentions II,” Journal of Transport Geography 57 (2016): 105–14. 44 The “Panamax” dimensions are 294 metres by 32 metres with a maximum draft of 12 metres, giving rise to a displacement of around 65,000 tons. See Byers and Lalonde, “Who Controls the Northwest Passage?” 1142. 45 Yiru Zhang, Qiang Meng and Liye Zhang, “Is the Northern Sea Route Attractive to Shipping Companies? Some Insights from Recent Ship traff ic Data,” Marine Policy 73 (2016): 53–60; Yiru Zhang, Qiang Meng and Szu Hui Ng, “Shipping Eff iciency Comparison between Northern Sea Route and the Conventional Asia-Europe Shipping Route via Suez Canal,” Journal of Transport Geography 57 (2016): 241–49. 46 Aldo Chircop, “The Polar Code and the Arctic Marine Environment: Assessing the Regulation of the Environmental Risks of Shipping,” The International Journal of Marine and Coastal Law 35 (2020): 533–69, 536–37; Rothwell, “Maritime Security in the Polar Regions,” 386. 47 A Blue Arctic, 3.

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LOSC, coastal States can enforce shipping safety and environmental standards within their territorial seas48 and EEZs49 with respect to navigation rights and freedoms.50 Port States also have powers to inspect and ensure compliance with these standards on vessels entering their ports.51 In addition to these powers, under Article 234 LOSC, the Arctic Ocean coastal States can enact and enforce regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of their EEZs.52 Both Canada and Russia attach great importance to the safety of shipping and environmental protection in their Arctic coastal waters because of the NWP and NSR, respectively.53 They have therefore enacted domestic laws to regulate the safety of Arctic shipping, including the safety of navigation and environmental protection.54 The designation of the NWP and parts of the NSR as internal waters by Canada and Russia has resulted in more effective law enforcement. The United States, however, has objected to the recognition of NWP as internal waters due to its strategic location which connects the Atlantic and Arctic Oceans.55 According to Article 37 LOSC, the NWP being a “chokepoint” could be treated as an international strait if used for international navigation.56 It has been long debated whether the NWP serves international navigation because of the limited transits.57 Despite the increase in transits, the numbers arguably fall below the threshold of the functional criterion required to treat the NWP as an international strait.58 This all might change, if maritime traff ic in the NWP increases as happened in the Bering Strait. The Bering Strait, which connects the Bering Sea and Chukchi Sea with the Arctic Ocean, has already seen a signif icant increase in traff ic with six commercial ports in the region and is thus considered to be an international strait.59 With the increase of maritime traff ic in the Arctic, it would come as no surprise to have more States supporting the US position and the freedom of navigation in the Arctic Ocean. This, however, would mean that Article 234 LOSC would not apply to international straits and the coastal jurisdiction of the States bordering the straits would be signif icantly restricted increasing as a result, the risks of uncontrolled shipping to the marine environment.60 The fear of uncontrolled shipping has suggested that States in the region might eventually favour stronger enforcement and cooperation. Canada and the United

48 Articles 21–23 LOSC. 49 Article 5 LOSC. 50 Articles 19 and 58 LOSC. 51 Article 218 LOSC. 52 See also Chapter 6 of this volume. 53 Armand de Mestral, “Article 234 of the United Nations Convention on the Law of the Sea,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde, Ted L. McDorman, and Donat Pharand (Leiden and Boston, Brill, 2015), 112–24. 54 Jiayu Bai, “The IMO Polar Code: The Emerging Rules of Arctic Shipping Governance,” The International Journal of Marine and Coastal Law 30 (2015): 674–79, 677–78. 55 Ted L. McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (New York: Cambridge University Press, 2009), 225–31. 56 See also The Corfu Channel Case (Albania, United Kingdom), [1949] ICJ Reports 4, 28. 57 Robin R. Churchill and Vaughan Lowe, The Law of the Sea, 3rd ed. (Manchester: Juris Publishing, 1999), 106; Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law 38 (2007): 3–69, 29–30; James Kraska, “The Law of the Sea Convention and the Northwest Passage,” International Journal of Marine and Coastal Law 22 (2007): 257–82, 275–27; Donald R. Rothwell, “The United States and Arctic Straits: The Northwest Passage and the Bering Strait,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde, Ted L. McDorman, and Donat Pharand (Leiden and Boston: Brill, 2015), 171–73. 58 Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” 29–30. 59 Rothwell, “The United States and Arctic Straits,” 173–74. 60 Byers and Lalonde, “Who Controls the Northwest Passage?” 1182–83.

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States, for example, are signif icantly concerned about the NWP and the NSR being used by poorly maintained vessels and criminals to get easier access to Europe and North America.61 As a result, they have sought to enhance enforcement and cooperation through bilateral agreements and the AC.62 While the AC was set up as an intergovernmental forum, it has taken a more proactive approach to safety of life, shipping and environmental matters through the adoption of legally binding agreements, such as the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (Arctic SAR Agreement)63 and the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic.64 The Arctic SAR Agreement was the f irst legally binding instrument negotiated and adopted under the auspices of the AC and aims to address the emerging risks to life associated with the rise in the volume of maritime traff ic.65 Several operational challenges have been identif ied that could restrict the effectiveness of SAR operations, such as low visibility, drifting ice, strong winds, freezing temperatures, limited hydrographic survey and nautical charts, the “dead zones” of radio communications, low bandwidth of satellite communications, limited ice-capable vessels, shore-based infrastructure and trained personnel.66 In response, the Arctic SAR Agreement obliges States to take responsibility for SAR operations in the Arctic waters in accordance with their pre-existing international law obligations.67

The Southern Ocean In the Antarctic, a rise in tourist, research and f ishing vessels has been recorded as a result of the thawing ice.68 LOSC applies to the Southern Ocean subject to the ATS restrictions that concern the area south of 60° south latitude.69 It was explained earlier that coastal States have limited enforcement powers under LOSC in the Antarctic Treaty area because the latter has frozen sovereignty claims. Article 234 LOSC is arguably not applicable to the Antarctic because there are no recognised EEZs.70 It has been noted that Article 234 was negotiated and agreed among Canada, Russia and

61 James Kraska, “International Security and International Law in the Northwest Passage,” Vanderbilt Journal of International Law 42 (2009): 1109–132, 1123–126; Tamnes, “Arctic Security and Norway,” 54. 62 See, for example, the Agreement on the North American Aerospace Defense Command between Canada and the US (April 28, 2006), www.norad.mil/About-NORAD/NORAD-Agreement/. See also Byers and Lalonde, “Who Controls the Northwest Passage?” 1191–199 and Tamnes, “Arctic Security and Norway,” 55–56. 63 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, May 12, 2011, www.ifrc. org/docs/idrl/N813EN.pdf. 64 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, May 15, 2013, https:// oaarchive.arctic-council.org/handle/11374/529. 65 See also Chapter 6 of this volume. 66 Jinho Yoo, Floris Goerlandt and Aldo Chircop, “Unmanned Remotely Operated Search and Rescue Ships in the Canadian Arctic: Exploring the Opportunities, Risk Dimensions and Governance Implications,” in Governance of Arctic Shipping Rethinking Risk, Human Impacts and Regulation, eds. Aldo Chircop, Floris Goerlandt, Claudio Aporta and Ronald Pelot (The Hague: Springer, 2020), 88, 312. 67 For an analysis, see Corine Wood-Donnelly, “The Arctic Search and Rescue Agreement: Text, Framing and Logics,” The Yearbook of Polar Law 5 (2013): 299–318; Shih-Ming Kao, Nathaniel S. Pearre and Jeremy Firestone, “Adoption of the Arctic Search and Rescue Agreement: A Shift of the Arctic Regime toward a Hard Law Basis?” Marine Policy 36 (2012): 832–38. 68 Karen N. Scott, “Maritime Security and Shipping Safety,” 119–20. 69 Article VI of the Antarctic Treaty. 70 France proclaimed an EEZ in 1973 and Australia in 1994. See Patrizia Vigni, “Antarctic Maritime Claims: ‘Frozen Sovereignty’ and the Law of the Sea,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction eds. A. G. Oude Elferink and D. R. Rothwell (The Hague: Martinus Nijoff, 2001), 85, 104. See also Chapter 6 of this volume.

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the United States, having in mind only the ice-covered areas of the Arctic.71 A lack of interest in or opposition to the drafting of Article 234 by other States reinforces its limited application to the Arctic.72 Antarctica, however, has its own governance framework and shipping safety and environmental protection can be guaranteed, to an extent, through the ATS. For example, Article VII (5) imposes prior notif ication requirements to all expeditions proceeding to the Antarctic Treaty area. A glaring gap in shipping safety in the Antarctic remains because of the large SAR regions in the Southern Ocean.73 Currently, the Southern Ocean is divided in f ive SAR regions with Argentina, Australia, Chile, New Zealand and South Africa being responsible for maritime search and rescue under the International Convention on Maritime Search and Rescue (SAR Convention),74 the International Convention for the Safety of Life at Sea (SOLAS),75 and Article 98 LOSC. The characteristics of each SAR region differ greatly which makes maritime search and rescue challenging in the region. The main problems have been identif ied in relation to the SAR regions of Australia and New Zealand, which cover large portions of the Southern Ocean at distance from the main territories.76 Even in the case of the SAR regions monitored by Chile and Argentina, which are closer to the peninsula, the “time of arrival of SAR units is still very high compared to the expected survival time in the Antarctic.”77 The pressures on the SAR units in the Southern Ocean have been monitored and reviewed by the Council of Managers of National Antarctic Programs (COMNAP), but the reality is that the combination of increased maritime traff ic and the hazardous navigation conditions requires a radical change in the vast SAR regions and their resources. The adoption of the Arctic SAR Agreement suggests that better coordination could be achieved in the Southern Ocean through a similar agreement among the States in the region, but such a step has not yet been taken.

The IMO Polar Code In addition, ships operating in the Southern Ocean and the Arctic Ocean must comply with the Polar Code.78 The Polar Code is a technical instrument that was adopted following years of consultations on safety and environmental risks associated with polar navigation. It has two mandatory parts that were introduced in the form of amendments; Part I-A (Safety Measures of the Code) and associated SOLAS amendments, which were adopted by the Maritime Safety Committee (MSC), and Part II-A (Pollution Prevention Measures) and MARPOL amendments by the Marine Environment Protection Committee (MEPC).79 Chapter 12 of the Polar Code on manning and training was introduced to take into account the provisions of the International Convention on Standards of Training, Certif ication and Watchkeeping for Seafarers (STCW) and its related STCW Code. It is still early to be in a position to fully evaluate the effectiveness of the Polar Code but one substantive

71 James Kraska, “Governance of Ice-Covered Areas: Rule Construction in the Arctic Ocean,” Ocean Development & International Law 45 (2014): 260–71, 266; De Mestral, “Article 234,” 118–20. 72 Ibid. 73 According to Chapter 1 of the IMO International Convention on Maritime Search and Rescue, April 27, 1979, 1403 UNTS, SAR regions are “an area of def ined dimensions within which search and rescue services are provided.” 74 Ibid. 75 IMO, International Convention for the Safety of Life at Sea, November 1, 1974, 1184 UNTS 3. 76 Scott, “Maritime Security and Shipping Safety,” 130–32. 77 COMNAP, FiNAL REPORT – Antarctic Search and Rescue (SAR) Workshop IV Improving SAR Coordination and Response in the Antarctic (May 2019), para 10 https://documents.ats.aq/ATCM42/att/ATCM42_att095_e.pdf. 78 See also Chapters 7 and 19 of this volume. 79 IMO, International Code for Ships Operating in Polar Waters (Polar Code), (Safety-related provisions) (November 21, 2014) IMO Resolution MSC. 385(94).

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limitation which has already received criticism concerns its application only to commercial carriers and passenger vessels of 500 tons or more on an international voyage in the polar waters.80 The non-application to smaller vessels and the requirement that the vessel is on “a voyage from a country to which [SOLAS] applies to a port outside such country, or conversely” could arguably limit the application of the Polar Code, especially in Antarctica because of the lack of commercial ports.81 More importantly, the success of the Polar Code will be shaped by State practice and compliance with it which is expected to differ in the two poles. The Polar Code imposes duties on flag States, but it is yet to be seen whether coastal and port States are divested of their rights.82 In the Arctic, this problem is more pertinent because of Article 234 LOSC and the (in)consistency that might arise between the domestic laws enacted by Canada and Russia and the Polar Code. The relationship between Article 234 LOSC and the Polar Code has not been fully clarif ied yet and opposite views argue that Article 234 LOSC is now redundant or that it constitutes a safety-net in case the implementation of the Polar Code fails.83 So far, it seems that both Canada and Russia have been willing to facilitate the enforcement of the Polar Code which they regard as an important tool for shipping safety in the Arctic.84 It would not come as a surprise though if domestic laws enacted under Article 234 LOSC are prioritised over flag State jurisdiction in case flag States fail to enforce the Polar Code standards. In the Antarctic, the Polar Code applies to vessels within the Antarctic Treaty area where no coastal or port States have jurisdiction to enforce or inspect the Polar Code standards. This makes a conflict between rights and duties unlikely, but compliance with the Polar Code ultimately rests with flag States which might leave signif icant gaps in its enforcement.85

Transnational Criminal Activities A f inal point that requires attention has to do with the inevitable emergence of criminals in the polar waters who have so far been kept away because of the remoteness and icy conditions. Increasing maritime traff ic and human activity in the polar oceans make illegal activities, such as terrorist activities and traff icking in drugs or migrants, not a very remote prospect. The Arctic Ocean seems more vulnerable to these crimes than the Southern Ocean mainly because of the prospect of becoming a commercial shipping route and because it is surrounded by coastal States. A number of illegal entries have already been recorded in Canada, which shows that human traff ickers can defy the polar conditions in order to smuggle illegal migrants in North America.86 After 9/11 and because of the thawing ice, the possibility of terrorists using the Arctic waters to enter North America, sabotaging ports and other facilities or transporting missiles became more tangible for the

80 Regulation 1 of Chapter I, Part A, of SOLAS; Regulation 2 (1) of Chapter XIV of SOLAS. 81 Øystein  Jensen, “The International Code for Ships Operating in Polar Waters: Finalization, Adoption and Law of the Sea Implications,” Arctic Review on Law and Politics (2016), https://arcticreview.no/index.php/arctic/article/ view/236/791#NOTE0049_236. 82 Ted L. McDorman, “A Note on the Potential Conflicting Rights and Obligations between the IMO’s Polar Code and Article 234 of the Law of the Sea Convention,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde, Ted L. McDorman, and Donat Pharand (Leiden and Boston: Brill, 2015), 141–59. 83 Jensen, “The International Code for Ships Operating in Polar Waters.” On this issue, see Chapters 6, 7 and 19 of this volume. 84 Bai, “The IMO Polar Code,” 692–95; Aldo Chircop, Peter G Pamel, and Miriam Czarski, “Canada’s Implementation of the Polar Code,” Journal of International Maritime Law 24 (2018): 428–50, 443–49. 85 Lawson W. Brigham, “IMO Polar Code: New Governance for the Southern Ocean,” Antarctic Science 30 (2018): 331–32, 331. 86 Byers and Lalonde, “Who Controls the Northwest Passage?” 1189.

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United States and Canada.87 A rise in commercial vessels as well as vessels carrying oil or gas could also whet the appetite of armed robbers or pirates. To address illegal activities in the Arctic Ocean, States could rely on the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) and its protocols.88 These instruments criminalise a broad range of illegal activities at sea, including attacks against vessels and the discharge of biological or chemical weapons.89 The effectiveness of these instruments depends on the boarding and interdiction of vessels engaged in SUA offences. In the Arctic context, relying on SUA would require States to build signif icant capacity in order to patrol the Arctic waters and interdict vessels suspected of illegal activities. These efforts could be supplemented by the implementation of the International Ship and Port Security Code (ISPS Code), which aims to enable port States “to detect and deter acts which threaten security in the maritime transport sector.”90 At the moment, the limited number of commercial ports in the Arctic limits the application and effectiveness of the ISPS Code.91 However, if the predictions for higher volumes of maritime traff ic in the Arctic materialise, one would expect that port States in the region would invest in port security and the implementation of the ISPS Code. The United States will have to do the same in order to effectively implement the US-led Container Ship Initiative according to which containers in vessels bound for a US port are inspected by US customs off icers outside the US.92

Law Enforcement and Maritime Domain Awareness (MDA) in the Polar Regions Maritime security is an evolving concept. In the context of the polar regions, which are also subject to ongoing changes because climate change, it is more diff icult to determine what threatens maritime security the most or evaluate its impact. What could be concluded from the evaluation of the situation at the time of writing is that traditional maritime security threats no longer constitute a problem for the polar regions, but the threats posed by the increasing presence of non-State actors do. Tackling the threats posed by non-State actors requires effective law enforcement and MDA activities which in turn require enhanced cooperation between States. However, these activities can alarm States as they might be interpreted as power projection and an adversarial approach to diplomacy. This is even more the case in the polar regions where the creators of both the ATS and the AC “have struggled to f ind effective ways to restrict membership to a limited set of states deemed to have legitimate interests in the management of these regions,”93 and the conduct of these activities by non-Arctic States could be seen as a threat to their legitimate interests. This requires revisiting certain approaches to maritime security matters in the poles and States should be encouraged to

87 Ibid., 1188; Kraska, “International Security and International Law,” 1123–26. 88 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, March 10, 1988, 1678 UNTS 222; 2005 Protocol to the SUA Convention, adopted on November 1, 2005, by the International Conference on the Revision of the SUA Treaties (LEG/CONF.15/21). 89 Article 3 of the SUA Convention and Article 3bis of its 2005 Protocol. 90 Sophia Kopela, “Tackling Maritime Security Threats from a Port State’s Perspective,” in Maritime Security and the 1982 United Nations Convention on the Law of the Sea: Help or Hindrance? Eds. Malcolm D. Evans and Sof ia Galani (Cheltenham: Edward Elgar, 2020), 181–94. 91 Rothwell, “Maritime Security in the Polar Regions,” 382. 92 Kopela, “Tackling Maritime Security Threats,” 196–99. 93 For more information on how membership works in the ATS and the AC, see Oran R. Young, “Governing the Antipodes: International Cooperation in Antarctica and the Arctic,” Polar Record 52 (2016): 230–38, 233.

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f ind constructive ways to facilitate law enforcement and MDA in order to prevent and combat illegal activities in the polar oceans. Maritime enforcement involves a range of activities, such as “surveillance, stopping and boarding vessels, search or inspection, reporting, arrest or seizure of persons and vessels, detention, and formal application of law by judicial or other process, including imposition of sanctions.”94 Law enforcement has been mostly undertaken by the coast guard, but a rise in maritime crimes have made the navies more involved in these operations, which has considerably blurred the distinction between military activities and law enforcement.95 In Ukraine v Russia, the International Tribunal on the Law of the Sea (ITLOS) found that in distinguishing between military activities and law enforcement, neither the type of vessels nor the characterisation of the dispute by the parties provides a decisive criterion; that the conduct of the parties, the cause of the dispute and the context of the dispute are relevant factors; and that if an activity is both military and law enforcement in nature, a test with a reasonable threshold is required.96 MDA policies have also complicated our understanding of military activities and law enforcement. MDA refers to the collection and sharing of information relating to non-nation threats, such as maritime terrorism and piracy, that enables States to gain an effective understanding of the maritime domain and anything that could impact their security, safety, economy or the marine environment.97 The collection of information can be done through vessel-tracking systems, such as the automatic identif ication system (AIS) and satellite-based longrange identif ication and tracking (LRIT), but MDA is about more than white shipping.98 Intelligence, surveillance and reconnaissance of vessels, cargo and people by coast guards, warships or unmanned aerial vehicles also contribute to f inding “the ships and submarines of friends and foes, understanding the entire supply chain of cargoes, identifying people aboard vessels, understanding the infrastructures within or astride the maritime domain, and identifying anomalies and potential threats in all these areas.”99 The LOSC, however, does not def ine or regulate MDA activities, and other intelligence activities it regulates have often raised controversies.100 For example, intelligence gathering is considered by some States an activity prejudicial to coastal security or incompatible with the rights that coastal States enjoy in their EEZ.101 In the context of the Antarctic, law enforcement and MDA activities can be further challenged under the ATS. The reason is that the Antarctic Treaty has frozen sovereign claims over the territory and adjacent maritime zones and with them the law enforcement powers of States. More importantly, the Antarctic Treaty prohibits “measures of a military nature” in the Antarctic Treaty

 94 William T. Burke, The New International Law of Fisheries: LOSC 1982 and Beyond (Oxford: Clarendon Press, 1994), 303.  95 Case concerning the detention of three Ukrainian naval vessels (Ukraine v Russian Federation), Provisional Measures ITLOS, May 25, 2019, para. 64. See also Douglas Guilfoyle, “Maritime Law Enforcement Operations and Intelligence in an Age of Maritime Security,” International Law Studies 93 (2017): 299–321, 299.  96 Ukraine v Russia, ibid. For a detailed discussion, see Yoshifumi Tanaka, “Release of a Detained Warship and Its Crew through Provisional Measures: A Comparative Analysis of the ARA Libertad and Ukraine v. Russia Cases,” International Law Studies 96 (2020): 223–56.  97 US National Plan, ii.  98 Chris Rahman, “Maritime Domain Awareness in Australia and New Zealand,” in Maritime Security: International Law and Policy Perspectives from Australia and New Zealand, eds. Natalie Klein, Joanna Mossop and Donald Rothwell (London: Routledge, 2010), 207–13.  99 Steven C. Boraz, “Maritime Domain Awareness: Myths and Realities,” Naval War College Review 62 (2009): 137–46, 141. 100 Guilfoyle, “Maritime Law Enforcement Operations,” 305–9. 101 Articles 19 LOSC and 58 LOSC. Galani and Evans, “The Interplay between Maritime Security and LOSC,” 19–21.

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area.102 What this means is not strictly def ined.103 A strict interpretation, however, could leave a signif icant gap in how maritime security can be achieved in the Southern Ocean. As discussed earlier, the Antarctic Treaty was developed having in mind traditional maritime security threats, such as interstate disputes and weapons testing, and the treaty has been successful in neutralising these threats. As threats posed by non-State actors keep increasing in the Southern Ocean, activities that maintain maritime security, such as surveillance or other MDA policies, should not be considered incompatible with the demilitarisation ideals of the treaty. Australia, for example, has acted unilaterally to improve MDA and tackle border threats and enhance marine safety, SAR and environmental protection104 and to bilaterally combat illegal f ishing in the Southern Ocean.105 Other States in the region have also put in place legal arrangements regarding maritime surveillance and enforcement measures and more should be encouraged.106 Despite the fears that the strategic competition by States, such as China and India, might lead to the adoption of initiatives contrary to the Antarctic Treaty,107 promoting interstate cooperation in terms of enforcement and surveillance does not weaken the Antarctic Treaty but instead enables it to maintain its relevance in light of the changing maritime security landscape. The same approach is advocated with respect to the Arctic where several problems could arise in relation to law enforcement and MDA. On the one hand, the Arctic States continue to demonstrate their sovereignty through military means. Incidents, such as the beluga whale found off Norway’s coast wearing a Russian harness, suggests not only the strong security interests of States in the region but also that technological advances make it diff icult to capture what intelligence gathering or MDA might include.108 On the other hand, non-Arctic States might rely on military means to safeguard their commercial interests. China, for example, which has presented itself as a “near-Arctic State,” has shown a strong interest in the Arctic affairs because it sees the transpolar route as an essential component of its ambitious Belt and Road Initiative and due to its investments in the exploitation of natural resources in the Russian Arctic.109 China has already invested in ship-building polarcapable cargo vessels, liquef ied natural gas tankers and nuclear-powered icebreaker that will allow it to increase its presence in the Arctic Ocean, and this could be combined with a stronger military presence and enhanced MDA activities.110 Non-Arctic States might also rely on Article 110 LOSC to become more involved in maritime security matters in the Arctic Ocean. While States might employ military means simply to enforce the relevant laws or protect their interests, heightened military activities and concentration of warships in the Arctic waters might be regarded as power projection in the region. For example, the increasing military activities by Russia and China, such

102 Article I of the Antarctic Treaty. 103 Sam Bateman, “Strategic Competition and Emerging Security Risks: Will Antarctica Remain Demilitarised?” in Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives, eds. Alan D. Hemmings, Donald R. Rothwell, and Karen N. Scott (London: Routledge, 2012), 118–19. 104 Rahman, “Maritime Domain Awareness,” 213–19. 105 Agreement on Cooperative Enforcement of Fisheries Laws between Australia and France in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and McDonald Islands (January 8, 2007). 106 Rothwell et al., “The Search for ‘Antarctic Security,’ ” 12. 107 Bateman, “Strategic Competition and Emerging Security Risks,” 120–23. 108 Marc Lanteigne, “The Changing Shape of Arctic Security,” NATO Review (June  28, 2019), www.nato.int/docu/ review/articles/2019/06/28/the-changing-shape-of-arctic-security/index.html. 109 Marc Lanteigne, “ ‘Have You Entered the Storehouses of the Snow?’ China as a Norm Entrepreneur in the Arctic,” Polar Record 53 (2017): 117–30, 120–24; Moe and Stokke, “Asian Countries and Arctic Shipping,” 38–39. See also Chapter 30 of this volume. 110 A Blue Arctic, 8.

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as the reopening of old bases, the transit of military vessels and the investment in defence infrastructure, have already alarmed the United States and NATO.111 In the light of the ongoing importance of military activities in the Arctic Ocean, it is suggested that the AC revisits its current approach not to deal with “matters related to military security.”112 Our understanding of maritime security in the Arctic Ocean has changed and so has the notion of military activities. Given that interstate disputes are no longer a cause of concern in the Arctic, refraining from engagement with military matters could undermine the efforts of States to achieve maritime security in the region, especially by tackling threats posed by non-State actors. For example, the presence of military assets in the region were considered necessary for the effective implementation of the Arctic SAR Agreement.113 To that end, it has been suggested that the AC could decide on matters related to military security, if there is consensus to do so, as the Ottawa Declaration is a non-legally-binding document.114 The evolving interpretation of the AC’s founding document could encourage more cooperation within the AC and between the AC and other nonArctic States and international organisations, such as the NATO or the EU. At the moment, the Arctic States continue to place signif icant emphasis on sovereignty in terms of governing the Arctic Ocean considering the geographical location to be the only criterion that can determine not only the powers that States can exercise in the Arctic Ocean but also how much saying States have in its management.115 While the exercise of sovereign powers can translate into law enforcement powers by the Arctic Ocean coastal States, the capacity of the AC to stay afloat the rapid security changes in the Arctic Ocean, without opening up its decision-making processes to non-Arctic states and other stakeholders, has to be questioned.116 As long as cooperation in the Arctic remains “an Arctic States’ enterprise,” gaps will emerge in maritime security.117 Realising maritime security in the Arctic requires more than just circumpolar cooperation, and thus, the AC will have to stop shying away from military security matters, as well as excluding non-Arctic States from any security-related matters.

Conclusion Trying to map what challenges maritime security in the polar regions is not an easy task. The changing landscape in the polar regions makes it diff icult to determine how maritime security will be shaped in the two poles. The evaluation, at the time of writing, showed that traditional maritime security threats, such as interstate disputes, no longer constitute a major threat in the two polar regions, but threats associated with shipping, such as risks to safety of life, pollution and

111 Ibid., 7–8; Duncan Depledge, “NATO and the Arctic: The Need for a New Approach,” The RUSI Journal 165 (2020): 80–90; Rebecca Hersman, Eric Brewer, and Maxwell Simon, “Strategic Stability and Competition in the Arctic,” CSIS Briefs (January 2021), https://csis-website-prod.s3.amazonaws.com/s3fs-public/publication/210106_Hersman_Strategic_Stability.pdf. 112 See the discussion in the section on “Traditional Maritime Security in the Polar Regions.” 113 Paige Wilson, “Society, Steward or Security Actor? Three Visions of the Arctic Council,” Cooperation and Conflict 51 (2016): 55–74, 56–57. 114 Ibid., 63–64; Molenaar, “Current and Prospective Roles of the Arctic Council System,” 569–70. 115 Wilson, “Society, Steward or Security Actor,” 56–59. 116 Kristin Bartenstein, “The Arctic Region Council Revisited Inspiring Future Development of the Arctic Council,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde, Ted L. McDorman, and Donat Pharand (The Hague: Brill, 2015), 55–75; Donald R. Rothwell, “Polar Oceans Governance in the 21st Century,” Ocean Yearbook 26 (2012): 343–60, 350. 117 Ibid., 63.

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transnational illegal activities, can pose signif icant threats to the security of the polar oceans. States in the Arctic and the Antarctic rely on existing structures of governance, such as the ATS, the LOSC and the AC, in order to promote cooperation and prevent any interstate disputes or resolve them peacefully. At the same time, international law provides them with mechanisms to tackle threats by non-State actors, including through the IMO Polar Code, the SUA Convention and the ISPS Code. The enforcement of these measures depends on effective law enforcement and MDA activities. The involvement of navies in these activities, however, makes their distinction from military activities that are closely associated with the promotion and protection of State sovereign interests challenging. This is why this chapter reinforced that in achieving maritime security in the polar regions, States should continue investing in interstate cooperation that will improve law enforcement and MDA. Otherwise, in their effort to safeguard their sovereign interests, States risk allowing the polar oceans to become lawless places.

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10 DISPUTE SETTLEMENT AND THE POLAR REGIONS Donald R. Rothwell

Introduction The polar regions have not been the scene of the same level of international discord as that witnessed in other parts of the world. They have not been a theatre for armed conflict, though in the case of the 1982 Falklands War between Argentina and the United Kingdom, they were adjacent to such an area.1 The Cold War between the USA and USSR saw the two superpowers face off against each other in the Arctic but at no time did armed conflict break out directly between them.2 Whilst the polar regions have been the subject of territorial disputes, those disputes have been settled either by means of diplomacy or through judicial settlement. A feature of the polar regions is that multilateral, regional and bilateral treaties and other international instruments have assisted in bringing about enhanced cooperation between and amongst polar States. Even if these instruments have not absolutely settled polar disputes, they have certainly assisted in calming or setting aside those disputes. In reviewing dispute settlement in the polar regions the focus is immediately drawn towards the 1959 Antarctic Treaty.3 The Treaty was negotiated at a time when Antarctica was on the brink of the Cold War and was ravaged by multiple unresolved territorial disputes.4 Only a few years prior to the commencement of treaty negotiations, Argentina, Chile and the United Kingdom were engaged in proceedings before the International Court of Justice (ICJ) to settle their overlapping territorial claims. However, while those proceedings were eventually discontinued,5 the impact of the Antarctic Treaty was to bring about an initial resolution of the territorial disputes that existed throughout the continent which has lasted now for over 60 years. A distinctive feature of Antarctica is therefore

1 See, generally, D. George Boyce, The Falklands War (New York: Palgrave Macmillan, 2005). 2 See, generally, David S. Painter, The Cold War: An international history (London: Routledge, 1999). 3 Antarctic Treaty, adopted December 1, 1959, entered into force June 23, 1961, 402 UNTS 71. 4 See, generally, F. M. Auburn, Antarctic Law and Politics (London: C. Hurst, 1982), 5–83. 5 Antarctica Case (United Kingdom v Argentina) (Order of March 16, 1956) [1956] ICJ Reports 12; Antarctica Case (United Kingdom v Chile) (Order of March 16, 1956) [1956] ICJ Reports 15; neither Argentina nor Chile was prepared to accept the Court’s jurisdiction in this dispute, and in the absence of jurisdiction, the two cases were removed from the Court’s List.

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how the Treaty has neutralised territorial disputes, and, in doing so, paved the way for continued scientif ic cooperation amongst the Antarctic Treaty parties, including not only the original 13 parties but also the additional 41 parties who have joined the treaty since its entry into force in 1961. While there is nothing equivalent to the Antarctic Treaty in the Arctic, there has in recent decades been increased efforts at regional cooperation which has to a degree resulted in equivalent levels of mutual engagement and support for an Arctic regime based on certain core principles, such as environmental protection and peaceful activities. Through initiatives such as the Ottawa Declaration6 and the ongoing development of the Arctic Council System,7 Arctic States and those States with Arctic interests have increasingly been able to come together and work in mutual cooperation for the advancement of common Arctic ideals. The effect of this enhanced Arctic cooperation, which prior to the 1990s existed only at some sub-regional levels and bilaterally, has been to create an additional forum where diplomatic mechanisms may be utilised to resolve disputes. This chapter will separately address dispute settlement mechanisms in the Arctic and Antarctica. Particular attention will be given to the formal mechanisms for dispute settlement as referenced in Article 33 of the Charter of the United Nations (UN),8 regional mechanisms that have been adopted, and State practice. To commence, an initial assessment will be undertaken of the peaceful settlement of international disputes, especially with respect to adjudication before the ICJ and mechanisms under Part XV of the 1982 United Nations Convention on the Law of the Sea (LOSC).9

Peaceful Settlement of International Disputes Article 33 of the UN Charter created the modern architecture for the peaceful settlement of international disputes. Parties to a dispute that may endanger international peace and security are to seek resolution of the dispute by way of a variety of mechanisms, including negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or other peaceful means.10 The most signif icant provisions in the Charter that seek to implement Article 33 are found in Chapter XIV, which provides for the ICJ, which in turn has its own separate Statute11 and which forms an “integral part” of the Charter.12 This work does not allow for exhaustive discussion of the role of the ICJ in the peaceful settlement of international disputes;13 however, the importance of

6 Declaration on the Establishment of the Arctic Council (Ottawa, Canada, September 19, 1996), www.international. gc.ca/world-monde/international_relations-relations_internationales/arctic-arctique/declaration_ac-declaration_ ca.aspx?lang=eng. 7 This descriptor has been proposed by Molenaar; see Erik J Molenaar, “Current and Prospective Roles of an Arctic Council System within the Context of the Law of the Sea,” International Journal of Marine and Coastal Law 27 (2012): 553, which, in the view of Scott and VanderZwaag, “has only strengthened over the last decade”: Karen N. Scott and David L. VanderZwaag, “Introduction to Polar Law,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenhan, UK: Edward Elgar, 2020), 1, 3, 9. See also Chapter 21 of this volume. 8 Charter of the United Nations, signed June 26, entered into force October 24, 1945, 1 UNTS XVI (UN Charter). 9 United Nations Convention on the Law of the Sea, adopted December 10, 1982, entered into force November 16, 1994, 1833 UNTS 397 (LOSC). 10 See, generally, J. G. Merrills, International Dispute Settlement, 6th ed. (Cambridge: Cambridge University Press, 2017), 1–176; Yoshifumi Tanaka, The Peaceful Settlement of International Disputes (Cambridge: Cambridge University Press, 2018), 28–72. 11 Statute of the International Court of Justice, signed June 26, 1945, entered into force October 24, 1945, 1 UNTS XVI. 12 UN Charter 1945, Article 92. 13 See the discussion in Merrills, International Dispute Settlement, 152–76; Tanaka, The Peaceful Settlement of International Disputes, 128–224.

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the court for the polar regions revolves around its potential capacity to exercise jurisdiction over polar disputes.

International Court of Justice The jurisdiction of the ICJ is detailed in Article 36 of the Court’s Statute and can be founded on a number of bases in which a critical component is the existence of State consent. This is particularly reflected in Article 36(2) of the Statute where States may declare they recognise the Court’s jurisdiction with respect to certain international law matters, including the interpretation of a treaty, and any question of international law. A total of 74 of the 193 UN member States have deposited Article 36 (2) declarations recognising the court’s compulsory jurisdiction in this manner. Eight of the 14 States with asserted polar territorial claims have made such declarations: Australia, Canada, Denmark, Finland, New Zealand, Norway, Sweden and the United Kingdom.14 None of those declarations directly seek to exclude polar disputes, though a number seek to exclude matters relating to issues within domestic jurisdiction15 or law of the sea, such as maritime zones.16 Subject to these limitations, the ICJ would therefore have Article 36 (2) jurisdiction to resolve polar disputes that may arise between some of the polar States, but not with respect to those States which have not made such declarations: Argentina, Chile, France, Iceland, Russian Federation and the USA. The potential role of the ICJ in Arctic dispute resolution was highlighted in 1970 when Canada modif ied its Article 36(2) declaration so as to exclude any dispute with the United States going before the court following its adoption of the Arctic Waters Pollution Prevention Act as a result of the voyage of the SS Manhattan through Canadian Arctic waters of the Northwest Passage.17 Since that time Canada has again modif ied its Article 36 (2) declaration, while the United States has withdrawn its declaration and no longer accepts the court’s compulsory jurisdiction. Only two polar disputes have been settled by the ICJ of which the 2014 Whaling in the Antarctic case brought by Australia against Japan in which New Zealand intervened is the most recent.18 However, while that dispute related to matters arising in the Southern Ocean immediately adjacent to Antarctica, and also involved three States that were all parties to the Antarctic Treaty, the dispute is more properly characterised as one involving whaling and Japan’s conduct under the 1946 International Convention for the Regulation of Whaling19 rather than matters related to the polar regions. This is highlighted by the fact that the ICJ did not reference the Antarctic Treaty in its judgement and, other than with respect to matters relating to jurisdiction over disputes in the Southern Ocean, did not discuss in any level of detail matters associated with where Japan’s whaling program was taking place. The Whaling in the Antarctic case did, however, place the spotlight on the

14 International Court of Justice, Declarations recognizing the jurisdiction of the Court as compulsory (March 19, 2021), www.icj-cij.org/en/declarations. 15 Such as Canada. 16 Such as Australia, New Zealand and Norway. 17 “Canadian Declaration Concerning the Compulsory Jurisdiction of the International Court of Justice,” ILM 9 (1970): 598–99; see, generally, on this point R. St. J. McDonald, “The New Canadian Declaration of Acceptance of the Compulsory Jurisdiction of the International Court of Justice,” Canadian Yearbook of International Law 8 (1970): 3–38. 18 Whaling in the Antarctic (Australia v Japan; New Zealand intervening) [2014] ICJ Reports 226. The other case is Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), judgement, ICJ Reports 1993, p. 38. 19 International Convention for the Regulation of Whaling, adopted December 2, 1946, entered into force November 10, 1948, 161 UNTS 72.

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capacity of the ICJ to play a role in resolving disputes involving the polar regions and was a reminder that the court had previously been involved in an Antarctic case in 1956, as noted earlier.

Law of the Sea Convention The other prominent multilateral legal framework for the peaceful settlement of polar international disputes is that found under the LOSC. Due to the signif icant polar maritime domains of the Arctic Ocean and Southern Ocean, the law of the sea is an overarching general legal framework within the polar regions. As such, there is considerable potential for the law of the sea and the LOSC in particular to play a role in settling polar disputes with maritime dimensions. To that end, it needs to be observed that Part XV of the LOSC has detailed mechanisms for the peaceful settlement of international disputes that both complement and extend the procedures noted in the UN Charter.20 The LOSC established the International Tribunal for the Law of the Sea (ITLOS) as a permanent judicial body capable of peacefully settling disputes under the convention while also recognising the ongoing role of the ICJ in law of the sea dispute settlement. Arbitration and conciliation of law of the sea disputes are also provided for with allowance made for ad hoc bodies under Annexes V, VII and VIII of the LOSC. To date, these mechanisms have been utilised in a number of law of the sea disputes including the Arctic Sunrise21 case between the Netherlands and Russia in the Russian Arctic discussed in the following section, the Volga case between Australia and Russia in the Southern Ocean,22 and the Monte Confurco case between France and the Seychelles in the Southern Ocean.23 While the LOSC has a total of 168 States Parties and includes both the polar territorial States, polar claimant States and an increasing number of States with polar interests, it needs to be recalled that the United States is not a party and, as such, is not bound by the Part XV dispute settlement mechanisms.

Arctic The history of the formal settlement of Arctic international disputes is not signif icant. International disputes that have arisen traditionally have been focused on matters associated with sovereignty and territoriality and resource management. This is certainly reflected in two of the most prominent early Arctic disputes: the 1893 Bering Fur Seal Arbitration24 between Britain and the United States and the 1933 Permanent Court of International Justice (PCIJ) decision in the Legal Status of Eastern Greenland between Norway and Denmark.25 While there is no Antarctic Treaty equivalent instrument in the Arctic, a distinctive Arctic legal regime developed to resolve territorial tensions is the

20 See, generally, Donald R. Rothwell and Tim Stephens, The International Law of the Sea, 2nd ed. (Oxford: Bloomsbury, 2015), 473–505; Yoshifumi Tanaka, The International Law of the Sea, 3rd ed. (Cambridge: Cambridge University Press, 2019), 493–535. 21 Arctic Sunrise (Netherlands v Russian Federation) (provisional measures) (November 22, 2013) ILM 53 (2014) 607. 22 Volga (Russian Federation v Australia) (prompt release) (December 23, 2002) ILM 42 (2003): 159. 23 Monte Confurco (Seychelles v. France), Prompt Release, judgement, ITLOS Reports 2000, 86. 24 Fur Seal Arbitration (Great Britain/United States of America) (August 15, 1893), in J. B. Moore, History and Digest of the International Arbitrations to which the United States Has Been a Party, vol. 1 (Washington: Government Printing Off ice Washington, 1898), 755. 25 Legal Status of Eastern Greenland (Norway v Denmark) (1933) PCIJ Reports, Series A/B, No. 53.

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1920 Treaty Concerning the Archipelago of Spitsbergen (Svalbard),26 which recognised the “full and absolute sovereignty of Norway over the Archipelago”27 subject to the provisions of the treaty. Norway’s qualif ied sovereignty over the islands is reflected in a series of rights and entitlements enjoyed by other States Parties to the treaty.28 As Churchill and Ulfstein have observed, “What is unique about the Svalbard Treaty is that while Norway enjoys ‘full and absolute sovereignty,’ all States of the world may become parties to the Treaty and thereby enjoy certain non-discriminatory rights.”29 With this brief historical background, the analysis that follows will focus on dispute settlement under mechanisms established since adoption of the UN Charter.

Contemporary Treaty Frameworks In addition to the UN Charter, there are a range of multilateral, regional and bilateral treaty frameworks that apply in the Arctic which facilitate dispute resolution. Given that the region is dominated by the Arctic Ocean, the LOSC is one of the most prominent multilateral treaties governing the Arctic. Excepting the United States, all of the other Arctic States are LOSC parties in addition to other States with Arctic Ocean interests, such as China. In addition to the Part XV mechanisms for the peaceful settlement of disputes noted earlier, the LOSC also includes provisions for the delimitation of maritime boundaries between coastal States, which are designed to facilitate the settlement of those boundaries by way of agreement.30 State practice regarding maritime boundaries is noted further here. The Arctic Ocean has been the subject of submissions to the Commission on the Limits of the Continental Shelf (CLCS) with respect to LOSC, Article 76 claims to a continental shelf beyond 200 nautical miles (M). In this respect, it needs to be recalled that the CLCS is not an adjudicative body but rather after receiving submissions from coastal States makes “recommendations” with respect to the outer limits of the continental shelf beyond 200 M consistent with Article 76 and Annex II, LOSC.31 The Commission’s members comprise experts from the f ield of geology, geophysics or hydrography, and it has no mandate to resolve maritime disputes, though its recommendations certainly have implications for Arctic maritime claims that may result in overlapping entitlements resulting in the need for maritime boundary delimitation.32 The most high-prof ile LOSC related Arctic dispute arose following the 2013 interception, arrest and detention of the Dutch-flagged Arctic Sunrise and its crew by Russia. The incident arose from protest activities by Greenpeace International in a part of the Russian Arctic Exclusive Economic Zone and initially went before ITLOS where the Netherlands was granted provisional measures before progressing to a LOSC Annex VII Arbitral Tibunal. The Arctic Sunrise case,33

26 Treaty Concerning the Archipelago of Spitsbergen, adopted February 9, 1920, entered into force August 15, 1925, League of Nations Treaty Series 2, LNTS 7. 27 Ibid., Article 1. 28 Ibid., Articles 2, 3, 6, 7, 8. See also Chapter 28 of this volume. 29 Robin Churchill and Geir Ulfstein, “The Disputed Maritime Zones around Svalbard,” in Changes in the Arctic Environment and the Law of the Sea, eds. Myron Nordquist, John Norton Moore and Tomas H. Heidar (Leiden and Boston: Martinus Nijhof, 2010), 551, 555. 30 LOSC, Articles 15, 74 and 83. 31 Rothwell and Stephens, The International Law of the Sea, 116–23. 32 See, generally, Ted L. McDorman, “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World,” International Journal of Marine and Coastal Law 17 (2002): 301–24. 33 Arctic Sunrise (Netherlands v Russian Federation) (provisional measures) (November 22, 2013) ILM 53 (2014): 607.

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while signif icant for the interpretation of the LOSC in these various proceedings,34 does not have particular signif icance for Arctic dispute resolution other than to highlight the potential for LOSC Part XV mechanisms to be activated in disputes arising within the Arctic between Arctic and non-Arctic States. A signif icant law of the sea dispute that predates adoption of the LOSC and that predominantly remains outside of LOSC Part XV dispute settlement frameworks because the United States is not a party to the convention is that concerning the Northwest Passage. The status of the Northwest Passage as a shipping route had legally been relatively uncontroversial until the 1969 voyage of the US-flagged SS Manhattan from the Beaufort Sea through the Northwest Passage to Davis Strait. Following the Manhattan voyage, Canada adopted a number of measures including enactment of the Arctic Waters Pollution Prevention Act,35 extension of the Canadian territorial sea from three to 12 M, and modif ication of Canada’s acceptance of the compulsory jurisdiction of the ICJ so as to place a bar on any attempt by the US to challenge Canada’s actions before the court. Further controversy arose in August 1985 when the USCG Polar Sea sailed through the Passage from east to west. In September 1985 and following a comprehensive review of Canadian Arctic Policy, Canadian minister for external affairs Joe Clark announced a series of new initiatives that were designed to clarify Canada’s legal position with respect to the region, including talks with the United States on cooperation over Arctic waters.36 One result of these talks was the 1988 Agreement on Arctic Cooperation.37 The Agreement focuses on the shared interest of both countries in research conducted during icebreaker navigation off their Arctic coasts and commits both governments to facilitating such navigation and to share research information arising from such voyages. However, the Agreement also touches upon Northwest Passage issues and directly alludes to this when in Article 3 it provides: “The Government of the United States pledges that all navigation by U.S. icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada.” As both Pharand and McDorman have separately noted the consent provision needs to be read in the context of how the Agreement was framed around cooperation for the purposes of research and that as there is no right under international law for foreign vessels to conduct research within internal waters of another State, the consent provision became necessary so as to acknowledge Canada’s core entitlement under international law.38 Through the 1988 Agreement, Canada and the US effectively removed some of the public controversy that had been associated with the 1985 Polar Sea voyage and the Canadian government’s response.39 The controversy over the status of the Northwest Passage was

34 See Douglas Guilfoyle and Cameron A. Miles, “Provisional Measures and the MV Arctic Sunrise,” American Journal of International Law 108 (2014): 271–87. 35 Arctic Waters Pollution Prevention Act 1970 (Canada). 36 Canada, House of Commons, Debates, vol V at 6,463 (September 10, 1985). 37 Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation, adopted January 11, 1988, entered into force on January 11, 1988, 1852 UNTS 31529. 38 Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law 38 (2007): 3, 39–40; and Ted L. McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (Oxford: Oxford University Press, 2009), 250. 39 McDorman, Salt Water Neighbors, 251, observed, “The 1988 Agreement, however, was a political f ix and not a legal f ix to accommodate Canada while not undermining the U.S. legal position. It is an important and instructive example of the cooperative approach that Canada and the United States frequently are able to pursue to circumvent international ocean law disputes.”

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effectively neutralised, and while both sides remain in disagreement over the status of the waters, they have been able to temporarily set aside their differences without having had to rely upon formal mechanisms for dispute settlement.40 At a regional level, a number of Arctic-specif ic initiatives can be identif ied that play a role in dispute settlement of which the Arctic Council and associated Arctic Council System is notable. At a minimum, it provides a forum within which members are able to discuss Arcticwide issues which may assist in ensuring differences of views do not become disputes while also allowing for the development of closer relationships and understandings between Arctic States. Under the framework of the Arctic Council, three regional treaty instruments have been adopted, which have a variety of dispute settlement mechanisms including through direct negotiation,41 and direct consultations.42 These recent developments reinforces a perspective that the Arctic Council, and now the Arctic Council System, has resulted in enhanced conf idence-building mechanisms within the Arctic that will contribute to the early resolution of disagreements.43 A parallel but distinctive Arctic region initiative, which made clear the position of f ive of the eight Arctic States,44 with respect to the settlement of certain Arctic law of the sea issues was the 2008 Ilulissat Declaration which in part provided that we recall that an extensive international legal framework applies to the Arctic Ocean. . . . Notably, the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientif ic research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims.45 Setting aside the fact the United States is not a party to the LOSC, the Ilulissat Declaration put on notice the other Arctic States (Finland, Iceland and Sweden) and non-Arctic States with regional interests that the law of the sea and by default the LOSC was the legal framework through which Arctic Ocean issues were to be primarily resolved.

40 The author develops this analysis in more detail in Donald R. Rothwell, “Arctic Ocean Shipping: Navigation, Security and Sovereignty in the North American Arctic,” The Law of the Sea 1, no. 3 (2017). See also Chapter 7 of this volume. 41 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, adopted May 12, 2011, entered into force January  19, 2013, https://oaarchive.arctic-council.org/handle/11374/531, Article 17; Agreement on Enhancing International Arctic Scientif ic Cooperation, adopted May 11, 2017, entered into force May 23, 2018, https://oaarchive.arctic-council.org/handle/11374/1916, Article 15. 42 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, adopted May 15, 2013, entered into force March 25, 2016, https://oaarchive.arctic-council.org/handle/11374/529, Article 18. 43 Stefan Kirchner, Kamrul Hossain and Adam Stepien, “Governance and Government,” in Cybersecurity and Resilience in the Arctic, eds. Benjamin D. Trump, Kamrul Hossain and Igor Linkov (Amsterdam: IOS Press, 2020), 361, 366; Benjamin Schaller, “Conf idence & Security-Building Measures in the Arctic: The Organization for Security & Co-operation in Europe as a Role Model for the Area?” Arctic Yearbook (2014), https://arcticyearbook.com/arctic-yearbook/2014/2014scholarly-papers/92-conf idence-security-building-measures-in-the-arctic-the-organization-for-security-co-operation-in-europe-as-a-role-model-for-the-area. 44 Those being Canada, Denmark, Norway, Russia and the USA. 45 Ilulissat Declaration, adopted May 28, 2008, ILM 48 (2009): 382.

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State Practice The Arctic has no signif icant territorial disputes. A longstanding dispute existed between Canada and Denmark with respect to Tartupaluk (Hans Island) which sits between Ellsemere Island (Canada) and Greenland in the Nares Strait. The “dispute” over the island only arose in 1973 during negotiations over the maritime boundary in Nares Strait;46 however, there was no strong diplomatic momentum to resolve the issue given the remote location of the uninhabited island, and it was only occasionally visited by scientists. Canada and Denmark announced in 2022 that following negotiations, which also involved Greenland and Canadian Inuit, sovereignty over the island had been resolved. In an innovative and elegant settlement to the dispute, agreement was reached on a boundary that effectively divided the island between Canada and Denmark.47 Another area of Arctic State practice that is signif icant is that with respect to the resolution of maritime boundary disputes.48 The LOSC defaults to delimitation by agreement between the States, but third-party dispute settlement mechanisms are also available under Part XV. In the Arctic, it can be observed that the resolution of these disputes has been achieved either by 1. referral of the dispute to a third party for determination; 2. resolution of the dispute between the parties by way of agreement; or 3. deferral of the dispute through effectively setting it aside. With respect to third-party dispute settlement in the Arctic, there have been only two instances where that has occurred, one of which involved a conciliation.49 The 1981 Conciliation Commission report with respect to the area of the continental shelf between Iceland and Jan Mayen (Norway) was a landmark conciliation for the law of the sea and predated the LOSC Part XV and Annex V processes. The conciliation resulted in adoption by Iceland and Norway of a continental shelf agreement in 1982.50 Resolution of Arctic maritime boundaries by way of agreement between the States reflects a variety of State practice and generally is consistent with that found elsewhere such that there is nothing exceptional about that practice. The Arctic is notable, however, for the number of unresolved maritime boundaries. Examples include • Russia’s failure to ratify the 1990 Russia-USA Bering Sea Maritime Boundary Agreement and51 • lack of progress on Canada-USA negotiations on a maritime boundary in the Beaufort Sea.52

46 Michael Byers, International Law and the Arctic (Cambridge: Cambridge University Press, 2013), 11. 47 Government of Canada, “Canada and the Kingdom of Denmark, Together with Greenland, Reach Historic Agreement on Long-Standing Boundary Disputes” (June 14, 2022), www.canada.ca/en/global-affairs/news/2022/06/canada-andthe-kingdom-of-denmark-together-with-greenland-reach-historic-agreement-on-long-standing-boundary-disputes. html; see Ian Austen, “Canada and Denmark End Their Arctic Whisky War,” The New York Times (June 14, 2022), www.nytimes.com/2022/06/14/world/canada/hans-island-ownership-canada-denmark.html. 48 See discussion in Ted L. McDorman and Clive Schof ield, “The Arctic Ocean Unscrambled: Competing Claims and Boundary Disputes,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham, UK: Edward Elgar, 2020), 124–46. See also Chapter 5 of this volume. 49 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), judgement, ICJ Reports 1993, p. 38; Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf between Iceland and Jan Mayen, May 1981, ILM 20 (1981): 787. 50 Agreement on the Continental Shelf between Iceland and Jan Mayen, adopted October 22, 1981, ILM 21 (1982): 1222. 51 Agreement between the United States and the Soviet Socialist Republic on the Maritime Boundary, adopted June 1, 1990, ILM 29 (1990): 941. 52 See McDorman and Schof ield, “The Arctic Ocean Unscrambled: Competing Claims and Boundary Disputes,” 219–20; and generally Byers, International Law and the Arctic, 56–68.

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A number of reasons can be given as to why these maritime boundaries remain unresolved including territorial disputes, the United States position on the LOSC, and uncertainty with respect to the extent of continental shelf claims beyond 200 M. Importantly, however, there is no evidence to suggest that the failure to resolve these issues is the source of great tension between the Arctic States. In this regard, it needs to be recalled that all of the examples that have been given predate the Ilulissat Declaration, which reaff irmed support by the relevant States engaged in these disputes for the law of the sea and its associated mechanisms for the resolution of these matters. In recent years tensions have arisen between Norway and members of the European Union (EU) over access to the snow crab f ishery in waters adjacent to Svalbard. Norway has sought to regulate snow crab catch under Norwegian law in a manner which it claims is consistent with its rights under the Spitsbergen (Svalbard) Treaty, but this view is not accepted by European parties to the treaty and separately by the EU (which is not a party to the treaty).53 The dispute has highlighted the potential for multiple dispute settlement options, including under the LOSC and before the ICJ.54 In 2020 an aspect of the dispute was brought by interests based in Latvia against Norway under provisions of a 1992 Bilateral Investment Treaty between Norway and Latvia and those proceedings remain ongoing.55

Antarctica56 With the Antarctic Treaty and associated instruments dominating the regional legal framework in Antarctica, particular attention will be given to those dispute settlement mechanisms and the manner in which they have operated to neutralise disputes and create procedures for dispute settlement consistent with Article 33 UN Charter.

Antarctic Treaty Dispute Settlement Dispute settlement under the Antarctic Treaty can be characterised as follows: 1. formal mechanisms for dispute settlement consistent with the UN Charter; 2. informal mechanisms for dispute settlement through mechanisms such as Antarctic Treaty consultative meetings; and 3. treaty mechanisms for dispute avoidance with respect to sovereignty and jurisdiction. The principal focus is on the formal mechanisms that can be found in the Treaty. The informal mechanisms are ones that rely upon what could be termed “Antarctic diplomacy” within the context of the Treaty and what has over time evolved to become the Antarctic Treaty System (ATS).57

53 See Hélène De Pooter, “The Snow Crab Dispute in Svalbard,” ASIL Insights 24, no. 4 (2020), www.asil.org/insights/ volume/24/issue/4/snow-crab-dispute-svalbard; Andreas Østhagen and Andreas Raspotnik, “Why Is the European Union Challenging Norway Over Snow Crab? Svalbard, Special Interests, and Arctic Governance,” Ocean Development and International Law 50 (2019): 190–208. 54 See Valentin J. Schatz, “The Snow Crab Dispute on the Continental Shelf of Svalbard: A Case-Study on Options for the Settlement of International Fisheries Access Disputes,” International Community Law Review 22 (2020): 455–70. 55 Peteris Pildegovics and SIA North Star v. Kingdom of Norway, ICSID Case No. ARB/20/11. 56 Parts of this analysis are drawn from Donald R. Rothwell, “Dispute Settlement under the Antarctic Treaty System,” Max Planck Encyclopedia of International Procedural Law (Oxford: Oxford University Press, 2018). 57 Def ined in Protocol on Environmental Protection to the Antarctic Treaty, signed October 4, 1991, entered into force January 14, 1998, 30 ILM 1461 (Madrid Protocol), Article 1 as meaning “the Antarctic Treaty, the measures in effect

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A critical feature of this has become the annual Antarctic Treaty consultative meetings (ATCMs) – effectively the Conference of Parties – where the parties are able to meet and discuss the wide variety of issues that fall within their remit consistent with Article IX of the Treaty. As the ATS has evolved, an additional element that is critical to this process has been the role of the Committee on Environmental Protection (CEP), which meets in tandem with the ATCM with a mandate focused on giving effect to the comprehensive environmental protection measures provided for under the Madrid Protocol.58 As to dispute avoidance, here Articles IV and VIII have been pivotal in seeking to neutralise territorial tensions in Antarctica that both pre-dated and post-dated entry into force of the Treaty. No new territorial claims have been asserted in Antarctica by any of the original treaty parties, by States who have become parties over the past 60 years or by any non-party States. There have been territorial tensions from time to time, especially in the context of submissions made to the Commission on the Limits of the Continental Shelf with respect to continental shelf claims beyond 200 M under the LOSC,59 but these have been satisfactorily managed by way of diplomatic exchanges between the relevant States and by the Commission’s practice and procedure.60 Moving then to the formal mechanisms for dispute settlement, the Treaty contains a procedure for the settlement of disputes between two or more of the contracting parties relating to its interpretation or application.61 There are two mechanisms established. The f irst is a process of consultation between the relevant Treaty parties in order to seek to resolve the dispute by way of negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means.62 These measures parallel those found in the UN Charter with two exceptions: the obligation to consult63 and the deletion of a reference to regional agencies or arrangements which, as such a reference would include the Antarctic Treaty, became unnecessary. The consent of parties is required for any of these procedures for the settlement of disputes to be adopted.64 The second mechanism applies if the dispute has not proven itself capable of resolution, in which case with the consent of all of the parties the dispute shall be referred to the ICJ for settlement.65 Again, consent is critical,66 which would need to be particular to the case in question rather than being of a general nature.67 A failure to reach agreement for referral of the dispute to the ICJ does not absolve the parties from continuing to seek to resolve the dispute by any of the peaceful mechanisms that are otherwise provided for. These two mechanisms are limited to disputes that concern the “interpretation or application” of the Treaty. This would include not only the provisions of the Treaty as they relate to constraints

under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.” 58 Madrid Protocol, Articles 11–12. See also Chapters 11 and 22 of this volume. 59 LOSC, Article 76 and Annex II. 60 See e.g. CLCS, Outer limits of the continental shelf beyond 200 M from the baselines: Submissions to the Commission: Submission by Australia, www.un.org/Depts/los/clcs_new/submissions_f iles/submission_aus.htm, and particularly the reaction by way of note verbale from France, Germany, Japan, Netherlands, Russia and the USA. 61 Antarctic Treaty, Article XI. 62 Ibid., Article XI (1). 63 Arthur Watts, International Law and the Antarctic Treaty System (Cambridge: Grotius, 1992), 90. 64 Ibid. 65 Antarctic Treaty, Article XI (2). 66 G. Jaenicke, “Dispute Settlement under the Law of the Sea Convention,” in Antarctic Challenge II, ed. Rűdiger Wolfrum (Berlin: Duncker & Humblot, 1986), 163, 165. 67 Watts, International Law and the Antarctic Treaty System, 90.

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placed upon the activities of the States Parties with respect to scientif ic or nuclear activities, but also those decisions, measures, recommendations and resolutions adopted by consensus at Antarctic Treaty consultative meetings. A signif icant issue is whether the Antarctic Treaty’s dispute settlement measures apply in the case of territorial disputes. While as noted earlier the Treaty has effectively neutralised those disputes during its lifetime, this has been more of a consequence of the impact of the Treaty’s provisions seeking to set aside questions of Antarctic territorial sovereignty while the Treaty is in force rather than seeking to actually resolve those issues. If a territorial dispute was to arise, therefore, during the lifetime of the Antarctic Treaty, subject to how the dispute was characterised, it may or may not fall within the ambit of the Treaty’s dispute settlement mechanisms. A dispute that directly related to Article IV of the Treaty would clearly fall within these mechanisms,68 while a dispute between two States over the legitimacy of an Antarctic territorial claim may, subject to how the dispute is framed, fall outside of the Antarctic Treaty’s dispute settlement procedures. The practical impact, however, of this outcome is likely to be minimal given the parallel obligations for peaceful settlement of disputes in both the Antarctic Treaty and the UN Charter, and that the Treaty only anticipates referral of a dispute to the ICJ by way of mutual consent per Article 36(1) of the Court’s Statute. Nevertheless, given the need for mutual consent for a territorial dispute to be referred to the ICJ and the potential that some territorial disputes would involve more than two parties, questions have been raised as to whether it would be possible to achieve the necessary consent from all parties for referral of the dispute to the Court.69 The Treaty also includes a specif ic procedure for the resolution of disputes over the exercise of jurisdiction, which applies until such time as other measures are put into place. Pending the adoption of such recommendations, disputes regarding the exercise of jurisdiction in Antarctica are to be the subject of consultation between the parties with a view to reaching a mutually agreeable solution.70 No disputes on this subject matter have arisen.

Protocol on Environmental Protection to the Antarctic Treaty The Protocol provides for both general and specif ic mechanisms for dispute settlement. The general mechanisms parallel those found in the Antarctic Treaty,71 which in turn duplicate the mechanisms found in the UN Charter other than the referral to regional mechanisms. The procedures apply to disputes arising with respect to the interpretation or application of the Protocol, thereby making clear the distinction between the Protocol and the Treaty, though arguably the question as to whether the dispute settlement provisions of the Treaty apply equally to the Protocol is not settled.72 A compulsory dispute settlement mechanism is provided for in the case of a particular category of disputes as they relate to the prohibition on mineral resource activities, environmental impact assessment, emergency response action, the annexes to the Protocol (unless otherwise provided) and general provisions with respect to compliance.73 Therefore, it can be said that compulsory dispute

68 Tullio Treves, “Compulsory Settlement of Disputes: A New Element in the Antarctic System,” in International Law for Antarctica, eds. Francesco Francioni and Tullio Scovazzi, 2nd ed. (The Hague: Kluwer Law International, 1996), 603, 608. 69 Auburn, Antarctic Law and Politics, 139. 70 Antarctic Treaty, Article VIII (2). 71 Protocol, Article 18. 72 Watts, International Law and the Antarctic Treaty System, 106. 73 Protocol, Articles 19–20.

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settlement is limited ratione materiae.74 As many of these provisions are central to the key obligations that arise under the Protocol, the effect is that this compulsory dispute settlement procedure has broad application across the Protocol. Annex VI of the Protocol, dealing with liability arising from environmental emergencies, is the only annex that makes specif ic reference to dispute settlement procedures and, in addition to the mechanisms noted in the following paragraphs, provides in matters associated with the liability of a party as a State operator for an enquiry procedure established by the parties or resolution by the Antarctic Treaty consultative meeting.75 Upon becoming a party to the Protocol, or anytime thereafter, a party may elect to choose referral of a dispute to the ICJ or to an Arbitral Tribunal.76 If the parties have accepted the same means for the settlement of a dispute, then that election will prevail unless the parties otherwise agree.77 If the parties have not accepted the same means for dispute settlement or if they have accepted both means, then the dispute may only be submitted to the Arbitral Tribunal unless the parties otherwise agree.78 Likewise, if a party has not made a declaration or if the declaration is no longer in force, they will be deemed to have accepted the competence of the Arbitral Tribunal.79 In this manner, reference of a dispute for settlement by the Arbitral Tribunal is the default mechanism for dispute settlement. Declarations made under these procedures may be adjusted and varied, subject to being deposited with the depositary, though a new declaration will not impact upon pending proceedings before the ICJ or the Arbitral Tribunal.80 Subject, however, to individual State acceptance of the compulsory jurisdiction of the ICJ, there could arise a conflict between how a party has agreed to the compulsory jurisdiction of the Court under the Protocol and the Statute.81 An important aspect of these procedures is to consider the relationship between dispute settlement under the Treaty and the Protocol. The Protocol does not seek to amend the Antarctic Treaty but rather is stated to “supplement” the Treaty.82 Accordingly, the more detailed Protocol provisions for dispute settlement do not apply to disputes that arise under the Treaty. This distinction between the two dispute settlement procedures is reinforced by the Protocol, making clear that its procedures do not confer competence upon the Arbitral Tribunal, or jurisdiction upon the ICJ, to address any matter within the scope of Article IV of the Antarctic Treaty.83 This ensures that one of the most contentious ATS issues, territorial claims over Antarctica, is not subject to these dispute settlement mechanisms.84 No disputes have arisen under the Protocol during the period of its operation. Provision is also made for a three-member Arbitral Tribunal under a schedule to the Protocol. Unless otherwise agreed the arbitration is to take place at The Hague, and the Tribunal is to adopt its own rules of procedure. The proceedings are to be conducted expeditiously.85 Decisions are to be based upon the provisions of the Protocol and other applicable rules and principles of international law that are otherwise not incompatible.86 The Arbitral Tribunal may decide ex aequo et bono

74 Treves, “Compulsory Settlement of Disputes,” 604. 75 Protocol, Article 7 (4), (5) – Annex VI. 76 Ibid., Article 19 (1). 77 Ibid., Article 19 (4). 78 Ibid., Article 19 (5). 79 Ibid., Article 19 (3). 80 Ibid., Article 19 (7). 81 Treves, “Compulsory Settlement of Disputes,” 610. 82 Protocol, Preamble. 83 Ibid., Article 20 (2). 84 Treves, “Compulsory Settlement of Disputes,” 607. 85 Ibid., Schedule – Article 5. 86 Ibid., Schedule –Article 10(1); Bosco, “Settlement of Disputes under the Antarctic Treaty System,” 623.

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if the parties to the dispute so agree.87 The Award of the Tribunal is f inal and binding and “shall be complied with without delay.”88 The Arbitral Tribunal also has incidental jurisdiction to indicate provisional measures where it considers that it possesses prima facie jurisdiction.89 Provisional measures may be requested by any party to the dispute and may be indicated to preserve the respective rights and duties of the parties, or where the Tribunal considers it necessary and appropriate to prevent serious harm to the Antarctic environment.90 The Arbitral Tribunal, therefore, has the capacity to consider either the interests of the parties or the interests of the Antarctic environment when giving consideration to the granting of provisional measures. Orders of this nature by the Arbitral Tribunal are to be complied with promptly pending a f inal award.91 A separate procedure is envisaged in matters of exceptional urgency to prescribe “emergency provisional measures.”92 The 1991 Final Act of the meeting at which the Protocol was adopted recorded an understanding that the Tribunal would not make a determination as to damages until such time as an annex with respect to liability had been adopted and entered into force.93 Annex VI of the Protocol has now been adopted and makes specif ic provision for liability and also costs arising from environmental emergencies.94 The Final Act also agreed that with reference to Article 18 and the general provisions for dispute settlement, an “inquiry procedure” would be elaborated to facilitate resolution of disputes with respect to the provisions of Article 3 and activities undertaken or proposed to be undertaken in the Antarctic Treaty area.95 Finally, an important dimension of the Protocol that also needs to be taken into account is its interaction with non-ATS treaties.96 Annex IV, dealing with the prevention of marine pollution, makes specif ic reference to not derogating from the rights and responsibilities of the parties under the International Convention for the Prevention of Pollution from Ships (MARPOL),97 which raises issues regarding the potential interaction of MARPOL dispute settlement mechanisms98 and the Protocol.99

Convention for the Conservation of Antarctic Seals The Convention for the Conservation of Antarctic Seals100 (CCAS) contains no particular or specif ic measures for the resolution of disputes. No disputes have arisen under CCAS during the period of its operation.

 87 Ibid., Schedule – Article 10(2); this provision effectively mirrors ICJ Statute, Article 38 (2).  88 Ibid., Schedule – Article 11 (3).  89 Ibid., Schedule – Article 6(1).  90 Ibid.  91 Ibid., Schedule – Article 6(2).  92 Ibid., Schedule – Article 6 (3).  93 Watts, International Law and the Antarctic Treaty System, 108.  94 Protocol, Article 7 – Annex VI.  95 Watts, International Law and the Antarctic Treaty System, 106.  96 Ibid., Article 7 – Annex II.  97 International Convention for the Prevention of Pollution from Ships, as modif ied by the Protocol of 1978 Relating Thereto, signed November 2, 1973, entered into force October 2, 1983, 1340 UNTS 62.  98 Ibid., Article 10.  99 Treves, “Compulsory Settlement of Disputes,” 611–12. 100 Convention for the Conservation of Antarctic Seals, signed June  1, 1972, entered into force March  11, 1978, 11 ILM 251.

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Convention on the Conservation of Antarctic Marine Living Resources The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)101 includes general dispute settlement procedures that mirror those found in the Antarctic Treaty with respect to consultation between parties to resolve disputes by way of negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means.102 The obligation for dispute settlement applies with respect to disputes concerning the “interpretation or application” of CCAMLR. Disputes under CCAMLR that are not resolved under the general procedures shall with the consent of the parties be referred for settlement by the ICJ or arbitration. Failure to reach agreement upon utilising either of these procedures does not absolve the parties of an obligation to peacefully settle their disputes.103 If the parties to a dispute arising under CCAMLR elect to refer the matter to arbitration, then an Arbitral Tribunal is to be constituted and mechanisms are provided for the Tribunal’s composition and conduct.104 This arguably extends to any decision by the parties to refer the dispute to arbitration under either of the CCAMLR procedures noted earlier.105 The award of the Tribunal is to be f inal and binding, and the parties, including those which may intervene in the proceedings, are to comply without delay.

Concluding Remarks At one level, the polar regions have been a legal laboratory for dispute settlement. Because of their history as remote regions where human access and interaction were limited and where there were only a handful of States exercising sovereign interests, there was not the same need for traditional dispute settlement mechanisms to be developed as in more populous parts of the world. As such, the polar regions have been subject to some distinctive and innovative dispute settlement mechanisms that are not replicated elsewhere. The Antarctic Treaty and the ATS are the principal exemplars. The critical agreement reached via Article IV of the Antarctic Treaty has held since 1959, notwithstanding signif icant tensions amongst some parties, such as those between Argentina and the United Kingdom during the 1982 Falklands War. That in itself represents the most signif icant achievement of the ATS, and by setting aside territorial and associated sovereignty disputes, it has been possible for the parties and others to go about their scientif ic research activities in a predominantly neutralised political setting.106 In the Arctic, the emergence of the Arctic Council System has also seen an emphasis placed upon diplomacy and regional institutions as a means to assist in the softening of regional tensions that could flare into disputes. Innovative approaches have also been taken in an effort to resolve or set aside disputes, such as what occurred in the case of Svalbard, Hans Island, and unresolved maritime boundaries. While polar sovereignty tensions have not been completely neutralised, there is a general sense that the polar regions are places where international cooperation

101 Convention on the Conservation of Antarctic Marine Living Resources, signed May  20, 1980, entered into force April 7, 1982, 1329 UNTS 47 (CCAMLR). 102 CCAMLR, Article XXV (1). 103 Ibid., Article XXV (2). 104 Ibid., Article XXV (3). 105 Watts, International Law and the Antarctic Treaty System, 91. 106 Merrills, International Dispute Settlement, 13.

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is highly valued and where States seek to mutually cooperate to achieve good environmental outcomes and exercise a level of individual and collective regional stewardship.107 With the polar regions increasingly under the spotlight as a result of climate change, environmental and resource management and the consequential impact for Arctic Indigenous Peoples, it must be anticipated that some of the dispute settlements mechanisms discussed earlier will be tested in the future. This raises the prospect that both the general and specif ic regional mechanisms for dispute settlement may be activated as a result of either environmental or resource disputes. Multiple complex legal issues arise in these future scenarios, including locus standi, obligations erga omnes and obligations erga omnes partes.108 The 2014 Whaling in the Antarctic case in particular highlights these issues and raises the prospect of polar and non-polar States commencing international litigation to halt what is perceived to be detrimental polar environmental or resource activities. This suggests that while, to date, the formal mechanisms for polar dispute settlement have not been widely utilised, there is every potential they will be tested into the future as protection of the polar environment gains more global prominence.

107 There is a growing literature on this topic; see e.g. Nils Vanstappen, “Legitimacy in Antarctic Governance: The Stewardship Model,” Polar Record 55 (2019): 358–60; Tore Henriksen, “The Arctic Ocean, Environmental Stewardship, and the Law of the Sea,” UC Irvine Law Review 6 (2016): 61–82. 108 See discussion in Yoshifumi Tanaka, “The Legal Consequences of Obligations Erga Omnes in International Law,” Netherlands International Law Review 68 (2021): 1–33 https://doi.org/10.1007/s40802-021-00184-9; Yoshifumi Tanaka, “Reflections on Locus Standi in Response to a Breach of Obligations Erga Omnes Partes: A Comparative Analysis of the Whaling in the Antarctic and South China Sea Cases,” The Law and Practice of International Courts and Tribunals 17 (2018): 527–54. See also Chapter 11 of this volume.

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Environmental Protection of the Polar Regions

11 TWO MODELS ON ENVIRONMENTAL PROTECTION OF THE POLAR REGIONS Yoshifumi Tanaka

Introduction In one aspect, the Arctic and Antarctic have been arenas that involve competing interests of States. To establish a legal order in the polar regions, however, there must be a sense of sharing and protecting common interests. This holds particularly true of environmental protection of the polar regions since no State would be able to protect the environment of the Arctic or Antarctic alone.1 Thus, the polar regions are also a place that needs international cooperation. In this regard, the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol)2 declared, in its Preamble, that “the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems is in the interest of mankind as a whole.”3 The reference to “the interest of mankind as a whole” does seem to suggest that the protection of the Antarctic environment constitutes common interests of the international community. While community interests are collective by nature, international law remains a decentralised legal system. An essential issue thus arises how one can protect community interests, including the protection of the environment of the polar regions, in the decentralised international legal system. Noting this issue, this chapter examines the legal framework for the protection of the environment of the Arctic and Antarctic by applying two models: the decentralised-relational model

1 The author wishes to thank Professor Donald R. Rothwell and Professor Rachael L. Johnstone for their useful comments to an earlier draft of this chapter. Generally, on this subject, see also Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996), 349–404; Timo Koivuroa, “Environmental Protection in the Arctic and Antarctica,” in Polar Law Textbook, ed. Natalia Loukacheva (Copenhagen: TemaNord, 2010), 23; Robin Warner, “Principles of Environmental Protection at the Poles,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 326; Kees Bastmeijer and Rachael L. Johnstone, “Environmental Protection in the Antarctic and the Arctic: The Role of International Law,” in Research Handbook on International Environmental Law, eds. Malgosia Fitzmaurice, Marcel Brus, and Panos Merkouris, 2nd ed. (Chltenham: Edward Elgar, 2021), 459. 2 Adopted October 4, 1991. Entered into force January 14, 1998. Text in: 2941 UNTS 9. 3 Emphasis added. The Preamble of the Antarctic Treaty also refers to “the interest of all mankind.” The Antarctic Treaty (adopted December 1, 1959, entered into force June 23, 1961). Text in: 402 UNTS 71.

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and the institutional-communitarian model. This chapter consists of four sections. Following an introduction, the chapter identif ies the two models as a framework for analysis. Next, the chapter examines the decentralised-relational model for protecting the marine Arctic and considers the institutional-communitarian model for the protection of the Antarctic, respectively. Finally, the chapter delivers some conclusions.

Two Models on the Protection of the Polar Environment The Decentralised-Relational Model As a framework for analysis, two models can be envisaged. The f irst is the decentralised-relational model. This model can be characterised by three elements. First, under this model, there is no institutional mechanism to elaborate or develop environmental norms. Thus, the development of environmental norms relies on spontaneous State practice and/or the evolutionary treaty interpretation by contracting parties.4 Second, the decentralised-relational model contains no mechanism to adopt legally binding decisions upon States. Thus, relevant measures are to be decided and implemented by States individually. Third, under this model, there is no supervision of compliance with environmental norms by a third party or organ. Thus, the compliance with environmental norms relies on the goodwill of States. In summary, this model is designed to regulate horizontal relationships between States. According to this model, community interests are to be protected by each State which would assume the role of a guardian of the international community. This model rests on Georges Scelle’s theory of “la loi du dédoublement fonctionnel.”5 According to Scelle, realisation of law in every society must rest on three functions – that is, legislative, judicial, and enforcement functions.6 The mode to perform these functions and its eff icacy vary according to societies.7 In the inter-State order, there is no centralised organ to perform the three social functions. Accordingly, these functions are to be performed by State organs. Thus, the organs perform a dual role – that is, dédoublement fonctionnel.8 Where State organs perform their functions in the municipal legal order, they are considered as national organs. Where State organs perform their functions in the international legal order, they are regarded as international organs.9 Under the decentralised-relational model, in theory, rules regarding the protection of the Arctic environment are to be effectuated by the individual application of the law of dédoublement fonctionnel.

4 For the evolutionary interpretation of environmental norms, see Yoshifumi Tanaka, “Reflections on Time Elements in the International Law of the Environment,” ZaöRV/Heidelberg Journal of International Law 73 (2013): 139–75. 5 Georges Scelle, “Le Phénomène Juridique du Redoublement Fonctionnel,” in Rechtsfragen der internationalen Organisation: Festschrift für Hans Wehberg zu seinem Geburtstag, eds. Walter Schätzel and Hans Jürgen Schlochauer (Frankfurt am Main: Vittorio Klostermannm, 1956), 324. See also Yoshifumi Tanaka, “Reflections on Georges Scelle’s Theory of the Law of dédoublement fonctionnel in the Law of the Sea: Two Models for the Protection of Community Interests,” The International Journal of Marine and Coastal Law 38 (2023): 39, 52–53. 6 Georges Scelle, Manuel de Droit International Public (Paris: Domat-Montchrestien, 1948), 15; Georges Scelle, Précis de Droit des Gens: Principes et Systématique, Première Partie (Paris: Recueil Sirey, 1932), 18. 7 Scelle, Précis de Droit des Gens, 20. 8 Georges Scelle, “Le Phénomène Juridique du Dédoublement Fonctionnel,” 331; by the same writer, “Règles Générales du Droit de la Paix,” RCADI 46 (1933): 327, 356. 9 Ibid., 358–59.

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The Institutional-Communitarian Model The second model is the institutional-communitarian model. This model seeks to protect collectively community interests through international institutions and arrangements established by multilateral treaties. This model is essentially characterised by three elements. First, under this model, environmental norms and policy are to be developed through decisions and recommendations adopted by an international institution, such as a treaty committee and the meeting of the parties. Second, this model contains a mechanism to adopt legally binding decisions. Thus, relevant measures that need to be taken by States are to be decided collectively through, for instance, a treaty commission. Third, under this model, the compliance with environmental norms is supervised by a third party or organ, normally a compliance or standing committee. In this sense, compliance with the norms is institutionalised. The degree of institutionalisation varies according to international institutions and arrangements. The most institutionalised model is provided by the International Seabed Authority (ISA) governing the Area.10 Under Article 136 of the UN Convention on the Law of the Sea (LOSC),11 “[t]he Area and its resources are the common heritage of mankind.” “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources” under Article 137(1). All rights in the resources of the Area are vested in humankind as a whole, on whose behalf the ISA shall act in accordance with Article 137 (2) of the LOSC. Accordingly, activities in the Area shall be organised, carried out, and controlled by the ISA for the benef it of humankind as a whole in a centralised manner.12 Although this model is innovative, it remains exceptional in international law. According to a more moderate model, community interests are to be protected through the institutional application of the law of dédoublement fonctionnel.13 Under this model, environmental norms are formulated by an international institution, such as a treaty committee and the meeting of the parties, and are implemented by States under the supervision of the treaty committee. Unlike the Arctic, territorial claims over the Antarctic are suspended by Article IV of the Antarctic Treaty14 and, accordingly, the Antarctic is not under territorial sovereignty of any States.15 Thus, the environment of Antarctica is collectively governed by the contracting parties to the Antarctic Treaty and related treaties that form the Antarctic Treaty System.16 This system provides an example

10 See Chapter 20 of this volume. See also Tanaka, “Reflections on Georges Scelle’s Theory,” 65–67. 11 Adopted December 10, 1982. Entered into force November 16, 1994. Text in: 1833 UNTS 3. 12 LOSC, Articles 149 (1) and 153 (1). 13 Scelle did not make a distinction between individual application and institutional application of the law of dédoublement fonctionnel. The distinction was made by the author in: Yoshifumi Tanaka, “Protection of Community Interests in International Law: The Case of the Law of the Sea,” Max Planck Yearbook of United Nations Law 15 (2011): 329, 357. See also Tanaka, “Reflections on Georges Scelle’s Theory,” 67. 14 Adopted December 1, 1959. Entered into force June 23, 1961. Text in: 402 UNTS 71. The Antarctic Treaty applies “the area south of 60° South Latitude, including all ice shelves” under Article VI. The Madrid Protocol covers the same area. On the other hand, CAMLR Convention “applies to the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem,” in accordance with Article I. 15 See Chapter 3 of this volume; Shirley V. Scott, “Antarctic: Competing Claims and Boundary Disputes,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 147. Care should be taken in noting that the Antarctic Treaty did not resolve the question of Antarctic sovereignty. Rothwell, The Polar Regions, 77–78. 16 Article 1(e) of the Madrid Protocol def ines the Antarctic Treaty System as “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.” The key treaties include: the 1959 Antarctic Treaty, the 1972 Convention for the Conservation of Antarctic

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of the institutional-communitarian model on the basis of the institutional application of the law of dédoublement fonctionnel. The two models are not mutually exclusive but coexist in the polar law. Indeed, the distinction between the two models is relative in some respects. For instance, some elements of the institutional-communitarian model can be found in the decentralised-relational model and vice vera. Furthermore, the models governing the polar regions are not static but evolve over time. Accordingly, one cannot deny the possibility that the decentralised-relational model will move in closer to the institutional-communitarian model with the passage of time.

Protection of the Arctic Environment: The Decentralised-Relational Model Legal Framework for the Protection of the Arctic Environment Unlike Antarctica, there is no framework treaty regarding the protection of the Arctic environment. Nor is there any institution that protects the Arctic environment. Thus, the protection of the Arctic environment relies on the individual application of the law of dédoublement fonctionnel which characterises the decentralised-relational model. For instance, the polar bear is protected by the 1973 Agreement on the Conservation of Polar Bears (Polar Bears Agreement).17 Under Article V, “[a] Contracting Party shall prohibit the exportation from, the importation and delivery into, and traff ic within, its territory of polar bears or any part or product thereof taken in violation of this Agreement.”18 Thus, Arctic States are obliged to protect polar bears in their territory on behalf of the international community as a whole. To take another example, some sites located in the territory of the Arctic States are listed in the cultural or natural heritage in the Convention Concerning the Protection of the World Cultural and Natural Heritage.19 States are obliged to ensure the protection of the cultural or natural heritage that are located in their territory under Article 4 of the Convention. Furthermore, “it is the duty of the international community as a whole to co-operate” in accordance with Article 6. Thus, it can be considered that theoretically the Arctic States protect the cultural or natural heritages that exist in their territory as a guardian of the international community. Under the decentralised-relational model, there is no centralised machinery for making rules of international law and, accordingly, law-making relies essentially on the will of States.20 It is true that the Arctic Council performs a valuable role in formulating policies and guidelines regarding various Arctic issues.21 Yet the Arctic Council is not a legislative body, and the Council itself cannot adopt

Seals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), and 1991 Madrid Protocol. Further, see Chapter 2 of this volume. See also Jill M. Barrett, “The Antarctic Treaty System,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenhan, UK: Edward Elgar, 2020), 40; Rothwell, The Polar Regions, 110–54. 17 Entered into force May 26, 1976. 18 The polar bear is also protected by the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Text in: 993 UNTS 243. Entered into force July 1, 1975. The polar bear is listed in Appendix II that includes “all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival.” All States in the Arctic region are parties to CITES. 19 See www.grida.no/resources/7745; https://whc.unesco.org/en/list/&order=region, accessed May 2, 2021. 20 For the purposes of this chapter, the concept of “law-making” is used in the broad sense, including the formulation of protective measures. 21 On this issue, see Chapter 21 of this volume.

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treaties regarding the protection of the environment.22 Since the norms are to be made by States or groups of States on a case-by-case basis, the degree of development of environmental norms considerably varies. For instance, webs of treaties regulating vessel-source marine pollution have been developed under the auspices of the IMO.23 However, the situation is completely different with regard to the prevention of land-based marine pollution in the Arctic. Land-based marine pollution, including air pollution, represents the most serious source of marine pollution.24 The adverse impact of land-based pollution to the marine environment is a serious one since it mainly affects coastal waters, which are sites of high biological productivity. The Arctic is not immune from land-based marine pollution. Indeed, the 2008 Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities stated that “Land-based sources of pollution located both within and outside the Arctic, represent the major sources of pollutants to the Arctic marine environment.”25 In particular, large circumpolar rivers may be an important source of mercury to the marine Arctic.26 To date, the LOSC is the only global treaty that provides rules with regard to the prevention of land-based marine pollution. As discussed elsewhere, however, the LOSC contains only general rules concerning the prescriptive and enforcement jurisdiction over the regulation of land-based marine pollution.27 At the global level, some attempts to prevent land-based marine pollution have been made only in the form of non-binding instruments.28 Yet regulation at the global level remains weak. The prevention of land-based pollution requires regulation of various economic sectors in the State. The degree of land-based marine pollution also varies in each coastal region. In light of industrial, economic and ecological differences, it is diff icult if not impossible to formulate uniform rules on this matter at the global level. Accordingly, there is a need to tailor specif ic rules preventing marine pollution, taking account of the particular needs of relevant States at the regional level.29 Nonetheless, there is no regional treaty to prevent land-based marine pollution in the Arctic. Only a part of the marine Arctic is covered by the OSPAR Convention.30 Article 3 of the OSPAR­

22 Timo Koivurova, Pirjo Kleemola-Juntunen and Stefan Kirchner, “Arctic Regional Agreements and Arrangements,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenhan, UK: Edward Elgar, 2020), 64, 73–74. 23 Aldo Chircop, “The Polar Code and the Arctic Marine Environment: Assessing the Regulation of the Environmental Risks of Shipping” The International Journal of marine and Coastal Law 35 (2020): 533, 559–68. However, among the Arctic Five, the United States is not a party to the LOSC, MARPOL Annex IV and the BWM Convention. Denmark excluded Greenland from the application of Annex VI of MARPOL. IMO, Status of the IMO Convention (London: IMO, 2021), 118. Canada also qualif ied its position when ratifying MARPOL. Ibid., 134. 24 It is estimated that land-based sources are responsible for approximately 80% of marine pollution. UN General Assembly, Oceans and the Law of the Sea: Report of the Secretary-General, August 18, 2004, A/59/62/Add.1, 29, para. 97. 25 Paragraph 1.3, accessed July 1, 2022, https://oaarchive.arctic-council.org/handle/11374/872. 26 Jenny A. Fisher et al., “Riverine Source of Arctic Ocean Mercury Inferred from Atmospheric Observations,” Nature Geoscience 5 (2012): 499–504. 27 LOSC, Articles 207 and 213. See also Yoshifumi Tanaka, “Regulation of Land-Based Marine Pollution,” in The IMLI Manual on International Maritime Law, Vol. III: Maritime Environmental Law and Maritime Security Law, eds. David J. Attard et al. (Oxford: Oxford University Press, 2016), 139, 145–46. 28 They were the 1985 Montreal Guidelines for the Protection of the Marine Environment against Pollution from Landbased Sources, Agenda 21 of 1992, the 1995 Washington Declaration on the Protection of the Marine Environment from Land-based Activities, and the 1995 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (1995 Global Programme of Action). 29 Tanaka, “Regulation of Land-Based Marine Pollution,” 149–50. For the list of the regional treaties on this matter, ibid., 151. 30 Article 1(a) of the OSPAR Convention.

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Convention places an explicit obligation upon the contracting parties to take “all possible steps to prevent and eliminate pollution from land-based sources.” However, three Arctic States which together control the vast majority of the EEZ in the Arctic are not contracting parties to the OSPAR Convention. Accordingly, the OSPAR Convention alone is inadequate to protect the marine Arctic from land-based marine pollution. All in all, it may have to be admitted that the regional legal framework for preventing land-based marine pollution in the marine Arctic remains modest. This situation highlights the weakness of the individual application of the law of dédoublement fonctionnel. As typically shown in the regulation of land-based marine pollution, States are often reluctant to approve any regulations that restrict their economic developments. As discussed elsewhere, the lack of adequate incentive and co-ordination constitutes a major obstacle to the individual application of the law of dédoublement fonctionnel.31

Compliance Procedures In the decentralised international legal system, reciprocity has been a principal leitmotiv for compliance with relevant rules. According to this principle, compliance with rules of the law results from the interest that a State perceives in the reciprocal action of another State or States.32 However, the principle of reciprocity is seen as not being effective in securing compliance with environmental norms since they do not provide reciprocal obligations on the basis of mutual advantages. In response, there is a need to explore a more institutionalised procedures for securing compliance with environmental norms. In this regard, a (non)compliance procedure is key. A compliance procedure can be def ined as a procedure to ensure the fulf ilment by the contracting parties of their obligations in implementing treaties.33 Compliance procedures are increasingly set out in multilateral environmental agreements. To date, however, compliance procedures have been underdeveloped in legal instruments relating to the protection of the Arctic environment. An exception is the OSPAR Convention. Under Article 23, the OSPAR Commission is empowered to assess State “compliance with the Convention and the decisions and recommendations adopted thereunder” and to “decide upon and call for steps to bring about full compliance with the Convention, and decisions adopted thereunder, and promote the implementation of recommendations, including measures to assist a Contracting Party to carry out its obligations.” As noted earlier, however, the OSPAR Convention covers only part of the marine Arctic. MARPOL provides for port State control with a view to securing compliance with rules regarding the vessel-source marine pollution.34 To enhance the eff iciency of port State control, nine memoranda of understanding (MOUs) on regional port State control have been established.35

31 Tanaka, “Protection of Community Interests,” 354 and 375; Tanaka, “Reflections on Georges Scelle’s Theory,” 55. 32 Hedry Bull, The Anarchical Society: A Study of Order in World Politics, 3rd ed. (New York: Colombia University Press, 2002), 134; Michael Virally, “Le principe de réciprocité dans le droit international contemporain,” RCADI 122 (1967III): 1, 19. 33 Yoshifumi Tanaka, “Compliance Procedure (Multilateral Environmental Agreements),” Max Planck Encyclopaedia of International Procedural Law (MPEiPro) (online edition) (Oxford: Oxford University Press, 2021). 34 Regulation 11 of Annex I, Regulation 16 (9) of Annex II, Regulation 8 of Annex III, Regulation 8 of Annex V, and Regulation 10 of Annex VI. 35 They are: Paris Memorandum of Understanding on Port State Control (1982), Viña del Mar or Latin-American Agreement (1992), Tokyo MOU on Port State Control (1993), Caribbean MOU (1996), the Mediterranean MOU (1997), Indian Ocean MOU (1998), Abuja MOU (1999), Black Sea MOU (2000) and Riyadh MOU (2004).

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States parties to the MOUs commit themselves to effectuate the conventions which are legally binding for them. In this connection, at the Third Joint Ministerial Conference of the Paris and Tokyo Memoranda of Understanding on Port State Control, the ministers expressed their determination to ensure that “the Polar Code requirements will be effectively enforced.”36 Furthermore, the Tokyo Port State Control Committee “considered and approved a number of revised or new guidelines for PSC Off icers, which included  .  .  . guidelines on the Polar Code.”37 As a matter of theory, port State control through MOUs would assume the role of an organ of the international community to protect community interests in marine environmental protection.38 However, MOUs themselves are not legally binding instruments.39 Accordingly, a breach of MOUs does not give rise to State responsibility. In this sense, port State control MOUs achieve only a limited degree of institutionalisation. All in all, it can be observed that compliance procedures remain only embryonic in the decentralised-relational model governing the protection of the Arctic environment.

Protection of the Antarctic Environment: The InstitutionalCommunitarian Model Legal Framework for the Protection of the Antarctic Environment The legal framework for the protection of the Antarctic environment has gradually evolved through the 60  years of the Antarctic Treaty System.40 The protection of the Antarctic environment has signif icant terrestrial or continental dimensions. The legal framework for the protection of the Antarctic environment can be characterised by three elements. The f irst is its evolutionary nature. The point of departure of development of the Antarctic Treaty System was the 1959 Antarctic Treaty. Article IX (1)(f) of the Treaty allows the Antarctic Treaty consultative meeting (ATCM) to recommend measures regarding “preservation and conservation of living resources in Antarctica” to the governments of the contracting parties. On the basis of this provision, the ATCM has adopted various resolutions and measures regarding the protection of the Antarctic environment.41 Among other things, in 1964, the ATCM adopted Agreed Measures for the Conservation of Antarctic Fauna and Flora.42 Furthermore, the Convention for the Conservation of Antarctic Seals (CCAS)43 and the Convention on the Conservation of Antarctic

36 Third Joint Ministerial Conference of the Paris and Tokyo Memoranda of Understanding on Port State Control, Vancouver, May 3–4, 2017, para. 6.24, accessed July 1, 2022, www.parismou.org/sites/default/f iles/Signed%20Declaration %203JMC.pdf. 37 Annual Report on Port State Control in the Asia-Pacif ic Region 2017 (Tokyo MOU Secretariat, 2017), 4, accessed July 1, 2022, www.tokyo-mou.org/doc/ANN17.pdf. 38 See also Erik J. Molenaar, “Port State Jurisdiction,” in Max Planck Encyclopedias of International Law, ed. Rüdiger Wolfum, para. 2 (online edition) (Oxford: Oxford University Press, 2021). 39 Ho-Sam Bang, “Is Port State Control an Effective Means to Combat Vessel-Source Pollution? An Empirical Survey of the Practical Exercise by Port States of their Powers of Control,” IJMCL 23 (2008): 715, 172. 40 Originally the Antarctic Treaty contains only one provision concerning environmental protection, that is, Article IX(1) (f). Rothwell, The Polar Regions, 363 and 400. 41 Bastmeijer and Johnstone, “Environmental Protection,” 463–64. 42 This instrument entered into force on November 1, 1982. However, the measures designated in this instrument were declared as “no longer current” by Decision 1(2011), ATCM XXXIV – CEP XIV, Buenos Aires, accessed July 1, 2022, www.ats.aq/devAS/Meetings/Measure/491. 43 Adopted June 1, 1972. Entered into force March 11, 1978, 27 UNTS 441.

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Marine Living Resources (CAMLR Convention)44 were adopted in 1972 and 1980, respectively. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), which was established under Article VII of the CAMLR Convention, adopted many conservation measures. Moreover, the Madrid Protocol was adopted in 1991. The Madrid Protocol itself is a living instrument45 and has evolved by adopting new annexes.46 In particular, it is notable that Article 3(1) of Annex II to the Madrid Protocol prohibits taking or harmful interference in order to protect native fauna and flora. Under Article 4(1) of Annex II, introduction of non-native species of living organisms onto land or ice shelves or into water, in the Antarctic Treaty area is prohibited. Further, Annex V to the Protocol allows the ATCM to designate Antarctic specially protected areas (ASPAs) and Antarctic specially managed areas (ASMAs),47 as well as historic sites and monuments (HSMs).48 Contracting parties must seek to identify ASPAs under Article 3(2) of Annex V to the Madrid Protocol. In principle, entry into an ASPA must be prohibited in accordance with Article 3(4) of Annex V. Overall the Antarctic Treaty System has gained increasingly strong environmental dimensions over time. The second element concerns its comprehensive nature. The Madrid Protocol provides a comprehensive legal framework for the protection of the Antarctic environment.49 In this regard, ­Article 2 of the Madrid Protocol places a general obligation upon the parties to “commit themselves to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems and hereby designate Antarctica as a natural reserve, devoted to peace and science.” This obligation is supplemented by Article 3(1), which requires the parties to consider the protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica in the planning and conduct of all activities in the Antarctic Treaty area. Furthermore, Article 6 provides an obligation to cooperation in the planning and conduct of activities in the Antarctic Treaty area. Given that international cooperation is a prerequisite to the protection of the environment,50 Article 6 is key in the protection of the Antarctic environment.51 In addition, Article 8 of the Protocol provides an obligation to conduct an environmental impact assessment (EIA).52 An EIA introduces

44 Adopted May 20, 1980. Entered into force April 7, 1982. Text in: 1329 UNTS 47. A f ifth convention, on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), adopted June 2, 1988 (27 ILM 868), is not in force. 45 Barrett, “The Antarctic Treaty System,” 51. 46 Annexes I to IV were adopted in 1991 together with the Madrid Protocol. The four annexes entered into force in 1998. Amendments to Annex II entered into force on December 8, 2016 (Measure 16 (2009), ATCM XXXII, CEP XII, Baltimore). Annex V was adopted in 1991 and entered into force in 2002, respectively. Yet Annex VI, which was adopted on June 17, 2005, has not yet entered into force. The information was accessed on January 31, 2022, www.ats. aq/e/protocol.html. See also Alan D. Hemmings, “Liability Postponed: The Failure to Bring Annex VI of the Madrid Protocol Into Force,” The Polar Journal 8 (2018): 315–32. 47 Articles 3, 4, 5, and 6 of the Madrid Protocol. 48 Article 8 of the Madrid Protocol. 49 Donald R. Rothwell and Alan D. Hemmings, “Evolution of a Polar Law,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenhan, UK: Edward Elgar, 2020), 455, 466; Rachael L. Johnstone and Scott Joblin, “Non-living Resources and the Poles,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenhan, UK: Edward Elgar, 2020), 250, 267. 50 The importance of cooperation to marine protection and preservation has been repeatedly stressed by ITLOS. MOX Plant case (Ireland v. United Kingdom) (Provisional Measures), ITLOS Case No. 10, [2001] ITLOS Reports 110, para. 82; Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS Case No. 12, [2003] ITLOS Reports 25, para. 92; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, ITLOS Case No. 21, [2015] ITLOS Reports 2015, 43, para. 140. 51 Bastmeijer and Johnstone, “Environmental Protection,” 465. 52 EIA in the polar regions will be discussed in Chapter 12 of this volume.

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elements of independence and impartiality to the decision-making process with regard to future projects in municipal law.53 Importantly, Article 7 of the Madrid Protocol prohibits mineral resource activities in Antarctica.54 Furthermore, six annexes to the Protocol provide detailed rules regarding: EIA (Annex I), conservation of Antarctic fauna and flora (Annex II), waste disposal and waste management (Annex III), prevention of marine pollution (Annex IV), area protection and management (Annex V), and liability arising from environmental emergencies (Annex VI) (not in force). In this connection, the role of the CAMLR Convention in environmental protection merits particular attention.55 While the CAMLR Convention aims to conserve Antarctic marine living resources,56 it also performs a crucial role in protection of marine biological diversity. In fact, the CCAMLR has adopted as series of conservation measures. Among other things, the establishment of the Ross Sea MPA can be considered as a notable achievement in the CAMLR Convention,57 even though “its conservation value remains to be seen.”58 The third element relates to the systemic nature. The coherence of the system is crucial to promote international cooperation in environmental protection. The Antarctic Treaty System attempts to secure its normative coherence and consistency in negative and positive manners. As regards negative coordination, Article 4(1) of the Madrid Protocol makes it clear that it must not modify or amend the Antarctic Treaty.59 Reservations to the Madrid Protocol are prohibited under Article 24. Furthermore, Article III of the CAMLR Convention provides that “[t]he Contracting Parties, whether or not they are Parties to the Antarctic Treaty, agree that they will not engage in any activities in the Antarctic Treaty area contrary to the principles and purposes of that Treaty.” Concerning a positive coordination, Article 5 of the Madrid Protocol obliges the parties to consult and co-operate with the Contracting Parties to the other international instruments in force within the Antarctic Treaty system and their respective institutions with a view to ensuring the achievement of the objectives and principles of this Protocol and avoiding any interference with the achievement of the objectives and principles of those instruments or any inconsistency between the implementation of those instruments and of this Protocol. Under Article V(1) of the CAMLR Convention, “[t]he Contracting Parties which are not Parties to the Antarctic Treaty acknowledge the special obligations and responsibilities of the Antarctic Treaty consultative parties for the protection and preservation of the environment of the Antarctic

53 Alan Boyle and Catherine Redgwell, Birnie, Boyle and Redgwell’s International Law and the Environment, 4th ed. (Oxford: Oxford University Press, 2021), 184; Yoshifumi Tanaka, “Obligation to Conduct an Environmental Impact Assessment (EIA) in International Adjudication: Interaction between Law and Time,” Nordic Journal of International Law 90 (2021): 86, 88. 54 The prohibition of any activity relating to mineral resources was reaff irmed by the Prague Declaration on the Occasion of the Sixtieth Anniversary of the Antarctic Treaty, para. 9. Reproduced in Final Report of the Forty-second Antarctic Treaty Consultative Meeting (ATCM XLII, Prague, Czech Republic, July 1–11, 2019), Appendix 1, accessed July 1, 2022, https://documents.ats.aq/ATCM42/fr/ATCM42_fr001_e.pdf. Further, see Chapter 18 of this volume. 55 For the CAMLR Convention, see Chapter 16 of this volume. 56 Article II (1). 57 Rothwell and Hemmings, “Evolution of a Polar Law,” 467. For a background of the Ross Sea MPA, see Cassandra M. Books et al., “Reaching Consensus for Conserving the Global Commons: The Case of the Ross Sea, Antarctica,” Conservation Letters 13 (2020): 1. MPAs in the polar regions will be discussed in Chapter 14 of this volume. 58 Books et al., “Reaching Consensus,” 9. 59 Under Article 21 and 22, the Madrid Protocol is open only to the parties to the Antarctic Treaty.

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Treaty area.” Furthermore, the contracting parties which are not parties to the Antarctic Treaty agree that in their activities in the Antarctic Treaty area, they will observe “measures as have been recommended by the Antarctic Treaty consultative parties in fulf ilment of their responsibility for the protection of the Antarctic environment from all forms of harmful human interference” in accordance with Article V(2). Under Article III of CAMLR Convention, the contracting parties, whether or not they are parties to the Antarctic Treaty, agree that “they are bound by the obligations contained in Articles I and V of the Antarctic Treaty.” In practice, the ATCM has adopted various resolutions to support CCAMLR.60 Overall it can be said that the Antarctic Treaty System provides a comprehensive, systematic and evolutionary legal framework for the protection of the Antarctic environment. It appears that the Antarctic Treaty System can better formulate environmental norms and measures through the ATCM. In fact, under Article 10(1) of the Madrid Protocol, the ATCM is empowered to def ine “the general policy for the comprehensive protection of the Antarctic environment and dependent and associated ecosystems” and “adopt measures under Article IX of the Antarctic Treaty for the implementation of this Protocol.” Thus, the consultative parties to the Protocol collectively decide measures and policies for the protection of the Antarctic environment through the ATCM. The Antarctic Treaty System can better formulate and coordinate environmental norms and measures compared to the Arctic Law which rests on the decentralised-relational model. However, the Antarctic Treaty System encounters some challenges. First, the measures, decisions and resolutions are adopted at the ATCM by consensus.61 However, there is no guarantee that 29 veto-wielding consultative parties could always reach consensus.62 If a proposal to prohibit certain activities, such as tourism and bioprospecting, could not be adopted because of the lack of consensus – for instance, that activity is allowed – until such time as a proposal to prohibit a particular activity is agreed by consensus. This will open the way of “decision-making by non-decision-making.”63 Likewise, there is no guarantee that under the Madrid Protocol, the Committee for Environmental Protection (CEP) can reach consensus on “recommendations and advice to be provided by it pursuant to the Protocol.”64 Second, in light of development of technology and industry, new environmental issues may arise. Yet there is no guarantee that ATCM can take protective measures in a timely manner. For instance, some commentators voiced their concern that ATCM has not adequately addressed tourism challenges65 and bioprospecting on the basis of a precautionary approach.66 Third, threats to the Antarctic environment can emanate from the outside. Climate change is an example.67 Like the Arctic, the Antarctic environment is influenced by climate change. In response,

60 Barrett, “The Antarctic Treaty System,” 58. See also Resolution 1 (2006): CCAMLR in the Antarctic Treaty System. 61 Decision 2 (2011), Annex 1: ATCM Revised Rules of Procedure, para. 24; Article IX(4) of the Antarctic Treaty. See also www.ats.aq/e/atcm.html, accessed January 31, 2022. 62 Barrett, “The Antarctic Treaty System,” 62. 63 Kees Bastmeijer, “Introduction: The Madrid Protocol 1998–2018. The Need to Address ‘the Success Syndrome,” The Polar Journal 8 (2018): 230, 237–38. 64 Revised Rules of Procedure for the Committee for Environmental Protection (2011), Rule 13. 65 On this issue, see also Kees Bastmeijer and Ricardo Roura, “Regulating Antarctic Tourism and the Precautionary Principle,” American Journal of International Law 98 (2004): 763. 66 Bastmeijer, “Introduction,” 235. 67 This issue will be discussed in Chapter 13 of this volume.

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the CEP adopted a Climate Change Response Work Programme68 and a Subsidiary Group on Climate Change Response69 in 2015 and 2017, respectively. Given that the root cause of climate change – that is, green house gas emissions – is a global issue, however, it is diff icult to address this issue only within the framework of the Antarctic Treaty System. Fourth, the exclusive nature of the consultative “club” must be noted. Under Article 9(2) of the Antarctic Treaty, only original parties (12 parties) and States that demonstrate their interest in Antarctica by “conducting substantial research activity there” (17 parties) are entitled to participate in the consultative meetings. The other 25 non-consultative parties cannot participate in the decision-making.70 According to this system, only States that have economic, scientif ic and technological capability to conduct scientif ic research can actually get to take decisions in practice. The closed decision-making system limits the communitarian nature of the Antarctic Treaty System.71

Compliance Procedures The next issue concerns compliance procedures in the Antarctic Treaty System. Notably, the Madrid Protocol set out a more institutionalised compliance procedure. Article 13(1) of the Protocol places a general obligation upon each Party to “take appropriate measures within its competence, including the adoption of laws and regulations, administrative actions and enforcement measures, to ensure compliance with this Protocol.” Furthermore, Article 13(2) obliges each party to exert appropriate efforts to the end that no one engages in any activity contrary to the Madrid Protocol. Then the Madrid Protocol provides three-layer structure. The f irst layer is self-notif ication and reporting. Under Article 13(3), each party must notify all other parties of the measures it takes pursuant to Article 13(1) and (2) of the Madrid Protocol. In this connection, each party is required to annually submit reports that include notif ications made in accordance with Article 13(3), contingency plans established in accordance with Article 15 and any other notif ications and information called for pursuant to this Protocol. The reports are to be circulated to all parties and to the CEP, and they are to be considered at the next ATCM and made publicly available in accordance with Article 17(2). Under Article 13(4) of the Protocol, each party is also obliged to “draw the attention of all other Parties to any activity which in its opinion affects the implementation of the objectives and principles of this Protocol.” The second layer concerns inspection. Inspections under the Madrid Protocol are integrally linked to those in the Antarctic Treaty by virtue of Article 14(1). In this connection, Article 14(2) specif ies two types of observers: (1) observers designated by any Antarctic Treaty consultative party who shall be nationals of that party and (2) any observers designated at Antarctic Treaty consultative meetings to carry out inspections under procedures to be established by an Antarctic Treaty consultative meeting. The second type of observers are a novelty in the Madrid Protocol.72 Under

68 Report of the Committee for Environmental Protection (CEP XVIII), Sof ia, Bulgaria, June 1–5, 2015, Appendix 2; ATCM Resolution 4 (2015), Committee for Environmental Protection Climate Change Response Work Programme. 69 Decision 1 (2017) – ATCM XL – CEP XX, Beijing, Subsidiary Group of the Committee for Environmental Protection on Climate Change Response (SGCCR). 70 For a list of consultative parties, see www.ats.aq/devAS/Parties?lang=e. 71 See also Rothwell, The Polar Regions, 89–90. 72 To date, however, this provision has not been used. Sune Tamm, “Peace vs. Compliance in Antarctica: Inspections and the Environment,” The Polar Journal 8 (2018): 233, 338.

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Article 14(3), parties must cooperate fully with observers undertaking inspections. Parties are also under the obligation to ensure that during inspections, observers are given access to all parts of stations, installations, equipment, ships and aircraft open to inspection under Article VII (3) of the Antarctic Treaty, as well as to all records maintained thereon which are called for pursuant to this Protocol. Reports of inspections are to be sent to the parties whose stations, installations, equipment, ships or aircraft are covered by the reports. After those parties have been given the opportunity to comment, the reports and any comments thereon are to be circulated to all the parties and to the CEP. They are to be considered at the next ATCM and thereafter made publicly available pursuant to Article 14(4). The third layer concerns the supervision by the CEP. The CEP was established by Article 11(1) of the Madrid Protocol. Under Article 11(2), each party is entitled to be a member of the Committee and to appoint a representative who may be accompanied by experts and advisors.73 The function of the CEP is to offer advice and formulate recommendations to the parties in connection with the implementation of this Protocol in accordance with Article 12(1). Indeed, the Committee is empowered to provide advice on a wide array of issues, including the effectiveness of measures taken pursuant to the Madrid Protocol. The Committee must meet once a year,74 and present a report that covers all matters considered at the meeting of the Committee on each of its meetings to the ATCM.75 While the CEP is not a legislative organ adopting legally binding instruments, its work is valuable to the ATCM.76 In fact, the Committee’s advice to the ATCM has led to the adoption of many regulatory measures in Antarctica. According to the CEP, “[m]ore than 40% of the over one hundred of Measures, Decisions and Resolutions adopted by the ATCM since the Protocol entered into force have stemmed from the work of the Committee.”77 In 2019, accepting the CEP’s advice, the ATCM adopted some eleven measures on ASPAs and ASMAs.78 Overall, in the Antarctic Treaty System, environmental norms and measures are collectively formulated through the ATCM and their implementation is controlled by inspections, the CEP and the ATCM. It appears that this mechanism provides an example of the institutional application of the law of dédoublement fonctionnel. It may be said that the Antarctic Treaty System reflects the institutional-communitarian model. This model contributes to address a weak point of the decentralised-relational model on the basis of the individual application of the law of dédoublement fonctionnel – that is, the absence of institutionalised mechanisms for setting out environmental standards and compliance procedures. However, two points need further consideration.

73 See also Rule 3 of the 2011 Revised Rules of Procedure for the Committee for Environmental Protection, accessed July 1, 2022, www.ats.aq/e/key-documents.html. 74 Ibid., Rule 9. 75 Ibid., Rule 22. 76 Jill Barrett, “International Governance of the Antarctic: Participation, Transparency and Legitimacy,” The Yearbook of Polar Law 7 (2015): 448, 466. 77 Committee for Environmental Protection, 25 Years of the Protocol on Environmental Protection to the Antarctic Treaty (Buenos Aires: Secretariat of the Antarctic Treaty, 2016), 15. 78 Antarctic Treaty Consultative Meeting, Final Report of the Forty-second Antarctic Treaty Consultative Meeting Prague, Czech Republic July 1–11, 2019, 28.

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The f irst concerns effectiveness of inspections. From 1968, some 58 inspections were conducted.79 However, many research stations have never been inspected or inspected more than 15 years ago.80 In some cases, it is also debatable whether the environmental issues could be resolved after the inspections. For instance, in 2006, the inspection team of the United States observed that there were non-indigenous decorative plants at Russia’s Bellingshausen Station. In this regard, the team “expressed its concern that these plants might not be consistent with Protocol requirements.”81 Ten years later, however, again the joint inspection team of Argentina and Chile observed the presence of a non-native ornamental plant of approximately 1.80-metre height at Bellingshausen Station.82 As regards Akademik Vernadsky Station (Ukraine), the joint inspection report of the United Kingdom and the Czech Republic recommended that “[w]astes, particularly general waste including food waste, should be stored in a covered area where it cannot be accessed by birds or other wildlife.”83 However, a multidisciplinary team of observers from Argentina and Chile stated, in its report of 2019, that it was not evident whether the recommendations made during the inspection carried out in the period 2014–2015 by the United Kingdom and the Czech Republic regarding the management of generated waste were addressed, so the inspection team believes it would be advisable that the Ukrainian Antarctic Program review and consider them appropriately.84 As demonstrated by these examples, follow-up of the observations and recommendations made by inspections needs further consideration. The second point relates to the weakness of compliance procedures under the Madrid Protocol. Usually compliance procedures contain self-triggering and third-party-triggering mechanisms at the same time. Under the self-triggering mechanism, a State that will be unable to comply with treaty obligations submits to the Secretariat of a treaty its particular circumstances that the State considers to be the cause of its non-compliance. Although the self-triggering mechanism is enshrined in most of the compliance procedures of multilateral environmental agreements, it is not provided in the Madrid Protocol and the Revised Rules of Procedure for the CEP. Likewise, the Madrid Protocol and the Revised Rules of Procedure for the CEP provide no explicit rules with regard to the third-party triggering. Furthermore, information gathering is of particular importance since non-compliance with relevant obligations by parties to a multilateral environmental agreement must be assessed on the basis of credible information. Although information gathering by a compliance committee is enshrined in compliance procedures set out under several multilateral environmental agreements,85 the Madrid Protocol and the Revised

79 See Inspection Data, accessed July 1, 2022, www.ats.aq/devAS/Ats/InspectionsDatabase. 80 See Map, accessed July 1, 2022, www.ats.aq/devAS/Ats/InspectionsDatabase. See also Bastmeijer and Johnstone, “Environmental Protection,” 465. 81 United States Department of States, Report of Inspections under Article VII of the Antarctic Treaty and Article 14 of the Protocol on Environmental Protection, November 12–December 1, 2006, 40. The plants have already existed at the station during its last inspection in 2001. 82 Report of the Inspection Program carried out by Argentina and Chile under Article VII of the Antarctic Treaty and Article 14 of the Protocol on Environmental Protection, February 16 and 18, 2016, 14. 83 United Kingdom, Foreign and Commonwealth Off ice Czech Republic, Ministry of Foreign Affairs, Antarctic Treaty Inspections Programme Report 2014–15, May 2015, 42. 84 Report of the Joint Inspections Program undertaken by Argentina and Chile under Article VII of the Antarctic Treaty and Article 14 of the Environmental Protocol, February 17–March 2, 2019, 31. 85 Tanaka, “Compliance Procedures,” para. 27.

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Rules of Procedure contain no rule on this matter. Moreover, the CEP and ATCM are not empowered to declare non-compliance of the contracting parties. Nor is there any suspension of the special rights and privileges under the Madrid Protocol and the Revised Rules of Procedure.86 Overall, it may have to be admitted that compliance procedures under the Madrid Protocol are less sophisticated compared to the compliance procedures set out in other multilateral environmental agreements.

Conclusion The consideration discussed reveals that two models coexist in the polar law system: the decentralisedrelational model for the Arctic and the institutional-communitarian model for the Antarctic. Under the decentralised-relational model, each State is to effectuate relevant norms with a view to protecting the Arctic environment as a guardian of the international community. It is argued that the law of dédoublement fonctionnel provides a theoretical basis for the exercise of State jurisdiction to protect the Arctic environment. Under the decentralised-relational model, however, it is diff icult if not impossible to formulate environmental norms in a systematic and timely manner. In reality, rules regarding the protection of the Arctic environment have been developed only in a piecemeal fashion due to the absence of institutionalised machinery for law-making. Furthermore, procedures for coordinating actions between States remain underdeveloped in the Arctic. Likewise, procedures for securing compliance with environmental norms remains weak. By contrast, the Antarctic Treaty System is equipped with a more institutionalised mechanism for setting out relevant protective measures through the ATCM. Furthermore, the Madrid Protocol provides a compliance procedure. Thus, the member States of the Antarctic Treaty System collectively protect the Antarctic environment as a guardian of the international community, without exercising territorial sovereignty. It appears that the Antarctic Treaty System provides a model of the environmental protection through the institutional application of the law of dédoublement fonctionnel. However, it cannot pass unnoticed that the Antarctic Treaty System encounters some challenges, such as • slow or no action to take protective measures due to the absence of consensus in the ATCM; • weak compliance procedures under the Madrid Protocol; and • inadequate follow-up after inspections. The legal frameworks for the protection of the environment of the polar regions reflect the differences of political conditions surrounding the Arctic and Antarctic. In fact, the institutionalcommunitarian model in the Antarctic relies on the condition that Antarctica is not subject to territorial sovereignty. This condition does not apply to the Arctic. With a view to enhancing the effectiveness of the protection of the Arctic environment, a realistic road to follow may be to enhance the interlink and coordination between multiple environmental treaties and other instruments regarding the protection of the Arctic environment.

86 For instance, the suspension of the special rights and privileges is provided by the Aarhus compliance procedures (para 37(g)), the Water and Health Protocol compliance procedures, and the Montreal Protocol compliance procedures (Annex V Indicative list of measures that might be taken by a Meeting of the Parties in respect of non-compliance with the Protocol). Ibid., para. 37.

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12 ENVIRONMENTAL IMPACT ASSESSMENT IN THE POLAR REGIONS Romain Chuffart and Julia Jabour

Introduction International law codif ies States’ behaviour to implement specif ic measures to prevent transboundary environmental harm.1 Since its well-documented inception as a domestic instrument in US federal law,2 the environmental impact assessment (EIA) has become a key mechanism to guide decision-makers to avoid and monitor potential environmental harm in most domestic systems. Its development and implementation are found in several generally applicable binding and non-binding international instruments. Conducting an EIA, as a process of evaluating the likelihood of environmental impacts of a proposed project or development, considering socio-economic, cultural and human impacts, implements the requirement of due diligence.3 Environmental evaluations allow States to gather enough information to exercise due diligence in decision-making.4 In this sense, an EIA can be a described as a self-regulatory and reflexive process requiring decision-makers to account for the best available science through the right process and prevailing substantive environmental norms.5 An EIA does not ensure that States will exercise due diligence. It is only partial: it gives States information. However, conducting one provides a means for States to facilitate the implementation of other international environmental principles and obligations – the precautionary approach and sustainable development. In international law, only the obligation to conduct a transboundary environmental impact assessment (TEIA) for a project with the potential to create signif icant harm in the jurisdiction of other States and in areas beyond national jurisdiction,6 as well as the legal

1 ILA, Study Group on Due Diligence in International Law, Second Report, July 2016, 47. 2 National Environmental Policy Act (1969). 42 USC §§ 4321–27. 3 Pulp Mills, Pulp Mills on the River Uruguay (Argentina v Uruguay), judgement, ICJ, Reports 2010, 14, para. 101. 4 See Yoshifumi Tanaka, “Obligation to Conduct an Environmental Impact Assessment (EIA) in International Adjudication: Interaction between Law and Time,” Nordic Journal of International Law 90, no. 1 (2021): 86–121. 5 Neil Craik, “Deliberation and Legitimacy in Transnational Environmental Governance,” IILJ Working Paper 2006/10 (2006), 4. 6 See United Nations Convention on the Law of the Sea (LOSC) (adopted December  10, 1982, entered into force November 01, 1994) 1833 UNTS 397, Part XII.

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p­ rinciples which it implements, has been recognised as customary law in the jurisprudence.7 Content requirements are not clearly or exhaustively def ined under international law and States enjoy some degree of discretion in conducting them. However, not conducting a TEIA, conducting a TEIA badly (i.e. not “diligently”) or ignoring the likelihood of a signif icant impact identif ied by a TEIA are all wrongful acts and give rise to State responsibility under international law. This chapter analyses the binding and non-binding instruments governing EIAs at the poles. At the poles, although international norms and principles remain applicable in a similar way, the concept of what is transboundary differs. This shapes the way in which EIA procedures are thought of and applied. Section 2 considers EIAs in Arctic governance through a variety of international and regional legal frameworks. This section also focuses on the development of EIA guidelines by the Arctic Environmental Protection Strategy (AEPS) and the Arctic Council (AC). In Section 3, we analyse EIA procedures in the Antarctic Treaty System (ATS),8 with particular attention to environmental evaluation in the Madrid Protocol.

Environmental Impact Assessments in the Arctic International Obligations There is no Arctic-specif ic legally binding EIA regime. Rather, it is a constellation of overlapping obligations in transboundary contexts and domestic norms when no transboundary impact is expected, with varying thresholds triggering such obligations. Arctic States have a general obligation under customary international law and the LOSC to conduct a TEIA for activities with potential risks of signif icant harm to the Arctic marine environment.9 A general EIA obligation can also be found in the 1992 Convention on Biological Diversity (CBD) to which all Arctic States except the United States are party.10 Article 14 requires States to introduce appropriate procedures requiring EIA for proposed projects likely to have signif icant adverse effects on biological diversity

7 See Case Concerning Gabčikovo-Nagymaros Project (Hungary v Slovakia), judgement, ICJ, Reports 1997, 7. See also Pulp Mills, TEIA obligation is to be read into the duty to prevent environmental harm, described as “an obligation to act with due diligence.” Conducting a TEIA provides a procedural means to effectuate the obligation of due diligence and the precautionary approach for transboundary environmental harm. Pulp Mills, ICJ Reports 2010, 79–80, para. 197. See also 2015 Certain Activities/Road cases. See Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), judgement, ICJ, Reports 2015, 665, para. 104. 8 The ATS is def ined as “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments” (Article 1(e), Madrid Protocol. The instruments are the Antarctic Treaty (adopted December 01, 1959, entered into force June 23, 1961) 402 UNTS 71; the Convention for the Conservation of Antarctic Seals (adopted June 01, 1972, entered into force March 11, 1978) 1080 UNTS 175, hereinafter CCAS; the Convention on the Conservation of Antarctic Marine Living Resources (adopted May 20, 1980, entered into force April 07, 1982) 1329 UNTS 48, hereinafter CAMLR Convention; and the Protocol on Environmental Protection to the Antarctic Treaty (adopted October 04, 1991, entered into force January 14, 1999) 402 UNTS 5778 (hereinafter Madrid Protocol). All can be accessed through the Antarctic Treaty Secretariat website, accessed February 12, 2021, www.ats.aq. Because the Convention on the Regulation of Antarctic Mineral Resource Activities (adopted June 2, 1988, 27 ILM 859, hereinafter CRAMRA) did not enter into force, it cannot be formally considered part of the ATS. In addition, other international law also applies to Antarctica, including the LOSC, the CBD and all the maritime law from the International Maritime Organization (IMO). 9 LOSC, Article 206. 10 1992 Convention on Biological Diversity (adopted December 5, 1992, entered into force December 29, 1993) 1760 UNTS 79.

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and to create the institutional framework for public participation in impact assessment procedures – exemplifying once again the procedural nature of EIA requirements.11 Through the AEPS and the AC, however, Arctic stakeholders have also created non-legally-binding guidelines for best EIA practices in the region. With regard to areas beyond national jurisdiction (ABNJs), existing environmental assessment regimes have a rather limited scope of application to projects with potential impacts on the marine environment.12 There again, no special Arctic EIA norm or obligation can be found. However, an international legally binding instrument on the conservation and sustainable use of marine biological diversity of ABNJs under the LOSC is currently being developed by the United Nations. Once the ongoing State negotiations are over, this new instrument will, without doubt, have some implications for the high seas portion of the Central Arctic Ocean, as well as other high seas pockets in the Norwegian, Bering and Barents seas.13 Although its geographic scope is yet to be settled, the new treaty is expected to contain substantive rules, especially in relation to area-based management tools, including marine protected areas and EIA.14 As a United Nations Economic Commission for Europe (UNECE) environmental treaty, the Espoo Convention provides specif ic EIA obligations in transboundary contexts applicable in the Arctic.15 The Convention lays out the legal framework with specif ic content requirements for an EIA report in assessing the likelihood of impacts a proposed activity might have on the environment of other States. It requires the State of origin to involve both the potentially affected State and its citizens, through notif ication, sharing of information and consultation. Within the Arctic, f ive States have ratif ied it16 and the three remaining States are signatories.17 In relation to Russia, Nordic States often engage in transboundary EIA following the Espoo Convention’s procedure.18 In Appendix I, the Convention provides a list of potential activities that mandate an EIA. Although the Convention does not provide for Arctic-specif ic norms, some of the listed activities under Appendix I, such as those related to the petroleum industry, are developments often seen in the Arctic. Moreover, the 2003 Kyiv Protocol to the Espoo Convention creates an obligation to conduct strategic environmental assessments (SEA).19 Under the Protocol, a SEA is an evaluation of likely

11 Gunnar Sander, “International Legal Obligation for Environmental Impact Assessment and Strategic Environmental Assessment in the Arctic Ocean,” The International Journal of Marine and Coastal Law 31 (2016): 88–119. 12 Ibid.; see also Timo Koivurova and Richard Caddell, “Managing Biodiversity Beyond National Jurisdiction in the Changing Arctic,” AJIL Unbound 112 (2018): 134–38, 137. 13 UNGA Res. A/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,” June 19, 2015. 14 Vito De Lucia, “The BBNJ Negotiations and Ecosystem Governance in the Arctic,” Marine Policy (2019): 103756. 15 Convention on Environmental Impact Assessment in a Transboundary Context (adopted February 25, 1991, entered into force September 10, 1997) 1989 UNTS 309. 16 Canada, Kingdom of Denmark, Finland, Norway and Sweden. 17 Iceland, Russia and the United States. That being said, albeit indirectly, Iceland still follows the Espoo Convention through the EU EIA Directive as part of the EEA as the directive implements the provisions of the Espoo Convention within EU law. 18 Timo Koivurova and Pamela Lesser et al., eds., Environmental Impact Assessment in the Arctic: A Guide to Best Practice (Cheltenham and Northampton: Edward Elgar Publishing, 2016). 19 Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context (adopted May 21, 2003, entered into force July 11, 2010) 2685 UNTS 140 (Kyiv Protocol). In the Arctic, only the following states have ratif ied or acceded to the Protocol: Kingdom of Denmark (including Greenland but excluding the Faroe Islands), Finland, Norway and Sweden (and the European Union). In EU law, see Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment.

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environmental (including health) effects, which comprises the determination of the scope of an environmental report and its preparation, the carrying-out of public participation and consultations, and the taking into account of the environmental report and the results of the public participation and consultations in a plan or programme.20 This can include assessing the potential environmental impact of proposed legislation and policy. Public consultation plays an important role in project developments across the Arctic. The 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) strengthens the relationship between environmental protection measures, such as EIAs and human rights.21 States are required to disseminate information to the public on a regular basis and to take specif ic measures, such as publishing a national report on the state of the environment every three to four years (Article 5.4) and through legislation and policy documents, international treaties and other international documents on environmental issues as they see f it. The Aarhus Convention also requires timely, adequate and effective public notif ication for an activity subject to either a national or a transboundary EIA procedure. Annex I contains a list of specif ic activities that mandate public participation in decision-making under Article 6. This list comprises activities with the potential to have heavy repercussions on the environment such as energy development, mineral exploitation and chemical industries.

Domestic and Regional Obligations Beyond implementing international norms related to transboundary environmental impact into their domestic legislations, all Arctic States have advanced national EIA systems and procedures in relation to extractive industries which require public participation and ensure environmental impact is kept to a minimum, developing impact benef it agreements with local communities based on the outcomes of the EIA and following social impact assessments.22 The threshold and activities for triggering an EIA varies from jurisdictions. In Greenland, for instance, the 2009 Greenland Mineral Resources Act mandates that licences for hydrocarbon and mineral extraction activities can only be granted following the submission and approval of an EIA report by the Greenlandic government.23 Section 73 of the act provides a list of activities requiring an EIA. In this case, the purpose of the EIA is to assess the environmental impact of an activity and to consider the overall environmental sustainability of the project area. The act also requires looking at the cumulative impact of development projects.24 In applying the act, the Greenlandic government has also developed a framework for social sustainability assessments (SIAs) (Section 76) with specif ic guidelines for best practices.25 The main objectives of an SIA are to provide an overall and detailed description of the negative

20 Kyiv Protocol, Art. 2 (6). 21 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998 (adopted June 25, 1998, entered into force October 30, 2001) 2161 UNTS 447. Among Arctic States, only Denmark (excluding the Faroe Islands and Greenland), Norway, Sweden, Finland, and Iceland are party to the Convention. Russia, Canada, and the United States are not signatories. 22 For an in-depth study of such requirements, see Rachael Lorna Johnstone and Anne Merrild Hansen, eds., Regulation of Extractive Industries: Community Engagement in the Arctic (Oxon and New York: Routledge, 2020). 23 Inatsisartut Act no. 7 of December  7, 2009, on Mineral Resources and Activities (the Mineral Resources Act), as amended, Section 73. 24 According to Sections 55–57, this also includes assessing whether activity or a facility is presumed to have a signif icant negative impact on the climate. 25 Government of Greenland, Social Impact Assessment (SIA) Guidelines on the process and preparation of the SIA report for mineral projects (2016).

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and positive impacts of project planning, mitigation initiatives and future monitoring and how the project will benef it Greenlandic society in general, as well as the affected local communities and individuals. SIAs are aimed at directly and meaningfully involving local communities and developing impact benef it agreements.26 As EU members, Denmark,27 Finland and Sweden must also comply with EU environmental standards.28 In 1985, the EU adopted EIA Directive (85/337/EEC), which makes EIA mandatory for a wide range of specif ic public and private projects listed in Annex I. The EIA directive has been amended and consolidated several times. The f irst revision in 1997 (Directive 97/11/ EC) widened the scope of Annex I and brought the directive in line with the Espoo Convention. The 1997 amendments also included new screening criteria. A second revision in 2003 (Directive 2003/35/EC) sought to align the EU’s EIA requirements with the Aarhus Convention in regard to public participation. Finally, a 2009 revision (Directive 2009/31/EC) amended Annexes I and II, by adding projects related to CO2 transport, capture and storage. In 2011, Directive 2011/92/EU further harmonised the principles for EIA by introducing minimum requirements with regard to the type of projects subject to an EIA, the main obligations of developers, EIA content and public participation.29 Under the EU directive, the EIA procedure comprises four stages.30 The requirements in the directive are to be regarded as a floor, not a ceiling, and EU member States are free to lay down more stringent protective measures in accordance with the Treaty on the Functioning of the European Union.31

Procedural and Substantive Obligations A few substantive guidelines can be gleaned from non-legally-binding documents with general applicability.32 For instance, the Akwé: Kon Voluntary Guidelines adopted in 2004 by the CBD’s Conference of the Parties (COP) acknowledge that the potential long-term negative impacts of proposed developments on lands and waters traditionally occupied by Indigenous and local communities are a concern for livelihoods and traditional knowledge.33 These guidelines offer a set of procedural and methodological considerations to mitigate adverse environmental and social impacts

26 Ibid., 6. 27 Within the Kingdom of Denmark, Denmark is an EU member state, but Greenland and the Faroe Islands are not part of the EU. 28 Although not EU members, Iceland’s and Norway’s domestic EIA requirements are still based on EU standards through the European Economic Agreement (EEA). Furthermore, the 2001 Svalbard Environmental Protection Act contains specif ic EIA requirements for the Svalbard area. 29 EIA Directive with EEA relevance as since amended. Directive 2014/52/EU of the European Parliament and of the Council of April 16, 2014, amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (in force May 15, 2014); Directive 2001/42/EC of the European Parliament and of the Council of June 27, 2001, on the assessment of the effects of certain plans and programmes on the environment (in force July 11, 2010). 30 There are scoping, submission of the EIA report in compliance with Annex IV, consultation with environmental authorities, the public and potentially affected States, and f inal decision from the competent authorities taking into account the consultation process. 31 Consolidated version of the Treaty on the Functioning of the European Union, Off icial Journal of the European Union, C 202, June 7, 2016. 32 For example, UNEP Goals and Principles of Environmental Impact Assessment, Decision 14/25 of the Governing Council of UNEP, of June 17, 1987. 33 Secretariat of the Convention on Biological Diversity (2004). Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which

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and ensure Indigenous and local involvement throughout the process. This is relevant in the Arctic as the inclusion of Indigenous knowledge and the intersection of Indigenous rights and environmental protection are often at the forefront of national and regional discourses. In 2006, the CBD’s COP further adopted voluntary guidelines to advise States on best practices to align their EIA procedures with accepted international standards to include biodiversity concerns into impact assessments, especially at the screening and the scoping phases.34 As a result of cooperation under the Arctic Environmental Protection Strategy (AEPS), Arctic States endorsed the EIA Guidelines in the 1997 Alta Declaration.35 Rooted in sustainable development and a precautionary approach to Arctic development, the Guidelines recognised that the sustainable use of natural resources plays a crucial role in Arctic governance. They highlight good EIA practices of Arctic development for local authorities, developers and local communities. They also aimed to harmonise Arctic EIA, both at the national level and in a transboundary context. The Guidelines’ focus was mostly on domestic impacts and do not recommend any specif ic process.36 In theory, this made them applicable across jurisdictions.37 The assumption at the time was that the Espoo Convention would suff ice in transboundary contexts.38 The guidelines were the f irst document to raise issues specif ic to Arctic assessments, such as potential damage to permafrost, the need of public participation and the inclusion of traditional knowledge within impact assessment processes. They detail EIA content and procedure, as well as the specif icity of the complex interactions between different factors and how these should ideally influence impact assessment and prediction in Arctic environments. For instance, Appendix I contains a non-exhaustive list of common Arctic features (climate, geographic and geological features, as well as socio-cultural and economic features), and Appendix II lists areas demanding particular attention in the Arctic. Interestingly, the Guidelines do not include a def inition of the “Arctic.” This lack of def inition allows Arctic States to be flexible in following the Guidelines.39 Regarding public participation, the Guidelines def ine “the public” quite broadly, including Indigenous Peoples, groups, organisations or communities with an interest in – or who could be affected by – the proposed project.40 This ensures that features such as culture, socio-economics and remoteness are considered in planning and carrying out public consultations in the Arctic. They also recommend laying out an adequate timeframe for the public to be involved in reviewing and commenting on the f inal analysis and submitting comments to the licensing authority is considered good practice.41 With regard to sustainable development, the inclusion of Indigenous Peoples in the EIA process for activities within traditional territories is enshrined in Principle 22 of the Rio Declaration. Considering this, States have an obligation to ensure that traditional knowledge forms

are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities Montreal, 25p. (CBD Guidelines Series). 34 COP Decision VIII/28, Voluntary Guidelines on Biodiversity-inclusive Impact Assessment (March  2006), accessed February 20, 2021, www.cbd.int/doc/reviews/impact/EIA-guidelines.pdf. 35 AEPS, 1997 Guidelines for Environmental Impact Assessment (EIA) in the Arctic. 36 Ibid., Introduction. 37 Ibid. 38 Koivurova and Lesser, Environmental Impact Assessment in the Arctic, 245–47. 39 Timo Koivurova, “Implementing Guidelines for Environmental Impact Assessment in the Arctic,” in Theory and Practice of Transboundary Environmental Impact Assessment, eds. Kees Bastmeijer and Timo Koivurova (Leiden and Boston: Martinus Nijhoff Publishers, 2008), 154. 40 1997 EIA Guidelines, Section 9 (2). 41 Ibid., Section 9 (1).

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part of the EIA procedures in the Arctic.42 Although rather comprehensive at the time, the EIA Guidelines have been criticised for their lack of impact on domestic practice.43 The AEPS also developed a set of Arctic Offshore Oil and Gas Guidelines for regional and national governments to harmonise their practice at the planning stages of petroleum activities. These guidelines were revised in 2002 and 2009 by the AC’s Protection of Arctic Marine Environment (PAME) Working Group44 and were supplemented by another set in 2014.45 The 2009 guidelines provide a comprehensive description and recommendations on best EIA practices to engage in oil and gas activities in Arctic waters. Accordingly, both a preliminary EIA (PEIA) and an EIA should be used to assess the potential impacts of petroleum exploration, development, transportation and infrastructure. The PEIA is a technical review of the proposed project and a consideration of alternatives at the screening stage to determine any cumulative impacts in light of other existing and planned activities. The PEIA’s outcome will determine whether a project might have signif icant impacts and would mandate further assessment. The guidelines describe what specif ic techniques and processes involve EIAs and the key considerations that have to be made such as impacts on marine fauna and flora and on human communities, activities and traditional livelihoods. Interestingly, Annex A of the 2009 Guidelines provides for a “def inition of the Arctic” in each Arctic State to ensure its scope of applicability. The guidelines highlight best available techniques (BATs) and best environmental practices (BEPs) – both from a procedural perspective (Annex B). Responsibility for conducting both PEIA and EIA varies from country to country. However, the guidelines provide a summary of EIA legislations for offshore petroleum activities in the Faroe Islands, Greenland, Norway, the United States, Canada and Russia (Annex D). One key outcome of Finland’s 2017–19 AC chairmanship was to revise the 1997 EIA Guidelines. The aim of this project was to come up with Arctic-specif ic recommendations for large-scale projects in Arctic environments, with a strong emphasis on Indigenous peoples and local Arctic inhabitants. This project resulted in the publication of “Good Practices for Environmental Impact Assessment and Meaningful Engagement in the Arctic” (Good Practices) in 2019.46 In addition to giving guidance as to what EIAs should include and the different phases of the EIA process, the document outlines different strategies for meaningful engagement, such as inclusion of Indigenous and local knowledge to complement scientif ic knowledge and cultural awareness. It also encourages States to apply the principles of the Espoo Convention to strengthen circumpolar cooperation on TEIA. The AC’s development of an Arctic-specif ic EIA framework articulates the need to implement sustainable development into Arctic resource exploitation. However, the lack of implementation and the limited ability to effectively integrate human and Indigenous rights perspectives remain challenging. Only time will tell whether the new document will suffer from the same setbacks the

42 Timo Koivurova, Environmental Impact Assessment in the Arctic (Aldershot: Ashgate, 2002), 113. 43 Koivurova suggests that the lack of real follow-up mechanism to oversee how the Guidelines would be implemented in practice might be one of the prime factors for their poor record. He further notes that the transition between the AEPS and the AC when the Rovaniemi process Task Force on Sustainable Development and Utilisation, which was in charge of sponsoring the guidelines, was replaced by the new AC SDWG, might have played a role in weakening the EIA Guidelines as priorities changed. Koivurova, “Implementing Guidelines for Environmental Impact Assessment in the Arctic,” 170–71. 44 Arctic Council, PAME, Arctic Offshore Oil and Gas Guidelines (April 29, 2009). 45 Arctic Council, PAME, Arctic Offshore Oil and Gas Guidelines: Systems Safety Management and Safety Culture (March 2014). 46 Arctic Council, Sustainable Development Working Group, Good Practices for Environmental Impact Assessment and Meaningful Engagement in the Arctic – Including Good Practice Recommendations (May 2019).

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1997 guidelines did. However, domestic implementation does not seem to be the aim of the 2019 Good Practices; rather, they provide an overview of domestic EIA legislation to help operators and developers (Appendix I). They also highlight emerging practices and models for meaningful engagement of Indigenous Peoples, ranging from impact assessments designed and conducted by Indigenous communities, assessments based on Indigenous knowledge, specif ic impact assessments (e.g. health impact assessment, ethnological expertise and cumulative impact assessments) and collaborative mitigation, such as retrospective impact assessment, conflict avoidance agreements and impact benef it agreements.47

Environmental Impact Assessment in the Antarctic International and Regional Obligations The situation in the Antarctic is – in some ways – less complicated than in the Arctic, owing to the lack of any Indigenous or other permanent population (e.g. the ostensible lack of need for a social impact assessment or assessment on human rights impact), and in others, more complicated because there are no recognised sovereigns over territory. Therefore, the 29 States48 that are actively engaged in Antarctic scientif ic research carry an equal burden of environmental obligations wherever they operate, irrespective of the borders of claimed territory. In addition to the general obligations noted in the preceding Arctic section, along with custom, the legal obligation to undertake environmental evaluations in the Antarctic is derived from the multilateral international law instrument – the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), expressly Article 8 and Annex I.49 As a Protocol attached to the Antarctic Treaty, it neither modif ies nor amends its parent instrument, and nothing in it derogates from the rights and obligations of the parties under other international instruments in force.50 This integral connection maintains the status quo ante of territorial claims – keeping them in abeyance – and secures the right to conduct scientif ic research anywhere in the Antarctic.51 The Madrid Protocol contains 27 Articles and a Schedule on Arbitration. Originally there were four annexes, now six, which contain the details and processes for how to achieve the following objective: [The parties commit themselves to] the comprehensive protection of the Antarctic environment and dependent and associated ecosystems and hereby designate Antarctica as a natural reserve, devoted to peace and science.52

47 Ibid., 48–53. 48 Antarctic Treaty Secretariat, Parties, accessed February 26, 2021, https://ats.aq/devAS/Parties?lang=e. 49 Madrid Protocol, note 5. 50 Ibid., Article 4; see also note 5. For commentary on the relationship between the ATS and other international law see Philipp P. Nickels, “Revisiting Bioprospecting in the Southern Ocean in the Context of the BBNJ Negotiations,” Ocean Development & International Law 51, no. 3 (2020): 193–216. 51 Antarctic Treaty, note 5, Article II. For commentary on where science can be conducted, see Julia Jabour, “What Countries Can and Can’t Do in Antarctica in the Name of Science,”The Conversation (November 10, 2018), accessed March 8, 2021, https:// theconversation.com/explainer-what-any-country-can-and-cant-do-in-antarctica-in-the-name-of-science-105858. 52 Madrid Protocol note 5, Article 2. Note that there is no legal def inition of “science” per se.

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It is this scientif ic research and the support it requires (ships, aircraft, stations, personnel and infrastructure) that are the key activities in Antarctica requiring environmental evaluation. Chapter 11 in this volume details the obligations contained within the Madrid Protocol for the comprehensive protection of the Antarctic environment. Since there are no permanent settlements in Antarctica, the constituency addressed by the Madrid Protocol’s objective includes the global community – or “mankind as a whole,” as its Preamble states. The constituency has a role as overseer and has access to all documents and reports of discussions and decisions through the databases established by the Antarctic Treaty Secretariat.53 To help parties meet their obligations, a Committee for Environmental Protection (CEP) was established under Article 11, with its Rules of Procedure laid down by Antarctic Treaty consultative meetings (ATCMs), to which it reports.54 The CEP does not have autonomy to make decisions; it is an advisory body to the ATCM.55 It provides advice and formulates recommendations on every aspect of the Protocol and the measures taken for ecosystem protection. These are then operationalised through the formal ATCM process using consensus decision-making – with consensus deemed to be the absence of formal objection. Each party must provide an annual report to the CEP on its implementation of Protocol obligations, and once circulated throughout the system, reports are made publicly available through the Secretariat database, in accordance with Article 17. No party is permitted to make reservations to the Protocol, under Article 24, and dispute settlement clauses exist.56 In-house consultation among parties is the f irst course of action to mediate disputes concerning the Protocol’s interpretation or application.57 General compliance obligations are found in Article 13.1, including for the conduct of EIA. These are augmented by inspection provisions contained in Article 14, and linked to Article VII of the Antarctic Treaty, to encourage compliance. Inspections may be conducted either by parties individually or collectively. Observers are those designated by any Antarctic Treaty consultative party and are nationals of that party, or they can be observers designated at ATCMs to carry out special inspections, as directed by an ATCM. Parties whose stations, installations, equipment, ships and aircraft – while in Antarctica – are to be inspected must cooperate fully with observers (Article 14.3). The inspector or inspection team must be given access to all facilities and all records maintained therein which are called for. There is an agreement that a member of the inspection team is able to speak the language of the nationals at the facility being inspected to minimise misunderstandings based on language.58 Reports of

53 All meeting reports of a Antarctic Treaty consultative meeting (ATCM) and the Committee for Environmental Protection (CEP), plus special meetings of experts, and all documents presented to meetings are publicly available from the Antarctic Treaty Secretariat, which has a searchable document archive containing material dating back to the very f irst meeting of the Antarctic Treaty consultative parties in 1961. See https://ats.aq/e/atcm.html. It should be noted that f inal meeting reports are negotiated language, not verbatim records, and since an ATCM is not open to the public, some “insider” knowledge is useful when assessing the nuance of report language. It was not until 1985 that reports and documents were declassif ied and made available to the public. See Arthur Watts, International Law and the Antarctic Treaty System (Cambridge: Grotius Publications, 1992), 37–38. 54 Antarctic Treaty Secretariat, Key Documents, accessed February 10, 2021, https://ats.aq/e/key-documents.html. 55 Madrid Protocol, Articles 10 and 12, respectively. Article 10.1(b) expressly states that the ATCM “shall adopt measures under Article IX of the Antarctic Treaty for the implementation of this Protocol.” 56 See Chapter 10 in this volume. 57 Madrid Protocol, Articles 18–20. 58 See Resolution 5 (1995) “Antarctic Inspection Checklists (A, B, C, D)”,  https://ats.aq/devAS/Meetings/Measure/227 and Resolution 3 (2010) “Revised Antarctic Inspection Checklist (A)”, accessed March 8, 2021, https://ats.aq/ devAS/Meetings/Measure/473.

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inspections are f irst sent to those parties whose facilities were inspected; after they have been given the opportunity to comment, the reports and any comments are circulated to all the parties and to the CEP. They are considered and discussed at the next Antarctic Treaty consultative meeting and thereafter become publicly available.59

Procedural Obligations The key components of the environmental evaluation obligations are Article 8 and Annex I of the Madrid Protocol. Article 8 provides that “all authorised human activity” in the Antarctic comes under its provisions, together with the provisions of Annex I, outlining EIA procedures. Unauthorised activity obviously does not. While there is no def inition of “authorised activity” or who the “competent authority” is, the former term is generally interpreted to cover all governmental and non-governmental activities such as scientif ic research, support and tourism – all common, peaceful Antarctic activities – as authorised by a nominated agency of the State – the competent authority. However, not all of these activities are conducted by Antarctic Treaty parties; tourist vessels, for example, are often flagged to non-party States, such as the Bahamas, although the operators might well be companies registered in Antarctic Treaty/Madrid Protocol party States. Exemptions are permitted in cases of emergency relating to the safety of human life or of ships, aircraft or equipment and facilities of high value, or the protection of the environment, which require an activity to be undertaken without completion of the procedures set out in this Annex.60 The activity of f ishing, or of f ishing vessels en route to f ishing grounds in accordance with CCAMLR, are also exempt from the Madrid Protocol’s environmental evaluation procedures.61 Responsibility for conducting environmental evaluations and approving activities rests with State operators and authorisation is given by the competent authority within that State. Because the Madrid Protocol does not contain def initions of critical language like “minor or transitory,” “impact,” “damage,” “aesthetic,” “wilderness” and so on, the parties use Guidelines62 formulated by the CEP to help with interpretation and application. However, their interpretation is idiosyncratic – based on individual State practice. Bastmeijer and Roura examined this situation in an early work

59 Article 14(4) of the Madrid Protocol. Antarctic Treaty Secretariat, Inspections Database, accessed March 8, 2021, https:// ats.aq/devAS/Ats/InspectionsDatabase?lang=e. For commentary on the operation and eff icacy of the inspection system, see Julia Jabour, “The Utility of Off icial Antarctic Inspections: Symbolism without Sanction?” in Exploring Antarctic Values. Proceedings of the Workshop “Exploring Linkages between Environmental Management and Value Systems: The Case of Antarctica, eds. Daniela Liggett and Alan D. Hemmings (Christchurch: Gateway Antarctica, 2011), 90–107. 60 Madrid Protocol, Annex I, Article 7.1. 61 Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting, 1991. The relevant paragraph reads, “With respect to the activities referred to in Article 8 [of the Protocol], the Meeting noted that it was not intended that those activities should include activities undertaken in the Antarctic Treaty area pursuant to the Convention on the Conservation of Antarctic Marine Living Resources,” accessed April  12, 2021, https://documents.ats.aq/keydocs/vol_1/ vol1_3_AT_Final_Act_Eleventh_SATCM_e.pdf. 62 Antarctic Treaty Secretariat, Guidelines and Procedures, accessed February 10, 2021, https://ats.aq/devAS/EP/Guideli nesAndProcedures?lang=e.

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on EIA in Antarctica in 2008 and noted that there was “a risk of different interpretations of [these] terms by the Contracting Parties.”63 There are three levels of assessment: a preliminary assessment (PA), an initial environmental evaluation (IEE) and a comprehensive environmental evaluation (CEE). Assessment occurs prior to an activity being undertaken. There is no formal indicative list of what type of activity triggers a particular level of assessment; this is at the discretion of the party conducting the evaluation. Indicative lists have been discussed – and dismissed – in the past, as there are a range of unique bioregions in Antarctica – f irst articulated in 201264 – and an activity conducted 1,000 km inland will have a signif icantly different impact to that same activity being conducted on rare, ice-free, biodiverse coastal land.65 Preliminary assessment (PA): This is the minimum requirement for activities that come under the purview of the Madrid Protocol. Any activity deemed to have a less than minor or transitory impact may proceed once a PA has been undertaken. This could relate to activities such as maintenance works on an existing station building, ship-borne tourism involving shore landings and sightseeing, or the collection of relatively small quantities of fauna and flora samples for scientif ic research. The impact on the Antarctic environment would be judged to be minimal, nevertheless, the activity would still be evaluated. PAs are not made publicly available and remain an in-house procedure only. Initial environmental evaluation (IEE): This level of evaluation would be triggered if an activity was considered by the proponent to possibly have a minor or transitory impact. The Antarctic Treaty Secretariat maintains a database of environmental evaluations at both the IEE and CEE level.66 Assessment under this stage would include • • • • • •

a description of the activity; its purpose; its location; its duration; its intensity; and consideration of alternatives.67

The types of activities generally captured under an IEE include relatively small-scale construction projects at stations, tourism activities, aviation operations and the typical operations of station facilities. IEEs only need approval by the competent authority within the State of the operator; the activity cannot be vetoed by the treaty parties or the CEP. A list of IEEs is submitted by a party as part of its requirement to exchange information. For the 2020/2021 season, for example, France submitted 14 IEEs for tourist activities aboard nine sail boats and f ive cruise ships.68 Monitoring and assessment procedures may be put in place to verify the stated level of impact – but once again these

63 Kees Bastmeijer and Ricardo Roura, “Environmental Impact Assessment in Antarctica,” in Theory and Practice of Transboundary Environmental Impact Assessment, eds. Kees Bastmeijer and Timo Koivurova (Leiden and Boston: Martinus Nijhoff Publishers, 2008). 64 Alex Terauds et al., “Conservation Biogeography of the Antarctic,” Diversity and Distributions 18 (2012): 726–41. 65 Shaun Brooks et al., “Our Footprint on Antarctica Competes with Nature for Rare Ice-Free Land,” Nature Sustainability 2 (2019): 185–90. 66 Antarctic Treaty Secretariat, EIA Database, accessed February 10, 2021, https://ats.aq/devAS/EP/EIAList?lang=e. 67 Madrid Protocol, Annex I, Article 2. 68 EIA Database, note 66.

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are the responsibility of the proponent State. However, a verif ication process of sorts exists through the inspection provisions. Comprehensive environmental evaluation (CEE): This level of evaluation is generally triggered when it is judged by the proponent that an activity will most likely have a more than a minor or transitory impact. This applies not only to impact on the environment but also on other existing uses and values of the Antarctic, meaning that activities which might impact on scientif ic programs, such as tourist activities, must be assessed. If an IEE was the instrument through which the greater level of potential impact was judged, then, when compiling the CEE, the IEE must be followed up with • a description of the methods and data used to forecast the impacts; • a further estimation of the likely direct, indirect, cumulative and unavoidable impacts; • identif ication of measures that might be taken to minimise impacts or provide early warning of unforeseen adverse effects; and • identif ication of gaps in knowledge and uncertainties encountered in compiling the CEE.69 A non-technical summary for lay interpretation must also be provided. Importantly, draft CEEs are to be made available to the public and the treaty parties for comment, at the same time as they are forwarded to the CEP for its consideration.70 Ultimately, f inal CEEs and any accompanying CEP recommendations are reviewed by the Antarctic Treaty consultative parties at least 60 days prior to the commencement date of the proposed activity. The activity will proceed conditional upon the presentation of a f inal CEE and other relevant considerations such as the establishment of monitoring and verif ication measures (Annex I, Articles 4 and 5). Irrespective of the discussions, consultations and recommendations from the CEP and ATCM, or any overt or covert peer pressure that might be applied, the only party that can veto the conduct of the activity is the State of the proponent.

Case Study One case study that illustrates both the strengths and weaknesses of the Madrid Protocol’s EIA process is that of the Lake Vostok subglacial drilling project. Vostok is the coldest place on earth, located more than 1,200 km inland at 78º south, 106º east in the Australian Antarctic Territory. The ice below Vostok Station is estimated to be about 4,200 m at its thickest. Beneath the ice sheet is a fresh-water lake – Lake Vostok – 300 km long by 50 km wide. An ice sheet grows from both the top (snow accumulation) and bottom (re-freezing). The ice at the top is the youngest, grading through to +500,000 years old, then only about 10,000 years old in bottom layers. It was estimated that the water in Lake Vostok had been isolated for at least one million years. It is important to note also that the lake is actually part of a network of connected subglacial lakes under the Antarctic ice sheet. The purpose of the joint Russian/US/French drilling program, which began at Vostok Station around 1990, was to obtain a sample of the lake water. A draft CEE71 was presented to the ATCM

69 Madrid Protocol, Annex I, Article 2. 70 Ibid., Annex I, Article 3.3. 71 Russian Federation, “Water Sampling of the Subglacial Lake Vostok,” Working Paper 19 to ATCM XXV, Warsaw, 2002, accessed February 28, 2021, https://ats.aq/devAS/Meetings/DocDatabase?lang=e. Note that when there is a joint project being evaluated, one party is nominated to complete the paperwork.

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XXV in Warsaw in September 2002. This drilling project was hailed at the time as the most signif icant scientif ic program to be conducted in the Antarctic and scientists were very excited but, at the same time, extremely cautious because of possible contamination. More than a decade after the drilling began (prior to the entry into force of the Madrid Protocol in 1998), Russia resubmitted a draft CEE in 2003 to ATCM XXVI in Madrid.72 The legal position was that there was consensus among the Antarctic Treaty consultative parties, including all three project collaborators, that the highest level of evaluation – a CEE – was required. At 3,623 m, the team had drilled the deepest hole in ice ever. A “safe distance” of about 130 m of ice on top of the lake water was meant to prevent contamination by the drilling fluid (kerosene + a densifying agent like dry cleaning fluid). The theory was that before the drill and its fluid actually breached the surface water, the difference of pressure would force the lake water upwards into the borehole, where it would freeze. The borehole itself was, by that stage, already contaminated with kerosene, which would be preserved for centuries and would migrate laterally through the ice along the sides of the hole, perhaps even seeping into the lake water. The plan was to continue drilling the next 50 m in the summer of 2003/04 using a different drilling fluid (kerosene and freon) and to continue drilling until eventual penetration of the lake surface, possibly in the summer of 2006/07. There was considerable discussion in the CEP and ATCM about the project. SCAR – the Scientif ic Committee on Antarctic Research – began investigating the exploration of subglacial Antarctic lakes and concluded that there is no international scientif ic consensus on how to sample or drill safely. A SCAR group of experts was convened to investigate and report. They eventually produced a Code of Conduct for this and other subglacial exploration projects.73 Because of the contentious nature of this project, the CEP established its own group of experts – the Intersessional Contact Group (ICG) – to examine the veracity of the Russian CEE.74 France, on behalf of the ICG, reported to the Madrid 2003 ATCM the ICG’s conclusion that the Russian CEE “did not adequately address the description of the activity, the drilling technique, contingency plans for environmental accidents, or alternative solutions including testing the technology in similar but less critical situations.”75 The point was made that “[w]hile the Committee recognised the importance of the long term science goals for subglacial lake exploration, the draft CEE provides insuff icient consideration to reduce the potential environmental risks posed by the activity.”76 As will be shown, this has turned out to be the most signif icant failing of the Protocol’s environmental evaluation procedures. The drilling continued, with sometimes long breaks while technological failures were dealt with. Updates were submitted each year to ATCMs by Russia until it was reported that the Lake had been

72 The 2002 submission was non-compliant, and the Russian Federation was urged to resubmit the next year. Russian Federation, “Water Sampling of the Subglacial Lake Vostok Draft Comprehensive Environmental Evaluation (Revised),” Working Paper 1 to ATCM XXVI 2003, Madrid, accessed February  28, 2021, https://ats.aq/devAS/Meetings/ DocDatabase?lang=e. 73 SCAR, “SCAR’s Code of Conduct for the Exploration and Research of Subglacial Aquatic Environments,” Information Paper 33 to ATCM XXIV Buenos Aires, 2011, accessed February 28, 2021, www.scar.org/library/policy/codes-ofconduct/3409-code-of-conduct-for-the-exploration-and-research-of-subglacial-aquatic-environments/f ile/. This was revised in 2017 and presented to ATCM XL as Working Paper 18. 74 Intersessional Contact Group, “Final Report Concerning the Draft Comprehensive Environmental Evaluation (CEE) presented by the Russian Federation on Water Sampling the Subglacial Lake Vostok,” Working Paper 36 to ATCM XXVI, Madrid, 2003, accessed February 28, 2021, https://ats.aq/devAS/Meetings/DocDatabase?lang=e. 75 Report of the Committee for Environmental Protection (CEP VI) Madrid, Spain, June 9–13, 2003, para 22. 76 Ibid., Appendix 2.

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breached on February 6, 2012, and water samples obtained from 3,769.3 m. Results of the analysis of those samples were f irst reported in 2016.77

Discussion What can be learned from the Lake Vostok case study? The environmental evaluation process, which was wholly compliant with the requirements of the Madrid Protocol (including international consultation), spanned almost a decade. But in the end, Russia’s competent authority approved the activity of sampling Lake Vostok water despite continued exhortations from scientif ic delegates to the CEP to halt – or to alter – the project on the basis that the risk of contamination of the lake was too great. The sixth annex to the Madrid Protocol – liability arising from environmental emergencies – is not in force, providing the parties with almost autonomous interpretation of their obligations.78 To illustrate, today, evaluations often conclude that the scientif ic merit gained from a project outweighs the potential environmental impact. The scientif ic merit might be measured directly, but most likely it is an indirect benef it, such as through new infrastructure constructed to support research. It might be an aircraft runway: The result of CEE suggests that the benef its that will be obtained from the permanent runway will grossly outweigh the “more than a minor or transitory” impacts of the runway on the environmental (sic) and on the ecosystem.79 or a wharf: The draft CEE concluded that the signif icant science and operational advantage that would be gained from the reconstruction of the Rothera wharf justif ied the greater than minor or transitory impact expected from some of the proposed activities.80 To this end, in 2017 at ATCM XL in Beijing, the CEP requested advice from the ATCM on the extent to which it should begin work on, inter alia, “creating an appropriate and effective method within the Antarctic Treaty System of preventing an environmentally-damaging project proceeding.”81 This was nothing short of an admission that its powers to prevent environmental

77 Sergey A Bulat, “Microbiology of the Subglacial Lake Vostok: First Results of Borehole-Frozen Lake Water Analysis and Prospects for Searching for Lake Inhabitants,” Philosophical Transactions of the Royal Society (2016) A 374: 20140292. http:// dx.doi.org/10.1098/rsta.2014.0292. 78 For further commentary on the adoption of the Annex and its failure to enter into force, see Hakeem Ijaiya, “Liability for Environmental Damage in Antarctica: Adoption of Annex VI to Madrid Protocol,” KIU Journal of Social Sciences (2017) 3: 2, 201–6, accessed March 08, 2021, www.ijhumas.com/ojs/index.php/kiujoss/article/view/22; Alan D. Hemmings, “Liability Postponed: The Failure to Bring Annex VI of the Madrid Protocol into Force,” The Polar Journal 8, no. 2 (2018): 315–32. 79 Italy, Programma Nazionale di Ricerche in Antartide, January 2017, “Final Comprehensive Environmental Evaluation, Proposed Construction and Operation of a Gravel Runway in the Area of Mario Zucchelli Station, Terra Nova Bay, Victoria Land, Antarctica,” 191 accessed February 28, 2021, https://ats.aq/devAS/EP/EIAList?lang=e. 80 United Kingdom, 2018, “WP19 Draft Comprehensive Environmental Evaluation (CEE) for the Proposed Rothera Wharf Reconstruction and Coastal Stabilisation,” 3, accessed February 28, 2021, https://ats.aq/devAS/EP/EIAList?lang=e. 81 Antarctic Treaty Secretariat, “Final Report of the Fortieth Antarctic Treaty Consultative Meeting,” Beijing, China, 2017, accessed February 28, 2021, para 52, https://documents.ats.aq/ATCM40/fr/ATCM40_fr001_e.pdf.

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damage were severely limited. Responses from the ATCM included “some caution may need to be applied to consideration of a mechanism for preventing activities” and “reviews of CEEs by external organisations may not be desirable.”82 Consensus was not achieved on how or even if to allow the CEP to proceed because of the diff iculties and sensitivities of creating a legally binding EIA veto. Discussion was concluded with the following statement: “look forward to further discussions on the matter.”83 However, no further discussions have been recorded at subsequent ATCMs, and there was no meeting in 2020 due to COVID-19 restrictions and a limited online meeting in 2021.84 This indicates that the parties themselves are not satisf ied with the effectiveness of the EIA process and procedures in Antarctica. This might be an artefact of what Bastmeijer called the “success syndrome,” whereby the “the Consultative Parties have not been able to convincingly meet the high expectations set by the Protocol’s aims and provisions.”85

Conclusion Although different in their governance systems and geographies, the Arctic and the Antarctic deal with the same sets of emerging and recurring environmental challenges in light of ever-growing regional changes and developments. They have developed their own frameworks to assess and limit potential impacts of large-scale activities. However, given their jurisdictional differences, the notion of what constitutes transboundary impacts differs greatly at each pole. In Arctic States, there is a need to focus both on international and domestic EIA norms. Although international legal norms apply to the region, the Arctic lacks a coherent EIA system, and the development of Arctic-specif ic EIA norms does not seem to be a priority in Arctic governance. The current regulations can be best described as a complex and overlapping constellation of international, regional and domestic requirements that balances project development activities with regard to environmental protection and social impacts. To some extent, the Espoo Convention does provide a legal framework for EIA to be conducted for specif ic activities with potential transboundary impacts in the Arctic. Moreover, each Arctic State has developed its own requirements with varying thresholds that trigger the obligation to conduct an EIA under domestic law. In addition, EIAs may not inform stakeholders as to the social impacts on Indigenous Peoples and local inhabitants.86 In each domestic setting, EIAs are often complemented with more specif ic assessments such as social impact assessments. On top of international obligations, Arctic States have developed several sets of guidelines and other non-binding documents through the AEPS and the AC. The primary aim of the 1997 EIA Guidelines was to harmonise EIA procedures across the Arctic both in domestic and transboundary contexts. They provided suggestions and examples of good practice to enhance the quality of EIAs and harmonise EIA in different parts of the Arctic. However, their lack of oversight mechanisms and of a mechanism for exchange of information between Arctic States have often been criticised. The 1997 EIA Guidelines have had close to no impact on domestic legislations. Their general

82 Ibid., para 54. 83 Ibid., para 55. 84 For further information, see Julia Jabour, “So What? Using Scientif ic Knowledge to Inform Antarctic Decision-making,” Waikato Law Review Taumauri 27 (2019): 17–30, 26. 85 Kees Bastmeijer, “Introduction: The Madrid Protocol 1998–2018. The Need to Address ‘the Success Syndrome,” 8 The Polar Journal 2 (2018): 230–40, 238. 86 Rachael L. Johnstone and Scott Joblin, “Non-living Resource at the Poles,” Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham and Northampton: Edward Elgar, 2020), 262.

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level of recommendations leaves Arctic stakeholders, and especially administrative off icials, without clear guidance.87 In 2019, the AC released a new document focusing on good practices for impact assessments and meaningful engagement with recommendations for large-scale projects taking the specif icities of Arctic environments and taking Indigenous and local inhabitants into account. With this document, the AC also provided a comprehensive summary of domestic obligations and encouraged States to apply the principles of the Espoo Convention to strengthen circumpolar cooperation on transboundary EIAs. Although this is a step in the right direction, the 2019 Good Practices document suffer from the same weaknesses as the 1997 EIA Guidelines. They do not provide any oversight or compliance mechanisms and their recommendations are written in loose terms. The EIA system under the ATS shows similarities with other EIA systems (existing or in development) discussed in this chapter. For instance, the purpose of the EIA instrument is similar, the EIA requirements apply to both governmental and non-governmental activities, and the threshold for the obligation to conduct a CEE is “more than a minor or transitory” impact, which terminology originates from the term “signif icant impact.” Furthermore, the requirements for the content of a CEE are similar to those for EIAs under the Espoo Convention and other EIA systems. On the other hand, however, the Antarctic EIA system shows some interesting characteristics that differ substantially from other systems. To start with, EIA is required for all activities covered by the Protocol, distinguishing three levels of EIA: preliminary, initial and comprehensive. Instead of working with exclusive or indicative lists of activities that are likely to have more than a minor or transitory (signif icant) impacts, each activity must be assessed on a case-by-case basis. For the most comprehensive stage of EIA (the CEE), the set of requirements on transparency and international consultation is also unique. Draft CEEs must be distributed to all contracting parties of the Protocol (consultative and non-consultative alike) and these States should all enable the public to have access to this information. All contracting parties and, according to the letter of the Protocol, the public of these States (about 85% of the world’s population) should be given the opportunity to comment on draft CEEs. Related to this issue is the right of all 29 consultative parties to the Treaty to inspect each other’s activities and Antarctic facilities – for instance, to assess the follow-up of the EIA process in the f ield. To enable assessment of compliance and to collect information, the Secretariat collects data on the EIAs that have been conducted. Antarctic EIA is a unique system not only in theory but also in practice. While there is an abundance of oversight of the Antarctic EIA processes – including by civil society – there are many weaknesses. Principal among them is the lack of power to deny a proponent the right to proceed with environmentally damaging activities since the responsibility rests with States Parties and their competent authorities. The desire of the CEP to be permitted to investigate how they might prevent these activities from proceeding is likely to be unattainable. The Madrid Protocol’s liability regime for activities resulting in environmental damage, adopted as Annex VI on Liability Arising from Environmental Emergencies in 2005, is yet to be ratif ied. Therefore, the parties must rely on customary law for redress. There is no doubt that a volume of international law, along with international custom, dictates that environmental evaluations in the polar regions are essential for sustainable development and the protection of vulnerable ecosystems. However, their EIA systems’ distinctive features and uniqueness – to the extent the constellation of EIA norms and regulations in the Arctic can even be described as a “system” – limit the scope for polar comparisons.

87 Koivurova, “Implementing Guidelines for Environmental Impact Assessment in the Arctic,” 164.

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13 CLIMATE CHANGE AND THE POLAR REGIONS Tim Stephens*

Introduction The Antarctic and Arctic regions are experiencing the effects of climate change much faster than anywhere else due to the polar amplif ication phenomenon, which sees larger temperature rises at the poles than at higher latitudes. The associated impacts of these polar temperature increases are manifold and are well-documented, including by the Intergovernmental Panel on Climate Change (IPCC) in its Special Report on the Ocean and the Cryosphere in a Changing Climate (SROCCC).1 In the Antarctic there are growing concerns that unchecked temperature rise will trigger irreversible ice sheet instability.2 In the Arctic there have already been dramatic changes, including precipitous declines in sea ice extent and thickness.3 The impacts from this polar transformation are set to be felt globally, not least because the unchecked loss of mass from the Antarctic and Greenland ice sheets will result in multi-metre sea level rise.4 As French and Scott have observed, “[c]limate change arguably represents the greatest threat to the environmental, political and legal stability of the polar regions.”5 There is acute awareness among States with polar interests that climate change is transforming the physical and ecological character of the polar regions. This realisation has led to a range of governance responses at each polar region (and to some responses that have bipolar application), and these are surveyed in this chapter. The chapter opens with an overview of climate change in the Antarctic and Arctic, respectively. This

* This chapter draws from and develops some of the author’s previously published work, including Tim Stephens, “Ocean Acidif ication at the Poles: Regional Responses to Marine Environmental Change in the Anthropocene,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar Publishing, 2020), 434–54. 1 IPCC, “Summary for Policymakers,” in IPCC Special Report on the Ocean and Cryosphere in a Changing Climate, eds. Hans-Otto Pörtner, Debra C. Roberts, Valérie Masson-Delmotte et al. (Cambridge: Cambridge University Press, 2019) (SROCC). 2 Ibid., 10. 3 Ibid., 6. 4 Ibid., 10. 5 Duncan French and Karen Scott, “International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late?” Melbourne Journal of International Law 10 (2009): 631–54, 631.

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is a rapidly developing subject of scientif ic investigation; however, many of the key polar impacts of climate change have been well understood for some time. An overview is then provided of the global legal framework for addressing climate change and its relevance to the polar regions. The discussion then turns to the legal and policy responses to climate change that have been pursued by Antarctic and Arctic institutions. It is seen that while climate change has become a primary policy concern in both regions, there are substantial variations in the governance approach each respective regime has taken.

Climate Change and the Polar Regions The IPCC’s SROCCC provides the f irst comprehensive assessment of the impacts of climate change on the global oceans and the cryosphere. The report devotes a chapter specif ically to the polar regions and “assesses the state of physical, biological and social knowledge concerning the Arctic and Antarctic ocean and cryosphere, how they are affected by climate change, and how they will evolve in future.”6 The SROCCC draws upon a large body of published science on climate change and the polar regions to inform its assessment. The key f indings reported in the chapter are excerpted and summarised in Table 13.1. There have also been Antarctic- and Arctic-specif ic assessments undertaken by Antarctic and Arctic regional institutions. In Antarctica climate science is undertaken under the aegis of national science programs. However, there is some level of coordination through the Scientif ic Committee on Antarctic Research (SCAR), a thematic organisation of the International Science Council. SCAR plays a central role in communicating scientif ic f indings to the key institutions of the ATS, the Antarctic Treaty Consultative Meeting (ATCM) and the Committee on Environmental Protection (CEP). SCAR’s most signif icant contribution in relation to Antarctic climate science is its 2009 Antarctic Climate Change and the Environment Report (ACCE Report) and subsequent updates.7 The 2009 ACCE Report ran to over 500 pages and identif ied a range of climatic and related impacts on Antarctica, with a particular focus on plankton and krill as keystone species for the Antarctic ecosystem. The report also made projections for the next century, including for Antarctic ecosystems and species as the Southern Ocean warms, ice shelves disintegrate, the food chain changes, and the waters acidify as they absorb CO2 from the atmosphere. Ocean acidif ication is changing ocean carbonate chemistry, reducing the availability of carbonate for calcifying organisms and also affecting non-calcif iers, such as krill and diatoms. The annual updates to the ACCE Report have usually been relatively short documents, providing an overview of recent science rather than presenting new comprehensive assessments. There was an exception in 2013 when the update comprised more substantial work, including a background paper containing the full update (published in Polar Record)8 and a working paper that summarised

6 SROCC, ch. 3, 205. 7 Scientif ic Committee on Antarctic Research, Antarctic Climate Change and the Environment (ACCE) Report (Cambridge: SCAR, 2009). 8 John Turner, Nicholas E. Barrand, Thomas J. Bracegirdle et al., “Antarctic Climate Change and the Environment: An Update,” Polar Record 50 (2014): 237–59.

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Climate Change and the Polar Regions Table 13.1  Summary of climate impacts on the polar regions The polar regions are losing ice, and their oceans are changing rapidly. The consequences of this polar transition extend to the whole planet and are affecting people in multiple ways. • Arctic surface air temperature has likely increased by more than double the global average over the last two decades. • The Arctic and Southern Oceans are continuing to remove carbon dioxide from the atmosphere and to acidify. • Both polar oceans have continued to warm, with the Southern Ocean being disproportionately important in global ocean heat increase. • Climate-induced changes in the extent of seasonal ice and thickness are altering marine primary production with ecosystem impacts. • Climate-induced changes in ocean and sea ice has expanded the range of temperate species and contracted the range of polar f ish. • Arctic sea ice extent continues to decline in all months of the year. • Antarctic sea ice cover very likely exhibits no signif icant trend since 1979. • Shipping activity during the Arctic summer increased over the past two decades as sea ice extent contracted. • Permafrost temperatures have increased to record high levels. • Climate-related changes to Arctic hydrology, wildf ire and abrupt thaw are occurring with impacts on vegetation, water and food security. • Limited knowledge, f inancial resources, human capital and organisational capacity are constraining adaptation in the Arctic. • It is extremely likely that rapid ice loss from the Greenland and Antarctic ice sheets has increased, adding to the ice sheet contribution to sea level rise. • Recent Antarctic ice sheet mass losses could be irreversible over decades to millennia. The polar regions will be profoundly different in future compared with today, and the degree and nature of that difference will depend strongly on the rate and magnitude of global climatic change. This will challenge adaptation responses regionally and worldwide. • It is very likely that projected Arctic warming will result in continued loss of sea ice and snow on land and reductions in the mass of glaciers. • Both polar oceans will be increasingly affected by CO2 uptake. • Future climate-induced changes in the polar regions will drive habitat and biome shifts, with associated changes in the ranges and abundance of ecologically important species. • Climate-induced stressors on polar marine ecosystems present risks for commercial and subsistence f isheries with implications for regional economies and global supply. • Widespread disappearance of Arctic near-surface permafrost is projected to occur this century. • Projected permafrost thaw and decrease in snow will affect Arctic hydrology and wildf ire, with impacts on vegetation and human infrastructure. Response options exist that can ameliorate the impacts of polar change, build resilience and allow time for effective mitigation measures. Institutional barriers presently limit their eff icacy. • Responding to climate change in polar regions will be more effective if there is long-term planning that builds resilience. • Innovative tools and practices in polar resource management and planning show strong potential in improving society’s capacity to respond to climate change. • Institutional arrangements that provide for strong multiscale linkages with Arctic local communities can benefit from including Indigenous knowledge and local knowledge in the formulation of adaptation strategies • The capacity of governance systems in polar regions has improved, but they are not suff iciently robust to address the challenges and risks to societies. Source: IPCC SROCC (pp. 205–208)

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key messages.9 The 2013 update also included recommendations, including that the CEP and Antarctic Treaty parties: [e]ncourage SCAR and Treaty Parties to engage with the United Nations Framework Convention on Climate Change (UNFCCC) and Intergovernmental Panel on Climate Change (IPCC) to ensure that climate change issues in the Antarctic and Southern Ocean are fully considered and that both bodies are made aware of the outcomes of the ACCE report and associated updates.10 The 2014 update11 refers to ocean acidif ication as a key threatening process for Southern Ocean krill, and cites research indicating that the entire population may collapse unless CO2 emissions are reduced.12 A further update was presented to ATCM XLII and CEP XII in Prague.13 Among other f indings, it reported that the volume of ice lost annually from Antarctic ice sheets has increased by at least 600% between 1979 and 2017,14 that sea-ice extent has also declined signif icantly since 2014,15 and that climate change is affecting populations of several species of seabirds.16 In the Arctic, it is the Arctic Monitoring and Assessment Programme (AMAP), an Arctic Council working group, that has taken the lead role in assessing the impacts of climate change. AMAP has been given the mandate of monitoring and assessing the status of the Arctic region with regard to climate change and other environmental issues, including ocean acidif ication. AMAP also has the power make recommendations on actions to reduce risks to Arctic ecosystems. The AMAP has published several extensive assessments of Arctic climate impacts, beginning with a preliminary evaluation in the 1998 AMAP Assessment, which reported the f indings of its f irst monitoring program conducted between 1991 and 1996.17 Subsequently, AMAP prepared the more comprehensive 2004 Arctic Climate Impact Assessment (ACIA),18 which examined the environmental, human health, social, cultural and economic impacts of climate change in the Arctic, and set out a number of policy recommendations. The key f indings of the ACIA were that (1) the Arctic climate is warming rapidly and much larger changes are projected; (2) Arctic warming and its consequences have worldwide implications; (3) Arctic vegetation zones are very likely to shift, causing wide-ranging impacts; (4) animal species’ diversity, ranges, and distribution will change; (5) many coastal communities face increasing storm exposure; (6) reduced sea ice is very likely to increase marine transport and access to resources; (7) thawing ground will affect communities and infrastructure; (8) Indigenous communities are facing major economic and cultural impacts;

9 SCAR, The Antarctic Climate Change and the Environment (ACCE) report: A key update, ATCM XXXVI, WP 38 (2013). 10 Ibid. 11 SCAR, Antarctic Climate Change and the Environment–2014 update, ATCM XXXVII, IP 60 (2014). 12 S. Kawaguchi, A. Ishida, R. King et al., “Risk Maps for Antarctic Krill Under Projected Southern Ocean Acidif ication,” Nature Climate Change 3 (2013): 843. 13 SCAR, Antarctic Climate Change and the Environment – 2019 Update, ATCM XLII, IP 136 (2019). 14 Ibid., 3. 15 Ibid., 4. 16 Ibid., 6. 17 Arctic Monitoring and Assessment Program (AMAP), Assessment Report: Arctic Pollution Issues (Oslo: Arctic Council, 1998). 18 Arctic Monitoring and Assessment Program (AMAP), Impacts of a Warming Arctic: Arctic Climate Impact Assessment (Cambridge: Cambridge University Press, 2004).

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(9) elevated UV radiation levels will affect people, plants and animals; (10) multiple influences interact to cause impacts to people and ecosystems.19 Unlike the Antarctic, where there are no permanent inhabitants, in the Arctic there are Indigenous and other communities who are directly affected by climate change. The ACIA found that the changing range and availability of species, including polar bear and walrus “present[ed] serious challenges to human health and food security, and possibility even the survival of some cultures.”20 It also noted that Indigenous knowledge was a highly valuable source of information on the pace and scale of climate change in the region.21 Six Indigenous Peoples’ organisations have permanent participant status in the Arctic Council, and they have expressed their concern that “current State-led responses to climate change around the world are not suff iciently responsive to the dire circumstances.”22 Another key climate-related assessment document produced by AMAP was the 2017 Snow, Water, Ice and Permafrost in the Arctic Report (SWIPA),23 which concluded, starkly, that “[t]he Arctic’s climate is shifting to a new state” and that “[w]ith each additional year of data, it becomes increasingly clear that the Arctic as we know it is being replaced by a warmer, wetter and more variable environment” with “profound implications for people, resources, and ecosystems worldwide.”24 These key messages were reiterated in the 2019 Arctic Climate Change Update,25 which listed three recommended action steps: (1) to limit change by reducing global greenhouse gas concentrations and short-lived climate forcers such as black carbon and methane, (2) to undertake comprehensive risk assessments to identify and adapt to ongoing and projected change and (3) to improve our understanding of the changes through enhanced monitoring and ongoing assessment.26 AMAP’s extensive assessment of climate impacts in the Arctic has been widely cited and has fed into the work of the IPCC, including the SROCCC.

The International Response to Climate Change Because climate change and the associated problem of ocean acidif ication are global phenomena caused by greenhouse gas emissions, almost all of which are emitted outside the polar regions, it is the international climate regime that is the primary mechanism through which action can be taken both to address these global problems and to ameliorate their specif ic polar impacts. The international climate regime is constituted by the 1992 United Nations Framework Convention on Climate Change (UNFCCC),27 and subsequent implementing agreements and texts, the most important of which is the 2015 Paris Agreement on Climate Change (Paris Agreement).28 The Paris Agreement’s overarching goal is to stabilise increases in global average temperatures to “well below 2C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5C

19 Ibid., 11. 20 Ibid. 21 Ibid. 22 Arctic Council Indigenous Peoples’ Secretariat, 6th Arctic Leaders’ Summit Declaration, Rovaniemi, November 13–15, 2019, www.arcticpeoples.com/arcticleaderssummit#als6. 23 Arctic Monitoring and Assessment Program (AMAP), Snow, Water, Ice and Permafrost in the Arctic (Oslo: Arctic Council, 2017). 24 Ibid., vii. 25 Arctic Monitoring and Assessment Program (AMAP), Arctic Climate Change Update 2019 (Oslo: Arctic Council, 2019). 26 Ibid., 10–11. 27 Adopted May 9, 1992, entered into force March 21, 1994, 1771 UNTS 165. 28 Paris Agreement on Climate Change, adopted December 12, 2015, entered into force October 5, 2016, [2016] ATS 24.

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above pre-industrial levels.”29 The Paris Agreement operates through a pledge-and-review system, with parties required to submit nationally determined contributions (NDCs) every f ive years, with these NDCs making progressively more ambitious promises to reduce emissions over time.30 Parties may submit revised or updated NDCs at any time. In addition, the Paris Agreement requires the parties as a whole periodically to take stock of the implementation of the agreement every f ive years (the Global Stocktake).31 Climate science conducted over many decades in the polar regions has had a substantive impact on global understanding of the threat of climate change. However, this scientif ic awareness has not been translated into clear legal or policy outcomes. Despite the vulnerability of the polar regions to the effects of climate change and, in turn, the capacity for the polar regions to exacerbate the causes and effects of global climate change, the international climate regime has not internalised in any substantial way polar concerns in goal-setting or decision-making. Notably, neither the UNFCCC nor the Paris Agreement refers to the polar regions. The UNFCCC provides that special attention should be paid to certain vulnerable countries, such as those with “fragile ecosystems, including mountainous ecosystems.”32 This is an oblique reference to countries with high-altitude ecosystems, including glaciers and snow-covered areas, but does not specif ically include the polar regions. The Paris Agreement likewise makes no mention of Antarctica or the Arctic. Although the Paris Agreement does not refer to the polar regions, core aspects of the agreement have polar relevance, and it is also possible for polar issues to have some influence on the implementation of the regime. There are clear links between the Paris Agreement’s temperature objective and the physical and ecological integrity of the polar regions. There is evidence that the threshold for the stability of the West Antarctic ice sheet and the Greenland ice sheet is somewhere between 1.5°C and 2°C global average warming.33 As global average temperatures have already risen by 1°C, with 0.2°C of this rise occurring in the last decade alone,34 the world is heading towards an exceedance of these thresholds well before the end of this century. The implication of this is that the achievement of the Paris Agreement’s objectives is closely linked to the continued existence of the polar regions as we know them.35 This means that when the f irst Global Stocktake occurs in 2023, and every f ive years thereafter, polar impacts could be raised by the parties as a key indicator for measuring the achievement of the Paris Agreement’s objectives. Another, related way in which polar considerations can be given a place in the climate regime is via the NDC system. States are given considerable latitude in determining the content to include in their NDCs, and in addressing mitigation and adaptation policies, they may choose to include reference to specif ic climate impacts, such as the impacts of climate change on coastal and ocean

29 Paris Agreement, article 2(1)(a). 30 Paris Agreement, article 4. 31 Paris Agreement, article 14. 32 UNFCCC, preamble and article 4(8)(g). 33 Frank Pattyn, Catherine Ritz, Edward Hanna et al., “The Greenland and Antarctic Ice Sheets under 1.5C Global Warming,” Nature Climate Change 8 (2018): 1053–61. 34 Australian Government, Bureau of Meteorology, State of the Climate 2020 (Canberra: Commonwealth of Australia, 2020), 3. 35 Julius Garbe, Torsten Albrecht, Anders Levermann et al., “The Hysteresis of the Antarctic Ice Sheet,” Nature 585 (2020): 538–44.

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areas36 and other environments, including the polar regions. To determine the extent to which this has occurred, the NDCs of the seven States laying claim to Antarctic territories and the eight States with territory in the Arctic (the Arctic Eight) were reviewed.37 Of the Antarctic claimants, only Argentina’s NDC refers to climate impacts on Antarctica, with the preface to Argentina’s second NDC by the Argentine environment minister noting the “récord de temperatura de 20°C en la Antártida.”38 Among the NDCs of the Arctic Eight, there are several references to the polar impacts of climate change. Canada’s updated NDC notes that its “Indigenous Peoples . . . and northern regions are particularly vulnerable to climate impacts” and that these communities are receiving support in order to adapt to change.39 Iceland’s updated NDC noted that adaptation measures will be needed to respond to a range of impacts including “receding glaciers.”40 Russia’s f irst NDC in its discussion of adaptation policies refers to efforts to “adapt economic sectors,” including with respect to “activities in the Arctic zone of the Russian Federation.”41 The paucity of polar references in the NDCs of States with polar interests can be explained by several factors. Among these States several have (or, in the case of the United Kingdom, had) European Union (EU) membersship, and these were the subject of an umbrella NDC submitted by the EU on their behalf.42 Because of the generic nature of the EU’s NDC, it contains nothing in the way of country-specif ic climate impacts and instead focuses exclusively on European-wide emissions reduction commitments and policies. A  further reason that polar matters are not addressed in many NDCs is that most of their content concerns policies to reduce emissions rather than adaptation, and in the mitigation context identifying the specif ic environmental effects of emissions trajectories may not appear particularly relevant. However, NDCs do commonly reference the Paris Agreement’s temperature goals and given the links between these and the integrity of the polar regions there is no reason that future NDCs could not also acknowledge the importance of identif ied emission reduction commitments to the polar regions and the cryosphere more generally. Parties to the Paris Agreement may address both mitigation and adaptation policies in NDCs and have discretion to include a wide variety of material on risks, threats and impacts. This is, therefore, a potential mechanism through which governments could elevate the prof ile of polar considerations under the Paris Agreement, which could in turn influence the Global Stocktake.

36 See Tim Stephens, “The Role and Relevance of Nationally Determined Contributions under the Paris Agreement to Ocean and Coastal Management in the Anthropocene,” Ocean Yearbook 33 (2019): 250–67. 37 The Antarctic claimant States are Argentina, Australia, Chile, France, Norway, New Zealand and the United Kingdom. The Arctic Eight States with territory in the Arctic are Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States. Submitted NDCs are https://www4.unfccc.int/sites/NDCStaging/Pages/All.aspx. 38 Argentina, Nationally Determined Contribution, December 30, 2020, 5, https://www4.unfccc.int/sites/ndcstaging/ PublishedDocuments/Argentina%20Second/Argentina_Segunda%20Contribuci%C3%B3n%20Nacional.pdf. 39 Canada, Updated Nationally Determined Contribution, May 11, 2017, 3, https://www4.unfccc.int/sites/ndcstaging/ PublishedDocuments/Canada%20First/Canada%20First%20NDC-Revised%20submission%202017-05-11.pdf. 40 Iceland, Updated Nationally Determined Contribution, February  18, 2020, 14, https://www4.unfccc.int/sites/ ndcstaging/PublishedDocuments/Iceland%20First/Iceland_updated_NDC_Submission_Feb_2021.pdf. 41 Russian Federation, First Nationally Determined Contribution, November 25, 2020, 3, https://www4.unfccc.int/sites/ ndcstaging/PublishedDocuments/Russia%20First/NDC_RF_eng.pdf. 42 Denmark, Finland, France, Sweden and the United Kingdom. After leaving the EU the United Kingdom submitted an updated NDC on its own behalf in December 2020, and it does not mention polar issues.

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Legal and Policy Responses to Climate Change in the Antarctic The Antarctic Governance Framework The governance framework for Antarctica is supplied by the Antarctic Treaty System (ATS), a suite of treaties built around and upon the 1959 Antarctic Treaty.43 In normative terms, the Antarctic Treaty has three core elements: it provides that the continent must be used for peaceful purposes,44 it seeks to facilitate and promote the freedom of scientif ic investigation45 and, most importantly, it freezes sovereign claims for the life of the treaty and prohibits the making of new claims or the enlargement of existing claims.46 The Antarctic Treaty also established the ATCM at which consultative parties47 engage in regular discussion of Antarctic affairs and adopt a range of regulatory measures. The other components of the ATS comprise the measures, decisions and recommendations adopted by the ATCM, together with several later treaties: the 1972 Convention for the Conservation of Antarctic Seals,48 the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention)49 and the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol).50 The adoption of the Environmental Protocol was the most signif icant moment in Antarctic affairs since 1959, with the agreement committing the parties to “comprehensive protection of the Antarctic environment and dependent and associated ecosystems” and designating “Antarctica as a natural reserve, devoted to peace and science.”51 The Environmental Protocol takes an ecosystem approach52 and makes activities in Antarctica subject to environmental impact assessment.53 It also establishes the Committee on Environmental Protection (CEP) which is tasked with providing advice and formulating recommendations to the ATCM for implementing the objectives of the Protocol in accordance with Article 11. Furthermore, the Environmental Protocol refers to SCAR as a scientif ic group with which the CEP shall consult, as appropriate, in carrying out its functions.54 Through its delicate compromise on sovereignty the ATS has provided a basis for peaceful cooperation in Antarctic affairs, and this has enabled the continent to become a focus of global scientif ic research on climate change. Climate science is so pivotal to scientif ic investigation in Antarctica that the continent has been described as a terra clima as it is one of the “geographic epicentres of

43 Adopted December 1, 1959, entered into force June 23, 1961, 402 UNTS 71. 44 Antarctic Treaty, article 1. 45 Antarctic Treaty, articles 2 and 3. 46 Antarctic Treaty, article 4. 47 The Antarctic Treaty consultative parties comprise the 12 original members of the Antarctic Treaty together with later parties that have demonstrated an interest in Antarctica by undertaking substantial research activity there: Antarctic Treaty, article 9(2). 48 Adopted June 1, 1972, entered into force March 11, 1978, 11 ILM 251 (1972). 49 Adopted May 20, 1980, entered into force April 7, 1982, 1329 UNTS 48 (CAMLR Convention). 50 Protocol on Environmental Protection to the Antarctic Treaty, October  4, 1991, ILM 30, 1491 (Environmental Protocol). 51 Ibid., Article 2. 52 Ibid., Articles 2, 3. 53 Ibid., Articles 3(2)(c), 8; Environmental Impact Assessment Guidelines, ATCM Resolution 1 (2016). See also Chapter 12 of this volume. 54 Environmental Protocol, article 12(2).

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climate science and scientists.”55 Climate research in Antarctica has major signif icance for several reasons. Antarctica holds a unique record of earth’s past climate allowing palaeoclimatologists to study ancient climates and to gain a better understanding of the way temperature changes correlate with atmospheric greenhouse gas concentrations.56 Secondly, climate scientists are also undertaking extensive research on the impacts that warming temperatures are having on Antarctica’s environment, including the Antarctic ice sheets, and likely future impacts for the region and for the planet as a whole.57 In 1989 the parties to the Antarctic Treaty recognised the global importance of Antarctica for the global earth system. In Recommendation XV-14(1989), the ATCM noted that “the role that Antarctica and the Southern Ocean play in interactive physical, chemical and biological processes that regulate the total Earth system.” The recommendation also acknowledged the fateful planetary signif icance of Antarctica, observing that the “Antarctic ice sheet contains enough water to raise global sea level world-wide some 60 metres” and accordingly “[a]ny greenhouse warming which makes even a small change to this volume of ice will have a signif icant impact on sea level.”58 This type of statement by the ATCM is rare, and the ATCM has infrequently recognised these connections explicitly. Instead, the main focus of ATS governance when it comes to climate change has been the adoption of measures applicable within Antarctica and the Southern Ocean. The ATS has not only facilitated extensive climate research in Antarctica it has also enabled climate issues to be included as standing items on ATCM and CEP agendas. The origins of this Antarctic climate focus lie in the 2009 ACCE Report,59 which included 80 key conclusions relating to the impacts of climate change on Antarctica. It led in 2010 to the ATCM convening the Antarctic Treaty Meeting of Experts on the Implications of Climate Change for Antarctic Management and Governance60 (ATME), which made a number of recommendations to the ATCM on the subject. These included that the ATCM welcome the ACCE Report for its relevance both to its own deliberations and for global climate negotiations, that the ATCM do more to promote emissions cuts in Antarctica given their “symbolic value in the global context,”61 that parties assess the risk that climate change poses for Antarctic infrastructure, logistics and environmental values,62 that parties take climate change into account when developing EIAs for new facilities,63 that parties expand research on predicting future climate change,64 that SCAR identify key regions, habitats and species at greatest risk from climate change effects in its research programs,65 and that CEP consider developing a climate change response work program which would include, among other things, a review of the eff icacy of management tools such as protected areas in the context of climate change.66

55 Jessica O’Reilly, “Antarctic Climate Futures: How Terra Incognita Becomes Terra Clima,” The Polar Journal 3 (2013): 384–98, 385. 56 Quirin Schiermeier, “Antarctic Project to Drill for Oldest-Ever Ice Core,” Nature 567 (2019): 442–43. 57 Garbe, Albrecht, Levermann et al., “The Hysteresis of the Antarctic Ice Sheet.” 58 ATCM, Recommendation CV-14 (1989). 59 Scientif ic Committee on Antarctic Research, Antarctic Climate Change and the Environment (ACCE) Report (Cambridge: SCAR, 2009). 60 Co-Chairs Report from Antarctic Treaty Meeting of Experts on Implications of Climate Change for Antarctic Management and Governance (2010), https://documents.ats.aq/ATCM33/att/ATCM33_att109_e.pdf. 61 Ibid., Recommendation 5. 62 Ibid., Recommendation 7. 63 Ibid., Recommendation 8. 64 Ibid., Recommendation 10. 65 Ibid., Recommendation 17. 66 Ibid., Recommendation 19.

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The ATME recommendation regarding a climate change work program was acted upon in 2015 when the CEP established its Climate Change Response Work Program (CCRWP).67 The CCRWP is a mechanism through which the CEP can identify and revise goals and specif ic actions to respond to the environmental impacts of climate change and the related implications for Antarctic management. At ATCM XL – CEPXX in 2017, the parties also agreed to create the Subsidiary Group of the Committee on Environmental Protection on Climate Change Response to support the implementation of the CCRWP.68 The Subsidiary Group is tasked with enhancing cooperation, preparing annual updates of the CCRWP and annual progress reports on the implementation of the CCRWP. The CCRWP addresses seven climate related issues: (1) the introduction of non-native species, (2) change to the terrestrial and aquatic environment, (3) change to marine near-shore environment, (4) ecosystem change due to ocean acidif ication, (5) impact to the built environment impairing heritage values, (6) marine and terrestrial species at risk, and (7) marine and terrestrial habitats at risk. For each issue, the CCRWP then addresses gaps/needs, response areas, actions/tasks, priorities, which body carries responsibility, and progress. Climate change has also been an issue for the CAMLR Convention and the Commission it established (CCAMLR), although it has not been addressed in the same level of detail as it has in the CEP. CCAMLR varies from other f isheries management organisations in being concerned primarily with the conservation of the marine ecosystem within the CCAMLR Convention area69 while also permitting the “rational use” of Antarctic marine living resources.70 Accordingly, CCAMLR is well-placed to take a precautionary and conservation focused approach in addressing the climate impacts on the Southern Ocean ecosystem. Climate change was recognised by CCAMLR in 2006, with the Commission acknowledging “the need to address climate change effects and to monitor such effects in relation to future potential changes in, and influences on, the species and area for which CCAMLR is responsible.”71 In Resolution 30/XXVIII, adopted in 2009, CCAMLR noted with concern that “the Southern Ocean will continue to warm over this century and believing that the Southern Ocean will experience increased acidif ication with possible impacts on the marine ecosystems.”72 Rayfuse has observed that since this time, “CCAMLR has identif ied a broad range of impacts that could carry signif icant risks to Antarctic marine ecosystems and has worked to improve the robustness of its scientif ic advice and stock assessments.”73 However, CCAMLR has rejected the type of approach taken in the CEP for climate science reporting74 and has declined to establish a work program similar to the CCRWP.75 Russia and China declined to join the consensus and accordingly the proposal was not adopted.76

67 See www.ats.aq/documents/ATCM38/ww/atcm38_ww010_e.doc. 68 ATCM, Decision 1 (2017). 69 CAMLR Convention, article II. 70 Ibid., Article I. 71 CCAMLR, Report of the Commission for the Conservation of Antarctic Marine Living Resources, CCAMLR-XXV (Hobart: CCAMLR, 2006), para. 17.3. 72 CCAMLR, Resolution 30/XXVIII (2009). 73 Rosemary Rayfuse, “Climate Change and the Poles,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 412–32, 421. 74 CCAMLR, Report of the Commission for the Conservation of Antarctic Marine Living Resources, CCAMLR XXXVII (Hobart: CCAMLR, 2018), 32. 75 CCAMLR, Report of the Commission for the Conservation on Conservation of Antarctic Marine Living Resources, CCAMLRXXXVI (Hobart: CCAMLR, 2017), para 7.7. 76 Ibid. See further Rosemary Rayfuse, “Climate Change and Antarctic Fisheries: Ecosystem Management in CCAMLR,” Ecology Law Quarterly 45 (2018): 53, 75.

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The reasons for this opposition are not clear but may reflect a view that CCAMLR’s mandate should not extend beyond narrow f isheries conservation and management issues. One practical way that CCAMLR has sought to respond to climate change is through the designation of marine protected areas (MPAs). There is good evidence that MPAs will be effective in protecting ecosystems and species in the CCAMLR area, including around the Antarctic peninsula.77 In 2011 CCAMLR adopted a general framework for the establishment of CCAMLR MPAs, which expressly referred to the capacity of MPAs to maintain the ability of ecosystems to “adapt in the face of climate change.”78 In 2016 CCAMLR recognised a unique climate change-related category of special area, adopting a conservation measure to establish time-limited special areas for scientif ic study in newly exposed marine areas following ice shelf retreat or collapse in the Antarctic peninsula region.79 Climate change was also referred to when CCAMLR established Ross Sea MPA, with the relevant conservation measure noting that the Ross Sea region “offer[s] rich opportunities for the study of climate change in the region” and that the “establishment of CCAMLR MPAs can provide important opportunities to understand the ecosystem impacts of climate change separate from those of f ishing.”80 However, subsequent proposals to establish MPAs in the CCAMLR Area have been unsuccessful, with a small number of parties blocking their adoption and questioning the competence of CCAMLR to utilise this tool for ocean management.81 Again, the reasons for this position are not transparent and may be motivated by fundamentally divergent visions as to the role of CCAMLR.

Legal and Policy Responses to Climate Change in the Arctic Unlike the Antarctic, where sovereign claims are in abeyance, in the Arctic there are eight States (the Arctic Eight) with recognised sovereignty over territory and adjacent maritime zones. These governments, therefore, have primary capacity to address the climate change impacts occurring within their territories. Included among the Arctic Eight are the world’s second largest (the United States) and fourth largest (Russian Federation) carbon emitters,82 and these governments are, therefore, in a unique position to influence both the trajectory of global climate negotiations and specif ic Arctic responses to the problem. The presence of permanent populations in territories of Arctic States, including Indigenous peoples, and their vulnerability to rising temperatures has also substantially elevated the prof ile of Arctic climate issues. In international law terms, and in contrast with the Antarctic, there is no singular Arctic regime that provides an overarching governance framework for the management of all of the land and sea areas within the Arctic region. Instead, Arctic governance is pursued both on a national basis, as noted earlier, and through the work of two, partially, overlapping groups of States: the Arctic Eight and the Arctic Five (those States with coasts fronting the Arctic Ocean). The central institutional mechanism for cooperation among the Arctic Eight is the Arctic Council which was established in

77 Carolyn J. Hogg, Mary-Anne Lea, Marga Gual Soler et al., “Protect the Antarctic Peninsula – Before It’s Too Late,” Nature 586 (2020): 496. See also Chapter 14 of this volume. 78 CCAMLR, Conservation Measure 91–04 (2011). 79 CCAMLR, Conservation Measure 24–04 (2016). 80 CCAMLR, Conservation Measure 91–05 (2016). 81 Chelsea Harvery, “Once Again, New Antarctic Reserves Fail to Win Backing,” Science, November 2, 2020, www. sciencemag.org/news/2020/11/once-again-new-antarctic-reserves-fail-win-backing. 82 See https://ourworldindata.org/co2-emissions.

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1996.83 Within the Arctic Council, there are several tiers of participants, including the core members (the Arctic Eight), observers (non-Arctic States and intergovernmental and non-governmental organisations) and permanent participants (Arctic Indigenous Peoples). The work of the Arctic Council is advanced through six working groups,84 including AMAP, where climate change has become an overriding concern. While AMAP has been the primary Arctic Council forum for responding to climate change, the issue has been addressed in multiple Arctic Council bodies and their documentary products, including the 2015 Framework for a Pan-Arctic Network of Marine Protected Areas.85 Arctic MPAs are referred to in the Framework as a “key tool to strength ecological resilience” in the face of warming ocean waters, ocean acidif ication and other carbon dioxide related changes.86 Climate change has also been addressed in successive Arctic Council declarations, the nonbinding declarations adopted at the biennial meetings of the Council. There have been ten Arctic Council declarations, with the f irst adopted in Iqaluit, Canada, in 1998. That declaration referred to climate change in the context of work by the Conservation of Arctic Flora and Fauna Working Group (CAFF) to assess the “effects of climate change and UV-B radiation on Arctic ecosystems.”87 There have been much more substantive references to climate change in subsequent Arctic Council declarations. The 2017 Fairbanks Declaration included extensive reference to climate change. In its preamble, the Fairbanks Declaration recognised that “activities taking place outside the Arctic region, including activities occurring in Arctic States, are the main contributors to climate change effects and pollution in the Arctic, and underlining the need for action at all levels.” It also noted with concern that the Arctic is warming at most than twice the global average “resulting in widespread social, environmental, and economic impacts in the Arctic and worldwide” and that with the entry into force of the Paris Agreement the Council reiterated “the need for global action to reduce both long-lived greenhouse gases and short-lived climate pollutants.” In its operative provisions, the Fairbanks Declaration also addressed climate issues through several measures, including reducing black carbon and methane emissions by Arctic States and observer States.88 At the Arctic Council meeting in Rovaniemi in 2019, no declaration was adopted, as the Trump administration reversed course from its position in 2017 and insisted that all references to climate change should now be expunged from the text.89 Accordingly, no agreement could be reached on a declaration, and instead, a short joint ministerial statement was issued, which omitted any reference to climate

83 See also Chapter 21 of this volume. 84 Arctic Contaminants Action Program (ACAP); Arctic Monitoring and Assessment Programme (AMAP); Conservation of Arctic Flora and Fauna Working Group (CAFF), Emergency Prevention, Preparedness and Response Working Group (EPPR); Protection of the Arctic Environment (PAME) Working Group; and the Sustainable Development Working Group (SDWG). 85 Accessed April  11, 2019, https://oaarchive.arctic-council.org/bitstream/handle/11374/417/MPA_f  inal_web.pdf? sequence=1&isAllowed=y. See also Chapter 14 of this volume. 86 Ibid., 19. 87 Iqaluit Declaration (1998), https://oaarchive.arctic-council.org/bitstream/handle/11374/86/01_iqaluit_declaration_ 1998_signed%20%282%29.pdf?sequence=1&isAllowed=y. 88 Fairbanks Declaration (2017), https://oaarchive.arctic-council.org/bitstream/handle/11374/1910/EDOCS-4072-v5ACMMUS10_FAIRBANKS_2017_Fairbanks_Declaration-2017.pdf?sequence=9&isAllowed=y. 89 Somini Sengupta, “U.S. Pressure Blocks Declaration on Climate Change at Arctic Talks,” The New York Times (May 7, 2019), www.nytimes.com/2019/05/07/climate/us-arctic-climate-change.html.

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change.90 With the election of the Biden administration the United States has once again provided strong support for the Arctic Council’s focus on climate change.91 As noted in the Fairbanks Declaration, the Arctic Council has become a vehicle for a regionspecif ic initiative to address pollutants that are exacerbating Arctic climate impacts. The Enhanced Black Carbon and Methane Emissions Reduction Framework for Action (EBCME Framework) was adopted at the Arctic Council ministerial meeting in Iqaluit in 2015.92 The EBCME Framework seeks to achieve substantial reductions in black carbon and methane emissions from Arctic Council members through the provision of black carbon and methane inventories, and the sharing of national plans to reduce emissions. Arctic Council observers are encouraged to participate actively in the implementation of the EBCME Framework, including by strengthening their national emissions inventories and mitigation plans. In addition, the EBCME Framework notes the commitment of Arctic States to raise awareness of the impact of black carbon and methane emissions. However, it should be noted that the EBCME Framework does not itself mandate quantif ied emissions reductions, which remains a matter for individual Arctic Council members. While most of the Arctic Council’s work has been in the realm of science and general policy, it has also been a forum in which three binding treaties have been concluded. These are the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic,93 the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic,94 and the 2017 Agreement on Enhancing International Arctic Scientif ic Cooperation.95 All three of these have some relevance to climate issues, given than changing conditions are making the region more hazardous to navigate and there is an ongoing need for greater cooperation in Arctic climate research. Less stable and more extreme weather conditions, the presence of more mobile ice in some shipping routes, and more traff ic (including cruise ships) have increased navigational risks, although some of these risks may decline as the Arctic Ocean shifts to an ice-free State.96 The Arctic Council has provided the central regional forum for Arctic assessment and its response to climate change via its biennial declarations; however, there have also been broader initiatives of relevance to the problem. These include the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA), which was concluded by the Arctic Five along with China, the European Union, Iceland, Japan and South Korea.97 As Rayfuse has noted, as sea ice melts, the central Arctic Ocean is becoming accessible to commercial f ishing for the f irst time,

90 Arctic Council, Joint Ministerial Statement on the Occasion of the Eleventh Ministerial Meeting, May  6–7, 2019, Rovaniemi, Finland. 91 United States, Off ice of the Press Secretary, “Biden Administration Underscores Commitment to Combatting Climate Change, Strengthening Global Partnerships at Third Arctic Science  Ministerial” (May  11, 2021), www.whitehouse. gov/ostp/news-updates/2021/05/11/biden-administration-underscores-commitment-to-combatting-climate-changestrengthening-global-partnerships-at-third-arctic-science-ministerial/. 92 Arctic Council, Iqaluit 2015 SAO Report to Ministers, Annex 4, at https://oaarchive.arctic-council.org/bitstream/handle/ 11374/610/ACMMCA09_Iqaluit_2015_SAO_Report_Annex_4_TFBCM_Framework_Document.pdf?sequence=1 &isAllowed=y. 93 Adopted May 12, 2011, entered into force January 19, 2013, 50 ILM 1119 (2011). 94 Adopted May 15, 2013, entered into force February 25, 2016, TIAS 16–325. 95 Adopted May 11, 2017, entered into force May 23, 2018, TIAS 18–523. In relation to the 2017 Agreement, see Chapter 8 of this volume. 96 See e.g. Lawrence R. Mudryk, Jackie Dawson, Stephen E. L. Howell et al., “Impact of 1, 2 and 4°C of Global Warming on Ship Navigation in the Canadian Arctic,” Nature Climate Change 11 (2021): 673–79. 97 Ilulissat, Greenland, October 3, 2018 (not yet in force) (CAOFA). The text is www.dfo-mpo.gc.ca/international/ arctic-arctique-eng.htm.

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enabling States to engage in high-seas f ishing in this the central Arctic Ocean with few limitations.98 The goal of the CAOFA is to prevent illegal, unreported and unregulated f ishing in the central Arctic through the application of precautionary conservation and management measures to safeguard marine ecosystems and ensure the conservation and sustainable use of f ish stocks.99 The CAOFA acknowledges in its Preamble that Arctic Ocean ecosystems “are changing due to climate change and other phenomena.”100 Although commercial f ishing is not currently taking place in the region, the CAOFA adopts several measures to place an indef inite moratorium on unregulated commercial f ishing.101 The CAOFA is unique in being the f irst regional f isheries management treaty to be adopted before the commencement of f ishing in its management area.102 The agreement takes a relatively strong precautionary approach and provides a good platform for further regional engagement. Rayfuse has observed that the CAOFA is but the “f irst step” towards the conclusion of a formal regional f isheries management organisation or arrangement.103 However, this may not occur. According to the treaty, there can be no f ishing without an RFMO, but there is no obligation to create an RFMO. The Arctic Five have no real interest in creating an RFMO or allowing any f ishing in the high seas because any stocks would be straddling – in other words, any f ish taken out of the high seas would mean fewer f ish in the EEZ.104 The other major development of note outside the Arctic Council is the work of the International Maritime Organization (IMO) on a code for the operation of ships in polar waters. Due to the rapid loss of sea ice in the Arctic, commercial shipping during the boreal summer is now a real possibility and is of growing attraction to shippers given the substantially reduced distance traversed by vessels between Europe and Asia.105 In 2014 the IMO adopted the International Code for Ships Operating in Polar Waters (the Polar Code), which since 2017 has been made mandatory under MARPOL and the International Convention for the Safety of Life at Sea.106 The Polar Code aims to enhance ship safety and pollution prevention in the Arctic and Southern Oceans through detailed rules on ship design, construction, equipment, operation, navigation, crewing and training, search and rescue, and environmental protection. In connection with climate change, the primary relevance of the Polar Code is the enhancements it adds to the regulation of shipping in both polar oceans, which will reduce the risks associated with this industry as it expands its operations in these ecologically vulnerable areas. In addition to the Polar Code, there have also been recent amendments to MARPOL by the IMO to address shipping risks in the Arctic. In the Antarctic,

98 Rayfuse, “Climate Change and the Poles,” 427. 99 CAOFA, article 2. 100 Ibid., preamble, 2nd recital. 101 Ibid., article 3. 102 Calentin J. Schatz, Alexander Proelß, and Nengye Liu, “The 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: A Critical Analysis,” International Journal of Marine and Coastal Law 34 (2019): 195–244, 243. 103 Rayfuse, “Climate Change and the Poles,” 429. 104 See further Erik J. Molenaar, “Participation in the Central Arctic Ocean Fisheries Agreement,” in Emerging Legal Orders in the Arctic: The Role of Non-Arctic Actors, eds. Akiho Shibata, Leilei Zou, Nikolas Sellheim, and Marzia Scopelliti (Abingdon: Routledge, 2019). 105 Rayfuse, “Climate Change and the Poles,” 423. 106 IMO, International Code for Ships Operating in Polar Waters (Polar Code), IMO Resolution MSC.385(94), November 21, 2014, effective January 1, 2017; Amendments to the International Convention for the Safety of Life at Sea 1974, IMO Resolution MSC.386(94), November 21, 2014, effective January 1, 2017; Amendments to MARPOL Annexes I, II, IV and V, IMO Resolution MEPC.265(68), May 15, 2015, effective January 1, 2017. See also Chapters 7 and 19 of this volume.

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a prohibition on the carriage and use of heavy fuel oil has been in place under MARPOL since 2011.107 In 2021 the IMO’s Marine Environment Protection Committee adopted amendments to MARPOL Annex I, prohibiting the use and carriage of heavy fuel oil in the Arctic from July 1, 2024 (subject to some exceptions).

Conclusion Both the Antarctic and Arctic regimes have placed climate change front and centre as a governance concern and as a topic requiring urgent and ongoing scientif ic attention. The obvious impediment that both the ATS and the Arctic Council face in addressing climate change is the problem of “regime f it.” This is because neither have any competence to address greenhouse gas emissions – the primary driver of global warming.108 While greater efforts could be expended to reduce emissions from polar activities, the reality is that the vast majority of emissions need to be addressed by States through the UNFCCC and the Paris Agreement. It has been argued in this chapter that there should be greater visibility of polar concerns in the climate regime, given that their continued existence in their current state hinges on the successful attainment of the Paris Agreement’s temperature objective.109 There is a large potential for substantially more ambitious climate mitigation commitments and policies under the Paris Agreement, and the protection of the polar regions provides a compelling basis to support this ambition. Within their own areas of competence, both the Antarctic and Arctic regimes have been highly active in addressing climate issues. In both regions, there has been a strong focus on climate science, with the Arctic Council being highly proactive in undertaking comprehensive climate assessments. In the Antarctic, there has also been extensive climate science undertaken, although Antarctic climate impacts have not been the subject of a truly comprehensive and integrated assessment. This contrast is a product of the differing characteristics of the two regimes, with the ATS more decentralised than the Arctic Council, which has delegated tasks to monitoring programs. In terms of practical management measures, both the ATS and the Arctic Council have explored the use and deployment of a variety of conservation and adaptation measures, from enhanced monitoring of changes through to the establishment of protected areas. Given the rapid changes that continue to unfold at both poles, there will be an ongoing need for the ATS, the Arctic Council and other polar-relevant institutions to anticipate and respond to impacts as they occur and, above all, to elevate the central importance of the polar regions to a healthy planet.

107 MARPOL, Annex I Regulation 43, in force August 1, 2011 (amended 2014). 108 See further Tim Stephens, “The Antarctic Treaty System and the Anthropocene,” Polar Journal 8 (2018): 29–43, 38. 109 Ibid., 40.

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14 PROTECTION OF BIOLOGICAL DIVERSITY IN THE POLAR REGIONS BY MARINE PROTECTED AREAS Ingvild Ulrikke Jakobsen Introduction Some of the most pristine and sensitive habitats and ecosystems and the last wilderness areas in the world are located within the polar regions: the Arctic and Antarctica. These regions are rich in biodiversity and are home to endangered species such as the polar bear, certain penguin species and the Antarctic blue whale. The conservation of biological diversity in the polar regions is also important for the protection of global biological diversity. First, conservation of biological diversity is recognised in the Convention on Biological Diversity (CBD) as a common concern of humankind.1 This means that conservation and maintenance of all biological diversity is a common interest for all States. Moreover, species, habitats and ecosystems are connected across the jurisdictional boundaries. The marine environment is by nature fluent, and ecological processes do not respect administrative and jurisdictional boundaries.2 Species and non-living material therefore move between and beyond the Arctic and Antarctic waters and other adjacent sea areas. The challenges facing both the Arctic and Antarctic marine biodiversities are interconnected and require comprehensive solutions and international cooperation.3 It is documented that climate changes will have severe impact on the polar regions.4 The physical changes due to climate change, with melting of ice and warming of the oceans will, together with technological developments, lead to an increase of human activities. Consequently, the polar environments in both regions are faced with new and increased environmental challenges due to an increase of human activities within the regions, and external threats. Common for both areas is also a lack of scientif ic knowledge of the marine environment, of how the ecosystems are affected by climate change and pressures from human activities, as well as the uncertainties that one has to deal with when protecting the

1 Convention on Biological Diversity, Preamble. Text in: 1760 UNTS, 79. Entered into force December 29, 1993. 2 UNEP-WCMC (2018) Marine connectivity across jurisdictional boundaries. An introduction. Cambridge (UK): UN Environment Conservation Monitoring Centre, 32 p. 1. 3 For the Arctic marine biodiversity, this is highlighted as a key f inding in CAFF; Arctic Biodiversity Assessment: Report for Policy makers, Key Findings 9. 4 IPCC SR 2019, The Ocean and Cryosphere in a Changing Climate, chapter 3. See also Chapter 13 of this volume. DOI: 10.4324/9781003404828-17 220

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environment and marine biodiversity. Due to the new and increased threats and scientif ic uncertainty, there is an urgent need for effective environmental protection of these regions.5 This chapter explores the legal frameworks for the protection of marine biological diversity in the polar regions. Marine Protected Areas (MPAs), and other effective area-based management tools (ABMTs), are emphasised as important conservation tools for marine biological diversity in a range of different instruments. Several treaty commitments to protect marine biodiversity by the use of MPAs, such as the UN Convention on the Law of the Sea (LOSC)6 and the Convention on Biological Diversity (CBD),7 have been reinforced by commitments made by States in highlevel international meetings and summits.8 The Aichi target 11 (under the CBD) states that 10% of coastal and marine areas “are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures.”9 This target was endorsed by the international community in the Sustainable Development Goals (SDGs), in particular, SDG 14 (5).10 The chapter provides an overview of global commitments to protect marine biological diversity by MPAs. Following this, the chapter examines the legal framework for establishing and managing MPAs in the polar regions, respectively, as well as current practice and status of the use of this tool in both polar regions.

The Concept of MPAs Def initions There are many types and def initions of MPAs. The International Union for Conservation of Nature (IUCN) def ines a protected area as [a] clearly def ined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated services and cultural values.11 A protected area is def ined in the CBD “as a geographically def ined area which is designated or regulated and managed to achieve specif ic conservation objectives.”12 The CBD Conference of the Parties (COP) has endorsed a def inition of MPAs based on the IUCN def inition: “Marine and Coastal Protected Area” means any def ined area within or adjacent to the marine environment, together with its overlying waters and associated flora, fauna, and historical and

5 Robin Warner, “Principles of Environmental Protection at the Poles,” in Research Handbook on Polar law, eds. Karen N. Scott and David L. VanderZwaag (Cehltenham: Edward Elgar, 2020), 326, 326. 6 United Nations Convention for the Law of the Sea, London, December 10, 1982, entered into force November 16, 1994, 1833 UNTS 397. 7 Convention on Biological Diversity (CBD), June 5, 1992, in force December 20, 1993, 1760 UNTS 79. 8 Suzanne Lalonde, “Marine Protected Area Networks at the Poles,” in Research Handbook on Polar law, eds. Karen N. Scott and David L. VanderZwaag (Cehltenham: Edward Elgar, 2020), 346, 346. 9 The Aichi targets are www.cbd.int/sp/targets/. 10 See the UN website on SDGs at https://sdgs.un.org/. It follows from SDG 14.5 that States should: “By 2020, conserve at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientif ic information.” 11 International Union for Conservation of Nature, G. Kelleher, ed., Guidelines for Marine Protected Areas (1999), www.iucn. org/sites/dev/f iles/import/downloads/mpaguid.pdf. 12 CBD, Article 1.

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cultural features, which has been reserved by legislation or other effective means, including custom, with the effect that its marine and/or coastal biodiversity enjoys a higher level of protection than its surroundings.13 Three core elements or requirements as to what constitutes an MPA may be identif ied or deduced from these def initions. An MPA is a geographically def ined marine area, it has a conservation purpose or objective, and protective measures to regulate human activities are adopted therein. A similar def inition that includes these criteria is also suggested in the draft text of the potential new agreement on conservation and sustainable use of biological diversity in areas beyond national jurisdiction (BBNJ).14 The commitments in SDG 14, Aichi target 11, and the ongoing BBNJ process with its draft treaty text all provide for the use of MPAs and a broader set of ABMTs as a means of conserving marine biological diversity. Aichi target 11 refers to “protected areas and other effective area-based measures.” The draft of the new treaty on BBNJ addresses “area-based management tools, including MPAs.”15 While numerous of other ABMTs exist, and are adopted within the polar regions, the focus of this chapter is mainly on MPAs.

The International Legal Framework for Protection of the Marine Biological Diversity in the Polar Regions General The protection of marine biological diversity and the use of MPAs as a tool are not governed by one global instrument. Both the LOSC and the CBD contain legal obligations to ensure protection of marine biological diversity that are relevant for the polar regions. The LOSC Part XII Articles 192 and 194 (5) requires States to address pollution and to adopt measures to protect the marine environment, including sensitive and fragile environments and ecosystems. The CBD Article 8 imposes obligations to conserve and ensure sustainable use of biological diversity, including in situ conservation by the use of protected areas. International environmental principles, such as the precautionary principle and ecosystem approach, are also of relevance and signif icance for protection of marine biological diversity by the use of MPAs and are also reflected in several of the relevant international instruments. The global obligations and principles to protect and conserve the marine environment and its ecosystems are implemented at the regional level through regional obligations on environmental protection and regional legal frameworks for networks of MPAs, which are applicable in the polar regions, such as the Convention for the Protection of the Marine Environment of the North-East Atlantic (the OSPAR Convention),16 the Protocol on Environmental Protection to the Antarctic

13 The def inition is endorsed by the COP in Decision VII/5, UN Doc. UNEP/CBD/COP/DEC/VII/5 (April  13, 2004), para. 10. 14 On the negotiations and draft treaty text, see www.un.org/bbnj, accessed June 2021. On March 4, 2023, the Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ), concluded a new agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. Advanced text is available at https://www.un.org/bbnj/sites/www. un.org.bbnj/f iles/draft_agreement_advanced_unedited_for_posting_v1.pdf. 15 Draft treaty, part 3. 16 Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris. September 22, 1992, in force March 25, 1998, 2534 UNTS 67 (the OSPAR Convention).

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Treaty17 (the Madrid Protocol) and the Convention on the Conservation of Antarctic Marine Living Resources (the CAMLR Convention).18 While a comprehensive overarching system of legally binding treaties apply at the regional level in Antarctica, the Arctic States cooperate with each other in protecting the marine environment under the Arctic Council. A number of soft law initiatives are developed under the Arctic Council. Yet most of the marine Arctic is subject to the jurisdiction of the Arctic States in respect of their adjacent maritime zones. The implementation of the global obligations to protect the marine biodiversity has thus primarily taken place through the national environmental legislation of Arctic States.19 To conclude, a multitude of overlapping legal regimes, instruments and institutions are governing the environmental protection and protection of marine biodiversity in the polar regions. MPAs must also be implemented within the governance framework of the LOSC, which takes a sectorial and zonal approach to ocean governance where the jurisdictional rights and obligations of the States are divided between the States based on the maritime zones. It is thus a fragmented set of regimes and instruments that together compose the legal framework for protection of marine biodiversity by the use of MPAs in the polar regions.

MPAs and the LOSC The LOSC sets outs rights and obligations for all States in all maritime zones, including in the common areas beyond national jurisdiction, the high seas and the Area. These include the general obligations in Articles 192 and 194 (5) to protect and preserve the marine environment, including sensitive habitats and ecosystems in all marine areas. The general obligations were negotiated at a time before biodiversity was a common term or concept. However, the LOSC is not a static legal instrument. It is a dynamic instrument that is capable of adapting to new circumstances and that must be interpreted and implemented in light of later treaties, such as the CBD.20 According to Article 192, States are under an obligation to protect and preserve the “marine environment.” While most of the obligations in Part XII relate to marine pollution, the general obligation is not limited to marine pollution. The wording of Article 192 is broad and may cover protection of the marine environment from a wide range of activities, including pollution, climate change, habitat destruction and overf ishing.21 It is clear that conservation of living resources is part of the obligations to protect and preserve the marine environment. This follows from a contextual reading of Articles 192 and 193, as well as case law.22 Article 194 sets out measures that States shall take to prevent and minimise marine pollution. The heading of Article 194 (“Measures to prevent, reduce and control pollution to the marine

17 The Protocol on Environmental Protection to the Antarctic Treaty, Madrid, October 4, 1991, in force January 14, 1998, 2941 UNTS 3 (the Madrid Protocol). 18 Convention on the Conservation of Antarctic Marine Living resources, Canberra, May 20, 1980, in force April 7, 1982, 1329 UNTS 47 (CAMLR Convention). 19 Warner, “Principles of Environmental Protection at the Poles,” 326. 20 See Alan Boyle, “Protecting the Marine Environment from Climate Change,” in The Law of the Sea and Climate Change: Solutions and Constraints, eds. Elise Johansen, Signe Veierud Busch and Ingvild Ulrikke Jakobsen (Cambridge: Cambridge University Press, 2020), 81, 83–84. 21 James Harrison, Saving the Oceans Through Law (Oxford: Oxford University Press, 2017), 24. See also Boyle, “Protecting the Marine Environment from Climate Change,” 85–86. 22 Southern Bluef in Tuna cases (New Zealand v. Japan; Australia v. Japan) (Order for Provisional Measures) [1991] ITLOS Rep. 3 and 4, para. 70.

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environment”) could suggest that the provision concerns only activities that lead to marine pollution. However, a contextual interpretation with Article 192 and subsequent practice and case law indicate that Article 194 (5), requiring States to adopt 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,” has a broader scope. A  broad interpretation of the wording “marine environment” was also supported by the Arbitral Tribunal in the Chagos Arbitration, which stated that Article 194 is not “limited to measures aimed strictly at controlling the pollution and extends to measures focused primarily on conservation and the preservation of ecosystems.”23 Moreover, the principle of systemic interpretation per Article 31 (3) (c) of the Vienna Convention on the Law of Treaties suggests that the broad term “marine environment” may be interpreted in an “evolutionary” way in light of new international treaties and norms, such as the CBD. Further, the Annex VII arbitral tribunal in the South China Sea Arbitration clarif ies that the content of Article 192 “is informed by other provisions of Part XII and other applicable rules of international law.”24 It would thus appear that the obligation to protect and preserve the marine environment, per LOSC Article 192, includes a legal due diligence obligation to adopt measures to protect and conserve marine the marine environment and the biological diversity against current as well as future threats.25 The South China Sea Arbitration award held that [t]his “general obligation” extends both to “protection” of the marine environment from future damage and “preservation” in the sense of maintaining or improving its present condition. Article 192 thus entails the positive obligation to take active measures to protect and preserve the marine environment and, by logical implication, entails the negative obligation not to degrade the marine environment.26 Hence, the terms “protection” and “preservation” of the marine environment cover all activities and threats to the marine environment, as well as a positive duty to take active measures and a negative obligation not to degrade the marine environment.27 Consequently, the obligations to protect and preserve the marine environment and marine ecosystems in articles 192 and 194 (5) do not specif ically require States to adopt a network of MPAs. However, they create the legal basis to do so, and it could be argued, in light of later treaty practice and the emphasis on the use of area-based management tools, that this is an appropriate tool for complying with the general obligations of Part XII. Overall, the environmental obligations in LOSC facilitate and support an approach where MPAs are identif ied and managed as measures for protection and conservation of biological diversity.28

23 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) Award of March 18, 2015, RIAA XXXII, para. 538. 24 South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China) (Award) [2016] PCA Case No. 2013–19, RIAA XXXIII, para. 941. 25 Boyle, “Protecting the Marine Environment from Climate Change,” 85; Harrison, Saving the Oceans Through Law, 24. See also South China Sea Arbitration, para. 945. 26 South China Sea Arbitration, para. 941. 27 Harrison, Saving the Oceans Through Law, 24. 28 States must, however, when designating MPAs, respect the rights of other States. For more on the right to establish MPAs within national jurisdiction and at the high seas, see Ingvild Ulrikke Jakobsen, Marine Protected Areas in International Law: An Arctic perspective, (Leiden: Brill, 2016), 18–62.

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MPAs and the CBD The objective of the CBD is according to Article 1 to ensure conservation of biological diversity, sustainable use of its components and the fair and equitable sharing of the benef its arising from genetic resources. Although Article 1 does not make a specif ic reference to marine biological diversity, this is included in the def inition of biological diversity set out in Article 2. To contribute to achieving the objectives of CBD, Article 8 includes several measures for in situ conservation, def i ned in Article 2 as “the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings.” Article 8 (a) sets out a legal duty for the contracting parties to “as far as possible and as appropriate,” establish “a system of protected areas or areas where special measures need to be taken to conserve biological diversity.” Although the legal duty is qualif ied by the wording “as far as possible and as appropriate,” the CBD requires States to protect and conserve the marine biodiversity by, for example, the use of MPAs. The obligation for the States to establish MPAs as a tool for conservation of biological diversity applies pursuant to CBD Article 4 (a) in areas within national jurisdiction. In areas beyond national jurisdiction, the parties are obliged to protect the marine biological diversity from the effects of processes and activities carried out under their jurisdiction.29 Article 8 (a) does not provide any guidance on what areas should be selected or which human activities should be regulated, or how strict the regulations adopted to protect and conserve the marine biodiversity should be. Article 8 (b) leaves it to the States to “develop guidelines for the selection, establishment and management of protected areas.” Hence, the CBD accords broad discretion to States as regards implementing the legal obligation. The obligation of in situ conservation is aimed at conserving ecosystems, habitats and species in their natural surroundings. To achieve this, protected areas are (as def ined in CBD Article 2) designated to “achieve specif ic conservation objectives.” The CBD is a framework convention, where the content of the legal duties is further specif ied and elaborated through several decisions of the Conference of the Parties (COP). The obligation of in situ conservation and to establish MPAs are elaborated through COP Decisions, which provide some guidance to States in implementing the vague obligations laid down in the Convention.30 The parties to the CBD adopted, in 2004, the work programme on marine and coastal protected areas, where the operational goal “to develop criteria for the establishment of, and for management aspects of, marine and coastal protected areas” was set out.31 At the meeting of the COP in 2005, the parties adopted as an overall goal for the work on MPAs under the CBD to establish and maintain “marine and coastal protected areas that are effectively managed, ecologically based and contribute to a global network of marine and coastal protected areas.”32 It should also be mentioned that the parties have adopted scientif ic guidance for selecting areas to establish a representative network of MPAs, including in open ocean waters and deep-sea habitats.33 Of importance for the designation of MPAs

29 CBD Article 4 (b). 30 COP Decisions are available at COP Decisions (cbd.int) (visited June 2021). 31 CBD/COP Decision IV/5, Annex, operational objective 3.2. 32 CBD/COP Decision VII/5, para. 18. For more on the content of MPAs under CBD see Jakobsen, Marine Protected Areas in International Law, 196–212. 33 CBD COP Decision IX/20, Annex 1.

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is also the scientif ic criteria for identifying ecologically signif icant marine areas in need of protection, such as open water and deep-sea habitats (EBSAs), developed by the COP the same year.34 CBD establishes in Article 7 extensive obligations for the States Parties to identify and monitor components of biological diversity that are important for conservation and sustainable use, as well as process or activities “that have or are likely to have signif icant adverse impacts on the conservation and sustainable use of biological diversity.” The parties are furthermore pursuant to Article 26 under an obligation to report on measures they have taken for the implementation of the provisions of CBD and their effectiveness in meeting the objectives of this Convention.

Regional Agreements and Arrangements for MPAs in the Arctic and Antarctica General The global legal obligations and commitments to protect and conserve the marine biodiversity are implemented through frameworks and arrangements for MPAs which have been elaborated at the regional levels in the polar regions. These frameworks and arrangements are the objectives of the investigations in this section. The analyses also cover current practice of designating MPAs in the polar regions. A comprehensive and detailed analysis of the practice of using MPAs is, however, beyond the scope of the analyses in this chapter.35 Certain key issues and criteria of a successful and effective network of MPAs are identif ied in literature or advice and guidelines for MPAs. These criteria include the adoption of an effective legal or governance framework within the MPAs, objectives of conservation, the adoption of protective measures, as well as measures for reporting or enforcement.36 When investigating the frameworks for MPAs in the Arctic and Antarctica, respectively, the focus is on these criteria, with an aim of identifying differences and commonalities.

MPAs in the Arctic There does not exist one legally binding overarching treaty for protection of the environment in the Arctic.37 This does not mean that there is a lack of legal instruments to govern the Arctic and to protect the marine environment and biodiversity. A range of legally binding treaties and instruments at global, regional and national levels apply to the Arctic region which are of relevance for the protection of the marine biodiversity. Most of the human activities in the marine Arctic take place in areas within national jurisdictions. In the Ilulissat Declaration, the Arctic Ocean coastal States – Canada, the Kingdom of Denmark, Norway, the Russian federation and the United States – agreed that the Arctic Ocean is a unique ecosystem over which they have a stewardship role. Moreover, these f ive Arctic Ocean coastal States agreed that they would cooperate to ensure the protection of the fragile marine environment of the

34 Ibid., Annex 2. See also Karen N. Scott, “Area-based Protection beyond National Jurisdiction,” Asia-Pacif ic Journal of Ocean Law and Policy 4 (2019): 158, 168. 35 For an overview see Lalonde, “Marine Protected Area Networks at the Poles,” 346–70. 36 See Graeme Kelleher, ed., Guidelines for Marine Protected Areas (Gland, Switzerland and Cambridge, UK: IUCN, 1999). Lalonde identif ies essential MPA concepts in Lalonde, “Marine Protected Area Networks at the Poles,” 248–353. 37 The OSPAR Convention is only applicable to a part of the Arctic waters and is not included in the discussion in this section.

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Arctic Ocean.38 Therefore, the Arctic Ocean coastal States and the way they uphold their responsibilities and duties under the LOSC and other global environmental treaties, such as the CBD, play a signif icant role in how the global obligations to protect the marine biological diversity by the use of MPAs are complied with in the Arctic region. The cooperation of the eight Arctic States which are parties to the Arctic Council is a core element of the ocean governance and protection of the marine environment in the region.39 Many signif icant initiatives and efforts have been made under the Arctic Council for ensuring conservation and protection of the marine environment and biological diversity in the region.40 The most important work of the Arctic Council is carried out under its working groups. In particular, important work in collecting data on the status of the environment and biological diversity, as well as in identifying and monitoring the risks of human activities, are carried out by the working groups Conservation of Arctic Flora and Fauna (CAFF) and Protection of the Marine Environment (PAME).41 The use of protected areas as a tool for protecting the environment and biological diversity has been high on the agenda even before the establishment of the Arctic Council. Already in the AEPS, the strategy that predated the Arctic Council, the establishment of a network of protected areas was included as a guiding principle.42 The Circumpolar Protected Area Network (CPAN) was later adopted by the CAFF. The goal of the CPAN was to establish “an adequate and well managed network of protected areas that has a high probability of maintaining the dynamic biodiversity of the Arctic region.”43 According to the CPAN this network should, as far as possible, cover the large variation of ecosystems in the Arctic.44 The aim of the CPAN was to provide a common framework for States for the selection and management of protected areas to ensure the protection of signif icant areas at national, regional, and circumpolar levels.45 The CPAN moreover emphasised that the development of this network would contribute to the implementation of the obligations of States pursuant to the CBD Article 8(a).46 However, as observed by Koivurova, the cooperation under the CPAN programme halted in 2004 and became dormant in 2005.47 Efforts on ecosystem-based management have been carried out under the Arctic Council through a project to identify the best practices in ecosystem-based management of the oceans in the Arctic.48 Also, an expert group on ecosystem-based management developed a report wherein ecosystembased management is def ined, and principles for such management in the Arctic are provided. The

38 Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland, May 28, 2008. 39 Timo Koivurova, Pirjo Kleemola-Juntunen and Stefan Kirchner, “Arctic Regional Agreements and Arrangements,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham, UK: Edward Elgar, 2020), 64, 65. For the Arctic Council, see Chapter 21 of this volume. 40 On these efforts see also Jakobsen, Marine Protected Areas in International Law, 129–30. 41 Information of the working groups are available at Arctic Council - Working Groups (arctic-council.org) (Last visited June 2021). 42 The Arctic Environmental Protection Strategy (AEPS), Principles viii, 11. 43 CAFF, Circumpolar Protected Areas Network (CPAN) – Strategy and Action Plan,7. CAFF Conservation Report No. 6. (1996), Directorate for Nature Management, Trondheim. 44 Ibid. 45 Ibid., 12. 46 Ibid. 47 Timo Koivurova, “Governance of Protected Areas in the Arctic,” Utrecht Law Review 5 (2009): 44, 52. 48 For more on this project, see Alf Håkon Hoel, “Integrated Oceans Management in the Arctic: Norway and Beyond,” Arctic Review on Law and Politics 2, no. 1 (2010): 186, 200–3.

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def inition, principles and recommendations of this report were approved at the Ministerial Meeting under the Arctic Council in 2013.49 The Arctic Marine Strategic Plan (2015–2025), which was adopted in 2015, includes ecosystembased management as a basic principle.50 To ensure conservation and protection of ecosystems and biological diversity, the Arctic Marine Strategic Plan set out a strategic action to develop a panArctic network of MPAs. Following this, a Framework for a Pan-Arctic Network of MPAs was drafted by an expert group and adopted in 2015.51 This Framework builds on the previous work by CPAN/CAFF on MPAs, and this section will in the further concentrate on this.52 The Framework is not legally binding but offers guidance to the Arctic States and aims to enhance the development of a network of MPAs located within the national jurisdiction of the Arctic States.53 A common vision for the Pan-Arctic Network is formulated as follows: An ecologically connected, representative and effectively-managed network of protected and specially managed areas that protects and promotes the resilience of the biological diversity, ecological processes and cultural heritage of the Arctic marine environment, and the social and economic benef its they provide to present and future generations.54 To accomplish this vision, the Framework sets out principles, goals, and objectives for the panArctic framework network of MPAs.55 Four interrelated goals of the network are formulated in the Framework: 1. To strengthen ecological resilience to direct human pressures and to climate change impacts; to promote the long-term protection of marine biodiversity, ecosystem function and special natural and cultural features in the Arctic. 2. To support integrated stewardship, conservation and management of living Arctic marine resources and species, their habitats, and the cultural and socio-economic values and ecosystem services they provide. 3. To enhance public awareness and appreciation of the Arctic marine environment and rich maritime history and culture. 4. To foster coordination and collaboration among Arctic States to achieve more effective MPA planning and management in the Arctic.56 To achieve these goals, the Framework has also formulated a range of objectives that correspond to each of these four goals.57 To ensure that the goals and the corresponding objectives are met/ complied with, the Framework establishes, as a criteria for inclusion of an MPA in the Pan-Arctic

49 Arctic Council, Kiruna Declaration, May 15, 2013. 50 Arctic Council, The Arctic Marine Strategic Plan 2015–2025, April 2015, accessed January 2022, https://oaarchive. arctic-council.org/handle/11374/413. 51 Arctic Council, PAME, Framework for a Pan-Arctic Network of Marine Protected Areas, April 2015, accessed January 2022, www.pame.is/images/03_Projects/MPA/MPA_Report.pdf. 52 For more on MPAs under the Arctic Council, see Jakobsen, Marine Protected Areas in International Law, 233–41. 53 PAME, Framework for a Pan-Arctic Network of Marine Protected Areas (2015), 5. 54 Ibid., 5. 55 Ibid., 9–11. 56 Ibid., 9. 57 Ibid., 10.

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Network, that the MPA contributes to at least one of the goals and to one or more of the network’s corresponding objectives.58 The set of objectives formulated in the framework are described in broad terms. Hence, the conservation objectives are not specif ied or def ined beyond what already follows from the global commitments under CBD, and it is thus not easy to measure to what extent they are achieved.59 The Framework sets out nine common principles by which the development and implementation of the network should be guided.60 According to these principles the Arctic States should take a coherent and systematic approach to the development to the network of MPAs, and, where possible, links to ecosystem-based management across EEZ boundaries, the high seas, and with terrestrial areas. The Framework also sets out principles to apply the best available scientif ic knowledge and, linked to this, apply a precautionary approach when considering policy decisions regarding the protection of areas and moreover to focus on resilience and adaptation to climate change. Important to mention is the principle that encourages States to apply appropriate protection measures.61 According to this principle, the States should “make every effort to ensure that the level of protection afforded is appropriate to contribute to achieving the stated goals and objectives for individual MPAs and the network.” The Pan-Arctic Network of MPAs is composed of the MPAs and networks of MPAs of the individual States. Although the Framework encourages States to acknowledge links both to land territories and the high seas, the Framework does not pursue approaches to establishing MPAs in ABNJs. This represents a limitation in the potential of the Framework in creating an ecologically coherent network of MPAs in the marine Arctic. It is emphasised in the Framework that it is necessary to develop a mechanism to facilitate the coordination between States in order to develop the network.62 Such a mechanism is not in place yet.63 The success of this Framework will thus depend on the efforts of the Arctic coastal States, as the network is composed of the MPAs established by the individual States within their national waters. Still, the Framework contains requirements for the Arctic States to ensure that their MPAs contribute to the goals of the Pan-Arctic Network and their corresponding objectives.64 Although this is not a very effective mechanism to ensure compliance, it may contribute to achieve the vision of the Pan-Arctic Network. The Framework clarif ies to some extent the objectives and criteria for selection and management of MPAs and provides guidance to the Arctic States when implementing the global obligations to establish MPAs. Furthermore, although not legally binding, by adoption of the Framework, the Arctic States have demonstrated political commitment to establishing a network of MPAs in the Arctic. Thus, positive steps to realise a Pan-Arctic Network of MPAs have been taken. All the Arctic States have legal and policy frameworks in place for designating MPAs within their maritime zones. Furthermore, most Arctic States have established some MPAs, but are still in the early stages when it comes to connecting and managing MPAs as ecologically functional MPA

58 Ibid., 11. 59 Lalonde, “Marine Protected Area Networks at the Poles,” 362. 60 Framework for a Pan-Arctic Network of Marine Protected Areas, 9. 61 Ibid., 9. 62 Ibid., 17. 63 Lalonde, “Marine Protected Area Networks at the Poles,” 369. 64 Framework for a Pan-Arctic Network of Marine Protected Areas, 11. For more on this, see Jakobsen, Marine Protected Areas in International Law, 241–43.

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networks.65 In 2016, around 4.7% of the Arctic waters were protected. Some parts of the Arctic marine ecosystem were poorly protected in 2016.66 As pointed out by Barry et al. this falls short of the Aichi biodiversity target 11 goal.67 Also, the MPAs in this region are dominated by several large areas, where some parts of the marine Arctic are poorly protected.68 As an example of MPAs adopted in marine spaces under national jurisdiction in the Arctic region, the MPAs adopted by Norway in the waters off of Svalbard could be mentioned. About 87% of the territorial sea of the Svalbard archipelago is protected.69 The legal basis for these MPAs is the Svalbard Environmental Act,70 which aims at achieving a “virtually untouched environment.” The regulations on the MPAs include restrictions on shipping, pollution, and disturbance of the flora and fauna. Commercial f isheries are also prohibited in the MPAs. Of particular interest is a ban for vessels to bring and use heavy fuel, which is adopted in f ive of the MPAs that are adopted in the territorial sea of Svalbard. No MPAs are so far adopted in the ABNJ of the Arctic.71 A legally binding agreement to prevent unregulated high-seas f isheries in the Central Arctic Ocean (CAO) has, however, been negotiated and concluded recently by the Arctic Ocean coastal States, as well as f ive other f ishing actors (China, Iceland, Japan, Korea and the EU).72 With this agreement, the parties oblige themselves not to initiate commercial f ishing in the CAO high seas until there is better knowledge about the f ish stocks in the CAO. This does not mean that the high seas in the CAO is protected as an MPA, but the parties to this agreement have demonstrated a coordinated precautionary approach to f isheries in this area.73

MPAs in the Antarctica The Antarctic Treaty is the core of the Antarctic Treaty System.74 The contracting parties to the Antarctica Treaty are, according to Article IX para. 1 (f ), under the responsibility to consult and cooperate in recommending additional measures for the “preservation and conservation of living resources” in the Antarctic Treaty Area. This responsibility has been complied with through measures and recommendations adopted by the Antarctic Treaty consultive meeting (ATCM).75 Further other separate

65 PAME MPA-Network Toolbox. 66 Indicator_Report_on_Protected_Areas_.pdf (pame.is) (Last visited June 2021). 67 Tom Barry, Hólmgrímur Helgason, and Soffía Guðmundsdóttir, “Arctic Protected Areas in 2017: Status and Trends,” Biodiversity 18, no. 4 (2017): 186, 189. 68 Ibid. 69 www.npolar.no/no/arktis/svalbard/ (last visited September 2017). Norway’s sovereignty over the Svalbard archipelago was recognised in the Treaty Concerning the Archipelago of Spitsbergen, 1920, 2 LNTS 7 (the Svalbard Treaty). For more on Svalbard see Chapter 28 of this volume. 70 Act of June 15, 2001, No. 79 Relating to the Protection of the Environment in Svalbard (The Svalbard Environmental Protection Act). 71 A proposal of an Arctic Ice High Seas MPA was put forward to OSPAR in 2015 but did not gain enough support, see Jakobsen, Marine Protected Areas in International Law, 231–14. 72 Agreement to Prevent Unregulated Fisheries in the Central Arctic Ocean, Ilulissat, October 3, 2018. Entered into force June 25, 2021. Further, see Chapter 16 of this volume. 73 See also Warner, “Principles of Environmental Protection at the Poles,” 335. 74 Erika Lennon, “A Tale of Two Poles: A Comparative Look at the Legal Regimes in the Antarctic and the Arctic,” Sustainable Development Law & Policy 8, no. 3 (2008): 32. 75 This responsibility has been complied with through measures and recommendations adopted by the Antarctic Treaty Consultive Meeting (ATCM). Ricardo M. Roura, Frits Steenhulsen  & Kees Bastmeijer, “The Shore is the Limit: Marine Spatial Protection in Antarctic under Annex V of the Environmental Protocol to the Antarctic Treaty,” The Polar Journal 3, no. 2 (2018): 289, 289.

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international agreements have been developed and signed, including the CAMLR Convention. Moreover, with the adoption of the Madrid Protocol, environmental protection in this region has been further strengthened for both terrestrial and marine environments.76

The Madrid Protocol and MPAs The Madrid Protocol aims to strengthen the Antarctic Treaty and to enhance the protection of the protection of the Antarctic environment and dependent and associated ecosystems.77 Even though the Protocol was negotiated before the CBD, it contains a similar integrated approach to the protection of the Antarctic environment.78 The objective of the Protocol is expressed in Article 2, where it follows that the contracting parties “commit themselves to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems and hereby designate Antarctica as a natural reserve, devoted to peace and science.” This natural reserve covers both the terrestrial and the marine environment south of 60 degrees south latitude.79 The Protocol does not def ine the meaning of the term ‘natural reserve’ in Article 2. The precise meaning of this wording, and which obligations or restrictions that follow from this wording, is not specif ied.80 To ensure the comprehensive protection of the Antarctic environment and ecosystems, the Protocol also sets out basic principles in Article 3 that apply to all human activities in Antarctica.81 A core provision of the Protocol is Article 7, which prohibits “all activities relating to mineral resources, other than scientif ic research.” With this ban, a contentious discussion on whether mining was acceptable in Antarctica or not was ended.82 The Protocol includes f ive annexes that deal more specif ically with issues, such as environmental impact assessments (Annex I) and the conservation of Antarctic flora and fauna (Annex II). Of importance for the protection of marine biological diversity by the use of MPAs and other areabased management measures is Annex V on area protection and management. It follows from Annex V, Article 2, that “any area, including any maritime area, may be designated as an Antarctic Specially Protected Area or an Antarctic Specially Managed Area.” Moreover, Article 2 establishes that “activities in those areas shall be prohibited, restricted or managed in accordance with Management Plans adopted under the provisions of this Annex.” An ASPA is, according to Article 3 (1), an area which is designated to protect “outstanding environmental, scientif ic, historic, aesthetic or wilderness values, any combination of those values, or ongoing or planned scientif ic research.” Criteria for selection of areas as ASPAs which correspond to the values included in Article 3 (1) are further elaborated in Article 3 (2). Here it is stated that the parties shall seek to identify and to “include in the series” of ASPAs areas of qualities that are listed in litra (a) to (i). Of relevance and importance for the protection of marine biodiversity is, in particular,

76 Roura et al., “The Shore is the Limit: Marine Spatial Protection in Antarctic under Annex V of the Environmental Protocol to the Antarctic Treaty,” 290. 77 Protocol, Preamble. See also Chapters 11 and 22 of this volume. 78 Warner, “Principles of Environmental Protection at the Poles,” 336. 79 Protocol Article 1 clarif ied that the “Antarctic Treaty Area” means the area to which the provisions of the Antarctic Treaty apply in accordance with Article VI of that Treaty.” 80 Catherine Redgwell “Environmental Protection in Antarctica: The 1991 Protocol,” International and Comparative Law Quarterly 43, no. 3 (1994): 599, 606. 81 For more on the Madrid Protocol, see Chapters 11 and 22 of this volume. 82 Rothwell, “Polar Environmental Protection and International Law: The 1991 Antarctica Protocol,” 596; Redgwell, “Environmental Protection in Antarctica: The 1991 Protocol,” 609.

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Article 3 (2) (b), which includes “representative examples of major terrestrial, including glacial and aquatic, ecosystems and marine ecosystems” as ASPAs. An ASMA may according to Article 4 (1) be designated in any area where “activities are being conducted or may in the future be conducted” to “assist in the planning and co-ordination of activities, avoid possible conflicts, improve co-operation between Parties or minimize environmental impacts.” These areas may include “areas where activities pose risks of mutual interference or cumulative environmental impacts” and “sites or monuments of recognised historic value.”83 An important distinction between the two types of protected areas is that whereas States “shall seek” to adopt ASPAs according to Article 3(2) of Annex VI (indicating a binding obligation), an ASMA is an optional tool for coordination and planning of activities. The designation procedures for ASPAs and ASMAs are set out in Article 6. While any Party, the Committee, the Scientif ic Committee for Atlantic Research or the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) according to Article 5 (1) may propose an area for designation as an ASPA or an ASMA, it is the ATCM that is authorised to designate the protected areas.84 It must, however, be noted that as follows from Article 6 (2) “no marine area shall be designated” as an ASPA nor an ASMA without the approval of the CCAMLR. The CAMLR Convention is thus the primary instrument when it comes to the designation of MPAs in Antarctica. The ATCM Decision 9 (2005) clarif ies the interpretation and implementation of Article 6 (2).85 It follows from the decision that a prior approval of CCAMLR before their adoption of ATCM is required for draft management plans that contain marine areas in which harvesting or potential harvesting of marine living resources may be affected or where there are provisions that might prevent of restrict CAMLR related activities.86 An ASPA or ASMA is proposed by submitting a proposed management plan.87 It furthermore follows from Article 5 (2) that the proposed area “shall be of a suff icient size to protect the values for which the special protection or management is required.” The further content of the management plan is set out in Article 5 (3), which states that the plan shall, if appropriate, include a description of the value for which special protection or management is required, the aims or objective of the management plan, and management activities which are undertaken to protect the values. Article 5 (3) (f) opens for zoning within the protected areas “in which activities are to be prohibited, restricted or managed for the purpose of achieving the aims and objectives” that are set out in the management plan. Zones are thus parts of the ASPAs and ASMAs and could be scientif ic zones and restricted zones, but also strict prohibited zones.88 Entry into an ASPA shall according to Article 3 (4) be prohibited except in accordance with a permit issued under Article 7. Article 7 (1) requires each party to appoint an appropriate authority to issue permits to enter and engage in activities within an ASPA. Such a permit is not required for the ASMA, see Article 4 (3). Yet an ASMA could, as set out in Article 4 (4), include one or more ASPAs in which the entry into is prohibited except in accordance with a permit issued under Article 7.

83 Protocol, Annex V, Article 4 (2) (a) and (b). 84 Protocol, Annex V, Article 6 (1). 85 Roura et al., “The Shore is the Limit: Marine Spatial Protection in Antarctic under Annex V of the Environmental Protocol to the Antarctic Treaty,” 289, 300. 86 ATCM Decision 9 (2005), “Marine Protected Areas and Other Areas of Interest to CCAMLR.” 87 Protocol, Annex V, Article 5 (1). Management plan is def ined in Article 1. 88 Roura et al., “The Shore is the Limit: Marine Spatial Protection in Antarctic under Annex V of the Environmental Protocol to the Antarctic Treaty,” 295.

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Annex V areas consists of 74 ASPAs and 7 ASMAs.89 Most ASPAs were designated before 2002 – i.e. before Annex V entered into force.90 The ASMAs on the other hand have all been designated after 2002.91 There are currently 20 marine or partly marine ASPAs and three marine ASMAs.92 Of these, there are six wholly marine ASPAs, which cover a total area of approximately 1,631 km2. The management plans for these six ASPAs were considered and approved by CCAMLR. A further 14 ASPAs contain a marine component, bringing the total marine area within ASPAs to approximately 1,970 km2.93 Five of the partly marine ASPAs have also been considered and approved by CCAMLR. Other ASPAs with small marine components have not triggered the requirements under ATCM Decision 9 (2005) for approval by CCAMLR.94 It is broadly acknowledged that the adoption of the Protocol was a success in terms of environmental protection.95 Yet Bastmeijer points out, Despite these successes during the past 20 years, strong arguments exist to support the view that the ATCM has not been fully successful in keeping up with the high standards agreed in the Protocol, including the comprehensive protection of the Antarctic environment.96 Research has demonstrated that there is a general lack of consideration of wilderness values in the practice under the Protocol.97 As for the protection of marine environment and values, Roura et al. conclude on the basis of their analyses of designated ASPAs and ASMAs that most of the boundaries of the protected areas stop at the shore and that only a limited number of them have a marine component.98 Furthermore, only a few of the ASPAs with a marine component include restrictions on movement within the areas, and harvesting within the protected areas is only mentioned in two of the managements plans.99 There is thus a limited use of the tools available in Annex V to provide for additional protection of the marine environment and its ecosystems.100

The CAMLR Convention The CAMLR Convention applies to marine living resources in its area of application.101 The area of application covers all marine biodiversity south of the Antarctic Convergence, which extends beyond the Antarctic Treaty area.102

 89 Register_e (2).pdf (information available at the web page of the Antarctica Treaty Secretariat.  90 Roura et al., “The Shore is the Limit: Marine Spatial Protection in Antarctic under Annex V of the Environmental Protocol to the Antarctic Treaty,” 304.  91 Ibid., 301–10.  92 Information based on the report “Summary of the work of the CEP on MPAs 1998–2019.”  93 Draft report on the State of the Antarctic Protected Area System, Prague Czech Republic, July 27–28, 2.  94 Ibid.  95 Kees Bastmeijer, “Introduction: The Madrid Protocol 1998–2018. The Need to Address ‘the Success Syndrome,’ ” The Polar Journal 8, no. 2 (2018): 230, 230–31.  96 Ibid., 234.  97 Ibid. For wilderness protection in the polar regions, see chapter 15 of this volume.  98 Roura et al., “The Shore is the Limit: Marine Spatial Protection in Antarctic under Annex V of the Environmental Protocol to the Antarctic Treaty,” 311.  99 Ibid., 305. 100 Bastmeijer, “Introduction: The Madrid Protocol 1998–2018. The Need to Address ‘the Success Syndrome,’ ” 235. 101 CCAMLR Article I. 102 Ibid., Article I (1). See also Warner, “Principles of Environmental Protection at the Poles,” 336.

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The objective of the CAMLR Convention is the conservation of the Antarctic marine living resources.103 Article II (2) of the CAMLR Convention specif ies that the term conservation also includes “rational use.” The term “rational use” is not def ined in the convention. A legal interpretation of the wording “conservation” in CCAMLR indicates that both positive conservation measures and negative measures that restrict or prohibit human activities are allowed. Yet the term “rational use” signals that also commercial and economic considerations are of relevance when measures for conservation of marine living resources are planned and adopted. Nevertheless, the term “conservation” is broad enough to include the use of MPAs within which harvesting is restricted or even prohibited.104 The importance of establishing MPAs in accordance with Article II of the CAMLR Convention, which includes rational use, is also explicitly set out in the preamble and Article 2 of the Conservation Measure 91–04.105 Lalonde points out that while the objective of the network of MPAs as set out in the Conservation Measure 91–04 primarily has ecological objectives, one result of the emphasis on rational use as part of conservation is that economic objectives have been given weight in the process of designating and managing the network.106 A particular characteristic of the CAMLR Convention is that while providing for conservation of management of the Antarctic marine living resources, the convention also highlights the ecosystems of which they are part. It is emphasised in legal literature that the CAMLR Convention is the instrument that has gone furthest in integrating biodiversity and ecosystem considerations into its conservation and management measures.107 The Convention clearly acknowledges the interactions between species and ecosystems. Article I (1) explicitly states that the convention applies to marine living resources “which forms part of the ecosystem.”108 Moreover, Article II (3) sets out principles for conservation and management that any harvesting and associated activities shall be conducted in accordance with. Through these principles, the CAMLR Convention adopts a precautionary and ecosystem-based approach to the conservation of the Antarctic marine living resources.109 To implement the conservation principles, including the ecosystem and precautionary approaches, the CCAMLR has adopted a variety of measures such as the banning of trawling for particular species and a framework for MPAs.110 The general framework for the establishment of CCAMLR MPAs is adopted as a General Measure in accordance with Arctic IX of the CAMLR Convention.111 The Conservation Measure 91–04 (2011) was as stated in its preamble adopted as a response to the global target of establishing a

103 CAMLR Convention Article II (1). 104 Danielle Smith and Julia Jabour, “MPAs in ABNJ: Lessons from Two High Seas Regimes,” ICES Journal of Marine Science 75, no. 1 (2018): 417–25, 419. This also corresponds to the interpretation of conservation in CBD, see Jakobsen, Marine Protected Areas in International Law, 91–95. 105 Conservation Measures CM 91–04 (2011), General framework for the establishment of CCAMLR Marine Protected Areas. 106 Lalonde, “Marine Protected Area Networks at the Poles,” 363. 107 Harrisson, Saving the Oceans Through Law, 190. 108 The Antarctic marine ecosystem is def ined in Article I (3) as the “complex of relationships of Antarctic marine living resources with each other and with their physical environment.” 109 The CAMLR Convention is the f irst treaty that incorporate ecosystem and precautionary approaches into the conservation and management of marine living resources, see Adriana Fabra and Virginia Gascón, “The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Ecosystem Approach,” The International Journal of Marine and Coastal Law 23 (2008): 567, 574. 110 Warner, “Principles of Environmental Protection at the Poles,” 338. For more on CCAMLR, the main decision body under the CAMLR Convention, see chapter 16 in this volume. 111 General Measures 91–04 (2011).

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representative network of MPAs by 2012. The starting point for the Conservation Measure is that MPAs shall be adopted and implemented in accordance with LOSC.112 Article 2 (i) to (vi) establishes a range of objectives that the MPAs shall be established to contribute to achieve. It is acknowledged in the Preamble that “individual MPAs alone will not be able to achieve all of the desired objectives for MPAs in the CAMLR Convention area,” but that they together should be able to do so. The objectives of MPAs include the following: 1. the protection of representative examples of marine ecosystems, biodiversity and habitats at an appropriate scale to maintain their viability and integrity in the long term; 2. the protection of key ecosystem processes, habitats and species, including populations and lifehistory stages; 3. the establishment of scientif ic reference areas for monitoring natural variability and long-term change or for monitoring the effects of harvesting and other human activities on Antarctic marine living resources and on the ecosystems of which they form part; 4. the protection of areas vulnerable to impact by human activities, including unique, rare or highly biodiverse habitats and features; 5. the protection of features critical to the function of local ecosystems; and 6. the protection of areas to maintain resilience or the ability to adapt to the effects of climate change.113 MPAs may thus be designated for a variety of purposes, such as taking representative examples of marine ecosystems, key ecosystem processes, scientif ic reference areas, areas vulnerable to impact by human activities, and maintaining resilience and adapting to climate change effects. CCAMLR shall, pursuant to the Conservation Measure Article 3, establish the MPAs by adopting conservation measures. These conservation measures shall include specif ic objectives; spatial boundaries; activities that are restricted, prohibited or managed within the MPA; priority elements for a management plan; and period of designation.114 The management plan will, once developed and adopted by the Commission, “be annexed to the conservation measure and will include management and administrative arrangements for achieving specif ic objectives of the MPA.”115 The general framework furthermore contains regulations on research and monitoring activities, as well as the review and evaluation of the MPA.116 Two MPAs are so far adopted under the CAMLR Convention. The proposal of the f irst MPA, the South Orkney Island MPA (SOI MPA) was put forward by UK and the MPA was adopted in 2009 by CCAMLR. This was also the world’s f irst high-seas MPA. The SOI MPA was adopted by the CCAMLR to contribute to the goal and work program of the scientif ic committee of developing a network of MPA with the aim of conserving marine biodiversity.117 The CCAMLR furthermore stated that the area was identif ied as an area of high conservation importance in need of protection.118

112 Ibid., Article 1. 113 Ibid., Article 2, (i) to (vi). 114 Ibid., Article 3. 115 Ibid., Article 4. 116 Ibid., Articles 5 and 8. 117 Conservation measures 91–03 (2009), Preamble. 118 Ibid.

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The proposal met little resistance from the CCAMLR members, which could be explained by the location and boundaries of the area which meant that the MPA was not interfering with f isheries interests.119 Some issues were, however, were raised by certain CAMLR member States on legal competency and scientif ic justif ication for establishing MPAs.120 Relatively strict management measures are adopted within the MPA. All f isheries, except scientif ic f ishing research activities, are prohibited within the area. Moreover, no discharges and no dumping of any type of waste by any f ishing vessel shall take place within the def ined area. Additionally, no transshipment activities that involve f ishing vessels shall take place and f ishing vessels in transit is encouraged to inform of their intended transit prior to their arrival.121 CCAMLR designated the Ross Sea MPA as the world’s largest MPA on the high seas in 2016.122 The Ross Sea region MPAs was originally proposed in two separate proposals by New Zealand and the US.123 First, in 2016, after f ive years of negotiation, Russia also agreed to the establishment of the Ross Sea region MPA.124 The purpose of the Ross Sea region marine protected area is to implement Articles IX (1) (f) and (2) (g) of the CAMLR Convention. Furthermore, the aim is to contribute to a representative system of CAMLR MPAs and hence to the global target to achieve a representative system of MPAs by 2012.125 The MPA covers 1.55 million km2 and is split in into different zones with specif ic purposes. The MPA is designed to contribute to 11 objectives, which are listed in the Conservation Measure 91–05 (2016), Article 3 (i) – (iv). These include (i) to conserve “natural ecological structure, dynamics and function throughout the Ross sea region”; (ii) “to provide reference area for monitoring variability and long-term change”; (iii) to promote research and other scientif ic activities; and (iv) “to conserve biodiversity by protecting representative portions of benthic and pelagic marine environments in areas where fewer data exists to def ine more specif ic protection objectives.” Further details on the specif ic objectives are set forth in the MPA Management Plan (Annex 91–05/B).126 The MPA is divided into three zones: the General Protection Zone, a Special Research Zone and a Krill Research Zone.127 The starting point is set out in the Conservation Measures 91–05, Article 6, which states that all research f ishing within the General Protection Zone shall be carried out in accordance with conservation measures adopted under CCAMLR and with the specif ic objectives of the MPA. Within the Krill Research Zone, research f ishing for all species, except for krill, is permitted due to same conditions.128 It follows further from Article 7 of the Conservation Measure 91–05 that f ishing activities are, with the exceptions described in Articles 8, 9 and 21, prohibited within the MPA. This starting point applies to all zones within the MPA. Articles 8 and 9 in Conservation Measure 91–05 set out exceptions which, under specif ic circumstances and limitations, allows commercial f ishing for toothf ish (Dissotichus) and krill (Euphausia superba) within the Special Protection Zone and the Krill

119 Smith and Jabour, “MPAs in ABNJ: Lessons From Two High Seas Regimes,” 418. 120 Ibid., 419. 121 Conservation Measure 91–03 (2009), Articles 2–5. 122 CCAMLR Conservation Measures 91–05 (2016), Ross Sea region marine protected area. See also Scott, “MPAs in the Southern Ocean under CCAMLR. Implementing SDG 14.5,” 91. 123 Smith and Jabour, “MPAs in ABNJ: Lessons From Two High Seas Regimes,” 419. 124 Ibid. 125 Conservation Measure 91–05 (2016), preamble. 126 Ibid., Article 4. 127 Ibid., Article 5. 128 Conservation Measure 91–05 (2016), Article 6.

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Research Zone. In the Special Research Zone, commercial f ishing for toothf ish may take place, within the conservation measures adopted under CCAMLR and within catch limits prescribed in paragraph 8.129 Likewise commercial krill f isheries may take place within the Special Protection Zone and the Krill Research Zone in accordance with the objectives of the Ross Sea MPA and in accordance with the conservation measures adopted under the CCAMLR.130 Furthermore, in addition to the restrictions in the f ishing activities, no f ishing vessel may engage in transshipment activities, expect in emergency situations. Additionally, f ishing vessels and vessels conducting scientif ic research activities should avoid dumping or discharging wastes.131 The CCAMLR has adopted a variety of innovative measures to implement an ecosystem approach to the conservation of marine living resources and has also been relatively successful in regulating the Antarctic f isheries.132 The development of a general framework for MPAs is an important and necessary step in promoting a network of MPAs in the region. Also, with the adoption of the SOI MPA and Ross Sea region MPA, signif icant progress in protecting the marine biological diversity has been made. This is particularly the case when it comes to implementing area-based management measures beyond national jurisdiction. The designation of the MPAs in the Southern Ocean has, as pointed out by Scott, demonstrated the challenges in implementing MPAs beyond national jurisdiction. This experience may provide important knowledge and understanding for States in light of the negotiations for the potential new treaty for conservation and sustainable use of biological diversity beyond national jurisdiction.133 Yet also after the adoption of the Ross Sea MPA, questions related to the legitimacy of the MPA, such as scientif ic advice and monitoring requirements, have been raised.134 There are currently ongoing negotiations for the designation of three more protected areas in the Southern Ocean: in East Antarctica, the Weddell Sea and off the Antarctic Peninsula.135 While the proposals have broad support, the CCAMLR members were unable to reach consensus at the meeting of the Commission in 2020 as China and Russia did not support the proposals that were put forward.136 An explanation of the slow process of designation MPAs is the requirement of consensus from all parties when designating MPAs.137 Even if most members of the CCAMLR support a proposal for a new MPA, one State may object and block the proposal. Therefore, the successful designation of MPAs in the Antarctic will also in the future require negotiations and compromises, as was also the case with the Ross Sea MPA. A consequence of this is that political interests and pragmatic politics may overshadow scientif ically documented needs for addition protection of certain areas.

129 Ibid., Article 8 (1), which refers to Conservation Measure 41–09 limits on the exploratory f ishery for Dissostichus mawsoni in Statistical Subarea 88.1. 130 Ibid., Article 9, which refers to Conservation Measures 51–04 (2016) for exploratory f isheries for Euphausia superba in the Convention Area in the 2016/17 season. 131 Ibid., Articles 10 and 11. 132 Warner, “Principles of Environmental Protection at the Poles,” 338. See also Rosemary Rayfuse, “Protecting Marine Biodiversity in Polar Areas beyond National Jurisdiction,” RECIEL 17, no. 1 (2008): 3, 9. 133 Karen N. Scott, “MPAs in the Southern Ocean under CCAMLR. Implementing SDG 14.5,” The Korean Journal of International and Comparative Law 9, no. 1 (2021): 84, 84. 134 Ibid., 97. 135 Report of the Thirty-seventh Meeting of the Commission (Hobart, Australia, October 22 to November 2, 2018), 21–25. 136 Report of the Thirty- Ninth Meeting of the Commission (Virtual meeting October 27–30, 2020), 38–44. See also Scott, “Area-based Protection beyond National Jurisdiction,” 170. 137 Bastmeijer, “Introduction: The Madrid Protocol 1998–2018. The Need to Address ‘the Success Syndrome,’ ” 239; Scott, “MPAs in the Southern Ocean under CCAMLR. Implementing SDG 14.5,” 105.

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The Relationship Between the Framework of MPAs Under the Madrid Protocol and the CCAMLR/Status on MPAs There is a substantial overlap between the Protocol and the CAMLR Convention and their frameworks for MPAs both in terms of objectives and aims and in terms of application area. Still, as pointed out by Roura et  al., the underlying notions or philosophy of the two instruments are diverging. Whereas the Protocol designates the Antarctica as a “natural reserve” and mandates the parties to protection of the marine environment, the CAMLR Convention has a stronger commercial component.138 The parties have, however, in both the instruments made commitments to adopt area-based conservation, such as MPAs, and they are thus mutually supportive of the notion of spatial protection. At the same time with overlapping and diverging philosophies, mandates, and diverse bodies with different responsibilities, there is also a risk of gaps and lack of coordination, which may result in a less effective implementation of the legal framework for MPAs. Certain mechanisms and regulations in the two treaties are, however, developed to strengthen legal coherence and consistency. First, Annex V of the Protocol establishes in Article 6 (2) that the CAMLR Convention is the primary instrument as it states that no ASPAs or ASMAs are adopted without the approval of the CCAMLR.139 Similarly, Article V (2) of the CAMLR Convention aims at ensuring coherency as it states that parties that are not parties to the Antarctic Treaty must acknowledge the obligations and responsibilities to protect the environment and also, when appropriate, abide to the environmental protocol and its annexes and measures adopted under the Protocol. Moreover, CCAMLR has adopted a conservation measure that requires the parties “to ensure that their f ishing vessels licensed in accordance with (CM 10–02) are aware of the location and relevant management plan of all designated ASPAs and ASMAs which include marine areas.” The reasoning for this conservation measure, is the concern that potential harvesting within the protected areas may threaten the goals set out in the management plans of these areas.140 Yet it is emphasised in legal literature that there are tensions between the ATCM and the CCAMLR. Fabra and Gasgon argue that a narrow interpretation of the obligation in CAMLR Convention Article V (2) to abide to the environmental measures recommended by the ATCM, which include the ASPAs and ASMAs, have hindered a harmonised approach to the establishment of MPAs in the Antarctica.141 Other examples of the diff iculties in coordinating efforts under the two instruments are the long-standing and unresolved discussion on harmonising better the ASPAs under Annex V to the Protocol that are located within the Ross Sea region MPA.142 This implies that there is a need for more coordination and harmonisation between the Annex V areas and the CAMLR MPAs, to ensure a coherent protection of the marine areas and biological diversity.143

138 Roura et al., “The Shore is the Limit: Marine Spatial Protection in Antarctic under Annex V of the Environmental Protocol to the Antarctic Treaty,” 298. 139 CAMLR Convention Articles . . . and the Protocol, Annex V, Article 6. 140 CM 91–02 (2012), Protection of the values of Antarctic Specially Managed and Protected Areas, Preamble. 141 Fabra and Gascon, “The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Ecosystem Approach,” 593. 142 Roura et al., “The Shore is the Limit: Marine Spatial Protection in Antarctic under Annex V of the Environmental Protocol to the Antarctic Treaty,” 310–11. 143 Ibid., 310–11 and Bastmeijer, “Introduction: The Madrid Protocol 1998–2018. The Need to Address ‘the Success Syndrome,’ ” 238.

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Conclusions Important efforts have been made, and some progress has been achieved when it comes to developing a network of MPAs in the polar regions. States are cooperating in both polar regions to comply with the global obligations to conserve marine biological diversity and to the global commitment, set out in SDG 14 (5). The analyses have shown that there are both similarities and differences when it comes to protection of marine biological diversity and the use of MPAs in the polar regions. Whereas Antarctica is governed by its own comprehensive legal system, where the States territorial claims are suspended under Article IV of the Antarctic Treaty, the Arctic Ocean is surrounded by f ive countries who have territorial sovereignty and sovereign rights in the adjacent ocean areas. The two different governance systems have led to two different approaches when it comes to the incorporation of the global commitments to protect the marine biological diversity by using MPAs. While legally binding frameworks for MPAs apply in Antarctica, the framework for MPAs in the Arctic is a soft law approach that is not legally binding upon the States. This is nothing new, but the analyses have also revealed that irrespective of the different legal status of the regional frameworks for MPAs, the regions are struggling with similar challenges. The progress of establishing networks appears to be just as slow in both regions. MPAs are in themselves a complex conservation tool, and there are number of challenges both when it comes to the selection and management of MPAs. Managing human activities and multiple uses across both jurisdictional and administrative boundaries represent a challenge for successful and effective MPAs. The fragmented legal situation with a range of instruments and institutions with different responsibilities and mandates represent another challenge may result in less effective MPAs. These are challenges that apply in both regions. In the Arctic region, a network of MPAs depends on the efforts of the Arctic States. Yet here, there is also lack of a body or a mechanism that can help in coordinating the initiatives from the different States, to make sure that the national MPAs constitute a connected and effective network of MPAs in the Arctic. Such mechanisms are more developed in Antarctica, but in spite of this there is a lack of coordination between the two binding instruments and their bodies, which may diminish the effectiveness of the Protocol and CCAMLR, which both mandate and provide for the use of MPAs.144 In the end it, and even though the designation of MPAs is regulated on the basis of legally binding instruments in Antarctica, the establishment of MPAs in both regions comes down to the political will of the States. This is evident in the Arctic, where the framework for MPAs in based on soft law. But in reality, the process to establish new MPAs has proven diff icult in Antarctica with long negotiations and major compromises since a decision of a new MPA requires consensus from all members.

144 See also Lalonde, “Marine Protected Area Networks at the Poles,” 369.

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15 WILDERNESS PROTECTION IN THE POLAR REGIONS* Antje Neumann

Introduction Commonly, the Arctic and the Antarctic are known for their vastness, complete or nearly complete assemblages of native flora and fauna highly adopted to harsh climate conditions, and the absence of major human infrastructure in most of the territory. These characteristics – summarised under the headings of large scale, natural intactness and undevelopedness1 – are at the same time important characteristics of wilderness. In addition, both regions provide increasingly rare opportunities for being close to and almost alone in nature – a quality that is also associated with solitude and especially referred to in Western-oriented wilderness laws and management approaches.2 For centuries, this wilderness has attracted explorers and adventurer be it for the exploitation of natural resources (especial marine mammals), for tourism purposes or for the sake of scientif ic exploration. During the last decades, however, human activities have signif icantly intensif ied and diversif ied. In the Arctic, this relates especially to the extraction of oil, gas and mineral resources, as well as to shipping, while increasing f ishing activities and a rise of tourism are common patterns observed at various places in both regions.3 As a result, pressures on polar wilderness expand continuously and negative impacts have been evident on many occasions (most of them recorded at a local and sub-regional scale). In addition, climate change is strongly relevant to the wilderness in

* From a structural point of view, this chapter is partly based on Kees Bastmeijer’s article “Protecting Polar Wilderness: Just a Western Philosophical Idea or a Useful Concept for Regulating Human Activities in the Polar Regions?,” published in The Yearbook of Polar Law in 2009, which has been the f irst comparative analysis of the legal regimes for wilderness protection in the Arctic and the Antarctic at that time. In substantial terms, this contribution refers in part to the author’s monography “Wilderness Protection in Polar Regions: Arctic Lessons Learnt for the Regulation and Management of Tourism in the Antarctic,” published by Brill/Nijhoff in 2020. This applies especially to the legal means of wilderness protection in Antarctica that are analysed in more detail in that publication. 1 These characteristics of wilderness are individually discussed in the second section of this chapter. It should be noted that the terms “characteristics,” “qualities,” “criteria” are used interchangeably throughout this text to ascribe certain attributes to wilderness. 2 See for the characteristic of “solitude” also the second section of this chapter. 3 See Chapters 7, 16, 17 and 18 of this volume. DOI: 10.4324/9781003404828-18 240

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each of the regions, specif ically in relation to the quality of natural intactness, since it is projected to “include [among others] further habitat contraction and changes in abundance for polar species.”4 In response to these developments, states and other stakeholder involved in Arctic and Antarctic governance have reacted to some extent and established various instruments to protect wilderness and to minimise related negative impacts. However, the legal frameworks and governance systems of both regions differ signif icantly: in the area def ined by the Antarctic Treaty,5 there is no generally recognised state sovereignty anywhere.6 Instead, the region is governed by means of “sovereign neutrality”7 that does not favour any form of territorial sovereignty on the continent. In contrast, the Arctic with all of the land area and much of its waters falls under the sovereignty and the sovereign rights of the eight Arctic States – Canada, the Kingdom of Denmark, Finland, Iceland, Norway, Sweden, the Russian Federation and the United States.8 In consequence, the nation states themselves determine in the framework of their national jurisdictions the laws and regulations applicable within their Arctic territories. Due to these different sovereignty settings, the legal measures towards wilderness protection differ not only from one Arctic State to the other but also diverge notably from those taken in the Antarctic legal context. In addition, different priorities are set on the political, economic and social agendas referring to the Arctic and in the Antarctic. The Arctic, in contrast to the Antarctic, is a region populated by roughly 4 million inhabitants, among them many Indigenous communities.9 Their ideas and concepts of environmental protection in general and of wilderness protection in particular vary widely and may partly or fully diverge from international agendas. In this regard, the Arctic Council and its potential role concerning wilderness protection is relevant. Following the Arctic Environmental Protection Strategy of 1991, off icially established in 1996, the Arctic Council is still considered to be the predominant intergovernmental forum in the region.10 Its arrangements for circumpolar cooperation in the f ield of environmental protection and sustainability might be thus especially relevant for the agenda setting towards wilderness protection in the region. Against this background, the chapter elaborates on the legal status of wilderness protection in the polar regions and particularly on the question to what extent wilderness receives protection by the present legal and governance regimes. In doing so, it f irst gives attention to the concept of wilderness in general and to its main characteristics emphasised by scholarly literature and international

4 P. Michael et al., “Polar Regions,” in IPCC Special Report on the Ocean and Cryosphere in a Changing Climate, eds. HansOtto Pörtner et al. (2019), accessed July 14, 2021, www.ipcc.ch/srocc/chapter/chapter-3-2/. See also Chapter 13 of this volume. 5 The Antarctic Treaty was signed in Washington on December 1, 1959, and entered into force on June 23, 1961, accessed July 15, 2021, www.ats.aq/e/antarctictreaty.html. Article 6 of the Antarctic Treaty def ines the geographical scope as “the area south of 60° South Latitude, including all ice shelves.” 6 Jill M. Barrett, “The Antarctic Treaty System,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar Publishing, 2020), 40. 7 Ibid., 42. 8 Timo Koivurova, “Environmental Protection in the Arctic and Antarctica,” in Polar Law Textbook, ed. Natalia Loukacheva (Copenhagen: Nordic Council of Ministers, 2010), 28. In relation to the Kingdom of Denmark, state sovereignty also covers the territories of the Faroe Island and Greenland, even though both entities enjoy a high degree of self-government. 9 According to the Arctic Council, there are a total of four million inhabitants of the Arctic, including approximately 500,000 inhabitants who belong to Indigenous Peoples. Arctic Council’s website: https://arctic-council.org/en/about/ permanent-participants/, accessed July 14, 2021. 10 Koivurova, “The Arctic Council: An Intergovernmental Forum Facing Constraints and Utilizing Opportunities,” in The Routledge Handbook of the Polar Regions, eds. Mark Nuttall, Torben R. Christensen, and Martin Siegert (Abingdon: Routledge, 2018), 284. See also Chapter 21 of this volume.

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conservation policy. On this basis, some of the most distinctive features of Arctic and Antarctic wilderness in relation to wilderness in other parts of the world and in comparison to each other are identif ied. The chapter then focuses on the legal frameworks of wilderness protection in the Arctic and the Antarctic, respectively. This includes a brief historical genesis and an overview of the main regulatory provisions to protect polar wilderness. In the Arctic context, an emphasis is put on the individual legal approaches taken by the Arctic States domestically and on major policies of the Arctic Council relevant to wilderness protection at the regional level. In relation to the Antarctic, the focus is on the legal provisions provided by the Environmental Protocol to the Antarctic Treaty,11 its relevant annexes and their implementation. In respect of the latter, def iciencies and present debates are outlined. The chapter concludes with a f inal outline of the assessment and points outs some of the necessary steps to maintain and protect the wilderness in both regions.

Wilderness Def ined by Common Characteristics Wilderness, as considered in this chapter, is primarily a Western concept controversially discussed in literature and policy discourses. For wilderness enthusiasts, like the philosopher David Rothenberg, wilderness is understood as “our [humans’] original home, our [humans’] genetic mother, our [humans’] biological lifeline, our [humans’] earthy father, and our [humans’] future security.”12 For others, more critical towards the concept, it is seen entirely as “a cultural invention.”13 Indeed, after early conservation strategies had intended to primarily protect pristine and uninhabited areas, the concept received serious criticism. It was not only argued to have caused massive displacement of native inhabitants in the sake of creating off icial parks14 but has been also criticised, from the perspective of developing nations, as being another form of Western imperialism.15 More recent critique towards the wilderness concept originates from the f ield of “ecocriticism,” raising inter alia questions of environmental justice and drawing attention to social and racial inequalities.16 In the Arctic context, the concerns of Indigenous Peoples are most relevant to the concept of wilderness protection and are addressed in more detail in the following Arctic Council section. Given the diverse spectrum of discussions, international scholarly literature tends to emphasise either the subjective or the rather objective character of the term “wilderness.”17 According to a

11 The Protocol on Environmental Protection to the Antarctic Treaty was adopted in result of the second session of SATCM XI on October 4, 1991, and open to signature until October 3, 1992. It entered into force on January 14, 1998. Six annexes to the Protocol have meanwhile been adopted: Annex I to IV (Annex I on Environmental Impact Assessment, Annex II on Conservation of Antarctic Fauna and Flora, Annex III on Waste Disposal and Waste Management, Annex IV on Prevention of Marine Pollution) simultaneously on October 4, 1991; Annex V (Area Protection and Management) on October 17, 1991, and Annex VI (Liability Arising from Environmental Emergencies) on June 17, 2005. 12 David Rothenberg, “Introduction: Wildness Untamed: The evolution of an Ideal,” in Wild Ideas, ed. David Rothenberg (Minneapolis: University of Minnesota Press, 1995), ix. 13 William Cronon, “The Trouble with Wilderness; or, Getting Back to the Wrong Nature,” in Uncommon Grounds – Rethinking the Human Place in Nature, ed. William Cronon (New York: W.W. Norton & Co., 1996), 70. 14 Ibid., 78, 79. 15 Ramachandra Guha, “Radical American Environmentalism and Wilderness Preservation: A Third World Critique,” in The Great New Wilderness Debate, eds. Baird J. Callicott and Michael P. Nelson (Athens: University of Georgia Press, 1998), 231–45. 16 Ursula K. Heise, “The Hitchhiker’s Guide to Ecocriticism,” PMLA 121, no. 2 (2006): 508. 17 For such a distinction, see Kees Bastmeijer, “Protecting Polar Wilderness: Just a Western Philosophical Idea or a Useful Concept for Regulating Human Activities in the Polar Regions?” in The Yearbook of Polar Law, editor-in-chief Gudmundur Alfredsson and Timo Koivurova, special ed. David Leary (Leiden: Brill and Nijhoff Publisher, 2009), 75, 76.

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subjective emphasis, wilderness is often described as “a state of mind,” with the argument that “[t]here is no specif ic material object that is wilderness. The term designates a quality . . . that produces a certain mood or feeling in a given individual and, as a consequence, may be assigned by that person to a specif ic place.”18 Following this subjective focus, approaches to describing wilderness may differ and change according to the related social, cultural or religious background. In Western cultures, for example, wilderness is often ascribed as a source of spiritual renewal, a place for recreation and a place to escape the stress of modern life.19 This dimension is also expressed in Westernoriented domestic wilderness laws, which favour most often the “provision of solitude” as a specif ic element of wilderness experience people are seeking for. In contrast, objective approaches stress the objective qualities of wilderness. In an attempt to establish a common understanding, they describe “wilderness” as a real place with particular physical characteristics (or wilderness qualities) that qualify a natural area as “wilderness.”20 Also academic literature on wilderness law tends to use objective criteria to describe wilderness. According to Kormos’ handbook on international wilderness law and policy, wilderness is characterised as broadly “the most intact, undisturbed, wild natural areas – those last truly wild places that humans do not control and have not developed with roads or other industrial infrastructure,”21 and summarised by the qualities of wildness, (biological) intactness and remoteness from urban and industrial civilisation.22 Likewise, in the European legal context, three main wilderness qualities of an objective character are emphasised: (1) naturalness: native species and ecosystem and free-functioning natural processes; (2) undevelopedness: absence of roads, buildings, bridges, tracks, cables or other evidence of modern human society, as well as a minimum distance from such facilities and development; and (3) relatively large size (scale): often indicated by means of acres or hectares, the time needed to cross the area or related to effective ecological functioning.23 At the stage of international conservation policies, wilderness protection has been receiving attention primarily at the level of the International Union for Nature Conservation (IUCN). While the concept of wilderness was not included in the original set of IUCN area protection categories in the late 1970s, it was introduced as protected area and management Category Ib of the IUCN “Guidelines for Protected Area Management Categories” of 1994.24 Under this category (retained by the revised IUCN Guidelines of 2008), wilderness areas are def ined as “usually large unmodif ied or slightly modif ied areas, retaining their natural character and influence, without permanent or signif icant human habitation, which are protected and managed so as to preserve their natural

18 Roderick Frazer Nash, Wilderness and the American Mind (New Haven and London: Yale University Press, 2014), 1. 19 Cyril F. Kormos, A Handbook on International Wilderness Law and Policy (Golden, CO: Fulcrum Publishing, 2008), 13. 20 Bastmeijer, “Protecting Polar Wilderness,” 76. 21 Kormos, A Handbook on International Wilderness Law and Policy, 5. 22 Ibid., 9. From these three major wilderness qualities, Kormos draws to three essential characteristics wilderness areas generally have: biological (intactness in terms of natural habitat, faunal and floral assemblages and biological processes, including evolutionary processes and ecosystem services), social (wilderness as a social concept capturing human relationships with wild nature) and iconic (special status people around the world award to wilderness; e.g. religious, spiritual or sacrif icial signif icance) value. Ibid., 12–15. 23 Kees Bastmeijer, “Introduction: An International History of Wilderness Protection and the Central Aim of This Book,” in Wilderness Protection in Europe: The Role of International, European and National Law, ed. Kees Bastmeijer (Cambridge: Cambridge University Press, 2016), 33. 24 IUCN, Guidelines for Protected Area Management Categories, CNPPA with the assistance of WCMC (Gland/Cambridge: IUCN, 1994), accessed July 14, 2021, https://portals.iucn.org/library/ef iles/documents/1994-007-En.pdf.

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condition.”25 Their specif ic wilderness characteristics (or “distinguished features,” as they are called in the document) can be summarised as follows: (1) being free of modern infrastructure, development and industrial extractive activity, (2) being characterised by a high degree of (natural) intactness, (3) being of suff icient size to protect biodiversity, (4) offering outstanding opportunities for solitude and (5) being free of inappropriate or excessive human use or presence.26 Most remarkably, and due to severe criticism of exclusionary approaches towards human habitation in protected areas (as mentioned earlier), the organisation nowadays considers traditional ways of life and cultural and spiritual uses as commonly “compatible with wilderness management.”27 Such an approach is principally based on an understanding of wilderness that not only refers to wild, biologically intact places, but that “also implies the presence of a human relationship with wild nature.”28 Accordingly, the maintenance of traditional ways of life and customs of Indigenous Peoples, tribes and local communities, as well as the protection of cultural and spiritual sites, evidently relevant for Indigenous Peoples but also important for many non-traditional people, are explicitly considered as compatible objectives of wilderness areas by the IUCN today.29 From these scholarly and policy examinations, the following main characteristics can be derived to def ine wilderness: 1. a certain size or physical extension; 2. a high degree of naturalness, often interchangeably used with natural intactness or integrity; 3. undevelopedness, meaning an absolute or relative absence of human infrastructure, development and industrial extractive activities and implying a minimal human footprint; and 4. providing outstanding opportunities for solitude, a state of being alone or remote from society and sometimes even further referred to cover intangible symbolic meanings that inspire human connection with nature in a broader sense.

Distinctive Features of Polar Wilderness While the main qualities outlined earlier may reflect a principal understanding of wilderness, the question arises whether polar wilderness corresponds with them and to what extent it features certain particularities. This question is addressed in the following. In terms of the wilderness criteria of a certain size, polar regions can be certainly characterised as outstanding. As for the Arctic, the UN Environment World Conservation Monitoring Centre stated in 2006 that the Circumpolar North “holds the largest continuous expanses of unfragmented wilderness in the world” and includes “seven of the ten largest wilderness areas in the world.”30 In 2018, an international team of scientists published a global map of the world’s remaining wilderness and demonstrated that only f ive countries hold more than 70% of this wilderness.31 ­Remarkably,

25 Nigel Dudley, ed., Guidelines for Applying Protected Area Management Categories (Gland: IUCN, 2008), 14, accessed July 14, 2021, www.iucn.org/sites/dev/f iles/import/downloads/iucn_assignment_1.pdf. 26 Ibid., 14 and 15. 27 Sarah A. Casson et al., Wilderness Protected Areas: Management Guidelines for IUCN Category 1b Protected Areas (Gland: IUCN, 2016), 7, accessed July 14, 2021, https://portals.iucn.org/library/sites/library/f iles/documents/PAG-025.pdf. 28 Ibid., 2. 29 Ibid., 8. 30 Hugo Ahlenius, Major Wilderness Areas in the Arctic (Arendal: UNEP/Grid-Arendal, 2006). This assessment has been built on the application of the IUCN protected area and management categories, in particular on Category Ib. 31 James E. M. Watson et al., “Protect the Last of the Wild,” Nature, Comment (October 31, 2018), 30. The studies def ined wilderness as “land or ocean areas as those that were free of human pressures, with a contiguous area of more than 10,000 km2 on land.” Antarctica was excluded from the studies.

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three of the top f ive are countries with territories in the Arctic: Russia and Canada are on the top of the list (holding more than 60% wilderness worldwide, marine and terrestrial), followed by the United States at the fourth place.32 In relation to Antarctica, the IUCN has recognised in general that the region holds the “world’s largest area with intact wilderness qualities.”33 Because of its enormous size, however, any quantif ication and qualif ication of its wilderness is extremely diff icult.34 A multidisciplinary study of 2020, assembling a comprehensive record of human activity on the continent spanning over 200 years, quantif ies the extent of Antarctica’s wilderness of approximately 99.6% (even though the extent is much smaller when taking into account inviolate and biodiversity relevant wilderness, see the following paragraph).35 Thus, by any of these calculations, the physical extent of polar wilderness is extraordinary compared to other parts of the world. Also, the quality of naturalness or natural intactness – def ined as “a large percentage of the original extent of the ecosystem, complete or near-complete native faunal and floral assemblages, retaining intact predator-prey systems, and including large mammals” under IUCN Category Ib36 – is of key importance for polar wilderness. In this regard, the close interlinkage between wilderness protection and biodiversity conservation should be emphasised. Biological studies stress in this relation particularly the importance of wilderness areas (understood as nature with no or minimal human disturbance) for the mitigation of biodiversity loss.37 Both polar regions play a decisive role in this respect: As for the Arctic, a biodiversity assessment conducted under the aegis of the United Nations Environment Programme (UNEP) emphasises that the region “is characterized by some of the largest continuous intact ecosystems on the planet,”38 and in relation to Antarctica, biological research found out that the continent’s “biodiversity is much more extensive, ecologically diverse and biogeographically structured than previously thought”39 and thus critical for maintaining ecosystem services. A special feature lies, however, in the fact that in polar regions, there is considerably less vegetation than in other regions of the world. This applies particularly to the Antarctic where terrestrial ecosystems, also in contrast to the Arctic, are largely isolated and limited to less than 0.5% of the snow- and ice-free areas of the continent.40 Conversely, these few areas are highly important since they are quasi home to almost all the continent’s biodiversity and provide essential breeding grounds for seals and seabirds.41 This specif ic characteristic makes polar wilderness not only inimitable but also especially vulnerable.

32 Ibid. 33 Casson et al., Wilderness Protected Areas, 46. 34 Thus, for example, Antarctica (except of the Ross Sea Region Marine Protected Area) has not been included in the “World Database on Protected Areas,” the most comprehensive global database on terrestrial and marine protected areas, including wilderness reserves (Category Ib) so far. 35 Rachel I. Leihy et  al., “Antarctica’s Wilderness Fails to Capture Continent’s Biodiversity,” Nature  583, no. 7817 (2020):  567–71. The calculated extent of ca. 96% of wilderness is based on four different def initions of wilderness (globally signif icant wilderness, undeveloped Antarctic wilderness, visible pristine Antarctic wilderness and negligibly impacted Antarctic wilderness), all of them allowing a certain minimal human impact. 36 Dudley, ed., Guidelines for Applying Protected Area Management Categories, 15. 37 See, for example, Russell Mittermeier et al., “Wilderness and Biodiversity Conservation,” Proceedings of the National Academy of Sciences 100, no. 18 (2003): 10309–313; Moreno Di Marco et al., “Wilderness Areas Halve the Extinction Risk of Terrestrial Biodiversity,” Nature 573 (2019): 582–85. 38 Kathrine I. Johnsen et al., eds., Protecting Arctic Biodiversity (Arendal: UNEP/GRID-Arendal, 2010), 8. 39 Steven Chown et al., “The Changing Form of Antarctic Biodiversity,” Nature 522 (2015): 431–38. 40 Peter Convey et al., “The Spatial Structure of Antarctic Biodiversity,” Ecological Monographs 84, no. 2 (2014): 205. 41 Jasmine Lee et al., “Climate Change Drives Expansion of Antarctic Ice-Free Habitat,” Nature 547 (2017): 49.

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The wilderness quality of undevelopedness is the one covered most by social science studies. In relation to Antarctica, for example, Codling assessed the different factors influencing the concept of wilderness in this region and suggested that wilderness is “[a]ny part of the Antarctic in which neither permanent habitation nor any other permanent evidence of present or past human presence is visible.”42 Thus, an emphasis has been put on permanency, indicating that human presence and related structures do not automatically exclude the wilderness quality of undevelopedness as long as they are of a temporary nature. Later on, the focus shifted to geographical studies, which use increasingly wilderness mapping and modelling approaches.43 As a baseline, the criterion of remoteness (both from settlements and mechanised access routes) is most often included and corresponds strongly with the wilderness quality of undevelopedness. While promising experiences with this approach have been made at a national and local scale, any compilation of respective data at larger scales, such as for an entire polar region, is extremely challenging.44 Insofar, the global map on the world’s remaining wilderness, published in 201845 and already mentioned earlier, is one effort in this regard, clearly illustrating the high representativeness of the Arctic, especially Russian and Canadian territories, in terms of “undeveloped” wilderness. In relation to the Antarctic, contemporary studies, predominately based on parameters of visibility, not only include data relating to permanently established facilities (such as huts, bases and other f ixed infrastructure)46 but also seek to compile information on the duration and intensity of long-term and transient human activities.47 These studies, even though indicating a clear increase of human activity in the region, including a signif icantly growing amount of infrastructure, demonstrate that the wilderness quality of undevelopedness still exists to a large extent across the entire continent.48 Solitude is a quality that has been studied least – both in relation to wilderness in general and in respect of polar wilderness in particular. This might be caused by the fact that the quality is of a rather subjective nature and depends very much on individuals’ perspectives. As such, solitude is rather intangible and inaccessible to quantitative approaches and thus contrary to the main approaches applied in natural and environmental sciences. Moreover, the American influence on the wilderness-related concept of solitude is undeniable; it was formally laid down by the US Wilderness Act of 196449 and further developed by American wilderness management policies directed towards visitors’ wilderness experiences.50 According to these policies, “outstanding opportunities

42 Rosamunde Jill Codling, Wilderness and Aesthetic Values in the Antarctic, Doctoral dissertation (Milton Keynes: The Open University, 1999), 112. 43 This shift emerged in conjunction with the development of Geographic Information Systems (GIS), computer systems for displaying mainly data related to positions on earth’s surface. 44 Steve Carver and Lex Comber, “Five Maps That Reveal the World’s Remaining Wilderness,” The Conservation ( January 29, 2019), accessed July 14, 2021, https://theconversation.com/f ive-maps-that-reveal-the-worlds-remainingwilderness-110061. 45 Watson et al., “Protect the Last of the Wild,” 30. 46 Rupert Summerson, “Protection of Wilderness and Aesthetic Values in Antarctica,” in Protection of the Three Poles, ed. Falk Huettmann (Tokyo, Dordrecht, Heidelberg, London and New York: Springer, 2012), 77–109; Rupert Summerson and Ian D. Bishop, “The Impact of Human Activities on Wilderness and Aesthetic Values in Antarctica,” Polar Research 31, no. 10858 (2012): 1–21. 47 Rupert Summerson and Tina Tin, “Twenty Years of Protection of Wilderness Values in Antarctica,” The Polar Journal 8, no. 2 (2018): 265–88. 48 Ibid., 282. 49 According to this act, a designated wilderness area is def ined as having, among others, “outstanding opportunities for solitude or a primitive and unconf ined type of recreation.” Section 2 (c) of the U.S. Wilderness Act (1964). 50 John C. Hendee and Chad P. Dawson, Wilderness Management: Stewardship and Protection of Resources and Values (Golden: Fulcrum Publishing, 2009).

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for solitude” are interpreted as “places and times . . . where visitors f ind little or no contact with others.”51 Polar regions seem to be predestined for providing such opportunities “where they [the visitors] feel they are alone in the vast wilderness of the Antarctic.”52 In social science literature, this special feature is considered as “one of the most signif icant drivers of the increasing popularity of traveling to these regions of the world.”53 However, reducing solitude to recreational purposes only is problematic since it would neglect the other dimensions of this quality, which also include symbolic meanings, clearly going beyond visitors’ personal experiences. A broader interpretation seems especially imperative in the Antarctic context, where the Protocol on Environmental Protection to the Antarctic Treaty (in more detail examined in the following section) refers explicitly to the intrinsic value of Antarctica’s wilderness. As such, the wilderness of the Antarctic (and the Arctic) has value “in itself ” and “for its own sake”54 and should not be reduced to instrumental values serving human purposes only.55 In relation to all these qualities and to polar wilderness in particular, a drastic decline is apparent. As for the Arctic, related studies point, for example, to reductions at a country-wide scale,56 while in relation to the Antarctic, a recent study of 2020 quantif ied the remaining inviolate areas (at least 10,000 km2 large contiguous areas with no historical human visitation records) as comprising ca. 32% of the surface, thus indicating human activities in much more than 50% of the continent over time.57 The close interlinkage between wilderness and biological diversity is also striking in this context since most studies do not refer to wilderness specif ically but to the environment in general or to its biodiversity components in particular (e.g. loss of biodiversity or introduction of invasive species), thus implying a diminishment of the wilderness quality of natural intactness. This does not mean, however, that other wilderness qualities might not be affected, such as the qualities of undevelopedness and/or solitude. Signif icantly, direct human activities are considered as major impact factors, although other factors, such as global environmental change, may contribute as well. In the absence of region-wide assessments, most relevant studies refer to certain types of impact or are limited to specif ic locations or sub-regions. As for the Arctic, a European Arctic Footprint Assessment, conducted in the f irst decade of this century, identif ied European black carbon (59%) and polychlorinated biphenyls (PCBs) (57%) as the largest share of the factors impacting the Arctic environment.58 This is followed by long-range air pollutants, such as SO2 and NOx emissions, and 51 Ibid., 22. 52 Abercrombie and Kent, “LLC’s 2017–2018 through 2021–2022 Multi-Year Initial Environmental Evaluation for Shipbased Tourism,” Antarctic Treaty Secretariat EIA Database 38 (2017), accessed July  14, 2021, www.ats.aq/devAS/EP/ EIAList?lang=e. 53 Hanna Mamzer, “The Attractiveness of Polar Regions as the Zones of Silence,” Oceanologia 62, no. 4 (2020): 557–64. 54 See for the intrinsic value of wilderness: Sandra Gudmundsen and John B. Loomis, “Tracking the Intrinsic Value of Wilderness,” in The Multiple Values of Wilderness, eds. H. Ken Cordell, John C. Bergstrom and J. M. Bowker (State College, PA: Venture Publishing, 2005), 251–66. 55 See for a distinction between intrinsic and instrumental value in biodiversity law: Matti Fosci and Tom West, “In Whose Interest? Instrumental and Intrinsic Value in Biodiversity Law,” in Research Handbook on Biodiversity and Law, eds. Michael Bowman, Peter Davies, and Edward Goodwin (Cheltenham and Northampton: Edward Elgar Publishing Limited, 2016), 55–77. 56 See, for example, in relation to Iceland: Victoria Frances Taylor, GIS assessment of Icelandic wilderness from 1936 to 2010, Master thesis (Reykjavik: University of Iceland, 2011); in relation to Norway: Ole Christian Fauchald, “Wilderness Protection in Norway,” in Wilderness Protection in Europe: The Role of International, European and National Law, ed. Kees Bastmeijer (Cambridge: Cambridge University Press, 2016), 386–408. 57 Leihy et al., “Antarctica’s Wilderness Fails to Capture Continent’s Biodiversity,” 569. 58 Sandra Cavalieri et al., Arctic Footprint and Policy Assessment: Final Report, Executive Summary (Berlin: Ecologic Institute, 2010), 7.

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the EU’s demand for products from mercury-intensive Arctic industries.59 Importantly, also the EU’s share of f ish imports from the Arctic ranks highly (39%), and the tourism footprint is increasing as well (27%).60 In relation to the Antarctic, a review of scientif ic literature, performed at a similar time, identif ied long-lived chemical contamination and sewage disposal on the continent, human disturbances of the flora and fauna concentrated on ice-free coastal areas of Antarctica, the establishment of a small number of non-indigenous plant and animal species, and persisting consequences from an overexploitation of f ish stocks in the Southern Ocean as major impacts caused by human activities.61 Following scientif ic studies indicated further human impacts on Antarctic wildlife, in particular baleen whales, and marine living resources.62 In a recent study, examining the human footprint from the perspective of expanding development of infrastructure, researchers report of a visual footprint similar in size to the total ice-free area of Antarctica, impacting more than half of all large coastal ice-free areas and demonstrating that human impacts are disproportionally concentrated in some of the most sensitive Antarctic environments.63 While a comprehensive assessment of impact factors on polar wilderness is not in the scope of this chapter, it can be however stated that the remaining qualities, even though still available in extensive quantities and special qualities, are diminishing and put at substantial risk.64 Therefore, adequate protection measures are required and will be considered in the following from a legal and policy point of view.

Wilderness Protection in the Arctic and the Antarctic Given the very different premises of sovereignty at each of the poles, individual national law is of the most importance in the Arctic, while for the Antarctic, the framework of the Antarctic Treaty System (ATS) is predominant.65 Having said this, however, international law is also relevant to the Arctic (on the regional level and in relation to international environmental law, mostly addressed by the Arctic Council), similarly as individual state law plays a critical role in the Antarctic legal context, especially when it comes to the exercise of jurisdiction in Antarctica66 and to the implementation of ATS provisions in the domestic legal context of States Parties to this system.67 In addition, local law and Indigenous customary laws might be especially important in considering wilderness

59 Ibid. 60 Ibid. 61 Tina Tin et al., “Impacts of Local Human Activities on the Antarctic Environment,” Antarctic Science 21, no. 1 (2009): 3–33. 62 See, among others, Eric J. Woehler, David Ainley and Julia Jabour, “Human Impacts to Antarctic Wildlife: Predictions and Speculations for 2060”; Denzil G. M. Miller, “Antarctic Marine Living Resources: ‘The Future is not What it Used to be’ ”; and Rebecca Leaper and Simon Childerhouse, “Present and Future Conservation Management of Antarctic Baleen Whales”; all of them in Antarctic Futures – Human Engagement with the Antarctic Environment, eds. Tina Tin, Daniela Liggett, Patrick T. Maher and Machiel Lamers (Dordrecht: Springer, 2014), 27–122. 63 Shaun T. Brooks et al., “Our Footprint on Antarctica Competes with Nature for Rare Ice-Free Land,” Nature Sustainability 2, (2019): 185–90. 64 See for scientif ically indicated threats towards the species level Antarctic-wide: Luis R. Pertierra et al., “High Resolution Spatial Mapping of Human Footprint across Antarctica and Its Implications for the Strategic Conservation of Avifauna,” PLoS One 12, no. 1 (2017): e0168280. 65 The Antarctic Treaty System (ATS) is founded upon the Antarctic Treaty of 1959 and composed of the Antarctic Treaty, the Measures, Decisions and Resolutions adopted thereunder, the interlinked conventions and the Environmental Protocol to the Antarctic Treaty of 1991. 66 See, for example, Barrett, “The Antarctic Treaty System,” 42–44. 67 See for the legal implementation of Environmental Protocol to the Antarctic Treaty, Kees Bastmeijer, The Antarctic Environmental Protocol and its Domestic Legal Implementation (The Hague: Kluwer Law International, 2003).

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protection in the Arctic regions, whereas customary international law would be influential in both regions. A detailed analysis of these complex settings is, however, beyond the scope of this chapter. Therefore, in relation to the Arctic, an emphasis is put on the individual Arctic States and their principal domestic legal approaches towards wilderness protection. This is supplemented by the regional perspective of the Arctic Council and its objectives regarding wilderness protection. In relation to the Antarctic, the focus remains predominately on the international level, mainly provided by the legal provisions of the Environmental Protocol, their practical implementation and related debates.

Wilderness Protection Approaches of Arctic States On the Arctic State level, the establishment of national parks can be regarded as one of the early legal models relevant to wilderness protection. Following the American example, which was founded on the establishment of the Yellowstone National Park in 1872, f irst parks in the Arctic were established at the beginning of the 20th century. As for the European Arctic, Sweden created nine national parks in 1909 (four of them, the Abisko, Pieljekaise, Sarek and Stora Sjöfallet National Parks, located above the Arctic Circle), while in Alaska, the f irst national park (the Mt. McKinley National Park, precursor of the Denali National Park and Preserve) was founded in 1917.68 Remarkably, wilderness protection was covered in these instances by the park objectives referring inter alia to the preservation of large continuous types of landscapes in natural or mainly unchanged conditions and/ or the protection of certain animal and vegetation species. It should be noted however that these objectives were mainly driven by economic interests aligned with recreational purposes.69 In terms of domestic legal development, it is important to state that the designation of these early national parks and other types of protected areas went often along with the adoption of f irst nature conservation laws. However, the focus of these laws was still on certain types of protected areas or on certain regions of a state and not on wilderness protection specif ically. This changed only in the second half of the 20th century, when the protection of wilderness became a central objective of nation- or state-wide legislation. The most prominent example in this regard is the US Wilderness Act of 1964.70 Despite its international implications, the act was also influential for the development of wilderness-related legislation in the Arctic States. Thus, for instance, it inspired legislative activities in Canada where even a duplication of the American act was temporarily considered.71 The act was also foundational in Iceland for the introduction of a legal def inition of wilderness areas into domestic nature conservation law.72 In other countries, such as in Finland, the act was influential to the national legislative debate too, even though the wilderness concept emerged quite differently due to the importance of natural resources utilisation in wilderness areas (here in particular the

68 See for an overview of the development of national parks as a model for wilderness protection, Antje Neumann, Wilderness Protection in Polar Regions: Arctic Lessons Learnt for the Regulation and Management of Tourism in the Antarctic (Leiden: Brill and Nijhoff Publisher, 2020), 50–54. 69 Ibid. 70 US Wilderness Act (1964), “An Act to establish a National Wilderness Preservation System for the permanent good of the whole people, and for other purposes,” Public Law 88–577 (16 U.S. C. 1131–1136), 88th Congress, Second Session, September  3, 1964, accessed July  14, 2021, www.wilderness.net/NWPS/documents//publiclaws/PDF/16_ USC_1131-1136.pdf. 71 Kormos, A Handbook on International Wilderness Law and Policy, 95. 72 Thorvardur Arnason, “Exploring Wilderness in Iceland: Charting Meaningful Encounters with Uninhabited Lands,” in Rethinking Wilderness and the Wild – Conflict, Conservation and Co-existence, eds. Robyn Bartel, Marty Branagan, Fiona Utley, and Stephen Harris (London and New York: Routledge, 2020), 198.

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utilisation of forest resources in Northern Lapland).73 Insofar, the influence of the US Wilderness Act on the development of Arctic States’ domestic wilderness laws is quite obvious, even though its direct impacts differ considerably due to Arctic States’ distinctive legal cultures and traditions. Nowadays, four of the eight Arctic States (Canada, Finland, Iceland and the United States) adopted either specif ic wilderness legislation or opted for a special area protection category devoted to wilderness protection under domestic nature conservation law.74 In Denmark, Norway, the Russian Federation and Sweden, wilderness protection is not explicitly regulated by domestic legislation. Instead, the respective values are covered by other types of protected areas (e.g. natural reserves, national parks and natural landscapes) aiming at protecting certain qualities that are also relevant to wilderness protection. This is often supplemented by other nature conservation legislation (e.g. domestic forest and water protection acts) and environmental legislation (e.g. legislation on spatial planning and environmental impact assessment), which is also relevant to wilderness protection.75 Although a detailed comparison of Arctic States’ individual legal approaches towards wilderness protection goes beyond the scope of this chapter, certain commonalities should be stressed. First of all, it is striking that the objective wilderness qualities – a minimum scale of the area, a certain degree of natural intactness and the absence of major installations and infrastructure – are explicitly or implicitly covered to a certain degree in all these instances. Moreover, the wilderness quality of “solitude” is also explicitly referred to in three domestic legal contexts,76 while in others it might be implicitly enclosed by the objective of “recreational purposes,” such as in the Swedish legal context where “nature reserves” may be established to “satisfying the need for outdoor recreation.”77 Despite these similarities, differences exist predominately in terms of priority setting. Thus, for instance, the “remoteness criterion” seems to be a fundamental aspect of the Icelandic78 and Norwegian legislation,79 while a high degree of “ecological integrity” appears to be central to the Canadian approach, at least in the context of wilderness designation in national parks.80 In addition to specif ically designated wilderness areas, also other types of protected areas established at the domestic level or within parts of them (such as natural reserves, national parks and/or natural landscapes) may fulf il the IUCN Category Ib criteria. Therefore, the number and size of wilderness areas assigned under the IUCN criteria (also covering wilderness areas and/or parts of them designated via other

73 Ari Aukusti Lehtinen, “Kenen Maa? The Question of Justice in Finnish Wilderness Politics in Upper Lapland,” Dieđut, no. 3 (2004): 136–39. 74 Finland and the United States have enacted specif ic wilderness laws at the national level – namely, the Finnish Act on Wilderness Reserves and the US Wilderness Act – while Canada and Iceland provide for a special wilderness area protection category as part of their domestic nature conservation laws – the category of a ‘Wilderness Area’ within a national park is included in Article 14 (1) of the Canadian National Park Act and the category of a ‘Wilderness Area’ (óbyggð víðerni) is reflected in Article 5 (19) and Article 46 of the Icelandic Act on Nature Conservation. 75 See for an overview as regards the legal protection of wilderness in Norway, Russia and Sweden: Ole Kristian Fauchald, “Wilderness Protection in Norway”; Natalia Danilina, Antje Neumann, and Kees Bastmeijer, “Wilderness Protection in Russia”; and Filippo Valguarnera, “Wilderness Protection in Sweden,” all of them in Wilderness Protection in Europe: The Role of International, European and National Law, ed. Kees Bastmeijer (Cambridge: Cambridge University Press, 2016), 386–408, 432–54, 482–506. 76 See, for example, Article 46 Icelandic Act on Nature Conservation (einvera); Article 8 (2) Ontario Provincial Parks and Conservation Reserves Act; and Section 2 (c) U.S. Wilderness Act). 77 See Chapter 7 Section 4 of the Swedish Environmental Code. 78 Arnason, “Exploring Wilderness in Iceland,” 198. 79 Ibid. 80 As noticed by Kormos, “the concept of ecological integrity was enshrined into legislation, stating that “maintenance of ecological integrity through the protection of natural resources shall be the f irst priority when considering Park zoning and use in a management plan.” Kormos, A Handbook on International Wilderness Law and Policy, 112.

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types of protected areas) are generally higher than the equivalent formally assigned at the domestic level.81 Furthermore, individual Arctic countries launched national wilderness mapping processes to promote and support the implementation of domestic legal provisions for wilderness protection. Iceland is one of these countries, which started a related process and produced a wilderness map of its Central Highlands in 2017.82 The process is currently expanded to the remaining total area of the country. Wilderness maps produced in this way can portray a broader and more detailed picture towards areas meeting nationally def ined wilderness criteria. Thus, in summary, it can be stated that all Arctic countries developed certain legal and other instruments to protect domestic wilderness, primarily in the form of area protection legislation either explicitly or implicitly referring to it. These legal settings display commonalities in terms of key objective wilderness criteria, while differences exist in design and emphasis due to national specif ics.

A Common Effort by the Arctic Council? The Arctic Council, as mentioned in the beginning, is considered the principal intergovernmental forum in the Arctic region. According to its foundational objective it aims to “provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.”83 As such, it seeks centrally to protect the Arctic environment and thus implicitly the region’s wilderness qualities. This relevance was already emphasised by the Arctic Environmental Protection Strategy (AEPS), a strategy of the eight Arctic States on which the Arctic Council was built, and that declared the protection of the Arctic ecosystem, including humans, as well as the provision for the protection, enhancement and restoration of environmental quality and the sustainable utilisation of natural resources, including their use by local populations and Indigenous Peoples in the Arctic, as two of their f ive objectives.84 In this framework, the Arctic States also committed themselves each to “seek to develop more effective laws, regulations and practices for the conservation of Arctic flora and fauna, their diversity, and their habitats in close cooperation with Arctic indigenous peoples.”85 Despite this overall relevance, however, the term “wilderness” is not specif ically mentioned; neither in one of these founding documents nor in any of the other main policy documents adopted at later Arctic Council ministerial meetings. Instead, elements of wilderness protection seem to be rather embedded in the other Arctic Council policy objectives of sustainability and biodiversity conservation (the latter reflecting once more the close interlinkage between wilderness and biodiversity

81 This discrepancy becomes especially apparent when comparing the relevant numbers at the domestic level with those portrayed at the World Database on Protected Areas, accessed July 14, 2021, www.protectedplanet.net/en. Thus, for instance, Finland has on its domestic level 12 wilderness reserves established according to its domestic Wilderness Act, covering a total area of 14,831 km2. The number of protected areas assigned to IUCN Category Ib is 331, covering a much broader area of size, accessed July 14, 2021, www.protectedplanet.net/country/FiN. 82 Two wilderness mapping reports have been published in this regard: Thorvardur Arnason, David Ostman and Adam Hoffritz, Kortlagning víðerna á miðhálendi Íslands: Tillögur að nýrri aðferðafræði (Hofn: Hornafjordur Research Center, 2017), and David Ostman and Thorvardur Arnason, Kortlagning víðerna á miðhálendinu: Framhaldsverkefni um þróun aðferðafræði (Hofn: Hornafjordur Research Center, 2017). 83 Article 1 (a) Ottawa Declaration (1996), accessed July 15, 2021, https://oaarchive.arctic-council.org/handle/11374/85. 84 Objectives 2.1, i) and ii) Arctic Environmental Protection Strategy (1991), accessed July 15, 2021, http://library.arctic portal.org/1542/1/artic_environment.pdf. 85 Ibid., Protection of Arctic Flora and Fauna, 9.1, iv.

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protection, mentioned earlier). This becomes especially apparent in relation to the Conservation of Arctic Flora and Fauna Working Group (CAFF), one of six working groups of the Arctic Council, whose mandate is “to address the conservation of Arctic biodiversity . . . , helping to promote practices which ensure the sustainability of the Arctic’s living resources.”86 Within this mandate, explicit reference to the “preservation of wilderness” and to the “maintenance of ecological processes and ecological integrity” (as one of the main wilderness qualities) is made in one of the working group’s earlier objectives: the establishment of protected areas in the Arctic region.87 For this purpose, the Circumpolar Protected Area Network (CPAN)88 was developed, an instrument that referred explicitly to the wilderness values of the Arctic.89 Even though CPAN is currently inactive, the work on protected areas has been continued throughout many programmes and projects, not only conducted and coordinated by CAFF (with a focus on terrestrial areas) but also by the Protection of the Arctic Marine Environment Working Group (PAME), another Arctic Council’s working group focusing on the marine components of the Arctic. In this regard, the “Arctic Protected Areas Indicator Report” of 2017, developed by both working groups and providing an overview of the status and trends of protected areas in the Arctic, should be stressed.90 It generally shows that the degree of protection in the Arctic has steadily increased since 1980.91 Importantly in relation to wilderness protection, the report quantif ies protected areas falling into IUCN Category Ib as constituting 11.6% of the total share of protected areas (marine and terrestrial), which corresponds to an area of about 324,800 km2 compared to a total area of protection of approximately 3.7 million km2.92 According to this assessment, protected wilderness areas cover only a relatively small portion of protected areas in the Arctic (f ifth rank behind protected landscapes/seascapes [Category V], habitat/ species managed areas [Category IV], protected areas with sustainable use of resources [Category VI] and national parks [Category II]) – a def iciency that becomes especially evident with regard to specially protected marine wilderness areas.93 Also, it should be noted that this status reflects protected area designations taken individually by the Arctic States under their respective domestic legal systems. The Arctic Council, in its present institutional format, has no legal personality itself that would allow for establishing Arctic protected areas specif ically designated in its own competence. Besides, no other explicit policy of the Arctic Council or its working groups towards wilderness protection in the Arctic is recognisable at present. In this respect, the issue remains more or less a topic implicitly addressed under the Council’s wider objective of biodiversity conservation, and here in particular under the perspective of ecosystem, habitat, and species protection. The Arctic, as also stressed initially, is home to numerous Indigenous Peoples. For them, similarly to Indigenous Peoples worldwide, the development of specially protected areas, most notably

86 See CAFF’s website: www.caff.is/about-caff, accessed July 15, 2021. 87 CAFF, Cooperative Strategy for the Conservation of Biological Diversity in the Arctic Region: Program for the Conservation of Arctic Flora and Fauna (Helsinki: Finnish Ministry of the Environment, 1997), 11, 12. 88 The Circumpolar Protected Areas Network (CPAN) was established as a CAFF Expert Group in 1994 with the aim to ensure suff icient protection of all habitat types in the Arctic, see www.caff.is/protected-areas-strategy, accessed July 15, 2015. 89 See, for example, CAFF, Protected Areas of the Arctic: Conserving a Full Range of Values (Ottawa: CAFF, 2002) 3. For CPAN, see also Chapter 14 of this volume.   Ibid., 17. 90 CAFF and PAME, Arctic Protected Areas: Indicator Report (Akureyri, 2017), accessed July 15, 2021, www.caff.is/ assessment-series/414-arctic-protected-areas-indicator-report-2017. 91 Ibid., 7. 92 Ibid., Figure 3. 93 The ration between terrestrially and marine protected wilderness areas is 13%: 5%. Ibid., Figures 8 and 12.

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the establishment of early national parks, went often along with exclusionary and discriminatory approaches.94 While forced relocations of Indigenous communities were a primary form of discrimination in the f irst half of the 20th century, later on, when Arctic States started to designate explicit wilderness reserves and other strict protected areas with relevance to wilderness protection, discrimination practices included, for instance, the exclusion and disregard of Indigenous People from protected area designation and management processes.95 In respect of wilderness protection specif ically, Indigenous Peoples living in the Arctic expressed particular concerns towards the Western notion of the concept, which is seen, from their perspective, as simply “ethnocentric” and connoted with violations of “fundamental territorial and cultural rights and aspirations of indigenous peoples.”96 The Arctic Council, as outlined, does not specif ically address wilderness protection in its policies. As such, related concerns of Indigenous Peoples are not taken up particularly. Instead, the Council builds on the permanent inclusion of Indigenous Peoples (as well as of other Arctic inhabitants) in its operations. This is not only manifested in its objective97 but also particularly stressed by its desire “to provide a means for promoting cooperative activities to address Arctic issues requiring circumpolar cooperation, and to ensure full consultation with and the full involvement of indigenous people and their communities and other inhabitants of the Arctic in such activities.”98 Another expression of this inclusion is the status of Arctic Indigenous Peoples as permanent participants to the Arctic Council, a unique status that grants them full consultative rights and a seat in all Arctic Council matters.99 Under these premises, relevant concerns of Arctic Indigenous Peoples seem to be principally covered.100 In practice, however, uncertainties surrounding Indigenous Peoples’ participation exist, which are increasingly accompanied with capacity gaps to realise adequately their participatory rights.101 Therefore, conflicts between possible conservation efforts of Arctic Council States, on the one hand, and Indigenous Peoples’ interests, on the other, may arise at least theoretically.

Wilderness Protection in the Antarctic Legal concern for environmental protection in Antarctica and for wilderness protection in particular evolved only during the second half of the 20th century.102 The Antarctic Treaty, negotiated and adopted in the midst of the cold war and rather focusing on the safeguarding of peace and the continuation of freedom of scientif ic investigation and cooperation,103 did not consider the ­protection

 94 Neumann, Wilderness Protection in Polar Regions, 66–68.  95 Ibid.  96 Ole Henrik Magga, “Indigenous Peoples of the North,” in Arctic Wilderness: 5th World Wilderness Congress, eds. Vance G. Martin and Nicholas Tyler (Golden: Fulcrum Publishing, 1995), 28, with citation of a statement of Jens Dahl, Arctic Indigenous Peoples, Background Report for the Nordic Council’s Arctic Conference (Reykjavik, 1993), 27–31.  97 See Article 1 (a) Ottawa Declaration.  98 Ottawa Declaration, Para 7 [emphasis added].  99 Piotr Graczyk and Timo Koivurova, “The Arctic Council,” in Handbook of the Politics of the Arctic, eds. Leif Christian Jensen and Geir Hønneland (Cheltenham: Edward Elgar Publishing, 2015), 298–327. 100 Even though permanent participants have no “voting rights” in the Arctic Council and are thus unable to hinder unanimously decision-making, their concerns are usually addressed in earlier stages of a certain initiative before this initiative is brought to f inal voting. 101 Jim Gamble and Jessica M. Shadian, “One Arctic . . . But Uneven Capacity: The Arctic Council Permanent Participants,” in One Arctic: The Arctic Council and Circumpolar Governance (Ottawa: Canadian Arctic Resources Committee and the Centre on Foreign Policy & Federalism, 2017), 142–56. 102 Neumann, Wilderness Protection in Polar Regions, 124 ff. 103 Articles 1 and 2 of the Antarctic Treaty.

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of wilderness as a special concern. However, through the inclusion of Article IX (1) (f) and the mandate of Antarctic Treaty consultative parties (ATCPs) to take measures for the “preservation and conservation of living resources in Antarctica,” the treaty opened the scope for future measures towards wilderness protection in a wider sense – namely, to the extent that these measures would be taken in furtherance of the principles and objectives of the Antarctic Treaty in general – and for the purposes set out in Article IX (1) (f) in particular. Even though early measures, adopted subsequently on the basis of this provision, did not aim specif ically at protecting Antarctica’s wilderness, some of them were relevant to the protection of wilderness qualities, in particular to the quality of natural intactness. This applies especially to the “Agreed Measures for the Conservation of Antarctic Fauna and Flora” adopted in 1964,104 and consequent measures taken within this scope and focusing on area and species protection primarily.105 Still, it was not before the end of the 1980s that the protection of wilderness appeared formally within the ATS context,106 namely, on the occasion of adopting the “Convention on the Regulation of Antarctic Mineral Resource Activities” (CRAMRA) in 1988.107 Already the convention’s preamble noted, besides other values, the unique wilderness value of Antarctica and the importance of Antarctica to the global environment.108 Moreover, the wilderness qualities of the region were explicitly taken into account in the framework of the convention’s objectives and general principles and in the principles concerning judgements on Antarctic mineral resource activities.109 Despite the fact that CRAMRA, after all, did not enter into force, the convention is nonetheless considered to be influential for the legal recognition of the region’s wilderness values. The decisive step regarding the legal protection of wilderness in Antarctica was achieved during the negotiations of Special Antarctic Treaty Consultative Meeting XI (November 1990 until October 1991),110 resulting in the adoption of the Environmental Protocol and (at that time) four of its annexes on October 4, 1991 (in the following: the Madrid Protocol).111 Most centrally, the Protocol’s Environmental Principles refer explicitly to Antarctica’s wilderness values by stating, The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its values as an area for the conduct of scientif ic research, in particular research essential to understanding

104 Recommendation 8 ATCM III (1964), “Agreed Measures for the Conservation of Antarctic Fauna and Flora.” The recommendation entered into force 1982. In the interim time, consultative parties also concurred that these measures should be applied as guidelines. 105 See, for example, some of the 1966 recommendations concerning the designation of specially protected areas (SPAs), later, with the adoption of Annex V to the Environmental Protocol referred to as Antarctic specially protected areas (ASPAs), available at the Antarctic Treaty Meetings Database: www.ats.aq/devAS/Meetings/DocDatabase?lang=e. 106 Tina Tin and Alan D. Hemmings, “Challenges in Protecting the Wilderness of Antarctica,” USDA Forest Service Proceedings RMRS-P-64 (2011): 148. 107 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), signed in Wellington on June 2, 1988, accessed July 15, 2021, www.ats.aq/e/topics.html. 108 Preamble of CRAMRA. 109 Articles 2 (3) (d) and 4 (2) (e) of CRAMRA. 110 During the negotiations towards a comprehensive regime for environmental protection in Antarctica, the protection of the region’s wilderness values was covered to a different degree by several ATCPs’ proposals. For an overview see Neumann, Wilderness Protection in Polar Regions, 140–44. 111 See supra note 11.

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the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.112 With the explicit inclusion of wilderness values in these principles, it becomes clear that such values have to be considered as fundamental in the planning and conduct of all activities in the Antarctic Treaty area. Beside this central provision, wilderness is also addressed in relation to the acceptable limits of human activities (Article 3 (2) of the Protocol), in relation to waste disposal (Article 3 (2) Sentence 2 of Annex III to the Protocol) and in the context of area protection and management (Article 3 (1) and (2) of Annex V to the Protocol, elaborated more specif ically further in the next section). Despite of the several references to wilderness in these provisions, it should be noted that neither the Protocol nor its annexes give any def inition what is meant by “wilderness value” or “wilderness signif icance.” Also, “wilderness” in all those instances is conjointly referred to with “aesthetic” values, even though a clear delineation between both concepts has not been achieved yet. This lack of def inition reflects the heterogeneous understanding of wilderness in the ATS context and generates diff iculties, particularly in terms of legal implementation and identif ication of a consistent approach towards wilderness protection, as is demonstrated in the following.

Wilderness Protection Considered in the Context of Environmental Impact Assessment and Area Protection The Madrid Protocol and its annexes provide substantive provisions concerning Environmental Impact Assessments (EIAs)113 and the designation of specially protected and managed areas that are most relevant for the protection of wilderness. The principal duty to conduct EIAs arises from Article 3 (2) (c) in connection with Article 8 (1) of the Protocol, while specif ic procedural requirements are set out in Annex I to the Protocol. Even though none of these provisions refer specif ically to wilderness values, it has been argued that these values should be also taken into account when performing an EIA.114 This seems to be also the understanding of the ATCPs who reiterated already in 1996, while considering the potential impacts on the environment during the EIA process, that “the values as mentioned in Article 3, paragraph 1 of the Protocol should be included.”115 Later on, this position has been particularly conf irmed by the “Revised EIA Guidelines for Environmental Impact Assessment in Antarctica” of 2016.116 These guidelines not only make clear that the environmental principles established by Article 3 of the Protocol, including all values mentioned thereunder, “can be considered a guide to environmental protection in Antarctica and its dependent and associated ecosystems,” but also point out at which stages of the EIA process wilderness values should be taken into account.117 In the context of area protection, the most relevant provisions in relation to wilderness protection are included in Article 3 (1) and (2) (g) of Annex V to the Madrid Protocol. Both provisions refer inter alia to areas of outstanding wilderness values that may be designated as Antarctic Specially Protected Areas (ASPAs). Aside from these purposes, ASPAs may also be designated because of

112 Article 3 (1) of the Protocol [emphasis added]. 113 For environmental impact assessments in the polar regions, see Chapter 12 of this volume. 114 Kees Bastmeijer, The Antarctic Environmental Protocol and Its Domestic Legal Implementation (The Hague: Kluwer Law International, 2003), 179. 115 Final Report of ATCM XX (1996), para 135. 116 Resolution 1 ATCM XXXIX (2016), “Guidelines for Environmental Impact Assessment in Antarctica” (Annex). 117 Ibid., 2, 9, 14 ff.

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other values relevant for wilderness protection. This might especially apply to areas identif ied to be “kept inviolate from human interference,” or including “representative examples of major terrestrial and marine ecosystems” or those with “important or unusual assemblages of species,”118 and thus being relevant for protecting the wilderness quality of “naturalness.”119 Within the Antarctic legal context, important interpretation towards the application of area protection categories has been provided by the “Guidelines for Implementation of the Framework for Protected Areas set forth in Article 3, Annex V of the Environmental Protocol” (ASPA Guidelines), agreed in 2000.120 While these guidelines are relevant for all ASPAs designated under Annex V, they include particular guidance in relation to areas of outstanding wilderness values. Thus, for example, they imply a differentiation between the intrinsic wilderness value of Antarctica as a whole (Article 3 (1) of the Protocol) and the specif ic wilderness values attached to certain areas of Antarctica only (namely, those designated according to Article 3 (1) of Annex V to the Madrid Protocol). Also, they provide, under the “concept of quality” and “criteria of the degree of interference,” an illustrating example of outstanding wilderness value by referring to “an area that has not experienced local human-induced change and is protected from it because of [its] isolation [it] may have higher quality wilderness values and might be more valuable as an undisturbed reference area than a less natural area.”121 It should be noted that these qualif ication criteria might be also applicable to Antarctic Specially Managed Areas (ASMAs) since the guidance material of the latter, adopted in 2017, follows the process set out in the ASPA Guidelines.122 To sum up, it can be stated that the protection of wilderness is explicitly recognised under the Antarctic legal system. In contrast, however, the legal implementation of these norms, in particular the consideration of wilderness values in the application process of related legal instruments, is evidently weak. This is also supported by academic literature. In relation to the EIA context, for example, Deary and Tin conducted a comprehensive review of 2,800 documents from the Antarctic Treaty Secretariat’s website issued between 1988 and 2014. All of these concerned the construction, operation and removal of permanent research stations, research drilling projects and/ or long-distance traverse projects. These were evaluated by the respective national authorities in the scope of Comprehensive Environmental Evaluations (CEEs), the highest and most stringent category of an EIA under the Protocol and Annex I. Deary and Tin noted that the wilderness impacts of these activities were assessed as being of “low-to-medium extent and intensity” only and that none of these evaluations resulted in a requirement for “any signif icant modif ication” of the proposed activities.123 Another survey in this context, specif ically undertaken with regard to tourism and non-governmental activities in Antarctica, showed that no CEE has been found necessary for such activities yet, so that in these cases an Initial Environmental Evaluation (IEE), the second EIA category under the Protocol and Annex I, was deemed suff icient. An IEE is required if an activity is determined as having a minor or transitory impact. As far as these IEEs referred to Antarctica’s wilderness values, they did so “in a rather standardized language without any substantial specif ications,”

118 Article 3 (2) (a), (b) and (c) of Annex V to the Protocol. 119 For a more detailed explanation of this relevance, see Neumann, Wilderness Protection in Polar Regions, 149–53. 120 Resolution 1 SATCM XII (2000), “Guidelines for Implementation of the Framework for Protected Areas.” 121 Ibid., Part II, 2.3 “Degree of Interference” [emphasis added]. 122 Resolution 1 ATCM XL (2017), “Guidelines for implementation of the Framework for Protected Areas set forth in Article 3, Annex V of the Environmental Protocol” (Annex A) 4. 123 Holly Deary and Tina Tin, “Antarctic Treaty Consultative Parties’ Engagement in Wilderness Protection at Home and in Antarctica,” The Polar Journal 5, no. 2 (2015): 290.

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in particular without any specif ic modif ications and/or mitigation measures.124 In this context, the study noted “that the consideration of wilderness values within the assessment process, in particular the degree of specif ication and substantiation, depends largely on the EIA requirements of the respective national authority,” and thus may vary considerably from one State Party to the other.125 In relation to the context of area protection and management, similar def iciencies are documented. Thus, for instance, the review of Deary and Tin mentioned earlier reported that only three out of six ASMA management plans considered wilderness values within their objectives.126 In relation to the, at that time, 72 designated ASPAs, only f ive of them contained a reference to wilderness in the related management plans.127 Summerson and Tin, continuing this review, identif ied a marginal increase of one ASMA (ASMA 5: Amundsen-Scott South Pole Station) that included a reference to wilderness values in its revised management plan of 2017.128 In their conclusion, the authors criticised especially “a laissez-faire attitude, whereby wilderness values of an area can remain de facto protected but only so long as that area is not required for the planning and conduct of any other activity, such as research, operations or tourism.”129

Wilderness Protection Considered in ATCM Measures and Related Debates Wilderness, as being explicitly recognised by the Protocol and its annexes, has been also a permanent issue of the Antarctic Treaty Consultative Meetings (ATCMs) and the meetings of the Committee for Environmental Protection (CEP), a committee established by the Protocol to provide advice and formulate recommendations to the parties in connection with the implementation of the Protocol and its annexes.130 As such, CEP outcomes have an advisory function, while the decisionmaking competence pertains exclusively to the ATCM. Insofar, the importance of consideration of wilderness issues within these fora differs considerably. In the ATCM context, the protection of wilderness values as an individual topic has not received any particular attention. Rather, the issue has been addressed predominantly in relation to tourism and non-governmental activities, specif ically in terms of related impacts arising from a steadily growing number of visitors, a rising number of sites of visitation and frequency at these sites, an increasing diversity of these activities and the establishment of infrastructure for related purposes.131 In this regard, three ATCM resolutions (dealing with the overall management of Antarctic tourism activities, the guidance of visitor behaviour and the planning and conduct of land-based expeditionary activities) refer to wilderness, even though to a limited and subordinated extent.132 It should be also noted that these resolutions are of hortatory

124 Neumann, Wilderness Protection in Polar Regions, 162. 125 Ibid., 163, 164. 126 Deary and Tin, “Antarctic Treaty Consultative Parties’ Engagement,” 287. 127 Ibid., 288. 128 Rupert Summerson and Tina Tin, “Twenty Years of Protection of Wilderness Values in Antarctica,” The Polar Journal 8, no. 2 (2018): 282. 129 Ibid., 282, 283. 130 Articles 11 and 12 of the Protocol. 131 See for an overview Neumann, Wilderness Protection in Polar Regions, 164–83. 132 Resolution 7 ATCM XXXII (2009), “General Principles of Antarctic Tourism”; Resolution 3 ATCM XXXIV (2011), “General Guidelines for Visitors to the Antarctic”; Resolution 9 ATCM XXXV (2012), “The Assessment of Land-Based Expeditionary Activities.”

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nature only and that, in respect of wilderness issues, no legally binding measure has been adopted by the ATCM so far.133 In contrast, the CEP has paid more attention to the protection of wilderness. Issues concerning this topic have been on the committee’s agenda since its f irst meeting in 1998 and were discussed to a varying degree and extent. The most extensive debates took place between 2010 and 2014.134 Especially the “CEP Five-Year Work Plan” should be stressed because of including the protection of Antarctica’s wilderness values as a priority issue.135 Later on, the CEP committed itself to develop methods for improved protection of wilderness under Annexes I  and V.136 At the CEP meeting in 2019, the Committee took up these tasks and invited the Scientif ic Committee on Antarctic Research (SCAR), in consultation with interested parties, to further elaborate an understanding of the wilderness values with a view to their practical application.137 In response to this, Australia, the Netherlands and New Zealand communicated the outcomes of a quantitative analysis of the extent of Antarctic wilderness to the CEP meeting in 2021,138 aiming additionally to support the consideration of wilderness values during the EIA process and to provide further spatial layers to help to develop and identify areas that could be designated as ASPAs.139 At present, the debate on these points is still ongoing and no principal understanding of wilderness has been agreed yet. However, the progress made in this regard is remarkable, not only in respect of providing substantial tools for facilitating and improving the application of legal instruments highly relevant for wilderness protection but also in terms of widening the scope of essential contributors to this process (such as SCAR). It remains to be seen, however, whether the progress achieved at the CEP level can be transferred to that of the ATCM during the next years. Because it is one thing to conduct scientif ic research and provide technical solutions; the political will of ATCPs, necessary to take related decisions, is something else.

Conclusion Polar wilderness, although still in existence, is declining. Even though scientif ic evidence is often limited to a country-wide scale (such as in the case of Iceland) or to areas of high biodiversity value and/or those affected by the development of infrastructure (such as in the case of Antarctica), the tendency is evident and alarming. Arctic States and the community of ATCPs established certain legal and policy measures with the effect that wilderness values of both regions are explicitly recognised. While for the Antarctic, the emphasis lies on the international legal regime, primarily provided by the provisions of the Protocol, wilderness protection in the Arctic is predominantly an issue of the Arctic States’ domestic legal systems. In either context, protection is directed towards the main wilderness characteristics – an extensive size, natural intactness, an absolute or relative absence of human infrastructure and the provision of experienceable values, most notably solitude.

133 See for the categorization of ATCM “Recommendations” into “Measures,” “Decisions” and “Resolutions,” Handbook of the Antarctic Treaty, System Operation of the Antarctic Treaty System (2002), 121, accessed July 31, 2021, https://20092017.state.gov/documents/organization/15273.pdf. 134 See for an overview of wilderness issues’ discussions between 1998 and 2018, Summerson and Tin, “Twenty Years of Protection of Wilderness Values in Antarctica,” 278–80. 135 CEP Report XI (2008), Appendix I; CEP Report XIII (2010) Appendix 5. 136 CEP Report XVII (2014), Appendix I. 137 CEP Report XXII (2019), para 14. 138 Referred analysis: Leihy et al., “Antarctica’s Wilderness Fails to Capture Continent’s Biodiversity,” 567–71. 139 Australia, Netherlands and New Zealand IP 14 ATCM XLIII (2021), “Antarctic wilderness and inviolate areas.”

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Despite this focus, however, an agreed def inition of wilderness in the Antarctic context implying these characteristics could not achieved yet. In the Arctic context, specif ic domestic legal def initions of wilderness, with different priorities, exist in four of the eight Arctic States, while in the remaining four states, other types of protected areas include certain wilderness qualities and are thus also relevant for wilderness protection. In view of accelerating consequences of climate change and a continuing growth of human activities in both regions, these existing sets of wilderness protection seem to be, however, highly inadequate. Inadequacy is primarily caused by the apparent def iciencies of implementation, especially in relation to the Antarctic. Here, wilderness values are rarely and, if so, often marginally considered in the application of existing instruments for environmental impact assessments and area protection. In the Arctic, the picture is more heterogeneous and differs from one state to the other. Overall, however, wilderness protection is of limited practical relevance in this region too. This is made evident, for example, by the relatively small percentage of wilderness areas (fulf illing the IUCN Category Ib criteria), compared to the overall share of protected areas in the Arctic region, a def iciency that is especially apparent in relation to marine wilderness. On top of this, the potential role of the intergovernmental forum, the Arctic Council, to stipulate explicit policies for wilderness protection in the region remains unemployed. Be it to avoid potential conflicts with Indigenous Peoples or be it for other reasons, the protection of Arctic wilderness values receives hardly any attention and appears merely as a subordinated issue of biodiversity protection. For these reasons, decisive steps to cope with the factors diminishing polar wilderness are required. In relation to the Arctic, the nation states themselves should intensify their efforts to protect wilderness. This should not only include an extension of specially protected wilderness areas, especially with stronger emphasis on marine areas, but also encompass other measures, such as the protection of biodiversity and ecosystem services. An updated “Arctic Protected Areas Indicator Report,” expected for the end of 2023, will provide a revised status in this regard and may stipulate related efforts. At the side of the Arctic Council, the protection of wilderness should receive far more attention and be put explicitly on the working groups’ agendas. In doing so, related initiatives should actively include Indigenous Peoples and discuss their interests and concerns on this subject – an effort that is long overdue. In the Antarctic context, the progress achieved by the CEP during the last years in terms of new insights and tools for implementing wilderness protection needs to be transferred to the decision-making level of the ATCM. In the end, however, it needs f irst and foremost the political will of the states, parties to the Antarctic legal system and/or members of the Arctic Council140 to balance the protection of wilderness with their engagement for economic, scientif ic and geopolitical purposes.

140 Five of the Arctic Council member states (Finland, Norway, the Russian Federation, Sweden and the United States) have also consultative status, assigning them voting rights, while Canada, Denmark and Iceland are non-consultative parties, allowing them to attend the consultative meetings but not to participate in the decision-making.

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Polar Resource Management

16 REGULATION OF FISHERIES IN THE POLAR REGIONS Rosemary Rayfuse

Introduction On June 25, 2021, the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement) entered into force.1 The f irst “truly precautionary high seas f isheries agreement,”2 the CAOF Agreement has been called “an unusual and farsighted effort to address a potentially serious environmental problem before the problem actually occurs.”3 Adopted in the wake of rising concerns about the possible expansion of commercial f isheries into the previously ice-covered high-seas portion of the central Arctic Ocean, parties to the CAOF Agreement have agreed to refrain from commercial f ishing in the area unless and until an adequate scientif ic basis has been established to ensure sustainable management of any such f ishery. Entry into force of the CAOF Agreement occurred almost exactly 40 years after the entry into force of the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention).4 Adopted in 1980 and into force in 1982, the CAMLR Convention established the management framework for the conservation of the marine living resources of the Southern Ocean. At the time of its adoption, several f inf ish stocks in the Southern Ocean had already been decimated by industrial f ishing and there were fears that increasing unregulated commercial catches of krill would have adverse consequences for krill-dependent species, such as penguins and whales.5 It was in this context that the CAMLR Convention was adopted to provide “a precautionary,

1 Adopted October  3, 2018. The text of the Agreement is available at www.dfo-mpo.gc.ca/international/agreementaccord-eng.htm. 2 Rosemary Rayfuse, “The Role of Law in the Regulation of Fishing Activities in the Central Arctic Ocean,” Marine Policy 110 (2019): 103562, https://doi.org 10/1016/j.marpol.2019.103562. 3 David Balton, “The Arctic Fisheries Agreement Enters into Force,” Polar Points (June 25, 2021), www.wilsoncenter.org/ blog-post/no-9-arctic-f isheries-agreement-enters-force. 4 Adopted May 20, 1980, entered into force April 7, 1982, 1329 UNTS 47. 5 See e.g. Karl-Hermann Kock, Antarctic Fish and Fisheries (Cambridge: Cambridge University Press, 1992), 212–13; David G. Ainley and Louise K. Blight, “Ecological Repercussions of Historical Fish Extraction from the Southern Ocean,” Fish & Fisheries 9 (2008): 1; Stephen Nicol and Jacqueline Foster, “Recent Trends in the Fisheries for Antarctic Krill,” Aquatic Living Resources 16 (2003): 42, 42–45. For general discussion see, Rosemary Rayfuse, “Climate Change and Antarctic Fisheries,” Ecology Law Quarterly 45, no. 1 (2018): 53–81, 60–62.

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science-focused, ecosystem-based approach”6 to the conservation of living marine resources in the Antarctic. This chapter examines the regimes for f isheries regulation at the poles, focusing on the CAMLR Convention and the CAOF Agreement. The chapter begins with a brief look at the background to and content of each regime and then turns to a discussion of the similarities and differences between the two. In particular, the chapter compares and contrasts the objectives of the two regimes and the extent to which they either achieve, or can be expected to achieve, those objectives. The chapter concludes with some comments on lessons that can be drawn from the implementation of the CAMLR Convention for the future implementation of the CAOF Agreement.

Antarctic Fisheries and the CAMLR Convention The history of exploitation of Antarctic marine living resources is a long one, dating back at least to the 18th and 19th centuries and the expansion of sealing and whaling activities in the Southern Ocean.7 Commercial f inf ish f isheries have operated in the Southern Ocean since the 1960s. The most important of these species, Notothenia rossi, or marbled rock cod, was already in serious decline from overf ishing when the CAMLR Convention was negotiated.8 Indeed, directed f ishing for Notothenia rossi has not taken place since 1986 and stocks still show no sign of recovering to commercially viable levels.9 However, the species of most concern to the negotiators of the CAMLR Convention was Antarctic krill, Euphausia superba, a protein-rich shrimp-like crustacean that is the central link in the Antarctic marine food chain. Experimental krill f ishing began in the 1960s with up to 200,000 tonnes being taken annually by the mid-1970s.10 It was estimated that if technical problems with end-product processing could be overcome catches could quickly rise to at least 150 million tonnes per annum, effectively tripling the global f ish catch.11 Aware that human overexploitation was responsible for the near extinction of southern fur seals and drastic reductions in Antarctic whale stocks, and concerned that overharvesting of krill might have adverse impacts on other species that depend on krill for food,12 the consultative parties to the Antarctic Treaty called for a special consultative meeting to draft a “def initive regime for the Conservation of Antarctic Marine Living Resources.”13

6 Marcus Haward, “Southern Ocean Fisheries,” in Research Handbook of Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 181–91, 181. 7 Ibid., 182–84. 8 Karl-Hermann Koch, “Fishing and Conservation in Southern Waters,” Polar Record 30, no. 73 (1994): 3, 9–10. 9 See CCAMLR Conservation Measure 32–02 (2017): Prohibition of Directed Fishing which continues the prohibition on directed f ishing for Notothenia rossi that has been in place since 1985. For discussion see, Inigo Everson, “Southern Ocean Fisheries,” in Encyclopedia of Ocean Sciences, 2nd ed. (John Steele Steve Thorpe Karl Turekian, 2008), 513–19 (Academic Press), https://doi.org/10.1016/B978-012374473-9.00451-3; Esteban Barrera-Oro, Enrique Marschoff, and David Ainley, “Updated Status of Notothenia Rossii, Gobionotothen Gibberifrons and Notothenia Coriiceps in Inshore Sites of the South Shetland Islands: Results of a Long-Term Monitoring Program (1983–2016) at Potter Cove,” CCAMLR Doc: WG-FSA-16/02, www.ccamlr.org/en/wg-fsa-16/02. 10 Everson, “Southern Ocean Fisheries,” 515. 11 Simon Lyster, International Wildlife Law (Cambridge: Grotius Publications, 1985) 158. 12 David M. Edwards and John A. Heap, “Convention on the Conservation of Antarctic Marine Living Resources: A Commentary,” Polar Record 20, no. 127 (1980): 354. 13 Recommendation IX-2, Report of the Ninth Consultative Meeting (ATCM IX, London, UK, September 19–October 7, 1977), 13–16, www.ats.aq/devAS/Meetings/Measure/118.

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The CAMLR Convention, adopted in 1980, applies to all marine living resources found south of the Antarctic Convergence including “f in f ish, molluscs, crustaceans and all other species of living organisms, including birds.”14 The Antarctic Convergence is the natural boundary where cold, northward-flowing Antarctic waters meet and sink below the relatively warmer waters of the sub-Antarctic. It effectively separates polar waters from the waters to the north and serves as a biogeographic barrier to species dispersal between the Southern Ocean and lower latitudes.15 Although the precise location of the Convergence changes seasonally, the CAMLR Convention deems its location to be determined by a line joining precise geographical points,16 the importance of which is that this line extends the Convention’s application well beyond the boundary of the Antarctic Treaty area at 60° south.17 While the CAMLR Convention Area consists predominantly of the high seas surrounding the Antarctic continent, also included in the Convention Area are waters under the national jurisdiction of States having sovereignty over a number of sub-Antarctic islands. Within these areas the coastal States retain the sovereign right to apply their own f isheries regimes,18 although in practice they generally apply the measures they have agreed to within CCAMLR at a minimum. The CAMLR Convention established the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR) as the decision-making body, which makes decisions on the basis of consensus, and the CAMLR Scientif ic Committee (SC-CAMLR), which is charged with advising CCAMLR on the best available science. CCAMLR is tasked with ensuring the “conservation” of Antarctic marine living resources, where “conservation” is def ined as including “rational use,” giving effect to the “principles of conservation,” including the precautionary and ecosystem approaches, articulated in Article II of the Convention. To achieve its purpose, CCAMLR is charged with wide-ranging responsibilities, including the power to adopt conservation measures for the designation of catch quotas, protected species and special areas for protection and scientif ic study, as well as to adopt any other measures necessary to address the impacts of f ishing on the wider ecosystem.19 Current f inf ish f isheries managed by CCAMLR target only Patagonian toothf ish (Dissostichus eleginoides), Antarctic toothf ish (Dissostichus mawsoni) and mackerel icef ish (Champsocephalus gunnari). CCAMLR’S management of these f isheries is based on stochastic projection methods that account for uncertainty in key biological parameters and allow for random recruitment fluctuations.20 In theory, this allows for the setting of ecosystem-based precautionary catch limits designed to ensure the long-term sustainability of the f ishery. In addition to determining catch limits, conservation measures also determine other operational aspects of f isheries such as where, when and in what manner f ishing can be carried out.21 The objective of these measures is to manage potential impacts on targeted species and on associated and dependent species. Broader ecosystem concerns are also

14 CAMLR Convention Article I. 15 Mathew P. Galaska et al., “Crossing the Divide: Admixture Across the Antarctic Polar Front Revealed by Brittle Star Astrotoma agassizii,” Biological Bulletin 232 (2017): 198. 16 CAMLR Convention Article 1. 17 Antarctic Treaty, adopted December 1, 1959, entered into force June 23, 1961, 402 UNTS 71, Article VI. 18 See CCAMLR, “CAMLR Convention Text: Statement by the Chairman of the Conference on the Conservation of Antarctic Marine Living Resources,” www.ccamlr.org/en/organistion/ccmlr-convention-text#Chair. 19 CAMLR Convention Article IX. 20 Andrew J. Constable et al., “Managing Fisheries to Conserve the Antarctic Marine Ecosystem: Practical Implications of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR),” ICES Journal of Marine Science 57 (2000): 778, 783–84. 21 CCAMLR Conservation Measures (CCAMLR CM) are www.ccamlr.org/en/conservation-and-management/ conservation-and-managment.

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accommodated in measures aimed at restricting the use of certain gear types, reducing by-catch of non-target f ish species, reducing incidental mortality of seabirds and prohibiting f ishing for sharks.22 To ensure that new f isheries are not overexploited before essential management information and baseline data is acquired and management measures are put in place, CCAMLR has, since 1991, required prior notif ication of any plans to undertake a new f ishery and the implementation of various conditions, including the requirement of a data collection plan.23 Exploratory f isheries, def ined as f isheries that are no longer new but for which critical information remains unavailable, are similarly subject to a range of measures designed to ensure acquisition and submission of relevant data and to pre-empt overexploitation.24 While CAMLR’s management of toothf ish f isheries has received considerable attention over the years due to its efforts to combat illegal, unregulated and unreported (IUU) f ishing, the real core of CCAMLR’s development of precautionary ecosystem-based management has centred on the f i shery for Antarctic krill. The key here is the fact that CCAMLR has been able to develop its krill management in advance of heavy commercial exploitation. As noted earlier, although a large krill f i shery existed in the 1960 and 1970s, conducted primarily by Soviet and Eastern Bloc vessels, technical and marketing problems together with the breakup of the USSR in 1991 saw the f ishery decline markedly. 25 In recent years, however, interest in the f i shery has escalated sharply following the introduction of new catching and processing technologies.26 Management of the krill f ishery is based on “decision rules” derived from three management principles intended to ensure suff icient krill supplies for both marine and land based predators.27 These principles require maintaining krill biomass at levels higher than what might be the case if only single-species considerations are taken into account.28 As the Commission puts it, “CCAMLR’s approach to managing the krill f ishery is to minimise the impact on the ecosystem rather than trying to maximise the size of the f ishery.”29 This is sought to be achieved through the adoption of a “unique and precent setting”30 overall precautionary catch limit based on the total estimated krill biomass in relevant management areas, with individual catch

22 Rosemary Rayfuse, “Regional Fisheries Management Organisations,” in The Oxford Handbook on the Law of the Sea, eds. Donald R. Rothwell et al. (Oxford: Oxford University Press, 2015), 439, 457. 23 CCAMLR CM 21–01: Notif ication that Members Are Considering Initiating a New Fishery (2019). 24 CCAMLR CM21–02: Exploratory Fisheries (2019). 25 Karl-Hermann Kock, “Fishing and Conservation in Southern Waters,” Polar Record 30 (1994): 3–22; Stephen Nicol and Yoshinari Endo, “Krill Fisheries – Their Development, Management and Ecosystem Implications,” Aquatic Living Resources 12 (1999): 105–20. Catches, which in 1981 totalled 373,656 tonnes, had declined to 60,783 tonnes in 1993. Catch statistics are www.ccamlr.org/en/f isheries/krill-f isheries. 26 Stephen Nicol, Jacqueline Foster and So Kawaguchi, “The Fishery for Antarctic Krill – Recent Developments,” Fish and Fisheries 13 (2012): 30–40. Catches increased dramatically from about 2010 when the krill catch totalled 211,973 tonnes. In the 2019/20 season, 446,783 tonnes of krill were taken, the largest krill catch to date. See CCAMLR, Report of the Thirty-Ninth Meeting of the Commission (Virtual Meeting), October 27–30, 2020, para. 5.46. 27 Denzil G. M. Miller, “CCAMLR Management and Conservation of Antarctic Marine Living Resources” (2014) (unpublished manuscript) (copy on f ile with author); SC-CAMLR, Report of the Thirteenth Meeting of the Scientif ic Committee (1994) paras. 5.18–5.26. 28 Philip N. Trathan and David J. Agnew, “Climate Change and the Antarctic Marine Ecosystem: An Essay on Management Implications,” Antarctic Science 22 (2010): 387, 394. 29 See www.ccamlr.org/en/f isheries/krill-f isheries-and-sustainability. 30 Denzil G. M. Miller, Eugene N. Sabourenkov and David C. Ramm, “Managing Antarctic Marine Living Resources: The CCAMLR Approach,” International Journal of Marine and Coastal Law 19 (2004): 317–63.

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triggers set for various sub-areas which, if reached, result in a closure of the f ishery.31 Catches cannot exceed the trigger level until the Commission has agreed a mechanism – which it has yet to do – to spread allocation of the total catch limit between smaller management units.32 The purpose of these catch triggers is to avoid an unacceptable concentration of f ishing effort and large catches within vulnerable predator foraging areas where locally high catches could potentially adversely impact the local ecosystem. The approach is thus designed to allay concerns relating to upward pressures on krill stocks and associated and dependent species, from what appears to be a rapidly expanding f ishery.

Arctic Fisheries and the CAOF Agreement In contrast to the Antarctic, where extensive f isheries have existed for decades, there is no record of any f ishing, commercial or otherwise, having taken place in the high seas portion of the central Arctic Ocean33 (referred to here as the Central Arctic Ocean) to date. Whether there are any f ish there has long been a matter of conjecture; the presence of the perennial polar icecap thus far makes f ishing in the area impossible.34 This is not to suggest that there are no f isheries in the Arctic. On the contrary, some of the world’s most productive f ishing grounds are located in the Arctic and subArctic areas, including the rich f isheries in the Bering, Barents and Norwegian Seas and in areas around Iceland and Greenland.35 These f isheries are managed at the bilateral and regional level by a number of regional f isheries management organisations and arrangements (RFMO/As), including the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, the North-East Atlantic Fisheries Commission (NEAFC) and the Norway-Russia Joint Fisheries Commission.36 In recent years, however, increasing ocean temperatures coupled with decreasing sea ice coverage caused by climate change have been linked with the northward expansion of sub-Arctic and

31 CCAMLR CM 51–01: Precautionary catch limitations on Euphausia superba in Statistical Subareas 48.1, 48.2, 48.3 and 48.4 (2010). 32 CCAMLR CM 51–02: Precautionary Catch Limitation on Euphausia superba in Statistical Division 58.4.1 (2008) and CM 51–03: Precautionary Catch Limitation on Euphausia superba in Statistical Division 58.4.2 (2008). 33 According to Molenaar, the “Central Arctic Ocean” consists of both high-seas areas and adjacent areas. See Erik Jaap Molenaar, “The CAOF Agreement: Key Issues of International Fisheries Law,” in New Knowledge and Changing Circumstances in the Law of the Sea, ed. Tomas Heider (Leiden: Brill and Nijhoff, 2020), 446, 449–50; Erik Jaap Molenaar, “Participation in the Central Arctic Ocean Fisheries Ageement,” in Emerging Legal Orders in the Arctic: The Role of Non-Arctic Actors, eds. A. Shibata, L. Zou, N. Sellheim and M. Scopelliti (Leiden: Routledge, 2019), 132, 137. As a geographical matter this interpretation makes perfect sense. However, as a legal matter it is critically important to distinguish between areas under and areas beyond national jurisdiction. Thus, for present purposes, the terminology of “Central Arctic Ocean” is used here to refer to the area of high seas covering approximately 2.8 million square kilometres which lies in the centre of the Arctic Ocean both beyond and completely surrounded by the exclusive economic zones of the f ive Arctic Ocean coastal States. In other words, the discussion here relates only to the high seas and only to the high-seas f ishing in the Central Arctic Ocean, and not in the other Arctic high-seas areas, such as the Banana Hole in the NorthEast Atlantic, the Barents Sea Loophole, or the Donut Hole in the Central Bering Sea. 34 G. E. Shephard et al., “Assessing the Added Value of the Recent Declaration on Unregulated Fishing for Sustainable Governance of the Central Arctic Ocean,” Marine Policy 66 (2016): 50–57, 55; Final Report of the Third Meeting of Scientif ic Experts on the Fish Stocks of in the Central Arctic Ocean (Washington, DC: April 14–16, 2015), www.afsc.noaa.gov/ Arctic_f ish_stocks_third_meeting/meeting_reports/3rd_Arctic_Fish_Final_Report_10_July_2015_f inal.pdf. 35 ACIA, Arctic Climate Impact Assessment: ACIA Overview Report (Cambridge: Cambridge University Press, 2005). 36 For an overview, see Alf Håkon Hoel, “The Evolving Management of Fisheries in the Arctic,” in Research Handbook of Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 200–17.

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temperate f ish species37 and the corresponding likely northward expansion of f ishing fleets into the newly ice-free Central Arctic Ocean to explore for and, if found, commercially exploit those f ishery resources. Initially, any such northward migration or expansion is expected to occur within the exclusive economic zones (EEZs) of the f ive central Arctic Ocean coastal States (Canada, Denmark in respect of Greenland, Norway, Russia and the United States, collectively the Arctic Five). Nevertheless, while scientists are sceptical of any expansion of f ish stocks into the Central Arctic Ocean in the short term, they are less sanguine about the mid-term38 and about the potential for unregulated expansion into new f isheries to effectively wipe out a species or stock before its existence is even formally recognised or understood.39 Given the lack of scientif ic data and uncertainty surrounding the existence and/or potential migration of f ish stocks into the Central Arctic Ocean, and the effect of any f ishery on what is thought to be the extremely fragile marine ecosystem of the Central Arctic Ocean, in 2008, the United States launched an initiative aimed at securing international discussions towards an agreement to prevent or delay commercial f ishing in the Central Arctic Ocean.40 Between 2010 and 2015, the Arctic Five engaged in a series of policy and science meetings aimed at developing a better understanding of the status of f ish stocks and the impacts of climate change on such stocks in the Central Arctic Ocean and focusing on the need to develop mechanisms to improve available scientif ic information and to adopt interim measures to deter any unregulated f ishing in advance of the adoption of a robust management system.41 The outcome of these meetings was the Oslo Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean in which the Arctic Five agreed voluntarily to refrain from commercial f ishing in the Central Arctic Ocean unless and until appropriate science-based management measures are in place, and to establish a research and monitoring programme to monitor changes in the marine ecosystems.42 Recognising that all States have the freedom to f ish on the high seas unless constrained by preventative measures to which they have agreed, the Arctic Five also agreed on the need for a “broader process,” open to all interested States, if they were to effectively prevent unregulated f ishing in the Central Arctic Ocean. It was that “broader process,” involving (in addition to the Arctic Five) China,

37 P. Wassmann, C. M. Duarte, S. Agusti, M. K. Seir et al., “Footprints of Climate Change in the Arctic Marine Ecosystem,” Global Change Biology 17 (2011): 1235–49; J. S. Christensen, C. W. Mecklenburg, O. V. Karamishko et al., “Arctic Marine Fishes and the Fisheries in Light of Global Climate Change,” Global Change Biology 20 (2014): 352–59. For a full discussion of the impacts of climate change on the Polar Regions see also Chapter 13 in this volume. 38 Final Report of the Third Meeting of Scientif ic Experts on the Fish Stocks in the Central Arctic Ccean. Washington DC, April 14–16, 2015; Final Report of the Fifth Meeting of Scientif ic Experts on Fish Stocks in the Central Arctic Ocean, Ottawa, Canada, October 24–26, 2017, 14. See also M. Meredith et al., “Polar Regions,” in IPCC Special Report on the Ocean and Cryosphere in a Changing Climate, eds. H.-O. Pörtner et al. (2019) s. 3.2.3.1.3, www.ipcc.ch/site/assets/uploads/ sites/3/2019/11/07_SROCC_Ch03_FiNAL.pdf. 39 J. F. Caddy and R. C. Griff iths, Living Marine Resources and Their Sustainable Development: Some Environmental and Institutional Perspectives, FAO Fisheries Technical Paper. No. 353 (Rome: FAO, 1995). 40 US Senate Joint Resolution No 17 of 2007, Senate October 4, 2007, House of Representatives May 2008, President Bush signature June 4, 2008. Public Law 110–243, 122 STAT. 1569–1571 (June 3, 2008). 41 For discussion and overview of the various meetings, see e.g. Rayfuse, “The Role of Law,” 1–5; Erik Jaap Molenaar, “International Regulation of Central Arctic Ocean Fisheries,” in Challenges of the Changing Arctic: Continental Shelf, Navigation and Fisheries eds. M. H. Nordquist, J. N. Moore and R. Long (Brill and Nijhoff, 2016), 429–63. 42 Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean of July 16, 2015, www.regjeringen.no/globalassets/departementene/ud/vedlegg/folkerett/declaration-on-arctic-f isheries-16july-2015. pdf). For discussion see, Rosemary Rayfuse, “Regulating Fisheries in the Central Arctic Ocean: Much Ado About Nothing?” in Arctic Marine Resource Governance and Development, eds. Niels Vestergaard, Brooks A. Kaiser, Linda Fernandez, and Joan Nymand Larsen (Cham, Switzerland: Springer, 2018), 35–51.

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the European Union, Iceland, Japan and South Korea (the Arctic Five plus Five), that resulted, after six negotiating sessions, in the adoption of the CAOF Agreement. The objective of the CAOF Agreement is to prevent unregulated f ishing in the high seas portion of the central Arctic Ocean through the application of precautionary conservation and management measures as part of a longterm strategy to safeguard healthy marine ecosystems and to ensure the conservation and sustainable use of f ish stocks.43 The Agreement sets out a number of interim measures which effectively replicate those in the Oslo Declaration and provide for an abstention from commercial high-seas f ishing that can be lifted when certain substantive and procedural conditions are met.44 Exploratory f ishing, “for the purpose of assessing the sustainability and feasibility of future commercial f isheries by contributing to scientif ic data relating to such f isheries,”45 is subject to conservation and management measures that are to be adopted within three years of the coming into force of the Agreement. These measures are to make clear that exploratory f ishing activities are to be limited in duration, scope and scale, subject to data reporting, prior notif ication and compliance monitoring requirements, and authorised only on the basis of sound scientif ic research.46 As exploratory f ishing may only be authorised to be conducted pursuant to these measures, it can be inferred that the intention is that in the absence of such measures, no exploratory f ishing is permitted.47 The CAOF Agreement also requires the parties to establish, within two years of entry into force, a Joint Program of Scientif ic Research and Monitoring (JPSRM) aimed at improving scientif ic understanding of both the future f isheries potential and the broader ecosystem of the Central Arctic Ocean. The stated objectives of the JPSRM are to increase knowledge of the living marine resources of the Central Arctic Ocean and the ecosystems in which they occur and, based on this knowledge, to determine whether f ish stocks exist that might be commercially viable on a sustainable basis without negatively affecting this ecosystem.48 A novel aspect of the CAOF Agreement is its express recognition of the interests of Arctic residents, including Arctic Indigenous peoples, in the long-term conservation and sustainable use of living marine resources and healthy Arctic marine ecosystems and of the importance of involving them and their communities. To that end, the knowledge to be acquired and used is not merely scientif ic and technical knowledge but includes local and Indigenous knowledge as well.49 Taking the totality of this knowledge into account, the JPSRM is to determine how the ecosystems in the Central Arctic Ocean are changing, thereby making possible future decisions as to when, how, and under what conditions, to launch commercial f isheries. Importantly, the parties are to ensure that any scientif ic activities involving the catching of f ish are not to be used to undermine the prevention of unregulated commercial or exploratory f ishing or the health of the marine ecosystem.50

43 CAOF Agreement Article 2. 44 CAOF Agreement Articles 3 and 5. 45 CAOF Agreement Article 1(e). 46 CAOF Agreement Article 5(1) (d). 47 CAOF Agreement Article 3(3). 48 CAOF Agreement, Article 4. 49 CAOF Agreement Preamble and Article 4(4). 50 CAOF Agreement Article 3(4).

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It is important to note that the CAOF Agreement does not establish a formal regional f isheries management organisation. Agreement on the conditions under which negotiations for such an organisation might commence proved elusive.51 Rather, the CAOF Agreement will have an initial duration of 16  years from entry into force (i.e. until June  25, 2037) during which time, should the science indicate that some commercial f ishing could be undertaken on a sustainable basis, any decision to authorise such f ishing or to initiate negotiations on a broader management agreement, including the possible establishment of a RFMO/A, will require a consensus of the parties to the Agreement. Without such a consensus, the status quo will prevail. The CAOF Agreement may be extended, unless any party objects, for successive f ive-year periods; however, should it lapse, there is no requirement to commence negotiations towards a broader management regime.52

The CAMLR Convention and the CAOF Agreement in Contrast It is clear that both the physical characteristics of the f ishery resources and the regimes governing their conservation and management differ markedly at both poles. Lucrative commercial f isheries have been conducted in the Antarctic, often to excess, for many decades. No commercial, or any other, f isheries have yet been conducted in the Central Arctic Ocean. Indeed, it is not even known whether any signif icant f ish resources are found there. Moreover, no CCAMLR analogue exists in the Arctic, either in organisational terms, or in scope of application. The CAMLR Convention established CCAMLR, which, as its name implies, is charged with a conservation and management mandate relating to all living marine resources in the Antarctic. In contrast, the CAOF Agreement establishes no management organisation and, as its name implies, is concerned only with the prevention of unregulated f ishing and the acquisition of science aimed at ensuring sustainable conservation and management of f ish in the event future f ishing does occur. Nevertheless, as discussed earlier, both regimes are clearly aimed at ensuring the conservation and sustainable use of f ishery resources through the application of precautionary, ecosystem-based management. Obvious differences aside, examination of these commonalities and their application by CCAMLR may provide valuable insights into the future application of the CAOF Agreement. The following sections examines these commonalities and differences focusing on issues relating to the convention objectives, the application of the precautionary and ecosystem approaches, and the role of science.

The Convention Objectives: Conservation versus Utilisation As noted earlier, the objective of the CAMLR Convention is “the conservation of Antarctic marine living resources” where “ ‘conservation’ includes rational use.”53 This reference to “rational use” was necessary given the existing f isheries at the time the Convention was concluded. However, any harvesting and associated activities are to be carried out in accordance with the “principles of conservation” articulated in the Convention. These require commitment to the “prevention of decrease in the size of any harvested populations to levels below those which ensure its stable recruitment”; the “maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources and the restoration of depleted populations”; and the “prevention of changes or minimisation of the risk of changes in the marine ecosystem which are

51 For discussion, see Rosemary Rayfuse, “Taming the Wild North? High Seas Fisheries in the Warming Arctic,” in Frontiers in International Environmental Law: Oceans and Climate Challenges: Essays in Honour of David Freestone, eds. Richard Barnes and Ronán Long (Leiden: Brill, 2021), 263–80, 277. 52 CAOF Agreement Article 13. 53 CAMLR Convention Article II (1) and (2).

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not potentially reversible over two or three decades.”54 Given this mandate, it is perhaps not surprising that CCAMLR has been described as “a conservation body,” albeit one having “the attributes of a regional f isheries management organisation.”55 In recent years, however, signif icant differences of opinion have arisen in CCAMLR as to the interpretation of the meaning of “conservation.” The key question, on which opinions are sharply divided, is whether rational use is part of conservation or an end in itself.56 Member States with signif icant f ishing interests generally favour the latter interpretation; other member States, the former. These differing interpretations essentially underly the positions being taken on all issues facing the Commission and provide the backdrop to differing opinions as to whether, and if so what, science is needed, how that science should be elaborated and provided by the Scientif ic Committee, and what weight the Commission should place on that science.57 Needless to say, these differences of opinion pose a serious challenge to both the scientif ic and the managerial mission of CCAMLR. The effect of these differences of opinion can be seen, for example, in the growing number of applications for exploratory f ishing, ostensibly engaged in for scientif ic purposes, but really little more than a commercial foray into new f ishing areas, a foray which generally contributes little to, and can even fundamentally undermine, any scientif ic endeavour. The effect of these differences is also clear in the lack of any shared commitment to fully implementing the Ross Sea Region Marine Protected Area,58 as evidenced by the ongoing failure to agree on the Research and Monitoring Plan for the area, or to adopting any new marine protected areas, or to fully implementing the measures on establishing special areas for scientif ic study in areas newly exposed after ice shelf collapse.59 Similarly, there is a lack of any shared commitment to developing mechanisms to ensure that the latest climate change research is integrated into the work of the Scientif ic Committee and into the Commission’s own decision-making processes.60 In effect, in recent years a real schism has developed in CCAMLR between f ishing- and conservation-minded States. A similar schism between f ishing States and coastal States exists in the Central Arctic Ocean and clearly influenced the drafting of the CAOF Agreement. Some of the Arctic Five (the United States and Canada, in particular) have adopted domestic legislation prohibiting all commercial f ishing within their Arctic Ocean EEZs due to insuff icient scientif ic information about the ecosystem on which any proper management measures might be adopted.61 During negotiations some members of the Arctic Five sought to consolidate their “special status” as Central Arctic Ocean coastal States and to retain a de facto veto over any process relating to the establishment of a formal RFMO/A for the area. The non–Arctic Ocean coastal States were concerned to limit what they saw as creeping coastal State jurisdiction and the potential precedent setting effect of giving such a power to

54 CCAMLR Convention Article II (3). 55 CCAMLR, Report of the Twenty-First Meeting of the Commission for the Conservation of Antarctic Marine Living Resources, CCAMLR-XXI (Hobart, October 21–November 1, 2002), 88, para 15.2. 56 For discussion, see, for example, Jennifer Jacquet et al., “ ‘Rational Use’ in Antarctic Waters,” Marine Policy 63 (2016): 28. 57 Rosemary Rayfuse, “Climate Change and Antarctic Fisheries: Ecosystem Management in CCAMLR,” Ecology Law Quarterly 45, no. 1 (2018): 53–81, 72. 58 CCAMLR CM 91–05: Ross Sea region marine protected area (2016). For further discussion see Chapter 14 in this volume. 59 See text at fn 94 infra. 60 Rayfuse, “Climate Change and Antarctic Fisheries,” 77–80. See also Rosemary Rayfuse, “Climate Change and the Poles,” in Research Handbook of Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 413–33, 431–32. 61 David Balton, “Implementing the New Arctic Fisheries Agreement,” in New Knowledge and Changing Circumstances in the Law of the Sea, ed. Tomas Heidar (Leiden: Brill, 2020), 429–45.

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the Arctic Five.62 In the end, a package deal was reached involving the inclusion of a preambular paragraph recognising the special responsibilities of the Arctic Five and their special interests in relation to the conservation and management of the f ish stocks of the central Arctic Ocean as a whole (not just the high-seas area), as well as the requirement for consensus decision-making (taken as meaning “the absence of any formal objection made at the time the decision was taken”),63 and the sunset clause relating to the duration of the CAOF Agreement.64 While not a formal veto, the requirement of consensus appears to enable any one of the parties to exercise a de facto veto over the commencement of negotiations towards a formal RFMO/A, at least for the duration of the CAOF Agreement. There thus remains the potential for conflict between the interests of at least some of the Arctic Five and the other parties to the Agreement. Fundamentally, however, the CAOF Agreement differs from the CAMLR Convention in that its goal is not conservation but rather the prevention of unregulated f ishing, “as part of a long-term strategy to safeguard healthy marine ecosystems and to ensure conservation and sustainable use of f ish stocks.”65 In short, the Agreement is about utilisation, albeit sustainable utilisation. Indeed, far from a complete ban or moratorium, the CAOF Agreement fully envisages the possibility of future f isheries; the whole purpose of the JPSRM being to f ind out what is there so decisions can be made as to when, how and under what conditions to commence commercial f isheries. Moreover, each party retains the right to propose the commencement of negotiations towards the establishment of one or more additional RFMO/As for the Central Arctic Ocean at any time. Pending the entry into force of any such agreement its parties would be at liberty to allow commercial f ishing in the area as long as mechanisms are in place to ensure it is done sustainably.66 In addition, parties also retain their rights and obligations arising from other agreements compatible with the CAOF Agreement. Importantly, nothing in the CAOF Agreement prejudices or undermines existing international f isheries management mechanisms.67 Thus, members of the North-East Atlantic Fisheries Commission (NEAFC), whose competence is expressly recognised in the preamble to the CAOF Agreement, retain the right to authorise their vessels to f ish in in the portion of the NEAFC regulatory area that falls in the Central Arctic Ocean.68

Precautionary Ecosystem-Based Management One area of signif icant similarity between the CAMLR Convention and the CAOF Agreement is their incorporation of the precautionary approach. Indeed, the negotiations for both agreements were explicitly based on the recognition of the need for a precautionary approach to the conservation and sustainable use of living marine resources. In the former, of primary concern were the potential impacts of unregulated krill harvesting on dependent and associated species;69 in the latter,

62 Rayfuse, “The Role of Law,” 2. 63 CAOF Agreement Article 6. 64 CAOF Agreement Article 13; see the section “Arctic Fisheries and the CAOF Agreement.” 65 CAOF Article 2. 66 Balton, “Implementing the New Arctic Fisheries Agreement,” 435. 67 CAOF Agreement Article 14(4). 68 CAOF Agreement, Preamble and Art 14(4). For discussion, see, and Rayfuse, “Taming the Wild North?” 278; Rayfuse, “Regulating Fisheries in the Central Arctic Ocean,” 42–48. 69 See section “Antarctic Fisheries and the CAMLR Convention.”

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of concern were potential impacts of unregulated f ishing on the health and sustainability of targeted f ish stocks and the marine ecosystem in general.70 A key difference between the two agreements lies, however, in the timing of their adoption. When the CAMLR Convention was adopted, commercial f isheries already existed in the Antarctic. While heavy commercial pressure on krill had not yet emerged, stocks of some f inf ish species had already been severely depleted by the time the convention was negotiated. Thus, while the CAMLR Convention requires the application of the precautionary approach, the convention itself is not, per se, precautionary. This is in contrast to the CAOF Agreement, which was adopted well in advance of any f ishing activity having taken place and in the almost complete absence of knowledge as to whether, and if so when, any such activity might take place in future. In short, the CAOF Agreement not only requires the application of a precautionary approach but is, in its very essence, precautionary in nature. Another area of similarity lies in the recognition of the need for ecosystem considerations to be taken into account. The CAMLR Convention was the f irst international agreement to mandate an ecosystem approach, which requires CCAMLR to consider the impacts of catch limits not only on target f ish or krill populations but on dependent and associated species, such as penguins and whales. Implementation of the ecosystem approach is now mandated more generally by Article 5 of the 1995 United Nations Fish Stocks Agreement,71 which requires States to consider the effects of f ishing activities on dependent and related species and on the broader marine ecosystem.72 Also mandated is the application of the precautionary approach73 which requires States to “be more cautions when information is uncertain, unreliable or inadequate. The absence of adequate scientif ic information shall not be used as a reason for postponing or failing to take conservation and management measures.”74 As Article 14 of the CAOF Agreement reminds the parties, they remain bound by these and by all other international obligations binding on them whether or not the CAOF Agreement is in force. In addition to the explicit recognition of the need for a precautionary approach, States negotiating the CAOF Agreement also explicitly recognised the need to safeguard the marine ecosystem and to improve scientif ic understanding of both the future f isheries potential and the broader ecosystem of the Central Arctic Ocean. Indeed, the safeguarding of healthy marine ecosystems is explicitly referred to in several articles in the CAOF Agreement.75 It is thus not surprising that the JPSRM to be established by the parties to the CAOF Agreement has as its aim the improvement of understanding of the ecosystem of the Central Arctic Ocean and the possible impacts of any f isheries on those ecosystems.76

70 Chairman’s Statement on the Fourth Meeting on High Seas Fisheries in the Central Arctic Ocean, Tórshavn, The Faroe Islands, November  29–December  1, 2016, www.state.gov/remarks-and-releases-bureau-of-oceans-and-internationalenvironmental-and-scientif ic-affairs/meeting-on-high-seas-f isheries-in-the-central-arctic-ocean-4/. 71 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted December 4, 1995, into force December 11, 2001, 2167 UNTS 88 (FSA). 72 FSA Article 5(e). 73 FSA Article 5(c). 74 FSA Article 6(2). 75 CAOF Agreement Articles 2, 3(3) and 13(3). See also Chairman’s Statement on the Fourth Meeting on High Seas Fisheries in the Central Arctic Ocean. 76 CAOF Agreement Article 4(2).

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The Role of Science Implementation of precautionary, ecosystem-based approaches to management is intimately linked with science. For its part, CCAMLR is often credited as being at the forefront of effective precautionary, ecosystem-based management.77 The Scientif ic Committee (SC-CAMLR), composed of scientists from each member State, is responsible for assessing the status and trends of populations of Antarctic marine living resources, analysing data concerning the direct and indirect effects of harvesting on those populations, and making recommendations to the Commission, on the basis of the best available science, with respect to conservation measures and research that are necessary to implement the objective of the Convention.78 This requires not only an understanding of individual stocks and species but an understanding of the key uncertainties “inherent in the effect of exploitation on the target species and subsequently on the ecosystem.”79 The CCAMLR Ecosystem Monitoring Program (CEMP) aims to produce monitoring information that can be used to predict ecosystem impact of various harvesting strategies, thereby providing the opportunity to avoid serious deterioration in Antarctic marine ecosystem health.80 Data recorded by CEMP is used to detect and record signif icant changes in certain critical components of the marine ecosystem in order to distinguish between changes due to harvesting of commercial species and changes due to environmental variability, both physical and biological.81 Nevertheless, the experience in CCAMLR shows just how challenging implementing a precautionary, ecosystem-based approach to management can be. Despite generally positive assessments of CCAMLR’s f inf ish management as precautionary,82 its management is essentially based on single stocks rather than ecosystem considerations. Scientists involved in CCAMLR are developing integrated ecosystem models; however, it is unclear whether, and if so to what extent, these models are influencing the Commission’s decision-making.83 In addition, while estimates of illegal, unreported and unregulated (IUU) f ishing for toothf ish are taken into account by SC-CAMLR in developing management advice, in the absence of accurate and comprehensive data about IUU catches, these estimates are inherently uncertain, which further undermines the precautionary effect of CCAMLR catch limits.84 CCAMLR’s consensus decision-making procedures also produce catch limits and other measures that are often set on the basis of political rather than purely scientif ic

77 Denzil Miller and N. M. Slicer, “CCAMLR and Antarctic Conservation,” in Governance of Marine Fisheries and Biodiversity Conservation: Interaction and Coevolution, eds. S. M. Garcia, J. Rice, and A. Charles (Chichester, UK: John Wiley & Sons, Ltd., 2014); A. Fabra and V. Gascón, “The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the Ecosystem Approach,” International Journal of Marine and Coastal Law 23 (2008): 567–98. 78 CAMLR Convention Articles XIV and XV. 79 Stuart Hatchet, Keith Sainsbury, Douglas Butterworth et al., “CCAMLR’s Precautionary Approach to Management Focusing on Ross Sea Toothf ish Fisheries,” Antarctic Science 27 (2015): 333. 80 See Inigo Everson, “Consideration of Major Issues in Ecosystem Monitoring and Management,” CCAMLR Science 9 (2002): 213 at 216–17. 81 David J. Agnew, “The CCAMLR Ecosystem Monitoring Program,” Antarctic Science 9 (1997): 235, 236; Keith Reid et al., “Antarctic Ecosystem Monitoring: Qualifying the Response of Ecosystem Indicators to Variability,” in Antarctic Krill, ICES Journal of Marine Science 62 (2005): 366, 367. 82 Andrew J. Constable, “Lessons from CCAMLR and the Implementation of the Ecosystem Approach to Managing Fisheries,” Fish and Fisheries 12, no. 2 (2011): 138–51; CCAMLR, Report of the Thirty Fourth Meeting of the Scientif ic Committee, SC-CAMLR-XXXIV (CCAMLR, 2015), 406. 83 Peter A. Abrams, “How Precautionary is the Policy Governing the Ross Sea Antarctic Toothf ish (Dissostichus mawsoni) Fishery?” Antarctic Science 26, no. 1 (2014): 3–14. 84 Fabra and Gascón, “The Convention on the Conservation of Antarctic Marine Living Resources,” 577.

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considerations.85 Indeed, it has been suggested that as a result of various knowledge gaps and associated uncertainties the total allowable catch for the toothf ish f ishery in the Ross Sea is not set at a suff iciently precautionary level.86 Moreover, little is known about the recovery of historically depleted stocks beyond the fact that these stocks have still not recovered. Consolidated assessments of the potential for current f isheries to impede recovery of depleted species, either directly or indirectly, and of the changes to the ecosystem that may arise as a result of the recovery of depleted species are lacking.87 In addition, critical factors such as environmental/recruitment relationships are not taken into account in stock assessments.88 This has led some to suggest that CCAMLR stock assessment work, and thus its f isheries management, may not be as robustly precautionary as is needed to ensure effective ecosystem management into the future.89 The unbridled expansion of so-called “exploratory f isheries,” in the Convention Area has also been criticised as a pathway to veiled commercial f ishing.90 The situation is little better with respect to CCAMLR’s management of krill. Since 2011 CCAMLR has been committed to adopting a feedback management approach to the krill f ishery as a more effective way of achieving the multiple objectives required of an ecosystem approach than the f ixed catch limit approach permits.91 However, this has presented profound challenges relating, among other things, to the need to meet multiple management objectives for krill, its predators, and the f ishery, and the need to factor in ongoing ecosystem changes having multiple putative drivers, including current and past harvesting, and climate change. The effort has also been undermined by high levels of uncertainty in the current understanding of ecosystem structure and functions.92 These challenges have yet to be overcome which rather begs the question as to just how effective CCAMLR’s krill management is in a broader ecosystem sense. The adoption of spatial management measures aimed at protecting broader ecosystem concerns has also been a challenge. CCAMLR has responded to global concerns regarding the protection of vulnerable marine ecosystems (VMEs) by prohibiting the use of bottom-trawling and deep-water gillnets and by otherwise regulating bottom f ishing activities.93 The procedures adopted have not, however, been uncontroversial and have given rise to complex discussions in the Scientif ic Committee and the Commission relating to the influence of different gear types on VME bycatch and the need to expand VME cumulative adverse impact assessments to gear other than longlines. By far the most contentious issue in CCAMLR in recent years, however, has been the use of marine

85 See Jessica A. Nilsson et al., “Consensus Management in Antarctica’s High Seas – Past Success and Current Challenges,” Marine Policy 73 (2016): 172, 175–76. 86 Peter A. Abrams et al., “Necessary Elements of Precautionary Management: Implications for Antarctic Toothf ish,” Fish and Fisheries 17, no. 4 (2016), https://doi.org/10.1111/faf.12162. 87 CCAMLR, Report of the Second CCAMLR Performance Review Panel, presented to the Thirty-Sixth Meeting of the Commission (August 23, 2017), para. 31 (PR2 Report). 88 Ibid. 89 Trathan and Agnew, “Climate Change and the Antarctic Marine Ecosystem,” 394–96. 90 Fabra and Gascon, “The Convention on the Conservation of Antarctic Marine Living Resources,” 580. 91 See SC-CAMLR, Report of the Thirtieth Meeting of the Scientif ic Committee, SC-CAMLR-XXX (November 2011), paras. 3.33–3.35. 2011. 92 Miller, “CCAMLR Management and Conservation,” 12. 93 See CCAMLR CM 22–05: Restrictions on the use of bottom trawling gear in high-seas areas of the Convention Area (2008); CM 22–06: Bottom f ishing in the Convention Area (2019); CM 22–07: Interim measure for bottom f ishing activities subject to Conservation Measure 22–06 encountering potential vulnerable marine ecosystems in the Convention Area (2013); CM 22–09: Protection of registered vulnerable marine ecosystems in subareas, divisions, small-scale research units, or management areas open to bottom f ishing (2013).

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protected areas (MPAs) as an ecosystem management tool. Despite near scientif ic consensus that the dual pressures of climate change and human activity (mostly f ishing) justify the establishment of MPAs,94 achieving political consensus on their establishment has run headlong into perceived economic and political costs which have largely played out in arguments over the adequacy or otherwise of the science on which the proposals are based. The Ross Sea Region MPA,95 which was adopted in 2016, was not only reduced in scope and its area of application altered to accommodate f ishing interests but was adopted subject to a time limitation of 35 years, “which is shorter than the life histories of many birds, mammals and f ish that the MPA sets out to protect.”96 Moreover, despite the development of comprehensive science-based proposals for other MPAs in the East Antarctic Region and the Weddell Sea and a host of environmental and political concessions aimed at securing their adoption,97 CCAMLR has been unable to agree on the establishment of any further MPAs.98 CCAMLR’s experience in establishing time-limited special areas for scientif ic study in newly exposed marine areas following ice-shelf retreat or collapse is also cause for concern.99 The twostage process involves a provisional two-year designation as a Special Area for Scientif ic Study pending a further ten-year designation, on the basis of SC-CAMLR advice, to enable research into ecosystem processes in relation to climate change. Special conditions apply to f ishery and harvest-related research aimed at avoiding veiled commercial activity under the guise of serial research activities. In 2020, however, despite scientif ic advice calling for an extension of the f irst such provisional Special Area designation, CCAMLR failed to agree to do so; the interest of some members in immediate access to previously ice-covered areas flying in the face of scientif ic interests and concerns.100 Clearly, some States are anxious to access previously ice-covered areas regardless of science interests or needs. Science is, of course, also central to – indeed one of the two objectives of – the CAOF Agreement. As noted earlier, the whole point of the JPSRM is to improve scientif ic understanding of both the future f isheries potential and the broader ecosystems of the Central Arctic Ocean, as well as the potential effects any f ishing might have on those ecosystems. Obviously, as the Arctic ice recedes, opportunities for conducting this research will only increase. This will allow important gathering of baseline and other data on everything from plankton to f ish, whales, seabirds, seals and (possibly) polar bears, as well as species interactions and climate change induced changes in ecosystem dynamics and populations. This data will then influence decisions as to when, how and under what conditions to launch commercial f isheries in the future. Interestingly, Article 3(4) of the CAOF Agreement expressly stipulates that scientif ic activities involving the catching of f ish are not to undermine the prevention of unregulated commercial and exploratory f ishing and the protection of healthy marine ecosystems. Science is to come f irst, commercial f ishing later.

 94 CCAMLR, Conservation Measure 91–04: General Framework for the establishment of CCAMLR Marine Protected Areas (2011).  95 CCAMLR Conservation Measure 91–05: Ross Sea Region Marine Protected Area (2016).  96 CCAMLR PR2 Report para. 33.  97 Rayfuse, “Climate Change and Antarctic Fisheries,” 69–72.  98 CCAMLR, Report of the Thirty-Ninth Meeting of the Commission (CCAMLR-XXXIX), Virtual Meeting, October 27–30, 2020, paras 8.16–8.35. See also Chapter 14 in this volume.  99 CCAMLR CM 24–04: Establishing time-limited Special Areas for Scientif ic Study in newly exposed marine areas following ice-shelf retreat or collapse in Statistical Subareas 48.1, 48.5 and 88.3 (2017). 100 CCAMLR, Report of the Thirty-Ninth Meeting of the Commission, paras 8.12–8.15.

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Precisely how the JPSRM will be organised remains to be seen, although it is clearly intended that it will build on the work of the scientif ic meetings that helped inform the negotiations for the CAOF Agreement.101 This work has included a synthesis and integrated analysis of what is known, what research and monitoring gaps exists and what additional information is needed. Both a framework and implementation plan for the JPSRM have been produced, and a mapping program describing the priority (geographic) areas to sample, the types of data to collect and possible data collection approaches to apply has been developed. A  strategy for monitoring indicators of f ish stocks and ecosystem components has also been outlined. In addition, a draft data sharing policy has been developed.102 The f inal data sharing protocol and terms of reference and other procedures for the JPSRM are to be adopted within two years of the entry into force of the Agreement.103 Joint meetings are to be held at least every two years in advance of the biennial meetings of the parties which will review all available scientif ic information developed through the JPSRM and national scientif ic programs and from any other relevant sources, including Indigenous and local knowledge.104 At time of writing, when and where the f irst meeting of the parties to the CAOF Agreement will be held is unknown; it is considered unlikely to occur until the global COVID-19 pandemic situation has subsided suff iciently to allow for an in-person meeting.105 In the meantime, preparatory work is being done on the rules of procedure for the formal meetings of the parties, on the modus operandi for the incorporation of Indigenous knowledge and the participation of Indigenous communities, and on the possible establishment of a scientif ic body to advise the parties on the implementation of the JPSRM.106 While resource needs and costs associated with the JPSRM have been identif ied, its success will ultimately rest on the dedication of signif icant resources and on the willingness and ability of the parties to agree on the science and to accept it.

Conclusion This chapter has compared and contrasted some aspects of the regimes for the regulation of highseas f isheries at the poles, focusing on their objectives and on the extent to which they either achieve or can be expected to achieve those objectives. On paper, at least, high-seas f isheries in both the Southern Ocean and the Central Arctic Ocean are subject to forward-looking, precautionary regimes intended to ensure the conservation and sustainable use of the f ishery resources and the protection of the wider ecosystems in which those resources exist. As experience in CCAMLR

101 See Report of a Meeting of Scientif ic Experts on Fish Stocks in the Arctic Ocean, Anchorage, Alaska, June  15–17, 2011; Report of the Second Scientif ic Meeting on Arctic Fish Stocks, Tromsø, October 28–31, 2013; Final Report of the Third Meeting of Scientif ic Experts on Fish Stocks in the Central Arctic Ocean, Seattle, USA, April 14–16, 2015, www.afsc.noaa.gov/ Arctic_f ish_stocks_third_meeting/default.htm; Final Report of the Fourth Meeting of Scientif ic Experts on Fish Stocks in the Central Arctic Ocean, Tromsø, Norway, September 26–28, 2016; and Final Report of the Fifth Meeting of Scientif ic Experts on Fish Stocks in the Central Arctic ocean, Ottawa, Canada, October 24–26, 2017. 102 Final Report of the Fourth Meeting of Scientif ic Experts on Fish Stocks in the Central Arctic Ocean; Final Report of the Fifth Meeting of Scientif ic Experts on Fish Stocks in the Central Arctic Ocean. 103 CAOF Agreement Article 4(5). 104 CAOF Agreement Articles 4(4) and 5. 105 Balton, “The Arctic Fisheries Agreement Enters into Force,” 3. 106 See Report of the 1st Meeting of the Provisional Scientif ic Coordinating Group (PSCG) of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, February  11–13, 2020, Ispra, Italy, https://apps-afsc.f isheries.noaa. gov/documents/Arctic_f ish_stocks_f ifth_meeting/13200_109215706.pdf, at www.f isheries.noaa.gov/event/f ifthmeeting-scientif ic-experts-f ish-stocks-central-arctic-ocean.

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demonstrates, however, implementing precautionary, ecosystem-based approaches to the management of high-seas f isheries is a diff icult task, fraught with scientif ic uncertainties and exacerbated by political disagreements among the parties rooted in differences of opinion as to the objectives of the Convention. IUU f ishing by vessels of both member and non-member States, with its detrimental impacts on stock status and stock assessment, only complicates the picture. Given the differing interests both among the Arctic Ocean coastal States and between them, on the one hand, and the other States Parties to the CAOF Agreement, on the other, it seems reasonable to expect similar diff iculties to arise in its implementation, particularly in reaching agreement on the measures pursuant to which exploratory f ishing may be conducted, on the conditions for the initiation of any commercial f ishery and on the negotiation of a robust management regime for such f ishery. The real test for the CAOF Agreement is yet to come. In the meantime, there is much to be learned from the CCAMLR experience.

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17 MARINE MAMMALS IN THE POLAR REGIONS Malgosia Fitzmaurice and Robert C. Steenkamp

Introduction This chapter analyses the international legal framework regulating marine mammals in the polar regions. This chapter does not analyse national legislation but rather focuses on multilateral and regional conventions of relevance to polar marine mammals. General conventions considered in this chapter include the United Nations Convention on the Law of the Sea (LOSC)1 and the Convention on Biological Diversity (CBD),2 which provide general guidance in the conservation of marine mammals. There are, however, conventions of wide participation, which expressly refer to marine mammals in the polar regions, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).3 The International Convention for the Regulation of Whaling (ICRW)4 is a unique instrument as it is a global treaty but, unlike CITES, only regulates whales. There are a number of regional, species-oriented instruments and bodies discussed in this chapter, including the Agreement on the Conservation of Polar Bears (ACPB),5 the North Atlantic Marine Mammal Commission (NAMMCO) and the Convention for the Conservation of Antarctic Seals (CCAS).6 This chapter highlights various activities associated with marine mammals and stresses the special role and connection that Indigenous Peoples have with respect to the regulation of these species provided for in international conventions. Aspects associated with the interplay between Indigenous Peoples and marine mammals have evolved robustly, and every year sees new developments. Such developments are particularly noticeable in the International Whaling Commission (IWC), where commercial and scientif ic whaling has, for almost all purposes, been eradicated after the withdrawal of Japan from the ICRW and where aboriginal whaling has gained prominence.

1 1833 UNTS 3, entered into force November 16, 1994. 2 1760 UNTS 79, entered into force December 29, 1993. 3 993 UNTS 243, entered into force. July 1, 1975. 4 161 UNTS 72, entered into force November 10, 1948. 5 2898 UNTS 243, entered into force May 26, 1976. 6 1080 UNTS 175, entered into force March 11, 1978.

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The complex legal nexus between various conventions is further complemented by the measures, decisions and resolutions of the consultative parties of the Antarctic Treaty System and the recommendations of the Arctic Council and its working group on the Conservation of Arctic Flora and Fauna (CAFF), which is mandated to address the conservation of Arctic biodiversity and to communicate its f indings to the governments and residents of the Arctic through various monitoring, assessment and expert group activities.7 Most importantly, CAFF plays a leading role in monitoring the implementation of 17 recommendations articulated in the Arctic Biodiversity Assessment (ABA) on the basis of the recommendations of the Arctic ministerial meeting.8 Dwindling marine mammal habitat is increasing human-mammal interaction and a reduction in sea ice is opening new shipping lanes, potentially increasing the risk for marine mammal causalities. Climate change, melting ice and deteriorating habitats present formidable and challenging circumstances to the preservation of species.9 Marine mammals, as has been observed many times, evoke strong emotions and, notwithstanding their ecological status, are often treated with reverence.10 The divergence in attitudes is reflected in the well-documented “battle” between conservationists and preservationists, particularly in relation to whales. The conservationist approach refers to the sustainable use of natural resources, while the preservationist approach is premised on the complete protection of species. The basic premise of the conservationist approach is to manage whale stocks as any other marine resource according to the principle of sustainable use. Conservationists, therefore, oppose the blanket moratorium on commercial whaling where such moratorium is not supported by scientif ic evidence. The preservationist approach supports the idea of taking no whale stocks, irrespective of scientif ic f indings regarding stock levels.11 At this stage, it would appear that the IWC is leaning towards a preservationist approach – evidenced by the IWC meeting in Florianópolis in 2018, where a Japanese proposal to end the moratorium on commercial whaling was rejected.12 Marine mammals consist of f ive core groups: cetaceans (whales, dolphins and porpoises); pinnipeds (seals, sea lions and walruses); polar bears; sirenians (dugongs and manatees); and sea otters. Polar bears and certain populations of cetaceans and pinnipeds are the only marine mammals residing in the polar regions.13 Eleven marine mammal species are native to the Arctic – polar bears, three cetaceans and seven pinnipeds – and approximately twenty-four species are known to be occasional visitors.14 The Antarctic is home to six species of pinnipeds and f ifteen cetaceans.15 The precise def inition of what constitute “polar regions,” especially in the case of the Arctic, is a complex issue.16 In this regard, there is debate around whether to adopt a wider or a narrower

7 CAFF, “About CAFF,” www.caff.is/about-caff. 8 Arctic Council, “Arctic Biodiversity Assessment Now Available,” https://arctic-council.org/en/news/ arctic-biodiversity-assessment-now-available/. 9 Richard Caddell, “Marine Mammals at the Poles,” in Research Handbook on Polar Law, eds. Karen Scott and David VanderZwaag (Cheltenham: Edward Elgar, 2020), 220–21. 10 Ibid., 217. 11 Malgosia Fitzmaurice, Whaling and International Law (Cambridge: Cambridge University Press, 2015), 86–87. 12 The Japanese proposal “Way Forward” was defeated because it obtained only twenty-seven votes in support, while fortyone States voted against (https://iwc.int/day-f ive). 13 Caddell, “Marine Mammals at the Poles,” 218. 14 Kristin Laidre and Eric Regehr, “Arctic Marine Mammals,” in Encyclopedia of Marine Mammals, eds. Bernd Würsig et al. (London: Elsevier, 2018), 34. 15 Andrew Lowther, “Antarctic Marine Mammals,” in Encyclopedia of Marine Mammals, eds. Bernd Würsig et al. (London: Elsevier, 2018), 28–30. 16 Caddell, “Marine Mammals at the Poles,” 218.

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def inition of the region.17 Interestingly in relation to biodiversity, the Arctic Council CAFF working group has adopted a wide def inition of the “Arctic” that encompasses a larger area, thereby including habitats that would otherwise be excluded.18 It should be stressed from the outset, however, that the Arctic Council is not an international organisation with independent legal personality or law-making powers.19 The legal regulation of polar marine mammals is an intricate connection of conventions, other binding legal instruments and soft law. It is a constantly evolving area of biodiversity protection and the network of international conventions play an integral role in protecting polar mammals. However, there remains room for improvement since, at times, particular interests prevail at the expense of necessary species protection. After a short discussion of the generally applicable framework of LOSC and the CBD, this chapter analyses those regional and international regimes applicable to polar bears, cetaceans and pinnipeds, respectively. This chapter ends with a discussion of non-compliance procedures and their relevance in polar marine mammal conservation and protection.

LOSC and the CBD There are numerous international agreements that either directly or indirectly regulate marine mammals and their habitat at the poles. Before detailing those regimes specif ic to individual groups of marine mammals, brief reference is made here to LOSC and the CBD.

LOSC LOSC regulates marine mammals both within and beyond areas of national jurisdiction and provides an overarching framework for the regulation of all marine mammals. Of particular relevance are Articles 64, 65 and 120. Article 64 requires States to ensure the conservation and promote the objective of optimum utilisation of highly migratory species listed in Annex I of LOSC (which includes seven cetacean species). The objective of Article 64, therefore, is both utilisation and conservation.20 That said, the optimum utilisation objective in Article 64 is considered lex generalis, while Article 65 is considered lex specialis.21 Article 65 of LOSC calls on States Parties not only to “cooperate with a view to [marine mammal] conservation” but in the case of cetaceans, to also “work through the appropriate international organizations for their conservation, management and study.” Article 120 of LOSC extends the obligations under Article 65 (relating to the exclusive economic zone) to the high seas. The exact content of the obligations to “cooperate” and to “work through” and the plural reference to “organisations” in Article 65 (and by reference Article 120) remain unclear,22 with

17 The wider notion includes marine areas connecting the wider Arctic Ocean to the northernmost points of the Pacif ic and Atlantic Oceans. The narrower approach is adopted by individual coastal States in the High North. 18 Caddell, “Marine Mammals at the Poles,” 218–19. 19 See Chapter 21 of this volume. 20 Fitzmaurice, Whaling and International Law, 215. 21 Myron Nordquist et al., eds, United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (Boston and Leiden: Brill and Nijhoff, 1993), para 64.9(f). 22 See, generally, Ted L. McDorman, “Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Convention,” Ocean Development and International Law 29 (1998): 179–94; Fitzmaurice, Whaling and International Law, 186 et seq; and Robert C. Steenkamp and Cameron Jefferies, “In Pursuit of the White Whale of Cooperation: The Ability of UNCLOS to Steer the Trajectory of (Future) Commercial Japanese Whaling Operations,” Asia-Pacif ic Journal of Ocean law and Policy 5 (2020): 262–63.

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Birnie highlighting that the article is “one of the most opaque articles in [LOSC].”23 That the IWC is an appropriate organisation under Article 65 is undeniable; however, the wording of Article 65 suggests that other international organisations may also be appropriate for the purposes of marine mammal conservation and management. Gillespie interprets Article 65 as granting the IWC central and uppermost international authority for cetaceans.24 However, different interpretations focus on “organisations” as clearly indicating that other whaling organisations are equally competent to decide on whaling matters and that the IWC lacks the exclusive role in this area.25 A detailed discussion of the primacy of the IWC in the area of cetacean conservation and management is beyond the scope of this chapter. However, LOSC undoubtedly requires cooperation in the conservation of all marine mammals and provides an overarching framework for their regulation both in the EEZ areas of Arctic States and in the large expanse of high-seas areas in the Southern Ocean.26

Convention on Biological Diversity The CBD aims to protect ecosystems and habitats, providing for the identif ication, monitoring and protection of areas important to species that might be endemic, threatened or migratory or have scientif ic, cultural, economic, social or evolutionary importance (Article 7). Much of the work of the CBD appears to require cooperation and consideration of other international agreements. To this end, the parties to the CBD adopted a decision in 2004 with the purpose of establishing the Liaison Group of Biodiversity-Related Conventions.27 The liaison group brings the heads of the secretariats of several biodiversity-related conventions (including the CBD, CITES, CMS and IWC) together in order to enhance coherence and cooperation in implementing the respective conventions. However, the “conservation of marine ecosystems and biodiversity have been largely overlooked by the CBD despite their inclusion within its jurisdictional scope.”28 Encouraging steps taken to increase cooperation across biodiversity related instruments, as well as the CBD’s potential to manage biological diversity at a global level, are sometimes outweighed by its complex and somewhat fragmented programme of work – resulting in relatively “little in the way of development of further legal norms to strengthen or supplement the obligations contained in the Convention.”29 The general nature of the CBD (containing no specif ic provisions directed at polar mammals), therefore, runs the risk of increasing interpretative disputes and the effectiveness of the CBD specif ically to regulate marine mammal conservation at the poles is minimal. As a framework convention, the CBD may nevertheless offer some limited guidance in matters concerning contemporary approaches to conservation (such as the use of the precautionary and ecosystem approach), and the facilitation of cooperation

23 Patricia Birnie, “Marine Mammals: Exploiting the Ambiguities of Article 65 of the Convention on the Law of the Sea and Related Provisions: Practice under the International Convention for the Regulation of Whaling,” in The Law of the Sea: Progress and Prospects, eds. David Freestone, Richard Barnes, and David M. Ong (Oxford: Oxford University Press, 2006), 261. 24 Alexander Gillespie, Whaling Diplomacy: Def ining Issues in International Environmental Law (Cheltenham: Edward Elgar Publishing, 2005), 322–26. 25 Fitzmaurice, Whaling and International Law, 186. 26 Caddell, “Marine Mammals at the Poles,” 222. 27 CBD, “Cooperation with other conventions and international organizations and initiatives,” UNEP/CBD/COP/DEC/ VII/26, April 13, 2004. 28 Ed Couzens, Whales and Elephant in International Conservation Law and Politics (New York: Routledge, 2014), 200. 29 Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (Cambridge: Cambridge University Press, 2018), 405.

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across various environmental instruments may have supplementary effects for biodiversity management in other more specif ic instruments.30 Having briefly framed two general conventions, the next section is dedicated to those instruments that deal with the conservation and management of cetaceans, polar bears and pinnipeds more directly.

Cetaceans Introduction The polar regions are home to a diverse range of cetaceans. Recent studies have described whales as “ ‘ecosystem engineers,’ moving deep-sea nutrients into the sunlight where their faecal plumes fertilise the water and help the productivity of ecosystems.”31 As with all marine mammals, cetaceans face several threats to their long-term survival, including climate change, pollution (including noise pollution), ship strikes and habitat destruction. While traditionally considered to have greatly reduced certain cetacean species, some scholars argue that commercial exploitation is no longer a major threat to cetacean conservation.32 However, with new whale species described as recently as January 2021,33 our understanding of their distribution and ecological signif icance and the impact that contemporary threats may have on their traditional feeding grounds at the poles is largely underdeveloped. The dichotomy between the protection and sustainable use of cetaceans is well documented and the purpose of this section is not to repeat these arguments. Rather, the following section highlights contemporary developments in existing international instruments and their relevance to the conservation and management of cetaceans. International instruments of relevance to cetacean conservation and management discussed here are the ICRW, the governance framework associated with the Antarctic and the Arctic, CITES, and the Convention on the Conservation of Migratory Species of Wild Animals (CMS).34

The International Convention for the Regulation of Whaling Concluded in 1946, the ICRW is the principal international regime governing whaling and cetacean management, including at the poles. Indicated in the preamble, the purpose of the Convention is to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.” Historically, the ICRW has only regulated large whales and there is ongoing disagreement whether or not the IWC has the competence to also regulate small cetaceans. Established by the ICRW, the IWC achieves its management objectives through the maintenance of a binding regulatory schedule,35 which currently only lists so-called “great whales” and iconic

30 See the Preamble of the CBD, stating that “where there is a threat of signif icant reduction or loss of biological diversity, lack of full scientif ic certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.” See Chapter 14 of this volume. 31 WWF, “Whales of the Antarctic Peninsula: Science and Conservation for the 21st Century,” www.wwf.fr/sites/ default/f iles/doc-2019-02/201811_WWF_UCSC_AntarcticWhales_Report_Web-min.pdf. 32 E.g. Nicholas Sellheim, International Marine Mammal Law (Switzerland: Springer, 2020), 35. 33 Patricia Rosel et al., “A New Species of Baleen Whale (Balaenoptera) from the Gulf of Mexico, with a Review of its Geographic Distribution,” Marine Mammal Science (2021), https://onlinelibrary.wiley.com/doi/abs/10.1111/mms.12776. 34 1651 UNTS 333, entered into force November 1, 1983. 35 ICRW, Art. I(1).

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Arctic species, such as the beluga and the narwhal (as medium-sized whales), and smaller Antarctic species (such as the hourglass dolphin), which are probably excluded from the ambit of the ICRW.36 Any amendment to the schedule requires a three-quarters majority of those members voting, while all other decisions of the IWC are made based on a simple majority acquired from those States Parties present at the now biennial meetings.37 Additionally, the IWC is also entitled to establish “such committees as it considers desirable to perform such functions as it may authorize” – the most prominent of which is the Scientif ic Committee (often described as the leading international forum for cetacean science).38 In what can be seen as an enhancement of the IWC’s growing protectionist agenda, the IWC established a Conservation Committee in 2003 in order to “bolster the work of the Scientif ic Committee and to explore further synergies with allied institutions.”39 At the most recent IWC meeting in 2018, the relationship between Japan and anti-whaling States f inally reached breaking point when States Parties adopted the Florianópolis Declaration (FD). The FD def ines the role of the IWC as, inter alia, ensuring “the recovery of cetacean populations to their pre-industrial levels, and in [that] context reaff irms the importance in maintaining the moratorium on commercial whaling.”40 The IWC seems to have conf irmed that the temporary moratorium on commercial whaling will continue indef initely.41 In 2019, Japan announced its withdrawal from the ICRW (ending its controversial scientif ic whaling programme in the Southern Ocean),42 and Iceland announced that it would suspend its commercial whaling operations (perhaps permanently).43 Although based on different political or economic reasons, the actions of these two States have arguably dealt a def ining blow to the resumption of commercial whaling and the continuance of scientif ic whaling under the IWC – especially since Norway, having opted out of the moratorium, is now the only IWC member State commercially whaling. Particularly relevant in the context of cetacean management in the Arctic is the IWC’s regulation of aboriginal subsistence whaling (ASW). Without detailing how the IWC specif ically regulates ASW, it is necessary to highlight that although an aboriginal people may have “a whaling tradition does not automatically provide reason enough for the IWC to accept this tradition and allocate an ASW quota.”44 Given its signif icance to Indigenous Peoples, ASW is perhaps less objectionable than the other forms of whaling regulated by the IWC (scientif ic and commercial whaling).

36 At its 67th meeting, the IWC Report indicated an increase in funding from IWC contracting parties “in relation to small cetaceans” with several donations being made to the IWC’s Small Cetacean Voluntary Fund. With this in mind, and despite not regulating small cetaceans, contracting parties continue to express interest at including small cetaceans under the regulatory framework of the ICRW; see also Gillespie, Whaling Diplomacy, 276–89; and Fitzmaurice, Whaling and International Law, 285. 37 ICRW, Art. III(2). 38 Ibid., Art. III(4). 39 Caddell, “Marine Mammals at the Poles,” 225. 40 IWC, “Chair’s Report of the 67th Meeting,” Rep2018 (Chair 67), September 2018; and IWC, “The Florianópolis Declaration on the Role of the International Whaling Commission in the Conservation and Management of Whales in the 21st Century,” Res 2018–5, September 2018. 41 Steenkamp and Jefferies, “In Pursuit of the White Whale of Cooperation,” 259. 42 See Ministry of Foreign Affairs of Japan, Statement by Chief Cabinet Secretary (December 26, 2018), www.mofa.go.jp/ ecm/fsh/page4e_000969.html. 43 See “Commercial Whaling may be Over in Iceland,” May 1, 2020, www.nationalgeographic.com/science/2020/04/ commercial-whaling-may-be-over-iceland/. 44 Sellheim, International Marine Mammal Law, 106–7.

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However, ASW is not without opposition.45 The species hunted, the hunting methods and an overall duty to consider wider ecological impacts are all considerations in renewing ASW quotas. In this regard, there is growing concern surrounding increased quotas set by the IWC, as well as NAMMCO (see the following section) for ASW. Most ICRW member States largely support ASW, but as evidenced during deliberations on the resumption of Makah whaling,46 certain States may be hoping “for a long-term phasing out of whaling [rather] than a resumption of it.”47 Although aboriginal peoples may have a legal right to conduct whaling under the auspices of the IWC, “the overall wish to phase out whaling activities worldwide may constitute a normative obstacle to this right.”48 Should the protectionist agenda (especially in light of increased quotas) within the IWC intensify in a manner that threatens ASW, the hostile environment traditionally surrounding commercial whaling may remain, albeit in the context of ASW.

Whaling in the Southern Ocean With regard to Antarctica, the Antarctic Treaty System (ATS) includes several treaties aimed at facilitating international cooperation, regulating human activities and conserving Antarctic marine living resources.49 However, the ATS has been “explicit in [its] deference to the IWC in dealing with cetaceans,”50 primarily to avoid “cross-contaminating these arrangements with the long-standing acrimony associated with Antarctic whaling experienced in other forums.”51 Although the ATS has the ability to foster protection for the Antarctic environment, the deferral of cetacean management to other regimes (notably the ICRW) ultimately reduces the ability of the ATS “to truly govern all activities that impact the Antarctic marine ecosystem.”52 Given the increased environmental threats that cetaceans in Antarctica are expected to face, this deferral is unfortunate. In discussing whaling in the Southern Ocean, brief mention should be made to the Whaling in the Antarctic case.53 In 2014, the ICJ ordered Japan to revoke existing authorisations to take whales in relation to JARPA II (Japan’s Antarctic whaling programme between 2009 and 2014). Following the judgement, Japan declared its intention to comply with the ICJ’s decision and, accordingly, ceased its whaling activities under JARPA II and revoked all outstanding special permits.54 However, Japan subsequently designed a new whaling research programme in the Antarctic (NEWREP-A) and, not unlike

45 Malgosia Fitzmaurice, “Indigenous Peoples in Marine Areas: Whaling and Sealing,” in The Rights of Indigenous Peoples in Marine Areas, eds. Stephen Allen et al. (Oxford: Hart Publishing, 2019), 83–84. 46 See, generally, Jeremy Firestone and Jonathan Lilley, “Aboriginal Subsistence Whaling and the Right to Practice and Revitalize Cultural Traditions and Customs,” Journal of International Wildlife Law and Policy 8 (2005): 177–219. 47 Sellheim, International Marine Mammal Law, 107; see also the statements made by a number of Latin American States at the 2018 IWC meeting regarding the automatic renewal of ASW quotas, expressing concern that automatic renewal could result in aboriginal peoples conducting, de facto, commercial whaling, possibly causing conservation issues in the future. 48 Sellheim, International Marine Mammal Law, 107. 49 Such treaties include the Antarctic Treaty (402 UNTS 71, entered into force December 1, 1959), its Protocol on Environmental Protection (2941 UNTS, entered into force January 14, 1998) and the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR; 1329 UNTS 47, entered into force April 7, 1982). 50 Gillespie, Whaling Diplomacy, 331. 51 Caddell, “Marine Mammals at the Poles,” 230; Madrid Protocol, Art 4 and Annex II; Antarctic Treaty, Art VI. 52 Johanna Mossop, “Marine Mammals in the Antarctic Treaty System,” in The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes, eds. Erik Molenaar et al. (Leiden and Boston: Martinus Nijhoff, 2013), 279. 53 Whaling in the Antarctic (Australia v Japan; New Zealand Intervening), 2014, ICJ Rep 226, para 245. 54 Malgosia Fitzmaurice and Dai Tamada, “Introduction,” Whaling in the Antarctic: Signif icance and Implications of the ICJ Judgment, eds. Malgosia Fitzmaurice and Dai Tamada (Leiden: Brill and Nijhoff, 2016), 6.

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JARPA II, this whaling programme was also criticised. Specif ically, the Scientif ic Committee of the IWC expressed the view that NEWREP-A’s design was not reasonable in relation to achieving its stated scientif ic objectives.55 Notwithstanding the fact that the ICJ did not exclude the possibility of future Antarctic scientif ic research programmes, the NEWREP-A whaling programme (following Japan’s withdrawal from the IWC) came to an end in 2019. It should be noted that this judgement only dealt with one programme of scientif ic whaling (not dealing with Japanese whaling in the North Pacif ic, or with any other whaling conducted by Norway, Iceland or Indigenous Peoples), and the decision’s relevance to whaling activities taking place outside the Southern Ocean appears limited.56 However, perhaps the absence of Japanese scientif ic whaling in Antarctica has presented the ATS with a new opportunity to increase its longstanding (albeit thus far moderate) cooperation with the IWC in protecting a habitat crucial to cetacean management.57

Regional Agreements The NAMMCO Agreement With regard to the Arctic, mention is only made here to the Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic (NAMMCO Agreement),58 which established NAMMCO. NAMMCO is considered the f irst regional whaling organisation established with the obligations of Article 65 of LOSC in mind and describes itself as “an international regional body for cooperation on conservation, management and study of cetaceans . . . in the North Atlantic.”59 Particularly in the context of small cetaceans, NAMMCO supports the scientif ic work of the Joint Commission for the Conservation and Management of Beluga and Narwhal (JCBN). The JCBN was established in 1991 to manage belugas and narwhals migrating between Canada and Greenland. NAMMCO has bolstered the scientif ic work of the JCBN and “provides an enhanced basis to consider scientif ic and ecosystem requirements.”60 However, it must be stressed that NAMMCO only provides scientif ic advice, both to its member States as well as to the JCBN, and it does not have any binding regulatory power. The relationship and potential for regulatory overlap between NAMMCO and the IWC has been detailed elsewhere.61 However, NAMMCO is certainly concerned with the conservation of marine mammals (albeit with a strong sustainable use agenda) and several recommendations have been made in the context of belugas and narwhals. Most recently, the NAMMCO Scientif ic

55 IWC, “Report of the Scientif ic Committee” (2016), https://archive.iwc.int/pages/view.php?ref=5429&k=&search=% 21collection73&offset=0&order_by=relevance&sort=DESC&archive=0. 56 Malgosia Fitzmaurice, “Whaling and Inter- and Intra-Generational Equity,” in Research Handbook on Biodiversity and Law, eds. Michael Bowman et al. (Cheltenham: Edward Elgar, 2016), 324. For a view on the judgement’s implications for whaling activities outside the Southern Ocean, see Yoshifumi Tanaka, “Toward Sustainable Management of Marine Natural Resources,” in Sustainable Ocean Resource Governance: Deep Sea Mining Marine Energy and Submarine Cables, eds. Markus Kotzur et al. (Leiden and Boston: Brill and Nijhoff, 2018), 121. 57 See Olav Stokke, “The Effectiveness of CCAMLR,” in Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System, eds. Olav Stokke and Davor Vidas (Cambridge: Cambridge University Press, 1996), 137) describing the level of scientif ic coordination between CCAMLR and the IWC as “very moderate.” 58 NAMMCO Agreement, 1945 UNTS, entered into force July 7, 1992. 59 See NAMMCO, “About NAMMCO,” https://nammco.no/about-us/; NAMMCO Agreement, Art 2. 60 Caddell, “Marine Mammals at the Poles,” 234. 61 See Fitzmaurice, Whaling and International Law, 187–91.

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Committee recommended that “there be an immediate reduction to 0 catches in East Greenland”62 for narwhals and, in the case of belugas, “the aim of seasonal and geographical closures that have been recommended for several years but not implemented is to protect the few animals that may be present . . . and thereby help repopulate depleted stocks.”63 Coupled with the non-binding regulatory power of NAMMCO, the current harvest of narwhals and belugas is another example of the diff iculty in balancing Indigenous community needs with binding conservation measures at the expense of adequately conserving small cetaceans.64 In light of increasing ASW quotas at the IWC, an expected increase in the protectionist agenda at the IWC, and quotas of the Scientif ic Committee of NAMMCO apparently being ignored, the primary question concerning cetacean management has shifted. The decisive question now is how to reconcile Indigenous whaling with the protection needed for cetaceans in regions where such species are subject to increased environmental pressures.

The Bern Convention Adopted within the context of the Council of Europe, one additional regional agreement that requires brief mention is the Bern Convention.65 Similar to CITES and the CMS (see the following sections), the Bern Convention follows a listing approach whereby conservation measures are to be taken depending on whether the species concerned is listed on one of the Convention’s appendices. Appendix I concerns protected flora species and is not considered here. Several migratory species, including certain pinnipeds and all species of cetaceans, are listed in Appendix II or III. Appendix II–listed species require special protection and all forms of deliberate capturing, keeping and killing, as well as deliberate disturbance, of such species are prohibited (Article 6). Unlike the “special protection” status granted to Appendix II species, exploitation of species listed in Appendix III is generally permissible subject to regulations aimed at keeping populations out of danger (Article 7(2)). Possible protection measures include f ixing closed seasons, establishing temporary or local bans on exploitation and regulating the trade of live and dead species (Article 7(3)). The regulatory scope of the Convention, therefore, includes several migratory mammals found especially in the Arctic, including iconic species such as the blue whale and narwhal, pinnipeds such as walrus, and polar bears (listing all Ursidae species on Appendix II). Despite having scope to regulate migratory mammals, the influence of the Convention over polar mammals specif ically is, however, negligible, given that three of the f ive Arctic States (Canada, Russia and USA) are not party to the Convention. Additionally, although Denmark is a party, this does not apply to either Greenland or the Faroe Islands. For its part, Norway actively participates in the Convention but has made several objections/declarations/reservations, including a broad reservation stating that Norway understands “the adopted list of marine species for the inclusion in Appendices II and III, [as only applying] to the geographical area of the Mediterranean Sea,” and the listing of these marine species in Appendix II and III, therefore, “has no consequences for populations or parts of populations appearing outside

62 NAMMCO, “Report of the 26th Meeting of the NAMMCO Scientif ic Committee,” NAMMCO/SC/26/Report, October/November 2019. 63 NAMMCO, “Report of the 27th Meeting of the NAMMCO Scientif ic Committee,” NAMMCO/SC/27/Report, January 2021. Note that this report does not provide management advice for narwhals, highlighting instead that such advice would follow at the Committee’s autumn 2021 meeting, but “reiterated its concern for the status of narwhals in East Greenland and the high risk of extirpation of the stocks if harvest at any level continues.” 64 Sellheim, International Marine Mammal Law, 117–18. 65 Convention on the Conservation of European Wildlife and Natural Habitats ETS 104, entered into force June 1, 1982.

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this area.”66 With regard to cetaceans specif ically, Iceland appended a reservation when ratifying the Convention excluding six species of whales.

Convention on International Trade in Endangered Species of Wild Fauna and Flora CITES has been described as having close to universal adherence and as forming “part of the general corpus of international law” that informs the obligation of States under the law of the sea to protect and preserve the marine environment.67 It is relevant here to note that just as CITES “informs the content” of Articles 192 and 194(5) of LOSC dealing with the protection and preservation of the marine environment, it is suggested that CITES could also inform the content of other LOSC provisions (including the “cooperation” and “work through” duties stipulated in Article 65 of LOSC).68 All species regulated by CITES are listed in three appendices, which are an indication of the degree of protection that each species requires. Appendix I prohibits all trade (only being allowed in exceptional circumstances),69 Appendix II limits trade,70 and Appendix III requires international cooperation for trade in species protected under national legislation.71 Relevant for the purposes of this section is the fact that all whale species regulated by the IWC are listed in Appendix I – a direct response to the cooperation efforts between the IWC and CITES.72 Other cetaceans present at the poles, and not listed in Appendix I, are listed in Appendix II, and no polar cetaceans are listed in Appendix III. CITES regulates trade in cetaceans according to their “introduction from the sea,” which Article I(e) def ines as the “transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State.” That is, the introduction of species (or any recognisable part or derivative thereof) from marine areas beyond the exclusive economic zone of the introducing State.73 The listing of cetacean species on Appendix I and II of CITES means that the Management Authority of the State of introduction, in issuing the required permits, must satisfy itself that the take is not detrimental to the survival of the species involved and, in the case of Appendix I species, that the specimen is not used for primarily commercial purposes.74 Whether or not the introduction from the sea of Appendix I–listed cetaceans and their subsequent domestic sale is commercial or not was the subject of a recent compliance

66 Council of Europe, “Reservations and Declarations for Treaty No.104 – Convention on the Conservation of European Wildlife and Natural Habitats,” www.coe.int/en/web/conventions/full-list/-/conventions/treaty/104/ declarations?p_auth=EkrY3GSX. 67 LOSC, Art 192; The South China Sea Arbitration (The Republic of Philippines v The People’s Republic of China), Award of July 12, 2016, para 956, https://pca-cpa.org/en/cases/7/. 68 Steenkamp and Jefferies, “In Pursuit of the White Whale of Cooperation,” 278; see also Yoshifumi Tanaka, “The South China Sea Arbitration: Environmental Obligations under the Law of the Sea Convention,” RECIEL 27 (2018): 91–92. 69 CITES, Art II(1). 70 Ibid., Art II(2). 71 Ibid., Art II(3). 72 See CITES, “Conservation of cetaceans, trade in cetacean specimens and the relationship with the International Whaling Commission,” CITES Res Conf. 11.4 (Rev. CoP12), April 2000, stressing that CITES and the ICRW are to be applied in a mutually supportive manner to protect certain stocks and species of whales, and Couzens (Whales and Elephants in International Conservation Law and Politics, 130) highlighting that in the context of whales, it is impossible to understand either the IWC or CITES “in isolation from the other.” 73 CITES, Art I(b); CITES, “Introduction from the sea,” CITES Res Conf. 14.6 (Rev. CoP16), June  2007. See also Alexander Proelss and Katherine Houghten, “Protecting Marine Species,” in Research Handbook on International Marine Environmental Law, ed. Rosemary Rayfuse (Cheltenham: Edward Elgar Publishing, 2015), 246–49. 74 CITES, Arts III(5) and IV(6).

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complaint brought against Japan.75 Despite arguably being required to do so in the context of scientif ic whaling under the ICRW, the CITES Standing Committee (an executive body that provides guidance to the CITES Secretariat) found that Japan’s introduction from the sea constituted commercial trade and was in breach of CITES.76 The ASW of Greenland (within the ambit of the IWC through the participation of the Kingdom of Denmark) is an example of the complexities in drawing a clear distinction between commercial and non-commercial whaling.77 Whether the commercial aspects of ASW in Greenland (especially in light of a potentially strengthened protectionist agenda at the IWC and a continual aff irmation of the cooperative relationship between the IWC and the CITES Secretariat) could have any impact on the aboriginal take of smaller cetaceans such as narwhal and belugas remains to be seen. Suff ice to say, the down- and up-listing of species under one of the appendices of CITES is never a purely scientif ic analysis, and politics invariably have an influence. Caddell points out that this politicisation is particularly pronounced in the context of whaling, where actors have sought to (ab)use [CITES] as a mechanism to impede the market for particular items and thus restrict the harvesting of particular stocks to a greater extent than has been provided for by other management bodies.78 The irony of the political chess game, however, is that cetaceans listed as having a conservation status of “least concern” may remain on Appendix I, while species potentially in need of greater protection and regulation (belugas and narwhals) remain on Appendix II.

Convention on the Conservation of Migratory Species of Wild Animals In the conservation and management of polar cetaceans, f inal mention should be made of the CMS. Similar to CITES, CMS utilises two appendices to protect migratory species, but unlike CITES, CMS requires range States to protect species within their range and specif ically includes an ecosystem dimension (focusing on migratory species and their habitats).79 Appendix I “lists migratory species which are endangered” and Appendix II “lists migratory species which have an unfavourable conservation status and which require international agreements for their conservation and management.”80 Relevant to cetaceans is the recently adopted CMS Resolution on important marine mammal areas (IMMAs), which acknowledges the diverse range of cetacean habitats (extending “from the tropics to the poles”) and “invites all Range States, intergovernmental organizations and partners to identify specif ic areas where the identif ication of IMMAs could be

75 For a full discussion of the compliance complaint, see Steenkamp and Jefferies, “In Pursuit of the White Whale of Cooperation,” 255–59. 76 CITES Secretariat, “Introduction from the Sea of Sei Whales (Balaenoptera Borealis) by Japan,” CITES SC70 Doc.27.3.4, October 2018. This decision concerned Japan’s whaling programmes in the North Pacif ic and does not concern those whaling programmes conducted in the Southern Ocean. Japanese whaling operations that took place in the Antarctic are JARPA, JARPA II and NEWREP-A. Japanese whaling operations that took place in the North Pacif ic are JARPN, JARPN II and NEWREP-NP (the latter is currently still ongoing). 77 Fitzmaurice, “Indigenous Peoples in Marine Areas,”79; see also Anne Peters, “Animals in International Law,”Collected Courses of the Hague Academy of International Law 410 (2019), http://dx.doi.org/10.1163/1875-8096_pplrdc_A9789004448971_02. 78 Caddell, “Marine Mammals at the Poles,” 227. 79 Sellheim, International Marine Mammal Law, 61–62. 80 CMS, Arts III(1) and IV(1).

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particularly benef icial [in] addressing threats to aquatic mammals more comprehensively.”81 This resolution is a clear example of the ecosystem dimension of the CMS in action. The reference to “international organizations” opens increased cooperation opportunities between the CMS and the IWC. Despite this, however, the CMS’ direct influence over polar cetaceans is minimal.82 The reason for this is primarily related to the pacta tertiis rule, whereby a treaty does not create obligations for a third State without its consent.83 In this context, the participation of key polar jurisdictions to the CMS is severely limited. Four of the f ive Arctic coastal States (Canada, Denmark [Greenland], Russia and the US) are not party to the Convention, and the ability of the very few Antarctic range States to enforce protective measures against foreign vessels (if such measures were ever taken) is non-existent under the current regime.84 Notwithstanding the CMS’ emphasis on cetaceans and cetacean habitat protection, the Convention has little influence over regulating polar cetaceans since important States “are either not party to the convention or not party to any of its Agreements.”85

Polar Bears Introduction Polar bears are native to f ive range States in the Arctic: Canada, the Kingdom of Denmark (Greenland), Norway, the Russian Federation and the United States. Polar bears are completely dependent on sea ice for hunting prey, reproduction and movement.86 According to the biological criteria of CITES, decreases in the quality and size of available habitat means that polar bears are threatened with extinction.87 There are serious diff iculties in studying a species that “ranges widely, at low densities, and in one of the world’s most remote and environmentally challenging regions.”88 Several factors influence polar bear population. First and most importantly, continuing sea-ice decline has an adverse long-term effect on all polar bear subpopulations, while additional factors include the fact that polar bears constitute a signif icant subsistence resource for Indigenous Peoples of Greenland, Canada, the Russian Federation and the United States. Together with their spiritual, nutritional and economic importance, changing sea ice, tourism and commerce in the Arctic are likely to result in closer contact between humans and polar bears – increasing the potential for negative interactions. Finally, there are increasing adverse effects of pollution from industrial and agricultural activities stemming from southern latitudes on the health of polar bears, which are channelled through atmospheric and

81 CMS, “Important Marine Mammal Areas (IMMAs),” UNEP/CMS/Res 12.13, October 2017. 82 Cameron Jefferies, Marine Mammal Conservation and the Law of the Sea (New York: Oxford University Press, 2016), 52–55; Caddell, “Marine Mammals at the Poles,” 229. 83 Alexander Proelss, “Migratory Species, International Protection,” Max Planck Encyclopaedia of Public International Law VII (2012): 161. 84 Denmark’s ratif ication does not extend to Greenland. See also Christopher Hensz and Jorge Soberón, “Participation in the Convention on Migratory Species: A Biogeographic Assessment,” Ambio 47 (2018), https://link.springer.com/ article/10.1007/s13280-018-1024-0; and Mossop, “Marine Mammals in the Antarctic Treaty System,” 290. 85 Sellheim, International Marine Mammal Law, 63. 86 CITES, “Consideration of Proposals for Amendment for Appendices II and II,” CoP16 Prop. 3, March 2013 [CITES Cop16 Report]. Sea ice has been reduced by 8% in the past 30 years alone, while summer sea ice has been reduced by 15–20%. 87 Ibid. 88 George Durner et al., “Polar Bears: Proceedings of the 18th Working Meeting of the IUCN/SSC Polar Bear Specialist Group” (June 2016), https://portals.iucn.org/library/sites/library/f iles/documents/SSC-OP-063-En.pdf.

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oceanic transport of contaminants into their environment. Such challenges call for close cooperation of all concerned States.89 There are three international treaties of specif ic relevance to the regulation of polar bears: the 1973 ACPB;90 the 2000 United States/Russia Bilateral Agreement on the Conservation of the Alaska/Chukotka Polar Bear Population;91 and the 1973 CITES. The section ends with a brief reference to the CMS and MOUs of particular importance in the context of polar bears.

The 1973 Agreement on the Conservation of Polar Bears The ACPB was concluded as a response to dwindling polar bear numbers, warming of the region and an expansion of human activities.92 The ACPB generally prohibits the taking of polar bears under Article I. However, there are several exceptions to Article I that, to some extent, diminish the effectiveness of the Agreement. Article III lists extensive exceptions, including taking for bona f ide scientif ic purposes, taking for conservation purposes, preventing serious disturbance of the management of other living resources, taking by local people using traditional methods in the exercise of their traditional rights, and wherever polar bears have or might have been subject to taking by traditional means by its nationals. The Agreement has three main objectives: to encourage cooperative research programmes,93 restrict the killing and capture of polar bears94 and protect the ecosystems of which polar bears are a part. The ICRW and the ACPB are similar in allowing an Indigenous take of protected species. However, unlike the ICRW, the ACPB refers to “traditional methods in the exercise of . . . traditional rights and in accordance with the laws of that Party” and to “traditional means” (Article III). According to the Polar Bear Specialist Group, approximately 800 polar bears are harvested annually for primarily subsistence purposes.95 Since its entry into force, the ACPB has evolved signif icantly, and since the f irst consultative meeting in 2009, several important decisions have been adopted to counteract climate change, to reduce the stresses on polar bears and their ecosystems caused by habitat destruction, harvesting, pollutants and anthropocentric disturbance.96 In 2015, a ten-year plan for polar bear conservation and management was developed – the Circumpolar Action Plan: Conservation Strategy for the Polar Bear (CAP).97 CAP identif ies several

89 Ibid. 90 Initially signed by Canada, Denmark, Norway, the Union of Soviet Socialist Republics and the United States, entered into force on May 26, 1976. 91 Agreement text: www.congress.gov/107/cdoc/tdoc10/CDOC-107tdoc10.pdf, entered into force on September  23, 2007. 92 Catherine Redgwell, “Polar Regions,” in Lyster’s International Wildlife Law, eds. Michael Bowman et al. (Cambridge: Cambridge University Press, 2010), 352. 93 Article VII requires contracting parties to “conduct national research programmes on polar bears, particularly research relating to the conservation and management of the species” and to “co-ordinate such research with research carried out by other Parties.” 94 Article I (1 and 2) specif ies that the “taking of polar bears shall be prohibited except as provided in Article III” and that “the term ‘taking’ includes hunting, killing and capturing.” 95 CITES Cop16 Report. 96 Ibid. 97 Fact sheet. 2013 The Moscow Declaration of the Responsible Minsters of Polar Bear States has recognised the involvement of Indigenous peoples for successful management and conservation of polar bears is essential. It was also recognised that the traditional ecological knowledge is a signif icant factor in conservation of polar bears. See Nigel Bankes, “Arctic Ocean Management and Indigenous Peoples: Recent Legal Development,” The Yearbook of Polar Law 11 (2019), 104.

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threats to polar bears and has identif ied a number of strategic approaches, including adaptive management, best management practices (BMPs), monitoring and research, and communications and outreach.98 At the 2018 Meeting, polar-bear-range States reviewed progress made on the two-year CAP Implementation Plan for 2015–2017 (adopted at the previous meeting), and f inalised and adopted the two-year CAP Implementation Plan for 2018–2020.99 Each range State provided, inter alia, an update on development, f inalisation or implementation of their national action plans and how these plans complement work within the context of the CAP and contribute to the conservation of the species throughout the range.100 The 2018–2020 Implementation Plan includes actions that address predictive modelling considering the cumulative effect of climate change and human activities, BMPs for mineral and energy exploration and development, BMPs to minimise the impact of tourism-related activities on polar bears, obtaining information on vital rates of polar bear subpopulations, and compiling the state of knowledge on contaminants affecting polar bears and their prey.101

The US/Russia Bilateral Agreement The US/Russia bilateral agreement is connected to the ACPB enforcement procedure. Its main objective is to facilitate the long-term conservation measures of polar bears in the Chukchi/Behring region (Article II). This agreement also allows Indigenous subsistence hunting, provided that programmes for monitoring, harvesting and enforcement are in place and consistent with the ACPB (Article VI). There is an obligation to establish advanced harvest quota systems based on sustainable yield (Article IX). The Agreement focuses on conserving specif ic polar bear habitats, such as feeding, congregating and denning areas, and prohibits the use of aircrafts and large motorised vehicles when hunting polar bears.102 A prominent feature of this Agreement is the role of key Indigenous groups concerned in its conclusion, implementation and enforcement.103 A Joint Commission administers the agreement, consisting of four representatives of government off icials, one native representative and one federal representative from each jurisdiction. The functions of the Commission include facilitating cooperation for the implementation of the Agreement, adopting measures to restrict the take of polar bears for subsistence purposes within the framework of established annual take limits, identifying the habitats of polar bears and developing recommendations for their conservation, and examining information and scientif ic data on polar bears (including information on harvested polar bears).104 It has been suggested that this Agreement might form the basis for cooperative management of other shared Arctic stocks, such as the Pacif ic walrus.105 Generally, the ACPB is a successful ecological agreement, particularly in preventing unsustainable hunting.106 However, the Agreement could benef it from addressing the question of climate

 98 Ibid.  99 Meeting of the Polar Bear Range States, “Meeting Outcome Report,” https://polarbearagreement.org/resources/ meeting-documents/2018-anchorage-alaska. 100 Ibid. 101 Ibid. 102 US Fish and Wildlife Service, U.S. Russia Polar Bear Agreement, www.fws.gov/International/pdf/factsheet-us-russiapoar-bear-agreement-2001.pdf. 103 Redgwell, “Polar Regions,” 353. 104 https://polarbearagreement.org/index.php/polar-bear-management/bilateral-cooperation/united-sates-russianfederation. 105 Redgwell, “Polar Regions,” 353. 106 Caddell, “Marine Mammals at the Poles,” 236.

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change more precisely and interpreting Article III in a manner that closes the loophole “that key participants have used to perpetuate sports hunting conducted under the supervision of Indigenous Peoples.”107

The Convention on International Trade in Endangered Species of Wild Fauna and Flora Within the framework of CITES, polar bears were amongst the f irst species to be listed under Appendix II.108 The trade in bear products (skins), therefore, requires strict certif ication measures in place to ensure the legality of such trade. Until 2010, an Appendix II listing of polar bears appeared to be satisfactory. However, in 2004 the Arctic Climate Impact Assessment made it apparent that the Arctic ecosystem is severely affected by climate change and that, due to this, polar bears are losing their habitat. At the 15th Conference of the Parties (CoP) in 2010, the US tabled a proposal to up-list the polar bear from Appendix II to Appendix I (de facto delegalising trade in polar bear skins).109 The US proposal considered habitat loss only as a threat to the species and not trade, including sports and trophy hunting in Russia. Polar bear populations were estimated at around 30,000 individuals, whereas for Appendix I  listing the creation guideline stipulates a number of 5,000 individuals.110 Certain polar-bear-range States (Kingdom of Denmark and Canada) objected but the proposal was supported by other States. The EU abstained from voting, supporting the position of Denmark, which has represented Greenland’s interests.111 The objection was based on the argument that polar bear hunting is not market-driven but the products derive from subsistence hunts based on adaptive co-management systems. The proposal failed.112 IN 2013, at CoP 16, the US again attempted to up-list the polar bear. This time, the US argued that an Appendix I listing would reduce the overall pressure on the species. The proposal failed again.113 It appears that attempts to up-list the polar bear to Appendix I have reached an end. Arguments have been made that the commercial value of a skin sale for an Indigenous hunter is only a fraction of the sale price.114 According to Sellheim, it remains to be seen whether an Appendix I listing of polar bears resurfaces as a proposal in the future. If it does, it is imperative that the complexities of the polar bear hunts, the importance of polar bears for local communities, and the main drivers of the polar bear trade are understood by the parties. Only then can an informed decision be made.115

107 Ibid. 108 Nikolas Sellheim, “CITES and the Polar Bear,” The Polar Connection (2019), https://polarconnection.org/ cites-and-the-polar-bear/. 109 Ibid. 110 Ibid. 111 Report of main proceedings for March 7, 2013, Earth Negotiation Bulletin 16th Meeting of the CITES Conference of the Parties (CoP 16), https://enb.iisd.org/events/16th-meeting-cites-conference-parties-cop16/report-main-proceedings7-march-2013. 112 Ibid., 62 parties against, 42 parties for, and 11 parties abstained from voting for an up-listing. 113 Ibid. The margin between those in favour and those opposing the proposal was small: 38 supported and 42 opposed an up-listing; 46 States abstained. 114 Ibid. 115 Ibid.

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The Convention on the Conservation of Migratory Species of Wild Animals In 2014, CoP 11 to the CMS included the polar bear in Appendix II of the Convention.116 As mentioned, an Appendix II listing indicates an unfavourable conservation status and requires “international agreements for [such species’] conservation and management.” In the case of the polar bear, such agreements already exist in the form of the 1973 ACPB and the US/Russia Agreement detailed earlier, and it seems that “the inclusion of the polar bear in Appendix II is largely symbolic.”117 By listing endangered migratory species, scientists believe that polar bears should be placed on Appendix I.118

Memoranda of Understanding (MOUs) Finally, there are informal agreements concluded between States, autonomous Indigenous governments and Indigenous Peoples, and Indigenous Peoples between themselves. Such MOUs are exemplif ied by the MOU between Canada, the government of Nunavut and the government of Greenland. The purpose of this MOU is to manage shared polar bear populations (polar bears within the Kane Basin and Baff in Bay management units) in order to ensure their conservation and sustainable management. The MOU establishes a Canada-Greenland Joint Commission (with Canada under the government of Nunavut and Environment and Climate Change Canada) that recommends a combined total allowable harvest and a fair division of the shared harvest. The Joint Commission is also used to coordinate science, traditional knowledge, management and outreach activities. This MOU is expected to achieve “enhanced, collaborative action on polar bear management and conservation via a set of described activities” and the “Joint Commission meets as required to ensure [the] advancement of coordinated action.”119 The Inuvialuit-Inupiat Polar Bear Management Agreement in the Southern Beaufort Sea (I-I Agreement), signed in 1988 and reaff irmed in 2000 by the Inuvialuit Game Council and the North Slope Borough Fish and Game Management Committee, is a voluntary user-to-user agreement between Inuvialuit (in Canada) and Inupiat (in Alaska) hunters.120 The Agreement regulates annual quotas, hunting seasons, protection of bears in or during construction of dens, females accompanied by cubs-of-the-year and yearlings, collection of information and specimens to monitor harvest composition, and annual meetings to exchange information on the harvest, research, and management.121 It establishes a Joint Commission to implement the Agreement and a Technical Advisory Committee, consisting of biologists from agencies in the US and Canada involved in research

116 Caddell, “Marine Mammals at the Poles,” 229. 117 Comment by Dr Nikita Ovsyanikov, a biology professor, independent expert specialising in the polar bear and honorary polar explorer of the Russian Federation, http://programmes.putin.kremlin.ru/en/bear/news/24952. 118 Ibid. 119 MOU between the Government of Canada, the Government of Nunavut, and the Government of Greenland for the Conservation and Management of Polar Bear Populations, www.canada.ca/content/dam/eccc/documents/pdf/ international-affairs/compendium/2018/batch-2/canada-nunavut-greenland-polar-bears-2018.pdf. 120 www.fws.gov/alaska/pages/marine-mammals/polar-bear/Inuvialuit-Inupiat-Agreement; see also C. D. Brower et al., “The Polar Bear Management Agreement for the Southern Beaufort Sea: An Evaluation of the First Ten Years of a Unique Conservation Agreement,” Arctic 55 (2002): 362. 121 Ibid.

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and management, to collect and evaluate scientif ic data and make recommendations to the Joint Commission.122 These agreements represent the necessity for cooperative action in managing polar bears. However, the effective implementation of measures adopted under the respective instruments will be crucial for the survival of polar bears, especially in light of increased knowledge concerning the potential negative impacts that climate change and other anthropogenic factors are having on polar bear population and habitat.

Pinnipeds Introduction Constituting around one-third of all marine mammals, it is surprising that pinnipeds have been addressed in a rather ad hoc manner.123 Pinnipeds have a long history of commercial, Indigenous and traditional exploitation and face similar contemporary threats to their long-term survival. Particularly in the polar regions, climate change is set to have pronounced impacts on sea ice, which pinnipeds depend on for reproduction, social interaction and predator avoidance. Climate change has been described as the most pervasive threat to global pinniped populations and that “Arctic pinniped species currently considered [least concern] will soon qualify for threatened status on the IUCN Red List.”124 The extent to which general conventions, such as LOSC and the CBD, will interact with the international climate change regime is still developing, and the effect that this may have on the regulation of polar species remains to be seen.125 Despite national legislation often taking priority in pinniped regulation, this section focuses on regional and international approaches only – that is, the CCAS, the NAMMCO Agreement and the European regulation of sealing. The latter section exemplif ies the interaction between Indigenous Arctic communities and the take of seals in the context of the EC-Seal Products case concerning the ban on the trade in seal products in the EU.126

Legal Framework for the Conservation of Pinnipeds in the Antarctic In the Antarctic, the international regime for cetaceans and pinnipeds has followed divergent paths. This is because when the Antarctic Treaty (AT) was negotiated, the ICRW was already in existence and whales in the Antarctic were considered subject to this regime. However, after recognising that existing measures did not prohibit pelagic seal hunting, States Parties to the AT established the CCAS in 1972.127 Unlike the ICRW then, the CCAS is considered part of the ATS.128 The CCAS

122 Ibid. 123 Caddell, “Marine Mammals at the Poles,” 247. 124 Kit Kovacs et al., “Global Threats to Pinnipeds,” Marine Mammal Science 28 (2012): 429–30. 125 See CBD, “Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity: Biodiversity and Climate Change,” CBD/COP/DEC/14/5, November 30, 2018. 126 WTO, European Communities – Measures Prohibiting the Importation and Marketing of Sea Products (November 25, 2013) WT/DS400/R, WT/DS04IR; and WTO AB, European Communities – Measures Prohibiting the Importation and Marketing of Sea Products (May 22, 2014) WTDS400/AB/R. See, generally, Dorothée Cambou, “The Impact of the Ban on Seal Products on the Rights of Indigenous Peoples: A European Issue,” Yearbook of Polar Law 5 (2013): 389–415. 127 Jefferies, Marine Mammal Conservation and the Law of the Sea, 40. 128 See Mossop (“Marine Mammals in the Antarctic Treaty System,” 273–74) highlighting that although the relationship between the Antarctic Treaty and the CCAS is weaker than that between the Antarctic Treaty and CAMLR, the CCAS has still been considered a part of the ATS.

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applies to all pinnipeds in the Southern Ocean and has been attributed as being one of the most progressive conservation regimes since it was “negotiated before any immediate threat to the resource was identif ied.”129 However, this label is perhaps unwarranted given the status of the treaty today. Apart from a controversial Soviet scientif ic sealing expedition in the summer of 1986–87, both commercial and scientif ic sealing have not taken place in Antarctica and the ability of the CCAS to directly assist in pinniped conservation in the Antarctic is questionable. The reason for this is primarily because CAMLR and the Madrid Protocol, particularly given their strong relationship with the AT, has taken over many aspects of ecosystem-based conservation.130 The CCAS has, therefore, been described as being rather “conservative in its protective efforts.”131

Legal Framework for the Conservation of Pinnipeds in the Arctic As far as pinniped conservation and management in the Arctic goes, mention is made here of NAMMCO and the EU’s ban on seal products. As mentioned in the previous section, NAMMCO only has recommendatory jurisdiction and recommends rather than allocates quotas (especially to Indigenous Peoples and local communities).132 The inclusion of local peoples goes beyond the regulation in some other regimes, which only provide exclusions for Indigenous Peoples.133 Pinniped management within the framework of NAMMCO is facilitated by the Management Committee for Seals and Walruses. Together with four species-specif ic working groups, the Committee establishes scientif ic priorities, monitors population levels and considers “responses to natural and anthropogenic environmental pressures.”134 With regard to harp and hooded seals, NAMMCO also collaborates with the Joint Norwegian/Russian Fisheries Commission. In 2019, a joint Russian/ Norwegian Scientif ic Research Program on Living Marine Resources noted that the “low population size of hooded seals in the Greenland Sea and apparent decrease in harp seal pup production in the White Sea in recent years is a matter of concern, which requires increased research and monitoring effort.”135 Although the Commission also contains an Indigenous exemption, the extent to which increasing environmental pressures will impact the livelihoods of Indigenous Peoples remains uncertain. The complex and turbulent history of sealing regulation in the EU has been detailed elsewhere.136 The most contemporary legal developments surrounding pinniped management in the Arctic are connected to the EU’s ban on trade in seal products. Initially effective from 2010 and amended in 2015 to reflect the outcomes of the WTO rulings in the EC-Seal Products case, the ban applies to seal products produced in the EU and to imported seal products. While the ban is more restrictive than the 1983 European Economic Community’s ban on whitecoat seal pelts,137 it includes exemptions

129 Ibid., 270–71. 130 Sellheim, International Marine Mammal Law, 143. 131 Mossop, “Marine Mammals in the Antarctic Treaty System,” 278. 132 Fitzmaurice, “Indigenous Peoples in Marine Areas,” 90. 133 However, Art 8(j) CBD includes both Indigenous People and local communities. 134 Caddell, “Marine Mammals at the Poles,” 234. 135 Norwegian Ministry of Fisheries and Coastal Affairs, “Joint Russian/Norwegian Scientif ic Research Program on Living Marine Resources,” www.regjeringen.no/contentassets/cb939423ea10498aac59dc3f7ac0dcd8/vedlegg-10-jointrussian-norwegian-scientif ic-research-programme-on-living-marine-resources-in-2019.pdf. 136 In this regard see Fitzmaurice, “Indigenous Peoples in Marine Areas,” 91–95. 137 For a discussion on the earlier ban, see Sarah Levy, “A Tale of Two Seal Hunts: Contesting the Conflation of Canadian Sealing Activities,” Journal of International Wildlife Law & Policy 23 (2020): 182–83.

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for Inuit seal products (the “IC exception”).138 However, the amended EU regulation (although retaining the IC exception) includes new criteria aimed at securing high animal welfare standards in Inuit seal hunts. Apart from negative public perception surrounding sealing, Canadian Inuit in particular have also faced diff iculties securing “recognised body” status – a burdensome prerequisite for their seal products to be sold on the EU market.139 In 2020, the European Commission released a report noting that certain Inuit communities, despite being fully compliant with the regulation, are still, in practice, unable to export their products to the EU. The report notes primary reasons as including a fear of being in contravention of the EU Seal Regime, barriers to trade which have resulted from the ban itself (loss of interest from buyers, lack of connections with potential buyers), no experience of international trade, and confusion about certif ication of pelts vs products from certif ied pelts.140 It is for this reason that it has been argued that although “Inuit were legally exempted from any trade barrier, they were de facto strongly affected by it.”141 There is an apparent need for the EU to directly acknowledge the IC exception and increase efforts to educate consumers on the necessity of the exception.142 In particular, it has been argued that although the regulation distinguishes between commercially harvested and Inuit seal products, this distinction is not understood by the public.143 Like aboriginal whaling, however, the diff iculties inherent in distinguishing between commercial and non-commercial hunts undertaken by Indigenous Peoples is a problematic hurdle to overcome at a time where global sealing discourse seems determined on making sealing an unwanted and unacceptable activity. As with other marine mammals, pinniped regulation is a mixture of law and ethics that has resulted in several misunderstandings and conflicts. The commercial and cultural aspects of sealing and the welfare of animals appear to constitute a problem that may blur efforts at tackling more pressing threats to their long-term survival. Having canvassed the most applicable international agreements and institutions applicable to cetaceans, polar bears and pinnipeds, the f inal section highlights the relevance of compliance procedures in marine mammal conservation. In particular, the next section details the compliance procedures of CITES and the CMS.

138 See Regulation (EC) No 1007/2009 of the European Parliament and of the Council of September 16, 2009, on Trade in Seal Products ([2009] OJ L286, 36), Art 3, stating that the “placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence.” 139 Levy, “A Tale of Two Seal Hunts,” 183–85. 140 European Commission, “Report from the Commission to the European Parliament and the Council on the implementation of Regulation (EC) No 1007/2009, as amended by Regulation (EU) 2015/1775, on the Trade in Seal Products” (January  2020) COM (2020) 4 f inal, https://ec.europa.eu/transparency/regdoc/rep/1/2020/EN/COM2020-4-F1-EN-MAIN-PART-1.PDF. 141 Fitzmaurice, “Indigenous Peoples in Marine Areas,” 94. 142 Levy, “A Tale of Two Seal Hunts,” 184. 143 Ibid., 183.

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Compliance Procedures Compliance procedures under international law have been addressed extensively.144 With regard to polar marine mammals, mention is made here to three agreements which have such procedures, the CITES,145 the CMS146 and the Bern Convention. CITES compliance mechanisms have been operational in a piecemeal manner before being formally set out by the Standing Committee on the basis of a decision taken at one of the CoPs of CITES.147 The CITES compliance system has been developed through resolutions, decisions and practice of the CoP and on the basis of CITES provisions.148 There are several important differences between the compliance mechanisms under CITES and other agreements. The special features of the CITES compliance mechanisms include the lack of a Compliance Committee – as this role is fulf illed by the Standing Committee – and the prominent role played by the Secretariat in initiating the procedure and even making recommendations, which is not the case in the majority of other compliance procedures.149 The Standing Committee usually takes decisions on particular measures to address non-compliance.150 Compliance with CITES is evaluated against national reports.151 Reeve observes that [c]ompliance with [multilateral environmental agreements] may be promoted by facilitation, funding and capacity building – a “help desk” approach – or through the imposition of penalties such as, in the case of CITES, trade sanctions. CITES has attempted to balance the two approaches, but with only limited success. With a shrinking budget and limited funds from external sources – as a pre-Rio convention, CITES cannot access the Global Environment Facility (GEF) – it has little f inance available to support capacity-building or “buy” compliance. Consequently, technical assistance, workshops and ad hoc Secretariat missions are the main methods for facilitating compliance.152

144 See Malgosia Fitzmaurice and Catherine Redgwell, “Environmental Non-compliance Procedures and International Law,” Netherlands Yearbook of International Law 31 (2000), 35–65; Jan Klabbers, “Compliance Procedures,” in Oxford Handbook of International Environmental Law, eds. Daniel Bodansky, Jutta Brunnée and Ellen Hey (Oxford: Oxford University Press, 2012), 995; Malgosia Fitzmaurice and Panos Merkouris, “Environmental Compliance Mechanisms,” www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0010.xml. See Chapter 10 of this volume. 145 Conf. 14.3, Rev. CoP18, 2018 https://cites.org/sites/default/f iles/document/E-Res-14-03-R18.pdf. 146 The Conference of the Parties at its 12th meeting (Manila, 2017) adopted Resolution 12.9 and Decisions 12.6–12.9 on the establishment of a review mechanism to ensure long-term compliance with Articles III.4, III.5, III.7 and VI.2 of the Convention. See Rosalind Reeve, “Wildlife Trade, Sanctions and Compliance: Lessons from the CITES Regime,” International Affairs 82 (2006): 881–97, www.cms.int/sites/default/f iles/document/cms_cop12_res.12.9_reviewmechanism_e_0.pdf. 147 Decision 12.84, whereby the Conference of the Parties instructed the Secretariat to draft a set of guidelines on compliance with implementation of the Convention for consideration by the Standing Committee. 148 Reeve, “Wildlife Trade, Sanctions and Compliance,” 882. 149 Ibid., 882. 150 Ibid., 893. 151 Ibid., 884. 152 Para. 30 of the CITES Compliance Mechanism def ines trade measures as follows: “In certain cases, the Standing Committee decides to recommend the suspension of commercial or all trade in specimens of one or more CITES-listed species, consistent with the Convention. Such a recommendation may be made in cases where a Party’s compliance matter is unresolved and persistent, and the Party is showing no intention to achieve compliance or a State not a Party is not issuing the documentation referred to in Article X of the Convention. Such a recommendation is always specif ically and

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In relation to the CITES compliance mechanisms, mention must be made of the signif icant trade review, which relates to the status of species listed in Appendix II and that are believed to be traded in signif icant numbers. Based on the reviews, species are categorised in accordance with the level of concern, and recommendations are made to States by the Animals or Plants Committee. Should States not respond within certain time frames, they may be subject to recommendations of the Standing Committee to suspend trade in the Appendix II–listed species concerned153 Recommendations may also be issued in relation to most endangered species listed in Annex I. The methods applied by CITES to achieve compliance include technical and political missions, warnings, formal cautions, legislation plans, compliance action plans (or, in the case of non-payment or arrears to the CITES Trust Fund – the treaty’s f inancial mechanism – “payment plans”), and recommendations to suspend trade in CITES species.154 Reeve’s conclusion on CITES compliance (before the formal compliance procedure was introduced) are relatively positive, with the majority of States complying, including through national legislation projects.155 Usually trade suspensions and formal cautions for generalised non-compliance elicit positive responses from the majority of targeted parties.156 Reeve concludes that [t]rade sanctions, selectively used, have been effective. The national legislation project provides a particularly good example of the effectiveness of technical assistance backed by sanctions. Under the threat of trade suspensions parties have been prompted to seek technical assistance; sanctions have therefore been responsible, indirectly, for capacity-building.157 The review mechanism under the CMS has not yet been widely tested in practice. It relates to Articles III.4,158 III.5,159 III.7160 and VI.2 of the Convention.161 There are various methods for initiating

explicitly based on the Convention and on any applicable Resolutions and Decisions of the Conference of the Parties.” “Wildlife trade, sanctions and compliance,” Reeve, 995. 153 Ibid., 887. 154 Ibid., 888–89. 155 Ibid., 889. 156 Ibid., 892. 157 Ibid., 892. There are currently 26 States with the trade suspension: https://cites.org/eng/resources/ref/suspend.php. 158 “Parties that are Range States of a migratory species listed in Appendix I shall endeavour: a) to conserve and, where feasible and appropriate, restore those habitats of the species which are of importance in removing the species from danger of extinction; b) to prevent, remove, compensate for or minimize, as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent the migration of the species; and c) to the extent feasible and appropriate, to prevent, reduce or control factors that are endangering or are likely to further endanger the species, including strictly controlling the introduction of, or controlling or eliminating, already introduced exotic species.” 159 “Parties that are Range States of a migratory species listed in Appendix I shall prohibit the taking of animals belonging to such species. Exceptions may be made to this prohibition only if a) the taking is for scientif ic purposes; b) the taking is for the purpose of enhancing the propagation or survival of the affected species; c) the taking is to accommodate the needs of traditional subsistence users of such species; or d) extraordinary circumstances so require; provided that such exceptions are precise as to content and limited in space and time. Such taking should not operate to the disadvantage of the species.” 160 “The Parties shall as soon as possible inform the Secretariat of any exceptions made pursuant to paragraph 5 of this Article.” 161 “The Parties shall keep the Secretariat informed in regard to which of the migratory species listed in Appendices I and II they consider themselves to be Range States, including provision of information on their flag vessels engaged outside national jurisdictional limits in taking the migratory species concerned and, where possible, future plans in respect of such taking.”

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the review process.162 In principle, the CMS Standing Committee shall perform the functions of the review body with the support of the Scientif ic Council, if needed. The COP has mainly general jurisdiction – that is, it directs, oversees, and provides general policy guidance on implementation matters and may delegate tasks to the Standing Committee in accordance with the Convention. This review mechanism provides for a variety of measures to elicit compliance from States Parties.163 The measures available under the mechanism are rather extensive but are mostly based on assisting States Parties. Currently, there is no available practice to assess the eff icacy of such an approach. This “softer” approach to non-compliance is a characteristic feature of newer compliance mechanisms, as exemplif ied by the Paris Agreement compliance procedure. Compliance procedures are a necessary step in the effective implementation of environmental law, including those related to the conservation and management of specif ic polar species and their respective habitats. However, it has been stated that “the nature and purpose of environmental laws are such that the quest for new methods of implementation and enforcement [are] inevitable.”164 It is here that the interaction between various instruments discussed here may offer creative ways for States to settle disputes regarding the conservation and protection of polar marine mammals. In this regard, specif ic mention should be made of the long-standing relationship between the CITES Secretariat and the IWC, with the CITES Secretariat noting that “rather than having a relationship of subordination or exclusion of one another, CITES and ICRW are to be applied in a mutually supportive manner to protect certain stocks and species of whales.”165 A protectionist (Japan-free) IWC has the potential to influence the work of the CITES Secretariat concerning polar cetaceans (including the political process surrounding down- and up-listing). For its part, CITES has already been found to inform the content of certain LOSC provisions. Although the ability of CITES to specif ically inform the content of Article 65 of LOSC (concerning the conservation and management of marine mammals) is as yet untested, there remains creative scope for the work of the IWC and the CITES Secretariat to trigger the compulsory dispute settlement mechanism under Part XV of LOSC should compliance mechanisms under CITES prove ineffective. Despite being hypothetical, this scenario is representative of the creativity that marine mammal conservation may bring to the settlement of international disputes concerning the variety of rights and obligations enshrined in various instruments concerning marine mammals.

162 “The triennial review of National Reports by the Secretariat; or 2. Information submitted to the Secretariat, when an implementation matter arises, by: 1) an international non-governmental agency or body; or 2) an accredited national non-governmental agency or body. a) Self-reporting by Party b) Party-on-Party reporting c) The Secretariat; e) Any body or agency technically qualif ied in protection, conservation and management of migratory species, which is either d) The Standing Committee.” 163 “Following identif ication of an implementation matter, and when a Party has not addressed the matter within a reasonable time frame, any of the following measures may be taken by the Standing Committee: a) provide further advice, information and appropriate facilitation of assistance and other capacity-building support to the Party concerned; b) request further information or special reporting from the Party concerned; c) provide in-country assistance, technical assessment or a verif ication mission, upon consultation and agreement with the Party concerned; d) issue a written caution, requesting a response and offering assistance; e) alert other relevant Parties that a Party requires assistance with regard to a particular implementation matter; f) issue a warning to the Party concerned; g) request an implementation action plan (developed in consultation between the Standing Committee and the Party concerned) to be submitted to the Standing Committee by the Party concerned identifying challenges and appropriate steps, a time frame for when those steps should be completed and means to assess satisfactory completion.” 164 Fitzmaurice and Redgwell, “Environmental Non-compliance Procedures and International Law,” 62. 165 CITES Secretariat, “Introduction from the Sea of Sei Whales (Balaenoptera Borealis) by Japan,” SC70 Doc.27.3.4 (2018), https://cites.org/sites/default/f iles/eng/com/sc/70/E-SC70-27-03-04.pdf.

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Mention can also be made of the unusual compliance system under the Bern Convention.166 The main organ monitoring and implementing the Bern Convention is its Standing Committee. The monitoring mechanisms of this Convention are based on two types of reporting: compulsory (based on Article 9 of the Convention and implemented through an innovative online reporting system [ORS]) and voluntary (so-called general reports).167 The ORS has both advantages (having resulted in more and timely compliance by parties to their reporting obligations) and disadvantages (ORS reports and the information they provide are still underutilised since the analysis of the information they provide would result in additional costs).168 Apart from parties’ reports, there other types of reports provided by experts: the legal reports and the thematic reports.169 The Standing Committee reviews the implementation of a selection of previous recommendations. The case-f ile system was establishment on the basis of a decision taken by the Standing Committee at its third meeting in 1984 of the Convention. It is a unique monitoring tool based on complaints for possible breaches of the Convention that can be submitted by NGOs or even private citizens. The complaints are processed by the Secretariat, the Bureau of the Convention and the Standing Committee according to the merits of the alert received.170 In broad brushstrokes, the complains which are considered as serious are sent by the Bureau to the Standing Committee, which takes an informed decision whether to open a case against the country concerned or not. The Committee has unfettered discretion regarding the procedure to be followed in cases where the case f ile is open and may decide to close a case f ile. Usually, the Committee decides by consensus. In some cases, the Committee may consider that further information is necessary and can instruct the Secretariat to organise an on-the-spot appraisal lead by experts, but only if such a review visit is agreed by the relevant party. Experts then provide the Standing Committee with their f indings and propose recommendations to the party. This is a very flexible system in which the Standing Committee is not constraint by strict obligations. However, this system has some disadvantages as it is lengthy and time-consuming for both the Secretariat and the Standing Committee of the Convention.171

Conclusion This chapter has examined and analysed the legal framework concerning marine mammals in the polar regions. Evidently, there is a complex nexus of legal norms already in place to protect polar mammals. In the view of the authors, there is no need to expand this network consisting of hard and soft law obligations (exemplif ied by the recommendations of the Arctic Council CAFF working group) by introducing new treaties. The main issue is how to make existing legal instruments operate more eff iciently. As has been argued, there are several unresolved questions on how to improve coordination between existing global and regional instruments, better national implementation and increased transparency (i.e. more extensive reporting). Decisions adopted within existing agreements are frequently aimed not only at conservation but contain a mixture of other elements – including ethics and politics – which elements impair the objectives of marine mammal protection. It is obvious that not all mammals enjoy equally extensive regulatory frameworks, an obvious

166 Iva Obretenova, “Monitoring the implementation of the Bern Convention” (2016), www.cms.int/sites/default/f iles/ document/bern_convention_monitoring_system.pdf. 167 Ibid. 168 Ibid. 169 Ibid. 170 Ibid. 171 Ibid.

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by-product due to the ecological status of certain species. Pinnipeds, for example, enjoy less protection than cetaceans. Despite the extensive regulation of cetaceans, however, conflict remains. The protection of medium- and small-sized cetaceans (such as narwhals and belugas) and the increasing quotas for Indigenous whaling are still points in issue. The legal framework for the protection of polar mammals varies from soft law instruments to global and regional international agreements. Due to a variety of factors, these agreements have different degrees of eff icacy. Such factors include the implementation and compliance with regulatory instruments by States Parties, as well as the regulatory measures and circumstances themselves, which are politically and culturally motivated – all of them inextricably intertwined. A good example of these various factors at play can be found in the ICRW. The IWC, for its part, has rather weak regulatory powers. In this regard, there is no compliance mechanism and to a certain degree the IWC’s decision-making has been culturally and politically motivated – particularly regarding the moratorium on commercial whaling and Japanese scientif ic whaling, which, it may be said, has weakened its overall functioning. The evolution of the ICRW from a conservationist to a preservationist agreement, after the withdrawal of Japan, will no doubt have a lasting effect on its functioning. The evolution of the IWC’s objectives in practice (commercial and scientif ic whaling) has resulted in the emergence of new objectives, including whale watching, and whether such developments may contribute to a more eff icient functioning of the IWC remains to be seen. However, Indigenous whaling, in light of the noticeable demand to increase quotas, may develop into a divisive element within the IWC. Generally considered a “successful” agreement, the compliance mechanisms under CITES have had an impact on its eff icacy, in particular the application of harsh measures of suspension of trade relations in the case of a breach. The strict implementation of CITES by numerous States, combined with domestic onerous penalties for its breaches, are no doubt contributory factors to its success. The functioning of the CITES involves, however, a certain political dimension (such as listing of animals and plants in Appendices I and II), which weakens its overall success. It may be postulated that such complex issues concerning the functioning of these agreements are almost impossible to resolve. However, without the existence of such agreements, even with their drawbacks, the conservation or protection of polar mammals will not be feasible at all. It must be added that the conventions dealing with the conservation of marine mammals have evolved considerably over time. Such conventions have been supplemented by soft law instruments that have contributed to developing their provisions in light of new ecological f indings. Examples include the programmes of CAFF and the Arctic Council more generally. Likewise, decisions and recommendations of COPs have also fulf illed a crucial role in the evolution of treaty regimes, and the existence of compliance mechanisms raise the eff icacy of such conventions. The evolution of the ICRW is a clear example of the changes in conventional regimes. It may be said that the ICRW has evolved from a conservation into a preservationist regime due to changes in States’ various approaches but also due to the lack of economic interest in commercial whaling. The ICRW may also exemplify how political circumstances influence the evolution of a treaty. The regulatory framework for the protection and conservation of marine mammals is evidently not static. Such frameworks are constantly evolving, and the protection of polar marine mammals poses ongoing and fascinating questions both for ecology and international law.

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18 INTERNATIONAL REGULATION OF MINERAL RESOURCES ACTIVITIES IN THE POLAR REGIONS Alan D. Hemmings and Timo Koivurova Introduction A dominant strand of the discourse around the polar regions over the past four decades has been the question of mineral resources – fossil fuels (oil, gas and coal) and hard rock minerals. This has tracked and amplif ied the central issues of our age: the conflict between the imperatives of decarbonising global society as a strategy for constraining anthropogenic climate change and the still massively expanding and (remarkably) “normal” behaviour of pursuing access to every identif iable source in our still fossil-fuel based economies, the seeming incompatibility of safeguarding regional and global environments in the face of unrestricted consumerism and economic expansion, and intense national rivalry between States, never more so than during periods when the overall global order is in flux. These resonate through the entire global system, but they are particularly acute in the polar regions. As historically remote and severe environments, the polar regions have been marginal to the main centres of global human activity for much of human history but are now seen to hold some of the last great “untapped” mineral resources on the planet. Reducing Arctic sea-ice cover and the Arctic transformation into a “blue-water” ocean1 has, it is argued, made access for mineral resource and marine harvesting easier. Further complicating the picture are the particular jurisdictional and governance challenges, as regions only relatively recently brought into substantive consideration in the global economic and geopolitical calculus. This is particularly so in the case of the Antarctic, where seven generally unrecognised territorial claims (three of which overlap and are mutually contested), two “semi-claims” and a huge sector unclaimed by any State, has seen no resolution beyond the celebrated Article IV containment of the 1959 Antarctic Treaty.2 In practical terms the Antarctic is, accordingly, run as a condominium3 by the 30 States plus the European

1 Heather A. Conley, “Lessons for the Arctic: Developing an International Normative Framework for a New Ocean,” in History Lessons for the Arctic, ed. Heather A. Conley (Washington, DC: Center for Strategic and International Studies, 2016), 1–12. 2 Antarctic Treaty, opened for signature December 1, 1959, entered into force June 23, 1961, 402 UNTS 71. 3 The proposition of a de facto condominium seems f irst to have been made by Christopher C. Joyner, Antarctica and the Law of the Sea (Dordrecht: Martinus Nijhoff, 1992), 107.

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Union (EU) which are decision-making parties to one or more of the instruments of the Antarctic Treaty System (ATS).4 This chapter seeks to outline the contemporary international regulation of mineral resource activities in the Arctic and Antarctic. This is essentially the entire f ield of regulation in the Antarctic, given unresolved territorial sovereignty there. Since most of the Arctic falls within the jurisdiction of Arctic States,5 most regulatory structures in the north are national. We do not consider this huge body of national laws and practices unless it impinges on the international mechanisms or on the international context of the discourse where there may be no present international regulations. Our aim has been to avoid repeating the recent coverage by two colleagues in another volume6 and instead to drill down into some facets that they did not have space to consider. Bounding what is considered the Arctic and Antarctic involves choices as much as objective realities.7 There is no agreed def inition for the southernmost boundary of the Arctic. Several different criteria can be presented in the drawing of this boundary. Natural boundaries are, for instance, the tree line (the northernmost boundary where trees grow) or the ten-degree isotherm (the southernmost location where the mean temperature of the warmest month of the year is below ten degrees). In relation to inter-State cooperation through the Arctic Council, only those States that possess areas of territorial sovereignty above the Arctic Circle can acquire full membership.8 Probably the most appropriate def inition for the southernmost boundary for this chapter is the one used in the Arctic Council Arctic Offshore Oil and Gas Guidelines.9 These guidelines also aff irm that there is no agreed southernmost boundary of the Arctic, but these do def ine, for the purposes of the guidelines, the more precise def initions for each Arctic State in Annex A.10 For the Antarctic, given the focus on international regulation, the obvious area is that south of 60° south latitude, the area of application of the Antarctic Treaty. Whilst the Convention for the Conservation of Antarctic Marine Living Resources (CAMLR Convention),11 extends “Antarctica” further north to the Antarctic Convergence, that instrument does not concern itself with minerals activities. But the Protocol on Environmental Protection to the Antarctic Treaty (Madrid

4 Decision-making States comprise the 29 consultative parties under the Antarctic Treaty and the 26 States (plus the EU), which are Commission members under CCAMLR. Namibia and the EU are only involved in decision-making in CCAMLR. 5 Whether one considers these States as the group of f ive littoral States (Canada, Denmark, Norway, Russia and the US) or as the group of eight comprising the States Parties to the Arctic Council (the previous f ive plus Finland, Iceland and Sweden). 6 Rachael Lorna Johnstone and Scott Joblin, “Non-living Resources and the Poles,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 250–71. 7 Klaus Dodds and Alan D. Hemmings, “Arctic and Antarctic Regionalism,” in Handbook on the Geographies of Regions and Territories, eds. Anssi Paasi, John Harrison, and Martin Jones (Cheltenham: Edward Elgar, 2018), 489–503. 8 See an analysis of different def initions in Timo Koivurova, Environmental Impact Assessment in the Arctic: A Study of International Legal Norms (Aldershot: Ashgate, 2002), 25–28. 9 Arctic Council, “Arctic Offshore Oil and Gas Guidelines” (April  29, 2009), www.pame.is/images/03_Projects/ Offshore_Oil_and_Gas/Offshore_Oil_and_Gas/Arctic-Guidelines-2009-13th-Mar2009.pdf. 10 Ibid, see Annex A. In addition, for instance, the legally binding agreement that was developed under the auspices of the Arctic Council, the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, def ines its scope of application in Article 3. Adopted May 15, 2013, entered into force March 25, 2016. See the Convention text at https://oaarchive.arctic-council.org/bitstream/handle/11374/529/EDOCS-2067-v1-ACMMSE08_ KIRUNA_2013_agreement_on_oil_pollution_preparedness_and_response__in_the_arctic_formatted.PDF?sequence= 5&isAllowed=y. 11 Convention for the Conservation of Antarctic Marine Living Resources, adopted May 20, 1980, entered into force April 7, 1982, Text in: 1329 UNTS 47.

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Protocol),12 having the same area of direct application as the Antarctic Treaty, extends its concerns to undef ined “dependent and associated ecosystems.” It is reasonable to suppose that these include at least a part of the CCAMLR area. So our attention here must sometimes also extend north of 60°. Critically, in the Antarctic there has been prolonged attention to the regulation of mineral resource activities by the ATS, successively involving the adoption of a mineral resources agreement,13 its abandonment and the adoption of another instrument which prohibited mineral resource activities.14 Questions around compliance with, and the durability of, this prohibition, and the nature of future international approaches to minerals activities in Antarctica are signif icant and enduring components of the contemporary Antarctic discourse. A commonality across the Arctic and Antarctic, as well as an obvious coupling to the wider international legal system, is evident in the maritime domain, most substantively through the operation of the 1982 UN Convention on the Law of the Sea (LOSC)15 and the Agreement in relation to its Part XI.16 Coastal State interests in relation to the continental shelf beyond 200 nautical miles (M) abutting recognised Arctic territories and unrecognised Antarctic territorial claims subject to Article IV of the Antarctic Treaty, saw submissions of various sorts to the Commission on the Limits of the Continental Shelf (CLCS) in both polar areas pursuant to Article 76 of the LOSC. These actions speak to various interests that putative coastal States have in relation to the continental shelf, but plainly a major focus is around access to resources, including mineral resources. More broadly, the legal status of the Northwest Passage and the Northern Sea Route are disputed,17 variously between the US, Canada and Russia, and there are issues around boundaries in the Beaufort Sea, but the boundary dispute between Canada and Denmark (for Greenland) over tiny Hans Island was resolved in June 2022 by division of the island.18 In the Antarctic, territorial sovereignty is unresolved across the entire continent, which effectively disables the usual application of coastal State rights. There are, in addition, ongoing territorial disputes concerning the Falklands/Malvinas and the sub-Antarctic groups of South Georgia and the South Sandwich Islands. These create sensitivities around resource access in the South Atlantic immediately north of the Antarctic area. These are now overlain by a strategic “Great Game” in both the Arctic and Antarctic around the “rise-of-China” rubric,19 and what has now plainly emerged as

12 Protocol on Environmental Protection to the Antarctic Treaty, opened for signature October 4, 1991, 30 ILM 1455 (entered into force January 14, 1998). 13 Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature June 2, 1988 (not in force). 14 Madrid Protocol, Article 7. 15 United Nations Convention on the Law of the Sea, opened for signature December  10, 1982, entered into force November 16, 1994. Text in: 1833 UNTS 3. USA is not a party to LOSC but considers most of it as codifying customary international law. This is also the reason that the Arctic Five did not use LOSC in their Ilulissat Declaration but the term “law of the sea.” 16 Agreement Relating to the Implementation of Part XI of the United Nations Convention of the Law of the Sea of December 10, 1982, opened for signature July 28, 1994, entered into force July 28, 1996, Text in: 1836 UNTS 3. 17 See Chapters 6 and 7 of this volume. 18 www.canada.ca/en/global-affairs/news/2022/06/canada-and-the-kingdom-of-denmark-together-with-greenlandreach-historic-agreement-on-long-standing-boundary-disputes.html; https://via.ritzau.dk/pressemeddelelse/canadaand-the-kingdom-of-denmark-together-with-greenland-reach-historic-agreement-on-longstanding-boundary-dispu tes?publisherId=13560888&releaseId=13653450&fbclid=IwAR15n5F_vPrlC-GW-YC_yqmo_A_tPzMaGNhxLW W765ec3YXVvnjLPsiygWE. 19 Anne-Marie Brady, China as a Great Polar Power (New York: Cambridge University Press, 2017).

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a wider, albeit not yet unanimous, Western policy of containment.20 Whilst not entirely conf ined to the resource access issue, this is a dominant theme, and potentially the “blue-touch-paper” for concerns about a wider instability.21 We note that all this was quite predictable and was indeed predicted almost a hundred years ago in relation to the Antarctic by Gordon Hayes, who observed, “As the boundaries stand at present the discovery of valuable minerals in Antarctica, by commerce (they have already been discovered by science), might easily lead to acrimonious disputes.”22 The challenge has been for the Antarctic legal regime to prevent, or at least constrain, this acrimony. The f irst volume to consider explicitly the “polar regions” as such, in 1861, noted the presence of “true coalf ields” in the Arctic.23 Today, there are already many onshore oil and gas projects and consistent speculation around additional projects as the Arctic “opens up” through climate change.24 Indeed, the Arctic’s oil and gas riches have been under gradually intensifying exploitation since the 1920s, although there is currently a powerful discourse around leaving these fossil resources in the ground on the basis that if these oil provinces are opened, this would subvert the objectives of the Paris Agreement.25 Both the EU and Finland have adopted this position in their recent strategies. The rest of this chapter proceeds through a consideration of, f irst, international regulation under the respective Arctic and Antarctic regimes – substantially around the Arctic Council and the Arctic-orientated instruments, including the Svalbard Treaty,26 and the instruments of the ATS, then international regulation in the polar regions under the global regime of LOSC, addressing in particular the deep seabed and the continental shelf, before drawing our assessment together in a concluding section.

International Regulation Under the Polar Regimes27 The Arctic There is a long history of oil, gas, coal and hard-rock mining activities in the Arctic regions, well reviewed by our colleagues,28 and, for example, in the Arctic Council’s Oil and Gas Assessment.29 All eight Arctic Council member States have been engaged in prospecting and exploiting

20 Alan D. Hemmings, “Challenges to Substantive Demilitarisation in the Antarctic Treaty Area,” The Yearbook of Polar Law 12 (2020): 172–94, 191. 21 Nengye Liu and Chen Jiliang, “China and the Future of the Antarctic Mining Ban,” The Interpreter, October 8, 2021, www.lowyinstitute.org/the-interpreter/china-and-future-antarctic-mining-ban. 22 J. Gordon Hayes, Antarctica: A Treatise on the Southern Continent (London: The Richards Press, 1928), 364. 23 John Richardson, The Polar Regions (Edinburgh: Adam and Charles Black, 1861), 285. 24 On the familiar and bi-polar “scramble” motif, see the balanced discussion in Klaus Dodds and Mark Nuttall, The Scramble for the Poles (Cambridge: Polity, 2016). 25 Paris Agreement (adopted December  12, 2015, entered into force November  4, 2016) https://unfccc.int/sites/ default/f iles/english_paris_agreement.pdf. 26 Treaty Concerning the Archipelago of Spitsbergen, opened for signature February 9, 1920, 2 LNTS 8 (entered into force August 14, 1925). For Svalbard, see Chapter 28 of this volume. 27 For the Arctic, no off icial southernmost boundary has been accepted. Yet as discussed, there are various working def initions, some of which are useful for the purposes of this chapter, such as the one def ined in Arctic Offshore Oil and Gas Guidelines. For the Antarctic, the regime is provided by the Antarctic Treaty System – def ined in Article 1 of the Madrid Protocol as “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.” 28 Johnstone and Joblin, “Non-living resources and the Poles,” 250–53 and 263–64. 29 Arctic Council, Arctic Oil and Gas 2007, Arctic Monitoring and Assessment Programme, Oslo, 2007, www.amap.no/ documents/download/1017/inline.

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hydrocarbons, coal or minerals in their northern regions. The major hurdle has been transportation to markets. Here is the summary: Finland and Sweden do not have oil and gas industries, but they do have long-developed mineral resources in their northern regions. Iceland had a short-lived offshore oil and gas exploration but overall does not have any signif icant mineral or hydrocarbon activity. Norway has a history in both mining and oil and gas extraction, together with exploiting coal in Svalbard.30 Some mining occurs in Greenland and is heavily promoted by the Self-Government, but in July 2021, the government called a halt to hydrocarbon development. Russian Arctic regions and the United States (Alaska) have long traditions in both mining and oil and gas extraction. For Russia, the Arctic is central to its hydrocarbon-driven economy (95% of its gas and 70% of its oil). Canada has a long history in mining and there has also been substantial exploration for oil and gas but no clear development. There is dense regulation at national and sub-national level within these States and, for those who are members of the EU, additional EU regulation and international treaty obligations. In this chapter, it is only possible to sketch how these resources are regulated across this complex f ield. In order to understand how these various minerals and fossil fuels are regulated through prospecting, exploration to exploitation, one must examine the basic structures of governance and the main thematic regulatory issues. It may be helpful to focus on how a commercially viable fossil fuel or a mineral deposit is regulated. The three federal States – the Russian Federation, the United States and Canada – exercise powers in the Arctic region at both federal and sub-national level (e.g. Alaska in the United States, Nunavut in Canada or Yamalo-Nenets Autonomous Okrug in Russia).31 The Nordic States are normally said to be unitary, but their governance system has become much more complicated with EU and European Economic Area (EEA) membership. The northernmost parts of Finland and Sweden are also parts of the EU, which means that the whole bulk of environmental and other legislation of the EU is applicable to these regions, together with, for example, international environmental treaties. These have clear impacts on how mining is regulated, for instance, through the Natura 2000 protected area legislation, but also via the EU’s raw materials strategy. Yet it is important to note that mostly it is national law that still governs the way mining is legislated and organised. Even if Iceland and Norway are not member States of the EU, much of the EU’s environmental protection legislation applies via the EEA Agreement. Still, it is clearly Norway that can decide how its mining and fossil fuel reserves are regulated and organised, although of course within the conf ines of its international treaty commitments. Svalbard, even though under Norwegian sovereignty, is excluded from the EEA agreement, and governed by international treaty.32 Nevertheless, Norway is competent to enact legislation in most policy areas for Svalbard and in particular to coal mining (for which there is a mining code), which is still ongoing in the archipelago.33 The possible mining and offshore oil and gas possibilities in the surrounding seas of Svalbard will be discussed later. Even if Denmark is a member State of the EU, Greenland and the Faroe Islands, two component

30 Norway’s last coal mine is planned to terminate its operations by 2023. 31 See Greg Poelzer and Gary Wilson, “Governance in the Arctic: Political Systems and Geopolitics,” in Arctic Human Development Report: Regional Processes and Global Linkages, eds. Joan Nymand Larsen and Gail Fondahl (Akureyri: Nordic Council of Ministers, 2014), 183−220. 32 Treaty Concerning the Archipelago of Spitsbergen, opened for signature February 9, 1920 (entered into force August 14, 1925), Text in: 2 LNTS 8. 33 Norway is about to close its coal operations, see https://thebarentsobserver.com/en/arctic/2017/10/end-comes-100years-norwegian-coal-mining-svalbard.

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parts of the Kingdom of Denmark (or Realm) are not. The Greenlanders voted to withdraw from the then EEC in 1985 and later negotiated a very extensive 2009 Self-Government arrangement with Denmark.34 Under the Self-Government Agreement and Mineral Resources Act,35 the Greenland government and parliament lay down the rules and administer how the natural resources of Greenland are to be exploited. There is guidance on how prospecting, exploration and exploitation of hydrocarbons and other minerals in Arctic-specif ic conditions through the work of the primary intergovernmental forum of the region, the Arctic Council. The Council is a unique intergovernmental forum of the eight Arctic States in that it has Indigenous Peoples as its permanent participants; hence, their influence is clear in the ways the Arctic Council tries to influence policy, in making large-scale scientif ic assessments, producing recommendations to guide Arctic economic activities or when the Council acts as a platform for negotiating legally binding agreements between the eight Arctic States.36 The Council has produced voluntary guidelines on how to perform environmental impact assessment in Arctic conditions,37 conduct mining in the Arctic conditions38 and, in particular, on how to regulate offshore oil and gas activities. The Arctic Council’s Arctic Offshore Oil and Gas Guidelines, originally agreed in 1997, have already been revised twice, in 2002 and 2009. The document recognises a uniform understanding of the minimum actions needed to protect the Arctic marine environment from unwanted environmental effects caused by offshore oil and gas activities. It also presents a set of recommended practices for the regulation of offshore oil and gas exploration and extraction, including transportation and onshore activities that are an integrated part of the offshore operations in the Arctic. The document highlights the requirement of having an environmental impact assessment (EIA) procedure and plans for emergencies and responses.39 Since each oil spill is unique as to the local environmental conditions and the specif ic types of oil that are spilled,40 the document also provides risk assessments to identify accidental events that may occur. Overall, the Offshore Oil and Gas Guidelines is a comprehensive document that specif ically addresses the concerns of the offshore Arctic. However, since the Arctic Council does not have a mandate to issue binding regulations, the instrument is hortatory. Still, it encourages the members to incorporate its content into national legislation.41 The Council also catalysed negotiations on

34 See the Act on Greenland Self-Government (Act no. 473 of June 12, 2009), accessed June 27, 2015, www.naalakker suisut.gl/~/media/Nanoq/Files/Attached%20Files/Engelske-tekster/Act%20on%20Greenland.pdf. 35 Mineral Resources Act, Greenland Parliament Act No. 7 of December 7, 2009 (as amended). 36 See Chapter 21 of this volume. 37 The Guidelines for Environmental Impact Assessment in the Arctic were approved already in 1997 (https://oaarchive. arctic-council.org/handle/11374/2508) and the subsequent work in the Council was the Good Practices for Environmental Impact Assessment and Meaningful Engagement in the Arctic, released in 2019, see at https://oaarchive.arcticcouncil.org/handle/11374/2377. 38 Sustainable Development Working Group of the Arctic Council, “Circumpolar Information Guide on Mining for Indigenous Peoples and Northern Communities” (2011), https://oaarchive.arctic-council.org/bitstream/handle/11374/45/ Circumpolar%20Information%20Guide%20on%20Mining%20for%20Indigenous%20Peoples%20and%20Northern %20Communities.pdf?sequence=1&isAllowed=y. 39 See Chapter 12 of this volume. 40 Edward H. Owens et  al., “Field Guide for the Oil Spill Response in Arctic” (1998), prepared for Arctic Council’s Emergency, Prevention, Preparedness and Response Working Group (EPPR), www.arctic-council.org/eppr/ completed-work/oil-and-gas-products/f ield-guide-for-oil-spill-response/. 41 Since the Council does not track how its recommendatory documents are followed, it is diff icult to know whether they have made real impacts. It is clear that at least the document has made some impact in Greenland, see “Arctic Offshore Oil and Gas Guidelines in Greenland and Russian Federation” (2011) White Paper No. 5, Vermont Law School Institute

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what became the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic,42 which has led to important desktop and shipping exercises to counter the threat of oil pollution accident.

The Antarctic The presence of economically interesting minerals such as coal in the Antarctic was recorded by the early-20th-century “heroic era” expeditions, and in the succeeding 100 years, Antarctic science has provided a fuller inventory. The belief that Antarctica holds potentially signif icant mineral resources rests particularly on two pillars. First, the systematic circumpolar marine seismic surveys of the 1970s. Second, the arguments from geological analogies between sedimentary basins in Antarctica and hydrocarbon productive sedimentary basins elsewhere globally and between mineral-rich igneous intrusions such as South Africa’s Bushveld Complex and the Dufek Intrusion in Antarctica.43 Particularly, after the 1973 oil embargo launched by the Organization of Oil Producing Countries (OPEC) and the consequential economic and geopolitical shocks, Western States developed a great interest in potential alternative sources to the Middle East for hydrocarbons.44 The polar regions were caught up in this.45 The diff iculty in relation to the Antarctic – aside obvious technical challenges – was the absence of a property-rights regime. Given the unresolved territorial situation (further embedded through Article IV of the Antarctic Treaty), the necessary commercial security for the sorts of investment that would be required through the prospecting, exploratory and productive phases of any mineral extraction was absent. Whilst this will have been evident to most Antarctic States, the clearest evidence that this was seen as a critical def iciency requiring resolution is provided by the United States, in a 1975 “Memorandum for the President,”46 which identif ied US interests and objectives in Antarctica as including efforts to do the following: B. Non-Living Resources: • Increase knowledge of the non-living resource potential of Antarctica. • Ensure guaranteed, non-discriminatory access by the United States to all areas of Antarctica except those specif ically designated for other uses.

for Energy and the Environment prepared for the Inuit Circumpolar Council, www-assets.vermontlaw.edu/Assets/iee/ Baker_ArcticOffshoreOil5.pdf. 42 2013 adopted Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic. 43 See, generally, Maarten J. De Wit, Minerals and Mining in Antarctica: Science and Technology, Economics and Politics (Oxford: Clarendon Press, 1985). 44 See, generally, Daniel Yergin, The Prize: The Epic Quest for Oil, Money and Power (New York: Free Press, 1991), Part V. 45 See, inter alia, Congressional Research Service, Polar Energy Resources Potential: Report prepared for the Subcommittee on Energy Research, Development and Demonstration, and the Subcommittee on Energy Research Development and Demonstration (Fossil Fuels) of the Committee on Science and Technology, U.S. House of Representatives, Ninety-Fourth Congress, Second Session, 1976 (Reprinted: Honolulu, University Press of the Pacif ic, 2005). 46 National Security Council Undersecretaries Committee, Memorandum for the President – United States Policy and Programme for Antarctica (Washington, DC: National Security Council, 1975). ADH is grateful to his colleague Peter Wills who provided him with a copy of this document in 1988 after securing it through a Freedom of Information Act request.

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• Ensure that any mineral resources exploration and exploitation is consistent with environmental considerations. • Facilitate an increase in the global supply of resources, through: (i) def ining property rights to Antarctic mineral resources. [emphasis added] (ii) ensuring reasonable conditions of investment consistent with U.S. interests, including environmental protection. Resolving this property-rights gap was a key purpose of the negotiation of a bespoke minerals regime, adopted as the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA).47 The process commenced in 1970,48 and detailed negotiations were mandated in 1981 when it was declared that “a regime on Antarctic mineral resources should be concluded as a matter of urgency” via a special consultative meeting (SCM).49 The SCM involved 12 negotiating sessions over six years, concluding with the adoption of CRAMRA in Wellington in June 1988. As is well known, CRAMRA did not, however, enter into force, nor is it likely to as it has been superseded by the Madrid Protocol.50 Opposition to CRAMRA centred on two concerns: (1) the likelihood that mineral resource activities, even if carried out in full compliance with CRAMRA, would likely cause unacceptable impacts on the Antarctic environment, and (2) concern on the part of some mineral producing States that sourcing mineral resources from Antarctica might pose signif icant costs in relation to their domestic minerals industries, perhaps through some governments subsidising uneconomic Antarctic mining.51 The replacement Protocol on Environmental Protection to the Antarctica Treaty (Madrid Protocol),52 was adopted in 1991 and addressed minerals in Article 7: Prohibition of Mineral Resource Activities, the shortest in the Protocol: Any activity relating to mineral resources, other than scientif ic research, shall be prohibited. Whilst the minerals prohibition of Article 7 is, like the Madrid Protocol as a whole, open-ended, there is a modif ication or amendment option 50 years from the date of its entry into force under Article 25. This had been seen as the potential Achilles’ heel of the Madrid Protocol from the later negotiating period onwards because it was assumed that the most likely reasons for a State triggering the Review Conference would be precisely to end the mining prohibition. Article 25 was carefully crafted to ensure that lifting the prohibition was not straightforward or quick and that there could be no free-for-all if it was revoked before some other agreements were in place. However, text seemingly agreed by delegations on April 29, 1991, in Madrid,53 was subsequently repudiated by

47 A useful array of articles on aspects of CRAMRA is collected in The Convention on the Regulation of Antarctic Mineral Resource Activities: An Attempt to Break New Ground, ed. Rüdiger Wolfrum (Heidelberg: Springer-Verlag, 1991). 48 Christopher Beeby, “The Convention on the Regulation of Antarctic Mineral Resource Activities,” Paper presented to the Meeting of the International Bar Association Meeting, Auckland, October 13, 1988, 5. 49 Recommendation XI-1 (1981) Antarctic Mineral Resources www.ats.aq/devAS/Meetings/Measure/133. 50 Ministry of Foreign Affairs and Trade, “Convention on the Regulation of Antarctic Mineral Resource Activities,”www.mfat. govt.nz/en/about-us/who-we-are/treaties/convention-on-the-regulation-of-antarctic-mineral-resource-activities/. 51 Andrew Jackson and Peter Boyce, “Mining and World Park Antarctica, 1982–1991,” in Australia and the Antarctic Treaty System, eds. Marcus Haward and Tom Griff iths (Sydney: UNSW Press, 2011), 243–73, 246. 52 Protocol on Environmental Protection to the Antarctic Treaty, adopted October 4, 1991, entered into force January 14, 1998. Text in: 30 ILM 1455. 53 Protocol to the Antarctic Treaty on Environmental Protection, XI ATSCM/2/30, April 29, 1991 – on f ile with author (ADH).

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the United States, reportedly at the insistence of the White House, specif ically around the rigour of this article. The article was, accordingly, redrafted before the Protocol was f inally adopted in October 1991. Whilst the detail cannot be adequately covered here, this event is indicative of the risk – now a regular trope around the stability of the mineral prohibition – that the 50-year time horizon is really the lifetime of the agreement, after which minerals activity will likely commence, rather than merely a possible review point for an open-ended agreement. It also bears remarking that although Western States often now characterise Russia and China as key threats in this regard, it was the United States that weakened the arrangement. Article 7, as noted, is very brief and the Protocol does not include any def inition of the critical term “mineral resource activities.” But “mineral resource activities” and the sequence of stages making up this activity are explicated in Article 1 of CRAMRA, which was, after all, adopted just three years earlier. These understandings, which arose from detailed negotiation and had been carefully drafted and adopted in CRAMRA in 1988, are plainly integral to the understanding of what was prohibited in Article 7 in 1991:   6. “Mineral resources” means all non-living natural non-renewable resources, including fossil fuels, metallic and non-metallic minerals.   7. “Antarctic mineral resource activities” means prospecting, exploration or development, but does not include scientif ic research activities within the meaning of Article III of the Antarctic Treaty.   8. “Prospecting” means activities, including logistic support, aimed at identifying areas of mineral resource potential for possible exploration and development, including geological, geochemical and geophysical investigations and f ield observations, the use of remote sensing techniques and collections of surface, seafloor and sub-ice samples. Such activities do not include dredging and excavations, except for the purpose of obtaining small-scale samples, or drilling, except shallow drilling into rock and sediment to depths not exceeding 25 metres, or such other depth as the Commission may determine for particular circumstances.   9. “Exploration” means activities, including logistic support, aimed at identifying and evaluating specif ic mineral resource occurrences or deposits, including exploratory drilling, dredging and other surface or subsurface excavations required to determine the nature and size of mineral resource deposits and the feasibility of their development, but excluding pilot projects or commercial production. 10. “Development” means activities, including logistic support, which takes place following exploration and are aimed at or associated with exploitation of specif ic mineral resource deposits, including pilot projects, processing, storage and transport activities. Unless States are of the view that the absence of def initions within the Madrid Protocol itself or explicit linkage to CRAMRA means that these def initions are no longer legitimate descriptors, it appears diff icult to accept that any substantial ambiguity can exist in relation to what the Article 7 prohibition is intended to cover.54 Whilst it appears that the majority of States have remained compliant with the Article 7 prohibitions, there have been recurring reports of the Russian Federation conducting activities, publishing reports and even declaring in materials at ATCMs that they are engaged in “prospecting” in the

54 There are other carry-overs from CRAMRA in the Madrid Protocol.

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Antarctic Treaty Area.55 As noted, CRAMRA shows that ATCPs had a very clear understanding that “prospecting” was one of the stages comprising “Antarctic mineral resource activities” and, via a conception of its purposes, that “prospecting” was materially different to “scientif ic research,” notwithstanding the unsurprising f inding that sometimes the techniques and methodologies are common across the activities. Laundering “prospecting” as “scientif ic research” should, accordingly, not be possible. Other ATCPs seem not to have challenged the Russian Federation on these matters, at least in the public record provided by the f inal reports of ATCMs, notwithstanding their obligations in relation to ensuring compliance by others codif ied in the Madrid Protocol.56 The 50th anniversary of the entry into force of the Madrid Protocol will be reached on January 14, 2048, and thereafter any ATCP may, via the Depository, request a review conference, which “shall be held as soon as practical.”57 Any modif ication or amendment proposed at that conference requires a majority to be adopted, and that majority must include three-quarters of the (26) States which were ATCPs when the Protocol was adopted in 1991.58 It may be very diff icult to secure that adoption, given that each State has an effective veto, unless of course the political stakes are so high that even opposed States feel that they cannot block adoption. That adopted modif ication or amendment then requires the ratif ication59 of three quarters of the States which are currently ATCPs including all of the States which were ATCPs in 1991, in order to enter into force.60 In relation to the minerals resource activity focus of Article 7, there are further requirements. In order for the prohibition to be lifted, there needs to be in force a binding legal regime . . . that includes an agreed means for determining whether, and, if so, under which conditions, any such activities would be acceptable. This regime shall fully safeguard the interests of all States referred to in Article IV of the Antarctic Treaty [i.e the article addressing positions on territorial sovereignty] and apply the principles thereof. Therefore, if a modif ication or amendment to Article 7 is proposed at a Review Conference . . . it shall include such a binding legal regime.61 This sets a very high bar, with several “fail-safes.”62 It requires something very close to consensus and a regulatory regime akin to CRAMRA that is in force. If we take 2048 as the critical date, it is diff icult to imagine that one could simply revive CRAMRA. Not only would that instrument itself be 53 years old, but the world it was crafted to suit was the Cold War era. At the time, close to half the involved States had some variation on centrally planned economies, there was a very different world order and quite different technical capabilities and environmental standards. In short, however

55 See discussion of these matters and the links to original sources in: Tiara Walters, Dossier: Battleground Antarctica (Part One), Daily Maverick – October  25, 2021, www.dailymaverick.co.za/article/2021-10-25-using-cape-town-as-a-launch pad-russia-boasts-of-supergiant-oil-f ields-in-antarctic-wilderness/?fbclid=IwAR0J88rTpV4Kuyats5BO_6g59WLCZ9iSneZbsUi3vIZ65v-PVPOXpQ7DvU; Tiara Walters, Dossier: Battleground Antarctica (Part Two), Daily Maverick – November  7, 2021, www.dailymaverick.co.za/article/2021-11-07-heatpocrisy-the-mining-ban-exposing-antarctica-tobig-oils-blind-ambition/?fbclid=IwAR38Irir-JMb_SPpSsxCiaCaiXNZQU3w7ZgccckrqEsTvqTw2ckdfweSpIE. 56 Madrid Protocol, Article 13, “Compliance with this Protocol.” 57 Madrid Protocol, Article 25, paragraph 2. 58 Ibid., paragraph 3. 59 Fully: “ratif ication, acceptance, approval or accession.” Ibid., paragraph 4. 60 Ibid. 61 Emphasis added. Ibid., paragraph 5(a). 62 Donald R. Rothwell and Alan D. Hemmings, “Evolution of A Polar Law,” in Research Handbook of Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham: Edward Elgar, 2020), 471.

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dismal one sees the prospect of this scenario unfolding, creating the requisite regulatory regime will likely pose signif icant negotiating challenges and require some years. Recall that even at the time of CRAMRA’s adoption, there were still complex issues left for future resolution, including in relation to legal liability – a subject that has proven intractable in relation to the adopted liability Annex VI to the Madrid Protocol.63 There is, however, a worse-case scenario, because [i]f any such modif ication or amendment has not entered into force within 3 years of the date of its adoption, any Party may at any time thereafter notify the Depository of its withdrawal from the Protocol, and such withdrawal shall take effect 2 years after the receipt of the notif ication by the Depository. Accordingly, one or more States notionally become able to commence mineral resource activities subject to no legal constraints under the ATS, which may anyway collapse as a result of such a contingency. The likelihood of this is indeterminate, but unless it involves powerful States in some sort of collaboration, it appears to present them with signif icant diff iculties. Firstly, it would place them outside the orbit of what might still be a majority of States adhering to a rump of the ATS and would presumably resist such unilateral activities. Perhaps more compelling in dissuading States from withdrawing from the Madrid Protocol is that without some alternative international legal regime in place, the property-rights problem around investment security for mineral resource activity which stimulated the negotiation of CRAMRA in the f irst place returns. Is Antarctic mineral resource activity actually viable under such conditions? Allowing for the unavoidably speculative nature of any comments here, these complexities suggest that even if we see moves to revisit the possibility of conducting mineral resource activities in Antarctica after 2048, we are likely talking about a process whose gestation period probably involves at least a further decade. How much comfort this offers is another matter.

International Regulation in the Polar Regions Under the Global Regime of LOSC The Deep Seabed The fact of the protracted negotiations to reach the Agreement Relating to the Implementation of Part XI tells us that a number of States found the question of possible future resource access in the Area to be one in which they had a vital interest. The passage of time since the adoption of the Agreement has seen the question around process, purpose and desirability of deep seabed mining become increasingly contentious. This is true too in the polar regions, where in addition to the generic issues, questions arise around reconciling these rights and duties with those under the regional arrangements.64

Arctic All the Arctic coastal States have made scientif ic-technical submissions to the CLCS in order to delineate the full extent of their continental shelves, including the continental shelf beyond 200 M.

63 Alan D. Hemmings, “Liability Postponed: The Failure to Bring Annex VI of the Madrid Protocol Into Force,” The Polar Journal 8, no. 2 (2018): 315–32. 64 See Chapter 20 of this volume.

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The current CS submissions demonstrate that much of the Arctic Ocean will likely fall under the continental shelves of the Arctic littoral States. The current projections are that there will likely be two pockets of the Deep Seabed, which is administered by the International Seabed Authority (ISA), after the Arctic coastal States have delineated and delimited their continental shelf boundaries. These two areas are located in places which are remote in relation to the centres of global economic activity and accordingly still pose challenges for support and for the conveyance of extracted materials to markets. It is diff icult to imagine that there would be mining operations any day soon, even if the sea ice is on the retreat. In any case and in principle these remaining areas will be under the common heritage regime of the deep seabed.

Antarctic By virtue of the situation of the unresolved territorial sovereignty obtaining in Antarctica, for all apart from the seven claimants there are no functioning maritime zones off the continent and islands south of 60° south, despite some claimants asserting them.65 Indeed, for the unclaimed sector, there cannot even be asserted zones because there is no State to assert them. If we put to one side the interesting and plainly contentious proposition that the ATCPs as a whole might assert a collective basis to maritime zones off Antarctica, this leaves the high seas extending to the coastline of Antarctica for most States in the international system. Although some ATCPs extend their domestic implementing legislation for the Madrid Protocol to the entire area (including the marine area) south of 60° south, others do not. This, coupled with understandings of the nature of the application of the Antarctic Treaty and the Madrid Protocol in the area south of 60° south, suggests some uncertainty regarding the extension of the Article 7 mining prohibition across this maritime area. Therefore, there seems to be a wide f ield for the application of LOSC alone in relation to mineral resources in the maritime domain or a complex and uncertain relationship between it and the Madrid Protocol. Howsoever that is resolved, there appears a possibility that at some point the ISA will f ind itself considering proposals for minerals activity on the deep seabed in areas beyond national jurisdiction in the Southern Ocean south of 60° south latitude. Such areas would be within the Area but also within the area otherwise subject to the Antarctic Treaty and its Madrid Protocol (and to the extent that any ISA decision might also have consequences for marine protection, including marine protected areas, also CCAMLR). The major current global powers (including, signif icantly the Permanent Five of the Security Council), who are also the key drivers of the international economic system, are all ATCPs, so one might take comfort that so long as these States are supportive of the ATS and the mining prohibition under Madrid Protocol Article 7, a compelling geopolitical veto in fact exists that can secure that prohibition. Whether this continues over the longer term, particularly post-2048, is of course the question. Does the capacity to access and regulate mineral resources via LOSC potentially offer a Trojan horse for a State or States not entirely persuaded that the Madrid Protocol constraints should continue? A different sort of issue is that around the modalities of any ISA consideration of a proposal to carry out mineral resource activities. A recent paper suggests that there may be general lessons to be drawn from CRAMRA, and not just in relation to parts of

65 E.g. Australia asserted an EEZ off its claimed Australian Antarctic Territory in 1994, which occasioned a protest from the United States.

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the Area in the Antarctic.66 It would be ironic if the abandoned CRAMRA were to become the foster parent to a future ISA approach to managing mineral resource access to the deep seabed in Antarctica. It could, under such a scenario, become a potential competitor to the Madrid Protocol (which replaced CRAMRA) in relation to the acceptability and control of minerals resource activity in Antarctica.

The Continental Shelf The vital interest of coastal States in the continental shelf beyond 200 M, sensu Article 76 of LOSC (and, particularly for the US, the customary international law it codif ies), has generated considerable activity and attention since the turn of the century.67 Given the known and presumed resource potential of the polar regions and the complexities of polar geography, conditions and territorial sovereignty, the associated activity in the Arctic and Antarctic has had a high prof ile. More than anything else, particularly for the Arctic, it is the activity, positioning and rhetoric around the continental shelf beyond 200 M that has generated the narrative of a polar resources “scramble.”68

Arctic It was the 2007 Russian flag planting underneath the North Pole that really triggered the media and some international relations scholars to argue that States were now competing over who gets to “occupy” most of the seabed.69 Underlying this storyline was the awareness of how quickly the Arctic Ocean sea ice is melting and that the projection that much of the undiscovered oil and gas resources are located offshore in the Arctic. This was clearly a misrepresentation of what was and is taking place, but it did provoke interest in Arctic affairs. What was actually going on was the scientif ic mapping of the sea floor by the Arctic Ocean littoral States. The LOSC sets a time limit for making continental shelf submissions for its parties, a deadline that had to be pushed back to 2009, given the vast amount of information that is required to be gathered by the coastal State to demonstrate that its continental shelf extends beyond 200 M. All the Arctic littoral States have one by one made these submissions. Russia was the f irst to make such a submission to the CLCS in 2001, but this was sent back to Russia by the CLCS for further information, after which Russia made a revised submission in 2015. Denmark (vis-à-vis Greenland) made its submission as regards Central Arctic Ocean in 2014, and this overlaps with Russian submission as regards the Lomonosov ridge. Canada made its partial submission in 2019, which partly overlaps with those of Denmark (vis-à-vis Greenland) and Russia, especially as regards the North Pole seabed region. Norway and Iceland are the only ones, which have received recommendations from the CLCS.70 The United States is not a party to the LOSC, so it does not have access to the CLCS procedure. Yet the United States also acknowledges that much of the LOSC codif ies

66 Nicholas R. Kirkham, Kristina M. Gjerde and A. Meriwether W. Wilson, “Deep-Sea mining: Policy Options to Preserve the Last Frontier – Lessons from Antarctica’s Mineral Resource Convention,” Marine Policy 115 (2020): 103859. 67 See, generally, Joanna Mossop, The Continental Shelf Beyond 200 Nautical Miles: Rights and Responsibilities (Oxford: Oxford University Press, 2016). 68 See, generally, Klaus Dodds and Mark Nuttall, The Scramble for the Poles (Cambridge: Polity, 2016). 69 For the academic and journalistic “scramble” following this event, see ibid., 15. 70 Iceland submitted a partial submission in 2009 in respect of the Ægir Basin Area and the Western and Southern Parts of Reykjanes Ridge, for which the CLCS adopted Recommendations in 2016. In 2021, Iceland submitted a Partial

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customary international law, in particular those provisions that relate to the continental shelf. The United States has also conducted sea floor mapping to delineate its extended CS.71

Antarctic From 2004, all seven Antarctic claimants made submissions of various sorts to the Commission on the Limits of the Continental Shelf (CLCS) concerning the continental shelf beyond 200 M appurtenant to their asserted territorial claims. The lodging of a submission was seen as problematic. Unless the State submitted, it might appear to be relinquishing its claim or conf idence in its claim to territorial sovereignty and of course to any rights that the continental shelf beyond 200 M might confer upon it – most obviously in relation to resource access. However, making a submission could provoke States which do not recognise the claim (most States) to object, and in extremis generate a dispute that precludes consideration of the submission under the CLCS’s rules of procedure. Other States might also argue that the submission was inconsistent with Article IV of the Antarctic Treaty. The claimants generally sought a way around this. Australia and Norway made full submissions but urged the CLCS not to consider the Antarctic components for the time being. France, New Zealand and the United Kingdom each made submissions which excluded the Antarctic whilst reserving the right to do so later. Chile provide only preliminary information with a stated intention to later make a full submission – which it did on February 28, 2022 – albeit in a partial submission.72 Only Argentina made a full submission without caveats, which was indeed not subsequently considered by the CLCS as it involved a dispute.73 The take-home message here is that amongst the various claimant issues rolled up in these positions, the claimant States were concerned to reserve their positions in relation to rights and duties around resource access. In the case of the continental shelf beyond 200 M these are not necessarily conf ined to mineral resource activities, but the narrative around these submissions suggests that this is a focus. At the same time, the care which each of them took to minimise antagonism in relation to the Antarctic Treaty suggests a continuing sense that it is through that regime that a range of issues, including those around resources, are best managed. If the issues posed by delineations and submissions in relation to ECS generated from the Antarctic continent and islands south of 60° south have been contained without undue stressing of the ATS and the core accommodation of Article IV of the Antarctic Treaty, some interesting challenges have been thrown up by the notionally less contentious submissions from sub-Antarctic baselines. The continental shelf beyond 200 M from the baselines in three sub-Antarctic island groups (South Sandwich Islands, Heard and McDonald Islands [HIMI] and Macquarie Island) extends south of 60° south and thus enter into the Antarctic Treaty Area. Because the South Sandwich Islands are subject to a dispute between Argentina and the United Kingdom, the CLCS rules of procedure preclude consideration. But the CLCS did consider Australia’s submissions in relation to the continental shelf beyond 200 M extending from HIMI and Macquarie, and its positive recommendations mean that

Revised Submission in respect of the western, southern and south-eastern parts of Reykjanes Ridge. Executive summary 2021, https://www.un.org/depts/los/clcs_new/submissions_f iles/isl27_09/20210331IslRevEsSecure.pdf. 71 See Chapter 5 of this volume. 72 Details provided in the document, “Progress of work in the Commission on the Limits of the Continental Shelf. Statement by the Chair,” CLCS/55/2, October  4, 2022, https://documents-dds-ny.un.org/doc/UNDOC/GEN/ N22/581/92/PDF/N2258192.pdf. 73 Alan D. Hemmings and Tim Stephens, “Reconciling Regional and Global Dispensations: The Implications of SubAntarctic Extended Continental Shelf Penetration of the Antarctic Treaty Area,” New Zealand Yearbook of International Law 6 (2008 (2009)): 273–91. See also Chapters 3 and 5 of this volume.

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for the f irst time there has been international recognition of a State’s sovereign rights over an area within the Antarctic Treaty Area.74 The permeability of the 60° boundary had earlier been noted by Arthur Watts in relation to CRAMRA: if the geographical extent of the continental shelf appurtenant to that land extends north of 60° South (as it does in the area of the Antarctic Peninsula), then minerals activities in that more northerly area of the shelf are also subject to the Convention.75

Conclusions Changes in the global order, the accelerating consequences of anthropogenic climate change and the increasing, if not yet matching, public concern that politics and global governance systems respond to this, are each separately and in combination having impacts in the polar regions. Whilst as yet they have led to little by way of new international legal developments – neither in the form of new legal instruments nor signif icant developments in either the architecture or the practice of the dominant regional systems (the Arctic Council and the ATS) – this will, surely, happen. Predicting future developments is notoriously diff icult, but what sort of developments might be possible? The clearest controversy in the Arctic has been about hydrocarbon development. As was reviewed earlier, the f ive Arctic Ocean coastal States have a long track-record of oil and gas in their northern regions, except for Denmark (vis-à-vis Greenland), which only recently renounced its intentions to develop its offshore oil and gas resources. For quite some time now there has been a debate – engendered both by scientists and environmental NGOs – around whether undiscovered hydrocarbon resources in the Arctic should be left in the ground or the seabed if the States are to live up to their commitments under the UNFCCC and the Paris Agreement.76 Recently, both Finland and the EU, in their most recent 2021 Arctic strategies, took issue with Arctic fossil fuels. Finland states in its Finland’s Strategy for Arctic Policy that “In Finland’s view, the opening up of new fossil reserves in Arctic conditions is incompatible with attaining the targets of the Paris Agreement and associated with economic uncertainties and risks.”77 Even more recently, the EU, a de facto observer in the Arctic Council and a policy entity that has a fair amount of Arctic influence, stated directly that the EU should push for “oil, coal and gas to stay in the ground, including in Arctic regions.”78 Even if it is clear that policy-wise it is the Arctic countries themselves who will decide on whether and how intensely to promote hydrocarbon development in the Arctic, it is also the case that the opening of new hydrocarbon provinces is increasingly seen as going against the objectives of the climate regime.

74 Hemmings and Stephens, “Reconciling Regional and Global Dispensations,” 288–89. 75 Arthur Watts, International Law and the Antarctic Treaty System (Cambridge: Grotius, 1992), 154–55. 76 See e.g. Christophe McGlade and Paul Ekins “The Geographical Distribution of Fossil Fuels Unused when Limiting Global Warming to 2°C,” Nature 517 (2015): 187–90. 77 Finnish Government, Finland’s Strategy for Arctic Policy, Publications of the Finnish Government 2021: 55, p.  26, at https://julkaisut.valtioneuvosto.f i/bitstream/handle/10024/163247/VN_2021_55.pdf?sequence=1&isAllowed=y. 78 European Commission and the High Representative of the Union for Foreign Affairs and Security Policy, Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A stronger EU engagement for a peaceful, sustainable and prosperous Arctic 2021:16. I have to check whether they have even released this publicly – I have it but I have it because I led a group that made this policy overview of how densely EU is in the Arctic region, at https://eeas.europa.eu/sites/default/f iles/2_en_act_part1_v7.pdf.

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For the Antarctic, there are two looming challenges. Firstly, the twinkling light (red or green, depending on your preferences) after 2048 when States may choose to continue, amend or abandon the present prohibition of mineral resource activities – a moratorium which has in fact been in effect since 1977 and which therefore will have been the international norm for over 71 years by the time a putative review might arise. In politico-legal terms, that twinkling light has signif icance well before 2048. States are already “pricing it in” to their Antarctic planning, as the expression goes. Is it not a paradox that in the Antarctic where so much of the critical research and insight that underpins our understanding of climate change is conducted, we should still be seeing the majority of the powerful global States unable to preclude hydrocarbon extraction, even as our science tells us that we cannot safely burn the sources that we already have, let alone open up new sources.79 This challenge is exacerbated by the second great challenge, how we manage the global rivalry between the existing global hegemon and the rising global hegemon, with their respective allies and satellites. The argued new global Cold War between the United States and associates and China80 has seen conventional strategic framings of this geopolitical rivalry imported into Antarctic affairs too.81 Hitherto (and paradoxically) this has occurred with less sensitivity than was seen in relation to the management of the f irst Cold War, to which the ATS was essentially a response. Without some active management in the Antarctic (and to the extent that the same is evident in the north, within the Arctic) regime, there must be concerns that the “peaceful purposes and [avoidance of] international discord,” referred to in the Preamble to the Antarctic Treaty, might be in question. Pending some creative resolution of the unresolved positions around territorial claims (or the continuation in near perpetuity of the artful Article IV provisions of the Antarctic Treaty), one might think that there is no alternative to the collective and relatively collegial management of the Antarctic region which the present regime has allowed. As a way of at least avoiding the signif icant worsening of greenhouse gas emissions that burning Antarctic hydrocarbons would deliver – and signalling serious intent in relation to the wider decarbonising of the global economy that is necessary – and reducing the basis for signif icant geopolitical contention around the Antarctic, international legal agreement to leave Antarctica’s hydrocarbon resources in situ seems imperative. This would of course still leave the question of hard-rock minerals to be resolved, and into that question one might speculatively drop the potential linkages with decisions about not only deep-seabed mining, but the possibilities in relation to extra-terrestrial sources given the talk, inter alia, around “space resources” in the Artemis Accords.82 However future policy develops in this regard, the Antarctic in the present and the near future is a vastly more complex politico-legal space than it was in the late 1950s when the Antarctic Treaty was negotiated. There has been an increase in the number of States, corporations and civil-society entities operating in the area. Each now (or will) expect to be participants (directly or indirectly) in the negotiations which will surely arise, if and when Antarctic resource access discussions restart. Quite how the international equity issues around participation in Antarctic resource access arrangements

79 Patrick Flamm and Alan D. Hemmings, “Now and Never: Banning Hydrocarbon Extraction in Antarctica Forever,” GIGA Focus Global, no. 1, February 2022, www.giga-hamburg.de/en/publications/giga-focus/now-and-never-banninghydrocarbon-extraction-in-antarctica-forever. 80 Hal Brands and John Lewis Gaddis, “The New Cold War: America, China, and the Echoes of History,” Foreign Affairs (November/December 2021), www.foreignaffairs.com/articles/united-states/2021-10-19/new-cold-war. 81 Hemmings, “Challenges to Substantive Demilitarisation in the Antarctic Treaty Area.” 82 The Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes, signed on October 13, 2020, www.nasa.gov/specials/artemis-accords/index.html.

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are resolved also becomes salient,83 including around the glass ceiling constraining participation in the ATS,84 and the moral dimension of the claims to standing in relation to decision-making.85 The Antarctic regime of the ATS is now penetrated and surrounded by the global regime of LOSC, and thus, the problem of “regime shopping” and quite how States chose to navigate their more diverse rights and duties in relation to resources across this f ield are further critical considerations. We conclude with the observation that for any young international legal and policy scholars reading this, the polar future, whilst as always uncertain, offers plenty of scope for intellectual engagement and may therefore be worthy of your further investigation.

83 Alan D. Hemmings, “Re-justifying the Antarctic Treaty System for the 21st Century: Rights, Expectations and Global Equity,” in Polar Geopolitics? Knowledges, Resources and Legal Regimes, eds. Richard C. Powell and Klaus Dodds (Cheltenham: Edward Elgar, 2014), 55–73. 84 Alan D. Hemmings, “The Functional Exclusion of Least Developed Countries from the Antarctic Regime,” The Polar Journal 12 (2022): 88–107. 85 Alejandra Mancilla, “Four Principles to Justify Claims to Jurisdiction and to Natural Resources in Antarctica,” The Yearbook of Polar Law XI (2020): 170–91.

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PART II

Regional Issue of International Institutions and Actors

SECTION A

Institutional Approach to the Polar Governance

19 THE IMO AND OUTSTANDING MARITIME SAFETY AND ENVIRONMENTAL ISSUES UNDER THE POLAR CODE Marel Katsivela Introduction The IMO is a “specialised agency” of the United Nations that is responsible for the safety and security of shipping and the protection of the marine environment.1 As a specialised agency, some of the IMO’s primary functions are to (1) consider and make recommendations regarding international maritime shipping; (2) provide for the drafting of conventions, agreements or other suitable instruments; and (3) provide machinery for consultation among IMO members.2 While the function of the IMO is consultative and advisory the fact that it can provide for the drafting of conventions, agreements or other suitable instruments makes it a quasi-legislative body.3 Further, the adoption of amendments to conventions by a tacit acceptance procedure – amendments enter into force unless a prescribed fraction of States objects to the amendment4 – can also be described as “quasi-legislative.”5 The conventions adopted under the auspices of the IMO focus mainly on maritime safety,6 the prevention of marine pollution and liability and compensation.7 Much of the work of the IMO is carried out by its principal committees: the Maritime Safety Committee (MSC), Marine

1 IMO, “Introduction to the IMO,” accessed August 9, 2021, www.imo.org/en/About/Pages/Default.aspx. 2 Convention on the International Maritime Organization, signed on March 6, 1948, entered into force, March 17, 1958, 289 U.N.T.S. 3, art. 2. 3 Article 2(b) of the Convention on the International Maritime Organisation, ibid. F. L. Wiswall, Jr., “Uniformity in Maritime Law: The Domestic Impact of International Maritime Regulation,” 57 TLNLR 1208 (1983): 1210–11. 4 William Tetley, “Uniformity of International Private Maritime Law – The Pros, Cons, and Alternatives to International Conventions – How to Adopt an International Convention,” Tulane Maritime Law Journal 24, no. 775 (2000): 817–19. 5 Craig H. Allen, “Revisiting the Thames Formula: The Evolving Role of the International Maritime Organisation and its Members States in Implementing the 1982 Law of the Sea Convention,” SANDILJ 10, no. 265 (2009): 271 citing other authors. 6 IMO, “Introduction to the IMO.” 7 IMO, “Adopting a convention, Entry into force, Accession, Amendment, Enforcement, Tacit acceptance procedure,” accessed August 9, 2021, www.imo.org/en/About/Conventions/Pages/Default.aspx. On the IMO and its role in safeguarding the marine environment, see A. Chircop, “IMO’s Work on Environmental Protection and Global Ocean Governance,” in The IMLI Treaties on Global Ocean Governance, Volume III: IMO and Global Ocean Governance, eds. D. J. Attard et al (London: Oxford University Press, 2018), 172–204, 174s.

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Environment Protection  Committee  (MEPC),  the Legal  Committee  (LEG), the Technical Cooperation Committee (TCC) and the Facilitation Committee (FAL).8 As we are going to see later, the IMO member States and non-governmental organisations that have been granted consultative status9 can participate in the rule making process of the IMO. The participation of NGOs at the IMO level is a major strength of the institution because it gives it access to the broadest range of technical and other expertise, as well as representation of major affected interests.10 There is a complex web of international (including IMO) rules governing maritime transport in the polar regions. For example, the 1982 United Nations Convention on the Law of the Sea (LOSC)11 provides the basic regulatory framework for maritime transportation.12 It contains special rules for environmental protection (Part XII), and it singles out “ice-covered areas” for special treatment (Article 234).13 Regarding safety in navigation and environmental protection issues, the LOSC frequently refers to the “competent international organization,” which usually means the IMO.14 Further, different IMO instruments govern various aspects of international navigation, including navigation in the polar regions. Some of them are the 1974 International Convention for the Safety of Life at Sea (SOLAS 1974), as amended,15 including the International  Code  on  Intact Stability, 2008 (2008 IS Code),16 MARPOL17 and the 1978 International Convention on Standards of Training, Certif ication and Watchkeeping for Seafarers (STCW 1978), as amended.18 The SOLAS Convention focuses on the safety of merchant ships and is generally regarded as a very important

8 IMO, “Structure of IMO,” accessed August 9, 2021, www.imo.org/en/About/Pages/Structure.aspx. See also E. J. Molenaar, “Arctic Marine Shipping: Overview of the International Legal Framework Gaps and Options,” 18 JTLP 289 (2009): 301 and A. Chircop, “The International Maritime Organisation,” in Oxford Handbook on the Law of the Sea, eds. D. Rothwell et al. (London: Oxford University Press, 2015), 416–38 under section 2.2. 9 IMO, “NGOs That Have Been Granted Consultative Status with the IMO,” accessed August 9, 2021, www.imo.org/en/ About/Membership/Pages/NGOsInConsultativeStatus.aspx. Examples of such NGOs are: FOEI (Friends of the Earth International), WWF (World Wide Fund for Nature), Pacif ic Environment, CSC (Clean Shipping Coalition), ITOPF, P&I (Protection and Indemnity) Clubs. 10 Chircop, “The International Maritime Organisation,” 8. 11 United Nations Convention on the Law of the Sea (UNCLOS) (adopted on December 10, 1982, entered into force November 16, 1994) 1833 UNTS 397. 12 Ole Kristian Fauchald, “Regulatory Frameworks for Maritime Transport in the Arctic: Will a Polar Code Contribute to Resolve Conflicting Interests?” in Marine Transport in the High North, eds. John Grue and Roy H. Gabrielsen (Norway: The Norwegian Academy of Science and Letters, 2011), 74–75. 13 Ole Kristian Fauchald, ibid., 75. 14 See, for example, UNCLOS supra note 11 articles 41(4)(5), 53 and George K. Walker, “Def ining Terms in the 1982 Law of the Sea Convention IV: The Last Round of Def initions Proposed by the International Law Association (American Branch) Law of the Sea Committee,” California Western International Law Journal 36, no. 133 (2005): 158–68. See also -Chircop, “IMO’s Work on Environmental Protection and Global Ocean Governance,” 7 at 173s for the relation between the UNCLOS and the IMO (conventions) as well as G. Librando, “The International Maritime Organization and the Law of the Sea,” in The IMLI Manual on International Maritime Law, eds. D. J. Attard et al., vol. I (London: Oxford University Press, 2014), 577–605. 15 The IMO is concentrating on SOLAS 1974 – International Convention for the Safety of Life at Sea, 1974, as amended, SOLAS AGR 1996 – Agreement concerning specif ic stability requirements for ro-ro passenger ships, SOLAS PROT 1978 – Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 1974, SOLAS PROT 1988 – Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974. 16 IMO, “The IMO Instruments Governing Safe Ship Designs,” 2008, www.imo.org/en/OurWork/Safety/Pages/Ship DesignAndStability-default.aspx#IS2008. 17 The International Convention for the Prevention of Pollution from Ships, November 2, 1973, 2 I.L.M. 1319 (1973). Entered into force October 2, 1983. 18 International Convention on Standards of Training, Certif ication and Watchkeeping for Seafarers, adopted July 7, 1978 (in force April 28, 1984) 1361 UNTS 2 (STCW Convention).

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international maritime convention.19 As we are going to see later, MARPOL contains detailed rules regarding the restriction or prohibition of vessel-source marine pollution,20 while the STCW 1978 establishes international standards of training, certif ication and watchkeeping for seafarers,21 including in the polar regions.22 The recent IMO International Code for Ships Operating in Polar Waters (Polar Code or Code)23 constitutes the most ambitious IMO polar regulatory initiative.24 The PC, which entered into force on January 1, 2017, applies specif ically to Arctic and Antarctic waters25 despite the fact that the type and volume of shipping differs in the two polar regions. In effect, in Antarctica, shipping is largely composed of passenger ships, f ishing boats and government research vessels.26 In the Arctic, there are also cargo vessels servicing coastal communities and increasingly transiting the Northern Sea Route and Northwest Passage as summer sea ice recedes.27 From 1990 onwards, the presence of commercial cargo ships (for example, bulk carriers, container ships), f ishing vessels, cruise ships and adventure crafts has increased in the Arctic.28 The same trend is observed in the Antarctic where the presence of commercial tourism vessels, f ishing vessels and research vessels has increased through the years.29 The object of the present study will be to examine the IMO’s efforts to regulate some outstanding issues (issues not addressed by the PC) and issues touched by the PC on which further regulation is deemed necessary after its entry into force (issues in furtherance of the PC). Many – albeit not all – issues that fall under these categories will be herein examined. In this way and following a brief description of the PC, we will concentrate on some maritime safety (crew training, habitable environment in life rafts, application of the PC to non-SOLAS vessels) and environmental (heavy fuel oil, black carbon, underwater noise, biofouling) outstanding issues or issues in furtherance of the PC. In doing so, the study will highlight the law-making function of the IMO regarding polar issues including the collaborative efforts of the IMO committees or sub-committees, IMO member States and international organisations in promoting issues not provided for by the PC or in furtherance of

19 IMO, “SOLAS,” accessed August  9, 2021, www.imo.org/en/About/Conventions/Pages/International-Conventionfor-the-Safety-of-Life-at-Sea-(SOLAS),-1974.aspx. 20 Infra section III. 21 IMO, “STCW,” accessed August 9, 2021, www.imo.org/en/About/Conventions/Pages/International-Convention-onStandards-of-Training,-Certif ication-and-Watchkeeping-for-Seafarers-(STCW).aspx. 22 Infra Section II. 23 IMO, “Shipping in Polar Waters–Adoption of an International Code for Safety for Ships Operating in Polar Waters (Polar Code),” accessed August 9, 2021, www.imo.org/en/MediaCentre/HotTopics/Pages/Polar-default.aspx. For the text of the code: IMO, “Polar Code,” accessed August  9, 2021, https://wwwcdn.imo.org/localresources/en/Media Centre/HotTopics/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf. 24 Aldo Chircop, A. William Moreira, Hugh M. Kindred and Edgar Gold, Canadian Maritime Law, 2nd ed. (Toronto: Irwin Law Inc., 2016), 993, 994. As the authors note (p. 992), the development of rules and standards specif ically for international shipping in the polar regions is a recent phenomenon. Canada played a leading role in the elaboration of the PC. 25 The Code covers, in the South, all waters south of 60°S. In the Arctic, the southern limit of the Polar Code also follows, in principle, 60°N, with some exceptions. Stefan Kirchner, “Beyond the Polar Code: Enhancing Seafarer Safety along the Northern Sea Route,” Journal of the Siberian Federal University 3, no. 11 365 (2018): 367. 26 WWF Arctic Program, “Arctic Shipping: Uncertain Waters” (March 2016), https://arcticwwf.org/site/assets/f iles/1610/ thecircle0316_web.pdf page 8. 27 Ibid. 28 Brandon M. Boylan and Dustin T. Elsberry, “Increased Maritime Traff ic in the Arctic: Implications for International Cooperation and Security,” page 5–7, accessed December 9, 2019, www.uaf.edu/caps/our-work/arctic-ocean-transitproject-f iles/increased-maritime-traff ic-in-the-arctic-paper-f inal-9Dec2019.pdf. 29 Arlie H. McCarthy, Lloyd S. Peck, Kevin A. Hughes, and David C. Aldridge, “Antarctica: The Final Frontier for Marine Biological Invasions,” accessed April 23, 2019, www.ncbi.nlm.nih.gov/pmc/articles/PMC6849521/.

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the PC. Although both polar regions are covered by the present study what may, at times, appear to insist more on the Arctic region than the Antarctic may be explained by the fact that the volume of traff ic is and is expected in the future to be greater in the Arctic than in the Antarctic.30 The following three sections will support the present analysis:   I. The Polar Code: A Brief Description  II. The IMO and Outstanding Maritime Safety Issues or Maritime Safety Issues in Furtherance of the Polar Code III. The IMO and Outstanding Environmental Issues or Environmental Issues in Furtherance of the Polar Code

The Polar Code: A Brief Description The development of the PC extends back to the end of the Soviet Union.31 Driven by varied national standards applicable to the design and operation of ships in polar waters, as well as incidents like the Exxon Valdez, the proposal was made to the IMO MSC Committee to develop rules for ships navigating polar waters, which should have suitable ice strengthening for polar conditions.32 An IMO Outside Working Group (OWG) was established in 1993, and this expert group, led by Canada, drafted the framework for an initial Polar Code during a f ive-year period.33 During this period, differences between the State delegations did not lack. For example, the Canadian and Russian delegations’ views were initially different regarding the presence of harmonisation versus equivalency standards for ships navigating in polar waters while the United States did oppose, early in the negotiations, the mandatory nature of a code and its application to the Arctic and the Antarctic.34 As a result, the IMO initially developed voluntary guidelines for ships operating in Arctic ice-covered waters.35 In 2002, these guidelines were approved by the IMO’s MSC and the MEPC committees.36

30 Submission of CSC, FOEI, WWF and Pacif ic Environment, “Development of a mandatory Code for Ships Operating in Polar Waters” (2013) DE 57/11/20 para 14 on the projected volume of traff ic in the two polar regions. Janis Searles Jones, Andrew Hartsig, and Becca Robbins Gisclair, “Advancing a Network of Safety Measures in the Bering Strait Region: Now is the Time,” OCCOLJ 25, no. 64 (2020): 66, on the projected volume of traff ic in the Arctic. 31 Lawson W. Brigham, “The Developing International Maritime Organization Polar Code,” accessed 2014, https://arctic yearbook.com/arctic-yearbook/2014/2014-commentaries/108-the-developing-international-maritime-organizationpolar-code. 32 Peter Kikkert, “Promoting National Interests and Fostering Cooperation: Canada and the Development of a Polar Code,” Journal of Maritime Law and Commerce 43, no. 3, 319 (2012): 321. On March 24, 1989, shortly after midnight, the oil tanker Exxon Valdez struck Bligh Reef in Prince William Sound, Alaska, spilling more than 11 million gallons of crude oil. The spill was the largest in US history and tested the abilities of local, national and industrial organisations to prepare for, and respond to, a disaster of such magnitude. EPA, “Exxon Valdez Spill Prof ile,” accessed 2017, www.epa. gov/emergency-response/exxon-valdez-spill-prof ile. 33 Brigham, “The Developing International Maritime Organization Polar Code.” 34 Peter Kikkert, “Promoting National Interests and Fostering Cooperation,” 324–25, 327. 35 Brigham, “The Developing International Maritime Organization Polar Code.” 36 Øystein Jensen, “The International Code for Ships Operating in Polar Waters: Finalization, Adoption and Law of the Sea Implications,” Arctic Review of Law and Politics 7, no. 1 (2016): 60–62.   Due to this complexity, the PC was negotiated in multiple committees of the IMO. The Maritime Safety Committee (MSC) was responsible for the safety part of the Code, while the Marine Environment Protection Committee (MEPC) was in charge of the negotiation of the environmental part. The f inal text of the PC had to be approved by both committees. Dorottya Bognar-Lahr, “In the Same Boat? A Comparative Analysis of the Approaches of Russia and Canada in the Negotiation of the IMO’s Mandatory Polar Code,” Ocean Development & International Law 51, no. 2 (2020): III, 143.

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Two years later, the Arctic Shipping Guidelines re-emerged on the IMO agenda.37 In view of the increase in shipping activities in Antarctic waters, the Antarctic Treaty consultative meeting (ATCM) requested that the IMO should amend the guidelines to make them applicable to ships operating in ice-covered waters in the Antarctic.38 The capsize and sinking of MV Explorer while operating in Antarctic waters in 2007 gave further momentum to the initiative.39 The US now supported revisions that would broaden application of the guidelines to ships operating in Antarctic waters.40 In January 2009, the US also submitted proposals to the MSC that would recast the guidelines as mandatory requirements.41 In the same year, the IMO MSC and MEPC committees adopted the revised guidelines42 applying them to Arctic and Antarctic waters. Between 2009 and 2015, the IMO began a lengthy negotiation for a mandatory PC.43 The process really involved transforming the existing guidelines to binding legal obligations.44 The MSC and the MEPC opted to amend both SOLAS and MARPOL by adding a new chapter to SOLAS that mandated the parts of the PC relating to ship safety and by amending one or more annexes of MARPOL that addressed the environmental protection aspects of the PC.45 Thus, the PC is not a standalone instrument; it is implemented through amendments to three main conventions – the SOLAS, the MARPOL and the STCW46 – and builds on the existing framework of other international conventions such as the LOSC.47 IMO member States (including countries in both polar regions) and NGOs have been actively engaged in its development.48 The PC is the f irst global mandatory framework applicable to Arctic and Antarctic waters.49 It covers design, construction, equipment, operational, training, search and rescue and environmental protection matters relevant to ships operating in polar waters.50 It is intended to be holistic, goaloriented and risk-based.51 The latter signif ies that compliance with a specif ic regulation should be

37 As reported by Øystein Jensen, “The International Code for Ships Operating in Polar Waters.” On the evolution and content of the PC, see also Lawson W. Brigham, “The Changing Maritime Arctic and New Marine Operations,” in Governance in Arctic Shipping, ed. Robert C. Beckman (The Netherlands: Brill and Nijhoff, 2017), 19–21. 38 Øystein Jensen, “The International Code for Ships Operating in Polar Waters.” The ATCM unites annually the original 12 parties to the Antarctic Treaty, as well as non-consultative and consultative and parties, observers and invited experts. 39 Øystein Jensen, “The International Code for Ships Operating in Polar Waters.” The MV Explorer was a Canadian cruise ship that struck submerged ice off Antarctica and began sinking, but all 154 passengers and crew took to lifeboats and were plucked to safety by a passing cruise ship. NBC news, “Cruiseship Goes Down off Antarctica,” accessed November 23, 2007, www.nbcnews.com/id/wbna21935099. 40 Øystein Jensen, “The International Code for Ships Operating in Polar Waters.” 41 Ibid. 42 Ibid., 63. 43 Ibid. 44 Ibid., 61. 45 MEPC 63/23, paras. 11.15, MSC 91/22, section 8. 46 IMO, “Shipping in Polar Waters.” For these conventions see supra notes 15–18 and accompanying text. 47 Taylor Simpson-Wood, “Changes  in  Latitudes Call  for  Changes  in  Attitudes:  Towards Recognition  of a  Global Imperative for Stewardship, Not Exploitation, in the Arctic,” SEAULR 37, no. 1239 (2014): 177. 48 Arctic Council, “Environmental Provisions of Polar Code Adopted” (July  17, 2015), https://arctic-council.org/en/ news/environmental-provisions-of-polar-code-adopted/. For NGOs, see Dorottya Bognar, “Russia and the Polar Marine Environment: The Negotiation of the Environmental Protection Measures of the Mandatory Polar Code,” RECIEL 27 (2018): 35–44. 49 Laurent Fedi, “Arctic Shipping Law: From Atomised Legislations to Integrated Regulatory Framework,” in Arctic Shipping: Climate Change, Commercial Traff ic and Port Development, eds. Frédéric Lasserre and Olivier Faury (New York: Routledge, 2020), 122. 50 IMO, “Shipping in Polar Waters.” 51 Aldo Chircop et al., Canadian Maritime Law, 994.

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with reference to the particular risks posed by polar navigation, which are signif icantly higher than those present in most other trading regions.52 The goal of the PC for the polar regions is the same: “to provide for safe ship operation and the protection of the polar environment by addressing risks present in polar waters and not adequately mitigated by other instruments of the Organization” (Regulation 1: Goal).53 The Code contains two parts, one on maritime-safety-related regulations (Part I-A Part I-B) and one on environment related regulations (Part II-A Part II-B) outlining mandatory rules (Part I-A addressing SOLAS and STCW concerns and Part II-A addressing MARPOL concerns) and recommendations (Part I-B, Part II-B).54 Maritime-safety-related provisions of the PC regulate matters such as the need for equipment (for example, equipment to melt ice on the vessel that can affect its stability and be the source of injuries of persons onboard, clothing for the crew and passengers, requirements for lifeboats and f ire-extinguishing equipment when operating in low temperatures) ship design and construction (outlining requirements for the design and construction of vessels in order to ensure their stability and capability to navigate in polar waters), operations, manning and training (requirements for crew training on navigation in ice waters, the presence of a Polar Ship Certif icate and a Polar Water Operational Manual).55 The requirement for a valid Polar Ship Certif icate (paragraph 1.3 of the Polar Code under Part I-A) to navigate in polar waters ensures maritime safety since, upon assessment and after taking into account the anticipated range of operating conditions and hazards the ship may encounter in polar waters, the ship intending to operate in such waters needs to classify as Category A ship – ships designed for operation in Polar waters at least in medium f irst-year ice, which may include old ice inclusions; Category B ship – a ship not included in Category A, designed for operation in polar waters in at least thin f irst-year ice, which may include old ice inclusions; or Category C ship – a ship designed to operate in open water or in ice conditions less severe than those included in Categories A and B.56 Regarding maritime safety, the PC also requires a shipspecif ic document designed to support decision-making through the identif ication of procedures for operations under routine and emergency conditions: the Polar Water Operational Manual (PWOM).57 Vessels must develop and carry a PWOM onboard and require that a variety of riskbased procedures are to be taken into consideration.58 The PWOM must contain references to methodologies used to determine capabilities and limitations of a vessel in ice.59 It is intended to provide the owner, operator, master and crew with suff icient information regarding the ship’s operational capabilities and limitations as well as with procedures to be followed in the event of incidents in polar waters.60

52 Ibid. 53 IMO, “Polar Code,” introduction, paragraph 1. 54 IMO, “Polar Code,”. 55 Polar Code, Part IA (mandatory provisions). 56 Polar Code, Introduction paragraph 2.1, 2.2, 2.3 and Part I-A paragraph 1.3. IMO, “Shipping in Polar Waters”; J. Ashley Roach, “The Polar Code and Its Adequacy,” in Governance in Arctic Shipping, ed. Robert C. Beckman (The Netherlands: Brill and Nijhoff, 2017), 151–54. 57 Polar Code, Part I-A Chapter  2, Protection of the Arctic Marine Environment (PAME), “Polar Water Operational Manual,” accessed 2020, www.pame.is/chapter-2 and IMO, ibid. 58 Polar Code, Part I-A, Chapter 2, PAME, ibid., IMO, ibid. 59 Polar Code, ibid. paragraph 2.3.2, PAME, ibid. 60 Polar Code, ibid. paragraph 2.2.3–2.2.6.

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Provisions addressing environmental concerns (Part II-A) include a prohibition of discharge of oil or oily mixtures in polar waters, a prohibition of carriage for use and use of heavy fuel oil in the Antarctic (until recently only “encouraged” in the Arctic – regulation 1.1 Part II-B), a prohibition of any discharge into the sea of noxious liquid substances (NLS) or mixtures containing such substances, a prohibition of discharges of sewage except when performed in accordance with MARPOL Annex IV, and a prohibition of discharge of garbage unless certain conditions apply.61 Enforcement of the polar provisions falls under the responsibility of the IMO member States as the PC contains no specif ic enforcement mechanism.62 The PC is a major step towards navigational safety and protection of the polar regions. So far, compliance with its safety and environmental provisions has been observed by Arctic countries, with some of them adopting scaled-up standards from the general global norm.63 For example, Canada has extended aspects of the PC safety rules, such as the requirement of an onboard ice navigator, to f ishing vessels, pleasure crafts and vessels without a mechanical means of propulsion, while Denmark has enlarged the application of the PC to more ships.64 Antarctic Treaty System countries are implementing the PC through domestic legislation. For example, New Zealand has adhered to the PC through amendments made to its domestic legislation.65 Similarly, Australia has adopted amendments to domestic acts to comply with the PC.66 The PC does not (fully) address all maritime safety and environmental protection issues regarding polar shipping.67 For example, since the PC takes effect via the SOLAS convention it does not apply to small vessels, including f ishing vessels, creating a loophole for these vessels navigating the polar regions.68 Also, the criteria for providing a habitable environment in life rafts and lifeboats in polar conditions are not developed by the PC.69 Further, during negotiations of the PC, environmental organisations wanted a comprehensive environmental chapter in Part II-A of the Code addressing environmental and climate impact including air pollution, black carbon, hull fouling, underwater

61 Part II-A, Part II-B of the Polar Code and PAME, “Polar Code Chapters: Explanations and Submissions,” accessed August  9, 2021, www.pame.is/part-iia-pollution-prevention-measures-chapter-5#polar-code-part-iia-pollution-pre vention-measures. See also IMO, “How the Polar Code Protects the Environment?” accessed August 9, 2021, https:// wwwcdn.imo.org/localresources/en/OurWork/Safety/Documents/How%20the%20Polar%20Code%20protects%20 the%20environment%20(English%20infographic).pdf. 62 Hannah Polakowski, “Freezing the Issues: Why Arctic Coastal States Need to Implement Marine Protected Areas in the Arctic Seas,” TLNELJ 30 (2017): 347–56. 63 Aldo Chircop and Miriam Czarski, “Polar Code Implementation in the Arctic Five: Has Harmonisation of National Legislation Recommended by AMSA Been Achieved?” The Polar Journal 10, no. 2 (2020): 303–21 on the Arctic Five – Canada, Denmark (Greenland), Norway, the Russian Federation (RF) and the United States (US). For the USA see also Luke A. Sanders, “A Path Towards Arctic Presence: Stricter Regulation as the First Step in Free Navigation,” Hastings Law Journal 71, no. 229 (2019): 242–45. 64 As reported by Chircop and Czarski, “Polar Code Implementation in the Arctic Five,” 319. As the authors note (p. 320) although there is no full harmonisation of the Arctic f ive legislation with the PC and amending conventions, there appears to be substantially more convergence than divergence, suggesting that there is today a signif icant degree of uniformity of polar standards applicable to domestic and international shipping. 65 Maritime New Zealand, “Polar Ship Certif icate Guidance,” accessed November  2018, www.maritimenz.govt.nz/ commercial/documents/Polar-Ship-Certif icate-Guidance.pdf at 3. It should also be noted that almost all Arctic countries have interests in Antarctica. 66 Australian Government, “Chapter 3: Amendments to SOLAS and MARPOL,” accessed August 9, 2021, www.aph. gov.au. 67 Sanders, “A Path Towards Arctic Presence,” 242–47. 68 Ibid., 243, and infra section II. 69 Chircop et al., Canadian Maritime Law, 449.

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noise and grey water discharges, issues that were either left outside the scope of the code or insuff iciently regulated by it.70 In this category, the use and carriage for use of heavy fuel oil (HFO) – for which, until recently, there was no ban in Arctic waters unlike Antarctic waters – was discussed during PC deliberations amidst insuff icient information and consequent support.71 In the following sections we will examine some of these issues and the IMO regulation after the adoption of the PC.

The IMO and Outstanding Maritime Safety Issues or Maritime Safety Issues in Furtherance of the Polar Code A distinction can be made between outstanding maritime safety issues which are not addressed by the PC and which may be addressed or may be in need of being addressed by the IMO after the adoption of the PC (non-SOLAS vessels) and maritime safety issues addressed, in part, by the PC on which further action is required at the IMO level (issues in furtherance of the PC).

Outstanding Maritime Safety Issue: PC and Non-SOLAS Vessels An important maritime safety concern not addressed by the PC relates to polar standards imposed on non-SOLAS vessels, such as f ishing vessels and the growing number of recreational vessels in polar waters. In effect, although the PC is mandatory under SOLAS, until recently, it did not apply to some vessels such as f ishing vessels, pleasure yachts and smaller cargo ships under 500 gross tons (sometimes termed as “non-SOLAS ships”).72 However, these ships do operate in polar waters and should abide by the PC. On this basis, the IMO Assembly adopted, in 2019, a resolution urging member States to implement, on a voluntary basis, PC safety measures on ships not certif ied under the SOLAS Convention.73 In February 2020, the IMO Sub-committee on Navigation, Communications, Search and Rescue (NCSR) established a correspondence group on safety measures for non-SOLAS ships to undertake a detailed technical analysis of the feasibility and consequences of applying PC chapters 9 (safety of navigation) and 11 (voyage planning) to non-SOLAS ships, taking into account, among other things, the differences present between types of non-SOLAS ships and between the Arctic and the Antarctic waters and considering whether the relevant chapters should be applied to non-SOLAS ships entirely or modif ied.74 The correspondence group had to also consider possible mechanisms for implementing provisions in the PC applicable to non-SOLAS vessels, including possible amendments to the SOLAS Convention and/or the PC.75 Early in 2021, the report of the correspondence group advanced its conclusions on the application of the PC to non-SOLAS vessels and noted the need to extend

70 Luke A. Sanders, “A Path Towards Arctic Presence”; Aldo Chircop, “The Polar Code and the Arctic Marine Environment: Assessing the Regulation of the Environmental Risks of Shipping,” IJMCL 35, no. 533 (2020): 535, 548 for some of these. Vessel grey water is generally considered accommodation (e.g. shower, bath), laundry, dishwasher and galley wastewater and is distinct from drainage from toilets, urinals, hospitals and cargo spaces. MEPC 73/INF.28 (August 17, 2018) para 2. 71 Chircop et al., Canadian Maritime Law, 449. 72 IMO, “Shipping in Polar Waters.” 73 Ibid. (IMO). IMO Assembly, A 31/Res. 1137 (January 16, 2020) para 1. 74 NCSR, “Report to the MSC” (February 17, 2020) NCSR 7/23 section 10. 75 Ibid.

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the output of its work beyond 2021.76 In April 2021, the NCSR’s eighth session77 concluded, in principle, that the safety of navigation related provisions of the PC be extended to include specif ic sizes of f ishing vessels, pleasure yachts and smaller cargo ships.78 In its 103rd session held remotely in May 2021, the IMO MSC approved guidelines for safety measures for f ishing vessels of 24 m in length and over operating in polar waters.79 It also approved guidelines for pleasure yachts of 300 gross tonnage and above not engaged in trade operating in polar waters.80 To reach these conclusions, several countries (for example, Norway, Canada, Chile, France, Marshall Islands, New Zealand) and international organisations (such as FOEI, WWF and Pacif ic Environment) have made submissions regarding considerations to be taken into account for specif ic types of non-SOLAS vessels (for example, f ishing vessels and yachts) to be subject to the PC, as well as regarding the feasibility and consequences of applying the PC to such vessels.81

Maritime Safety Issue in Furtherance of the PC: Habitable Environment in Life Rafts and Lifeboats A maritime safety issue not fully addressed by the PC (chapter 8) – and, therefore, in furtherance of the PC – is outlining criteria for providing a habitable environment in life rafts and lifeboats in polar conditions.82 In effect, in the polar regions, the interior environment of a lifeboat may degrade to the point where it could impact occupant survival and comfort.83 Lifeboat performance is crucial in order to avoid high concentrations of carbon dioxide and unstable interior air temperatures.84 A related issue is that rescue in the remote polar regions could take several days, making it necessary to ensure survivability for at least this period.85 In this regard, in 2019 and early 2020, several countries including China, the United States and Canada have made submissions to the IMO’s Sub-committee on Ship Systems and Equipment (SSE) on ventilation requirements, as well as the presence of heaters, carbon dioxide sensors and other provisions or equipment that should be present in survival crafts in polar waters.86 In May 2020, the SSE instructed the Life Saving Appliances Correspondence Group to f inalise amendments to existing requirements and provide further guidance to the sub-committee on the required criteria that should be present in life rafts and lifeboats in polar regions.87 According to the sub-committee, more research is needed before agreeing on a methodology to estimate energy demands,

76 IMO, “Safety Measures for Non-SOLAS vessels operating in Polar Waters” (January 15, 2021) NCSR 8/5 para 30. 77 Secretariat, “Adoption of the Agenda” (December 2, 2020) NCSR 8/1/1. 78 IMO, “Sub-Committee on Navigation, Communications and Search and Rescue (NCSR), 8th session, 19–April 23, 2021,” accessed August 9, 2021, www.imo.org/en/MediaCentre/MeetingSummaries/Pages/NCSR-8th-session.aspx. 79 IMO, “MSC 103rd Session (MSC 103),” accessed August  9, 2021, www.imo.org/en/MediaCentre/Meeting Summaries/Pages/MSC-103rd-session.aspx. 80 Ibid. 81 Submission by FOEI, WWF and Pacif ic Environment, NCSR 7/10/1 (November 26, 2019). Submission by Canada, Chile, France, Marshall Islands, New Zealand and Norway, NCSR 7/10 (October 14, 2019). 82 Chircop et al., Canadian Maritime Law, 449. 83 See, for example, the submission of Canada to the SSE, SSE 7/INF.9 (January 7, 2020). For other submissions made see the submission of the United States (Report of the Life Appliances Correspondence Group consisting of more than 15 countries) SSE 7/3 (November 19, 2019) and the Submission of China SSE 7/3/1 (January 8, 2020). 84 Ibid. (submission of Canada). 85 Ibid. 86 Supra note 83. 87 SSE 7/21, “Report to the Maritime Safety Committee” (May 22, 2020) section 3 (particularly para 3.26) and section 4.

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hydration requirements and nutritional needs in survival crafts, while some issues (for example, determining maximum expected time to rescue) need further consideration.88 In the meantime, the Interim Guidelines on Life-Saving Appliances and Arrangements for Ships Operating in Polar Waters were approved by the MSC in 2019.89 The guidelines outline possible means of mitigating hazards in order to comply with the PC and assist in its uniform implementation (regulation 1.1.). Due to their recent adoption, the SSE has noted that experience gained in the application of the guidelines will also provide direction regarding the criteria for providing a habitable environment in survival crafts.90

Maritime Safety Issue in Furtherance of the PC – Seafarer’s Training Seafarer’s training in polar waters is another area where the IMO has intervened in furtherance of the provisions of the PC. The PC provides for the application of specialised rules for crew training in polar waters. Chapter 12 of the PC on manning and training specif ically states that companies must ensure that masters, chief mates and off icers in charge of a navigational watch onboard ships operating in polar waters have completed appropriate training, taking into account the provisions of the International Convention on Standards of Training, Certif ication and Watchkeeping for Seafarers (STCW)91 and its related STCW Code.92 In 2016, and in anticipation of the entry into force of the Polar Code, the IMO’s Maritime Safety Committee adopted minimum requirements for the training and qualif ications of masters and deck off icers on ships operating in polar waters.93 These became mandatory under the STCW Convention and the STCW Code on July 1, 2018.94 Requirements for certif ication include basic and advanced training of the crew for ships operating in polar waters and at least two months of approved seagoing service in the deck department, at management level or while performing watch-keeping duties at the operational level, within polar waters or other equivalent approved seagoing service.95 The maritime safety issues not fully outlined or not addressed by the PC on which the IMO is currently working on or has been working on at the time or after the adoption of the PC constitute proof of the importance of the role of the IMO in the polar regions. The post-PC era needs to be marked by initiatives that complement its content since the PC has not (fully) addressed all the issues touching maritime safety in the polar regions. The IMO is the appropriate forum to address such issues. The objective of the IMO work on this front responds to the need to safeguard maritime safety in polar waters.

88 Ibid., 4.4, 4.8, 4.9. 89 MSC.1/Circ.1614 (June 26, 2019). 90 SSE 7/21, supra note 87 para 4 and particularly para 4.4. 91 Chapter 12 of the Polar Code (articles 12.2., 12.3), supra note 23. For the STCW see supra note 18. 92 Ibid. The 1995 STCW Conference adopted the Seafarers’ Training, Certif ication and Watchkeeping (STCW) Code (amendment to the STCW). 93 MSC.416(97), MSC.417(97) (2016), www.imo.org/en/KnowledgeCentre/Indexof  iMOResolutions/Pages/MSC2016-17.aspx. See also IMO, “Shipping in Polar Waters” – supra note 23. For more details, see J Ashley Roach, “The Polar Code and Its Adequacy,” in Governance in Arctic Shipping, ed. Robert C. Beckman (The Netherlands: Brill and Nijhoff, 2017), 147–49. 94 Ibid. (IMO). 95 Supra note 93 (MSC).

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The IMO and Outstanding Environmental Issues or Environmental Issues in Furtherance of the Polar Code Regarding environmental concerns, a distinction can be made between outstanding environmental issues which are not addressed by the PC and which may be addressed or may be in need of being addressed by the IMO after the adoption of the PC and environmental issues which are addressed, in part, by the PC on which further action is required and may currently be taken at the IMO level.

Outstanding Environmental Issue: Use and Carriage for Use of HFO and the PC An environmental issue which is not addressed by the PC and which has been addressed by the IMO after the adoption of the PC is the prohibition of carriage for use and use of HFO in the Arctic.96 Indeed, under a MARPOL amendment adopted at the IMO level97 and unlike Arctic waters, since 2011, there has been a ban on HFO use and carriage as fuel in Antarctic waters. This comprehensive ban is meant to protect the Antarctic from spills.98 An additional benef it is that using other fuels, like distillates, emits fewer climate-warming and ice-melting black carbon particles than HFO.99 It is said that the absence of an equivalent ban in the Arctic poses a substantial threat to its environment because HFO is extremely diff icult to recover once it is spilled.100 In effect, unpredictable weather, remote locations and a lack of response resources in the Arctic make spills diff icult to contain and clean up.101 The use and carriage for use of HFO in the Arctic was discussed during PC deliberations amidst insuff icient information and consequent support.102 After the adoption of the PC, the issue was under consideration at the IMO level.103 In 2020, the IMO Sub-Committee on Pollution Prevention and Response (PPR) agreed on draft amendments to MARPOL Annex I (addition of a new article 43A) to introduce a prohibition on the use and carriage for use of HFO by ships in Arctic waters on and after July 1, 2024.104 Many submissions from countries (for example, Denmark, Finland, France, Germany, Iceland, the Netherlands, New Zealand, Norway, Spain, Sweden and the United States) and international organisations (for example, FOEI, WWF, Pacif ic Environment, CSC, P&I clubs and ITOPF) contributed to the proposed ban.105 Initially, Canada had appeared as stalling the initiative, but in reality, the regulatory impact of such a ban in Canadian

 96 Supra notes 70–71 and accompanying text. See also Flora da Silva Côrtes Stevenson, “The Duty to Consult the Inuit in Canada’s Black Carbon Policy Inaction,” 30 Journal Environmental Law and Practice 139 (2017): 175.  97 IMO, “Resolution of the Marine Environment Protection Committee (MEPC) 189(60)” (2010), https://wwwcdn. imo.org/localresources/en/KnowledgeCentre/Indexof iMOResolutions/MEPCDocuments/MEPC.189(60).pdf on MARPOL article 43.  98 Bryan Comer, Ph.D., “IMO’s Draft HFO ‘Ban’ Is Nothing of the Sort,” The International Council on Clean Transportation, accessed February 27, 2020, https://theicct.org/blog/staff/imo-draft-hfo-ban-2020#:~:text=Ships%20aren’t%20 allowed%20to,protect%20the%20Antarctic%20from%20spills.  99 Ibid. 100   Climate Works Foundation, The International Council on Clean Transportation (ICCT), “Prevalence of Heavy Fuel Oil and Black Carbon in Arctic Shipping, 2015 to 2025,” accessed 2017, www.ccacoalition.org/en/resources/ prevalence-heavy-fuel-oil-and-black-carbon-arctic-shipping-2015-2025. 101 WWF-Canada, “Remote Arctic Communities Defenseless against Oil Spills, Reports Conclude,” accessed May 24, 2018, https://wwf.ca/stories/remote-arctic-communities-defenseless-oil-spills-reports-conclude/. 102 Chircop et al., Canadian Maritime Law; and accompanying text. 103 Ibid. for more details. 104 PPR 7/22 (April 24, 2020) under 14. See also Bryan Comer, Ph.D., supra note 98. 105 Submission by FOEI, WWF, Pacif ic Environment and CSC, PPR 7/14/6, (December 27, 2019) para 4, 6. See also the submission of ICS, P & I Clubs and ITOPF, PPR 7/14/5 (December 16, 2019).

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waters was not fully understood.106 Transport Canada’s recent announcement to support an HFO ban in the Arctic was supported by Arctic Indigenous organisations (Canadian chapter of the Inuit Circumpolar Council [ICC] and Nunavut Tunngavik Incorporated [NTI]).107 In June 2021, the MEPC amended MARPOL Annex I by adding a new regulation 43A to its provisions which introduced a prohibition on the use and carriage for use as fuel of heavy fuel oil (HFO) by ships in Arctic waters on and after July 1, 2024.108 However, the delayed date of implementation (2024) and the exemptions provided by the ban – MARPOL parties with a coastline bordering Arctic waters may waive the newly adopted prohibition up to July 1, 2029, for ships flying their flag while operating in Arctic waters – have created reactions.109 On the other hand, the regulatory gap that formerly existed between the Arctic and the Antarctic regulations in this area is less obvious following this new IMO measure.

Outstanding Environmental Issue: The PC and Black Carbon The combustion of HFO emits BC, a potent air pollutant that accelerates climate change.110 When deposited on snow and ice, BC absorbs radiation substantially contributing to the melting of the Arctic ice sheet.111 The PC does not cover airborne pollutants. However, BC emissions are expected

106 Chircop et  al., Canadian Maritime Law, 449. See also Eilis Quinn, “Inuit Orgs Welcome Canada’s Support of Heavy Fuel Oil Ban in Arctic Waters,” accessed February 19, 2020, www.rcinet.ca/eye-on-the-arctic/2020/02/19/ inuit-orgs-welcome-canadas-support-of-heavy-fuel-oil-ban-in-arctic-waters/. 107 Eilis Quinn, ibid. See also IMO, “Canada’s considerations and position on the ban on the use and carriage of heavy fuel oil by ships operating in the Arctic” PPR 7PPR 7/J/6 (February 17–20, 2020). Greenland also supported the ban. HFO Free-Arctic, “Greenland Government Agrees to Back Arctic HFO Ban: Clean Arctic Alliance Response,” accessed September 18, 2018, www.hfofreearctic.org/en/2018/09/18/greenland-government-agrees-to-back-arctichfo-ban-clean-arctic-alliance-response/. Although the ban may result in a higher cost of goods for Indigenous People, it is unlikely that they will oppose the ban merely due to higher costs. Maritime Executive, “Ban on Heavy Fuel Oil in Arctic Shipping Moves Ahead,” accessed February  23, 2020, www.maritime-executive.com/editorials/ ban-on-heavy-fuel-oil-in-arctic-shipping-moves-ahead. 108  On the MEPC 2021 meeting, see IMO, “MEPC 76th session June 10–17, 2021,” accessed August 9, 2021, www.imo. org/en/MediaCentre/MeetingSummaries/Pages/MEPC76meetingsummary.aspx. As therein noted, the prohibition will cover the use and carriage for use as fuel of oils having a density at 15°C higher than 900 kg/m3 or a kinematic viscosity at 50°C higher than 180 mm2/s. Ships engaged in securing the safety of ships or in search and rescue operations and ships dedicated to oil spill preparedness and response would be exempted. Ships which meet certain construction standards with regard to oil fuel tank protection would need to comply on and after July 1, 2029.   See also Zhen Sun, “Closing Gaps of Fuel Use Regulation of Arctic Shipping,” IJMCL 35, no. 570 (2020): 582–83. This article also comments on the legal principles for developing environmental regulation of international shipping (p. 587). 109 On the exemptions see IMO, MEPC 76th session, supra note 108. On the reactions, see Eilís Quinn, “Int’l Inuit Org Disappointed Over ‘Weak’ Heavy Fuel Oil Ban Approved by IMO,” accessed November 24, 2020, www.rcinet.ca/ eye-on-the-arctic/2020/11/24/intl-inuit-org-disappointed-over-weak-heavy-fuel-oil-ban-approved-by-imo/. 110 Climate Works Foundation, The International Council on Clean Transportation (ICCT), “Prevalence of Heavy Fuel Oil and Black Carbon in Arctic Shipping, 2015 to 2025,” accessed 2017, www.ccacoalition.org/en/resources/ prevalence-heavy-fuel-oil-and-black-carbon-arctic-shipping-2015-2025. 111 Hendrik Schopmans, “Where Do We Stand?” accessed June  11, 2019, www.thearcticinstitute.org/revisiting-polarcode/. As the author notes, studies have shown that the climate-warming effect is much more pronounced when BC is emitted at higher latitudes.   In the Antarctic, recent measurements of BC noted very low concentrations in snow, lower than in other data from the continent. Chinese Academy of Sciences, “Tracking Southern Hemisphere Black Carbon to Antarctic Snow” (April 20, 2020), https://phys.org/news/2020-04-tracking-southern-hemisphere-black-carbon.html.

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to rise in the Arctic intensifying arctic warming.112 Indeed, potentially large increases in BC emissions (an estimated increase of 46% from 2015 to 2025) may occur if ships are diverted from the Panama and the Suez Canals through the Arctic seeking shorter routes to and from Asia, Europe and North America.113 Considering the impact of BC emissions from international shipping on the Arctic, the IMO MEPC has invited concrete proposals from member States and international organisations on how to control BC emissions from international shipping and how to develop a standardised sampling, conditioning and measurement protocol for such emissions.114 Regarding the measurement of BC emissions, a reporting protocol for voluntary measurement studies to collect BC data and BC measurement methods for data collection has already been agreed upon at the IMO level.115 The Sub-Committee on Pollution Prevention and Response (PPR) has established a correspondence group to advance the development of a standardised sampling, conditioning and measurement protocol regarding BC emissions from international shipping and investigate the linkages between the measurement systems and policy options.116 It has also been suggested that a phased approach consisting of the development of guidelines on recommendatory goal-based control measures to reduce the impact on the Arctic of black carbon emissions from international shipping in the short term with the potential for mandatory measures being introduced in the longer term if necessary and, as experience is gained, may provide a more def ined way forward.117 Taking into account these considerations, in 2022 the PPR instructed further action to be taken in order to control and reduce black carbon emissions from international shipping in the arctic.118 Towards this end, several countries (for example, Canada, Finland, Netherlands and Republic of Korea) and organisations (for example, the International Standardization Organization [ISO],119 WWF, FOEI, Pacif ic Environment, CSC) have provided submissions (2021, 2020, 2019) on measures to be adopted to reduce BC emissions in the Arctic.120 For example, the latter organisations have proposed to amend MARPOL Annex VI in order to prohibit the use of low sulphur heavy fuel oil blends that increase BC emissions, also calling on all shipowners, charterers, member States and fuel providers

112 Climate Works Foundation, ICCT, supra note 110. For the Antarctic it is noted that an intensif ication of the natural and anthropogenic emissions of atmospheric BC could increase the future climate trends in West Antarctica. Ernesto Pino-Cortés, Luis A. Díaz-Robles, Francisco Cubillos, Francisco Cereceda-Balic, Roberto Santander, Joshua S. Fu, Samuel Carrasco and Jonathan Acosta, “The Black Carbon Dispersion in the Southern Hemisphere and Its Transport and Fate to Antarctica, an Anthropocene Evidence for Climate Change Policies,” Science of the Total Environment 778, no. 146242 (2021): conclusion. 113 Ibid. (ICCT). 114 MEPC ‘Report” MEPC 74/18, (June 9, 2019) paragraph 5.67. 115 PPR 7/22 (April 24, 2020) para 8.3.(2). In this regard, it is worth noting that the Arctic Council has adopted the Framework for Action on Enhanced Black Carbon and Methane Emissions – Arctic Council, Enhanced Black Carbon and Methane Emissions Reductions: An Arctic Council Framework for Action, Annex 4 to the SAO Report to the Ministers, Iqaluit Ministerial Meeting, April 24, 2015 – which is a non-binding agreement that establishes a common vision and collective action for Arctic States to reduce BC emissions. Daria Shapovalova, “The Effectiveness of the Regulatory Regime for Black Carbon Mitigation in the Arctic,” Arctic Review on Law and Politics 7, no. 2 (2016): 136, 141–44. 116 PPR 7/22 (April 24, 2020) para 8.12. 117 Chair Submission, “Draft Revised Terms of Reference for Further Work on the Reduction of the Impact on the Arctic of Black Carbon Emissions from International Shipping” (2021) PPR 8/J/6. 118 IMO, “PPR-9, April 4–8, 2022,” accessed March 9, 2023, https://www.imo.org/en/MediaCentre/MeetingSummaries/ Pages/PPR-9th-session.aspx. 119 ISO is an international organisation developing and publishing international standards. ISO, “Management System Standards,” accessed August 9, 2021, www.iso.org/home.html. 120 Submission by Canada, Finland, Netherlands and Republic of Korea, PPR 7/INF.15 (December 13, 2019), submission by FOEI, WWF, Pacif ic Environment and CSC MEPC 75/5/5 (January 24, 2020).

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to observe a voluntary prohibition on the use of any marine fuel whose aromatic content is likely to lead to BC emissions greater than those commonly associated with distillate fuels.121 Curving BC emissions in the Arctic is, therefore, seriously considered at the IMO level.

Outstanding Environmental Issue: The PC and Underwater Noise Underwater noise from commercial shipping is another environmental concern not addressed by the PC.122 Noise produced by propeller movement and onboard machinery can interfere with sounds vital for communication, reproduction and orientation of marine mammals, especially in the fragile and “quiet” Arctic waters.123 In effect, exposure to anthropogenic sounds can lead to different behavioural reactions of marine mammals, increase stress hormones, decrease reproduction, cause temporary and permanent hearing loss adversely affecting them.124 The polar regions are homes to a number of marine species for which the making, hearing and processing of sounds serve such critical biological functions.125 In 2014, the IMO Marine Environment Protection Committee (MEPC) approved Guidelines for the reduction of underwater noise from commercial shipping to address adverse impacts on marine life (nonmandatory rules).126 Given the complexities associated with ship design and construction, the guidelines focus on primary sources of underwater noise – namely, on propellers, hull form, onboard machinery and various operational and maintenance recommendations, such as hull cleaning.127 More specif ically, they call for, among other things, a ship’s design intended to reduce underwater noise, onboard machinery with appropriate vibration control features and operational and maintenance measures to be present in order to reduce noise for both new and existing ships.128 However, recent submissions made by Australia, Canada and the United States, as well as international organisations, call for review of these guidelines.129 Indeed, the lack of action to address underwater noise from commercial shipping since the adoption of the 2014 Guidelines coupled with the projected increase in global shipping suggest that timely action – probably in the form of mandatory targets

121 MEPC ibid. para 13 and PPR 8/5/4 (January 29, 2021) para 9s. See also submission of Finland and Germany, PPR 8/5/1 (November 18, 2020) para 31–37. For general information in this area, see IMO, “Sub-Committee on Pollution Prevention and Response (PPR 7),” accessed February 21, 2020, www.imo.org/en/MediaCentre/MeetingSummaries/ Pages/PPR-7th-Session.aspx. 122 Schopmans, “Where Do We Stand?” On the incomplete international rules in this area see K. N. Scott, “International Regulation of Undersea Noise,” International and Comparative Law Quarterly 53 (2004): 287, 293. 123 Schopmans, “Where Do We Stand?” in general. For the Antarctic see also Cormac Booth, “Marine Mammals and Underwater Noise in Antarctica,” SMRU Consulting, accessed November  29, 2019, www.smruconsulting.com/ marine-mammals-and-underwater-noise-in-antarctica/. 124 WWF, “Under Water Noise From Arctic Shipping,” accessed 2017, http://awsassets.wwf.ca/downloads/170412___ underwaternoiseduetoshipping.pdf?_ga=1.31906808.735604524.1468957492. 125 Submission by FOEI, WWF, IFAW, Pacif ic Environment and CSC, MEPC 75/14/1 (February 7, 2020) para 4s, which states that underwater noise from shipping has been recorded in the most remote ocean basins of the world, including the Arctic and Southern Oceans. 126 MEPC.1/Circ.833 (April 7, 2014) also containing the “Guidelines for the reduction of underwater noise from commercial shipping to address adverse impacts on marine life.” See also Chircop, “The Polar Code and the Arctic Marine Environment,” 553. 127 Ibid. (MEPC) para 3.2. 128 Ibid., para 7, 8, 10. 129 Submission by FOEI, WWF, IFAW, CSC, Pacif ic Environment MEPC 75/14/1 (February 7, 2020) para 10, 14. Submission by Australia, Canada, United States, MEPC 75/14 (December 27, 2019) para 38s.

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and/or design standards – will be required with respect to the guidelines proposed review.130 It has also been suggested that the identif ication and treatment of the group of noisiest ships will yield the highest benef it for the ecosystem.131 The submissions further stress the importance of collaboration of the international community in this area.132 On the basis of such submissions, in June 2021, the MEPC agreed to examine the review of the said 2014 Guidelines.133 The Sub-Committee on Ship Design and Construction (SDC) will be responsible to coordinate the work to be done in this area and is expected to complete its task in 2023.134

Environmental Issues in Furtherance of the Polar Code – Biofouling Finally, an environmental issue addressed, in part, by the PC on which further action is required constitutes the introduction of invasive species into the water through biofouling. Although ballast water is viewed as the main carrier of invasive species – the IMO has adopted in this area the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (Ballast Convention)135 – biofouling is also considered one of the main vectors for bio invasions and is described as the undesirable accumulation of microorganisms, plants, algae and animals on submerged structures (especially ships’ hulls).136 The organisms latch onto submerged surface areas, creating small, living communities that travel with the ship and are introduced as invasive species in the different parts of the world where the ship travels.137 The signif icant ecological and environmental changes in the Arctic and the Antarctic (increasing water temperature, decreasing ice cover and increasing ship activity) may facilitate invasive species establishing in the polar regions.138 Although the number of quantitative studies on introduced fouling populations remains small, the magnitude of their impacts (as predators, competitors, parasites/pathogens, habitat alteration, etc.) on natural communities is increasingly evident.139

130 MEPC 75/14/1 ibid., para 10–14. 131 Submission of Germany and WWF, “Comment on document MEPC 75/14” MEPC 76/12/2 (April 21, 2021) para 10 specif ically focusing on the Arctic. 132 Submission by Australia, Canada and United States, MEPC 75/14 (December 27, 2019) para 39. The latter submission (para 35) specif ically recommends that the Secretariat engages in discussions with potential donors, such as the Global Environment Facility (GEF), regarding the potential funding of a global underwater noise project while stimulating the industry to start adopting best practices to minimise the impact and create new design solutions. At the IMO level, member States are encouraged to share their experiences in dealing with the reduction of underwater noise from shipping. IMO, “Ship Noise,” accessed August 9, 2021, www.imo.org/en/MediaCentre/HotTopics/Pages/Noise.aspx. 133 IMO, “MEPC 76, June 10–17, 2021,” accessed August 9, 2021, www.imo.org/en/MediaCentre/MeetingSummaries/ Pages/MEPC76meetingsummary.aspx. 134 Ibid. 135 February 13, 2004, 30 I.L.M. 1455 (1991), entry into force: September 8, 2017. 136 IMO, “Biofouling,” accessed August 9, 2021, www.imo.org/en/OurWork/Environment/Pages/Biofouling.aspx.   During the deliberations of the PC, there was no agreement to formulate dedicated rules on ballast water management and antifouling systems, mainly because they were respectively addressed by the Ballast Convention and the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001, which we will examine later (infra note 142). Chircop, “The Polar Code and the Arctic Marine Environment,” 548. 137 Transport Canada, “Hull Fouling/Anti-Fouling Paint,” accessed August 9, 2021, https://tc.canada.ca/en/marinetransportation/arctic-shipping/hull-fouling-anti-fouling-paint. 138 Antarctic: Arlie Mccartny et al., supra note 29. For the Antarctic and the Arctic see the submission of ICES, PPR 7/ INF.2 (October 29, 2019). 139 PPR 7/INF.2 ibid.

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Anti-fouling paints are used to coat the bottoms of ships to prevent sea life from attaching themselves to the hull.140 However, compounds in the paint killing marine life attached to hulls are also found to persist in the water, killing sea life and harming the environment, and are likely to enter the food chain.141 At the international level, the IMO International Convention on the Control of Harmful Anti-fouling Systems on Ships142 prohibits the use of harmful organisation compounds in anti-fouling paints and provides for a mechanism to prevent the potential future use of other harmful substances in anti-fouling systems.143 The convention is of general application applying, therefore, to Arctic shipping.144 The focus of the convention is on the prevention of adverse impacts from the use of anti-fouling systems and the biocides they may contain and not on the prevention of the transfer of invasive species through hull fouling.145 The PC provides recommendations (non-mandatory provisions) in order to minimise the risk of invasive aquatic species transfers via biofouling (Part II-B article 4.3).146 Reference is therein made (article 4.3) to the 2011 Guidelines for the control and management of ships’ biofouling to minimize the transfer of invasive aquatic species (resolution MEPC.207(62))147 which, contrary to the mentioned convention that focuses on the prevention of adverse impacts from the use of anti-fouling systems and the biocides they may contain, concentrate on the prevention of the transfer of invasive aquatic species through hull fouling.148 The successful application of the Guidelines remains, however, unknown.149 Early work suggests that the use and awareness of the Guidelines could be improved.150 In 2018, the MEPC approved, in furtherance of the PC provisions, the review of the guidelines.151 The IMO Subcommittee on Pollution Prevention and Response (PPR) recently began the review of the IMO biofouling guidelines.152 The sub-committee identif ied key elements that need to be discussed further, considered areas for potential revision of the Guidelines, and established a correspondence group responsible for coordinating the review of the Biofouling Guidelines.153 The PPR met in

140 IMO, “International Convention on the Control of Harmful Anti-fouling Systems on Ships,” accessed August 9, 2021, www.imo.org/en/About/Conventions/Pages/International-Convention-on-the-Control-of-Harmful-Anti-foulingSystems-on-Ships-(AFS).aspx. 141 Ibid. 142 October 5, 2001 (IMO, London, UK), entered into force in 2008. IMO, ibid. Contracting States to the Convention represent approximately 96.09% of the gross tonnage of the world’s merchant shipping. AFS.1/Circ. 80 (July 30, 2019). 143 IMO, ibid. 144 Nengye Liu, “Can the Polar Code Save the Arctic?” accessed 2016, www.asil.org/insights/volume/20/issue/7/ can-polar-code-save-arctic. 145 IMO, “Biofouling,” accessed August 9, 2021, www.imo.org/en/OurWork/Environment/Pages/Biofouling.aspx. 146 Part II-B article 4.3. The provision states, “In order to minimize the risk of invasive aquatic species transfers via biofouling, measures should be considered to minimize the risk of more rapid degradation of anti-fouling coatings associated with Polar ice operations. Reference is made in particular to the 2011 Guidelines for the control and management of ships’ biofouling to minimize the transfer of invasive aquatic species (resolution MEPC.207(62)).” See also PAME, “Part IIB,” accessed August 9, 2021, www.pame.is/part-iib#part-iib-full-polar-code-text. 147 Polar Code Part II-B article 4.3. 148 IMO, “Biofouling.” 149 MEPC 72/15/1 (January 5, 2018) para 4, 9. 150 Ibid. (para 9). 151 IMO, “Marine Environment Protection Committee (MEPC), 72nd session, April 9–13, 2018,” accessed August 9, 2021, www.imo.org/en/MediaCentre/MeetingSummaries/Pages/MEPC-72nd-session.aspx. A review of the Guidelines provides the MEPC with an opportunity to consider whether the Guidelines are effective and whether their update is required. MEPC 72/15/1 supra note 149 para 15. 152 IMO, “Sub-Committee on Pollution Prevention and Response (PPR 7), 17–21 February 2020,” accessed August 9, 2021, www.imo.org/en/MediaCentre/MeetingSummaries/Pages/PPR-7th-Session.aspx. 153 Ibid.

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March 2021 and requested to extend the target completion year of the review of the Biofouling Guidelines to 2023.154 To date many countries (for example, Australia, Finland, Japan, Netherlands, New Zealand and Norway) and organisations have made submissions to this end.155 Like for the maritime safety, environmental issues not provided for or not fully addressed by the PC and herein examined have been addressed by the IMO. This constitutes proof of the important role of the IMO in advancing the environmental protection of the polar regions. Although suggested provisions/additions to the PC have met at times harsh reactions (regarding delays in the adoption of the measures suggested or the adoption of provisions that are not adequately protective), these should not undermine the IMO’s important role in the post-PC era in enriching and complementing the content of the PC. The criticism should, however, be taken into account in improving the content and procedures of the measures taken at the IMO level.

Conclusion Although the PC has positively advanced maritime safety and environmental protection issues in both polar regions, a number of matters discussed before its adoption were not part of its provisions (for example, underwater noise and BC and their application to non-SOLAS vessels) or needed to be reviewed further following its entry into force (biofouling, crew polar training). As it is obvious from the previous discussion, the IMO, in collaboration with the member States and international organisations, advances work in the examined areas shaping the regulatory framework and protecting maritime safety and the environment in polar waters. The progress made in these areas is signif icant, steadily evolving while complementing the content of the PC. The criticism of some of the IMO initiatives after the adoption of the PC has not lacked. This is the case, for example, of the prohibition of carriage for use and use of the HFO in the Arctic and advancing underwater noise measures, which, according to some, constitute measures that delay to be put into effect and/or contain insuff icient protection of the polar regions. This criticism should be used constructively by the IMO to further advance its work in the polar regions in striving to adopt effective measures in a timely manner. Despite the criticism, the multifaceted effort undertaken by the IMO in promoting maritime safety and environmental protection of the polar regions is commendable and constitutes the way forward.

154 IMO, “Sub-Committee on Pollution Prevention and Response (PPR 8), 22–26 March 2021,” accessed August 9, 2021, www.imo.org/en/MediaCentre/MeetingSummaries/Pages/PPR-8.aspx. 155 For example, see the submission of Finland, Germany and Poland, “Comments on the report of the Correspondence Group on Review of the Biofouling Guidelines (PPR 8/4)” PPR 8/4/1 (January 28, 2021). Submission by BIMCO PPR 7/7/1 (November 5, 2019), Submission by Australia, Finland, Japan, Netherlands, New Zealand, Norway and IMarEST, PPR 7/7/4 (December 13, 2019).

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20 THE INTERNATIONAL SEABED AUTHORITY AND THE POLAR REGIONS Edwin Egede*

Introduction The 1967 inspiring speech of Arvid Pardo, the Maltese ambassador to the United Nations (UN), called on the General Assembly to declare the seabed, ocean floor and subsoil beyond national jurisdiction and the resources therein, as the common heritage of mankind (CHM), to be used for peaceful purposes only.1 This led to the convening of Third United Nations Conference on the Law of the Sea (UNCLOS III), which eventually culminated in the 1982 United Nations Convention on the Law of the Sea (LOSC).2 The Convention covering key aspects of the law of the sea, sometimes called a “Constitution for the Oceans,”3 established an intricate regime governing the Area,4 and declared the Area and its mineral resources therein as CHM.5 Besides, it established the International Seabed Authority (ISA), an international organisation, to act as some sort of trustee or agent of mankind regarding the Area and the mineral resources therein.6 Thereafter, due to concerns by certain developed States about Part XI provisions the UN Secretary-General embarked on informal consultations that eventually led to the 1994 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of December 10, 1982 (1994

* Professor of International Law & International Relations, Cardiff School of Law & Politics, Cardiff University, Wales, UK and Adjunct Professor, Department of Public Law, Nelson Mandela University, Port Elizabeth, South Africa. He dedicates this chapter to his very good friend, Prince Emmanuel, for the invaluable contribution to this manuscript. 1 See Maltese Note Verbale of August 17, 1967, to the UN Secretary-General, A/6695, August 18, 1967, Vol. II, Doc.12.1 and Pardo’s speech to the General Assembly’s First Committee on November 1, 1967, 1515th Meeting, A/C.1/PV.1515, November 1, 1967. 2 Text in: 1833 UNTS 3. This Convention was adopted on December 10, 1982, in Montego Bay, Jamaica and came into force on November 16, 1994, after the 60th ratif ication was deposited by Guyana in line with Article 308 of the LOSC. 3 See “Remarks by Tommy T.B. Koh of Singapore, President of the Third United Nations Conference on the Law of the Sea,” www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf. 4 Article 1(1) of LOSC states that the “Area” is “the sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.” 5 Article 136 of LOSC. Article 133 is clear that Part XI of LOSC applies to mineral resources by stating: “ ‘resources’ means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules,” and “resources, when recovered from the Area, are referred to as ‘minerals’.” 6 Articles 156 and 157 of LOSC. See Edwin Egede, Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of Mankind (Heidelberg: Springer, 2011), 16. DOI: 10.4324/9781003404828-26 342

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Agreement), which effectively modif ied certain Part XI provisions.7 This chapter seeks to explore the extent to which the ISA has a role under the LOSC, as modif ied by the 1994 Agreement, in the polar regions. It begins by exploring the role of the ISA under Part XI, as modif ied by the 1994 Agreement. Subsequently, it examines what role the ISA may play in the polar regions and ends with some concluding remarks.

The ISA The ISA is regulated by Part XI and Annex III of LOSC, as modif ied by the 1994 Agreement. It adopted a mining code consisting of a comprehensive set of rules, regulations and procedures issued by it to regulate prospecting and exploration of marine minerals in the Area. So far, the ISA has issued the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (adopted on July 13, 2000), later updated and adopted on July 25, 2013; the Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (adopted on May 7, 2010) and the Regulations on Prospecting and Exploration for Cobalt-Rich Crusts (adopted on July 27, 2012).8 The ISA also has issued various recommendations for the guidance of contractors, including those on the assessment of the environmental impacts of exploration for polymetallic nodules. Currently, it is developing draft regulations for exploitation of mineral resources in the Area, as well as draft standards and guidelines to support the implementation of the Draft Regulations for Exploitation of mineral resources in the Area.9 As an organisation with international legal personality, the ISA is empowered to organise and control activities in the Area, especially with a view to administering the mineral resources therein.10 States and private companies, as well as the Enterprise, the operational organ of the ISA which is yet to be operationalised,11 would have to enter into contracts with the ISA to carry out mining activities in the Area.12 Besides, the ISA has the important responsibility of taking measures to ensure the effective protection of the marine environment from harmful effects, which may arise from activities in the Area, such as pollution and damage to flora and fauna.13 In essence, the ISA has an obligation to ensure that activities in the Area are carried out

7 Text in: 1836 UNTS 42. The 1994 Agreement came into force on July 28, 1996. See, generally, Edward Duncan Brown, “The 1994 Agreement on the Implementation of Part XI of the UN Convention on the Law of the Sea: Breakthrough to Universality,” Marine Policy 19, no. 1 (1995): 5–20. 8 For Mining Code and draft exploitation regulations, see ISA website, https://isa.org.jm/mining-code. The current draft regulations for exploitation of mineral resources in the Area is ISBA/25/C/WP.1 of March 22, 2019. 9 ISA website, ibid. 10 Articles 157 and 176 of LOSC and Section 1, para. 1 of the Annex to the 1994 Agreement. 11 On the Enterprise and steps towards its operationalisation, see Edwin Egede, Mati Pal, Eden Charles, A Study Related to Issues on the Operationalization of the Enterprise – Legal, Technical and Financial Implications for the International Seabed Authority and for States Parties to the United Nations Convention on the Law of the Sea (Jamaica: ISA, 2019), https://isa.org. jm/f iles/f iles/documents/enterprise_study.pdf. 12 Article 153(2) and Article 3 of Annex III of LOSC and Section 1, para. 6 and Section 2 para. 4 of the Annex to the 1994 Agreement. Currently, the ISA has entered into 31 contracts with various States and entities, the latest contractor being the Blue Minerals Jamaica Limited, sponsored by Jamaica. See ISA website, https://isa.org.jm/exploration-contracts. 13 Article 145 of LOSC. Activities in the Area that may cause such harmful effects to the environment include drilling, dredging, coring and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents; and construction and operation or maintenance of installations, pipelines and other devices related to such activities. See also Annex III, Article 17(2)(f) of LOSC. Additionally, strategic direction 3 of Decision of the Assembly of the ISA relating to its strategic plan for the period 2019−23, ISBA/24/A/10 of July 27, 2018. In the latter decision, the ISA points that “[t]he challenge for the Authority is to adopt a policy and regulatory framework for environmental management that achieves the effective protection of the marine environment, under circumstances of considerable scientif ic, technical and commercial uncertainty” (para. 14 of the annex).

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in an environmentally sustainable manner. The ITLOS Seabed Disputes Chamber, in its Advisory Opinion,14 pointed out that the inclusion of the precautionary approach in the Mining Code compels all actors (the ISA, sponsoring States and contractors) to apply the approach to the activities in the Area.15 States Parties to the LOSC that have sponsored entities to carry out activities in the Area are required to assist the ISA to carry out its obligation to protect the marine environment.16 The Seabed Disputes Chamber stated, Contractors and sponsoring States must cooperate with the Authority in the establishment of monitoring programmes to evaluate the impact of deep seabed mining on the marine environment, particularly through the creation of “impact reference zones” and “preservation reference zones.”17 The Chamber also emphasised “the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area.”18 In addition, the ISA must take the appropriate steps to guarantee that human life is effectively protected.19 The ISA’s precise obligation under this rarely discussed provision of Part XI is unclear. The LOSC merely states that to protect human life the ISA “shall adopt appropriate rules, regulations and procedures to supplement existing international law as embodied in relevant treaties.”20 Evidently, relevant international law on maritime safety, maritime security and even human rights would be applicable,21 and thus the ISA, would have to ensure that any such rules, regulations and procedures it adopts to protect human life are in line with existing international law. This obligation

14 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), ITLOS Case No. 17, ITLOS Reports 2011, 10. For the formal request for the advisory opinion of the ITLOS Seabed Disputes Chamber from the Council of the ISA see www. itlos.org/f ileadmin/itlos/documents/cases/case_no_17/C17_Request.pdf. For analysis of the Advisory Opinion of the Seabed Disputes Chamber, see David Freestone, “International Tribunal for the Law of the Sea-Seabed Disputes Chamber-Advisory Jurisdiction-Seabed Mining-Responsibilities of Sponsoring States-Environmental Law,” American Journal of International Law 105, no. 4 (2011): 755–60; Duncan French, “From the Depths: Rich Pickings of Principles of Sustainable Development and General International Law on the Ocean Floor – the Seabed Disputes Chamber’s 2011 Advisory Opinion,” International Journal of Marine and Coastal Law 26 (2011): 525–68; Yoshifumi Tanaka, “Obligations and Liability of Sponsoring States Concerning Activities in the Area: Reflections on the ITLOS Advisory Opinion of February 1, 2011,” Netherlands International Law Review 60, no. 2 (2013): 205–30. 15 See responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), Advisory Opinion No. 17 of 2011, paras. 122, 125– 35, 161 and 236, www.itlos.org/en/main/cases/list-of-cases/case-no-17/. The Mining Code includes the precautionary approach in the following provisions: Regulations 2(2), 5(1), 31(2) and (5) and section 5.1 of Annex IV of ISBA/19/C/17; Regulations 2(2), 5(1), 33(2) and (5) and section 5.1 of Annex 4 of ISBA/16/A/12/Rev. 1; and Regulations 2(2), 5(1), 33(2) and (5) and section 5.1 of Annex IV of ISBA/18/A/11. The precautionary approach is also included in the draft regulations for the exploitation of the Area in Regulation 2(e)(ii) (as one of the fundamental policies and principles) and Regulation 44(a) (as one of the general obligations relating to the protection and preservation of the marine environment), ISBA/25/C/WP.1 (note 8). Also see, generally, Aline Jaeckel, The International Seabed Authority and the Precautionary Principle: Balancing Deep Seabed Mineral Mining and Marine Environmental Protection (Leiden: Brill, 2017). 16 See Advisory Opinion No. 17 of 2011, ibid, at paras. 102 and 124–40. 17 Ibid., para. 143. 18 Ibid., para. 180. See also Chapter 11 of this volume. 19 Article 146 of LOSC. 20 Ibid. 21 On possible maritime security challenges that may arise in the Area, see Edwin Egede, “Maritime Security and Deep Seabed Beyond National Jurisdiction,” in The Law of the Seabed: Access, Uses, and Protection of Seabed Resources, eds. Catherine Banet (Leiden: Brill, 2020), 185–210.

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could also be coupled with the duty to protect the environment as there is a crucial link between human life and environmental protection.22 Moreover, the ISA has a role to promote and encourage marine scientif ic research (MSR) exclusively for peaceful purposes concerning the Area and its resources, which must be carried out for the benef it of mankind as a whole, and to coordinate and disseminate the results of such research.23 The MSR may be carried out either by the ISA or by competent international organisations (IOs) or States Parties or all of them working together.24 Article 143(3) of LOSC enumerates ways by which States Parties could fulf il their duty to promote international cooperation in MSR in the Area.25 Additionally, the ISA has a function regarding payments and contributions arising from the exploitation of the continental shelf beyond 200 nautical miles (M). Under Article 82, the ISA is to receive payments or contributions from States with continental shelf beyond 200 M. Upon receipt of such payments or contributions, it is required to distribute amongst the States Parties on the basis of an equitable sharing criteria taking account of the interests of developing States, particularly the least developed and landlocked States.26 However, the ISA is yet to develop rules or regulations to operationalise this role.27 Moreover, States Parties to the LOSC are required to deposit with the secretary-general of the ISA charts or list of geographical coordinates showing the outer limits lines of their continental shelf, both those up to and beyond 200 M.28 The LOSC in Part XI goes on the emphasise that the delineation of outer limit of the continental shelf must be done in accordance with Part VI (provisions regarding the continental shelf).29 In essence, it would appear the ISA which is responsible for managing the Area is meant to receive passively such charts or lists with no

22 See Dinah Shelton, “Human Rights, Health and Environmental Protection: Linkages in Law and Practice,” A Background Paper for the World Health Organisation (WHO, undated), www.who.int/hhr/information/Human_Rights_ Health_and_Environmental_Protection.pdf. 23 Article 143 of LOSC. The promotion and encouragement of MSR is included in the ISA’s strategic plans. See strategic direction 4 of decision of the Assembly of the International Seabed Authority relating to the strategic plan of the Authority for the period 2019−23, ISBA/24/A/10 of July 27, 2018. See also action plan of the International Seabed Authority in support of the United Nations Decade of Ocean Science for Sustainable Development, ISBA/26/A/4 of May 26, 2020, which states that “[MSR] plays a critical role in the responsible management of the oceans and their resources. It is also vital to scientif ic advancement and to the environmentally sustainable and commercially viable conduct of activities in the Area” (para. 1). 24 See Article 143 and Part XIII, especially Art. 256 of LOSC. 25 See Michael Lodge, “Enclosure of the Oceans versus the Common Heritage of Mankind: The Inherent Tension between the Continental Shelf Beyond 200 Nautical Miles and the Area,” International Law Studies 97 (2021): 803, 825; Michael Lodge, “The International Seabed Authority and the Arctic,” in Arctic Science, International Law and Climate Change: Legal Aspects of Marine Science in the Arctic Ocean, eds. Susanne Wasum-Rainer, Ingo Winkelmann, and Katrin Tiroch (Heidelberg: Springer, 2012), 175, 184–86. 26 Article 82(4) of LOSC. See Egede, Africa and the Deep Seabed Regime, 44–45, 134 and 183–18; Aldo Chircop, “Implementation of Article 82 of the United Nations Convention on the Law of the Sea: The Challenge for Canada,” in The Law of the Seabed: Access, Uses, and Protection of Seabed Resources, eds. Catherine Banet (Leiden: Brill, 2020), 371–94; Helmut Tuerk, “Questions Relating to the Continental Shelf Beyond 200 Nautical Miles: Delimitation, Delineation, and Revenue Sharing,” International Law Studies 97 (2021): 232, 251–57 Also see ISA Technical Study 4: Issues associated with the Implementation of Article 82 of the United Nations Convention on the Law of the Sea; Technical Study No. 5, Non-Living Resources of the Continental Shelf Beyond 200 Nautical Miles: Speculations on the Implementation of Article 82 of the United Nations Convention on the Law of the Sea, and Technical Study No. 12, Implementation of Article 82 of the United Nations Convention on the Law of the Sea, https://isa.org.jm/publications. 27 See Lodge, “Enclosure of the Oceans,” 826–29; Tuerk, “Questions Relating to the Continental Shelf,” 251–57. 28 Article 84(2) of LOSC. See Lodge, “Enclosure of the Oceans,” 811. So far only a handful of States have made such deposits to the ISA. See ISA website, www.isa.org.jm/deposit-charts. 29 Article 134(4) of LOSC.

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say on how coastal States determine the outer limits of their continental shelf, even if these States creatively interpret the rules on baselines in ways that cause the outer limits of their continental shelf to encroach into the Area. It is argued that nothing stops the ISA from taking action before the SeaBed Disputes Chamber, which has exclusive jurisdiction over disputes between a State Party and the ISA, against a State illegally encroaching on the Area through its submission to the Commission on the Limits of the Continental Shelf (CLCS). Article 187 (b) (i) of the LOSC states that the Chamber would have jurisdiction in respect of “acts or omissions of the Authority or of a State Party alleged to be in violation of this Part [Part XI] or the Annexes relating thereto or of rules, regulations and procedures of the Authority adopted in accordance therewith.” It is contended that by virtue of the combined effect of Articles 1 (1), 134 (3) and 137 (1) of the LOSC, if a coastal State establishes the outer limit of its continental shelf in a way that encroaches on the Area, Part XI would be violated.30 Also, the ISA could seek an advisory opinion from the Chamber in respect of such encroachment.31 Besides, there is the issue of States Parties to LOSC tacitly assisting the ISA by challenging submissions to the CLCS that would amount to an encroachment on the Area.32 An example is the Chinese objection to the Japanese submission in relation to Oki-no-Torishima as a basepoint for claiming the Southern Kyushu-Palau Ridge Region (KPR). Here, China’s note verbale to the CLCS pointed out as follows: [t]he application of Article 121(3) of [UNCLOS 82] relates to the extent of the International Seabed Area as the common heritage of mankind, relates to the overall interests of the international community, and is an important legal issue of general nature. To claim continental shelf from the rock of Oki-no-Tori will seriously encroach upon the Area as the common heritage of mankind.33 Based on the Chinese objections, as well as that of some other States,34 the CLCS decided not to act on the KPR until this issue raised by the various notes verbales was resolved.35 Alternatively, nothing would prevent a third-party State from challenging, using the Part XV dispute settlement

30 See Edwin Egede, “Brazil and Article 76 of the LOSC 1982,” International Journal of Marine and Coastal Law 21 (2006): 36, 40. 31 Art. 190 of LOSC. See and John Noyes, “Judicial and Arbitral Proceedings and the Outer Limits of the Continental Shelf,” Vanderbilt Journal of Transnational Law 42 (2009): 1211, 1256–58. 32 This author had argued elsewhere that, in principle, there should be no reason that a State Party to LOSC cannot object to a submission before the CLCS on the ground that it encroaches on the Area. See Egede, “Brazil and Article 76 of the LOSC 1982,” 39–40. Also see Signe Veierud Busch, Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (Leiden: Brill, 2016), 93–130 and Noyes, “Judicial and Arbitral Proceedings,” 1237–62. 33 See China’s note verbale dated August  3, 2011, CLCS website www.un.org/depts/los/clcs_new/submissions_f iles/ jpn08/chn_3aug11_e.pdf. In an earlier note verbale, dated February 6, 2009, China had stated, “While exercising such right in establishing the outer limits of their continental shelf beyond 200 nautical miles, States Parties shall also have the obligation to ensure respect for the extent of the International Seabed Area . . . which is the common heritage of mankind, and not to affect the overall interests of the international community as a whole.” CLCS website www.un.org/ depts/los/clcs_new/submissions_f iles/jpn08/chn_6feb09_e.pdf. 34 Palau and Republic of Korea, CLCS website, www.un.org/depts/los/clcs_new/submissions_f iles/submission_jpn.htm. 35 See paras 15–30 of SUMMARY OF RECOMMENDATIONS OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF IN REGARD TO THE SUBMISSION MADE BY JAPAN ON 12 NOVEMBER  2008 of April  19, 2012, CLCS website, www.un.org/depts/los/clcs_new/submissions_f  iles/jpn08/com_sumrec_ jpn_f in.pdf.

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mechanism, any submission before the CLCS that is contrary to Article 76 and encroaches on the Area.36

Potential Roles of the ISA in Polar Regions Increasingly there has been interest in the polar regions because of climate change leading to rising temperatures, thinning glaciers, disturbed ecosystems and other disquieting occurrences,37 as well as the potential to exploit natural resources in these regions.38 Consequently, attention has been given to possible roles of the ISA in the polar regions. This section would unpack possible roles of the ISA in the Arctic and Antarctica under three sub-headings – namely, activities in the outer continental shelf beyond 200 M, in the Area and MSR.

The Role of the ISA in the Marine Arctic The marine Arctic, a region located around the North Pole mostly covered by the Arctic Ocean, does not have a generally accepted def inition.39 Neither does the Arctic Ocean have a universally acknowledged def inition.40 What is clear, however, is that the Arctic Ocean incorporates marine spaces within and beyond national jurisdiction, including the Area.41 The f ive littoral States around the Arctic Ocean, Canada, Denmark (vis-à-vis Greenland), Norway, Russia and the USA (the Arctic Five, or A5),42 in 2008 adopted the Ilulissat Declaration aff irming that the Arctic is governed by the LOSC, including “important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientif ic research, and other uses of the sea.”43 With regard to the

36 Noyes, “Judicial and Arbitral Proceedings,” 1237–62. 37 See Intergovernmental Panel on Climate Change (IPCC), Summary for Policymakers. In: IPCC Special Report on the Ocean and Cryosphere in a Changing Climate, eds. H.-O. Pörtner, D.C. Roberts, V. Masson-Delmotte, P. Zhai, M. Tignor, E. Poloczanska, K. Mintenbeck, M. Nicolai, A. Okem, J. Petzold, B. Rama, N. Weyer (Cambridge and New York: Cambridge University Press, 2019). This report was formally approved at the Second Joint Session of Working Groups I and II of the IPCC and accepted by the 51st Session of the IPCC, Principality of Monaco, September 24, 2019. Also see Yoshifumi Tanaka and Beatriz Martinez Romera, “Emerging Issues on Arctic Environmental and Climate Change Governance: Introduction,” International Journal of Marine and Coastal Law 35 (2020): 429–38. 38 Tanaka and Romera, ibid. at 432 and Davor Vidas, “Emerging Law of the Sea Issues in the Antarctic Maritime Area: A Heritage for the New Century?” Ocean Development and International Law 31, no. 1–2 (2000): 197, 210–16. 39 See Vladimir Golitsyn, “The Legal Regime of the Arctic,” in The IMLI Manual on International Maritime Law, Vol. 1. Law of the Sea, eds. Malgosia Fitzmaurice and Norman Martinez Gutterrez (Oxford: Oxford University Press, 2014), 462, 462–64; Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Brill, 2015), 7–8. 40 Golitsyn, ibid. at 462 and Johnstone, ibid. at p. 8. See also J. Ashley Roach, “Freedom of the Seas in the Arctic Region,” in The Arctic and World Order, eds. Kristina Spohr, Daniel Hamilton, and Jason Moyer (Washington, DC: John Hopkins University: Foreign Policy Institute and Henry A. Kissinger Center for Global Affairs Paul H. Nitze School of Advanced International Studies, 2020), 219, 219–20. 41 See Yoshifumi Tanaka, “Changing Paradigms in the Law of the Sea and the Marine Arctic,” International Journal of Marine and Coastal Law 35 (2020): 439, 439; Roach, “Freedom of the Seas in the Arctic Region,” 220–21. 42 There are also the Arctic Eight States (the A8) who are members of Arctic Council – i.e. the A5 + Finland, Iceland, and Sweden. The latter three States though they are not littoral States around the Arctic Ocean have territories within the Arctic. 43 See the Ilulissat Declaration, Arctic Ocean Conference Ilulissat, Greenland, May 27–29, 2008. It has been suggested that the Arctic Five States entered into the Declaration to clarify that there was no legal void in the Arctic that would necessitate the development of an Arctic Treaty patterned after the 1959 Antarctic Treaty. See Kaus Dodds, “The Ilulissat

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Area of the Arctic Ocean, in addition to Part XI of LOSC, the modif ications introduced by the 1994 Implementation Agreement, as well as the various Rules, Regulations and Recommendations of the ISA would be applicable.44 Currently, four of the A5 are parties to the LOSC, as well as the 1994 Agreement,45 and are also members of the ISA.46 The USA is the only A5 State that has not ratif ied either treaty, citing the Part XI provisions as the reason for its failure to do so.47 However, the USA is currently an observer State of the ISA.48

Outer Continental Shelf Beyond 200 M in the Arctic Ocean Although the Arctic Ocean is a small one, it is said to contain more than 25% of the earth’s entire continental shelf.49 The importance of the outer limits of the continental shelf of coastal States in determining the scope of the Area,50 makes it pertinent for the ISA to be interested in how the outer limits of the continental shelf of the A5 are determined in the Arctic Ocean. This is more so as regard the continental shelf beyond 200 M, which must be submitted to the CLCS. Under the Ilulissat Declaration, the A5 undertook to cooperate in the collection of scientif ic data with regard to the continental shelf.51 Byers identif ies this cooperative action with regard to the continental shelf beyond 200 M as one of the characteristics of “complex interdependence” of the A5 enabling them to share knowledge and data regarding the highly technical provisions of Article 76 of LOSC.52 So far, the four of the A5 that are parties to the LOSC have made their submissions to the CLCS.53 Russia was the f irst State to make submissions to the CLCS in 2001 and the Commission gave its decision in 2002 indicating that it needed additional data with regard to certain areas, including the Central Arctic Ocean, and recommended that the Russian Federation make a revised submission.54 In 2015 it submitted a partial revised submission with regard to the Arctic Ocean, which is being considered by the CLCS.55 Norway made a submission in 2006 in respect of areas, including the Western Nansen Basin in the Arctic Ocean, and in 2009 the CLCS adopted its recommendation.56

Declaration (2008): The Arctic States, ‘Law of the Sea,’ and Arctic Ocean,” SAIS Review of International Affairs 33, no. 2 (2013): 45, 49–50. 44 See Lodge, “The International Seabed Authority and the Arctic,” 175–76. 45 The following are the dates when these A5 States became Parties to LOSC and the 1994 Agreement: Canada (November 7, 2003); Denmark (November 16, 2004); Norway (June 24, 1996) and Russia (March 12, 1997). 46 Article 156(2) of the LOSC is clear that all States Parties to the Convention are by that very fact members of the ISA. 47 See Off ice of the Staff Judge Advocate, “U.S. Position on the U.N. Convention on the Law of the Sea,” International Legal Studies 97 (2021): 81–88. 48 There are 30 Observer States at the ISA who may participate in the deliberations of the ISA Assembly but are not entitled to participate in the taking of decisions. They may also participate, without the right to vote, in the deliberations of the Council of the ISA, upon its invitation, on questions affecting them. See ISA website https://isa.org.jm/observers. 49 See Betsy Baker, “Law, Science, and the Continental Shelf: The Russian Federation and the Promise of Arctic Cooperation,” American University International Law Review 25, no. 2 (2010): 251, 252. 50 Article 1(1) of LOSC. 51 See the Ilulissat Declaration, note 43. 52 Michael Byers, “Crises and International Cooperation: An Arctic Case Study,” International Relations 31, no. 4 (2017): 375, 380. 53 See also Chapter 5 of this volume. 54 See paras. 38–41, especially para. 41 of the Report of the Secretary-General to the 57th session of the General Assembly under the agenda item Oceans and the Law of the Sea, A/57/57/Add. 1 of October 8, 2002. 55 See paras. 62–68 of CLCS/93 of April 18, 2016, and paras. 12–16 of CLCS/52/2 of March 25, 2020. 56 See paras. 16–19 of CLCS/62 of April 20, 2009. For details on this see SUMMARY OF THE RECOMMENDATIONS OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF IN REGARD TO THE SUBMISSION MADE BY NORWAY IN RESPECT OF AREAS IN THE ARCTIC OCEAN, THE BARENTS

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It is important to note that Norway has so far not deposited its charts and lists of geographical coordinates of its continental shelf with the ISA, as required by Article 84 of LOSC. In 2012 and 2013, respectively, Denmark (vis-à-vis Greenland) made a partial submission in respect of the Southern and North-Eastern Continental Shelves of Greenland.57 While Canada made a partial submission to the CLCS regarding the Arctic Ocean in May 2019.58 These submissions by Russia, Denmark and Canada to the CLCS are at various stages of consideration and their potential CS beyond 200 M are likely to overlap. Even the United States, which is not a party to LOSC, currently has an extended continental shelf project that is working to coordinate the collection and analysis of relevant data, as well as preparing the necessary documentation, to establish its CS beyond 200 M, including in the Arctic Ocean north of Alaska, in accordance with international law.59 From all indications the United States acknowledges the provisions of Article 76 on the limits of the continental shelf, including that of the CS beyond 200 M, as consistent with customary international law. It is not clear if the United States intends to eventually make a submission to the CLCS.60 This raises the interesting issue of whether the United States, as a non-party to LOSC, may make submissions to the CLCS. A careful examination of Article 4 of Annex II, which provides a deadline of ten years from becoming a party to the Convention, would appear to suggest that only States Parties may make submissions to the CLCS.61 Besides, Article 82 of LOSC would eventually apply to any exploitation of non-living resources in the CS beyond 200 M of the A5 that are parties to the LOSC and so the ISA would have to work with these States to achieve this. This provision of payments or contributions from production in the outer CS was introduced into the LOSC to offer something in return for the concession to coastal States with broad CS to extend their CS beyond 200 M, a kind of quid pro quo.62 It is argued that the United States, despite being a non-party to the LOSC, would have to make payments or contributions to the ISA under Article 82 of the LOSC in exchange for benef iting from an outer CS beyond 200 M. However, this raises the intriguing question of whether the United States could be a benef iciary of payments or contributions distributed by the ISA under Article 82(4), which limits the ISA’s distribution obligation to States Parties to the LOSC and thus cannot technically distribute such payments or contributions to non-States Parties like the United States.

SEA AND THE NORWEGIAN SEA ON NOVEMBER 27, 2006, of March 27, 2009. CLCS website, www.un.org/ depts/los/clcs_new/submissions_f iles/nor06/nor_rec_summ.pdf. 57 Paras. 73–80 of CLCS/95 of September 21, 2016. 58 CLCS Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Partial Submission by Canada, CLCS website: www.un.org/depts/los/clcs_new/submissions_f iles/submission_ can1_84_2019.html. 59 The data in the Arctic Ocean was obtained in cooperation with Canada. For more on the US Extended Continental Shelf Project see the US Extended Continental Shelf Project website, www.state.gov/u-s-extended-continental-shelf-project/. 60 Roach, “Freedom of the Seas in the Arctic Region,” 239 states that “[t]he United States collected Arctic data for its submission between 2003 and 2012 and is preparing its submissions.” 61 Art. 4 of Annex II states, “Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientif ic and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientif ic and technical advice” (portions italicised for emphasis). 62 See Egede, Africa and the Deep Seabed Regime, 44–45; Michael Lodge, “The Deep Seabed,” in The Oxford Handbook of the Law of the Sea, eds. Donald Rothwell, Alex Oude Elferink, Karen Scott and Tim Stephens (Oxford: Oxford University Press, 2015), 226, 250–52.

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Activities in the Area The extent of the Area in the Arctic Ocean over which the ISA would have responsibility as the CHM would only be clear when the A5’s continental shelves beyond 200 M are delineated. However, it has been suggested that two small areas of the seabed in the Arctic Ocean, including a section incorporating a large part of the Gakkel Ridge and the surrounding deep ocean seabed, would be part of the Area.63 With the extensive oil and gas reserves in the continental shelves of the A5,64 it could be speculated that the resources available in the Area would include oil and gas reserves, as well as several hydrothermal deposits, including sulphides.65 Any entity that wishes to carry out mining activities in the Area of the Arctic Ocean would have to enter a contract with the ISA.66 It has been pointed out that [a]though exploration on the Gakkel Ridge would require the use of a powerful icebreaker, several of [the 13 Arctic Council Observer States who are States Parties to LOSC and have already sponsored entities to enter into exploration contracts with the ISA in other parts of the world oceans]67 currently possess such icebreakers, are in the process of acquiring them, or may be in a position to lease them.68 Thus, in principle, nothing stops them from applying to the ISA for an exploration contract for this part of the Area, though the feasibility of exploring the Area of the Arctic in the near future is doubtful.69 Kullerud and Young recently proposed an Agreement with regard to the Gakkel Ridge, similar to the 2018 Central Arctic Ocean Fisheries Agreement (CAOF Agreement) so that the A5 could maintain some kind of stewardship over this part of the Area.70 They argue that the “Gakkel Ridge Agreement could be crafted in such a way as to support the ISA in general terms, while making it clear that the consent of the coastal States[the A5] would be needed to proceed with exploration permits.”71 However, such agreement would be problematic. Whilst the CAOFA may be feasible because it operates in respect of the high seas where the freedom of the seas applies,72 a similar arrangement would not achievable in the Area because it would be incompatible with the CHM,

63 See Lars Kullerud and Oran Young, “Adding a Gakkel Ridge Regime to the Evolving Arctic Ocean Governance Complex,” Marine Policy 122 (2020): 1,3 (Article 104270); Lodge, “Enclosure of the Oceans,” 824 and Michael Byers, International Law and the Arctic (Cambridge: Cambridge University Press, 2013), 127. Also see Technical Study No. 5 of the ISA, Non-living Resources of the Continental Shelf Beyond 200 Nautical Miles: Speculations on the Implementation of Article 82 of the United Nations Convention on the Law of the Sea (Jamaica: ISA, 2010), 1, 18 and 20, https://isa.org.jm/publications. 64 Donald Rothwell, “The Arctic in International Affairs: Time for a New Regime?,” Brown Journal of World Affairs XV, no. I (2008): 241, 243–44. 65 Byers, International Law and the Arctic, 193–94. 66 See Article 157(1) and Article 3 of Annex III of the LOSC, as modif ied by the 1994 Agreement, and the various Regulations of the ISA. 67 China, France, Germany, India, Japan, Korea, Poland, Singapore and the UK have sponsored entities to enter exploration contracts with the ISA. Also, Russia, as one of the A5, has exploration contracts with the ISA. See ISA website, https:// isa.org.jm/index.php/exploration-contracts. 68 Kullerud and Young, “Adding a Gakkel Ridge Regime,” 3. 69 Ibid. 70 Ibid., 4–5. 71 Ibid., 4. 72 Article 87 of LOSC.

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which is a core principle of the regime of the Area.73 As the Area and its resources as CHM are vested in mankind as a whole, a group of States cannot legally enter into an agreement amongst themselves to create a special regime in respect of any part of the Area, which would privilege them above other States Parties to LOSC. The ISA would not have the competence to support any such alternative regime over Gakkel Ridge,74 as proposed by Kullerud and Young, as this would be inconsistent with the letter and intent of LOSC, which declares that “States Parties agree that there shall be no amendments to the basic principle relating to [the CHM] and they shall not be party to any agreement in derogation thereof.”75 The better approach is for the A5 States, at least the States Parties to LOSC, working with other members of the ISA, to make a case based on the ISA’s mandate of protecting the environment, that the Arctic Area should be designated as areas of particular environmental interest (APEIs) under a regional environmental management plan (REMP).76 Such APEIs are protected from future mining activities.77 Evidently, there is room for strong cooperative arrangements between the ISA and the A5 and the Arctic Council in respect of the protection of the Area as there is a robust environmental protection agenda of the A5 and Arctic Council in respect of the Arctic.78

Marine Scientif ic Research The 2008 Ilulissat Declaration, aside from conf irming that the A5 and other interested parties were already cooperating in areas such as data collection concerning the outer CS and other scientif ic collaboration, indicates that they were happy to cooperate with the Arctic Council and “other relevant fora” in various areas including scientif ic cooperation. Besides, the 2017 Agreement on Enhancing International Arctic Scientif ic Cooperation entered into by the eight Arctic States to enhance cooperation in scientif ic activities about the Arctic f its in nicely with the provisions of LOSC.79 It states that the States Parties shall facilitate the processing of applications to conduct MSR in a manner consistent with LOSC.80 It further aff irms that States Parties shall facilitate access to marine areas in the “identif ied geographic areas” in a manner consistent with international law.81 The identif ied geographic areas under the Agreement includes “areas beyond national jurisdiction

73 See Articles 136 and 137 of LOSC. The CHM provisions have NOT been modif ied by the 1994 Agreement. 74 Article 156(1) of LOSC. 75 Article 311(6) of LOSC. 76 See Article 145 of LOSC. Also see, generally, guidance to facilitate the development of regional environmental management plans (REMPs) (updated as of November  2019 International Seabed Authority Secretariat), www.isa.org. jm/f iles/f iles/documents/remp_guidance.pdf. 77 The APEIs was described by the Legal and Technical Commission (LTC) of the ISA as “Large areas with self-sustaining populations and a broad range of habitat variability. Those should not be affected directly by physical activity or indirectly by mining effects such as plumes, although the degree of impacts raised by potential deep-sea mining is still unknown.” Para. 25 ISBA/17/LTC/7 of July 13, 2011. Kullerud and Young, “Adding a Gakkel Ridge Regime,” 4, acknowledged that the concerns with the Gakkel Ridge could be addressed under the LOSC provisions giving the ISA the mandate to protect the environment. 78 See Timo Koivurova, “Environmental Protection in the Arctic and Antarctica,” in Polar Law Textbook, ed. Natalia Loukacheva (Copenhagen: TemaNord, 2010), 23, 30–32. 79 Text in: https://oaarchive.arctic-council.org/handle/11374/1916. 80 Art. 6(2) of 2017 Agreement. 81 Article 6(1) of 2017 Agreement. See Hilde Woker, Bernhard Schartmüller, Knut Ola Dølven and Katalin Blix, “The Law of the Sea and Current Practices of Marine Scientif ic Research in the Arctic,” Marine Policy 115 (2020): 1–9 (Article 103850).

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in the high seas north of 62 degrees north latitude.”82 There is therefore room for cooperation on MSR in the Arctic Area between the A5, Arctic Council and the ISA. The latter’s strategic plan for the period 2019–23 encourages it to “[s]trengthen and, as appropriate, establish strategic alliances and partnerships with relevant subregional, regional, and global organizations”83 with a view to sharing information and data in an open transparent manner and to avoid duplication efforts. The 2017 Arctic Agreement, also noting the importance of international scientif ic cooperation, indicates the importance of contributing to, building upon, and developing and expanding International Arctic scientif ic cooperation and enhancing and facilitating cooperation with non-parties to the Agreement regarding Arctic science.84

Role of the ISA in the Southern Ocean Antarctica, a continent virtually always covered by ice and having no Indigenous human population, is surrounded by an Ocean, the Southern Ocean.85 The regime here is more complex than that of the Arctic. On the one hand, there are certain developing States that have pushed for the whole of Antarctic to be declared as CHM, though not much headway has been made with this, but there was no specif ic mention of the ISA playing a role in managing the seabed and subsoil of the Southern Ocean as CHM in any of the several ideas.86 On the other hand, there is the 1959 Antarctica Treaty, which has generated the Antarctic Treaty System (ATS),87 as well as the LOSC provisions, and the complexities on how these regimes interact. Furthermore, there are the intricacies of differing views on the status of Antarctica under International Law by the States Parties to the 1959 Treaty.88 Under this Treaty there is a complex mix of States Parties, seven States claiming various parts of the Continent and the adjacent maritime zones (the claimant States),89 non-claimant States that nevertheless have maintained a basis for such claim whilst not recognising the claims of claimant

82 See Article 1(1) and Annex I of 2017 Agreement. 83 See strategic direction 4 of ISBA/24/A/10 of July 27, 2018. 84 Preamble and Article 17 of the 2017 Agreement. 85 See Federica Mucci and Flammetta Borgia, “The Legal Regime of the Antarctic,” in The IMLI Manual on International Maritime Law, Vol. 1. Law of the Sea, eds. Malgosia Fitzmaurice and Norman Martinez Gutierrez (Oxford: Oxford University Press, 2014), 484 at 484, (note 39) and Christopher Joyner, “Antarctica and the Law of the Sea: An Introductory Overview,” Ocean Development and International Law 13, no. 3 (1983): 277–89. See also Vidas, “Emerging Law of the Sea Issues,” 197–98, who points that the “Antarctic maritime area” is a vague term that may be understood in a broad and narrow sense. The former def ined by the “outer boundary can be def ined by the Antarctic Convergence, an irregular circle running mainly between 50° and 60° South latitude (though extending towards 45° S in the meeting area with the Western Indian Ocean),” whilst for the latter it is “60° South latitude.” 86 For analysis of the debates on CHM applying to the Antarctica, see Keyuan, Zou, “The Common Heritage of Mankind and the Antarctic Treaty System,” Netherlands International Law Review 38, no. 2 (1991): 173, 183–85; Jennifer Frakes, “The Common Heritage of Mankind Principle and Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach Compromise,” Wisconsin International Law Journal 21, no. 2 (2003): 409, 425–33. 87 This incorporates the 1972 Convention on the Conservation of Antarctic Seals (CCAS), the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), the 1964 Agreed Measures for the Conservation of Antarctica Flora and Fauna (Agreed Measures) and the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol). The Convention on the Regulation of Antarctic Minerals Resource Activities (CRAMRA) never came into force. 88 The parties agree not to press on with their divergent claims to the territory (though they did not agree to surrender such rights) (See Article IV). See Vidas, “Emerging Law of the Sea Issues,” 198–200. 89 Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom.

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States,90 and other non-claimant States that do not recognise any territorial claims to the Antarctic.91 Besides, there are the diff iculties with applying relevant provisions of the LOSC, such as baselines, due to the physical conditions of Antarctica.92

Outer Continental Shelf Beyond 200 M in the Southern Ocean The problematic issue on this is if claimant States could claim appurtenant maritime zones, including the continental shelf, when their claim to land title in the Antarctic is contested.93 Although an analysis of the arguments for and against on this issue is outside the scope of this chapter,94 it would suff ice to say that a viewpoint that the Antarctic has no maritime zones within national jurisdiction would create more scope for the Area over which the ISA would have control over.95 However, the Antarctic claimant States have agreed they could make submissions to the CLCS in respect of their continental shelf beyond 200 M, with each one deciding whether to submit data or not, and then to request the Commission not to take action in respect of aspects dealing with Antarctic.96 Some of the claimant States have made submissions to the CLCS with data and requested the Commission not to consider the aspects on Antarctic,97 while others have made partial submissions indicating that they would make a subsequent submission on the aspects of the Antarctic.98 In the case of Argentina, it made a full submission to the CLCS in April 2009, including the Argentine Antarctic sector;

90 USA and Russia. See Shirley V. Scott, “The Irrelevance of Non-recognition to Australia’s Antarctic Territory Title,” International and Comparative Law Quarterly 70, no. 2 (2021): 491, 500–1. 91 There are currently a total of 54 States Parties to the 1959 Treaty (the original 12 signatory States, 29 consultative parties, and 25 non-consultative parties). See Secretariat of Antarctic Treaty website www.ats.aq/index_e.html. 92 See Vidas, “Emerging Law of the Sea Issues,” 207; Christopher Joyner, “The Antarctic Treaty System and the Law of the Sea – Competing Regimes in the Southern Ocean,” International Journal of Marine and Coastal Law 10, no. 2 (1995): 301, 305–7. 93 Article IV (2) of the Antarctica Treaty 1959 provides inter alia that “[n]o new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.” See Philipp Nickels, “Revisiting Bioprospecting in the Southern Ocean in the Context of the BBNJ Negotiations,” Ocean Development and International Law 51, no. 3 (2020): 193,197, who questions whether the assertion by the claimant States of appurtenant maritime zones could be regarded as constituting a “new claim” or an “enlargement of an existing claim.” 94 See Chapter 3 of this volume. 95 See Alex Oude Elferink, “The Continental Shelf of Antarctica: Implications of the Requirement to Make a Submission to the CLCS under Article 76 of the LOS Convention,” International Journal of Marine and Coastal Law 17, no. 4 (2002): 485, 489–96. 96 Scott, “The Irrelevance of Non-recognition,” 501–2. 97 See Australia’s 2004 submission (Note from the Permanent Mission of Australia to the Secretary-General of the United Nations accompanying the lodgement of Australia’s submission), CLCS website, www.un.org/depts/los/clcs_new/ submissions_f iles/aus04/Documents/aus_doc_es_attachment.pdf, and Norway’s 2009 submission in respect of Bouvetøya and Dronning Maud Land (Note from the Permanent Mission of Norway to the Secretary-General of the United Nations accompanying the lodgement of Norway’s submission), CLCS website, www.un.org/depts/los/clcs_new/ submissions_f iles/nor30_09/nor2009_note.pdf. 98 See New Zealand’s 2006 submission(Note from the Permanent Mission of New Zealand to the Secretary-General of the United Nations accompanying the lodgement of the partial submission of New Zealand, CLCS website, www.un.org/ depts/los/clcs_new/submissions_f iles/nzl06/nzl_doc_es_attachment.pdf; UK’s 2008 submission, (Note from the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the Secretary-General of the United Nations accompanying the lodgement of the partial submission of the UK, www.un.org/depts/los/clcs_new/submissions_ f iles/gbr08/gbr_nv_9may2008.pdf; France’s 2009 partial submission in relation to the Falkland Islands, South Georgia and the South Sandwich Islands, www.un.org/depts/los/clcs_new/submissions_f iles/fra09/fra_note_feb2009e.pdf and Chile’s 2020 submission (Executive Summary of Eastern Continental Shelf of Eastern Island Province at p. 5, CLCS website, www.un.org/depts/los/clcs_new/submissions_f iles/chl87_20/chle.pdf.

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however, its accompanying note did not request that the Commission refrain from considering the seabed and subsoil beyond the limits of national jurisdiction in the Southern Ocean.99 A number of States objected to this.100 Eventually, the CLCS in its recommendation stated that “[i]t was not in a position to consider and qualify that part of the Submission that related to the continental shelf appurtenance to Antarctica.”101 The failure to resolve the outer limits of the continental shelf means that the seabed and its subsoil beyond the limits of national jurisdiction in the Southern Ocean,102 which the ISA has control over, cannot be determined with precision.

Activities in the Area Discussing activities in the Area in the Antarctic over which the ISA would exercise control would presume that the relevant provisions of Part XI of LOSC, the 1994 Agreement and the various regulations of the ISA apply to the seabed and its subsoil beyond the limits of national jurisdiction in the Southern Ocean. This presumption would appears to be valid from the CRAMRA, which eventually did not come into force, which stated that it “shall regulate Antarctic mineral resource activities which take place on the continent of Antarctica and all Antarctic islands, including all ice shelves, south of 60° south latitude and in the sea-bed and subsoil of adjacent offshore areas up to the deep sea-bed.”103 It further explained that the deep seabed “means the seabed and subsoil beyond the geographic extent of the continental shelf as the term continental shelf is def ined in accordance with international law.”104 The combined effect of these provisions of CRAMRA suggests that the Antarctic regime does not extend to the Area. However, the CRAMRA was superseded by the 1991 Madrid Protocol, which is currently in force,105 that states that “[a]ny activity relating to mineral resources, other than scientif ic research, shall be prohibited.”106 Although there is a lack of clarity of what precisely are the Antarctica maritime areas, to accept that this prohibition applies to the Antarctica deep seabed Area would raise the issue of whether the States Parties of the Madrid Protocol have the competence to prohibit activity relating to mineral resources in the Antarctic deep seabed Area.107 Under the LOSC, as modif ied by the 1994 Agreement, such competence, by reason of the core principle of the CHM, is vested in the ISA,108 and an interpretation of the Protocol as extending to the Antarctic deep seabed Area would be incompatible with the relevant provisions of

 99 Note from the Permanent Mission of Argentina to the Secretary-General of the United Nations accompanying the lodgement of the partial submission of Argentina, CLCS website, www.un.org/depts/los/clcs_new/submissions_f iles/ arg25_09/arg_note_2009eng.pdf. 100 Such as the UK, USA, India, Netherlands, Japan and Chile, CLCS website, www.un.org/Depts/los/clcs_new/submissions_ f iles/submission_arg_25_2009.htm. 101 Para. 6 of Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission made by Argentina on April 21, 2009, of March 11, 2016, CLCS website, www.un.org/depts/los/ clcs_new/submissions_f iles/arg25_09/2016_03_11_COM_SUMREC_ARG.pdf. 102 Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996), 282–85. 103 Art. 5(2) of CRAMRA. 104 Art. 5(3), ibid. Joyner, “The Antarctic Treaty System and the Law of the Sea,” 322–26. exploring possible legal implications of the CRAMRA and the Madrid Protocol before the latter came into force and the prior to the establishment of the ISA. 105 It can into force on January 14, 1998, and currently has 27 States Parties, UN Treaty Series website, https://treaties. un.org/doc/Publication/UNTS/Volume%202941/v2941.pdf. 106 Article 7 of the Madrid Protocol. 107 Vidas, “Emerging Law of the Sea Issues,” 199–200 and 210–16. 108 See Articles 136, 137, 138, 157(1) and (4) and 311(6) of LOSC.

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the LOSC, as modif ied by the 1994 Agreement,109 to which a number of the parties to the Madrid Protocol are parties.

Marine Scientif ic Research The Antarctic Treaty 1959 recognises the “freedom of scientif ic investigation in Antarctica” and advocates international scientif ic cooperation through exchange of information on plans for scientif ic programs and scientif ic personnel between expeditions and stations, as well as scientif ic observations and results.110 It also encourages “the establishment of cooperative working relations with those Specialized Agencies of the United Nations and other international organizations having a scientif ic or technical interest in Antarctica.”111 This could, of course, include cooperation with the ISA in respect of the seabed and its subsoil beyond the limits of national jurisdiction in the Southern Ocean. Besides, the Madrid Protocol is clear that scientif ic research is an exception to the prohibition of mineral activities in Antarctica112 and that scientif ic research, “including research essential to understanding the global environment,” should be given priority.113 These provisions clearly align with the freedom of all States and competent international organisations to conduct marine scientif ic research in the Area and to make such research f indings freely available.114

Conclusion The polar region regimes have an interesting raft of normative instruments that raise intriguing issues on their relationship with the LOSC and specif ically the ISA. The complexities arising from the submissions of relevant States in the polar regions to the CLCS, as explored earlier, indicate that it would take a while for the Area in these regions to be precisely determined. What is clear, however, is that any activities in the Area of these regions would have to fall under the remit of the ISA, which has been given such powers under Part XI of the LOSC, as modif ied by the 1994 Agreement, even though it is unlikely that any mining activities would take place in these regions anytime soon due to the diff iculties in the terrain. Nonetheless, under the LOSC and the relevant normative instruments of the polar regions, there is room for the ISA, the polar region States, and any competent international organisations to collaborate to achieve better outcomes in terms of environmental protection and marine scientif ic research in these regions. Surprisingly, there is no mention of the polar regions in the ISA strategic plan for the period 2019–23.115 In this author’s opinion, polar region States that are ISA members should begin to press for topics relevant to the polar region CHM Area to be included on the ISA’s agenda.

109 See arguments on Article 311(6) of LOSC in respect of the Arctic (note 74). 110 Articles II and III (1). See Chapter 8 of this volume. 111 Article III (2). 112 Article 7 of the Madrid Protocol. 113 Ibid., Article 3(3). 114 See Articles 143 and 256 of LOSC. 115 ISBA/24/A/10 of July 27, 2018.

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21 THE ARCTIC COUNCIL AND ITS “LEGISLATIVE” ACTIVITIES Natalia Loukacheva

Introduction The Arctic Council (AC) is an eminent forum for cooperation that over the years received enormous scholarly, media and public attention, including analysis and criticism of all possible aspects of its history, development, form, structure, operation, role in the Circumpolar region and the globe.1 This chapter is limited to consideration of how in the current changing environment the AC both directly and indirectly influences the development of international law as it relates to the Arctic. It looks at how the Council through its operation and various initiatives and by dealing with issues that it was not originally formed to address, has de facto contributed to “legislative” processes. By looking at the Council’s “law-making” activities, the key drivers and limitations of the Council’s ability to become the preeminent actor in this area are identif ied. It is argued that despite existing barriers to “legislative activities” posed foremost by the Council’s legal nature, this forum has already made a valuable contribution to the international law in the Arctic and there is potential for further developments.

Legal Nature of the Arctic Council The role of the AC in law-making or legislative activities (meaning the Council’s ability to develop documents of normative signif icance, although the Council itself is not a legislative body and cannot make a rule of customary international law) can be better understood by looking at the legal

1 This literature is too extensive to be mentioned here. There are several books and regular articles published in political, international relations and legal journals related to the Arctic. For example, some recent books include Svein Vigeland Rottem, The Arctic Council: Between Environmental Protection and Geopolitics (London: Palgrave Macmillan, 2020); Danita C. Burke, Diplomacy and the Arctic Council (Montréal-Kingston: McGill-Queen’s University Press, 2020); Chih Yuan Woon and Klaus Dodds eds., ‘Observing’ the Arctic: Asia in the Arctic Council and Beyond (Cheltenham: Edward Elgar, 2020); Douglas C. Nord, ed., Leadership for the North: The Influence and Impact of Arctic Council Chairs (New York: Springer, 2019); Douglas C. Nord, The Arctic Council: Governance within the Far North (London: Routledge, 2018); John English, Ice and Water: Politics, Peoples, and the Arctic Council (Toronto: Allen Lane, 2013). Many more references follow in the citations. DOI: 10.4324/9781003404828-27 356

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nature of the Council that is determined by its founding documents. The AC was established by the Ottawa Declaration of 1996 as a high-level intergovernmental forum to provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic Indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.2 Its founding Arctic Member States – Canada, the Kingdom of Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russian Federation, Sweden and the United States – to a great extend def ine the Council’s agenda. The six Arctic Indigenous Peoples’ organisations – permanent participants (PPs) – are also founding actors of the Council. They are consulted on a variety of issues but do not formally hold the power to block AC actions as decisions in the Council are made by consensus of the Arctic States only.3 There is also a category of observers that is open to non-Arctic States, non-governmental organisations, and intergovernmental, inter-parliamentary, global and regional organisations that “the Council determines can contribute to its work.”4 Current 38 observers contribute to the Council, primarily through the Council’s six working groups. Their primary role is to “observe” the work of the Council.5 But there is an ongoing challenge for the Council in how to meet the desire of observers for greater involvement, while retaining Arctic States control over the region and several initiatives have taken place within the Council to address this issue.6 The Council was formed as an institutional structure of the 1990s at a time when the Arctic was considered as a peripheral region no longer in the front line of the Cold War and there were no vivid “objections” by others to the dominant role of the Arctic States and their sovereign rights and jurisdiction in the region.7 However, with growing global and regional importance of the Arctic, questions have been raised about restructuring existing governance arrangements in which the AC plays a prominent role.8 It remains to be seen whether the Council’s legal foundations will need to be amended over time to better meet challenges of the 2020s. Since its inception, the Council has been based on the premise of the State sovereignty of its founding Arctic States and their interests with acknowledgement of an important role of Arctic Indigenous Peoples in negotiations of the Council and their subsequent full consultation and

2 Declaration on the Establishment of the Arctic Council. Ottawa, Canada. September 19, 1996, Art. 1(a). 3 Ibid., Articles 2 and 7. About PPs interests, see Dalee Sambo Dorough, “The Rights, Interests and Role of the Arctic Council Permanent Participants,” in Governance of Arctic Shipping. Balancing Rights and Interest of Arctic States and User States, eds. Robert C. Beckman et al. (Leiden and Boston: Brill/Nijhoff, 2017), 68–106; Gudmundur Alfredsson, “Indigenous Peoples in the Arctic Council: A Unique Feature?” The Yearbook of Polar Law 13 (2022): 3–15. 4 Ibid., Art. 3. See also Observers, Arctic Council www.arctic-council.org/en/about/obsevers 5 See Observers, supra note 4 and Observer Manual for Subsidiary Bodies as adopted by the Arctic Council at the Eighth Arctic Council Ministerial Meeting, Kiruna, Sweden, May  15, 2013; addendum approved by the SAO at the SAO meeting Anchorage, USA, October 20–22, 2015 and Portland, Maine, USA, October 4, 2016, https://oaarchive.arcticcouncil.org/bitstream/handle/11374/939/EDOCS-3020-v1B-Observer-manual-with-addendum-f inalized_Oct2016. pdf 6 Tom Barry et al., “The Arctic Council: An Agent of Change?” Global Environmental Change 63 (2020): 3, 102099. 7 Oran Young, “Is it Time for a Reset in Arctic Governance?” Sustainability 11 (2019): 2–3, 4497. 8 Ibid.

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involvement in this forum.9 The Council has changed a lot since its creation and 2021 marked its 25th anniversary. However, despite growing empowerment of non-State actors, especially the PPs, and ongoing evolution and reforming of the AC, the presumption of State sovereignty of the eight Arctic States is at the heart of Council’s decision-making and predetermines operation of this entity. PPs are important players in the Council’s work. It has been emphasised by 2021 Reykjavik Ministerial Declaration and strengthening of the PPs capacities within the Council’s work is seen as a priority in the Council’s strategic plan 2021 to 2030, but often their ability to take part in activities of the Council is restricted by their capacity and insuff icient resources,10 and only Arctic Member States make f inal decisions. This was also reaff irmed by the AC in its 2013 Vision for the Arctic, which emphasised that [m]embership in the Arctic Council is and will remain for the Arctic States with the active participation and full consultation of the Arctic Indigenous Peoples Organizations. Decisions at all levels in the Arctic Council are the exclusive right and responsibility of the eight signatories to the Ottawa Declaration.11 Regardless of numerous pressures posed on the Council by geopolitical, ecological, social and economic changes in the Arctic for the past two and a half decades, it specif ically excludes military security per the Ottawa Declaration,12 and in principle, its key objectives remain focused on the protection of the Arctic environment and advancement of sustainable development. Nevertheless, the Council also addresses a broad variety of social, cultural, economic and health13 issues, primarily through the Sustainable Development Working Group (SDWG). Ongoing reforms of the Council have not changed its legal nature def ined by its founding documents. One can argue that over time the AC may or should become a fully fledged international organisation under international law.14 Some aspects of this trend can be seen in the creation of the permanent AC secretariat in Tromsø and conclusion of the host country agreement between

  9 Joint Communique of the Governments of the Arctic Countries. Ottawa, Canada, September 19, 1996; Arctic Council Rules of Procedure as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, Iqaluit, Canada, September 17–18, 1998 and revised by the Arctic Council at the Eighth Arctic Council Ministerial Meeting, Kiruna, Sweden, May 15, 2013, Articles 4–5. 10 The 2021 Reykjavik Declaration emphasises the role of the PPs and Indigenous Peoples in several instances; for example, it has noted the UN Declaration on the Rights of Indigenous Peoples; welcomed the UN’s international decade of Indigenous languages; in s.51, specif ically recognised valuable contributions by the PPs and support by the Indigenous People’s Secretariat; and “encourage efforts to strengthen their capacity to full and effective participation in their prioritised areas of the Arctic Council’s work.” Reykjavik Declaration 2021 On the occasion of the 12th Ministerial Meeting of the Arctic Council, Reykjavik, May 20, 2021. Arctic Council Strategic plan 2021 to 2030, point 7.4, Reykjavik, May 20, 2021. Re limited resources, see Barry et al., “The Arctic Council,” 2. 11 Arctic Council. Vision for the Arctic, Kiruna, Sweden, May 15, 2013. 12 Declaration on the 20th anniversary of the Council conf irmed foundations of the Ottawa Declaration. The Arctic Council: A Forum for Peace and Cooperation. EDOCS-3801-v2, 2016. 13 See, for example, Jennifer Spence et al., eds., “Covid-19 in the Arctic: Brief ing Document for Senior Arctic Off icials,” Senior Arctic Off icial’s Executive Meeting, Iceland, June 24–25, 2020, 1–83. 14 Anton Vasiliev, “The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic: A New Chapter in Polar Law,” in Polar Law Textbook II, ed. Natalia Loukacheva (Copenhagen: Nordic Council of Ministers, TemaNord 535, 2013), 53–65.

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Norway and the AC secretariat in 2013 or the creation of the Project Support Instrument to f inance projects of the Council.15 The Council continues to evolve but in terms of its legal nature it is still not an international organisation under international law; it is an international forum of cooperation that was not established by a legally binding instrument, such as a treaty. It was created this way to guarantee that its legal personality would not be distinct from the legal personality of its Arctic Member States.16 The AC was launched via a ministerial declaration (i.e. Ottawa Declaration) rather than an international legally binding instrument as from the very beginning the Council was seen “as a policy forum for the Arctic states” coordinating issues relating to governance arrangements.17 The AC does not have a legal personality under international law that would allow it to conclude treaties with other subjects of international law.18 Nevertheless, despite its legal nature of a forum rather than an independent legal entity with lawmaking powers, the AC has been involved in processes that led to regulatory instruments related to the Arctic and it has contributed to the development of international law. Arguably, the legal nature of the Council as a forum poses limitation on the Council’s ability to “legislate” but at the same time, it allows for its flexibility in addressing the most calling issues including legal ones. Further, this chapter will look at some aspects of the Council’s activities related to its “legislating.”

Dimensions of the Arctic Council “Law-Making” Activities The AC was not established as a legislative body but de facto it has been influencing and/or involved in several initiatives that impacted current international law. How did it become possible in spite of the Council’s mandate and its limited legal status as a forum? Molenaar proposed the concept of an Arctic Council System (ACS) (that might be compared to the Antarctic Treaty System) to attempt to explain how the Council gets involved in normative activities without having direct authority to do so. This system includes the Council’s constitutive instrument (i.e., the Ottawa Declaration), other Ministerial Declarations, other instruments adopted by the Arctic Council – for instance, its Arctic Offshore Oil and Gas Guidelines – and the Council’s institutional structure. The second component consists of instruments negotiated under the Council’s auspices – but not adopted by it – and their institutional dimension.19

15 “The Secretariat has legal personality and capacity to perform its functions in Norway,” Art. 2 of The Host Country Agreement between the Government of the Kingdom of Norway and the Arctic Council Secretariat on the Legal Status of the Secretariat and the Privileges and Immunities of the Secretariat and Its Staff Members. Tromsø, Norway, January 21, 2013; Yoshinobu Takei, “Role of the Arctic Council from an International Law Perspective: Past, Present and Future,” The Yearbook of Polar Law 6 (2014): 349–74; Natalia Loukacheva, “The Arctic Council and ‘Law-Making,’ ” The Northern Review 50 (2020): 109–35 at 110. 16 Evan T. Bloom, “Establishment of the Arctic Council,” American Journal of International Law 93 (1999): 712–22 at 721. 17 Young, “Is it Time for a Reset in Arctic Governance?” 3. 18 For features of international organisations under international law and their applicability to the Arctic Council, see Takei, “Role of the Arctic Council,” 353–54. 19 Erik J. Molenaar, “Current and Prospective Roles of the Arctic Council System within the Context of the Law of the Sea,” International Journal of Maritime and Coastal Law 27 (2012): 53–595 at 572; Erik J. Molenaar, “The Arctic, the Arctic Council, and the Law of the Sea,” in Governance of Arctic Shipping. Balancing Rights and Interests of Arctic States and User States, eds. Robert C. Beckman et al. (Leiden: Brill Nijhoff Publishers, 2017), 24–67 at 55.

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This “two-tiered approach of negotiating (non-)legally binding international instruments” under the auspices of the Council, supports the ACS and also strengthens the Council.20 What were the main drivers behind the Council’s shift towards involvement in normmaking? Arguably, this was instigated by practical necessities and the need for the Council to be responsive to emergent challenges in the context of rapidly changing Arctic and global pressures (e.g. the ramif ications of climate change on Arctic populations, economies, and fragile environment). Being created as a “forum,” it was able to show more flexibility in dealing with the most topical issues concerning the Arctic. As such, the lack of authority to make legally binding regulations does not impede the AC’s role as the “integrator” in the Arctic as due to its informal nature the Council is able to lower “legal and political barriers to making institutional adjustments.”21 Furthermore, the Council’s legitimacy (meaning its role as a forum both in the Circumpolar rim and beyond) was strengthened by its ability to identify gaps in Arctic governance that required more formal arrangements and serving as a platform for negotiations of legal agreements under its auspices.22 Also in a way this “law-making” was emphasising sovereignty and will of the Arctic States to make law in response to calls for a more globalised Arctic. There are various views on the Council’s involvement in norm-making. For example, Takei explored how the Council, although not an international organisation under international law, has contributed to its development in several ways (including providing a platform for treaty negotiations through its task forces).23 Soft law (e.g. non-legally-binding instruments of normative signif icance, such as declarations, MOUs) is one of the primary means of Arctic cooperation in which the AC, emerged as an outcome of a soft-law approach to governance, plays a prominent role.24 Some characterise the Council’s role in norm production through the prism of soft-law versus hard-law approaches and suggest that the Council, as a soft-law body itself, being created by the Ottawa Declaration, by generating soft-law instruments has been instrumental for norm-setting in the Arctic.25 The soft-law structure of the Council helps to increase its flexibility and ultimately role in norm-making. Soft-law documents produced by the Council can be categorised in several forms. The most notable are declarations that the Council has been issuing since its inception at the end of each biennial ministerial meeting. The only exception is the 2019 ministerial meeting in Rovaniemi that failed to produce such a declaration mainly because of the USA position on climate change at that

20 Ibid. 21 Oran Young, “The Shifting Landscape of Arctic Politics: Implications for International Cooperation,” The Polar Journal 6, no. 2 (2016): 209–23 at 221. 22 Barry et al., “The Arctic Council,” 4. 23 Takei, “Role of the Arctic Council,” 356–62. 24 Timo Koivurova, “Increasing Relevance of Treaties: The Case of the Arctic,” American Journal of International Law Unbound 108 (2014): 52–56. 25 MD Waliul Hasanat, “Def initional Constraints Regarding Soft-Law,” AALCO Quarterly Bulletin 3, no. 1–2 (2007): 8–32 reprinted in Hasanat, “Soft Law Cooperation in International Law: The Arctic Council’s Efforts to Address Climate Change” (Ph.D. thesis, Lapland University Press, Rovaniemi, 2012); Camille Escudé, “The Strength of Flexibility: The Arctic Council in the Arctic Norm-Setting Process,” Arctic Yearbook (2016): 1–13; Rachael Lorna Johnstone, “Environmental Governance through the Arctic Council: The Arctic Council as Initiator of Norms of International Environmental Law” (Kobe, Japan PCRC Working Paper 1, 2016), 1–22.

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time.26 Instead, issued the chair statement de facto replaced the declaration.27 Arguably, this statement is yet another form of soft-law documents. Other examples of non-legally-binding but normative instruments produced by the Council include • programs of action, such as the Framework for Action on Enhanced Black Carbon and Methane Emissions (2015); • guidelines, such as the Arctic Offshore Oil and Gas Guidelines (2009), EA Guidelines Implementing and Ecosystem Approach to Management of Arctic Marine Ecosystems (2019);28 • strategic plans, such as the Arctic Marine Strategic Plan 2015–2025 (2015) and the Protection of the Arctic Marine Environment (PAME) Status of Implementation (2017); • action plans, such as the Arctic Invasive Alien Species Strategy and Action Plan (2017); • manuals; and • guides, such as the Arctic Regional Reception Facilities Plan – Outline and Planning Guide for the Arctic (2017), and the Planning Guidance for MOSPA – Marine Oil Spill Preparedness and Response in the Arctic – Exercises (2019).29 Thus, by developing various scientif ic assessments, reports and recommendations and by exercising monitoring through its working groups and other bodies the Council has been facilitating the development of international law that is related to the Arctic. In some cases, these norm-making activities of the Council influence national processes, domestic laws and standards although there is a question of their implementation.30 Soft-law activities of the Council enabled “international soft-law influence in the Arctic regions, without the delaying formalities related to treaty-making.”31 Other aspects of the Council’s contribution to “law-making” include scientif ic assessments by its working groups that brought attention to the Arctic issues in international negotiations of regulatory instruments, especially global environmental treaties.32 Notably, the Council can be applauded for its contribution to the negotiations of the Stockholm Convention on Persistent Organic

26 Michael. R. Pompeo, Secretary of State, Remarks at the Arctic Council Ministerial Meeting. Rovaniemi, Finland, May 7, 2019. Michael R. Pompeo, Secretary of State, “Looking North: Sharpening America’s Arctic Focus,” Remarks. Rovaniemi, Finland, May 6, 2019a. 27 Timo Soini, Minister of Foreign Affairs of Finland, 2019. Finland’s Chairmanship 2017–19. Statement by the Chair. On the Occasion of the Eleventh Ministerial Meeting of the Arctic Council, Rovaniemi, Finland, May 6–7. 28 EA Guidelines Implementing and Ecosystem Approach to Management of Arctic Marine Ecosystems, Arctic Council, PAME, May 2019. 29 Quoted from Loukacheva, “The Arctic Council and ‘Law-Making,’ ” 112. See also Takei, “Role of the Arctic Council,” 368, who offers other examples of these documents. 30 See, for example, Nathaniel Valk, Arctic Council Soft Law: An Effectiveness Analysis (Ottawa: University of Ottawa. July 23, 2012), 1–55; Ida Folkestad Soltvedt, “Soft Law, Solid Implementation? The Influence of Precision, Monitoring and Stakeholder Involvement on Norwegian Implementation of Arctic Council Recommendations,” Arctic Review on Law and Politics 8 (2017): 73–94. 31 Koivurova, “Increasing Relevance of Treaties,” 53. 32 Olav Schram Stokke, Geir Hønneland and Peter Johan Schei, “Pollution and Conservation,” in International Cooperation and Arctic Governance. Regime Effectiveness and Northern Region Building, eds. Olav Schram Stokke and Geir Hønneland (London: Routledge, 2006); Timo Koivurova, Paula Kankaanpää and Adam Stepien, “Innovative Environmental Protection: Lessons from the Arctic,” Journal of Environmental Law 27, no. 2 (2015): 285–311.

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Pollutants (POPs) 2001 (e.g. Arctic Monitoring and Assessment Program [AMAP])33 and of the UNEP’s Minamata Convention on Mercury (2013) where AMAP acted as a science broker on the road towards the adoption of this convention34 and further implementation of both treaties.35 Furthermore, with the release by the Conservation of Arctic Flora and Fauna (CAFF) working group of the Arctic Biodiversity Assessment (2013), the AC helped to put Arctic biodiversity to the attention of the Convention on Biological Diversity (CBD) and raised global awareness of this issue.36 Further, by sponsoring climate science research (e.g. reports like ACIA, AMSA, SWIPA, AACA), AC influenced international climate change policy-making and facilitated collaboration in this area.37 The Council has also supported the implementation of the Paris Agreement to the UN Framework Convention on Climate Change,38 and with the new position of the 2021 US administration, this issue already gained further attention in the Council’s work.39 The Council has also been committed to the UN Sustainable Goals and their fulf ilment by 2030.40 One notable development is the Council’s collaboration with the International Maritime Organization (IMO) on measures to reduce environmental impacts of Arctic shipping.41 The AC’s Protection of the Arctic Marine Environment (PAME) Arctic Marine Shipping Assessment (AMSA 2009)42 shaped the IMO’s decision to negotiate the mandatory Polar Code (2017) and in 2019 the IMO obtained an observer status in the Council.43 The AC did not engage in the negotiations of the legally binding Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (2018). However, the AC has since supported this development and further cooperation with its signatories on the implementation of this regional instrument regulating f isheries in the central part of the Arctic Ocean.44

33 AMAP, Assessment 2002: Persistent Organic Pollutants in the Arctic. AC, 2004; AMAP, Trends in Stockholm Convention Persistent Organic Pollutants (POPs) in Arctic Air, Human media and Biota. 2014. Arctic Council www.oaarchive. arctic-council.org; AC Declaration 2016, supra note 12. 34 Maria Platjouw Froukje, Eirik Hovland Steindal and Trude Borch, “From Arctic Science to International Law: The Road towards the Minamata Convention and the Role of the Arctic Council,” Arctic Review on Law and Politics 9 (2018): 226–43. 35 Declaration of the Foreign Ministers of the Arctic States at the 10th Ministerial Meeting of the Arctic Council, Fairbanks, Alaska, May 10–11, 2017, point 16. 36 About CBD and the Council’s/CAFF role see Christian Prip, “The Arctic Council and Biodiversity-need for a Stronger Management Framework?” Nordic Environmental Law Journal, no. 2 (2016): 37–53 at 44–47; Tom Barry et al., “How Does the Arctic Council Support Conservation of Arctic Biodiversity?” Sustainability 12 (2020): 4, 5042. 37 Timo Koivurova, “Polar Regimes Tackling Climate Change,” in Polar Law Textbook II, ed. Natalia Loukacheva (Copenhagen: Nordic Council of Ministers, TemaNord 535, 2013), 67–75 at 70–73. 38 Fairbanks Declaration 2017, supra note 35, 3. 39 President Biden accepted the Paris Agreement from which President Trump previously withdrew. Paris Climate Agreement Acceptance on behalf of the United States of America, President Biden, January 20, 2021, www.whitehouse.gov/ brief ing-room/statements-releases/2021/01/20/paris-climate-agreement/. See also the AC’s 2021 Reykjavik Ministerial Declaration and the Council’s 2021 to 2030 strategic plan, supra note 10. 40 Ibid. 41 See Tromsø Declaration on the occasion of the sixth ministerial meeting of the Arctic Council, April 2009, point 11. 42 AC: PAME, Arctic Marine Shipping Assessment 2009 Report, April 2009, https://tinyurl.com/erikro63; Arctic Council, Arctic Marine Shipping Assessment. 43 Molenaar, “Current and Prospective Roles of the Arctic Council System,” 571; Molenaar, “The Arctic, the Arctic Council, and the Law of the Sea,” 54; AC’s Declaration 2016, supra note 12. About the IMO as an observer of the AC since 2019 Rovaniemi Ministerial meeting, see https://arctic-council.org/en/about/observers/. See also chapter 19 of this volume. 44 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, Ilulissat, Greenland, October 3, 2018. See also 2021 Reykjavik Declaration supra note 10. Agreement entered into force on June 25, 2021.

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In its effort to tackle the gaps of knowledge and advance cooperation beyond the Council’s framework, the AC has facilitated the creation of several forums that have contributed or led to legal developments. Thus, the Arctic Economic Council (AEC) came into being in 2014 as the outcome of the AC’s task force to establish the Circumpolar Business Forum45 and cooperation between the two councils is facilitated via the memorandum of understanding concluded between these independent entities.46 In 2015 the Arctic Coast Guard Forum (ACGF) was created and a part of its mandate includes collaboration with the AC via sharing of information.47 Importantly, the ACGF supports the implementation of the 2011 Search and Rescue Agreement and the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic.48 The Arctic Offshore Regulators Forum (AORF, 2015) was suggested by the Council to exchange information and share best practices related to development of petroleum resources in the Arctic, the AORF also cooperates with the AC.49 In 2017 the Arctic shipping best practices information forum was initiated by the Council to raise awareness of the IMO’s Polar Code and promote its implementation.50All these forums, albeit acting as “independent bodies,” have different degrees of integration and cooperation with the AC and often provide support to the implementation of the Council’s guidelines and agreements negotiated under its aegis. Despite “celebration” of the soft-law approach in the Council’s work, in response to new demands posed by changing Arctic and global reality, and to raise the international prof ile of the AC among other reasons, the Council has moved towards involvement in the development of hardlaw instruments. One notable example is the negotiations of the three legally binding agreements that were concluded by the Arctic States under the auspices of the Council. Those are Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011), Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013) and Agreement on Enhancing International Arctic Scientif ic Cooperation (2017).51 These agreements have not changed the legal nature of the Council as a soft-law body but provoked further discourse on the evaluation of norm-making under the Council’s leadership. For example, the Council’s products could be considered not only as soft-law (non-binding) versus hard-law (legally binding) instruments, but according to some scholars, these three agreements are “soft” in nature because of

45 Natalia Loukacheva, “The Arctic Economic Council – the Origins,” The Yearbook of Polar Law 7 (2015): 225–48. 46 Memorandum of Understanding between the Arctic Council and the Arctic Economic Council. Rovaniemi, Finland. May 6, 2019. 47 The Arctic Coast Guard Forum, Terms of Reference, 2015 www.arcticcoastguardforum.org 48 Fairbanks Declaration, supra note 35, points 2 and 5. 49 Arctic Offshore Regulators Forum. Terms of Reference, 2015 www.oaarchive.arctic-council.org The AORF’s advances the recommendations of the AC’s Task Force on Arctic Marine Oil Pollution Prevention “to enhance the capacity of Arctic offshore petroleum safety regulators to prevent marine oil pollution through regular exchanges of knowledge and experience” (ibid., Art. 1(c)). 50 Fairbanks Declaration supra note 35 point 3; Arctic Shipping Best Practices Information Forum. 2017. www.pame.is. 51 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, Nuuk, May 12, 2011, entered into force on January 19, 2013, https://oaarchive.arctic-council.org/handle/11374/531; Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, Kiruna, May 15, 2013, entered into force on March 25, 2016, https://oaarchive.arctic-council.org/handle/11374/529. Agreement on Enhancing International Arctic Scientif ic Cooperation, Fairbanks, May 11, 2017, came into force on May 23, 2019, https://oaarchive.arctic-council. org/handle/11374/1916. For detailed analysis of these agreements and the role of the Council in their negotiations see Loukacheva, “The Arctic Council and ‘Law-Making.’ ”

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their ambiguity, permissive language and redundancy and leave little or no new obligations on their parties.52 Clearly, all these approaches merit value when it comes to the legal assessment of the Council’s contribution to norm-making. Arguably, evolution of the Council towards hard-law measures also points to its further movement towards becoming an international organisation but at the same time proves eff iciency, adaptability and flexibility of this forum as a soft-law structure.

Conclusion The negotiation of legally binding agreements under the auspices of the AC is one most obvious and important indicator of the Council’s engagement in law-making. However, as this chapter has demonstrated, the AC is engaged in law-making via different other fora and processes notwithstanding its lack of legal personality. The legal analysis of various aspects of those agreements has been done by the growing scholarship elsewhere.53 This scholarship has also emphasised the growing role of the Council especially in the development of international environmental law, law of the sea, climate change law and sustainable development. By moving towards legally binding agreements the Council reaff irmed its role as a regional leader, strengthened its legitimacy and advanced the Arctic governance framework.54 Not all initiatives of the Council’s Task Forces, that served as a platform for the negotiations of legally binding instruments, have led to an agreement. For instance, the 2013 Task Force to develop an Arctic Council plan or other arrangement on oil pollution prevention did not result in the agreement on prevention of marine oil spills.55 Nevertheless, by serving as an initiator and by providing a platform for negotiations of the three other legally binding agreements under its auspices, and by being a driving force behind their development, and ensuring their further implementation,56 the Council took part in the creation of legal norms and performed activities of a regulatory nature. Will this continue in the future? The Icelandic chairmanship in the Council (2019–21) did not initiate the negotiations of any new agreements under its aegis, although one area of particular focus – marine litter and plastics

52 Hema Nadarajah, “Fewer Treaties, More Soft Law: What Does It Mean for the Arctic and Climate Change?” Arctic Yearbook (2020): 1–14 at 4; Hema Nadarajah, “Prevalence of Soft Law in the Arctic,” The Yearbook of Polar Law 12 (2020): 285–307. 53 See, for example, Loukacheva, “The Arctic Council and ‘Law-Making,’ ” 116–24, for an overview of extensive legal literature on those agreements, see note 42:116, 131–32. About the impact of Arctic science agreement on non-Arctic States, see, for example, Akiho Shibata and Maiko Raita, “An Agreement on Enhancing International Arctic Scientif ic Cooperation: Only for the Eight Arctic States and Their Scientists?” The Yearbook of Polar Law 8 (2016): 129–62; Akiho Shibata, “The Arctic Science Cooperation Agreement: A Perspective from Non-Arctic Actors,” in Emerging Legal Orders in the Arctic: The Role of Non-Arctic Actors, eds. Akiho Shibata et al. (London: Routledge, 2019), 206–25. 54 See, for example, Timo Koivurova, “Can We Conclude an Arctic Treaty? Historical Windows of Opportunity,” The Yearbook of Polar Law 7 (2015): 410–25; Clemens Binder, “Science as a Catalyst for Deeper Scientif ic Cooperation? Science Diplomacy and the Transformation of the Arctic Council,” Arctic Yearbook (2016): 127–39. 55 For explanations, see Loukacheva, “The Arctic Council and ‘Law-Making,’ ” 118. 56 For example, the EPPR WG of the AC is involved in the implementation of the SAR agreement: “we are going to work towards the full implementation of the Search and Rescue Agreement” to be ready when something happens in the Arctic. B. Strong, EPPR SAR EG Chair, in Search and Rescue Cooperation in the Arctic, EPPR, March 2020 at 1; and in the implementation of the 2013 Agreement. Preventing and Responding to Oil Spills in the Arctic, EPPR, March 2020.

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in the Arctic could potentially become a subject of such an agreement.57 There are several other potential areas where the Council could act as an instigator of a regulatory framework in the form of issue-specif ic agreement (e.g. on black carbon and methane emissions reductions, on marine protected areas [MPAs] in the areas beyond national jurisdiction [ABNJ]58 or on the prevention and elimination of natural forest f ires in the Arctic59). The Russian chairmanship at the AC (2021–23) is open to discussions of proper proposals, and it will welcome the development of new agreements, if they will respond to the interests of the Arctic Member States.60 The AC experience shows that although legally binding agreements targeting specif ic area gaps are important, they are not an ultimate solution, as often things can be regulated by soft-law measures. Indeed, throughout its history, the Council has been successful in promoting non-legally-binding soft-law instruments. The AC lacks jurisdiction to adopt legally binding instruments, but de facto it has been involved in norm-making processes in a number of ways. It remains to be seen how the Council may evolve in response to the growing complexity of the Arctic governance framework and new emergent challenges. Would it bring to fruition new legally binding “area-specif ic” agreements under the auspices of the Council? Or the Council will engage in the development of global regimes (e.g. migratory birds) that are relevant to the Arctic? To sum up, the AC was conceived as a trust-building information-exchange forum with an agenda def ined under the Ottawa Declaration. Despite the 2022–2023 tensions within the Council due to situation in Ukraine, as such, it performed excellently in the f irst quarter century of its existence. However, the logic of expanding cooperation between the Arctic States, which even surpassed the geopolitical challenges, and pushed further by newly opening opportunities and risks of climate change, created a situation when the original form became too tight for the quickly evolving substance of regional cooperation. The AC has shown itself as a flexible, effective and bold international body by daring to enter the area beyond its initial mandate and began producing not only soft but also hard-law instruments. This new function, albeit not mentioned in the founding documents, became one of the steps in changing the nature of the AC from “forum” to something that begin to resemble a classic international organisation. There is no doubt that, with such a fruitful experience behind, the Council will move on with its law-making activity should there be a practical demand for it and political consensus among the Member States.

57 See Icelandic chairmanship program and relevant documents at the website of the Council. Loukacheva, “The Arctic Council and ‘Law-Making,’ ” 126. 58 See, for example, Hossain, Kamrul Hossain and Kathleen Morris, “Protecting Arctic Ocean Marine Biodiversity in the Area beyond National Jurisdiction Plausible Legal Frameworks for Protecting High Arctic Waters,” in The Future of the Law of the Sea. Bridging Gaps between National, Individual and Common Interests, ed. Gemma Andreone (Cham: Springer, 2017), 105–26; Vito de Lucia and Philipp Peter Nickels, “Reflecting on the Role of the Arctic Council vis-à-vis a Future International Legally Binding Instrument on Biodiversity in Areas beyond National Jurisdiction,” Arctic Review on Law and Politics 11 (2020): 189–214. 59 For the list of possible areas see Loukacheva, “The Arctic Council and ‘Law-Making,’ ” 125–27. 60 The Russian Senior Arctic Off icial, Ambassador N. Korchunov, in an interview to Kommersant newspaper. “There are no problems in the Arctic that require military intervention.” N. Korchunov on the forthcoming Russia’s chairmanship in the Arctic Council. Kommersant No. 5, January 15, 2021, in Russian, translated by the author.

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22 THE ANTARCTIC TREATY CONSULTATIVE MEETINGS AS A FORUM OF LAW-MAKING Luis Valentín Ferrada

Introduction This chapter reviews the leading institution of Antarctic governance: the Antarctic Treaty consultative meetings (ATCMs). We will consider how it was created and its normative capacity, and function, together with some specif ic characteristics of its work. Law-making can be def ined as “the process of making or enacting a positive law in written form, according to some type of formal procedure.”1 According to this def inition, f inding at least three law-making processes related to Antarctic issues is possible. Two belong to international law and one to domestic law, although it is partially the result of what has been agreed internationally. The f irst of these law-making processes is the negotiation, adoption and entry into force of international treaties about Antarctic matters. The second is the negotiation, adoption and entry into force of the international agreements adopted in the two main Antarctic meetings established by these treaties. The last is the domestic enactment of laws, bylaws and other regulations by different countries with Antarctic interests and activities, including the reception in their national legislation of the international treaties and agreements they have adopted. We will focus mainly on the second law-making process, especially what happens at the ATCMs. However, it is crucial to keep in mind this more complex and comprehensive understanding. In particular, to consider the enactment of Antarctic domestic regulation, which usually does not receive enough attention. In a fascinating evolution during the last seven decades,2 the parties of the Antarctic Treaty3 have developed the Antarctic Treaty System (ATS). This international regime is integrated by “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.”4 More specif ically, it is constituted

1 Black’s Law Dictionary, Bryan Garner, Editor-in-Chief (St. Paul, MN: West Group, 2000), 730 (meaning of legislation, 1). 2 Luis Valentín Ferrada, “Evolución del Sistema del Tratado Antártico: Desde su génesis geoestratégica a sus preocupaciones ambientalistas,” Revista de Derecho (Universidad San Sebastián) 18 (2012): 131–51, https://dialnet.unirioja.es/ servlet/articulo?codigo=4450090. 3 Adopted in Washington, DC, December 1, 1959, Entered into force June 23, 1961. Text in: 402 UNTS 71. 4 Article 1.e of the Madrid Protocol. DOI: 10.4324/9781003404828-28 366

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by the Antarctic Treaty, the Convention for the Conservation of Antarctic Seals (CCAS),5 the Convention for the Conservation of Antarctic Marine Living Resources (CAMLR Convention),6 the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol or Environmental Protocol),7 the annexes and appendixes to these conventions and the numerous recommendations, measures, decisions and resolutions adopted at the ATCMs and conservation measures and resolutions adopted at the meetings of the Commission for the Conservation of Antarctic Marine Living Resources (CAMLR Commission or CCAMLR). The idea that this group of international agreements is a “system” was proposed for the f irst time in the 1970s.8 These regulations constitute a peculiar international regime that functions as a restricted “co-empire” or “co-domain” (Article IV of the Antarctic Treaty prevents the Antarctic from being proposed as a common heritage of humanity) and in distinctive mode respect to other areas of concurrent sovereignty.9 Even though Article VI def ines the area located south of latitude 60°S as the Antarctic Treaty area of application, some elements of the ATS explicitly extend north of that line. Article I.1 of the CAMLR Convention up to the Antarctic Convergence,10 and Article 2 of the Madrid Protocol protecting “the Antarctic environment and its associated and dependant ecosystems,” which is not adequately reducible to a conventional limit (although it is necessary to consider that the operational dispositions are applied in general only south to parallel 60°S).

The Article IX of the Antarctic Treaty The main objective of the Antarctic Treaty was in 1959 and still is today ensuring that the sixth continent and its surrounding seas shall be used for peaceful purposes only.11 However, this aim needs to be operationalised. The more common way in which the States act to fulf il their international obligations is by exerting their sovereign powers. However, in Antarctica, the exercise of sovereignty is a very complex issue for political, legal and factual reasons. There were different positions among the 12 Antarctic Treaty’s signatories in 1959, and they have maintained and been deepened over time among the 56 current contracting parties. Article IV of the Treaty seeks to suspend any controversy about sovereignty in Antarctica, but it does not solve the point. In this context, f inding a particular way of governance was necessary. It was the ATCM, established by Article IX of the Treaty. Under Article IX.1, [r]epresentatives of the Contracting Parties named in the preamble to the present Treaty shall meet at the City of Canberra within two months after the date of entry into force of the Treaty, and thereafter at suitable intervals and places, for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and

5 Adopted in London, June 1, 1972, Entered into force March 11, 1978, Text in: 1080 UNTS 175. 6 Adopted in Canberra, May 20, 1980. Entered into force April 7, 1982. Text in: 1329 UNTS 47. 7 Adopted in Madrid, October 4, 1991. Entered into force January 14, 1998. Text in: 2941 UNTS 9. 8 Roberto Guyer, “The Antarctic System,” Recueil des Cours 139 (1973): 149–226. 9 Jorge Berguño, “El Tratado Antártico como Régimen Internacional,” Diplomacia 120 (2009): 23–34. 10 The Antarctic Convergence, or Polar Front, delimits a maritime area around the continent that differs from the rest of the oceans by strictly natural factors, such as salinity, ocean currents and temperature changes, which does not match a specif ic parallel. Article I.4 of the CAMLR Convention delimited it by a line connecting the following points along parallels and meridians: 50°S, 0°; 50°S, 30°E; 45°S, 30°E; 45°S, 80°E; 55°S, 80°E; 55°S, 150°E; 60°S, 150°E; 60°S, 50°W; 50°S, 50°W; 50°S, 0°. 11 Antarctic Treaty, Article I.

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formulating and considering, and recommending to their Governments, measures in furtherance of the principles and objectives of the Treaty. Watts highlights that the Treaty did not give a particular designation to the meeting convened under this article.12 The name f inally used, Antarctic Treaty Consultative Meeting, has an essentially political meaning. It highlights its consultative nature as the opposite of an administrative one, one of the points discussed at the 1959 Washington Conference. The meeting has to make recommendations and not propose and consider administrative measures.13 Its name was f inally established in the “Rules of Procedure” adopted in the I ATCM in 1961.14 These rules have been updated several times, according to the evolution of the ATS and changes in the ATCM.15 The current version of the rules was adopted in 2016.16 The meetings were held every two years from 1961 to 1994 and have been celebrated annually since then (except in 2020, when it was suspended because of the COVID-19 pandemic). In addition to the regular ATCMs, several special Antarctic Treaty consultative meetings (SATCMs) and meetings of experts on some issues have been realised.17 The consultative parties decided at the XVI ATCM (Bonn, 1991), the week after the Madrid Protocol was adopted at the XI-4 SATCM (Madrid, 1991), that in view of the increasing range and complexity of the issues coming before Consultative Meetings and in view of the need to adopt procedures to give effect to the Protocol on Environmental Protection to the Antarctic Treaty, it would be necessary that Consultative Meetings should in future be held annually.18 One of the aspects that made this change necessary was the creation of the Committee for Environmental Protection (CEP), established in Articles 11 and 12 of the Protocol. Its function is to provide advice and formulate recommendations to the Parties in connection with the implementation of this Protocol, including the operation of its Annexes, for consideration at Antarctic Treaty Consultative Meetings, and to perform such other functions as may be referred to it by the Antarctic Treaty Consultative Meetings.19 During the time taken for the Protocol’s entry into force, from 1991 to 1998, the consultative parties held several conversations at the ATCMs about the future operation of the CEP. Among other issues, they agreed that “[t]he meetings of the CEP should be held in the same location as,

12 Arthur Watts, International Law and the Antarctic Treaty System (Cambridge: Grotius Publications, 1992), 12–13. 13 Óscar Pinochet de la Barra, Medio siglo de recuerdos antárticos. Memorias (Santiago: Editorial Universitaria, 1994), 109. 14 I ATCM (Canberra, 1961), “Rules of Procedure,” Final Report, 14–15, https://documents.ats.aq/ATCM1/fr/ ATCM1_fr001_e.pdf. 15 María Luisa Carvallo, “Las Reuniones Consultivas: El sui generis Poder Legislativo de la Antártica,” Diplomacia 120 (2009): 49–50. 16 Decision 2 (2016), www.ats.aq/devAS/Meetings/Measure/632. 17 Antarctic Treaty Secretariat, “List of Meetings,” accessed March 31, 2023, www.ats.aq/devAS/Meetings?lang=e. 18 XVI ATCM (Bonn, 1991), Final Report, 36, para. 134, https://documents.ats.aq/ATCM16/fr/ATCM16_fr001_e.pdf. 19 Madrid Protocol, Article 12.1.

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and immediately before, the annual ATCM.”20 This idea was later developed when the ATCM took several decisions concerning the prior arrangement for implementing Article 12 of the Protocol and establishing the CEP. The consultative parties declared that they were conscious that the Protocol’s entry into force would have signif icant implications for the conduct of ATCM. In 1994, they agreed on creating a Transitional Environmental Working Group in the ATCM, which would be responsible for the environmental topics pending the Protocol’s entry into force.21 It met for the f irst time in the XIX ATCM (Seoul, 1995), where the parties also discussed some aspects of its operation. Most delegations considered that the working group should have the same essential functions as the CEP.22 When the Madrid Protocol entered into force, the ATCM adopted specif ic rules of procedure for the CEP.23 They have been updated several times. The current version was adopted in 2011.24 Currently, the CEP and the ATCM meet each year at the same time and place for a little more than a week. However, the CEP meeting starts and f inishes a few days earlier than the ATCM one. This difference is necessary because the ATCM must approve the CEP Final Report and all the environmental measures it recommends. In this sense, it is crucial to remember that the decisionmaking body is the ATCM and that the CEP’s function is only to provide advice and formulate recommendations on environmental matters.25 Despite that, it is very uncommon for the ATCM to make changes to the CEP proposals. The consultative parties usually adopt the measures, decisions or resolutions with the exact wording proposed by the CEP.

Participation The right to participate in the ATCMs’ decision-making processes is ruled by Articles IX.1 and IX.2 of the Antarctic Treaty. The f irst stated that the 12 original States Parties would meet regularly at the summits that later would be called ATCM. They are, per se, entitled to participate. The second rule is related to the States that have acceded to the treaty. Up to now (March 2023), they are a total of 44 States in addition to the original 12 parties. Here it is possible to distinguish between consultative and non-consultative States, depending if they are or are not entitled to participate in the ATCM decision-making processes. Any of these States must fulf il two conditions to be considered consultative party. First, it has to demonstrate “its interest in Antarctica by conducting substantial scientif ic research activity there, such as the establishment of a scientif ic station or the despatch of a scientif ic expedition.” It has been highlighted that this requirement only applies to the acceding consultative parties

20 XVII ATCM (Venice, 1992), Final Report, 19, para. 35, https://documents.ats.aq/ATCM17/fr/ATCM17_fr001_e. pdf. 21 XVIII ATCM (Kyoto, 1994), Final Report, 11–12, paras. 40–42, https://documents.ats.aq/ATCM18/fr/ATCM18_ fr001_e.pdf. 22 XIX ATCM (Seoul, 1995), Final Report, 11–12, paras. 41–47, https://documents.ats.aq/ATCM19/fr/ATCM19_ fr001_e.pdf. 23 Decision 2 (1998), www.ats.aq/devAS/Meetings/Measure/252. 24 Decision 2 (2011), www.ats.aq/devAS/Meetings/Measure/492. 25 Olav Orheim, Anthony Press and Neil Gilbert, “Managing the Antarctic Environment: The Evolving Role of the Committee for Environmental Protection,” in Science Diplomacy: Antarctica, Science, and the Governance of International Spaces, eds. Paul Arthur Berkman, Michael A. Lang, David W. H. Walton and Oran R. Young (Washington, DC: Smithsonian Institution Scholarly Press, 2011), 220, https://doi.org/10.5479/si.9781935623069.209.

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but not the original ones.26 On the other hand, although the Antarctic Treaty itself states this condition, some authors have contended that given the current environmental fragility of Antarctica, this interest could be better shown in other ways. There is also the case of the Netherlands, which obtained its consultative status in 1990 without having constructed any permanent infrastructure.27 The second condition is a political one: the recognition of the consultative party’s status has to be considered and approved by the current consultative States. The ATCM has developed a particular procedure for that.28 Currently, of the 56 Antarctic Treaty parties, 29 are consultative parties.29 They represent the most varied cultural worlds and their political, economic, social and legal systems have a great asymmetry. This diversity implies signif icant complexities to the ATCM operation, especially considering how the collective decisions are agreed upon.30 Although the CEP meetings are held together with the ATCMs, the criteria for participation in both fora differ. In the CEP, there is no distinction between categories of States. All the Environmental Protocol’s parties are entitled to be CEP members and appoint a representative. Experts and advisors with suitable scientif ic, environmental or technical competence may accompany the representatives.31 The ATCMs – and in general, the ATS meetings – are essentially inter-State fora. However, they have broad participation. Only the consultative States are part of the decision-making processes. Nevertheless, the non-consultative Parties, observers and experts, including international organisations, trade organisations and NGOs, have also been allowed to attend the meeting.32 They have the right to intervene and present documents and exert a signif icant influence on the whole political process.33 Of course, not all the parties have the same influence in the Antarctic governance. Indeed, the “G7 + 2” (the claimants plus the United States and Russia) are the most relevant countries in almost any area of Antarctic activity. This more signif icant influence is given in some cases because of its geographical situation closer to Antarctica (i.e. Chile, Argentina, Australia and New Zealand). However, it is provided mainly for their Antarctic scientif ic publications, the number of policy

26 Watts, International Law, 17. 27 Andrew D. Gray and Kevin A. Hughes, “Demonstration of ‘Substantial Research Activity’ to Acquire Consultative Status under the Antarctic Treaty,” Polar Research 35, no. 1 (2016), https://doi.org/10.3402/polar.v35.34061. 28 See Decision 2 (2017), www.ats.aq/devAS/Meetings/Measure?lang=e&id=653. 29 Antarctic Treaty Secretariat, “Parties,” accessed March 31, 2023, www.ats.aq/devAS/Parties?lang=e. 30 Luis Valentín Ferrada, “Five factors That Will Decide the Future of Antarctica,” The Polar Journal 8, no. 1 (2018): 87, https://doi.org/10.1080/2154896X.2018.1468623. 31 Madrid Protocol, Article 11.2; Decision 2 (2011), Rule 3. 32 Under Rules 2 and 31 of the ATCM Rules of Procedure (2016), the representatives of the CAMLR Commission, the Council of Managers of National Antarctic Programs (COMNAP) and the Scientif ic Committee on Antarctic Research (SCAR) are invited to the ATCM as observers. In addition, under Rule 39 and Rule 42 of the Rules of Procedure (2016), the following experts have been invited to one or more ATCMs in recent years: the Antarctic and Southern Ocean Coalition (ASOC), the International Association of Antarctica Tour Operators (IAATO), the International Group of Protection and Indemnity Clubs (IGP&I Clubs), the International Hydrographic Organization (IHO), the International Maritime Organisation (IMO), the International Oil Pollution Compensation Funds (IOPC Funds), the International Panel on Climate Change (IPCC), the International Union for Conservation of Nature (IUCN), the Secretariat of the Agreement on the Conservation of Albatrosses and Petrels (ACAP), the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO). 33 Ferrada, “Five Factors That,” 90.

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papers submitted to the ATCMs, CEP and CAMLR Commission meetings or the number of stations run or scientists and personnel deployed in Antarctica.34

Antarctic Treaty Consultative Meetings as an International Forum When the parties negotiated the Antarctic Treaty, they kept the power to agree among themselves without any intermediation. This was in two senses. First, they did not create an international organisation to manage these matters. Instead, they only established the ATCM as a forum to meet and discuss the topics of common interest related to Antarctica, especially those issues listed in Article IX. In the terminology used by international relations, the parties set up an “international regime” as def ined by Krasner and applied to the governance of the sixth continent by Oxman,35 Berguño36 and others. Mearsheimer and other authors have given it the category of “international institution,” because it is a set of rules or statements that forbids, requires or permits particular actions, stipulating how the States should cooperate and compete.37 It is also possible to describe what the Antarctic Treaty has created as something similar to an “autonomous institutional arrangement,” as Churchill and Ulfstein have def ined them. These institutional arrangements usually comprise a conference or meeting of the parties (COP, MOP) with decision-making powers, a secretariat, and one or more specialist subsidiary bodies. Such arrangements, because of their ad hoc nature, are not intergovernmental organizations (IGOs) in the traditional sense. On the other hand, as the creatures of treaties, such conferences and meetings of the parties, with their secretariats and subsidiary bodies, add up to more than just diplomatic conferences.38 Nevertheless, it should be noted that because of the distinction between consultative and nonconsultative States, the ATCM cannot be considered a meeting of the contracting parties. It should also be highlighted that the situation of the ATCM differs from the CAMLR Commission (CCAMLR) which is an international organisation.39 The second sense in which States keep for themselves the power to reach agreements in Antarctic matters is that ATCM only makes “recommendations.” Analysing Article IX.1, considering that

34 Prabir G. Dastidar, “National and Institutional Productivity and Collaboration in Antarctic Science: An Analysis of 25 Years of Journal Publications (1980–2004),” Polar Research 26, no. 2 (2007): 175–80, https://doi.org/10.1111/j.17518369.2007.00017.x; John R. Dudeney and David W.H. Walton, “Leadership in Politics and Science within the Antarctic Treaty,” Polar Research 31 (2012), https://doi.org/10.3402/polar.v31i0.11075; Rodolfo A. Sánchez, “A Brief Analysis of Countries’ Patterns of Participation in the Antarctic Treaty Consultative Meetings (1998–2011); Towards Leveling the Playing Field?” Polar Record 52, no. 6 (2016): 686–97, https://doi.org/10.1017/S0032247416000073. 35 Bernard H. Oxman, “The Antarctic Regime: An Introduction,” University of Miami Law Review. A Symposium: Antarctic Resources: A New International Challenge 33, no. 2 (1978): 285–97. 36 Berguño, “El Tratado Antártico como,” 23–34. 37 Lisa L. Martin and Beth A. Simmons, “International Organizations and Institutions,” in Handbook of International Relations, eds. W. Carlsnaes, T. Risse, and B. A. Simmons (London: Sage, 2013), 328. 38 Robin R. Churchill and Geir Ulfstein, “Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law,” American Journal of International Law 94, no. 4 (2000): 623. Although the authors consider the case of the Antarctic Treaty (656–657), they f inally conclude that it is somewhat similar to an autonomous institutional arrangement but is not one of them (658). Regardless, they published their paper before the establishment of the Antarctic Treaty Secretariat in 2004, and this situation could change their conclusion. I would like to thank Gustavo Ramirez-Buchheister our conversation on these topics. 39 CAMLR Convention, Articles VII to XIII.

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the representatives shall meet to “recommending to their Governments, measures” and bearing in mind the historical context in which this was stipulated, it seems possible to conclude that the drafters did not intend the ATCMs to be inter-State political meetings, as indeed they are. It is possible to assume that negotiators thought that ATCMs would rather be meetings of experts on Antarctic issues who would act on behalf of their countries but without exercising the legal representation of their States in terms of Article 7.2.c of the Vienna Convention on the Law of Treaties.40 In other words, they would not bind their States. Instead, they would be technical representatives who would recommend how to proceed, recommendations that the States would implement outside the margins of the ATCM if they accepted them. One of those attending what is considered the f irst preparatory meeting for what would become the Antarctic Treaty, held in 1955, recalled that the Chilean and Argentine delegations were the only ones of a diplomatic nature.41 In fact, the meeting was led by the French geographer Georges Leclavère, who was to be the chairman of the Scientif ic Committee on Antarctic Research (SCAR) between 1958 and 1963, when the Antarctic Treaty was negotiated, signed and entered into force42 – also attended renowned Antarctic scientists, such as the New Zealander Edmund Hillary,43 the American Laurence Gould (chairman of SCAR between 1963 and 1970),44 the British Vivian Fuch45 and the French polar explorer Paul-Emile Victor.46 The view of Antarctic issues as mainly technical and scientif ic matters changed at the 1959 Washington Conference. As the head of the Chilean Delegation recalled, the importance given to the attempt to agree on a treaty on Antarctica was demonstrated, among others, “by the care taken by many of the participating governments to choose as heads and members of their delegations personalities of the highest standing from their respective countries.” Indeed, Australia, New Zealand and South Africa were represented by their respective Foreign Ministers, the Soviet Union by the Deputy Foreign Minister and the other States by prominent diplomats and jurists.47 Notwithstanding, the idea that those attending the ATCMs would only be “technical representatives” seems to have remained. From the 1st to the 6th ATCM (1961–1970), the meetings’ f inal reports do not give an account of the discussions held. They only contain the “recommendations” agreed upon by the “representatives.” From the 7th to the 10th ATCM (1972–1979), the discussions are detailed in the report. However, they are mainly described under the formula “the Meeting considered that . . . ,” “the Working Group noted that . . .” or “the Representatives agreed on. . . .” In the cases where an opinion is individualised, it is stated that “the Representative of (such and such a country) stated that. . . .” From the 11th ATCM (1981) onwards, reference began to be made to “the Delegation of (such and such country). . . .” Finally, it evolved into the current formulation, “(such and such

40 Vienna, May 22, 1969. Entered into force January 27, 1980. Text in: 1155 UNTS 331. 41 Óscar Pinochet de la Barra, “Evolución político-jurídica del problema antártico,” Estudios Internacionales 14, no. 55 (1981): 382–83; Pinochet, Medio siglo de recuerdos, 80–84. About the 1955 meeting, see Paul-Emile Victor, El hombre a la conquista de los Polos (Barcelona: Ediciones Destino, 1965), 330–32. 42 His biography in Gordon de Q. Robin, “Obituaries (Georges R. Leclavère),” Polar Record 31, no. 176 (1995): 86–87. 43 His biography in Ian R. Stone, “Obituaries (Edmund Hillary),” Polar Record 45, no. 232 (2009): 92–94. 44 His biography in Gordon de Q. Robin, “Obituaries (Laurence McKinley Gould),” Polar Record 32, no. 180 (1996): 81–82. Also in Eric Hillemann, A Beacon So Bright: The Life of Laurence McKinley Gould (Northf ield, MN: Carleton College, 2012). 45 His biography in Bernard Stonehouse, “Obituaries (Vivian Fuch),” Polar Record 36, no. 199 (2000): 364–65. 46 His biography in Bertrand C. Imbert, “Obituaries (Paul-Emile Victor),” Polar Record 31, no. 179 (1995): 440–41. 47 Marcial Mora, “El Tratado Antártico,” Anales de la Universidad de Chile, 4th serie, 124 (1961): 179; it is also published in Revista Tribuna Internacional 8, no. 16 (2019), https://doi.org/10.5354/0719-482X.2019.55852.

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country) expressed the view that . . .” or “(such and such country) presented a document on . . .” In this way, perhaps inadvertently, the ATCM’s f inal reports gradually show how States, as subjects of international law, are replacing their “representatives” as the protagonists of such meetings.48 To date, the ATCM bring together a diverse group of people, most of them State off icials but coming from different areas. There are diplomats and scientists, people in charge of environmental issues or responsible for administrative, operational and logistical tasks of the Antarctic activities (many of them from the armed forces of their countries), as well as observers from other international regimes and even from some NGOs. However, as discussed, not all of them have the same participation in the ATCMs’ decision-making process.

The Decision-Making Process The decision-making process of the ATCM (CEP included) can be explained in four steps or phases, as Figure 22.1 shows. The f irst step, which could be called the planning phase, takes place at least one year before the ATCM in which a particular decision will be taken. It adopts two forms: the ATCM Preliminary Agenda and the ATCM Multi-Year Work Plan. Initially, a preparatory meeting was held a couple of months before the respective ATCM to negotiate and adopt the Preliminary Agenda. This situation changed in 1991 when the consultative parties decided that since ATCMs would be annual once the Environmental Protocol (Madrid Protocol) entered into force, such preparatory meetings were no longer necessary.49 Since then, at the end of each ATCM, the Preliminary Agenda for the next ATCM is negotiated and adopted. The Multi-Year Work Plan has been successfully used for the CEP meetings since 2007.50 This good result led the consultative parties to consider its use in ATCM. The discussion about this topic was initiated in 2009.51 In 2012, the consultative parties decided to develop a Multi-Year Strategic Plan for the ATCM, and a set of principles was established.52 Finally, in 2013, the f irst of these plans was adopted.53 It has been renewed every year since then. The strategic plan in force was adopted at the ATCM in 2022.54 The effectiveness of this work of planning the decision-making process in the ATCMs is somewhat diminished by what we might designate as the second phase, which occurs a few months before the ATCM. Indeed, nothing obliges the consultative parties to be bound by the Preliminary Agenda or the Multi-Year Strategic Plan when preparing for their participation in the next ATCM. Ultimately, these documents guide the work of the ATCM, but the parties are always free to push the discussion in the direction they want, according to their contingent situation or interests. The way to promote discussion at the ATCM is to submit documents to be analysed and discussed by

48 Antarctic Treaty Secretariat, “List of Meetings,” www.ats.aq/devAS/Meetings?lang=e. 49 ATCM XVI (Bonn, 1991), Final Report, 36, para. 136, https://documents.ats.aq/ATCM16/fr/ATCM16_fr001_e.pdf. 50 The idea of a Multi-Year Work Plan for the CEP was developed in 2006, ATCM XXIX – CEP IX (Edinburgh, 2006), CEP Report, par. 9, https://documents.ats.aq/ATCM29/fr/ATCM29_fr001_e.pdf. The f irst Multi-year Work Plan for the CEP was approved in 2007, ATCM XXX – CEP X (New Delhi, 2007), Final Report, 27, para. 83, https://documents.ats.aq/ATCM30/fr/ATCM30_fr001_e.pdf. 51 ATCM XXXII – CEP XII, Baltimore, 2009, 79, para. 322, https://documents.ats.aq/ATCM32/fr/ATCM32_fr001_e. pdf. 52 Decision 3 (2012), www.ats.aq/devAS/Meetings/Measure/513. 53 Decision 5 (2013), www.ats.aq/devAS/Meetings/Measure/551. 54 Decision 3 (2022), www.ats.aq/devAS/Meetings/Measure/771.

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Figure 22.1  ATCM decision-making process (f igure made by the author)

the meeting. Moreover, each consultative party can submit (alone or with other parties) the documents that it decided on. Therefore, what effectively determines the work and the discussions of each ATCM is the number and purpose of the papers submitted, regardless of what the Preliminary Agenda or the Multiannual Strategic Plan say. Concerning the Preliminary Agenda, this does not affect it to any great extent, as it only makes a very general mention of the most common topics dealt with in the ATCM. It is almost unchanged from one ATCM to the next. The situation of the Multi-Year Strategic Plan is more complex, as it considers a higher level of detail and, in addition, it orders the issues to be addressed in each ATCM several years in advance. This is possible in the work of the CEP and has worked well, mainly because management plans for the Antarctic specially protected areas (ASPAs) and Antarctic specially managed areas (ASMAs) must be reviewed at least every f ive years.55 In this way, when designating such an area or establishing or renewing its management plan, it is immediately possible to foresee how many more years ahead it will be necessary to review its status. However, this is not the case for the matters that do not relate to Annex V of the Environmental Protocol. The result of this is that the Multi-Year Strategic Plan is not (or at least has not been) very useful to guide the work of the ATCMs, or it does so only in a very secondary way. Thus, the ATCM decision-making process’ second phase is the submission of documents to be considered at the ATCMs or the CEP meetings. There are four types of documents. They are the ones that give rise to discussions and, eventually, serve as a basis for decision-making. First are the working papers (WPs) submitted by consultative parties or by the observers – that is, CAMLR Commission, the SCAR and the Council of Managers of National Antarctic Programs (COMNAP). These documents are about issues that must be discussed at the ATCM and that it has to take action about the proposal. Second are the secretariat papers (SPs)

55 Madrid Protocol, Annex V, Article 6.3.

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prepared by the Secretariat according to a mandate established at an ATCM, or which would, in the view of the Antarctic Treaty executive secretary, help inform the ATCM or assist in its operation. Third, there are the information papers (IPs). They could be papers submitted by consultative parties or observers that provide information in support of a WP or that are relevant to discussions at an ATCM, or documents submitted by non-consultative parties that are relevant to discussions at an ATCM, or papers submitted by experts invited to the ATCM that are relevant to discussions at a meeting. Finally, the background papers (BPs) submitted by any participant will not be introduced in an ATCM but are presented to provide information formally.56 The most important of these papers are the WPs since they will impulse the ATCM decisionmaking process. The SPs are also essential in the administrative operation of the Secretariat and the ATCM. The IPs are also relevant because they complement the WPs and represent the sort of document that a broader group of ATCM participants can present. The third phase is the law-making process itself at the ATCM. The meeting is organised in some plenary sessions and different working groups. During several days the documents presented, especially the WPs, are discussed and various agreements are adopted by consensus. The ATCM Final Act and the CEP Final Act reflect the content of these negotiations. In parallel, the draft version of the instruments that contain the agreements is written. They are approved together with the Final Act on the last day of the meeting. This stage is very closely related to the fourth phase concerning the entry into force of the measures agreed. From 1961 to 1994, the provisions adopted at ATCMs were called recommendations. To be legally binding, they had to be approved57 by all the consultative parties whose representatives were entitled to participate in the meetings to consider those measures.58 This process could take many years. As a former Antarctic Treaty executive secretary has said, If the process for reaching unanimous agreement on a recommendation appears tortuous, then at least it benef its from the undivided attention of all those attending the ATCM. Once agreement has been reached and the delegates return home, the Antarctic appears to go to the bottom of the attention pile, and often, very little national action is taken to implement the items agreed. As mentioned before, with the increase in the number of Antarctic Treaty Parties to the Antarctic Treaty the time spent on completion of the approval process according to Article IX, paragraph 4, has increased greatly; indeed, one might say to a ludicrous extent. Some recommendations of the 1990s, such as Recommendation XVIII-1 (Venice, 1992), which established the basic guidelines for tourism in Antarctica, have not yet become effective almost 20 years after they were adopted.59 Indeed, it never entered into effect and was withdrawn in 2017.60

56 Antarctic Treaty Secretariat, “Revised Rules of Procedure for the Antarctic Treaty Consultative Meeting,” Rules 48–51, https://documents.ats.aq/keydocs/vol_2/Rules_atcm_e.pdf; adopted by Decision 2 (2016). 57 See Vienna Convention on the Law of Treaties (1969), Article 2.b. 58 Antarctic Treaty, Article IX.4. 59 Johannes Huber, “The Antarctic Treaty: Toward a New Partnership,” in Science Diplomacy: Antarctica, Science, and the Governance of International Spaces, eds. Paul Arthur Berkman, Michael A. Lang, David W. H. Walton, and Oran R. Young (Washington, DC: Smithsonian Institution Scholarly Press, 2011), 90–91. https://doi.org/10.5479/si.9781935623069.89 60 Decision 3 (2017), www.ats.aq/devAS/Meetings/Measure/654.

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In 1995, a distinction was made between 1. “measures,” which contains provisions intended to be legally binding and with the exact approval requirement of Article IX.4 of the Antarctic Treaty; 2. “decisions,” ATCMs’ internal regulations and provisions about the Antarctic Treaty Secretariat operation; and 3. “resolutions,” or exhortatory texts.61 The Madrid Protocol (or Environmental Protocol) stipulated that amendments or modif ications to its annexes were to be agreed upon by a measure.62 However, all the current annexes established a “tacit approval” procedure. That means that, unless the measure specif ies otherwise, such amendments or modif ications will come automatically into force and shall be deemed to have been approved and shall become effective one year after its adoption unless a party informs that it wishes an extension of that period or that it is unable to approve the measure.63 In 2002, Annex V of the Protocol entered into force. It also provided a “tacit approval” procedure for the measures about management plans for the ASPAs and ASMAs, or the designation of historic sites and monuments (HSMs). Unless the measure specif ies otherwise, it will enter automatically into force and shall be deemed to have been approved 90 days after its adoption, except if a party informs that it wishes for an extension of that period or that it cannot approve the measure.64 It is essential to remember that the binding effect of different measures is the same; they only differ in how they enter into force. The consultative parties must incorporate the recommendations and measures in their domestic legal orders and implement them domestically to guarantee their fulf ilment by the people under their national jurisdictions. The diversity of legal systems involved and the large number of provisions adopted from 1961 have led to a complex approval process and a sometimes-ineffective practical application. Decisions are also legally binding provisions, but their scope is restricted to the function of ATCMs, including the operation of the Antarctic Treaty Secretariat. That means that although the consultative parties have to fulf il what they have agreed through them (for example, their contributions to the budget), their incorporation in their domestic legal orders is unnecessary. Decisions will enter into force from their adoption. Finally, resolutions can be relevant from a political point of view, but they are not legal norms. They are exhortatory texts or political agreements. So they do not “entry into force” since this is a condition or status of the legal provisions. They will be current since their adoption.

Recommendations and Measures The ATS has been successful in the peaceful co-administration of the southernmost continent. Indeed, having maintained peace in the Antarctic in absolute terms, the Antarctic Treaty must be considered “one of the most successful multilateral agreements negotiated in the entire twentieth

61 Decision 1 (1995), www.ats.aq/devAS/Meetings/Measure/221. 62 Madrid Protocol, Article 9.3. 63 Madrid Protocol, Annex I, Article 8; Annex II, Article 9; Annex III, Article 13; Annex IV, Article 15; Annex V, Article 12; and Annex VI (not in force), Article 13. 64 Madrid Protocol, Annex V, Articles 6.1 and 8.2.

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century.”65 It has also made signif icant achievements in regulating the exploitation of resources and in environmental protection. However, although no one predicts its collapse, there is evidence of instability and tension within and beyond this international regime.66 One of the causes, and at the same time consequences, of this instability and tension in the ATS is a relative paralysis of the regulatory capacities of the ATCMs, coupled with low participation in intersessional working groups. The increasing heterogeneity among the Antarctic Treaties consultative States has produced diff iculty in reaching agreements between parties with interests and visions that are often too far apart. According to Hemmings, “Formally, everything is as before, but for the f irst time since the beginning of this regime in the 1950s, several decades have passed without substantive legal instruments being developed within the ATS. Meanwhile, human activity continues to intensify.”67 It can be said that this assertion is not entirely accurate, since Annex VI on Liability Arising from Environmental Emergencies was adopted in 2005 after a long negotiation. But 18 years later, it is still not in force and only 20 of 28 States that have to approve it for its entry into force have done it. So, the problem is still there. It is also possible to argue that this lack of new norms reflects the system’s flexibility to allow parties to continue to work together without the need to innovate. Alternatively, in the same sense, it is possible to justify that there is enough scope under “consensus” to avoid more contentious issues becoming disputes. However, it is evident that in environmental protection and other areas of Antarctic activities, it is necessary to develop new and broader legal instruments (for example, on liability or about tourism or commercial bioprospecting), which has not been possible.68 From 1961 to 2022, more than 750 provisions have been agreed upon at the ATCMs. Not all of them are currently in force, nor are they legally binding. But it is a considerable number of collective decisions, each of which had to be negotiated and agreed upon. From this general perspective, the ATCM has been very successful as a political and legal forum. Nevertheless, this conclusion is not so clear if the different sorts of legally binding provisions are analysed – that is, the old recommendations (1961–1994), the measures about general matters (1995–2022), the measures about annexes to the Environmental Protocol (Madrid Protocol) amendment (1998–2022) and the measures about ASPA or ASMA management plans and HSM designations (2002–2022). From this point of view, it is possible to assert that the change made in 1995, replacing the old recommendations with measures, decisions and resolutions, was motivated by the drastic fall in the capacity to agree on specif ic matters.69 However, the new categories failed to revive the decision-making process. In fact, of the 24 measures adopted under the rules of Article IX.4 of the Antarctic Treaty from 1995 to date, only one is in force, three adopted more than a decade ago have not yet achieved the required number of approvals and the other 20 have been declared lapsed without ever having entered into force. The change only occurred in 2002, when Annex V of the Environmental Protocol entered into force. As has been seen, the measures on the approval of management plans and designation of HSM automatically enter into force by the time limit lapse (if the time limit is not interrupted).

65 Christopher Joyner, “Potential Challenges to the Antarctic Treaty,” in Science Diplomacy. Antarctica, Science, and the Governance of International Spaces, eds. Paul Arthur Berkman, Michael A. Lang, David W. H. Walton and Oran R. Young (Washington, DC: Smithsonian Institution Scholarly Press, 2011), 101. https://doi.org/10.5479/si.9781935623069.97. 66 Klaus Dodds and Alan D. Hemmings, “Britain and the British Antarctic Territory in the Wider Geopolitics of the Antarctic and the Southern Ocean,” International Affairs 89, no. 6 (2013): 1432, www.jstor.org/stable/24538450. 67 Hemmings, “Antarctic Politics,” 509–10. 68 Ferrada, “Five Factors That,” 88–90. 69 Ibid., 89.

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Accordingly, it could be argued that those measures have only entered into force because of their particular procedure. It is not so clear whether unanimity or consensus was initially required to adopt any agreement in the ATCM, mainly because these words were not expressly employed. However, today it is considered that consensus is suff icient.70 This understanding is partly supported by the CEP Rules of Procedures, which explicitly establish the consensus rule.71 A no longer current provision about the ATCM Multi-Year Work Plans from 2015 also referred to consensus,72 but the following decisions have not mentioned it.73 The difference between unanimity and consensus is very tenuous but has signif icant practical consequences. Adopting a decision unanimously means that all the consultative parties present at the meeting expressed their approval; adopting a decision by consensus implies that no one objects, so silence is equivalent to approval. In any event, it is essential to distinguish between the process of adopting a decision at the ATCM and the process of its entry into force. Indeed, as explained earlier, the old recommendations and the measures adopted according to Article IX.4 of the Antarctic Treaty requires the explicit approval of all the consultative parties whose representatives were entitled to participate in the ATCM where they were adopted. That means they require unanimity. The tacit approval of the other kind of measures is equivalent to the consensus requirement. Figure 22.2 shows a summary of this issue. When a consensus is not reached, the f inal reports and procedural decisions can be taken for the majority. However, these voting cases are exceptional.74 Because of that, it is often said that in the ATCM, the consultative parties do not have the right to vote but the right to veto. Of course, it is a play on words, but it is pretty accurate.

The Legal Effects of the Wording of Recommendation and Measures The fact that the States Parties’ representatives meet to agree on recommendations rather than to make agreements on their behalf (as would generally be the case at any diplomatic conference) is reflected in the wording of the provisions adopted. Except for Recommendation 8 (1964) on Agreed Measures for the Conservation of Antarctic Flora and Fauna (no longer in force), which follows the format of an international agreement,75 all the texts are worded in such a way that they only can be read as mere “recommendations.”

70 Rule 23 of the Rules of Procedure adopted in 1961 said that the Recommendations “shall be approved by all of the representative present,” which could be interpreted as requiring unanimity. Rule 24 of the current Rules of Procedure, adopted in 2016, says that without prejudice of the matters of procedure, decided by the majority, Measures, Decisions and Resolutions “shall be adopted by the Representatives of all Consultative Parties present.” The change of the verb “approve” to “adopt” could be read as a change from unanimity to consensus. 71 Rules 13 and 14 of the CEP Revised Rules of Procedure (2011). 72 Decision 4 (2015), www.ats.aq/devAS/Meetings/Measure/609. 73 The current provision about ATCM Multi-Year Work Plan is Decision 3 (2022), www.ats.aq/devAS/Meetings/ Measure/771. 74 Rules 15, 21, 25 and 53 (qualif ied majority) of the ATCM Rules of Procedure (2016) and Rule 14 of the CEP Revised Rules of Procedure (2011). 75 Alfred van der Essen, “La aplicación del Derecho del Mar en el continente Antártico,” in La Antártica y sus recursos. Problemas científ icos, jurídicos y políticos, 2nd ed., ed. Francisco Orrego Vicuña (Santiago: Instituto de Estudios Internacionales de la Universidad de Chile – Editorial Universitaria, 1997), 324–25.

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Date

Adoption

Entry into Force

Recommendations Measures (general rule) Measures (amendment in the Protocol’s annexes) Measures (management plans for ASPAs and ASMAs and designation of HSMs)

1961–1994 1995 up to date 1998 up to date 2002 up to date

Consensus Consensus Consensus Consensus

Unanimity Unanimity Consensus Consensus

Figure 22.2  ATCM decision-making requirements (f igure made by the author)

All the old recommendations and current measures adopted at the ATCMs follow this scheme: The Representatives, Recalling [or noting or a similar verb], [followed by the norms of any of the ATS treaties, or previous provisions adopted, or studies, relevant facts, purposes, or other elements proper to the preamble of a legal provision], Recommend to their governments that . . . [with a description of the measure or action recommended or urged to be taken]. This gives an essentially non-self-executing character to all measures adopted by the ATCMs.76 It goes beyond the discussion of whether they are indeed legally binding. Some authors think they are not,77 although others make a more ref ined distinction in this respect and consider that at least some of them undoubtedly create legal duties.78 According to Article IX.4, the former recommendations and, since Decision 1 (1995), the measures should be considered binding instruments. However, their wording and the differences in the treatment given to them in the several domestic legal systems of the Antarctic Treaty parties require a series of clarif ications. Their binding and legal nature as sources of international law should be understood within the framework of the broader discussion on the binding nature of resolutions reached in international regimes and international organisations. Beyond that, because of how they are drafted, and even considering recommendations and measures as binding rules, they are only compelling to the States as subjects of international law but cannot immediately affect persons under their jurisdiction. States must enact domestic legislation to enforce what has been agreed in the ATCMs against persons and entities under their control. In doing so, they must express what is decided in the ATCM in an appropriate language that compels, prohibits or permits specif ic conducts. In this sense, it cannot be forgotten that Article X of the Antarctic Treaty, as well as Article 2.2 of the CCFA, Article XXI of the CAMLR Convention and Article 13.1 of the Protocol, enshrine the commitment of States to enact domestic regulations to ensure and reinforce compliance with the objectives of each of these treaties. It is, in fact, an obligation that follows from the good faith with which international agreements must be concluded. This duty means that States, as subjects of international law, must exercise their regulatory powers at the domestic level to comply with international agreements.

76 On self-executing and non-self-executing treaties and international agreements, see, among others, Jean-Marie Henckaerts, “Self-Executing Treaties and the Impact of International Law on National Legal Systems: A Research Guide,” International Journal of Legal Information 26, no. 1–3 (1998): 56–159, https://doi.org/10.1017/S0731126500000494; Antonio Remiro Brotóns et al., Derecho internacional. Curso general (Valencia: Tirant Lo Blanch, 2010), 353–56. 77 Christopher C. Joyner, “Recommended Measures under the Antarctic Treaty: Hardening Compliance with Soft International Law,” Michigan Journal of International Law 19, no. 2 (1998): 401–43. 78 Johannes Huber, “Notes on the ATCM Recommendations and Their Approval Process,” in The Antarctic Legal System and Environmental Issues, ed. Gianfranco Tamburelli (Milán: Giuffrè Editore, 2006), 17–18.

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There is a notorious difference between the wording (and application) of the ATCMs’ recommendations and measures and those conservation measures adopted by the CCAMLR. This distinction, of course, is already evident in the constituent instruments of each of these regimes. While Article IX.1 of the Antarctic Treaty states that the representatives of the parties shall meet to “formulate, consider and recommend to their Governments measures,” the tenth paragraph of the Preamble of the CAMLR Convention states that “it is desirable to establish an appropriate mechanism for recommending, promoting, deciding and coordinating measures,” and Article IX.1.f says that one of the functions of the CCAMLR is to “formulate, adopt and review conservation measures.” While the ATCMs formulate, consider and recommend, the CCAMLR adopts and decides. The conservation measures’ wording is consistent with these different political and legal capacities.

Antarctic Treaty Secretariat Due to its nature (without the characteristics of an international organisation as such), for more than 40 years, the Antarctic Treaty lacked any permanent off ices, archives, administrative units or similar facilities. The consultative parties hosted the ATCMs in turn and the host country organised the meeting and later published the f inal report and the measures adopted.79 As Skully says, “The f irst feature of the Treaty that is striking from an institutional perspective is its lack of institutional provisions.”80 Nevertheless, as the years went by and the number of consultative parties and other participants in the meetings grew, it was every time more complex to administrate the increasing amount of documentation.81 From 1983 to 1992, it was discussed at the ATCMs the necessity of having permanent institutions to support its operation. However, it was not easy to reach a consensus on establishing a secretariat until the adoption of the Madrid Protocol (Environmental Protocol). At this moment, it was evident that it would be indispensable. Unfortunately, the agreement did not extend to its location. The two main proposed places were Buenos Aires and Washington, DC. The Argentinean candidacy seems to be part of the insertion of Latin America into the institutional framework of the ATS, receiving important support.82 The United States emphasised, on the contrary, that the secretariat should be located in the depositary government capital – i.e. in Washington, DC. By 1993, almost all the consultative States supported the Buenos Aires option. However, it was impossible to reach the necessary consensus because of the determined resistance of the United Kingdom. This situation can be explained by longstanding differences between the two countries (the Falklands/ Malvinas War of 1982 included) and the overlapping Argentinian, British and Chilean Antarctic territorial claims. The United Kingdom maintained its opposition until 2001, when after high-level bilateral contacts, Argentina announced that it had started a “comprehensive reorganisation” of its

79 Huber, “Notes on the ATCM,” 18. 80 R. Tucker Scully, “Alternativas de cooperación e institucionalización en la Antártica: Perspectivas para la década de 1990,” in La Antártica y sus recursos. Problemas científ icos, jurídicos y políticos, 2nd ed., ed. Francisco Orrego Vicuña (Santiago: Editorial Universitaria, 1997), 384. It is also published in English as R. Tucker Scully, “Alternatives for Cooperation and Institutionalization in Antarctica: Outlook for the 1990s,” in Antarctic Resources Policy: Scientif ic, Legal and Political Issues, ed. Francisco Orrego-Vicuna (Cambridge: Cambridge University Press, 1983), 281–96, https://doi.org/10.1017/ CBO9780511735462.021. 81 Carvallo, “Las Reuniones Consultivas,” 47. 82 The establishment of the Secretariat in Buenos Aires was also part of the development of the Argentinean Antarctic National Policy, see Miryam Colacrai, “La meta de la Secretaría del Tratado Antártico como ‘Política de Estado’ de la Argentina (1992–2001),” Relaciones Internacionales 13, no. 26 (2004): 57–68, https://revistas.unlp.edu.ar/RRII-IRI/ article/view/1568.

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national Antarctic Directorate, placing it under civilian leadership. The United Kingdom, on the other hand, announced its intention to intensify cooperation on Antarctic issues with Argentina and its “readiness to join a consensus on the location of the proposed Secretariat to the Antarctic Treaty.” The consent among the parties was reflected by Decision 1 (2001), and Measure 1 (2003) contains the Headquarters Agreement. On September 1, 2004, the Secretariat formally began its operations.83 However, from a strictly legal point of view, the Headquarters Agreement negotiated and adopted in 2003 had to wait some years to be signed after Measure 1 (2003) reached the necessary approvals to enter into force. In fact, on May 12, 2010, the minister of foreign affairs of the Republic of Argentina, Jorge Taiana, and the Chair of the XXXIII ATCM (Punta del Este, 2010), Dr Roberto Puceiro, signed the agreement.84 The Secretariat’s budget is funded and approved by the consultative parties at the ATCM each year, while f inancial regulations govern its management.85 There are also special regulations concerning the staff of the Secretariat.86 The mission of the Secretariat is to assist the ATCM and the CEP in performing their functions. According to Measure 1 (2003), and under the ATCM’s directions, the Secretariat carries out the following tasks: (1) supporting the annual ATCM and the meeting of the CEP; (2) facilitating the exchange of information between the parties required in the Treaty and the Environment Protocol; (3) collecting, storing, archiving and making available the documents of the ATCM; and (4) providing and disseminating information about the ATS and Antarctic activities.87 From 2004 up to now, the Antarctic Treaty Secretariat has been served by three executive secretaries, Johannes Huber from the Netherlands (2004–2009), Manfred Reinke from Germany (2009–2017) and Albert Lluberas from Uruguay (2017 up to date).

Conclusion The ATS is composed of a static part, represented by the international treaties that set its legal framework, and a dynamic part that has allowed it to adapt to new challenges. The ATCM has been the main forum that has made this evolution possible. From 1961 to 1994, meetings were held every two years and, after that, annually. The ATCM is not the only decision-making body within the ATS but is the most relevant one. Article IX of the Antarctic Treaty created the ATCM as the forum through which the representatives of the consultative States will meet “for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering, and recommending to their Governments, measures in furtherance of the principles and objectives of the Treaty.”

83 Luis Valentín Ferrada, “Latin America and the Antarctic Treaty System as a Legal Regime,” The Polar Journal 9, no. 2 (2019): 288, https://doi.org/10.1080/2154896X.2019.1685185; Johannes Huber, “Notes on the Past, Present and Future of the Antarctic Treaty Secretariat,” Diplomacia 120 (2009): 35–39. 84 Measure 1 (2003), www.ats.aq/devAS/Meetings/Measure/294; ATCM XXXIII – XIII CEP (Punta del Este, 2010), Final Report, par. 11, https://documents.ats.aq/ATCM33/fr/ATCM33_fr001_e.pdf; “Headquarters Agreement for the Secretariat of the Antarctic Treaty,” https://documents.ats.aq/keydocs/vol_1/vol1_15_Secretariat_Headquarters_ Agreement_e.pdf. 85 Decision 4 (2003), https://documents.ats.aq/keydocs/vol_1/vol1_17_Secretariat_Financial_Regulations_e.pdf 86 Decision 2 (2021), www.ats.aq/devAS/Meetings/Measure/734. 87 Antarctic Treaty Secretariat, “The Secretariat of the Antarctic Treaty,” www.ats.aq/e/secretariat.html.

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This def inition explains in part the successes of the ATCM but also its limitations. The same can be said of the consensus rule under which the ATCM operates. It forces durable political agreements to be reached but also makes it diff icult to move forward on the most challenging issues. In addition, according to Article IX.4 of the Antarctic Treaty, for legally binding agreements adopted in the ATCM to enter into force, they must be approved unanimously by the consultative parties. Although there are exceptions to this rule in some environmental matters, this makes the process of entry into force of the agreements adopted very slow. It is crucial to f ind ways to overcome the weaknesses of this Antarctic governance decision-making system to maintain its legitimacy and meet the main challenges it faces. The creation and operation of the Antarctic Treaty Secretariat have been a step forward in this regard by supporting the functioning of the ATCMs. Nevertheless, it seems essential that the States show their willingness to continue developing this legal regime and that the academic community collaborate permanently in the search for the political and legal mechanisms to make this possible.

Funding This work was funded by ANID-Millennium Science Initiative Program ICN2021_002 (Chile) and by the FONDECYT Regular Project number 1221378 (2022–2026) (Chile).

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Rights of Indigenous Peoples

23 COLONISATION AT THE POLES, INCOMPLETE DECOLONISATION AND THE CREATION OF INDIGENOUS PEOPLES Rachael Lorna Johnstone Introduction This chapter provides the overall context for the rights of Indigenous Peoples that are further developed in the rest of this section of the Handbook. It begins with the early legal theories of colonisation in territories that were self-evidently inhabited before describing the expansion of colonial powers in the Arctic and the (uninhabited) Antarctic. It then demonstrates that the legal justif ications for occupation of territory, problematic as they are, were not met in the polar regions and therefore those justif ications had to be revised in the 20th century to explain European and North American sovereignty claims at the poles. It moves on to examine the decolonisation movement under the United Nations (UN), which distinguishes between colonised Peoples living in distant territories (separated by an ocean – i.e. the “salt-water thesis”) and those in contiguous territories (today’s Indigenous Peoples). The chapter critiques the creation of Indigenous Peoples as a legal category under international law and argues that the rights recognised for Indigenous Peoples are a poor substitute for the self-determination promised to other Peoples who have been colonised.

Colonisation Colonisation and Colonialism The application of colonial and post-colonial theory in the uninhabited Antarctic may not be immediately obvious. Nevertheless, the British Antarctic project of the 1920s was explicitly colonial in design and the practice of the claimant States in the early 20th century reproduces important elements of imperial expansion from earlier decades.1 For the purposes of this chapter, colonisation is the claim of a People to legitimised control over a territory that is not their homeland.2 The territory need not be populated and can be contiguous

1 Shirley Scott, “Three Waves of Antarctic Imperialism,” in Handbook on the Politics of Antarctica, eds. Klaus Dodds, Alan D. Hemmings and Peder Roberts (Cheltenham: Edward Elgar, 2017), 37–38; Klaus J. Dodds, “Post-colonial Antarctica: An Emerging Engagement,” Polar Record 42 (2006): 59, https://doi.org/10.1017/S0032247405004857. 2 Cf, Scott, “Three Waves of Antarctic Imperialism,” 37.

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or distant from the homeland. In the examples in this chapter, the colonising People is invariably a recognised State. The Indigenous Peoples in the Arctic were profoundly affected by colonisation but from the colonisers’ point of view, they were at best a nuisance, something to be managed, subjugated or removed, unless their presence could help support the State’s territorial claim.3 Colonialism is the theoretical justif ication or justif ications for colonisation, creating, inter alia, the relationship between the colonising People, the colonised territory and any native Peoples. Decolonisation is examined later in this chapter according to the post-war UN framework that is achieved through the self-determination of (formerly) colonised Peoples, usually in the form of statehood according to the model already established by Western States.4 The UN did not recognise this right for all colonised Peoples (the salt-water thesis). There is no universally accepted def inition of Indigenous Peoples and the diverse Indigenous groups negotiating and promoting the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) preferred this on the basis that it would not be possible to agree a def inition that would include all relevant Peoples.5 Special Rapporteur Martinez-Cobo’s 1986 def inition is the most widely cited: Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.6 For this chapter, however, a simpler approach will be used (which has virtually the same results): Indigenous Peoples are Peoples who were colonised by another People but whose right to external self-determination is not recognised by contemporary international law, usually owing to the saltwater thesis.7 There are dozens of such groups in the Arctic. Therefore, it is inaccurate to discuss the Arctic as post-colonial in the chronological sense of being in a period after colonisation; colonisation is ongoing. The Antarctic is likewise not post-colonial as it has never and perhaps can never decolonise, certainly not in the sense of a native population restoring its sovereignty.8 The Antarctic Treaty may have put the sovereignty claims “on ice,” but they are suspended, not terminated and Dodds highlights various “performances of sovereignty” since 1959.9 In this chapter, the author will argue that

3 See Part 2.2 on relocations of Indigenous Peoples to support sovereignty claims in the Arctic. 4 See Part 6. 5 UN General Assembly, Resolution 61/295, Declaration on the rights of Indigenous Peoples. September  13, 2007 (UNDRIP). 6 J. R. Martínez Cobo, UN Special Rapporteur, Study of the Problem of Discrimination Against Indigenous Populations, 1987, UN Doc. E/CN.4/Sub.2/1986/7 and Add. 4 para 379. 7 The salt-water thesis and its legal basis are elaborated further in Part 6.1. 8 The author follows Dodds and Collis in using post-colonial to refer to a period in history after colonisation and postcolonial to refer to theoretical approaches: Klaus Dodds and Christy Collis, “Post-Colonial Antarctica,” in Handbook on the Politics of Antarctica, 50. 9 Klaus J. Dodds, “Sovereignty Watch: Claimant States, Resources, and Territory in Contemporary Antarctica,” Polar Record 47 (2011): 231, https://doi.org/10.1017/S0032247410000458.

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the discourse and practice of area management in the Antarctic can also be viewed as “performances of sovereignty.”

Legal Theories of Colonisation By the time Columbus landed at Guanahani, the Christian States of Europe had agreed amongst themselves that discovery alone of new (to them) lands was not suff icient to establish sovereignty. Instead, there must be a degree of effective occupation of the territory.10 Various papal bulls purported to conf irm the sovereignty of Spain and Portugal in the New World, including Inter Caetera and Dudum Siquidem of 1493 that would eventually be the basis for the Argentinian and Chilean claims to the Antarctic over four centuries later.11 Nevertheless, recognition by other European States was limited to Portuguese and Spanish settlements where there was de facto occupation.12 The Europeans were unwilling to justify their domination of their new territories by brute force alone and required theories to explain their colonisation of lands on which numerous Indigenous civilisations already lived. Francisco de Vitoria explained that while the Native Americans should be treated with humanity, colonisation was permissible in order to convert them to Catholicism and promote their moral advancement – by which it was intended to assimilate them to the European model of governance.13 According to de Vitoria, the (inevitable) “just war” in response to any resistance to European incursions, trade with Europeans, taking of resources or proselytism gave legal grounds for violence, plunder and slavery.14 Following the Reformation, a new secularised natural law was required.15 Sovereignty required effective occupation – an exercise of physical control over the land.16 John Locke reasoned that only transformation of the land in some form justif ied ownership and, a fortiori, State sovereignty. It is from the mixing of human labour with the land that ownership derives.17 Since the Native Americans were primarily nomadic and did not transform the land, they could not be said to be owners and their land was thus open to occupation by the newcomers.18 De Vattel further honed the approach such that only settled agriculture suff iciently similar to the European model constituted legal occupation. Nomadic land use was considered ineff icient and thus it was only right that the natives gave

10 See also Rachael Lorna Johnstone, “Colonisation at the Poles: A Story of Ineffective Occupation,” Yearbook of Polar Law 13 (2021): 93–124, 95–101. 11 Alejandra Mancilla, “The Moral Limits of Territorial Claims in Antarctica,” Ethics and International Affairs 32, no. 3 (2018): 339, 347. 12 Friedrich August Freiherr von der Heydte, “Discovery, Symbolic Annexation and Virtual Effectiveness,” American Journal of International Law 29, no. 3 (1935): 452–59. 13 Francisco de Vitoria, Reflections: On the Indians, Third Section, paragraph 18, available at: Teaching American History, “Document: De Indis. Francisco de Vitoria 1532,” accessed December 1, 2020, https://teachingamericanhistory.org/ library/document/de-indis/. 14 Ibid.; para 8 and Second Reconsideration, para 42; see also Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004), 21–27; Jérémie Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors, 2nd ed. (Leiden: Brill Nijhoff, 2016), 24. 15 Hugo Grotius, Mare Liberum (1609), trans. Richard Hakluyt (Indianapolis: Liberty Fund, 2004), Chapter 3. 16 Ibid., Chapter 1; see also John Salter, “Hugo Grotius: Property and Consent,” Political Theory 29, no. 4 (2001): 537, 545. 17 John Locke, Two Treatises of Government (1689, 1764), ed. Thomas Hollis (London: A Miller et al., 1764), available from Liberty Fund E-Books, https://oll.libertyfund.org/page/john-locke-two-treatises-1689, Chapter V, “On Property,” especially paras 32 and 40; see also Grotius, Mare Liberum, 27. 18 Locke, Two Treatises, Chapter V, para 46; but see Paul Corcoran, “John Locke on the Possession of Land: Native Title vs. the ‘Principle’ of Vacuum domicilium,” The European Legacy 23, no. 3 (2018): 225, on later Locke writings that defended native title.

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way to European settlers.19 Put rather more crudely by three American students of the 1930s, “The presence of a savage population, of aborigines, or of nomadic tribes engaged in hunting and f ishing, was generally disregarded by the European.”20 Although in practice declarations of sovereignty rarely specif ied the limits of the area claimed,21 the doctrine of effective occupation still limited sovereign claims to territory that was actually occupied in the European sense. Vattel explains, “The law of nations will, therefore, not acknowledge the property or sovereignty of a nation over any uninhabited countries, except those of which it has really taken actual possession, in which it has formed settlements, or of which it makes actual use.”22 This caveat would be applied increasingly loosely until by the 20th century, it was little more than a legal f iction.23 Even in the 21st century, State occupation of much of the polar regions is tenuous. Fitzmaurice has demonstrated that the term terra nullius did not come into common use until the 19th century as a way to explain retrospectively the occupation of lands that were already inhabited.24 The term would come into its own with increasing expeditions in the polar regions, shifting f irst from a notional territory that could not be occupied by any State to a territory that was ripe for occupation by any State.25

Colonisation of the Arctic Arctic Expansion Tools dating back over 40 millennia have been found in Siberia and it is not known exactly when all the distinct Indigenous Peoples of the region f irst settled or from where they came.26 Persistent human settlements are apparent from around 10,000 BCE. Civilisations from what is now Russia would go on to populate Fennoscandia (including Sápmi) to the West and across the erstwhile Beringia land bridge to the entire Americas all the way to Greenland.27 In Russia alone there are multiple distinct Indigenous Peoples, 41 of which are recognised by Russia. These include Saami, Nenets, Evenki, Chukchi, Inuit and Aleut Peoples. However, Russian law recognises and protects only those Peoples that are “small-numbered” – def ined by fewer than

19 Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, 6th ed. (Philadelphia: Johnson, Law Booksellers, 1844), 100, Book 1, Chapter XVIII, section 209; see also René Kuppe, “The Agricultural Argument and Sami Reindeer Breeding Rights: Reflections on Legal Philosophy in the Arctic,” in Philosophy of Law in the Arctic, ed. Dawid Bunikowski (Rovaniemi: University of the Arctic, 2016), 62–70, on the application of this theory in Sápmi. 20 Arthur S. Keller, Oliver J. Lissitzyn and Frederick J. Mann, Creation of Rights of Sovereignty through Symbolic Acts 1400– 1800 (New York: Columbia University Press, 1938), 4. 21 Ibid., 99 and 149. 22 Vattel, Law of Nations, 99, Book 1, Chapter XVIII, section 208; see also 100, sections 209–10 and 35–36, Book 1, Chapter VII, section 81. 23 Island of Palmas Case (Netherlands v United States of America) 1928, Permanent Court of Arbitration, Arbitrator: Huber, Reports of International Arbitral Awards 2 (1928): 829; Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island (France v Mexico) 1931, Arbitrator: King Vittorio Emanuele III of Italy, American Journal of International Law 26, no. 2 (1932): 390; Legal Status of Eastern Greenland (Denmark v. Norway), 1933, P.C.I.J. (ser. A/B) No. 53 (April 5). 24 Andrew Fitzmaurice, Sovereignty, Property and Empire 1500–2000 (Cambridge: Cambridge University Press, 2014), 302–31. 25 Ibid., 310–19. 26 Mary Durfee and Rachael Lorna Johnstone, Arctic Governance in a Changing World (Lanham, MD: Rowman and Littlef ield, 2019), 33. 27 Ibid., 33–35.

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50,000 members.28 As a result, some Indigenous Peoples, such as the Yakuts, Komi and Karelian Peoples, are not protected.29 Beginning in the 11th century CE, Russian (Slav) interest in the north was driven by resources rather than land, because the land was not considered worth colonising as such, being unsuited to agriculture.30 This is a common pattern throughout the Arctic. Fish, marine mammals and fur would be followed by timber, coal and minerals.31 However, Slavs only began to settle from the 13th century onwards. Colonisation was incremental. The early trading post of Novgorod would grow into a powerful city from the 12th century with a huge empire of its own, the Novgorod Republic. It dominated the Indigenous Peoples that it encountered, including Karelians and Saami, taxing them extensively. Novgorod was itself defeated by Russia and integrated in 1478, which led to increasing centralisation of industry and taxation, mediated by monasteries.32 Ivan the Terrible conquered Western Siberia and Russia exercised control to the Ob River by the end of the 16th century. In the 17th Century, its power reached the Lena River. Russia set up stations from which to administer the vast territory and tax the Indigenous populations. This was followed by increasing settlement by Russian farmers and mining.33 Thus, the Russian north became the natural resource base of the Russian economy that it remains today. Russia f irst explored the Aleutian Islands and Alaskan mainland in 1743 and the transient Russian presence was deemed suff icient for British explorer Cook to respect the Russian claim during his voyage 30 years later.34 Julia Lajus identif ies four periods and processes in Russian Arctic colonisation from the 18th century onwards: trade monopolies (18th century), governmental (1860–1914), railway (1920s) and socialistic (collectivisation) (1930s).35 Russia had mixed relations with the countries to the West, at times encouraging trade and transfers of technology; at others, perceiving its Nordic neighbours as dangerous competitors.36 Russia in fact only declared its sovereignty over its Arctic lands and islands in 1916 – mid-WWI – and in 1926 announced its adoption of the “sector theory” (originating in Canada), according to which Russia claimed sovereignty over all lands, including those as yet undiscovered, reaching to the North Pole, as well as any fast ice.37

28 Russia Federation Federal Law on the Guarantees of the Rights of the Indigenous Small-Numbered Peoples of the Russian Federation, adopted by the State Duma on April 16, 1999, approved by the Federation Council on April 22, 1999, article 1. 29 Durfee and Johnstone, Arctic Governance in a Changing World, 52–53. 30 Julia Lajus, “Colonization of the Russian North: A Frozen Frontier,” in Cultivating the Colonies: Colonial States and Their Environmental Legacies, eds. Christina Folke Ax, Niels Brimnes, Niklas Thode Jensen and Karen Oslund (Athens, OH: Ohio University Press, 2011), 2. 31 Ibid., 1. 32 Ibid., 3; see also Keller et al., Creation of Rights, 143–47. 33 N. Nosov, R. Ganelin and D. Likhacev, Lineamenti di Storia Dell’URSS, Vol. I: Dai Tempi Antichi Alla Grande Rivoluzione Socialista D’Ottobre, trans. Libreria Italia-URSS di Genova (Moscow: Edizioni Progress, 1980), 117 and 142. 34 Keller et al., Creation of Rights, 97 and 144. 35 Lajus, “Colonization of the Russian North.” 36 Ibid., 4–7. 37 Marlene Laruelle, Russia’s Arctic Strategies and the Future of the Far North (Armonk, NY: M.E. Sharpe, 2014), 95–96; see Donald R. Rothwell and Alan D. Hemmings, “Evolution of Polar Law,” in Research Handbook on Polar Law, eds. Karen Scott and David VanderZwaag (Cheltenham: Edward Elgar, 2020), 458–60 for discussion and references on the sector theory at the Poles.

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Colonisation of Sápmi was similarly gradual on the ground but supported by legal manoeuvres that denied Saami sovereignty over their ancient territories. According to Nordic doctrine, Saami used the land for reindeer-herding but their nomadic cultures precluded legal occupation. By contrast, farming (and mining) gave rise to ownership and, by extension, State sovereignty. From the late 19th century, Swedish law and policy recognised “real” Lapps (sic) as nomadic herders and Saami were effectively banned from farming – a policy that failed to reflect the complex reality of different Saami communities, families and economies.38 Occupation by Saami was legally impossible: nomadic Saami could not obtain sovereignty because they were nomadic, and Saami who were not nomadic could not obtain sovereignty as they were not considered Saami!39 Nevertheless, Swedish occupation did not pivot on physical occupation at all. According to a late 19th-century report to Parliament, Swedish sovereignty “f inally included the areas as yet unclaimed by cultivation, because about 300 years ago in our country, the fundamental principle began to be expressed and applied that such lands that lay unbuilt belong to God, the King and the Swedish Crown.”40 The much longer Saami use of the territory was conveniently ignored. Sweden also engaged in North American trade through the New Sweden Company from 1638 and even made a ceremony of possession (from the safety of the ship moored offshore) in what is now Delaware.41 Sovereignty of the Canadian Arctic was not a priority for British-Canadian administrations until the late 19th century and grew as a response to activities by Americans and Inughuit (Inuit from Avanersuaq in North Greenland) in the archipelago.42 Between 1898 and 1918, Canada supported seven expeditions to map and name the north, “all motivated by sovereignty concerns.”43 Royal Canadian Mounted Police posts were established on Baff in Island, Ellesmere Island and Devon Island.44 The sector claimed followed in 1925, initially as a symbol of discovery and intention to claim but with the intention of consolidation through effective occupation.45 However, as the legal doctrine of occupation was softened through judgements, such as those in the Island of Palmas, Clipperton Island and Eastern Greenland cases, there was less need for (white) boots on the ground. Canada also garnered support from Russia, which adopted the sector principle and made implicit trades with the United Kingdom and Norway not to challenge equally questionable “occupations” in the Antarctic.46

38 Reindeer Grazing Act 1898, SFS No. 337 1917, 138, cited in Patrik Lantto and Ulf Mörkenstam, “Sami Rights and Sami Challenges: The Modernization Process and the Swedish Sami Movement, 1886–2006,” Scandinavian Journal of History 33, no. 1 (2008): 26, 30–31. 39 Patrik Lantto, “The Consequences of State Intervention: Forced Relocations and Sámi Rights in Sweden, 1919–2012,” Journal of Ethnology and Folkloristics 8, no. 2 (2014): 53, especially 54 and 59. See also Åsa Össbo and Patrik Lantto, “Colonial Tutelage and Industrial Colonialism: Reindeer Husbandry and Early 20th Century Hydroelectric Development in Sweden,” Scandinavian Journal of History 36, no. 3 (2011): 324, 338 and Lantto and Mörkenstam, “Sami Rights and Sami Challenges,” 26, 29–34. 40 Appendix to the Parliamentary Record for 1886, quoted in Kuppe, “The Agricultural Argument,” 49. 41 Keller et al., Creation of Rights, 142. 42 Documents on Canadian External Relations: The Arctic 1874–1949, eds. Janice Cavell and Joel Kropf (Ottawa: Global Affairs Canada, 2016), xiii–xvii and xxiv; Peter Schledermann, “The Muskox Patrol: High Arctic Sovereignty Revisited,” Arctic 56 (2003): 101; see also Margaret Moore, “Is Canada Entitled to the Arctic?” Canadian Journal of Philosophy (2019): 1, https://doi.org/10.1017/can.2019.8; Keller et al., Creation of Rights, 85–88 on early “discovery.” 43 Documents on Canadian External Relations, xviii. 44 Ibid., xxvi. 45 Ibid., xxviii. 46 Ibid., xxvviii–xxix; see especially “Despatch from Secretary of State for Dominion Affairs to Governor General,” January 17, 1927 (item 423); “Despatch from Acting Secretary of State for Foreign Affairs to Chargé d’affaires, Legation of United Kingdom in Norway,” October 23, 1928 (item 435). See also Fitzmaurice, Sovereignty, Property and Empire,

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Colonisation of Greenland more clearly meets the salt-water criterion of occupation by a distant People traveling across the open seas (i.e. salt-water between the old and new territories of the colonising power). There is evidence of occupation for over 4,000 years though the present inhabitants are descended from a wave of immigration from the Canadian archipelago around 2,000 years ago. Two main Norse settlements were established in the 10th century but interactions with the Inuit were limited and the Norse were gone by the 15th century.47 Hans Egede, a Danish-Norwegian missionary, set out in 1721 to convert the Norsemen but, f inding none, set about converting the Inuit instead. Greenland was a classic colony – a major resource base for train oil, sealskin, narwhal tusk, whalebone and fox furs operated by the Royal Greenland Trading Department, which held a monopoly until 1950. Differential wage rates and segregated education persisted until the latter part of the 20th century.48 The American Peary had visited Avanersuaq at the turn of the 20th century but the US renounced any claim to sovereignty in 1916 when it purchased the Danish West Indies for 25 million USD.49 Norwegian hunters and whalers were active on the east coast but, in the 1920s, began to build structures, including a radio station.50 This culminated in a declaration of Norwegian sovereignty on July 10, 1931, over a sector of East Greenland that would be settled in Denmark’s favour by the Permanent Court of International Justice in 1933.51 Inuit views on the matter are not recorded in the judgement. When Denmark joined the UN in 1945, it listed Greenland as a non-self-governing territory (colony). The process to integrate Greenland as a county of Denmark was swift. In 1952, Denmark sent the Landsråd (Greenland Provincial Council) an offer for integration. The Council was chaired by the Danish governor, was not a legislative body and had no representatives from north or east Greenland. It did not have the authority to decide on major constitutional questions.52 Nevertheless, it was given two days to debate integration as a county of Denmark or the status quo. Although the Faroe Islands had enjoyed Home Rule since 1948, this option was not presented to the Provincial Council, let alone independence. The Council was shown only the draft provisions concerning the proposed status for Greenland and no other terms of the new constitution on which Danes – but not Greenlanders – would vote.53 There was no consultation with the wider Greenlandic community. The Council voted for integration and the promise of equality with Danes – a promise yet to be fulf illed.54

316, on a similar understanding between Denmark and Norway to recognise respective sovereignty over Greenland and Spitsbergen. 47 See Greenland and Iceland in the New Arctic, Recommendations of the Greenland Committee Appointed by the Minister for Foreign Affairs and International Development Co-operation (Reykjavík: Iceland Ministry of Foreign Affairs, 2021), 45 (on medievalera trade between the Norse and the Inuit in Greenland). 48 See Rachael Lorna Johnstone, “The Impact of International Law on Natural Resource Governance in Greenland,” Polar Record 56 (2020): e21, https://doi.org/10.1017/S0032247419000287. 49 Convention between the United States and Denmark for cession of the Danish West Indies, August 4, 1916, American Treaty Series 629 (1916): 27. 50 Johnstone, “The Impact of International Law,” 2. 51 Eastern Greenland case. 52 Rachael Lorna Johnstone, “From the Indian Ocean to the Arctic: What the Chagos Archipelago Advisory Opinion Tells Us about Greenland,” Yearbook of Polar Law 12 (2020): 318–19; see also Gudmundur Alfredsson, “Greenland and the Law of Political Decolonization,” German Yearbook of International Law 25 (1982): 290. 53 Johnstone, “The Impact of International Law,” 3–4. 54 Johnstone, “From the Indian Ocean,” 319; see also Terto Ngiviu, “The Inughuit of Northwest Greenland: An Unacknowledged Indigenous People,” Yearbook of Polar Law 6 (2016): 142.

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The Spitsbergen Archipelago (Svalbard) had no native population but was used by European f ishers and hunters from the 16th century onwards.55 Permanent settlements were only established in the early 20th century with the growth of coal mining.56 Norway, Russia and the United Kingdom began to contest sovereignty while the US insisted that Svalbard was terra nullius and so must remain (a position the US would echo in the Antarctic).57 The matter was ultimately settled by treaty in 1920 according to which Norwegian sovereignty over the islands was recognised with access of treaty-party nationals to the islands and their resources preserved.58

Forced Relocations Relocations of Indigenous communities – mostly forced – are also found throughout the Arctic and in some cases were directly aimed at securing sovereignty. In 1877, in response to concerns regarding use by Norwegian hunting parties, Russia resettled Nenets families on Novaya Zemlya.59 The settlement thrived for a few decades but the Nenets would become outnumbered by Russian military in the 20th century and relocated back to the mainland in 1957 to facilitate Russian nuclear testing. Chukchi families were moved in 1926 to Wrangel Island to ward off any Canadian or American incursion before being returned in the 1970s when Russia discovered it could assert its sovereignty equally effectively through the creation of a nature reserve on the island.60 At the end of the 19th and beginning of the 20th centuries, Sweden forcibly moved herders further south in efforts to spread their husbandry practices to other Saami that the Swedish State deemed insuff iciently traditional (nomadic). Those selected for relocation were often “troublemakers” deemed insuff iciently obedient to the State authorities.61 The relocations led to tensions between different Saami communities (as well as Scandinavian farmers) that remain to this day.62 Denmark moved Inuit families to create the town of Ittoqqortoormiit in 1925 in response to increasing Norwegian activities on the east coast and pretensions to sovereignty that would culminate in the aforementioned ruling of 1933.63 The town is over 800 km from the nearest Inuit settlement and, even today, can only be reached by air via Iceland. In 1953, the Inughuit were not even asked before they were given three days’ notice of relocation to facilitate the expansion of the US defence facility at Pituff ik (Thule base).64

55 Fitzmaurice, Sovereignty, Property and Empire, 311. 56 Ibid. 57 Ibid., 311–12; see also Keller et al., Creation of Rights, 82–84. 58 Treaty concerning the Archipelago of Spitsbergen, February 9, 1920, League of Nations Treaty Series 2, no. 1 (1920): 7. See also Chapter 28 of this volume. See also Keller et al., Creation of Rights, 84, suggesting that Norwegian sovereignty over Svalbard was part compensation for Norwegian suffering under German occupation during World War I. 59 Lajus, “Colonization of the Russian North,” 7. 60 Hampton Sides, “Russian Refuge,” National Geographic, May 2013, www.nationalgeographic.com/magazine/2013/05/ wrangel-island/; see also Documents on Canadian External Relations, xxiv–xxv discussing Stefansson’s proposed exploration and occupation of Wrangel island, outside Canada’s “sector.” See also Lukas Allemann, “Soviet-Time Indigenous Displacement on the Kola Peninsula: An Extreme Case of a Common Practice,” in Routledge Handbook of Indigenous Peoples in the Arctic, eds. Timo Koivurova et al. (Routledge, 2020), https://doi.org/10.4324/9780429270451 61 Lantto, “The Consequences of State Intervention,” especially 56–59. 62 Ibid., 69. 63 Eastern Greenland case. 64 Johnstone, “From the Indian Ocean,” 319.

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Canadian transfers of Inuit from the 1920s to the 1950s and their often-disastrous consequences are well-documented.65 While the government claimed that access to resources for Inuit was a factor, it acknowledged that “sovereignty concerns” were also behind at least some of the moves.66 Survivor Martha Flaherty describes being “planted like human flagpoles with little help or support.”67

Indigenous Occupation: Physical and Psychological Elements Indigenous occupation in the Arctic and beyond is now well documented but was also known about by the f irst explorers, even as they tried to deny it. Indigenous Peoples explored, named, mapped and managed resources for centuries before the f irst European contact and much more effectively. They applied eff icient legal systems over their own members, including rules of property, family law, land and resource use, criminal law, education, ius in bello and a welfare system (sharing).68 Moreover, these were not simple primary rules of “primitive communities” as famously def ined by HLA Hart but included secondary rules of recognition, change and adjudication.69

65 See e.g. Alan Rudolph Marcus, Relocating Eden: The Image and Politics of Inuit Exile in the Canadian Arctic (Hanover and London: University Press of New England, 1995); Frank James Tester and Peter Kulchyski, Tammarmiit (Mistakes): Inuit Relocation in the Eastern Arctic, 1939–63 (Vancouver: UBC Press, 1994); Sarah Bonesteel, Canada’s Relationship with Inuit: A History of Policy and Program Development: The 1939 Re Eskimo Decision and its Impact on Crown/Inuit Relations (Minister of Public Works and Government Services Canada, 2006), 27–30, https://publications.gc.ca/site/eng/9.851375/publication.html 66 Bonesteel, “Canada’s Relationship with Inuit,” 29 and 187. 67 Lisa Gregoire, “Carleton University to Host Symposium on Inuit Relocations,” Nunatsiaq News, February 16, 2021, https://nunatsiaq.com/stories/article/carleton-university-to-host-symposium-on-inuit-relocations/. 68 See Johnstone, “Colonisation at the Poles,” 111–15 (for an expanded account of Indigenous occupation and legal systems). 69 H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon, 1997), 91–97.   See Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations, First Progress Report, by al Alfonso Martínez, Special Rapporteur, 1992, UN doc. E/CN.4/Sub.2/1992/32 (Alfonso Martínez, First Progress Report), para 147; Brendan Tobin, “Custom Rising: Indigenous Law and Legal Philosophy as Catalysts for Intercultural Justice and Good Global Governance,” in Philosophy of Law in the Arctic, 130; Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings, eds. Michael Asch, John Borrows and James Tully (Toronto: University of Toronto Press, 2018); Sharon Venne, “Old Woman Bear Sitting Next to the Creator (Notokwew Muskwa Manitokan): A Short Story of Decolonization Efforts,” in Indigenous Peoples’ Rights in International Law: Emergence and Application, eds. Roxanne Dunbar-Ortiz et al. (Kautokeino and Copenhagen: Gáldu and International Work Group for Indigenous Affairs, 2015); Mariano Aupilaarjuk et al., Interviewing Inuit Elders: Perspectives on Traditional Law (Iqaluit: Nunavut Arctic College, 1999); John Borrows, “Heroes, Tricksters, Monsters, and Caretakers: Indigenous Law and Legal Education,” McGill Law Journal 61, no. 4 (2016): 795; Lisa Qiluqqi Koperqualuk, Traditions Relating to Customary Law in Nunavik (Quebec: Nunavik Publications, 2015); Myléne Jaccoud, “La justice dans les sociétés inuites traditionelles,” Revue internationale de criminologie et de police technique XLIX, no. 2 (1996): 131; JFK Law Corporation, “Making Space for Indigenous Law,” January 12, 2016, https://jfklaw.ca/making-space-for-Indigenous-law/on Canada.   See also Søren Rud, Colonialism in Greenland: Tradition, Governance and Legacy (Cham: Palgrave Macmillan, 2017), 20, Table 2.1 “Greenlandic Customs and Rules” on Greenland.   See also Christina Allard and Susan Funderud Skogvant, Indigenous Rights in Scandinavia: Autonomous Sami Law (Abingdon: Routledge, 2016); Leena Heinämäki, Sanna Valkonen and Jarno Valkonen, “Sámi Relationship with the Land: What Does the Law Fail to Recognize?” in Philosophy of Law in the Arctic, 71–84, on Sami law.   See also Spearim, “Frontier War Stories” (especially with Libby Connors, Angus Murray Wiradjuri and Fred Cahir); Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Abingdon: Routledge, 2015); Ambellin Kwaymullina, “Aboriginal Nations, the Australian Nation-State and Indigenous International Legal Traditions,” in Indigenous Peoples as Subjects of International Law: We Were Here First, ed. Irene Watson (Abingdon: Routledge, 2017) on Australia.

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International legal theories – which is to say European legal theories – deliberately and often retrospectively – ignored the sophisticated legal systems of the Peoples whose lands they colonised and the relationships that Indigenous Peoples had with their land and resources.70 It was not a relationship of control and ownership, not one of the dominion according to the Western legal tradition, but one of belonging and responsibility.71 Indigenous Peoples may not have shared the arrogance of believing they could control the earth or have known the term sovereignty but they nevertheless enjoyed sovereignty in the sense of exercising jurisdiction over their affairs and being answerable to no higher authority.72 In the 16th century, de Vitoria recognised Indigenous legal orders, admitting that “there is a certain method in their affairs, for they have polities which are orderly arranged and they have def inite marriage and magistrates, overlords, laws, and workshops, and a system of exchange, all of which call for the use of reason.”73 Four centuries later, examining the earliest exchanges between European and colonised Peoples around the world, Special Rapporteur Alfonso Martínez similarly concluded that “there can be no doubt that Indigenous nations had developed, at the time of their early contacts with nonIndigenous societies in all parts of the world, perfectly functional and effective forms of political organization and governance.”74 European States entered treaties with Indigenous Peoples as sovereign nations, treaties in international law between two equal parties. In other words, Indigenous Peoples had legal personality for just long enough to enter treaties to alienate their land and resources.75 Treatymaking is a paradigmatic expression of international legal personality or, as Alexandrowicz puts it on his work on colonial India, “one of the essential attributes of external sovereignty.”76 In fact, prior to the 19th century, colonial States acknowledged the legal personality of the Indigenous Peoples whose lands they conquered.77 Alfonso Martínez continued that “the European parties were very much aware that their indigenous counterparts indeed acted as sovereign nations.”78 In the centuries to follow, States have increasingly subsumed treaties under State constitutions – allowing States unilaterally to modify them or simply choose not to uphold them, a process Isabelle Schulte-Tenckhof calls “the paradigm of domestif ication.”79

70 Alfonso Martínez, First Progress Report, para 143; see also Anghie, Imperialism, Sovereignty and the Making of International Law, 61. 71 Irene Watson, “First Nations and the Colonial Project,” Inter Gentes 1, no. 1 (2016): 30, 35–37; see also at 32; Watson, Aboriginal Peoples, 15 and 37; Heinämäki et al., “Sámi Relationship with the Land,” 76–79. 72 Alfonso Martínez, First Progress Report, para 147. 73 De Vitoria, On the Indians, First section, para 23. 74 Alfonso Martínez, First Progress Report, para 143. 75 Watson, Aboriginal Peoples, 150–51, 158; see also Isabelle Schulte-Tenckhoff, “Reassessing the Paradigm of Domestif ication: The Problematic of Indigenous Treaties,” Revue d’études constitutionnelles (1998): 239, 246–47 and 254; Ward Churchill and Glenn T. Morris, “Key Indian Laws and Cases,” in The State of Native America, ed. M. Annette Jaimes (Boston: South End Press, 1992), 18. 76 C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (Oxford: Clarendon Press, 1967), 149, cited in Schulte-Tenckhoff, “Reassessing the Paradigm,” 268. 77 Schulte-Tenckhoff, “Reassessing the Paradigm,” 246; Compare Western Sahara, advisory opinion, ICJ Reports 1975: 2, para 80. 78 Alfonso Martínez, First Progress Report, para 139. 79 Schulte-Tenckhoff, “Reassessing the Paradigm,” 257–63.

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Colonisation of the Antarctic80 Colonisation of the Antarctic was a simpler affair in the absence of Indigenous Peoples whose civic orders needed to be denied. However, most of the continent itself is even less amenable to physical occupation than the Arctic lands considered earlier. European sealers had hunted extensively in the Southern Ocean from the 18th century and, when they had decimated the seal stocks, moved on to whaling with similar results.81 Māori sailors visited the Southern Ocean and may have been the f irst to see the Antarctic continent or at least the frozen ice-shelf as early as the seventh century. Further voyages in the 13th century are well-recorded in Māori history.82 Bellingshausen and Lazarev saw the continent in 1820 on a Russian expedition, quickly followed by British and then American expeditions. Explorations intensif ied at the turn of the 20th century (the age of exploration). At f irst, sovereignty over Antarctic and sub-Antarctic islands which hosted whaling stations were more urgent,83 but the f irst sovereignty claim to the continent came from the United Kingdom in 1908 and included parts of Patagonia, before being revised in 1917 to remove the South American mainland.84 It was followed by New Zealand (1923), France (1924), Australia (1933), Norway (1939) and Argentina and Chile (1940).85 The British had pretensions to the entire continent and negotiated with their antipodean former colonies to this effect until reverting to the current claim in 1928.86 The Soviets left a bust of Lenin atop a research station at the Southern Pole of Inaccessibility just one year before the Antarctic Treaty.87 (The station was soon abandoned but the bust of Lenin remains and is a protected Historic Site or Monument.88) The Russia (as a continuator of the USSR) and the United States reserve their right to sovereignty claims based on historic activities by their own explorers but continue to argue for a different regime of sovereignty in the ice-covered continent.89 Germany, which had made symbolic claims in 1938–39 through flyover, mapping, photographing and flag-planting, was forced to renounce any claim in the post-war settlement (as did Japan, which had not made any formal claim).90 Mancilla classif ies the legal arguments for sovereignty along two main themes, each divided into four sub-grounds:

80 See also Chapter 3 of this volume. 81 Antje Neumann, Wilderness Protection in Polar Region (Leiden: Brill, 2020), 124; Jennifer Angelini and Andrew Mansf ield, “A Call for U.S. Ratif ication of the Protocol on Antarctic Environmental Protection,” Ecology Law Quarterly 21, no. 1 (1994): 163–242, 171–72. 82 Priscilla M. Wehi et al., “Transforming Antarctic Management and Policy with an Indigenous Māori lens,” Nature Ecology & Evolution (2021), https://doi.org/10.1038/s41559-021-01466-4. 83 Peder Roberts, “The Politics of Early Exploration,” in Handbook on the Politics of Antarctica, eds. Klaus Dodds, Alan D. Hemmings, and Peder Roberts (Cheltenham: Edward Elgar, 2017), 323. 84 Alejandra Mancilla, “The Moral Limits,” Ethics and International Affairs 32, no. 3 (2018): 339, 342–43. 85 Ibid. 86 Scott “Three Waves of Antarctic Imperialism,” 41. 87 Kaisa Alliksaar, “The Pole or Bust! The Loneliest (and Coldest) Lenin,” RadioFreeEurope, December 15, 2019, www. rferl.org/a/the-loneliest-and-coldest-lenin-antarctica/30319805.html, on the bust of Lenin at the Southern Pole of Inaccessibility. 88 “List of Historic Sites and Monuments,” Secretariat of the Antarctic Treaty, accessed May 10, 2021, https://documents. ats.aq/recatt/att659_e.pdf. 89 Shirley Scott, “Antarctic: Competing Claims and Boundary Disputes,” in Research Handbook on Polar Law, 151–52; Fitzmaurice, Sovereignty, Property and Empire, 323. 90 Scott, “Antarctic: Competing Claims,” 152–53.

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Rachael Lorna Johnstone Basis of Antarctic Sovereignty Claims (adapted from Mancilla, 2019)91 Connection-Based Grounds

Off icial Documents or Geography

First exploration and discovery Scientif ic exploration Exploitation of natural resources State activity

Uti possidetis Transfer of territory Geographical continuity and contiguity The sector principle

Of these, only exploitation of resources and State activity bear any relation to the classical theory of effective occupation and in the Antarctic, they are thin indeed. It remains impossible even in the 21st century to exercise dominion over the massive continent: around 100 research stations are scattered over 14 million km2, with a high summer population of around 4,000 scientists and around 50,000 tourists annually, mostly day-trippers to the peninsula.92 The Argentinian and Chilean claims do not rely on occupation at all but are based on the historic papal bulls and treaties that carved up the South American continent in the 15th century – around four centuries before any of their nationals would see Antarctica.93 Naming, mapping and passing of laws regarding resource use remain the strongest indicators of sovereignty.94 Renaming remains in fashion with the British declaration of Queen Elizabeth Land in the entirely unoccupied (lacking a single research base) 437,000 km2 sector in 2012.95 Australia, the United Kingdom and France issue Antarctic postage stamps. Argentina, more creatively, includes its Antarctic territory in the national television weather forecast and in the maps used in schools.96 (National Danish television, meanwhile, covers many European cities in its weather forecasts but not Greenland, even as they are transmitted in Greenland!) In the last few decades, the claimant States’ justif ications for exercising sovereign powers in the Antarctic are increasingly based on promises not to occupy and not to transform the land in any physical way but rather to protect it from human impacts.97 There are increasing calls to protect the great wildernesses at both poles.98 In the Antarctic, one means to do so is through the designation of Antarctic

91 Mancilla, “The Moral Limits,” 344–48. 92 Alejandra Mancilla, “Four Principles to Justify Claims to Jurisdiction and to Natural Resources in Antarctica” Yearbook of Polar Law 11 (2019): 170, 171; Alan D. Hemmings, “Antarctic Politics in a Transforming Global Geopolitics,” in Handbook of Politics in the Antarctic, 507, 512. See also CONMAP, “Antarctic Information,” accessed December 1, 2020, www. comnap.aq/antarctic-information/; Neumann, Wilderness Protection in Polar Region, 77 and 81. 93 See also Chapter 3 of this volume. 94 Nicoletta Brazzelli, “Heroic and Post-Colonial Antarctic Narratives,” in Handbook on the Politics of Antarctica, 71 and 74; Klaus Dodds and Christy Collis, “Post-Colonial Antarctica,” in Handbook on the Politics of Antarctica, 55. 95 “Queen Elizabeth Land,” UK Foreign and Commonwealth Off ice, December 18, 2002, www.gov.uk/government/ news/queen-elizabeth-land; see also Luis Valentín Ferrada. “Five Factors that will Decide the Future of Antarctica,” Polar Journal 8, no. 1 (2018): 84, 96. 96 Matt Benwell, “Connecting Southern Frontiers,” in Polar Geopolitics: Knowledges, Resources and Legal Regimes, eds. Richard C. Powell and Klaus Dodds (Cheltenham: Edward Elgar, 2014), 205. 97 See Johnstone, “Colonisation at the Poles,” 118–23. 98 See e.g. Kees Bastmeijer, “Introduction,” in Wilderness Protection in Europe: The Role of International, European and National Law, ed. Kees Bastmeijer (Cambridge: Cambridge University Press, 2016), especially at 31 for IUCN def inition of wilderness including ‘without permanent or signif icant human habitation’; see also Steve Carver, “Mapping Wilderness in Europe,” in Wilderness Protection in Europe; Neumann, Wilderness Protection, 19, identifying four key characteristics of size, naturalness, undevelopedness and possibility for solitude.

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specially protected areas (ASPAs).99 The seven claimant States proposed two-thirds of over 70 ASPAs and these are nearly always within their claimed territories.100 There are no ASPAs in the unclaimed sector.101 Meanwhile in the Arctic, Canada’s concern for the vulnerable environment of the Northwest Passage aligns fortuitously with its purported sovereignty over the waterway.102 The new 108,000 km2 Tallurutiup Imanga National Marine Conservation Area was created in careful cooperation with the Inuit of the area and will be jointly managed but was nevertheless intended by the Canadian authorities to “serve as a clear demonstration of Canadian sovereignty in the Northwest Passage.”103 This shift to a moral defence of sovereignty based on promises not to occupy in any physical way is not unique to the polar regions. For example, the United Kingdom has created a huge no-take marine protected area around the Chagos Archipelago that prevents (by design) the return of the Chagossians whilst containing wide exemptions for up to f ive-thousand US military personnel and their contractors.104 In light of the WikiLeaks revelations, it is hard to credit the good faith of the British authorities in establishing this MPA.105 The Antarctic Treaty System (ATS) is undoubtedly an innovative model of collective governance over a vast and largely uninhabited and uninhabitable continent. Doubts about its survival are easily overstated, especially fears regarding the covert agenda of East Asian States and clandestine goals of (colonial) exploitation.106 However, the choice is not between an imperfect status quo and the next, environmentally disastrous, no-holds-barred mining frontier. Other visions are available and much could be learned from Indigenous paradigms based on relationships between humans, other living beings and the land and intergenerational responsibility to develop a more inclusive and sustainable future for Antarctic governance (whether within or beyond the ATS).107

Bending of the Theories at the Poles (Genuine Occupation Being Impossible) By now, it should be evident that by the 20th century, occupation no longer pivoted – if ever it had – on settled agriculture! Transformation of the ice sheets and tundra was beyond the abilities of the expansionist States, so they turned to their own judges for a new doctrine to explain and justify their sovereignty pretensions.

99 Protocol on Environmental Protection to the Antarctic Treaty, October 4, 1991, ILM 30 (1992): 1461 (Madrid Protocol), article 3, Annex III article 3, and Annex V, article 3. 100 Ferrada, “Five Factors,” 99. 101 Ibid. 102 Canada, House of Commons Debates, 28th Parliament, 2nd Sess, Vol. 1, October 24, 1969, 39; see also Michael Byers and Suzanne Lalonde, “Who Controls the Northwest Passage?” Vanderbilt Journal of Transnational Law 42 (2009): 1133, 1178–86. See also Chapters 6 and 7 of this volume. 103 Catherine McKenna, Joe Savikataaq and P. J. Akeeagok, “A National Marine Conservation Area Proposal for Lancaster Sound: Feasibility Assessment Report,” February  2017, www.qia.ca/wp-content/uploads/2017/08/NMCAPropossal-for-Lancaster-Sound-ENG-April-4.pdf, 17; see also Moore, “Is Canada Entitled?” arguing that stewardship is a justif ication for sovereignty over the Canadian Arctic but arguing that the proximate State (Canada) is better placed to serve this role than the Inuit, 12–13. 104 See Johnstone, “From the Indian Ocean,” 315–16. 105 “HMG Floats Proposal For Marine Reserve Covering The Chagos Archipelago (British Indian Ocean Territory),” May 15, 2009, https://wikileaks.org/plusd/cables/09LONDON1156_a.html. 106 See e.g. Dodds, “Sovereignty Watch,” 238–40. 107 Wehi et al., “Transforming Antarctic Management.”

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In the 1928 Island of Palmas case between the Netherlands and the United States, the Swiss arbitrator Huber accepted that, “Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place.”108 Territories “remote” (from Europe) and “uninhabited” (by Europeans) required little more than symbolic occupation.109 The Island of Palmas had been used for centuries and at the time of the dispute, had a population of a few hundred natives but since they were not recognised as a State, they could neither be heard nor considered as potential occupiers. Three years later, Vittorio Emanuele III – then king of Italy – reiterated the doctrine that there must be “actual, and not the nominal, taking of possession” for sovereignty.110 Nevertheless he accepted on the facts that a mere declaration of sovereignty in 1858 suff iced for French sovereignty, being stronger than a rival Mexican claim, despite the absence of French activity for a further four decades.111 Clipperton had no Indigenous population. In the Eastern Greenland case of 1933, 12 of the 14 the Permanent Court of International Justice (12 Europeans or of European descent, Chinese and Japanese) upheld Denmark’s claim of sovereignty over the whole of Greenland, even though there had been very little Danish activity in the East. In their dissenting opinions, Anzilotti (Italian) and Vogt (Norwegian) held for Norway.112 The Inuit appear in the judgement as wards of Denmark and not one of the judges considered that they might have sovereignty in the land they have occupied much longer and more effectively than any Nordic settlers. The majority reduced effective occupation to a bare minimum: It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisf ied with very little in the way of the actual exercise of sovereignty rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.113 These cases resulted in a shift from an objective theory of occupation to a relative one.114 No longer did States have to occupy in any real, physical sense; it was enough that their claim was better than the claim of any rival State. But there was no possibility to consider occupation by Indigenous Peoples either substantively or procedurally. The exclusion of Indigenous Peoples from the international legal processes determining their territories continues from the League of Nations Mandate System, through the age of the UN in the Western Sahara advisory opinion in 1970 to the Chagos Islands advisory opinion in 2019.115

108 Island of Palmas, 840. 109 Ibid., 855. 110 Clipperton Island, 393. 111 Ibid., 394. 112 Eastern Greenland Case, para 210. 113 Eastern Greenland Case, para 98. 114 Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008), 134–37; von der Heydte, “Discovery, Symbolic Annexation and Virtual Effectiveness,” 462–63. 115 Western Sahara advisory opinion; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, advisory opinion, ICJ Reports 2019: 95; see also Johnstone, “From the Indian Ocean.” See also Case Concerning the Territorial Dispute (Libya v Chad), ICJ Reports 1994: 6, on the exclusion of the Toubou People from the process. See also Gilbert, Indigenous Peoples’ Land Rights, 50 and Anghie, Imperialism, Sovereignty and International Law, 175–76.

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Incomplete Decolonisation Decolonisation Under the United Nations The UN is ostensibly founded on “respect for the principle of equal rights and self-determination of Peoples.”116 However, the sovereign equality of States (i.e. its members) is preeminent.117 The rules of decolonisation that States created and supervised through the UN in the 20th century limit self-determination to Peoples who live in territories “geographically separate and distinct ethnically and/or culturally from the countr[ies] administering [them].”118 On December 14, 1960, the UN General Assembly, the voice of all State members of the UN, agreed Resolution 1514 – the Declaration on the Granting of Independence to Colonial Countries and Peoples. The resolution celebrated laudable principles of “equal rights and self-determination of all peoples” and “recogniz[ed] the passionate yearning for freedom of all dependent peoples” and the “necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.”119 The General Assembly called for an end to “alien subjugation, domination and exploitation” and insisted that alleged “backwardness” should never be used by a colonial power to deny self-determination.120 As though realising the potential consequences of such unbridled enthusiasm for sovereign equality, the very next day, the General Assembly passed Resolution 1541 which carefully def ined some Peoples out of the scope of the right to self-determination through the premise of salt-water colonialism.121 Non-self-governing territories were to include, prima facie, those territories that are “geographically separate and distinct ethnically and/or culturally” from their colonial powers.122 The General Assembly explicitly rejected the so-called “Belgian thesis” that considered all Peoples subjected to colonialism as equal and equally entitled to self-determination.123 Indigenous Peoples were hemmed into the borders of existing States and under purported State sovereignty. It turned out that the General Assembly did not consider it necessary to end colonialism in all its manifestations after all.124 In this manner, the native nations of Arctic Europe (including Russia) were def ined out of existence as they were ruled by colonial States in contiguous territories. While Canada had begun

116 Charter of the United Nations, October 24, 1945, UNTS 1 (1945): XVI, article 1(2). 117 Ibid., article 2(1). 118 UN General Assembly, Resolution 1541 (XV), Transmission of information under Article 73e of the Charter, December 15, 1960, Principle IV. See also Isabelle Schulte-Tenckhoff, “Treaties, Peoplehood, and Self-determination: Understanding the Language of Rights,” in Indigenous Rights in the Age of the UN Declaration, ed. Elvira Pulitano (Cambridge: Cambridge University Press, 2012); Kamrul Hossain, “Negotiating Indigenous Rights: From Transnational Network to Making Room in International Law,” in Decolonizing Futures: Collaborations Towards Indigenous Rights Discourse in the Post-UNDRIP Era, eds. Hiroshi Maruyama et al. (Uppsala: Uppsala Multiethnic Papers & Hugo Valentin Centre, 2021), 14; Patrick Macklem, “Indigenous Recognition in International Law: Theoretical Observations,” Michigan Journal of International Law 30, no. 1 (2008): 177, on the legal development of Indigenous Peoples in international law. 119 UN General Assembly, Resolution 1514 (XV), Declaration on the granting of independence to colonial countries and peoples, 1960, Preamble. 120 Ibid., paras 1 and 3. 121 UNGA Res 1541. 122 Ibid., Principle IV. 123 Schulte-Tenckhoff, “Treaties, Peoplehood and Self-determination,” 77–78. 124 See also Ward Churchill, “A Travesty of a Mockery of a Sham: Colonialism as ‘Self-Determination’ in the UN Declaration on the Rights of Indigenous Peoples,” Griff ith Law Review 20 (2011): 526.

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as a salt-water colony, by the time of independence from the United Kingdom, the native Peoples were vastly outnumbered by settlers and their descendants, so they too were part of a contiguous colonial State and denied recognition as Colonial Peoples entitled to self-determination. (A similar pattern is found in the US Lower 48, Australia and New Zealand.) Alaska was registered as a United States colony at the UN in 1946, although by then the Alaska natives were already signif icantly outnumbered by the settler community. It was delisted on obtaining statehood of the United States in 1959 (i.e. integration with the colonial power). Greenland was registered as a colony by Denmark but ostensibly decolonised through integration with Denmark in 1953 as discussed.125

Uti Possidetis Juris Self-determination of Peoples remains subservient to the principle of territorial integrity – which in this case means absolute deference to the boundaries drawn up by the colonial powers themselves, irrespective of natural or ethnic boundaries on the ground.126 The International Court of Justice succinctly explained the principle of uti possidetis juris in 1986 as follows: The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term.127 A few years later, it reiterated the principle: Thus the principle of uti possidetis juris is concerned as much with title to territory as with the location of the boundaries; certainly a key aspect of the principle is the denial of the possibility of terra nullius.128 The uti possidetis principle originates in Roman law where it has a quite different meaning. In Roman law, it is the name of a possessory interdict – a quick remedy awarded by the praetor to protect a possessor of an immovable against an attempt by a non-possessor to seize it.129 It is not, in Roman law, a claim of ownership against all comers (i.e. it does not determine a ius in rem).

125 UN General Assembly, Resolution 848 (IX), Cessation of the Transmission of Information under Article 73e of the Charter in Respect of Greenland, 1954; see also Johnstone, “The Impact of International Law.” 126 E.g. UNGA Res 1514, para 6; UN General Assembly, Resolution A/RES/2625(XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 1970, 124; Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia, January 11 and July 4, ILM 31 (1992): 1488, 1498–500 (Opinion no. 2) (Badinter Commission). Watson, Aboriginal Peoples, 88–92; Matthias Åhrén, Indigenous Peoples’ Status in the International Legal System (Oxford: Oxford University Press, 2016), 19. 127 Frontier Dispute case (Burkino Faso v Mali), ICJ Reports 1986: 554, 566, para 23. 128 Land, Island and Maritime Frontier Dispute (El Salvador v Honduras: Nicaragua intervening), ICJ Reports 1992: 350, 387, para 42. 129 Gaius Institutes 4.160.

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Moreover, it was only available if the current possessor had not taken the immoveable by force, stealth or permission from the non-possessor.130 In international law, by contrast, the uti possidetis principle is about determining the boundaries of a territory. It “is essentially a retrospective principle, investigating as international boundaries administrative limits intended originally for quite other purposes.”131 Although not using the precise term, the Court continues to apply the uti possidetis principle. In the 2019 Chagos Islands advisory opinion, the Court upheld the boundaries put in place by the colonial power without regard to the pre-colonial situation, the ethnography or the wishes of the Indigenous population.132 This is justif ied on the laudable and plausible grounds of keeping the peace and territorial stability.133 But whose peace?134 International law prioritises peace between States – peace between those privileged actors that recognise one another as States. Despite Judge Dullard’s oft-cited opinion to the contrary in the Western Sahara case, the territory continues very much to determine the destiny of the people.135 The People and the State (according to colonial borders) are conflated as one and Indigenous Peoples are left behind in a “new form” of colonisation.136

Decolonisation as Statehood The options for decolonisation in Resolution 1541 are (1) emergence as a sovereign independent State, (2) free association with an independent State, or (3) integration with an independent State.137 In nearly all cases, colonial Peoples have opted for independence.138 However, all these options illustrate the lack of imagination on the parts of the UN member States that agreed the resolution. Statehood or something similar to statehood is the only option; decolonisation requires the new legal entity to follow the Westphalian model of the State, even if that is in no way representative of the political organisation prior to colonisation or the culture of the People concerned.139 Denied any of these three options, Indigenous Peoples have negotiated other models of self-determination

130 Gaius Institutes 43.17.1. (The author thanks Jürgen Jamin and Francesco Milazzo for guidance on this point.) 131 Land, Island and Maritime Frontier Dispute, 388, para 43; see also 386–87, paras 40–42. 132 Chagos Archipelago advisory opinion, ICJ Reports 2019, paras 170–74; see also Johnstone, “From the Indian Ocean.” See also Frontier Dispute (Benin v Niger), ICJ Reports 2005: 90, 108, para 23. 133 E.g. UNGA Res 1514, para 6; UNGA Res A/RES/2625(XXV) (Friendly Relations); Watson, Aboriginal Peoples, 91–92. 134 See also Territorial Dispute (Libya v Chad), separate opinion of Judge Ajibola, ICJ Reports 1994: 51, 52–54, paras 7–12. 135 Western Sahara advisory opinion, separate opinion of Judge Dillard, 116, 122; see also Patrick Thornberry, “SelfDetermination, Minorities, Human Rights: A Review of International Instruments,” in International Law. Classic and Contemporary Readings, 2nd ed. (Boulder: Rienner, 2003), 139–41. 136 Åhrén, Indigenous Peoples’ Status, 35–37. 137 UNGA Res 1541, Principle VI. But see Friendly Relations Declaration, 124, offering “any other status freely determined by a people.” 138 Greenland’s integration into the Kingdom of Denmark was completed seven years prior to this Resolution and was not in accordance with the People’s “freely expressed will and desire” (compare UNGA Res 1514, para 5) as only the Provincial Council was consulted in a highly def icient process. 139 Åhrén, Indigenous Peoples’ Status, 14; Cait Storr, “Denaturalising the Concept of Territory in International Law,” in Locating Nature: Making and Unmaking International Law (Cambridge: Cambridge University Press, 2020). See also Daud Hassan, “The Rise of Territorial State and the Treaty of Westphalia,” New Zealand Yearbook of New Zealand Jurisprudence 9 (2006): 62; Anghie, Imperialism, Sovereignty and the Making of International Law, 86.

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but none that have been accepted by States are as extensive as that promised to non-contiguous colonised Peoples.140 Each territory can, according to the Westphalian Model, have only one sovereign. Per Judge Huber in Island of Palmas: The development of the national organization of states during the last few centuries, and as a corollary, the development of international law, have established this principle of the exclusive competence of the state in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.141 The starting point of sovereignty is that it be absolute, all or nothing. Only one political entity (State) can exercise “exclusive competence” on any territory, excluding ab initio the possibility for shared and layered sovereignty between different Peoples over the same territory.142 States can agree, usually by treaty, between themselves some form of shared sovereignty or constrained sovereignty (the former was proposed for Tartupaluk and the latter has existed in Svalbard for a century). However, there are no contemporary cases of sovereignty shared between States and Indigenous Peoples on a fully equal basis. Historic nation-to-nation treaties between Indigenous Peoples and colonising States as well as modern land-claims agreements are subject to State constitutions and interpreted by State supreme courts.143 Although under Te Tiriti o Waitangi,144 the Māori and the settler New Zealanders are formally equal, only the State of New Zealand has full international personality in international law. The State continues to have the last word.

The Creation of Indigenous Peoples and the Inherent Limitations of Indigenous Rights Strict adherence to colonial-era boundaries leaves hundreds of nations as colonised Peoples but not recognised as colonial Peoples: today’s Indigenous Peoples. Although they meet the four essential criteria for statehood, they are relegated to second-tier players in international law and international relations. By def inition, Indigenous Peoples pre-exist the modern State and could not have been created by States.145 Indigenous Peoples have permanent populations (notwithstanding centuries of attempts to eliminate them), territories, systems of internal governance and capacity for international relations, such as the entering of treaties.146 It is not through lack of trying on their part that they are refused admission to the halls of international power-broking. Māori leader Ratana and Haudenosaunee leader Deskaheh tried to participate in the League of Nations in the 1920s but were rebuffed – on the

140 Claire Charters, “The Sweet Spot between Formalism and Fairness: Indigenous Peoples’ Contribution to International Law,” AJIL Unbound 115 (2021): 123, 125–26. 141 Island of Palmas, 838. See also Lassa Oppenheim, International Law, Vol. 1, 8th ed. (London: Longmans/Green & Co, 1955), 451–52. 142 See also Scott, “Antarctic: Competing Claims,” 147–48 describing sovereignty as ‘supremacy of power’ and ‘independence . . . vis á vis other external actors.” 143 Schulte-Tenckhoff, “Reassessing the Paradigm.” 144 Te Tiriti o Waitangi (Treaty of Waitangi) February 6, 1840. 145 Watson, Aboriginal Peoples, 94 and 145. 146 Convention on Rights and Duties of States adopted by the Seventh International Conference of American States, December 26, 1934, League of Nations Treaty Series 165 (1934): 19; see also Alfonso Martínez, First Progress Report, para 141, noting at the time of colonisation, Indigenous and colonial Peoples met all of these conditions.

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ostensible basis that their Peoples were too few in number.147 In the Arctic today there are around 80,000 Saami and 150,000 Inuit. Are they not nations? Iceland’s population on joining the UN in 1946 was 132,000. Today there are 12 full UN member States with populations of under 100,000. The Vatican City is treated in many respects in international affairs as a sovereign State, though its population is fewer than 1,000 and its territory contained within a 3.2 km wall that can be circumnavigated in a brisk 30-minute walk. Although its status is contested,148 it can join multilateral treaties, enjoy and bestow diplomatic privileges, issue passports recognised by other States, and so on, none of which are accepted for Indigenous Peoples.

Indigenous Issues at the United Nations Indigenous Peoples had been organising internationally for some time – including through the Nordic Saami Council and the Inuit Circumpolar Council. However, having been erased from international law by the General Assembly in 1960, Indigenous Peoples had to be reinvented by the UN in the late 1970s. The year 1977 is often given as the year of the recognition of Indigenous Peoples in the UN system as that year saw the f irst International Conference on Indigenous Peoples.149 But the f irst UN General Assembly meeting devoted to Indigenous issues was not held until 1982.150 The Working Group on Indigenous Populations – pointedly populations and not Peoples – was established the same year under the Sub-Commission on the Promotion and Protection of Human Rights which in turn was under the UN Human Rights Commission – now abolished. The Permanent Forum on Indigenous Issues – still carefully avoiding any reference to “Peoples” – was established under ECOSOC in 2000.

International Labour Organisation Convention 169 (1989) It was through the International Labour Organisation (ILO) that States f irst recognised limited Indigenous rights in Convention 169 of 1989.151 (The 1957 ILO Convention on Indigenous and Tribal Populations did not concern itself with Indigenous rights, beyond acknowledging that, in selected spheres, Indigenous individuals are human beings and entitled to equality with other citizens.152)

147 Watson, Aboriginal Peoples, 89–90; Venne, “Old Woman Bear,” 31; Roxanne Dunbar Ortiz, “The First Ten Years: From Study to Working Group, 1972–1982,” in Indigenous Peoples’ Rights in International Law, 47; see also Hossain, “Negotiating Indigenous Rights,” 14. 148 See e.g. Malcolm Shaw, International Law, 8th ed. (Cambridge: Cambridge University Press, 2017), 194; James Crawford, Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 2012), 124. 149 Nilo Cayuqueo, “1977 and the Participation of Indigenous peoples in the United Nations and the International Arena,” in Indigenous Peoples’ Rights in International Law, 38–41. 150 Julian Burger, “From Outsiders to Centre Stage: Three Decades of Indigenous Peoples’ Presence at the United Nations,” in Handbook of Indigenous Peoples’ Rights, eds. Corinne Lennox and Damien Short (Abingdon: Routledge, 2016), 315. 151 Indigenous and Tribal Peoples Convention 1989, International Labour Organisation Convention no. 169, ILM 28 (1989): 1382. 152 Indigenous and Tribal Populations Convention 1957, International Labour Organisation Convention 107, accessed December  29, 2020, www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE: C107. It is mostly assimilationist in approach and, despite acknowledging that Indigenous populations could own land, either collectively or individually, did not exclude the possibility that States might forcibly relocate them from their land for various reasons, including “the interest of national economic development,” articles 11 and 12. See also Macklem, “Indigenous Recognition,” 187–95.

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The title of ILO Convention 169 – referring to Indigenous and Tribal Peoples – is immediately betrayed in the f irst article that states, The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.153 In other words, we will use the term “peoples” as long as you know that we do not recognise as you as “Peoples.” ILO Convention 169 recognises f irst and foremost the rights of Indigenous Peoples to exist and not to be assimilated and the existence of their own legal systems.154 As progress in positivist international law, this is not to be underestimated. It prohibits forced relocations – mostly.155 To the (limited) extent the convention is ratif ied and upheld, Indigenous Peoples need no longer fear transfer of entire settlements. That does not mean, however, that they can stay on their land. Access to the means of subsistence has been denied variously by large-scale settlement; competition for subsistence foods; depletion of fauna by overhunting, overf ishing, construction and pollution; ecosystem deterioration; colonial monopolies and restrictions on hunting; and industrial developments that disrupt animal migration and breeding patterns. Relocation might no longer be forced, but when the ecosystem is so impaired that it no longer provides or when it is a crime to provide food for your family, it can hardly be described as voluntary either. ILO Convention 169 does not talk of sovereignty and it certainly does not recognise it. It allows for Indigenous Peoples limited rights of “ownership and possession” of their land and resources – to the extent that they have suff iciently resisted both pressure to leave it and pressure to assimilate.156 The legal owner – the State – retains the f inal word regarding subsoil resources and overhead airspace.157 The State needs to ask the Indigenous Peoples concerned for their opinion and should compensate them for any interference with their rights of use, their usufruct, but it does not have to respect their views.

The UN Declaration on the Rights of Indigenous Peoples No instrument on Indigenous rights is more celebrated than the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Supporters of Indigenous rights promote its recognition as reflecting customary international law, notwithstanding the very cautious statements made by States on its adoption. Nevertheless, opinio iuris of States for the customary status of the declaration as a whole is weak; State practice, even weaker. UNDRIP was adopted by the General Assembly amidst a great deal of self-congratulation about what a great moment this was for Indigenous Peoples and how benevolent States were in agreeing it. Advocates for UNDRIP point to the long involvement of Indigenous organisations in the drafting process.158 Nevertheless, UNDRIP is structurally not an instrument of Indigenous Peoples but one

153 ILO Convention 169, article 1(3). 154 Ibid., article 8. 155 Ibid., article 16. 156 Ibid., article 14. 157 Ibid., article 15. 158 See also Charters, “The Sweet Spot”; Kristen Carpenter and Alexey Tsykarev, “Indigenous Peoples and Diplomacy on the World Stage,” AJIL Unbound 115 (2021): 118; Sheryl R. Lightfoot, “Indigenous Mobilization and Activism in the UN System,” in Handbook of Indigenous Peoples’ Rights on pragmatic Indigenous engagement at the UN to deliver advances, including UNDRIP.

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of the General Assembly – that is, of States.159 As we learn in our very f irst class on international law, positivist theories regarding the sources of law allow only States to make law.160 Claire Charters has recently explored the ways in which Indigenous Peoples contribute to the development of international law and use the UN structures and processes to pursue their ends.161 Nevertheless, it is only State practice and opinio iuris (and perhaps the practice and opinio iuris of international organisations which are themselves creations of States and exist only at their will) that create customary international law. Practices and perspectives of Indigenous Peoples do not qualify as evidence of customary international law (they are not “States” for the purpose of “State practice”), nor would Indigenous rejection of State practice and opinio iuris impede the formation or evolution of customary international law. States agree international treaties regarding Indigenous Peoples to which the latter cannot be parties and even where Indigenous Peoples are involved in the negotiations, they are excluded from the table when binding and non-binding instruments are f inalised in international organisations and fora.162 There are few (aside from perhaps the present author!) who take seriously the argument that the laws of Indigenous Peoples be considered evidence of “general principles,” but are Indigenous Peoples not too “civilised nations” or, in today’s parlance, members of the “community of nations”?163 The drawn-out drafting process of UNDRIP demonstrates just how much resistance there was amongst States to the challenges of Indigenous Peoples to their exclusive sovereignty. Venne and Watson describe the version accepted by States in 2007 as a “shadow” of the Indigenous declaration f irst drawn up in the UN Working Group, one that had been “stripped back to a human rights instrument rather than an instrument which would provide a mechanism for advancing Indigenous Peoples’ rights as nations and peoples.”164 The sovereignty that UNDRIP promises with one hand, it undermines with the other. Article 2 announces that Indigenous Peoples are “are free and equal to all other peoples” but it becomes apparent in article 46 that they are not. “Nothing in this Declaration” will justify any threat to the “territorial integrity or political unity of sovereign an independent States.”165 This is, in fact, the only reference to “sovereignty” in the entire declaration. UNDRIP promises self-determination in article 3 before def ining it away in article 4 as pertaining only to “internal and local affairs.”

159 See Irene Watson and Sharon Venne, “Talking up Indigenous Peoples’ Original Intent in a Space Dominated by State Interventions,” in Indigenous Rights in the Age of the UN Declaration, ed. Elvira Pulitano (Cambridge: Cambridge University Press, 2012), 91. See also e.g. Watson, “First Nations and the Colonial Project”; Ward Churchill, “A Travesty of a Mockery of a Sham: Colonialism as ‘Self-Determination’ in the UN Declaration on the Rights of Indigenous Peoples,” Griff ith Law Review 20 (2011): 526; Steven Newcomb, “Domination in Relation to Indigenous (‘Dominated’) Peoples in International Law,” in Indigenous Peoples as Subjects for Indigenous scholarly critiques of UNDRIP. And see Macklem, “Indigenous Recognition,” 202–3 for a non-Indigenous scholarly critique. 160 Statute of the International Court of Justice 1945, 1 UNTS XVI (ICJ Statute), article 38(1); see also Åhrén, Indigenous Peoples’ Status, 13–14; Gaetano Arangio-Ruiz, “On the Security Council’s ‘Law-Making,’ ” Rivisto di diritto internazionale 3 (2000): 609, 693. 161 Charters, “The Sweet Spot.” 162 See e.g. the three binding treaties negotiated at the Arctic Council, to which only the eight Arctic States can be party, as well as UNDRIP and ILO Convention 169. 163 The retention of “civilised nations” in article 38(1)(c) of the Statute of the Court demonstrates that still in 1945, even amongst States, some were to be privileged above others in the power to make law. See Marcelo Vázquez-Bermúdez, Special Rapporteur, “Second Report on General Principles of Law,” International Law Commission, April 9, 2020, UN Doc. A/CN.4/741, para 13, on the use of “community of nations.” 164 Venne and Watson, “Talking Up Indigenous Peoples’ Original Intent,” 91; see also Schulte-Tenckhoff, “Treaties, Peoplehood, and Self-determination” and Churchill, “A Travesty of a Mockery of a Sham.” 165 UNDRIP, article 46(1).

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UNDRIP offers Indigenous Peoples rights to use land and resources. Indigenous Peoples might even have “ownership” of lands if they can prove a longstanding occupation (the criteria of which remaining undef ined). But the State is still determining the paradigms for the relationship with land, one based on the Western model of “dominion.”166 Indigenous legal systems are marginalised and curtailed in UNDRIP. The declaration refers to “political, economic and social systems or institutions” and “customs, traditions and land tenure systems” rather than “law.”167 The only direct reference to Indigenous “juridical systems” presents them as the exceptional case and permits them only to the extent that they conform to State-agreed human rights standards, even as States themselves fail to uphold those standards. Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.168

Indigenous Rights as a Consolation Prize True sovereignty is the power not just to have ownership of land and exercise jurisdiction according to a model predetermined by Western legal positivists but to determine the relationship between individuals, communities, governments and the land. Sovereignty includes the power to reject the ownership or dominion paradigm in favour of a quite different set of values, authorities and responsibilities over and to the land.169 Indigenous rights, purportedly bestowed by States, are a cover for the ongoing occupation of Indigenous territories and denial of the right to decolonise on an equal basis with other Peoples. These are not special or extra rights that Indigenous Peoples enjoy but reduced and constrained rights to self-determination compared with other Peoples. “It is an ongoing process of exclusion and inclusion to the extent that it continues to subsume Indigenous populations under the sovereign power of States not of their making.”170 The Indigenous rights framework attempts to protect Indigenous Peoples from some of the worst abuses historically committed against them without challenging the (exclusive) State sovereignty model that denies them original legal personality and makes them vulnerable in the f irst place.171 The rights of Indigenous Peoples are a “consolation prize” for having been left behind by the decolonisation process or, as Paul Patton puts it with more sophistication, “Indigenous rights are

166 In the absence of something resembling a Western legal title, the European Commission of Human Rights rejected the Saami applicants’ petition in the Alta case, as “the applicants do not appear to have any ‘property rights’ to this area in the traditional sense of that concept” (G and E v Norway App no 9278/81; 9415/81 (ECHR, October 3, 1983), The Law, Part II). Of course, what the Commission means by tradition is Western legal tradition, not Saami tradition. 167 E.g. ibid., articles 20, and 27. 168 Ibid., article 34 (emphasis added). 169 See e.g. Roger Merion, “The Land of Nations: Indigenous Struggles for Property and Territory in International Law,” AJIL Unbound 115 (2021): 129, 133–34; see also e.g. Wehi et al., “Transforming Antarctic Management” for Māori Conceptions of the relationship between Humans and Territory. 170 Macklem, “Indigenous Recognition,” 186. 171 Ibid., 209.

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legal and extra-legal rights attributed to Indigenous peoples who, as a consequence of colonization or other circumstances, live under the authority of sovereign states not instituted by them.”172

Conclusions The early justif ications for occupation of already inhabited lands were based on eff icient use of territory – primarily settled agriculture – according to the doctrine of effective occupation. However, the settler States were incapable of occupying the vast and unforgiving territories in the polar regions. Therefore, they developed new theories of occupation in “remote” (from them) territories that required little in the way of actual settlement. The new approaches nonetheless overlooked the evidence of centuries of much more effective occupation by native Peoples in the Arctic. In the 21st century, there has been a further shift away from occupation as transformation of the land as States justify their stakes based on promises to maintain and protect the vulnerable environments; in other words, promises not to occupy at all the territories concerned. The decolonisation process of the second half of the 20th century created a distinction between two sets of colonised Peoples: colonial Peoples in salt-water colonies and Indigenous Peoples living in contiguous territories. Only the former are entitled to full self-determination according to contemporary positivist international law. Indigenous Peoples instead are offered – slowly and begrudgingly – limited rights to manage their own affairs and resources. The rights of Indigenous Peoples are hence not extra human rights that somehow privilege them against others but rather lesser self-determination that maintains their position of structural disadvantage vis-á-vis Peoples in independent States. The chapters that follow in this section examine selected aspects of the rights of Indigenous Peoples in the Arctic as they have emerged to date. This is in no way a comprehensive account and readers are directed to specialised anthologies on Indigenous Peoples in general and the increasing body of excellent scholarship on the laws of and the laws regarding Indigenous Peoples in the Arctic.173 Paul Patton critiques in more detail the complex relationship between Indigenous rights and human rights, Jan Mikael Lundmark analyses the implications of the Girjas Saami case in Sápmi in Sweden, and Juha Joona and Tanja Joona examine the rights of Indigenous Peoples in the context of extractive industries in the Arctic. Continuing the theme of decolonisation, Sune Klinge, Helle Krunke, Manasse Mikaelsen and Natuk Lund Olsen analyse constitutional issues in Greenland in Section C.

172 Paul Patton, “Justif ications for Indigenous Rights” in Handbook of Indigenous Peoples’ Rights, 13. 173 E.g. Routledge Handbook of Indigenous Peoples in the Arctic; Indigenous Rights in Scandinavia: Autonomous Sami Law, eds. Christina Allard and Susann Funderdud Skogvang (Abingdon: Routledge, 2021); Handbook of Indigenous Peoples’ Rights; Indigenous Rights in the Age of the UN Declaration; Indigenous Peoples as Subjects of International Law, special issue eds. S. James Anaya and Antony Anghie. “The Impact of Indigenous Peoples on International Law,” AJIL Unbound 115, no. 2 (March 2021).

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24 INDIGENOUS RIGHTS AND HUMAN RIGHTS Paul Patton

Introduction There are several ways to understand the relationship between Indigenous rights and human rights. One is to see them as a further development of human rights. On this view, Indigenous rights are fundamentally consistent with the worldview and values of human rights as they developed and became institutionalised in 20th century international legal instruments. So, for example, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) recognise the right of all individuals to maintain their distinctive religion, culture and language.1 The distinctive features of Indigenous culture and spirituality, notably the importance of lands and waters to cultural identity and spiritual beliefs, then account for specif ic rights to ancestral territories. This conception of Indigenous rights as a further elaboration of human rights is often applied to the rights enshrined in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).2 For example, in his 2008 report as special rapporteur on the human rights and fundamental freedoms of Indigenous People, James Anaya suggested that [t]he Declaration does not aff irm or create special rights separate from the fundamental human rights that are deemed of universal application, but rather elaborates upon these fundamental rights in the specif ic cultural, historical, social and economic circumstances of indigenous peoples. These include the basic norms of equality and non-discrimination, as well as other generally applicable human rights in areas such as culture, health or property, which are recognized in other international instruments and are universally applicable.3

1 See especially Article 18 of the UDHR (UN Resolution A/RES/217(III)[A] December 10, 1948) and Articles 18 and 27 of the ICCPR (UN Resolution 2200A (XXI) December 16, 1966). Entered into force March 23, 1976. Text in: 999 UNTS 171. 2 G. A. Res 61/295, U.N. Doc. A/RES/61/295 (September 13, 2007). 3 S. James Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, A/HRC/9/9 (2008), August 11, 2008, 13, para. 40. In a later publication, Anaya asserts, “The human rights character of the Declaration is evident from its preamble and other provisions, which ground the instrument in concern for human rights, the discussions surrounding its drafting, and the very fact that its genesis came from within the DOI: 10.4324/9781003404828-31 408

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A second way to understand the relationship is to insist on the differences between Indigenous and European societies and argue that human rights, founded on the primacy of the individual, are alien to Indigenous ways of being. Indigenous societies see individuals as bound up in relations to others within a social and cosmological order. The focus here is on responsibilities towards others rather than the rights of individuals. On this understanding, which relies on a strong view of the differences between Indigenous tribal societies and European societies, the language of rights is considered part of the intellectual and legal apparatus that colonisation superimposed on the culture, beliefs and customary ways of Indigenous Peoples. However much the evolution of such rights may help restore a degree of freedom and autonomy to Indigenous Peoples, it does so at the expense of Indigenous culture and ways of being. Indigenous rights are all too often an instrument of colonial rule: “Power continues to be wielded by all the colonial states who work together in the translation and interpretation of Indigenous People’s rights; they ensure that we remain objects in international law, subjugated to their power.”4 On this view, thoroughgoing decolonisation of the relationship between Indigenous Peoples and the European-derived societies established on their territories is the only way to rebuild the relationship and establish bridges across the chasm that separates tribal and settler cultures. A third way to understand the relationship is to see Indigenous rights as positive rights that have developed in the course of interaction between colonised Indigenous Peoples and the legal systems of countries established by colonisation. On this view, Indigenous rights are derived from “the struggle of indigenous peoples to have their customary practices and land ownership respected” and from the ways in which colonial powers accommodated those traditions and ways of life.5 In the past, these may have been conf ined to certain customary rights to hunt and f ish on territories that were no longer their own by virtue of the imposition of the law of the relevant colonial power. For many European nations, although not all, this imposition was justif ied by reference to the “doctrine of discovery” that assigned the right to claim or to acquire property in land from the Indigenous inhabitants solely to the f irst European State to “discover” the territory in question. With discovery came the right to pre-empt or exclude other European nations from acquiring property. The doctrine did not imply complete disregard for the property rights of the Indigenous peoples, but it did subordinate those rights to the sovereign authority of the discovering nation. Famously entrenched in United States law by Chief Justice Marshall in Johnson v McIntosh,6 it played an important role around the world the effects of which are yet to be fully addressed.7 In the course of the 20th century, challenges to the view of Indigenous Peoples as barbaric, primitive or otherwise inferior to their European colonisers have led to the reinterpretation of Indigenous rights and recognition of forms of title to land. In some cases, these renewed Indigenous rights provide more substantial protection in domestic law for Indigenous territories, languages and

UN human rights regime.” In Claire Charters and Rodolfo Stavenhagen, eds., Making the Declaration Work: The Rights of Indigenous Peoples (Copenhagen: IWGIA, 2009), 187. 4 Irene Watson, Aboriginal Peoples, Colonialism and International Law – Raw Law (London and New York: Routledge, 2015), 3. 5 Peter Kulchyski, “Aboriginal Rights Are Not Human Rights,” Prairie Forum 36 (Fall 2011): 35. 6 21 U.S. (8 Wheat.) 543 (1823). 7 See Robert J. Miller, “The Doctrine of Discovery,” in Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, eds. Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg (Oxford: Oxford University Press, 2010), 1–25; Edward John, “Study on the impacts of the Doctrine of Discovery on Indigenous Peoples, Including Mechanisms, Processes and Instruments of Redress,” presented to the Thirteenth Session of the Permanent Forum on Indigenous Issues May 12–23, 2014, E/C.19/2014/3.

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cultures. The more recent engagement of Indigenous Peoples with the UN and its human rights institutions may be seen to involve a parallel revision of their rights under international law. In the words of Robert A. Williams Jr, it has enabled Indigenous Peoples to “redef ine the terms of their survival in international law.”8 This “interactionist” understanding of the relationship between human rights and Indigenous rights presupposes an answer to the question what we understand by “rights.” Briefly stated, I take rights to be recognised or established ways of acting and ways of being treated within a given society.9 Understood in these terms, rights are not purely moral phenomena that can be said to exist when an acceptable justif ication can be provided. Rights must be institutionalised and operationalised in some form or other. Legal mechanisms for recognising and maintaining or enforcing particular practices are one form of institutional protection for certain ways of acting or being treated, but there may be other less formal institutional practices that serve to establish individual or collective rights. In these terms, all societies will have rights in some form or other, including pre-colonial Indigenous societies. Colonial societies are a complex case since they involve the interaction, often under conditions of mutual ignorance, of the systems of rights and obligations assumed by the colonisers and the colonised. My goal in this chapter is to set out the arguments behind these different ways of understanding the relationship between Indigenous rights and human rights, acknowledging that they are ideal constructs that are sometimes combined in the arguments of the same author. I argue against the f irst developmental or “extensionist” approach in favour of a version of the third “interactionist” approach while defending the importance of the second “discontinuity” approach. Ultimately both of these, along with the idea of human rights, are needed to make sense of the complex and evolving relationship between Indigenous Peoples, the nation States established on their territories and the international legal order.

Continuity: Indigenous Rights as a Development of Human Rights An exemplary version of the argument to derive distinctive Indigenous rights from universal human rights appears in a 1996 paper by Indigenous Australian lawyer Michael Dodson.10 Dodson argued that social justice for Indigenous People required equal access to the same social services and infrastructure enjoyed by non-Indigenous citizens, but also rights to maintain and practice their culture as autonomous and self-determining Peoples. He argued that both are derived from the inherent, inalienable human rights to which everyone is entitled because they are human.11 Among the human rights most relevant to the struggle of Indigenous Peoples is the right to the free practice of one’s culture and religion. Land and the relationship to land are central to Aboriginal culture and religion: “Everything about Aboriginal society is inextricably interwoven with, and connected to,

8 Robert A. Williams Jr, “Encounters on the Frontiers of International Human Rights Law: Redef ining the Terms of Indigenous Peoples’ Survival in the World,” Duke Law Journal 4 (1990): 660–704, 700. 9 See Rex Martin, A System of Rights (Oxford: Clarendon Press, 1993), 41. 10 Michael Dodson, “Land Rights and Social Justice,” in Our Land Is Our Life: Land Rights – Past, Present, Future, ed. Galarrwuy Yunupingu (St Lucia: University of Queensland Press, 1997), 39–51. Dodson was the f irst Aboriginal and Torres Strait Islander social justice commissioner within the Australian Human Rights Commission (1993–1998) and a participant in meetings of the Working Group on Indigenous Populations (WGIP) that drafted the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). 11 Dodson, “Land Rights and Social Justice,” 41.

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the land.”12 It follows that land rights are a human rights issue “because the result of not having access to your land is the destruction of culture, language and spirituality.”13 In these terms, the Aboriginal relationship to land may be seen to embody fundamental interests that are crucial to the wellbeing of people and worthy of protection. These fundamental interests may be regarded as the basis of specif ically Indigenous human rights. In short, Indigenous Peoples have the same rights as anyone else, but the specif icity of their culture implies the existence of certain distinctive rights not enjoyed by other people. The distinctive character of Indigenous culture and its laws and customs implies differential rights but the reason for this is the underlying moral equality of Peoples and cultures. As noted, Anaya defends the same understanding of the rights of Indigenous Peoples as derivative of universal human rights principles. In a co-authored discussion of the making of the UNDRIP, he reiterates the view that the Declaration does not aff irm or create special rights separate from the fundamental human rights that are deemed of universal application, but rather elaborates upon these fundamental rights within a new generation of thinking about the specif ic cultural, historical, social, and economic circumstances of Indigenous peoples.14 Much of the introductory material in the Declaration and many of the supporting statements at the time of its adoption by Anaya and others closely involved in the UN human rights process positioned it as an extension of human rights rather than a statement of distinctive rights pertaining to Indigenous Peoples. Megan Davis, an Indigenous professor of law and expert member and chair of the United Nations Permanent Forum on Indigenous Issues, comments that the “orthodox” view of the rights set out in the UNDRIP “seems to be that they are not new or special rights but an extension of what already exists in the human rights universe.”15 She suggests that Indigenous participants saw it as “extending existing human rights . . . rather than creating new ones,” citing as evidence a comment by Mathew Coone Come, grand chief of the Grand Council of the Crees, that the Declaration was “drafted to conf irm that the international standards which apply to all peoples of the world apply to Indigenous peoples.”16 However, she also alludes to the possibility that for many of those involved this way of describing Indigenous rights was a strategic choice made in the context of a realistic view of what could be achieved on behalf of Indigenous Peoples at the time. There were good reasons to present Indigenous rights as simply the natural extension or elaboration of human rights, both in the international realm and in domestic realms, where the legal recognition of distinctive Indigenous rights was controversial. This was a way to remove grounds for the objection that such rights are a form of special pleading or identity politics on behalf of one minority group among others. Strategic considerations notwithstanding, closer examination of the UNDRIP makes the orthodox reading diff icult to sustain. The chapter on the making of the UNDRIP by Anaya and RodríguezPiñero, cited earlier, acknowledges features such as the role of Indigenous representatives in the drafting of the Declaration that point toward a more complex relationship between Indigenous rights and the

12 Ibid. 13 Ibid., 42. 14 S. James Anaya and Luis Rodríguez-Piñero, “The Making of the UNDRIP,” in The UN Declaration on the Rights of Indigenous Peoples, eds. J. Hohmann and M. Weller (Oxford: Oxford University Press, 2018), 61. 15 Megan Davis, “To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years on,” Australian International Law Journal 19 (2012): 17–48, 27. 16 Davis, “To Bind or Not to Bind,” 21.

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human rights enshrined in the 1948 Universal Declaration.17 Anaya and Rodríguez-Piñero comment that the UNDRIP stands “at the forefront of some of the most signif icant transformations in the modern human rights regime.”18 Among the transformations mentioned are the embrace of human rights vested in collective rather than individual agents and the endorsement of a conception of restorative justice that seeks to address the legacies of historical patterns of oppression. In relation to this orientation towards restorative justice, Anaya and Rodríguez-Piñero note “the essentially remedial purpose” of the Declaration and point to the acknowledgement in the sixth paragraph of the Preamble that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests. The right to development formally adopted in the 1986 Declaration on the Right to Development is itself a further elaboration of the human rights set out in the UDHR. Article 1 of this Declaration aff irms that this “inalienable right,” vested in both individual persons and Peoples, implies “the full realization of the right of peoples to self-determination” including “full sovereignty over all their natural wealth and resources.”19 Despite the historical exclusion of Indigenous Peoples from this right, the remedies offered by the UNDRIP fall well short of such complete sovereignty over natural resources. Instead, Articles 3, 4 and 5 of the UNDRIP aff irm the rights of Indigenous Peoples to self-government and the maintenance of autonomous political, legal, social and cultural institutions. Article 5 also aff irms their right “to participate fully, if they so choose, in the political, economic, social and cultural life of the State,” while Article 19 aff irms their right to be consulted in relation to decisions affecting them, with the objective of obtaining their prior, free and informed consent. Article 32 aff irms the right of Indigenous Peoples “to determine and develop priorities and strategies for the development or use of their lands or territories and other resources” and requires that States shall “consult and cooperate in good faith with the indigenous peoples concerned” in order to obtain their “free and informed consent” prior to any projects affecting their lands, territories or other resources. However, this requirement on States implies only the need for genuine dialogue in good faith. No power of veto rests with Indigenous owners and should agreement not be reached “the State retains the power to make the f inal decision on the proposal at hand.”20 Similar observations apply to the right of self-determination accorded to Indigenous People by the UNDRIP. Critics argue that this is signif icantly weaker than the right accorded to all Peoples by virtue of Article 1 of the UDHR, which states, All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.21

17 I discuss the role of Indigenous people in relation to the drafting of the UNDRIP in more detail in the penultimate section. 18 Anaya and Rodríguez-Piñero, “The Making of the UNDRIP,” 60 [emphasis added]. 19 Declaration on the Right to Development, adopted by General Assembly, Resolution 41/128, December 4, 1986. See www. ohchr.org/Documents/Issues/Development/RTD_booklet_en.pdf, accessed January 7, 2022. 20 Stefania Errico, “Control over Natural Resources and Protection of the Environment of Indigenous Territories: Articles 29, 30 and 32,” in The UN Declaration on the Rights of Indigenous Peoples, eds. J. Hohmann and M. Weller (Oxford: Oxford University Press, 2018), 440. 21 The same statement occurs in Article 1 of the International Covenant on Civil and Political Rights (1996), the International Covenant on Economic, Social and Cultural Rights (1966), and Article 3 of the UNDRIP (2007).

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Article 3 of the UNDRIP extends the fundamental right of all Peoples to self-determination to Indigenous Peoples. It is immediately followed by Article 4, which refers only to self-determination with regard to “matters relating to their internal and local affairs.” Critics take this to imply a limitation of the right to self-determination although such a reading is open to dispute. Others argue that Article 4 simply specif ies one way in which Indigenous Peoples might further their social, economic and cultural development.22 Article 46 (1), which was inserted at the insistence of a number of UN member States, does, however, clearly limit the exercise of self-determination. It aff irms that nothing in the Declaration “may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations” and explicitly denies Indigenous people any right to engage in activities that might “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” This implies that the remedial activities supported by the UNDRIP are bounded by the injunction to maintain the territorial integrity and political unity of the States established on their lands. The language employed in 46 (1) follows closely that used in UN Declaration 2625 of 1970, the “Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States.”23 This Declaration deems unlawful any actions aimed at breaching or undermining the territorial integrity of States so long as they have a non-discriminatory legal structure, where this implies “a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”24 The “Friendly Relations” Declaration already displays a tension between the ambition to end colonialism and the commitment to maintaining the order of existing States. It protects the unity and territorial integrity of States with a non-discriminatory legal structure, including those settler colonial States that have removed race-based distinctions in law. The UNDRIP extends this protection to all sovereign and independent States without the qualif ication included in the “Friendly Relation” Declaration. Weller concludes that the Declaration does not put Indigenous Peoples in a position to renegotiate their relations with the States established on their territories or to contemplate secession: “In this sense, the award of the label ‘self-determination of peoples’ seems hollow and not on a par with the practice of decolonization.”25 In effect, the right of self-determination accorded to Indigenous Peoples differs from the right of self-determination accorded to the peoples represented by UN member States, many of which were established by colonisation. The UNDRIP does not attribute sovereignty to Indigenous Peoples and makes it clear that they are and should remain subject to the sovereign authority of the nation States established on their territories. Canadian scholar Peter Kulchyski concludes that the forms of self-government attributed to Indigenous Peoples in the UNDRIP are clearly supposed to exist “within the existing state system” and that the application of universal human rights to Indigenous people in some cases involves the restriction of those forms of self-government.26 Australian Indigenous lawyer Irene Watson, who participated in the drafting of the UNDRIP at the WGIP, suggests that if the view of self-determination set out in the UNDRIP is the last word from the

22 Dalee Sambo Dorough, “The Signif icance of the Declaration for Indigenous Peoples’ Rights and its Future Implementation,” in Making the Declaration Work: The Rights of Indigenous Peoples, eds. Charters and Stavenhagen, 265. 23 UN (1970) Resolution 2625 (XXV), “Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States,” accessed October 8, 2021, https://digitallibrary.un.org/record/202170?ln=en 24 Ibid., 124. 25 Weller, “Self-Determination of Indigenous Peoples: Articles 3, 4, 5, 18, 23 and 46 (1),” in Hohmann and Weller, eds., The UN Declaration on the Rights of Indigenous People, 149. 26 Kulchyski, “Aboriginal Rights Are Not Human Rights,” 47.

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UN, “then all it has done in respect of Indigenous Peoples is to legitimise the continuing colonial relationship.”27 Despite Article 3, the body of UNDRIP limits self-determination to that which the state concerned will allow or enable. Article 3 is “gammon” self-determination and UNDRIP has ended up no more than a pragmatic and empty gesture, which has altered nothing in the world of First Nations’ and colonial state relations.28 In view of the signif icant differences between the rights accorded to Indigenous Peoples and those accorded to the non-Indigenous peoples who make up the UN member States, it is implausible to suggest that the Indigenous rights recognised in this instrument are simply concretised versions of the universal human rights accorded to all.29 The views of Kulchyski, Watson and other critics point to a quite different understanding of the relationship between human rights and Indigenous rights, grounded in a rigorous conception of the autonomy of Indigenous culture and law and its differences from the social and political philosophy that informs the UDHR.

Discontinuity: Indigenous Rights and the Distinct Cosmology and Practice of Indigenous Law and Custom In an article responding to the Canadian government’s adoption of human rights principles in the Charter of Rights and Freedoms established by the Constitution Act 1982, Menno Boldt and J. Anthony Long argue that the individualistic conception of human rights expressed in the Charter posed a threat to the cultural identity of Canadian First Nations.30 It was feared that recourse to individual rights would undermine the capacity of tribes to govern themselves in accordance with tribal law. Boldt and Long contrast the individualistic conception of society which pervades liberal political theory and its approach to rights with the “cosmocentric” conception of society that is common to tribal cultures in North America and elsewhere. Here, the individual is considered the repository of responsibilities rather than a claimant of rights, subordinated to a cosmic order, which includes non-human and human beings: Rights can exist only in the measure to which each person fulf ils his responsibilities towards others. That is, rights are an outgrowth of every person’s performing his obligation in the cosmic order. In such a society there is no concept of inherent individual claims to inalienable rights.31 Boldt and Long argue that conceptions of human rights are inevitably influenced by the conceptions of humanity embedded in the societies in which they emerge. They side with critics of the

27 Watson, Aboriginal Peoples, Colonialism and International Law – Raw Law, 91. 28 Ibid., 4. 29 See however James Anaya’s defence of self-determination as a human right that does not automatically imply a right to form a state or to dictate any one form of political arrangement in “The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era,” in Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, eds. Claire Charters and Rodolfo Stavenhagen (Copenhagen: IWGIA, 2009), 184–98. 30 Menno Boldt and J. Anthony Long, “Tribal Philosophies and the Canadian Charter of Rights and Freedoms,” Ethnic and Racial Studies 7, no. 4 (1984): 478–93. Reprinted in Menno Boldt and J. Anthony Long, eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985), 165–81. 31 Boldt and Long, “Tribal Philosophies and the Canadian Charter of Rights and Freedoms,” 479.

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individualism of liberal political theory who characterise this tradition as bound up with the need to protect individuals against a centralised power structure and with the requirements of the capitalist market economy that emerged in Western Europe. In Native American societies, by contrast, power was neither centralised nor hierarchical but vested in the tribe as a whole and distributed across particular groups and functions by means of customary rules. Rights were def ined in relation to the welfare of the group rather than the individual. They do not claim that contemporary Native American societies are entirely traditional in outlook and organisation but that many do claim allegiance to the worldview and beliefs of their ancestors as the basis of their conceptions of tribal law. They note that some Native American Indian leaders saw the Canadian Charter of Rights and Freedoms, with its Western liberal principles of legal, social, political and economic individualism, as threatening “the destruction of their cosmocentric philosophy, their spiritual unity, and the customary precepts of their tribal society.”32 The provisions of the Charter would “not allow Indians to develop a social organization and government built on their traditional values.”33 For example, the prohibitions on racial discrimination would conflict with rules governing tribal membership and ultimately facilitate assimilation of the Indian community. For this reason, Canadian First Nations assert that “the doctrine of individualism and inherent inalienable rights, on which the Charter rests, is not part of their cultural heritage, serves no positive purpose for them, and threatens their integrity and survival as a unique people.”34 Kulchyski builds on the tradition within Canadian political thought that is conscious of the different sources of Indigenous and human rights. He argues that human rights are “universalistic, Eurocentric and individualist,” while Indigenous rights are collective rights established “in order to acknowledge the cultural distinctiveness of prior occupants or other indigenous peoples.”35 Whereas human rights belong to all individuals in so far as they are human, Indigenous rights do not belong to everyone but to specif ic groups who were the inhabitants of territories subsequently colonised by others. The two kinds of rights pull in different directions: Human rights move towards what is common in humanity and are an expression of some basic ideas thought to be of universal value. Aboriginal rights move in the direction of what characterizes specif ic groups of people and of what def ines them as distinct.36 In between Indigenous rights and human rights and further confusing the issue is the subsidiary category of human rights extended to Indigenous Peoples. Property rights provide an example: in the common law tradition these tended to be individualist and exclusive in a way that made it diff icult to regard Indigenous relations to land as proprietary.37 However, since the 1970s, jurisprudence in common law countries recognising Aboriginal or Native title has extended the concept of property to encompass collective and non-exclusive forms of Indigenous property, thereby subsuming Indigenous relations to land under the European conception of property, albeit in many cases resulting in

32 Ibid., 482. 33 Ibid., 483. 34 Ibid. 35 Kulchyski, “Aboriginal Rights Are Not Human Rights,” 49. 36 Ibid. 37 See, for example, the important Australian land rights case Milirrpum and Others v Nabalco Pty Ltd and The Commonwealth of Australia, 1970 17 FLR 141, in which, after being presented with extensive anthropological evidence regarding the overlapping relations of different Yolgnu clans to land, the judge declared the relationship to bear insuff icient resemblance to the English concept of property to be considered a proprietary relation.

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a weakened form of property right. Kulchyski suggests that the “confusion” between human rights and Indigenous rights in Canadian jurisprudence may be traced to commentary on the landmark Calder case aff irming the existence of Aboriginal title to land in 1973.38 There was a tendency to see Aboriginal rights as derived from Aboriginal title or property right and, as such, arguably a universal human right. If Aboriginal rights derived from Aboriginal title to land, Kulchyski suggests, “then it would be possible to suggest that Aboriginal rights in Canada was, in a fairly esoteric but still discernible fashion, a form of human rights.”39 However, the 1996 Van der Peet case took a different view according to which Aboriginal title was not the basis of broader social and political rights but that both derived from prior occupancy of the land.40 The court def ined Aboriginal title as the aspect of Aboriginal rights relating to land claims, whereas Aboriginal rights derived from the customs, practices and traditions of the Aboriginal Peoples concerned. The majority judges argued that Aboriginal rights cannot be def ined “on the basis of the philosophical precepts of the liberal enlightenment” and, as such, differ from the human rights enshrined in the Canadian Charter of Rights and Freedoms (the Canadian constitutional document that enshrines human rights in domestic law): rather, they “arise from the fact that Aboriginal people are Aboriginal.”41 Kulchyski suggests that with this decision, the Supreme Court of Canada had come “to clearly understand the difference between human rights and Aboriginal rights.”42 One of the most sophisticated accounts of the rights of Indigenous People under colonialism is provided by Irene Watson, an Aboriginal lawyer from south-east South Australia. Watson writes from the perspective of her own distinctive Tanganekald and Meintangk identity and assumes the independence and autonomy of Indigenous law and custom. Her aim is to provide an Indigenous perspective on colonialism and the more recent efforts by colonial law and institutions to “recognise” Indigenous Peoples and attribute rights to them, both in domestic and international law. From her point of view, such “recognition” by colonial law is part of the project of “absorption” of Indigenous Peoples into the colonial project: “What is intended goes beyond a conflict of laws between the colonised and coloniser. It is the annihilation of Indigenous People’s way of being in the world.”43 Watson’s approach to the colonial encounter is grounded in what she calls “raw” law, by analogy with the colonisers’ view of the pre-colonial Indigenous People of Australia as “naked.” Indigenous raw law involves a different conception and practice of law from that of the colonisers, taking the form of “a natural system of obligations and benef its, flowing from an Aboriginal ontology” that is not written down but passed on through living, singing, storytelling and walking the territory of a given People. It involves a conception of law as embodied in the connections between the animal, plant and broader natural world, as well as the human.44 It relies on a relational philosophy that stands in contrast to the individualism at the basis of Western law and, as

38 Calder et al v Attorney-General of British Columbia (1973) SCR 313. 39 Kulchyski, “Aboriginal Rights Are Not Human Rights,” 37. 40 R v Van der Peet (1996) 2 SCR 507. 41 R v Van der Peet Majority judgement of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ, 534, para. 19. 42 Kulchyski, “Aboriginal Rights Are Not Human Rights,” 37. 43 Watson, Aboriginal Peoples, Colonialism and International Law – Raw Law, 18. 44 Ibid., 5, 12. See also Watson, “One Indigenous Perspective on Human Rights,” in Indigenous Human Rights, eds. Sam Garkawe, Loretta Kelly and Warwick Fisher (Sydney: Sydney Institute of Criminology Monograph Series 14, 2001), 21–40.

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noted, makes dialogue between colonial notions of property and Aboriginal ideas of belonging to country diff icult. In the Australian colonial context as elsewhere rights were def ined by the moral and legal outlook of the colonisers. The English common law tradition imported to the Australian colonies was so different from the Indigenous idea of law growing out of relationships to land, other Peoples and the natural world “that the new colonial state did not see the existing laws, and did not identify them as law.”45 The entire colonial project, Watson argues, is based on the denial of raw law in favour of an image of First Nations Peoples as “beings without law – uncivilised and without society.”46 From the perspective of the raw law of her ancestors, the rights accorded to Indigenous Peoples in colonial law are a substitute for proper acknowledgement and recognition of Aboriginal law. So long as Indigenous moral and political thought is constrained by the European language of rights, it is not properly Indigenous and does not adequately express the ancient and spiritual relationships and way of life. Watson concurs with Boldt and Long in contrasting Western conceptions of individuality and property with an Aboriginal cosmology and identity according to which Aboriginal people are part of the land not separated from it: “Human rights discourse is founded in western philosophy and thought, and its relationship to the nature world is disconnected . . . Indigenous peoples have a different way of knowing, a way which centres on the earth mother.”47 Her argument is not that Indigenous Peoples should abandon European-style rights talk or recourse to national and international legal forums where rights are discussed. She acknowledges the protective function of human rights and notes that Indigenous Peoples have adopted the language of self-determination and sovereignty, embracing the claim that these are fundamental rights that should be accorded to them. However, she adopts a far more rigorous understanding of what this might mean: It could mean a return to independence and a challenge to the ongoing controls of the state, or self-governance within the “domestic paradigm of the state.” It could mean constitutional law recognition, the protection of culture and the protection against breaches of human rights. It could mean a return to the ancestors and a singing up of country. Other than the option to sing up the country and independence, all other options fall within the continuing control of the colonial state and are forms of internal self-determination.48 Watson acknowledges the utopian dimension of her vision of a non-colonial relationship between Indigenous Australians and the State. She does not underestimate the challenges involved in thinking “outside of the colonial matrix of power” and in terms of a new international law.49 She is sceptical of the capacity of current international legal institutions to accord genuine self-determination to Indigenous Peoples. She worries that the preconditions of genuine dialogue that might lead to treaties or other arrangements, notably equality between the parties, are not present. Nevertheless, she

45 Watson, Aboriginal Peoples, Colonialism and International Law – Raw Law, 30. 46 Ibid., 1. 47 Watson, “One Indigenous Perspective on Human Rights,” 30. 48 Watson, Aboriginal Peoples, Colonialism and International Law – Raw Law, 91. 49 Ibid., 149.

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maintains the utopian ideal “in which we are able to participate on our own terms as First Nations Peoples.”50 The only way forward is to return to the origin and begin again from the moment the Imperial British sea captain Cook set foot on the shores of Botany Bay: Cook needs to walk back in time, holding the flag in his hand, row back to his ship, and wait there, wait there for the old people to sing him a welcoming to ruwe. Then he needs to sit down and wait for the smoking and the cleansing of his spirit. Then the teaching could begin. Cook could learn the protocols for him to observe in his coming to our ruwe. He could learn that there was already law, and that it was in songs and the land. For him to come into that place, he would have to learn the “proper” way to come to ruwe.51 It is important to be clear about the argument presented here. On the one hand, Watson agrees with Boldt and Long and others that Indigenous societies had a very different conception and practice of law. As noted at the outset, this does not mean that Indigenous societies did not have rights. One way to understand Indigenous rights would be in the terms of such a conception and practice, along with the cosmology that accompanied it in each case. Typically, these included non-human animals and elements of the natural world in the complex web of responsibilities and rights accorded to individuals and groups. To suppose that such rights and responsibilities could be restored in their pristine pre-colonial State would be an extremely utopian conception of properly Indigenous rights. Indigenous Peoples have lived alongside and among European settlers for anywhere between 200 and 400 years and their societies have been irrevocably transformed by the colonial policies of the settler States established on their territories. Nonetheless, the idea of Indigenous societies as they were before colonisation remains a necessary point of reference, both for the history of their disruption and transformation through colonial policies and contact with European ways and for the surviving features that enable contemporary communities to be considered “Indigenous.” Despite the centuries of policies designed to eliminate their cultural identity and assimilate them into colonial societies, distinct Indigenous Peoples have survived. They have not survived unchanged, but neither have the European social orders imported into the New World remained static. Indigenous societies like any others have the capacity to evolve and adapt to new economic, social and political circumstances. The issue in the present is therefore not to return to what was but to approach what might have been had the colonial encounter been conducted differently. The relevant historical counterfactual is not that of an impossible return to the past but rather how the present might look if the encounter between Indigenous Peoples and Europeans had been a genuine negotiation or dialogue between parties of equal standing.52 Treaties and other negotiated arrangements with other Peoples were a feature of both pre-colonial Indigenous societies and European societies. The history of treaties in North America and elsewhere

50 Ibid., 152. 51 Ibid., 160. Watson explains on p. 10 that “Ruwe means the territories of First Nations Peoples.” 52 Canadian political philosopher James Tully argues that such an ideal of cross-cultural agreement provides a normative standard against which actual arrangements might be judged. He relies on the principles of recognition, consent and continuity, which were sometimes implicit in colonial dealings with First Nations people but, for most of the time, were ignored, as the proper basis on which to determine the status and rights of Indigenous peoples in the present. See James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (1994 John Robert Seeley Lectures) (Cambridge: Cambridge University Press, 1995); “The Negotiation of Reconciliation,” in Public Philosophy in a New Key, Volume 1: Democracy and Civic Freedom (Cambridge: Cambridge University Press, 2008), 223–56.

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demonstrates the possibility of cross-cultural understanding about what was required to gain access to territories and resources. Europeans might have deployed such understanding to negotiate access to territories “with the consent of the natives” to use the phrase employed by the British authorities in commissions to explorers and settlers. The outcome of such an approach might well have been a system of common and differential rights, both in domestic and international law, that emerged from the interaction between Indigenous, European and other societies.

Interaction: Indigenous Rights as a Product of Encounters Between Indigenous and European Laws and Customs Kulchyski’s account of the difference between human rights and Indigenous rights combines elements of the second, discontinuity approach with elements of the third, interactionist approach. On the one hand, he draws attention to the distinctive features of Native American societies that call for collective rights in relation to their territories, culture and way of life. On the other hand, he notes that historically “Aboriginal rights in Canada emerge from the struggle of indigenous peoples.”53 These included 17th- and 18th-century Indigenous struggles against colonial power, along with common law decisions during the 19th century. He points to elements of the English common law tradition, such as its recognition of customary rights based in the traditional ways and practices of common people, which provided a basis for the claims of Indigenous Peoples. So, for example, one of the features of the Van der Peet decision was that it viewed Aboriginal rights as grounded in the embodied practices of Indigenous Peoples.54 In this manner, Kulchyski’s analysis draws on the historical forms of interaction between Indigenous law and custom and the colonial legal system in Canada. Brian Slattery provides another example of this approach. He reviews the origins of Indigenous rights in Canadian law from “the perspective of a Canadian court, rather than a disinterested international tribunal or a native society.”55 He argues that these rights developed in the context of imperial policy and the dealings of colonial authorities with the Indigenous inhabitants of the lands over which they asserted sovereignty. The overall approach was that, in offering its protection to Aboriginal Peoples, the British Crown assumed that they would retain their lands, customary laws and political and cultural institutions unless legislation or treaties determined otherwise. The basic principles of imperial constitutional law in relation to Aboriginal Peoples developed in the course of the 17th and 18th centuries and were reflected in the 1763 Royal Proclamation. A set of rules dealing with native lands, customary law, powers of self-government and relationship to the crown developed, forming “a body of unwritten law known collectively as the doctrine of aboriginal rights.”56 Slattery argues that this body of law was “logically prior to the introduction of English common law and governed its application in the colony.”57 The different regimes governing title to land in general lands, Indian territories and Indian reserves need not concern us here, apart from the fact that it was in Indian territories that Indigenous customary law retained its fullest extent.

53 Kulchyski, “Aboriginal Rights Are Not Human Rights,” 41. 54 Ibid. See R v Van der Peet, 538–39, paras. 30 and 31. 55 Brian Slattery, “Understanding Aboriginal Rights,” Canadian Bar Review 66, no. 4 (1987): 727–83 at 735. 56 Slattery, “Understanding Aboriginal Rights,” 737. 57 Ibid.

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The crucial point is that Aboriginal rights as they developed in Canadian law were a product of the interaction between Aboriginal and colonial legal systems. As a result, Slattery argues, The doctrine of aboriginal land rights does not originate in English or French property law, and it does not stem from native custom. It is an autonomous body of law that bridges the gulf between native systems of tenure and the European property systems applying in the settler communities.58 In the legal terminology used by courts after the late-20th-century revival of the law relating to Indigenous land rights in Canada, Australia and elsewhere, these were sui generis rights that occupied an ambivalent space in between Indigenous and colonial law. The concept of sui generis rights has also been taken up in discussion over the status and content of the UNDRIP. Thus, Mauro Barelli argued that, after more than two decades in which Indigenous Peoples ref ined and promoted their claims, “the UN human rights has increasingly and intensively focused on the issue, ultimately creating a sui generis regime of indigenous rights.”59 In his more recent book, Barelli does not use the term sui generis in relation to the Indigenous rights established by the UNDRIP. However, he does describe the latter as an “exceptional instrument” that breaks “new ground in the area of ethno-cultural group rights” and that challenges the fundamental principle of State sovereignty.60 While the UNDRIP asserts that Indigenous individuals are entitled to the same fundamental rights and freedoms as all others, including freedom from discrimination, it also insists on the collective character of Indigenous Peoples’ rights to land, resources and the maintenance of their culture. Barelli comments, The fact that the UNDRIP has embraced the collective character of indigenous peoples’ rights as demanded by indigenous peoples, becoming the f irst international human rights instrument to reject a purely individualistic conception of human rights, can hardly be overstated.61 UNDRIP also broke new ground in being the f irst international law instrument to attribute a right to autonomy and self-determination to sub-national groups, notwithstanding the qualif ications that effectively limit this right to “internal” self-determination while protecting the territorial integrity of UN member States. It establishes strong principles regarding the rights of Indigenous Peoples to land, territories and resources. It establishes their right to participate in the government of the States to which they are subject, along with a right to be consulted on matters affecting them in order to obtain their free, prior and informed consent. The impact of these provisions on the actions of States established by colonisation remains to be seen. Nevertheless, there is no doubt that the UNDRIP introduced novel concepts and new principles in response to the aspirations of Indigenous Peoples, even if at the same time it involved signif icant compromise between their aspirations and the interests of States with signif icant Indigenous populations.

58 Ibid., 744–45. 59 Mauro Barelli, “The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime,” Human Rights Quarterly 32 (2010): 951–79, 953. 60 Mauro Barelli, Seeking Justice in International Law: The Signif icance and Implications of the UN Declaration on the Rights of Indigenous Peoples (London and New York: Routledge, 2016), 2, 9. 61 Ibid., 18.

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Nothing illustrates the divided provenance of Indigenous human rights better than the respective roles played by Indigenous organisations and UN member States. The UN Working Group on Indigenous Populations (WGIP) was established in 1982, in response to years of lobbying by Indigenous Peoples, with a mandate to review developments with regard to the promotion and protection of the human rights of Indigenous populations and to develop international legal standards for Indigenous human rights. Work on a Draft Declaration off icially began in 1985 but was able to draw on previous documents, including a declaration of principles prepared by Indigenous leaders from the Americas for a 1977 NGO conference at the UN on “Discrimination Against Indigenous Populations in the Americas” and a Declaration of Principles adopted at the Fourth General Assembly of the World Council of Indigenous Peoples in Panama, September 1984. These declarations, along with other materials, formed a basis for the drafting of principles by Indigenous attendees at the WGIP. After the WGIP decided that Indigenous Peoples would have access to its annual meetings in Geneva, and funding was provided to enable attendance by Indigenous delegates, these became an important annual forum. More than 600 people attended the 1993 session, including representatives of some 124 Indigenous nations, along with government representatives of States with signif icant Indigenous populations.62 The Draft Declaration was the f irst UN instrument to set standards for the full spectrum of rights of Indigenous Peoples and the f irst to be developed with the participation of Indigenous people. The f inal version was adopted in 1993 by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities and passed on to the Commission on Human Rights. Many of those involved saw the provisions relating to the collective right of Indigenous People to survive as distinct Peoples, their rights to traditional lands and territories or compensation for the loss of these, and their right to self-determination as Indigenous Peoples, as the minimum required for the survival of Indigenous Peoples. Robert A. Williams Jr described the Draft Declaration as “one of the most signif icant by-products of indigenous involvement in the international human rights process during the past decade.”63 However, the Draft Declaration was produced with the aim of having the document taken up and aff irmed by the UN, and as a result, it took into account the historical and political reality faced by colonised Indigenous Peoples in the latter quarter of the 20th century. For example, Articles 25 and 26 asserted rights to land, both in relation to the right to maintain distinctive spiritual and material relations of a particular People and in relation to the right to own, develop and control the lands, seas and other resources associated with traditional territories. However, Article 27 referred to restitution or just and fair compensation in cases where this was not possible. Coulter described this as a compromise between the principled position that Indigenous Peoples have legal rights to their

62 Robert T. Coulter, “Commentary on the UN Draft Declaration on the Rights of Indigenous Peoples,” Cultural Survival Quarterly Magazine 18, no. 1 (March 1994); “The Draft UN Declaration on the Rights of Indigenous Peoples: What Is It? What Does It Mean?” Netherlands Quarterly of Human Rights 13, no. 2 (1995): 123–38. For further detail on the involvement of Indigenous people in the drafting process, see Erica-Irene A. Daes, “The Contribution of the Working Group on Indigenous Populations to the Genesis and Evolution of the UN Declaration on the Rights of Indigenous Peoples,” Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, eds. Charters and Stavenhagen, 48–76; Sharon H. Venne, “The Road to the United Nations and Rights of Indigenous Peoples,” Griff ith Law Review 20, no. 3 (2011): 557–77. 63 Williams, “Encounters on the Frontier,” 666. Williams also suggested that “the emergence of rights in contemporary international legal discourse is a direct response to the consciousness-raising efforts of indigenous peoples in international human rights forums” and that the Draft Declaration testif ied to the power of the stories told by Indigenous people at successive meetings of the WGIP ‘to transform legal thought and doctrine, “Encounters on the Frontier,” 665 and 684.

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traditional land and resources and the recognition that demanding the return of all of these would ensure that the Declaration not be adopted.64 The Commission on Human Rights did not approve the f inal version of the Draft Declaration because of concerns by States. Instead, it set up its own inter-sessional working group (CHRWG) to consider the draft in 1995 and 1996. States were particularly concerned by the implications of attributing self-determination to Indigenous Peoples since this might imply that they were subjects of international law and, as such, entitled to independence and sovereignty over land and resources. As noted, it was to allay this concern that Article 46 was added to the Declaration. Concerns were also raised about the idea of collective rights. The Draft Declaration was subject to extensive criticism on these issues by the State representatives on the CHRWG, while Indigenous representatives held to a strict “no change” policy. Not until 2006 was a f inal version accepted by the Human Rights Council (which replaced the Commission on Human Rights). The f inal version of the UNDRIP was adopted by the General Assembly in 2007 after a one-year delay and further minor changes to allay concerns of some African States.65 The outcome is, as Megan Davis describes it, “a rich and layered text.”66 It combines the reaff irmation of the human rights set out in the UDHR and their extension to Indigenous People with the recognition of a number of distinctively Indigenous rights. The Declaration does not remove the potential for these rights to come into conflict. This potential has long been noted by commentators on the forms of State-based Indigenous rights. For example, Kulchyski refers to the 1969 “Statement of the Government of Canada on Indian Policy,” which proposed to remove all legal distinction between Indigenous Canadians and ordinary citizens in the name of equality.67 The proposal was subsequently rejected, but the potential for conflict between Aboriginal rights and human rights remained, as demonstrated by a case in British Columbia where a young man was forcibly taken from his home and left alone on an island for several days as part of his initiation into the Coast Salish People’s traditional practice of spirit dancing.68 Although the case was not decided with reference to Charter rights, Kulchyski suggests that the man’s human rights were arguably violated in the interests of the Aboriginal rights of his nation and that cases such as this show that “the two, Aboriginal rights and human rights, do not sit comfortably side by side.”69 Ulf Johannson Dahre makes a similar point about conflict between human rights and rights available only to Indigenous People with reference to a turn of the century US Supreme Court case in which rules limiting the vote for membership of the Off ice of Hawaiian Affairs to native Hawaiians were found to be racially discriminatory.70 However, such conflict is unavoidable so long as we view positive rights as political and historical instruments, open to contestation and to conflicting

64 Coulter, “The Draft UN Declaration on the Rights of Indigenous Peoples,” 135. 65 Albert K. Barume, “Responding to the Concerns of the African States,” in Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, eds. Charters and Stavenhagen, 170–82; Petter F. Wille, “The Drafting Process and Adoption of the UN Declaration on the Rights of Indigenous Peoples,” in Indigenous People’s Rights in International Law: Emergence and Application, eds. Roxanne Dunbar-Ortiz et al. (Kautokeino and Copenhagen: Gáldu and IWGIA, 2015), 224–29, especially 227–28. 66 Davis, “To Bind or Not to Bind,” 18. 67 Kulchyski, “Aboriginal Rights Are Not Human Rights,” 41. 68 Thomas v Norris [1992] 2 CNLR 139 (BCSC). See Thomas Isaac, “Individual versus Collective Rights: Aboriginal People and the Signif icance of Thomas v Norris,” Manitoba Law Journal 21, no. 3 (1992): 618. 69 Kulchyski, “Aboriginal Rights Are Not Human Rights,” 50. 70 Ulf Johannson Dahre, “There Are No Such Things as Universal Human Rights – on the Predicament of Indigenous Peoples, for Example,” The International Journal of Human Rights 14, no. 5 (2010): 641–57. See Rice v. Cayetano, 528 U.S. 495 (2000).

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interpretations and uses. Cases such as these do not support a broader argument against the very idea of human rights or their in-principle incompatibility with Indigenous rights. Rather, they show that rights are always embedded in the institutions and forms of understanding that determine their content in particular historical circumstances. This is no less true of Indigenous rights in domestic political contexts than it is in the international sphere, where the rights of Indigenous Peoples are the results of interaction between their aspirations and the current limits of what is possible in international law.

Conclusion Indigenous rights as def ined in the domestic law of countries established by colonisation and international instruments such as the UNDRIP cannot be understood simply as the extension of human rights and their embodiment in liberal norms of citizenship to Indigenous people. While the UNDRIP does reaff irm the basic human rights of Indigenous people, just as the legal systems of settler colonial countries no longer discriminate between the basic civil and political rights of Indigenous and other citizens, both remain partial responses to centuries of colonial treatment. The discontinuist understanding of Indigenous rights solely in the terms of the worldview and practices of Indigenous societies provides an ideal benchmark against which to measure actually existing rights. This is not to suggest that the practices and rights of Indigenous societies would not have evolved in the course of interaction with non-Indigenous societies. However, we need to distinguish between ideal forms of interaction based on dialogue, consent and continuity and nonideal forms based on the colonial imposition of European ways. Existing domestic and international Indigenous rights must be understood as outcomes of non-ideal interaction between the views of Indigenous Peoples, settler colonial majorities and the UN human rights apparatus. To that extent, even though Indigenous rights are distinct from human rights, both discontinuist and interactionist approaches to Indigenous rights, along with the idea of human rights, are important to understand actually existing Indigenous rights.

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25 THE GIRJAS SAAMI CASE Indigenous Peoples’ Right to Dispose Freely of Natural Resources Jan Mikael Lundmark1

Introduction On January 23, 2020, in the Swedish Supreme Court, the Swedish Saami reindeer husbandry association Girjas successfully defended the Saami’s right to dispose freely of their natural resources, such as small game and f ish (wildlife resources). Considering the Saami’s status as an Indigenous People, the court ruled that Saami historic and undisturbed nomadic land use, with reindeer herding as the main source of subsistence and hunting and f ishing as subsidiary to it, meant Girjas – not the Swedish State – had the right to dispose of wild resources on Crown land2 located within the association’s year-round lands.3 As the Supreme Court conf irmed that Girjas, not the Swedish State, held the right of disposition of small game and f ish on Crown land in the area reserved for Saami exclusive use, the Girjas case has primarily been analysed from a property rights perspective.4 The focus of such analyses has been on how the court, through the application of national and international legal principles, has taken a more holistic approach to the importance of the Saami’s status as an Indigenous Peoples in assessing Saami land rights. Though it is diff icult to set aside the issue of land rights in such cases, this chapter argues that the Girjas case becomes more understandable if analysed from the perspective of the right of Indigenous Peoples to dispose freely of their natural resources as part of their human rights and freedoms.5

1 This chapter is partly based on the doctoral dissertation written by the author, “Access to Land, Access to Justice – The Divergence of Legal Protection: Cultural Protection for Sami Access to Land and Waters Under Swedish Law in Light of the European Convention for the Protection of Human Rights and Fundamental Freedoms,” Durham University, 2022, http://etheses.dur.ac.uk/14472/. 2 In the context of this chapter, Crown land is land under the direct disposition of the Swedish State but not necessarily owned by the State. 3 Year-round lands are lands where Saami reindeer herders are allowed to keep reindeer all year round. 4 See, inter alia, Allard Christina and Brännström Malin, “Girjas Reindeer Herding Community v Sweden: Analysing the Merits of the Girjas Case,” Arctic Review 12 (April 2021): 55–79; Sakshi, “The Girjas Case and Its Implications for the Sámi Hunting and Fishing Rights in Sweden,” Environmental Law Review 23, no. 2 (June 2021): 169–75; Eivind Torp, “Rättsliga följder av HD:s dom i Girjasmålet,” Svensk juristtidning (online) (August 2021). 5 For a more detailed analysis of the right to dispose freely of natural resources as a human right, see, inter alia, Jérémie Gilbert, “The Right to Freely Dispose of Natural Resources: Utopia or Forgotten Right?” Netherlands Quarterly of Human Rights 31, no. 3 (September 2013): 314–41. DOI: 10.4324/9781003404828-32 424

The Girjas Saami Case

This chapter aims to provide an analysis of the Girjas case within the context of Indigenous Peoples’ right to dispose freely of natural resources and to discuss the case’s wider impact as it stands at the time of writing. The f irst section provides a general background on the origin of the case and explains how an increased interest in hunting and f ishing in the Swedish mountains lead to the dispute over who had the right to dispose of these resources. The following sections present Girjas’ and the Swedish government’s key arguments around the question of whose rights are administered by the county administrative board: the Saami’s or the State’s. The penultimate section, which contains an analysis of the Supreme Court’s ruling, shows how international principles related to Indigenous Peoples formed the basis for the court’s handling of the case. In doing so the court stresses the general principle of the right of Indigenous Peoples to dispose freely of their natural resources. The last section provides a discussion of the wider impact of the Girjas case and sheds light on questions that have arisen due to the Reindeer Husbandry Act (RHA) being under revision as a result of the case.

A Sampling of the Historical Background and the Facts of the Dispute The Saami’s access to land and waters in their original homeland in northern Sweden for reindeer husbandry – the reindeer husbandry right – is based on ethnicity linked to a nomadic lifestyle.6 During the 1800s, Sweden increased its efforts to protect and secure the cultural lifestyle of the Saami’s nomadic way of life.7 This was done, inter alia, by establishing a boundary for settlement through which parts of the Saami’s original homeland in the Swedish mountains were reserved for their exclusive use.8 Moreover, Sweden passed legislation in 1886 aiming to secure the Saami’s historical rights and freedoms to use land and water for the maintenance of themselves and their reindeer.9 The rights and freedoms codif ied were considered to belong to the Saami as part of a “natural right to the conditions necessary for their existence.”10 Thus, though the regulation came into being to reduce conflict between the Saami and the settled population,11 another purpose of the codif ication was to ensure the material basis for the Saami’s cultural survival as distinct peoples with a characteristic cultural lifestyle.12 This included the right and freedom to hunt and f ish on both Crown and private land historically used by nomadic Saami.13 The current regulation of reindeer husbandry – the RHA – derives from the original 1886 statute. For this reason, underlying discussions of the 1886 law continue to be important in conflicts over Saami proprietary interests linked to land and waters.14 The RHA’s original purpose of protecting the Saami nomadic way of life and its material basis means that the act only ensures the possibility of hunting and f ishing for Saami who are involved in reindeer herding.15 This presupposes membership in a Saami reindeer husbandry community – a Saami village.16

6 Reindeer Husbandry Act (SFS 1971:437) (Rennäringslag) (RHA), s 1. 7 Riksdagstryck, Särskilt utskottsutlåtande 1886, Kongl. Maj:ts Nåd. Proposition N:o 1, 18f, 31f, 36 (Utskottsutlåtande, 1886:1). 8 Riksdagstryck, Propositioner 1886, Kongl. Maj:ts Nåd. Proposition N:o 4 (Prop. 1886:4). 9 Utskottsutlåtande, 1886:1, 19, 28–32. 10 Ibid., 31f. 11 Ibid., 1–14. 12 Ibid., 18, 28, 31, 36. 13 Ibid., 31. 14 NJA 2020:3 (Girjas Sami village) SSC, para 98. 15 RHA, s 25; Girjas Sami village (SSC), para 219. 16 Ibid., ss 1, 11.

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A Saami village is organised as an economic association with the aim of promoting the members’ interests linked to reindeer husbandry within a specif ic geographical area – a Saami village area.17 The Girjas village area, in northern Sweden, is divided into year-round land and summer pastureland. The year-round land located within Crown land reserved for Saami exclusive use (the area) was the subject of the dispute. In this area, Girjas has a limited right of self-determination and can regulate its members’ access to land and water for obtaining wildlife resources.18 In addition, the association may grant former members access to land and water to engage in hunting and f ishing.19 Apart from the right to grant former members access to land and water for obtaining wildlife resources, the RHA contains an explicit ban against Saami associations disposing of wildlife resources.20 The underlying misconception behind this prohibition was that the Saami were unable to handle such administration and that it was better handled by the State authorities.21 Consequently, in this f irst legislation regulating Saami access to land and water, the legislators introduced the legal basis for the Swedish government’s current right to control access to wildlife resources on Crown land.22 Since 1971, this right has been regulated in Sections 32–34 of the RHA, and the provisions on it, today delegated to county administrative boards, stipulate that access to land and water for hunting and f ishing purposes may be granted by the government.23 One caveat is that increased presence in the reserved area should not create a signif icant inconvenience to the reindeer-herding industry or affect the Saami village members’ own ability to hunt and f ish.24 Practice prescribes that, before access is granted, a dialogue should take place with the Saami village concerned, giving them the ability to influence the process. As a result of an increased interest in hunting and f ishing on Crown land in the 1980s, Saami influence over wild resources came under pressure.25 Thus, the Girjas conflict did not result from the RHA alone but was a consequence of an increased interest in access to Crown land and water. The underlying dispute lies in a legal regulation that followed a proposal presented after a review of Swedish hunting and game management, which suggested increased hunting on Crown land in the areas reserved for the Saami.26 This proposal, which was presented in 1983, led to a decade of discussions and bills regarding access to wildlife resources on Crown land.27 Despite criticism from the Saami, inter alia, of a lack of consideration of Saami proprietary interests in these resources, the Swedish government presented a bill in 199228 that contained proposals for increased access to Crown land for obtaining wildlife resources.29 The bill passed the Swedish Parliament, and the government subsequently amended the Reindeer Husbandry Ordinance, which forms the basis for the exercise of authority linked to the RHA.

17 RHA., ss 9–10. 18 Ibid., s 35. 19 Ibid., s 31. 20 Ibid. 21 Ibid., s 33. 22 Riksdagstryck, Propositioner 1886, Kongl. Maj:ts Nåd. Proposition No. 2, 10. 23 RHA, s 32. 24 Ibid. 25 Sametinget, Beslutet om småviltjakten: en studie i myndighetsutövning (Kiruna: Sametinget, 1994), 23–35. 26 SOU 1983:21, Vilt och jakt: huvudbetänkande, 204. 27 Sametinget, Beslutet om småviltjakten, 19–21. 28 Ibid., 32–35. 29 Ibid., 20; Prop. 1992/93:32, 131.

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In accordance with this amendment, the authorities had to grant access to land and water on Crown land unless doing so would cause signif icant inconvenience to reindeer husbandry or interfere with the ability of Saami village members to hunt and f ish.30 This imperative raised questions about the authorities’ ability to refuse access to land and water after a dialogue with the Saami village concerned because, while the RHA enabled authorities to grant access to land, the regulation imposed a requirement on them to do so. The consequence, according to several Saami associations, was a loss of Saami influence in the granting process.31 Another problem with the process of increasing access to Crown land for obtaining wildlife resources was that the Saami saw this as an attempt by the Swedish government to establish private hunting and f ishing rights within Crown land.32 As will be shown, State sovereignty over land and waters that are not privately owned does not automatically establish State-held private rights to resources located within this land and waters. According to the Saami, the government’s actions were an attempt to consolidate the applicability of the legal theory of dual hunting and f ishing rights on Crown land.33 The theory of dual hunting and f ishing rights suggests that regardless of whether others may have a right to hunt and f ish in a certain area, the starting point is that the landowner holds the hunting and f ishing rights.34 A person, natural or legal, may hold prescriptive rights to hunt and f ish, for example.35 The difference between hunting and f ishing rights and rights to hunt and f ish is that only the former entails a right of disposition.36 The Swedish State has had title deeds to the conflict area since 1956; thus, according to the norm, as a result of the registration, the State had hunting and f ishing rights, and Girjas only had the more limited right to hunt and f ish, as expressed in RHA.37 As the following sections show, however, it is not suff icient for the State to refer to a registration of a title deed as the basis for asserting private rights on Crown land historically used by the Saami. This applies especially to resources the Saami have traditionally used and to which the State has not asserted its right.

The Key Arguments of the Girjas Association Due to the fundamental principle of the landowner holding the right of disposition of wildlife resources, the issue of State ownership over the area of dispute should have been of importance for the Supreme Court’s assessment. Girjas, however, considered the question of whether the Swedish State is the legitimate owner of the area irrelevant to resolving disputes over the Saami’s right to

30 Reindeer Husbandry Regulation (SFS 1993:384) (Rennäringsförordning), s 3. 31 See, inter alia, Könkämä and 38 Other Saami Villages v Sweden App no 27033/95 (Commission Decision, November 25, 1996). 32 Sametinget, Beslutet om småviltjakten, 40f.; Gällivare District Court, application for summons in Girjas Sami village case, 2009– 05–11, T 323–09 (case f ile 1) DC, para 3.4. 33 Ibid. 34 This theory is tracible to changes in the Hunting Act and the Fisheries Act during the 1980s and 1990s, Bertil Bengtsson, “Om Jakt och f iske i fjällmarken,” Svenska juristtidning (online) 1, no. 1 (2010): 82. See also SOU 2005:17, Vem får jaga och f iska? – Rätt till jakt och f iske i lappmarkerna och på renbetesfjällen; Jaktlag (1987:259) (Hunting Act), s 10; Fiskelag (1993:787) (Fisheries Act), s 9. 35 Girjas Sami village (SSC), para 29. 36 Ibid., para 24. 37 That the State is a legitimate owner of the area (or Area?) is something that Girjas questions, District Court of Gällivare’s ruling, 2015–02–03, T 323–09 (Girjas Sami village) DC, para 6.10. See also RH 2001:56 (Sörkaitums Sami village) Nothern Norrland CoA.

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dispose freely of the area’s wildlife resources without government intervention.38 Girjas claimed that it, not the Swedish State, held the right to wildlife resources in the area based on historical Saami presence and use of resources in the area.39 Regarding the legal basis for its claim, Girjas f irst argued that the Saami’s right to dispose freely of wildlife resources followed directly from the RHA.40 This argument was based on the RHA’s rule prohibiting Saami from granting access to land and water for hunting and f ishing purposes, controlling Saami possessions based on the preconception that they lack suff icient organisation to cope with such administration.41 The Saami thus had a statutory right to dispose freely of wildlife resources in areas reserved for them, but this possibility was limited through the 1886 Act by the State taking over control. This was based on a derogatory argument that the Saami could not handle such disposition. Girjas also argued that the Saami’s right to dispose freely of wildlife resources followed from the historical Saami use of the area and its resources.42 Regarding this argument, Girjas found the label of the underlying principle – customary law, or immemorial prescription –unimportant.43 What was of importance was that the Saami had, uncontested, used the area and its resources for a prolonged time without any signif icant competition or objections.44 Moreover, Girjas highlighted the necessity of considering the status of the Saami as an Indigenous Peoples when considering the nature and scope of Saami rights and argued that, on this status, the Saami had a right to dispose freely of wildlife resources in the area.45 Girjas claimed that these grounds conf irmed its right to dispose freely of wildlife resources in the area and argued that the RHA rules preventing it from exercising its right over such resources violated its proprietary interests ensured under the Swedish Constitution (Instrument of Government) and the European Convention on Human Rights and Fundamental Freedoms (ECHR).46

The Response of the Swedish Government The Swedish government, for its part, declared that there was no support for an interpretation of the RHA that suggested the Saami had a right to dispose freely of wildlife resources in the area.47 Rather, they claimed, the Saami had only a limited right to hunt and f ish. Just as Girjas argued that, at the time of the codif ication of Saami rights and freedoms in the late 1800s, it was Saami wildlife resources that became regulated and administered by Swedish authorities, the government argued that the codif ication was based on an established view among the drafters that the State had

38 Girjas Sami village (SSC), para 38. 39 Girjas Sami village (Summons) (DC), paras 1.1, 2.1.1; Girjas Sami village (DC), paras 2–3; Girjas Sami village (SSC), paras 5, 37. 40 Girjas Sami village (SSC), para 6. 41 Girjas Sami village (Summons) (DC), para 3.2.3. See also Utskottsutlåtande, 1886:1, 32. 42 Girjas Sami village (SSC), para 6. 43 Ibid., para 6; Girjas Sami village (DC), para 3. 44 Girjas Sami village (SSC), para 5. 45 Ibid., para 6; Girjas Sami village (DC), para 3. 46 Girjas Sami village (Summons) (DC), para 2.1.2; Girjas Sami village (DC), paras 2–3; Girjas Sami village (SSC), para 8; Instrument of Government (Kungörelse (1974:152) om beslutad ny regeringsform) (IOG), c 2, s 15; European Convention for the Protection of Human Rights and Fundamental Freedoms (November 4, 1950, EIF, September 3, 1953) ETS 5, 213 UNTS 222 (ECHR); Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted March 20, 1952, EIF, May 18, 1954) ETS 9, art 1. 47 Girjas Sami village (SSC), para 9; Girjas Sami village (DC), paras 3, 6.3.2.

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ownership claims to the Crown land.48 Consequently, the rights administered by the State were those of a private landowner.49 Thus, a Saami association, such as Girjas, would not have a right to dispose freely of all wildlife resources on Crown land, and neither the RHA nor the preparatory work from the 1800s supported such a claim. Additionally, the Swedish government argued that there was no other legal rule or principle that could support Girjas’ claim to a right of disposition of wildlife resources.50 The underlying perception was that neither customary law nor immemorial prescription was applicable for several reasons. For example, according to the government, a collective could not invoke immemorial prescription since the principle only applied to individuals.51 Nor could collective use result in rights for a Saami reindeer husbandry association, according to customary law.52 The government also rejected early on that the Saami’s status as an Indigenous Peoples was relevant in the case, as Sweden had no obligations under international law to recognise any special rights for the Saami.53 Finally, the Swedish government stated that if the Supreme Court concluded the State lacked private rights to wildlife resources in the area, the provisions in the RHA governing the right of disposition should not apply in relation to the area. This concession is important because it prevented the court from examining whether the provisions were, in principle, incompatible with the Swedish Constitution. Consequently, because the court found that Girjas has the right to dispose freely of its wildlife resources in the area, the rules governing the right of disposition continue to apply in relation to the other Saami associations.

Analysis of the Supreme Court’s Judgement As this section shows, the Saami’s status as Indigenous Peoples underlies the Supreme Court’s consideration of the case. The court’s reference to international legal principles linked to Indigenous Peoples is particularly important, as such principles impose obligations on States to consider duly the historical rights and freedoms of Indigenous Peoples linked to traditionally occupied areas and their resources. Before addressing the merits of the case, the Supreme Court rejected new circumstances relied on by the Swedish government in support of having sovereign rights in the area. In its submission, the government claimed that the area had constituted a common land, and in accordance with the principle of eminent domain, the State thus had established rights to resources in the area.54 This would mean that the Saami would not be able to invoke the right of disposal over the wildlife resources in the area because a general right to hunt and f ish on common land does not include such a right. Though the court refused to examine the claim that the area had constituted a common land, it touched on the subject in its analysis of the legal situation at the end of the 1800s, when the f irst national regulation on Saami access to land and water was compiled. In its historical overview of preparatory works predating the codif ication on Saami rights and freedoms linked to land and water, the court emphasised that nothing in these works indicated that Crown land was considered

48 Girjas Sami village (DC), paras 6.3.2. 49 Ibid., para 6.3.2. 50 Girjas Sami village (SSC), para 9. 51 Girjas Sami village (DC), para 6.3.2. 52 Ibid., para 6.3.2. 53 Ibid. 54 Girjas Sami village (SSC), para 12.

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to constitute common land during the codif ication process.55 Following directly from the preparatory work for the f irst regulation on Saami land rights, which clearly emphasises that the Saami right to land and water is older than the Swedish State, there is no basis for an interpretation that this right to wildlife resources has been crystallised from a more general right to hunt and f ish on commons.56 Turning to the alleged violation of Girjas proprietary interests, the Supreme Court f irst considered whether Girjas had the right to dispose freely of wildlife resources under the RHA. As the following section explains, the court found that the underlying documents for the f irst regulation of Saami rights and freedoms linked to land and water did not allow for such an interpretation.

Saami Right of Disposition of Wildlife Resources Under the Reindeer Husbandry Act The general norm, according to the RHA, is that the freedom to hunt and f ish that individuals have due to their membership in a Saami community is non-transferable.57 Individual members and Saami associations thus lacked the right to dispose freely of wildlife resources. Consequently, it was the Swedish authorities who administered access to Crown land for hunting and f ishing purposes.58 The key issue of the case in relation to the RHA was whether administration of hunting and f ishing by the Swedish authorities was of Saami or State resources. Since, under the RHA, the Saami are de facto entitled to wildlife resources within Crown land, the key question was whether the Swedish State had similar rights and, if so, when these had arisen. A lack of private rights to wildlife resources for the State could mean that the rules in RHA regarding the right of disposition de facto concerned Saami possessions. Central to the Supreme Court’s analysis of whether that State had private hunting and f ishing rights in the area was the legal situation at the time when Saami rights and freedoms linked to land and water were codif ied in 1886. The court’s ruling thus contained a thorough analysis of historical reforms that preceded the codif ication.59 In this way, the court could determine whether these reforms had resulted in a deprivation or limitation of historical Saami rights and freedoms.60 The purpose of several reforms made over the centuries in the northern part of Sweden was to clarify the legal situation regarding access to land. One example of such reforms was the land tenure reforms that distributed Crown lands into private ownership.61 The settlement boundary established in the 1800s reserving certain mountain areas for the Saami’s exclusive use was another reform.62 The court explained that none of these reforms aimed to deprive the Saami of existing rights and freedoms but rather to clarify the nature and scope of settlers’ rights and freedoms linked to land and waters, a reasoning that shows how sovereign rights to control access to land and waters are separate from the question of whether the State has private rights on Crown land.63 Thereby, the court distinguishes between sovereign disposition rights and private law disposition rights that come

55 Ibid., para 60. 56 Utskottsutlåtande, 1886:1, 19. 57 RHA, ss 25, 31. 58 Ibid., ss 32–34. 59 Girjas Sami village (SSC), paras 42–86. 60 Compare ibid., para 48. 61 Lars Rumar, Historien och Härjedalsdomen: en kritisk analys (Umeå: Umeå universitet, 2014), 145–66. 62 Tomas Cramér and Gunnar Prawitz, Studier i renbeteslagstiftningen (Stockholm: Norstedt, 1970), 21–39. 63 Girjas Sami village (SSC), paras 47–54.

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with ownership, suggesting that a sovereign right over an area does not automatically give rise to private law rights. As mentioned, the nature and scope of Girjas’ lawsuit prevented the Supreme Court from ruling on whether the Swedish State was the rightful owner of the Area, but the court clarif ied that “the established perception towards the end of the 19th century was that undeveloped land in the interior of Norrland was typically owned by the State.”64 This conclusion arguably followed from the preparatory work underlying the f irst regulation of Saami rights and freedoms in 1886. The court noted, inter alia, a lack of information in the preparatory works indicating that the legislators perceived the Saami as co-owners in areas of Crown land reserved for Saami exclusive use.65 This lack of support for co-ownership indicated, according to the majority of the court, that the State, in line with the general rule of wildlife resources belonging to the landowner, held the right of disposition of these resources in Crown land.66 Moreover, the preparatory work expressly limits the Saami’s right to dispose freely of their natural resources in the manner prescribed by law.67 The rules in the RHA prohibiting the Saami from freely disposing of wildlife resources, the court stated, are also textually clear; therefore, it is not possible to interpret the RHA – either in light of the Swedish Constitution or international law – as suggesting the Saami had a right to dispose freely of wildlife resources.68 Consequently, Girjas’ claim that it has the right to dispose freely of wildlife resources in the Area according to the RHA could not be substantiated.69

The Centrality of International Principles of Law for Saami Constitutional Protection The Supreme Court f irst refers to the value of international legal principles relevant to Indigenous Peoples in relation to the Swedish Constitution during discussions of whether the RHA rules – which limit the Saami’s right to dispose freely of wildlife resources – can be interpreted differently. This discussion is important, as it sets the standard for the court’s subsequent application of international principles when applying the national principle of immemorial prescription to the case. An assessment, as the next section explains, led to the conclusion that Girjas has a right to dispose freely of wildlife resources within the Area. The Swedish Constitution does not ensure protection of a right with respect to culture. Saami cultural protection is instead included as a general goal the authorities must strive for when exercising authority: The opportunities of the Saami people and ethnic, linguistic and religious minorities to preserve and develop a cultural and social life of their own shall be promoted.70 Thus, authorities should strive to facilitate the Saami’s ability to maintain and develop their culture. This lack of a constitutionally protected right of respect for the Saami’s cultural way of life as an

64 Ibid., para 55 (author’s translation). 65 Ibid., para 105. 66 Ibid., paras 55, 108, 114, 123. 67 Ibid., para 106. 68 Ibid., para 90. 69 Ibid., paras 123–24. 70 IOG, c 1, s 2(6) translated by Magnus Isberg, The Constitution of Sweden: The Fundamental Laws and the Riksdag Act (Stockholm: Sveriges Riksdag, 2016), 65.

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Indigenous Peoples does not, the Supreme Court explained, mean that the constitutional reference to Saami culture is irrelevant in disputes over resources: It may nevertheless have some material signif icance in such an application of law where it is a question of weighing several factors against each other. The Saami interest in being able to maintain their culture, including reindeer husbandry, must be given special importance in such a balance.71 The court further explained that what the constitution prescribes regarding the safeguarding of the Saami’s ability to preserve and develop their culture reflects international principles linked to safeguarding ethnic minorities.72 Of particular interest is the Supreme Court’s reference to the principle that all peoples have the right to dispose freely of their natural resources, which can be found in Article 1.2 of the two International Covenants of Human Rights: All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benef it, and international law. In no case may a people be deprived of its own means of subsistence.73 This reference is of fundamental importance as it legally conf irms the Saami’s status as a People within the meaning of international law and thereby expands on the body of rights that are relevant to the interpretation of the nature and scope of Saami rights and freedoms as an Indigenous People. Even though not recognising a full right of self-determination, it is a recognition that the Saami have the right to a certain degree of autonomy regarding traditionally used land and resources and how the land and its resources are used.74 That the court refers to the norm of Peoples’ right to selfdetermination and their right to have their autonomy respected is also apparent from the reference to Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).75 This provision outlines the right of Indigenous Peoples to “use, develop and control” traditional areas and resources and which obligates the State to ensure the protection of these rights while considering “customs and traditions and tenure systems.”76 Principles of signif icance for the rights and freedoms of Indigenous Peoples linked to historical land outlined in other documents Sweden has not, as in the case shown, ratif ied. As the following section shows, the court highlights the International Labour Organization’s Indigenous and Tribal Peoples in Independent Countries (ILO C169) as an example. This in its analysis of the Girjas case in relation to the national statutory principle of immemorial prescription.77 The ability of the court

71 Girjas Sami village (SSC), para 92 (author’s translation). 72 Ibid., para 93. 73 International Covenant on Economic, Social and Cultural Rights (December  16, 1966, EIF, January  3, 1976) 993 UNTS 3 (ICESCR); International Covenant on Civil and Political Rights (December 16, 1966, EIF, March 23, 1976) 999 UNTS 171; 1057 UNTS 407 (ICCPR). 74 Javaid Rehman, International Human Rights Law (Harlow: Longman, 2009), 86f, 472–80. 75 United Nations Declaration on the Rights of Indigenous Peoples (October 2, 2007) A/RES/61/295 (UNDRIP). 76 UNDRIP, Article 26. 77 ILO, “Convention Concerning Indigenous and Tribal Peoples in Independent Countries” (June 27, 1989, EIF, September 5, 1991) 28 ILM 1382 (ILO C169).

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to take due account of non-ratif ied documents is based on there being no general obstacles, meaning that principles of international law can provide an aid for “interpretation of applicable laws even if transposition has not taken place through legislation.”78 The court thus takes a similar position to those applied in other legal systems, which is that international law can give rise to legitimate expectations on the basis of general principles of law and thus needs to be taken into due account at domestic levels even if the documents expressing those principles have not been transposed into national law.79 As the next section shows, the Supreme Court’s view on the applicability of international principles of importance to Indigenous Peoples underpins its conclusion that Girjas – according to the principle of immemorial prescription – held the right to dispose freely of its natural resources in the Area. The reference to international principles linked to Peoples also shows that the goal set by the Swedish Constitution aiming to ensure the ability of the Saami to preserve and develop their culture includes taking due account of rights and freedoms of Peoples and Indigenous Peoples prescribed by international principles as referred to by the court in its ruling.

Saami Right of Disposition of Wildlife Resources According to Immemorial Prescription In relation to the assessment of whether Girjas had the right to dispose freely of its natural resources on legal grounds other than RHA, the Supreme Court stressed the need to consider principles of international law aimed at securing cultural protection for Indigenous Peoples.80 As previously mentioned, the constitutional basis for cultural protection sets a goal for the authorities to take steps to promote conditions for the continued existence and development of Saami culture. The full scope of this obligation remains unclear, but the court considered it to include placing special weight on Saami customs and customary law in balancing interests in land disputes:81 If it is a precondition for maintaining the culture, it may therefore be necessary to ensure their continued access to land traditionally used. In international practice, principles of customary law have been given special importance in the determination of such land rights.82 The Supreme Court’s reasoning in the judgement expands the nature and scope of the cultural protection provided by the Swedish Constitution to the Saami. This follows from the court’s reference to international principles mentioned but also to Article 8 (1) and 14 (2) of ILO C169, a convention that Sweden has not ratif ied.83 As explained, international legal principles are valuable as interpretation aids to resolve disputes related to the Saami, regardless of whether Sweden has ratif ied the document. Article 8(1) of the ILO C169 expresses the same principle prescribed in Article 26 of the UNDRIP and prescribes an obligation of States suggesting that “[i]n applying national laws and

78 Girjas Sami village (SSC), para 94 (author’s translation). 79 See, inter alia, Rebecca M. M. Wallace and Olga Martin-Ortega, International Law, 6th ed. (London: Sweet & Maxwell, 2009), 47f; D. J. Harris, Cases and Materials on International Law, 6th ed. (London: Sweet & Maxwell, 2004), 66–68. 80 Girjas Sami village (SSC), paras 92, 130–31. 81 Ibid., paras 130–32. 82 Ibid., para 131 (author’s translation). 83 Ibid., paras 130, 162.

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regulations to the peoples concerned, due regard shall be had to their customs or customary laws.”84 The applicability of this article for the Supreme Court is based on its constituting a general principle of international law, and consequently there is an obligation under international law for Sweden to consider its content.85 Though not clearly stated, Article 14(2) of the ILO C169 also, in part, expresses a general principle of international law: Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possessions. This means, inter alia, for the legal protection of Saami rights and freedoms linked to traditional areas to be practical and effective rather than theoretical and illusionary, national laws and principles must consider the wider context to give due regard to the interest of the rightsholder. In the Girjas case, the Supreme Court did this by placing the principle of immemorial prescription in a Saami nomadic reindeer-herding context.86 The portal section of the RHA prescribes that the Saami’s right to land and water ultimately rests on the principle of immemorial prescription.87 This is a historic principle that was f irst introduced in the RHA in 1993 as a result of the Supreme Court’s ruling in another Saami case, Skattefjällsmålet.88 Originally, the principle was applied in southern Sweden as a ground to assert a protected right of possession to cultivated areas that have been left desolate.89 It follows that, in its original state, the principle was poorly adapted for the Saami’s nomadic use of extensive areas of land. In addition, the Saami have an oral tradition with little self-produced documentation of their customary land use.90 This, the court noted, was a practical problem when it was to take due account of Saami customs and customary law, which international legal principles prescribed should take place.91 One reason was that documents created by authorities for other purposes, such as f iscal, cannot with certainty be accepted to reflect Saami customs in an accurate manner.92 For this reason, to ensure practical and effective protection of Saami rights and freedoms as Indigenous Peoples, the court found it necessary to adapt the principle of immemorial prescription to a Saami context.93 In view of the characteristic Saami land use over extensive areas, adapting the principle to a Saami context meant an alleviation of evidentiary burden regarding the criteria required by the principle.94 In other words, inter alia, the court was willing to accept that gaps in the evidence be f illed with reasonable assumptions.95 In light of Saami land use and legal conditions in

84 ILO C169, Article 8 (1). 85 A general principle of international law is standards that are recognised in several national legal systems. See, inter alia, Wallace and Martin-Ortega, International Law, 23–25; Harris, Cases and Materials on International Law, 44–47. 86 Compare, Airey v Ireland Series A no 41 (1979) 2 EHRR 305, para 24. 87 RHA, s 1. 88 Prop. 1992/93:32, 2, 12, 85; NJA 1981:1 (Taxed Mountains) SSC. 89 Girjas Sami village (SSC), para 137; Christina Olsen Lundh, “Tvenne gånger tvenne ruttna gärdesgårdar – Om urminnes hävd och vattenkraft,” Nordic Environmental Law Journal 2, no. 2 (2013): 85–93. 90 Ibid., para 162. 91 Ibid., paras 162–64 (with reference to ILO C169, Article 14 [2]). 92 Ibid., para 164. 93 Ibid., paras 147–49. 94 Ibid., para 162. The criterion was a prolonged and continued use and possession of def inable real property, where the use reached a certain intensity and remained unquestioned. Ibid., para 140. 95 Ibid., para 163.

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other areas the Saami have historically used, it could reasonably be assumed that the same conditions applied in Girjas’ geographical area.96 Consequently, the Girjas did not have to show exactly which Saami had used the Area, how it had been used or how individual rights and freedoms had passed from generation to generation.97 Based on the substantive evidence, the Supreme Court concluded that from the mid-1700s, in accordance with the principle of immemorial prescription as adapted to the Saami situation, individual Saami had an established right to dispose freely of wildlife resources in the Area.98 The reasons for this conclusion were, inter alia, that Saami hunting and f ishing in the Area had not been subjected to signif icant competition; rather, it had dominated.99 The Saami had also granted others access to the Area for hunting and f ishing purposes without it having been questioned.100 Moreover, the court found a lack of evidence showing that the Swedish State historically had claimed it had hunting and f ishing rights in the Area. In conclusion, the court found that Saami in the area had held the right to dispose freely of wildlife resources in the Area from at least the mid-1700s.101 In addition, there was no indication that the State had subsequently taken any measures leading to the right being extinguished.102 The right of disposition that the Saami had in the Area since the mid-1700s thus remained when the f irst national regulation of Saami access to land and waters came into effect in 1887.103 Through this f irst regulation of Saami access to land and water in the late 1880s, the Supreme Court explained, hunting and f ishing became intimately linked to rights and freedoms alongside the practice of reindeer herding.104 The administrative regulation of reindeer herding in Saami communities subsequently linked individual rights to dispose of wildlife resources with local Saami communities.105 Consequently, the right of Saami individuals to dispose of wildlife resources was transferred through the State administration of reindeer husbandry to Saami villages.106 It followed that Girjas held the rights to dispose of wildlife resources in the Area on the basis of the principle of immemorial prescription.

The Wider Impact of the Girjas Saami Case The Supreme Court ruling in the Girjas case represents important progress in the protection of the Saami’s rights and freedoms linked to their ancestral land. The ruling clarif ies that Sweden’s obligations to protect Saami cultural heritage and its material foundation extend beyond merely facilitating a nomadic way of life. This obligation includes a duty of care to take due account of legal developments linked to Peoples and Indigenous Peoples. This legal development is to establish effective legal protection of Saami rights and freedoms linked to traditional territories and resources. Such protection presupposes a right to dispose freely of natural resources and influence decisions that affect this ability; it aims to ensure safeguards for the Saami to maintain and develop their culture in accordance with their own choices, which is in line with the principles of self-determination

 96 Ibid.  97 Ibid.  98 Ibid., para 205.  99 Ibid., paras 202, 205. 100 Ibid., para 205. 101 Ibid., para 206. 102 Ibid., paras 208–17. 103 Ibid., paras 218–21. 104 Ibid., para 219. 105 Ibid., para 220. 106 Ibid., paras 220–21.

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and personal autonomy. However, though Indigenous Peoples’ right to peaceful enjoyment of traditionally used land and resources is a norm that underlies the Supreme Court’s reasoning, the wider impact of the ruling is not straightforward. That Girjas, as an association, has the right to dispose freely of wildlife resources on Crown land due to the Saami’s historical residence in the Area not being exposed to signif icant competition means that the value of the ruling for other Saami associations where colonisation has progressed further remains uncertain. The same uncertainty prevails in relation to privately owned land, where landowners hold the right of disposal as a starting point. For a right to dispose freely of wildlife resources on private land to be considered to exist, it must also have been exercised. Thus, it is highly uncertain whether the Saami have an existing right of hunting and f ishing on private land in areas where such a right has not been exercised but only the more limited right to hunt and f ish. To extend this right to include a right of disposition also risks coming into conflict with the property rights of private landowners. The wider impact of the ruling on existing rights and interests and the relationship between reindeer herders, Saami associations and the Saami in general is also uncertain. The issue of different stakeholders has come to the fore due to the Swedish government appointing the Judicial Inquiry Commission to review the RHA.107 This review focuses solely on Saami rights, and one of the tasks is to review whether non-Saami association members have the right to hunt and f ish on the basis that these activities form an important part of Saami culture.108 Thereby, the review risks creating internal conflicts of interests and rights within the Saami community. That a Saami association may hold the right to dispose freely of wildlife resources on traditional Saami land does not exclude individual reindeer-herding Saami from having individual protected interests or legitimate expectations of peaceful enjoyment of hunting and f ishing under the ECHR.109 Moreover, the reindeer-herding community is a minority within the Saami community, and the Swedish State has an international obligation to ensure protection of the cultural dimension of the private and family life of reindeer herders in light of their engagement in a culturally specif ic activity.110 This includes hunting and f ishing which complement reindeer husbandry and thus form a central part of the reindeer herders’ private and family life, making them culturally specif ic activities.111 Questions about internal legal relations within the Saami community will, as mentioned, be examined by the commission appointed by the Swedish government to review the RHA. One of the fears of the Saami associations is that the review will weaken their legal protection in favour of a Saami majority and a more general Saami interest in hunting and f ishing.112 In the end, the issue will be decided politically, as the proposals made by the commission to become law must pass the Swedish Parliament and potentially be discussed in the Saami Parliament. In this context, a relevant question is why the Swedish government appointed a justice from the Supreme Court who has extensive experience of conflict resolution as convener for the commission.

107 Näringsdepartementet (Dir 2021:35), En ny renskötsellagstiftning – det samiska folkets rätt till renskötsel, jakt och f iske. 108 Ibid., 6. 109 See, inter alia, Matos e Silva, lda, and Others v Portugal (1997) 24 EHRR 573 and Dogan and others v Turkey (2005) 41 EHRR 15. Also compare Friend, Countryside Alliance and Others v the United Kingdom App nos 16072/06 and 27809/08 (ECtHR, November 24, 2009). 110 ECHR, Article 8, see, inter alia, Chapman v the United Kingdom (I) (2001) 25 EHRR CD64 and Winterstein and Others v France App no 27013/07 (ECtHR, October 17, 2013); ICCPR, Article 27, see, inter alia, UNHRC, CCPR General Comment No. 23: Article 27 (Rights of Minorities), April 8, 1994, CCPR/C/21/Rev.1/Add.5, paras 3, 6, 7. 111 See, inter alia, Halvar From v Sweden App no 34776/96 (Commission Decision, March 4, 1998). Also compare Chassagnou v France (2000) 29 EHRR 615. 112 Swedish Saami National Association’s Conference of Presidents (October 21–22, 2021, Stockholm).

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26 NATURAL RESOURCE DEVELOPMENT IN THE ARCTIC AND THE QUESTION OF SAAMI LAND RIGHTS IN FINLAND Tanja L. Joona1,2 and Juha Joona3 Introduction The Arctic and other northern regions are often described as beautiful, clean environments where the four seasons are still clearly visible. On the other hand, negative things have also been associated with these regions; the population density is sparse, distances are long and the population is aging. Young people move to the cities and the south in pursuit of education and a good livelihood. In some areas, people partially or entirely practice the traditional livelihoods of reindeer husbandry, hunting and f ishing, which require physical resilience and adaptation to the natural conditions. In addition, these livelihoods keep the northern areas populated and are passed on from one generation to the next. Thus, the preservation of the native population’s culture is, in many cases, connected to the preservation of these livelihoods.4 The Arctic region is also of global interest because more minerals are needed to grow green industries. These requirements are challenging. Electricity production should be environmentally friendly, and carbon sinks should be increased by not cutting down forests. In many cases, however, these requirements are not met, which leads to dwindling opportunities for Indigenous Peoples to continue practising their traditional livelihoods. For example, reindeer-herding areas are narrowing as grazing areas are shrinking, and there are no new grazing lands to compensate for the losses. The Arctic is seen as an early warning system, demonstrating the urgent need to combat climate change, which is happening faster in this region than in the rest of the globe. However, this region is under tremendous pressure due to various economic developments that also aim to combat climate change. The situation is paradoxical, and some people even refer to it as “green colonialism.”

1 Senior Researcher and Associate Professor of Public International Law, Arctic Centre, University of Lapland. E-mail: [email protected] i. 2 This Handbook chapter received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement no. 869327, JUSTNORTH. 3 Senior Researcher, Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland. E-mail: [email protected] i. 4 Tanja Joona and Pigga Keskitalo, “Youths’ and Their Guardians’ Prospects of Reindeer Husbandry in Finland,” in Young People, Wellbeing and Placemaking in the Arctic, eds. Florian Stammler and Reetta Toivanen (New York: Routledge, 2022), 93–119.

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Finland is also committed to the European Union’s climate goals, aiming to be carbon-neutral by 2035. To understand the current situation in Finnish Lapland and the experience of injustice with regard to land use projects and the current situation, it is necessary to go back in time. Therefore, this chapter of the Handbook focuses on historical events and issues that have had a broad impact on the current situation in Finnish Lapland. These events and issues have their roots in the 17thcentury Settlement Bill of Lapland by King Charles IX (1673). In the 18th century, the Saami were still considered the owners of the lands north of the Lapland border. This view was partly based on the ordinances of two Swedish kings, Charles IX and John III. The settlement of Kemi and Tornio Laplands – located in the territory of present-day Finland – and the more effective use of Lapland’s natural resources marked the beginning of the area’s colonisation, resulting in the Saami people’s de facto loss of ownership of the lands and waters in the area.5 Whether they lost their ownership of the lands and waters in Lapland in a legally acceptable manner remains unclear. It is important to understand the overall current economic activities in Lapland because their roots can be traced far back in history. People in other areas have had different experiences, such as the construction of the Lokka Reservoir,6 the most extensive reservoir in the European Union, upstream of the Luiro River in Sodankylä in north-eastern Lapland. Depending on the water level, it covers an area of 216–418 km². The corresponding water levels are 240–245 metres above sea level. The f illing of the Lokka Reservoir began in 1967, and with this reservoir, the amount of water coming to the power plants in Kemijoki (river) could be regulated. However, upon the completion of its construction, nature conservationists highly criticised it.7 In this chapter of the book, the current land use issues in Lapland are examined through three contemporary case studies, all of which could be evaluated more in light of the historical events and especially the awakening of Saami activism and politics in the 1960s. The f irst case study concerns the Common Forest of Inari and the diff iculty of obtaining income from it for nature conservation purposes. The second case study concerns a large wind power project, the Honkavaara-Isovaara wind farm in western Lapland. The third case study concerns a mining plan in Sokli that has been going on for decades. Previous research has focused, for example, on the damage caused by other land uses to reindeer husbandry, especially from the point of view of natural science, and on the assessment of the environmental and social impacts of projects. Very little research has been done from the perspective of justice and holistically taking into account the land use issues of the entire Lapland region and their historical continuum. The materials used in the article are historical materials (court minutes), legislation and policy documents, interviews and media materials. The aim is to help the reader understand the consequences of certain historical events and the political decisions that followed these and consider the effects of such events on the present, where world politics affects countries’ energy requirements and climate change forces us to invent new ways to restrain the increase in global temperature. For our

5 Juha Joona, Ikimuistoinen oikeus – tutkimus Lapin alkuperäisistä maa-ja vesioikeuksista, Juridica Lapponica 46 (Rovaniemi, Lapin yliopisto: Arktinen keskus, 2019). See also Kaisa Korpijaakko-Labba, Saamelaisten oikeusasemasta Ruotsi-Suomessa: oikeushistoriallinen tutkimus Länsi-Pohjan Lapin maankäyttöoloista ja-oikeuksista ennen 1700-luvun puoliväliä (Helsinki: Helsin Lapin Korkeakoulun Julkaisuja, 1989). 6 In Finnish: Lokan tekojärvi, Lokan allas; short form: Lokka. 7 Lokka muutosten näyttämönä [Lokka as a Scene of Change], Acta Lapponica Fenniae 23, eds. Leena Pyhäjärvi et  al. (Rovaniemi: Lapin tutkimusseura, 2011); Minna Turunen, “Review of Drowning Reindeer, Drowning Homes: Indigenous Sami and Hydroelectricity Development in Sompio, Finland by Kausu Mustonen, et al.,” Arctic 64, no. 4 (2011): 489–90.

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research question, we ask how the Saami people’s right to use their lands and waters can be secured within the framework of the current legislation and how green transition can be realised while taking into account the rights of Indigenous Peoples. Following this introduction, the next section relates the historical events on which the Saami people’s strong rights of ownership and control over their lands and waters were based. Thereafter, we present related cases from different parts of Lapland. Finally, we explore the relationship between the historical events and the current situation from the perspective of justice before presenting our conclusion from different perspectives of justice.8

Historical Overview The three neighbouring Nordic countries, Finland, Sweden and Norway, are said to have much in common. This is true in many ways as these countries share a long, common history. In addition, the legal systems of these three Nordic countries are based on the same principles and have much in common. This is especially true of Finland and Sweden. Until 1809, the area of ​​present-day Finland belonged to Sweden, and Swedish law was applied in the area. In the Peace Treaty of Hamina entered into by Sweden and Russia in that year, it was agreed upon that legislation under Swedish rule would continue to be complied with in Finland in the future. Indeed, legislation inherited from Swedish tradition has remained the backbone of the Finnish legal system until the modern times. This is evident in property and real estate law, which deals with land and water rights. The Saami are an Indigenous People whose original residential area is located in the northern part of Fennoscandia. As late as in the end of the 17th century, this area was inhabited only by the Saami, who earned their living from hunting, f ishing, reindeer husbandry and food gathering. The area occupied by the Saami was divided into the so-called Lapp villages.9 The Lapland Settlement Act passed in 1673 allowed Finnish and Swedish settlers to enter the area occupied by the Saami. Although settling in the Lapland villages became possible after this, settlers did not begin to arrive in the area to a signif icant extent until the 18th century. Thus, the course of events was, in many ways, parallel to how Indigenous Peoples were treated at the same time around the world. However, differences could also be found. Over the centuries, the area inhabited by the Saami has been divided into four States: Norway, Sweden, Finland and Russia. Therefore, it can be said that the status of the Saami has been greatly affected by the State that they have become a part of. The different States have also treated the Saami people and their rights differently. However, it should be considered a general development in the modern times that the better status and rights of the Saami people have been taken into account, at least in the case of countries governed by the Western concept of law and the rule of law. It can also be said that legal integration and international human rights treaties have harmonised the way the Saami are treated nowadays. On the other hand, it can be pointed out that in Norway, Sweden and Finland, the basic principles of the rule of law are very similar. The legal order is based on a positivist legal tradition

8 John Rawls, A Theory of Justice (Boston: Harvard University Press, 2019); J. M. Valadez, “Indigenous Rights,” in Encyclopedia of Applied Ethics, 2nd ed., ed. Ruth Chadwick (London: Academic Press, Elsevier, 2012), 696–703; Krushil Watene, “Indigenous Peoples and Justice,” in Theorizing Justice: Critical Insights and Future Directions, eds. Watene and Drydyk (London: Rowman and Littlef ield, 2016), 133–52. 9 The original residential area of the Sami is also the Tornio-Muonionjoki Valley in the border region of the present-day Finland and Sweden and the northern parts of Rovaniemi on the side of the present-day Finland. In this area, however, the Sami Lapland villages disintegrated at such an early stage that there is no information on their respective regional locations. See Joona, Ikimuistoinen Oikeus, 48–65.

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Map 26.1 Map of the borders of the Lapp villages. Drawn by Johanna Roto. Published in The Saami: A Cultural Encyclopaedia, 2005, 186–187. The map is based on the previous map by Samuli Aikio from the 1970s

(human-made law) and the legal orders are in many ways structurally similar. With regard to the legislation on the Saami, that of Norway is very similar to that of Sweden in particular. This is true specif ically for the Saami land use rights. In both countries, it is assumed that the Saami’s use of the land for hundreds of years has given rise to a legally protected land use right. The legal basis for this right is called urminnes hävd10 in Sweden and Alders tids Bruk in Norway.11 Despite the difference in

10 Bertil Bengtsson, Samerätt, En översikt (Stockholm: Norstedts Juridik, 2004), 79–89. Christina Allard, Two Sides of the Coin: Rights and Duties (Luleå: Luleå University of Technology, 2006), 264–96. 11 Gunnar Eriksen, Alders tids bruk (Bergen: Fagbokforlaget, 2008); Susan Skogvang, Samerett (Oslo: Universitetsforlaget, 2009), 66–71.

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terms, the situations in both countries are broadly similar. That is, land use rights have a civil legal basis, but the existing contents of the laws have been determined by court decisions. Another unifying factor is that the Saami’s legally protected land use rights are combined with the practice of reindeer husbandry. According to the legislation, the Saami land rights belong to the Saami engaging in reindeer husbandry. The fundament right is the right to practice reindeer herding regardless of land ownership, but reindeer herders also have other land and water use rights, such as the right to hunt and f ish. It can be assumed that Finnish legislation will also proceed on the basis of the foregoing. This is because, until 1809, the territory of present-day Finland belonged to Sweden, and Swedish law was applied to the whole territory. When Finland was proclaimed an autonomous Grand Duchy under Russia by the Peace Treaty of Hamina in 1809, Swedish law was used in Finland. Finland’s legislative work started only in 1863, but even after that, Swedish legislation formed the backbone of the legal order. For example, the land arc of the Act of 1734 of Sweden, which regulates land rights, was not renewed until 1995 in Finland. Since then, the legislation regulating the use of land and water areas has remained in line with the previously established principles. Because of the legal-historical starting points mentioned earlier, one might assume that the Saami in both countries have similar rights to use land and water areas. However, this is not the case. The land law status of the Saami in Sweden differs considerably from the land law status of the Saami in Finland. While in Sweden the Saami have a strongly protected right of access to the areas that they have traditionally used for their livelihoods, Finland assumes that the Saami do not have any special right to use such areas. Another difference is that whereas in Sweden and Norway the content and scope of the Saami land rights have been decided by the courts several times in recent decades alone, the same is not true in Finland. Therefore, it is possible for the Saami to also be considered to have special land rights in Finland, but the matter has never been brought before the courts. On the other hand, one may ask why this has not been done. This chapter seeks to f ind out why the land rights of the Saami in Finland differ signif icantly from those of the Saami in Sweden and Norway. Sweden, in particular, is the point of comparison. Knowing the historical context is important because it has led to the very challenging situation today, as described in the succeeding sections. The following is an overview of how the Saami land and water rights were understood in the Lapp villages in the late 17th and early 18th centuries, when the territory of the present-day northern Finland still belonged to Sweden. This is followed by a brief overview of the development under which the Saami have come to be considered to have a special right to use the territories in Sweden. Next, the chapter examines how the Saami land rights have been treated in Finland since the legislative work began in the second half of the 19th century. Finally, the reasons that the legal status of the Saami in Sweden differs signif icantly from that of the Saami in Finland are summarised.

The Status of the Land and Water Rights of the Saami in the 17th and 18th Centuries In the 17th and 18th centuries, the area inhabited by the Saami did not yet belong to the territory of the Swedish State as we know it today. Norway and Russia also taxed these Lapland villages. However, Sweden was responsible for the administration of justice in the region. A Swedish judge presided over the court, applying Swedish law in the proceedings. As a rule, each Lapp village formed one district in the territory, in which court hearings were held. The area was divided into territories under the jurisdiction of the southern and northern courts. The southern courts 441

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included the courts in Luleå, Piitime and Umeå Laplands, and the northern courts included the courts in Kemi and Tornio Laplands. The southern courts had jurisdiction over an area that now belongs to Sweden. Kemi Lapland belonged entirely to the present-day territory of Finland, as did most of Tornio Lapland. In northern Lapland, litigation headed by a judge began to be held in 1639. The decisions revealed that the Saami were considered to have legally protected rights to the territories they were using. They had the exclusive right to use the Lapp villages’ areas, and each of the areas within them, the so-called Lapp Tax Lands, was occupied by a single family. They also had the right to manage and dispose of these Tax Lands freely, without the authority’s involvement. Their rights corresponded to the Finnish and Swedish peasants’ rights to their estates at that time. The right was, in practice, comparable to the current land ownership right.12 It is also clear from the case law that this applies precisely to the areas inhabited by the forest Saami. They lived in the same area all year round, and in other respects, their land use was comparable to that of peasants.13 The Saami’s land rights can be justif ied by referring either to King Christoffer’s land law or to the “legislation” during his time (letters sent by autocratic kings). In 1584, King John III gave a letter to the Saami people in Suonttavaara Lapp Village, located in Tornio Lapland. According to the letter, they would have access to all the land and water areas in their village, without anyone disturbing them. In 1602, Duke Charles (crowned Charles IX) gave a similar letter to all the Saami living in Kemi Lapland. This is clear from the practice of applying the letter; in addition, in this letter, the right of the Saami was considered based on their immemorial use of the concerned areas.14 The aforementioned practice continued until 1744, when the courts changed their interpretations of the matter. From then on, ownership of the areas that had been used for hundreds of years by the Saami was considered to belong to the Crown. The change was based on the so-called regal doctrine and the doctrine of original land ownership by the Crown. From the State’s point of view, however, the fact that the right of the Crown is not justif ied based on Swedish law makes it problematic.15 Shortly afterward, the case law established that the Saami were not considered to have any special right to use the territories they had been using for hundreds of years for their livelihoods.16

Main Features of the Saami Land Law in Present-Day Sweden The case law of southern Lapland has been studied particularly by Gunnar Prawits. According to him, before 1650–1715, the courts treated the Saami land rights in the area of the Lapp villages located in the territory of the present-day Finland similarly.17 He asserts that it was very uncertain whether the areas used by the Saami were considered to belong to the Saami or to the Crown in the

12 Korpijaakko-Labba, Saamelaisten oikeusasemasta Ruotsi-Suomessa, 580–91, and Joona, Ikimuistoinen Oikeus, 315–36. The rights of the Sami in the areas located in the territory of the present-day northern Finland were also assessed in the socalled Taxed Mountain Case, which ended in 1981. The Swedish Supreme Court stated that, especially in the Kemi and Tornio Laplands, the Sami had been considered to have similar rights to the areas they use as peasants. Nytt Juridisk Arkiv 1981: 1, 184 and 196. 13 Joona, Ikimuistoinen Oikeus, 366–68. 14 Ibid., 188–200. 15 Ibid., 331–32. 16 Ibid., 341–47. 17 Gunnar Prawits, Lappskattelanden I. Unpublished handout. Samernas Skattefjäll (II) (Stockholm: Svenska Samernas Riksförbund, 1967), 3–6 and 9.

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years 1716–39. However, in 1792, the governor’s letter f inally conf irmed that the Saami Tax Lands began to be considered Crown lands.18 In Sweden, the development that led to the recognition of Saami land and water rights began in the late 19th century. The f irst reindeer husbandry law was enacted in 1886. Later, the reindeer husbandry laws of 1898 and 1928 were enacted. The current law dates from 1971.19 The 1928 Act adopted the premise that the right to reindeer husbandry and thus also the land rights of the Saami belonged mainly to the inhabitants of the Lapp villages referred to in the act, of Saami descent and whose family had long practised reindeer husbandry.20 Although Saami land rights usually refer to the right to reindeer husbandry, in addition to the right to free grazing, these rights also include the right to build buildings and structures necessary for reindeer husbandry, such as reindeer fences, buildings for slaughter and huts and homes for reindeer husbandry. In the case of longer-term arrangements, the landowner has the right to allocate a place for such buildings. For such construction projects, the Saami village has the right to take timber from the State forest and f irewood and wood for handicrafts. An individual member of a Saami village also has the right to receive timber from the State forest in the Saami village area for the construction or renovation of a dwelling. Under certain conditions, the reindeer herder also has the right to cut the trees for emergency reindeer food. Village inhabitants also have the right to hunt and f ish in certain areas for their use and for selling. In 2020, the Swedish Supreme Court ruled that the Saami villages had the exclusive right to decide whether to allow others to hunt and f ish in their respective villages’ areas (the Girjas case). This right was based on possession since time immemorial.21 Earlier, the land and water rights of reindeer Saami also came to be resolved in case law, particularly in the Taxed Mountain case. According to the Supreme Court, these rights were exclusively provided for in the Reindeer Husbandry Act. In addition, the court considered that the rights included the use of gravel and other soil for one’s use, the right to graze animals other than reindeer and the right to make hay for one’s benef it. On the other hand, the reindeer husbandry rights were not considered to include the right to take gravel for sale, the right to hydropower or the right to minerals outside the right of seizure.22 These rights were considered to belong to the landowner. According to the Supreme Court, the right to reindeer herding is based particularly on immemorable usage.23 Therefore, the reindeer husbandry law is not a benef it that today’s legislators would “hand over” to the Saami. In Sweden, the reindeer husbandry right is a special right based on civil law, and this right falls under the protection of property guaranteed by the Constitution, like the ownership right.24 Thus, the issue at hand is not only the reindeer husbandry right but also several individual rights to use land and water resources. It concerns these forms of land use that the Saami have practised for

18 Gunnar Prawits, Asiantuntijalausunto verotunturioikeudenkäynnissä. Expert Opinion in the Taxed Mountain Case. Jämtbygdens tingsrätts dom 1.11.1973 DT 161. Samernas vita bok II:1 (Stockholm: Svenska Samernas Riksförbund, 1974), 25. 19 Bengtsson, Samerätt, 35–39. 20 A person was considered to be of “Lappish descent” if he had, no matter how far back in history, a “Lappish” ancestor in the sense of what the previous reindeer husbandry laws meant by this term. Thomas Cramer and Gunnar Prawitz, Studier I renbeteslagstiftning (Stockholm: Norstedt, 1970), 5. 21 Supreme Court of Sweden 23.1.2020 T 853–18. See also Chapter 25 of this volume. 22 NJA 1981:1, 244–48. 23 NJA 1981: 1, 233, 248 and 250. Cf. see also Bengtsson, Samerätt, 79–89. Cf. however, Allard, Two Sides of the Coin, 248–51. 24 NJA 1981:1, 248.

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very long time. On the other hand, these rights exclude livelihoods that the Saami have not traditionally practised. The Swedish legislation is, therefore, based on the premise that immemorial usage particularly justif ies the use of areas as they were used in the past. The rights are not listed in the law, but according to jurisprudence, their number is limited. Considering the legal status of the Saami in the old Lapp villages, there is no longer a question regarding their exclusive right to use the areas. However, the long-standing use of land and water areas has created a right that enjoys legal protection even under the current legal system. The current law thus guarantees the right of the Saami to practice the way of life that they have long practised in the areas that they have long exploited.

Report of the Committee That Prepared Finland’s First Reindeer Husbandry Law When legislative work began in Finland at the end of the period of autonomy, the prevailing perception was that the Saami had no special right to use the territories they were occupying. This was partly reflected in the attitude towards the practice of reindeer husbandry. For instance, reindeer husbandry was proposed to be banned on State land because it was considered detrimental to State forestry.25 In 1877, however, a temporary permit was granted to graze reindeer on State land.26 Nor was the area inhabited and occupied by the Saami in any special position. The matter would not necessarily have arisen later if the practice of reindeer husbandry had not required its own legislation. As the aforementioned law was the f irst one that regulated the legal status of reindeer husbandry in Finland, the Committee on Reindeer Husbandry, which prepared it, considered it necessary to f ind the basis of reindeer’s right to free grazing, the right to reindeer husbandry. The committee thus decided to draw up a legal review dating back to the 16th century. The committee noted that “the founders of our reindeer herding, the Lapps, had the right, not only based on an ancient practice, but also, in the most binding way of the time, conf irmed by the King’s written assurances, to use all the land in their hands without disturbance by anyone.” This privilege, in the committee’s view, was “violated and circumvented but was never explicitly revoked.”27 The committee responsible for preparing Finland’s f irst reindeer husbandry law assumed that the legal-historical and property rights status of the people in some of the areas that the reindeer husbandry law would cover differed from those of the people in the rest of the country. The starting point was that the Saami populations living in the areas had either a right of ownership of the areas or at least very strong rights to use the areas. As noted earlier, this notion was later shared by legal history and real estate law research. Under the heading “Land use rights for reindeer husbandry,” the committee stated, In our Scandinavian neighboring countries, where reindeer husbandry conditions in Sweden have a largely similar historical background to ours [i.e. Finland], reindeer husbandry has had to be granted far-reaching privileges by law and consent to similar rights to both State and

25 Heikki J. Hyvärinen, Asiatietoja poronhoito-oikeudesta ennen vuoden 1932 poronhoitolakia. Liite nro 1 saamelaisvaltuuskunnan lausuntoon MMM:lle vuonna 1979 koskien poronhoitolain uudistamista (in English: Appendix No. 1 to the Sámi delegation’s statement to Ministry of Forestry and Agriculture in 1979 regarding the reform of the Reindeer Management Act). (Ministry of Forestry and Agriculture, Helsinki, 1979). 26 Juha Joona, Poronhoito-oikeus maankäyttöoikeutena (Helsinki: Helsingin seudun kauppakamari; CC Lakimiesliiton kustannus, 1993), 89. 27 Committee Report 1929:8, 50.

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private land ownership. It is precisely in Sweden that the legislation has been based on an immemorable usage considered a reindeer husbandry practice. This right was interpreted to have been the sanctity of ordinary law.28 Although immemorial usage was pointed out, the committee did not directly State that the reindeerherding rights in Finland also had a civil law basis. The reason for this could be that if the committee had said this, far-reaching concessions would also have had to be made in Finland. Although this was not explicitly stated, it is obvious that this was also the committee’s starting point for Finland. However, the following committee, which prepared the Reindeer Herding Act of 1948, stated that the grazing rights of the people practising reindeer husbandry in Finland are also based on immemorial usage.29 In addition, the f irst reindeer husbandry law in Finland, the Reindeer Husbandry Act of 1932, was drafted in such a way that it would not identify the subjects of the right. The right to practise reindeer husbandry and the other minor rights provided by the law were conferred to all those who practised reindeer herding, not only to persons of Saami descent. However, the regulation of the right to practise reindeer husbandry also meant that the subjective basis of this right was “erased” from reindeer husbandry. Reindeer husbandry regulated by law was no longer a right that belonged to the Saami. The statutory right to practise reindeer husbandry no longer had a subject. The connection between the right to practise reindeer husbandry and its civil and legal bases was blurred.

The 1962 Interview Survey In the summer of 1962, interviews were conducted in Finland’s f ive northernmost municipalities, Enontekiö, Inari, Utsjoki, Kittilä and Sodankylä. The interviewees were asked if they or any of their parents or grandparents had learned Saami as their f irst language. This interview study was led by Karl Nickul, chairman of the Finnish Section of the Saami Council.30 From these interviews, a list was created with 3,852 names. In 1973, a Saami delegation was established. It was an advisory body whose members were elected. The persons on the list from the 1962 interviews and their descendants had the right to vote in the elections for the members of the Saami delegation. When the Saami Parliament Act was passed in 1994, the persons who had had the right to vote in the elections for the members of the Saami delegation were entered into the electoral roll.31 Compared to the decree on the Saami delegation, a new section 3.3 was added to the Saami Parliament Act, which meant that virtually all the descendants of the persons included in the 1962 list had the right to be listed, without any generational restrictions. The Saami Parliament Act contained another amendment: section 3.2, the so-called Lapp basis. According to this section of the law, a person who is a descendant of a mountain, forest or f ishing

28 Committee Report 1929:8, 50. ‘Ordinary law’ was a term that today can be equated mainly with civil law. 29 Poronhoitolakikomitean mietintö 1942:8, 4. 30 However, these interviews were conducted very poorly in many respects. Erkki Nickul, who had researched this interview study, said that only part of the population in the area was interviewed. According to him, the interviewer should have been better educated. Similar interviews were intended to be conducted in a much wider area, but this did not materialise. The fulf ilment of the set criterion did not have to be proven but should have been based on the person’s own declaration. In many cases, however, this was apparently not the case either. See Erkki Nickul, Suomen saamelaiset vuonna 1962. Selostus Pohjoismaiden saamelais-Neuvoston suorittamasta väestöntutkimuksesta. Tilastotieteen pro gradu Tutkielma (Helsinki: University of Helsinki, 1968), 28. 31 The government’s proposal for a Sami Parliament Act also refers to the 1962 interviews. See HE 248/1994 vp.

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Lapp (Saami) who is entered into the land or tax records must also be entered into the electoral roll of the Saami Parliament. Although the list of persons referred to in that section was initially drawn up for tax purposes, such persons were at the same time the original Saami who lived in the Lapp villages. These Saami were marked in a separate “Lappish list” as a rule until 1762, after which they were included among the settlers. Adding the Lapp basis to the Saami Parliament Act was undoubtedly also related to the fact that, according to Article 17.3 of the Finnish Constitution, the Saami are an Indigenous People. This presupposes that Indigenous People must descend from the Indigenous Saami of the area. At the same time, ratif ication of the Indigenous Peoples Convention32 was also on the agenda. Article 1 of the convention def ines Indigenous People as persons whose ancestors had inhabited an area before the arrival of the majority population and the formation of the existing State borders and who have at least partially preserved their traditional institutions. In Finland, this means that a person must have descended from the Saami who inhabited the area of the ​​ present-day northern Finland in the 17th and 18th centuries. The f irst Saami Parliament elections were held in 1999. However, the Saami Parliament rejected all the people who sought election using the Lapp basis in the Saami Parliament Act. Altogether, 656 people appealed to the Supreme Administrative Court. However, the court dismissed virtually all the appellants on such grounds. In addition, in the subsequent elections, almost all those who applied for candidacy using the Lapp basis were rejected. Only the applications for candidacy of about 15 such people were accepted. The main reason for this was that most of the Saami politicians who had been elected to the Saami Parliament opposed the admission of persons to the electoral roll on a Lapp basis. On the other hand, a minority of the Saami Parliament members accepted them. The 1962 interview study had many signif icant consequences that are diff icult to correct to reflect historical facts. The interview research f irst limited the Saami homeland region to only the three northernmost municipalities in Finland (Inari, Enontekiö and Utsjoki) and the northern part of the Sodankylä municipality. Thus, what mattered was no longer the areas of the historic Lapp villages, as in Sweden. In addition, “Saami” came to refer to a person based on the language criterion. At that time, it was not understood that many had already been forced to give up their language as a result of the strong Finnishisation policy of the Lutheran Church and the State. However, this means that those who were found to be Saami using the language criterion in the 1960s, including all their descendants, would receive the status, regardless of whether they had any connection to the region or the language, based on section 3 of the Saami Parliament Act, because the law stated the following: Section 3 – Def inition of a Sami For the purpose of this Act, a Sami means a person who considers himself a Sami, provided: (1) That he himself or at least one of his parents or grandparents has learnt Sami as his f irst language; (2) That he is a descendent of a person who has been entered in a land, taxation or population register as a mountain, forest or f ishing Lapp; or (3) That at least one of his parents has or could have been registered as an elector for an election to the Sami Delegation or the Sami Parliament [emphasis added].

32 Indigenous and Tribal Peoples Convention 1989, International Labour Organisation Convention no. 169, ILM 28 (1989): 1382.

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The debate in Finland about the Saami identity and who has the right to be included in the electoral roll of the Saami Parliament has lasted for decades. The matter appears unfair and inhumane and causes much unnecessary suffering in Lapland. However, it is not possible to delve deeper into the matter in this article. It can only be stated that the matters of who the right owners are, Saaminess, reindeer husbandry and the areas to which the relevant rights apply are interlinked, and their recognition becomes increasingly diff icult as time passes. On the other hand, the recent decision regarding the Sokli Mine, as discussed in a further section, gives hope that signif icant injustices can also be corrected. The situation regarding the realisation of the land rights of the Saami in Finland is problematic. The Finnish legislation has been limited to the Saami Parliament Act and the Reindeer Herding Act. The Saami Parliament has not been willing to grant land and water rights to the Saami. Of course, it must be understood that this is because the Lapp criteria are not applied, and the Saami Parliament thus does not represent the Saami whose rights are based on immemorial usage. The Finnish State has been unwilling to legislate on the land and water rights of the Saami. Thus, the Saami in Finland do not have any special rights to the use of land and water areas. The situation is paradoxical in the sense that, precisely in the area of the ​​present-day northern Finland, the legal position of the Saami used to be very strong. Today, the Finnish State considers the Saami as not having special rights to the use of the land and water areas that they have used for hundreds of years for their livelihoods. In practice, the only way to change the current situation is to take legal action against the State, similar to the Taxed Mountain and Girjas cases in Sweden. However, there are several problems and risks associated with this, such as the accompanying legal fees.

Case Studies: Common Forest of Inari, Wind Farms and Mining Activity In this section, three large economic activities in northern Finland and Lapland, all of which affect people’s lives, are presented. In the next chapter, we discuss the challenges and injustices related to these cases.

The Common Forest of Inari There is a great old forest in the Finnish north. It has existed since the Ice Age and is unique in nature. The reindeer of the Saami people also graze freely here. The forest is the private property of some people. They would like to sell logs and softwood from there, but the forest logging companies do not want to buy from the old-growth forest.33 In addition, the forest is so precious that the State has neither the desire nor the means to protect it. As mentioned earlier, the Inari Common Forest is owned by private people. There are almost 1,700 shareholders in all. However, there are also many lands, 20,000 hectares in all. In Lapland, the big division was done late; it was completed only in the 1960s.34 Some felt that the sites were too small, and planning for bigger units began as early as the 1930s. Finally, the Common

33 An old-growth forest, also termed primary forest, virgin forest, late seral forest, primeval forest or f irst-growth forest, is a forest that has attained a great age without signif icant disturbance and thereby exhibits unique ecological features and might be classif ied as a climax community. 34 Isojako “big division,” the land distribution process that took place in the history of Finland, which started in 1759 in Laihia in Ostrobothnia.

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Map 26.2  Map of the common Forest of Inari. Made by Piia Elonen/HS Graphics. HS 2.7.2022

Forest of Inari was established in May 1960. The f irst logging activities were done shortly after the common forest 3 was established. The plots where trees were felled at that time will be thinned out only after tens of years, and logs cannot be harvested from the areas for at least a hundred years. Tree growth is slow in the north; that is why the people who own the collective forest would like to continuously cut trees in new areas, in their own forests. However, this will not work because the buyers have left. Wood from the area has not been sold for three to four years now. According to the common forest chairman, Yrjö Mattila, everything started to fall into place around 2018 when he f irst heard the initialism IFL for the English words “intact forest landscape,” which means “untouched forest” (the Finnish word for it means “wilderness”). An IFL demarcation line was drawn in the Inari common forest for an area of approximately 3,000 hectares. That marked the end of the wood trade. The responsible forestry authority, the Forest Stewardship Council (FSC), prohibits felling in the IFL area. Finnish forest owners are usually not involved in FSC, but

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all the three large forest companies (UPM, Metsä Group and Stora Enso) are. If the loggings do not meet the FSC conditions, the logging giants will not buy the trees.35 At the end of 2018, a risk assessment for the international FSC certif icate for Finland was completed. The risk assessment warned that logging in certain municipalities could pose a threat to Saami culture and reindeer husbandry.36 Inari was among the identif ied municipalities facing this risk. The managers of the common forest naturally started looking for a way out of the situation as soon as FSC emerged. It offered its forests, praised for their natural values, to the State for protection. However, the Ministry of the Environment gave a negative response to this offer within a month. In its letter dated March 2019, it said that there is no need to supplement the network of nature areas in the region as the national parks, wilderness areas and protected areas of Upper Lapland are the most comprehensive in the country, both in terms of habitat types and species. However, because the aforementioned area was not protected and the State did not pay compensation for it, another buyer was found for the IFL property. In April 2022, the British mining company Anglo American announced that its Finnish subsidiary AA Sakatti Mining had bought 2,910 hectares of the wildest area of the common forest on the eastern border of the Hammastunturi wilderness. The mining company plans to protect the area as compensation for the damage to nature caused by its mining project. The mine, located in Sodankylä, partly extends to the Viiankiava swamp conservation area. In Lapland, the average price of forest land is 1,500 euros per hectare. The protection compensations paid by the State (2,000–3,000 euros) were higher than this because old forests with more wood than average are bought for protection. The mining company paid 10.4 million euros for the IFL area of the common forest, or almost 3,600 euros per hectare. Both the mining company and the common forest benef itted from the deal: the mining company was able to improve its image and the common forest was able to dispose of the IFL area, in which logging was banned. Even though the IFL area was sold, the reindeer of the Hammastunturi Cooperative still grazes in the Common Forest of Inari. In addition, the cooperative does not accept large-scale logging because it will take away important pastures for the reindeer. From the point of view of the owners of the common forest, large-scale logging is about obtaining economic income from the forests and their property, which they cannot use. It is as if someone has locked the stock portfolio or has bricked the door of the investment apartment. As Yrjö Mattila said, “In such places where we live here in the north, you often have to choose whether to buy medicine or bread. Many partners have a small pension. You can then make a purchase with income from the forest.”37 According to environmental organisations, the last uncut forests should be protected. Vesa Luhta of Inari Nature Friends considers these forests unique and irreplaceable. Reindeer grazes in these forests, guaranteed by Indigenous rights, without compensation. Although the joint owners of the common forest have negotiated with many parties, no deals have been made. How could the collective forest owners turn its forest into money? As Yrjö Mattila said, “The cooperative has told us that we need to f ind ways to make money other than by logging. And yes, we invented it.”38

35 Piia Elonen, “Arvokas Aarre,” Helsingin Sanomat, July 2, 2022. 36 This relates to International Covenant on Civil and Political Rights 1966, UNTS 999: 171, article 27. 37 Elonen, Helsingin Sanomat. 38 Ibid.

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Honkavaara-Isovaara Wind Farm Wind power and the related debate on its development are currently f irmly on the national policy agenda in Finland. It is also on display in many Lapland municipalities, with a great deal of growth potential associated with the green transition. In general, this can be thought of as a positive thing, and the municipality of Simo in southwestern Lapland, for example, has become an advocate for wind power use, with its positive related experiences. However, the use of wind power also has negative effects, especially on the immediate environment.39 In general, the use of wind power is a positive and necessary means of combating climate change. The case presented in this article, however, raises specif ic questions of justice because the wind farm in question, the Honkavaara-Isovaara wind farm, will be located 75 km from the municipal centre in a village with only about 200 inhabitants. These village residents earn their living mainly from reindeer herding and tourism; many also work in neighbouring municipalities.40 The land on which the wind farm is planned to be constructed is the so-called common forest area (yhteismetsä), whose owners live mainly in southern Finland. None of the owners live in the village area. The land was initially transferred from the site of the former Petsamo (currently under Russian authority) to the resettled evacuees as compensation for their lost land. Even this starting point raises questions of fairness and at least ethical ones. The small village’s inhabitants practice traditional livelihoods and maintain a clean environment, and the sustainable use of this environment is integral to their way of life. Berry picking, mushroom picking, f ishing and hunting are part of their traditional annual work cycle and are still being practised by the inhabitants of the area and are also attracting tourists. Some residents assume a robust Indigenous identity as they have long roots in the area and descend from the area’s Indigenous population, the Saami. Some have Indigenous roots from the Swedish side. It is feared that while the aforementioned wind farm will promote the possibility of using natural products in the future, it will also affect the landscape, the environment and the health and wellbeing of the people living near it. According to one interviewee, [t]ourism and reindeer husbandry are practised in the village, and the use of wind power is most problematic for both of these livelihoods. The mills will be so high. This will affect the modern form of tourism, and with this landscape and image, the environment, which is so essential and central, will be affected by tourism. There is a bit of bad luck here as this is at odds with the existing livelihoods in the same area where the wind farm is planned to be constructed.41 What makes this case study interesting is that in April  2022, the Defence Forces of Finland informed the project operator and the municipality of Ylitornio that the construction of the

39 See, for example, Dorothée Cambou, “Uncovering Injustices in the Green Transition: Sami Rights in the Development of Wind Energy in Sweden,” Arctic Review on Law and Politics 11 (2020): 310–33; Finnish Broadcasting Company 2020/1 (YLE, November 18, 2020), “Tapani Leisti: A Finnish Company Pushes through a Gigantic Wind Farm Project into Fell Wilderness in Northern Norway – Aslak Holmberg: ‘It Would be a Deprivation of Lands’ ” (Suomaisyhtiö ajaa jättimäistä tuulipuistohanketta tunturierämaahan Pohjois-Norjassa – Aslak Holmberg: “Se olisi maitten riisto”), accessed January 6, 2021, https://yle.f i/uutiset/3-11652510 (Finnish). 40 Finnish Broadcasting Company 2019 (YLE, February  5, 2019), “Wind Power Company Aims to Erect a Hundred Turbines in Southern Lapland. The Village Inhabitants Resist Intensively: ‘It Is Really a Catastrophe’ ” [Tuulivoimayhtiö aikoo pystyttää Etelä-Lappiin sata voimalaa. Raanujärven kyläläiset vastustavat kiihkeästi: ‘Kyllähän se on katastrof i’], accessed October 11, 2021, https://yle.f i/uutiset/3-10629716 (Finnish). 41 JUSTNORTH Interview, Anonymiser code 416TJ18FR0209.

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aforementioned wind farm could not be continued for the time being due to defence reasons. According to a 2018 statement from the Defence Forces, they cannot approve the project as the wind farm is blocking the operation of the radar system. Despite the 2018 report, however, the project operator promoted the project until the preparation of the environmental impact assessment (EIA). With the new statement, the project is on hold for the time being. However, seven other EIA processes are underway in the same reindeer-herding area, six related to the use of wind power and one to a mining project. The site also has several mining reserves and is a scenic tourist area with ecosystem services. Coordinating all of these is challenging and puts much pressure on the local people and their livelihoods.

Sokli Mine in Eastern Lapland The current situation in Finnish Lapland raises recognition and spatial and procedural issues of justice in terms of the exploitation of natural resources and the Indigenous People’s right to use land and water resources. A good illustration of this is the Sokli mining project planned for Eastern Lapland for the former Keminkylä Lapp Village area.42 In this respect, reference may be made, for example, to the decision of the Vaasa Administrative Court in 2020. In that decision, the Administrative Court stated the following, inter alia: The Sokli mining project is not located and its effects do not occur in the Sami Homeland referred to in section 4 of the Sami Parliament Act or in the Skolt area referred to in section 2 of the Skolt Act.43 The contested decision cannot, therefore, be regarded as unlawful on the basis of the appeals and review concerning the examination and observance of the rights of Indigenous Peoples.44 A similar stance can be found in the statements of the State authorities and Metsähallitus, which manages the State’s land assets. In a recent plan for the use of State-owned forests, it is outlined that no leases will be entered into the State land located in the Saami homeland, which will allow wind farms to be built in the area. In addition, it is stated in the same context that no mining projects in the Saami homeland will be promoted on behalf of the State. In its decision in spring 2022, the Supreme Administrative Court returned the case regarding the environmental and water management permit granted to the Sokli mining project to the regional administrative agency in its entirety for reprocessing on the basis of the mine’s water management and the related effects on water bodies. In the new trial of the case, the Supreme Administrative Court also ruled on other grounds of appeal that are central to the implementation of the mining project, such as the effects on the watercourses in Kemijoki, the importance of the so-called Sokli glades in permit consideration and the effects of the project on reindeer husbandry.

42 See Juha Joona, “One of Finland’s Largest Minings Coming to Forest Sami Reindeer Management Area,” in Current Developments in Arctic Law, Vol. 8, eds. Kamrul Hossain and Marcin Dymet (Rovaniemi: University of Lapland, 2020), 44–47. 43 The Koltta area is located in the municipality of Inari, where the Koltta Sami who were evacuated from the Russian side were mated after the Second World War. The Skolt area is def ined in the Skolt Act (24.2.1995/253). 44 Decision of the Vaasa Administrative Court 5.5.2020. Decision number 20/0034/3 by Hietaniemi, Väisänen, Viitasaari and Uusi-Niemi.

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In relation to reindeer herding and the rights of Indigenous Peoples, the Supreme Administrative Court also came up with a signif icant new decision compared to its previous decisions. The court’s decision stated the following: However, the Supreme Administrative Court states  .  .  . that regardless of the case of the applicable environmental legislation, the right of the Sami people to practice their traditional livelihoods, such as reindeer husbandry, is protected by Article 17, subsection 3 of the Finnish Constitution, as well as Article 27 of the ICCPR. This right is protected regardless of whether the project or activity results in Sami people impact on rights in the Sami’s Homeland region.45 Based on this description, it can be stated that legal practice has f inally begun to understand the delimitation made based on the 1962 interview study between the Saami’s homeland region and the rest of the historical Lapp region outside it. This is also how the matter is understood in Sweden. The decision of the Supreme Administrative Court is, in a way, self-evident. In the homeland region of the Saami people, the question is only about cultural self-governance.46 The delimitation has no meaning in terms of the land and water rights of the Saami.

The Injustices Against the Saami Land Rights in Finnish Lapland The following map describes the current situation regarding land use and the utilisation of natural resources in Finnish Lapland. When Upper Lapland has practically been left as an area where there is little deforestation and there will be no wind power, mines or other industrial land use, the pressure imposed by these activities in central and southern Lapland will increase. When the cases described here are considered, it can be stated that the Finnish State’s reluctance to clarify and regulate the land and water rights of the Saami has led to a very problematic situation. As late as the middle of the 18th century, the forest Saami in what is now Finland were considered to have the right of ownership of the areas they were using, which meant a strongly protected right to the livelihoods they were pursuing. However, the State has not enunciated when and how these rights have lost their signif icance. The starting point in property law thinking is that rights to immovable property do not lose their signif icance on the sole basis of the passage of time. On the other hand, the State has not mentioned why the immemorial usage prescription will not apply in the context of the rights of the forest Saami. In Sweden, the immemorial usage prescription is the primary legal basis of the Saami’s land and water rights.47 The basis of this judicial prescription is common to both countries: the real property code of the 1734 Act. The aforementioned situation would be facilitated if the traditional Saami area were def ined in legislation. This def inition should be based on similar starting points as in Sweden. The current prevailing perception that the rights of the Saami apply only to the so-called Saami homeland is incorrect in many ways. This can be said at least from a legal-historical, real estate law, constitutional

45 Supreme Administrative Court (KHO 2022:38). Diary numbers: 1616/1/20, 1659/1/20, 1713/1/20, 1715/1/20, 1716/1/20 ja 1718/1/20. 46 Act on Sami Parliament 1§: The Sami, as an Indigenous People, have linguistic and cultural autonomy in the Sami homeland as provided in this act and in other legislation. For the tasks relating to cultural autonomy, the Sami shall elect from among themselves a Sami Parliament. 17.7.1995/974. 47 In this respect, reference may be made, for example, to the recent Girjas ruling of the Swedish Supreme Court. Nytt Juridisk Arkiv 2020, 3.

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Map 26.3 Map of land use projects in the reindeer-herding areas in Finland (Reindeer Herder’s Association, 2020)

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equality or Indigenous rights perspective. In fact, it can be said that in the areas where the forest Saami’s Lapp villages are located, more grounds can be found for the right of the Saami to use land and water resources than, for example, in the areas of the Enontekiö and Utsjoki municipalities, which are located in the Saami mountain area. This should be taken into account both in the preparation of legislation and in the administrative decision-making on State lands.

Conclusion The case studies described earlier can be better understood from different perspectives of justice: in general, it can be stated that the challenges related to the green transition in Finnish Lapland are related to very different approaches to justice. It is clear that since the land rights of the Indigenous People have not been recognised: the question is a fundamental issue of recognitional justice. Very often, it is also a question of how the rights, but also benef its, and harms of different land use projects are distributed. In this case, we speak of distributional justice. A good example of this is wind power construction, where the benef its and harms of projects can be distributed unfairly. Based on the gap between history and the situation described earlier (Map 26.3), the current demarcation of the home region of the Saami people in Finland is both a signif icant distributional and also recognitional issue of justice. It is also very often criticised that everyone should have equal opportunities to participate in the processes involved in the planning and implementation of land use projects. In this case, we are talking about procedural questions of justice. It is clear that Finland respects the rule of law and the rights of minorities. However, the current situation in the State is that under Finnish law, persons belonging to the group of Indigenous People in a certain region, such as the Saami, do not have any special right to use the territories they have been using for hundreds of years to practise their traditional livelihoods. In Sweden and Norway, on the other hand, it is assumed that the long-term use of such areas by a group of Indigenous Peoples has created a legally protected right of access to these for their descendants.48 This right is also provided in the law. Why does Finland differ from the other Nordic countries in this respect? One reason for this is that the Saami’s exercise of land rights is not in the best interests of the Finnish State. A signif icant part of the area of northern ​​ Finland is owned by the State and used for forestry. If the Saami’s traditional land use were to receive legal protection against other land uses, this would undoubtedly lead to “reductions in the rights of landowners,” as was already stated in the 1920s. It is obvious that the State does not take any initiative to promote or even clarify the matter. It can be assumed that it would be in the interest of the Saami Parliament in Finland to promote the aforementioned matter. However, the Saami Parliament in Finland has not raised this issue and has not demanded an investigation of it. The reason for this can already be found in the 1962 interview study and the starting points adopted at that time. First, it can be said that the 1962 def inition of the persons who could be considered primarily subjects of Saami land rights is reflected in the list of such persons (or the current Saami Parliament electoral roll). The statement that at least one of the grandparents must have learned the Saami language does not mean that the person will pursue the traditional livelihoods of the Saami.

48 See Chapter 25 of this Handbook. See also a recent case from Norway where it was determined whether the construction of the Storheia and Roan windfarms on the Fosen peninsula amounts to a violation of the reindeer herders’ right to enjoy their own culture under Article 27 of the International Covenant on Civil and Political Rights. A grand chamber of the Supreme Court unanimously found a violation and ruled that the licence and expropriation decisions were invalid. Supreme Court judgement October  11, 2021, HR-2021–1975-S (case no. 20–143891SIV-HRET, case no. 20–143892-SIV-HRET and case no. 20–143893SIV-HRET).

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Today, about 10,500 people have been entered into the Saami Parliament’s electoral roll. Most of them live in the large population centres of the south, and their numbers are growing all the time. There is no precise information on how many of the persons on the Saami Parliament’s electoral roll practise reindeer husbandry as their livelihood, but it is estimated that they make up only 2–3% of the persons in the electoral roll. On the other hand, the 1962 def inition did not include the descendants of the Saami who inhabited the present-day territory of northern Finland in the 17th and 18th centuries and who were the subjects of the Saami’s land rights. The descendants of the Finnish settlers learned the language spoken in the area (Saami) and met the criteria used in the 1962 interviews. On the other hand, reindeer herders, especially from Norway, moved into the area of the ​​present-day northern Finland in the late 19th century. They also met the 1962 def inition, but they were not descendants of the original Saami in the area. Most of the descendants of the region’s original Saami inhabitants were left out of the electoral roll. This was because the 1962 interviews were conducted only in the three northernmost municipalities and in the northern parts of the Sodankylä municipality. Only some of the Inari Saami families participated in the interviews. Other forest Saami were excluded from the interviewees and the electoral roll. However, a so-called Lapp basis was added to the Saami Parliament Act of 1994, which, according to the wording of the law, also allowed the forest Saami to be entered into the electoral roll. Most of the Saami politicians elected to the Saami Parliament, however, have opposed their acceptance, and their appeals have been rejected by the Supreme Administrative Court. The fact that all the applicants so far have been demonstrably Saami and that most have also practised the traditional Saami livelihoods, such as reindeer herding, has not had an impact. It is clear that the Saami politicians elected to the Saami Parliament primarily represent the interests of the voters. The investigation of Saami land rights is not in the best interests of the Saami Parliament. It is obvious that neither will the Saami Parliament demand the recognition of Saami land rights in the future. It is also unlikely that the matter will be investigated by the government. In this context, it is not possible to discuss how the current legislation should be changed. Very briefly, however, one way to remedy the current situation is for the legislators to set up Saami villages following the Swedish model, whose shareholders are all Saami, consider themselves Saami, live in the Saami villages and pursue the traditional Saami livelihoods. The starting point for the division of the villages can be the original 18th-century village division system or the current reindeer-herding cooperative division system. The new Lapland villages do not necessarily have to be linked to reindeer husbandry. Other land uses, such as hunting and f ishing, may also suff ice in this respect. The shareholders of these villages’ territories will have similar rights to use the land and water areas that the Saami have long enjoyed, and these rights will enjoy legal protection in relation to the landowners’ rights and to land use competition. In conclusion, it can be said that it seems that the people, both Finnish and Saami, in the Finnish North have realised that they need to defend their rights and have also come to know how to be active in relation to various land use projects, such as those concerning mining, wind power use or cutting down trees in forests. In general, people now demand transparency from projects, and they want to actively participate in the relevant processes. It can be asked whether Indigenous Peoples practising traditional livelihoods should be seen more as right holders or as stakeholders equal to people using land in other ways. The latter view would be defended at least by the historical dimension of reindeer husbandry discussed earlier.

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SECTION C

Special Issues

27 THE EVOLVING CONSTITUTION OF GREENLAND Sune Klinge, Helle Krunke, Manasse Lars Mikaelsen and Natuk Lund Olsen

Introduction This paper will discuss the evolution of the Greenlandic status within the Danish Realm through the right of self-determination towards independence. In addition, the aim is to give a historic overview of the development of institutionalisation of law in Greenland and the constitution-making process. The society of Greenland is a mixture of ethnicity and often referred to as a mixed population within blood, culture and linguistics due to the colonial history, which goes 300 years back.1 This is manifested in the prerequisites for the framework in the Constitutional Commission. There are approximately 56,000 inhabitants in Greenland, and the majority identify themselves as either Kalaallit or Inuit. There are three distinct dialects in Greenland: Inughuit, Kalaallisut and Tunumiit Oraasiat. For that reason it is written in the prerequisites of the Constitutional Commission that “there must be paid particular attention to . . . the citizens of the Qaanaaq region and the citizens of East Greenland on the work of the commission”2 Danish is taught in schools, and sometimes it is the only language used in educational matters, as it is mostly the case at the University of Greenland and the high schools. For those reasons, language and identity often become hot topics in Greenland. The Greenlandic author and former member of the provincial council, Grønlands Landsråd, Frederik Nielsen has written several books about identity and the ability to live side by side despite different cultural and ethnical backgrounds. Nielsen has especially described this in his book titled Ilissi tassa nunassarsi meaning “This will be your land.” There he explains that those who are Greenlanders are those who love the country.3 The work of the Constitutional Commission is linked to a claim of independence. In a 2017-survey, 44% of the Greenlandic peoples wanted more independence but only if it could be done without deterioration of the general level of welfare. Only 11% wanted full independence from

1 Finn Gad and Arne Gaarn Bak, Grønland (Copenhagen: Politiken, 1984). 2 Forudsætninger for rammerne i kommissoriet for Forfatningskommissionens arbejde (Microsoft Word - Forudsætninger DK.docx (naalakkersuisut.gl)). 3 Frederik Nielsen, Ilissi tassa nunassarsi (Nuuk: Atuakkiorf ik, 1970).

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Denmark and 12% were willing to accept some deterioration of the general level of welfare if Greenland could become independent.4

The Historical Evolution of the Relationship Between Denmark and Greenland Greenland currently has a Self-Rule agreement with the Danish Realm. Historically the connection between Greenland and the Danish Realm originated with Hans Egede, who was a DanishNorwegian missionary. He arrived in Greenland on July 3, 1721,5 to rechristen the Norse, although he never found them.6 Instead, his purpose became to be a missionary among the Inuit living in Greenland. Even though Greenland and Denmark in various ways are non-comparable, Greenland is an island in the Arctic and 52 times bigger than Denmark with a distance of approximately 4,000 km between the two places, the connection has remained. When Hans Egede arrived in Greenland the Inuit already had their own beliefs, order and law, which is called Inuit cosmology. The practices included animism and shamanism, with no ruler. Their way of life was changed as Christianity entered the homes of the Inuit. However, the Inuit had before Hans Egede’s arrival already traded and intermingled with foreigners through the whalers arriving to Greenland.7 Denmark gradually colonised and increased authority over Greenland. The colonisation culminated in 1774, when Royal Greenland Trading Department (Den Kongelige Grønlandske Handel, KGH) was established with a Danish sailing and trading monopoly8 and when the Danes took the f irst step to make Greenland an institutionalised society with written laws in the report titled Instrux for Handel and the Whalers in Greenland in 1782. The report resulted in the creation of two inspection departments based in the remote colonies of Qeqertarsuaq in North Greenland and Nuuk in the South Greenland.9 The report reflected the Danish-Norwegian attitude towards Greenland and reflected that the colonists had recognised that the development pointed to the destruction of the Greenlanders’ ability to sustain themselves. Therefore, the leitmotif became that everything had to be decided for the best interests of the Greenlanders.10 With that principle a Danish-Norwegian administration, shipping and trade monopoly began. Goods were provided through KGH on the principle that the Greenlanders could only buy the necessary goods and all goods had the same price all over Greenland.11 From the colonisation of Greenland and until 1814 when Norway and Denmark were separated, Denmark left almost all the control of Greenland to Norway. However, in 1840, Denmark established a commission, which had the task to testify whether the isolation policy from 1782 should remain or not.12 Politically, the majority wished for Greenland to be f inancially independent, which became the Danish Greenland policy until 1946.13 Originally, the plan was to introduce free trade

4 HS Analyse for Sermitsiaq. April 1, 2017 (https://sermitsiaq.ag/node/195511). 5 Aage Rydstrøm-Poulsen, Tro og samfund i Grønland – I 300-året for Hans Egedes ankomst, 2021, 11. 6 Dansk biograf isk leksikon, Bind IV, 425. 7 Mads Lidegaard, Grønlands historie (Copenhagen: Nyt Nordisk Forlag, 1991), 50. 8 Ditte Bentzon Goldschmidt, “Grønlændernes selvstændiggørelse. Grønlandsk autonomi eller dansk herredømme?” Fortid og Nutid (January 1991): 98. 9 Lidegaard, Grønlands historie, 85. 10 Ibid. 11 Ibid., 86. 12 Ibid., 107. 13 Hans Christian Petersen, Grønlændernes identitet, Grønlændernes historie fra urtiden til 1925 (Nuuk: Namminersornerullutik oqartussat/Atuakkiorf ik, 1991), 33.

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in Greenland at some point, but the purpose was also a strategic colonial policy with a loyal Greenlandic population and use of their traditional hunting for extracting resources.14 The Reorganisation of 1840 (Nyordningen af 1840) did not have the effect the colonial power intended. The Greenlanders had as foreseen more money although, according to the colonial power, they did not invest their money to improve their livelihoods. In 1862, 13 principalities (Forstanderskaberne) were permanently formed, after it had been established on experimental basis in four southern colonies from 1857.15 The system became the f irst step towards judicial affairs and towards institutionalised democracy. Initially, the Greenlandic population gained some organisational influence in decisions of their local community through the principalities. Their function was supporting materials for the improvements of houses, tools for hunting and food during illness. The principalities could advise the Danish authorities in the districts. These were composed of the priest, manager, catechist, doctor and, as a new initiative, a Greenlandic hunter, who was usually the most skilled in the settlement.16 The principalities were as well given a special function as courts. In 1908, the Law of 1908 (Loven af 1908) was passed. The creation was a request from the Greenlanders themselves. The principalities were replaced by the municipal councils which were elected by democratic process. The Danish members were more or less removed and two provincial councils (Landsrådene) in North and South Greenland and 63 municipalities were created, and for the f irst time, organisation and trade were divided.17 The provincial councils could advise and express an opinion on laws and regulations for Greenland. A completely new principle was formed with the Law of 1925 (Loven af 1925), where Greenlanders for the f irst time were part of a commission together with the Danes. The purpose was to establish a modern Greenland. In the law, it is written, The main objective is the development of Greenlanders towards independence, that is, such maturity in moral and economic terms that they can be able to live in contact with the rest of the world when the condition of segregation is ceased in the future. But . . . the Committee believes that the situation in Greenland is still such that there cannot yet be a reform of this kind . . . but a purpose towards a goal.18 The provincial councils remained. However, a pursuit’s advice (sysselråd) was created in all inhabited places. In the schools, Danish language became more central, and Greenlanders could go to Denmark for an education. The Danish language was considered an essential requirement to bring Greenlanders to the Western civilisation.19 However, Denmark wanted Greenland to remain isolated from the outside world.20 Nevertheless, it is worth mentioning that the word “independence” is written into the law. Exactly how the word was understood is a matter of interpretation,21

14 Jørgen Viemose, Dansk kolonipolitik i Grønland (Copenhagen: Demos, 1976), 47. 15 Jens Heinrich, Den grønlandske mentalitet 1850–1950: en kulturel konstruktion (Nuuk: Ilisimatusarf ik, 2004), 29. 16 E.g. Erik Beukel, Frede P. Jensen and Jens Elo Rytter, DIIS, Afvikling af Grønlands kolonistatus – en historisk udredning (Copenhagen: Danish Institute for International Studies, 2007), 14; Axel Kjaer Sørensen, Grønland-Danmark I det 20. Århundrede-en historisk oversigt (Copenhagen: Nyt Nordisk Forlag, 1983), 16. 17 Lidegaard, Grønlands historie, 129. 18 Ibid., 130 (translation by the authors). 19 Viemose, Dansk kolonipolitik i Grønland, 60. 20 Lidegaard, Grønlands historie, 133. 21 Jens Heinrich, Eske Bruno og det moderne Grønlands tilblivelse (Nuuk: Naalakkersuisut, 2012), 48.

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whether the purpose was to aim at a goal of independent individuals or if it referred to an off icial goal of Greenland becoming an independent nation in the future. In 1863, H.J. Rink, Samuel Kleinschmidt, Rasmus Berthelsen and Carl Emil Janssen documented 25 old customs and statutes, which already existed among the Greenlanders prior to Egede’s arrival.22 To give a few examples, custom 2 states that the closest related widows and orphans live with the hunters and help them. Custom 4 states that during hunting, one of the hunters heads all households. Another custom states that when it is spring, everyone leaves to live in a tent. In custom 18, it is stated that animals being shot belong to the f inder and lost property is handed over to the owner if he is constantly looking for it, while custom 21 is about the “worthy poor” (widows, orphans, weak elders, ill persons) without family who support the settlers without expecting payment. This illustrates the f irst attempt to codify a Greenlandic constitution. In 1939, a new commission, with the purpose of renewing the successful Law of 1925 was formed. Unfortunately, the Second World War had started and the work in the commission was postponed and shortly afterwards, on April 9, 1940, the Germans occupied Denmark. Thus, the connection between the colonial power Denmark and its colony Greenland was hindered. Two days later a trade connection was established between Greenland and the USA and imported goods were paid for with cryolite from Greenland. Overall, the Second World War was a catalyst for Greenland’s development. It progressed in various ways, living conditions rose and radio news came from both Greenland and from the rest of the world. “World War II helped to open the eyes of Greenlanders to the outside world”23 and the isolation policy came to an end.24 As Nikolaj Rosing, a member of the provincial council wrote with concern of going back to status quo after the second World War: “The development in the future is far too slow . . . if we are to continue at the slow pace after the resumption of relations with Denmark.”25 Frederik Nielsen continued, “It would be very much against our wish that the Greenlandic Council try to lead us back to the pre-war state.”26 Furthermore, the international policy of the post-war period had an impact on Greenland, as the UN decolonisation process pressured colonial powers to abolish their colonial policies. UN Charter art. 73–74 and the factor list from 1952–53 illustrate three options, which were independence, integration and free association.27 In 1952 the members of the Greenlandic Council, Grønlands Landsråd, which had replaced northern and southern Greenlandic provincial councils, was given a few days to council within the future status of Greenland. The integration model was presented to the Greenlandic Council. However, as the title states, the Greenlandic Council was a council, while the decision was made in Denmark. It was the Danish inhabitants who voted for or against the new constitution. It needs to be notes that the Danish constitutional expert, Alf Ross’ full statement from June 17, 1952, was rejected by the Danish government and the document was only made public half a century after. Based on his understanding of the idea of the ​​ UN pact and from what he found ideologically to harmonise best with the UN pact, he concluded that it would be appropriate

22 Atuagadliutut 1913, No. 10, 145–48, Atuagadliutut 1913, No. 13, 145–48, reproduced at Timarit.is, accessed December 13, 2022, https://timarit.is/issue/266556. 23 Tupaarnaq R. Olsen, I skyggen af kajakkerne (Copenhagen: Forlaget Atuagkat, 2005), 11 (translation by the authors). 24 Ibid. 25 Nikolai Rosing, Grønlandsposten, nr. 4–1945, 39 (translation by the authors). 26 Frederik Nielsen, Grønlandsposten, nr. 11–1945, 122 (translation by the authors). 27 Erik Beukel, Jensen and Rytter, Afvikling af Grønlands kolonistatus, 204 and 310.

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in the Constitution to include a provision in which it was stated, that “Greenland constitutes an autonomous community within the national unit, it is added that the scope and system of autonomy is determined by law.” This formulation was almost verbatim with the Faroese Home Rule Act of 1948. He believed that by following this line, Denmark would face the strongest criticism from other sides. His solution was, as prescribed in the letter from the prime minister, an integration solution, but with the addition of a principled, provisionally obsolete self-government component.28

Greenland from Colony to County Off icially, the colonial status ended on July 5, 1953, where Greenland became a county in the Danish Realm and got two permanent members in the Folketing (Danish Parliament).29 The divergent rights between the Greenlandic and Danish people were also abolished.30 The change also meant an integration of Greenland into the Danish Realm and equality on an equal footing with other counties in the kingdom. It was also the abolition of the isolation policy.31 The end of the isolation policy had signif icant positive impacts on the economic development of the local communities. The G-50 and G-60 policies were developed and implemented with the purpose of modernisation, urbanisation and industrialisation with f ishing as main occupation.32 The G-50 was about developing Greenland’s private economy, while the State’s role was to institutionalise the rule of law. However, after the Greenland Commission of 1960, G-60, the State began actively to intervene in the administration and development of Greenland. Unpopular decisions from the State such as the birthplace criterion,33 closure of Qullissat (the third biggest town in Greenland at that moment), and membership of the European Community (EC)34 could not be overlooked by the Greenlandic society. The place of birth criterion was a creation of a pay gap on the basis of the place of birth between Denmark and Greenland. A Greenlandic-born employee had a clearly lower salary than employees born in Denmark in similar positions with similar tasks.35 The closure of the local community Qullissat, then Greenland’s third largest city, due to the mine’s economy and prof itability and a forced relocation of the city’s residents for those who did not want to move voluntarily, resonated negatively among the population about Danish authority. On October 2, 1972, there was a referendum on EC membership. The majority of the votes from Greenland were against membership (71% voted against EC).36 However, due to the majority of the Danish population voting in favour of the Danish Realm becoming member, Greenland became part of the EC. The scepticism against EC was based on a concern for an even greater extent of being governed from far away. Among the Greenlanders, a wish of a different kind of connection to the Danish Realm grew37 and new political parties emerged.38 Parties were formed

28 Ibid., 203. See Alfredsson: 51 Nordisk Tidsskrift Int’l Ret 39, 1982. 29 Olsen, I skyggen af kajakkerne, 41. 30 Viemose, Dansk kolonipolitik i Grønland, 29. 31 Hans Christian Gulløv et al. (2017) s. 112 Danmark og kolonierne. 32 E.g. Olsen, I skyggen af kajakkerne. 33 Ibid., 125. 34 Ibid., 193. 35 Storch (1930) s. 94 strejflys over Grønland. 36 Kristensen, 2012, Sermitsiaq.AG. 37 Olsen, I skyggen af kajakkerne, 193. 38 Ibid., 187.

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around policies regarding the relations with Denmark. This led to discussions about remaining a county of Denmark, expanding self-determination, and secession.

Evolving Self-Determination Within the Danish Realm and Independence In 1972, a political situation arose where a minority government in Copenhagen was dependent on the mandates of the two members of Parliament elected in Greenland for support. This meant that the Greenlandic mandates f inally had an active influence on the government far away in Denmark. It also contributed to the idea of the Home Rule arrangement, where Danish affairs were to be decided within the Danish Parliament (Folketing) and Greenlandic affairs by the Home Rule government.39 A Greenlandic referendum on whether to remain one county or develop Home Rule was held on January 17, 1979, in which more than two-thirds of the voters voted for Home Rule. The vote of Home Rule was the f irst recognition that Greenland is part of the Danish Realm by the Greenlandic population, while Greenland was recognised as having a special position, culturally and geographically. Home Rule was introduced on May 1, 1979, and Greenland began to take over policy areas from Denmark and started developing its own competencies, where taking over parts or entire areas followed the economy and administration from Denmark, in the form of block grants. The country was given the opportunity to take home human rights and other predetermined areas of law. The areas that could be governed by Greenland were agreed in the Home Rule Act. The Greenlandic people were given the right to decide and develop their own affairs.40 In this way, the country’s self-determination began to evolve. The Danish Realm retained the right of sovereignty, as well as common and Danish affairs. These could not be taken over by the Home Rule government. Any overlapping areas were settled by a dispute resolution agreed in the Home Rule Act. In 1982, after a Greenland-only referendum on EC membership in which a narrow majority voted in favour of withdrawing, Greenland received support from the Danish government and left the EC in 1985.41 In this way, Greenland also built its foreign policy competence. However, Greenland’s foreign policy authority is limited to matters that are decentralised, which particularly concern Greenland, with the competence to enter into bilateral agreements with individual countries. In 2003, the Itilleq Declaration42 was signed, which gave Greenland formal influence on foreign affairs and security policy that particularly concerned Greenland. Since all predetermined areas in the Home Rule Act had been taken over, a likely next step would be to engage in the process of evolving Self-Rule governance. A Greenlandic referendum on keeping the Home Rule government or introducing more extensive Self-Government was held on November 25, 2008, in which approximately ¾ voted for SelfGovernment.43 On the Greenlandic National Day on June 21, 2009, the Self-Government Act was

39 Jonathan Motzfeldt et  al., Grønlandsk-dansk selvstyrekommissions betænkning om selvstyre i Grønland (Copenhagen: Grønlandsk-dansk selvstyrekommission, 2008), 23–24. 40 Mininnguaq Kleist, “Grønlands udenrigspolitik og internationale relationer: nuværende rammer og mulig udvikling i et selvstændighedsperspektiv,” Politik 22, no. 1 (2019), 85. 41 Henrik Skydsbjerg, Grønland- 20 år med hjemmestyre (Nuuk: Atuagkat, 1999), 75. 42 Itilleq erklæring. 43 Sermitsiaq.AG, 2008, Sermitsiaq.AG; see also Sune Klinge, “Constitutional Developments in Greenland,” I·CONnectClough Center 2019 Global Review of Constitutional Law, Clough Center for the Study of Constitutional Democracy at Boston College (2020).

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introduced. This provided a platform for Greenlanders to consider future independence and what a future constitution could look like. Similar to the Home Rule Act, predetermined areas have been agreed, which can be taken over in the Self-Government Act. Furthermore, the Self-Government Act recognises the Greenlandic population as a people with the right to self-determination. The right to decide for oneself the independence of Greenland by taking over the right of sovereignty through a democratic process has been agreed in the act.

The Current Legal Framework of the Relationship Between Denmark and Greenland The legal foundation of Greenland is governed by the Danish Constitution of 1953, in which Article 1 states, “This Constitution applies to all parts of the Danish Realm also including Greenland and thereby binding the Greenlandic and Danish authorities by the Danish Constitution and enabling the people of Greenland to invoke the rights conferred.”44 Furthermore, Greenland is given parliamentary representation in Article 28 of the Danish Constitution. The Danish Parliament has 179 members, of which two are elected in Greenland and two in the Faroe Islands. The mentioned articles were incorporated into the Constitution in 1953, and the constitution has not been amended since then.45 Greenlandic autonomy is not based on the Constitution of 1953, but on legislation, originally the Home Rule Act from 197946 and now the current Self-Government Act from 200947 both passed by the Danish Parliament with simple majority votes. As part of the Danish realm, Greenland is bound by the Danish Constitution according to Article 1 of the Constitution. Within this constitutional setting, Greenland has been provided with Self-Government in a number of policy areas and with a possibility of transfer of more policy areas through the Act on Self-Government.48 The Self-Government of Greenland can take over predetermined State affairs through an agreement with the Danish State according to international law with the right to self-determination. Greenland has developed its legislative and executive authority under this agreement. Greenland takes over matters that particularly concern the country. The country does not take over the common affairs of the Danish Realm or the constitution, nor Danish affairs. The framework of the relationship between Denmark and Greenland relies on the division of competences according to the Self-Government Act. The act is based on a wish to foster equality and mutual respect in the partnership between Denmark and Greenland. Greenland has been provided with the competence to govern a number of policy areas and could possibly transfer more policy areas. The Self-Government Act states that in the f ields of responsibility taken over by Greenland, the Greenlandic authorities can exercise legislative and executive power. Furthermore, the courts of law established under the Self-Government authorities can exercise judicial power

44 On Article 1 of the Constitution, see also Ole Spiermann, Danmarks Rige I forfatningsretlig belysning (Copenhagen: Jurist – og Økonomforbundets Forlag, 2007). 45 See The Nordic Constitutions – A Comparative and Contextual Study, eds. Helle Krunke and Björg Thorarensen (Oxford: Hart Publishing, 2018) (for detailed discussion of the Danish Constitution in comparative perspective with other Nordic constitutions), especially Chapters 3 and 4, 43–105. 46 Act no. 577 of November 29, 1978, on Greenland Home Rule. 47 Act no. 473 of June 12, 2009, on Greenland Self-Government. 48 See also Klinge, “Constitutional Developments in Greenland,” 1–4 and Christensen, “Dansk Statsret,” 3. Edition, 465–69.

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in Greenland in all f ields of responsibility.49 Accordingly, legislative power is with Inatsisartut (the Greenlandic Parliament), the executive power with Naalakkersuisut (the Greenlandic government) and the judicial power with the courts of law (which are under Danish authority). In the Self-Government Act, the people of Greenland are recognised as a people under international law with a right to self-determination.50 The Greenlanders can exercise their right to take over their sovereignty in full and become independent following a referendum.51 If the Greenlandic people decides to become independent, the Danish government will enter into negotiations with the Greenlandic government on an agreement.52 Independence would entail full sovereignty over the Greenland territory.53 The Danish Parliament will have to consent to such an agreement.54 This way, the legal foundation for a possible future independence is carved in the Self-Rule Act. The act also states that the Greenlandic language is the off icial language of Greenland.55

The Evolving Constitution – Towards Independence The evolving constitutional work can be seen as the next step in becoming independent. The idea of drafting a Greenlandic constitution was f irst raised and debated in the Greenlandic Parliament (Inatsisartut) in 2007. Nine years later, during the autumn in 2016 the Parliament voted for establishing a constitutional commission,56 where the f irst minister of independence, Suka K. Frederiksen said, “The constitutional work should bring us together as a people. Everyone should feel welcome to participate in the work. . . . All major journeys start with the f irst step.”57 The f irst step was taken when the f irst Commission was established in April 2017.58 Due to the 2018 elections for Inatsisartut, the work was temporarily suspended, and in 2019, a newly appointed commission resumed the work of the f irst Constitutional Commission established in the spring of 2017. The mandate of the second Constitutional Commission was published at the end of March 2019.59 The second Commission did not suspend its work before, during nor after the 2021 elections for Inatsisartut.

Scope of the Work of the Committee on a New Constitution Building on the historical background and the legal framework, we will now describe and analyse the mandate and the scope of the f irst, second and third Constitutional Commission. The Constitutional Commission was given a mandate by the Inatsisartut (not including Denmark) to prepare a proposal for Greenland’s Constitution in two stages: the f irst should be able to enter into force under

49 See Article 1, Act no. 473 of June 12, 2009, on Greenland Self-Government. 50 Self-Government Act, Article 1. 51 Article 21. 52 Article 21, part 3. 53 See Bent Ole Gram Mortensen, “Self-Governance and the Overall Framework Concerning Greenland,” in Responsibilities and Liabilities for Commercial Activity in the Arctic: the Example of Greenland, eds. Vibe Ulfbeck, Møllmann, Anders Møllmann, and Bent Ole Gram Mortensen (London: Routledge, 2016), 17–34. 54 Article 19 in the Danish Constitution and Christensen “Dansk Statsret” 3. Edition, 468. 55 Ibid., Article 20. 56 pkt39_em2016_forfatningskommission_sn_2beh_da.pdf (ina.gl). 57 Ibid. 58 Betænkning afgivet af lovafdelingen EM 2016/39: Forslag til Inatsisartutbeslutning om, at Inatsisartut giver Naalakkersuisut bemyndigelse til at etablere en forfatningskommission med henblik på at udfærdige et forslag til en grønlandsk forfatning. 59 www.tunngavik.gl/emner/generel-info/kommissoriet?sc_lang=da.

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the existing Danish constitutional framework; the second stage should only take effect when (or if) Greenland at some point would become independent. In addition, the Constitutional Commission was given a mandate to draft provisions that will allow Greenland to enter into intergovernmental cooperation, such as concluding a free association agreement with another State. This two-step approach was abandoned following the Inatsisartut elections in the spring of 2018. The two-step approach had been agreed by the coalition 2016–18: “The Naalakkersuisut [government] has noted that the majority of the committee call on the Naalakkersuisut to . . . include the preparation of a draft constitution for Greenland as independent state.”60 On this basis, the Constitutional Commission agreed to prepare a draft constitution that would be able to enter into force if Greenland becomes an independent, sovereign State. Thus, in its meeting on March 22, 2019, the Naalakkersuisut approved the revised Constitutional Commission mandate to prepare a draft constitution for Greenland, which could enter into force on the day Greenland becomes an independent State. As mentioned, if the Greenlandic people decide to become independent, the Danish government will enter into negotiations with the Greenlandic government and the Greenlandic people in a referendum must then accept the agreement. Independence would give full sovereignty over the Greenland territory. The Danish Constitution does not have to be amended if an overseas territory such as Greenland becomes independent. Article 19 of the Constitution acknowledges the possibility of the government concluding treaties diminishing the territory of the Realm and such treaties only require the acceptance of Parliament to be ratif ied.61

Composition and Organisation of the Constitutional Committee The composition of the Commission committee is decided by government (Naalakkersuisut). Five members are appointed on the recommendation of the parties represented at the last parliamentary election. The political parties in Inatsisartut nominate two candidates, which do not have to be politically connected.62 The Constitutional Commission may appoint assigned members for providing the Commission with a high level of party-politically neutral advice. The Naalakkersuisut may appoint two to four assigned members to the Constitutional Commission, of which at least one is an expert in constitutional law. The other members are expected individually or collectively to possess knowledge at expert level about international law or nation building. Other experts whom the Commission considers relevant may participate on an ad hoc basis in the Commission’s work upon invitation of the Chair of the commission. Reviewing the present Commission and the non-political members,63 we f ind representatives from different parts of the Greenlandic civil society. Members include heads of representation in both Washington, Brussels and Denmark giving a hint of the global outreach and the international dimension of nation building relying on expertise from diplomacy. From the University of Greenland, one as member and two researchers from social science and humanities (language, literature and media) are present along with the director from the Greenland National Museum and Archives.

60 pkt39_em2016_forfatningskommission_sn_2beh_da.pdf (ina.gl). 61 Article 19 in the Danish Constitution, see Albæk Jensen, “Denmark: The Position of Greenland and the Faroe Islands within the Danish Realm,” European Public Law 9, no. 2 (2003), 178. 62 https://tunngavik.gl/emner/generel-info/kommissoriet?sc_lang=da. 63 www.tunngavik.gl/emner/generel-info/kommissionsmedlemmer?sc_lang=da.

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The seventh member is an Icelandic judge aff iliated with the Faculty of Law of the University of Iceland, while the eighth member is a law clerk from the law off ice of the government. The organisation of the Commission includes the distribution of different tasks into working groups that are working with different aspects. The working groups are a central part of the preparation of the proposal for the Constitution.64

Inclusion of Citizens in the Process Following the mandate, the Commission must seek to reach all towns and villages in Greenland and make sure to meet the people and present the considerations and get immediate reactions to factual, principle and value-based considerations, with which the Commission is dealing. All citizens, including children, young people and adults, have the right to submit proposals but the Constitutional Commission has the discretion to decide to take up their proposals, if it considers them suitable for further consideration. The work of the commission so far has been shared through one public meeting, in newspapers and on social media. The process of citizen involvement in constitution-making is a current trend in constitutionmaking.65 Including citizens in constitution-making can also be seen as part of a broader trend where voters are generally involved more actively not only in constitution-making but also through referenda. One might call it a trend of extended use of “direct democracy” tools.66 While this development can be said to provide more popular legitimacy to political decisions, it is at the same time a trend which has been linked to populism in some countries.67 Inclusion of citizens used to be a central task for the Commission. However, due to the fact, that the Commission from the start has focused on making the actual draft and because of the deadline now less than a year from now, this task has been moved to the government.68 In 2021, the political party Atassut called for the disbanding of the Commission, seeking “[a]n Inatsisartut resolution that the Naalakkersuisut, with effect from the adoption of the proposal, be ordered to stop the commission work in the constitution Commission and close down as soon as possible thereafter the Commission.”69 However, the debate illustrates that four parties out of f ive support the work in the Commission and called for the Commission to f inish is work. A representative from the Demokraatit party said, “We believe that it is fair the Commission is

64 News from the chairman, January–September  2020: www.tunngavik.gl/nyheder/2020/09/formandens-nyhedsbrevny?sc_lang=da. See the following section, “The Topics of the Three Working Groups.” 65 Examples can be drawn from the Icelandic constitution-making process and the Irish constitution-making process. See Icelandic Constitutional Reform: People, Processes, Politics, eds. Ágúst Árnason and Catherine Dupré (London: Routledge, 2021); Björg Thorarensen, “The People’s Contribution to Constitutional Changes: Writing, Advising or Approving? Lessons from Iceland,” in Participatory Constitutional Change. The People as Amenders of the Constitution, eds. Xenophon Contiades and Alkmene Fotiadou (London: Routledge, 2017), 103–19; David M. Farrel, Clodagh Harris, and Jane Sutter, “Bringing People into the Heart of Constitutional Design: The Irish Constitutional Convention of 2012–14,” in ibid., 120–35. 66 See Helle Krunke, “Sovereignty, Constitutional Identity, Direct Democracy? Direct Democracy as a Strategy for Upholding the Nation State in EU Integration,” in ibid., 191–208, and Helle Krunke and Jens Christian Dalsgaard, “Towards Increased Citizen Participation in Europe: Impact of Current Development on Political Decision Making and Democracy,” Revue Internationale des Gouvernements Ouverts, no. 2 (2016): 107–30. 67 See Paul Blokker, “Populism and Constitutional Change,” in Handbook of Comparative Constitutional Change, eds. X. Contiades and A. Fotiadou (London: Routledge, 2020), 294–311. 68 Forfatningskommissionen er presset: Politikerne er trætte af at vente | KNR. 69 pkt168_em2021_bf33_forfatningskommission_aqqje_atassut_da.pdf (ina.gl)

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kindly and def initely instructed to set the pace and f inish the draft. We have already waited far too long to see a result.”70

General Choices on Constitution-Making and Timing From the beginning, a number of general choices regarding the constitution-making process and its timing were made of which a few will be highlighted. First, it was decided to design an entirely new constitution. An alternative could have been to copy the Danish Constitution and adapt it to the Greenlandic context much like the original Icelandic constitution-making process. The Greenlandic choice in this regard has two clear advantages. First, it provides room for a constitution, which reflects the Greenlandic identity and context. Second, the Danish Constitution dates back to 1849 and is the only Nordic constitution that has not been amended since 1953, which means that it is not a “modern constitutional design” compared to other constitutions revised more recently. Second, the timing of the constitution-making process is interesting. The constitution is meant to come into force when Greenland becomes a sovereign State. This provides time and reflection to design the best possible constitution with broad inclusion of and support from the current Greenlandic citizens. However, at the same time, it is presupposed that it could take more than 20 years before the constitution will actually come into force. The time perspective is reflected in the fact that young people and children must be included in the process. At the same time, it has been emphasised that the amendment procedure in the constitution should be quite heavy. This seems to leave some generational justice questions. Why not let the Greenlandic citizens at the time of sovereignty design and adopt the constitution? That could seem more democratic, and it would also secure a modern constitution designed in light of the context at that point in time. There might of course also be political reasons for initiating the constitutionmaking process since this might accelerate the independence process itself. Besides, there is a political wish to be able to prepare the law and the society, so it f its the future Greenlandic constitution.

Transparency The fact that it has so far been diff icult to gain access to the draft constitution affects this chapter. It has been necessary to rely on documents with public access such as the mandate and preconditions of the Constitutional Commission, information on the constitutional process to the Greenlandic people, and newsletters from the chair of the commission. The available documents set the frame (and limits) for our analysis.

Linguistic Matters Greenlandic (Kalaallisut) belongs to the Inuit languages ​​spoken in Alaska, Canada and Greenland and as mentioned in the introduction is divided into three dialects: West Greenlandic (Kalaallisut), which is the most common variant, East Greenlandic (Tunumiit Oraasiat) and the Thule language (Inughuit). Although Greenlandic is the off icial language, according to a survey in which Greenlanders were asked to assess their language skills, 70% said they only speak Greenlandic, 15% replied

70 pkt168_em2021_bf33_forfatningskommission_ordf_1beh_demokraatit_da.pdf (ina.gl)

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that they speak only Danish, while the remaining 15% replied both languages.71 The political and administrative elite in Greenland primarily work in Danish, while the majority of the population speaks Greenlandic. This raises the democratic question of whether a country can be governed in a language spoken only by a minority of the population.72 A major problem that also arose during the process in the preparation of the Greenlandic draft has been that different expressions are used for the same concepts and words. Consequently, one of the important tasks of the Commission is to develop words and concepts in Greenlandic in collaboration with the off icial Greenlandic Language Secretariat on the development of a new terminology.73 The idea would be that when the constitution of the Greenlandic State enters into force, only words and concepts that are off icially approved must be used.

Content The evolving draft constitution at the moment contains more than 15 chapters. A preamble introduces the constitution. The following chapters among others analyse these topics:74 • • • • • • •

the legislator (the legislative power); the government (the executive power); courts (the judiciary); national symbols; nature and environment; rights and duties; and foreign Affairs.

This last part of the draft constitution contains provisions on entry into force of the constitution.

Preamble It is interesting that the draft constitution is intended to have a preamble. Nordic constitutions have traditionally not contained preambles. Preambles are found in other constitutional traditions, such as in the United States and France. Furthermore, the treaties of the European Union and the European Convention of Human Rights (ECHR) contain preambles. Another and related feature of the Nordic constitutional tradition is that Nordic constitutions have traditionally not listed fundamental principles in their f irst articles. However, the Nordic constitutional tradition is undergoing a development in this f ield. In recent revisions of the Norwegian, Swedish and Finnish Constitutions, fundamental principles regarding democracy, rule of law and human rights have been inserted in the f irst articles.75 This development is probably inspired by the legal cultural traditions of the EU

71 Katti Frederiksen, Carl Christian Olsen DET GRØNLANDSKE SPROG I DAG Rapport over det grønlandske sprog, standpunkt og anbefalinger. 72 https://unric.org/da/sprog-og-politik-i-groenland/ 73 www.tunngavik.gl/nyheder/2020/09/formandens-nyhedsbrev-ny?sc_lang=da 74 Ibid. 75 See Article 1 of the Norwegian Constitution, Article 2 of the Swedish Constitution, and Article 1 of the Norwegian Constitution. See also Helle Krunke, “Forfatningens principper,” in Uten sammenligning – festskrift til Eivind Smith på 70-årsdagen, eds. I. Nguyen Duy, S. Bragdø-Ellenes, I. Lorange Backer, S. Eng, and B. E. Rasch (Oslo: Fagbokforlaget, 2020), 333–48.

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legal system and the ECHR system.76 The idea of a preamble in the draft Greenlandic constitution f its well into this shift in the Nordic legal culture where fundamental principles are emphasised. The Greenlandic draft constitution might also be inspired by the US tradition in the f ield of preambles since references are made both to the Nordic constitutional tradition and the US constitutional tradition in the preparatory documents. The choice of a preamble can also be seen in light of the context of the Greenlandic constitutional process where Greenland is emphasising its independence and its own identity and culture. Preambles are well suited for expressing constitutional identity. Other elements in the draft constitution also contribute to def ining its constitutional identity (see the following section).77

Topics of the Draft Constitution At a f irst glance, the topics of the draft constitution are classical in the sense that they revolve around institutional provisions and human rights provisions. However, there are a number of interesting and innovative elements as well. These elements contribute to def ining a constitutional identity of the new constitution. An example is that “national symbols” are included in the draft constitution. This is not found in any of the existing Nordic constitutions. According to the mandate of the Constitutional Commission the Greenlandic constitution must be based on and create a setting for the original Greenlandic people’s culture, language and identity, but with respect to groups with another background. Furthermore, it seems from the material available so far that “nature and environment” will play a special role in the draft constitution and that it is separated from the topic of “rights and duties.” This emphasises the signif icance of nature and environment to the Greenlandic people. It might also reflect the impact of climate change on Greenland. At the same time, it resonates well with other modern constitutions. If we compare with the existing Nordic constitutions, nature and the environment have traditionally not played an important role. However, through recent revisions, we see a development in this f ield. In the Finnish Constitution, we now f ind a provision on everyone’s responsibility for the environment and environmental rights in Article 20: Nature and its biodiversity, the environment and the national heritage are the responsibility of everyone. The public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment. The Norwegian constitution in Article 112 mentions, Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.

76 See Krunke and Thorarensen, eds., The Nordic Constitutions, Chapter 8, and Helle Krunke, “Global Values, International Organisations, and Constitutional Change,” in Handbook of Comparative Constitutional Change, 231–44. 77 For an overview of the developments of the Nordic constitutions through history including processes of independence, see Markku Suksi, “Common Roots of Nordic Constitutional Law? Some Observations on Legal-Historical Development and Relations between Constitutional Systems of Five Nordic Countries,” in The Nordic Constitutions, eds. Krunke and Thorarensen, 9–42.

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Finally, the Swedish Constitution now has a provision in Article 2 of the Swedish Instrument of Government according to which [t]he public institutions shall promote sustainable development leading to a good environment for present and future generations. According to the World Bank, Greenland is the place with most space per inhabitant. Therefore, as illustrated in the earliest recorded Greenlandic constitution, many of the 25 customs are about the nature, animals and environment. The Inuit cosmology is what the Inuit have used as law in their daily life and in their approach to life in general. First, it should be marked that in Greenlandic a human is called Inuk. Originally, the word Inuk was used for all living creatures, and it demonstrates that humans were not seen as superior beings among all creatures.78 The Inuit cosmology was entangled into the humans through myths and taboos. These are still told to the living generations today. To give one example, there is the myth of Sassumap Arnaa (“The Mother of the Sea”). That myth is probably the most well-known of all the Inuit myths. The mother of the sea was/is believed to be the connection between the animals and the humans and even to have made her f ingers into the living animals. Sassumap Arnaa protects the animals when the humans are not following the taboos and rules. When the humans do not respect the taboos, her long hair tangles with the hunted animals so the humans suffer from hunger until a shaman comes and untangle her messy hair to release the animals to be hunted.79 It will be very interesting to see how nature and environment will be covered in the draft Greenlandic constitution. Will Greenland, for instance, design rights protection in regard to the environment as a right of nature (as we see it in, for example, Latin America) or as a human right and in relation to human beings (as we traditionally see it in most Western countries)? Another interesting question is whether or how natural resources will be covered among the provisions on nature and environment also in relation to preservation of nature. Generational perspectives are important in this regard. This as well illustrate that even though Christianity is the dominant religion, the Inuit cosmology is still in the veins of the Greenlanders. Finally, the topics of the new constitution seem to add special signif icance to not only rights but also duties of Greenlanders. Other Nordic constitutions contain some duties of the citizens alongside with human rights – for instance, military duties (e.g. Article 81 of the Danish Constitution). However, in the Nordic constitutions, human rights far prevail over duties of the citizens. It will be interesting to see whether the Greenlandic draft constitution will follow this tradition or whether it will emphasise citizens’ duties to a greater extent. In a Nordic welfare State context, duties can, for instance, be in relation to the duty to pay taxes and to work and provide for oneself to the extent possible, if not possible, the State will provide for its citizens. In a Nordic context, duties have been and to a large extent still are the backbone of the f inancing of the welfare State.80 Finally, the list of topics emphasised by the chair of the Constitutional Commission also reflects that foreign affairs is an important issue for Greenland. In fact, foreign affairs competence including

78 Nicole Gombay, Making a Living: Place, Food, and Economy in an Inuit Community (Vancouver: UBC Press, 2010), 35. 79 Klaus Engelbrechtsen and Jørgen, Inuit upperisaat oqalualaavilu: Qanga Inuit oqalualaavi, ileqqulersuutaat upperisarsiornerminnilu takorloortagaat (Nuuk: Ilinniusiorf ik Undervisningsmiddelforlag, 2013), 19. 80 See, for instance, Kirsten Ketcher, Socialret: Principper, rettigheder, værdier, 3rd ed. (Copenhagen: Karnov Group, 2008), 36–37, and Helle Krunke, Pensionsreform. De Retlige Grænser og Muligheder (Copenhagen: Jurist – og Økonomforbundet, 2010), 39–42.

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the demarcation of foreign affairs in relation to natural resources and foreign investments in Greenland has been an ongoing point of debate between Greenland and the Danish State for many years.

The Topics of the Three Working Groups Finally, one might ask what the division and scope of the topics of the working groups tell us about the constitution’s content and identity. At present, there are three working groups: (1) a working group on governance, (2) a working group on rights and duties and (3) a working group on foreign affairs and security.81 The composition of the three working groups seems to underline some of the observations regarding the list of topics emphasised by the chair of the Constitutional Commission. They reflect the traditional structure of constitutions into institutions and human rights. A working group on “governance” treats the institutional part. Apparently, this group works on elections, the possibility of a president, government, Parliament, courts and the competences of these institutions. The fact that there is a specif ic working group on foreign affairs and security underlines the importance attached to these f ields. It would have been possible to treat foreign affairs and security as a matter of governance as it is done in the Danish Constitution’s Articles 19 and 20. However, if we compare with the Finnish Constitution, which was revised more recently, an entire section is devoted to international relations. This may be said to be a natural development in a globalised world. In the Finnish context, international cooperation including the European Union is mentioned already in Article 1 of the constitutional text. Since there is a working group on rights and duties, duties seem to be emphasised alongside rights in the work on a new constitution.

The Future Towards Further Independence: Different Scenarios The def inition of independence is the right to choose one´s own destiny of one´s own free will, development over one´s own affairs and the right of sovereignty. The def inition of a State is a country with a permanent population, def ined territory, government and ability to enter into legal relationships with other States.82 The Constitutional Commission prepares a draft of the constitution, which will enter into force when Greenland becomes independent, but it is not decided when that will occur. A new economic relationship is also to be negotiated between Greenland and Denmark when the block grant is reduced to zero. It could happen through the revenues from underground resources, but there is a risk of premature extraction of underground resources that reduces or eliminates the block grant and risks reliance on capitalist prof it maximisation.83 Consequently, a replacement of the subsidies from the Danish Realm is likely to rely on an economical shift from country with a single or few sources of income to a more diversif ied and sustainable Greenlandic economy with f ishing, industrial extracting nation and tourism. Further development of Greenland’s self-determination towards independence could be possible if Greenland would take over all areas of law and the f inancial burden as prescribed in the Self-Government Act. In the event of a vote for independence in a referendum on independence,

81 News from the chairman, January–September  2020: www.tunngavik.gl/nyheder/2020/09/formandens-nyhedsbrevny?sc_lang=da. 82 Montevideo Convention on the Rights and Duties of States, Adopted December 26, 1933. Entered into force December 26, 1934. Text in: 165 League of Nations Treaty Series 19. 83 Emmerson s. 289 (future history of the Arctic).

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Greenland and Denmark will have to negotiate a new agreement. Achieving statehood opens up for new agreements with the Danish Realm, other States or international organisations. It will be possible to enter into agreements with international organisations, such as the EU on the basis of free association, confederation and federal agreement, or maybe to remain an independent sovereign State, depending on whether Greenland wants to delegate or share State sovereignty. There are different scenarios that can be unfold for Greenland, which also would have an influence on whether Greenland develops independence within or outside the Kingdom of Denmark. Grasping the past, the present and the future: Who has the power to decide what is going to happen to Greenland? Denmark could have granted Greenland independence in the past.84 Denmark had the control over what was going to happen in Greenland.85 However, Greenland has taking over some of the control through the evolving Greenlandic status within the Danish Realm. Now there is a discussion in Greenland about independence and the price of a constitution-building process. Greenland can be portrayed as a f ine balance between preserving Self-Government system in the present and discussing the possible roads towards more independence in the future. The draft Greenlandic constitution is a mean of taking control of the future towards independence. If the country becomes independent, there is a possibility and a risk of becoming dependent on other countries leading to the weakening of sovereignty. It may be that Greenland is most independent within the Self-Government arrangement with the Danish Realm. The Greenlandic people can decide when it is time for a referendum on independence. The deadline for the draft of a Greenlandic constitution is December 31, 2022.86

Conclusion In this chapter, we have analysed the evolving constitution of Greenland in a historical, legal and comparative constitutional perspective. The chosen approach reflects well that the constitutional process of Greenland cannot be understood without combing the historical and legal contexts. Furthermore, the Nordic comparative constitutional perspective contributes to highlight the new Greenlandic constitution in a Nordic context. Through the similarities, differences and choices made, we gain a deeper understanding of the special legal culture and identity in the future Greenlandic constitution. Many questions are still left to be answered while we wait for the draft Constitution to be published. The deadline has been postponed a few times and is currently December 31, 2022.87 However, we see the contours of a constitution deeply embedded in Greenland’s rich culture and nature, a constitution which combines more traditional constitutional design with innovative elements which express the identity of Greenland – a constitution which draws on the past and looks into the future.

84 Dansk Institut for internationale studier s. 26. 85 Friis og Viemose (1982) s. 27 dansk imperialisme i Grønland. En analyse af grønlandspolitik og den grønlandske reaktion herpå. 86 https://naalakkersuisut.gl/da/Naalakkersuisut/Moeder-for-Naalakkersuisut/M%C3%B8dereferater/2021/02/11_02_21 87 Ibid.

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28 SVALBARD Tore Henriksen

Introduction The northernmost part of the Kingdom of Norway – Svalbard – is an archipelago of 61,022 km2 – located in the Arctic between 74° and 81° north latitude and between 10° and 35° east longitude. Spitsbergen is the largest and most important island where  the administrative centre Longyearbyen is located. Svalbard has approximately 2,900 inhabitants, of which almost 50% comes from other countries than Norway.1 About 2,400 of them live in Longyearbyen and NyÅlesund. There are Russian settlements in Barentsburg and Pyramiden and a Polish research station at Hornsund. Coal mining has been the major industry on the archipelago since the early 1900s.2 However, in recent years the prof itability of the industry has declined. The Norwegian government as the major shareholder decided to close the last Norwegian coal mines permanently from 2018.3 There are still coal operations in Barentsburg, run by the Russian company Trust Arktikugol.4 Other industries, such as research, higher education and tourism, have expanded. Tourism and culture employ 30% of the work force whereas 15% are employed in research and higher education.5 The numbers of nights at hotels grew by 30% between 2015 and 2019.6 There has also been an increasing number of cruise vessels and tourists visiting Svalbard in recent years.7

1 Statistics Norway, The Population of Svalbard, Table, May 2, 2021, accessed May 28, 2021, available at Population of Svalbard (ssb.no). 2 Thor Arlov, Svalbards Historie, 1596–1996 (Oslo: Aschehoug, 1996), 243ff. 3 Press release of Ministry of Trade and Industry October 17, 2017, Discontinuing coal activities at Svea and Lunckefjell, accessed May 28, 2021, available at Discontinuing coal activities at Svea and Lunckefjell - regjeringen.no. 4 Meld. St. 32 (2015–2016) Svalbard (White paper No. 32 to Stortinget on Svalbard), section 9.4.2, available in English at Meld. St. 32 (2015–2016) (regjeringen.no). 5 Statistics Norway, Industry Statistics for Svalbard August 2020, accessed May 28, 2021, available at Industry statistics for Svalbard - SSB. 6 Kristin Aasestad and Guro Henriksen, “Utlendingene strømmet til Svalbard,” Statistics Norway, February  21, 2020, accessed May 28, 2021, available at Utlendingene strømmet til Svalbard - SSB. 7 Transportøkonomisk Institutt, “Cruisetraf ikk til Norske Havner: Oversikt, Historie og Prognoser 2018–2060,” TØI Report 1651/2018, 21–22.

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DOI: 10.4324/9781003404828-36

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Svalbard and the waters around the archipelago are already affected by the impact of climate change. Temperatures are rising. Between 1971 and 2017 the annual average temperature raised with 4°C.8 It has led to increased precipitation and consequently avalanches and landslides.9 The permafrost is melting.10 The impacts of climate change are affecting flora and the fauna of the archipelago and surrounding waters. The waters on the western parts of the archipelago have been free of sea ice also during winter in recent years.11 These changes pose a threat to polar bear and seals that depend on the sea ice for migration, preying and for calving. The melting and withdrawal of the sea ice opens the waters to expansion of human activities, such as shipping, f ishing, shipborne tourism and petroleum activities. These activities will add to the threats posed by the impacts of climate change and to the vulnerable terrestrial and marine environment of Svalbard. The objective of this chapter is to investigate the legislative and other measures taken by Norway to protect the marine environment and biodiversity in the waters off Svalbard and its surrounding waters. More specif ically, investigating if and how measures taken by Norway primarily as a coastal State address the additional threats posed by the expansion of human activities – f ishing and shipping – in the waters off the archipelago. This introduction is followed by three more parts. The second part provides a brief historical background to and of the main elements of the 1920 Treaty concerning the archipelago of Spitsbergen (Svalbard Treaty) and an overview of recent years debates or rather disputes on the application of provisions of the Svalbard Treaty to the 200-mile zone and continental shelf off the archipelago. The third part provides insights into the environmental policy of Norway in respect of Svalbard and the surrounding waters under Norwegian jurisdiction before more specif ic investigation on how this policy has been translated into legislation regarding shipping and f ishing in the waters. The environmental policy for Svalbard and its territorial waters is quite ambitious, but is it the same for the zones beyond? Concluding remarks will be given in the fourth part of the paper.

Svalbard: Sovereignty and Retained Rights Background A Dutch expedition led by Willem Barentsz discovered the archipelago in 1596 while on an expedition to f ind and navigate the Northeast Passage. He noted that the land consisted of mountains and jagged peaks and named it accordingly Spitsbergen.12 In the following centuries, the Dutch and the English conducted extensive hunting of whales and walruses. Later trappers from Norway and Russia arrived and from the mid-1800s several scientif ic expeditions visited the archipelago. At the start of the 20th century, Svalbard was recognised as terra nullius. An initiative in 1871 by Sweden to annex the archipelago was forestalled by of Russia.13 The discovery of large reservoirs of coal led to increased economic activities and the realisation of a need for stable and predictable governance of the archipelago. Norway, Sweden and Russia initiated the so-called Kristiania conferences between 1910 and 1914, where a proposal of establishing joint international governance of the archipelago –

8 I. Hanssen-Bauer et al., “Climate in Svalbard 2100. A Knowledge Base for Climate Adaptation,” NCCS Report No. 1/2019, 53, accessed May 28, 2021, https://klimaservicesenter.no/kss/rapporter/rapporter-og-publikasjoner_2. 9 Ibid., 64–65. 10 Ibid., 112. 11 Ibid., 126–29. 12 Arlov, Svalbards Historie, 41–42. 13 Ibid., 219–24.

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a condominium – was discussed. The process was interrupted by the outbreak of World War I.14 Norway was successful in adding the Spitsbergen question to the agenda of the Paris Peace Conference.15 The Spitsbergen Commission was set up and asked Norway to prepare a draft treaty.16 The draft recognised Norwegian sovereignty over the archipelago while preserving previous rights for the other States.17 Some States unsuccessfully argued that Spitsbergen should rather be a mandate of Norway under the League of Nation.18 The draft treaty developed by the Spitsbergen Commission was approved in late 1919, and the treaty concerning the Archipelago of Spitsbergen was signed by the parties on February 9, 1920.19 Neither Russia (Soviet Union) nor Germany was present in the Paris Peace Conference. The Soviet Union formally accepted in 1924 Norwegian sovereignty over the archipelago in return for the Norwegian recognition of the new regime.20 It acceded to the Spitsbergen Treaty in 1935, a decade after the original contracting parties had recognised the new Soviet regime as stipulated in the treaty.21 The Spitsbergen Treaty entered into force August 14, 1925, on the ratif ication of all nine signatory parties. On the same date, the Norwegian Act of July 17, 1925, relating to Svalbard came into force.22 Under its section 1, Svalbard is a part of the Kingdom of Norway. The purpose was to establish that the archipelago is f irmly connected to Norway, as part of the kingdom.23 The legislation introduced the old Norse name Svalbard instead of Spitsbergen. This was to signal the position that the archipelago had always belonged to Norway.24 Importantly, the Svalbard Treaty is open for accession, providing new States with the opportunity to enjoy certain stipulated rights, retained from the previous terra nullius regime.25 At present the treaty has 44 parties, including the Arctic Eight (Canada, Denmark, Finland, Iceland, Norway, Sweden, Russian Federation and the US), major EU members (Germany, France, Spain and Italy), the UK, India, Japan and China. Non-party States are through tacit acceptance of the effective occupation of Norway required to respect its sovereignty over the archipelago.26

Treaty Concerning the Archipelago of Spitsbergen (Svalbard Treaty) In addition to recognising the sovereignty of Norway the purpose of the parties as stipulated in the preamble was to provide the archipelago with an “equitable regime” to ensure its development and

14 Arlov, Svalbards Historie, 288–92. 15 Geir Ulfstein, From Terra Nullius to Sovereignty (Oslo: Scandinavian University Press, 1995), 44. 16 Ibid. 17 Ibid., 45. 18 Ibid., 49. 19 Treaty concerning the Archipelago of Spitsbergen (Paris, February  9, 1920, in force August  14, 1925) 2 League of Nations Treaty Series 7. Also described as Svalbard Treaty. 20 Trygve Mathisen, Svalbard I internasjonal politikk 1870–1925 (Oslo: Aschehoug, 1951), 277. 21 Svalbard Treaty, Article 10; Rolf Tamnes, “Sikkerhetspolitiske utfordringer og militær virksomhet,” in Svalbardtraktaten 100 år. Et jubileumsskrift, eds. Irene Dahl and Øystein Jensen (Bergen: Fagbokforlaget, 2020), 139. 22 Lov av 17. juli 1925 nr. 11 om Svalbard (Act of July 17, 1925, No. 11 relating to Svalbard – Svalbard Act), accessed May  28, 2021, available at Lov om Svalbard [Svalbardloven] - Lovdata, an unoff icial translation is available at lov19250717-011-eng.pdf (uio.no). 23 Ulfstein, From Terra Nullius to Sovereignty, 60. 24 Ibid., 317–19. 25 Svalbard Treaty, unnumbered text below Article 10. 26 Robin Churchill and Geir Ulfstein, “The Disputed Maritime Zones around Svalbard,” in Changes in the Arctic Environment and the Law of the Sea, eds. Myron Nordquist, John Norton Moore, and Tomas Heidar (Leiden: Martinus Nijhoff, 2010), 555.

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peaceful utilisation. The Svalbard Treaty with its ten provisions and annex consists of three main elements: the recognition of the sovereignty of Norway, the preservation of certain rights from the previous terra nullius regime and the peaceful utilisation of the territory.

1.  Full and Absolute Sovereignty The contracting parties commit themselves under Article 1 to recognise “the full and absolute sovereignty over the archipelago.” Norway is not charged with managing the archipelago on behalf of the community of parties or the world community. The concept of “sovereignty” as used in the Svalbard Treaty has the same meaning as in general international law.27 It means that Norway inter alia has exclusive competence to exercise legislative as well as enforcement and adjunctive jurisdiction on the territory of the archipelago. Norway is not required to have the consent of the contracting parties or even to consult with them before adopting legislation or enforcing the legislation.

2.  Preserving Rights from the Previous Terra Nullius Regime The full and absolute sovereignty of Norway is “subject to the stipulations of the treaty.”28 Such stipulations are primarily found in Articles 2 and 3 requiring Norway in its exercise of sovereignty to ensure the equal treatment of the nationals of the contracting parties. Under these provisions they “enjoy equally the rights of f ishing and hunting” and have “equal liberty of access and entry for any reason or object whatever to the waters, fjords and ports [where] they may carry on there without impediment all maritime, industrial, mining and commercial operations on a footing of absolute equality.” This primarily relates to utilisation of natural resources and other types of commercial activities. The rights under Articles 2 and 3 are not of a substantive character, which would mean that nationals of the contracting parties have certain minimum rights to carry out the listed activities irrespective of how the nationals of other contracting parties are treated.29 These are rights of access and participation in the listed activities on an equal footing.30 It prohibits Norway from adopting and enforcing legislation on the basis of nationality that has disadvantageous effects on the exercise of the listed activities for the nationals of some of the contracting parties.31 However, legislation that does not have a discriminatory purpose but has discriminatory effects may not be contrary to the equal treatment requirement if it pursues a legitimate purpose.32 Article 2 (2) of the Svalbard Treaty explicitly emphasises the need of environmental protection as Norway “shall be free take or decree suitable measures to ensure the preservation and, if necessary, the reconstitution of the fauna and flora of the said regions, and their territorial waters.” Consequently, measures taken to protect the environment may be consistent with the Svalbard Treaty even if they have discriminatory effects. Norway is required under Article 8 (2) to devote “taxes, dues and duties levied exclusively [to Svalbard and they] shall not exceed what is required for the object in view.” This is another means

27 Ibid., 554–55. 28 Svalbard Treaty, Article 1. 29 Ulfstein, From Terra Nullius to Sovereignty, 267. 30 Ibid., 284. 31 Ibid., 237–39. 32 Ibid., 266.

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for preserving rights from the terra nullius regime. Thereby, Norway was not to prof it from the activities of other States on Svalbard.33

3.  Peaceful Utilisation Under Article 9 Norway undertakes not to create nor to allow the establishment of any naval base and not to construct any fortif ication on Svalbard. SVALBARD AND THE DEVELOPMENTS IN THE LAW OF THE SEA

This subsection deals f irst with the maritime zones established or claimed by Norway based on Svalbard and then the controversies over the application of the Svalbard Treaty to these zones. Norway is a State Party to the UN Convention on the Law of the Sea (LOSC).34 Articles 2 and 3 of the Svalbard Treaty explicitly refer to “territorial waters,” which includes both internal waters and the territorial sea.35 The breadth of the territorial sea of Svalbard and of mainland Norway was extended from 4 nautical miles (M) to 12 M from 2004.36 In the following, when “territorial waters” is used, it refers to both the internal waters and the territorial sea. In January 1977 Norway established a 200 M exclusive economic zone (EEZ) off its mainland.37 Later the same year, Norway established a 200  M f isheries protection zone (SFPZ) around the archipelago of Svalbard.38 SFPZ is not a full EEZ as it only involves sovereign rights for Norway to explore, exploit, manage and conserve the living marine resources within the zone, and not the full sets of rights of an EEZ.39 Even if Norway still maintains a right to establish a full EEZ around Svalbard, it decided not to, in order to avoid unnecessary disputes over the interpretation of the Svalbard Treaty.40 Therefore, there is not a general ban on foreign nationals to access and participate in the f isheries in the 200 M zone.41 Norway has practised a non-discriminatory policy in regulating the f isheries in the SFPZ.42 Norway has since 1986 annually set a quota for the Northeast Arctic cod in SFPZ, available to the European Union (EU) and other third States.43 The SFPZ quota constitutes

33 Ibid., 51. 34 UN Convention on the Law of the Sea (Montego Bay, December  10, 1982, in force November  16, 1994) 1833 UNTS 3. 35 Torbjørn Pedersen and Tore Henriksen, “Svalbard’s Maritime Zones: The End of Legal Uncertainty?” The International Journal of Marine and Coastal Law 24 (2009): 158–59. 36 Lov av 27.6.2003 nr. 57 om Norges territorialfarvann og tilstøtende sone (Act of June 27, 2003, No. 57 relating to Norway’s territorial waters and contiguous zone), Sections 2 and 5, available in Law of the Sea Bulletin, No. 54 (2004), 41ff and 97ff. 37 Lov av 17.12.1976 om Norges økonomiske sone (Act No. 91 of December 17, 1976, relating to the Economic Zone of Norway), accessed May 6, 2021, www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFiLES/NOR_1976_ Act.pdf 38 Forskrift av 3. Juni 1977 nr. 6 om f iskevernsone ved Svalbard (Royal Decree of June 3, 1977 No. 6 relating to a f isheries protection zone at Svalbard), SFPZ Regulation, available in Norwegian, accessed May 28, 2021, https://lovdata.no/ dokument/SF/forskrift/1977-06-03-6?q=f iskevernsone. 39 Ibid., Sections 3 and 4. 40 St.meld. nr. 40 (1985–86) Svalbard (Whitepaper No. 40 regarding Svalbard), 9. 41 SFPZ Regulation, Section 2. 42 Meld. St. 32 (2015–2016) Svalbard (Whitepaper No. 32 to Stortinget on Svalbard), section 9.4.7, available in English at Meld. St. 32 (2015–2016) (regjeringen.no). 43 Robin Churchill and Geir Ulfstein, Marine Management in Disputed Areas: The Case of the arents Sea (London: Routledge, 1992), 116.

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4% of the total allowable catch of the cod stock, which roughly corresponds with their of the traditional f ishery prior to the establishment of the SFPZ. As the access to the cod f ishery of the SFPZ is not made conditional on access of Norwegian f ishing vessels to their zone, this method has been considered non-discriminatory.44 Consequently, in the water column outside the 12 M territorial sea other States enjoy high-seas freedoms such as navigation that have not been subjected to the SFPZ over which the coastal State otherwise enjoys jurisdiction in an EEZ.45 In practical terms, Norway may not regulate the navigation of foreign flagged vessels in the 200 M zone for the purpose of the protection and preservation of the marine environment.46 Norway is not entitled to make use of the extended environmental jurisdiction of coastal States provided by Article 234 of the LOSC in ice-covered areas within the EEZ, as the SFPZ is not an EEZ. In 1963 Norway declared sovereignty in regard of exploration and exploitation of the natural resources on the seabed and subsoil areas – the continental shelf – outside the coast of the kingdom.47 The declaration included the continental shelf off Svalbard as the continental shelf is continuous from mainland Norway beyond Svalbard and into the Arctic Ocean.48 In June 2021 the Act on the Norwegian Continental Shelf entered into force.49 Its objective is to provide the legal basis for establishing its limits, which are set in delimitation agreements with neighbouring States and are established on the basis of recommendations of the Commission on the Limits of Continental Shelf (CLCS).50 The limits of the continental shelf of Norway in the northernmost areas are settled: in 2009 Norway received the CLCS recommendations on the limits of its continental shelf beyond 200 M in the North-East Atlantic, Barents Sea and Arctic Ocean.51 The continental shelf and the SFPZ have been delimited through agreements with neighbouring States: Denmark/Greenland (2007)52 and Russia (2010).53 Both delimitation agreements may be subjected to minor adjustments as Denmark/Greenland and Russia still have not received recommendation from the CLCS on the limits of their outer continental shelf in the relevant areas. The Act on the Norwegian Continental Shelf is applicable to the continental shelf of the Kingdom of Norway, including the continental shelf off Svalbard.54 Consequently, there is not a designated Svalbard continental shelf under the act and no internal delimitation between the shelf off mainland Norway and Svalbard.

44 Ibid. 45 LOSC, Article 56 (1)(b), cf. Article 87. 46 LOSC, Article 56(1) (b) (iii). 47 Royal Decree of May 31, 1963, No. 1 on Norwegian Sovereignty over the Seabed and Subsoil outside the Norwegian Coast, accessed May 28, 2021, www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFiLES/NOR.htm. 48 Continental Submission of Norway in respect of the Arctic Ocean, the Barents Sea and the North-East Atlantic: Executive Summary, 5, accessed May 28, 2021, available at Submission of Norway_okt-06.indd (un.org). 49 Lov av 18. Juni 2021 nr. 89 om Norges kontinentalsokkel (Act No. 89 of June 18, 2021, on the Continental Shelf of Norway), available in Norwegian at Lov om Norges kontinentalsokkel - Lovdata (September 2021). 50 Ibid., Section 2 (outer limits) and Section 3 (delimitation). 51 Commission on the Limits of the Continental Shelf: Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Item 5, April 29, 2009, CLCS/62. 52 Agreement between the government of the Kingdom of Norway on the one hand and the government of the Kingdom of Denmark together with the Home Rule government of Greenland on the other hand, concerning the delimitation of the continental shelf and the f isheries zones in the area between Greenland and Svalbard (Copenhagen, February 20, 2006, in force June 2, 2006) 2378 UNTS 21. 53 Treaty between the Russian Federation and the Kingdom of Norway concerning maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean (Murmansk September 15, 2010, in force July 7, 2011) 2791 UNTS, 3. 54 Act on the Norwegian Continental Shelf., Section 4.

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The Svalbard Treaty is applicable to the territorial waters, the only maritime zone under coastal State jurisdiction in existence at that time. As Norway has claimed a new maritime zone (SFPZ) and subjected the seabed and its subsoil (continental shelf) beyond the territorial waters of Svalbard to its sovereign rights, questions have been raised on the implications of the Svalbard Treaty for these maritime zones. There are three main questions: 1. Does the archipelago generate maritime zones beyond the territorial waters? 2. If so, are provisions of the Svalbard Treaty applicable to these zones? 3. What competence does Norway enjoy in these zones? A detailed discussion of these questions goes beyond the objective of this chapter. The intention is to provide an overview as they have been addressed in detail in several academic works.55 Regarding the f irst question, Norway has through its practice by establishing zones beyond 12 M assumed that the archipelago generates maritime zones and has received few if any objections. The international maritime boundary agreements and the process of Norway’s CLCS submission are further evidence of State practice. Norway enjoys sovereignty over the archipelago under the Svalbard Treaty and general international law, which provides the legal basis for entitlements to ocean space. Neither the Svalbard Treaty nor the LOSC includes any obstacles to establishing maritime zones based on Svalbard. Some of the islets of the archipelago qualify as uninhabitable rocks under LOSC Article 121 para. 3 and do not provide basis for establishing an EEZ or claiming a continental shelf. According to Churchill and Ulfstein, these islets do not have a signif icant impact on the outer limits of the maritime zones off Svalbard.56 It is particularly the second question that has caused frictions between Norway and other contracting parties. The waters off Svalbard are rich in resources – living and non-living – and may see the introduction of new species due to the impacts of climate change. Other contracting parties argue an equal right under Article 2 to f ish and harvest living marine resources in the 200 M zone and on the continental shelf and to have equal right to access these zones under Article 3 for conducting all maritime and mining activities, which would include exploring and exploiting petroleum resources.57 In February–May 2021 there was an exchange of notes verbales between EU and Norway following the re-allocation of the third State quota on cod in the SFPZ.58 The EU protested, arguing that the allocation violated the non-discrimination principle of Article 2, also

55 See e.g. Ulfstein, From Terra Nullius to Sovereignty; A. N. Vylegzhanin and V. K. Zilanov, Spitsbergen: Legal Regime of Adjacent Marine Areas (Utrecht: Eleven International Publishing, 2007); Churchill and Ulfstein, “The Disputed Maritime Zones around Svalbard,” 23–53; David H. Anderson, “The Status under International Law of the Maritime Areas around Svalbard,” Ocean Development & International Law 40 (2009): 373; Pedersen and Henriksen, “Svalbard’s Maritime Zones,” 14; Erik J. Molenaar, “Fisheries Regulations in the Maritime Zones of Svalbard,” The International Journal of Marine and Coastal Law 27 (2012): 3; Peter Ørebech, “The Geographic Scope of the Svalbard Treaty and Norwegian Sovereignty: Historic – or Evolutionary Interpretation,” Croatian Yearbook of European Law and Policy 13 (2017): 53; Christopher Rossi, “A Unique International Problem: The Svalbard Treaty, Equal Enjoyment, and Terra Nullius: Lessons of Territorial Temptation from History,” Washington University Global Studies Law Review 15 (2016): 93; Øystein Jensen, “The Svalbard Treaty and Norwegian Sovereignty,” Arctic Review on Law and Politics 11 (2020): 82; Øystein Jensen, “Def ining Seaward Boundaries in a Domestic Context: Norway and Svalbard Archipelago,” Ocean Development & International Law 50 (2019): 243. 56 Churchill and Ulfstein, “The Disputed Maritime Zones around Svalbard,” 558–59. 57 Pedersen and Henriksen, “Svalbard’s Maritime Zones,” 145–46. 58 The notes verbales of EU are available at: both accessed September 14, 2021, Fisheries in Svalbard (europa.eu), and the notes verbales of Norway be found at Uakseptabel opptreden av EU i f iskevernsonen - regjeringen.no.

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applicable to the 200 M zone. The application of Article 8 (2) would entail restrictions on the taxation of the revenues from the petroleum exploitation. Some contracting parties have not expressed their position but have reserved their position.59 The Norwegian position, most recently expressed in a ten-page annex to a note verbale of May 4, 2021, to the European Union is that Articles 2 and 3 are only applicable to the land territory and the territorial waters of the archipelago.60 The geographical application of these provisions was extended in 2004 when the breadth of the territorial sea was increased from 4 to 12 M. The provisions are neither according to Norway applicable to the continental shelf nor the 200 M zone, where Norway enjoy sovereign rights.61 Norway builds its position on a literal reading of the treaty and more specif ically on the use of the concept of “territorial waters.” In the May 4, 2021, note verbale, the Ministry of Foreign Affairs inter alia states, “The ordinary meaning and essence of the expression ‘territorial waters’ remains unambiguous today and has further evolved in tact with the development of relevant rules pertaining to territorial waters.”62 Furthermore, the claims that Article 2 applies in the maritime zones established after 1920 is “without any basis in the ordinary meaning of the terms of the Treaty.”63 Churchill and Ulfstein, as well as Anderson, have in academic papers provided detailed arguments for the application by analogy of Articles 2, 3 and 8 to the maritime zones beyond the territorial sea.64 They have underlined that the principles of interpretation as reflected in the Vienna Convention on Law of Treaties entail more than a literal interpretation on which the position of the Norwegian Government builds.65 A treaty provision shall be interpreted in accordance “with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objective and purpose.”66 Churchill and Ulfstein argue that an evolutionary interpretation should be used to the Svalbard Treaty as a whole and by applying the articles to the maritime zones beyond the territorial sea by analogy.67 The objective and purpose of the Svalbard Treaty include an orderly regime by the recognition of Norwegian sovereignty and the preservation of pre-existing rights.68 Consequently, as Norway extended its maritime jurisdiction on the basis of its sovereignty over the archipelago, the stipulations on the sovereignty aimed at preserving the pre-existing rights should also be extended.69 Norway, in the May  4, 2021, note verbale disputes that the objectives and

59 Pedersen and Henriksen, “Svalbard’s Maritime Zones,” 145–46. 60 “Svalbard, the 200-mile Fisheries Protection Zone and Norway’s f isheries regulations,” 2–4, annexed to the note verbale of May 4, 2021, from the Royal Ministry of Foreign Affairs to the Delegation of the European Union regarding regulation of f isheries opportunities in the Fisheries Protection Zone around Svalbard, available at Uakseptabel opptreden av EU i f iskevernsonen - regjeringen.no (September 2021). 61 Ibid., 4. 62 Ibid., 3. 63 Ibid. 64 Churchill and Ulfstein, “The Disputed Maritime Zones around Svalbard”; Robin Churchill and Geir Ulfstein, “The Application of the Svalbard Treaty Offshore,” in Svalbardtraktaten 100 år. Et jubileumsskrift, eds. Irene Dahl and Øystein Jensen (Oslo: Fagbokforlaget, 2020), 265–94; Anderson, “The Status under International Law of the Maritime Areas Around Svalbard.” 65 Churchill and Ulfstein, “The Disputed Maritime Zones around Svalbard,” 566–67; Anderson, “The Status Under International Law of the Maritime Areas around Svalbard,” 379–80. 66 Vienna Convention on the Law of Treaties, Article 31 (1) (Vienna, May 23, 1969; in force on January 27, 1980). 1155 UNTS, 331. 67 Churchill and Ulfstein, “The Application of the Svalbard Treaty Offshore,” 289. 68 Ibid., 273–76; Anderson, “The Status under International Law of the Maritime Areas around Svalbard,” 380–81. 69 Churchill and Ulfstein, “The Application of the Svalbard Treaty Offshore,” 274; Anderson, “The Status under International Law of the Maritime Areas around Svalbard,” 381.

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purposes of the Svalbard Treaty provide for its dynamic development.70 Another line or argument is that not making Articles 2 and 3 applicable to the new maritime zone would create an anomaly where nationals of contracting parties would enjoy more extensive rights in the internal waters and territorial sea than in the SFPZ and on the continental shelf.71 The context of the interpretation includes subsequent practice and relevant rules of international law. The Norwegian practice of non-discrimination of f ishing vessels in the SFPZ may be interpreted as an agreement that Article 2 is applicable to the 200 M zone.72 However, Norway has stressed that the application of non-discrimination based on nationality in the FPZ was made without prejudice for its right to establish a full EEZ.73 It should be noted that Norway is not practising such a pragmatic approach in regulating activities on the continental shelf. One example is the regulation of the harvest of snow crab, a sedentary species on the continental shelf.74 The rationale for establishing of a quota on cod for third States in the SFPZ was to facilitate for the continuation of habitual f ishing with the introduction of the 200 M zone. As there was no harvest of snow crab on the continental shelf in 1977 as it arrived in the Barents Sea around 1996 and commercial harvest started in 2012, this criterion is not applicable to snow crab – or to the harvest of a new species.75 Consequently, licences to harvest sedentary species on the continental shelf outside Svalbard is reserved for Norwegian flagged f ishing vessels.76 Norway has with reference to relevant international law argued that an application of Svalbard Treaty provisions to the 200 M zone and continental shelf would be incompatible with LOSC as set out in its Article 311.77 Churchill and Ulfstein discuss the possible implications of the South China Sea arbitration.78 The Arbitral Tribunal concluded that any pre-existing or historic rights claimed by China had been extinguished as the relevant area became part of the EEZ of another State on the basis of the LOSC.79 It is argued, by analogy with the reasoning of the Tribunal that if Articles 2 and 3 were made applicable to the 200 M zone and the continental shelf, this would be incompatible with the LOSC as it would restrict the sovereign rights of Norway in these zones.80 The dispute(s) remain unresolved. Several criminal cases against foreign f ishing vessels for illegal

70 “Svalbard, the 200-mile Fisheries Protection Zone and Norway’s Fisheries Regulations,” 3, annexed to Note Verbale of May 4, 2021, from the Royal Ministry of Foreign Affairs to the Delegation of the European Union regarding regulation of f isheries opportunities in the Fisheries Protection Zone around Svalbard, available at Uakseptabel opptreden av EU i f iskevernsonen - regjeringen.no (September 2021). 71 Churchill and Ulfstein, “The Application of the Svalbard Treaty Offshore,” 290. 72 Ibid., 277. 73 See e.g. St. Meld. nr. 40 (1985–86) Svalbard (White paper No. 40), 9. 74 Forskrift av 19.12.2014 nr.1836 om forbud mot fangst av snøkrabbe (Regulations No. 1836 of December 19, 2014, banning harvest of snow crab), Section 3 jf. Section 1. 75 “Svalbard, the 200-mile Fisheries Protection Zone and Norway’s Fisheries Regulations,” 8, annexed to Note Verbale of May 4, 2021, from the Royal Ministry of Foreign Affairs to the Delegation of the European Union regarding regulation of f isheries opportunities in the Fisheries Protection Zone around Svalbard, available at Uakseptabel opptreden av EU i f iskevernsonen - regjeringen.no (September 2021). 76 Forskrift av 13.10.2006 nr. 1157 om spesielle tillatelser til å drive enkelte former for f iske og fangst (Regulations No. 1157 of October 13, 2005, relating to special licences to conduct certain types of f ishing and harvest), Section 6–2. 77 Churchill and Ulfstein, “The Application of the Svalbard Treaty Offshore,” 282. 78 Ibid., 282–85 with reference to The  South China Sea Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between The Republic of the Philippines and The People’s Republic of China. Award of July 12, 2016, XXXIII Reports of International Arbitral Awards, 167. 79 Ibid., paras 243–47 and 261. 80 Churchill and Ulfstein, “The Application of the Svalbard Treaty Offshore,” 284.

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f ishing in the SFPZ have been appealed to the Supreme Court of Norway.81 The appellants have argued that the regulations were in violation of the requirement of equal treatment under the Svalbard Treaty. The appeals have not been successful, and the Supreme Court has avoided deciding on the applicability of treaty provisions to the maritime zones beyond the territorial waters.82 This approach has been upheld in the most recent case regarding the snow crab – a sedentary species – involving the continental shelf.83 In this case, the Supreme Court signalled that claims that Norwegian regulations in the 200 M zone or on the continental shelf are in breach of the equal treatment requirement of the Svalbard Treaty should be addressed though legal proceedings against the government.84 The Latvian shipowners that were convicted of illegally harvesting snow crab on the Norwegian continental shelf subsequently applied for a licence to harvest snow crab. The application was rejected by the Ministry of Trade and Fishery as licences may only be issued to Norwegian f ishermen. Subsequently, the Latvian shipowners brought an action against the Government, arguing that the decision was invalid as it violated the equal right under article 2 of contracting parties of the Svalbard treaty to f ish and hunt, applicable to the continental shelf. Both the District Court of Oslo and the Appellate Court of Borgarting gave judgements in favour of the Government concluding that the provisions of the Svalbard Treaty are not applicable to the continental shelf.85The Supreme Court accepted the appeal and it was referred to the plenary composed by all justices present and not disqualif ied, as it raised questions about conflict between legislation and treaty obligations of Norway.86 The plenary of the Supreme Court heard the case at the end of January 2023. Its judgment will be the f irst time the Court decides on the applicability of the Svalbard Treaty to the maritime waters beyond 12 M. It is the f inal say of the Norwegian legal system but not of the international legal system. If the Court f inds in favour of the Government, other states may consider bringing the dispute over the interpretation and application of the treaty before a competent international court of justice. The third question regarding the right of Norway to exercise unilaterally jurisdiction in the maritime zones beyond the territorial sea has been raised by some contracting parties. They have argued that Norway is not competent to apply its legislation to their vessels, much less enforce it.87 As the coastal State, Norway may establish a 200 M zone and assert sovereign rights over the continental shelf and necessarily exercise the appurtenant jurisdiction as stipulated in the LOS Convention. The arguments of these contracting parties seem to assume that Articles 2 and 3 are applicable to these zones and that their right to equal treatment have implications for the competence of Norway to exercise jurisdiction.88 Following the UK leaving the EU and the Common Fisheries

81 See Irene Dahl, “Svalbardtraktaten i f iskevernsonen ved Svalbard – Noen utviklingstrekk i Høyesteretts praksis,” Lov og Rett 57 (2018): 585–603. 82 Ibid. 83 Supreme Court judgement February 14, 2019, HR-2019–282-S (case no. 18–064307STR-HRET), A and SIA North Star Ltd v. The Public Prosecution Authority, accessed May 28, 2021, www.domstol.no/en/enkelt-domstol/supreme court/rulings/2019/supreme-court-criminal-cases/hr-2019-282-s/; Tore Henriksen, “Snow Crab in the Barents Sea: Managing a Non-native Species in Disputed Waters,” Arctic Review on Law and Politics 11 (2020): 108–32. 84 Supreme Court judgement, February 14, 2019, HR-2019–282-S, para. 80. 85 See Judgment of the Appellate Court of Borgarting, LB-2021-140840 at Borgarting lagmannsrett – Dom: LB-2021140840 – Lovdata. 86 See webpage of the Supreme Court, Plenary hearing 24 to 27 January: Snow crab catch and the geographical scope of the Svalbard Treaty (http://domstol.no). 87 Pedersen and Henriksen, “Svalbard’s Maritime Zones,” 159. 88 Ibid.

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Policy, the two parties agreed on the allocation of the EU quota in the SFPZ between themselves and unilaterally established in a council regulation at a higher level than the quota set by Norway.89 Norway protested as it as a coastal State was the “sole State that has the power to establish f ishing quotas within said zone.”90 The EU has over a period of time unilaterally established catch limits for its vessels, including for cod in the SFPZ.91 The EU argued that Norway, contrary to LOSC had not consulted with the EU and other States over the setting of the total allowable catch as the cod is a straddling f ish stock. Consequently, the catch limits set by Norway is established “on a purely arbitrary basis.”92 The EU further argued that its acceptance of the Norwegian regulations are conditional on their non-discriminatory application. Irrespective of the different positions on the application of Article 2 and other provisions of the Svalbard Treaty to the SFPZ, the EU seems to question the sovereign rights of Norway as a coastal State to establish catch limits and allocate them between contracting parties to the treaty. However in the arrangements settling the disputes over the allocation of the SFPZ quota, both UK and EU have explicitly accepted that Norway enjoys sovereign rights and jurisdiction on the SFPZ as a coastal State in accordance with LOSC.93 Russia has also suggested that it be involved in the decision-making in the management of the f isheries.94 Even if Articles 2 and 3 are applicable to the zones beyond the territorial sea, the contracting parties would not be entitled to be involved in adoption of legislation or its enforcement. However, Norway would be required to exercise the jurisdiction consistent with the right of contracting parties to equal treatment.

Protection and Preservation of the Svalbard Environment General As part of the Kingdom of Norway, Svalbard is subjected to Norwegian legislation including the Constitution.95 Treaties or conventions to which Norway is a party – including the LOSC and treaties on environmental protection – are applicable to Svalbard and its territorial waters unless explicitly excepted.96 The main exception is the Agreement on the European Economic Area, which includes Norway in the internal market of the EU.97 The governor is the government’s representative on Svalbard. The tasks of the Governor include policing and the responsibility for implementing legislation such as the Svalbard Environmental

89 Council Regulation 2021/92 of January  28, 2021, Annex IB, Off icial Journal of the European Union 29.1.2021 L31/131. 90 Note verbale of February 8, 2021, from the Royal Norwegian Ministry of Foreign Affairs to the Delegation of the European Union. 91 Note verbale No 2/21 of February 26, 2021, from the Delegation of EU to the Royal Norwegian Ministry of Foreign Affairs. 92 Ibid. 93 See UK-Norway Arrangement of 20 December  2021, paragraph 1 and Ad-hoc exploratory consultations of 28 April 2022 between Norway and EU in relation to the f isheries in ICES areas 1 and 2, item 1. 94 Pedersen and Henriksen, “Svalbard’s Maritime Zones,” 160. 95 The Constitution of May 17, 1814, of the Kingdom of Norway, The Constitution of the Kingdom of Norway – Lovdata. 96 Meld. St. 32 (2015–2016) Svalbard, 17. 97 Agreement on the European Economic Area, Protocol 40, Off icial Journal of the European Union (OJ) L 1, 3.1.1994, 208.

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Protection Act.98 Norwegian public law legislation does not automatically apply to the archipelago.99 The conditions on Svalbard, such as the climatic and natural conditions, restricted possibilities for enforcement, remoteness, settlement patterns and communications, as well as the equal treatment requirements under the Svalbard Treaty, may require other types of regulations than on mainland Norway.100 One example is the protection and preservation of the environment, which is regulated through the 2001 Svalbard Environmental Act. The act is supplemented in the territorial waters by sectoral legislation, such as the Norwegian Marine Resources Act, the Ship Safety Act and the Port and Fairways Act, to be addressed on the following sections. The Svalbard Treaty does not restrict Norway from adopting and enforcing legislation to protect the marine environment and conserve the living marine resources of the territorial waters and the maritime zones beyond (if its provisions are applicable). On the contrary, Article 2 (2) impose upon Norway a particular responsibility to protect the environment as it is to take “suitable measures to ensure the preservation and, if necessary, the reconstitution of the fauna and flora of the said regions, and their territorial waters.” In exercising this responsibility Norway is required to ensure equal treatment of the nationals of contracting parties. In the following, f irst an overview of the relevant environmental policy for Svalbard will be presented. The policy is primarily stated in the white paper to Stortinget on Svalbard but also the Norwegian plan for integrated management of the Barents Sea and the Lofoten Islands has environment policy implications for the waters off Svalbard. The environmental policy sets out priorities and provides directives on legislative action, such as the Svalbard Environmental Protection Act and other legislation applicable to the maritime zones off Svalbard. Subsequently, the main elements of the Svalbard Environmental Protection Act will be addressed. The act is unique as it contrary to the mainland legislation is cross-sectoral. Furthermore, measures are taken under the Svalbard Environmental Protection Act to ensure the interface between land and sea, particularly safeguarding seabirds, seals, walruses, polar bears and other marine mammals. This has been done using protected areas. These and other measures adopted under the Svalbard Environmental Protection Act will be assessed together with the legislation on shipping and management and conservation of living marine resources in the subsequent sections.

Environmental Policies for Svalbard Environmental protection is a key element in the government’s Svalbard policy. In fact, “environmental considerations shall prevail in the event of conflicts between environmental protection and other interests.”101 This has led to conflicts with Russia, as reflected in the letter of the Russian Minister of Foreign Affairs sent to his Norwegian colleague in 2020 where he raised concern over the “unreasonable extension of nature protection zones where economic operations are limited.”102 In

 98 Act on Svalbard, Section 5; Lov av 15.6.2001 nr. 79 om miljøvern på Svalbard, Section 4 (Svalbard Environmental Protection Act), accessed May 28, 2021, available in English translation at Svalbard Environmental Protection Act regjeringen.no.  99 Svalbard Act, Section 2. 100 Meld. St. 32 (2015–2016) Svalbard, 17. 101 Meld. St. 32 (2015–2016), 56. 102 Press release on Foreign Minister Sergey Lavrov’s message to Norwegian Foreign Minister Ine Eriksen Soreide on the occasion of the 100th anniversary of the Spitsbergen Treaty, press release of February 4, 2020, accessed September 14, 2021, available at press release on Foreign Minister Sergey Lavrov’s message to Norwegian Foreign Minister Ine Eriksen

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the latest white paper on the Svalbard the government highlights the impacts of climate change.103 The impacts are not only a threat to species such as seals and polar bears. The waters off the archipelago are becoming accessible for larger parts of the year.104 It may lead to increased maritime activities and f isheries and not least shipborne tourism. This increases the need for establishing an infrastructure on the archipelago for oil spill preparedness, search and rescue and taking other measures to ensure maritime safety and protection of the marine environment. The territorial waters of Svalbard, SFPZ and the adjacent continental shelf are included in the integrated management plan for the marine environment of the Barents Sea and the waters off the Lofoten Islands.105 The plan is submitted to Stortinget as a white paper and provides instructions on how the activities in the marine waters and the exploitation of resources are to be managed through relevant sectoral legislation. The objective of the plan is to provide for a holistic ocean policy where the considerations of industry (f isheries, aquaculture and petroleum) are balanced within the framework of sustainable development.106 The plan shall provide for clear frameworks, coordination and prioritising in the management of ocean space. Probably the most important measure under the plan is the ban or restrictions on petroleum activities in areas designated as “particular vulnerable and valuable areas,” where particular caution is required and activities are not to threaten biodiversity.107 The marginal ice zone is designed as such area and is not opened for petroleum activities.108 When the plan was revised in 2020 a major issue of contention was whether the marginal ice zone should be moved northwards following the melting and withdrawal of the sea ice in the Barents Sea.109 Consequently, areas further north and closer to Svalbard could be opened for petroleum and other maritime activities.110 Under the adopted revised plan, the marginal ice zone spans from the line where ice is found on 15% of the days in April (and the ice persistence has been at least 15% in the period 1988–2017).111 The decision was taken against the recommendations from the Norwegian Polar Institute, the competent agency. It argued for a more southernly delineation of the marginal ice zone.112

The Svalbard Environmental Protection Act The act is the main instrument to implement the government’s environmental policy. It provides for more extensive and integrated environmental regulations than is the case on mainland Norway.113

Soreide on the occasion of the 100th anniversary of the Spitsbergen Treaty - News - The Ministry of Foreign Affairs of the Russian Federation (mid.ru). 103 Meld. St. 32 (2015–2016), 57–58. 104 Ibid. 105 Meld. St. 10 (2010–2011) Oppdatering av forvaltningsplanen for det marine miljø i Barentshavet og havområdene utenfor Lofoten, 12–13 (White Paper No 10 2010–11, available at Meld. St. 10 (2010–2011) - regjeringen.no). 106 Meld. St. nr. 12 (2001–2002) Rent og rikt hav, 5 (White Paper No. 12 2001–02, available at Report No. 12 to the Storting (2001-2002) - regjeringen.no). 107 Meld. St. 20 (2019–2020) Helhetlig forvaltningsplaner for de norske havområder, 9 (White paper No. 20 2019–20 on Norway’s integrated ocean management plans – Barents Sea – Lofoten area; the Norwegian Sea; and the North Sea and Skagerrak, available in English at Meld. St. 20 (2019–2020) - regjeringen.no) 108 Ibid., 147. 109 Meld. St. 20 (2019–2020), 7. 110 Ibid., 132. 111 Meld. St. 20, 9 and 148. 112 See info The marginal ice zone – Norsk Polarinstitutt (npolar.no) 113 Inge Lorange Backer, “Svalbardmiljøloven – en liten norsk miljöbalk,” in Fågelperspektiv på rettsordningen. En vänbok til Staffan Westerlund, eds. Ellen Margrethe Basse et al. (Uppsala: Iustus, 2002), 392.

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It includes most environmental f ields and provides for a variety of instruments that otherwise are spread throughout different sectoral legislation. It is applicable to all components of the environment interacting and is cross-sectoral.114 The act is applicable to the land territory and within the 12 M territorial waters.115 It does not apply to marine living resources. The objective of the act is to preserve a “virtually untouched environment in Svalbard with respect to continuous areas of wilderness, landscape, flora, fauna and cultural heritage.”116 Human settlements, research and commercial activities are to be developed within this framework. The act includes provisions on control, enforcement and sanctions. It sets out guidelines on which decisions adopted under the act are to be based.117 They include the precautionary principle, cumulative environmental effects and polluter pays principle.118 The governor, the relevant ministry or other agencies shall ensure that decisions taken under individual provisions and the act as such, in sum are consistent with the guidelines.119 This requires coordination between the governor, the Ministry of Climate and Environment and the different agencies competent to adopt regulations under the act.120 Impacts of climate change on the environment are relevant when interpreting and applying these guidelines. The act includes provisions that provides for nature conservation (protected areas and species), game management, cultural heritage protection, building and land use management, prevention of pollution and regulation of motorised traff ic. Importantly, the authorities are required to protect areas to preserve values such as land and marine ecosystems and wilderness.121 The protected areas may be established as national parks or nature reserves.122 There are seven national parks on Svalbard, which include Sør-Spitsbergen, Forlandet and Nordvest-Spitsbergen.123 There are 21 nature reserves in addition to bird reserves, which include Nordaust-Svalbard and Sørvest-Svalbard.124 In total, the protected areas cover 65% of the land territory and 87% of the territorial waters. The regulations establishing the protected areas include protection of nesting areas of polar bear habitats and a ban on activities such as petroleum exploration and exploitation, use of certain f ishing gear and practises and motorised traff ic. The Svalbard Environmental Protection Act set out a principle of conservation meaning that there is a ban on all types of harvest unless it is permitted under the act.125 This implements the 1973 Polar Bear Agreement, the f irst Arctic environmental agreement.126 The agreement includes a prohibition on the taking of polar bears on the territories of all the f ive parties – the Arctic coastal

114 Ibid. 115 Svalbard Environmental Protection Act, Section 2. 116 Ibid., Section 1. 117 Ibid., Section 6. 118 Ibid., Sections 7–10. 119 Ibid., Section 6. 120 Ibid., Section 4. 121 Ibid., Section 11. See also Chapter 14 of this volume. 122 Svalbard Environmental Protection Act, Sections 16 and 17. 123 See overview at National parks | Governor of Svalbard (sysselmannen.no) 124 Forskrift av 4. april  2014 Nr 377 om nasjonal parkene Sør-Spitsbergen, Forlandet and Nordvest-Spitsbergen, om naturreservatene Nordaust-Svalbard and Sørvest-Svalbard, og naturreservatene for fugl on Svalbard (Regulations No. 377 of April 4, 2014, relating to national parks, nature reserves and bird reserves on Svalbard), available in Norwegian at Forskrift om nasjonalparkene Sør-Spitsbergen, Forlandet og Nordvest-Spitsbergen, om naturreservatene NordaustSvalbard og Søraust-Svalbard, og om naturreservatene for fugl på Svalbard - Lovdata 125 Svalbard Environmental Protection Act, Section 25. 126 Agreement on the conservation of polar bears, Oslo, November 15, 1973, in force May 26, 1976), 2898 UN Treaty Series 243; Svalbard Environmental Protection Act, Sections 25 and 30.

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States (including Svalbard) – and an obligation to protect the ecosystems of which the polar bears are a part.127 The Svalbard Environmental Protection Act includes a ban on activities that may lead to pollution.128 There is also restrictions on motorised traff ic to prevent damages, littering or other types of deterioration of nature or cultural heritage or disturbance of wildlife.129 In the following sections, there will be examples of how measures taken under the Svalbard Environmental Act supplements and interacts with sectoral legislation.

Protection of the Marine Environment: Examples of Shipping and Fisheries Regulating Shipping in Waters off Svalbard The maritime activities in the territorial waters of Svalbard mainly involve the activities of f ishing vessels, regular visits by freight and bulk vessels and visits by cruise vessels and passenger vessels on voyages to the fjords, sounds and ports. These activities pose a risk of accidents endangering human lives and causing pollution of the marine environment.130 The number of visits by cruise vessels has been stable in recent years, but the number of passengers has increased.131 The waters off Svalbard are not adequately charted and the infrastructure for search and rescue and equipment for recovery of oil are limited.132 The risk and opportunities to manage the incidents are affected by challenging climatic conditions and the remoteness of the areas.133 The work of the Arctic Council has included the mapping and coordination of the knowledge on the Arctic environment, important for the development of the environmental policy for the region.134 This included assessments of the impacts of the climate changes in the Arctic and of measures to adapt to these impacts, such as increased maritime activities.135 It led to the adoption of two agreements aimed at addressing some of the challenges of increased maritime activities: the 2011 Agreement on Cooperation on Search and Rescue136 and the 2013 Agreement on Cooperation on Oil Pollution Preparedness.137 Svalbard, with its infrastructure (airport, hospital, helicopter, vessels and oil lenses), is central in the Norwegian implementation of these agreements. Norway may contribute to the protection of the marine environment from shipping activities in the waters off Svalbard in different capacities: by exercising coastal State jurisdiction over

127 Ibid., articles I and II. 128 Svalbard Environmental Protection Act, Section 65. 129 Ibid., Section 73. 130 The Norwegian Environmental Agency, Faggrunnlag for revisjon av forvaltningsplanen for Barentshavet og havområdene utenfor Lofoten. M-1304/2019, 73 (Report on the scientif ic basis for revising the management plan for the Barents Sea and Lofoten Islands), available in Norwegian at Risiko for og beredskap mot akutt forurensning – endringer og utviklingstrekk - Miljødirektoratet (miljodirektoratet.no). 131 Ibid., 28. 132 Ibid., 67 and 141. 133 Ibid., 130. 134 Timo Koivurova, “The Arctic Council. An Intergovernmental Forum Facing Constraints and Utilizing Opportunities,” in The Routledge Handbook of the Polar Regions, eds. Mark Nuttall et al. (London and New York: Routledge, 2018), 288. 135 Arctic Climate Impact Assessment (ACIA), available at Arctic: Arctic Climate Impact Assessment | AMAP; Arctic Marine Shipping Assessment (AMSA), available at Arctic Marine Shipping Assessment (AMSA) (pame.is). 136 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (Nuuk, May 12, 2011, in force January 19, 2013), https://oaarchive.arctic-council.org/handle/11374/531. 137 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (Kiruna, May 15, 2013, in force March 25, 2016), https://oaarchive.arctic-council.org/handle/11374/529.

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foreign flagged vessels navigating within the territorial sea and flag State jurisdiction over Norwegian flagged vessels operating in waters within and beyond the territorial waters. When foreign vessels visit ports in Svalbard, they may be subjected to port State control under the Paris MOU.138 International rules, standards and practices for transnational shipping adopted through the International Maritime Organization (IMO) provide the legal framework for the exercise of flag, coast or port State jurisdiction.139 Important IMO conventions include SOLAS on maritime safety and MARPOL regulating vessel source pollution.140 Norway may adopt and enforce other and stricter regulations in respect of foreign flagged vessels that voluntarily enter the internal waters of Svalbard and which are not exercising the right of innocent passage in the adjacent territorial sea.141 In the following there will be an investigation of how Norway has implemented the Polar Code in the waters off Svalbard, the IMO instrument aimed at addressing the special hazards of operating in polar waters, and other maritime safety and environmental protection measures adopted to address the threats identif ied. The IMO conventions are applicable to vessels operating in the waters around Svalbard, within or beyond 12 M. The Polar Code, applicable to these waters, consists in addition of requirements made legally binding through amendments to SOLAS and the annexes of MARPOL.142 It is aimed at ensuring “safe ship operation and the protection of the polar environment by addressing hazards . . . not adequately mitigated by other instruments of [IMO].”143 Shipping within the Svalbard territorial waters is primarily regulated through the Norwegian Ship Safety Act (SSA), which is applicable both to Norwegian and foreign flagged vessels.144 The SSA and its regulations include requirements for construction, design, equipment, manning (CDEM) and operation of vessels (maritime safety) and for the prevention of pollution. The IMO conventions and Polar Code are incorporated in Norwegian law through regulations adopted under the SSA.145 The regulations implementing the pollution prevention measures of the Polar Code are

138 Forskrift 24.11.2014 nr. 1458 om havnestatskontroll (Regulations No. 1458 of November 24, 2014, on Port State Control), available in English at Port State control - Norwegian Maritime Authority (sdir.no). 139 LOSC, Article 211(1). 140 International Convention for the Safety of Life at Sea (SOLAS) 1184 UNTS, 278; International Convention for the Prevention of Pollution from Ships, as modif ied by protocol of 1978 relating thereto and by the protocol of 1997 (MARPOL), 1340 UNTS, 62. 141 LOSC, Article 2 cf. Articles 17–19. 142 The recommendations are found in Part I-B Safety Measures and Part II-B Pollution Prevention, respectively. Part I-A Maritime Safety is made legally binding through the adoption of SOLAS chapter XIV (Resolution MSC, 386 (94) Amendments to the International Convention for Safety of Lives at Sea, 1974, as amended, Annex 7 of Report of the Maritime Safety Committee on its Ninety-fourth Session, MSC 94/21/Add.1; Part II-A is made binding through amendments of MARPOL annexes, Resolution MEPC.265(68) Amendments to the Annex of the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, Annex 11 of Report of the Marine Environment Protection Committee on its Sixty-eight Session, MEPC 68/21/Add.1 143 International Code for Ships Operating in Polar Waters (Polar Code), Resolution MSC.385(94)/Resolution MEPC.264(68), available at International Code for Ships Operating in Polar Waters (Polar Code) (imo.org) entered into force on January 1, 2017. For an analysis of the Polar Code, see Chapters 7 and 19 of this volume. 144 Lov 16. februar 2007 nr. 9 om skipssikkerhet, Section 3 (Act No. 9 of February 16, 2007, relating to Ship Safety and Security), available in English at Ship Safety and Security Act - Norwegian Maritime Authority (sdir.no). 145 Forskrift av 23.11.2016 nr. 1363 om sikkerhetstiltak for skip som opererer i polare farvann (Regulations No. 1363 of November 23, 2016, incorporating Part I of the Polar Code), available in English translation at Safety measures for ships operating in polar waters - Norwegian Maritime Authority (sdir.no); Forskrift 30.5.2012 nr. 488 om miljømessig sikkerhet for skip og flyttbare innretninger, Section 19 (Regulations No. 488 of May 30, 2012, relating for environmental safety for ships and mobile offshore units, incorporating Part II of the Polar Code in its Section 19), available in English at Environmental safety for ships and mobile offshore units - Norwegian Maritime Authority (sdir.no).

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applicable to foreign flagged vessels operating within 12 M territorial waters of Svalbard.146 Consequently, there is inter alia a ban on “any discharge into the sea of oil or oily mixtures from any ship” within the territorial waters of Svalbard.147 Whereas the responsibility for implementing the maritime safety measures lies with the flag States, the corresponding implementation regulation is applicable only to Norwegian flagged vessels.148 Norwegian vessels while operating in the territorial waters of Svalbard and beyond are required to be constructed, designed and equipped to address the prevailing hazards such as sea ice and temperature conditions. The regulations adopted by Norwegian authorities for shipping in the territorial waters of Svalbard go beyond the Polar Code. The maritime activities in waters off Svalbard mainly consist of shipborne tourism and f ishing. Most of the pollution prevention measures of the Polar Code is appliable to f ishing vessels and passenger vessels. However, the safety measures are applicable to SOLAS-certif ied vessels, which excludes inter alia f ishing vessels, leisure vessels and passenger vessels certif ied for less than 12 passengers.149 In respect of passenger vessels operating in the territorial waters, Norway adopted in 2019 regulations setting out requirements for the construction, equipment and operation of Norwegian and foreign-flagged passenger vessels engaged in voyages within the territorial waters of Svalbard.150 As these vessels are visiting ports and other sites within the internal waters, they are not enjoying the right of innocent passage in the territorial sea and are consequently subjected to the sovereignty of Norway. The coastal State is competent to adopt other and stricter regulations than those adopted through the IMO for vessels not enjoying the right of innocent passage.151The regulations make the Polar Code and other SOLAS regulations applicable to smaller passenger vessels that are not certif ied under SOLAS.152 In addition, regulations adopted in 2020 on construction, design, equipment and manning of small passenger vessels are applicable to such vessels operating in the territorial waters of Svalbard.153 Under these regulations, the vessels are inter alia required to have navigation and radio equipment, emergency beacon and the passengers shall use survival suits.154 All passenger vessels on voyage in the territorial waters – including the SOLAS-certif ied ones – are required to take extra care in planning and exercising voyages in waters that are inadequately chartered.155 They are also required to keep a minimum distance from glaciers.156 The smaller passenger vessels may only operate between May  1 and October  31 in the territorial waters of

146 Environmental Safety Regulations, Section 1 (1)(a). 147 Polar Code, Part II-A, Regulation 1.1.1. 148 Regulation on Safety measures for ships operating in polar water, Section 1. 149 SOLAS Regulation XIV/2, which refers to vessels certif ied under SOLAS chapter I. 150 Forskrift 7.6.2019 nr. 710 om bygging, utrustning og drift av passasjerskip i territorialfarvannet ved Svalbard, Section 1 (Regulations No. 710 of June 7, 2019, on construction, equipment and operation of passenger vessels in the territorial waters off Svalbard, available in English translation at Construction, equipment and operation of passenger ships in the territorial waters surrounding Svalbard - Norwegian Maritime Authority (sdir.no). 151 See contra LOSC Article 21(2). 152 Ibid., Section 19 cf Section 9. See SOLAS Chapter XIV regulation 2 cf Chapter I. 153 Forskrift av 14.1.2020 nr. 63 om fartøy under 24 meter som fører 12 eller færre passasjerer (Regulations No. 63 of January 14, 2020, on vessels less than 24 metres with 12 of less passengers), available in English at 14-january-2020-no.63-vessels-of-less-than-24-metres-carrying-12-passengers-or-less.pdf (sdir.no). 154 Ibid., Sections 10 og 12–16. 155 Regulation on Construction, equipment and operation of passenger ships in the territorial waters surrounding Svalbard - Norwegian Maritime Authority, Section 4 with reference to Polar Code Part I-B paragraphs 10.2 and 10.3. 156 Ibid.

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Svalbard.157 There are also restrictions on navigation within the national parks and nature reserves to prevent the disturbance of wildlife.158 The pollution prevention measures of the Polar Code include a recommendation to apply regulation 43 of MARPOL Annex I on carriage and use of heavy fuel oil (HFO).159 During the negotiations on the Polar Code, there were proposals to extend the ban the use and transport HFO as fuel to Arctic waters.160 A ban would prevent harmful effects of accidental discharges on the marine environment, ecosystems and species as such oil is diff icult to remove due to its character, the climatic conditions and lack of available oil spill clean-up equipment. The Marine Environment Protection Committee of the IMO approved and adopted in 2021 an amendment to MARPOL to phase out transport and use of HFO as fuel in Arctic waters by 2024.161 Norway introduced already in 2007 a ban on use and transport of certain types of HFO fuel in the national parks and nature reserves of Svalbard, which include major parts of its territorial waters.162 An amendment to the Svalbard Environmental Protection Act entered into force on January 1, 2022, which outright ban the transport or use of petroleum-based fuel with higher viscosity than permitted for marine gasoil.163 The rationale for introducing such comprehensive ban in the Svalbard Environmental Act is that the present ban on transport and use of HFO in the marine parts of the national parks and nature reserves are not considered adequate to prevent accidental pollution.164 Furthermore, the wording of the ban is formulated to facilitate introduction of more environmentally friendly fuel, such as LNG, biogas and hydrogen.165 The ban is stricter than the HFO regulation approved by IMO.166 The latter permits use of hybrid oil, which Norway considers harmful to the marine environment.167 According to the preparatory works a ban will primarily affect larger vessels, such as cruise and passenger vessels, cargo and bulk vessels, using HFO or hybrid oil as fuel. Their visits to the archipelago have increased in recent years.168 The consequence is higher freight costs and fewer visits by cruise vessels but, on the other hand, the ban will prevent signif icant and long-term effects of possible accidental discharges on the environment and for the economy of the archipelago.169

157 Regulations relating to vessels of less than 24-metres carrying 12-passengers or less, Section 8. 158 Forskrift av 4.4.2014 nr 377 om nasjonalparkene Sør-Spitsbergen, Forlandet og Nordvest-Spitsbergen, om naturreservatene Nordaust-Svalbard og Søraust-Svalbard, og om naturreservatene for fugl på Svalbard, Section 17. 159 Polar Code, Part II-B, regulation 1.1. 160 Sun, Zhen, “International Regulation of Heavy Fuel Oil Use by Vessels in Arctic Waters,” The International Journal of Marine and Coastal Law 34 (2019): 513. 161 Report of the Marine Environment Protection Committee on Its Seventy-Sixth Session, para. 3.35 MEPC 76/15 and resolution MEPC.329(76). See also Chapters 7 and 19 of this volume. 162 Regulations of April 4, 2004, No. 377 regarding the national parks Sør-Spitsbergen, Forlandet and Nordvest-Spitsbergen, the nature reserves Nordaust-Svalbard and Søraust-Svalbard and the Svalbard bird reserves, Sections 4 and 16. 163 Svalbard Environmental Protection Act, Section 82 as amended by Lov av 11. Juni 2021 nr. 75 om endringer av Svalbardmiljølov (Act No. 75 of June 11, 2021, on amendments of the Svalbard Environmental Protection Act). 164 Prop. 119 L (2020–2021) Endringar i svalbardmiljøloven (tungoljeforbod m.m.), 14–15 (Proposal No. 119 2020–21 to amend the Svalbard Environmental Protection Act inter alia on heavy fuel ban), available in Norwegian at Prop. 119 L (2020–2021) - regjeringen.no. 165 Ibid., 5. 166 Prop 119 L, 9; Regulation 43A cf. Regulation 43.1.2 of MARPOL Annex I. 167 Prop. 119 L, 9. 168 Ibid., 14. 169 Ibid., 121–24.

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Questions have been raised whether a unilateral ban on the use and transport of certain types of fuels may conflict with navigational rights under the law of the sea.170 The bill suggests that this will be a minor issue, as studies suggest that few if any of the vessels sailing in the waters off Svalbard are exercising the right of innocent passage.171 The cruise vessels and passenger vessels are not in innocent passage as they visit places on the archipelago and make stops within the territorial sea as part of the voyage.172 Furthermore, the ban is applicable to vessels “calling at the territorial waters,” which is meant to include vessels making stops within these waters. Therefore, the ban will not be applicable to vessels merely transiting the Svalbard territorial waters in innocent passage en route to a destination in another State.173 Reporting obligations and mandatory pilotage have been introduced as the Ports and Fairways Act is made applicable to Svalbard.174 These requirements have both maritime safety and environmental protection purposes. The position reporting requirements are appliable to passenger vessels and vessels of more than 24 metres sailing within the 12 territorial waters of Svalbard, requiring them to submit reports on the entry and the exit of the territorial waters.175 Vessels tracked through AIS or LRIT are exempted.176 Pilotage is mandatory for vessels above 70 metres and passenger vessels over 50 metres sailing in the internal waters of Svalbard.177 Qualif ied masters and navigators may be issued a pilot exemption certif icate, enabling them to sail without pilot.178 Even if f ishing is the dominant maritime activity around Svalbard, the Norwegian maritime authorities have neither made the safety measures of the Polar Code applicable to f ishing vessels operating within the SFPZ nor adopted special regulations like those adopted for smaller passenger vessels. They have suff iced to recommend Norwegian flagged f ishing vessels operating in polar waters to abide with the safety measures.179 The f isheries jurisdiction of Norway over foreign flagged f ishing vessels does not include the application of the CDEM requirements either of the Polar Code or unilaterally adopted by Norway. The sovereign rights in the SFPZ are restricted to adopting regulations for the exploration, exploitation, management and conservation of the living marine resources.180 CDEM requirements do not have any “direct connection to f ishing” as stipulated by ITLOS.181 If Norway was to establish a full EEZ off Svalbard, it would enjoy environmental jurisdiction over foreign flagged f ishing vessels to adopt and apply regulations that are implementing “generally accepted international rules and standards.”182 Such rules and standards are not in place in

170 Henning Dobson Fugleberg Knudsen, “No Heavy Fuel Oil at Svalbard – A Legal Ban?” Ocean Yearbook 31 (2017): 80. 171 Prop. 119 L, 10. 172 Ibid. 173 Ibid. 174 Forskrift av 12.3. 2021 nr. 721 om havner og farvann på Svalbard (Regulations no. 721 of March 12, 2021, on Ports and Fairways on Svalbard), available in English translation at Microsoft Word - Forskrift om havner og farvann på Svalbard siste versjon.docx (kystverket.no). 175 Ibid., Sections 5–7. 176 Ibid. 177 Forskrift av 17.12. 2014 nr. 1808 om losplikt og bruk av farledsbevis, Section 3(1), cf. Section 4 (1) (Regulations No. 1808 of December 17, 2014, on compulsory pilotage and pilot exemption certif icates), available in English translation at 02.2021_compulsory-pilotage-regulations.pdf (kystverket.no). 178 Ibid., chapter 3. 179 Norwegian Maritime Authority Safety Notice 04/2020 Recommendations for operation in polar waters for vessels not carrying a Polar Ship Certif icate available at Norwegian Maritime Directorate (sdir.no) 180 LOSC, Article 56 (1). 181 M/V “Virginia G” (Panama/Guinea-Bissau), judgement, ITLOS Reports 2014, 4,68, para. 215. 182 LOSC, Article 211(5).

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regard of f ishing vessels.183 One of the themes of the ongoing negotiations on the amendments of the Polar Code is the application of safety measures to non-SOLAS vessels, such as f ishing vessels.184 This may explain why Norway has been hesitant to adopt national regulations for f ishing vessels operating in Arctic waters.

Conservation and Management of Living Marine Resources This subsection concentrates on the legislation on the conservation and management of living marine resources, particularly from an environmental protection perspective. It will not address rights to access the f isheries or control and enforcement measures, raising controversial questions regarding the Svalbard Treaty. Fish stocks such as the Northeast Arctic cod occurring both under Norwegian f isheries jurisdiction in the SFPZ (and mainland Norway EEZ) and in the Russian EEZ in the Barents Sea and Arctic Ocean are managed through the Joint Norwegian-Russian Fisheries Commission.185 The Fisheries Commission adopts total allowable catches, their allocation and other regulatory measures for the shared f ish stocks.186 The two coastal States have in recent years committed themselves to applying the precautionary approach in order to preserve the marine environment.187 They have agreed on a f ive-year management plan for each of the shared f ish stocks.188 If f ish stocks are to migrate into the high seas of the Central Arctic Ocean, issues about rights of access and the governance model for this area will arise. Norway and eight other States and the EU are parties to the agreement to prevent unregulated f isheries on the high seas of the Central Arctic Ocean, which entered into force in 2021.189 They have committed not to permit commercial f ishery in these waters until there is adequate scientif ic information that supports a sustainable commercial f ishery.190 Furthermore, there is a requirement on compatibility between the measures adopted within national jurisdiction those applicable for the adjacent areas of the high seas.191 This suggests that Norway should be careful of permitting commercial f isheries on new species that may straddle into the high seas of the Arctic Ocean and particularly where there are inadequate scientif ic information on the species.

183 See information on the Torremolinos agreement and subsequent protocol at www.imo.org/en/About/Conventions/ Pages/The-Torremolinos-International-Convention-for-the-Safety-of-Fishing-Vessels.aspx. 184 IMO, Report of the Maritime Safety Committee on Its Ninety-Ninth Session, Item 7MSC.99/22. 185 Its constituent treaties include the Agreement on Co-operation in the Fishing Industry between Union of Soviet Socialist Republics and Norway, signed at Moscow on April 11, 1975 (Avtale mellom Norge og Sovjetunionen om samarbeid innen f iskerinæringen, April 11, 1975), 983 U.N.T.S. 8, and the Agreement concerning Mutual Relations in the Field of Fisheries between Union of Soviet Socialist Republics and Norway, signed at Moscow on October 15, 1976 (Avtale mellom Norge og Sovjetunionen om gjensidige f iskeriforbindelser, October 15, 1976) 1157 UNTS. 147. 186 See protocols from annual meetings of the Joint Fisheries Commission in Norwegian at www.jointf ish.com/OMFiSKERIKOMMISJONEN.html. 187 Treaty between the Russian Federation and the Kingdom of Norway concerning maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean, Article 4 (3) 188 Protocol from the 46th Session of the Joint Norwegian-Russian Fisheries Commission, annex 12, available in Norwegian at www.jointf ish.com/content/download/501/6352/f ile/46-norsk.pdf. 189 Agreement to prevent unregulated high-seas f isheries in the central Arctic Ocean (Ilulissat, October 3, 2018, in force June 25, 2021), Off icial Journal of the European Union 15.3.2019 L73/3. Information on the parties is available at webpages of the depositary. View Details – Canada.ca (treaty-accord.gc.ca) 190 Ibid., Article 3(1)(a), cf Article 5(1)(c). 191 Ibid., Article 3(6).

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The protection of local marine mammals in the territorial waters is regulated through the Svalbard Environmental Protection Act.192 The Svalbard Act provides the legal basis for regulating f ishing activities in the territorial waters.193 It is supplemented by the Marine Resources Act, applicable to the territorial sea, the adjacent 200 M SFPZ and the continental shelf.194 Furthermore, goals and principles of the cross-sectoral Nature Diversity Act are applicable to the territorial waters, SFPZ and continental shelf.195 Furthermore, the regulations establishing the natural reserves and national parks, which include major parts of the territorial waters of Svalbard, include a ban and restrictions on f ishing activities.196 The seabed of these protected areas is protected against any form of harvest or utilisation, and there is a ban on bottom trawling and the use of other gear or practice that may affect the seabed.197 Other types of f ishing activities are not addressed by the protected area regulations and the general f isheries regulations are applicable. The spatial or temporal restrictions on traff ic within the protected areas may restrict f ishing activities. Principles such as the precautionary approach and ecosystem-based approach as set out in the Marine Resources Act provide the overall framework for regulating f ishing activities in the territorial sea and SFPZ. In recent years there has been increased international attention to the protection of the marine biodiversity. Marine biodiversity is affected human activities in different ways. A topical example is the recent introduction of the snow crab to the Barents Sea.198 There are a focus on what is described as “vulnerable marine ecosystems” affected by f ishing activities directed at species living near the seabed.199 The use of bottom trawling and other similar gear may harm the seabed habitats and negatively affect the marine biodiversity. The protection of bottom fauna is one of the objectives of the plan for integrated management of the Barents Sea and the Lofoten Islands.200 This objective was addressed by regulations adopted in 2019 to protect vulnerable bottom habitats in marine areas under Norwegian jurisdiction, including the SFPZ and the territorial sea of Svalbard.201 They are organised in three different areas: new, existing and closed f ishing areas. In the new areas, f ishing is not permitted unless the vessel has obtained a special permit.202 The issuing of a special permit requires that the vessel provides a detailed protocol from an exploratory f ishery in addition to a harvest plan, both to be approved. There are also requirements both for new and

192 Svalbard Environmental Protection Act, Section 23. For the protection of marine mammals, see also Chapter 17 of this volume. 193 Svalbard Act, Section 4. 194 Lov av 6. Juni 2008 nr. 37 om forvaltning av viltlevande marine ressurser (Act No. 37 of June 6, 2008, relating to the management of wildliving marine resources (Marine resources Act), Section 3 available in an unauthorised translation at Forslag til lov om forvaltning av viltlevande marine ressursar (havressurslova) (uio.no). 195 Lov av 19. Juni 2009 nr. 100 om forvalting av naturens mangfold, Section 2 (Act No. 100 of June 19, 2009, Relating to the Management of Biological, Geological and Landscape), available at Diversity)www.regjeringen.no/en/ dokumenter/nature-diversity-act/id570549/. 196 Svalbard Environmental Protection Act, Section 12. 197 Regulations No. 377 of April 4, 2014, relating to national parks, nature reserves and bird reserves on Svalbard, Section 6. 198 Henriksen, “Snow Crab in the Barents Sea,” 112–17. 199 See inter alia FAO International Guidelines for the Management of Deep-Sea Fisheries in The High Seas, accessed May 28, 2021, www.fao.org/in-action/vulnerable-marine-ecosystems/background/international-framework/en/. 200 White paper No. 20 2019–20 on Norway’s integrated ocean management plans, 85 and 154. 201 Forskrift av 1. Juli 2011 nr. 755 om regulering av f iske for å beskytte sårbare marine økosystemer (Regulations No. 755 of July 1, 2011, relating to regulating f ishing activities to protect vulnerable marine ecosystems), available in Norwegian at Forskrift om regulering av f iske for å beskytte sårbare marine økosystemer - Lovdata. 202 Ibid., Section 4.

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existing f ishing areas that the vessel is required to have a plan to prevent damages to vulnerable ecosystems, including on collecting data on these ecosystems. A vessel is obligated to stop and move its f ishing to other areas if the catches include living sponges and corals over a certain quantity.203 The new f ishing areas include 436,432 km2.204 Fishing with use of bottom trawling or similar gear is prohibited in ten def ined areas.205 These regulations imply a fundamental change in traditional management of living marine resources. First, it is a departure from the freedom of the individual f isherman/woman to decide where to f ish. Second, the f ishing activities are regulated on an earlier stage before there is adequate scientif ic information on the sustainable harvest of a species. A new f ishery is started as an exploratory f ishery where the f isher has an important responsibility in collecting data on the vulnerable marine ecosystem and the effects of the f ishery, a form of environmental impact assessment. This is a development consistent with the obligation to apply the precautionary approach, to exercise special caution where there is inadequate scientif ic information. The 2019 regulations establish what can be described as area-based measures. However, they are only applicable to f ishing activities as Norway only enjoys f isheries jurisdiction in the SFPZ. In order to adopt more comprehensive area-measures, to include shipping and other activities of third States, Norway would have to establish a full 200 M zone. However, the relevant Norwegian legislation – the Nature Diversity Act – does not provide legal basis for establishing marine protected areas beyond the territorial sea that also regulate other activities than f ishing. In a recent white paper on a plan for conserving areas important for the marine environment, the government signals that it will start a work on revising the Nature Diversity Act to improve the conservation of areas beyond 12 M.206

Conclusion Svalbard is often associated primarily with the dispute over the application of the Svalbard Treaty to the maritime zones beyond the territorial waters. However, there are many more legal issues in Svalbard than this. The archipelago harbours a rich and vulnerable biodiversity in flora and fauna, terrestrial and marine. The flora and fauna are under threats by the impacts of climate change, which may be further accelerated by increased human activities. As this chapter documents, environmental protection has – uniquely for Norway – been prioritised over economic activities on the archipelago. As maritime activities are on the rise in the waters off the archipelago, the question is whether this strict policy will be applied to these activities as well. The chapter documents that Norway has adopted relatively strict regulations of shipping in the coastal waters of Svalbard and in particular targeting the seaborne tourism. They should be viewed in the context of the remoteness and limited resources available to address accidents. Restricting the operations of vessels, including an extension of the ban on use and transport of certain types of fuels, is seen as the better option. The regulations

203 Regulations No. 755, Section 2, litra d, cf. Sections 3 and 4. 204 Faglig forum for norske havområder, “Særlig verdifulle og sårbare områder – Faggrunnlag for revisjon og oppdatering av forvaltningsplanene for norske havområder M-1303/2019,” 2019. https://havforum.miljodirektoratet.no/ kunnskapsgrunnlaget/siste-publikasjoner/ 205 Ibid., Section 5. 206 Meld. St. 29 (2020–2021) Heilskapleg nasjonal plan for bevaring av viktige område for marin natur (White Paper No. 29 2020–21 on a comprehensive national plan for the conservation of important areas for the marine environment, 56, available in Norwegian at Meld. St. 29 (2020–2021) - regjeringen.no.

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are primarily directed at preventing the impact of new or extended activities and less on measures directed at addressing the direct impacts climate change on wildlife. Protection of the marine environment does not seem to have the same weight in the maritime zones beyond the territorial waters. The adjustment of the marginal ice zone is an example. On the other hand, the greening of f isheries law is reflected in the SFPZ with the area-based measures to protect vulnerable seabed habitats. The establishment of a full 200 M EEZ off Svalbard would provide Norway with more tools to address the challenges of the impacts of climate change and increased human activities in the marine Arctic. It is diff icult to see how the question on whether Svalbard Treaty provisions are applicable to the 200 M EEZ affects the environmental jurisdiction of the coastal State as its exercise necessarily would be equally applicable to all vessels or actors operating in the zone.

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29 JAPAN AND THE POLAR REGIONS Kentaro Nishimoto

Introduction Although geographically remote from the Antarctic and the Arctic, Japan has a long record of engagement with the polar regions, which dates back to the period before the Second World War. Japan’s focus on the polar regions has been on the Antarctic for most of history. The expedition by Nobu Shirase (1861–1946) in the early 20th century was well known in Japan, and the launch of scientif ic expeditions in the immediate years after regaining sovereignty in the post-war period carried a particular signif icance in terms of Japan’s perception of its status in the international society, as a State that has the technology and capability to carry out scientif ic expeditions within an international framework.1 As a matter of law and policy, its position as a consultative party to the Antarctic Treaty meant that Japan has a role in maintaining and developing the legal regime for the Antarctic. In contrast, Japan’s involvement in the Arctic is relatively new. Although Japan was an original signatory to the 1920 Svalbard Treaty, this did not reflect any substantial interests in the matters addressed by the treaty.2 Japanese scientists began to conduct research in the Arctic in the 1950s, but their activity was sporadic until the 1990s. However, in parallel with increasing global attention on the Arctic, Japan’s engagement with Arctic affairs has been increasing. This trend has culminated in the formulation of a dedicated Arctic policy for Japan, in which international law has an important role.3 The chapter is structured as follows. First, it will discuss Japan’s involvement in Antarctic affairs. In this section, after describing Japan’s early involvement in Antarctica, Japan’s basic policies and legal positions regarding the Antarctic are discussed. The section then considers issues

1 Aki Tonami, “Influencing the Imagined ‘Polar Regions’: The Politics of Japan’s Arctic and Antarctic Policies,” Polar Record 53, no. 5 (2017): 495. 2 Treaty concerning the Archipelago of Spitsbergen, signed February 9, 1920, entered into force August 14, 1925. Text in: League of Nations Treaty Series 2 (1920): 7; Akiho Shibata, “Japan and 100 Years of Antarctic Legal Order: Any Lessons for the Arctic?,” Yearbook of Polar Law 7 (2015): 20. See also Chapter 28 of this volume. 3 The Headquarters for Ocean Policy, Japan’s Arctic Policy (2015), https://www8.cao.go.jp/ocean/english/arctic/ arcticpolicy_e.html. DOI: 10.4324/9781003404828-37 498

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concerning the conservation and sustainable use of living resources as an important area for Japan’s Antarctic policy. Second, the chapter will consider Japan’s involvement in Arctic issues. In this section, the background to and the process for the formulation of Japan’s Arctic policy is f irst described. This is followed by a consideration of Japan’s Arctic policy as set out under relevant policy documents. The section will then identify Japan’s basic position on the legal regime of the Arctic Ocean and then consider how they are reflected in regard to the issue of Arctic shipping and the conservation and sustainable use of marine living resources in the Central Arctic Ocean. Finally, the chapter will conclude by identifying common themes behind Japan’s involvement with the polar regions.

Japan and Antarctica Japan’s Involvement in Antarctica Before the Antarctic Treaty Japan’s involvement in Antarctica dates back to a privately funded expedition led by lieutenant Nobu Shirase in 1911–12, which explored the Ross Ice Shelf and Edward VII Peninsula.4 On January 28, 1912, the expedition reached 80°5ʹ south and named the area Yamato Yukihara. Shirase spent his years after his return from Antarctica unsuccessfully urging the government to make territorial claims based on his expedition. In 1929, he requested the Foreign Ministry to take action as he had “occupied the point 80°5ʹS, 156°37ʹW as territory of our Empire of Japan.”5 While similar requests were repeated in the subsequent period prior to the Second World War, the government did not take any action to incorporate the area into Japanese territory. It is known that in 1938 and 1940, Japan reserved the right to a voice in territorial issues concerning Antarctica in its communications with other States.6 However, records from the pre-war period show that the government did not see merit in making a claim, having considered that the use of Antarctica in the distant future was not worth risking a dispute with Australia, which had claims over the area.7 Instead, Japan found it in its interest to prevent Western powers from dividing the continent among themselves.8 Notwithstanding any potential basis for a territorial claim that Japan may have had prior to the Second World War, Japan renounced “all claim to any right or title to or interest in connection with any part of the Antarctic area, whether deriving from the activities of Japanese nationals or otherwise” under article 2(e) of the Peace Treaty between Japan and the Allied powers.9 This clause is a result of an Australian initiative aimed to ensure that Japan would not threaten its interests in

4 Kanae Taijudo, “Japan and the Problems of Sovereignty over the Polar Regions,” Japanese Annual of International Law 12 (1959): 15. 5 Letter from Nobu Shirase to Toshihiko Taketomi, Director, Department of Trade and Commerce, Ministry of Foreign Affairs, Diplomatic Archives of the Ministry of Foreign Affairs, Issues relating to Territorial Sovereignty Claims by the Imperial Government, Vol. 1: From July 2, 1929, to March 22, 1938 (A-4–1–0–2_001), available at Japan Center for Asian Historical Records, Ref.B02031151400, www.jacar.archives.go.jp/das/image/B02031151400 (in Japanese). 6 Robert Friedheim and Tsuneo Akaha, “Antarctic Resources and International Law: Japan, the United States, and the Future of Antarctica,” Ecology Law Quarterly 16 (1989): 147. 7 Shinsuke Tomotsugu, “Nihon no Nankyoku he no Kanyo 1910–1963: Risoushugi/Genjitsushugi no Hazama de” [ Japan’s Attitude toward Antarctica from 1910 to 1963: At Intersection of Idealism and Realism], Nenpo Seijigaku [Annuals of Japanese Political Science Association] 64, no. 1 (2013): 364 (in Japanese). 8 Ibid., 364–65. 9 Treaty of Peace with Japan, signed at San Francisco on September 8, 1951, 136 UNTS 45. Entered into force April 28, 1952.

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connection with Antarctica.10 While it was proposed during the negotiation process that Japan should renounce “all political and territorial claims past, present and future,”11 this formulation was not adopted due to opposition from the United States, which considered it “invidious and not keeping with the overall philosophy of the treaty” to require Japan to renounce future claims to a vast unexplored territory.12 Consequently, this provision is understood as a renouncement of all claims Japan may have had until the treaty entered into force.13 The Japanese government adopts this interpretation and takes the position that it does not preclude Japan from claiming any rights or titles it may have acquired after the Peace Treaty entered into force.14 The practical signif icance of this interpretation is limited by article IV(2) of the Antarctic Treaty, which provides that “[n]o acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica.”15 However, as stated by a government representative during a debate in the National Diet (legislature of Japan), “with regard to any title that may result from Japan’s activities, Japan is on an equal footing with other parties to the Antarctic Treaty.”16 Based on this interpretation, if the Antarctic Treaty ceases to be in force, the renouncement under the Peace Treaty would not preclude Japan from making claims based on acts and activities in the limited period between the entering into force of the Peace Treaty and the Antarctic Treaty. Nevertheless, it is an entirely different issue whether such a claim would carry much weight and whether Japan would pursue that claim, given its consistent position as a non-claimant. In the post-war period, Japan sent its f irst Japanese Antarctic Research Expedition (JARE) to Antarctica in 1956–57 to participate in the International Geophysical Year (IGY).17 The expedition established the Syowa Station on East Ongul Island on January 29, 1957. The station continues to serve as the main station for the JARE, which has been sent every year since then except for the years 1962 to 1964.18 After the close of the IGY, the United States invited the other 11 other participants of the program, including Japan, to the Washington Conference, which adopted the Antarctic Treaty in 1959.19 Japan participated in the conference and became an original signatory to the treaty, with rights recognised under article IX (2).

10 Shirley V. Scott, “Japan’s Renunciation of Territorial Rights in Antarctica and Australian Diplomacy,” Polar Record 35 (1999): 102. 11 The British Embassy to the Department of State, Lot 54D423 in Foreign Relations of the United States 1951, 6: 911. 12 Aide-memoire from United States Department of State, dated March 14, 1951. NAA, A1838/278, 535/6/6, Part 1, cited in Scott, “Japan’s Renunciation of Territorial Rights in Antarctica and Australian Diplomacy,” 103. 13 Taisaku Ikeshima, Nankyoku Joyakutaisei to Kokusaiho [The Antarctic Treaty System and International Law] (Tokyo: Keio Gijyuku Daigaku Shuppankai, 2000), 20 (in Japanese); Taijudo, “Japan and the Problems of Sovereignty over the Polar Regions,” 15. 14 Minutes of the Committee for Budget, House of Representatives, 87th session of the Diet, No. 17 (February 22, 1979), 32, reproduced and translated in Shigeru Oda and Hisashi Owada, “Annual Review of Japanese Practice in International Law XVI (1978–1980),” Japanese Annual of International Law 29 (1986): 112–13. 15 The Antarctic Treaty, 402 UNTS 71. Entered into force June 23, 1961. See also Chapter 3 of this volume. 16 Minutes of the Committee for Budget, 87th session of the Diet, No. 17 (February 22, 1979), 32 (in Japanese). 17 Hyoriki Watanabe, “Report of the Outline of the Japanese Antarctic Research Expedition I, 1956–57,” Nankyoku Shiryo (Antarctic Record) 5 (1958): 217–24. 18 Yoshio Yoshida, “Japan: Antarctic Program,” in Encyclopedia of the Antarctic, eds. Beau Riffenburgh (London: Routledge, 2006), 559–61. 19 John Hanessian, “The Antarctic Treaty,” International and Comparative Law Quarterly 9 (1960): 457.

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Japan’s Antarctic Policy Under the Antarctic Treaty Regime Japan has been a strong supporter of the Antarctic Treaty. When the question of Antarctica was raised in the United Nations General Assembly in 1983 and 1984, Japan expressed its f irm support for the Antarctic Treaty together with the other Antarctic Treaty consultative parties.20 During the debate, Japan submitted its fundamental view that it is in the interest of all humankind that Antarctica shall not become the object of a territorial conflict and continue to be used exclusively for peaceful purposes, with consideration given to conserving the environment and that it is vitally important to secure freedom of scientif ic and other peaceful activities through international amity and cooperation.21 The Antarctic Treaty was regarded as an essential regime for maintaining these interests.22 This fundamental position is maintained to the present day. In describing Japan’s relationship with the Antarctic, the most recent edition of the Diplomatic Bluebook issued by the Ministry of Foreign Affairs emphasises Japan’s contributions to “global environment conservation and international development of science and technology” through observations at Syowa Station. It states that as one of the original signatories of the Antarctic Treaty, Japan strives to maintain and strengthen the Antarctic Treaty System, which is essential to the peaceful use of the Antarctic, while contributing to the promotion of environmental preservation and international cooperation in the Antarctic.23 While Japan has generally supported the development of the Antarctic Treaty System, it has consistently adopted the position that a balance must be sought between resource development and the protection of the environment. In the negotiations for the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), Japan was initially reluctant to accept conservation standards that would introduce a more stringent level of protection for f isheries resources in the Southern Ocean.24 In the negotiations leading to the Convention on Antarctic Mineral Resources (CRAMRA), Japan sought to secure its interests in resource exploitation activities and expressed concerns about liability rules governing environmental damage being too stringent and discouraging to resource development efforts.25 Likewise, in the process leading to the adoption of the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol),26 Japan initially expressed strong opposition to the prohibition of mineral resource development, favouring the original agreement under CRAMRA.27 Notwithstanding its initial opposition to a conservationist approach to the protection of the Antarctic environment, Japan has adhered to the Antarctic Treaty System instruments once they were adopted. However, there is criticism concerning the long time it has taken for Japan to implement

20 Christopher C. Joyner, “Japan and the Antarctic Treaty System,” Ecology Law Quarterly 16 (1989): 164–69. 21 Question of Antarctica: Study Requested under General Assembly Resolution 38/77, Report by the Secretary-General, Part Two: Views of States, UN Doc. A/39/583 (Part II) (1984), 102. 22 Ibid., 105. 23 Ministry of Foreign Affairs, Japan, Diplomatic Bluebook 2021 (English version), 304. 24 James B. Barnes, “The Emerging Antarctic Living Resources Convention,” American Society of International Law Proceedings 73 (1979): 277; Joyner, “Japan and the Antarctic Treaty System,” 163. 25 Friedheim and Akaha, “Antarctic Resources and International Law,” 145–46. 26 Protocol on Environmental Protection to the Antarctic Treaty, 2941 UNTS 3. Adopted October 4, 1991. Entered into force January 14, 1998. 27 Francesco Francioni, “The Madrid Protocol on the Protection of the Antarctic Environment,” Texas International Law Journal 28, no. 1 (1993): 67.

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the instruments into domestic legislation.28 For example, the Act on the Conservation of Fauna and Flora in Antarctica, adopted to implement the Agreed Measures for the Conservation of Antarctic Fauna and Flora, was enacted in 1982, 18 years after the Agreed Measures were adopted in 1964.29 Japan’s approval was the last among the parties whose approval was needed for the measure to enter into effect. The delay is said to be a result of domestic legal issues rather than opposition against the instrument’s substance. When the act was introduced to the National Diet, the representative for the government expressed regret concerning the situation, explaining that there were technical diff iculties in ensuring effective implementation of regulatory measures in Antarctica and deciding which ministry would assume authority over the legislation.30 It also took eight years to ratify the Convention for the Conservation of Antarctic Seals and f ive years to enact the Act on the Protection of the Environment in Antarctica to ratify and implement the Madrid Protocol.31 In addition, Japan is yet to ratify Annex VI to the Madrid Protocol concerning liability arising from environmental emergencies. Technical diff iculties have also been identif ied regarding the domestic implementation of Annex VI.

Basic Legal Position as a Non-Claimant The basic legal position of Japan on Antarctica is that of a non-claimant, which does not recognise any claims to territorial sovereignty to Antarctica and does not assert any claims of its own. During discussions in the United Nations on the Question of Antarctica, the representative of Japan stated, “Antarctica must not become the object of territorial claims, and that disputes over territorial claims in Antarctica would be, in every way, contrary to the interests of the whole international community.”32 Japanese authors have discussed the complex nature of the ambiguous compromise contained in article IV of the Antarctic Treaty, with the prevailing understanding being that the provision should be understood as freezing the dispute and maintaining the present factual situation by agreeing not to contest the validity of each other’s claimed legal title.33 However, the government of Japan, on various occasions, has expressed the interpretation that the provision “freezes claims to territorial sovereignty” in the Antarctic region.34 Consequently, Japan has maintained the position of not recognising the territorial sovereignty of any State over Antarctica, favouring the management of Antarctica based on an international regime. In addition to not recognising claims to territorial sovereignty, Japan does not recognise maritime claims based on territorial claims to Antarctica. When Australia established an exclusive economic

28 Taisaku Ikeshima, “Shin Kaiyoho Chitsujo no Seisei to Nankyoku no Kaiiki Kanri no Hatten: Kankatsuken Koshi no Taiyo no Henka to Nihon no Seisaku” [Developing Antarctic Marine Management under the Evolving Law of the Sea: the Effect of “Creeping Jurisdiction” and Japan’s Response], Waseda Global Forum 3 (2006): 22 (in Japanese). 29 Nankyoku Chiiki no Dobutsuso oyobi Shokubutsuso no Hozon ni Kansuru Horitsu [Act on the Conservation of Fauna and Flora in the Antarctica] (Act No. 58 of 1982), www.shugiin.go.jp/internet/itdb_housei.nsf/html/houritsu/ 09619820528058.htm (in Japanese). 30 Minutes of the Foreign Affairs Committee, House of Representatives, 96th session, No. 10 (April 21, 1982), 24 (in Japanese). 31 Ikeshima, “Shin Kaiyoho Chitsujo no Seisei,” 22. 32 Questions of Antarctica, s 103. 33 Soji Yamamoto, “Nankyoku Shigen Kaihatsu no Hoseido” [The Legal Regime of Antarctic Mineral Exploitation], Juristo 710 (1980): 134 (in Japanese); Moritaka Hayashi, “Kyokuchi” [Polar Regions], in Riku, Sora, Uchu [Land, Sea, Outer Space], ed. Japanese Society of International Law (Tokyo: Sanseido, 2001), 65–67 (in Japanese). 34 See, for example, Statement by the Minister for Foreign Affairs in Minutes of the Foreign Affairs Committee, House of Representatives, 140th Session, No. 7 (April 2, 1997), 14 (in Japanese).

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zone (EEZ) from its Australian Antarctic Territory in 1979, Japan made a representation to the Australian government, reserving its position concerning the EEZ and the exercise of jurisdiction there.35 Responding to a question in the Diet on this issue in 1981, a government representative explained its position that it “cannot recognise the measures by the Government of Australia and that these measures are against the principle of the Antarctic Treaty that the territorial claims and all kinds of other claims based on such territorial claims should be frozen.”36 When Australia submitted information regarding the outer limits of its continental shelf beyond 200 nautical miles (M) to the Commission on the Limits of the Continental Shelf (CLCS), Japan sent a note verbale along with several other parties to the Antarctic Treaty, requesting the CLCS not to take any action on the portion of Australia’s submission relating to the submarine areas adjacent to Antarctica. The note stressed, “Japan does not recognise any claims to territorial sovereignty in the Antarctic, and consequently does not recognise any States’ rights over or claims to the water, seabed and subsoil of the submarine areas adjacent to the continent of Antarctica.”37 The point was also made that “the balance of rights and obligations in the Antarctic Treaty should not be affected in any way” in handling the submission. Notes verbales were also lodged against the submission by New Zealand in 2006 and Norway, Argentina, the United Kingdom and France in 2009. Regarding its maritime rights in the waters around Antarctica, Japan interprets its high-seas freedoms as preserved under article VI of the Antarctic Treaty, which contains the proviso that “nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.”38 The domestic laws of Japan implementing various instruments of the Antarctic Treaty System reflect this interpretation. The Act on the Conservation of Fauna and Flora in Antarctica,39 enacted in 1982 to domestically implement the Agreed Measures for the Conservation of Antarctic Fauna and Flora,40 only applied to “Antarctica (Nankyoku Chiiki)” def ined as the “land area south of 60° South Latitude, including all ice shelves.”41 When the law was replaced with the Act on the Protection of the Environment in Antarctica42 in 1997 to implement the Madrid Protocol, the def inition of Antarctica was expanded to include “marine areas (including the sea below the ice shelves).”43 However, the regulatory regime established under the act excludes activities that could be conducted in the exercise of high-seas freedoms from its scope of application. The act applies to Japanese nationals,

35 Minutes of the Foreign Affairs Committee, House of Representatives, 94th Session, No. 7 (April 8, 1981), 9, reproduced and translated in Shigeru Oda and Hisashi Owada, “Annual Review of Japanese Practice in International Law XVII,” Japanese Annual of International Law 30 (1987): 155. 36 Ibid., 156. 37 Note from the Permanent Mission of Japan to the United Nations to the secretary general of the United Nations, Document SC/05/039 dated January  19, 2005, www.un.org/depts/los/clcs_new/submissions_f iles/aus04/clcs_03_2004_ los_jap.pdf. 38 Minutes of the Foreign Affairs Committee, House of Representatives, 94th Session, No. 7 (April 8, 1981), 7 (in Japanese). The representative for the government stated the understanding that the waters around beyond the shore of Antarctica are to be regarded as the high seas. 39 Nankyoku Chiiki no Dobutsuso oyobi Shokubutsuso no Hozon ni Kansuru Horitsu [Act on the Conservation of Fauna and Flora in the Antarctica] (Act No. 58 of 1982), www.shugiin.go.jp/internet/itdb_housei.nsf/html/houritsu/ 09619820528058.htm (in Japanese). 40 Agreed Measures for the Conservation of Antarctic Fauna and Flora, 17 UST 996 (1966). 41 Ibid., Article 2(1). 42 Nankyoku Chiiki no Kankyo no Hogo ni kansuru Horitsu [Act on the Protection of the Environment in Antarctica] (Act No. 61 of 1997), translation available on the website of the Ministry of the Environment at www.env.go.jp/en/laws/ global/antarctica/index.html. 43 Act on the Protection of the Environment in Antarctica, Article 3(i).

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juridical persons and other persons and entities with a connection to Japan (article 2) and prohibits any activity in Antarctica unless in accordance with an activity plan certif ied by the minister of the environment (article 5(1)). The certif ication is conditioned on whether the proposed activity meets the substantive restrictions contained in the act, incorporating the requirements under the Madrid Protocol. However, three types of “specif ied activities” are exempt from this scheme. They are (1) the taking of marine fauna or flora consistent with applicable laws, (2) navigation of ships and flying of aircraft outside the Antarctic specially protected areas and (3) marine scientif ic research which do not involve the taking of marine fauna or flora, the results of which will be made publicly available.44 Japan’s interpretation of article VI of the Antarctic Treaty is also reflected in its practice regarding article VII(5), requiring contracting parties to give advance notif ications regarding their expeditions, stations and military personnel or equipment. In particular, subparagraph (a) of the provision provides notif ication obligations for “all expeditions to and within Antarctica, on the part of its ships or nationals, and all expeditions to Antarctica organised in or proceeding from its territory.” Japan’s current practice is not to notify ships conducting activities in the treaty area south of 60° south latitude when the ship does not dock or land in Antarctica.45 This practice appears to be based on the interpretation that the obligation under article VII(5) does not apply to those cases since the exception in article VI excludes the application of article VII to the area of the high seas. However, an author points out that notif ications were made prior to 2006 and that the prior practice would be more in line with the applicable recommendations and the practice of the consultative parties.46

Conservation and Sustainable Use of Living Resources The conservation and sustainable use of living resources in the Antarctic maritime area has and continues to be an important issue for Japan, although the Diplomatic Bluebook does not explicitly identify it as a component of Japan’s Antarctic policy.47 However, the scale of Japanese f ishing operations in the Southern Ocean has diminished over the years. For example, krill f isheries, which represented a major part of Japan’s f ishing interests in the area for nearly 40 years, have ceased to be conducted by Japanese f ishing vessels after the 2011/12 f ishing season.48 Japan’s toothf ish f isheries are also now modest in scale, with only one vessel licensed to operate in the CAMLR Convention area.49 Thus, Japan’s interest in utilising Antarctic marine living resources is now more about its general global policy of sustainable use of the resources based on scientif ic evidence rather than immediate economic interests.

44 Japan also takes the view that Annex III of the Madrid Protocol does not apply to the maritime area. See Kevin Wood, “Uncertain Fate of the Madrid Protocol to the Antarctic Treaty in the Maritime Area,” Ocean Development and International Law 34, no. 2 (2003): 156 (n 18). 45 Akiho Shibata, “Nankyoku Kankyo Sekinin Fuzokusyo no Kokunai Jisshi” [Domestic Implementation of Antarctic Treaty Environmental Protocol Liability Annex], in Kokusaihogaku no Shoso: Toutatsuten to Tenbo [Aspects of International Law Studies: Achievements and Prospects], ed. Junichi Eto (Tokyo: Shinzansya, 2015), 660 (in Japanese). 46 Ibid., 661–63. 47 See, Ministry of Foreign Affairs, Japan, Diplomatic Bluebook 2021 (English version), 303–4 (Arctic and Antarctic), 204–7 (Fisheries (Whaling and Tuna, etc.)). 48 Japan Fisheries Research and Education Agency, Reiwa 3 Nendo Kokusai Gyogyo Shigen no Genkyo [Current Status of International Fisheries Resources 2021], No. 72, http://kokushi.fra.go.jp/R03/R03_72_KRI.pdf, 1 (in Japanese); CCAMLR, Statistical Bulletin, Vol. 33 (2021), Table 8.1 (KRI: Euphausia superba). 49 Japan Fisheries Research and Education Agency, Reiwa 3 Nendo Kokusai Gyogyo Shigen no Genkyo [Current Status of International Fisheries Resources, 2021], No. 73, http://kokushi.fra.go.jp/R03/R03_73_TOP-TOA-SO.pdf, 5 (in Japanese).

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The emphasis on maintaining the balance between conservation and sustainable use based on science is clearly reflected in the position of Japan regarding the establishment of marine protected areas (MPAs) in the CAMLR Convention area. Japan is considered to be one of the most vocal critics of MPAs in the Southern Ocean, together with Russia, Ukraine and China.50 In the process leading to the establishment of the South Orkney Islands MPA in 2009, the f irst MPA under the CAMLR Convention, Japan is recorded as stating that the proposal was acceptable because the area where f ishing activity is carried out had been excluded from the MPA and that considerations should be given to f isheries interests when establishing an MPA.51 However, Japan has made it clear that it is not categorically opposed to the establishment of MPAs in the CAMLR Convention area and would accept those which prohibit f ishing activities on the basis of suff icient scientif ic evidence.52 For Japan, this issue was also tied to the concept of “rational use,” which is included in the def inition of conservation for the purposes of the convention.53 In the discussions concerning the Ross Sea MPA, Japan reiterated its position that “restrictions on f ishing activities as part of an MPA should be commensurate with the objectives of the MPA”54 and made various comments and suggestions regarding the scientif ic justif ications for the measures to be adopted in the MPA.55 Consistent with this approach, Japan also proposed a checklist that would provide a common evaluation platform to facilitate the discussion of future MPA proposals by the commission. The commission adopted the checklist as a non-binding working document that would provide voluntary guidelines.56 Besides f isheries regulated under the CAMLR Convention, a major issue for Japan regarding the conservation and sustainable use of living resources in the Southern Ocean is whaling. After Japan withdrew its objection to the moratorium on commercial whaling adopted by the International Whaling Commission (IWC), it conducted research whaling under article 8 of the International Convention for the Regulation of Whaling (ICRW).57 This practice led to a dispute with Australia, which was eventually settled by an ICJ judgement in the Whaling in the Antarctic case that decided that Japan’s JARPA-II research whaling program was inconsistent with the ICRW.58 After the judgement, Japan suspended JARPA-II and replaced it with a new program (NEWREP-A) in 2015, taking into account the ICJ judgement.59 However, it later decided in 2018 to withdraw from the IWC and cease all whaling operations outside the EEZ of Japan.60 The whaling issue was not inherently an Antarctic issue but rather a question regarding the interpretation of ICRW. However, Australia’s EEZ claims raised some issues in this context, such as when in 2008, the Federal Court of Australia

50 Danielle Smith and Julia Jabor, “MPA in ABNJ: Lessons from Two High Seas Regimes,” ICES Journal of Marine Science 75, no. 1 (2018): 419. 51 CCAMLR, Report of the Twenty-Eighth Meeting of the Commission (2009), para. 7.4. 52 CCAMLR, Report of the Twenty-Ninth Meeting of the Commission (2010), para. 7.10 53 Ibid. (stating that “Japan is unable to accept the establishment of an MPA which prohibits rational use of f ish resources without clear objectives and scientif ic justif ication”). 54 CCAMLR, Report of the Thirtieth Meeting of the Commission (2011), para. 7.20. 55 CCAMLR, Report of the Second Special Meeting of the Commission (2013), para. 3.35. 56 CCAMLR, Report of the Thirty-Fourth Meeting of the Commission (2015), paras. 8.54–8.55. 57 161 UNTS 72. Entered into force November 10, 1948. For information regarding the practice of Japan, see Atsuko Kanehara, “Japanese Practices Concerning the International Regulation of Whaling,” Japanese Annual of International Law 46 (2003): 127–48. 58 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports 2014, 298–300, para. 247. 59 Ministry of Foreign Affairs of Japan, “Implementation of the New Scientif ic Whale Research Program in the Antarctic Ocean (NEWREP-A)” at www.mofa.go.jp/ecm/fsh/page4e_000357.html. 60 Atsuko Kanehara, “Japan’s Withdrawal from the International Convention for the Regulation of Whaling,” Japanese Yearbook of International Law 62 (2019): 376–87.

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issued an injunction against a Japanese company from harvesting whales in the Australian Whale Sanctuary established in the EEZ claimed from the Australian Antarctic Territory.61 The issue of Australian claims was also touched upon in the Whaling in the Antarctic case, where Japan unsuccessfully argued that a dispute concerning JARPA-II, conducted in or around the areas claimed to be the EEZ of Australia, fell within Australia’s reservation to optional clause declaration concerning “any dispute concerning or relating to the delimitation of maritime zones . . . , or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation.”62

Japan and the Arctic Japan’s Involvement in the Arctic Before 2010 In contrast to the Antarctic, Japanese involvement in the Arctic was limited before the 1990s. In the period before the Second World War, the signing of the Svalbard Treaty in 1920 and the voyage of Kaiho Maru to the Bering Strait in 1941 are the only exceptions that are referred to in literature.63 In the post-war period, Japan’s involvement was mainly scientif ic. Individual Japanese scientists had been involved in Arctic research since the 1950s. In 1990, the National Institute of Polar Research established its Arctic Environment Research Center and opened a permanent station at Ny Ålesund in Svalbard the following year.64 Japan also joined the International Arctic Science Committee (IASC) in 1991.65 The possibility of using the Northern Sea Route (NSR) for commercial navigation also began to be studied in the 1990s. The International Northern Sea Route Programme (INSROP) was launched in 1993 as a multidisciplinary collaborative research project between the Ship and Ocean Foundation of Japan, the Central Marine Research and Design Institute (CNIIMF) of Russia and the Fridtjof Nansen Institute of Norway.66 However, Japan’s engagement with the Arctic States on matters of law and policy was still limited in this period. While Japan was the only non-Arctic State outside Europe to be present at the Ottawa Conference when the Arctic Council was established in 1996,67 it did not take any specif ic initiatives in responding to the developments in the new body in the years immediately following its establishment.

61 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; Rachel Baird and Chantal Le Feuvre, “They Said They’d Never Win: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd,” Asia Pacif ic Journal of Environmental Law 11, no. 3&4 (2008): 147–58. 62 Whaling in the Antarctic, ICJ Reports 2014, 243–46, paras. 33–40. 63 Fujio Ohnishi, “The Process of Formulating Japan’s Arctic Policy: From Involvement to Engagement,” East Asia-Arctic Relations: Boundary, Security and International Politics, Center for International Governance 1 (2013), www.cigionline.org/ static/documents/no1a.pdf, 2; Tonami Aki, Asian Foreign Policy in a Changing Arctic: The Diplomacy of Economy and Science at New Frontiers (London: Palgrave Macmillan, 2016), 47–48. 64 NIPR, Hokkyoku Ny-Alesund Kichi Kaisetsu 25 Shunen to Syourai Tenbou [The 25th Anniversary of the Opening of the Arctic Ny-Alesund Station and Future Prospects] (NIPR, 2017), www.nipr.ac.jp/aerc/document/Ny-Alesund-25th3. pdf, 26. 65 Ibid., 70 66 Jan M. Markussen, “International Northern Sea Route Programme (INSROP),” Ocean Yearbook 11, no. 1 (1994): 484; Willy Østreng, “The International Northern Sea Route Programme (INSROP): Applicable Lessons Learned,” Polar Record 42, no. 1 (2006): 72–77. 67 Joint Communique of the Governments of the Arctic Countries on the Establishment of the Arctic Council (1996), https://oaarchive.arctic-council.org/handle/11374/85.

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Formulation of an Arctic Policy Japan started to pursue a more active Arctic policy around the year 2010. In 2009, Japan submitted its application for permanent observer status in the Arctic Council, which was later approved in 2013.68 In September 2010, the Ministry of Foreign Affairs established the Arctic Task Force and held its f irst meeting.69 The purpose of launching the task force was to develop a ministrywide mechanism to formulate and implement Japan’s Arctic policy through closer cooperation and coordination among the relevant departments within the Ministry of Foreign Affairs.70 This was followed by the appointment of Japan’s f irst ambassador in charge of Arctic affairs in 2013, “to be appropriately involved in international discussions regarding the Arctic.”71 The Ministry of Education, Culture, Sports, Science and Technology (MEXT) also launched an initiative to strengthen Arctic research in Japan in 2010. A working group established to consider the promotion of Arctic research made proposals for several initiatives, including the establishment of a consortium for Arctic environmental research, which would serve as a common platform for discussions among Arctic-related researchers and a national project on Arctic climate change research.72 Based on this proposal, MEXT funded the GRENE Arctic Climate Change Research Project (2011 to 2016), which conducted scientif ic studies to understand climate change in the Arctic and its global effects.73 The project was succeeded by Arctic Challenge for Sustainability (ArCS) (2015– 20)74 and Arctic Challenge for Sustainability II (ArCS II) (2020–25) projects.75 In regard to shipping in the Arctic, the Ministry of Land, Infrastructure, Transport and Tourism (MLIT) established a public-private partnership council in 2014 to promote Arctic shipping by creating a forum for businesses, research institutions and government agencies, to share information.76 Regular meetings of the council have been held at least once every year since its establishment, in which presentations are made by various stakeholders in Japan. The efforts by different ministries subsequently led to the adoption of a clear Arctic policy for Japan, mainly through the legal and policy framework for formulating a comprehensive ocean policy.77 In the Second Basic Plan on Ocean Policy, revised in 2013, “measures responding to changes in the Arctic Ocean caused by climate change” was listed as one of the measures “to be intensively promoted under the plan.” In particular, the plan highlighted observation and research in the Arctic,

68 Ministry of Foreign Affairs of Japan, “Approval of Japan’s Application for Observer Status in the Arctic Council,” www. mofa.go.jp/press/release/press6e_000092.html. 69 Ministry of Foreign Affairs of Japan, “Launching of the “Arctic Task Force (ATF),” www.mofa.go.jp/announce/ announce/2010/9/0902_01.html. 70 Kikuko Kato, “Hokkyoku wo Meguru Gendaiteki Mondai no Jokyo” [Emerging Challenges Regarding the Changing Arctic], Kokusaiho Gaiko Zasshi [Journal of International Law and Diplomacy] 110, no. 3 (2011): 92. 71 Ministry of Foreign Affairs of Japan, “Press Release: Appointment of Ambassador in Charge of Arctic Affairs” (March 19, 2013), www.mofa.go.jp/press/release/press6e_000002.html. 72 Ministry of Education, Culture, Sports, Science and Technology, Interim Report of the Working Group on Arctic Research, Subcommittee on the Promotion of Earth Observation, August  2010, www.mext.go.jp/b_menu/shingi/ gijyutu/gijyutu2/035-4/houkoku/1296814.htm (in Japanese). 73 NIPR, “GRENE Arctic Climate Change Research Project,” www.nipr.ac.jp/grene/e/index.html. 74 NIPR, “Arctic Challenge for Sustainability,” www.nipr.ac.jp/arcs/e/. 75 NIPR, “Arctic Challenge for Sustainability II,” www.nipr.ac.jp/arcs2/e/. 76 Ministry of Land, Infrastructure, Transport and Tourism of Japan, “Promotion of Utilization of the Arctic Sea Route,” www.mlit.go.jp/sogoseisaku/ocean_policy/sosei_ocean_tk_000021.html (in Japanese). 77 On the development of Japan’s ocean policy under the Basic Act on Ocean Policy, see Naoya Okuwaki, “The Basic Act on Ocean Policy and Japan’s Agendas for Legislative Improvement,” Japanese Yearbook of International Law 51 (2008): 164–70.

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international coordination and cooperation on Arctic issues and the future possibilities of Arctic shipping as areas to be focused on. Further, in July 2013, after Japan’s observer status at the Arctic Council was approved, a Liaison Conference of Relevant Ministries and Agencies for Arctic Issues was established for the purpose of information sharing and drafting Japan’s Arctic policy.78 Japan’s Arctic Policy, a policy document dedicated to the Arctic was adopted in 2015. Japan’s Arctic Policy lists seven factors as basic perspectives from which policies regarding the Arctic are to be carried out.79 They are (1) making full use of Japan’s strength in the area of science and technology from a global viewpoint, (2) giving full consideration to the fragile Arctic environment, (3) ensuring the rule of law and promoting international cooperation in a peaceful and orderly manner, (4) respecting the rights of Indigenous Peoples, (5) paying full attention to security-related developments in the Arctic, (6) aiming for economic and social compatibility with climate and environmental changes, and (7) seeking economic opportunities for the use of the Arctic sea route and for the development of resources. The document also outlines specif ic initiatives to be undertaken in three broad areas considered to be the main pillars of Japan’s Arctic policy: research and development, international cooperation and sustainable use. Although Japan’s Arctic Policy has not been revised since its adoption, the Third Basic Plan on Ocean Policy, adopted in 2018, contains an updated list of initiatives to promote Japan’s Arctic policy.80 On research and development, the plan lists initiatives such as the promotion of international joint research, the development of technologies such as autonomous underwater vehicles (AUVs) for polar observations and the development of human resources. Investigating the possibilities of constructing an Arctic research vessel was included in the list, and a decision was later made to construct a new vessel with icebreaker capacities.81 On international cooperation, the plan lists efforts to contribute proactively to ensure respect for the rule of law, to convey constructively scientif ic knowledge from Japanese activities through multilateral and bilateral frameworks and to promote further and strengthen engagement with Arctic and other States countries bilaterally and through the Arctic Council. On sustainable use, initiatives for the utilisation of the Arctic sea route, combating climate change and adopting precautionary measures for the protection of the Arctic environment are listed. A further update to these initiatives is expected in 2023 when the fourth Basic Plan will be adopted.

Japan’s Position on the Legal Regime of the Arctic Ocean One of the features of Japan’s Arctic policy is the emphasis on ensuring the rule of law and in particular, ensuring respect for international law of the sea that applies to the Arctic Ocean.82 Japan was quick to express support for the understanding contained in the Ilulissat declaration, in which

78 Cabinet Off ice, “Outline of Japan’s Arctic Policy,” https://www8.cao.go.jp/ocean/english/arctic/pdf/outline_japans_ ap_e.pdf, 3. 79 Japan’s Arctic Policy, 2. 80 (Third) Basic Plan on Ocean Policy, Cabinet Decision, May 15, 2018, https://www8.cao.go.jp/ocean/english/plan/ pdf/plan03_e.pdf, 105–10. 81 Hajime Yamaguchi, “Construction of New Arctic Research Vessel with Icebreaking Capacity Decided,” www.nipr. ac.jp/arctic_info/e/columns/2021-02-16-1/. 82 The emphasis on the rule of law in Japan’s Arctic Policy is regarded as reflecting Japan’s broader ocean policy of advocating a “free and open maritime order.” See Kaneko Nakae, “Japan’s Arctic Policy and the Northern Sea Route: Conflict between ‘Energy Security’ and ‘Freedom of Navigation,’ ” Discuss Japan: Japan Foreign Policy Forum, No. 65, www. japanpolicyforum.jp/pdf/2021/no65/dJweb_65_dip_01.pdf.

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f ive coastal States of the Arctic Ocean expressed their commitment to the already existing legal framework, including the law of the sea, and their views that there is “no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.”83 Japan’s Arctic Policy states that the Arctic Ocean is subject to relevant international law, including the UN Convention on the Law of the Sea (LOSC),84 and expresses the view that the freedom of navigation and other principles of international law must be respected.85 The document also makes an explicit reference to article 234 of the LOSC on ice-covered areas, highlighting the need to cooperate with coastal States to ensure the appropriate balance between navigation and the protection and preservation of the marine environment based on international law.86 The further development of international law concerning the Arctic consistent with the existing legal framework is also envisaged in Japan’s Arctic Policy. The document contains the statement that “there is a need for Japan to be involved appropriately in formulating international agreements and rules regarding the Arctic” and highlights the importance of utilising Japan’s scientif ic knowledge and technology to contribute to the rule-making process. The list of specif ic initiatives in Japan’s Arctic Policy includes references to discussions within the International Maritime Organization (IMO) for the implementation of the Polar Code and discussions with Arctic coastal States and other States for the development of rules for the conservation and management of f isheries resources in the high-seas area of the Arctic Ocean based on scientif ic evidence.87

Arctic Shipping The utilisation of Arctic sea routes has been identif ied as an area of particular economic interest for Japan. Due to its geographic location, the discussions on Arctic shipping in Japan mainly focus on the Northern Sea Route (NSR) along the coast of Russia. The use of the NSR as a shortcut between Europe and East Asia is still mostly a possibility that continues to be studied. However, starting in 2018, a Japanese shipping company began to be involved in operating ice-breaking LNG carriers that provide transport for the Yamal LNG plant in the Russian Arctic.88 The operations are carried out by LNG carriers flying the flag of Hong Kong, owned by a Hong Kong–based subsidiary established as a joint venture between the Japanese shipping company and a Chinese counterpart.89 While still a theoretical issue for Japan as a flag State, an important legal issue for Japan regarding navigation through the NSR has been whether the Russian regulations are consistent with the LOSC.90 Japanese authors have raised some concerns about whether the current Russian legislation adopting measures such as prior authorization may be fully justif ied under article 234 of the LOSC,

83 Shibata, “Japan and 100 Years of Antarctic Legal Order,” 51–52; Ilulissat Declaration, May 28, 2008, 48 ILM 362. 84 Adopted December 10, 1982, entered into force November 16, 1994, 1833 UNTS 3. 85 Japan’s Arctic Policy, 4–5. 86 Ibid., 5. 87 Ibid., 8. 88 Mitsui O. S. K. Lines, “Press Release: Ice-Breaking LNG Carrier,” Vladimir Rusanov for Yamal LNG Project Started the First Loading Operation in the Yamal LNG Plant at Sabetta Port: Operational commencement with MOL’s 1st Vessel for World’s First Ice-Breaking LNG Carrier Project” (March 29, 2018), www.mol.co.jp/en/pr/2018/18021.html. 89 Hiroyuki Goda, “Iwayuru ‘Nihonsensha’ no Hokkyokukai Koro no Riyo ni Tsuite” [On the Use of the Northern Sea Route by a “Japanese Shipping Company”], Japan Forum on International Relations, www.jf ir.or.jp/wp/wp-content/ uploads/2022/02/220123gh.pdf (in Japanese). 90 See Kato, “Hokkyoku wo Meguru Gendaiteki Mondai no Jokyo,” 79–80, in which the then-director of the Oceans Division of the Ministry of Foreign Affairs, while writing in her personal capacity, identif ied the different views of States on article 234 of the LOSC as one of key legal issues regarding the Arctic.

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which provides additional powers to coastal States in ice-covered areas.91 The government of Japan has so far made no public comments on this issue. It has been observed that there are legal and policy considerations in favour of avoiding the issue, including that the use of the NSR without cooperation with Russia is unlikely in the foreseeable future.92 On the other hand, Japan’s silence on this issue should not be regarded as acquiescence to the exercise of jurisdiction by Russia, given that an occasion has not yet arisen where Japan was required to express its position as a flag State against a specif ic measure under the Russian regulations.93 While there is no indication of a policy change so far, Russia’s invasion of Ukraine may have some implications for political calculations on whether to pursue a more proactive assertion of navigational rights in the future.

Conservation and Sustainable Use of Marine Living Resources The sustainable use of marine living resources is another issue in which Japan has identif ied its interests. A recent signif icant development on this issue was the conclusion of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement) in 2018,94 which established a temporary moratorium on unregulated commercial f ishing in the Central Arctic Ocean. Japan was among the f ive non-littoral parties (China, Iceland, Japan, South Korea and the EU) that participated in the negotiations together with f ive Arctic Ocean littoral States (Canada, the Kingdom of Denmark, Norway, Russia and the United States). Since the area of application of the agreement is the high seas, Japan regarded it as important that it was able to participate in its negotiation as a State with “real interests in the f isheries concerned.”95 The format of the Arctic Five plus Five process was considered to be a favourable one for Japan, as it allowed all participants to negotiate on an equal footing.96 Japan and other non-Arctic States had concerns about the issue being discussed as an “Arctic issue” and the possible creeping jurisdiction of Arctic Ocean littoral States to the areas of the high seas adjacent to waters subject to their sovereign rights.97 The most important aspect of the CAOF Agreement for Japan was arguably its implications for sustainable use. However, since there is no interest among private stakeholders at present in conducting f isheries in the high-seas area of the CAOF, the interest of Japan in this issue was mainly a matter of principle, which is to pursue Japan’s global policy of sustainably utilising marine living resources based on scientif ic evidence.98 Nevertheless, sustainable use considerations led Japan to argue that the CAOF Agreement should include a provision allowing sustainable use of resources

91 Kentaro Nishimoto, “The Rights and Interests of Japan in regard to Arctic Shipping,” in Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States, eds. Robert C. Beckman et al. (Leiden: Brill, 2017), 367–69. 92 Ibid., 373–77. 93 Ibid., 372–73. 94 The text of the agreement is available at www.mofa.go.jp/f iles/000449233.pdf. On the agreement and its negotiating process, see, generally, Valentin J. Schatz, Alexander Proelss and Nengye Liu, “The 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: A Critical Analysis,” International Journal of Marine and Coastal Law 34 (2019): 1–50. See also Chapter 16 of this volume. 95 Masataka Okano, “Gaiko ni okeru Joyaku no Yakuwari no Henka” [The Changing Role of Treaties in Foreign Policy], Kokusaiho Gaiko Zasshi [Journal of International Law and Diplomacy] 119, no. 2 (2020): 153–54. 96 Joji Morishita, “The Arctic Five-plus-Five Process on Central Arctic Ocean Fisheries Negotiations: Reflecting the Interests of Arctic and non-Arctic Actors,” in Emerging Legal Orders in the Arctic: The Role of Non-Actors, eds. Akiho Shibata et al. (London: Routledge, 2019), 125. 97 Erik J. Molenaar, “Participation in the Central Arctic Ocean Fisheries Agreement,” in Emerging Legal Orders in the Arctic, 142–47. 98 Morishita, “The Arctic Five-plus-Five Process on Central Arctic Ocean Fisheries Negotiations,” 125.

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through establishing a regional f isheries management organisation or arrangement (RFMO/A).99 The position that it would be desirable to have a provision on future sustainable use, even if there is little prospect of commercial f isheries in the near future, was shared by the other “plus Five” parties. Although the f ive Arctic Ocean littoral States initiated the process with the focus of preventing illegal f ishing, the negotiation led to the inclusion of article 5(1)(c), which provides a mechanism for commencing negotiation towards the establishment of an RFMO/A. Another aspect of the CAOF Agreement that is of importance to Japan is that it contains a mechanism for facilitating cooperation in scientif ic activities for the purpose of increasing scientif ic knowledge of the marine living resources and ecosystems of the Central Arctic Ocean.100 The Joint Program of Scientif ic Research Monitoring (JPSRM), to be established under the agreement, is expected to provide a useful platform for Japan to promote scientif ic activities in the Arctic, in line with the emphasis on scientif ic research and observation in its Arctic policy.101 However, it is yet to be seen how Japan could take advantage of the JPSRM to play a role in the promotion of marine science regarding the Central Arctic Ocean.102

Conclusion While the legal basis for Japan’s participation in international rule-making is still more solid in regard to the Antarctic as a consultative party to the Antarctic Treaty compared to the position of a non-Arctic State in Arctic forums and law-making processes where the Arctic States often have more influence, Japan’s engagement with the polar regions appears to be shifting from the Antarctic to the Arctic. The Arctic is treated as a new area with opportunities and sustainability challenges requiring attention. In contrast, legal and policy issues concerning the Antarctic seem to be treated as business as usual, although still regarded as an important area of Japanese foreign policy.103 Notwithstanding the obvious differences between Antarctic and Arctic legal and policy issues, it is possible to identify some common themes behind Japan’s involvement with the Antarctic and Arctic legal order. The emphasis on maintaining a peaceful order based on international law, the promotion of science and the utilisation of scientif ic knowledge, and the sustainable utilisation of resources are noticeable features of Japan’s approach to Antarctic and Arctic issues. These elements can be regarded as reflecting the fact that Japanese interests in both polar regions are based on international public values that the polar regions offer to Japan and to the international community as a whole.104

 99 Ibid., 126–27. 100 CAOF Agreement, Art. 4. 101 Morishita, “The Arctic Five-plus-Five Process on Central Arctic Ocean Fisheries Negotiations,” 125. 102 The JPSRM is an attractive mechanism for Japan as a non-Arctic State, especially given the existence of scientif ic cooperation frameworks that only address cooperation between Arctic States. For example, the Agreement on Enhancing International Arctic Science Cooperation does not provide benef its to scientif ic efforts from non-Arctic States. On this issue, see Akiho Shibata and Maiko Raita, “An Agreement on Enhancing International Scientif ic Cooperation: Only for the Eight Arctic States and their Scientists?” Yearbook of Polar Law 8, no. 1 (2016): 129–62. 103 The recent volumes of the Diplomatic Bluebook published by the Ministry of Foreign Affairs each year devote more space describing Arctic issues rather than Antarctic issues. See Ministry of Foreign Affairs, Japan, Diplomatic Bluebook 2021 (English version), 303–4. 104 Shibata, “Japan and 100 Years of Antarctic Legal Order,” 54.

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30 CHINA AND THE POLAR REGIONS Nengye Liu, Sanna Kopra and Jiliang Chen

Introduction On March 14, 2021, the Chinese government published its 14th Five Year Plan for (2021–2025) for National Economic and Social Development and the Long-Range Objectives Through the Year 2035 (14th Five-Year Plan).1 This is the most important policy document that guides China’s development in the next decade. For the f irst time, there is a specif ic ocean chapter in the Five-Year Plan.2 It is provided that China aims to [a]ctively develop blue partnership; deeply involve in global ocean governance regarding institutional building, rules-making and implementation; foster the “ocean community of shared destiny for mankind”; participate in pragmatic cooperation in the Arctic to build “Ice Silk Road”; as well as enhance capacity to protect and use Antarctica.3 The adoption of the 14th Five-Year Plan marks a new milestone for China’s ambition to become a maritime power, while the Polar Regions play an essential part in this blueprint. In the global arena, it is notable that China has been pushing its own narrative – “balance between the protection and use” for the future development of global ocean governance. For example, in the current negotiation for conservation of marine living resources in areas beyond national jurisdiction (BBNJ), China has stated that “a balance between conservation and sustainable use is necessary” for achieving any new legally binding instrument.4 When it comes to the polar regions, China has been particularly vocal about striking the “balance” between conservation and rational use as well. China argues that the establishment of the Southern Ocean marine protected areas (MPAs) should consider this “balance” during the annual meetings of the Commission for Conservation of Antarctic Marine Living

1 www.gov.cn/xinwen/2021-03/13/content_5592681.htm (in Chinese). 2 Part 9, Chapter 33, 14 Five-Year Plan. 3 Ibid., translated by the f irst author. 4 Xinhua, “China’s Deputy Ambassador to the United Nations Calls for Building Community of Shared Destiny for Ocean,” December 9, 2020, www.xinhuanet.com/2020-12/09/c_1126839718.htm (in Chinese). DOI: 10.4324/9781003404828-38 512

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Resources (CCAMLR).5 Moreover, China organised a special meeting to discuss how to achieve a balance between protection and use for the Antarctic Treaty System (ATS) during the 40th Antarctic Treaty Consultative Meeting in 2017, which was hosted by China’s Ministry of Foreign Affairs. However, the term “balance” is vague and subjective. Rather than discussing China’s interests and intentions in the polar regions,6 this chapter aims to closely examine China’s engagement with international polar law and governance in order to draw insights on what exactly does China mean by “balance” and where is the demarcated boundary between the protection and use. By doing so, the chapter provides some thoughts on the future of international polar law with a rising China.

The Arctic The Arctic boasts a multi-level governance regime. At the international level, the United Nations Convention on the Law of the Sea (LOSC)7 is an umbrella convention that is applicable in the Arctic Ocean. The Arctic Council is the most important regional cooperation forum.8 Moreover, there are a number of treaties and conventions that are specif ically about the Arctic region, such as the Svalbard Treaty9 and the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement).10 China’s pursuit to become a maritime power is increasingly visible in the Arctic, where icecaps are melting fast due to climate change. Although China does not have maritime jurisdiction or territory above the Arctic Circle (approximately 66°30′N), it has become an increasingly influential actor in regional affairs. While China’s growing Arctic engagement has provided many local actors with new business opportunities and research facilities, its “real” motives in the Arctic have been widely speculated.11 To alleviate threat perceptions concerning its Arctic involvement, the Chinese government published its f irst Arctic Policy White Paper in January 2018. In line with China’s efforts to promote a “balance between the protection and use” of oceans, China’s Arctic strategy states that China “bear[s] in mind the importance of the protection and development of the Arctic.”12 Accordingly, the strategy def ines China’s policy goals as follows: “to understand, protect, develop and participate in the governance of the Arctic, so as to safeguard the common interests of all countries and the international community in the Arctic, and promote sustainable development of the Arctic.”13 Furthermore, the strategy def ines China as a near-Arctic State that is “one of the continental States that are closest to the Arctic Circle.”14 While the concept arguably seeks to justify China’s greater

5 Nengye Liu and Cassandra M. Brooks, “China’s Changing Position towards Marine Protected Areas in the Southern Ocean: Implications for Future Antarctic Governance,” Marine Policy 94 (2018): 189–95. 6 See, for example, Nengye Liu and Qi Xu, “The Predicates of Chinese Legal Philosophy in the Polar Regions,” in Philosophies of Polar Law, eds. Dawid Bunikowski and Alan D. Hemmings (London: Routledge, 2021), 131–55. 7 Adopted December 10, 1982, entered in force November 16, 1994, 1833 UNTS 3. 8 See Chapter 21 of this volume. 9 Adopted February 9, 1920, entered into force August 14, 1925, 2 LNTS 7 [1920 Svalbard Treaty]. See also Chapter 28 of this volume. 10 Adopted October 3, 2018, entered into force June 25, 2021, OJ L 73, March 15, 2019, 3–8. See also Chapter 16 of this volume. 11 See, for example, Anne-Marie Brady, China as a Polar Great Power (Cambridge: Cambridge University Press, 2017). 12 State Council Information Off ice of the People’s Republic of China, “China’s Arctic Policy” (2018), http://english.gov. cn/archive/white_paper/2018/01/26/content_281476026660336.htm. 13 Ibid. 14 Ibid.

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involvement in Arctic governance, especially due to impacts of climate change in the Arctic on China’s weather patterns and air pollution, it was greeted with suspicion among the Arctic States. In particular, then secretary of state of the United States Mike Pompeo explicitly challenged the regional role and intentions of China and Russia in the Arctic in his aggressive speech on the eve of the Arctic Council ministerial meeting in Rovaniemi, Finland, in May 2019.15 For the time being, however, there is no evidence that China’s military presence in the region has increased or that the State would have somehow challenged the rule-based regional order in the Arctic. Hence, Pompeo’s concern that China’s growing regional role would turn the “Arctic Ocean to transform into a new South China Sea, fraught with militarization and competing territorial claims” seems rather far-fetched.16 Yet China’s growing Arctic engagement will undoubtedly be an increasingly important factor shaping the future of the Arctic region. To shed light on those future developments, this section examines the ways in which China’s narrative “balance between the protection and use” is played out in the Arctic.

Environmental Protection As the protection of the Arctic requires deeper understanding of the region’s climate system and unique ecosystem, China seeks to improve scientif ic capacity and capability in the Arctic.17 Since the early 1990s, Chinese scientists have conducted polar research onboard icebreaker Xuelong.18 In 2019, China’s f irst home-built icebreaker Xuelong II started to operate.19 In 2004, China built its f irst Arctic research station, Yellow River Station, in Ny Alesund, Svalbard.20 In the following year, China hosted the f irst Arctic Science Summit Week in Asia. Most Arctic States have generally welcomed China’s growing involvement in Arctic science cooperation. As an evidence of this, the China-Nordic Arctic Research Centre was established in 201321 and an agreement on the launch of the China-Russia Arctic Research Centre was signed in 2019.22 What is more, the China-Iceland Arctic Observatory began to operate at Kárhóll, near the town of Akureyri in northern Iceland in 2018.23 Instead of the original plan to focus on aurora observation, the Polar Research Institute of China and the Icelandic Centre for Research decided to expand the scope of cooperation to cover research on, inter alia, volcanology, biology, climatology, ecology, glaciology, meteorology, oceanography and space weather.24 In 2016, China also launched an overseas satellite ground station

15 Mike Pompeo, “Looking North: Sharpening America’s Focus,” Rovaniemi, May 6, 2019, https://2017-2021.state.gov/ looking-north-sharpening-americas-arctic-focus/index.html. 16 Ibid. 17 China’s Arctic policy, supra note 12. 18 China bought XueLong from Ukraine in 1993 and upgraded it into a polar research vessel. Xue Long f irst visited the Antarctic in 1994. See Xinhua, “China’s Icebreaker Xuelong Completed Overhaul, Ready for Antarctic Expedition,” October 14, 2019, www.xinhuanet.com/english/2019-10/14/c_138471075.htm. 19 Xinhua, “China’s Polar Icebreaker Xuelong 2 Finished Its Icebreaking Tasks,” November 25, 2019, www.xinhuanet. com/english/2019-11/25/c_138581294.htm. 20 China Daily, “China launches Arctic Station,” July 29, 2004, http://en.people.cn/200407/28/eng20040728_151167. html. 21 See Centre Background, www.cnarc.info/organization. 22 Tass, “Russian Academy of Sciences, Chinese Scientists to Create Arctic Research Centre,” April 11, 2019, https://tass. com/science/1053084. 23 Xinhua, “China-Iceland Arctic Science Observatory Inaugurated in Northern Iceland,” October 19, 2018, www.xin huanet.com/english/2018-10/19/c_137542493.htm. 24 “Fields of Science,” China-Iceland Joint Arctic Observatory, https://karholl.is/en/science.

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in Kiruna, Sweden – a facility that, according to Swedish defence agency, could also be used for military purposes.25 In Finland, Chinese partners cooperate with Finnish Meteorological Institute’s Arctic Space Centre in Sodankylä. In addition, Chinese scientists are involved in international research cooperation at the University of the Arctic.26 China began sending delegations to the Arctic Council meetings in 2007, though it had become member of the International Arctic Science Committee in 1996. China’s application for a formal observer status in the Arctic Council was accepted in 2013.27 According to the Arctic Council Rules of Procedure, the principal role of observers is to observe the work of the council and they can contribute to it at the level of working groups.28 While observer States do not need to join the consensus for initiatives to proceed at the Arctic Council, observer status grants China access to all activities of the Arctic Council and its six working groups. So far, however, China’s involvement in the working groups has been rather limited. It has mainly invested in the projects undertaken by the Arctic Migratory Birds Initiative of the Conservation of Arctic Flora and Fauna working group of the Arctic Council.29 As the world’s third largest shipowner by deadweight tons,30 China has taken part in the work of International Maritime Organization and the development of International Code for Ships Operating in Polar Waters (Polar Code).31 In a meeting of the Protection of Arctic Marine Environment working group of the Arctic Council in February  2019, China presented its areas of interests, capabilities and potential contributions to the working group.32 Nevertheless, there is no specif ic proposal that China has ever raised in these meetings regarding the protection of the Arctic marine environment from shipping. Undoubtedly, the future of the Arctic is dictated by the speed of climate change. In the Arctic, temperatures have risen far more quickly than anywhere else on the planet during the past 30 years.33 It is projected that temperatures in the Arctic will rise at least 4–5°C by the mid-century, meaning that the Arctic Ocean is expected to be ice-free in summer already in the late 2030s.34 Due to its rapid economic growth, China’s total greenhouse gas (GHG) emissions have grown very fast over the past decades. Since 2006, it has been the biggest carbon dioxide emitter in the world, accounting for approximately 30% of global GHG emissions in 2019.35 China is a contracting party

25 Sandra Lindström and John Rydqvist, Kinas rymdprogram och rymdförmågor (Stockholm: The Swedish Defence Research Agency, 2019), www.foi.se/rapportsammanfattning?reportNo=FOI-R-4718-SE. 26 For more detailed information on China contribution to Arctic science, see Malgorzata Smieszek, Timo Koivurova and Egil Thor Nielsson, “China and Arctic Science,” in Chinese Policy and Presence in the Arctic, eds. Timo Koivurova and Sanna Kopra (Leiden: Brill Publishing, 2020), 42–61. 27 Arctic Council Secretariat, Kiruna Declaration, Kiruna, Sweden, May 15, 2013. 28 Rules of Procedure, Arctic Council, 2013, http://hdl.handle.net/11374/940. 29 Smieszek et al., “China and Arctic Science,” supra note 26, 49. 30 UNCTAD, Review of the Maritime Report 2020, 41, https://unctad.org/publication/review-maritime-transport-2020 31 International Code for Ships Operating in Polar Waters, https://wwwcdn.imo.org/localresources/en/MediaCentre/ HotTopics/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf. Entry into force January 1, 2017. See also Chapters 7 and 19 of this volume. 32 Smieszek et al., “China and Arctic Science,” supra note 26, 49. 33 IPCC, Chapter 3 Polar Regions, Special Report on the Ocean and Cryosphere in a Changing Climate. See also Chapter 13 of this volume. 34 AMAP, Snow, Water, Ice and Permafrost in the Arctic (SWIPA) 2017 (Oslo: Arctic Monitoring and Assessment Programme, 2017), www.amap.no/documents/doc/Snow-Water-Ice-and-Permafrost-in-the-Arctic-SWIPA-2017/1610. 35 Monica Crippa, Diego Guizzardi, Marilena Muntean, Edwin Schaaf, Ef isio Solazzo, Fabio Monforti-Ferrario, Jos Olivier and Elisabetta Vignati, Fossil CO2 Emissions of All World Countries – 2020 Report (Luxembourg: Publications Off ice of the European Union, 2020), 11.

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to the United Nations Framework Convention on Climate Change (UNFCCC)36 and its Kyoto Protocol37 as well as the Paris Agreement38 adopted in 2015. Undoubtedly, China’s ambitious efforts to reduce greenhouse gas emissions are crucial to reach the goal of the Paris Agreement to limit global average temperature raise well below 2°C above pre-industrial levels. Against this backdrop, President Xi Jinping’s announcement in September  2020 that China aims to cut its net carbon dioxide emissions to zero by 2060 was an important milestone in international climate politics.39 In the Arctic context, however, China has not yet put forward specif ic and ambitious climate policies.40 In addition to long-lived greenhouse gas emissions covered by the UNFCCC and its Kyoto Protocol,41 short-lived climate pollutants (SLCPs), especially black carbon, have recently emerged as key climate-warming agents in general, and in the context of the Arctic in particular. In China, the use of biomass, coal and oil for cooking and heating in residential and industrial sectors, as well as the use of diesel in transportation sector constitute the key sources of black carbon, which is caused by incomplete combustion of fossil fuels and biomass.42 Studies have found that two-thirds of black carbon’s warming effects in the Arctic come from non-Arctic countries43 – an aspect that calls for China’s contribution to efforts to reduce black carbon emissions. For the time being, however, China’s involvement in international legal and governance regimes related SLCPs has been limited.44 It has not contributed to the work of the Arctic Council’s Framework for Action on Enhanced Black Carbon and Methane Emission Reductions,45 nor is it a member of the Climate and Clean Air Coalition,46 a voluntary partnership seeking to protect climate and improve air quality by reducing SLCPs.

Resources Use When it comes to resources use the Arctic, China has become increasingly interested in taking part in economic activities in the region. It seeks to “advance Arctic-related cooperation under the Belt

36 Adopted May 9, 1992, entered into force March 21, 1994, 1771 UNTS 107. 37 Adopted December 11, 1997, entered into force February 16, 2005, 2303 UNTS 162. 38 Adopted December 12, 2015, entered into force November 4, 2016 (2016) 55 ILM 740–55. 39 Xi Jinping, “Statement by H.E. Xi Jinping President of the People’s Republic of China at the General Debate of the 75th Session of The United Nations General Assembly,” September 22, 2020, www.fmprc.gov.cn/mfa_eng/wjdt_665385/ zyjh_665391/t1817098.shtml. 40 See Sanna Kopra, “China, Great Power Responsibility and Arctic Security,” in Climate Change and Arctic Security. Searching for a Paradigm Shift, eds. Lassi Heininen and Heather Exner-Pirot (Cham: Palgrave Pivot, 2020), 33–52; Sanna Kopra and Matti Nojonen, “The Elusive Norm of Climate Responsibility: The Belt and Road and COVID-19,” in Arctic Yearbook 2020, eds. Lassi Heininen, Heather Exner-Pirot, and Justin Barnes (Akureyri:  Arctic Portal, 2020), https://arcticyearbook. com/images/yearbook/2020/Scholarly-Papers/1_Kopra.pdf. 41 These include carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs) perfluorocarbons (PFCs) and sulphur hexafluoride (SF6). 42 Zheng Bo, Dan Tong, Meng Li, Fei Liu, Chaopeng Hong, Guannan Geng, Haiyan Li, Xin Li, Liqun Peng, Ji Qi, Liu Yan, Yuxuan Zhang, Hongyan Zhao, Yixuan Zheng, Kebin He and Qiang Zhang, “Trends in China’s Anthropogenic Emissions since 2010 as the Consequence of Clean Air Actions,” Atmospheric Chemistry and Physics 18 (2018): 14095–111. https://doi.org/10.5194/acp-18-14095-2018. 43 AMAP, Summary for Policy-makers: Arctic Climate Issues 2015 (Oslo: Arctic Monitoring and Assessment Programme, 2015), 9. 44 Yulia Yamineva and Zhe Liu, “Cleaning the Air, Protecting the Climate: Policy, Legal and Institutional Nexus to Reduce Black Carbon Emissions in China,” Environmental Science and Policy 95 (2019): 1–10. 45 Annex 4, Iqaluit 2015 SAO Report to Ministers. Enhanced Black Carbon and Methane Emissions Reductions, An Arctic Council Framework for Action. https://oaarchive.arctic-council.org/handle/11374/610. 46 Climate and Clean Air Coalition, www.ccacoalition.org/en.

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and Road Initiative” in general, and under the Polar Silk Road in particular.47 Given China’s large need for energy and other natural resources, the vast Arctic oil, gas and mineral resources are of its interest. Since the majority of those resources are located in the lands and waters under the jurisdiction of eight Arctic States, however, Chinese actors can only have access to them via international cooperation. Therefore, the Chinese investors have increased cooperation with transnational corporations and the Arctic States – especially in Russia’s Yamal Peninsula, where Chinese partners take part in Yamal LNG,48 one of the largest liquef ied natural gas (LNG) projects in the world. In recent years, China has explored the commercial opportunities offered by the opening sea lines in the Arctic – lines that it renamed as Polar Silk Road in 2017.49 Russia’s Northern Sea Route is of special interest to China, as it does not only make it possible to ship LNG from Yamal to China but also offers a faster and shorter access to the European market and helps China to decrease its dependency on the Malacca Strait for energy imports. By the mid-century, the trans-Arctic passage is expected to open up for seasonal navigation. For China, it would offer even a faster route to Europe than the Northern Sea Route, which falls entirely within territorial waters of Russia.50 In addition, trans-Arctic shipping would make it possible for China to develop Arctic activities in accordance of its international rights under the LOSC: to conduct scientif ic research, navigate, perform flyovers, f ish, lay submarine cables and pipelines in the high seas, including the central Arctic Ocean. As a contracting party to the Svalbard Treaty since 1925, China is increasingly interested in the legal status of the Svalbard Archipelago.51 China’s 2018 Arctic Policy particularly mentioned the Svalbard Treaty, which guarantees contracting parties outside the Arctic to enjoy liberty of access and entry to certain areas of the Svalbard to conduct commercial activities such as hunting, f ishing and mining.52 The long-term controversy of the treaty interpretation between Norway and many other contracting parties, especially after the entry into force of the LOSC, is whether the liberty only applies to Svalbard Archipelago itself or the territorial seas and beyond.53 As the world’s largest distant water f ishing (DWF) State,54 China is no doubt keeping an eye on any “new” f ishing ground for its expanding DWF fleet, including the Svalbard’s Fisheries Protection Zone. Although the

47 China’s Arctic Policy, supra note 12. 48 Xinhua, “Yamal LNG Project Reaches Full Production Capacity,” December  12, 2018, www.xinhuanet.com/ english/2018-12/12/c_137666821.htm. 49 National Development and Reform Commission and State Oceanic Administration, “Vision for Maritime Cooperation under the Belt and Road Initiative,” Xinhua, June  20, 2017, http://news.xinhuanet.com/english/201706/20/c_136380414.htm. 50 See Mia M. Bennett, Scott R. Stephenson, Kang Yang, Michael T. Bravo and Bert De Jonghe, “The Opening of the Transpolar Sea Route: Logistical, Geopolitical, Environmental, and Socioeconomic Impacts,” Marine Policy 121 (2020): 104178. 51 Nengye Liu, “China and One Hundred Years of the Svalbard Treaty, Past, Present and Future,” Marine Policy 124 (2021): 104354. See also Chapter 28 of this volume. 52 Articles 2, 3, 1920 Svalbard Treaty. 53 Such as continental shelf and 200 nautical miles Fisheries Protection Zone (SFPZ) established by Norway in 1977. See, for example, Robin Churchill and Geir Ulfstein, “The Disputed Maritime Zones around Svalbard,” in Changes in the Arctic Environment and the Law of the Sea, eds. Myron Nordquist, John N. Moore, and Thomas Heidar (Leiden: Brill, 2010), 551–92. 54 According to statistics published by China’s State Fisheries Bureau in 2016, China off icially owns 162 DWF companies with 2900 DWF vessels, and the catch of its DWF fleet amounts to 1.99 million tons per year. See China Ministry of Agriculture and Rural Affairs, “13th Five-Year Plan for the Development of National Distant Water Fishing Industry,” 2017, www.moa.gov.cn/gk/ghjh_1/201712/t20171227_6128624.htm (in Chinese)

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Chinese government has never presented any off icial view on this matter, Chinese academics have been vocal against any measure that may strengthen Norwegian control of the Svalbard Archipelago.55 As for sustainable use of Arctic f isheries, China was invited by the f ive Arctic littoral States in 2015 to take part, together with the EU and other key high-seas f ishing nations (Japan, South Korea and Iceland) in negotiations on a legally binding agreement on preventing unregulated f ishing in the Central Arctic Ocean (CAO) until sustainability of such activities can be guaranteed.56 The Chinese delegation quietly attended all negotiation meetings and supported the adoption of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement) in 2018.57 The CAOF Agreement aims to “prevent unregulated f ishing in the high seas portion of the central Arctic Ocean through the application of precautionary conservation and management measures,”58 which will last for 16 years.59 In the meantime, the parties agree to establish a Joint Program of Scientif ic Research and Monitoring with the aim of improving their understanding of the ecosystem of the Agreement Area and in particular, of determining whether f ish stocks might exist in the Agreement area now or in the future that could be harvested on a sustainable basis.60 China was the last negotiating party among Arctic Five plus Five to approve the Agreement on May  19, 2021,61 two and half years after signing the Agreement, thus bringing it into force in accordance with article 11(1). This slow process of the approval could largely be attributed to the fact of rising geopolitical tension between the United States and China during the Trump presidency.62 Like protection of the Arctic, resources use in the region requires improved scientif ic knowledge and technology equipment. In particular, the utilisation of Arctic resources remains diff icult without substantial development of infrastructure in the region. That is perhaps why China “hopes to work with all parties to build a ‘Polar Silk Road’ through developing the Arctic shipping routes” as well as encourages development of technology that is “essential to understanding, protecting and utilizing the Arctic.”63 As for the development of Northern Sea Route, Russia, which lacks capital and technology, has welcomed Chinese investments to build necessary infrastructure, such as ports,

55 Liu, “China and One Hundred Years of the Svalbard Treaty,” 4–5. 56 Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean, Oslo, July 16, 2015, www.regjeringen.no/globalassets/departementene/ud/vedlegg/folkerett/declaration-on-arctic-f isheries16-july-2015.pdf. 57 For a comprehensive assessment of the CAOF Agreement, see Valentin Schatz, Alexander Proelss and Nengye Liu, “The 2018 Agreement to Prevent Unregulated High Seas Fishers in the Central Arctic Ocean: A Critical Analysis,” International Journal of Marine and Coastal Law 34, no. 2 (2019): 195–244; E. J. Molenaar, “The CAOF Agreement: Key Issues of International Fisheries Law,” in New Knowledge and Changing Circumstances in the Law of the Sea, ed. Tomas Heider (Leiden: Brill/Nijhoff, 2020), 446–76; R. Rayfuse, “Taming the Wild North? High Seas Fisheries in the Warming Arctic,” in Frontiers in International Environmental Law: Oceans and Climate Challenges Essays in Honour of David Freestone, eds. R. Barnes and R. Long (Leiden: Brill/Nijhoff, 2021), 263–80. 58 Article 2, CAOF Agreement. 59 Article 13, CAOF Agreement. 60 Article 4.2, CAOF Agreement. 61 Xinhua, “Ministry of Foreign Affairs: China Approves Central Arctic Ocean Fisheries Agreement,” May 19, 2021, www. xinhuanet.com/2021-05/19/c_1127466598.htm (in Chinese). 62 Nengye Liu, “China and the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean,” The Diplomat, June 10, 2021. 63 China’s Arctic policy, supra note 12.

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railways and other facilities.64 At the European end of the Polar Silk Road, where Chinese investors have stakes in the plans to construct a new Arctic railway between Kirkenes and Rovaniemi, as well as an under-sea railway tunnel between Helsinki and Tallinn, however, motives and impacts of Chinese investments are increasingly scrutinised.65 In a similar vein, there is growing speculations among the Arctic States about the potential dual use of Chinese Arctic research facilities for military purposes.66

Antarctica There is an extensive and continually evolving regime governing the Antarctic continent and the Southern Ocean – the Antarctic Treaty System (ATS).67 The ATS consists of the Antarctic Treaty68 adopted during the Cold War, as well as related agreements, including the Convention for the Conservation of Antarctic Seals,69 the Convention for Conservation of Antarctic Marine Living Resources (CAMLR Convention)70 and the Protocol on Environmental Protection (Madrid Protocol).71 Over the past six decades, the ATS has successfully set aside territorial claims72 while devoting the Antarctic to peace, science and environmental protection.73 The ATS community has been emphasising the “uniqueness” of Antarctica, which tends to keep Antarctica away from global governance regimes and politics. It is, however, inevitable for the ATS to interact with and respond to globally applicable legal instruments, especially the LOSC, the Convention on Biological Diversity (CBD)74 and the Paris Agreement. Moreover, geopolitical and climate change are posing signif icant challenges to the protection of Antarctica. The International Governmental Panel on Climate Change (IPCC) in 2019 warned, “Polar oceans have continued to warm in recent years, with the Southern Ocean being disproportionately and increasingly important in global ocean heat increase.”75 Furthermore, the meteoric rise of China as a global economic and military superpower76 has signif icantly changed the geopolitical context of the ATS. This

64 Camilla T. Sørensen and Ekaterina Klimenko, “Emerging Chinese– Russian Cooperation in the Arctic Possibilities and Constraints,” SIPRI Policy Paper No. 46 (Stockholm: Stockholm International Peace Research Institute, 2017). 65 Morten Andersen, Henrik Hiim and Ulf Sverdrup, “The Nordic Shift: China’s Uphill Battle for Public Approval in Northern Europe,” European Council on Foreign Relations, March  18, 2020, https://ecfr.eu/article/ commentary_the_nordic_shift_chinas_uphill_battle_for_public_approval_in_nor/. 66 E.g. Off ice of the Under Secretary of Defense for Policy, “Report to Congress Department of Defense Arctic Strategy” (2019), https://media.defense.gov/2019/Jun/06/2002141657/-1/-1/1/2019-DOD-ARCTIC-STRATEGY.PDF. 67 See Shirley Scott, “The Evolving Antarctic Treaty System: Implications of Accommodating Developments in the Law of the Sea,” in The Law of the Sea and the Polar Regions, Interactions between Global and Regional Regimes, eds. Erik Molenaar, Alex Oude Elferink, and Donald Rothwell (Leiden: Brill Nijhoff, 2013), 17–34; see also Marcus Haward, “The Antarctic Treaty System: Challenges, Coordination and Congruity,” in The Emerging Politics of Antarctica, ed. Anne-Marie Brady (Routledge, 2013), 13–28. 68 Adopted December 1, 1959, entered into force June 23, 1961, 402 UNTS 71. 69 Adopted June 1, 1972, entered into force March 11, 1978, 1080 UNTS 175. 70 Adopted May 20, 1980, entered into force April 7, 1981, 1329 UNTS 47. 71 Adopted October 4, 1991, entered into force January 14, 1998 (1991) 30 ILM 1455. 72 Article IV, Antarctic Treaty. 73 Tim Stephens, “An Icy Reception or a Warm Embrace? The Antarctic Treaty System and the International Law of the Sea,” in Handbook on the Politics of Antarctica, eds. Klaus Dodds, Alan D. Hemmings, and Peder Roberts (Cheltenham: Edward Elgar, 2017), 439–52. 74 Adopted June 5, 1992, entered into force December 29, 1993, 1760 UNTS 79. 75 IPCC, Special Report on the Ocean and Cryosphere in a Changing Climate, Chapter 3 Polar Regions, 205. 76 See, for example, Congyan Cai, The Rise of China and International Law (Oxford: Oxford University Press, 2019).

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section examines China’s engagement with the ATS to shed light on where China sees the boundary between protection and use for the future development of the ATS.

Environmental Protection The environment was not necessarily the most important concern when the Antarctic Treaty was negotiated, though the Antarctic Treaty consultative meeting (ATCM) has been making recommendations regarding environmental protection since its f irst meeting. The prospect of exploring Antarctic mineral and oil resources emerged in the 1970s.77 At the same time, commercial f ishing for Antarctic krill by the Soviet Union began.78 Responding to those developments, the ATCPs negotiated the CAMLR Convention and the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA), which was dramatically replaced by the Madrid Protocol. The Madrid Protocol designates Antarctica as a “natural reserve, devoted to peace and science”79 and states that the protection of the Antarctic environment as a wilderness with aesthetic and scientif ic value shall be a “fundamental consideration” of all activities in the Antarctic Treaty area.80 Article 7 of the Madrid Protocol prohibits “any activity relating to mineral resources, other than scientif ic research,” which is widely recognised by the international community as the “mining ban.” Article 11 of the Madrid Protocol creates the Committee for Environmental Protection (CEP) to develop advice and formulate recommendations to the ATCM on implementation of the Protocol.81 Those environmental-centred instruments made environmental protection a core value of the ATS.82 China became a consultative party of the ATCM in 1985, following the establishment of Great Wall Station in King George Island.83 To date, China has in total made 113 submissions to the ATCM/CEP annual meetings. These include 43 submissions since 2012, when President Xi Jinping took off ice.84 In 2005, the Chinese Delegation joined Australian and Russian Federation and submitted a draft Antarctic Specially Managed Area (ASMA) Management Plan for the Larsemann Hills, East Antarctica – an area of approximately 40 km2.85 This ASMA aims to “protect the environment by promoting coordination and cooperation by Parties in the planning and conduct of all human activities in the Area,”86 which is near China’s Zhongshan Station, Russia’s Progress II Station and Australia’s Law Base. This is the f irst time that China has made a proposal to the ATCM, rather than simply reporting its activities or delivering a statement. Ever since, China began proposing ASMA and Antarctic specially protected areas (ASPAs) based on the Annex V of Madrid Protocol (Area Protection and Management). For example, Australia and China jointly proposed an ASPA for Amanda

77 Barney Brewster, Antarctica: Wildness at Risk (Melbourne: Sun Books & Friends of the Earth, 1982), 105. 78 Jame N. Barnes, Let’s Save Antarctica (Richmond: Greenhouse Publications, 1982), 26. 79 Article 2, Madrid Protocol. 80 Article 3, Madrid Protocol. 81 The CEP Handbook is available at the AT website. https://ats.aq/devAS/EP/CEPHandbook. 82 For a detailed history study on the greening of the ATS, see Alessandro Antonello, The Greening of Antarctica (Oxford: Oxford University Press, 2019). 83 Xinhua, “Have a Trip to China’s Antarctic Station,” September  18, 2019, www.xinhuanet.com/english/201909/18/c_138401503.htm 84 See Meeting Documents Archive, Secretariat of the Antarctic Treaty, www.ats.aq/devAS/Meetings/DocDatabase?lang=e. 85 WP027 rev.1, ATCM XXVIII – CEP VIII (2005). 86 Ibid.

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Bay in East Antarctica in 2007.87 China also made its own submission of Draft Management Plan for Mount Harding, Grove Mountains ASPA in East Antarctic in 2007.88 China established its third Antarctic station (Kunlun) in Dome Argus (Dome A) – the highest point of the Antarctic ice sheet on January 27, 2009.89 The Kunlun Station is of strategic importance for China’s Antarctic activities, given it is one of the best places on earth for deep ice-core drilling and astronomy research.90 In 2013, China alone submitted the proposal for a new ASMA at Kunlun Station, Dome A.91 It is argued by Chinese delegation that special scientif ic and environmental values of the Dome A needs to be protected. Moreover, Kunlun Station presents great logistical value as an important junction point connecting Dome F, Vostok Station, Dome C, Zhongshan Station, Davis Station and Amundsen-Scott South Pole Station, and could act as an important logistics supporting site and provide key support for all kinds of scientif ic activities by China and other countries.92 The proposed area of Dome A  ASMA covers approximately 19,764  km², encompassing the Kunlun Station and long-term research and monitoring sites to manage human activities in the region.93 China’s Dome A ASMA proposal has never gained any support from other consultative parties of the ATCM. According to Article 4 of Annex V, Madrid Protocol, [a]ny Area, including any marine area, where activities are being conducted or may in the future be conducted, may be designated as an Antarctic Specially Managed Area to assist in the planning and coordination of activities, avoid possible conflicts, improve co-operation between Parties or minimize environmental impacts. There are very limited activities being conducted by other consultative parties in the Dome A area so far.94 It is therefore diff icult for China to convince the ATCM that an ASMA could assist in the coordination of activities and improve co-operation between parties. Nevertheless, it seems that China believes that an ASMA could be established based on the interpretation of Article 4 as to “minimize environmental impacts.” Since 2013, China has been leading the informal discussions for

87 WP009, Draft Antarctic Specially Protected Area (ASPA) Management Plan for Amanda Bay, Ingrid Chirstensen Coast, Princess Elizabeth Land, East Antarctica, ATCM XXX – CEPX (2007). 88 WP032 rev.1, Draft Management Plan for the Antarctic Special Protected Area Mount Harding, Grove Mountains, East Antarctica, ATCM XXX – CEP X (2007). 89 IP039, Brief Report on the construction of Kunlun Station on Dome A in the Antarctic, ATCM XXXII – CEP XII (2009). 90 Xinhua, “Astronomers Conf irm China’s Kunlun Station as Superior Observatory Site,” July 31, 2020, www.xinhuanet. com/english/2020-07/31/c_139254942.htm 91 WP008, Proposal for a New Antarctic Specially Managed Area at Chinese Antarctic Kunlun Station, Dome A, ATCM XXXVI – CEP XVI (2013). 92 Ibid. 93 Attachment of WP008, CEP ASMA XXX Chinese Antarctic Kunlun Station Dome A Management Plan, submitted April 4, 2013. 94 There is an automatic weather station at Dome A, which was set up as part of Australian-Chinese collaboration in January 2005. According to Australian Antarctic Division, no ground-based scientif ic investigation had been made at this site before the arrival of the Chinese over-snow traverse team. See www.antarctica.gov.au/antarctic-operations/stations/ other-locations/dome-a/

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the inter-sessional period regarding its Dome A ASMA proposal. The United States, Australia, the United Kingdom, France, Argentina, Norway, New Zealand and Germany participated in the f irst two rounds of informal discussions by the February 2014,95 while only Argentina attended discussions in 2015.96 In 2016, France, the United Kingdom, the United States, Germany, Norway and Australia reiterated similar views, when China shifted its argument to emphasise the importance of a Dome A ASMA for the coordination of future activities.97 China f inally gave up its ASMA proposal in 2017. Instead, a Code of Conduct (COC) for the Protection and Management of Dome A was suggested by the Chinese delegation as “the f irst possible management option according to the particular and specif ic conditions of Dome A area.”98 The COC was still not supported by any other consultative party. The United States, Australia, Germany and Norway participated in the inter-sessional informal discussion in 2018, which was concluded for China to only manage its own activities in the vicinity of Kunlun Station.99 In the latest inter-sessional meeting, which was held in early 2019 before the COVID-19 outbreak, China’s COC proposal seems to hit a dead end without achieving consensus to be endorsed by the CEP.100 The ATCM is mandated to act on the environmental impact caused by the research and logistical operation with the advice from the CEP. The general success of the ATS so far could be partly derived from the lack of immediate economic value of the Antarctic continent. However, privatesector-based tourism is one of the few immediate economic activities. The industry-based, selfregulatory regime of the Antarctic tourism has been robust, though increasing numbers of tourists and operators101 could weaken the institutional structure.102 Antarctic tourism experienced steady growth until the outbreak of COVID-19. The industry is mostly regulated by the International Association of Antarctica Tour Operators (IAATO). The ATCM has been long aware of the lack of regulation and had continued discussions. Nevertheless, guidelines and recommendations rather than concrete collective actions have been in place. Before the COVID-19 pandemic, China has become the second largest source country for tourism in Antarctica, only after the United States.103 In 2018, China’s State Oceanic Administration (now part of the Ministry of Natural Resources) enacted the Environmental Protection Administration Rules on Antarctic Activities.104 The Environmental Protection Regulation is a domestic

 95 WP015, Report of the Informal Discussions on the Proposal for a New Antarctic Specially Managed Area at Chinese Antarctic Kunlun Station, Dome A, ATCM XXXVII – CEP XVII (2014).  96 WP048, Report of the Informal Discussions for Another Intersessional Period on the Proposal for a New Antarctic Specially Managed Area at Chinese Antarctic Kunlun Station, Dome A, ATCM XXXVIII – CEP XVIII (2015).  97 WP029, Report of the 2015/2016 Intersessional Discussions on the Proposal for a New Antarctic Specially Managed Area at Chinese Antarctic Kunlun Station, Dome A and the Follow-up Work, ATCM XXXIX – CEP XIX (2016).  98 WP035, Report of the Informal Discussion for the Intersessional Period of 2016/17 on the Proposal for a New Antarctic Specially Managed Area at Chinese Antarctic Kunlun Station, Dome A, ATCM XL – CEP XX (2017).  99 WP014, Report of the Informal Discussion for the Intersessional Period of 2017/18 on the Draft Code of Conduct for the Exploration and Research in Dome A Area in Antarctica, ATCM XLI – CEP XXI (2018). 100 WP045, Report of the Informal Discussion for the Intersessional Period of 2018/2019 on the Revised Draft Code of Conduct for Protection of Dome A Area in Antarctica, ATCM XLII – CEP XXII (2019). 101 IP110, IAATO Overview of Antarctic Tourism: A Historical Review of Growth, the 2020–21 Season, and Preliminary Estimates for 2021–22, ATCM XLIII – CEP XXIII (2021). 102 Daniela Haase, Machiel Lamers and Bas Amelung, “Heading into Uncharted Territory? Exploring the Institutional Robustness of Self-regulation in the Antarctic Tourism Sector,” Journal of Sustainable Tourism 174 (2009): 411–30. 103 IP110, supra note 101. 104 China Daily, “Regulation to Protect Antarctic,” February 10, 2018, http://english.www.gov.cn/state_council/ministries/ 2018/02/10/content_281476042416080.htm. For the full text of the legislation in Chinese, see State Council of P. R. China, Bulletin No. 19, February 8, 2018, www.gov.cn/gongbao/content/2018/content_5303457.htm

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legislation that applies to almost all Chinese Antarctic activities, such as scientif ic expedition, tourism, sport, education, f isheries and transportation.105 It is now a legal obligation for Chinese citizens and companies to take all necessary measures in order to minimise environmental impact of their activities in Antarctica.106 In particular, six types of activities are prohibited, including (1) bringing or disposing radioactive waste and other toxic, hazardous materials or potential pollutants or bringing invasive species (animals, plants and microorganism) to Antarctica; (2) collecting and taking meteorite, rock, soil and fossil out of Antarctica; (3) hunting or obtaining a part of or a whole specimen of Antarctic mammals, birds, invertebrates or plants and other activities that may cause harm to Antarctic animals and plants; (4) entering into an Antarctic specially protected area or other restricted areas for security and environmental protection concerns without a permit; (5) building artif icial structure; and (6) other activities that may cause harm to Antarctic environment and ecosystem.107

Resources Use When it comes to resources use of Antarctica, the Southern Ocean is a rich ground to examine China’s practice. China has made it clear in the 13th Five-Year (2016–2020) Plan for the Development of the National Distant Water Fishing Industry that it aims to “deeply involve in CCAMLR affairs, actively and steadily exploit Antarctic marine living resources, and enhance its capacity to implement relevant treaties.”108 The CAMLR Convention is the most relevant regime for the management of the Southern Ocean. As mentioned earlier, it was negotiated as a response to the increasing interest in krill f ishing in the Southern Ocean in the 1970s.109 By consensus,110 CCAMLR, CAMLR Convention’s management arm, makes legally binding conservation measures to manage f isheries in the Southern Ocean. The main f isheries in CCAMLR waters target Patagonian toothf ish, Antarctic toothf ish, mackerel icef ish and Antarctic krill.111 Currently, China has a particular interest in krill f ishing in CCAMLR waters. In 2020, China caught almost 120,000 tons of krill, which is a signif icant increase from 2018 (41,000 tons) and 2019 (50,000 tons).112 Article II of the CAMLR Convention def ines its objective as “the conservation of Antarctic marine living resources.”113 It further clarif ies that “the term ‘conservation’ includes rational use.”114 Paragraph 3 of Article II lists three principles of conservation: (1) at the single species level, the harvest shall not damage the stock’s ability of stable recruitment; (2) at the ecosystem level, maintain the ecological relationships between harvested, dependent, and related populations; (3) at the time scale

105 Article 3, para. 2, Environmental Protection Administration Rules on Antarctic Activities. 106 Article 5, Environmental Protection Administration Rules on Antarctic Activities. 107 Article 7, Environmental Protection Administration Rules on Antarctic Activities. 108 China Ministry of Agriculture and Rural Affairs, “13th Five-Year Pan for the Development of National Distant Water Fishing Industry,” 2017, www.moa.gov.cn/gk/ghjh_1/201712/t20171227_6128624.htm (in Chinese). 109 Preamble of CAMLR Convention:” Noting the concentration of marine living resources found in Antarctic waters and the increased interest in the possibilities offered by the utilisation of these resources as a source of protein.” For a comprehensive study of the history of CCAMLR, see, for example, Stephen Nicole, The Curious Life of Krill: A Conservation Story from the Bottom of the World (Washington, DC: Island Press, 2018). 110 Article XII (1), CAMLR Convention. 111 Fisheries, “CCAMLR,” www.ccamlr.org/en/f isheries/f isheries. 112 David Adam, “Krill: The Tiny Creature with a Huge Ocean Footprint,” China Dialogue, August 25, 2021, https:// chinadialogueocean.net/18351-krill-tiny-creature-huge-ocean-footprint/. 113 Article II (1), CAMLR Convention. 114 Article II (2), CAMLR Convention.

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of over two or three decades, based on available knowledge, prevent changes or minimise the risk of changes in the marine ecosystem which are not potentially reversible. Principle 2 demonstrates the ecosystem approach of CCAMLR’s f isheries management, while principle 3 marks CCAMLR’s precautionary approach. However, CCAMLR members’ understanding of Article II varies.115 Such differences have led to serious debate in CCAMLR annual meetings, especially during the negotiations of the establishment of Southern Ocean MPAs.116 CCAMLR began developing its work on MPAs since the 2002 World Summit on Sustainable Development (WSSD) that reflect on the commitment of the international community to work towards the establishment of a representative network of MPAs by 2012.117 Until 2020, CCAMLR had received f ive MPAs proposals and adopted only two of them.118 Three MPA proposals (East Antarctic, Weddell Sea and Antarctic peninsula) are still pending mainly due to concerns expressed by China and Russia.119 Although the Conservation Measure 91–04 (2011) “General framework for the establishment of CCAMLR Marine Protected Areas” was successfully agreed with aim to streamline the process, yet only one MPA (Ross Sea region MPA) has been agreed since its adoption. One debate about Article II is related to the interpretation of the text “conservation including rational use.” During CCAMLR’s recent discussions on the establishment of Southern Ocean MPAs, China argued that Article II provides an “adequate balance between preservation and rational use” and “the Contracting Parties enjoy the right to conducting harvesting activities within the Convention area.”120 This interpretation differs from that of several other CCAMLR member States. They believe that CCAMLR is a conservation body rather than a regional f isheries management organisation (RFMO) and that while “rational use is a permitted activity under Articles of the CAMLR Convention, [it is] not an equal or competing purpose against conservation.”121 In essence, China believes that there is no need to establish new MPAs in CCAMLR waters, given lack of threat and strong management measures already exist. Moreover, according to China’s 2021 submission to CCAMLR – “Revisiting the establishment of MPAs in the Southern Ocean,”122 MPAs are only one of conservation tools rather than the only one to achieve conservation goals of CCAMLR.123 Another debate relating to Article II is about the application of the precautionary approach in case of insuff iciency of the scientif ic evidence. Article II 3 (c) requires CCAMLR to make decisions

115 CCAMLR XXXIII, Report of the Thirty-Third Meeting of the Commission (2014), Para.7.52. 116 Jennifer Jacquet, Eli Blood-Patterson, Cassandra Brooks and David Ainley, “ ‘Rational Use’ in Antarctic Waters,” Marine Policy 63 (2016): 28–34. 117 World Summit on Sustainable Development (WSSD) Plan of Implementation paragraph 32 (c). 118 CCAMLR Conservation Measure 91–03 (2009) Protection of the South Orkney Islands southern shelf; Conservation Measure 91–05 (2016) Ross Sea region marine protected area. 119 Fermin Koop, “Nations Fail to Agree on Expanding Protection of Antarctic Waters,” China Dialogue, November 19, 2020, https://chinadialogueocean.net/15754-nations-fail-to-agree-on-expanding-protection-southern-ocean/. 120 CCAMLR XXXIII, Report of the Thirty-Third Meeting of the Commission (2014), Para. 7.69. 121 Anthony J. Press, Indi Hodgson-Johnston and Andrew J. Constable, “The Principles of the Convention on the Conservation of Antarctic Marine Living Resources: Why Its Commission Is Not a Regional Fisheries Management Organisation,” in Governing Marine Living Resources in the Polar Regions, eds. Nengye Liu, Cassandra M. Brooks, and Tianbao Qin (Cheltenham: Edward Elgar, 2019), 28. See, for example, New Zealand Delegation in CCAMLR 2014 Annual Meeting: “More fundamentally, it is worth recalling that the objective of CCAMLR under Article II is to achieve conservation of Antarctic marine living resources, which includes rational use. It does not read that conservation ‘is’ rational use. Accordingly, the primary objective of CCAMLR is not about preserving existing f ishing effort.” CCAMLR Report of the Thirty-Third Meeting of the Commission, November 2014, 53. 122 CCAMLR-40/26, September 3, 2021. 123 Ibid., 4.

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on risk management based on best available information. China believes that triggering the precautionary approach needs clearly def ined threats.124 Since the entry into force of Ross Sea region MPA in 2017, China has been vocal about the need for having a solid research and monitoring plan (RMP) as a prerequisite to establish any new MPA. The Chinese delegation submitted two working papers to CCAMLR in 2018125 and 2019.126 In China’s opinion, a solid MPA proposal should include a substantial RMP, which provides baseline data, SMART (specif ic, measurable, achievable, relevant/realistic and time-bound) management objectives, indicators and their parameters, decision triggers, and an interim research and monitoring arrangement in case of a vacuum. The Chinese delegation made another submission to CCAMLR in 2021, namely, “Implementation of Article II of the Convention on the Conservation of Antarctic Marine Living Resources: Continuity and Adaption.”127 It is reaff irmed by China that “in the case of lack of suff icient scientif ic data, the precautionary approach should prioritize scientif ic data collection,”128 while “one of most effective ways of obtaining information about a harvested resources is from f ishery.”129 Some States have expressed concerns and frustration that the requirement for indicator and base information for conservation may be higher than those for f isheries development.130 More fundamentally, China’s RMP proposals are shaking the application of the precautionary principle as a legal basis for setting up MPAs in CCAMLR waters.131

Conclusion During the 40th ATCM in Beijing, the Special Meeting “Our Antarctica: Protection and Utilisation” was initiated by China as the host country. H.E. Mr Zhang Yesui, then China’s vice minister of foreign affairs, delivered a keynote speech, which elaborated China’s view on the relationship between protection and utilisation of Antarctica in three aspects: 1. enhanced protection is the prerequisite for peaceful utilisation of Antarctica; 2. rational utilisation is a natural part of harnessing the value of the Antarctica; and 3. a balanced approach should be the basic idea of the international governance of the Antarctica.132 This statement reflects President Xi Jinping’s speech in Hobart, Australia, in 2014 about the guiding principles of China’s polar activities – “Understand, Protect and Use.”133 From the close analysis of China’s engagement with international polar law and policy, it is fair to say that China is willing to follow the existing governance regimes in the poles, which no doubt prioritise environmental

124 CCAMLR XXXIII, Report of the Thirty-Third Meeting of the Commission (2014), para. 7.69. 125 CCAMLR-XXXVII/32, The Development of Research and Monitoring Plan for CCAMLR MPAs, 2018. 126 SC-CAMLR-38/14, The Development of Research and Monitoring Plan for CCAMLR MPAs, 2019. 127 CCAMLR-40/25, September 3, 2021. 128 Ibid., 2. 129 Ibid., 2. 130 CCAMLR XXXVIII, Report of the Thirty-Eight Meeting of the Commission (2019), para. 6.51. 131 Nengye Liu, “The Rise of China and Conservation of Marine Living Resources in the Polar Regions,” Marine Policy 121 (2020): 4, 104181. 132 IP175, rev. 2, Chair’s Summary of the Special Meeting, “Our Antarctica: Protection and Utilisation,” ATCM XL – CEP XX (2017). 133 China Ministry of Foreign Affairs, “Xi Jinping Visits Chinese and Australian Antarctic Scientif ic Researchers and Inspects Chinese Research Vessel ‘Snow Dragon,’ ” November 18, 2014, www.fmprc.gov.cn/mfa_eng/topics_665678/ xjpzxcxesgjtldrdjcfhdadlyxxlfjjxgsfwbttpyjjdgldrhw/t1212943.shtml.

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protection. In the meantime, it has become obvious that China is assertive about rational utilisation of natural resources in recent years. However, China shows no intention to take any proactive approach or initiative regarding the protection of the polar regions. Moreover, China’s narrative about “balance between protection and use” is not consistent on various occasions. For example, in the forum of ATCM/CEP, China is potentially pushing the application of precautionary approach to justify its proposal to establish a Code of Conduct (and potentially an ASMA) in the Dome A, so as to coordinate future activities. On the contrary, the Chinese delegation is trying to shift the discussions of the meaning of precautionary approach in CCAMLR to oppose the establishment of new MPAs. As a general rule, State interpretation of precautionary approach under international law cannot be contradictory to each other across different forums. By doing so, it might be more diff icult for China to convince other parties, especially Arctic States and Antarctic claimants, about its views. In 2018, the 13th Standing Committee of National People’s Congress (2018–23) announced that during its term China is going to adopt the Antarctic Activities and Environmental Protection Law.134 The National People’s Congress reaff irmed the drafting plan in 2021.135 Moreover, as argued by Liu in 2020, The 2018 Arctic Policy has done its job to justify China’s interests in the Arctic. Nevertheless, China now needs a new policy to elaborate its vision for the future governance of the Arctic (Arctic Policy 2.0) – a vision that is not narrowly about China’s national interests, but truly about how China would contribute to build a better future of the Arctic.136 Therefore, in the near future, these two major developments – Antarctic Law and Arctic Policy 2.0 – carry a great opportunity for China to shed further light on demarcated boundary between protection and use. A consistent and clear narrative about China’s activities in the polar regions will be of great importance for China’s future role in the poles.

134 The National People’s Congress of the PRC, Legislative Plan for the 13th Standing Committee of the National People’s Congress, Category I (legislation to be adopted in the term): Antarctic Activities and Environmental Protection Law (to be drafted by Sub-Committee of Environmental Protection and Resources Conservation), www.npc.gov.cn/npc/ c30834/201809/f9bff485a57f498e8d5e22e0b56740f6.shtml (in Chinese). 135 The National People’s Congress of the PRC, April 21, 2021, Legislative Plan for 2021, www.npc.gov.cn/npc/c30834/ 202104/1968af4c85c246069ef3e8ab36f58d0c.shtml (in Chinese). 136 Nengye Liu, “Why China Needs an Arctic Policy 2.0,” The Diplomat, October 22, 2020.

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PART III

Private Governance in the Polar Legal System

SECTION A

Natural Resources

31 MINERAL EXPLOITATION LICENCES IN GREENLAND The Modif ication Issue Rasmus Grønved Nielsen and Vibe Ulfbeck

Introduction “It is a key factor in the development of the mineral resources industry that we are able to attract businesses interested in exploring and subsequently mining the subsoil mineral resources available in Greenland. In other words, it is important to maintain focus on creating attractive and stable framework conditions for the investors who build and develop the mineral resources industry in Greenland.” With these words begins Greenland’s Mineral Strategy 2020–24.1 Since 2009, the Greenland Self-Government has had the regulatory and executive competences in regard to natural resources.2 With its abundant and versatile deposits of rare and coveted mineral resources, this area is of paramount importance to this vast and densely populated polar region. Mineral resources are predicted to be a cornerstone of Greenland’s economic development. However, mineral resource activities are carried out in a complex and turbulent legal and political environment that involves, inter alia, care for the environmental and social impact, great power politics, and tensions between the Greenland Self-Government and Denmark. In turn, mineral resources were one of the focal points of the political campaigns before the election to the Greenland Parliament (Inatsisartut) on April 6, 2021. Against this background, this contribution analyses the regulation of large-scale commercial mineral exploitation licences (excluding hydrocarbons) and the legal relationship between the public authorities – i.e. primarily the government of Greenland (Naalakkersuisut) and the Mineral Resources Authority (MRA) – and the licensees. The contribution does neither address exploration licenses nor the transition from exploration license to exploitation license. As indicated by the subtitle, the main errand is to assess the extent to which the exploitation licences are subject to modif ications. The analysis takes its point of departure in the Greenlandic law and mainly the

1 “Greenland’s Mineral Strategy 2020–2024,” February 2020, Ministry of Mineral Resources, p. 6. The strategy is available at www.govmin.gl/publications/greenlands-mineral-strategy-2020-2024, accessed October 28, 2022. 2 See the annexed list II, no. 26, of the Danish Act on Greenland’s Self-Government (Act no. 473 of June 12, 2009, on Greenland’s Self-Government).

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Mineral Resources Act and the specif ic licences, but these are supplemented with Danish legal sources, especially Danish case law.3 First, the regulatory framework for granting mineral licenses is presented. Then, the legal nature of the licenses and their relation to the private/public law divide are discussed. This leads to the central aspiration of this contribution: to examine the circumstances under which the public authorities may unilaterally modify the terms and conditions of the licences and consider how the position of the licensees is safeguarded in a legal environment void of international investment protection. Afterwards, the specif ic issue of Danish intervention is presented. Finally, the main results are summarised, and it is assessed whether the legal state of affairs create “attractive and stable framework conditions” as aspired by the mineral strategy.

Granting Mineral Licences – the Regulatory Framework Since January 1, 2010, the mineral (natural) resources on the territory of Greenland has been regulated in the Greenland Mineral Resources Act.4 In regard to the licencing system, the act follows the basic structure of its Danish counterparts which, in turn, are influenced by the Norwegian and English approaches.5 The purpose of the following is to summarise the regulatory framework for the natural resource licences with special regards to the provisions on granting mineral licences.6 The Mineral Resources Act “aims to ensure appropriate exploitation of mineral resources and use of the subsoil for storage or purposes relating to mineral resource activities as well as regulation of matters of importance to mineral resource activities and subsoil activities.”7 It is crucial to understand that it is a so-called “framework act” in the sense that it lays down the most fundamental norms and leaves a considerable amount of specif ic issues to the discretion of Naalakkersuisut.8 The MRA is the competent administrative agency under the act. Although its tasks are allocated to the Mineral Licence and Safety Authority and the Environmental Agency for Mineral Resource Activities, respectively, all matters related to mineral resources and activities covered by the act must be “considered a single, integral whole” by the MRA (“one-stop shop”).9

3 On the position of Danish law in Greenland, see Jeppe Wedel Nielsen, “Dansk rets udfyldende karakter i Grønland,” Ugeskrift for Retsvæsen, Section B (2011): 210. 4 Cf. Section 98(1) of the Inatsisartut’s Act no. December 7, 2009, on mineral resources and mineral resource activities as subsequently amended. An unoff icial English translation of a consolidated version of the act is available at www. govmin.gl/exploration-prospecting/get-an-exploration-licence/mineral-resources-act, accessed November  13, 2022. The off icial, legally binding version can be found at www.lovgivning.gl, accessed November 13, 2022.   Earlier, the area was regulated by the Danish Act on mineral resources in Greenland (consolidated act no. 368 of June 18, 1998). The historical background is outlined in the travaux préparatoires to the Greenland Mineral Resources Act (proposal of November 1, 2009, general comments, section 1.1). 5 See the Danish Subsoil Act (consolidated act no. 1533 of December 16, 2019), which regulates hydrocarbon licenses, and the Danish Mineral Resources Act (consolidated act no. 124 of January 6, 2017), which regulates licenses to other natural resources. The influence is mentioned in the travaux préparatoires to the former, cf. the Danish Parliamentary Gazette (“Folketingstidende”), 1980–81, Annex A, p. 4477. The travaux préparatoires to the Greenland Mineral Resources Act refer extensively to the provisions of the Danish Subsoil Act. 6 For a more extensive commentary, see Bo Sandroos, The Greenland Mineral Resources Act – The Law and Practice of Oil, Gas and Mining in Greenland (Copenhagen: Djøf Publishing, 2005), containing a translation of the Act and its travaux préparatoires. See also review by Peter Pagh, Ugeskrift for Retsvæsen, Section B (2015): 434. 7 Section 1(1) of the Mineral Resources Act. 8 This is reflected in the travaux préparatoires (proposal of November 1, 2009, general comments, section 2.1). 9 Section 3(2) of the Mineral Resources Act. The travaux préparatoires call it a “holistic case administration” (our translation from Danish), cf. proposal of November 1, 2009, comments to Section 3(2).

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The act applies to prospecting, exploration, and exploitation of mineral resources as well as other activities related thereto on the territorial land and the territorial sea, in the continental shelf area and the exclusive economic zone off Greenland.10 “Mineral resources” are def ined in a following section as hydrocarbons and minerals.11 “Minerals” are negatively labelled as all mineral resources other than hydrocarbons (i.e. oil and natural gas).12 Naalakkersuisut may grant prospecting licences regarding mineral resources, mineral resource activities, use of the subsoil for storage or purposes relating to mineral resource activities or related activities.13 Part 5 of the act contains the common provisions concerning exploration and exploitation of mineral resources which are supplemented by specif ic provisions on hydrocarbons in Part 6 and minerals in Part 7. The provisions of Part 8 regulate so-called small-scale exploration and exploitation of minerals which are reserved for natural persons who meet certain prescribed requirements and Greenlandic museums.14 Special provisions for granting subsoil licences – licences for use of the subsoil for storage or purposes relating to prospecting, exploration, or exploitation of mineral resources – are located in Part 9. Pursuant to the provisions of Part 11, permanent residents of Greenland may collect and extract loose minerals without licences for non-commercial purposes. The small-scale licences and unlicensed collection and extraction do not extend to radioactive minerals.15 Scientif ic surveys related to the activities covered by the act may be carried out in accordance with licences granted by Naalakkersuisut.16 To be precise, this contribution focuses on large-scale commercial mineral exploitation licences, i.e. primarily the provisions in Part 5 and 7 of the act. The process of granting such licence – which is normally subsequent to a prospecting licence and/or an exploration licence – consists of the following steps:17 1. A terms of reference for the environmental impact assessment (EIA) and the social impact assessment (SIA) is submitted to the Mineral Resources Authority (MRA). 2. The terms of reference for the EIA and the SIA is published on Naalakkersuisut’s portal for public consultations for 35 days (“pre-consultation”). If relevant, the applicant must address all comments in a white paper and revise and resubmit a f inal terms of reference. 3. A draft EIA and SIA is submitted to the MRA. 4. The draft EIA and SIA is then published on Naalakkersuisut’s portal for public consultations for a minimum of eight weeks. Moreover, public hearings are held in relevant towns and settlements. If relevant, the applicant must address all comments in a white paper and revise the EIA and SIA. The f inal EIA and SIA must be submitted to the MRA.

10 Sections 9 and 10 of the Mineral Resources Act. 11 Section 5(1) of the Mineral Resources Act. 12 Section 5(2) and (5) of the Mineral Resources Act. 13 Section 15 of the Mineral Resources Act. 14 See Section 32 of the Mineral Resources Act. 15 Sections 33(2) and 45c. (1) of the Mineral Resources Act. 16 Section 49 of the Mineral Resources Act. Pursuant to Section 2(3) and (4), this does not apply to surveys carried out by the Greenland Self-Government and the Geological Surveys of Denmark and Greenland (GEUS) and the Danish Centre for Environment and Energy (DCE). 17 See www.govmin.gl/exploitation/get-an-exploitation-licence/how-to-get-an-exploitation-licence, accessed November 13, 2022. The public hearings take place at www.naalakkersuisut.gl//en/Hearings, accessed November 13, 2022.

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5. The applicant negotiates the impact benef it agreement (IBA) with Naalakkersuisut and the relevant local authorities (municipalities). 6. Finally, the MRA drafts the mineral exploitation license which is then signed by the parties. Whereas the EIA and SIA are examined elsewhere in this book, this contribution focuses on the licence per se and to a lesser extent the IBA as the foundation of the legal relationship between the licensee and the public authorities.18 According to the central provision in Section 16(1), Naalakkersuisut “may for a specif ic area and on specif ic terms grant an exclusive licence for exploration and exploitation of one or more mineral resources.” Section 16(3) stipulates some fundamental requirements to the exploitation licensee: the licensee must be a public limited liability company (aktieselskab); as a main rule, it must have its registered off ice in Greenland; the company must not be jointly taxed with other companies, unless it is compulsory; it must not be more thinly capitalised than the group of which it forms part, but the company’s loan capital may always exceed the shareholders’ equity up to a ratio of 2:1; it must trade at arm’s length; and the licensee must have the expertise and f inancial background required for the exploitation activities in question.19 The requirements must be met for the full duration of the licence.20 The MRA may claim payment of a fee upon granting a licence,21 whereas the Self-Government’s recurrent remuneration must be stipulated in the licence. The terms may include obligations to pay an annual fee calculated on the basis of the size of the area covered by the licence (area fee), as well as a fee calculated on the basis of the mineral resources extracted (royalty) or a fee calculated as a share of the prof its from the activities under the licence (prof its fee).22 Moreover, a licence may prescribe that a company controlled by the Self-Government is entitled to participate in the activities covered by the licence (State participation).23 If several entities, including the Self-Government, hold shares in the licence, their relationship is normally regulated in a separate joint operating agreement (JOA).24 Fees may also be due in relation to the establishment and operation of power facilities.25

18 For an analysis of the IBA, see Chapter 32 of this volume and Lone W. Mouyal, “Corporate Social Responsibility in the Light of Contract Law: On Impact Benef it Agreements in Greenland,” in Responsibilities and Liabilities for Commercial Activity in the Arctic. The Example of Greenland, eds. Vibe Ulfbeck, Anders Møllmann and Bent O. G. Mortensen (London: Routledge, 2018), 50–71. 19 The travaux préparatoires link this to the principle of proportionality: “The expertise and f inancial capabilities required depend, inter alia, on the extent, complexity, and risks of the activities in question” (our translation from Danish), cf. proposal of November 1, 2009, comments to Section 16(3). 20 Section 16(4) of the Mineral Resources Act. 21 Section  16(7) of the Mineral Resources Act. The fee is composed of a basic amount of DKK 100,000 plus reimbursement of the expenses related to the actual case administration, cf. proposal of November 1, 2009, comments to Section 16(7) and “Application Procedures and Standard Terms for Mineral Exploration and Prospecting Licenses in Greenland,” June 25, 2013, Section 7.2 (unoff icial translation). 22 Section 17(1) of the Mineral Resources Act. 23 Section 17(2) of the Mineral Resources Act. Pursuant to Section 30(1), such terms must be stipulated already in the exploration license. Since 1984, the shares of hydrocarbon licenses have been vested in the state-owned company Nunaoil A/S (see the Greenland Parliament Act no. 15 of December 7, 2009, on Nunaoil A/S). 24 This type of agreement is analysed in the context of Norwegian law in Knut Kaasen, “Statsdeltagelsesavtalen i norsk petroleumsvirksomhet,” Tidsskrift for Rettsvitenskap, no. 4 (1984): 372, and more generally Christopher Mathews and Eduardo G. Pereira, “Joint Operating Agreements,” MarIus, no. 486 (2017): 71 (including further references). 25 Section 20(3) of the Mineral Resources Act. Likewise, according to Section 30(1), such terms must be stipulated already in the exploration license. Otherwise, the government’s remuneration is limited to taxation.

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On the other hand, the licensee may be granted a tax exemption if the fees are at least as onerous as the taxation would have been.26 The fact that Greenland – unlike Denmark – is not a member of the European Union is clearly reflected in the legislative obligation to include terms about the use of Greenlandic labour force and Greenlandic enterprises for contracts, supplies and services.27 Depending on the circumstances, the construction contracts may be subject to procurement procedures.28 Moreover, the licence may include terms outlining the extent to which the licensee must process, keep and sell the minerals in Greenland.29 In addition to these protectionist elements, the licence may oblige the licensee to conduct surveys and prepare and implement plans to ensure that the exploitation activities are socially sustainable. The impact benef it agreement (IBA) forms an integral part of the licence. This is reflected in the obligation to incorporate terms “on the extent to which a licensee must enter into and comply with a social sustainability agreement and other socio-economic issues,” such as “on the education or training of Greenlandic manpower.”30 Before initiating the exploitation activities, the licensee must submit an exploitation plan for approval by the MRA.31 In connection with its approval, the Authority may lay down provisions related to the establishment and operation of power facilities (power licence) and pipelines (pipeline licence).32 In practice, these aspects are normally included in the exploitation licence. However, new plans and approvals may be relevant several times in the course of the licence period. Mineral exploitation licences are granted for areas with commercially exploitable deposits for periods of 30 years or shorter.33 The MRA may approve an extension of the period up to 50 years in total.34 However, the licence may stipulate time limits related to specif ic milestones of the exploitation activities that may trigger revocation.35 Finally, Naalakkersuisut (the MRA) is granted a broad legislative mandate to “lay down specif ic provisions on minerals, including on exploration, exploitation, processing, storage, depositing, transport, trading, export, import, and certif ication of minerals.”36 Particularly, this comprises provisions to the effect that certain minerals may only be processed and traded according to a licence or approval.37 In effect, this means that the MRA has a

26 Section 17(3) of the Mineral Resources Act. 27 Section 18(1) and (2) of the Mineral Resources Act. The relationships to the European Union and the World Trade Organisation (WTO) are addressed in the travaux préparatoires, cf. proposal of November 1, 2009, comments to Section 18(1)(3). On the protection of Greenland workers, see Bent O. G. Mortensen, Jingjing Su, and Vibe Ulfbeck, “Workers’ Rights and Chain Liability,” in Responsibilities and Liabilities for Commercial Activity in the Arctic. The Example of Greenland, eds. Vibe Ulfbcck, Anders Møllmann and Bent O. G. Mortensen (London: Routledge, 2018), 72–82. 28 Cf. the Greenland Parliament Act no. 11 of December 2, 2009, on Procurement within the Construction Sector. See Thomas Trier Hansen, “Nye regler for offentlige udbud i Grønland,” Juristen, no. 8 (2010): 233. Moreover, procurement procedures are often laid down in the IBAs, e.g. Article 12 and Appendix 4 of the IBA to Steensby Land Licence (cf. Section “Licence terms and parallel regulation” infra). 29 Section  18(3)-(5) of the Mineral Resources Act. The transitional provision related thereto is mentioned in Section “Intertemporal legislation,” infra. 30 Section 78 of the Mineral Resources Act. Also, this is clearly reflected in the publicly available licences. 31 Section 19 of the Mineral Resources Act. 32 Sections 20 and 21 of the Mineral Resources Act. 33 Section 30(2) of the Mineral Resources Act. 34 Section 30(2), in f ine, read in conjunction with Section 16(5) of the Mineral Resources Act. 35 Section 29(2) of the Mineral Resources Act. 36 Section 31(1) of the Mineral Resources Act. In line with the protectionist tendencies elsewhere in the act, the underlying rationale is to make sure that the mineral activities benef it Greenland and Greenlanders, cf. proposal of November 1, 2009, comments to Section 31(1). 37 Section 31(2) of the Mineral Resources Act.

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signif icant executive discretion which, in turn, leaves a signif icant room for the parties during the negotiation of the specif ic terms of the mineral licences.

The Hybrid Legal Nature of Mineral Licences (Concessions) As mentioned, this contribution focuses on large-scale commercial mineral exploitation licences. According to the MRA’s website, there are seven licences (including IBAs) that fall within the ambit of this def inition:

Project (Location)

Licence No.

IBA No.

Mineral

Licensee

Nalunaq Isua Aappaluttoq Qaqortorsuaq (White Mountain) Citronen Fjord Killavaat Alannguat Steensby Land

2003–05 2013–31* 2014–21 2015–39*

N/A N/A 2014–01* 2015–01*

Gold Iron Ruby Anorthosite

Nalunaq A/S London Mining Greenland A/S Greenland Ruby A/S Hudson Greenland A/S

2016–30* 2020–54* 2021–08*

2016–01* 2020–54* 2021–08*

Lead and zinc Eudialyte, REE Heavy minerals

Ironbank A/S Tanbreez Mining Greenland A/S Dundas Titanium A/S

*

Publicly available online.38

Historically, the legal nature of mineral licences (concessions) has been – and is still – disputed under Danish and Scandinavian law because they simultaneously comprise both the characteristics of administrative decisions and contracts.39 On the one hand, the act of granting a licence per se is an administrative decision (forvaltningsakt). On the other hand, at least some licences have strikingly contract-like features which are evidenced by the mere facts that several of the terms are negotiated and that the parties add their respective signatures. It is possible to identify three theoretical approaches to concessions linked to the evolution of the Danish legal system: First, during the era of absolute monarchy and at the beginning of the constitutional era (roughly 1660–1900), the object of concessions was regarded as private enterprises which were subject to public sanction due to their societal signif icance.40 From this perspective, concessions were seen as private law contracts supervised by the Crown. Second, after the theoretical reception of the private/public law dichotomy and the establishment of administrative law as an independent legal f ield of study (roughly 1900–90), scholars sought to legitimise concessions as administrative devices. Accordingly, the father of Danish administrative law, Poul Andersen (1888–1977), argued

38 See both www.govmin.gl/exploitation/get-an-exploitation-licence/exploitation-licence-§16 and www.govmin.gl/ exploitation/get-an-exploitation-licence/impact-benef it-agreement-iba, respectively, accessed October 29, 2022. 39 See, for instance, Frants Dalgaard-Knudsen, “Utvindingskoncessioners retlige kvalif icering,” MarIus, no. 132 (1987): 1, Anita Rønne and Michael Budtz, “The Legal Framework for Exploration for and Production of Oil and Natural Gas in Denmark,” Journal of Energy & Natural Resources Law, no. 3 (1985): 153–68, Vibe Ulfbeck and Lone Wandahl Mouyal, “The License as a Basis for Responsibility and Liability,” in Responsibilities and Liabilities for Commercial Activity in the Arctic, eds. Vibe Ulfbeck et al. (London: Routledge, 2016), 32–38, and Rasmus Grønved Nielsen, “Selling Hydrocarbon Concessions,” European Energy and Environmental Law Review, no. 1 (2020): 6–7. Parts of the following are based on the latter. 40 Anders Sandøe Ørsted, Haandbog over den danske og norske Lovkyndighed, Vol. 3 (Copenhagen: Coldin, 1828), 228, and Frederik V. Petersen, Om Jernbane- og Sporvejskoncessioner efter dansk Ret (Copenhagen: J.H. Schultz Forlag, 1915), 77–78.

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that “the legal constituent of a concession is an administrative decision that entrusts a private person or private enterprise with a task which, by nature, belongs to the public administration” although admitting the presence of “a contractual component.”41 It should be added that Andersen’s position was strongly influenced by the Continental European legal thinking and not unequivocally supported by contemporary case law.42 Third, under the influence of EU law (roughly 1990 onwards), the contract perspective has been revived. This is clearly reflected in the Concession Directive which def ines “work concession” as a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works to one or more economic operators the consideration for which consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment.43 Although, the EU law influences are less relevant to the position of Greenland, the basic issue prevails: the Greenlandic mineral licences seem to fall between two stools. One might add the observation that the contract-like features of mineral exploitation licences are particularly manifest since they are less apt for standard terms than both the earlier stages of prospecting and exploration licences and the hydrocarbon exploitation licences.44 This signif ies that the room for individually agreed upon terms is especially wide, which, in turn, is in line with the broad mandate in the regulatory framework mentioned in the section “Granting Mineral Licences – the Regulatory Framework,” in f ine. Moreover, the IBAs – which are obviously perceived as contracts – form an integral part of the mineral licences.45 However, the issue does not have to be framed as an absolute question of either-or. This is in line with the pragmatic Nordic approach to law and is clearly reflected in a Supreme Court precedent from Norway about the government’s unilateral modif ication of the terms of a hydrocarbon concession. The Supreme Court of Norway did not f ind it necessary to decide upon the fundamental disagreement between the parties about whether the concession was to be seen as an administrative decision or a contract in order to settle the dispute.46 In consideration of the foregoing, it is fruitful to accept the contentions that the Greenlandic mineral licences are kinds of private-public hybrids and, consequently, that they are regulated simultaneously by administrative law and contract law norms. In fact, this is explicitly reflected in IBA to the Steensby Land Licence (examined in the section “Licences Terms and Parallel Regulation”), which reads, “In the performance of obligations and the exercise of rights under this IBA, the Licensee, the Municipality and the Greenland Government

41 Poul Andersen, Dansk Forvaltningsret (Copenhagen: Gyldendal, 1965), 79–80 [our translation from Danish], cf. Poul Andersen, Dansk Forvaltningsret (Copenhagen: Gyldendal, 1936), 300–1. 42 See, for instance, the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 1928 p. 995, 1921 p. 87, and 1930 p. 302, in which concession disputes were dealt with by using contract law terminology and rationales. 43 Article 5(1)(a) of Directive 2014/23/EU of the European Parliament and of the Council of February 26, 2014, on the award of concession contracts (OJ L 94, 28.3.2014, p. 1–64). Article 5(1)(b) def ines ‘service concession’ using the same basic scheme. 44 Standard terms for licenses are available at www.govmin.gl/exploration-prospecting/get-an-exploration-licence/standardterms, accessed November 13, 2022. 45 Cf. the section “Granting Mineral Licences – the Regulatory Framework,” supra. Some of the legal features of the IBAs are analysed in Lone Wandahl Mouyal, “Corporate Social Responsibility in the Light of Contract Law,” in Responsibilities and Liabilities for Commercial Activity in the Arctic, eds. Vibe Ulfbeck et al. (London: Routledge, 2016), 50 et seq. 46 Printed in Norsk Retstidende 1985, p. 1355.

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shall each act reasonably and in accordance with general rules and principles of law, including contracts [sic] law and administrative law.”47 As elaborated elsewhere, the Continental European concept of administrative contracts (contrats administratifs/Verwaltungsverträge) appears to be an adequate concept in order to understand these phenomena in the context of Greenlandic-Danish law.48 Some of the possible legal implications of this conceptual proposition are analysed in the following.

Public Modif ications and the Position of the Licensee Without BITs The Greenland Mineral Resources Act is based on an overall ambition to strike a balance between, on the one hand, creating a commercially appealing regulatory environment that attracts foreign investments and, on the other hand, caring for the broader public interests at stake.49 This balancing test is not only present upon the granting of a mineral licence but persists along the duration of the licence. Accordingly, the conflict between stability interests for the sake of the contractor’s commercial position and flexibility interests for the sake of the common good is a topical evergreen with international investment law.50 What makes the Greenlandic case unique is the fact that Greenland does not partake in the foreign investment protection regime – for example, by entering into bilateral investment treaties (BITs) or acceding to the Energy Charter Treaty.51 Against this background, the question in the following is under which circumstances Naalakkersuisut may unilaterally alter the terms and conditions of the licence and, in turn, how the position of the licensee is safeguarded in a legal setting void of BITs.52

Public Modif ication Powers – a Conceptual Introduction As concluded in the section “Granting Mineral Licences – the Regulatory Framework,” although mineral licences and their adjacent devices contain characteristic contract-like features, they are by no means regular contracts. Consequently, the fundamental pacta sunt servanda principle does not apply directly or without adjustments. A part of the reason for this is the trivial fact that the MRA (Naalakkersuisut) is not just a party to a contract, but at the same time a public authority that must attend to its general and politically dictated administrative tasks. This dual capacity gives rise to distinctive legal issues that are undertheorised in the context of Danish-Greenlandic law. In a broader context, most Danish legal scholars have approached the issues from a traditional contract law perspective focusing on the clausula rebus sic stantibus principle and the fairness standard

47 Article 6.2 of the IBA to the Steensby Land Licence (italics added). 48 Rasmus Grønved Nielsen, Forvaltningskontrakter (Copenhagen: Karnov, 2021), 125–32, 168–77 and 209–10. 49 This is reflected throughout the travaux préparatoires to the act (proposal of November 1, 2009, e.g. the general comments, sections 2.1–2.7, and the comments to Section 1 et passim). The ambition can be traced back to the Danish Act no. 166 of 12. May 1965 on Mineral Resources in Greenland, cf. the Danish Parliamentary Gazette (“Folketingstidende”), 1964–65, Annex A, p. 434. 50 See, for instance, Lone W. Mouyal, International Investment Law and the Right to Regulate. A  Human Rights Perspective (London: Routledge, 2016). 51 In the BITs that the Kingdom of Denmark has concluded, Greenland – along with the Faroe Islands – is excluded from their territorial application. Ulfbeck and Mouyal, “The License as a Basis for Responsibility and Liability,” 39–41. See also Chapter 36 of this volume. 52 Parts of the following build on Rasmus Grønved Nielsen’s doctoral dissertation “Forvaltningskontrakter” (doctoral diss., University of Copenhagen, 2021), chapter  9 (including an English summary). See also Ulfbeck and Mouyal, “The License,” 39–45.

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in Section 36 of the Danish Contracts Act.53 However, this narrow approach struggles to fathom the complexity reflected in the case law. Neither do the unwritten principles of administrative revocation apply without impediment. Instead, it is feasible to consider “a third way,” drawing inspiration from the recognised and widely theorised concept of public modif ication powers in the context of administrative contracts under French and German law.54 It has recently been argued that the pragmatic Danish courts seem to adopt a similar approach.55 Put informally, the courts seem to care more about the public authorities being able to carry out their public duties than them keeping their promises. In turn, the interests of the private party are guarded by both substantive and procedural requirements, as well as compensatory mechanisms. The societal interests in the modif ication must be weighed against the private party’s interest in maintaining the status quo. In this context, it is worth highlighting the fact that the Mineral Resources Act explicitly indicates that Naalakkersuisut has the power to make decisions that “signif icantly change” a mineral licence.56

Licence Terms and Parallel Regulation The contention that Naalakkersuisut (the MRA) is not a regular contracting party is clearly reflected in the terms of the mineral exploitation licences. The licences take account for several of the legislative provisions that mandate and sometimes oblige the MRA to intervene, thus establishing a parallel contractual and extra-contractual regulation. Although the mineral exploitation licences and IBAs, as mentioned earlier, follow the same basic pattern,57 this analysis takes its point of the departure in the most recent “Exclusive Licence No. 2021–08 for Exploitation of Certain Minerals in Areas at Steensby Land in North West Greenland” (in the following “Steensby Land Licence”) granted to Dundas Titanium A/S along with the adjacent IBA, both from December 2020. An illustrative example of the mirroring regulation are the parallel provisions about performance in the licence and act, respectively: The MRA may set specif ic provisions and terms on the performance of activities under this Licence in and outside the Licence Area, including provisions and terms regarding technical, health, safety, environmental, social sustainability and resource matters.58 Subject to legislation whereby powers have been assigned to other authorities, Naalakkersuisut may lay down provisions on the performance of activities covered by licences under the Greenland Parliament Act in and outside the area covered by the licence as well as on other activities and matters under the Greenland Parliament Act. Naalakkersuisut may lay down

53 E.g. see Karsten Naundrup Olesen, Samfundsloddet (Copenhagen: Thomson, 2004), 270 et seq. and 280 et seq., Lennart Lynge Andersen and Palle Bo Madsen, Aftaler og mellemmænd (Copenhagen: Karnov Group, 2022), 265, and Mads Bryde Andersen, Grundlæggende aftaleret (Copenhagen: Gjellerup, 2021), 154–56. 54 See in toto Hélène Hoepffner, La modif ication du contrat administrative (Paris: LGDJ, 2009), Lucie Sourzat, Le contrat administratif resilient (Paris: LGDJ, 2019), and concerning the codif ied norms in Section 60 of the Federal Administrative Procedure Act (Verwaltungsverfahrensgesetz), e.g. Uwe Kaminski, Die Kündigung von Verwaltungsverträgen (Berlin: Duncker & Humblot, 2005). 55 Grønved Nielsen, Forvaltningskontrakter, 475–549. The following builds on this contribution. 56 Section 3c (2) of the Mineral Resources Act. 57 See the section “The Hybrid Legal Nature of Mineral Licences (Concession).” 58 Article 11.06 of the Steensby Land Licence.

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provisions on technical matters, matters relating to health and safety in connection with offshore activities as well as environmental matters, resource utilisation and social sustainability.59 The fact that the provisions openly recognise the public modif ication powers is in accordance with principles of legal certainty and foreseeability. Consequently, the licensee will have a harder time arguing that a specif ic action is infringing their contractual rights or that the authorities are acting in bad faith. At the same time, the unequal and limping nature of the transaction (negotium claudicans) becomes evident. However, it is important to recognise the fact that Naalakkersuisut, based on the Mineral Resources Act, would have a legislative mandate to intervene under given circumstances irrespective of the licence terms. The licensee’s default or non-compliance may trigger similar claims. According to the provisions on revocation and lapse, the licence may be revoked, inter alia, if “the Licensee fails to comply with the Mineral Resources Act, this Licence, provisions or terms set under the . . . Act or this Licence or terms of an approval or a decision of the MRA under the . . . Act or this Licence” or if “the Licensee fails to perform or comply with the terms of an Impact Benef it Agreement” or “an order issued by the MRA under this Licence.”60 In accordance with general Danish contract law principles, revocation is only an option if the breach, non-performance or non-compliance is “fundamental or substantial,” and the licensee has been given a reasonable time (set by the MRA) to remedy the issue.61 However, it is not entirely clear how these terms tally with the provisions on supervision and orders, according to which the MRA or its appointee may issue orders in case of non-observation of or non-compliance with legislation, regulations set under such legislation, terms of the Licence, including non-compliance with obligations under the Impact Benef it Agreement . . . , terms of approval under this Licence or any other law, rule or regulation applicable to the Licensee’s activities under this Licence, all as applicable in Greenland at any time.62 It is even explicitly stated that the MRA “may issue such orders as [it] f inds necessary, including for the Licensee to immediately discontinue activities under this Licence.”63 If the licensee fails to comply with these orders, it “shall compensate any damage and loss incurred as a result thereof, irrespective of whether such damage or loss is suffered by the Greenland Self-Government, the Danish State and/or any third party.”64 This is a quite extraordinary example of a contractual term for the benef it on both public and private third parties to the sole detriment of the licensee. Additionally, pursuant to the Mineral Resources Act, non-compliance may be f ined and give rise to forfeiture of extracted minerals.65 Moreover, the MRA has the power to extend and change the obligations of the licensee far beyond the lifespan of the licence: After termination of this Licence, the former Licensee . . . shall continue to perform activities and fulf il obligations in relation to the former Licence . . . to the extent the former Licensee

59 Section 84(1) of the Mineral Resources Act. 60 Articles 21.01(a)-(c) of the Steensby Land Licence. See, also, Section 89 of the Mineral Resources Act. 61 Articles 21.02 and 21.04 of the Steensby Land Licence. 62 Article 28.03 of the Steensby Land Licence. 63 Article 28.04 of the Steensby Land Licence. 64 Article 28.05 of the Steensby Land Licence. Also, see Article 24. 65 Sections 96(2) and 97 of the Mineral Resources Act.

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has an obligation to do so under the Mineral Resources Act, the former Licence or any approval of surrender of the former Licence or any other decision of the MRA.66 The adjacent IBA contains specif ic terms on amendments that, prima facie, seem more in line with traditional contract law dogma. First, it is noted that the IBA “may be amended” and that such amendments “shall . . . be conf irmed in writing by all the Parties.”67 Then, however, the terms read, This IBA . . . shall be amended, when it is assessed that a change in the Exploitation Project will result in substantial change in the project’s impact on social conditions . . . or if it is necessary to meet requirements under the Mineral Resources Act, the Licence, or any other rule of law applicable in Greenland at any time.68 Neither the meaning of nor the interplay between these provisions is obvious. The f irst subsection appears to codify the default rule that the parties may always enter into a new agreement if they all consent. This is supplemented by an access to request a renegotiation if “a substantial failure of a basic assumption occurs.”69 However, apparently, the parties are obligated to alter the agreement upon changes in the legislation or the licence that result in a substantial change in the project’s social impact. Thus, Naalakkersuisut’s wide discretion to modify the licence and – along with the parliament (Inatsisartut) – its legislative and administrative underpinning has a spill-over effect on the IBA. This proposition is underlined – and materially expanded – by the terms regarding conflict of norms: In case of any conflict or difference in content or effect between this IBA, on the one side, and the Mineral Resources Act, the Licence or any rule, provision or term made or set under the Mineral Resources Act or the Licence, on the other side, then the latter . . . shall control and prevail over this IBA.70 Even more strikingly, mere administrative approvals and decisions take precedence over the IBA.71

Intertemporal Legislation Issues of modif ication may also arise due to legislative changes applicable to the licence. Under Danish-Greenlandic law (aside from criminal law), there is no prohibition against retroactive legislation.72 In general, the intertemporal issues of new legislation are often dealt with in the transitional provisions. This is indeed the case with the Mineral Resources Act from 2009 and some of its amendments that all follow the same basic pattern: the legislative changes do not affect the validity

66 Article 11.19 of the Steensby Land Licence. In addition, see Article 36 of the Licence and Section 91 of the Mineral Resources Act. 67 Article 18.1 of IBA to the Steensby Land Licence (italics added). 68 Article 18.2 of IBA to the Steensby Land Licence (italics added). 69 Article 18.4 of IBA to the Steensby Land Licence. 70 Article 23.4 of IBA to the Steensby Land Licence. 71 Article 23.5 of IBA to the Steensby Land Licence. 72 Jens Peter Christensen et al., Dansk Statsret (Copenhagen: Djøf forlag, 2020), 189–95 and Karsten Naundrup Olesen, “Offentlige servicekontrakter og håndtering af ændrede lovkrav,” Förvaltningsrättslig Tidskrift (2013): 43.

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of existing licenses and apply thereto.73 In lack of such express provisions, this would be the default result in most instances. This means that Inatsisartut in effect may modify the conditions under which mineral exploitation licensees operate. Similarly, as with regard to the administrative modif ication power, the licenses explicitly account for the potential claims related to legislative amendments: This Licence is subject to the rules of law applicable in Greenland at any time.  .  .  . This Licence shall not restrict the general right of the Greenland Self-Government to levy taxes or set general provisions concerning exploitation activities or other activities under this Licence. . . . This Licence is subject to and shall be governed by Greenland law and Danish law as applicable in Greenland at any time.74 Read in conjunction with the fact that Naalakkersuisut does not appear to have the habit of accepting stabilisation clauses, these terms imply that the Greenland Self-Government, in principle, may alter the f inancial equilibrium unilaterally or otherwise undermine the licence.75 As mentioned in the introduction, mineral exploitation is one of the most politically controversial topics. Thus, these risks are not as theoretical as they may seem as evidenced by the recent developments in the Kvanefjeld case (cf. section “Third-Party State Intervention – the Impact of Self-Government and the Position of Denmark”). There is one interesting exception in an amendment act from 2012 related to terms concerning obligations to keep and sell exploited minerals in Greenland.76 According to the provisional provisions, the changes do not apply to existing mineral exploration or exploitation licenses granted unless Naalakkersuisut and the licensee agree on the conditions thereto.77 The travaux préparatoires explicitly underlines that the licensee is free not to enter into such an agreement.

Safeguarding the Licensee – Constraints and Compensation As mentioned, the regular devices of investor protection are not applicable to the Greenlandic case. However, this does not mean that the mineral exploitation licensees are devoid of legal protection. The legal norms that safeguard the position of the licensee may be divided into two groups: norms that substantially constrain the public modif ication powers and compensatory norms.78 First, we will focus on the substantive constraints in relation to administrative and legislative modif ication claims, respectively. Public authorities may not utilise modif ication powers

73 See Section 98(4) of the Mineral Resources Act, Section 2(2) of Inatsisartut’s Amendment Act no. 26 of December 8, 2012, Section 2(2) of Inatsisartut’s Amendment Act no. 16 of June 3, 2015, and Section 2(2) of Inatsisartut’s Amendment Act no. 34 of November 28, 2016. 74 Article 33.01 and 34.1 Steensby Land Licence. See similarly, Articles 23 and 24 of the adjacent IBA. 75 On this topic, see, in general, Mouyal, International Investment Law and the Right to Regulate. 76 Section  1(2) of Inatsisartut’s Amendment Act no. 26 of December  18, 2012. Now, Section  18(4) of the Mineral Resources Act. 77 Section 2(3) of Inatsisartut’s Amendment Act no. 26 of December 18, 2012. 78 Grønved Nielsen, Forvaltningskontrakter, 535–48. The following is based on this contribution.

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completely at their own discretion.79 As administrative authorities, Naalakkersuisut and the MRA have to abide by fundamental principles of administrative law, and as contracting parties, they are bound by principles of good faith. This means, inter alia, that modif ication claims must be lawful and based on reasonable and neutral criteria and that they may not be disproportionate or entail unfair discrimination. These requirements are incorporated into the licences, e.g. the Steensby Land Licence: The MRA shall act in accordance with and comply with Greenland law, Danish law and international law and agreements, including treaties, applicable in Greenland at any time. . . . In the MRA’s making of assessments and decisions and other case processing, the MRA shall act reasonably and in accordance with the Mineral Resources Act and principles of Greenland administrative law, including the principle of objectiveness, the principle of proportionality and the principle of equal treatment. This shall apply to all assessments and decisions, including discretionary decisions and decisions on granting of approvals, setting of terms, requirements and time limits and granting of extension of time limits.80 The adjacent IBA contains similar provisions81 which, however, are accompanied by a provision that is directed at all the parties and explicitly recognises the parallel contract law norms: In the performance of obligations and the exercise of rights under this IBA, the Licensee, the Municipality and the Greenland Government shall each act reasonably and in accordance with general rules and principles of law, including contracts [sic] law and administrative law, in Greenland, including the principle of objectiveness, the principle of proportionality and the principle of equal treatment.82 The public modif ication power may not be exercised without due cause. For instance, based on Danish case law, administrative modif ication claims may be justif ied by arising local protests,83 new legislation,84 or care for the principle of equal treatment.85 In addition, more general considerations, such as the time factor and the modif ication claims’ democratic anchorage, may impact the assessment.86 According to the principle of proportionality, it may be argued that the authorities must seek out the possibility of amicable settlement before invoking unilateral action and that preference

79 Specif ically in the context of hydrocarbon concessions, this was held by the Supreme Court of Norway in its judgements printed in Norsk Retstidende 1985 p. 1355 and 2013 p. 1345 (especially paragraph 75). 80 Articles 2.01 and 2.02 of the Steensby Land Licence. 81 Articles 6.1 and 6.3 of IBA to the Steensby Land Licence. 82 Articles 6.2 of IBA to the Steensby Land Licence. 83 E.g. the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 1975 p. 399, 2000 p. 1366, and 2015 p. 902. 84 E.g. the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 1973 p. 11 and 1976 p. 359. 85 E.g. the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 1984 p. 735 and 1999 p. 803. 86 See, in regard to the former, the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 1980 p. 343, 1937 p. 39/2, 1933 p. 249, and the High Court printed in Miljøretlige Afgørelser og Domme 2013 p. 2571, and in regard to the latter and in particular the position of Danish municipalities, the judgements of the Supreme Court of Denmark judgements printed in Ugeskrift for Retsvæsen 1939 p. 447, 2000 p. 1366, 1975 p. 399, 1999 p. 803, 1933 p. 249, and 2003 p. 646.

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must be given to smaller adjustments over radical alterations or termination.87 Examples of the latter include provisions on gradual phase-out and provisional arrangements.88 Moreover, the authorities must provide due notice to the licensee.89 Legislative intervention may be exercised more at will by Inatsisartut, although within the limits of the Constitution of the Kingdom of Denmark and in accordance with Agreement on the Greenland Self-Government. It is disputed to what extent general constitutional principles of neutrality, proportionality and equal treatment exist under Danish law.90 However, in addition to the issues of expropriation addressed further here, Danish constitutional law prohibits certain kinds of so-called singular legislation – legislation targeting specif ic persons or undertakings. The prohibition was recognised by the Danish Supreme Court in its Tvind precedent, according to which the legislature may not encroach on the power of the judiciary by resolving concrete legal disputes.91 In the context of Danish hydrocarbon concessions, there are examples of legislative intervention that appear at odds with this prohibition.92 On top of the substantive constraints, the licensee is also safeguarded by compensatory devices that follow the modif ication mechanisms. At the outset, it is crucial to stress the proposition that these devices aim at restoring the balance inter partes and do not always f it well within traditional categories. Often, the claim may be characterised as some sort of restitution: if the public party does not meet its initial – agreed upon – obligations, the licensee may not be obliged to fulf il its part of the deal in its entirety and may, perhaps, claim restitution (in kind or money).93 In other instances, the claim may have a tort-like nature.94 If the modif ication affects the licensee in a particularly intense manner, it may give rise to expropriation claims under Section 73 of the Constitution of the Kingdom of Denmark.95 If the expropriation requirements are not met, for instance, if the interference does not have a legislative basis, the mechanism may – paradoxically – bolster specif ic performance. Conversely, according to Section 73, the licensee has a constitutionally backed right to full monetary indemnif ication. A compensatory claim may also be based on Article 1 of Protocol 1 to the European Convention on Human Rights, protecting property rights.96

87 E.g. the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 2001 p. 2493, 2003 p. 646, 1933 p. 249 and in Højesteretstidende 1929 p. 430. Also, see the Bundesverwaltungsgericht’s judgement printed in Neue Zeitschrift für Verwaltungsrecht 2013 p. 209 (paragraph 37). 88 E.g. the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 1981 p. 394, 2011 p. 1365, and 1952 p. 289. 89 E.g. the judgements of the High Courts printed in Ugeskrift for Retsvæsen (1981) 380, and 1979 p. 454 and in Miljøretlige Afgørelser og Domme 2001 p. 1250. 90 Karsten Revsbech, “Lovgivers magtfordrejning i dansk forfatningsret,” Tidsskrift for Rettsvitenskap, no. 1 (February 1991): 50, Michael Hansen Jensen, “Proportionalitetsprincippet i forfatningsretlig belysning,” Ugeskrift for Retsvæsen, Section B (1994): 335, and Jens Peter Christensen et al., Dansk Statsret (Copenhagen: Djøf forlag, 2020), 175–76. 91 See, further, Henrik Vædele Elmquist, Singulær lovgivning (Copenhagen: Djøf forlag, 2002), 338–50 (including an English summary pp. 491 et seq.) 92 See Grønved Nielsen, “Selling Hydrocarbon Concessions,” 3–4 and 12. 93 E.g. the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 1939 p 447, 1967 p. 642, and 1973 p. 11 (read in conjunction with the deliberation protocols) and the Report of Parliamentary Ombudsmand (Folketingets Ombudsmands Beretning) 1976 p. 404 and 1977 pp. 251 and 561. 94 E.g. the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 1995 p. 557. 95 E.g. the judgements of the Supreme Court of Denmark printed in Ugeskrift for Retsvæsen 2015 p. 902 and the High Court printed in Miljøretlige Afgørelser og Domme 2002 p. 562. 96 E.g. such claims were rejected by the Supreme Court of Norway in its judgement of June 28, 2018, no. HR-2018–1258-A.

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A Digressive Comment on Dispute Resolution If disputes related to a modif ication claim or its effects become relevant, the question arises what the right dispute resolution forum is and, in particular, whether they are f it for arbitral proceedings pursuant to the licence’s arbitration clauses.97 Like other licences, the Steensby Land Licence prescribes following division of tasks in relation to dispute resolution: Any decision to be made at the discretion or order of the Greenland Government, the MRA or other Greenland or Danish authorities, under the applicable law . . . or under this Licence, cannot be submitted to arbitration. Any dispute regarding any such decision shall be brought before and decided by the Greenland courts with jurisdiction in Nuuk, Greenland. A decision by any such court may be appealed according to the rules thereon. . . . Any other dispute between the Greenland Self-Government and the Licensee arising out of or in relation to this Licence or activities under this Licence shall be decided exclusively, f inally and conclusively by an arbitration tribunal.98 This division is in line with both principles of arbitrability and the provision on access to courts in Section 63 of the Danish Constitution.99 Accordingly, the travaux préparatoires to the arbitration provision of the Mineral Resources Act read, Decisions, which according to this act are to be handed down by the supervising authority, cannot be submitted to arbitration, cf. Section 63 of the Constitution regarding the right to judicial review of administrative decisions. Thus, only private law disputes are covered by an arbitration clause.100 Particularly, the Danish Supreme Court has held that disputes related to modif ication claims related to concessions were not to be submitted to arbitration.101 Against this background, much points to the conclusion that disputes related to modif ication claims, whether they are generated by administrative decisions or legislative changes, generally fall outside the ambit of arbitrability and, consequently, must be submitted to the regular courts. Nevertheless, as noted in the next section, arbitral proceedings have recently been initiated within this grey area and directed against both the Greenland government and the Danish government.

Third-Party State Intervention – the Impact of Self-Government and the Position of Denmark Before concluding the study, this section is devoted to a Greenlandic oddity: What if the Danish authorities intervene in the relationship between Naalakkersuisut and a licensee? As mentioned in

 97 On this topic in general, see Clement S. Petersen and Vibe Ulfbeck, “Litigation and Arbitration in Greenland and Dispute Resolution under the Greenlandic Standard Licences,” in Responsibilities and Liabilities for Commercial Activity in the Arctic. The Example of Greenland, eds. Vibe Ulfbcck, Anders Møllmann and Bent O. G. Mortensen (London: Routledge, 2018), 203–15.  98 Articles 35.01 and 35.02 of the Steensby Land Licence. The procedural framework for the arbitral proceedings is regulated in Articles 35.03–35.17. 99 Grønved Nielsen, Forvaltningskontrakter, 699–710. 100 Proposal of November 1, 2009, comments to Section 90 (our translation from Danish). 101 Judgements printed in Ugeskrift for Retsvæsen 1921 p. 87 and 1924 p. 548.

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the introduction, the Greenland Self-Government has assumed the legislative and executive competences in regard to the area of mineral resources. However, the Danish government remains competent on several other matters such as foreign affairs, defence and security policy. The issue arises if the respective competences seemingly overlap. Recently, the issue over overlapping competences became pertinent in the context of the contemplated activities in the mineral deposit of Kvanefjeld (or Kuannersuit). Kvanefjeld is claimed to be one of the largest multi-element deposits in the world, including the world’s second-largest deposit of rare-earth oxides and the sixth-largest deposit of uranium.102 Since 2007, Greenland Minerals A/S (owned by the Australian company Energy Transition Minerals Ltd) has been operating on Greenlandic soil and has recently applied for an exploitation licence to Kvanefjeld. Denmark has generally argued to have competence in matters concerning uranium deposits because of its relevance to foreign affairs and defence and security policy.103 Although this allegation was disputed,104 it prompted a negotiation between the Greenland Self-Government and the Danish government, which after two years resulted in the so-called Uranium Agreement from January 2016.105 Under the Agreement, the Greenland Self-Government retains the competence to grant uranium licences, while the Danish Ministry of Foreign Affairs is responsible for making sure that the Realm does not infringe its obligations under international law and, in particular, export control. After the Greenland left-wing party, Inuit Ataqatigiit (IA), won the election in spring 2021, the Kvanefjeld project was put a halt. However, in March 2022, Greenland Minerals has initiated arbitral proceedings against both the Greenland Self-Government and Denmark, claiming that the company has the right to obtain an exploitation license.106 More generally, Greenland has experienced heightened attentiveness from great power nations with polar interests, such as the USA, Russia and China. Specif ically, signif icant Chinese interests are at stake in the context of activities related to rare-earth oxides which are primarily used in the electronic industries, such as in the production of batteries. With the current tension in great power politics and Denmark’s alliances in mind, it is easy to contemplate other future scenarios in which Denmark may claim sovereignty over the Greenland Self-Government. The Kvanefjeld case bears witness to the contention that the issue of intervention by Denmark is not as hypothetical as it may seem. It is highly doubtful how such intervention would affect an active mineral licence and its stakeholders, including the licensee and Naalakkersuisut. One thing is certain: the parallel competences make it even more capricious for the licensees operating in Greenland.

102 Umar Ali, “Why Does Trump Want to Buy Greenland? A Mineral Perspective,” Mining Technology, September 3, 2019, accessed October 28, 2022, www.mining-technology.com/features/trump-greenland-mineral 103 See the off icial report “Rapport om udvinding og eksport af uran – arbejdsgruppen om konsekvenserne af ophævelse af nul-tolerancepolitikken,” October 2013. 104 Ole Spiermann, “Mineral Resources under the Greenland Self-Government Act – and the Question of Uranium,” in Responsibilities and Liabilities for Commercial Activity in the Arctic, eds. Vibe Ulfbeck et al. (London: Routledge, 2016), 83. 105 See the press release from the Danish Ministry of Foreign Affairs “Danmark og Grønland indgår ny uran-aftale.” 106 See further: www.etransmin.com/asx-announcements (accessed March  6, 2023). Both Vibe Ulfbeck and Rasmus Grønved Nielsen are currently assisting Energy Transition Minerals. This has not given rise to any conflict of interests as the manuscript to this contribution was submitted before this arrangement.

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Concluding Remarks – Attractive and Stable Framework Conditions? Whereas it is the off icial Greenland strategy to establish “attractive and stable framework conditions” for investors, the analysis presented shows that the regulatory framework concerning mineral exploitation licenses in Greenland in fact implies a considerable amount of uncertainty for potential investors. The recent Kvanefjeld case underlines that this issue is not hypothetical. Some of the uncertainties stem from the hybrid legal nature of the licences and the complex, sometimes inconsistent, regulatory framework. More signif icantly, the analysis shows that both the licences and the appurtenant agreements and the Mineral Resources Act allocate a signif icant amount of the discretion to the Naalakkersuisut (the MRA) with regard to modif ications to the licences and their preconditions. Moreover, the law-maker (Inatsisartut) may intervene. Greenland is not bound by any bilateral investment treaties (BITs). Instead of making use of compensation clauses to mitigate the impacts of modif ications, it is made clear in the Greenland Mineral Act that investment projects are subject to Greenlandic law at any time. However, the licensees are not entirely at the mercy of the authorities as Danish-Greenlandic law protects them against arbitrary and disproportionate measures and provide them with compensatory rights. Finally, the overlapping competences between Denmark and Greenland in regard to mineral exploitation adds further to the uncertainty. In contrast to what may be the case in other jurisdictions, many of the possible uncertainties involved in an investment project in Greenland are made very clear to the potential investors. A question of huge importance to both the investors and Greenland remains: is the price of these insecurities too high?

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32 SUSTAINABLE DEVELOPMENT IN CONTRACT LAW Greenland Impact Benef it Agreements (IBAs) Lone Wandahl Mouyal

Introduction Sustainable development is a concept which has evolved at least since the 1970s.1 Though there is no unif ied internationally recognised understanding of the legal status and content, the principle of sustainable development can be considered as an emerging principle of international law.2 The 1992 UN Conference on Environment and Development in Rio established that the principle of sustainable development is a central component for international governance,3 and it is included in a number of treaties.4 The principle of sustainable development is increasingly linked to natural resource extraction. For example, the Paris Agreement stipulates that States shall engage in adaptation planning processes and the implementation of actions, including the development or enhancement of relevant plans, policies and/or contributions, which may include  .  .  . building the resilience of socioeconomic and ecological systems, including through economic diversif ication and sustainable management of natural resources.5 This chapter shows how sustainable development can be integrated in practice at the operational level through the integration of environmental and social concerns in mining project. The tool used for the integration of such concerns in Greenland mineral resource projects are impact benef it

1 Friedl Weiss and Bernhard Scherzer, “Existence of Common or Universal Principles for Resource Management (?)” in Permanent Sovereignty over Natural Resources, eds. Marc Bungenberg and Stephan Hobe (Cham: Springer, 2015), 52–55. 2 The def inition of sustainable development is largely said to originate from the Brundtland Report from the 1987 that stipulates, “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” See Report of the World Commission on Environment and Development: Our Common Future, 1987. 3 The 1992 UN Conference on Environment and Development is also known as the Earth Summit. One of the main achievements was a new programme of action to invest in the future to provide sustainable development. The recommendations amongst others covered the preservation of natural resources and new ways of participating in a sustainable economy. 4 See e.g. the Energy Charter Treaty, 1994, Article 19 (1); 1197 Kyoto Protocol to the Climate Change Convention, Article 2 (1); Treaty on European Union, Article 3(3). 5 The Paris Agreement, an agreement within the UN Framework Convention on Climate Change (UNFCCC), Article 7 (9)€). DOI: 10.4324/9781003404828-42 548

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agreements (IBAs). In other countries, similar agreements are known as community development agreements (CDAs). These agreements are a vital mechanism for ensuring that local communities benef it from large-scale investment projects, like oil, gas and mining projects. In formalising agreements between an investor and the local community concerned, these agreements set out how the benef its of an investment project will be shared with local communities.6 So while the content of the principle of sustainable development remains somewhat unclear, its content can be exemplif ied in domestic law in connection with natural resource extraction.

A Business Community in Transition Greenland’s business community is in the middle of a transformation. The Greenland business community is gradually developing from many former jobs in hunting and f ishing and in government-owned companies, to a future where jobs will be run to a much larger extent by the private sector, such as in the tourism industry and in the land-based industries, such as mining and hydroelectric power. There are a number of hydroelectric power potentials in Greenland, particularly in Southwest Greenland, where potentials by far exceed the population’s need for electricity. Another future business area is commercial exploitation of ice and water from Greenland’s large freshwater resources, where the large inland ice sheet alone represents approximately 10% of the world’s total freshwater resource. Another future business area is the mining sector, which still has not realised its potential. The reasons hereof are manifold, though commodity prices and political stir seem to be predominant reasons hereof. To accommodate the future business community of Greenland, the government of Greenland has worked towards modernising the framework for doing business in Greenland, especially within recent years with a number of updates on laws and regulations. The pace of the development in the business area has, however, sometimes been slowed due to frequent changes in the Greenland government. Despite stir in the political leadership, the business area has undergone signif icant regulatory developments where environmental, social and cultural concerns are paving their way into business laws and regulations.

Socio-Economic Concerns in Greenland Mining Projects In Greenland, there is no privately owned land, but the Greenland government has the right to control and use natural resources in the subsoil in Greenland and may decide to grant rights to private parties. As in most legal systems, rights relating to exploration and exploitation of natural resources are based on a licensing system. The Mineral Resources Act is the framework legislation for all activities related to mineral and hydrocarbon exploration and exploitation. Licenses together with terms and conditions may be granted based on this act. It follows from the Greenland Mineral Resources Act that a key aim of the act is to ensure that activities falling within the scope of the act are carried out in a sound manner with regard to safety, health, the environment, resource exploitation and social sustainability and in accordance with best international practices.7 This aim is ensured not only on the substantive level through requirements set forth in the act but also in processes and procedures that call for public participation. The

6 Columbia Center on Sustainable Development has conducted extensive research on CDAs in a number of countries, including Australia, Canada, Laos, Papua New Guinea and Ghana, accessed March 29, 2021, http://ccsi.columbia.edu/. 7 Greenland Mineral Resources Act, Section 1 (2).

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importance of including civil society and engaging with local stakeholders in the early stage of a mining project materialises through public consultations and hearings.8 Prior to and in connection with the public consultations, there are other investigative requirements that are key to the granting of an exploitation license. These cover an indebt examination of the potential environmental, social and cultural impact of a mining project. It follows from the Mineral Resources Act Section 73 (1) that as a condition for the granting of a license, an environmental impact assessment (EIA) must be conducted and the outcome hereof (EIA report) must be approved by the Greenland government. It further follows from the Mineral Resources Act Section 76 (1) that for activities that may major social impact on the population in the area concerned, a social impact assessment (SIA) must be conducted and the outcome of this examination (SIA report) must be approved by the Greenland Government before a license can be granted. The SIA report and the EIA report prepared by the mining company form the basis for the public consultation, though local preliminary hearings are sometimes conducted in the interest of transparency. If the project is continued, the mining company, the government of Greenland and the relevant municipalities will then need to negotiate an impact benef it agreement (IBA), which formalises the concerns raised in the reports and articulated in the hearings. Following the conclusion of an IBA, the licensee may then be granted an exploitation license. The conclusion on an IBA is thus a condition for obtaining an exploitation license.

The Projects The Greenland IBA practice has developed for more than ten years now. As projects have matured and experience is obtained by all parties, the legal framework has undergone developments. This is, for example, reflected in the guidelines on the process and preparation of the SIA report for mineral projects. The f irst set of guidelines were drafted in 2009 and the second (and current) version of the guidelines from 2016 incorporates subsequent experience.9 In order to ensure the largest possible degree of transparency and predictability as to the legal framework for mining projects in Greenland, the Greenland government has established an online platform, where most information about the regulatory framework and requirements for obtaining exploration and exploitation licenses can be found.10 Likewise, active IBAs are publicly disclosed online. The analysis in this chapter is based on the following IBAs. Capricorn I Capricorn II True North Gems Hudson Ironbark Tanbreez Dundas

2010 2011 2014 2015 2016 2020 2020

Hydrocarbons Hydrocarbons Gemstones Anorthosite Zinc REE Ilmenite (black sand)

8 The Greenland government publishes notice of hearing and public consultations on the website of the government, accessed March 25, 2021, https://naalakkersuisut.gl/en/Hearings. 9 The guidelines can be found on the webpage of the Greenland government, accessed March 25, 2021, https://govmin. gl/wp-content/uploads/2019/09/SIA_guideline.pdf. 10 Greenland IBAs can be found at the webpage of the Greenland government, accessed March 25, 2021, https://govmin. gl/exploitation/get-an-exploitation-licence/impact-benef it-agreement-iba/.

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Research into the mentioned IBAs shows signif icant variations in the agreements. The reason for this is largely caused by the fact that the IBAs accommodate the specif ic project concerned and the impact the project may have on the population in that particular area. However, there are also differences in the legal requirements and the strength of the requirements enshrined – for example, with regard to the extent to which the requirements may be enforced. This may well be a reflection of changing political priorities or varieties in bargaining power in the relation between the public and private party. It may also be a result of experience obtained along the way. From a research perspective, it is remarkable that such great varieties exist in the requirements towards the private party – that is, the licensee. From a commercial perspective, the consequence is that the clarity and predictability envisaged does not materialise. The following sections are an overview of the various projects that form the basis for the IBAs examined. General aspects of the IBAs are explained and analysed and provides the basis for greater clarity on how sustainable development materialises in Greenland IBAs.

Capricorn I and II Capricorn Greenland Exploration A/S (Capricorn) is a privately held company owned by the Scottish company Cairn Energy Plc. It engages in exploration and production of oil and gas. The company was active in the waters of the South and Southwest Greenland from 2007 to 2011. The f irst IBA was concluded with Capricorn in July 2010 and the second one the following year in 2011. The two IBAs are substantially identical and concluded between the same parties – the government of Greenland, the licensee and the local municipality (Kommuneqarf ik Sermersooq, Qeqqata Kommunia, Qaasuitsup Kommunia). In subsequent years, however, the mother company, Cairn Energy Plc., declared its failure to f ind commercial discoveries and ceased the projects.

True North Gems True North Gems Greenland (TNG) was a subsidiary of the Canadian mining company, True North Gems Inc. The company owned the exploitation license to the Aappaluttoq Ruby and Pink Sapphire Deposit located in Southwest Greenland, approximately 160 km south of the capital Nuuk. In 2016, TNG f iled for voluntary bankruptcy and the Norwegian engineering and construction f irm LNS acquired the license. In May 2017, Greenland Ruby A/S off icially opened its ruby and pink sapphire mining operation in Aappaluttoq Under the exploitation license, TNG is granted the right to perform exploration activities and other related activities. TNG planned to establish a mine, which was expected to be operational for a period of nine years. In addition to the establishment of a mine, a camp was to be set up with approximately 60 workers during the construction phase and 48 workers during the operational phase. The necessary infrastructure was to be built, including a port area and a helicopter-landing pad. The IBA was concluded between the Minister of Industry and Natural Resources, the mayor of Kommunequarf ic Sermersooq and True North Gems (TNG) on June 16, 2014.

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Hudson Hudson Greenland A/S was granted an exclusive Exploitation Licence for the Qaqortorsuaq/White Mountain (Naajat) Anorthosite project on September 24, 2015. The Exploitation Licence gives Hudson Greenland A/S an exclusive licence to exploit anorthosite in the Naajat area, situated in Qaqortorsuaq between Sisimiut and Kangerlussuaq. Anorthosite is widely used – for example, in paint and for white cement in construction. The exploitation license grants an exclusive right for exploitation for 50 years, and the mine is expected to be operational for over 100 years. The agreement was concluded between the minister for industry, labour, trade and foreign affairs; the minister for f inance and natural resources; the major of Qeqqata Kommunia; and the licensee, Hudson Greenland A/S, on September 24, 2015. Hudson Greenland A/S is owned by Hudson Resources Inc., a publicly listed company, which operates in Greenland, Canada, Norway and Finland. Like the TNG IBA, the Hudson IBA is divided into two sections: the main part of the agreement and the appendices. There are ten appendices to the agreement.

Ironbark Ironbark Zinc Ltd. is an Australian company engaged in the exploration and evaluation of zinc, primarily. The Citronen Zinc-Lead Project in northern Greenland represents one of the world’s largest undeveloped zinc-lead resources with a resource in excess of 13 billion pounds of contained zinc and lead metal. The mining site is designed for an expected lifetime of 14 years with a possibility of extension. Citronen Fjord is a very remote area with no surrounding settlements. Accordingly, the project inherently involved low social risk, but already in 1996, three years after the discovery of the signif icant zinc deposit, an environmental report laid down the high environmental risk of exploitation in this particular area. According to the scientif ic report, exploitation could cause severe harm to the ecosystem, including vulnerable birds and marine wildlife, such as narwhals and walruses, in the area.11 The IBA between the government of Greenland, the four involved municipalities and Ironbark Zink A/S, the subsidiary of Ironbark Zinc Ltd., was signed in September 2016.

Tanbreez Tanbreez Mining Greenland A/S, which was established in 2010, is a privately owned company 100% owned by the Australian, Greg Barnes. In August 2020, Tanbreez Mining was granted an exploitation license regarding an exploitation licence for the 18 km² area deposit of rare earth elements (REEs) at Killavaat Alannguat (Kringlerne) in South Greenland. The license is granted for a 30-year period. The project is close to some of southern Greenland’s major towns (Narsaq, Qaqortoq and Nanortalik) and only 38 km from the international airport of Narsarsuaq. REEs are vital to daily life, communications, green energy and defence. The minerals are used as components in high technology devices, including smartphones, digital cameras, computer hard

11 David Boertmann, “Environmental Impacts of Shipping to and from Citronen Fjord,” NERI Technical Report, no. 162 (1996), accessed June 1, 2021, https://www2.dmu.dk/Pub/arcticenvironment/reports/ArcticReport56.pdf.

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disks, LED lights, and flat-screen TVs. REEs and products containing REEs are almost exclusively controlled and produced by China. In general, resistance from the local population has been high for a number of different reasons, whereas environmental risks have been a major concern.12 So the project has been politically controversial for a number of years but seems now to have obtained the necessary political support to continue. In August 2020, the IBA was concluded between Tanbreez Mining Greenland A/S, the Government of Greenland and Municipality of Kujalleq. In April 2021, however, Greenland’s left-wing Inuit Ataqatigiit party (IA), which has pledged to oppose the project, formed a new coalition government in Greenland. Hence, it remains uncertain if and when the project will materialise.

Dundas The purpose of the Dundas project is to extract ilmenite from the onshore “black sand” deposit on the south coast of Steensby Land peninsula in northern Greenland in the vicinity of the abandoned and closed settlement of Moriusaq. The black sand at Dundas consists of a large proportion of ilmenite, which is mined and processed for its titanium and an important commodity used as pigments in paint, plastics, paper and cosmetics and in the making of different metal alloys. Dundas Titanium A/S is 100% owned by Bluejay Mining Plc., which is a dual listed company registered in the United Kingdom and on the Frankfurt Stock Exchange. The Dundas IBA was concluded between the Dundas Titanium A/S, Avanaata Municipality and the government of Greenland in December 2020.

Structure Greenland IBAs can be considered as hybrid agreements encompassing both private and public law elements. From a private law perspective, IBAs are agreements negotiated and signed by the involved parties. From a public law perspective, IBAs comprise vital terms for granting the license. Most importantly, Greenland IBAs regulate the social impact of a natural resource extraction project once the exploitation licence is granted. This is done through largely identical structure of the IBAs. First and foremost, the Greenland IBAs are divided into two main parts: a general part and a project-specif ic part (the appendices). The two components of the agreement are sometimes described as the legal part and the non-legal part of the agreement.13 From a contract law perspective, this is in itself a quite peculiar construction to have a signed contract, which contains a nonlegal part, since it obviously prompts the question of what that entails.14 The general part of the IBA frames the main objectives of the agreement and is non-negotiable. It generally addresses how cooperation between the parties will be organised and in which areas the parties will collaborate. The non-negotiable part of the agreement typically contains a catalogue of more detailed obligations for the licensee, provisions on liability for breach of the agreement and a jurisdictional clause.

12 See further in Maria Ackren, “Public Consultation Processes in Greenland Regarding the Mining Industry,” Arctic Review on Law and Politics, no. 1 (2016): 319. 13 See, for example, TNG IBA. 14 For contracts “not intended to have legal effect,” see Vibe Ulfbeck, Alexandra Andhov and Kateřina Mitkidis, Law and Responsible Supply Chain Management (London: Routledge, 2019), 53–54.

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The project-specif ic part of the IBA consists of set of appendices that regulate specif ic impact and benef its from the mineral resource project. The appendices typically set specif ic performance targets for mineral resource activities in Greenland, the use of Greenlandic workers and Greenlandic enterprises, training and educational initiatives, and a monitoring plan and an evaluation plan for the project concerned. These performance targets are typically negotiated on an annual basis.

Sustainable Development as an Objective of the IBA The Greenland IBAs typically refer to multiple objectives. Two components, however, seem to be of high priority in all IBAs. On the general level, sustainable development is considered an overarching objective of the IBAs. On the more concrete level, it is a central purpose of the IBAs to promote the use of Greenlandic workers. This particular aim is emphasised in all the IBAs examined. It materialises through the many substantial clauses of the IBA that concern the use of Greenlandic workers. It follows from the f irst sections of the TNG IBA that the objectives of the IBA are manifold. The overall aim of the agreement is to promote sustainability thorough cooperation between the company and the public authorities in relation to the ruby and sapphire project, as well as to ensure the project’s integration into the community. Likewise, sustainable development is mentioned as an objective of the Ironbark IBA and the Tanbreez IBA.15 As the TNG IBA, the Ironbark IBA refers to several purposes, but sustainable development appears as a central aim of the agreement. It follows from the Ironbark IBA that the object and purpose is to promote cooperation between the licensee and the Greenland authorities in ensuring that the Citronen Fjord project becomes a sustainable mining project.16 The IBA establishes the methods and procedures for the cooperation between the parties to the agreement in order to maximise the benef its for the Greenlandic population and the license. Hence, the purpose of the IBA is to strengthen the positive impact of the Citronen Fjord project towards the Greenlandic society as a whole. Likewise, the Tanbreez IBA intends to promote cooperation between the licensee and the Greenland authorities “for the Tanbreez project to become a sustainable and viable mining project.”17 A similar formulation can be found in the Dundas IBA.18 Some IBAs frame sustainability as part of the aim by referring to a negative aspect and a positive aspect, respectively. Under the negative aspect, the aim is to prevent and reduce harmful socioeconomic and social consequences, whereas under the positive aspect, the aim is to promote, create and enhance positive benef icial socio-economic and social consequences of activities.19 This version of incorporation of sustainability by reference to the negative and positive aspect represents a more innovative and modern approach. Whereas sustainability originally arose from a “do no harm” point of view – the negative aspect referred to – the aim of promoting the positive impact of the mining project reflects the more recent developments under the concept of sustainability. The positive aspect is largely rooted in the UN Sustainable Development Goals (SDGs), though the Greenland IBAs examined do not explicitly refer to this framework.20 Each goal has a number of targets and indicators to measure progress toward reaching the targets. The IBA references to the positive

15 Ironbark IBA, Section 4.1.2 (d); Tanbreez IBA, Section 4.3. (4). 16 Ibid., Section 2.3. 17 Tanbreez IBA, Section 1.2. 18 Dundas IBA, Section 2.2. 19 See e.g. Ironbark IBA, Section 4.1.4 and Tanbreez 4.3 (5). 20 In 2015, world leaders agreed to 17 Global Goals, known as the Sustainable Development Goals, or SDGs. The SDGs are included in the UN Resolution Agenda 2030.

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aspect, to ensure a positive impact of the mining project, largely mirrors the rationale behind the SDGs, which is also about enhancing the positive development.

Sustainable Development as a Guiding Principle for Interpretation The Greenland IBAs typically refer to sustainable development in the part of the agreement, which stipulates the general principles for interpreting the agreement. These principles are referred to as “guiding principles for performance of agreement.”21 Such principles lay down the framework for interpreting the substantive clauses of the agreement. For example, the TNG IBA sets forth a number of general principles that govern the interpretation of the agreement. These principles can be found in Section 2.2 of the IBA, which refers to “cooperation,” “fairness,” “respect for the rights, responsibilities and interest of each part (including the licensee’s responsibility for, and interest in economically viable activities under the License,”22 and “for adaptive management.”23 The TNG IBA further stipulates that “support for the objective of sustainability and sustainable development”24 should be considered an overarching principle of the agreement. Another example is the Tanbreez IBA. Here sustainability is also mentioned as a key component for interpreting the requirements of the agreement. It follows from Section 4.3 (4) on the performance of the IBA that “support for the objective of sustainability and sustainable development and sustainability and monitoring of progress towards this objective” is essential. Sustainability is also an interpretative element to the agreement in the Ironbark IBA25 and the Dundas IBA.26 It is not entirely clear to what extent the requirement to enhance sustainable development should direct the interpretation of the substantial requirements set forth in the agreements. Nevertheless, as a central element for interpretation of the IBAs, the principle covering support for sustainable development lays the ground for a balanced interpretation where social and environmental concerns should be assessed together with economic development.

Sustainable Development as a Substantial Requirement The IBAs contain a number of different substantial sustainability requirements in the form of socioeconomic obligations. Some of the requirements are of a quantitative nature, whereas other of the requirements are of a qualitative nature. An example of a quantitative obligation is the requirement relating to the minimum number of local workers, which should be employed in the different phases of the mining project. Another example of a quantitative obligation is the f inancing requirements, which states that a f ixed amount should be paid annually to a cultural fund.27 The qualitative obligations concern initiatives, which should be taken, for example, to establish an educational programme. Some of the substantial requirements are of an internal character, such as requirements relating to employment practices, whereas other substantial requirements are of an external character, such as requirements in relation to the local community.

21 See e.g. Cairn Energy IBA 2010 and 2011 Section 4.2 and TNG IBA Section 2.2.1. 22 TNG IBA, Section 2.2.1 (3). 23 Ibid., Section 2.2.1. 24 Ibid., Section 2.2.1 (4). 25 Ironbark IBA, Section 4.2.1. (d). 26 Dundas IBA, Section 5.4 (d). 27 These requirements are further dealt with in the following section.

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Employment Local content requirements are general a key component of the Greenland IBAs. Such requirements are formulated as obligations to employ Greenland workers, to employ Greenland subcontractors and to use and collaborate with local stakeholders to the largest extent possible. Since Greenland is not a part of the EU, such local content requirements can be imposed, where corresponding requirements would not be lawful under EU law in the territory of Denmark. In the TNG IBA, the requirements in relation to employment of Greenland workers are set forth in Section 5 as well as Appendix 4. It follows from Section 5.2 of the TNG IBA that the licensee is required to initiate and implement programs to enhance the employment of Greenland workers, subject to skills, experience and availability of such Greenland workers. A  Greenland Worker is def ined in Annex to the TNG IBA, which states that a Greenland worker is “a worker resident in Greenland.” Annex 10 def ines a Greenland resident as a person who (1) Was born in Greenland and had permanent residence in Greenland for the f irst 5 years of his or her life, or (2) Has had permanent residence in Greenland in the last 2 years or 7 years of the last 10 years, or (3) Is married to, or proves to have lived in a civil partnership at least 1 year with, a person who satisf ies condition (1) or (2) or is employed by a public or private employer (authority or business) in Greenland in accordance with Greenland law, or (4) Otherwise has a particular connection to Greenland, as may be decided by the Greenland Government. In no. (2) above, “permanent residence” includes residence outside Greenland for educational purpose and the person concerned satisf ied the conditions for obtaining public grants under the Greenland education grant and loan scheme when the education began. Based on this def inition, it can be concluded that the def inition of a Greenland worker is quite broad and is not limited to native Inuit People. Section 5 of the TNG IBA lay down a requirement to use Greenland labour and subcontractors. The specif ic requirements are set forth in Annex 5. The requirements differ in the different phases of the project. Throughout the construction phase, the licensee shall “do its utmost to ensure that employment of Greenland Workers by the licensee and its contractors, suppliers and service providers will be at least 70% of the total workforce.” In the operational phase of the project, the requirement increases from 70% in the f irst year to 80% in the third year of the project. Throughout the closure phase of the mining project, the licensee must ensure to its utmost that at least 75% of the total employment on annual basis are Greenland workers. It thus appears that the requirements are formulated as “best efforts” requirements. The Ironbark IBA goes a bit further as to the requirements to use Greenland workers. The Ironbark IBA stipulates that “if the Licensee employs foreign workers, it has to demonstrate that Greenland workers were not available to execute the job.”28 The Ironbark IBA further states that the Greenland government may permit the use of foreign workers “if the Licensee is able to

28 Ironbark IBA, Section 3.5.

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demonstrate that Greenland workers with similar skills do not exist.”29 This implies that the licensee are to apply for the Greenland government to approve that foreign workers are employed. In practice, such requirement may attach a heavy administrative burden upon the licensee.

Gender Perspective Some of the IBAs attach signif icant importance to the integration of women in the workplace. For example, the TNG IBA imposes a gender perspective by laying down an obligation for the licensee to adopt a special focus on promoting the interest of women, including women’s access to the labour market.30 In more recent IBA, additional emphasis has been added to the gender perspective with more detailed provision on enhancing women’s opportunity to become part of the work force. The Ironbark IBA illustrates this aspect. Section 4.3 of the agreement concerns the promotion of women’s participation. Likewise, the Tanbreez IBA stipulates in Section 11.18 and 11.19 that the participation of women in the workforce should be promoted. To promote such participation, the licensee is required to raise awareness to women in particular, to ensure training to women as well as skilled female role models.

Subcontractors and Partners Another key element of the Greenland IBAs concerns the requirement to use Greenland subcontractors and Greenland partners to the largest extent possible. Under the TNG IBA, the requirements in relation to the use of Greenland subcontractors and partners are set forth in Appendix 6. Annex 10 def ines a Greenland enterprise as an enterprise which fulf ils all of the following requirements: (1) The Enterprise is an Enterprise and is registered under the legislation applying to such Greenland-based Enterprises. (2) The Enterprise is based in Greenland. (3) The Enterprise has a real connection to the Greenland society through its carrying out of business activities in Greenland. The determination whether the Enterprise has a real connection to the Greenland society is among others based on its carrying out of business activities, including prior activities and concrete planned future activities, in Greenland. (4) The Enterprise has full control over its assets, which among other things means that the Enterprise has not suspended its payments and is not in bankruptcy or in a similar situation. A Greenland Enterprise must thus fulf il the cumulative requirements mentioned in Annex 10.31 The term “based in Greenland” is not entirely clarif ied in all Greenland IBAs. It is not necessarily an explicit requirement that the main off ice is in Greenland, but this may be implied. A shell

29 Ibid., Section 3.8. 30 TNG IBA, Section 10.4. 31 It follows from the Greenland Act no. 33 of November 28, 2016, on registration in the Central Business Register, that Greenland companies must be registered in the Danish Business Register. The act entered into force on January 1, 2018. It further follows from the act that the Greenland Business Register (GER) has been closed down and all Greenland companies have been migrated to the Danish Central Business Register (CVR).

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company is most likely not to be considered fulf illing this requirement, but again this is not clear. The intention behind this requirement, however, is clear – namely, to ensure that Greenland companies benef it to the most extent possible of the mining project.

Educational Initiatives The requirement for the licensee to establish educational initiatives is also a key component of Greenland IBAs. Under the TNG IBA, the licensee must cooperate with the authorities and educational institutions in Greenland, including the University of Greenland, the Mining School and the Greenland Institute of Natural Resources. Some of the IBAs focuses more on the requirement to establish high-quality educational and training programmes, whereas other IBAs attaches more importance to the f inancing of such initiatives, such as through the establishment of an educational fund. The Tanbreez IBA emphasises the need for the licensee to establish high-quality education initiatives combined with the requirement to offer scholarships to university students.32 In addition, the licensee must establish a local development fund.33 Likewise, in the Ironbark IBA, the educational aspect comes with f inancing requirements. Under this IBA, the licensee is required to f inance an educational fund and allocate 200,000 DKK on a yearly basis during the construction phase, 400,000 DKK annually during the f irst three years of exploitation and then 500,000 DKK from the fourth year and until decommissioning of the mine.

Social and Cultural Well-Being Under the Greenland IBAs, the licensee is required to introduce a number of initiatives that are linked to the promotion of social and cultural well-being. The predominant aim for introducing such initiatives is to reduce and avoid social dumping as a negative outcome of a mining project.34 The Dundas IBA contains relatively few requirements relating to social and cultural well-being compared with the long list of requirements laid down in the Ironbark IBA. The Greenland IBAs comprise a general obligation for the licensee to respect and promote Greenland society and Greenland culture.35 In addition, the licensee is required to introduce a number of initiatives to avoid social dumping. The general obligation to respect and promote Greenland society and Greenland culture is therefore typically followed by requirements that are more specif ic.36 These requirements largely evolve around obligations to cooperate and communicate with Greenland workers and the local society. A key element of the cultural aspect of Greenland IBAs is food. IBAs typically impose an obligation to allow workers to cook traditional food, to provide for Greenlandic food to be served in the cantina and to offer food from local hunters and f ishermen.37

32 Tanbreez IBA, Section 13.9. 33 Ibid., Section 16 and Annex 3 and Annex 4. 34 See e.g. the TNG IBA where the obligations in relation to integrating social and cultural aspects into the projects are laid down in Section 12 of the TNG IBA and in Annex 2. 35 See e.g. TNG IBA, Section 12.1; Dundas IBA, Section 9.1 (f); Ironbark IBA, Section 15.2. Hudson IBA, Section 13; Tanbreez IBA, Section 14.1. 36 See e.g. TNG IBA, Section 12.2; Dundas IBA, Section 9.1 (a)-(f); Ironbark IBA, Section 15.2 (a)–(r). 37 See Dundas IBA Section 9 (a).

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In some instances, the licensee is required to cooperate with local authorities to organise an annual Greenland culture day.38 This may involve a requirement to f inance cultural activities through specif ic contributions or by allowing workers off from work, so they are able to take part in such events. The specif ic initiatives referred to in the IBAs are sometimes followed by an economic obligation to f inance activities with a social and cultural purpose, such as sporting activities.39 IBAs may also impose a more general f inancing requirement in the form of an obligation to establish a social and cultural well-being fund.40

Health Health is another key item of the substantial requirements in Greenland IBAs. It follows from several of the IBAs that the Greenland government has a right to and will initiate health studies to analyse and assess the health impacts of the mining project. This health study typically covers the physical and mental health-being, including violence, sexual harassment and use of alcohol and drugs. The licensee is typically required to monitor health and to contribute to the study, but the provision does not include further information on what that exactly entails for the licensee.41 In fact, the IBAs do not contain much further on health.

Communication The obligation for the licensee to establish or ensuring proper ways to communicate is a key component of IBAs, which largely reflect the fact that mining sites are oftentimes placed in remote areas. For example, the licensee is typically required to ensure transparency of its business operations through general communication to the public. This can be done, for example, by developing a communication strategy,42 providing regular information about the project in newsletters43 or on websites or through participation in interviews with local media or newspapers.44 Information about the company’s activities must be available in Greenlandic at large. Another material requirement included in the IBAs is the obligation to contribute to basic infrastructure, thereby ensuring internal and external communication. The communication requirements cover the licensee’s obligations to ensure that workers can communicate via internet or mobile devices.45 Internet access and mobile coverage remains a challenge in many parts of Greenland, in particular in the very remote areas of some mining sites. In practice, it may be a signif icant challenge for the licensee to ensure internet connectivity, and some IBAs also state explicitly that the licensee cannot be held liable for breakdowns in the internet access.46

38 See e.g. Ironbark IBA 15.2 (d); Tanbreez, Section 14.2 (6). 39 See TNG IBA, Section 12.3. 40 See e.g. Ironbark IBA, Section 15.4; Hudson 13.3.2. 41 TNG IBA Section 13.1 and Tanbreez IBA Section 15.3. 42 Ironbark IBA, Section 15.2 (k). 43 Ibid., Section 15.2 (j); Tanbreez 14.2 (4) (a)–(c) 44 Ironbark IBA, Section 15.2 (i); Tanbreez 14.2 (4) (a)–(c); Hudson IBA, Section 13.2. (g) and (h). 45 See e.g. Ironbark IBA, Section 15.2 (e); Tanbreez IBA, Section 14.2 (f); Dundas IBA, Section 9.1 (b). 46 Dundas IBA, Section 9.1 (b).

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Sustainable Development as “Best Efforts” Obligations One thing is the substantial requirements contained in IBAs. Another aspect concerns the way in which these substantial requirements are formulated. In several instances, sustainability requirements have been formulated as “best efforts” obligations. For example, the Capricorn 2011 IBA establishes a general obligation for the licensee “to minimise any adverse social impacts and promote benef its associated with its activities as far as reasonably possible.”47 The drawback of such a requirement is, however, the legal vagueness of the terms as to the content of the obligations enshrined. Several of the IBAs comprise a requirement to use Greenland labour and Greenland enterprises “to the greatest extent possible.”48 For example, the TNG IBA stipulates that the Licensee will do its utmost to ensure that employment of Greenland Workers by the Licensee and its contractors, suppliers and service providers will be at least 70% of the total workforce in connection with the performance of building and construction.49 This formulation again triggers the question as to when such requirement is fulf illed. When has the private party made suff icient effort to use Greenland labour and Greenland enterprises, and what if there are no Greenland workers or enterprises that can actually take on the relevant work? Similar legal challenges follow from requirements that the licensee must act in “a reasonable manner”50 and ensure “full and fair opportunities”51 for Greenland enterprises. The legal obligations that follow from these requirements are unclear. Likewise, the duty to maintain “the highest standard of corporate social responsibility”52 contains inherent weaknesses, as it cannot easily be determined when such requirement is met. In sum, Greenland IBAs largely make use of “best efforts” obligations. The use of such “best efforts” obligations complicates enforcement since it is diff icult to assess and to prove in practice that reasonable efforts have been made. Hence, it may be diff icult for the private party to meet contractual requirements.

Liability for Breach of Sustainability Requirements The Greenland IBAs examined contain provisions on the payment of damages for a breach of contract. The provisions on damages in the IBAs with Cairn Energy’s subsidiary Capricorn are identical in the two agreements from 2010 and 2011. It follows from Section 20.1 to these agreements that [t]he Licensee shall pay damages for any damage or loss caused by activities performed or by non-performance of obligations under this agreement, to the extent the non-performance is not due to Force Majeure. This applies regards of whether the damage or loss is accidental and whom the damage or loss affect. The claim for compensation may be reduced or

47 Capricorn 2011 IBA p. 40. 48 See e.g. Dundas IBA, Section 5.2. 49 TNG IBA Annex 4, Section A.4.3.1. 50 See e.g. TNG IBA Section 4. 51 Ibid. 52 Capricorn 2011 IBA p. 40.

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extinguished if the aggrieved party intentionally or by gross negligence contributed to the damage or loss. According to this clause, the IBA imposes strict liability (“shall pay”) for any damages or loss as a result of performance or non-performance of the agreement. The licensee is thus required to pay damages for a loss caused by activities under the IBA, as well as for failure to comply with obligations under the IBA. Hence, the private party may incur liability for actions and inactions. Only in cases of force majeure does the responsibility for non-compliance lapse. Invoking the force majeure clause requires the existence of an extraordinary situation relating to an external event, which prevents the company from fulf illing its obligation. In contract law, force majeure clauses only apply for very limited situations. It thus appears that this version of the liability clause may attach a farreaching obligation for the private party to pay damages for losses. However, combined with a “best effort” obligation, in reality the liability seems like a hybrid between strict liability and fault. A pertinent question is, can the local municipality claim a loss for skilled Greenland workers not employed by the licensee? In this situation, the municipality may claim that the loss of the municipality is the amount that the municipality shall pay to an unemployed worker in public support for basic needs. The provision on liabilities in the TNG IBA is quite differently worded. It provides the following in Section 22: In case the Licensee has not fulf illed an obligation or commitment and this is not due to Force Majeure, the Licensee shall pay compensation to the Greenland Authorities, if Greenland Government requests payment of compensation. The Greenland Government shall act objectively, reasonably, proportionally and transparently in determining whether compensation shall be paid and any amount of compensation payable. A similar clause on liability can be found in more recent IBAs.53 Another strict liability approach can be found in the more recent Dundas IBA from December 2020, which states, The Licensee shall pay compensation for any damage and loss caused by activities performed under this IBA, regardless of whether the damage or loss is accidental and whom the damage or loss is suffered by.54 This clause refers to actions by the licensee. It further follows from the Dundas IBA that [i]f the Licensee fails to perform any of its obligations or commitments under this IBA, the Licensee shall compensate any cost incurred as a result thereof, irrespective of whether such cost is incurred by the Greenland Self-Government and/or the Municipality. Payment of such compensations shall be made no later than 30 days after the Greenland Authorities has made a written request for payment of compensation.55 Under this clause, the license may also incur liability for inactions.

53 See Ironbark IBA, Section 25. 54 Dundas IBA, Section 22.1. 55 Ibid., Section 22.2.

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The Tanbreez IBA combines these two aspects in one clause: The Licensee shall pay compensation for any damages or loss caused by activities performed or by non-performance of obligations under this IBA.56 The Tanbreez IBA explicitly carves out environmental liability.57 There reason for this is that environmental aspects of the project are to be regulated in a separate agreement. As stated, Greenland IBAs are generally structured as agreements with two components. The combination of a static (non-negotiable part) and dynamic part (the negotiable part) of IBAs largely builds on the structure set forth in corresponding Canadian agreements regulating the socioeconomic impact of mining projects.58 On a general note, incurring liability for a breach of a “best effort” obligation comes with an inherent obstacle due to the diff iculties in assessing whether a breach has occurred at all. The Greenland IBA is a condition for obtaining an exploitation license. It is therefore relevant to consider, whether non-performance of an IBA can lead to a withdrawal of the license granted. Such a scenario would come with tremendous economic implications for the licensee who may have invested signif icantly in a project, and the withdrawal of a license may potentially trigger an investment claim under international law.

Enforcing Sustainable Development From a contractual point of view, Greenland IBAs regulate matters, which traditionally are not subjected to contractual obligations – namely, the social side effects of a natural resource extraction project.59 In practice, socio-economic concerns are not easily drafted as clear legal requirements, and this is not the intention with the IBAs either since by nature they aim at progression. Yet the lack of clarity of the legal requirements encompassed brings about a number of challenges, not least in relation to enforcement. To the extent that the obligations set forth in an IBA are formulated as “best efforts” obligations, it will be diff icult to assess and to prove that there has been a breach of the obligation concerned. All in all, the lack of clarity leads to a large degree of inherent uncertainty as to the determination of whether there is a breach of sustainability requirements of the contract. Another pertinent question, which arises, is to def ine the scope of people who can invoke a breach of the IBA. In contract law, this would normally be the parties to the agreement – the Greenland government, the local authorities (the signing municipality) and the private party (the licensee). The construction of a tripartite agreement that provides rights for fourth parties (e.g. Greenland workers) is unusual.60 As a legal construct, the IBAs appear as a hybrid between public

56 Tanbreez, Section 23.1. 57 Ibid., Section 23.3. 58 See e.g. the agreement between the Diavik Diamond Mines (the private party) and the Northwest Territories and Aboriginal Peoples (the local community). The agreement can be found at webpage of Columbia Law School, accessed March 29, 2021, http://ccsi.columbia.edu/work/projects/cda_canada/. 59 See also Ulfbeck et al., Law and Responsible Supply Chain Management, 53–57. 60 See also Vibe Ulfbeck, Bent Ole Gram Mortensen, and Jing-Jing Su, “Workers’ Rights and Chain Liability,” in Responsibilities and Liabilities for Commercial Activity in Greenland, eds. Vibe Ulfbeck, Anders Møllmann, and Bent Ole Gram Mortensen (London: Routledge, 2016), 76–77.

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and private law. The IBA itself is a private law agreement, but it serves as a condition for the granting of the license – a public law endeavour. In practice, it is likely that actions that are non-compliant with community interest could easily be considered a breach of the IBA obligations. The Greenland Government may then invoke a breach of the contract. In fact, the Greenland Government has a discretionary power (1) to determine whether the private party should be considered liable and (2) to determine the amount of compensation to be paid. For this purpose, the Greenland government should adopt the fundamental principles of public law – to act “objectively,” “reasonably,” “proportionally” and “transparently.”61 From a contractual point of view, it remains controversial that one of the parties to the agreement is granted the power to determine the possible liability for a breach of contract. At the end of the day, invoking a breach of the IBA thereby easily ends up becoming a political decision by the Greenland government, which may jeopardise legal certainty and stability.

Conclusion and Perspectives Greenland IBAs demonstrate the various ways in which sustainability may come up. For example, sustainability may be part of the aim and purpose of the agreement, constitute an interpretative principle that guides the interpretation of the substantial parts of the contract and materialise as substantive requirements relating to a number of specif ied area. The substantial requirements that are highly prioritised in IBAs are in particular the employment of Greenland workers, working conditions, the use of Greenland enterprises, suppliers and subcontractors, as well as ensuring proper communication. IBAs typically contain internal sustainability requirements (conditions at the mining site) as well as external sustainability requirements (towards the local community). Greenland IBAs generally comprise both positive as well as negative sustainability requirements. Some IBAs impose a general obligation for the licensee to minimise any negative social impact from its business operations, whereas other more recent IBAs attach more importance to the positive aspect – that is, to ensure that the licensee contributes positively to sustainable development through a number of different actions.62 So far, the IBAs examined contain no direct references to the UN Sustainable Development Goals, but it may be a point a reference going forward. The advantage of including references to relevant goals under the UN Global Goals umbrella is that the goals contain concrete indicators, which allow sustainability to be exposed to measurement. Another advantage is that an increasing number of companies have become acquainted with the goals. Overall, the Greenland IBAs prove the recognition by mining companies of the risks associated with not engaging with communities. The agreements also demonstrate an increased recognition of Indigenous Peoples’ rights to lands and resources and to benef it from mining projects. The Greenland IBAs thereby stand as an important opportunity for ensuring the self-determined development of local communities.

61 TNG IBA, Section 22.1. 62 For investigations into IBAs of other countries or similar agreements, the Columbia Sustainable Investment database may provide useful guidance. See further at www.OpenCommunityContracts.org, where a collection of publicly available agreements between local communities and investors can be found.

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33 MEANINGFUL STAKEHOLDER CONSULTATION AND SOCIAL IMPACT ASSESSMENT Karin Buhmann

Introduction Meaningful stakeholder consultation is a concept that rests on a complex combination of elements from three f ields and in terms of practical and theoretical application is set within a fourth. Consultations are processes required by law in regard to environmental, social or integrated impact assessments. The extent and form of consultations in the context of impact assessments are regulated in various forms and levels across the Arctic countries.1 The stakeholder term originates in the business ethics literature, as a societally inclusive alternative to shareholders/stockholders. In the seminal sense proposed by Edward Freeman (1984), which has become leading in business ethics and much organisational literature, stakeholders include economic business relations and communities and others who are further removed from the organisation. Although the stakeholder literature does not refer to rights-holders by that term, it does recognise that local communities as stakeholders have a claim to participate in decisions that substantially affect their welfare and to have their human rights respected (Evan and Freeman 1993: 82). The emphasis on stakeholder consultation being meaningful derives from international soft law related to corporate responsibilities to respect human rights and responsible business conduct in a wider sense, not limited to human rights impacts. This has resulted in guidance for making consultations and stakeholder engagement meaningful to stakeholders in processes of identifying harmful impacts, in particular to affected stakeholders who are rights-holders to the extent that their human rights are or can be affected by the activities. Moreover, meaningful stakeholder consultation has important connections to social impact assessment in practice and in theory. Social impact assessment refers not only to processes undertaken in practice, but also to sub-stream of impact assessment research. Across the Arctic, social and environmental impact assessment (often also involving social issues) are deployed in order to identify and manage the impacts of extractive and renewable energy projects before, during and after extraction.2 The social impact

1 Marina Nenasheva, Sonja Bickford, Pamela Lesser, Timo Koivurova and Paula Kankaanpaa, “Legal Tools of Public Participation in the Environmental Impact Assessment Process and Their Application in the Countries of the Barents Euro-Arctic Region,” Barents Studies: Peoples, Economies and Politics 1, no. 3 (2015): 13–35. 2 Anne Merrild Hansen, Sanne Vammen Larsen and Bram Noble, “Social and Environmental Impact Assessment in the Arctic,” in The Routledge Handbook of the Polar Regions, eds. M. Nuttall, T. Christensen, and M. Siegert (New York: DOI: 10.4324/9781003404828-43 564

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assessment literature tends to take a bottom-up approach to stakeholder involvement and combines social, human rights, environmental and other issues related to planning and implementation of infrastructure and other technical projects. This chapter takes issue with the tension between, on the one hand, formally granted rights to consultation and public participation in decision-making and, on the other, an actual process of stakeholder engagement that is meaningful from the perspective of individuals or communities who are or may be adversely affected by industry projects or other economic activities. Taking point of departure in the concept of meaningful stakeholder engagement as part of risk-based due diligence, the chapter demonstrates that formal consultation rights do not necessarily translate into engagement that is meaningful to those that the rights are intended to benef it. It shows that explicit efforts to ensure that stakeholder engagement is meaningful in order to identify risks or harmful impacts from the perspective of those actually or potentially affected are not only underpinned by Arctic community experiences documented in research but also increasingly required in hard and soft law. As a concept encapsulated in the particular phrase “meaningful stakeholder consultation” or its synonym, “meaningful stakeholder engagement,” the normative ideal of engaging meaningfully with “affected stakeholders” (who are rights-holders when their human rights are impacted or at risk) has come to the fore in the context of soft law on responsible business conduct. Meaningful stakeholder consultation/engagement occupies a prime stage in the United Nations (UN) Guiding Principles on Business and Human Rights (UNGPs)3 and the OECD Guidelines for Multinational enterprises,4 which are leading instruments on responsible business conduct. The UNGPs apply in all countries and therefore across the Arctic. The OECD Guidelines, which are recommendations from OECD members and other adhering States, apply to business operations in or out of those States. (All Arctic countries except for Russia are members of the OECD.5) The UNGPs and OECD are both soft law and therefore only guiding for governments as well as business enterprises. As part of the EU corporate governance reform,6 a proposed directive on mandatory human rights and environmental due diligence for companies operating out of or procuring to the EU area is based on the due diligence approach of the UNGPs.7 If adopted, such a requirement will apply to Arctic EU countries (Finland and Sweden, as well as potentially Norway, which is an EEA country). Greenland, which is a self-governing part of the Kingdom of Denmark, is not a member of the EU, yet sometimes the law in Greenland reflects the Danish law.8 Finland is considering introducing mandatory human rights due diligence or related supply chain transparency in national law. In June 2021, Norway adopted legislation requiring large companies to undertake risk-based

Routledge, 2018); Dorethée Cambou and Greg Poelzer “Enhancing Energy Justice in the Arctic: An Appraisal of the Participation of Arctic Indigenous Peoples in the Transition to Renewable Energy,” in Renewable Economies in the Arctic, eds. David Natcher and Timo Koivurova (Abingdon: Routledge, 2021). 3 Guiding Principles on Business and Human Rights: Implementing the United Nations, “Protect, Respect and Remedy” Framework, UN Doc. A/HRC/17/31 (UN 2011). 4 OECD, Guidelines for Multinational Enterprises (Paris: OECD, 2011). 5 Greenland has a collaboration agreement with the OECD. 6 European Commission (website) Sustainable Corporate Governance, accessed October 1, 2021, https://ec.europa.eu/ info/law/better-regulation/have-your-say/initiatives/12548-Sustainable-corporate-governance/public-consultation (link no longer active). 7 Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, Council of the European Union, 15024/1/22. 8 This applies i.a. in regard to company law.

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due diligence.9 As meaningful stakeholder engagement is part of this due diligence approach, it also forms part of those requirements. Exemplifying the pertinence of meaningful stakeholder engagement, commitments to a transition to fossil-free energy in line with the Paris Climate Change Agreement and the UN Sustainable Development Goal (SDGs) are an impetus for construction of facilities for the production of fossil-free energy. In several Arctic countries, there is an expansion of windfarms and hydroelectric power stations. Exploration for sources of minerals required for the technical solutions for nonfossil energy may offer potential new employment and business opportunities. Yet public sentiments around these activities are mixed, not least at community level. In Fenno-Scandinavia, Indigenous Saami communities have challenged the location of wind power farms in courts and with other remedy institutions.10 In South Greenland, sheep-farming communities, tourism service providers and others in the Kujataa UNESCO World Heritage Site have expressed concern about the risks from a proposed mine at Kuannersuit/Kvanefjeld, a rich deposit of rare earth elements (REEs) and uranium.11 Contested exploitation of oil and gas in Russia demonstrates the environmental and social vulnerability of fossil-based fuel.12 In Arctic Canada, hydropower projects have proven contentious with local communities, including some First Nations.13 These examples underscore the need to identify and address the concerns and needs of local communities affected by proposed or actual projects in a manner that is meaningful to those stakeholders. Obviously, the need applies to other types of projects as well. Impacts are often harmful but can also be benef icial. This chapter describes meaningful stakeholder consultation drawing on the tension and four angles noted earlier. First, the chapter considers the stakeholder concept, with an emphasis on rights-holders and other stakeholders who may be affected by (typically harmful) impacts caused by the business operations. Next, the chapter introduces the meaningful stakeholder involvement approach championed by the UNGPs and the OECD Guidelines and elaborated by subsequent guidance texts. Thereafter, this chapter considers insights from the social impact assessment theory that also shapes the understandings of meaningful stakeholder involvement. Finally, the chapter

9 Lov om virksomheters åpenhet og arbeid med grunnleggende menneskerettigheter og anstendige arbeidsforhold (åpenhetsloven)[Act on corporate transparency and work on fundamental human rights and decent work [Transparency Act], LOV-2021–06–18–99, entry into force July 1, 2022, https://lovdata.no/dokument/NL/lov/2021-06-18-99. 10 E.g. Dorothée Cambou, Per Sandström, Anna Skarin and Emma Borg, “Reindeer Husbandry vs. Wind Energy: Analysis of the Pauträsk and Norrbäck Court Decisions in Sweden,” in Indigenous Peoples, Natural Resources and Governance: Interactions and Agencies, eds. Monica Tennberg, Else Grete Broderstad and Hans-Kristian Hernes (Abingdon: Routledge, 2021); Dorothée Cambou, “Uncovering Injustices in the Green Transition: Sámi Rights in the Development of Wind Energy in Sweden,” Arctic Review 11 (2020): 310–33; Karin Beland Lindahl, Andreas Johansson, Anna Zachrisson and Roine Viklund, “Competing Pathways to Sustainability? Exploring Conflicts over Mine Establishment in the Swedish Mountain Region,” Journal of Environmental Management 218 (2018): 402–15, https://doi.org/10.1016/j. jenvman.2018.04.063. 11 E.g. Lill Rastad Bjørst, “Saving or Destroying the Local Community? Conflicting Spatial Storylines in the Greenlandic Debate on Uranium,” The Extractive Industries and Society 3, no. 1 (2016): 34–40; Rachael Lorna Johnstone and Anne Merrild Hansen, “Comparative Expectations of Resources Development in Selected Greenland Communities,” in Regulation of Extractive Industries: Community Engagement in the Arctic, eds. Rachael Lorna Johnstone and Anne Merrild Hansen (Milton Park: Routledge, 2020), 125–55. 12 E.g. Julia Loginova and Emma Wilson, “Our Consent Was Taken for Granted,” in Regulation of Extractive Industries: Community Engagement in the Arctic, eds. Rachael Lorna Johnstone and Anne Merrild Hansen (Milton Park: Routledge, 2020), 156–84; Emma Wilson and Kirill Istomin, “Beads and Trinkets? Stakeholder Perspectives on Benef it-sharing and Corporate Responsibility in a Russian Oil Province,” Europe Asia Studies 71, no. 2 (2019): 1–29. 13 E.g. Paul Bowles and Fiona MacPhail, “The Town That Said ‘No’ to the Enbridge Northern Gateway Pipeline: The 2014 Kitimat Plebsicite,” The Extractive Industries and Society 4, no. 1 (2017): 15–23.

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relates this to consultation and social impact assessment requirements established in legislation in the Arctic, using examples from specif ic jurisdictions.

The Stakeholder Concept The use of the stakeholder term in regard to organisations goes back at least to the 1960s.14 Usage of the notion without use of the term has been identif ied in the legal literature going back to the 1930s.15 Some early def initions broadly def ined stakeholders as groups that are vital to the survival of an organisation.16 In an effort to expand the stakeholder concept to become less organisation-centric and recognise the implications of organisational impacts on wider society and societal responses to such impacts, Edward Freeman proposed a more inclusive def inition: a stakeholder is any group or individual who can affect or is affected by the achievement of the organisation’s objectives.17 This includes individuals or groups that may perceive of themselves as stakeholders (explicitly or implicitly), even if the organisation does not consider them to be stakeholders or is even aware of their existence and their interests that are affected by, or can affect, the organisation. Referring to organisations, the def inition is not limited to business organisations but can in principle apply to other organisations, such as public authorities or civil society organisations. A business organisation’s stakeholders are commonly understood to include, at least, shareholders, customers, suppliers and distributors, employees and local communities. Moreover, representatives of any of these are stakeholders too, such as trade unions, business associations and associations of suppliers. Moreover, civil society organisations can be stakeholders. This applies, for example, if they represent the interests of particular other stakeholders (typically potential or actual rightsholders). Civil society organisations may also be stakeholders in their own right – for example, based on their expertise or activism in regard to the environment or human rights. Stakeholder theory typically relates to the immediate stakeholders of organisations, such as shareholders, suppliers, employees and customers.18 However, it is evident from Freeman’s business-ethics-oriented def inition that the concept is not limited to those stakeholders; and that other parties who may be affected by, for example, the achievement of a business organisation’s objectives are stakeholders too. This is underscored by Evan and Freeman (1993: 82) who observe that communities as stakeholders have a claim to participate in decisions that substantially affect their welfare and to have their human rights respected. Given the business ethics context that frames this statement, the “claim” may be understood to be moral. However, when seen in a human rights context, it can also be understood as a human-rights-based claim to participate in decision-making on activities affecting one’s substantive human rights. The legal character of this depends on the extent to which the relevant human rights law applies as hard or soft law in the area and to the population in question. Based on Freeman’s def inition, a diverse range of stakeholder theories have evolved in organisational studies to provide so-called normative, instrumental or descriptive approaches to stakeholders

14 Andrew L. Friedman and Samantha Miles, Stakeholders: Theory and Practice (Oxford: Oxford University Press, 2006), 4–8. 15 Ibid., at footnote 21 with reference to E. Merrick Dodd, “For Whom Are Corporate Managers Trustees?” Harvard Law Review 45 (1932): 1145–63. 16 Ibid., 4–5 with references. 17 Edward Freeman, Strategic Management: A Stakeholder Approach (Boston: Pitman, 1984), 46. 18 Friedman and Miles, Stakeholders: Theory and Practice, 4–8.

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and stakeholder management.19 In the organisational context, “normative” does not refer to regulation but rather to “how managers (and sometimes stakeholders) should act and should view the purpose of the organisation, based on some ethical principle.”20 Descriptive stakeholder theories look at the actual actions of managers and stakeholders and how they perceive their actions and roles. Frequently associated with prof it maximisation, instrumental stakeholder theories deal with how an organisation’s managers can act to further their own interests or the interests of the organisation.21 Stakeholder theories typically have regard to management and corporate strategy, often with the aim for the organisation to identify risks and opportunities, in particular with regard to f inancial issues and prof its.22 Despite Freeman’s de facto recognition of rights-holders, organisational stakeholder theories frequently adopt a top-down perspective to stakeholders, with the company’s management deciding who they consider to be a stakeholder and how they wish to be involved with that stakeholder. As discussed in the next section, ideas and directives on meaningful stakeholder consultation and engagement emphasise the involvement of affected stakeholders and the integration of bottom-up perspectives in processes of identifying and managing harmful impacts, as well as for advancing positive impacts.

Meaningful Stakeholder Consultation In response to concerns with the capacity of multinational and other business enterprises to inflict human rights harm on individuals, the UN secretary-general in 2005 appointed a special representative to examine and clarify a number of issues related to corporate responsibilities for human rights. This human rights special procedure resulted in two key documents, both of which were developed through a multi-stakeholder process in accordance with the mandate. The UN “Protect, Respect and Remedy” Framework23 was presented to the Human Rights Council in 2008. The report clarif ied aspects of States’ duty to protect human rights against infringements caused by third parties, including companies; def ined a corporate responsibility to respect human rights; and set forth implications for both States and companies in regard to ensuring access to remedy for victims of business-related human rights harm. Adopted by the Human Rights Council in 2011, the UNGPs were developed with the aim of “operationalising” the UN Framework’s points. Accordingly, the UN Framework and UNGPs are mutually complementary, also in regard to the key issues underlying meaningful stakeholder engagement, which forms a signif icant element of the process of human rights due diligence. None of the two instruments develop new human rights or obligations. Rather, they elaborate and clarify the implications for States and business enterprises of existing human rights standards, in order to reduce business-related human rights harm. While the UNGPs provide the operational guidance, the UN Framework offers a rich and interdisciplinary treatment of the issues that is therefore useful to understand the underlying issues. For the current purposes, some of that reasoning is useful for placing meaningful stakeholder consultation into context.

19 Thomas Donaldson and Lee E. Preston, “The Stakeholder Theory of the Corporation: Concepts, Evidence and Implications,” Academy of Management Review 20, no. 1 (1995): 65–92. 20 Friedman and Miles, Stakeholders: Theory and Practice, 2. 21 Ibid. 22 Shawn L. Berman, Andrew C. Wicks, Suresh Kotha and Thomas M. Jones, “Does Stakeholder Orientation Matter? The Relationship between Stakeholder Management Models and Firm Financial Performance,” The Academy of Management Journal 42, no. 5 (1999): 488–506. 23 Protect, respect and remedy: A framework for business and human rights. UN Doc. A/HRC/8/5 (UN 2008)

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As part of the steps for companies to honour their responsibility to respect human rights, the UN Framework report proposed a process of human rights due diligence for companies to manage the risk of human rights harm with a view to avoiding it.24 The report observed that the scope of human-rights-related due diligence is determined by the context in which a company is operating, its activities and the relationships associated with those activities.25 It further described this due diligence as the steps a company must take to become aware of, prevent and address adverse human rights impacts. Further clarif ication in the UN Framework in various other contexts has underscored that a human rights due diligence process differs from the transactional due diligence processes that are frequently already embedded in companies to assess and manage f inancial and related risks or legal liability risks.26 The UNGPs elaborate that companies need to reach out to those whose human rights are at risk of being harmed as a result of their activities and to ensure engagement with those stakeholders that is meaningful from their perspective for identifying impacts and solutions. From the impact assessment perspective elaborated further here, this can also help empower these stakeholders. Empowerment through meaningful stakeholder engagement not only helps affected stakeholders voice their concerns but can also provide broader capacity building for social development and economic sustainability.27 Human rights due diligence is focused on risks caused by the company. It is a continuous process28 that should begin when a (new) project idea is conceived and is only over when that project is completed and its impacts have been fully addressed. In accordance with this, regular assessment of human rights impacts is a core activity in human rights due diligence. Meaningful engagement with affected stakeholders is a key element in risk-based due diligence in order to identify potential or actual impacts and other from the perspective of affected stakeholders who are typically local communities or individuals at risk of harm caused by business activities. It also serves to develop and implement solutions that are appropriate to address problems from the perspective of those stakeholders.29 The human rights due diligence set out by the UNGPs has inspired the adoption of a wider risk-based due diligence in the 2011 revision of the OECD Guidelines.30 Such a due diligence process “inevitably will be inductive and fact-based, but the principles guiding it can be stated

24 Ibid., para. 25. 25 Ibid. 26 Ibid., para. 56; John Gerard Ruggie and John F. Shermann III, “The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: Reply to Professors Bonnitcha and McCorquedale,” European Journal of International Law (2017): 921–28, https://academic.oup.com/ejil/article/28/3/921/4616676; OECD, Due Diligence Guidance for Responsible Business Conduct (Paris: OECD, 2018); OECD, Due Diligence for Responsible Corporate Lending and Securities Underwriting: Key Consideration for Banks Implementing the OECD Guidelines for Multinational Enterprises (Paris: OECD, 2019). 27 Cairan O’Faircheallaigh, “Public Participation and Environmental Impact Assessment: Purposes, Implications, and Lessons for Public Policy Making,” Environmental Impact Assessment Review 30, no. 1 (2010): 19–27; Thomas Webler, Hans Kastenholz, and Ortwin Renn, “Public Participation in Impact Assessment: A Social Learning Perspective,” Environmental Impact Assessment Review 15 (1995): 443–63. 28 UN 2011 GP 17. 29 UN 2011 GP 18; Karin Buhmann, “Meaningful Stakeholder Engagement as an Aspect of Risk-based Due Diligence between the Economy, Politics and Law: The Constitutive Role of the Business & Human Rights Regime,” in Regulation of Extractive Industries: Community Engagement in the Arctic, eds. Rachael Lorna Johnstone and Anne Merrild Hansen (Milton Park: Routledge, 2020), 78–98. 30 OECD, Guidelines for Multinational Enterprises, Part I, Chapter II, commentary 14.

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succinctly,”31 comprising three sets of factors: the country contexts in which business enterprises’ activities take place, with a view to identifying any specif ic human rights challenges; what human rights impacts the company’s own activities may have within that context in view of its capacity as producers, service providers, employers and neighbours; and f inally, whether it may contribute to abuse through the relationships connected to its own activities, such as with business partners, suppliers, State agencies and other non-State actors. This assumes that companies take proactive steps to understand how existing and proposed activities may affect human rights.32 In line with this, the OECD Guidelines note that companies should (e)ngage with relevant stakeholders in order to provide meaningful opportunities for their views to be taken into account in relation to planning and decision making for projects or other activities that may signif icantly impact local communities.33 Human rights risk assessments can be linked with other processes like risk assessments or environmental and social impact assessments but should be targeted to identifying risks to internationally recognised human rights. Based on the information uncovered, companies should ref ine their plans to address and avoid potential negative human rights impacts on an ongoing basis.34

Affected Stakeholders and Rights-Holders The UNGPs and the Framework report note that for the substantive content of the due diligence process, companies should look, at a minimum, to the International Bill of Human Rights (IBHR) and the fundamental conventions of the ILO.35 This means that as a minimum, companies should ensure that they respect the rights set out in the IBHR (comprising the Universal Declaration on Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights) and the ILO fundamental conventions (which set out the core labour rights of freedom of association and effective recognition of the right to collective bargaining, the elimination of all forms of forced or obligatory labour, effective abolition of child labour, and elimination of discrimination in employment and occupation, and as of 2022, occupational health and safety). However, as the report noted that the IBHR and the ILO conventions are the minimum that companies should consider, and since it also highlighted the contextuality of the human rights due diligence process, other international law instruments may be of relevance too. In an Arctic context, ILO’s Indigenous and Tribal Peoples Convention (No 169)36 can be of particular relevance in this regard, along with the soft-law UN Declaration United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).37 The principle of free, prior and informed consent (FPIC) is enshrined in these two instruments. UNDRIP provides for FPIC or related redress for Indigenous Peoples for a range of activities and decisions related to

31 UN 2008 para. 57. 32 Karin Buhmann, “Neglecting the Proactive Aspect of Human Rights Due Diligence? A Critical Appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One Avenue for Promoting Pillar Two Action,” Business and Human Rights Journal 3, no. 1 (November 2017): 23–45. 33 OECD, Guidelines for Multinational Enterprises, Part. I, Chapter II, para. A.14. 34 UN 2008 para. 61. 35 Ibid., para. 58; UN 2011 GP 12. 36 ILO (1989) Indigenous and Tribal Peoples Convention (Convention No. 169). 37 UN (2007) Declaration on the Rights of Indigenous Peoples (UNDRIP), UN doc A/RES/61/295.

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their lands, territories and property and for States to undertake measures to ensure the FPIC of Indigenous Peoples as well as to provide redress. ILO Convention No. 169 does not use the FPIC term directly but provides for rights of Indigenous and tribal Peoples to be consulted in regard to legislative and administrative measures that may affect them directly, and to freely participate in decision-making, including in regard to their development and their lands and territories, in particular natural resources pertaining to their lands.38 In line with other international conventions, ILO Convention 169 establishes obligations for governments to ensure that that right is implemented.39 There is not one single generally accepted def inition of FPIC, but it is held to mean i.a. that consent is sought and freely given prior to the authorisation and start of development activities, and that full information is given about the scope and impacts of proposed projects in regard to lands, resources and well-being.40 Accordingly, FPIC presumes elements of stakeholder engagement that include aspects of communication and information. As noted by Johnstone, the application of FPIC as a right is conditional of the affected stakeholders in question being Indigenous: non-Indigenous groups do not have right to FPIC.41 However, business-related human rights impacts do not only adversely affect Indigenous or tribal Peoples. They may also affect members of non-Indigenous groups, such as members of a country’s majority population forming the local community living around a (proposed) mine, energy or infrastructure project. The concept of meaningful stakeholder engagement as elaborated in the UNGPs, the OECD Guidelines and related guidance texts relates to all (affected) stakeholders, whether Indigenous, tribal or members of the majority population. Obviously, companies can rely on the principles in UNDRIP and ILO Convention 169 in regard to other populations that Indigenous and tribal ones. Such an approach, however, may be more natural to companies with pre-existing high levels of human rights awareness and understanding. The elaboration of meaningful stakeholder involvement in the UNGPs explains meaningful stakeholder engagement in a general context that applies to all affected stakeholders, while underscoring that business enterprises should pay special attention to any particular human rights impacts on individuals from groups or populations that may be at heightened risk of vulnerability or marginalization, and bear in mind the different risks that may be faced by women and men.42 The UNGPs explicitly deploy the stakeholder term in a wide sense that includes “individuals and communities directly affected by the activities of enterprises in various parts of the world.”43 That language includes rights-holders whose human rights are or can be harmed by the activities.

38 ILO C169 (n. 36), art. 7(1). 39 Ibid., art. 2. 40 See further Emma Wilson, “Indigenous Rights and Resource Development in the Arctic: An Overview of International Standards and Principles for Consultation, Participation and Consent,” in Regulation of Extractive Industries: Community Engagement in the Arctic, eds. Rachael Lorna Johnstone and Anne Merrild Hansen (Milton Park: Routledge, 2020), 11–46, at 13; Rachael Lorna Johnstone, “What Is Required for Free, Prior and Informed Consent and Where Does It Apply?” in Regulation of Extractive Industries: Community Engagement in the Arctic, eds. Rachael Lorna Johnstone and Anne Merrild Hansen (Milton Park: Routledge, 2020), 47–77, esp. 47–50. 41 Ibid., Johnstone, “What Is Required for Free, Prior and Informed Consent and Where Does It Apply?” 49. 42 UN 2011, commentary to GP 18. 43 For example, the Introduction notes, ‘the Guiding Principles are informed by extensive discussions with all stakeholder groups, including Governments, business enterprises and associations, individuals and communities directly affected by the activities of enterprises in various parts of the world, civil society, and experts in the many areas of law and policy that the Guiding Principles touch upon’ (UN 2011, Introduction, para. 10).

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By “affected stakeholders,” the UNGPs refer to what the human rights literature refers to as rights-holders or victims in regard to business-related harm. Application of the “affected stakeholder” term serves as an avenue for the UNGPs and related guidance texts to connect with managers and management scholars who are familiar with stakeholders as core actors for business management.44 The focus, however, in addition to workers is on stakeholders removed from the company itself, such as host communities for mining or production, and on preventing harm. Since the OECD in 2011 revised the Guidelines for Multinational Enterprises to be aligned with the UNGPs and to apply due diligence across most of the responsible business conduct topics covered by the Guidelines, the OECD’s several guidance for implementation of the Guidelines have come to form a major source of elaboration and clarif ication on due diligence or elements of the process. The fact that rights-holders hold a special role in meaningful stakeholder engagement is underscored by an OECD guidance on meaningful stakeholder engagement which notes that if “impacted stakeholders, in particular rights-holders and vulnerable populations, are not explicitly recognised and prioritised during stakeholder identif ication and mapping activities, stakeholder engagement activities risk prioritising those actors and groups with the most power and influence.”45

Meaningful stakeholder consultation or engagement and focus The UNGPs refer to meaningful stakeholder consultation in the text of Guiding Principle 18, which concerns identif ication and assessment of actual or potential adverse human rights impacts. The OECD GP 18 notes that the impact assessment should (b) Involve meaningful consultation with potentially affected groups and other relevant stakeholders, as appropriate to the size of the business enterprise and the nature and context of the operation. Elaborating the operational implications for implementation, the commentary notes that To enable business enterprises to assess their human rights impacts accurately, they should seek to understand the concerns of potentially affected stakeholders by consulting them directly in a manner that takes into account language and other potential barriers to effective engagement.46 This form of consultation exceeds a formal consultation that is technically in accordance with a legal requirement on an organisation to consult, but does not deliver an actual dialogue, information sharing, and opportunities for rights-holders to express their concerns and participate in decision-making.

44 Karin Buhmann, Changing Sustainability Norms through Communicative Processes: The Emergence of the Business & Human Rights Regime as Transnational Law (Cheltenham: Edward Elgar, 2017). 45 OECD, Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector (Paris: OECD, 2017), 44. 46 UN 2011, commentary to GP 18.

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The commentary adds, In situations where such consultation is not possible, business enterprises should consider reasonable alternatives such as consulting credible, independent expert resources, including human rights defenders and others from civil society.47 Although they build on the UNGPs, the OECD Guidelines apply the term meaningful stakeholder engagement. The commentary to due diligence underscores the dialogue character (“interactive processes,” “two-way communication”). The Guidelines note, Stakeholder engagement involves interactive processes of engagement with relevant stakeholders, through, for example, meetings, hearings or consultation proceedings. Effective stakeholder engagement is characterised by two-way communication and depends on the good faith of the participants on both sides. This engagement can be particularly helpful in the planning and decision-making concerning projects or other activities involving, for example, the intensive use of land or water, which could signif icantly affect local communities.48 Meaningful engagement is also applied in OECD guidance for implementation of the Guidelines and commonly deployed in academic and practice-oriented conversations. Accordingly, in this context the terms are synonymous. They should be understood to go beyond formal legal requirements to ensure an interactive process that is meaningful to those at risk. References in the following to the OECD Guidelines and guidance indicate emphasis on a process that is designed to ensure that information and communication is, indeed, meaningful to rights-holders. The references are examples only and do not fully demonstrate the elements of meaningful stakeholder engagement. The OECD guidance on meaningful stakeholder engagement in the extractive sector further underscores the bottom-up aspect of the consultation or engagement process. It refers to consultation and learning as inherently connected, emphasising that the process can help the company understand social impacts from the perspective of those affected: Consultation/learning is appropriate when needing to gather information in order to build an understanding of the project context and understand the concerns and expectations of stakeholders and is relevant in all stages of a project.49 Specif ically in regard to Indigenous Peoples, the guidance observes that in countries where FPIC is not mandated, companies should pursue an engagement strategy that meets the legitimate expectations of Indigenous Peoples to the extent that it does not place them in violation of domestic law. They should agree with affected Indigenous Peoples on a process for working towards seeking their FPIC. The process should identify the specif ic current and future activities where consent should be sought. The process should always be based on good faith negotiation free of coercion, intimidation or manipulation. The company should recognise that the process of seeking FPIC as iterative rather than a one-off discussion. It may be appropriate to apply a formal or legal agreement to commit

47 Ibid. 48 OECD, Guidelines for Multinational Enterprises, Part I, Chapter II, commentary 25. 49 OECD, Due Diligence Guidance for Meaningful Stakeholder Engagement, 63.

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the company to the process. The process should include a consultation to def ine what constitutes appropriate consent for affected Indigenous Peoples in accordance with their governance institutions, customary laws and practices. Indigenous Peoples should be able to participate through their own freely chosen representatives and customary or other institutions.50 Also underscoring the operational implications for the process to be meaningful to those at risk (whether Indigenous or not), the guidance notes that all information relating to the activity should be provided “in a manner that is timely, objective, accurate and understandable to them.”51 The guidance explains that meaningful stakeholder engagement refers to ongoing engagement with stakeholders that is two-way, conducted in good faith, and responsive. Twoway engagement means, inter alia, that parties express opinions, share perspectives and listen to alternative viewpoints to reach mutual understanding and that steps are taken towards a joint decision-making process. Good faith engagement depends on the participants on both sides of engagement. It means that the parties engage with the genuine intention to understand how stakeholder interests are affected by enterprise activities. Responsive engagement requires a follow-through on outcomes of stakeholder engagement activities through implementation of commitments that the parties have agreed to. As part of this, it must be ensured that adverse impacts to stakeholders are appropriately addressed. This includes the provision of remedies when enterprises have caused or contributed to the impact and that stakeholder views are taken into account in project decisions.52 The guidance explains that meaningful stakeholder engagement is an important means of implementing due diligence for several reasons: it constitutes an effective activity for identifying and avoiding potential adverse impacts, appropriately mitigating and remedying impacts when they do occur, and ensuring that potential positive impact are optimised for all stakeholders. If stakeholder engagement is not properly carried out, its function to help identify and act on impacts as part of the due diligence process may not be realised and adverse impacts may not be avoided or addressed. Moreover, poor stakeholder engagement can give rise to actual or perceived adverse impact.53 The launch of the process as such or inviting stakeholder to share their views and perceptions of needs to be addressed, raises expectations that stakeholders’ views will be taken seriously and acted upon. If the stakeholder engagement process is not thorough, impacts may be overlooked, and stakeholders may lose trust in the process or the company.

Impact Assessment Impact assessment is an established process in regard a number of specif ic types of impacts (environmental, social, health, human rights, sustainability or combinations of those) or framing activities (especially policy).54 Impact assessments encompass a scoping (or mapping) and assessment of impacts, as well at mitigating of impacts, often implemented through a permit with conditions. Impact assessment is the subject of research by scholars from a diverse range of social sciences, technical planning, engineering and other f ields. Impact assessment theory relates to various stages of the process and its objectives and outputs. Impact assessment frequently focuses on harmful impacts

50 Ibid., 96–97. 51 Ibid. 52 Ibid., 18. 53 OECD, Due Diligence Guidance for Meaningful Stakeholder Engagement, 18. 54 Jenny Pope and Francois Retief, “Advancing the Theory and Practice of Impact Assessment: Setting the Research Agenda¸” Environmental Impact Assessment Review 41 (2019): 1–9.

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but may also include positive impacts or the maximisation of benef its. Impacts on individuals or groups of individuals are frequently addressed under social impact assessment but may also f igure in environmental impact assessment. Human rights impacts on individuals or (Indigenous) groups of individuals are a major topic in human rights impact assessment (HRIA) but can also be included in social impact assessment or environmental impact assessments. Impact assessment theory related to involving stakeholders in the process originates in environmental, social or integrated impact assessment.55 However, integration of human rights in impact assessments conducted in economic contexts remains a work in progress.56 The emphasis on impacts on individuals has caused attention to be given to processes that involve affected individuals or their representatives. This assumes a bottom-up approach to the process. The bottom-up approach need not fully supplant a top-down approach but informs the entire process so as to generate insights on the perceptions, needs, relevant local or traditional knowledge, suggestions and other views of those who are (at risk of being) affected by a (proposed) project. Studies on social impact assessment indicate that “good” practice is participatory; supports affected Peoples, proponents and regulatory agencies; increases understanding of change and capacities to respond to change; seeks to avoid and mitigate negative impacts and to enhance positive benef its across the life cycle of developments; and emphasises enhancing the lives of vulnerable and disadvantaged people.57 Impact assessment scholars have highlighted the need for engagement that is meaningful to affected stakeholders in terms of process, as well as capacity and social learning outcomes for positive impacts and remedies for harmful ones. They also note that impact assessment processes tend to overlook the community perspective and that local legislative frameworks are often inadequate for that purpose.58 Other scholars note that assessments of human rights impacts should be contextual, participatory and relevant to the needs of vulnerable communities and other groups.59 Countries in the Nordic Arctic have legislative – albeit divergent – requirements for project level environmental and/or social impact assessment.60 Impact assessment is regarded as one of the main arenas for communicating and discussing specif ic developments at the project level in these countries, with stakeholder involvement an important qualitative aspect of such impact assessment.61 Such a process presumes that information is shared in a form that is understood by affected stakeholders and their representatives. Greenland stands out the Arctic context by having introduced particularly detailed requirements to ensure early involvement of stakeholder in processes of social impact assessments (so-called social

55 Frank Vanclay and Ana Maria Esteves, New Directions in Social Impact Assessment (Cheltenham: Edward Elgar, 2011); James Harrison, “Establishing a Meaningful Human Rights Due Diligence Process for Corporations: Learning from Experience of Human Rights Impact Assessment,” Impact assessment and Project Appraisal 31, no. 2 (2014): 107–17. 56 Nora Götzmann, Human Rights Impact Assessment: Principles, Methods and Approaches (Cheltenham: Edward Elgar, 2019). 57 Esteves A. M. D. Franks and F. Vanclay, “Social Impact Assessment: The State of the Art,” Impact Assessment And Project Appraisal 30, no. 1 (2012): 43–42. 58 Aniekan Udof ia, Bram Noble and Greg Poelzer, “Community Engagement in Environmental Assessment for Resource Development: Benef its, Enduring Concerns, Opportunities for Improvement,” The Northern Review 39 (2015): 55–67; O’Faircheallaigh, “Public Participation and Environmental Impact Assessment,” 19–27; Webler et al., “Public Participation in Impact Assessment,” 443–63. 59 John R. Owen and D. Kemp, “Social Licence and Mining: A Critical Perspective,” Resources Policy 38, no. 1 (2013): 29–35; Harrison, “Establishing a Meaningful Human Rights Due Diligence Process for Corporations: Learning from Experience of Human Rights Impact Assessment,” 107–17. 60 Nenasheva et al., “Legal Tools,” 13–35. 61 Hansen et al., “Social and Environmental Impact Assessment in the Arctic.”

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sustainability impact assessments) under the Mineral Resources Act.62 Following localised critique and discontent,63 the act was amended in 2014 to increase early citizen involvement.64 The extensive social impact assessment requirements and the amendments are interesting examples of how the law in an Arctic country has evolved to in response to citizen’s discontent to seek to accommodate increased involvement of citizens. As discussed in the next section, however, it remains an open question whether the amendments are actually delivering meaningful stakeholder engagement in the sense of the UNGPs. Impact assessments are typically performed by companies based on governmental requirements, which in turn are often founded in international commitments, such as international human rights or environmental law. As noted, ILO Convention 169 recognises the rights of Indigenous Peoples to participation and free prior and informed consent (FPIC) in decision-making process affecting their land and territories. Moreover, the Aarhus Convention recognises extensive involvement of citizens in environmental decision-making that in many cases have human rights implications.65 Yet, as demonstrated by research,66 community reactions to renewable energy or transition mining projects suggest that the transformation of the formal requirements into local practices can result in decisions that are contentious or in communities perceiving their traditions and needs to be overlooked due to economic or political priorities, despite formal consultations and consultation rights.

Consultation, Meaningful Stakeholder Engagement and Arctic Social Impact Assessment Law Across the Arctic countries, national legislation on environmental and/or social impact assessment provide for rights of the public to participate in decision-making. It is not uncommon for social issues to be included in environmental impact assessments under these legal frameworks.67 The right to participate is the juridical corollary of stakeholder involvement as discussed in the wider impact assessment literature and the organisational literature. It may be considered an extension of the human rights to participation in public decision-making affecting one’s life.68 Unlike FPIC, which can only be claimed as a right by Indigenous Peoples, human rights to public participation in decision-making applies to everyone and can be claimed by everyone. The Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights provide

62 Act on Mineral Resources and Mineral Ressource Activities [Inatsisartutlov nr. 7 af 7. december 2009 om mineralske råstoffer og aktiviteter af betydning herfor (råstofloven)] as amended (sections 76 and 77; compare also sections 87 a-d and 95, as per amendment Act of June 8, 2014 [Inatsisaturlov nr. 6 af 8. juni 2014 om ændring af Inatsisartutlov Inatsisartutlov nr. 7 af 7. december 2009 om mineralske råstoffer og aktiviteter af betydning herfor (råstofloven) (Tidlig borgerinddragelse og offentlig høring)]. 63 See e.g. Anne Merrild Hansen and Rachael Lorna Johnstone, “Improving Public Participation in Greenland Extractive Industries,” Current Developments in Arctic Law 5 (2017): 29–33; Bjørst, “Saving or Destroying the Local Community?” 34–40. 64 Act of June 8, 2014. 65 See e.g. Johnstone, “What Is Required for Free, Prior and Informed Consent and Where Does It Apply?” 47–77. 66 E.g. Cambou et al., “Reindeer Husbandry vs. Wind Energy,” 39–58; Cambou, “Uncovering Injustices,” 310–33; Bowles and MacPhail, “The Town That Said ‘No,’ ” 15–23; Lindahl et al., “Competing Pathways to Sustainability?” 402–15; Bjørst, “Saving or Destroying the Local Community?” 34–40. 67 Nenasheva et al., “Legal Tools,” 13–35. 68 E.g. Ola Mestad, “Rights to Public Participation in Norwegian Mining, Energy, and Resource Development,” in Human Rights in Natural resource Development. Public Participation in the Sustainable Development of Mining and Energy Resources, eds. Donald N. Zillman, Alastair R. Lucas and George (Rock) Pring (Oxford: Oxford University Press, 2002), 383–400.

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for a right of citizens to take part in the government of his or her country or the conduct of public affairs, directly or through freely chosen representatives.69 More recent international law instruments have expanded the understanding to apply to decision-making on issues affecting the lives of the individual, such as environmental or health issues.70 A study of public participation in national impact assessment legal frameworks pertaining to environmental and health impacts in the Barents-Euro Arctic regions (Finland, Norway, Sweden and Northwest Russia) found that, for example, in Finland, large numbers of meetings set up to allow for public participation can result in meeting fatigue. Moreover, extensive technical information can lead to information overloads with members of the public unable to digest and respond to the information given.71 Studies of public participation in social sustainability (social impact) assessments in Greenland in regard to natural resources have made similar f indings.72 These f indings suggest that meetings and information do not by themselves make involvement meaningful to affected stakeholders. Interestingly, the Greenland study took place after the introduction of 2014 amendments to enhance public participation through early citizen involvement and consultation.73 The f indings suggest that despite the legislative efforts to enhance citizen involvement, the public still f inds the consultation process overly top-down in approach and planned without adequate consideration or awareness of the income generation activities or traditions of the individuals or communities that might be affected by the projects. Indeed, the study provides examples of consultation meetings taking place at times or at locations that are highly inconvenient to the concerned public – for example, requiring sheep farmers to organise an overnight stay away from their flocks.74 In Greenland, the social impact assessment in regard to natural resources provides input for the identif ication of impacts to be addressed through the subsequent drafting and conclusion of an impact benef it agreement (IBA). Setting out the action to be taken to address the impacts identif ied through the social impact assessment process, IBAs so to speak take over where the environmental or social impact assessment ends. For example, IBAs in Greenland’s mining sector aim at ensuring the social commitment through the lifetime of the project from the involved parties.75 According to Guidelines issued to assist the implementation of social sustainability impact assessments, the process is a scoping and assessment process that includes stakeholder consultation.76 Increased exploration activities and interests in sectors such as mining and oil and gas production has led to an increase in social sustainability assessments. A Barents-Euro Arctic area study of impact assessment noted that patient and constant attentiveness to the aspiration of local people is necessary for an impact assessment process to generate relevant insights. The study also found that an adequately performed impact assessment process

69 Universal Declaration on Human Rights, art. 21(1); International Covenant on Civil and Political Rights 1966 (ICCPR), art. 25(a). 70 Vienna Declaration and Programme of Action (1993), UN Doc A/CONF.157/23; Convention on Access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention, 1998). 71 Nenasheva et al., “Legal Tools,” 13–35. 72 Johnstone and Hansen, “Comparative Expectations of Resources,” 125–55. 73 Act of June 8, 2014. 74 Johnstone and Hansen, “Comparative Expectations of Resources,” 125–55. 75 Government of Greenland, Guidelines for Social Impact Assessments for Mining Projects in Greenland (Bureau for Minerals and Petroleum, 2009), section 2.3. 76 Ibid.

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can provide companies with an understanding of the level of support for their project, as well as of changes to be considered to enhance support and “social license.”77 There are also examples of the meaningfulness of public participation being put under pressure due to public policy priorities. A consultation is not a right to have one’s way.78 However, consultation may come to appear a formality with no substantive signif icance for a project if objections raised by an entity with qualif ied consultation rights are fully disregarded. In Norway, the 2005 Finnmark Act gave the Indigenous Saami enhanced rights and decision-making power over uncultivated lands. The Finnmark region is home to the main Norwegian Saami population. The Finnmark Act grants the Saami Parliament a right to be heard when their area of influence is impacted. However, despite the Saami Parliament’s opposition to a proposed copper mine in Kvalsund due to the mine’s expected impacts on reindeer grazing of the local Saami, the national authorities granted the project a permission to go ahead79 (albeit on condition that the mining company and the affected reindeer-herding groups reach an agreement on remedial measures). The mine has a signif icant potential for electric battery production for electrif ication of cars in Norway. The government recognised that the planned activities would occupy and impact key grazing areas and migration routes but argued that the benef its of economic growth and development in Kvalsund outweigh such costs.80 To local Saami and the members of the Saami Parliament, the rejection of the opposition and arguments of the Saami Parliament makes it questionable whether taking the time to inform and argue a position is actually meaningful.81 In Sweden, the environmental code establishes a series of steps to be undertaken as part of environmental impact assessment. These steps include project screening, scoping, consideration of alternatives, description of environmental baselines, identif ication, prediction and evaluation of impacts, public consultation, mitigating and monitoring of impacts, presentation and documentation, and review and decision-making. Small EIAs are handled by the County Administrative Board. Larger ones are referred to the Environmental Court for approval.82 The Environmental Code states which organisations and communities should be consulted during the consultation process, but the developer must still make their own interpretation of the requirements.83 Despite quite elaborate regulation, Sweden has seen a high number of court cases by Saami reindeer herders challenging the establishment of wind farms on lands used for reindeer grazing.84 This suggests that the preceding process of consultation is not adequate to ensure a solution in which the reindeer herders are satisf ied with the project impacts. While this need not by itself indicate whether the process is meaningful from their perspective, it does appear as if the impact assessment process is not adequately set out or designed to ensure a substantive integration of the Saami views into the decision-making

77 Nenasheva et al., “Legal Tools,” 13–35. 78 The current chapter does not engage with the specif ic debate on the connection between consultation and consent in the FPIC context. 79 Author’s interviews with attendants at workshop on stakeholder engagement in Karasjok, Finnmark, June 4–7, 2019, co-organised by the Norwegian Centre for Human Rights and the Norwegian OECD Contact Point with author’s NOS-HS project Best Practice for Impact Assessment of Infrastructure Projects in the Nordic Arctic: Popular Participation and Local Needs, Concerns and Benef its. 80 Kathrine Ivsett Johnsen (n.y.) “The Paradox of Reindeer Pasture Management in Finnmark, Norway,” Strategic Environmental Impact Assessment of Development of the Arctic, accessed July  5, 2021, www.arcticinfo.eu/en/ features/112-the-paradox-of-reindeer-pasture-management-in-f innmark-norway. 81 Author’s interviews, Karasjok, Finnmark, June 2019. 82 Nenasheva et al., “Legal Tools,” 13–35. 83 Ibid. 84 Cambou et al., “Reindeer Husbandry vs. Wind Energy,” 39–58; Cambou, “Uncovering Injustices,” 310–33.

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process. The level of dissatisfaction suggests that the process may be too top-down and too little bottom-up to ensure an understanding of the concerns from the perspective of those affected. A case85 handled by the Swedish and Norwegian National Contact Points (NCPs) for the OECD’s Guidelines for Multinational Enterprises illustrates some of the issues that pertain to the process. OECD NCPs are so-called State-based non-judicial remedy institutions. NCPs deal with complaints of inadequate observation by companies of the Guidelines and enjoy certain extraterritorial powers in regard to the cases that they can handled. Being non-judicial, the NCP cannot make legally binding decisions but can issue criticism and recommendations. The complainants claimed that a wind power plant would reduce their possibility of continuing to pursue reindeer herding and alleged that meaningful stakeholder engagement had not been conducted. One of the contentious issues was that participation in activities organised by the company for impact assessment took time from reindeer herding, causing the reindeer herders to suffer economic losses and reducing the meaningfulness of participation in the impact assessment. The reindeer-herding collective lodging the complaint acknowledged that Statkraft had consulted with the community during the planning stages of the wind power plant but contended that “meaningful engagement” had not taken place in accordance with the Guidelines. They alleged non-observance of the right of Indigenous Peoples to FPIC according to ILO’s Convention 169. The NCP did not f ind that Statkraft had failed to observe the OECD Guidelines but issued recommendations for action that the company might consider for future actions. This included to consider and promote Indigenous Peoples’ rights,86 complementing the normative baseline of the UNGPs and OECD’s Guidelines by underscoring that companies are not limited to observing the International Bill of Rights and ILO’s fundamental conventions. The statement helped clarify that a company can go beyond that baseline and include additional human rights instruments in its due diligence process, with ILO Convention 169 of particular relevance in Indigenous or tribal areas.

Conclusion and Outlook Meaningful stakeholder engagement holds a prime function for adequate assessments of human rights impacts and wider social impacts in leading soft law on responsible business conduct (the UNGPs and the OECD Guidelines for Multinational Enterprises). Engaging with those who are at risk of being affected adversely by economic activities in a manner that is meaningful to affected stakeholders or rights-holders is a condition for understanding risks or impacts from their perspective to be able to address those risks or impacts adequately with a view to not doing harm and to ensure redress that is also meaningful from the perspective of victims in case harm nevertheless occurs. In the responsible business context, the concept emerged in the interdisciplinary process of softlaw development around business responsibilities for human rights, especially as a core element of human rights (risk-based) due diligence. From the business and human rights f ield, the concept has fertilised wider normative thinking in which social and environmental impact assessment plays a role. Reflecting the interdisciplinary background and process, the concept relates to the inclusive stakeholder concept established in business ethics, which recognises communities as stakeholders

85 National Contact Point Norway and National Contact Point Sweden, Press Release: The OECD National Contact Points (NCPs) in Norway and Sweden Congratulate Statkraft/SSVAB and Jijnjevaerie Saami Village on Reaching an Agreement – Responsible Business Conduct in Indigenous Peoples’ Areas Is Important, August 24, 2016. 86 Ibid.

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with a claim to participate in decisions that substantially affect their welfare and to have their human rights respected. It also relates to human rights law on public participation and to impact assessment theory emphasising bottom-up approaches in order to adequately ensure the meaningful involvement of potentially or actually affected stakeholders. Affected stakeholders is the term commonly applied in organisational and impact assessment studies. It corresponds to rights-holders in legal terminology to the extent that the human rights of these stakeholders are at risk or harmed. In the responsible business conduct context, the idea is precisely to recognise those stakeholders most at risk. Accordingly, the term “stakeholders” or “affected stakeholders” should not be understood to slight the interests and rights of rightsholders. On the backdrop of the development of the UN Framework report, it serves to ensure that business organisations that are already familiar with the stakeholder term take engagement with affected stakeholders seriously in order to understand their human rights risks or harmful impacts. Meaningful stakeholder consultation/engagement also relates to FPIC. However, in the responsible business context it expands the right from Indigenous Peoples to all affected stakeholders/rights-holders. This results from the fact that the UNGPs apply in all countries and the OECD Guidelines to companies operating in or out of the OECD or countries adhering to the Guidelines. Risk-based due diligence is contextual. In regard to Indigenous Peoples, a statement from the OECD NCPs of Norway and Sweden in relation to a case involving a Saami reindeer collective has contributed to underscoring that companies should exceed the minimum normative baseline of the IBHR and the ILO core labour rights when operating in areas where Indigenous Peoples’ interest are at stake and pay attention to those rights and ILO Convention 169. Experience and studies from elsewhere in the Arctic suggest that despite comprehensive legal frameworks, rights-holders continue to experience that consultations required by law do not take place in ways that are meaningful. Examples are far too many to have been included comprehensively in here. However, the cases covered do illustrate several challenges for affected stakeholders to perceive consultations and engagement efforts to be meaningful: meetings planned at times or places that are inconvenient to those affected with little regard to their income-generating activities or cultural traditions, settings too formal to allow for dialogue, and information sharing too technical for lay people to understand and question. These points indicate that formally granting rights of consultation and public participation through impact assessment legislation does not by itself translate into meaningful stakeholder engagement. More attention is needed to design processes that are meaningful from the perspective of those potentially or actually affected in order for consultations to adequately identify risks or impacts from the perspective of rights-holders, in line with the intentions of human rights due diligence and wider risk-based due diligence. Providing affected stakeholders with a say through meaningful engagement is an important aspect of human rights due diligence and a way to help fulf illing the procedural human right to the participation in decision-making, which in turn can help affected stakeholders ensure that their substantive rights are respected. Meaningful stakeholder engagement is a key element in the continuous process of risk-based due diligence established by the UNGPs and the OECD Guidelines as a management process that companies should undertake to identify and manage their harmful societal impacts. Complemented by guidance texts, the UNGPs and OECD Guidelines are key sources of norms for meaningful stakeholder engagement. However, meaningful stakeholder engagement is not just

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a soft law issue. Mandatory risk-based due diligence is a candidate for legislation compliance obligation under national law, including the Arctic, and currently being considered for a new EU directive, which will affect Arctic EU States and States that are members of the European Economic Area (EEA). Meaningful stakeholder engagement forms part of the steps that a company must undertake in order to discharge its due diligence obligations. Yet for such a legislative process to deliver on the ideals intended, lessons from current procedural formalisation of consultation rights and public participation through social impact assessment should be kept in mind. As demonstrated earlier, formal rights regrettably do not by default lead to substantive involvement and experienced meaningful engagement.

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34 CORPORATE GOVERNANCE AND ALASKA NATIVE CORPORATIONS Grant Christensen

Introduction When asked to imagine corporate involvement in the polar region, it is the vast extractive services industry that immediately comes to mind.1 From purpose-built company towns like Norilsk, Vorkuta and Longyearbyen focused on mining to the Arctic oil drilling outposts like Prudhoe Bay or Okha (whose coat of arms prominently features an oil derrick) – the most recognisable corporate influence in the circumpolar region is dominated by resource extraction. This focus on oil, gas and minerals overlooks an exciting emerging class of corporations that have embraced arctic climate, culture and norms to challenge traditional conceptions of corporate structure and behaviour.2 Far from New York, London, or Tokyo, Indigenous communities have begun to reimagine the corporate form. In the United States, Indigenous Nations implement their own incorporation codes, permitting the creation of corporate entities with very different features from their Statechartered brethren. A  traditional corporation’s structure divorces capital from labour, allowing those who fund the corporation through stock purchases to claim a portion of a corporation’s prof it without contributing any labour to the creation of goods or provision of services which allow the corporation to remain a going concern.3 This separation of labour and capital is anathema to most Indigenous tradition and culture, which often emphasises reliance on community and cooperation.4 When a settlement with the United States federal government in 1971 forced Indigenous Alaskan communities to restructure themselves as a series of village and regional corporations, Indigenous culture and the corporate form were forced into an uncomfortable marriage of necessity.

1 Hari M. Osofsky, Jessica Shadian, and Sara L. Fechtelkotter, “Arctic Energy Cooperation,” U.C. Davis Law Review 49 (2016): 1431. 2 Ibid., 1484. 3 See, generally, David G. Yosifon, “The Public Choice Problem in Corporate Law: Corporate Social Responsibility after Citizens United,” North Carolina Law Review 89 (2011): 1203. 4 Grant Christensen, “Indigenous Perspectives on Corporate Governance,” University of Pennsylvania Journal of Business Law 23 (2021): 902. DOI: 10.4324/9781003404828-44 582

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Today, Alaska Native Corporations (ANCs) are among Alaska’s largest employers with a dynamic governance structure that blends Indigenous and corporate values allowing them to uniquely reimagine the corporate form.5 With much of polar law focused on the public sector it can be easy to overlook the fact that the poles also incubate a thriving private sector outside the extractive services industry. This chapter explores some of the unique contributions that Indigenous corporations in Alaska have brought to corporate governance, including a governance structure that is stakeholder centred. It argues that non-Indigenous corporations should learn from these ANCs in order to promote greater sustainability.

A Brief Note About Terminology This chapter will use the term Indigenous or Alaska Native as often as possible, but in several places – including in the sources cited – the term “Indian” is used. In many countries this word carries highly offensive and even racist connotations.6 In the United States, however, the term is used as a legal term of art to def ine places where the inherent powers of Indigenous sovereigns are at their zenith, “Indian country,”7 and to def ine the complete list of tribal sovereigns with which the United States maintains government to government relations.8 This list includes Alaskan tribes among the list of 574 “tribal entities recognized by and eligible for funding and services from the Bureau of Indian Affairs (BIA) by virtue of their status as Indian Tribes.”9 Accordingly, while the author of this chapter recognises the problematic legacy of the term “Indian” in many contexts, the term appears in quotations and in citations (particularly citing to materials from the United States) without intending to cause any offense. When the term is used in the text that follows, it applies strictly to the legal term of art used in the United States. Finally, while this chapter is new, it draws upon the author’s ongoing research project into Indigenous corporate governance. Previous iterations can be found here.10

The Origins of Alaska Native Corporations Unlike with many Indigenous communities in the continental United States, there are no treaties between the United States and Alaskan tribes.11 Alaska was purchased by the United States from Russia in 1867 and the United States ended treaty-making with Indigenous People in 1871.12 Perhaps precisely because there is no 19th-century treaty relationship, the federal government’s approach to Indigenous Alaskan governance when it was formalised a century later

5 “Alaska Native Corporations,” Resource Development Council, www.akrdc.org/alaska-native-corporations. 6 H. P. Glenn, Legal Traditions of the World (Oxford: Oxford University Press, 2014), 60 at note 1. 7 18 U.S.C. §1151. 8 Federally Recognized Indian Tribe List Act of 1994, Public Law 103–454, U.S. Statutes at Large, 108 (1994): 4791. 9 Bureau of Indians Affairs, “Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs,” Federal Register 86 (January 29, 2021): 7554. 10 Christensen, Indigenous Perspectives, 902; Grant Christensen, “What Does It Mean to Be Sustainable: The Relationship between Corporations and Indigenous People,” in Cambridge Handbook of Corporate Law, Corporate Governance, and Sustainability, eds. Beate Sjåfjell and Christopher M. Bruner (Cambridge: Cambridge University Press, 2019). 11 Donald Craig Mitchell, “Alaska v. Native Village of Venetie: Statutory Construction or Judicial Usurpation? Why History Counts,” Alaska Law Review 14 (1997): 362. 12 Robert Miller, “Consultation or Consent: The United States’ Duty to Confer with American Indian Governments,” North Dakota Law Review 91 (2015): 46–51.

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was designed to encourage tribal self-suff iciency in addition to recognising the importance of tribal sovereignty. The Alaska Native Claims Settlement Act (ANCSA) intended to treat the relationship between the federal government and Alaskan tribes differently from the federal-tribal relationship in the contiguous United States by announcing that there would be no “reservation system or lengthy wardship or trusteeship.”13 Instead ANCSA established more than 200 village14 and 13 regional corporations15 which would together be responsible for managing Indigenous Alaskan lands prof itably and for the benef it of their communities.16 Collectively known as Alaska Native Corporations, these new corporate forms have been at the vanguard of experimentation with the application of chthonic law and corporate governance. As Justice Sotomayor has recently opined, “ANCs are sui generis entities created by federal statute and granted an enormous amount of special federal benef its as part of a legislative experiment tailored to the unique circumstances of Alaska and recreated nowhere else.”17 ANCs are fascinating entities because they were created not only to return a prof it for their Native shareholders but also to manage land and resources in ways that are consistent with the cultural values of the communities they serve. As Professor Angelique EagleWoman has articulated, “ANCs were meant to participate in the U.S. market economy as other corporations with the added responsibility of providing benef its for the Native community composed of the Native shareholders – a type of hybrid corporate purpose.”18 ANCs meet this dual commitment in a variety of interesting ways which provide opportunities to examine Indigenous corporate governance.

An Autochthonous Approach to Corporate Law ANCs are unlike any other corporate entity in the United States. They are chartered not under State law, but rather created whole-cloth by a federal statute and then became directly responsive to the membership of the tribal governments they serve. Because their origin is different, the rules that govern their structure and governance are also different. ANCs are run by and managed for the benef it of Alaskan Natives and as such they have come to be governed by autochthonous or chthonic legal principles.19 In this way ANCs are creating a new kind of private corporate law in the Arctic that not only generally encourages sustainable development but also serves as a model for corporate governance reform. By imbedding the lessons of Indigenous governance into corporate law, corporate entities can be created which are run sustainably and which respond to social, environmental and community concerns while still generally providing prof itable returns to be distributed to shareholders.

13 25 U.S.C. §1601(b). 14 Village Corporations are authorised under 43 U.S.C. §1607(a) (2012). 15 Regional Corporations are authorised under 43 U.S.C. §1606(a), (c) (2012). The 12 geographically centred corporations are listed in subsection (a), and the 13th corporation – incorporated for the benef it of Native Alaskans living outside of Alaska – is provided for in subsection (c). 16 Douglas M. Branson, “Still Square Pegs in Round Holes? A Look at ANCSA Corporations, Corporate Governance, and Indeterminate Form or Operation of Legal Entities,” Alaska Law Review 24 (2007): 203 (examining the laws governing Alaska Native Corporations). 17 Yellen v. Confederated Tribes of the Chehalis Reservation, 141 S. Ct. 2434 (June 25, 2021). 18 Angelique EagleWoman, “Rebuilding Commercial Prosperity in Spite of U.S. Trade Restraints – Recommendations for Economic Revitalization in Indian Country,” Tulsa Law Review 44 (2008): 383. 19 Glenn, Legal Traditions, 60–94.

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Tribal governments and their concomitant sovereign powers were not initially expressed through formal writings. As Cohen’s Handbook of Federal Indian Law notes, “In precontact times, different worldviews and experiences molded Indian nations into an array of evolving governmental forms.”20 The origins of Indigenous law and governance are thus not written down in any def initive or canonical text. Because precontact tribal governments were not memorialised in written constitutions or statutes, information about these governments comes from the oral traditions of Native Peoples, anthropological studies of variable quality, and the sometimes unreliable written accounts of early non-Indian traders, missionaries, and military.21 Despite the comparative dearth of extant primary texts, Indigenous People had no trouble constructing legal systems and norms to govern disputes among themselves and their neighbours based on traditional story and practice. But how do we classify these legal systems? H.P. Glenn suggests that Indigenous legal thought belongs not to the common law or civil law, but to its own inherent legal tradition.22 In English the Indigenous legal tradition has come to be called “chthonic” or “autochthonous” from the Greek “chthon” meaning earth because the origin of the law has developed from the People where they have always lived.23 Glenn describes autochthonous law as the original legal tradition; “[s]ince all people of the earth are descended from people who were chthonic, all other traditions have emerged in contrast to chthonic tradition.”24 Autochthonous law f inds its origins in tradition, custom, practice and teaching. It has been preserved and passed down orally through generations and has manifested itself through stories and ceremonies.25 One of the most important aspects of autochthonous law is that because it is not written down, there is no one person who can claim a monopoly on legal knowledge. “The law is vested in a repository in which all, or most, share and in which all, or most, may participate.”26 Chthonic law must therefore be explicatory to the general public and no party may use twisted convolutions of language in order to escape judgement or avoid penalty when their conduct makes them a bad actor; “the tradition faces less danger of pecuniary and institutional corruption, offering fewer positions of prestige and authority.”27 While Indigenous legal traditions may not have originally developed corporate law (principles like limited liability being anathema to a community-based legal system), chthonic tradition does readily provide principles by which to govern corporations and institutions. In a system where the conduct of any constructed entity is judged by the entire community, the goals of the institution are not permitted to deviate materially from the best interest of society. The contours of this system thus have natural limiting principles, ensuring that institutions (including corporations) may not

20 See Nell Jessup Newton, ed., Cohen’s Handbook of Federal Indian Law (New York: LexisNexis, 2017 ed.), 54. 21 Ibid., note 1. 22 Glenn, Legal Traditions, 60. 23 Ibid., 62. 24 Ibid. 25 Ibid., 62–64. See also Keith H. Basso, Wisdom Sits in Places: Landscape and Language Among the Western Apache (Albuquerque: University of New Mexico Press, 1996) (providing an excellent anthropological take on the role of stories in forming autochthonous law) and Robert Yazzie, “Life Comes from It: Navajo Justice Concepts,” New Mexico Law Review 24 (1994): 175 (discussing how chthonic law plays a role in tribal governance today). 26 Glenn, Legal Traditions, 64–65. 27 Ibid., 65.

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inherently seek their own interests in ways that threaten or damage communal resources. Stewardship for the environment, egalitarian compensation schemes and conservation of resources are all functionally required in an autochthonous legal order. Elders play an important role in controlling institutions because in a legal system predicated upon ceremony and tradition, they have the greatest institutional knowledge. Elders become “individual people who, by their assimilation of tradition over a longer period of time, often speak with greater authority.”28 Institutions which challenge community norms or which attempt to set policy at odds with the interests of the group f ind themselves subject to scrutiny by elders (and other keepers of traditional knowledge) and are forced to change their behaviour to conform with chthonic principles. The combination of legal principles based on chthonic tradition and Western conceptions of the corporation have resulted in ANCs which both seek prof it and care for their community. H.P. Glenn was among the progenitors of this movement toward recognising autochthonous legal traditions within Western legal scholarship and literature, but in the two decades since his work f irst appeared, the contextualisation of chthonic law has become mainstream. Navajo Supreme Court Justice Robert Yazzie has notably contrasted Navajo and Anglo law and discussed chthonic law’s divergent roots.29 Christine Zuni-Cruz examines how Indigenous law is influenced and changed by members of the tribal community,30 Matthew L.M. Fletcher highlights the critical role oral tradition plays in framing Indigenous law,31 Pat Sekaquaptewa describes the difference between federal and tribal customary law,32 and Raymond Austin suggests that language, culture, custom and even religion play a role in crafting Indigenous legal norms.33 As tribal law becomes disseminated amongst a much wider legal audience it is a matter of when, not if, autochthonous legal thought begins to influence mainstream legal philosophy and jurisprudence. The body of Indian law scholarship in the United States has already increased almost tenfold in the last 30 years.34 Indigenous and non-Indigenous scholars alike have built upon the role of autochthonous law to explore its application in a variety of contexts. Christine Zuni Cruz suggests that tribal judges who speak Indigenous languages are a critical conduit between the implementation of autochthonous law that has not been written down and the socio-legal principles which flow from oral tradition; “[t]o some extent the gap between the written law and the societal norms of ‘the People’ can be bridged by the judge, something at which tribal court judges who are tribal members and fluent in the tribal language can be particularly effective.”35 These voices are at the forefront of demanding the academy critically examines what law is, what purpose it is designed to serve, and how the laws construction can meet the demands and needs of its subjects. In the United States, Indigenous nations have long been recognised as sovereign. They create their own governmental structures, including their own court systems, with the power to

28 Ibid. 29 Yazzie, Life Comes from It, 175. 30 Christine Zuni-Cruz, “Tribal as Indigenous Social Reality and Separate Consciousness-Reincorporating Customs and Traditions into Tribal Law,” Tribal Law Journal 1 (2000): 1. 31 Matthew L. M. Fletcher, “The Supreme Court’s Legal Culture War against Tribal Law,” Intercultural Human Rights Law Review 2 (2007): 93. 32 Pat Sekaquaptewa, “Key Concepts in the Finding, Def inition and Consideration of Custom Law in Tribal Lawmaking,” American Indian Law Review 32 (2008): 319. 33 Raymond Austin, “American Indian Customary Law in the Modern Courts of American Indian Nations,” Wyoming Law Review 11 (2011): 351. 34 Grant Christensen and Melissa Tatum, “Reading Indian Law: Evaluating Thirty Years of Indian Law Scholarship,” Tulsa Law Review 54 (2018): 81. 35 Zuni-Cruz, “Tribal as Indigenous,” 4.

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explain and enforce the laws enacted by tribal legislative bodies. Professor Matthew Fletcher notes that most applications of tribal law focus on the use of customary legal principles to resolve disputes involving only tribal members. However, he expressly raises the issue of the application of tribal law to non-members in the context of business and contract cases; “[t]here is another category of tribal court cases that is insignif icant now but will become more important in the coming years – business and contract cases.”36 Fletcher’s work has gone the farthest in contemplating the role that autochthonous law might have when applied to non-Indians, albeit in the context of a non-Indian f irm appearing in tribal court, perhaps as the defendant to a civil action brought by a tribal member or appealing the imposition of a f ine or the authority of the tribe to promulgate regulations which circumscribe the f irm’s behaviour.37 However, by drawing from autochthonous legal principles that predate the emergence of the common law, it may be possible to achieve the socially conscious ends desired by corporate governance reformers.

Alaska Native Corporations and Chthonic Law – the Role of Shares ANCs have used the principles of chthonic law to reimagine the corporate form. By structurally changing the way corporations are built and governed, ANCs act differently from traditional corporations which are saddled with the principle of shareholder primacy and so often act according to perverse incentives to sacrif ice long-term stability or environmental and community stewardship in exchange for short-term prof its.38 Perhaps the most innovative approach ANCs have taken to reimagine the corporate form stems from its treatment of corporate shares. Under the Western model of a corporation, shares in an entity are created/issued and sold. The prof its from the sale of the shares inures to the corporation and the corporation uses these funds to build, run and expand its business – thereby generating greater returns for shareholders and increasing the f irms total value. In exchange the shareholders have a claim on a share of the prof its of the corporations and often a vote for members of the board who select the corporation’s managers and thus determine the direction of its business activities. The more shares a single individual or entity owns, the more control they have over the direction of the corporation. This creates a situation where a small fraction of the total shareholders can control the corporation if between them, they are able to own a majority of voting shares. Shareholders of corporations buy, hold and sell shares for a variety of reasons. Some shares are purchased and held because they pay a dividend based on the prof its of the corporation and thus provide a moderately secure stream of income for the purchaser. Other shareholders buy shares with the intent of holding them while the business grows and then sell the shares at a prof it (when a corporation becomes more prof itable, each share commanding a portion of the corporation’s assets is also, theoretically, more valuable). In either case managers are incentivised to maximise prof it at the

36 Fletcher, “Legal Culture War,” 122. 37 While tribal courts are entities, most likely to apply autochthonous legal principles because their authority comes from the inherent sovereignty of the tribal government that created them, state, federal and international bodies, may also apply these principles. See Brice v. Plain Green, LLC, 13 F.4th 823 (9th Cir. 2020) (directing an arbiter to apply tribal law in binding arbitration to determine whether the arbitration agreement was enforceable); Aguayo v. Jewell, 827 F.3d 1213 (9th Cir. 2016) (upholding a federal agency’s application of tribal law related to tribal membership criteria); Quechan Indian Tribe v. United States, 535 F. Supp. 2d 1072 (S.D. Cal. 2008) (applying choice of law rules in federal court to select and apply tribal law). 38 Robert Rhee, “A Legal Theory of Shareholder Primacy,” Minnesota Law Review 102 (2018): 1951; Henry Hansmann and Reinier Kraakman, “The End of History for Corporate Law,” Georgetown Law Journal 89 (2001): 439.

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expense of other considerations. Larger corporate returns mean that the dividend paid out on each share is larger and, correspondingly, that the value of each share will command a larger premium if sold.39 ANCs approach shareholding very differently, with notable impacts on corporate governance. Instead of issuing one group of shares in order to raise funds, shares in ANCs may be issued upon birth and retired upon death,40 making the number of shares outstanding at any time highly variable. Maude Blair, former vice president of the Alaska Federation of Natives, has documented some of the peculiarities of ANCs’ shares. She notes that since most shareholders own equal numbers of voting shares obtaining a quorum requires not just a majority of shares but a majority of shareholders. A majority of the shares entitled to vote, represented in person or by proxy, constitutes a quorum at a meeting of shareholders, though a corporation can amend its articles of incorporation to lower the quorum requirements to as little as one-third of the voting shares. Corporations with large shareholder bases can have trouble obtaining a quorum, and many ANCSA corporations offer door prizes for shareholders who attend in person or turn in a proxy in an effort to increase participation in the meeting.41 Any selection of directors or other corporate decisions thus require a political consensus that can command the support of a majority of shareholders, and this requires the ANC to think about its constituencies differently from many traditional corporations.42 Decisions undertaken at ANC shareholder meetings are structurally required to meet a double majority – resolutions passed only if they command the support of both a majority of voting shares but also a majority of shareholders. These protections f ind their roots culturally expressed in autochthonous values that prioritise consensus and egalitarian participation in governance. Consistent with autochthonous principles, elders play a particularly important role as both benef iciaries of corporate services and as shareholders of the corporations themselves; “Alaska Natives have always accorded special status to their elders. Several regional and village corporations have sought to add flesh to the commitment. They have set aside substantial resources to provide elder benef its, above distributions to all shareholders.”43 These protections are undertaken with the tacit approval of all shareholders and are built into the structure of the ANCs; “ANCSA provides, if not for the payments themselves, then at a minimum a means for making them. The Act authorises Native corporations to amend their articles of incorporation to provide for ‘Natives who have obtained the age of sixty-f ive.’ ”44 ANCs accomplish this by creating a new class of shares (elder preference shares) and so payments are made consistent with corporate law, not a corporate subsidy of any group of persons – but a special distribution to all holders of a unique class of stock.45

39 Ibid. 40 Maude Blair, “Issuing New Stock in ANCSA Corporations,” Alaska Law Review 33 (2016): 280. (“The stock can be a life estate, where the stock reverts back to the issuing corporation upon the death of the shareholder to whom it was issued. Alternatively, the stock can be inheritable, as is the original Settlement Common Stock.”) 41 Ibid. 42 Ibid., 279. 43 Branson, “Still Square Pegs in Round Holes?” 219. 44 Ibid. (citing 43 U.S.C. § 1606(g)(2)(B)(iii)(I) (2000)). 45 Ibid. (“The corporation may make additional payment to elders once a corporation has formally proposed a resolution, allowed whatever debate to ensue, obtained a shareholder vote, and f iled articles of amendment with the Alaska Secretary of State authorizing an additional class of shares, and distributed newly authorized shares to elders. Although they are still

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Alaska Native Corporations and Chthonic Law – the Role of Shareholders ANCs have helped auger in a reimagination of the corporate form by doing more than merely reimagining corporate shares; they also reimagine the shareholder. Chthonic legal principles have crafted the ownership structure of ANCs in a considerably more egalitarian form that traditional corporations could learn from by (1) ensuring that all stakeholders have an ownership interest in the corporation and (2) eliminating the f iction that shares exist indef initely. First, ANCs ensure that most stakeholders acquire an ownership interest in the corporation itself. As noted in the introduction, traditionally the notion of separating labour and capital would be antithetical in a world structured by autochthonous governance. While chthonic rules may surely assign different members of society different roles in order to ensure all the needs of a community are met – allowing the benef it of one’s labour to accrue exclusively to others (likely constituting a small minority of the populace) would immediately run afoul of chthonic values of equality, proportionality and respect. European corporate law has long recognised the important connection between voice and policy.46 While not necessarily requiring corporations to give a share of their proceeds directly to employees, many EU nations mandate that some seats on corporate boards be reserved for labour or represent the interests of workers.47 When employees are represented in the board room, corporate decision-making changes. Management generally becomes more flexible in its willingness to pay living wages, to invest in training and to become more responsive to the needs of the communities in which corporations are located. All of these are goals consistent with chthonic law. The International Labor Organization (ILO) goes further. ILO conventions have a unique tripartite structure that includes representatives from labour, management and government in order to resolve disputes.48 Placing labour on an equal footing with management and subject to the auspices of law encourages compromise and problem solving that can be responsive to the needs of a corporation to continue to operate prof itably while simultaneously protecting the interests of non-shareholding stakeholders.49 There are even a couple ILO conventions structured to protect the rights of Indigenous People, creating some interesting models for corporate-Indigenous relations.50 While there is some scholarship promoting a mandatory role for labour on the boards of American companies, the lessons learned from Indigenous corporations suggest a slightly different approach to accomplish the same ends. Rather than mandate board seats for some preordained constituency, all stakeholders should become shareholders. ANCs do this already, with

distributions under corporate law, payments are made with respect to shares (elder-preference shares), not with respect to shareholders.”) 46 See Katharine Jackson, “Toward a Stakeholder-Shareholder Theory of Corporate Governance: A Comparative Analysis,” Hastings Business Law Journal 7 (2011): 343. 47 Sanford M. Jacoby, “Employee Representation and Corporate Governance: A Missing Link,” University of Pennsylvania Journal of Labor and Employment Law 3 (2001): 458. 48 Laurence R. Helfer, “Understanding Change in International Organizations: Globalization and Innovation in the ILO,” Vanderbilt Law Review 59 (2006): 651–52 (describing how the ILO’s tripartite structure works in theory and practice). 49 Ibid., 677. 50 ILO 107 was among the f irst international treaties to focus explicitly on the rights of Indigenous Peoples. Learning from ILO 107, ILO 169 was subsequently introduced to ref ine and more fully protect Indigenous Peoples. For a discussion of the ILO and Indigenous People, see S.J. Rombouts, “The Evolution of Indigenous Peoples’ Consultation Rights under the ILO and U.N. Regimes,” Stanford Journal of International Law 53 (2017): 169.

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each member eligible to be issued up to 100 shares of stock and shares eligible to be issued upon the birth or enrolment of new members.51 Moreover, a system where every member of the community has a say in the direction of a company is mirrored by non-Alaskan Indigenous groups in the United States. While ANCs are unique to those tribes that accepted the Alaska Native Claims Settlement Act, other Indigenous Peoples in the United States have organised themselves under the Indian Reorganization Act (IRA), which provides for the creation of tribal corporations and established a voting mechanism where traditionally every tribal member to reach the age of majority gets an equal vote in the election of tribal council.52 IRA corporations are thus controlled by the popular vote of the tribal membership either indirectly by giving all tribal members the right to vote for members of council and giving council the role to appoint members of the board, or alternatively having all tribal members vote directly for the directors of their corporations. Second, ANCs not only involve all tribal members in the selection of board members but also breathe life into corporations by rejecting the proposition that shares of stock and ownership interests are immutable. In traditional corporate law, shares once created may pass from one shareholder to another, but they exist as an undying and unchanging asset that unless repurchased by the corporation and retired will outlast the natural life of any individual human shareholder. The shares become heritable between generations instead of merely transferable for value. This immutability allows a small number of large institutional investors and wealthy individuals to collect the majority of shares and dictate the corporation’s direction over the objections of the majority of total shareholders. In addition to making stakeholders into shareholders, chthonic law suggests one additional change to corporate law and the limitation on ownership – the ultimate death of shares. Egalitarianism and democratic governance are at the heart of chthonic law. Building off of the model provided by ANCs it is possible to reimagine shares as property possessed during the duration of a natural life and thus protect against the accumulation of shares by a small but motivated minority. ANCs issue shares which are not generally heritable. As Maude Blair explains, “Making stock a life estate keeps the overall number of shares much lower . . . thereby allowing less dilution. It also limits the voting power that any one shareholder can accumulate.”53 While American law ordinarily would require some compensation to a shareholder for the loss of their property, ANCSA has pioneered an experiment whereby Congress has given its explicit approval to countenance the death of shares. Generally in corporate law, an individual must be compensated for the taking of property, such as stock in a corporation. But ANCSA allows life estate stock to revert to the corporation with no compensation to the deceased shareholder’s estate.54 The benef its of a limited life for shares include the disincentivising of rent seeking, a hedge against accumulated/inherited wealth and greater diversity of ownership.

51 Blair, “Issuing New Stock,” 278–80. 52 Jason Hipp, “Rethinking Rewriting: Tribal Constitutional Amendment and Reform,” Columbia Journal of Race and Law 4 (2013): 80–81. 53 Blair, “Issuing New Stock,” 281. 54 Ibid.

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Alaskan Native Corporations Provide Insight to Reform Existing Corporations ANCs have pioneered experiments with corporate voting rights. Many ANCs have provisions for parents to petition for the issuance of shares upon the birth and enrolment of their minor children.55 Some ANCs issue 100 shares to each new member, and others have alternative share issuance schemes where, for example, a minor may be issued 30 shares initially and then issued additional 70 shares after graduating from high school and reaching the age of 18, or reaching the age of 21 without a high school diploma.56 These shares do not all necessarily convey voting rights. For example, one ANC (Calista Corporation) had its shareholders vote to create new stock for the descendants of original shareholders, but it further limited the voting rights to members who had turned 18.57 Whether voting rights are delayed or whether additional shares/rights are issued after being held for a designated amount of time, this autochthonous experiment in reimagining voting rights holds valuable lessons for modern corporate governance. Because annual meetings require a quorum, and in many rural Alaskan societies virtually everyone in the community might be a shareholder, ANCs often host entire families at shareholder meetings.58 When shares are issued at birth (or shortly thereafter), a child has potentially 18 years of attending shareholder meetings with their family and their community before they become voting shareholders themselves.59 Participation as an active shareholder becomes engrained. When shares obtain voting rights only upon reaching the age of 18 or when additional shares are distributed at milestones, such as graduating from high school or reaching the age of majority, there is a learned process of shareholder behaviour. Shareholders will have watched corporate performance over almost two decades of meetings before casting their f irst votes. By attending the meetings, reviewing prospectuses and discussing issues of corporate strategic direction and investment, these minor shareholders have become privy to shareholder decision-making about the direction of the ANC and have seen the support generated among their peers, family, friends and elders for decisions taken to forgo short-term returns in the past that have yielded greater dividends over time or that have protected wild lands and waters that the young shareholders have used or explored themselves. ANC shareholders who vote only after watching corporate governance and decision-making for more than a decade are much more likely to vote with long-term interests in mind. From observed and learned personal experience, they are willing to select directors whose goals prefer sustainable management of corporate resources and the prioritisation of long-term corporate interests.60

55 Ibid., 282. 56 Ibid., 281. 57 Ibid., 280. 58 For example, the Cook Inlet Region Inc. (CIRI) ANC offers door prizes to encourage families to bring as many shareholders as possible to help meet the quorum requirement, offers notaries and other services at meeting events, provides childcare and often includes catered meals as incentives to gather members together. Shareholders and their spouses and children (even if not shareholders themselves) are welcome. CIRI Shareholder Handbook, CIRI, 22–23 (September 12, 2016). 59 Ibid. (The CIRI is a good example. Parents are encouraged to bring children who might be shareholders themselves or might be future shareholders to participate in the annual meeting of the corporation and to witness the election for the corporate board and voting on shareholder resolutions.) 60 David S. Case and David A. Voluck, Alaska Natives and American Laws, 3rd ed. (Anchorage: University of Alaska Press, 2012), 186–90 (discussing how culture and place/land have had a determinative effect on Native Alaskan shareholder behaviour).

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There is no greater teacher than experience. Indigenous corporations’ experiments with voting rights have provided a natural example of how changing the structure of corporate law can result in changes in corporate governance. Chthonic practices which favour the participation of the family, respect for elders and stakeholder consultation have created a system that trains new shareholders how to be voters. By requiring that minors hold their shares until maturity in order to gain the right to vote the shares, ANCs have built a new kind of educated shareholder who has experience watching the decisions taken by the corporation over many years result in stronger outcomes for their community. The shareholder has thus learned to allow corporate management to invest in its stakeholders, to spend money on social and environmental protections which yield real benef its for Alaska Native villages and communities, and to accept higher costs associated with more employees and higher wages if those costs help achieve other social goods like full employment. Broad shareholder support for ANCs providing scholarship programs, medical services and community care become engrained in corporate decision-making at least in part, because the persons voting the shares themselves have long-term interests in the success of the corporation. These models work. Consistent with autochthonous principles, ANCs have taken some lands they control that are particularly culturally or environmentally important to Native groups and placed them in settlement trusts “arguably intended to put certain Native historical sites and similar lands, not expanses of land or shareholder funds, out of creditors’ or shareholders’ reach.”61 This separation of culturally valuable lands and resources from the corpus of corporate assets is certainly consistent with chthonic principles requiring the preservation of sacred sites or the careful stewardship of land largely viewed as critically important to the community, but it is hard to reconcile with shareholder primacy which is focused on maximising wealth or a return on investment. To achieve corporate boards more inclined to conserve resources and respond to the needs of the communities in which a corporation does business – more corporate shares should share the characteristics of ANCs. Corporate governance would be greatly improved if stock was not automatically imbued with voting rights but rather earned those rights only after being held by the same shareholder for a period of years. Such a system would not need to radically restructure markets. Shares could still be traded openly and for value.62 Each newly acquired share would still carry with it a proportional claim on the proceeds or prof its of a corporate entity and would share in any dividend or distribution equally with those shares that had been held long enough to earn voting rights. Implementing a system where shares gain voting rights only after they have been held for a specif ic term (18 years might be too long – say, f ive or ten years) would necessarily require the development of new structures. Typically, one can tell what voting rights a share carries with it by looking at the share class.63 Some share classes will have voting rights, and others will not.64 This is

61 Branson, “Still Square Pegs in Round Holes?” 220. 62 Under the ANC model, ANCSA does enact some barriers to the sale of shares. In order to preserve the autochthonous model, shares may only be purchased by other Native Alaskans, some shares may not be saleable at all, and there may be rules about the limited voting rights of purchased shares. While modern corporations are unlikely to adopt all of these restrictions, ANC shares still serve as a model for corporate reform. See John F. Walsh, “Settling the Alaska Native Claims Settlement Act,” Stanford Law Review 38 (1985): 234–40. 63 See, generally, Lynne Dallas and Jordan Barry, “Long-Term Shareholders and Time-Phased Voting,” Delaware Journal of Corporate Law 40 (2016): 541 (discussing the various types and levels of voting rights associated with different share classes). 64 Ibid.

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a variation of time-phased voting (an idea explored by other corporate law scholars),65 except that instead of gaining additional votes for holding shares for a longer period, shares “mature” from nonvoting to voting shares. This proposal upends the existing system of dual-class stock by permitting shares within a class to carry voting rights depending on how recently they have been traded (i.e. how long they have been held by the shareholder). While a corporation would need to know in advance of its annual meeting how many shares had voting rights and who its voting members were, this is hardly a barrier to corporate law reform. By issuing shares with voting rights that mature after being held for a f ixed period, the pool of shareholders will necessarily change. Shareholders would no longer be able to buy a stock and instantly threaten to use their shares to drive leadership changes unless dividends increased or costs were slashed – reforms that almost always come at the expense of workers, communities, and the environment. Instead, only those who have held the shares long enough for voting rights to mature and are therefore the most vested and presumably the best informed about the corporation and its strategic direction, are the ones trusted with the ability to elect the board. These long-term shareholders have the same vantage point as the ANC shareholders who have held their shares since childhood; they have had the opportunity to attend shareholder meetings and review corporate disclosures for years and are in the best position to judge when short-term prof its may be sacrif iced for other noble ends. Modern corporate governance would also benef it from adopting Indigenous values reflected by ANCs related to shareholders – both by imbuing stakeholders with shares and by limiting the natural life of any stock issuance. Corporate behaviour requires changes when stakeholders become shareholders.66 When employees and community members are also corporate shareholders, their interests in robust labour standards, higher employee wages (living wages), environmental protection and improving general working conditions are also elevated as corporate priorities. Some corporations already make at least some of their employees’ shareholders through retirement schemes that hold at least some of their assets as shares. Unfortunately, this fails to achieve the goals of Indigenous governance because the ownership is passive instead of active. The interests of different employees are seldom reflected when plan managers exercise voting rights instead of the employees themselves – diluting the important voice and learned long-term behaviour that are the key features of ANC schemes. Instead of shielding stakeholder ownership through complicated legal devices, it is considerably more democratic (if administratively more burdensome) to allow employees to hold shares directly. By universally empowering employees as shareholders, the board will be even more responsive to the needs of its constituents, and in lieu of having a minority of board seats reserved for these interests – a majority of the board may ultimately owe their seats to stakeholder votes. Chthonic law provides one more suggestion to make corporations more responsive to environmental concerns: nature as a shareholder. If the goal of stakeholder ownership is to make corporate

65 Ibid., 547 (discussing the opinions of proponents and sceptics of time-phased voting); see, generally, David J. Berger, Steven Davidoff Solomon, and Aaron J. Benjamin, “Tenure Voting and the U.S. Public Company,” Business Lawyer 72 (2017): 295 (discussing tenure voting as an alternative capital structure to a dual-class capital structure); Paul H. Edelman, Wei Jiang, and Randall S. Thomas, “Will Tenure Voting Give Corporate Managers Lifetime Tenure?” Texas Law Review 97 (2019): 991 (discussing whether tenure voting is or isn’t a better choice for corporate management and shareholders than dual-class stock). 66 Thomas C. Beierle and Rebecca J. Long, “Chilling Collaboration: The Federal Advisory Committee Act and Stakeholder Involvement in Environmental Decision-making,” Environmental Law Reporter 29 (1999): 10399–40 (Discussing how motivated shareholders can make corporations respond to environmental concerns).

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governance more responsive to the communities it serves, then the stakeholder class should not be limited only to employees. Nature itself can be a powerful stakeholder, directly impacted by the decisions of individuals and corporations within its catchment. Indigenous communities and autochthonous traditions regularly recognise the rights of nature in various forms.67 ANCSA does not directly provide for the issuance of corporate shares to nature, but other Indigenous groups have used the shareholder model of ANCs and IRA corporations to begin to vest agency in nature. The Klamath River or manoomin (wild rice) may exercise rights separate from any individual under Yurok68 or White Earth Ojibwe69 traditions. If corporate law were to evolve along these autochthonous lines and require that a portion of every corporation’s shares be held by nature itself, management would prioritise the environmental effects of its policies very differently. A world where nature itself is a shareholder of every publicly traded corporation is a radical departure from modern corporate law, but such a world has the potential to realign management incentives and transform corporate governance. Finally, modern corporations could learn from ANCs by allowing corporate shares to eventually expire and thus combat the problem of a minority of owners being able to vote a majority of shares and thus assert control over the corporation. The idea of a “life estate” in shares works for ANCs in part because shareholders are all individuals. Transposing such a principle into modern corporate law will require more f inagling since shares may be owned by other corporations or institutions that are essentially undying under the principles of American law. Rather than imbue shares with a nonheritability clause, the principle of the life estate might be preserved by issuing shares that represent a share of corporate prof its only for a set number of years – perhaps 80, the rough life expectancy of an American today. Shares could be freely traded, inherited, used as a security and/or gifted away during their natural 80-year life but upon reaching 80 years the shares are retired. Essentially, the shares escheat to the corporation. The corporation can then choose to reissue them, or it can choose to retire the shares and thus increase the value of all remaining shares proportionately. Such a reform would immediately raise the prof ile of issues of concern to minority shareholders and the social injustices perpetuated by inherited wealth.

Conclusion As this volume aptly demonstrates, law in the Arctic is exciting and innovative. While climate change, international treaties, and geopolitics might be expected to reshape the contours of law, few scholars look to the polar regions for ground-breaking new approaches to corporate law. That oversight is a mistake. The confluence of the delayed settlement of land claims among Indigenous Peoples in the Alaska, the discovery of hydrocarbon resources, and the Nixon administration’s goal that Alaska Natives rely less on federal government oversight and assistance conspired to create a sui generis corporate form. More than 50 years later the development of ANCs pursuant to autochthonous or chthonic governance principles has created a model of corporate governance that simultaneously promotes sustainability and managed economic growth.

67 Caroline McDonough, “Will the River Ever Get a Chance to Speak? Standing Up for the Legal Rights of Nature,” Villanova Environmental Law Journal 31 (2019): 143. 68 Geneva E.B. Thompson, “Codifying the Rights of Nature: The Growing Indigenous Movement,” Judges’ Journal 59 (2020): 12. 69 Rachel Durkee Walker and Jill Doerfler, “Wild Rice: The Minnesota Legislature, a Distinctive Crop, GMOs, and Ojibwe Perspectives,” Hamline Law Review 32 (2009): 509–11.

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ANCs have modif ied traditional corporate governance in imaginative ways to rethink both the nature of shares and the role of shareholders. By issuing shares to all stakeholders in a community, ANCs encourage democratic governance and ensure that all members have a stake in corporate decisions. Limiting the ownership of shares, allowing them to expire or restricting the voting rights of shares above a certain threshold ensures that corporate decisions are made on the basis of a double majority – both a majority of shares and a majority of shareholders are in agreement. Finally, when ANCs allow voting rights to mature, they encourage the development of the informed shareholder. Modern corporate governance could learn a lot from mirroring the principles developed by ANCs. If the goal today is to ensure that corporations are more response to all of their stakeholders, including their employees, their communities and the environment, then corporations need to be reimagined and restructured to ensure that decisions are taken that resist the temptation to take short-term prof its. Structural changes to shares and shareholders modelled on ANCs will give managers the space they need to sustainable invest for the future.

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35 MUTUALLY AGREED TERMS, ARCTIC GENETIC RESOURCES AND PRIVATE INTERNATIONAL LAW David Leary Introduction This chapter explores the role of mutually agreed terms in the sustainable exploitation of Arctic genetic resources.1 The concept of mutually agreed terms lies at the heart of the access and benef it sharing regime for genetic resources established by the provisions of the 1992 United Nations Convention on Biological Diversity (CBD)2 and the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benef its Arising from their Utilization to the Convention on Biological Diversity (the Nagoya Protocol).3 While both these treaties are public international law instruments, many of the day-to-day legal issues associated with their implementation are governed by private law and in particular the law of contract and principles of private international law. This chapter therefore explores the interaction between these bodies of law in the Arctic context. It is surprising to f ind that despite relying very heavily on private law for implementation of the access and benef it sharing regime established by the CBD and the Nagoya Protocol, there has been very little examination of these issues by scholars and lawyers more broadly. As Chiarolla has noted consideration of the interface between the CBD, the Nagoya Protocol and private international law (in particular) by scholars and lawyers is largely absent from the scholarly literature.4 This chapter,

1 Genetic resources referred to in this chapter means genetic resources as def ined in Article 2 of the 1992 United Nations Convention on Biological Diversity (CBD), adopted June 5, 1992, entered in force December 29, 1993, 1760 UNTS 79. Article 2 of this treaty def ines genetic resources as meaning “genetic material of actual or potential value.” Genetic material is likewise def ined in Article 2 of the same treaty as “any material of plant, animal, microbial or other origin containing functional units of heredity.” 2 The 1992 United Nations Convention on Biological Diversity (CBD). 3 The 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benef its Arising from their Utilization to the Convention on Biological Diversity (the Nagoya Protocol), adopted October 29, 2010, entered in force October 12, 2014, accessed February 1, 2022, www.cbd.int/abs/. 4 Claudio Chiarolla, “The Role of Private International Law under the Nagoya Protocol,” in The 2010 Nagoya Protocol on Access and Benef it-sharing in Perspective Implications for International Law and Implementation Challenges, eds. Elisa Morgerra, Mathias Buck and Elsa Tsioumani (Leiden: Martinus Nijhoff, 2013), 423–49, 423.

DOI: 10.4324/9781003404828-45 596

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therefore, aims to add to the scholarly literature with respect to these issues focusing, in particular, on the role of private international law in the context of Arctic genetic resources. The chapter is in four parts. Part 1 briefly outlines why there is commercial interest in Arctic genetic resources. Following this discussion Part 2 outlines the key elements of the CBD and the Nagoya Protocol access and benef it sharing regime. Part 3 examines how private international law is relevant to implementation of the Nagoya Protocol with a particular focus on the contractual nature of access and benef it sharing and mutually agreed terms. Part 4 highlights the interaction between the CBD and the Nagoya Protocol in the Arctic context through examination of legislative regimes regulating access and benef it sharing regimes in operation in Arctic jurisdictions and how they may interact with private international law.

Scale of Interest in Arctic Genetic Resources The Arctic is a hostile environment. Much of the Arctic is characterised by low temperature, extreme variability in day length, high levels of solar ultraviolet radiation exposure and low nutrient concentrations. 5 In addition to these extremes, the Arctic region also has a wide diversity of habitats including “sea ice, glacial ice, permafrost, tundra wetlands, oceanic water, subglacial soil, periglacial soil, [and] tundra soil.”6 Yet despite these harsh conditions, both humans and an abundance of biodiversity flourishes in the Arctic both on land and in the oceans. The Arctic is home to a wide range of biodiversity including iconic species such as polar bears, mammals, birds and numerous species of bacteria, fungi, algae, protozoa and metazoa. 7 It is the ability of such species to thrive in the extreme conditions of the Arctic that drives both scientif ic and commercial interests in their potential for new developments in biotechnology.8 In a report published in 2008 the author of this chapter examined in detail the extent of evidence available on the nature of scientif ic research and development in relation to the biodiversity of the Arctic and concluded “that there is signif icant interest in the biotechnology potential of Arctic biodiversity.”9 The patenting and marketing of products derived from or inspired by Arctic biodiversity proves that this potential has now been realised. Five key trends in research, development and commercialisation are prevalent with respect to Arctic genetic resources: a focus on “enzymes for use in a range of industrial processes; bioremediation

5 Yung Mi Lee, GoHeung Kim, You-Jung Jung, Cheng-Dae Choe, Joung Han Yim, Hong Kum Lee and Soon Gyu Hong, “Polar and Alpine Microbial Collection (PAMC): A Culture Collection Dedicated to Polar and Alpine Microorganisms,” Polar Biology 35 (2012): 1433–38. 6 Puran Vishnu Vardhan Reddy, Singireesu Soma Shiva Nageswara Rao, Mambatta Shankaranarayanan Pratibha, Sailaja Banda, Bakka Kavya, Ravoori Ruth Manorama, Shiv Mohan Singh, Tanuku Naga Radha Srinivas and Sisinthy Shivaji, “Bacterial Diversity and Bioprospecting for Cold-active Enzymes from Cultural Bacteria Associated with Sediment from a Melt Water Stream of Midtre Lovenbreen Glacier, an Arctic Glacier,” Research in Microbiology 160 (2009): 538–46. 7 C. Krembs, H. Eicken, K. Junge and J. W. Deming, “High Concentrations of Exopolymeric Substances in Arctic Winter Sea Ice: Implications for the Polar Ocean Carbon Cycle and Cryoprotection of Diatoms,” Deep-Sea Research 1 49 (2002): 2163–64. 8 See, for example, discussion in Donatella de Pascale, Concetta De Santi, Juan Fu and Bjarne Landfald, “The Microbial Diversity of Polar Environments Is a Fertile Ground for Bioprospecting,” Marine Genomics 8 (December 2012): 15–22. 9 David Leary, Bioprospecting in the Arctic (Tokyo: United Nations University-Institute for Advanced Studies, 2008), 12.

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and other pollution control technologies; anti-freeze proteins for use in food technology; dietary supplements with a particular focus on polyunsaturated fatty acids; and pharmaceuticals and other medical uses.”10 While many habitats have been investigated, there has overall been a strong focus on the Arctic marine environment, particularly in Norway.11 Much of the available data providing specif ic examples of products on the market is now a decade or more old. While there is an extensive body of very recent patent data which is indicative of trends in research and development, it is an open question as to whether levels of commercialisation have kept pace with, decreased or increased over the past decade. Nonetheless, examples of specif ic products on the market derived from or inspired by the properties of the biodiversity of the Arctic over a decade ago do exist. A study by the author of this chapter published in 2008 identif ied 43 known examples of companies involved in research and development and/or actual marketing of products derived from Arctic genetic resources.12 While there have been no further detailed studies published since then, a brief review of commercial interest, for the purposes of this chapter, has identif ied more recent examples of companies which currently market products derived from Arctic genetic resources. Table 35.1 gives some (non-exhaustive) examples of specif ic products currently on the market.13 Contrary to trends elsewhere in the world, there is little evidence of the use of Indigenous traditional knowledge in development of biotechnology from Arctic genetic resources.

The CBD and Nagoya Protocol Debates in relation to bioprospecting in the Arctic have essentially centred upon a response to the emerging international regime provided for under the CBD and the Nagoya Protocol. This in turn has been linked to debates in relation to expropriation of associated Indigenous traditional knowledge, although as noted earlier there is little evidence of any signif icant utilisation of Indigenous knowledge in the context of bioprospecting in the Arctic. Key concepts in law and policy relating to bioprospecting originate from Arctic countries international obligations under the CBD. The objectives of the CBD are, inter alia, “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the

Table 35.1  Examples of products on the market derived from Arctic genetic resources13 Company

Example of Product Sourced from the Arctic

ArcticZymes

ArcticZymes proteinase (derived from marine https://arcticzymes.com microbial source) Zooca lipids https://zooca.eu Zooca hydrolysate Precardix (blood pressure medication-natural ACE https://marealis.com and inhibitor) derived from Arctic cold-water shrimp https://precardix.com

Calanus AS (also known as Zooca) Marealis AS

Website Address

10 David Leary, “Bioprospecting at the Poles,” in Research Handbook on Polar Law, eds. Karen Scott and David Vander Zwaag (Cheltenham: Edward Elgar, 2020), 272. 11 Leary, Bioprospecting in the Arctic, 24. 12 See ibid. 13 Information sourced from websites as listed.

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benef its arising out of the utilization of genetic resources, including by appropriate access to genetic resources.”14 The CBD explicitly recognises the important role biodiversity has played in the development of biotechnology. Biotechnology is def ined in the CBD as “any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specif ic use.”15 The CBD also conf irms the sovereign right of nation States over their genetic resources in accordance with their own national environmental policies.16 Signif icantly for the purposes of this chapter, the CBD also explicitly recognises that authority to determine access to genetic resources17 rests with national governments who give effect to these obligations through national legislation.18 Under the provisions of the CBD, countries are obliged to endeavour to create conditions to facilitate access to genetic resources.19 A key component of this regime is the explicit requirement for access to genetic resources to be subject to prior informed consent on mutually agreed terms.20 It is the essentially contractual nature of these mutually agreed terms that triggers questions of private international law, discussed later in this chapter. After entry into force of the CBD the principal decision-making body of the CBD, the Conference of Parties (COP), adopted the Bonn Guidelines on access to genetic resources and fair and equitable sharing of the benef its arising out of their utilisation (the Bonn Guidelines).21 Although not legally binding, these guidelines were influential in shaping how many countries have legislated for access and benef it sharing regulation within their jurisdiction prior to negotiation of the Nagoya Protocol. Many jurisdictions across the world have yet to make changes to their legislation since the Nagoya Protocol was adopted. To a large extent though the provisions of the Bonn Guidelines and the Nagoya Protocol are consistent. The Nagoya Protocol was adopted in 2010 as a supplementary protocol to the CBD to deal with issues relating to implementation of the obligations of the CBD on access and benef it sharing of genetic resources. It applies to all genetic resources covered by the CBD.22 It also extends to apply to “traditional knowledge associated with genetic resources within the scope of the Convention and to the benef its arising from the utilization of such knowledge.”23 Article 5(1) of the Nagoya Protocol in relevant parts provides benef its arising from the utilization of genetic resources as well as subsequent applications and commercialization shall be shared in a fair and equitable way with the Party providing such resources that is the country of origin of such resources or a Party that has acquired the

14 CBD, article 1. 15 CBD, article 2. 16 CBD, article 3. 17 Genetic resources are def ined in article 2 of the CBD as “any material of plant, animal, microbial or other origin containing functional units of heredity.” 18 CBD, article 15(1). 19 CBD, article 15(2). 20 CBD article 15(4). 21 United Nations Convention on Biological Diversity, Conference of Parties, Decision VI/24-Access and Benef it-Sharing as related to genetic resources, Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benef its Arising out of the Utilization, www.cbd.int/decision/cop/default.shtml?id=7198. 22 Nagoya Protocol, article 3. 23 Ibid.

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genetic resources in accordance with the Convention. Such sharing shall be upon mutually agreed terms.24 Thus, the CBD, the Nagoya Protocol, and domestic regulatory regimes implementing the CBD and the Nagoya protocol establish clearly that a person or institution seeking access to genetic resources of a foreign State must seek the prior informed consent of the State where the resource is located, as well as the consent of any other holder of rights in relation to particular genetic resources such as Indigenous and local communities discussed further here. The foreign State as provider of access to the genetic resources and the person or institution seeking access, such as a university, research institute or corporation, will become parties to an access and benef it sharing agreement setting out mutually agreed terms regulating such access. While these documents have several different names, including material transfer agreement or research agreements, all are essentially contractual in nature. Although each def ined with varying degrees of precision, they typically cover key contractual terms, such as • authorising access to specif ied genetic resources; • controls or limitations on the subsequent use; and • provisions on the fair and equitable sharing of benef its from their subsequent use. These benef it sharing agreements as contracts are premised on the prior informed consent by the provider (and any relevant Indigenous or local communities where relevant) which is an aff irmative act of consent based on information provided by the potential user prior to the actual decision is made to grant access.25 Concluding benef it sharing agreements or contracts containing mutually agreed terms is therefore at the centre of domestic approval processes for granting access to genetic resources in accordance with each jurisdictions domestic law.26 This also involves each State being required to ensure “that the prior informed consent or approval and involvement of Indigenous and local communities is obtained for access to genetic resources where they have the established right to grant access to such resources.”27 These provisions are reinforced by the provisions of Article 7 of the Nagoya Protocol which provide for the requirement of prior informed consent for all access to traditional knowledge associated with genetic resources.28 Article 12 of the Nagoya Protocol also specif ically addresses mechanisms associated with approving access and benef it sharing in relation to traditional knowledge associated with such genetic resources. As such, in implementing their obligations under the Nagoya Protocol, States are obliged (in accordance with their domestic law) to take into consideration Indigenous and local communities’ customary laws, community protocols and procedures with respect to traditional knowledge associated with genetic resources.29 Indigenous and

24 Nagoya Protocol, article 5(1). 25 International Union for the Conservation of Nature, Access to Genetic Resources – Article 6 of the Nagoya Protocol on Access and Benef it-Sharing, accessed May 31, 2022, www.iucn.org/sites/dev/f iles/import/downloads/short_paper___ article_6.pdf. 26 Nagoya Protocol, article 6. 27 Nagoya Protocol, article 6(2). 28 Nagoya Protocol, article 7. 29 Nagoya Protocol, article 12(1).

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local communities must also participate in the establishment and implementation of mechanisms to inform potential users of traditional knowledge associated with genetic resources about their obligations with respect to fair and equitable sharing of benef its arising from the utilisation of traditional knowledge.30 In addition, States are required to endeavour to support the development by Indigenous and local communities, including women within these communities; community protocols in relation to access and benef it sharing in relation to traditional knowledge associated with genetic resources; minimum requirements for mutually agreed terms to secure the fair and equitable sharing of benef its arising from the utilisation of traditional knowledge associated with genetic resources; and model contractual clauses for benef it sharing arising from the utilisation of traditional knowledge associated with genetic resources.31 As of March 11, 2022, there were 132 States Parties to the Nagoya Protocol.32 The most current information available reports that as of February 22, 2018, 75 States Parties had published measures in the ABS Clearing-House33 or reported having established some access and benef it sharing measures. But as a note by the Secretariat of the CBD on the f irst assessment and review of the Nagoya Protocol and general issues of compliance noted in 2018: The [Access and Benef it Sharing] (“ABS”) measures reported vary in the degree of specif icity and comprehensiveness and many were adopted prior to the adoption of the Nagoya Protocol. Some Parties reported having general legislation which relates to ABS (for example, general environmental legislation, or measures dealing with animal husbandry, forests), while others have adopted specif ic ABS measures to implement the Protocol. Of these 75 Parties, 44 indicated that they are currently revising existing or developing new ABS measures to implement the Protocol, and 10 Parties are planning to develop additional ABS measures.34 The implementation of the access and benef it sharing regime of the Nagoya Protocol under domestic law is therefore patchy across the globe. Given the reliance on domestic law for implementation of the access and benef it sharing regime, private international law is directly relevant to reconciling the many complex legal issues that will arise as exploitation and commercialisation of genetic resources is carried out across many jurisdictions. As each jurisdiction has different domestic law and policy to implement access and benef it sharing and mutually agreed terms obligations under the Nagoya Protocol each at varied levels of development and implementation, so multiple permutations of private international issues will arise.

30 Nagoya Protocol, article 12(2). 31 Nagoya Protocol, article 12(3). 32 Secretariat of the Convention on Biological Diversity, “Parties to the Nagoya Protocol,” accessed March 11, 2022, www. cbd.int/abs/nagoya-protocol/signatories/. 33 As the ABS Clearing-House website notes, the ABS Clearing-House is a website “administered by the CBD Secretariat and established by Article 14 of the Nagoya Protocol. It is designed to enable Parties, but also non-Parties, Indigenous Peoples and local communities (IPLCs), international and non-governmental organizations, research institutions and businesses to make information relevant to ABS available in a standardized, and open and organized global repository.” Information available includes details of ABS legislation supplied by States Parties to the CBD and the Nagoya Protocol. See https://absch.cbd.int/en/, accessed March 11, 2022. 34 Compliance Committee under the Nagoya Protocol, First Assessment and Review of the Nagoya Protocol and General Issues of Compliance-Note by the Executive Secretary (UN Doc No. CBD/ABS/CC/2/3 (April 5, 2018), accessed March 11, 2022, www.cbd.int/doc/c/ff27/0869/878e0ea8e9a8d7d00b0320f4/abs-cc-02-03-en.pdf, p. 4.

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How Is Private International Law Relevant to the Implementation of the Nagoya Protocol? Private international law can be def ined as “the body of principles, rules and, at times, policies and approaches that indicate how a foreign element in a legal problem or dispute should be dealt with.”35 In common law and civil law jurisdictions alike, private international law is concerned with three key issues: (1) Jurisdiction – does the forum court or another foreign court have power to hear and determine a dispute? (2) Choice of law – assuming a court does f ind it has jurisdiction to determine a dispute, which substantive law should it apply – the law of the forum (lex fori) or the law of another foreign State? And (3) the recognition and enforcement of foreign judgements or arbitral awards.36 All three key issues are relevant to access and benef it sharing under the Nagoya Protocol because of the essentially contractual nature of the transactions that implementation of the Nagoya Protocol gives rise to. As Ruse-Khan has noted, Based on the [access and benef it sharing] framework set out by the [Nagoya Protocol], details of (fair and equitable) benef it sharing are meant to be set out in form of “mutually agreed terms” i.e. in contractual arrangements between the provider of [genetic resources] and/or associated [traditional knowledge] . . . and a prospective user. Since utilization and subsequent commercialisation of [genetic resources] and traditional knowledge often takes place in countries other than the provider country, the enforcement of these access and benef it sharing contracts rise [sic] questions of jurisdiction, applicable law and enforcement of judgments or awards abroad.37 This inter-relationship between the Nagoya Protocol and the three key issues dealt with by private international law mentioned earlier was contemplated when the Nagoya Protocol was negotiated. As such, Article 18(1) of the Nagoya Protocol imposes an obligation on each Party to the Nagoya Protocol to encourage providers and users of genetic resources and/or traditional knowledge associated with genetic resources to include provisions in mutually agreed terms to cover, where appropriate, dispute resolution including:

(a) The jurisdiction to which they will subject any dispute resolution processes; (b) The applicable law, and/or (c) Options for alternative dispute resolution such as mediation or arbitration.38 Similarly, under Article 18(2), each Party to the Nagoya Protocol is required to ensure that an opportunity to seek recourse is available under their legal systems, consistent with applicable jurisdictional requirements, in cases of disputes arising from mutually agreed terms.39

35 Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (Chatswood: LexisNexis Butterworths, 2019), 3. 36 Ibid. 37 Henning Grosse Ruse-Khan, “The Private International Law of Access and Benef it-sharing Contracts,” Max Planck Institute for Innovation and Competition Research Paper Series, Research Paper No. 17–15, 12. 38 Nagoya Protocol, article 18(1). 39 Nagoya Protocol, article 18(2).

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Article 18(3) goes on to require each Party to the Nagoya Protocol to also take effective measures regarding access to justice, the utilisation of mechanisms regarding mutual recognition and enforcement of foreign judgements and arbitral awards.40 Given the contractual nature of mutually agreed terms under the Nagoya Protocol, consistency in terminology and certainty in contractual terms are desirable. In part, this is encouraged by Article 19(1) of the Nagoya Protocol, which requires that States “encourage, as appropriate, the development, update and use of sectoral and cross-sectoral model contractual model clauses for mutually agreed terms.41 Article 19, therefore, recognises the need to create legally enforceable and inter-operable [access and benef it sharing] contracts in different jurisdictions that may have different national [access and benef it sharing] frameworks and whose national courts may have different standards in recognizing as valid and enforcing contracts.42 A report prepared by the secretariat of the CBD in 2013 noted a wide divergence of approaches to the preparation of model contractual model clauses for mutually agreed terms, including • model templates authored by public or private sector institutions designed to be adapted and applied across different sectors and context across jurisdictions and suitable for both commercial and non-commercial research;43 • models authored by governments aimed to fulf  il specif  ic legislative or other regulatory requirements;44 • models authored by a potential party to the agreement, such as research or collection institutions;45 and • actual agreements that have been adapted retrospectively as models for the future.46 It is clear, though, that there has in reality been no one single set of model contractual clauses universally adopted, and this is a reflection of the wide diversity of situations in which such model clauses have been prepared. As the report mentioned also notes, a given [access and benef it sharing] arrangement might involve a material transfer agreement or export permit, a research permit application incorporating mutually agreed terms including benef it-sharing obligations (executed simultaneously or triggered through the commercialization of products), and a research collaboration agreement, and may be supported by one or more codes of conduct, guidelines, best practices or standards. If traditional knowledge

40 Nagoya Protocol, article 18(3). 41 Nagoya Protocol, article 19(1). 42 Elisa Morgera, Elisa Tsioumany and Mathias Buck, “Article 19-Model Contractual Clause,” in Unravelling the Nagoya Protocol. A Commentary on the Nagoya Protocol on Access and Benef it-sharing to the Convention on Biological Diversity, eds. Elisa Morgera, Elisa Tsioumany and Mathias Buck (Leiden: Brill, 2015), 293–97. 43 Convention on Biological Diversity, Open-ended Ad Hoc Intergovernmental Committee for the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benef its Arising from Their Utilization, Survey of Model Contractual Clauses, Codes of Conduct, Guidelines, Best Practices and Standards by the United Nations University-Institute of Advanced Studies (2013) UN Doc UNEP/CBD/ICNP/3/INF/2, 10–11. 44 Ibid. 45 Ibid. 46 Ibid.

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from indigenous and local communities is sought, evidence of an [access and benef it sharing] arrangement with the holders of that knowledge may be required. Note too, that legal instruments containing elements relevant to the obligations of the Convention and the Nagoya Protocol may have a central purpose that is broader than but that incorporates [access and benef it sharing] obligations, such as for example, an agreement that def ines a collaborative research process between research institutions. Codes of conduct, guidelines, best practices and standards may support the legal arrangements that underpin [access and benef it sharing], and might be relevant to the process of negotiation, the content of agreements, or both. In some cases, such support tools might be directly referred to in [access and benef it sharing] agreements, and so become legally relevant to the obligations of contracting parties under that agreement. Compliance with such codes may be encouraged in other ways also, such as through becoming the condition of a research grant. In most cases, the single or constellation of legal instruments evidencing a given [access and benef it sharing] arrangement must, as described, fulf ill a range of functions based on the requirements of the Convention, the Nagoya Protocol . . ., any national or sub-national access and benef it sharing legislation or policy measures, as well as any other applicable national or sub-national legislation, for example, regulations concerning entry into, and the collection and taking of biological samples from protected areas.47 In addition, it is also worth noting that a wide variety of benef its that can be shared are also contemplated by the Nagoya Protocol. As Article 5 and the Annex to the Nagoya Protocol make clear monetary benef its payable under mutually agreed terms may include, but are not limited to ( a) (b) (c) (d) (e) (f) (g) (h) (i) (j)

Access fees/fee per sample collected or otherwise acquired; Up-front payments; Milestone payments; Payment of royalties; Licence fees in case of commercialization; Special fees to be paid to trust funds supporting conservation and sustainable use of biodiversity; Salaries and preferential terms where mutually agreed; Research funding; Joint ventures; Joint ownership of relevant intellectual property rights.48

Beyond monetary benef its, the Nagoya Protocol also contemplates mutually agreed terms that may include provisions relating to the sharing of non-monetary benef its, including but not limited to (a) Sharing of research and development results; (b) Collaboration, cooperation and contribution in scientif ic research and development programmes, particularly biotechnological research activities, where possible in the Party providing genetic resources;

47 Ibid. 48 Nagoya Protocol, article 5 and Annex.

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(c) Participation in product development; (d) Collaboration, cooperation and contribution in education and training; (e) Admittance to ex situ facilities of genetic resources and to databases; (f) Transfer to the provider of the genetic resources of knowledge and technology under fair and most favourable terms, including on concessional and preferential terms where agreed, in particular, knowledge and technology that make use of genetic resources, including biotechnology, or that are relevant to the conservation and sustainable utilization of biological diversity; (g) Strengthening capacities for technology transfer; (h) Institutional capacity-building; (i) Human and material resources to strengthen the capacities for the administration and enforcement of access regulations; (j) Training related to genetic resources with the full participation of countries providing genetic resources, and where possible, in such countries; (k) Access to scientif ic information relevant to conservation and sustainable use of biological diversity, including biological inventories and taxonomic studies; (l) Contributions to the local economy; (m) Research directed towards priority needs, such as health and food security, taking into account domestic uses of genetic resources in the Party providing genetic resources; (n) Institutional and professional relationships that can arise from an access and benef itsharing agreement and subsequent collaborative activities; (o) Food and livelihood security benef its; (p) Social recognition; [and] (q) Joint ownership of relevant intellectual property rights.49 It is fair to say then that model contractual clauses suggested by Article 19(1) of the Nagoya Protocol and the benef its that may provide for are arguably as diverse as the forms of biodiversity which the Nagoya Protocol seeks to regulate access and benef it sharing in relation to. Despite this diversity of forms many of these model contractual clauses do cover key issues of private international law, including applicable law and jurisdiction “stating the applicable law and jurisdiction for contract interpretation of disputes” and “processes to apply in the event of disputes.”50 However, it should also be noted that few of such model contractual clauses have been revised since the Nagoya Protocol’s adoption and questions therefore arise as to their f itness for purpose for use in national access and benef it regimes legislated to implement the Nagoya Protocol.51

How Is the Nagoya Protocol Implemented in Domestic Jurisdictions in the Arctic? Mutually agreed terms (which may or may not be based on model contractual clauses in the forms, as discussed earlier) are of course shaped by and, in most cases, mandated by the domestic legislation

49 Ibid. 50 Convention on Biological Diversity, Open-ended Ad Hoc Intergovernmental Committee, 15. 51 Ibid., 12.

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implementing the CBD and the Nagoya Protocol in each jurisdiction where applicable.52 As of March 15, 2022, in the Arctic, only Canada, Russia, Finland, Denmark, Iceland, Sweden and Norway have signed and ratif ied the CBD.53 More signif icantly only Finland, Norway, Denmark and Sweden have ratif ied the Nagoya Protocol.54 Given Sweden, Denmark and Finland are also members of the European Union (EU), it is also worth noting that the EU is also a party to the Nagoya Protocol since 2014.55 In terms of approaches to access and benef it sharing regimes under the CBD and Nagoya protocol in the Arctic this means there are six broad categories of jurisdictions: 1. A State that has no obligations under the CBD or the Nagoya Protocol as they have ratif ied neither instrument. This is the United States of America (USA). While the USA has signed the CBD, it has not ratif ied or otherwise become a party to the CBD and has not signed or ratif ied the Nagoya Protocol.56 Accordingly, it is under no obligations under either instrument, except of course the general obligation to refrain from acts which would defeat the object and purpose of the CBD as a signatory to that treaty.57 There is no federal legislation in the USA that specif ically creates an access and benef it sharing regime applicable to Arctic genetic resources, although some legislation related specially to management of national parks may be indirectly applicable.58 2. States that only have obligations under the general framework provisions of the CBD but not the Nagoya Protocol as they have ratif ied the former but not the later. These States include Canada, Iceland and Russia. In the case of Canada, there is no national access and benef it sharing legislation per se, although at provincial level specif ic legislation regulating scientif ic research may be applicable in the Yukon59 and Nunavut,60 while like the USA legislation relating to scientif ic research in national parks may also be applicable.61 In Iceland there is no specif ic access and benef it sharing legislation, although access to microbial life in some geothermal areas is regulated.62 In Russia there is no access and benef it sharing legislation, although a patchwork of legislation dealing with a range of other issues, including veterinary medicine, wildlife, intellectual property rights, regulation of science, genetic engineering and international trade, may be applicable. But as one recent study highlights this patchwork of regulation has been

52 A detailed examination of legislation applicable in each Arctic jurisdiction is provided in Leary, “Bioprospecting at the Poles.” The following discussion provides only a broad overview of applicable legislation in each of these jurisdictions drawing on that discussion. For more detailed information on each jurisdiction, see that discussion and other sources cited therein. 53 Convention on Biological Diversity, “List of Parties,” accessed March 15, 2022, www.cbd.int/information/parties.shtml. 54 Ibid. 55 Ibid. 56 Ibid. 57 Convention on the Law of Treaties (Vienna), May 23, 1969, in force January 27, 1980, 8 ILM 679 (1969), Article 18. 58 Leary, “Bioprospecting at the Poles,” 288. 59 See Scientists and Explorers Act 2002 (Yukon). 60 See Scientists Act 1988 (Northwest Territories). 61 See Leary, “Bioprospecting at the Poles,” 288, which also draws on Freedom Kai-Phillips, “Access and Benef it-sharing in Canada: Glimpses from the National Experiences of Brazil, Namibia and Australia to Inform Indigenous-sensitive Policy,” in Genetic Resources, Justice and Reconciliation, ed. Chidi Oguamanam (Cambridge: Cambridge University Press, 2018), 157, and Chidi Oguamanam and Jain Vipal, “Access and Benef it Sharing, Canadian and Aboriginal Research after the Nagoya Protocol: Digital DNA and Transformations in Biotechnology,” Journal of Environmental Law and Practice 3 (2017): 79. 62 See Iceland, Law No 57/1988 on Research and Exploration of Natural Resources in the Ground.

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inconsistently implemented, with little regard for the rights and interests of Indigenous Peoples and local communities.63 3. Those States that are members of the EU and, as such, measures adopted by the EU and the European Commission apply. These measures include the EU ABS Regulation64 and the associated commission implementing regulation.65 Here, regard should also be had to a Guidance Document66 issued by the EU on the scope and application and core obligations of the EU ABS Regulation. Although non-legally-binding, the Guidance Document is intended to assist EU citizens, businesses and national authorities in the application of the EU ABS Regulations and the associated commission implementing regulation.67 States in this category include Sweden, Finland and Denmark. The application of these EU instruments is enhanced by specif ic legislation in each of these jurisdictions.68 4. A State that is not a member of the EU but has ratif ied both the CBD and the Nagoya Protocol and has enacted specif ic legislation relating to access and benef it sharing. This State is Norway.69 5. Greenland by itself can be regarded as a sixth category of jurisdiction because Denmark’s approval of the Nagoya Protocol does not apply to Greenland or the Faroe Islands.70 Greenland has had legislation relating to access and benef it sharing since 2006, and this legislation was updated in

63 See Hasrat Arjjumend, Sabiha Alam, Nikolay Shishatskiy and Timo Koivurova, “Analysis of Evolving Domestic Access and Benef it Sharing Legislation in Russia from the Perspective of Indigenous People and Local Communities,” Journal of Global Resources 2 (2016): 109. 64 Regulation (EU) No 511/2014 of the European Parliament and of the Council of April 16, 2014, on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benef its Arising from the Utilization in the Union, OJ L150/59 (April 16, 2014). 65 Commission Implementing Regulation (EU) 2015/1866 of October 13, 2015, laying down detailed rules for the implementation of Regulation (EU) No 511/2014 of the European Parliament and of the Council as regards the register of collections, monitoring user compliance and best practices, OJ L275/4 (October 13, 2015). 66 European Commission, “Guidance Document on the Scope of Application and Core Obligations of Regulation (EU) No 511/2014 of the European Parliament and of the Council on the Compliance Measures for Users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benef its Arising from Their Utilisation in the Union (2021/C13/01),” accessed March 31, 2022, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?ur i=CELEX:52021XC0112(02)&from=EN. 67 Ibid. 68 In Sweden this is Ordinance is Förordning (2016:858) om användning av genetiska resurser och traditionell kunskap om sådana resurser. This ordinance can be accessed in Swedish at www.riksdagen.se/sv/dokument-lagar/dokument/svenskforfattningssamling/forordning-2016858-om-anvandning-av-genetiska_sfs-2016-858, accessed March 30, 2022. In Finland, this legislation is the act on the Implementation of the Nagoya Protocol to the Convention on Biological Diversity (Finland). See Biodiversity Finland, Genetic Resources and Legislation, accessed March 30, 2022, www.biodiversity.f i/ geneticresources/home, for more information. In Denmark, the legislation is the Act on Sharing Benef its Arising from the Utilisation of Genetic Resources (Denmark) Act no 1375 23/12/2012. Off icial English translation at https://absch. cbd.int/api/v2013/documents/8C9F1ADB-89DF-B6E2-DF7D-F3F0802AE59B/attachments/Act%20on%20sharing %20benef its%20arising%20from%20the%20utilisation%20of%20genetic%20resources.pdf, accessed March 30, 2022. 69 In Norway, the relevant legislation is the Marine Resources Act (Lov nr. 37 of June 6, 2008 om forvaltning av viltevande marine ressursar [Norway]), unoff icial English translation, at http://extwprlegs1.fao.org/docs/pdf/nor82017E.pdf?, accessed March 30, 2022); the Nature Diversity Act, (Lov nr. 100 of June 19, 2009, om forvaltning av naturens mangfold, available in Norwegian at https://lovdata.no/dokument/NL/lov/2009-06-19-100, accessed March  30, 2022); and the Regulation on Traditional Knowledge Associate with Genetic Material (Regulation nr. 1367 of November 25, 2016), relating to the protection of traditional knowledge associated with genetic material (Norway), unoff icial English translation available at https://lovdata.no/dokument/SFE/forskrift/2016-11-25-1367, accessed March 30, 2022. 70 Convention on Biological Diversity, Access and Benef it-Sharing Clearing House, “Denmark,” accessed March 31, 2022, https://absch.cbd.int/en/countries/DK.

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2016 with the passage of the Act on Utilization of Genetic Resources and Activities in Connection Therewith, which entered into force on June 1, 2016.71 6. Arguably the Faroe Islands constitutes a separate potential hybrid category with respect to access and benef it sharing in the Arctic. The government of the Faroe Islands describes itself as a “self-governing nation with extensive autonomous powers and responsibilities within the Kingdom of Denmark.”72 As noted earlier, Denmark’s approval of the Nagoya Protocol does not apply to the Faroe Islands. As an autonomous part of the Kingdom of Denmark, it has no capacity in international law to become a party to either the CBD or the Nagoya Protocol, so neither applies to the Faroe Islands. As far as the author has been able to assertation, there has been no legislation enacted by the Home Rule Parliament of the Faroe Islands relating to access and benef it sharing, and accordingly, all such activities appear to be unregulated in the Faroe Islands.

Mutually Agreed Terms and Private International Law Issues Where mutually agreed terms for access and benef it sharing gives rise to a legal dispute across international borders, private international law intervenes to direct how those disputes are to be resolved.73 The assumption in the following discussion is that a dispute has arisen from an alleged breach of the contractual relationship documented in the mutually agreed terms agreed in accordance with the relevant access and benef it sharing legislation of the provider State. Outside of this context, the author of this chapter does not agree with the assertion which seems to be implicit in Chiarolla’s ground-breaking study of private international law and the Nagoya Protocol that private international law has a role to play in so-called cases of “misappropriation” of genetic resources and traditional knowledge outside or contrary to “applicable domestic access and benef it sharing legislation or regulatory requirements of a Party to the Protocol.”74 In essence, what such an approach seems to suggest is the existence under domestic law of certain rights outside what a particular State may have legislated for. But to suggest the existence of such rights outside of domestic access and benef it sharing legislation seems to conveniently omit that the very reason the Nagoya Protocol was negotiated, and domestic ABS legislation was enacted was because no such legal rights existed before. Ethical debates about misappropriation of genetic resources in that context seem to have become confused with what the law actually is. Access and benef it sharing legislation in each jurisdiction is the public law instrument that provides the legal framework within which mutually agreed terms are to be negotiated and upon which a contract, the source of private law rights is concluded. Where States have chosen not to ratify the Nagoya Protocol or not to implement access and benef it sharing legislation, the function of private international law is not to f ill the gap by extending non-existent legal rights purportedly arising from misappropriation. Such rights in law do not

71 Inatsisartutlov nr. 3 af 3. juni 2016 om udnyttelse af genetiske ressourcer og aktiviteter i forbindelse dermed. A copy of this legislation is available from a government of Greenland website at http://lovgivning.gl/lov?rid=%7b9FD12C4BDB13-4545-B38E-F617738BD35F%7d (hereinafter the Greenland ABS Legislation), accessed March 30, 3022. A brief summary in English is also available Business Greenland, “Collection and Research of Genetic Resources,” accessed March 30, 2022, www.businessingreenland.gl/en/Erhverv/Genetiske-ressourcer. 72 The Government of the Faroe Islands, “The Faroe Islands in the International Community,” accessed March 31, 2022, www.government.fo/en/foreign-relations/the-faroe-islands-in-the-international-community/. 73 Chiarolla, “The Role of Private International Law under the Nagoya Protocol,” 424. 74 Ibid., 428.

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exist. Where parties have acted outside of ABS legislation it is not for private international law to step in to see that legislation is enforced. Private international law has no role to play in enforcement of the domestic public law of any State. The function of private international law is not to enforce the governmental interests, public policy decisions, revenue law, penal laws and similar such laws of foreign States. Decisions of courts of numerous jurisdictions conf irm this.75 So if suppliers or users of genetic resources act contrary to the ABS legislation of a particular State, it is not the role of private international law to step in and enforce those laws. Instead, the key and only role of private international law is to provide a framework for resolving legal issues relating to the contract embodying mutually agreed terms, which necessarily may arise because of the cross-boundary nature of many such transactions. However, while a simplistic statement such as this may be accurate, it nonetheless hides the complexity of the issues involved in private international laws interaction with the Nagoya Protocol. As one publication on the topic has quite accurately (if perhaps in an unsettling way) stated, private international law is not just one body of law but rather a collection of rules, standards and exceptions that apply where hundreds of different legal systems attempt to determine whether and how each will give effect to the other, in transboundary situations. As one might guess, there are as many different ways of handling transboundary legal situations as there are countries. Every country comes to its own conclusions on these issues, based in its own national laws and policies. Indeed, if parties to a contract f ile separate lawsuits on the same point, in two different jurisdictions, it is highly likely that the two judges will each rule that a different body of law applies to the contract. . . . In sum [private international law] is an attempt to develop a taxonomy of national approaches to these questions, and see if it is possible to discern commonalities, trends and standards that appear to apply in nearly all cases. At most it can provide the parties to [access and benef it sharing] contracts with a level of understanding regarding the uncertainties of their contracts, and help explain why it is not advisable for those contracts to rely on [access and benef it sharing] terminology. . . . The great challenge for [private international law] lies in the fact that there are over 200 individual countries (or protectorates with separate national law) in the world, which means that there are over 40,000 possible combinations of countries that may be involved in a two-county international contract. Given that most [access and benef it sharing] contracts involve multiple countries, the number of possible combinations is astronomical. Added to that, every different type of contractual clause or legal issues may lead to a different decision regarding which countries law governs the interpretation or application of that clause or issue, so that a single contract can produce hundreds of different opinions.76 While the possible permutations and combinations for resolving transboundary issues with respect to access and benef it sharing contracts in general terms may be many, in the Arctic context in light of the discussion on the state of ratif ication of the Nagoya Protocol and the extent of access and

75 For discussion on cases in relation to this in common law jurisdictions, such as the UK, the USA, Australia and New Zealand, for example, see Martin Davies, Nygh’s Conflict of Laws in Australia (Sydney: LexisNexis Butterworths, 2019), 440–52. 76 Tomme Young and Morten Tvedt, “ ‘Avoiding Making Legal Assumptions’: The Perils of Relying on a ‘Governing Law’ Clause and/or “Private International Law,” in Drafting Successful Access and Benef it-Sharing Contracts, eds. Tomme Young and Morten Tvedt (Leiden: Brill, 2017), 298–300.

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benef it sharing legislation in Arctic States, it would appear that in the Arctic context private international law is primarily going to be relevant where contracts embodying mutually agreed terms are concluded with respect to genetic resources accessed from biodiversity located in Sweden, Finland, Norway, Denmark and Greenland. This is because these are the only jurisdictions in the Arctic where a contract properly characterised and including mutually agree terms in terms of the Nagoya Protocol could arise. No access and benef it sharing contracts for mutually agreed terms as understood in terms of the Nagoya Protocol could arise with respect to genetic resources accessed from biodiversity in any other Arctic jurisdiction simply because those other Arctic jurisdictions have not ratif ied the Nagoya Protocol or enacted domestic ABS legislation. Although specif ic examples of commercialisation of Arctic genetic resources can be pointed to, the author of this paper has been unable to identify any specif ic example of an ABS contract that has been concluded with respect to Arctic genetic resources that has been subject to a litigated dispute. As such, consideration of private international law issues must for now remain in the abstract. Although one very interesting study does consider the hypothetical application of the Norwegian legislation, which conf irms the likely complexity of resolving cross boundary disputes relating to access and benef it sharing and, in particular, suggests that private international law will be unable to resolve all foreseeable issues, especially where domestic access and benef it sharing legislation in Norway interact with domestic administrative law.77 There is no reason to expect such problems might not arise in other Arctic jurisdictions As noted earlier in this chapter, private international law assumes the access and benef it sharing contract has some cross-border element. For example, parties to the access and benef it sharing contract may be located in different jurisdictions. Similarly, for many such contracts it will also often be the case that the biodiversity or traditional knowledge to be accessed is located in one jurisdiction (the “provider” jurisdiction), while the actual use, research, development and commercialisation of will occur in one or more other jurisdictions (the “user” jurisdictions). Once new products have been developed applications for patents and/or the marketing of new products developed from such genetic resources and/or traditional knowledge could potentially occur in any number of jurisdictions around the world. Whether such further use, research, development, commercialisation or patenting is permissible under the terms of the access and benef it sharing contract could potentially be subject to litigation anywhere in the world remains a moot point. But as the earlier quote makes clear, the actual content and principles of private international law is unique to each jurisdiction. Thus, while ABS contracts under the Nagoya Protocol will for the time being relate only to the genetic resources of Sweden, Finland, Norway and Greenland, disputes in relation to such access and benef it sharing contracts could in theory be determined in accordance with the unique private international law of any of the more than 193 member States of the United Nations. It is likely though ABS contracts could be concluded by far fewer States than that as early studies show that the bulk of companies interested in Arctic genetic resources come from the USA, Canada, Iceland, Norway, Finland, Sweden, Denmark and the United Kingdom.78 Given that many of the companies active in bioprospecting in the Arctic are European and are based in some of the same jurisdictions that have legislated to regulate access and benef it sharing in accordance with their obligations under the Nagoya Protocol, it is likely that European private international law will to some extent be relevant to resolving many such disputes. Fortunately,

77 Morten Tvedt and Ole Fauchald, “Implementing the Nagoya Protocol on ABS: A Hypothetical Case Study on Enforcing Benef it Sharing in Norway,” The Journal of World Intellectual Property 14, no. 5 (2011): 383–40. 78 David Leary, “Bioprospecting in Antarctica and the Arctic. Common Challenges?” Yearbook of Polar Law 1 (2009): 145.

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across the European jurisdictions of Sweden and Finland and (although not a member of the EU) Norway, there is arguably a degree of consistency in principles of private international law. This is because of the application of EU regulations with respect to private international law and including the Brussels I Regulation (2012) (in relation to jurisdiction and the recognition and enforcement of judgements)79 and the Rome I Regulation (that deals with private international law applicable to contractual obligations).80 Brussels I Regulation (2012), for example, provides that, as a general rule, persons domiciled in a particular EU member State shall be sued in the courts of that member State.81 Likewise, a judgement given in a EU member State is automatically recognised in the other EU member State without any special procedure being required.82 Similarly, Rome I Regulation provides a contract shall generally be governed by the law chosen by the parties through an express choice of law clause.83 While there is consistency in the rules of private international law across the European Union, the author also concedes that it is an open question as to whether these EU regulations would apply to contracts relating to mutually agreed terms. Article 1 of Brussels I Regulation provides that it does not apply to “revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).”84 Likewise, Rome I does not apply “to revenue, customs or administrative matters.”85 Contracts containing mutually agreed terms clearly do not relate to revenue or customs matters. But does the entry into contracts such as these constitute administrative matters or relate to the liability of the State for acta iure imperii? This question cannot be answered conclusively at this stage; it is arguable that the better view is that it does not. This is because arguably, in any future litigation, it would not be an administrative decision of a State or the act of the State that would be in question but rather the terms of the contract, their interpretation and their implementation. Even if that were the case and Brussels I or Rome I did not apply, then the courts would still need to determine issues relating to jurisdiction and recognition and enforcement of judgements in accordance with other applicable rules of private international law. As noted earlier in this chapter, such determinations will vary depending on factors, such as the nationality or domicile of particular parties and the court which is asked to exercise jurisdiction. In the absence of specif ic dispute, it is diff icult to express a conclusive view on this issue.

Conclusion This chapter has examined the role of mutually agreed terms under the CBD and the Nagoya Protocol in the Arctic context. Quite uncharacteristically for an instrument of public international law, the Nagoya Protocol relies heavily on private international law for the implementation of its core provisions relating to access and benef it sharing through mutually agreed terms. As this chapter has highlighted, agreements on access and benef it sharing in the form of mutually agreed

79 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of December 12, 2012, on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (recast), OJ L 351/1, (December 20, 2012) (‘Brussels I’). 80 Regulation (EC) No 593/2008 of the European Parliament and of the Council of June 17, 2008, on the law applicable to contractual obligations (Rome 1). L 177/6 (June 17, 2008). 81 Article 4, Brussels I. 82 Article 36, Brussels I. 83 Article 3, Rome I. 84 Article 1, Brussels I. 85 Article 1, Rome I.

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terms are contractual in nature. It is in the resolution of disputes in relation to these potentially cross-border contracts that private international law is most relevant. There is no doubt there is commercial interest in Arctic genetic resources. Several Arctic jurisdictions have implemented access and benef it sharing legislation consistent with the Nagoya Protocol, but precisely how these legislative regimes will interact with the rules of private international law in the Arctic context must await an actual contractual dispute. Precisely how effective the close relationship between the CBD, Nagoya Protocol and private international law will be for resolving potential cross-border contract disputes remains unclear. But rather than providing for legal certainty, given the diversity of ways that private international law may resolve a particular issue across multiple jurisdictions, it is at least arguable that the Nagoya Protocol’s attempt to link its access and benef it sharing provisions to private international law has created more complexity than is needed. It appears, therefore, that in creating this link between access and benef it sharing under the Nagoya Protocol and private international law, the drafters of the Nagoya Protocol have simply been “to smart by half ” in the sense in their efforts to create certainty, they appear to have created even more uncertainty, at least in the Arctic context.

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36 CHINA’S INVESTMENT TREATIES WITH THE ARCTIC STATES Time for Revision? Maxim Usynin*

Introduction The melting of ice promises new opportunities for industrial activities, such as mining and shipping, which can be threatening for the fragile environment of the Arctic. Both “dry” and “wet” drilling for oil and gas by the Arctic States on their territories continue to make the headlines. Contested territorial claims signify their interest in the extended continental shelf, the resource-rich area potentially eligible for offshore mining and drilling. The increasing use of the two northern passages promises commercial advantages to Arctic shipping. The growing militarisation of the area goes hand in hand with territorial ambitions in order to secure future economic interests. It seems, therefore, highly probable that the scope of industrial activities in the Arctic will only increase with time, leading to the growth of domestic and foreign investment. The Arctic region becomes an increasing playground for international collaborations, both between the Arctic States and between them and third countries. A closer look at the last category points towards China as an ambitious actor, which, despite historical exclusion1 and geographical remoteness, shows increasing interest in the Arctic region.2 The focus of the research is further set on the international legal framework, manifested in the international investment agreements between China and the Arctic States, as compared to the national regulation of investment activities. The chapter investigates the main regulatory objectives for foreign investment in the region and questions whether the relevant IIAs give them appropriate consideration. It further considers

* The author thanks Szilárd Gáspár-Szilágyi, Laura Létourneau-Tremblay and Vibe Garf Ulfbeck for their comments to earlier drafts of the paper. 1 The “historical exclusion” may be a matter of perspective: see Yuanyuan Ren and Dan Liu, “A Rule Follower, a Challenger, or a Learner? Recasting China’s Engagement in the Arctic,” The Yearbook of Polar Law Online 9, no. 1 (December 8, 2018): 204, fn 5, https://doi.org/10.1163/22116427_009010010 (tracing China’s involvement to its accession to the Svalbard Treaty in 1925). Cf. frequent references to the Svalbard Treaty in the 2018 Chinese Arctic Policy; “White Paper: China’s Arctic Policy” (The State Council Information Off ice of the People’s Republic of China, January 2018), http://english.www.gov.cn/archive/white_paper/2018/01/26/content_281476026660336.htm. 2 See an overview in Terry McDonald and Benjamin Klasche, “Foot in the Door: China’s Investments in the Arctic Region,” in Revisiting Regionalism and the Contemporary World Order, eds. Élise Féron, Jyrki Käkönen and Gabriel Rached (Verlag Barbara Budrich, 2019), 201–22, https://doi.org/10.2307/j.ctvr00xjn.14.

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whether the treaty framework requires amendment and renegotiation to accommodate the increasing regulatory concerns. The study proceeds in the following order. Part 1 introduces China’s investment as a case study of a genuinely “foreign” yet ambitious investor in the region. Part 2 identif ies the regulatory objectives for investment in the region, backed by international political consensus. Part 3 provides a brief overview of the relevant IIAs and methodological limitations connected with their analysis. Part 4 discusses whether these IIAs reflect the regulatory objectives identif ied earlier and makes several initial suggestions for their improvement. The concluding part summarises the f indings of the study.

Chinese Investment as a Case Study The focus on China delimits the scope of inquiry to the examination of the investment framework between it and the Arctic coastal States. The fact that many Chinese companies operate as Stateowned or controlled enterprises, or otherwise receive State support in the form of State aid,3 is another reason for looking into their investment activities abroad. In the political dimension, some may interpret these activities as mirroring the State’s own geopolitical interest.4 From the starting point, one can observe China has active interest in the region, conf irmed by the State itself.5 Such interest is also conf irmed by public6 and private7 expert opinions. Scholars identify three types of activities manifesting China’s engagement: scientif ic research, economic involvement and political participation in regional fora.8 Economic involvement seems to be of primary relevance for the current discussion, due to its connection to investment activities.

3 See e.g. The EU’s Response to China’s State-Driven Investment Strategy (Luxembourg: European Court of Auditors (ECA), 2020), 13, www.eca.europa.eu/Lists/ECADocuments/RW20_03/RW_EU_response_to_China_EN.pdf. 4 See e.g. Sophie Meunier, “Beware of Chinese Bearing Gifts: Why China’s Direct Investment Poses Political Challenges in Europe and the United States,” in China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy, eds. Julien Chaisse, International Economic Law Series (Oxford: Oxford University Press, 2019), 350–52, https://doi. org/10.1093/oso/9780198827450.001.0001 (discussing both apparent and opaque connections between investors and the State). Cf. Hui Yao Wang and Lu Miao, “China’s Outward Investment,” in China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy, ed. Julien Chaisse, International Economic Law Series (Oxford: Oxford University Press, 2019), 44, https://doi.org/10.1093/oso/9780198827450.001.0001 (writing about a growing share of private, as compared to State-owned, Chinese enterprises as investors). 5 “White Paper: China’s Arctic Policy” ’:  China Is an Important Stakeholder in Arctic Affairs. Geographically, China Is a “Near-Arctic State,” one of the continental States that are closest to the Arctic Circle. 6 See e.g. Gisela Grieger, China’s Arctic Policy: How China Aligns Rights and Interests (Brussels: European Parliamentary Research Service (EPRS), May 2018). See also Efterretningsmæssig Risikovurdering (København: Forsvarets Efterretningstjeneste [Danish Defence Intelligence Service], 2020), 20–21, https://fe-ddis.dk/globalassets/fe/dokumenter/2020/ risikovurderinger/-risikovurdering-2020-.pdf. 7 See e.g. Ren and Liu, “A Rule Follower, a Challenger, or a Learner?”; Timo Koivurova, “China & the Arctic: Why the Focus on International Law Matters,” The Yearbook of Polar Law Online 10, no. 1 (January 1, 2019): 427–30, https://doi. org/10.1163/22116427_010010019.  See also reports in the regional media, such as Berit Enge, “China’s Polar Silk Road: Where Does It Lead?” High North News, February 14, 2018, www.highnorthnews.com/en/chinas-polar-silk-road-where-does-it-lead. 8 Ren and Liu, “A Rule Follower, a Challenger, or a Learner?” 206.  Cf. a much broader list of activities, declared by China itself, which includes both economic and non-economic policy goals. See “White Paper: China’s Arctic Policy.”

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Furthermore, one can note that China’s ambitions concern both the extractive potential of the Arctic territories and access to the Arctic Ocean.9 Extractive activities may happen both on the territories of the coastal States and on the submarine areas subject to conflicting claims. Additionally, there is an active engagement of China’s State-owned investors in the transportation projects along the Northern Sea Route. The newly coined term “Polar Silk Road,” conceived by analogy with its land-based contemporary and the “Belt and Road Initiative,”10 testif ies to China’s interest in transportation and access to Russian natural resources. China’s ambitions are a matter of concern among the Arctic States, albeit to a varying extent. The political rhetoric ranges from openly critical (US,11 Canada12) and worried (Denmark13), to actively encouraging China’s participation (Russia14). Almost inevitably, such projects become subject to investment screening, where national security concerns manifest the political interest in Chinese presence, both in its private and State-owned or State-controlled forms. After mapping out the political terrain and the factual engagement, it seems worthwhile looking at the international guidelines for investment in the region.

International Principles and Guidelines on Investment in the Arctic There is no binding international instrument regulating investment activities in the Arctic. However, there are two policy documents which provide guidelines for the desirable business conduct.15

9 Ren and Liu, “A Rule Follower, a Challenger, or a Learner?” 206, fn 11:  “[T]wo industrial sectors in China, namely, shipping and natural resources, are particularly interested in the exploration of the Arctic.” 10 “White Paper: China’s Arctic Policy”:  The Silk Road Economic Belt and the 21st-century Maritime Silk Road (Belt and Road Initiative), an important cooperation initiative of China, will bring opportunities for parties concerned to jointly build a ‘Polar Silk Road’, and facilitate connectivity and sustainable economic and social development of the Arctic.  See also Lau Øfjord Blaxekj, Marc Lanteigne and Mingming Shi, “The Polar Silk Road & the West Nordic Region,” Arctic Yearbook (2018): 19. 11 “A Strategic Blueprint for the Arctic” (January 5, 2020: US Department of the Navy, January 5, 2021), 8, https://news. usni.org/2021/01/05/new-navy-marine-corps-strategic-blueprint-for-the-arctic:  China’s growing economic, scientif ic and military reach, along with its demonstrated intent to gain access and influence over Arctic States, control key maritime ports, and remake the international rules-based order presents a threat to people and nations, including those who call the Arctic Region home. 12 Tom Daly and Jeff Lewis, “Canada Rejects Bid by China’s Shandong for Arctic Gold Mine on Security Grounds,” Reuters, December 23, 2020, www.reuters.com/article/us-tmac-resources-shandong-gold-idUSKBN28W18R. 13 “UDSYN 2021: En Efterretningsbaseret Vurdering Af de Ydre Vilkår for Danmarks Sikkerhed Og Varetagelsen Af Danske Interesser [UDSYN 2021: An Intelligence-Based Assessment of the External Conditions for Denmark’s Security and the Protection of Danish Interests],” UDSYN (København: Forsvarets Efterretningstjeneste [Danish Defence Intelligence Service], December  2021), 25, www.fe-ddis.dk/globalassets/fe/dokumenter/2021/udsyn/-fe-udsynpages-.pdf (noting the increasing interest of China in the Arctic, which may eventually result in military presence in the region). 14 Natalia Miheeva, “Chinese-Russian Cooperation in the Arctic: Geopolitics and Economics,” IOP Conference Series: Earth and Environmental Science 302 (August 2019), https://doi.org/10.1088/1755-1315/302/1/012057. See also Atle Staalesen, “Trans-Arctic Shipments on Agenda as Chinese Companies Come to St. Petersburg Economic Forum,” The Independent Barents Observer (blog), (June 7, 2019), https://thebarentsobserver.com/en/2019/06/trans-arctic-shipmentsrussian-agenda-chinese-companies-come-town; “Chinese Companies Take Stakes in Russia’s Novatek Gas,” France 24 (blog), April 25, 2019, www.france24.com/en/20190425-chinese-companies-take-stakes-russias-novatek-gas. 15 Kong Soon Lim, “Soft Law Instruments on Arctic Investment and Sustainable Development,” Polar Record 56 (2020): 1, https://doi.org/10.1017/S0032247420000108.

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The f irst one is Arctic Investment Protocol, adopted by the World Economic Forum in late 2015.16 The second is Arctic Economic Council’s Code of Ethics from 2018.17 Both documents received wide political backing.18 While recognising that any attempt of summarising already broadly worded principles would result in approximation, one can identify f ive sets of regulatory objectives among them, dealing primarily with • economic development;19 • local populations;20 • environment;21 • responsible business conduct; and22 • regional integration.23 A closer look at the f irst three objectives points towards sustainable development as the common denominator of economic, environmental and social goals. The crowning seems conceptually appropriate, as sustainable development represents both a newly found ambition of international investment law24 and a desired regime for the Arctic.25 It is worth noting that China’s Arctic policy also endorses the promotion of sustainable development.26 The fourth objective is not foreign to investment law either, representing a new ambition of the discipline towards increased policing of investment practices.27 The last goal of regional integration is likely of sui generis character and reflects a higher need for cooperation in an underdeveloped region. The study will further concentrate on the three f irst goals, leaving the remaining two for future investigation.

16 Arctic Investment Protocol – Guidelines for Responsible Investment in the Arctic (Geneva, Switzerland: Global Agenda Council on the Arctic, World Economic Forum, December 2015), http://www3.weforum.org/docs/WEF_Arctic_Investment_ Protocol.pdf. 17 “Code of Ethics” (Arctic Economic Council, 2018), https://arcticeconomiccouncil.com/wp-content/uploads/2018/06/ Code-of-Ethics.pdf. 18 Lim, “Soft Law Instruments on Arctic Investment and Sustainable Development,” 5:  The Protocol and the Code of Ethics demonstrate an apparent consensus on what constitute responsible business conduct or investment in the Arctic. 19 “AIP 2015,” sec. 1; “Code of Ethics 2018” (Objective: “Advance sustainable development in the Arctic”). 20 “AIP 2015,” sec. 2; “Code of Ethics 2018” (Objectives: “Improve the economies, communities, lives and culture of the Arctic Indigenous Peoples”/“local Arctic Peoples”). 21 “AIP 2015,” secs. 3, 5; “Code of Ethics 2018” (Objective: “Balance the potential for Arctic economic activities with environmental stewardship”). 22 “AIP 2015,” sec. 4; “Code of Ethics 2018” (Objective: “Facilitate responsible trade and investment in the Arctic,” plus Rules of Conduct). 23 “AIP 2015,” sec. 6; “Code of Ethics 2018” (Objective: “Strengthen and inform the work of the Arctic Council through the view of business and regional economic cooperation”). 24 Markus W. Gehring and Andrew Paul Newcombe, “An Introduction to Sustainable Development in World Investment Law,” in Sustainable Development in World Investment Law, eds. Marie-Claire Cordonier Segger, Markus W. Gehring and Andrew Paul Newcombe (Alphen aan den Rijn: Kluwer Law International, 2011), 10. 25 See the discussion of regional approaches to sustainable development in Birger Poppel, “Sustainable Development and Sustainability in Arctic Political Discourses,” in The Routledge Handbook of the Polar Regions, eds. Mark Nuttall, Torben R. Christensen, and Martin J. Siegert (London: Routledge, 2018). 26 “White Paper: China’s Arctic Policy.” 27 See e.g. Kathryn Gordon, Marie Bouchard and Joachim Pohl, “Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey,”OECD Working Papers on International Investment (Paris: Organisation for Economic Cooperation and Development (OECD), 2014), http://dx.doi.org/10.1787/5jz0xvgx1zlt-en.

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In the following, the study looks at each of the selected objectives through an investment law lens. While the objectives often also acquire importance in the domestic law of Arctic States, the focus on international law promises a high degree of uniformity in the regulatory governance of the region. The preference to international solutions can benef it from the following example. In recent years, even States without territorial connection to the Arctic region, such as China and India, demonstrated their interest in its resources.28 The political contestations between the Arctic States, as well as third countries, may undermine any piecemeal country or regional solutions developed to address the objectives. The lack of uniform understanding of the “rules of the game” (such as sustainable modes of resource exploration and the importance of environmental protection) pose the risk of a “prisoner’s dilemma”29 for single States, to the detriment of common goals. Thus, the protection of common goals may benef it from uniform international rules,30 which in the context of foreign investments means the governing regime of international (investment) law. Indeed, the centralised regulation of global commons in other geographical places, such as the Antarctic, the outer space and the seabed area, testify to the predictability of their legal regimes. They accommodate high levels of environmental protection with limited opportunities for controlled public and private investment activity. Unfortunately, the Arctic region is notoriously lacking any centralised regulation or a binding protective regime. One can nevertheless name some examples of comprehensive protective instruments, such as the Polar Code31 and policy recommendations of the Arctic Council,32 which fall in line with the idea of holistic regulatory regime for foreign investments. In the absence of such, one should regard the identif ied regulatory objectives as the cornerstones of the investment legal regime.

Investment Treaties: An Overview and Methodological Limitations From a historical perspective, China has been actively engaged in negotiating and signing investment treaties with both developed and developing States.33 Scholars identify three or four “generations” of China’s IIAs,34 which share certain common features across each of the time periods.

28 For a summary of Chinese Arctic policy, see Kong Soon Lim, “China’s Arctic Policy & the Polar Silk Road Vision,” Arctic Yearbook (2018): 17.  In comparison, the engagement of Indian interests remained rather modest until the recent development of the Indian Arctic Policy in 2021. See “India’s Arctic Policy,” Internet Wayback Machine, January 26, 2021, https://web.archive.org/ web/20210126163707/https://arcticpolicyindia.nic.in/. 29 According to Wikipedia, the prisoner’s dilemma “shows why two completely rational individuals might not cooperate, even if it appears that it is in their best interests to do so.” See “Prisoner’s Dilemma,” Wikipedia, January 30, 2022, https:// en.wikipedia.org/w/index.php?title=Prisoner%27s_dilemma&oldid=1068852971. 30 Cf. Lim, “Soft Law Instruments on Arctic Investment and Sustainable Development,” 2 (citations omitted, italics added):  Attempts to broaden the Arctic Council’s original objectives have also been resisted by powerful Arctic States, demonstrating a general unwillingness by Arctic States to subordinate their sovereign interests and the exercise of power. These constraints are further amplif ied in the absence of a cross-border regulatory or oversight regime to ensure that businesses and investments in the Arctic contribute towards sustainable development. 31 “International Code for Ships Operating in Polar Waters (Polar Code)” (2014), www.icetra.is/media/english/POLARCODE-TEXT-AS-ADOPTED.pdf. 32 “Arctic Policy Recommendations,” Arctic Council, accessed April  19, 2021, https://arctic-council.org/en/explore/ work/policy-recommendations/. 33 Heng Wang and Lu Wang, “China’s Bilateral Investment Treaties,” in Handbook of International Investment Law and Policy, eds. Julien Chaisse, Leïla Choukroune, and Suf ian Jusoh (Singapore: Springer, 2021), 2, https://doi. org/10.1007/978-981-13-3615-7_37. 34 See the discussion in Yuwen Li and Cheng Bian, “China’s Stance on Investor-State Dispute Settlement: Evolution, Challenges, and Reform Options,” Netherlands International Law Review 67, no. 3 (December 1, 2020): 504, fn 3, https://doi. org/10.1007/s40802-020-00182-3.

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These features relate mostly to the scope of substantive provisions (such as the inclusion of the national treatment clause,35 the scope of most-favoured-nation (MFN) treatment clause36 in relation to pre-establishment obligations, and prohibition on performance requirements) and procedural (the limited consent to investor-State dispute settlement [ISDS]) provisions of IIAs.37 The variation of clauses may become relevant for investments in the Arctic as it affects the scope of investment protection. For instance, some Arctic States may accord better treatment to investments of their nationals and nationals coming from EU/EEA, as compared to Chinese investments, due the absence of provision prohibiting such discrimination in old IIAs.38 An overview of the generations shows a liberalisation trend, where more recent IIAs expand the rights of foreign investors for achieving broader international protection.39 The likely justif ication of this process appeals to the shift of China’s international role from a capital-importing to a capital-exporting State, mindful of its own investors.40 To complete the picture, one should recall that in many cases such investors are Chinese State-owned enterprises, which are eligible for protection under IIAs.41 A closer look at the Chinese IIAs with Arctic States shows that in the majority they belong to f irst-generation BITs, starting from China’s f irst ever BIT with Sweden (1982).42 Subsequent treaties include BITs with Finland (1984), Norway (1984), Denmark43 (1985) and, after a longer break, Iceland (1994). China has further replaced its BITs with Finland (in 2004) and the Soviet Union (1990; adopting a new BIT with Russia in 2006).44 The early BIT with Sweden received an amending protocol (2004),45 providing for ISDS. These new treaties with Finland and Russia and the protocol with

35 National treatment clause requires a state to provide foreign investors treatment no less favourable than to its own nationals. 36 Under an MFN clause, a State obliges to provide foreign investors treatment no less favourable than to investors of any third state. 37 Wang and Wang, “China’s Bilateral Investment Treaties,” 13–14, 16–18. 38 The national treatment obligation is absent in China’s BITs with Sweden (1982), Norway (1984) and Denmark (1985). Among the reviewed treaties, the obligation f irst appears, albeit in a qualif ied form, in BIT with Iceland (1994). For an overview of China’s treaty practice on the matter, see Shen Wei, “Nondiscriminatory Standards in China’s BITs,” in Decoding Chinese Bilateral Investment Treaties (Cambridge: Cambridge University Press, 2021), 87–93, https://doi. org/10.1017/9781108867146.004. 39 Wang and Wang, “China’s Bilateral Investment Treaties,” 13–14, 16–18. On the change of policy, see Fredrik Lindmark, Daniel Behn, and Ole Kristian Fauchald, “Explaining China’s Relative Absence from Investment Treaty Arbitration,” in The Legitimacy of Investment Arbitration: Empirical Perspectives, eds. Daniel Behn, Malcolm Langford, and Ole Kristian Fauchald, Studies on International Courts and Tribunals (Cambridge: Cambridge University Press, 2022), 430–34, https:// doi.org/10.1017/9781108946636.017. 40 Wang and Wang, “China’s Bilateral Investment Treaties,” 3. 41 Norah Gallagher, “Role of China in Investment: BITs, SOEs, Private Enterprises, and Evolution of Policy,” ICSID Review – Foreign Investment Law Journal 31, no. 1 (February 1, 2016): 99, https://doi.org/10.1093/icsidreview/siv060:  [I]t is safe to assume that, in general, China would have expected its SOEs to be covered by these early BITs. A quick review of some of China’s more recent investment treaties makes it clear that China includes SOEs within the def inition of “investor.” 42 Wang and Wang, “China’s Bilateral Investment Treaties,” 5–7. 43 According to Art. 1(5) of the BIT, it does not apply to Faroe Islands and Greenland. The limited territorial clause reflects specif ic arrangements, which exist between the constituent parts of the Kingdom. 44 “China – USSR BIT” (1990), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-f iles/ 774/download; replaced by “China – Russian Federation BIT” (2006), https://investmentpolicy.unctad.org/internationalinvestment-agreements/treaty-f iles/774/download. 45 Such is the case of “Protocol Amendment to China – Sweden BIT” (2004), https://investmentpolicy.unctad.org/ international-investment-agreements/treaty-f iles/6042/download.

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Sweden belong to another generation of China’s IIAs, where investors can submit “any dispute” to arbitration.46 However, their content does not go much far from the “old generation,” when it comes to elaborated treaty provisions. The BIT with Canada (2012) is the most recent in the list, although its negotiations took reportedly 20 years.47 Lastly, China and the US have never reached an agreement on investment protection.48 Furthermore, any discussion of the IIA universe is subject to some degree of unpredictability regarding their application in arbitral practice. One can name at least three caveats burdening the legal analysis in the anticipation of real-life disputes.49 First, it is not certain whether Chinese businesses will choose to rely on these IIAs instead of other investment structuring arrangements (the problem of treaty shopping). A Chinese investor may structure the business through one or several intermediary companies situated in third States. Tribunals have previously allowed investors to choose between the applicable IIAs in order to benef it from their more investor-friendly provisions.50 The eventual occurrence of treaty shopping in arbitral practice reduces the opportunity to make generalisable f indings about the applicable investment regime. Second, even in the case these IIAs serve as a basis for arbitral claims, tribunals may expand their substantive and procedural scope through the existing techniques of interpretation (the problem of expansion through the MFN clauses). Under these clauses, States guarantee to provide foreign investors treatment no less favourable than to investors from any third States. Tribunals have interpreted MFN clauses as an authorisation to borrow more investor-favourable provisions from other IIAs concluded by respondent States, resulting in the “multilateralization” of the investment regime.51 The recent generation of Chinese BITs implemented limitations on the use of MFN clauses for importing procedural provisions.52 In the observed sample, such limitation is only present in the BIT

46 Li and Bian, “China’s Stance on Investor-State Dispute Settlement,” 514. 47 Norah Gallagher, “China’s BIT’s and Arbitration Practice: Progress and Problems,” in China and International Investment Law: Twenty Years of ICSID Membership, eds. Wenhua Shan and Jinyuan Su, Silk Road Studies in International Economic Law, Vol. 1 (Leiden and Boston: Brill Nijhoff, 2015), 184. 48 Eric Pekar, “The Chinese Investment Regime and the US-China BIT Negotiations,” in China and International Investment Law: Twenty Years of ICSID Membership, eds. Wenhua Shan and Jinyuan Su, Silk Road Studies in International Economic Law, Vol. 1 (Leiden and Boston: Brill Nijhoff, 2015), 264–96. 49 In early 2022, one dispute surfaced between Huawei, a Chinese telecommunications company, and Sweden, over 5G licensing procedure. See Lisa M. Bohmer, “China’s Huawei Lodges ICSID Arbitration against Sweden over 5G Ban,” Investment Arbitration Reporter, January  24, 2022, www.iareporter.com/articles/chinas-huawei-lodges-icsid-arbitrationagainst-sweden-over-5g-ban/; Huawei Technologies Co., Ltd. v. Kingdom of Sweden, ICSID Case No. ARB/22/2, Request for arbitration (January 7, 2022). 50 See the review of cases in Eunjung Lee, “Treaty Shopping in International Investment Arbitration: How Often Has It Occurred and How Has It Been Perceived by Tribunals?” Working Paper Series (London: Department of International Development, London School of Economics and Political Science, February 2015), www.lse.ac.uk/internationaldevelopment/Assets/Documents/PDFs/Dissertation/Prizewinning-Dissertations/PWD-2014/2014-EunjungLee.pdf. See also Jorun Baumgartner, “The Signif icance of the Notion of Dispute and Its Foreseeability in an Investment Claim Involving a Corporate Restructuring,” The Journal of World Investment & Trade 18, no. 2 (February 9, 2017): 201–31, https://doi.org/10.1163/22119000-12340035. 51 Stephan Schill, The Multilateralization of International Investment Law (Cambridge, UK and New York: Cambridge University Press, 2009), 123 (citations omitted):  MFN clauses multilateralize the bilateral inter-State treaty relationships and harmonize the protection of foreign investments in a specif ic host State. MFN clauses thus level differences in the standard of protection offered by varying investment treaties. 52 Li and Bian, “China’s Stance on Investor-State Dispute Settlement,” 520–21.

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with Canada (2012).53 Thus, in case of disputes under other Arctic IIAs with China, investors may benef it from both substantive and procedural provisions of other treaties concluded by the Arctic States. Lastly, the application of IIAs in certain cases could be problematic due to conflicting territorial claims of the Arctic coastal States (the territorial delimitation problem). The scope of territorial application of the investment protection regime under the relevant treaties is subject to its recognition by international law. Such recognition would be present in case of onshore investments and offshore investments within territorial waters and exclusive economic zone of the Arctic coastal States. However, it may run into problems when investments are established on offshore territories subject to conflicting jurisdictional claims.54 The application of China’s IIAs to disputed territories of the Arctic Ocean becomes a challenging task due to the great number of possible situations and unpredictability involved.55 Yet the current investment interest of Chinese investors points towards def ined territories of Arctic States, which partially mitigates the problem and opens the path for further analysis.

The Reflection of Regulatory Objectives in Chinese IIAs with Arctic States Previous sections identif ied the principal objectives for investment protection in the region and the potential limitations on foreign investment. They also suggested looking at the legal framework for Chinese investments as a case study due to the political ambitions of China and Chinese enterprises for establishing their presence in the Arctic. The present section looks at the applicable IIAs in the search for regulatory objectives. It further discusses how States can improve the treaty clauses in case of their eventual renegotiation.

Economic (Industrial) Objectives When it comes to economic development, it is not a secret that signif icant natural resources in the Arctic region provide economic incentives for all actors – local populations, the Arctic States, and the international community, in general. The preambles of the majority sampled IIAs mention economic cooperation,56 prosperity57 or productive use of resources58 among the purposes of these treaties. The repeating appeal to economic benef its reflects the dominating paradigm of many early IIAs.59 Treaties often def ine the notion of “investment” as an open list of economic assets.60 In the

53 “Canada-China BIT” (2012), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-f  iles/ 3476/download, Art 5(3). 54 For the discussion of different situations, see Peter Tzeng, “Investment Protection in Disputed Maritime Areas,” The Journal of World Investment & Trade 19, no. 5–6 (October 15, 2018): 828–59, https://doi.org/10.1163/22119000-12340112. 55 According to Tzeng, investors in disputed maritime areas “should strongly consider relying on dispute settlement under a contract rather than an IIA.” See ibid., 859. 56 BITs with Norway (1984), Finland (1984, terminated), Denmark (1985), USSR (1990, terminated), Canada (2012; however, the parties to the treaty recognised “the need to promote investment based on the principles of sustainable development”). 57 BITs with Iceland (1994), Finland (2004), Russia (2006). 58 BIT with Denmark (1985). 59 Frederico Ortino, “Investment Treaties, Sustainable Development and Reasonableness Review,” Leiden Journal of International Law 77–78. See also Omar E. García-Bolívar, “Economic Development at the Core of the International Investment Regime,” in Evolution in Investment Treaty Law and Arbitration, eds. Chester Brown and Kate Miles (Cambridge: Cambridge University Press, 2011), 586–605, https://doi.org/10.1017/CBO9781139043809.033. 60 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (Oxford: Oxford University Press, 2012), 63.

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light of the present discussion, one can note that mining rights and rights resulting from extractive concessions receive a stable mention in the list. However, the goals of investment treaty protection are subject to extensive academic debate. Political economy scholars point to the insuff icient evidence of causal relationship between the mechanisms of treaty protection and the actual increase in foreign direct investment flows.61 The challenged dogma of economic prosperity led to the proposals for a new goal behind the system of investment protection, that of sustainable development.62 The increasingly common mention of sustainable development in preambles and standalone provisions of IIAs testif ies to its growing appreciation by States.63 The necessity of shifting from the business-as-usual model to the one based on the recognition of needs of the future generations is especially evident in the Arctic region due to its unique environment and heightened vulnerability. In the practical terms, such recognition vouches for the inclusion of sustainable development principle in the preambles of IIAs. In addition to preambles, one may further discuss whether the list of assets eligible for investment treaty protection should reflect the specif icity of the region. Climate change represents a particular threat for the Arctic, which renders hydrocarbon exploration projects precarious both in the short (due to the risk of an oil spill) and long-term prospects. Their exclusion from the protective net of IIAs may contribute to the change of legal terrain and eventual divestment.64 It will also prevent the risks of regulatory chill, resulting in some greater and unconstrained opportunities for environmental regulation. The suggestion does not stand alone, as one can observe on the current attempts to modernise the Energy Charter Treaty, one of the most popular IIA, by phasing fossil fuels out of its scope.65 The reduction of incentives behind investment protection may supplement other initiatives which address the responsibility of the supply side of fossil production.66 Lastly, one should mention another type of nascent investment in the North Sea, which may become actual for the Arctic region as well. The development represents a reversed version of the “traditional” hydrocarbon exploration projects and often similarly operates as multinational consortia with foreign participation. Several industry groups in Denmark and Norway set goals to turn

61 See the recent review of literature in Ole Kristian Fauchald, “International Investment Law in Support of the Right to Development?” Leiden Journal of International Law 34, no. 1 (March  2021): 182, https://doi.org/10.1017/ S0922156520000655. 62 Ortino, “Investment Treaties, Sustainable Development and Reasonableness Review,” 78–81. 63 See e.g. Canada-China BIT (Preamble). There is extensive literature on the integration of sustainable development objectives in IIAs, such as J Anthony VanDuzer, Penelope Simons and Graham Mayeda, Integrating Sustainable Development into International Investment Agreements: A Guide for Developing Countries (London: Commonwealth Secretariat, August 2012), www.iisd.org/sites/default/f  iles/meterial/6th_annual_forum_commonwealth_guide.pdf; Tarcisio Gazzini, “Bilateral Investment Treaties and Sustainable Development,” The Journal of World Investment & Trade 15, no. 5–6 (November 18, 2014): 929–63, https://doi.org/10.1163/22119000-01506008; Gordon et  al., “Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey.” 64 A promising example here is the differentiation between sustainable and unsustainable investments in IIAs, suggested in experimental treaty drafting. See Martin Dietrich Brauch et al., Treaty on Sustainable Investment for Climate Change Mitigation and Adaptation (Stockholm: Stockholm Treaty Lab (Team “The Creative Disrupters”), 2018), https://stockholmtreatylab.org/wp-content/uploads/2018/07/Treaty-on-Sustainable-Investment-for-Climate-Change-Mitigationand-Adaptation-1.pdf. 65 “European Union Text Proposal for the Modernisation of the Energy Charter Treaty” (Brussels: European Commission, March 5, 2021). 66 Daria Shapovalova, “Arctic Petroleum and the 2°C Goal: A Case for Accountability for Fossil-Fuel Supply,” Climate Law 10, no. 3–4 (November 18, 2020): 282–307, https://doi.org/10.1163/18786561-10030003.

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their previous oil f ields into carbon storage reservoirs.67 These projects may allow a smooth change of the existing capacity of hydrocarbon industry to the realities of climate change, by creating prof itable investments and preserving work places.68 One can further theorise that foreign investments in such carbon storage projects would benef it from protective provisions of the relevant IIAs similarly to any other covered investment.

Environmental Objectives Closely connected to economy is the interest of international community and regional powers in preserving the environment of the Arctic. The area was historically ice-covered and therefore largely unapproachable for exploration and ineligible for cultivation and seafaring. It hosts unique ecosystem and landscape subject to international concern. The 1973 Polar Bear Conservation agreement testif ies to nearly half-a-century ambition, shared by political adversaries in the midst of the Cold War, to protect some of the unique species of the Arctic.69 Unfortunately, the environmental conditions in the Arctic are increasingly deteriorating. While climate change presents an existential threat, the high sensitivity of the Arctic to its effects, any type of pollution and low ability to recover make the matters worse than elsewhere.70 The acute need for environmental considerations, both on the regional and global level, adds further complication to the investment regime. Out of the sampled IIAs, all but one are silent on the issue of environment. The silence is understandable for early generation treaties, whereas environmental provisions only appear in the most recent IIA, the Canada-China BIT (2012). In particular, the treaty includes a “no deterioration” obligation, which prohibits investment promotion at the expense of environment.71 It also includes a number of general exceptions clauses, which justify non-discriminatory regulation for the preservation of environment.72 On top of that, the annex to the treaty excludes genuine environmental measures from the scope of guarantees against indirect expropriation.73 The relationship between environmental regulations and the protection of foreign direct investment has attracted signif icant academic attention.74 Tribunals often face the dilemma between the

67 “270 mio. kr. til CO2-lagring i Nordsøens oliefelter [270 mio. DKK for CO2 storage in the North Sea’s oil f ields],” Klima-, Energi-, og Forsyningsministeriet [The Danish Ministry of Climate, Energy, and Utilities], August 12, 2021, https://kefm. dk/aktuelt/nyheder/2021/dec/270-mio-kr-til-co2-lagring-i-nordsoeens-oliefelter-; “Søknad om lagring av CO2 på sokkelen [Application for Storage of CO2 on the Shelf],” Pressemelding, Regjeringen.no [The Government of Norway] (regjeringen.no, December 15, 2021), www.regjeringen.no/no/aktuelt/fem-soknader-for-lagring-av-co2-pa-sokkelen/ id2892304/. 68 “Potentiale for over 3000 arbejdspladser på Nordsøen | Dansk Metal [Potential for over 3000 Jobs on the North Sea, According to the Danish Union of Metalworkers],” Ritzau, October 4, 2021, https://via.ritzau.dk/pressemeddelelse/ potentiale-for-over-3000-arbejdspladser-pa-nordsoen?publisherId=90398&releaseId=13632700. 69 “Agreement on the Conservation of Polar Bears” (1973), http://pbsg.npolar.no/en/agreements/agreement1973.html. 70 See e.g. James E. Overland, “Less Climatic Resilience in the Arctic,” Weather and Climate Extremes 30 (December 1, 2020): 1–6, https://doi.org/10.1016/j.wace.2020.100275. 71 Canada-China BIT Art 18(3). 72 Ibid. Art 33(2). 73 Ibid. Annex B.10(3). 74 See e.g. Ignacio Madalena, “Foreign Direct Investment and the Protection of the Environment: The Border between National Environmental Regulation and Expropriation,” European Energy and Environmental Law Review 12, no. 3 (2003): 70–82; Ole Kristian Fauchald, “International Investment Law and Environmental Protection,” Yearbook of International Environmental Law 17, no. 1 (2007); Åsa Romson, Environmental Policy Space and International Investment Law (Stockholm: Acta Universitatis Stockholmiensis : Stockholms universitetsbibliotek, 2012), http://urn.kb.se/resolve?urn=urn:nbn:se :su:diva-74521; Daniel Behn and Malcolm Langford, “Trumping the Environment? An Empirical Perspective on the

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State’s right to regulate for the common benef it (which includes the protection of the environment) and investor’s rights under the IIA.75 The development of the “right to regulate” discussion drew States’ attention to the text of applicable IIAs, which were often silent about environmental matters.76 Nevertheless, the political recognition of the broader policy goals, which may arise in investment cases, has resulted in the gradual “greening” of IIAs with more environmentally friendly provisions.77 The Canada-China BIT may serve as an illustration of how States may shield their genuine environmental regulation from potential investment claims. Besides the improved provisions for State defence, IIAs may include positive obligations for investors to comply with environmental regulations. Such substantive obligations may provide legal grounds for States’ counterclaims for aff irmative damages, resulting from environmental pollution.78 Arbitral practice shows gradual recognition of such possibility but retains a careful approach towards any counterclaims in treaty-based disputes.79 It follows, that IIAs of Arctic States with China belong to the old generations of treaties, which are silent on environmental matters. They do not shield Arctic States from potential claims resulting from genuine measures for the protection of the environment. Neither do they provide for environmental obligations of Chinese investors, which States can use as grounds for counterclaims. While the renegotiation and modif ication of IIAs may not lead to a drop-out in arbitration of environmental cases,80 it would still provide tribunals with the regulatory guidance about the appropriate regional standards. In the search of better environmental compliance, treaty negotiators may look at the developments in the domestic laws of Arctic coastal States. Although the regulation of extractive industries across jurisdictions shows diverging attention to their environmental impacts, scholars have identif ied some common trends.81 For offshore petroleum development, national environmental

Legitimacy of Investment Treaty Arbitration,” The Journal of World Investment & Trade 18, no. 1 (January 24, 2017): 14–61, https://doi.org/10.1163/22119000-12340030; Laura Rees-Evans, “The Protection of the Environment in International Investment Agreements – Recent Developments and Prospects for Reform,” European Investment Law and Arbitration Review Online 5, no. 1 (December 11, 2020): 355–91, https://doi.org/10.1163/24689017_015. 75 Jorge E. Viñuales, “The ‘Dormant Environment Clause’: Assessing the Impact of Multilateral Environmental Agreements on Foreign Investment Disputes?” Research Paper (Geneva, Switzerland: Graduate Institute of International and Development Studies, Centre for International Environmental Studies, 2012), 6–12, https://repository.graduateinstitute. ch/record/12752/f iles/CIES_RP_09_Vinuales.pdf; 76 Fauchald, “International Investment Law and Environmental Protection,” 4:  Standard BITs generally do not explicitly mention environmental issues.  The same conclusion is further reiterated in Kathryn Gordon and Joachim Pohl, “Environmental Concerns in International Investment Agreements: A Survey,” OECD Working Papers on International Investment (Paris: Organisation for Economic Cooperation and Development (OECD), 2011), 7–11, https://search.oecd.org/investment/internationalinvestmentagreements/WP-2011_1.pdf. 77 See e.g. Suzanne A. Spears, “Making Way for the Public Interest in International Investment Agreements,” in Evolution in Investment Treaty Law and Arbitration, eds. Chester Brown and Kate Miles (Cambridge: Cambridge University Press, 2011), 271–97, https://doi.org/10.1017/CBO9781139043809.019; Gordon and Pohl, “Environmental Concerns in International Investment Agreements: A Survey,” 11. 78 Jeff Sullivan and Valeriya Kirsey, “Environmental Policies: A Shield or a Sword in Investment Arbitration?” The Journal of World Investment & Trade 18, no. 1 (January 24, 2017): 107–16, https://doi.org/10.1163/22119000-12340032. 79 David R. Aven and Others v. Republic of Costa Rica, ICSID Case No. UNCT/15/3, Final Award (September 18, 2018) (Siqueiros, Baker, Nikken). 80 Behn and Langford, “Trumping the Environment?” 48. 81 See e.g. Andrey Todorov, “Approaches of Foreign Countries to Legal Regulation of the Oil and Gas Development on the Arctic Continental Shelf,” Arctic and North 30 (March  30, 2018): 33–48, https://doi.org/10.17238/issn22212698.2018.30.40; Daria Shapovalova, “Special Rules for the Arctic? The Analysis of Arctic-Specif  ic Safety and

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regulations can set specif ic requirements for exploitation (“prescriptive” systems).82 Alternatively, they can set only the end goals, allowing companies to adopt flexible approaches in reaching them (performance-based or goal-setting systems).83 The lack of experience of drilling in the Arctic speaks in favour of a flexible approach, as it allows for a fast adoption of new and more environmentally friendly technologies by drilling operators.84 The environmental governance is further suffering from the lack of generally recognised Arctic-specif ic standards and best practices for offshore oil and gas development.85 The establishment of such guidelines, for instance, by the Arctic Council, might contribute to the sustainable development of the Arctic.86 However, an ambitious goal of turning guidelines or domestic standards into law would require renegotiation of the “outdated” IIAs.87

Local Community Objectives The Arctic region is home to more than seven million people, of whom one million belong to Indigenous populations.88 Their engagement in traditional subsistent activities has received recognition in international law.89 In certain cases, the protection of their traditional lifestyle acts as an exception to activities, which are harmful for the environment if exercised on a commercial scale.90 Moreover, local populations play an increasing role in the design and implementation of investment projects.91 The character of investor’s interaction with local communities may affect the legal status and prof itability of the investment and the outcomes of an investment arbitration case.92 If applied

82 83 84

85 86

87 88 89 90

91 92

Environmental Regulation of Offshore Petroleum Development in the Arctic Ocean States,” in Arctic Marine Sustainability: Arctic Maritime Businesses and the Resilience of the Marine Environment, eds. Eva Pongrácz, Victor Pavlov and Niko Hänninen, Springer Polar Sciences (Cham: Springer International Publishing, 2020), 275–301, https://doi. org/10.1007/978-3-030-28404-6_13. Shapovalova, “Special Rules for the Arctic?” 280. Ibid. Ibid.; “Arctic Offshore Oil and Gas Guidelines. Systems Safety Management and Safety Culture. Avoiding Major Disasters in Arctic Offshore Oil and Gas Operations” (Protection of the Arctic Marine Environment (PAME) Working Group of the Arctic Council, March 2014), 11, https://oaarchive.arctic-council.org/handle/11374/418. “Arctic Offshore Oil and Gas Guidelines. Systems Safety Management and Safety Culture. Avoiding Major Disasters in Arctic Offshore Oil and Gas Operations,” 13. Todorov, “Approaches of Foreign Countries to Legal Regulation of the Oil and Gas Development on the Arctic Continental Shelf,” 47–48. See also John Abrahamson, “Joint Development of Offshore Oil and Gas Resources in the Arctic Ocean Region and the United Nations Convention on the Law of the Sea,” Brill Research Perspectives in the Law of the Sea 1, no. 4 (August 2, 2017): 85–86, https://doi.org/10.1163/24519359-12340004. For an example of reliance upon domestic environmental law in ISDS proceedings, see Aven v Costa Rica (Final Award) paragraphs 734–42. Leneisja Jungsberg et al., “Atlas of Population, Society and Economy in the Arctic,” Nordregio Working Paper (September 18, 2019), 13, 17, https://doi.org/10.30689/WP2019:3.1403-2511. “United Nations Declaration on the Rights of Indigenous Peoples” (2007), www.un.org/development/desa/ indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf Art 20. For the discussion of “Indigenous carve-outs” see Risa Schwartz, “Developing a Trade and Indigenous Peoples Chapter for International Trade Agreements,” in Indigenous Peoples and International Trade: Building Equitable and Inclusive International Trade and Investment Agreements, eds. John Borrows and Risa Schwartz (Cambridge: Cambridge University Press, 2020), 248–73, https://doi.org/10.1017/9781108675321.012. S. James Anaya and Sergio Puig, “Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples,” University of Toronto Law Journal 67, no. 4 (August 29, 2017): 1–30, https://doi.org/10.3138/UTLJ.67.1. See e.g. Copper Mesa Mining Corporation v. Republic of Ecuador, PCA No. 2012–2, Award (March 15, 2016) (Veeder, Cremades, Simma). An opposite situation is equally common, when the operation of investments affects the lives of local communities, for better or worse.

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specif ically to the Arctic, one may observe a growing interest of local populations for management of natural resources on their territory, exercised jointly with or to the exclusion of the central State authorities.93 The examined IIAs do not mention local communities or interests, leaving the matter unregulated in the treaty text. The lack of attention may suit a general investment framework for conceivably homogenous territory of a State. However, it raises concerns when applied to the Arctic with its Indigenous populations and reliance on traditional subsistence activities. The most probable justif ication lies in the mechanisms of path dependence: one may suggest that Arctic IIAs reflect the attitudes of international law at the time of their conclusion.94 Indeed, the appreciation for local populations and community interests is a rather recent discovery of public international law, which traditionally operated within a Westphalian State-centred paradigm.95 International investment law has traditionally focused on States and their international responsibility.96 While recent developments pay increasing attention to other subjects of investment activities, such as investors themselves or their home States, the boundaries of their involvement in investment cases concerning host State responsibility remain unclear.97 The local communities therefore risk landing between a rock and hard place: deprived of independent standing, their role has to play on either host State or investor’s side.98 One can reasonably project the investor’s engagement with local communities as a condition originating in domestic law. Additionally, it has acquired international recognition as a “social license to operate,” a condition for exercising investment activities, which depends on their acceptance by

93 Sandra Cassotta and Mauro Mazza, “Balancing De Jure and De Facto Arctic Environmental Law Applied to the Oil and Gas Industry: Linking Indigenous Rights, Social Impact Assessment and Business in Greenland,” The Yearbook of Polar Law Online 6, no. 1 (March 11, 2014): 91, https://doi.org/10.1163/1876-8814_004 (citations omitted): From the point of view of the use of natural resources, the increased importance of oil, gas, and mineral deposits in Arctic regions has had a direct influence on demands for greater autonomy made by Arctic indigenous people, as the energy resources in the North are undoubtedly of considerable interest in terms of creating job opportunities and, therefore, taxes from income derived from the extraction and exploitation of energy resources of the subsoil. 94 Cf. Gordon et al., “Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey,” 11: Different [sustainable development]/[responsible business conduct] concerns have been introduced in treaty language at different times. 95 Balakrishnan Rajagopal, “Recoding Resistance: Social Movements and the Challenge to International Law,” in International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003), 245, https://doi.org/10.1017/CBO9780511494079.012:   It may then appear that the praxis of social movements centrally challenges the very foundations of international law and provides a more realistic and hopeful way of imagining a post-Westphalian order . . . Instead of the universal categories of sovereignty and rights, social movements offer a pluriversal defense of local communities. 96 Muin Boase, “A  Genealogy of Censurable Conduct: Antecedents for an International Minimum Standard of Investor Conduct,” International Investment Law and History (2018): 351, www.elgaronline.com/view/edcoll/ 9781786439956/9781786439956.00019.xml: It is not only the structure of BITs that provides for automatic state consent, but also their content, which has historically been very one-sided, dealing only with the protection of the investor. 97 On other actors, see Martin Jarrett, Contributory Fault and Investor Misconduct in Investment Arbitration (Cambridge: Cambridge University Press, 2019); Rodrigo Polanco, The Return of the Home State to Investor-State Disputes: Bringing Back Diplomatic Protection? Cambridge International Trade and Economic Law (Cambridge: Cambridge University Press, 2018). 98 Cf. Nicolás M. Perrone, “The International Investment Regime and Local Populations: Are the Weakest Voices Unheard?” Transnational Legal Theory 0, no. 0 (October 21, 2016): 16, https://doi.org/10.1080/20414005.2016.1242249: Essentially, the international investment regime treats local communities as an absent actor.

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the local community.99 The interaction between an investor and local populations may manifest itself at least three different stages: in the establishment of an investment, its maintenance and operation and its eventual termination due to conflicts with the local communities. First, the local approval of the investment project may serve as one of the conditions for its establishment. The mechanism of free, prior and informed consent (FPIC) of the local populations f inds its way in the arbitral practice, although with many practical diff iculties.100 Second, the operation of an investment implies continuous interaction with the local communities. Such interaction may advance with different mechanisms, such as Indigenous-industry agreements and impact benef it agreements.101 Third, one should mention grievance procedures between investors and local communities and their role in the emergence and resolution of investment disputes. As it is often the case, local discontent with a foreign investment may incentivise the government to take action and, by doing so, to interfere in the investor’s plans.102 The importance of local communities’ participation in political matters received wide recognition in the Arctic region. One may refer to their regional status as permanent observers of the Arctic Council, as well as national and initiatives.103 However, their participation in investment-related questions (such as the issuance of extractive concessions) remains a matter of domestic law. As a result, local community interests lack a secured place in the international regulation of foreign investment, as one can observe in Chinese BITs with the Arctic States. The regulatory gap threatens with disregard of community interests in the investment arbitration cases, calling both the recalibration of BITs and a change of arbitral attitudes towards their better inclusion.104

 99 Mihaela-Maria Barnes, “The “Social License to Operate”: An Emerging Concept in the Practice of International Investment Tribunals,” Journal of International Dispute Settlement 10, no. 2 (June 1, 2019): 328–60, https://doi. org/10.1093/jnlids/idz004; Raúl F. Zúñiga Peralta, “The Judicialisation of the Social License to Operate: Criteria for International Investment Law,” The Journal of World Investment & Trade 22, no. 1 (February 19, 2021): 92–128, https:// doi.org/10.1163/22119000-12340204. 100 Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21, Award (November 30, 2017) (Böckstiegel, Pryles, Sands) (italics original):   Even though the concept of “social license” is not clearly def ined in international law, all relevant international instruments are clear that consultations with Indigenous communities are to be made with the purpose of obtaining consent from all the relevant communities.   The Tribunal referred to United Nations Declaration on the Rights of Indigenous Peoples Art 32. 101 Ibironke T. Odumosu-Ayanu and Dwight Newman, eds., Indigenous-Industry Agreements, Natural Resources and the Law (New York: Taylor  & Francis Group, 2020), www.taylorfrancis.com/www.taylorfrancis.com/books/edit/10.4324/ 9780429505638/indigenous-industry-agreements-natural-resources-law-ibironke-odumosu-ayanu-dwight-newman. 102 Perrone, “The International Investment Regime and Local Populations,” 4:   Host governments sometimes react against foreign investment after establishment. But, in most cases, these reactions are due to previous mobilisations of local populations. 103 See e.g. Mark Nuttall, “Self-Determination and Indigenous Governance in the Arctic,” in The Routledge Handbook of the Polar Regions, eds. Mark Nuttall, Torben R. Christensen, and Martin J. Siegert (London: Routledge, 2018), 67–80; Jessica M. Shadian, “Indigeneity, Sovereignty, and Arctic Indigenous Internationalism,” in The Routledge Handbook of the Polar Regions, eds. Mark Nuttall, Torben R. Christensen, and Martin J. Siegert (London: Routledge, 2018), 331–47; Sabaa Ahmad Khan, “Rebalancing State and Indigenous Sovereignties in International Law: An Arctic Lens on Trajectories for Global Governance,” Leiden Journal of International Law 32, no. 4 (December 2019): 675–93, https://doi. org/10.1017/S0922156519000487. 104 Perrone, “The International Investment Regime and Local Populations,” 21.

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Conclusions The expansion of investment opportunities attracts signif icant geopolitical attention, which the chapter observed on the example of China, as an actor with active political and economic ambitions in the region. A brief review of recent developments shows mixed reactions towards such initiatives among the Arctic States. A closer look at the international guidelines revealed f ive sets of regulatory objectives important for the investment regime of the Arctic, backed by broad political consensus. Three of these objectives point towards the principle of sustainable development, as both their common denominator and the newly embraced objective of the international investment protection system. The chapter further argued that the preservation of uniform regulation by the means of international investment law might guard against problems arising from the inconsistent regulation at the national level. The chapter made an overview of the relevant IIAs between China and the Arctic States. All but one of the examined Chinese BITs belong to the much criticised old-generation IIAs with vague and indeterminate provisions. They contain no language addressing the sustainable development concerns. Such language is only present in the latest BIT with Canada (2012), albeit to a limited extent. The situation is by no way different from the majority of Chinese BITs, which only recently started including sustainable development provisions.105 The chapter further looked how the three regulatory objectives f ind reflection in the investment treaty regime of the Arctic and made suggestions for eventual renegotiation of treaties with China and uptake of regulatory examples from other legal regimes. To conclude, the study has shown how the forward-looking ambitions of Arctic development may become hostages of the existing and considerably outdated legal instruments. Their modernisation warrants a place on the political agenda not less than the ongoing negotiations of the EU investment agreement with China. The heated political debate about its respect for broader policy concerns106 seems to overlook the absence of similar provisions in the existing treaties, which may become crucial for the Arctic region.

105 Manjiao Chi, “Addressing Sustainable Development Concerns through IIAs – A  Preliminary Assessment of Chinese IIAs,” in China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy, ed. Julien Chaisse, International Economic Law Series (Oxford: Oxford University Press, 2019), 111–12, https://doi.org/10.1093/ oso/9780198827450.001.0001. 106 Martin Gøttske, “Danske EU-parlamentarikere vil have EU ud af investeringsaftale med Kina,” Information, March 25, 2021, www.information.dk/udland/2021/03/danske-eu-parlamentarikere-eu-investeringsaftale-kina.

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SECTION B

Shipping in the Polar Regions

37 CHARTERPARTY CONTRACTS AND CLAUSES FOR ARCTIC SHIPPING Richard L. Kilpatrick*

Introduction Even as climate change is generating extraordinary challenges for the Arctic environment, in the decades to come, it is also expected to create new opportunities for commercial shipping activities.1 With the prospect of merchant ships navigating more regularly along previously impenetrable Arctic routes, such as the Northern Sea Route (NSR), voyages between Europe and Asia in particular may be substantially reduced, which could save time, limit bunker fuel consumption and ultimately reduce ship-source carbon emissions.2 The possibility of increased merchant shipping in Arctic waters also raises legitimate concerns regarding the risk and responsibility associated with these voyages, including those linked to extreme weather and icy conditions, incomplete navigational charting, limited communication infrastructure, demand for icebreakers and ice pilotage, lack of access to salvage resources and the heightened danger of marine pollution. In reaction to these risks, shipping industry actors with an interest in NSR transit may need to recalibrate their commercial arrangements, including reviewing contracts and clauses in popular use, to ensure responsibility is appropriately allocated. Among these arrangements are the charterparties that contractually assign rights and obligations between shipowners and charterers in the tramp shipping trade. Focusing on these commercial arrangements, this chapter examines charterparty clauses that carry implications for Arctic voyages, including an assessment of relevant clauses contained in popular time and voyage charterparty form contracts. These include issues such as insurance obligations, navigating and routing limits, safe port warranties, icebreaker and ice pilotage responsibility, vessel safety certif ication, weather-related delays and other issues. It argues that new opportunities for commercial shipping in a changing Arctic landscape may require shipping industry participants to revisit standard clauses to ensure the underlying commercial arrangements effectively accommodate evolving commercial practice and balance of risk. * Assistant Professor of Business Law, College of Charleston, School of Business, Charleston, South Carolina USA 1 See “Arctic Opening: Opportunity and Risk in the High North,” Lloyd’s and Chatham House, April 1, 2012, www. chathamhouse.org/2012/04/arctic-opening-opportunity-and-risk-high-north; Hiromitsu Kitagawa, “Arctic Routing: Challenges and Opportunities,” WMU Journal of Maritime Affairs 7 (2008): 485. 2 These transit voyages are currently only possible during the warmer summer months. Even with the effects of climate change, the NSR is expected to remain impassable during winter.

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Vessel Chartering for Arctic Shipping In September  2018, Danish shipping company Maersk Line successfully employed one of its new ice-class container vessels, the Venta Maersk, to move more than 600 refrigerated containers packed with frozen f ish from Bussan, South Korea, following the NSR along the northern coast of Russia and Scandinavia, to Bremerhaven, Germany.3 While this voyage was one of dozens of NSR transits in recent years, it brought widespread public attention to the prospect of utilising the NSR as an alternative to the Suez Canal linking commercial trade between Asia and Europe.4 The success of this voyage also demonstrated, even to lay observers, that the prospect of increased merchant shipping along the NSR is no longer a theoretical possibility but rather a logistical and commercial reality.5 The substantial risks associated with Arctic voyage has also raised signif icant concerns among maritime stakeholders, including coastal States, international organisations, NGOs and a range of other shipping industry actors. In attempts to address environmental and geopolitical repercussions, in multilateral fora such as the International Maritime Organization and the Arctic Council, stakeholders negotiated updates to the international legal framework in the form of the Polar Code.6 Likewise, some major shipping lines, including CMA CGM, MSC and Evergreen, signed an Arctic Shipping Corporate Pledge under which they agreed to refrain from using the NSR even as accessibility improves with climate change.7 But for those open to utilising the NSR to facilitate maritime transport in the years to come, political discussions and commitments have done little to prepare for the practical commercial considerations surrounding Arctic shipping. Instead, these technical issues have been examined within narrow corners of the shipping industry. Insurers, for instance, have noted the diff iculty of assessing risks and determining appropriate premiums for NSR trades.8 They have also issued guidance for other commercial shipping actors to consider, including recommendations for contract

3 See “Venta Maersk Completes Northern Sea Route Passage,” The Maritime Executive, September 29, 2018, www.mari time-executive.com/article/venta-maersk-completes-northern-sea-route-passage 4 For a comprehensive statistical picture of commercial vessels recently using the NSR for east–west transit, see, generally, Nord University Centre for High North Logistics Information Off ice, “Transit Statistics,” https://arctic-lio.com/ category/statistics/; see also Jonathan Saul, “Ships Make Record Number of Sailings Through Arctic in 2020,” Reuters, December 9, 2020. 5 The prospect of NSR voyages have gained new attention in the aftermath of the grounding of a containership, the Ever Given, which temporarily blocked the Suez Canal in March 2021. This incident caused major delays with some vessels actually diverting to the substantially longer route around the Cape of Good Hope off of South Africa. Russian authorities took the opportunity to market the NSR as a viable alternative. See Robyn Dixon, “While the World Tore its Hair Out over the Suez, Russia Saw an Opportunity,” Washington Post, March 29, 2021, www.washing tonpost.com/world/russia-suez-touts-arctic-sea-route/2021/03/29/576f6794-9097-11eb-aadc-af78701a30ca_story. html; Natassia Astrasheuskaya, “Russia Seizes Suez Blockage to Promote Merits of Arctic Route,” Financial Times, March  30, 2021, www.ft.com/content/47b4cca2-b673-4763-95b4-555bd03a948a; Mike Eckel, “In Suez Canal Blockage, Russia Spies A Marketing Opportunity for Its Arctic Seaway,” Radio Free Europe, March 31, 2021, www. rferl.org/a/31180520.html; 6 International Code for Ships Operating in Polar Waters (Polar Code), s 1.3, www.imo.org/en/OurWork/Safety/Pages/ polar-code.aspx; see also International Chamber of Shipping, “Arctic Shipping: A Position Paper,” October 2018, www. ics-shipping.org/publication/ics-position-paper-on-arctic-shipping/ 7 See Mike Schuler, “More Companies Sign Pledge to Avoid Arctic Shipping,” gCaptain, January  8, 2020, https:// gcaptain.com/more-companies-sign-pledge-to-avoid-arctic-shipping/; Mike Schuler, “MSC Warns Against Arctic Shipping Amid Debate Over Suez Canal’s Closure,” gCaptain, April  1, 2021, https://gcaptain.com/ msc-warns-against-arctic-shipping-amid-debate-over-suez-canals-closure/ 8 See Jonathan Saul, “How Do you Insure Ships in the Arctic?” Reuters, October 27, 2020.

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clarity.9 Scholars meanwhile have focused attention on the way Arctic issues create novel contract questions, particularly in the context of insurance and the carriage of goods.10 This chapter aims to build on the private law discourse relating to Arctic shipping by focusing specif ically on charterparty arrangements relevant for commercial voyages along the NSR. Before examining the contracts and clauses that could be relevant to NSR transit, it is useful to lay out the general structure of the shipping industry and the contracts that underpin the relevant commercial dealings. First, there is a delineation in the shipping industry between liner trade in which vessels make f ixed and scheduled voyages between major ports available for the public to book space on the vessels moving along these routes and the tramp trade in which entire vessels (or sections of vessels) are chartered to move cargo in bulk.11 Tramp shipping is generally used to transport dry raw materials, such as iron ore and coal; agricultural materials, such as grain and sugar; industrial materials, such as fertilisers and cement; and liquif ied fuel and chemicals, such as oil and gas. For such voyages, cargo interests tend to ship the cargo using the entire vessel, or sub-divided slots within the vessel rather than using multimodal containers like the liner trade. To meet this demand, shipowners may charter their vessels to move cargo either for a particular voyage or for a designated time frame in which multiple voyages may be performed. When a cargo owner or trader wishes to move cargo in bulk, it will work with a broker to engage a suitable vessel to charter for its commercial needs. Once the broker identif ies a vessel, it will negotiate an agreement to f ix the vessel by contractual agreement under a charterparty which governs the relationship between the shipowner and the charterer of the vessel. Charterparties take three principal forms: time charter in which the vessel is subject to the charterer’s orders for an agreed duration, voyage charter in which the shipowner performs a specif ied trade on behalf of a charterer, or bareboat/demise charter in which the charterer takes full control of the vessel both nautically and commercially, often for an extended period instead of owning the vessel outright.12 For time charters, there are number of unique contractual considerations that will impact the rights and responsibilities of the shipowner and the charterer. In general, under a time charter, the shipowner agrees to make the vessel available for a contractual duration (e.g. one year) for the charterer to use for commercial purposes it arranges. The charterer is responsible for directing the vessel’s commercial engagements by relaying employment orders for the shipmaster to proceed to designated ports. At the same time, the shipowner continues to maintain physical control over the vessel with an appointed shipmaster and crew responsible for the vessel’s navigation. In exchange for the use of the vessel and the nautical expertise of the shipmaster and crew, the charterer pays a periodic agreed rate of hire that continuously runs throughout the duration of the charter period, subject to limited exceptions spelled out in the language of the charterparty. This time charter

9 See e.g. Gard, “Using the Northern Sea Route – Achieving Contractual Certainty,”September 4, 2014, www.gard.no/web/ updates/content/20744197/using-the-northern-sea-route-achieving-contractual-certainty; Gard, “Climate Change Creates a New Trade Route – and New Risks,” February 26, 2014, www.gard.no/web/updates/content/20738960/ climate-change-creates-a-new-trade-route-and-new-risks; UK P&I Club, “Arctic Shipping: P&I Insurance FAQs,” September 9, 2014, www.ukpandi.com/news-and-resources/articles/2014/arctic-shipping-pi-insurance-faqs/ 10 See e.g. James Wereley, “Charterparty Implications of Trading in the Arctic,” Journal of International Maritime Law 17 (2011): 452; Katerina Peterkova Mitkidis, “The Role of Private Actors in Regulation of Arctic Shipping,” Lloyd’s Maritime and Commercial Law Quarterly (2016): 544; Laurent Fedi, Olivier Faury and Daria Gritsenko, “The Impact of the Polar Code on Risk Mitigation in Arctic Waters: A ‘Toolbox’ for Underwriters,” Maritime Policy & Management 45, no. 4 (2018); see Huiru Liu, “Arctic Marine Insurance: Towards a New Risk Coverage Regime,” Journal of Maritime Law and Commerce 47, no. 1 (2016): 77. 11 See, generally, Ira Breskin, The Business of Shipping (Atglen, PA: Schiffer, 2018). 12 See, generally, See Thomas Schoenbaum, Admiralty and Maritime Law (St Paul, MN: West Academic Publishing, 2019).

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arrangement evidences a shared and simultaneous obligation on the charterer and shipowner to effectuate maritime transport using the identif ied vessel usually for a series of trades. Under a voyage charter, while the charterer directs the shipowner to employ the vessel for a particular trade, typically this trade is one single voyage rather than multiple trades within a contractual duration.13 Like a time charter, the shipowner under a voyage charter retains control of the vessel itself and employs the shipmaster and crew, but rather than coordinating with the charterer on particular orders to facilitate trades over a period of time, the voyage is identif ied during the charter f ixture and is reflected by the terms of the charterparty itself. In exchange for the use of the vessel for this particular voyage, the charterer pays the shipowner an agreed amount, but in the voyage charter context, this is reflected by an all-inclusive payment of freight rather than periodic hire. In addition, under a voyage charter, the period in which the vessel is loaded and unloaded is subject to special provisions in the charterparty relating to demurrage and laytime.14 Although shipowners and charterers may negotiate the terms of their charterparties however they wish, in accordance with freedom of contract principles, the need for consistency and predictability in this global industry has led to a reliance on form contracts that have weathered the test of time over decades of commercial use. These older charterparty forms, while outdated in some respects, continue to attract adoption due to their recognition around the world as providing a predictable and relatively balanced allocation of rights and responsibilities between shipowners and charterers. A prime example is the New York Produce Exchange (NYPE) 1946 form, which was, as the name suggests, originally circulated in the year 1946. The NYPE form, for better and for worse, is thought to be among the most widely used time charterparty form in the dry cargo trade, despite repeated attempts to steer the shipping industry toward more contemporary alternative.15 The Baltic and International Maritime Council (BIMCO) in particular has long supported the shipping community through new contracts and clauses designed to reflect the challenges of the modern world. Indeed, the NYPE 1946 form, despite its popularity, is not even available to BIMCO members on its contract template database.16 Instead, BIMCO offers newer iterations of the NYPE form – namely, the NYPE 1993 and NYPE 2015. In practice, however, shipowners and charterers tend to use the older forms, and then, if desired, they may attach to these forms additional clauses known as riders. These rider clauses may alter the terms of the contract in substantial ways, but since they are attached to the trusted older forms, this approach at least gives the appearance that the older form is the baseline contract, although in practice this can lead to redundancy or even contradictions or unhelpful overlaps between the selected charterparty form and its rider clauses. Contracts negotiated in this way can lead to a somewhat messy result that causes analysis of charterparties to vary considerably from one contract to the next. Nevertheless, there are some general insights that may be drawn by analysing charterparty clauses contained in the popular forms. For the purposes of NSR transit shipping, at least a few of these

13 Hybrid options such as consecutive voyage charters are also sometimes used. 14 In a bareboat/demise charter scenario, the charterer instead takes actual control over the vessel and is treated in most respects as standing in the shoes of the shipowner during the duration of the charter. Typically, bareboat/demise charters are used as a f inancing mechanism for shipping companies to avoid some of the long-term burdens of owning vessels. Other hybrid charterparty arrangements, such as time trip charters, slot charters and consecutive voyage charters, among others, may also be arranged by shipowner and charterer for different commercial purposes. See Schoenbaum, Admiralty and Maritime Law. 15 See Paul Todd, Principles of the Carriage of Goods by Sea (London: Routledge, 2016), 1.10.1; Paul Todd, “NYPE 2015: Wholesale Reform or an Invitation to Cherry-Pick?” LMCLQ (2016): 306. 16 See BIMCO, “Contracts and Clauses,” www.bimco.org/contracts-and-clauses.

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provisions (and the gaps that they reflect) provide direction on the types of problems that may arise as shipping traff ic is expected to increase.

Vessel Characteristics, Classif ication and Certif icates The Polar Code requires vessels navigating in Arctic waters to maintain certain safety standards.17 To be classif ied as polar class under the Polar Code, a vessel must be assigned this status by a classif ication society, such as those recognised by the International Association of Classif ication Societies. This requires the vessel to be evaluated by a classif ication society to determine whether the vessel’s characteristics are compatible with safety requirements, such as appropriate steel construction of the hull and capacity for materials and machinery to function at extremely low temperatures.18 If the vessel meets these standards, the classif ication society may issue a Polar Ship Certif icate. Under the regulations of Russia’s Northern Sea Route Authority, those with an interest in vessels intending NSR transits are required to provide proof of equivalent classif ication in the application for voyage permission.19 While these standards may vary depending on the time of year and the type of vessel at issue, in general ships navigating along the NSR must meet safety standards exceeding those operating on conventional routes.20 Polar classif ication and certif ication also carry implications for vessel chartering. Namely, regulatory requirements for NSR trades raise questions as to whether a shipowner or charterer bears responsibility for ensuring the vessel is authorised and equipped for these voyages and the extent to which a vessel’s ability to perform safety in ice and extreme weather should be expressly described in the charterparty. The language of popular voyage and time charterparty forms is relatively vague on these issues. The NYPE 1946 time charter, for instance, contains language indicating the shipowner warrants that the vessel is “tight, staunch, strong and in every way f itted for the service” of the charterers and also a identif ies an obligation on the shipowner to “maintain the [the vessel’s] class and keep the vessel in a thoroughly eff icient state in hull, machinery and equipment for and during the service.”21 Likewise, the GENCON voyage charter forms hold the shipowner responsible for losses caused by a failure to maintain due diligence “to make the Vessel in all respects seaworthy and to secure that she is properly manned, equipped and supplied.”22 Under the ABSATANKVOY form, the shipowner warrants the vessel under the charter is “classed as specif ied” on the front of the charter, and also describes the vessel as “being seaworthy . . . and in every respect f itted for the voyage.”23 But these forms lack clarity regarding responsibility for the securing ice-class documentation required for Arctic trades.

17 See International Code for Ships Operating in Polar Waters (Polar Code), s 1.3, www.imo.org/en/OurWork/Safety/ Pages/polar-code.aspx 18 See International Association of Classif ication Societies (IACS), “Requirements Concerning Polar Class,” 2006, iacs.org.uk. 19 Ice-class vessels under Russian regulations are def ined by the Rules and Specif ic Ice Class Notations of the Russian Register of Shipping. See, generally, Ministry of Transport of Russian Federation, Northern Sea Route Administration, “Rules of Navigation in the Water of the Northern Sea Route”; www.nsra.ru/en/of itsialnaya_informatsiya/ktm_ statement.html  In the near term, the ongoing war between Russia and Ukraine is reportedly limiting commercial appetite for Northern Sea Route trades due to enhanced security, reputational and sanctions risk. See Rob Willmington, “Non-Russian Ships Shun Northern Sea Route,” Lloyd’s List, September 16, 2022. 20 See, generally, American Bureau of Shipping (ABS), “Navigating the Northern Sea Route: Status and Guidance,” 2014. 21 NYPE 1946, line 22, Cl 1; see also NYPE 1993, Cl 2. 22 GENCON 1994, Cl 2; see also GENCON 1976, Cl 2. 23 ABSATANKVOY, Cl 1.

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For this reason, when preparing for NSR trades, it may be useful for shipowners and charterers to include a more detailed vessel description and directly allocate responsibility for polar classif ication and certif ication during the charter f ixture. This may involve creating bespoke rider clauses that specif ically address these narrow issues, including assigning an obligation to secure the required certif icates prior to f inalising the charter. Given that the shipowner, under both time and voyage charters, is generally responsible for nautical matters such as maintaining the vessel’s seaworthiness, such a clause would likely attribute certif ication to the shipowners account, although related costs may be passed on to the charterer by way of freight, hire or other cost-shifting arrangement.

Insurance Obligations and Navigating Limits The prospect of increased commercial maritime traff ic in the Arctic has raised a variety of questions over what these unconventional routes may mean for insurance coverage.24 This not only carries relevance for marine insurers and the customers procuring their products but may also generate implications for shipowners and charterers in the vessel-charting context. Threshold questions include whether a charterparty authorises the vessel to trade in the Arctic and whether the shipowner or charterer is responsible for procuring supplementary insurance or paying additional premium for the vessel and other exposure during such high-risk voyages. Marine insurance takes several different forms relevant for Arctic shipping risks. The hull and machinery policy covers risks, such as hull damage and equipment breakdown, the cargo policy covers potential damage to the goods carried on the vessel, and the protection and indemnity (P&I) coverage is designed for a broader category of risk, such as marine pollution, personal injury or risks excluded by the other policies. In Arctic shipping, the brutal environment alone may drive up the risks covered by each of these insurance products. Extreme weather conditions and ice not only exposes the vessel to hull damage but may also damage the machinery or the cargo. Should a major casualty occur, such as a vessel grounding, the potential cost of environmental damage, salvage and wreck removal is much higher in the Arctic as well. In general, under both time and voyage charters, it is the shipowner who is responsible for paying the hull and machinery premium.25 Likewise, the shipowner must maintain the vessel’s enrolment in a P&I club, which is compulsory for international trading at major ports.26 At the same time, the charterer or other cargo interests will typically procure the cargo cover and pay the cargo premium.27 But such arrangements will depend on the language of the underlying charterparty. When a charterer orders a particular route or destination, whether time or voyage charter, this may increase the risk to the point that it imperils coverage or the insurer demands an additional premium, which could have implications for the contractual liability allocation between shipowner and charterer for that additional cost. Navigation warranties are utilised in marine insurance policies to ensure covered vessels are not exposed to areas where there is enhanced risk. If the assured breaches this warranty, the insurer may

24 See Chapter 40 of this volume, Jonathan Saul, “Arctic Headache for Ship Insurers as Routes Open Up,” Reuters, October 27, 2020. 25 See e.g. NYPE 1946, Cl 1; NYPE 1993, Cl 6. 26 For instance, insurance cover is compulsory under the International Convention on Civil Liability for Bunker Oil Pollution Damage. See, generally, Ling Zhu, Compulsory Insurance and Compensation for Bunker Oil Pollution Damage (Berlin, Heidelberg, New York: Springer, 2007). 27 A charterer may also procure “charterer’s cover” from a P&I club designed to address risk attributable to its own legal liability under the charterparty.

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have grounds to suspend or discharge the coverage.28 The navigation warranty may be made express under information exchanged between the parties or through the terms of the underlying insurance policy. However, it is also possible that a navigation warranty to avoid high-risk Arctic voyages may be implied given that these are not (yet) customary commercial routes.29 In practice, the terms of widely used hull clauses contained in marine insurance policies regularly address navigation and trading limits. The International Hull Clauses (previously known as the Institute Warranty Limits) contain provisions require an insured vessel not breach prescribed limits for navigation.30 Clause 10, titled “Navigation Provisions,” reads, in relevant part, “Unless and to the extent otherwise agreed by the Underwriters . . . the vessel shall not breach any provision of this insurance as to cargo, trade or locality (including, but not limited to, Clause 32.”31 The referenced Clause 32 goes on to def ine the precise limits and includes instructions with boundaries identif ied with geographic coordinates representing the excluded areas. The clause provides restrictions for ten different trading areas: the Arctic, Northern Seas, Baltic, Greenland, North America (east), North America (west), Southern Ocean, Kerguelen/Crozet, East Asia and Bering Sea.32 However, the International Hull Clauses also provide that a vessel may breach the limits if it obtains prior permission by the underwriters and “any amended terms of cover and any additional premium required by the underwriters are agreed.”33 P&I club rules, in contrast, do not usually contain trading limits.34 In theory, members may engage in trades globally without prejudicing coverage. Nonetheless, some P&I clubs have issued guidance suggesting a choice to transit along the NSR would trigger an “alteration of risk” rule, which means a shipowner would need to notify the P&I club before engaging in the voyage. For instance, Norwegian P&I Club Gard utilises a rule that specif ies, “Where after the conclusion of the contract insurance circumstances occur which result in an alteration of the risk, the Member shall disclose such circumstances” to the club “without undo delay.”35 These clauses are generally used to address situations where a vessel might be used for a purpose that was not previously disclosed to the insurer, such as when an enrolled f ishing vessel is used to carry cargo, but as the possibility of NSR voyages become more feasible, such clauses may f ind new relevance. The UK P&I Club has similarly indicated in circulated guidance that its rule relating to “imprudent or hazardous operations” may also be relevant for Arctic voyages if the shipowner refrains from

28 See Lui, “Arctic Marine Insurance: Towards a New Risk Coverage Regime,” 77. 29 For a comprehensive analysis of warranties in marine insurance under English law, see Baris Soyer, Warranties in Marine Insurance (London, Sydney, Portland, OR: Cavendish Publishing, 2001). 30 International Hull Clauses were formerly known as the Institute Warranty Limits. 31 International Hull Clauses, Cl 10. Clause 11 explains that in the event of a breach of these navigating limits, the underwriters, “shall not be liable for any loss, damage, liability or expense” arising out of an accident during the period of the breach.” 32 International Hull Clauses at Cl. 32. 33 International Hull Clauses at Cl 33. Similar navigation limits are found in the Nordic Marine Insurance Plan (2013). The Nordic Plan clauses identify a tripartite division between ordinary, conditional and excluded areas. The conditional areas are still available for trading although they are subject to an additional premium. Like the International Hull Clauses, under the Nordic Plan, the insurer “may consent to trade outside the ordinary trading area and may require an additional premium.” See Nordic Marine Insurance Plan, Clause 3–15. 34 P&I clubs address member claims based on the language of their published rules. While the language of the club rules may vary for each club, there tends to be relative consistency between the club rules of the 13 members of the International Group of P&I Clubs. 35 Gard P&I Club, Gard Rules 2019, Conditions of Cover – Rule 7: Alteration of Risk, www.gard.no/web/publications/ document/chapter?p_subdoc_id=781881&p_document_id=781871

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taking appropriate measures to make the vessel is equipped and seaworthy for such endeavours.36 This rule states that “[n]o claim shall be recoverable” from the club if it arises out of a trade or voyage determined to be “imprudent, unsafe, unduly hazardous or improper.”37 While the rule itself does not explicitly contain language forbidding Arctic trades, the UK P&I Club has indicated that it would expect a shipowner to consult maritime safety experts to determine whether appropriate precautions have been established. These safeguards may include upgrading communication and navigation aids, ensuring that the vessel’s equipment is capable of operation in extreme temperatures, arranging contracts with icebreakers and pilotage services, and creating contingency plans for the availability of salvage services and oil pollution clean-up.38 Furthermore, under the UK P&I Club rules, the shipowner must comply with the requirements of its flag State and classif ication society as a condition of cover.39 Accordingly, the club has indicated it “would expect the owner to have conf irmed with the Classif ication society and flag state that the vessel is suitable for the intended voyage.”40 These issues relating to insurance and navigating limits are relevant for shipowners and charterers in the vessel-chartering context because liability for additional premiums or delays relating to imperilled insurance coverage can give rise to charterparty disputes. For this reason, it is critical for shipowners and charterers engaged in tramp NSR voyages to identify any insurance limits and re-evaluate charterparty clauses to determine whether amendments are needed. By contractually addressing liability for any additional insurance premiums for Arctic trades that could breach limits in the underlying insurance arrangements, shipowners and charterers can react to the idiosyncrasies of the insurance market through explicit clauses in their own charterparties.

Routes and Safe Ports Another related question relevant for NSR trades is the scope of the geographic liberties for the charterer in the use of the shipowner’s vessel. Since the parties are free to negotiate the terms of their agreements, it is possible for the shipowner (like an insurer) to place restrictions on certain trades by the language of the charterparty itself. Indeed, many of the popular charterparty forms provide such limits, although this is typically only relevant for time charters rather than voyage charters. Under a voyage charter scenario, if a shipowner is resistant to charter a vessel for NSR transit, it may refuse to agree to those terms during the time of the f ixture negotiation. In addition, it would also be unorthodox for a specif ic navigational route to be dictated by a charterer under a voyage charter.41 Time charters, in contrast, raise more explicit questions regarding contractual geographic

36 See Arctic Shipping: P&I Insurance FAQs, September  9, 2014, www.ukpandi.com/knowledge-publications/article/ arctic-shipping-p-i-insurance-faqs-130451/. 37 See UK P&I Club, Rules 2019, Rule 5J, www.ukpandi.com/f ileadmin/uploads/uk-pi/2019/FiNAL_RULES_ONLY_ FEB_19.pdf. 38 See Arctic Shipping: P&I Insurance FAQs. 39 Ibid. at Rule K. 40 Ibid. P&I clubs have also sometimes added certain geographic exclusions for payment of pollution-related claims. For instance, when the United States enacted the Oil Pollution Act of 1990, which imposes harsh liability for ship-source environmental damage, P&I clubs required that tankers take out additional cover under a “U.S. Oil Pollution Clause” and pay an additional premium due to the enhanced risk of penalties While no such explicit clause has been widely promulgated for Arctic trades to date, this is perhaps a possibility moving forward. 41 Likewise, in a bareboat charter scenario, there is generally no geographic restrictions under the terms of the charter itself because the charterer is viewed as taking on both the nautical and the commercial responsibilities of the vessel. However, if desired, a shipowner could certainly attempt to negotiate such limiting language in a bareboat charter.

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limits. Since, under a time charter, the charterer has the liberty and obligation to order the vessel’s commercial employment throughout the duration of the charter, if the shipowner wishes to restrict the scope of these possibilities, this should be done by the language of the charterparty. Indeed, popular time charterparty forms do include such limiting language. The NYPE 1946 form, for instance, expressly excludes certain areas including “Magdalena River, River St. Lawrence between October 31st and May 15th, Hudson Bay and all unsafe ports; also excluding, when out of season White Sea, Black Sea and the Baltic.” Although designed for insurance policies, some other popular charterparty forms (less awkwardly) refer to the International Navigating Limits or the Institute Warranty Limits when identifying restrictions on the charterer’s employment options.42 One illustration of issues surrounding charterparty incorporation of navigating limits in the modern era is the English case involving the bulk carrier Livanita.43 In that case, the vessel was under time trip charter on a modif ied NYPE form, which named St Petersburg, Russia, among the possible loading ports and also authorised trading between safe ports. Under a “trading exclusions” clause, the charterparty language also identif ied that trading was to be “always within Institute Warranty Limits” but in a separate clause granted the charterers the option to “break IWL against paying Owners additional premium” for hull insurance.44 After departing St Petersburg on a voyage to Dunkirk, France, although the Livanita was assisted by icebreakers, its hull was damaged by ice during the outbound convoy. The question, which was f irst addressed in arbitration, was whether the shipowner could recover from the charterer for hull damage based on the safe port language in the charterparty. The charterers argued that by agreeing to charter the vessel at St Petersburg in winter the shipowners had assumed the risk of ice damage to the vessel. The arbitrators held for the shipowners and found the charterers liable for the damage to the hull because the port was not safe due to ice, and the English court agreed.45 Irrespective of such explicit restrictions on navigation through contractual language, there may be implied liberties that would authorise a shipmaster to reject a time charterer’s orders to proceed along a requested route if there is justif iable maritime reason, such as to ensure navigational safety. In general, the shipmaster as nautical agent of the shipowner is obliged to proceed with the time charterer’s orders for employment of the vessel along the customary and direct route. The seminal English case on this issue is the Hill Harmony, in which the House of Lords reviewed an arbitral award on the question of whether a shipmaster properly denied a charterer’s routing instructions to perform a voyage between the west coast of Canada and Japan.46 The charterer had directed the shipmaster to proceed along the Great Circle Route, which was more direct, but the shipmaster instead chose to proceed along the Rhum Line Route, which was longer but further South and subject to more favourable weather conditions, although the shipmaster’s reasons for taking this route were not clearly relayed to the charterer. This choice to take the Rhum Line Route lost time

42 See GENTIME, Cl2; BOXTIME, Cl 3; SHELLTIME 4, Cl 4(a); SHELLLNGTIME 1, Cl 4(a). 43 See STX Pan Ocean Co Ltd v Ugland Bulk Transport A.S. (Livanita) [2007] EWHC 1317 (Comm) (June 6, 2007); Some similar issues were also addressed in St Vincent Shipping co LTD v Bock, Godeffroy & Co (The “Hellen Miller”) [1980 2 Lloyd’s Rep 95. 44 [2007] EWHC 1317 (Comm) (June 6, 2007), para 6. 45 Ibid. See also GW Grace &Co Ltd v General Steam Navigation Co Ltd (The Sussex Oak) [1950] 2 KB 38 (discussing liability between shipowner and charterer for damage to the vessel caused by ice on approach and return voyages from Hamburg); Limerick Steamship Co v WH Stott & Co (The Irishboff in) (1920) 5 LL.L Rep 190; (1921) 7 LL.L Rep 69 (discussing liability between shipowner and charter for damage to the vessel caused by ice near Stockholm). 46 Whistler International Ltd v Kawasaki Kisne Kaisha Ltd (“The Hill Harmony”) [2001] 1 Lloyd’s Rep 147. (Note that the vessel was time chartered under an amended NYPE 1946 form.)

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and required additional fuel – costs which the charterer sought to avoid. Reversing the Court of Appeals, the House of Lords aff irmed the decision of the majority of arbitrators that the shipmaster’s choice was not related to navigation and seamanship, and therefore, it was a breach of the charterparty to refuse the charterer’s orders for employment of the vessel.47 A time charterparty also requires the charterer to nominate only safe ports. The scope of this safe port warranty has been litigated repeatedly both in England and the United States.48 Voyage charters also require safe port nomination, but since loading and discharge ports are usually agreed during the f ixture process, a shipowner concerned about the risks of a particular port is unlikely to assent to a voyage charter for such a trade. That said, if a new port needs to be nominated for reasons, such as harbour strike, war, port or canal congestion or bad weather (a likely event along the NSR), even a voyage charterer may need to nominate an alternative port. In such scenarios, again there is an obligation to nominate a safe port. The safe port warranty does imply serious limitations on the charterer’s nomination options regarding destinations in the Arctic, but given that the NSR is expected to be used primarily for vessel transit between ports in Asia and Europe, this limits the likelihood of disputes between shipowners and charterers relating to potentially unsafe ports along the NSR.

Icebreakers and Ice Pilotage Ships transiting the NSR at present and, in the foreseeable future, are highly likely to require escort by icebreakers.49 Icebreakers provide critical voyage support by making channels in ice to clear the route in which the escorted vessel may follow behind the icebreaker, often in a convoy.50 This requires close coordination between the shipmaster of the icebreaker and the shipmaster of the escorted vessel in which the speed and ship-to-ship distances are integral for safe navigation. Depending on the conditions, an icebreaker may even tow the vessel if ice-besetting risks are present. Russia’s Northern Sea Route Administration currently determines whether a particular NSR voyage requires an icebreaker.51 This involves an evaluation of the vessel’s condition and construction, ice class, cargo, the experience of the shipmaster and crew, and of course the anticipated ice conditions. Even when an icebreaker is not necessary, pilotage assistance is likely to be required along the NSR, in which the ice pilot assesses the ice conditions and offers recommendations to the shipmaster regarding safe navigation for the vessel in transit. This includes the route, speed, and

47 See also Brian Davenport Q. C., “Rhum Line or Great Circle? – That Is a Question of Navigation,” Lloyd’s Maritime and Commercial Law Quarterly 502 (1998). 48 See, generally, Stephen Girvin, “The Safe Port in Maritime Law: Decade of Certainty or Muddier Waters,” NUS Centre for Maritime Law, 2017, https://law.nus.edu.sg/publications/the-safe-port-in-maritime-law-decade-of-certainty-ormuddier-waters/. Questions have focused on whether the obligation to nominate a safe port is one of due diligence or of strict liability. See e.g. Citgo Asphalt Ref ining Co et al v. Frescati Shipping Co Ltd, 140 S.Ct 1081 (2020). 49 See Dimitrios Dalaklis, Megan L. Drewniak and Jens-Uwe Schroder-Hinrichs, “Shipping Operations Support in the ‘High North’: Examining Availability of Icebreakers along the Northern Sea Route,” WMU Journal of Maritime Affairs 17 (2018): 129–47. 50 See, generally, BIMCO, Ice Navigations and Seamanship Handbook (Whitherby Publishing Group, Livingston, Scotland 2019), chapter 11. 51 See Northern Sea Route Administration, www.nsra/ru/en/home/html; Russian state-owned ATOMFLOT, a subsidiary of the State Atomic Energy Corporation ROSATOM, presently holds a de facto monopoly on icebreaker services along the NSR. See Arlid Moe, “A New Russian Policy for the Northern Sea Route? State Interests, Key Stakeholders and Economic Opportunities in Changing Times,” The Polar Journal 10, no. 2 (2020): 209–27.

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other tactical issues peculiar to the Arctic environment. The fee rate for icebreakers and ice pilotage along the NSR is dictated by Russian legislation.52 The allocation of costs of icebreakers and ice pilotage between shipowners and charterers are determined by the language of the charterparty. In the time charter context, some popularly used charterparty forms directly address the issue of pilotage and towage. The NYPE 1946 form, for example, provides that the charterer “shall provide and pay for . . . Pilotages.”53 Other time charterparty forms, including GENTIME and BOXTIME utilise similar language, but also clarify that although the charterer is responsible for paying for pilotage and towage, the shipowner remains obliged to assume navigation-related responsibilities. GENTIME provides that the charterer is responsible for “voyage expenses” including pilotage and towage, it also clarif ies that “Owners remain at all times responsible for [the Vessel’s] navigation and for the due performance or related services, including but not limited to pilotage and towage even if paid for by the Charterers.”54 At the same time, GENTIME and other forms provide that even though the charterer is responsible for selecting and paying for pilots, the charterer is not vicariously liable for the pilot’s errors.55 Time charterparty forms used in the tanker trade further identify the charterer as responsible for paying pilotage and towage.56 SHELLTIME 4 provides that the charterer must pay for pilotage but also that the shipowners must indemnify the charterers against liabilities “arising in any way whatsoever from the employment of pilots, tugboats or stevedores, who although employed by Charterers shall be deemed to be the servants of an in the service of Owners and under their instructions.”57 The SHELLLNGTIME 1 form used for transporting LNG contains similar language that obliges the charterer to pay for pilotage and towage but also requires the shipowners to agree to indemnify for losses linked to negligence on their part.58 Voyage charters are less explicit on the obligation to pay for towage and pilotage. But given that payment of the use of a vessel under a voyage charter is effectuated by a lump sum payment of freight, the pilotage, towage and other incidental fees for the voyage would generally be paid by the shipowner, although these costs may be passed on to the charterer by way of the freight price. Popular voyage charterparty forms, such as GENCON 1976 and GENCON 1994, nevertheless,

52 See Ai Cheng Foo-Nielsen, “Ice Breakers and Pilotage,” BIMCO, January 11, 2017. 53 NYPE 1946, Cl 39. The updated NYPE 1993 and NYPE 2015 forms utilise similar language, identifying that the charterer is responsible for towage and pilotage costs. Under Clause 7 of both forms, the charterers “shall pay for” both pilotages and towages. At the same time, however, these forms also provide that “[t]he Owners shall remain responsible for the navigation of the Vessel, act of pilots and tugboats, insurance, crew, and all other matters, same as when trading for their own account.” NYPE 1993, Cl 7, 26; NYPE 2015, Cl 7, 26; NYPE 1946 and its more recent iterations also provide that “[t]he vessel shall have the liberty to sail with or without pilots, to tow and to be towed.” See also NYPE 1993, Cl 22; NYPE 2015, Cl 22. 54 GENTIME, Cl 11 and 13. 55 Instead, the clause reads, “Although engaged by the Charterers or their agents and paid by the Charterers, all pilotage, towage and other such services to the Vessel to assist with navigation shall be engaged as agents of the Owners who, for purposes of this Charter Party, shall remain responsible for the due performance thereof.” See H. Bennett et al., Carver on Charterparties (London: Sweet & Maxwell, 2021), 7078–80. Note, however, that the effect of such a clause could depend on arbitration or judicial interpretation over whether it alters the vicarious liability framework that would normally apply. 56 The same is true for contracts used for platform supply support. See e.g. SUPPLYTIME 2017 used by specialised platform supply vessels likewise provides that the charterer must pay “pilotage and boatmen and canal steersmen (whether compulsory or not)” along with “tug assistance” and other costs “incurred on the Charterers’ business.” SUPPLYTIME, Cl 9. 57 SHELLTIME 4, Cl 7, 16; Similar language is used in BEEPEETIME 3. See Bennett et al., Carver on Charterparties, 7–080. 58 See SHELLLNGTIME 1, Cl 9 and Cl 17,

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do grant the shipowner the liberty “to sail without pilots” but no other reference to pilots is mentioned.59 The ABSATANKVOY form, designed for tanker-related voyage charters, grants the shipowner a similar liberty but also explicitly provides that the shipowner is not responsible for “any loss or damage, or delay or failure in performing hereunder, arising or resulting from: – any act, neglect, default or barratry of the Master, pilots, mariners or other servants of the Owner in the navigation or management of the Vessel.”60

Weather-Related Delays Another charterparty issue relating to NSR shipping is the question of who bears the risks and costs for delays caused by the ice and inclement weather so common in the region.61 Under popularly used time charters, weather is generally a risk absorbed by the time charterer. By agreeing to charter the vessel for a period of time, the normal risks associated with weather-related delays are to the charterer’s account. This is evidenced by charterparty provisions indicating hire runs continuously throughout the charter period. The contractual exception is situations which trigger the off-hire clause. While off-hire clauses vary between time charterparty forms, it is typical for the vessel to go off-hire only when the vessel becomes incapable of performing its work due to enumerated causes referenced in the clause. For instance, the NYPE 1946 off-hire clause provides in relevant part that in the event of the loss of time from . . . breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo . . . or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost. This clause in particular has developed a judicial gloss through litigation over the decades, leading to the general understanding that “any other cause” is to be construed narrowly.62 Even so, given that Arctic voyages increase the risk of damage to the vessel caused by ice or cause a weather-related incapacitation of equipment, which could imperil the vessel’s ability to perform cargo work, casualty events occurring along Arctic routes could potentially trigger an off-hire clause. For this reason, shipowners and charterers should re-examine standard off-hire clauses before agreeing to time charter for the purpose of NSR transits to ensure appropriate risk balancing.63 The liability for delays under a voyage charter will depend on at what stage the delay takes place. Under the typical voyage charter, the shipowner and charterer agree to an all-inclusive fee of freight

59 See GENCON 1976, Cl 3, and GENCON 1994, Cl 3. 60 See ABSATANKVOY, Cl 19 and Cl 22. 61 Vessels may become beset in ice, requiring the use of icebreakers to dislodge it from ice. The BIMCO Ice Navigation and Seamanship Handbook describes the maneuverers that may be necessary to dislodge a vessel beset in ice, indicating the real possibility of major delays during Arctic shipping voyages. 62 See, generally, John Weale, Off-hire: A Study (London: Steamship Insurance Management Services, 2016). 63 One alternative clause that may serve as a model is the NYPE 1993 and NYPE 2015 form which provides “[i]n the event of the Vessel being driven into port or to anchorage through stress of weather . . . shall be for the Charterers’ account.” NYPE 1993, Cl 17; NYPE 2015, Cl 17; see also GENTIME, Cl 9. BOXTIME, Cl 8; SHELLTIME 1, Cl 21; SUPLYTIME 2017, Cl 13.

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covering the voyage from the nominated loading port to the nominated discharge port.64 While this would appear to leave delays during the voyage a risk that must be absorbed by the shipowner who is being compensated by freight paid, a voyage charter arrangement also takes into account the expediency by which cargo is loaded and discharged. For this reason, delays caused by weather during loading and discharge may generate costs that accrue to the charterer’s account in the form of laytime and demurrage.65 In general, a charterparty includes a provision granting the charterer a specif ied number of laydays for loading and unloading the cargo. If the charterer exceeds these laydays for cargo work, then the shipowner may be able to recover a pre-identif ied rate of demurrage.66 However, if the charterer is able to complete loading or discharge prior to the expiration of the laydays, then the charterer could actually save the shipowner time that may be compensated in the form of dispatch money.67 Voyage charterparty forms typically address the prospect of delays during the loading and discharge phases through express language. For instance, GENCON and ABSATANKVOY forms both include suspension of laytime clauses that speak directly to the issue of who must bear the risk for a range of possible delays at the loading/discharge ports, including port congestion and inclement weather. Some voyage charters also contain language designed for particular ports that are commonly congested, particularly if the availability of tugs or pilots is limited.68 Furthermore, separate from the issue of suspension of laytime, some charterparty forms also reference laytime being subject to “weather working days,” which has given rise to questions regarding how laytime should be calculated during periods on which bad weather occurred during cargo discharge.69 Voyage charters performed along the NSR or other Arctic routes may need to incorporate such context-driven provisions to take into account delays caused by ice and other climate-related delays. This is particularly true for NSR voyages that require icebreakers and ice pilotage since the availability of these services is known to be scarce. But again, since the NSR is most likely to be utilised as a transit corridor between major loading and discharge points at either end of the Arctic, this may limit disputes regarding weather or ice for laytime and demurrage under voyage charters.70

Ice Clauses Clauses designed to react to the possibility of ice-related disruption have been incorporated into charterparties for decades.71 These, however, may gain new relevance as NSR trades become more

64 This may include a contractual obligation to perform the approach voyage with the necessary expediency to arrive at the nominated port as agreed. See Bennett et al., Carver on Charterparties, 8–034–038. 65 See, generally, Stephen Girvin, Carriage of Goods by Sea (Oxford: Oxford University Press, 2011), 31.09 (describing the four stages of performance under a voyage charter). 66 Ibid., 32.52. 67 Ibid., 32.60. 68 Ibid., 32.12. 69 See e.g. Compania Naviera Azuero SA v. British Oil and Cake Mills Ltd, [1957] 2 QB 293. 70 Some observers have argued, however, that the future of Arctic shipping may involve an increase in regional voyages to support energy extraction in the region. See Sebastien Pelletier and Frederic Lasserre, “Arctic Shipping: Future Polar Express Seaways? Shipowners’ Opinion,” Journal of Maritime Law and Commerce (2012): 553. 71 See e.g. Tillmanns & Co v SS Kutsford Ltd [1908] 1 K.B. 185. For a thorough overview of ice clauses and relevant English caselaw, see Bennet et al., Carver on Charterparties, 4–491–4–506; see also J. H. S. Cooke et al., Voyage Charters (London: Lloyd’s of London Press, 1993), 536–43 and 632–37 (discussing English and American cases and arbitral awards relating to ice clauses in the GENCON and ABSATANKVOY forms); see also Paul Todd, Principles of the Carriage of Goods by Sea (London: Routledge, 2016), 13.11 (discussing ice clauses in the BEEPEETIME, SHELLTIME, and other forms).

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common. Ice clauses – some of which have been characterised by their “eccentricity” – have been subject to revision periodically.72 In 2005, BIMCO published new ice clauses for both time and voyage charters. The BIMCO Ice Clause for Time Charter Parties 2005 reads: (a) The Vessel shall not be obliged to force ice but, subject to the Owners’ prior approval having due regard to its size, the construction and class, may follow ice-breakers. (b) The Vessel shall not be required to enter or remain in any icebound port or area, nor any port or area where lights, lightships, markers or buoys have been or are about to be withdrawn by reason of ice, nor where on account of ice there is, in the Master’s sole discretion, a risk that, in the ordinary course of events, the Vessel will not be able safely to enter and remain at the port or area or to depart after completion of loading or discharging. If, on account of ice, the Master in his sole discretion considers it unsafe to proceed to, enter or remain at the place of loading or discharging for fear of the Vessel being frozen in and/or damaged, he shall be at liberty to sail to the nearest ice-free and safe place and there await the Charterers’ instructions. (c) Any delay or deviation caused by or resulting from ice shall be for the Charterers’ account and the Vessel shall remain on-hire. (d) Any additional premium and/or calls required by the Vessel’s underwriters due to the Vessel entering or remaining in any icebound port or area, shall be for the Charterers’ account.73 The BIMCO Explanatory Notes for the clause take the position that the previous ice clauses were “def icient” in part because they did not directly address issues such as forcing ice and the following of icebreakers.74 The BIMCO Explanatory Notes also point out that earlier iterations of the clause did not adequately protect the shipowner in the context of ice impacting the approach voyage. For these reasons, the new clause clarif ies that the vessel should not be expected to force ice, but if other vessels of similar size, class and construction are doing so, the master may follow icebreakers. However, under the clause, the assessment regarding the feasibility of navigating in an ice bound port or area falls within the shipmaster’s “sole discretion.” Critically, the clause also highlights that vessel remains on hire during delays or deviations related to icy conditions.75 As applied to NSR trades, the BIMCO ice clause may be considered shipowner-friendly. A charterer might be sceptical that a shipowner would authorise even a properly outf itted vessel

72 See Cooke et al., Voyage Charters, 536. 73 BIMCO Ice Clause for Time Charter Parties 2005; see also BIMCO Ice Clause for Voyage Charter Parties 2005. The BIMCO Explanatory Note to that separate ice clause explains that there are effectively three options for the charterers in the event that ice impedes a vessel’s arrival to the port of loading. The charterers may either nominate an alternative safe port, pay laytime as if the port were accessible or cancel the charterparty. The clause further spells out the procedures for handling these various scenarios. It envisions a range of possibilities, including situations in which the master is concerned that the vessel may be frozen-in, and articulates a specif ic and workable timeframe for how the charterer and shipowner should communicate on these time-sensitive and potentially dangerous decisions. 74 BIMCO Ice Clause for Time Charter Parties 2005, Explanatory Notes. 75 The BIMCO Explanatory Notes highlight, “After all, under a time charter party it is the charterers who make the commercial decision regarding the employment of the vessel and it is they, therefore, that must assume the associated risks.”

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to follow icebreakers along the NSR if this were not explicitly agreed during the f ixture negotiation. Another related issue under the BIMCO Ice Clause involves the scope of what it means to “force ice.” The practical consequence of following icebreakers in the NSR is that a transiting vessel is likely to at least touch or even push ice, raising technical questions about the scope of the forcing ice prohibition. Furthermore, the discretion that the clause grants the shipmaster to refuse orders to proceed in an area “on account of ice” due to “fear of the Vessel being frozen in and/ or damaged” raises questions on its propriety for NSR trades.76 While there is little doubt that a shipmaster does (and should) have the liberty to make controversial nautical decisions to protect the safety integrity of the vessel, the broad liberty granted under the BIMCO ice clause could cause a charterer to be cautious if the intention is to give employment orders via NSR transit, especially given that the clause assigns the costs of delay and deviation linked to ice to fall on the charterer in the form of hire and insurance premium.77 One alternative would be to require that the shipmaster use “reasonable judgment” when determining whether to proceed, which could continue to grant the shipmaster discretion over safe navigation but also hold the shipmaster to an objective standard of risk assessment. Nevertheless, ice clause drafted with these issues in view could serve a useful for NSR trades, although more explicit clauses designed for this purpose would be welcomed, whether from BIMCO or otherwise. As commentators have pointed out, some clauses drafted for Antarctic voyages have circulated in recent years.78 Although these clauses have been designed primarily to support the scientif ic community through supply missions rather than traditional commercial voyages, they provide another source of contractual language to consider for NSR trades. These clauses addressing dangerous icy conditions are more explicit than the BIMCO Ice Clauses in identifying allocation of risks between shipowners and charterers unique to polar shipping and appear to be relatively charterer-friendly.79 If commercial demand continues to indicate an increased appetite for NSR trading clauses in the future, these Antarctic clauses could perhaps also serve as a model.

Conclusion The prospect of climate change and rapid ice melt in the Arctic provides little room for optimism due to the catastrophic toll on the environment. But as practical matter, if commercial shipping along the NSR becomes more feasible, there could be an increase in commercial maritime activity in the Arctic to supplement Suez Canal traff ic. As shipping industry participants consider a sustainable Arctic future involving increased maritime activities in the region, they must also recognise the unique challenges associated with these voyages. Part of this calculus will involve revisiting underlying contractual arrangements, including those critical to vessel chartering, to ensure appropriate contemplation of these novel risks.

76 See BIMCO Ice Clause for Time Charter Parties 2005, cl (b). 77 One alternative would be for the clause to explicitly acknowledge that the vessel is authorised to follow NSRA-operated icebreakers for NSR transit, which would remove the uncertainty regarding the shipowner/shipmasters discretion to reject the charterer’s orders. 78 See James Wereley, “Charterparty Implications for Trading in the Arctic,” JIML 17 (2017): 452 (discussing the terms of the Raytheon Antarctic Time Charter); see also Bandwidth Shipping v Intaari [2006] EWHC 2532 (discussing clause incorporating specif ic details about the time-chartered vessel’s capacity to handle ice in Antarctic waters). 79 See Wereley, “Charterparty Implications for Trading in the Arctic,” 454.

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38 OIL POLLUTION LIABILITY FOR POLAR SHIPPING Erik Røsæg

Introduction From a commercial shipping viewpoint, the Arctic and Antarctic are two different worlds. The Arctic is an ocean with possibilities for short routes between the Atlantic and the Pacif ic Ocean and even signif icant cabotage, particularly on the Russian coast.1 In contrast, the Antarctic is a continent with virtually no passing sea traff ic and even the traff ic to and from the continent is limited due to special activities there (which are mostly research). While the Arctic has a large population and even has Indigenous People, humans in the Antarctic are mainly a few scientists on time-limited missions. While the Arctic has great strategic and commercial potential, particularly with respect to the exploitation of petroleum and minerals, the Antarctic seems less interesting strategically, with strictly limited commercial uses.2 However, in both the Arctic and Antarctic, there are f isheries and explorer cruises. Furthermore, both areas are darker, more remote and colder than other places on earth. The legal framework for polar areas is discussed elsewhere in this volume. In this chapter, special rules concerning liability for oil pollution from commercial shipping will be discussed. However, special problems caused by oil pollution from shipping related to oil exploitation and f isheries will not be addressed in detail. Moreover, national laws will not be discussed due to space limitations. Oil pollution is only one of the several risk factors affecting polar shipping. The Arctic Council has had problems related to polar shipping on its agenda for a long time and has addressed this in many publications.3

1 On shipping in the Arctic, see Willy Østreng, eds., Shipping in Arctic Waters. A Comparison of the Northeast, Northwest and Trans Polar Passages (Berlin, Chichester: Springer-Praxis, 2013); Emmanuel Guy and F. Lasserre, “Commercial Shipping in the Arctic: New Perspectives, Challenges and Regulations,” Polar Record 52, no. 264 (2016): 294–304. Robert C. Beckman, eds., Governance of Arctic Shipping. Balancing Rights and Interests of Arctic States and User States (Leiden, The Netherlands and Boston, MA: Brill Nijhoff, 2017), https://tinyurl.com/erikro88; Kristin Bartenstein and Aldo Chircop, “Polar Shipping Law,” in Research Handbook on Polar Law, eds. Karen N. Scott and David L. VanderZwaag (Cheltenham, UK and Northampton, MA: Edward Elgar Publishing Limited, 2020). 2 Secretariat of the Antarctic Treaty. Protocol on Environmental Protection to the Antarctic Treaty (Antarctic Environmental Protocol), 1991, in particular Article 7. 3 Arctic Council, Arctic Marine Shipping Assessment 2009 Report, 2009, https://tinyurl.com/erikro63; Arctic Council, Arctic Marine Shipping Assessment. Updated Recommendations May 2021, 2021, https://tinyurl.com/erikro69;

DOI: 10.4324/9781003404828-49

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Oil pollution at sea is always problematic. Polar conditions add to the problem; the distances, cold and darkness complicate preventive measures and cleaning-up operations. In addition, the interaction between ice and oil spills is complex. Furthermore, polar areas, particularly the ice rim, are vulnerable to pollution such as oil pollution.4 Legally, the starting point is that polar sea areas are at the same position as other sea areas. There are many general international conventions that clarify international public law, harmonise national laws and apply equally well in polar regions as elsewhere.5 Two examples are UNCLOS and the salvage conventions.6 There are, however, a few conventions specif ically addressing polar issues; in the Antarctic, the Antarctic Treaty, with its Environmental Annex, is particularly important.7 Some of the conventions apply only in the territories or coastal zones of the parties. This means that the conventions do not apply in the high-seas areas surrounding the Antarctic continent and the North Pole. In Antarctica, this is somewhat complicated by annexations of land with adjacent coastal waters that have not been recognised by other States. In these cases, the application of conventions might depend on whether the annexation of a territory has been recognised by the relevant State. We will revert to this issue in the specif ic discussions in the following sections.

International Regimes – Overview The legally more complex rules with respect to oil pollution liability from shipping in polar waters are third-party liability rules. Liability rules are important because they provide compensation for clean-up operations and the damage caused by pollution. However, they are also important because they make the polluters pay and, thus, might be an incentive for them to prevent oil spills. Most ships have insurance against these liabilities, but this insurance is unlikely to reduce incentives to prevent oil spills. Insurers are likely to require documentation with which safety rules are complied, including those intended to prevent oil pollution. Furthermore, in this market, insurance premiums are individually negotiated based on claim records; thus, it is unlikely that insurance relaxes the precautions of a ship.8 There are two sets of international liability rules: general conventions and a special Antarctic liability regime.

Arctic Council, Arctic Marine Strategic Plan (AMSP), 3rd Implementation Status Report (2019–2021) May  2021, https://tinyurl.com/erikro70; Arctic Council, Arctic Ocean Review May 2013, Final Report, 2013, https://tinyurl. com/erikro66. All URLs have been checked as of February 22, 2022. 4 Arctic Council, Environmental Risk Analysis of Arctic Activities, 1998, https://tinyurl.com/erikro61; Arctic Monitoring and Assessment Programme (AMAP). Assessment 2007: Oil and Gas Activities in the Arctic – Effects and Potential Effects, 2010, https://tinyurl.com/erikro53. For this reason, special guidelines have been agreed (see Arctic Council, Arctic Offshore Oil and Gas Guidelines, 2009, https://tinyurl.com/erikro64, and many instruments for environmental protection have been developed (see Davor Vidas, ed., Protecting the Polar Marine Environment. Law and Policy for Pollution Prevention [Cambridge: Cambridge University Press, 2000]). 5 Comité Maritime International, International Working Group (Polar Shipping) Conventions Report, 2016, https:// tinyurl.com/erikro72. 6 United Nations, United Nations Convention on the Law of the Sea (UNCLOS), 1982, https://tinyurl.com/erikro75; IMO, The International Convention on Salvage, 1989; Convention for the Unif ication of Certain Rules of Law Respecting Assistance and Salvage at Sea, 1910. 7 Secretariat of the Antarctic Treaty, The Antarctic Treaty, 1959; Secretariat of the Antarctic Treaty, Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty; Liability Arising from Environmental Emergencies (Annex VI), 2005, https://tinyurl.com/erikro121. 8 David Baker, International Group of P&I Clubs, email to the author, September 29, 2022.

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General International Regimes Overview General liability rules are based on international conventions, which will only be briefly outlined here. The registered owner of a tank vessel carrying persistent oil9 has limited strict liability, with a few exceptions, based on the Civil Liability Convention.10 This is supplemented by limited compensation from international funds f inanced by levies on the discharge of persistent oils pursuant to the so-called FUND Convention.11 For damage caused by the vessel’s fuel oils, a similar strict liability for the registered owner and others follows from the so-called Bunkers Convention,12 but there are no supplementary funds here, and the liability might be limited under the LLMC 1996 Convention.13 These conventions cover pollution damage from oil spills within certain limits. For non-persistent oils and non-pollution damage, such as damage caused by explosions, the HNS Convention will apply when it is enforced.14 It is modelled after the CLC and FUND Conventions, with strict liability for the registered owner in the f irst tier and limited additional liability for an international fund in the second tier.15 The CLC, Bunkers Convention and HNS Convention require that the shipowners take out insurance for the claimants’ benef its. The flag States and port States must ensure that these requirements are complied with. In addition, Russia does not permit entry in the Northern Sea Route unless the insurance is in order.16

Applicability in Polar Coastal Areas The geographic scope of the mentioned international liability conventions is limited. Typically, the scope of the CLC extends to “the territory, including the territorial sea, of a Contracting State,” and to the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.17 Thus, these conventions are only applicable to a small part of polar seas.

9 This term will be discussed further here. 10 IMO, International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC). 11 IMO, International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND Convention), 1992. The original FUND Convention of 1971 has been amended several times, so there is more than one compensation fund under the same administration. 12 IMO, International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001. 13 IMO, Convention on Limitation of Liability for Maritime Claims (LLMC), 1996. 14 IMO, International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention), 2010. 15 Ibid., Ch. II and Ch. III, respectively. 16 Alexander Suslin, The Northern Sea Route Administration, email message to the author, July 4, 2014. Even the current rules do not address this explicitly, see Rules of Navigation in the Water Area of the Northern Sea Route, 2020. 17 CLC, Article II(a)(ii),

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In the Arctic, a special problem in this respect is the ocean areas surrounding Svalbard and Jan Mayen. Norway has not declared EEZs around these islands, but only “f ishery protecting zones” of 200 nautical miles from the baselines, which is the same as an EEZ would have been.18 The reason that EEZs are not declared is related to objections to Norway having exclusive rights over the areas or a right to establish an EEZ at all, based on the Svalbard Treaty,19 granting Norway sovereignty over Svalbard. Although an EEZ has not been declared, it follows from scope provisions, such as the one quoted earlier, that the conventions still apply in an area similar to an EEZ. The conventions, therefore, also apply in the areas surrounding Svalbard and Jan Mayen. This implies that the limitation of liability and the compulsory liability insurance under the CLC are applicable, and that the International Oil Pollution Compensation Fund under the FUND Convention, if necessary, can provide additional compensation. The Norwegian legislator does not seem to be aware of this, as in the national, implementing legislation, the scope of these conventions is not extended to the f ishery protection zones but only to the (declared) EEZs.20 This is, in my view, a violation of the duty to implement the conventions in the entire jurisdiction. No reservation was made for Svalbard or Jan Mayen when Norway ratif ied the conventions.21 There might also be a problem in the Arctic in relation to disputed baselines. The geographic scope of the conventions depends on the baselines and must be clarif ied if required. In the Antarctic, a similar problem arises because States that claim sovereign rights over land territories tend not to declare EEZs, as this would violate the standstill clause of the Antarctic Treaty, in which all parties refrain from claiming new territories.22 A declaration might amount to a new claim in violation of this clause. However, the conventions here also apply even if an EEZ is not declared. There is an additional problem in this region. The claims on land in Antarctica are disputed. Therefore, at least some States will not recognise these land territories as belonging to a party to the liability conventions and, therefore, neither the adjacent territorial waters and 200 nautical miles’ zones. Consequently, they will say that the conventions do not apply in these areas. Some of the States claiming to have land rights in Antarctica strongly oppose this view. On several occasions, for example, the United Kingdom has expressed a f irm view that its territorial claims in Antarctica are sound and not in any way suspended by the standstill clause of the Antarctic Treaty.23 An example is a response from the United Kingdom on February 3, 1987, to an Argentinian communication in relation to the United Kingdom’s ratif ication of the Intervention Convention, 1969,24 which was expressly extended to “the British Antarctic Territory”:25 while noting the Argentine reference to the provisions of Article IV of the Antarctic Treaty signed at Washington on 1 December  1959, the Government of the United Kingdom of

18 Norway, Forskrift om f iskevernsone ved Svalbard, 1977; Norway, Forskrift om opprettelse av f iskerisone ved Jan Mayen, 1980. 19 The Svalbard Treaty, 1920. 20 See, for example, Norway, Maritime Code, 1994, https://tinyurl.com/erikro76, § 206. 21 In contrast, the rule is that Norwegian private law applies, Norway, Lov om Svalbard (the Svalbard Act), 1925 § 2 and Norway, Lov om Jan Mayen (the Jan Mayen Act), 1930 § 2. This is even so in the Antarctic territories, see, Norway, Lov om Bouvet-øya, Peter I’s øy og Dronning Maud Land m.m. (bilandsloven) (the Territories Act), 1930 § 2. 22 Antarctic Treaty, Article IV. 23 Ibid. 24 IMO, International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969. 25 IMO, Status of Conventions – Comprehensive Information Including Signatories, Contracting States, Declarations, Reservations, Objections and Amendments, September 29, 2021 (IMO Status of Conventions), 2021, 245. A similar wording is even found at p. 101.

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Great Britain and Northern Ireland have no doubt as to the sovereignty of the United Kingdom over the British Antarctic Territory, and to the right to extend the application of the Treaties in question to that Territory. Although the main point here is to assert better rights than Argentina, the message that the United Kingdom’s territorial rights are not suspended comes across clearly. The similar extension of, for example, the CLC 1992 did not trigger the same reaction from the two States,26 presumably because the point was already made and because the Intervention Convention was more contagious, involving enforcement jurisdiction. These disparate views are likely to have different effects on different fora. If a claim under oil pollution conventions were made in the courts of dualistic jurisdictions that recognise territorial claims in the Arctic, such as Norway, the courts would probably accept that the conventions apply in the 200-nautical-mile zone outside the Antarctic territories. In dualistic States, it is (per def inition) not for the courts to determine whether the government is right in such matters of international law. The same is likely to occur even in less dualistic jurisdictions of States that recognise territorial claims in the Arctic, while the courts of States that do not recognise such claims are unlikely to accept that the conventions apply. In any case, it is in the hands of the court seized. In the International Oil Pollution Compensation Fund, which provides additional compensation if within the geographic scope of the FUND Convention, each State has one vote. As most States do not recognise territorial claims in the Arctic, the Fund is unlikely to compensate for such incidents. Hence, the claimant’s position might depend on the jurisdiction in which the claim is brought. If the claim is brought in the jurisdiction of a State that maintains a territorial claim to the coast outside which damage was caused, the damage might be regarded as falling within the geographic scope of, for example, the CLC Convention. The court is also likely to accept jurisdiction, as the damage in its view will be regarded as having occurred in that State.27 If action is brought against the International Oil Pollution Compensation Fund in the same jurisdiction, the Fund must recognise a judgement against itself.28 The main exception is if the judgement is obtained by fraud. Therefore, the Fund will be obliged to pay even if most of the Fund Assembly believes that the damage occurred outside the geographic scope of the conventions. This is hardly satisfactory. Can the problems discussed here be avoided simply by not including the Antarctic territories in the declaration of ratif ication or accession, with the effect that this would make the conventions inapplicable? It is unlikely that a State having territorial claims in Antarctica would wish to do so, as they would like to use every opportunity to demonstrate their alleged rights and to take advantage of the compensation available from the International Oil Pollution Compensation Fund. Moreover, the territories in Antarctica are not separate States in international law and are included in the ratif ication even if not specif ically mentioned. Some conventions might not allow reservations. In line with this, most States (the United Kingdom being an exception) having territorial claims in the Antarctic are not used to mentioning the Antarctic territories, even when there are treaty provisions particularly concerning Antarctica.29

26 The United Kingdom has explicitly made, for example, the CLC 1992 applicable in its Antarctic territories (ibid., 279). 27 CLC, Articles II and IX. 28 FUND Convention, Article 8. 29 The general rule indicates that the Norwegian private law applies even in the Antarctic territories, see, Norwegian Territories Act § 2.

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In conclusion, the general liability conventions might apply in coastal waters in the Arctic and Antarctic, depending on whether the coastal State is a party to the regime and whether its territorial claims are recognised by the forum applying the convention.

Applicability in Polar High Seas Regardless of factors such as whether a particular court recognises territorial waters in Antarctica, there are vast high-seas areas around both poles. In the Antarctic, the high seas extend to the shoreline, at least in some places, as there are no (recognised) territorial claims and coastal zones; thus, shore clean-up will be governed by the high-seas regime. This makes the high-seas regime for pollution liability much more important in the Antarctic than anywhere in the world, as oil pollution at high seas does not cause much damage elsewhere. In addition, oil pollution of ice-covered areas and the ice rim might be more serious than other types of oil pollution at high seas and require comprehensive clean-up operations. The mentioned liability conventions in force do not provide compensation for the damage caused at high seas.30 However, when applied, the HNS Convention will provide compensation for damage caused31 at high seas.32 This “HNS high seas’ liability” is limited to the damage caused by ships flying the flag of a party. The HNS Convention covers damage caused by a wide range of hazardous and noxious substances – such as oils, including those that are also covered by the CLC and the FUND Convention. However, the HNS Convention excludes33 pollution damage as def ined in the International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended, whether or not compensation is payable in respect of it under that convention.34 To be excluded, all elements of the def inition of pollution damage in the CLC 1992 must be satisf ied. This def inition reads as follows:35 6. “Pollution damage” means: (a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur. In what follows, I will comment on the three perquisites of exclusion from the HNS Convention that are emphasised in the quote. To be excluded from the HNS Convention, the damage must satisfy all the following criteria.

30 Comité Maritime International, International Working Group (Polar Shipping): Working Paper on the Legal Framework for Civil Liability for Vessel-Source Oil Spills in Polar Regions (CMI Working Group on Liability), 2017, https:// tinyurl.com/erikro73, 46 (without discussion) and see the section “Applicability in Polar Coastal Areas.” 31 The use of the word “caused” reflects the text of the conventions. However, the word might have a slightly different meaning in the HNS Convention and the CLC and FUND Convention; see IMO, Document LEG 66/9. Report of the Legal Committee on the Work of Its Sixty-Sixth Session, 1992, para 43 et seq. 32 HNS Convention, Article 3(c). 33 Ibid., Article 4(3)(a). 34 The CLC, 1992 is an amendment of the CLC, 1969. 35 Ibid., Article 1(6). Emphasis added.

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First, only oils as def ined in the CLC36 are included in the def inition and thereby excluded from the HNS Convention. This means that the HNS high seas’ liability includes damage caused by nonpersistent oils, such as diesel oil. Second, only damage by contamination is included in the CLC def inition and is thereby excluded from the HNS Convention. In the HNS Convention, this creates a basis for liability for damage caused by, for example, explosion of oil or oil vapours, as this is not damage by contamination. The third issue is whether the exclusion (from the HNS Convention) of pollution damage, as def ined in the CLC, applies to damage within the geographic scope of the CLC or whether the exclusion applies even outside this scope, at high seas. As a starting point, it is neither necessary nor desirable from a conflict-of-conventions viewpoint to exclude the HNS high seas’ liability when the CLC does not apply anyway, and it is diff icult to see any other rationale for limiting the scope of this liability in this way. The phrase “wherever such escape or discharge may occur” in the CLC def inition is irrelevant in this context. It was drafted long before the HNS Convention for another purpose than being referenced to in that convention. At f irst glance, the phrase clarif ies that the def inition of pollution damage in the CLC and, thereby the exclusion from the HNS Convention, has no geographical boundaries. However, evidently, the purpose of this phrase is not to extend the geographic scope of the CLC beyond the 200 nautical miles band along the coastline of the parties but to clarify that this scope does not relate to where the oil is discharged but to where it causes damage. The geographic scope is clearly def ined elsewhere.37 Thus, the clause does not def ine the geographic scope of CLC liability and, therefore, not the limitations of the scope of the HNS Convention. With respect to the HNS exclusion clause (“whether or not compensation is payable”), it makes as much or as little sense to say that compensation is not “payable” under the CLC because damage has been caused by the wrong type of oil or because it has been caused in the wrong place. This clause most likely refers to CLC exclusion clauses (as opposed to scope clauses), which are not entirely identical to those of the HNS Convention.38 The question then remains whether the def inition of pollution damage should be supplemented by the geographic scope of the CLC, akin to it being supplemented by the def inition of oil. In my view, this makes sense. To avoid conflicts of conventions, the HNS clause on the CLC should not be interpreted more widely than necessary. Therefore, in this context, the def inition of pollution damage and, consequently, the exclusion from the HNS Convention should be supplemented by the other parts of the CLC concerning the scope of that convention. The cumulative effect of these is that the HNS high seas’ liability applies unless the damage is caused by the contamination of persistent oil within the 200-nautical-mile belt of the coast. This exception applies even if no compensation is payable pursuant to the CLC because its exemption clauses apply or because the coastal State is not a party to it. In other words, the HNS high seas’

36 Ibid., Article 1(5). The def  inition is elaborated in International Oil Pollution Compensation Fund. Document FUND/A.4/11. Def inition of the Term “Persistent Oil” (Article 1.5 of the CLC). Note by the Director, 1981, see, in particular, 19. The elaborated def inition is not commensurable with the def inition of heavy fuel oils as def ined prohibition of the use or carriage of oils in the polar areas (IMO, International Convention for the Prevention of Pollution from Ships [MarPol]), 1973, as amended, Annex I, Rule 9–43 and IMO, Document MEPC 76/15/Add.2. Report of the Marine Environment Protection Committee on Its Seventy-Sixth Session. Annex 2, Resolution MEPC.329(76) – Amendments to MarPol Annex I [Prohibition on the Use and Carriage for Use as Fuel of Heavy Fuel Oil by Ships in Arctic Waters], 2021). Therefore, not all oils subject to the CLC are prohibited in polar areas. 37 CLC, Article 3 def ines the geographic scope of the convention. See also footnote 31. 38 In any event, it was not clear at the time of drafting that they would be identical.

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liability includes contamination damage, as well as other damage caused by persistent and nonpersistent oils. There is no conflict with the CLC in this respect. As already mentioned, the HNS Convention is well-aligned with this interpretation, as it is set up to deal with all types of oils.39 However, there are some limitations within the HNS Convention. As already mentioned, the convention only imposes high seas’ liability for damage caused by vessels flagged in a State that is a party to the convention. Furthermore, the liability does not include damage caused by contamination of the environment, but it does include damage caused by factors such as contamination of the f ishing gear. Until the HNS Convention has entered into force, only the LLMC and similar limitation of liability conventions40 will govern oil pollution damage at polar high seas. The same applies to oil pollution damage outside the scope of the HNS Convention high seas’ liability (i.e. damage caused by ships flagged in a State not a party to the HNS Convention). The LLMC does not provide bases for liability but establishes limits for liability established by other rules (of national law or other conventions). The limits are much lower than the compensation under the HNS Convention. Only a minority of States are parties to the LLMC.41 Similar to the HNS Convention, the LLMC excludes damage caused by persistent oils from its scope. However, the exclusion clause differs from that in the HNS Convention: Article 3 Claims excepted from limitation The rules of this Convention shall not apply to: . . . b. claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, dated 29 November 1969 or of any amendment or Protocol thereto which is in force. This wording has been construed by Norwegian legislators to mean that LLMC limitation rules do not apply to the damage caused by persistent oils, even at high seas, and have established a special limitation regime for damage caused by persistent oils at high seas.42 Apparently, no other State has established a similar limitation regime,43 and it is not obvious how this exemption will be construed with respect to high seas. As it does not refer directly to the def inition in the CLC but to the wider “meaning,” oil pollution damage from persistent oils at high seas can very well be exempted from both the CLC and LLMC even if such damage is not exempted from the HNS Convention.44 For my part, I think this is the best reading. HNS damage might be exempted from the LLMC.45 The reservation clause uses the CLC formula (“within the meaning of ”); thus, HNS damage is excluded regardless of whether the HNS Convention is in force or applies to the damage. Therefore, if a State has declared such reservation,

39 HNS Convention, Article 5(a)(i). 40 These other limitations of liability conventions will not be discussed here. 41 IMO Status of Conventions. 42 Erling Selvig, “The 1976 Limitation Convention and Oil Pollution Damage,” LMCLQ (1979): 21–25, Norwegian Maritime Code § 207. 43 CMI Working Group on Liability, 41. 44 At the Diplomatic Conference in 1996, where both the HNS Convention 1996 and the 1996 Protocol to the LLMC were adopted, both wordings were used in different contexts (convention Articles 4 and 18, respectively), presumably much deliberately. 45 LLMC, Article 18.

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the oil pollution liability is not limited by the LLMC with respect to oil pollution, even for the pollution caused by non-persistent oils at high seas. In conclusion, the oil pollution at polar high seas might be more serious than elsewhere because of the ice, the ice rim and the high seas extending to the shoreline in the Antarctic. The HNS Convention will provide a signif icant level of compensation if the damage is caused by a ship from a party, including considerable compensation from an international fund. In other cases, the recoverable costs of a clean-up operation might be more limited under the LLMC or other limitation conventions – if applicable by the choice of law of the forum seized. However, a State does not have to be a party to such conventions, and many States are not. In any event, the LLMC does not give the right to limit liability for damage by persistent oil. In addition, a party to the LLMC might reserve its right to disallow shipowners from limiting HNS damage, including that caused by nonpersistent oils. HNS high seas’ liability does not include damage from environment contamination. This means that whether the HNS high seas’ liability includes damage for persistent oils (as argued earlier) and cleaning up of, for example, polar ice or the Antarctic beaches after a spill of persistent oil is not subject to the benef its and limitation of liability pursuant to the HNS Convention. In contrast, the liability is not subject to the limitation of the LLMC either and is most likely unlimited. However, as we will see in the following section, there is also a right of limitation under a special Antarctic regime.

Antarctic Liability Regime Main Rules While there is no special international liability regime for shipping in the Arctic, there is a liability Annex VI to the environmental protocol of the Antarctic Treaty. This annex is yet to be enforced.46 The liability attaches primarily to a government or non-government “operator” of activities in Antarctica that requires prior notice pursuant to Article VIII of the Antarctic Treaty (i.e. expeditions and stationing of a party’s nationals to the Antarctic Treaty, deployment of their military personnel, use of vessels under their flag in connection with expeditions and associated logistic support activities). In other words, the liability regime is primarily directed to activities that are somewhat connected with the parties to the Antarctic Treaty. The liability rules also apply to “all tourist vessels that enter the Antarctic Treaty area,” apparently regardless of their nationality. There is no doubt that ships from third States also have a right to navigate at the high seas in Antarctica.47 A liability rule that applies in the courts of the States Parties if seized is hardly a violation of that right. The liable subject (operator) with respect to a tourist vessel is presumably the shipowner, or reder. Pursuant to the annex, this small group of potential liability subjects (operators) is only liable for losses caused by an “environmental emergency.” This is an “accidental event . . . that results in, or imminently threatens to result in, any signif icant and harmful impact on the Antarctic environment.” The liability is limited to environmental damages, which perhaps is unavoidable when the liability rules are annexed to the environmental protocol of the convention.

46 Secretariat of the Antarctic Treaty, The Protocol on Environmental Protection to the Antarctic Treaty, https://tinyurl. com/erikro82. 47 Antarctic Treaty, Article VI.

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It is not entirely clear what it means that the liability pursuant to the Annex only attaches to “accidental” events.48 The text presupposes that the liability might attach to events resulting from an act or omission committed intentionally or recklessly and that is not accidental.49 Perhaps the idea is that operational discharges shall not be included, but there is no reason that the operator should not be liable for such events if they can cause a signif icant and harmful impact on the environment. In any event, the rules of the annex do not pre-empt national legislation.

What Can Be Claimed? Under this liability regime, only the costs of response actions are compensable (and not pure environmental damage).50 However, response actions have a wide def inition:51 “Response action” means reasonable measures taken after an environmental emergency has occurred to avoid, minimize or contain the impact of that environmental emergency, which to that end may include clean-up in appropriate circumstances, and includes determining the extent of that emergency and its impact. Only reasonable measures are compensable. What is considered reasonable is somewhat clarif ied in Article 2(e): “Reasonable,” as applied to preventative measures and response action, means measures or actions which are appropriate, practicable, proportionate and based on the availability of objective criteria and information, including:   (i) risks to the Antarctic environment, and the rate of its natural recovery;  (ii) risks to human life and safety; and (iii) technological and economic feasibility. A party operator shall take response action to environmental activities arising from its activities.52 If they do not, there is a system for parties to step in.53 In all events, the operator is supposed to pay for the cost of the response action.54 There are procedural provisions in Articles 7 and 12(2). If no response action is carried out by any party, an operator that should have taken action is still liable55 to pay the cost of a response action to a fund56 or relevant parties. The fund provides “reimbursement” (without further qualif ication in the text) to parties.57 However, as response actions do not have to be carried out if unreasonable, there is no liability if the response action was so diff icult

48 Natalie Pilcher, The Longest Journey in the World: An Investigation into the Liability Annex and Its Evolution, 2008, https:// tinyurl.com/erikro78, 21. 49 Annex VI, Article 9(3). 50 Annex VI, Article 5(1). 51 Ibid., Article 2(f). 52 Ibid., Article 6. 53 Ibid., Article 5(2)–(4). 54 Ibid., Article 6(1). 55 Ibid., Article 6(2). 56 Ibid., Article 12. 57 Ibid., Article 12(2).

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or dangerous that it would have been unreasonable to carry it out. It could also have made sense to require the operator to pay an amount to the fund if a response action was too diff icult to be reasonable.58

Claims Procedure In line with the narrow scope of claims pursuant to the annex, only a State party that has taken a response action can pursue a claim against a non-State operator.59 For example, non-governmental environmental interest groups or other States Parties cannot do so. Even these actions are of little value unless one can obtain a judgement against a liable party, and that judgement will be recognised in a jurisdiction where the liable party has assets. However, pursuant to the annex, an action against a non-State liable party can only be brought into their home forum if in a State Party or in a State Party to which the operator has a special connection.60 However, these jurisdictions might not be ideal. The liability of a party as an operator is supposed to be resolved by procedures within the treaty organs.61 There are no provisions on how to bring actions to enforce the rules of the Annex on liability against non-States Parties or from non-State Party operators. This is particularly relevant for tourist ships under the flags of a non-State Party or providing logistical support for operations to which the annex applies, but it could also be relevant if a non-State Party carries out activities in Antarctica that cause environmental damage and are not subject to sovereign immunity. It is left to the claimants to take action for liability under the annex against operators who are not parties or associated with them.62 This typically concerns ships. Ships are often subject to international conventions of limitation of liability, which might have their own jurisdictional provisions.

Basis for Liability and Responder Immunity This liability is strict,63 as one could expect pursuant to the generally accepted “polluter pays” principle. There are some notable exceptions for events of a force majeure type and for acts or missions “necessary to protect human life or safety.”64 Surprisingly, these apply to accidents only and not to response actions. However, as already mentioned, only reasonable response actions need to be undertaken,65 and a dangerous response action is not considered reasonable.

58 This is the rule in Svalbard (see Norway, Lov om miljøvern på Svalbard (svalbardmiljøloven), 2001, § 95) and in the now abandoned Secretariat of the Antarctic Treaty, Convention on the Regulation of Antarctic Mineral Resource Activities, 1988, Article 8. A discussion of relevant losses caused by oil pollution generally excluded in the annex (see Måns Jacobsson, “Compensation for Non-economic Damage Caused by Pollution of the Marine Environment,” JIML 26 (2020): 32–59; Måns Jacobsson, “Compensation for Pure Economic Loss Resulting from Tanker Oil Spills (Part I),” JIML 26 (2020): 396–408; Måns Jacobsson, “Compensation for Pure Economic Loss Resulting from Tanker Oil Spills (Part II),” JIML 27 (2021): 11–29). 59 Annex VI, Article 7(1). 60 Ibid., Article 7(1)–(3). The special connection is def ined in def ined in ibid., Article 2(d). 61 Ibid., Article 7(4)–(6). 62 Ibid., Article 2(d). 63 Ibid., Article 6(3). 64 Ibid., Article 8. 65 See the def initions referred earlier.

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Many liability regimes include exemptions of the force majeure type because of insurance cost considerations or certain reasonableness. However, the exception for acts or omissions “necessary to protect human life or safety” is not common, even in nuclear and maritime law, where the belief that nuclear plants and the sea are risky environments has shaped several other rules. In my view, this last exemption is unnecessary. It is unlikely that an attempt to save human life would be aborted due to the risk of environmental liability, and to me, it seems reasonable that those engaged in polar areas carry even this risk. The system does not deal with response actions by non-parties, such as maritime salvage actions. There is a responder immunity exemption to the liability to carry out response actions but only for parties and those specially authorised by them.66 This means that if two ships collide and one assists the other, as required by international law, the assisting ship will not have the benef it of responder immunity under the annex until it has been authorised by a State Party to intervene. The fact that responder immunity is presumably more important for private parties than for State actors makes this even more remarkable. State actors are likely to assist regardless of the potential liability, while the rationale for a responder immunity rule is that private actors might hesitate to assist if they can incur liability.

Limitations of Liability and Insurance The liability under the annex is limited.67 For shipping, the original limitation amounts of the LLMC 1996 apply if the operator is a shipowner or as if the operator were a shipowner.68 This is the most recent limitation convention for shipowners’ liability, but far from all Antarctic States are parties to that convention. For environmental damage arising “from an event which does not involve a ship,” the limitation amount is higher (3 million SDR). The distinction between situations involving and not involving a ship is not entirely clear (e.g. when a diesel tank is dropped during an airlift from land to a ship). The LLMC applies to “claims in respect of loss . . . occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom.” Although Article 9(1) of the annex does not refer explicitly to the LLMC, it is reasonable to construe the clause so that the LLMC limits apply within the scope of that convention; thus, no conflicts of conventions arise in this respect but not beyond its scope. Pursuant to this view, the higher limits should apply in the diesel tank example, as the airlift in the example is not in “direct connection with the operation” of the ship, even if it could be said to “involve” the ship. The right to limit does not apply if the operator has acted in a qualif ied, negligent manner.69 This is a standard IMO clause and must be interpreted in the same way as similar clauses in other conventions. There is currently work in progress within the IMO to agree on a uniform interpretation of these clauses.70 The liability of non-State operators for response actions shall be insured, and the parties might require similar insurance for the liability arising because no response action was initiated.71 The

66 Annex VI, Article 8(2). 67 Ibid., Article 9(1). 68 The liability limits can be revised, both under the Annex (Art 9(4)) and under the LLMC. The current LLMC limits of 2015 are higher than those in the Annex; see IMO, press release: Increased Limits of Liability for Maritime Claims Enter into Force under 1996 LLMC Protocol, 2015, https://tinyurl.com/erikro71. 69 Annex VI, Article 9(3). 70 IMO, Document LEG 108/16/1 Report of the Legal Committee on the Work of Its 108th Session, 2021, Ch. 8. 71 Annex VI, Article 11.

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liability of the insurer (or provider of similar f inancial security) does not have to exceed the limits, regardless of the liability of the insured. The primary obligation of an operator is to take response action and not only to pay damages. The question then arises whether the response action (if it were reasonable under the circumstances) must continue, even when the cost exceeds the limitation amounts.72 As the annex explicitly preserves the right to limit, also with respect to response actions that are not carried out,73 the annex must be read so that the limitation amounts apply even if the operator decides not to complete a response action because it is too costly. However, the annex does not prohibit a party from imposing a daily f ine on an operator under its jurisdiction until the response action has been carried out to its satisfaction.

Main Rules on the Relationship with Other Conventions on the Limitation of Liability Article 9(2)(a), particularly Article 9(2)(a)(i), deals with the relationship with other liability conventions, if applicable.74 The provision apparently gives other liability conventions precedence over the annex to some extent. The other conventions must be applicable; that is, they must deal with the same type of liability as the annex; they must apply in the relevant parts of Antarctica,75 and the relevant States, typically the forum State and perhaps the flag State, must be parties to the other liability convention. One group of such conventions is the maritime law conventions on shipowners’ liability, such as the LLMC and the HNS Convention mentioned earlier. The shipowner or others protected by these conventions are not necessarily operators within the meaning of the annex. In this case, the annex would not affect their liability under those conventions. Another group of liability conventions is the nuclear liability convention.76 There is no ban on peaceful nuclear activity in Antarctica, and there has been a nuclear power plant there as well as visits by nuclear-powered ships.77 The law of some parties to the Antarctic Treaty System channels nuclear liability to the operator of the nuclear facility and exonerates a shipowner carrying nuclear materials for them.78 These conventions will be relevant if the operator of the annex and the relevant nuclear convention are identical or if the operator under the annex is a shipowner whose liability is channelled to a nuclear operator.

72 This is the way the Norwegian Supreme Court has construed the LLMC; see HR-2017–331-A Server. 73 Annex VI, Article 9(1) refers to Article 6(2). 74 Apparently, the comments to the Norwegian implementing legislation understands the theme and purpose of the clause differently; see Norway, Regulations Relating to the Protection of the Environment and Safety in Antarctica (Antarctica Regulations), 2013, https://tinyurl.com/erikro77, Re § 31. Here it is stated that the Annex assumes that international liability conventions – namely, the LLMC – will be applicable. 75 See the discussions about the application of some conventions in the section “General International Regimes.” 76 For an overview, see Interntional Atomic Energy Agency, Nuclear Liability Conventions, 2021, https://tinyurl.com/ erikro135. The geographic scope of these conventions extends to the high seas; see, for example, Nuclear Energy Agency, Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960, as Amended by the Additional Protocol of 28th January  1964 and by the Protocol of 16th November  1982 (Paris Convention), 1982, Article 2. 77 “McMurdo Station,” Wikipedia, 2022, https://tinyurl.com/erikro91; Hanne E. F. Nielsen, “Remembering Antarctica’s Nuclear Past with ‘Nukey Poo,’ ” The Conversation (2018), https://tinyurl.com/erikro92. 78 IMO, Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Materials, 1971.

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The effect of Article 9(2)(a)(i) with respect to the limitation amount varies. The limitation amount under the other convention might be lower than the limits under the annex. In that case, the limits of the annex shall still apply.79 In these cases, the clause is not very helpful for the liable party or anyone. Another situation arises if the limitation amount under the other convention is higher than the limits under the annex. In that case, the annex shall not affect the liability under the other treaty; thus, the higher limitation amount in the other convention applies. In this sense, the other conventions have precedence. It seems awkward that the higher limitation amounts of other conventions are applicable, but not, for example, rules on unlimited liability80 or higher liability in national law or rules that easily break the limits in case of misconduct of the liable party. Furthermore, the rule in Article 9(2)(a) will not, in any event, harmonise the obligations of a party under the annex and other conventions.81 The basis of liability provisions differs, and there is no attempt to harmonise the provisions, for example, on insurance.82 If the higher limitation amounts are created by a reservation to the other convention, they are explicitly allowed pursuant to Article 9(2)(a)(ii). Some typical examples are reservations allowed under LLMC 1996, Article 18(1), which allows higher limitation amounts for HNS claims and clean-up costs. In these cases, liability can be higher for claims involving a ship than for those not involving a ship. However, unlimited liability by reservation is apparently83 not allowed. In any event, respecting the reservations to the other conventions does not resolve the problem that the annex in many respects is incompatible with these other conventions. Furthermore, it is diff icult to see the rationale for the rule that one international instrument (the annex) shall yield for the wish of a State not to comply with another international instrument (the instrument that the State has made a reservation to).

Special Rules on the Relationship with Other Conventions on the Limitation of Liability Article 9(2)(b) makes some exemptions from the main rules in Article 9(2)(a). These are rather incomprehensible and are omitted from the implementing legislation of at least one party.84 First, the parties as operators are granted the privilege that limitation amounts of the annex cannot be enhanced85 by other conventions or reservations to them pursuant to Article 9(2)(a) so that the limits of Article 9(1) apply. In my view, it is diff icult to justify that a State Party operator shall have less liability than other operators, particularly when this follows from conventions that the State Party has accepted and presumably implemented.

79 Annex VI, Article 9(2)(a) in the end. 80 Recall from the text in the section “General International Regimes” that the LLMC does not limit the liability for damage by persistent oils. 81 This was the intention; see Secretariat of the Antarctic Treaty, Chairman’s Report on Informal Consultations Convened in New York from 13 to 15 April 2005, 2005, https://tinyurl.com/erikro85, 3. 82 Annex VI, Article 11 refers also to Art 9(2) with respect to the liability amounts to be insured, but not to other insurance provisions, such as direct action against the insurer. 83 Confer the wording “provided that the applicable limits are . . .” 84 See Norwegian Antarctica Regulations § 31. 85 It follows from the wording of 9(2)(a)(i) that the limitation amounts cannot be reduced.

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Apparently, this rule also applies if one party is liable to another under a convention to which they both are parties (e.g. the HNS Convention). In the general law of treaties, this would be considered a special arrangement between two parties to a treaty.86 Second, Article 9(2)(b) grants the parties to the annex the privilege that (liability) conventions that they are not parties to should not affect their rights and obligations under the annex. This applies regardless of whether they are operators. However, States generally do not have liability under the annex other than as operators87 and for the liability there is (for failure of implementing the annex), there are no relevant liability conventions. The clause does not prevent the liability of a party from being influenced by other legal norms outside the annex that it has not expressly accepted. This clause could have been relevant if an action were brought against a party operator in the courts of another party, of course subject to the sovereign immunity of State ships.88 Those courts would apply liability rules pursuant to their own choice of law rules, and these rules might include rules based on liability conventions to which the forum State is a party but not the other State. However, such actions are excluded by Articles 7(4) to 7(6) of the annex, which provides for dispute resolution by Antarctic Treaty organs. There is no reason that these organs should apply particular other liability conventions, and they have no choice of law rules. It is, therefore, diff icult to see the practical importance of this rule that the rights and obligations of a party to the annex should be determined without reference to other liability conventions to which the particular State is not a party. The third exemption preserves the jurisdictional provisions of Articles 7(1) and 7(2) of the annex, Article 9(2)(a) notwithstanding. Articles 7(1) and 7(2) give a party the right to bring action against liable parties under the annex in specif ied jurisdictions. As these jurisdictions do not match those prescribed by the other liability conventions, this underlines that the annex is not compatible with these conventions. However, as Article 9(2)(a) does not deal with jurisdiction, the exemption is unnecessary. Although this exception deals with the court actions of parties, because Article 7 is limited to such actions, this exemption is not intended to give States Parties a special position. The reason that Article 7 is limited to action by parties is simply to avoid conflict with the EU legislation on jurisdiction.89 By limiting the jurisdictional provisions of the annex to actions by States Parties, one saved the European Union from the trouble of amending their legislation. In summary, Article 9(2)(b) is not entirely successful either from a policy or a drafting viewpoint.

Uniform Liability Law for Antarctica Will the annex create a uniform liability law for Antarctica? The answer is no, for several reasons. The annex does not apply to a further extent than is accepted by States. The Antarctic Treaty requires the parties to use their best endeavours to prevent anyone from engaging in any activity in Antarctica contrary to its principles or purposes,90 which might include supporting the obligations under the annexes, for example, if anyone engages in activities there without such contingency plans

86 87 88 89

United Nations, Vienna Convention on the Law of Treaties, 1969, Article 41. Annex VI, Article 11. Ibid., Article 6(5). Antarctic Treaty Consultative Meeting, Final Report of the 28th Meeting, Stockholm, Sweden, June  6–17, 2005, https://tinyurl.com/erikro74, para 110 and Annex H. 90 Antarctic Treaty, Article X.

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as required pursuant to the annex.91 Nevertheless, there is a long way from such support to actually implementing the annex. It seems diff icult to enforce the annex. It will be enforced when approved by all consultative parties (i.e. parties to the Antarctic Treaty with substantial research activity in the area).92 Some of the problems are perhaps the conflict of convention issues discussed earlier.93 Even when in force, the annex addresses limited issues. It does not prevent the enforcement of national law on other issues if there is jurisdiction. Only a relatively small part of the liability law in the Antarctic is made uniform by the annex. While the material scope of the annex is limited, its geographic scope extends to the entire Antarctic Treaty Area (i.e. all areas south of 60° south).94 The Antarctic area includes even the unclaimed Marie Byrd Land and the high-seas area around the Antarctic continent.95 However, the rules of the annex tend to apply only to activities with a connection to a party.96 For example, some rules apply only to a party operator, and the def inition reveals that this is an operator in the Antarctic territory of a party claiming that territory.97 Only such operators are required, for example, to establish contingency plans, instigate response operations and maintain insurance. These provisions do not apply to operators in general, despite other operators being f inancially responsible for damage and response operations. This might reflect jurisdictional cautiousness but might just as well reflect a desire to have control over response operations in the claimed territory. In all events, it does not make the law uniform in Antarctica.

Conclusion The legal regime related to oil pollution from ships comprises liability, preventive and response rules. In particular, liability rules tend to be complex. In all three areas, there is room for improvement.

91 Annex VI, Article 4. 92 Antarctic Treaty, Article IX (2) and Antarctic Environmental Protocol, Article 9(4). 93 See the section “Limitations of Liability and Insurance.” 94 Antarctic Treaty, Article VI. 95 The Norwegian implementing legislation has missed this point; see Norwegian Antarctica Regulations § 2. 96 See the section “Main Rules.” 97 Ibid. I believe this is the only place in the treaties (except for the freeze clause) directly referring to the territories of the States that claim parts of Antarctica.

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39 POLAR CRUISE SHIP TOURISM AND LIABILITY FOR INJURIES OF PASSENGERS AND WORKERS – ARE THEY IN THE SAME BOAT? Vibe Ulfbeck and Marlene Louise Buch Andersen Introduction: About Cruise Shipping in the Polar Regions Cruise ship tours in the polar regions have become popular. The number of tourists in the Antarctic quadrupled over a decade,1 and the rise in number of people who want to experience the polar regions before it is too late has continued.2 Several tour operators offer trips either to the Arctic or the Antarctic that offer views of the unique nature and animal life at sea combined with onshore visits in certain areas.3 Polar cruise trip tours start out from many different places in the world and go to either the Arctic or the Antarctic, combine the two and sometimes make round tours. Polar cruise trip tours are carried out by vessels flying American, European and Nordic flags including the Maltese flag, the Swiss flag and the Norwegian flag.4 However, most polar cruise ship tours are carried out with vessels flying flags of convenience (FoCs). In particular, the flags of the Bahamas and Panama are common.5 Travelling in the polar regions entails special risks. First of all, the weather can be particularly harsh and sea areas can be wholly or partly covered by ice. This means that ships must be built in such way that they are able to manoeuvre under these conditions. Secondly, large areas in the polar regions are insuff iciently charted by now, posing risks of collisions and stranding.6 Thirdly, the polar regions comprise vast spaces of uninhabited and largely inaccessible areas. This means that rescue services may be far away should help be needed. This is particularly problematic since low

1 See “Is Antarctica Getting Too Popular?” The New York Times (nytimes.com), accessed November 12, 2022. 2 See, for instance, “Antarctica’s Rise in Popularity,” TravelPulse, accessed November 12, 2022. 3 See, for example, “Oceanwide Expeditions,” accessed November 12, 2022, https://oceanwide-expeditions.com/thearctic/greenland/cruises; Viking Cruises, accessed November  12, 2022, www.vikingcruises.com/expeditions/cruisedestinations/antarctica/index.html; “Crystal Cruises: Antarctica21 | Boutique Expeditions to Antarctica,” accessed November 12, 2022. 4 For example, the cruise lines Hurtigruten and Viking Cruises have vessels flying under the Norwegian flag. 5 For example, the following cruise lines have vessels flying under either the flag of Bahamas or the flag of Panama: Norwegian Cruise Line (Bahamas), Aurora Expeditions (Bahamas), Crystal Cruises (Bahamas), Royal Caribbean (Bahamas), Carnival Cruise Line (Panama). 6 See, for instance, on the Canadian Carted areas www.charts.gc.ca/arctic-arctique/index-eng.html, accessed November 27, 2022. DOI: 10.4324/9781003404828-50 662

Polar Cruise Ship Tourism and Liability for Injuries of Passengers and Workers

temperatures in the areas will reduce the period of time in which human survival in an emergency situation is possible. So far, emergency situations in the polar regions have only arisen a couple of times.7 However, with growing activity in the areas, it could be feared that this could happen more frequently in the future. The special risks connected to cruise shipping in the polar regions raise the question of where and how to place liability if an accident happens. The special risks in the polar regions are common to everyone onboard the cruise ship, whether passenger or crew. The cruise ship, accommodating hundreds of people for longer periods of time, almost forms a small society on its own, offering the full experience with shops, restaurants and bars onboard and constituting both a place for leisure for passengers and a workplace for crew. It can be seen as a unique feature of the concept of the cruise ship tour that people are onboard the ship for different purposes and yet, the special risks created are exactly the same for everyone. However, as this article will show, passengers and crew are covered by entirely different liability regimes should something go wrong. In addition, the role played by private governance through choice of flag of the ship is different for the two groups.

Passengers Regulatory Frameworks The liability for maritime passenger injuries in the polar regions is to a large extent regulated through international conventions. The original convention was the Athens Convention from 1974 (PAL 1974)8 introducing basic liability rules and limitation rights for the carrier. The liability regime in PAL 1974 is fault based and characterised by a right to limit liability on the part of the carrier. In 2002, PAL was supplemented by a protocol (2002 protocol),9 which to some extent introduced strict liability and partly restricted the limitations on liability. The 2002 protocol entered into force in 2014, but already in 2009, the EU had integrated it into Regulation 392/2009.10 The 2002 protocol has been ratif ied by several States11 that are polar cruise States as an addition to the PAL 1974 (the consolidated version of PAL 1974 and the 2002 protocol, hereinafter PAL 2002).12

7 Two such incidents concerning “small expedition vessels” happened in 2009 (the Clelia II) and 2007 (the Explorer) in the Antarctic, neither of which led to any very serious personal injuries. In 2009, the Clelia II scraped its hull on underwater rocks and in 2007, the Explorer sank in the Antarctic, and passengers and crew were saved in lifeboats, see www.cruiselawnews.com/2010/12/articles/sinking/whos-responsible-when-a-cruise-ship-sinks-in-antarctica, accessed November 12, 2022. Similarly, in March 2019, evacuation from the 930-passenger ship Viking Sky was needed off the coast of Norway; see “Viking Sky Incident – A Wake-Up Call for the Arctic Cruise Industry?” The Independent Barents Observer, accessed November 12, 2022, thebarentsobserver.com. 8 Athens Convention relating to the carriage of passengers and their luggage by sea, 1974. Concluded at Athens on December  13, 1974, see https://treaties.un.org/doc/Publication/UNTS/Volume%201463/volume-1463-I-24817English.pdf, accessed September 2022. 9 Protocol of 2002 to the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974, see e.g. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/261628/ Misc.6.2013_Prot_2002_Athens_8760.pdf, accessed September 2022. 10 This means that as between EU States which have ratified the PAL 2002, these rules will apply both on the basis of the convention and the regulation, see Sarah Fiona Gahlen, “Civil Responsibility Regimes for Passenger Claims,” in Civil Liability for Accidents at Sea, Hamburg Studies on Maritime Affairs 32 (Berlin, Heidelberg: Springer-Verlag, 2015), 217–65, 244. 11 See https://treaties.un.org/Pages/showDetails.aspx?objid=080000028053bf55, accessed November 12, 2022. 12 A consolidated version of the PAL including the 2002 protocol can be found here: Consol.text.doc (rosaeg.no), accessed January 20, 2022.

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According to PAL 2002, Article 2(a), the convention is applicable if the flag State is a party to the convention. Some polar cruise States, such as the Bahamas, are not members of the PAL 2002 but members of the original PAL 1974. Other polar cruise States, such as the US and Australia, are not members of any of the conventions.13 However according to PAL 2002, Article 2, the convention also applies if (1) the contract of carriage has been made in a State Party to the convention or (2) the place of departure or destination, according to the contract of carriage, is in a State Party to the convention.14 These two last provisions broaden the scope of the convention signif icantly.15 Moreover, the convention also applies if it has been incorporated into the carriage contract which is often the case in the cruise ship industry and which in practice has been relevant for cruise trips that would otherwise have been subject to US law.16 Consequently, it must be assumed that the PAL 2002 will (prima facie) be applicable to a fair number of polar cruise trips. According to Article 2 of the PAL 2002, the rules apply to any “international carriage.” The concept of an international carriage is def ined in point 9 of Article 1 of the PAL 2002. According to this rule, an international carriage means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State.17 Some cruise trips in the polar regions go from one State to another. Others are organised as “round tours,” bringing the ship back to where it started but often calling in in ports in other States while under way. Consequently, a polar cruise ship tour will often fulf il the condition of being an “international carriage”18 and thereby being covered by the convention. Polar cruise trips are often organised as package travels. At the EU level, this brings the Package Travel Directive19 into play. The Package Travel Directive imposes liability on the tour operator. The tour operator may or may not be identical to the carrier. The directive imposes strict liability on the tour operator for non-conformity except for situations of force majeure.20 In addition, the Travel Package Directive makes reference to Regulation 392/2009 and thereby indirectly to PAL 2002. It gives the tour operator the right to claim the same limitations of

13 For an account of the Australian passenger liability rules, see e.g. Kate Lewis, “Cruise Ship Passengers and Australian Law: Known Problems and Some New Answers,” Australian & New Zealand Maritime Law Journal (2018): 1–16, 32. 14 For an analyses of these rules from a private international law perspective, see Paul Myburgh, “A Successful Substantivist Carve-out? The Athens Convention as Uniform International Law,” NUS Centre for Maritime Law Working Paper 18/06 (2018). 15 Although deciding where a contract has been made can be diff icult if the voyage has been booked on the internet, see Gahlen, “Civil Responsibility,” 223. 16 B. Soyer and G. Leloudas, “Carriage of Passengers by Sea: A Critical Analysis of the International Regime,” Michigan State International Law Review (2018): 483–535. On contractual incorporation under US law, see Angelica L. Boutwell, “The Athens Convention and Limitation of Liability in US Federal Courts: While Communication Is Key, Some Things Are Better Left Unsaid,” Inter-American Law Review (2012): 523. 17 According to article 2, section 1 in the Regulation, the Regulation also applies to carriage by sea within a single member State onboard certain ships. In addition, member States can freely decide to extend the scope of application of the Regulation even further, see article 2, section 4. 18 In addition, EU Regulation 392/2009, to some extent, also subjects voyages within the same member state to the rules in the regulation, chapter 5, 248. 19 Directive (EU) 2015/2302 of the European Parliament and of the Council of November 25, 2015, on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC. 20 Article 14(3)(c).

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liability as the carrier.21 Moreover, according to Article 14(5) in the directive, the directive does not prevent the passenger from relying on PAL 2002; rather, the passenger can claim under both regimes, and the compensation paid out under one regime will be subtracted the compensation from the other regime. For the passenger, it can be an advantage to be able to claim compensation from both the carrier and the tour operator if one of these actors is not able to pay or if certain aspects of the cruise trip are not covered by both regimes.22 With regard to polar cruises the rules in the Travel Package Directive could come into play in relation to ships sailing under the Maltese flag or the Norwegian flag.23 However, in the following, the primary focus is on the international liability regime established under the PAL system since the majority of polar cruise ships are subject to this regime. Whereas the basis of liability and limits of liability may differ in the different versions of the PAL liability regime, this article focuses on some central concepts that are particularly relevant for polar cruise shipping. These concepts are the same in the three liability regimes (PAL 1974, PAL 2002 and Regulation 392/2009). For the sake of simplicity, in the following, references are made to PAL 2002.

Liability: Whose Liability? PAL 2002 regulates the liability of the “carrier.”24 The carrier is def ined in Article 1(1) as “a person by or on behalf of whom a contract of carriage has been concluded whether the carriage is actually performed by that person or by a performing carrier.” Thus, according to this def inition the carrier is the person who is bound by a contract of carriage. This means that the carrier under the PAL 2002 will be the shipowner if the shipowner has entered into the contract of carriage. However, the carrier can also be the charterer if it is the charter who has made the contract with the passenger, and the carrier can be the tour operator if the tour operator is party to the contract.25

Shipping Incidents According to Article 3 (1) of the PAL 2002, the carrier is strictly liable up to 250,000 units of account for loss resulting from death or personal injury of a passenger caused by a “shipping incident.” A shipping incident is def ined as a shipwreck, capsizing, collision or stranding of the ship, explosion or f ire in the ship, or defect in the ship (cf. Art. 3(5) a). The def inition builds on the notion of “typical maritime perils”26 as opposed to dangers that can also occur on land. All of the listed perils can be relevant for shipping in the polar regions. In fact, the harsh weather conditions

21 On problems concerning the overlap between PAL and the previous EU travel package directive where liability limits were not coordinated, see Gahlen, “Civil Responsibility,” 235 ff. 22 See, for instance, below on land shore excursions. 23 Although Norway is not a member of the EU, Norway has chosen to implement the travel package directive, see Act 2018–06–15–32 (Lov om pakkereiser og rejsegaranti). 24 Soyer and Leloudas, “Carriage of Passengers,” 501. 25 In the case Lawrence v NCL (Bahamas) Ltd [2018] 1 Lloyd’s Law Rep 607 (Norwegian Jade), it was conf irmed that the cruise line can be the carrier. Cf. Cruise and Maritime Services International Ltd v. Navigators Agency Ltd (The Marco polo) [2017] Lloyds rep 575, see Kate Lewins, “Carrier under the Athens Convention 1974 Cruise and Maritime Services International Ltd v Navigators Underwriting Agency Ltd (The Marco Polo) [2017] 1 Lloyd’s Rep 575,” Journal of International Maritime Law 23, no. 5 (2017): 336 ff. 26 Gahlen, “Civil Responsibility,” 249.

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in the regions may pose an increased risk of shipwrecking, collisions and stranding. Also, the fact that chart coverage in the areas may not be adequate may increase the risks. A shipping incident may also be caused by a defect in the ship. An example could be a situation in which the ship loses machine power and becomes unnavigable due to a defect. Such a situation can be particularly dangerous in the polar areas where the vessel may be far away from rescue services and other assistance and may even be sailing in areas posing challenges to communication. The concept of a “defect” is def ined in article 3(5)c as any malfunction, failure or non-compliance with applicable safety regulations in respect of any part of the ship or its equipment when used for the escape, evacuation, embarkation and disembarkation of passengers; or when used for the propulsion, steering, safe navigation, mooring, anchoring, arriving at or leaving berth or anchorage, or damage control after flooding; or when used for the launching or life saving appliances. Also, this def inition stays within the conf ines of the notion of “maritime perils,” excluding injuries caused by other types of defects from its scope. The def inition refers to “applicable safety regulations.” This includes technical standards found in SOLAS and in the ISM code.27 Consequently, it must be assumed that also the standards found in the Polar Code will be relevant with regard to liability assessments for cruise ships in the polar regions.28 Thus, the Polar Code contains various standards including standards with regard to safety at sea. Examples include standards on the required ship structure (chap. 3), machinery installations (chap. 6), life-saving appliances and arrangements (chap. 8), safety of navigation (chap. 9) communication (chap. 10), voyage planning (chap. 11) and manning and training (chap. 12). With regard to navigational equipment, the code provides in Section 9.2.2.1 that “the navigational equipment and systems shall be designed, constructed, and installed to retain their functionality under the expected environmental conditions in the area of operation.” Likewise, with regard to communication, it is stipulated in Section 10.2.1.1. that “[t]wo-way voice/or data communications ship-to-ship and ship-to-shore shall be available at all points along the intended operating routes’ and further, in 10.3.1, In order to comply with the functional requirements of paragraph 10.2.1.1. above, communication equipment onboard shall have the capabilities for ship-to-ship and ship-to-shore communication, taking into account the limitations of communications systems in high latitudes and the anticipated low temperature. This means that – as a clear starting point – the ship must be regarded as defective if the described technical equipment is not installed in the ship or does not function and the carrier will be strictly liable for any injury arising as a consequence thereof.

27 Ibid., 250. 28 The Polar code is an IMO instrument, adopted by resolution MSC.385(94) and resolution MEPC.264(68). The code can be found here: www.icetra.is/media/english/POLAR-CODE-TEXT-AS-ADOPTED.pdf, accessed September 2022. For guidance to the code, see Lloyd’s Registers Guidance Document, “The International Code for Ships Operating in Polar Waters. A Regulatory Interpretation Guide” (2016), see https://maritimecyprus.com/wp-content/ uploads/2019/07/the_polar_code_a_regulatory__interpretation_guide.pdf, accessed September 2022. See also the Special Issue: The Implementation of the Polar Code in the Arctic, Journal of International Maritime Law, 2018. On related liability insurance issues, see Chapter 40 in this volume.

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However, the requirements as to technical capabilities do not in themselves prevent the ship from sailing into areas in the polar regions where communication is challenged29 and rescue services effectively out of reach. This means that if a ship runs into harsh weather in a remote area and rescue fails not because of technical incapabilities but simply because of remoteness, it will not necessarily be possible to identify any defect in the ship. Consequently, unless one of the other def initions of a shipping incident is applicable, the situation may not be covered by the concept of a “shipping incident.” This also means that for such injuries, the carrier will have no strict liability. Instead, the rule in Article 3(2) on fault-based liability will apply, on which see the next section. In addition to this, the carrier may in certain situations be exonerated from liability. According to Article 3(1) a, the carrier is exempted from liability if the shipping incident resulted from a “natural phenomenon of an exceptional, inevitable and irresistible character.” This formulation seems to be a reference (although incomplete)30 to the concept of “act of God.” Hereby, it is signalised that not any, challenging natural phenomenon will enable the carrier to claim exoneration from liability. Although weather conditions in the polar regions can be extraordinarily harsh, it must be presumed that this known risk will not in itself be suff icient to relieve the carrier from liability. The carrier is also exempted from liability if the loss resulted from “acts of war, hostilities, civil war, insurrection” (Art. 3(1)a) or terrorist attacks (Art. 3(1)b). For the time being, the polar areas can hardly be said to pose any particular risks in this regard despite certain geopolitical tensions. Strict liability applies for losses up to the limit of 250,000 units. However, the carrier is also liable for shipping incidents causing losses that exceed this limit, unless he can prove that the losses were not caused by fault or neglect of the carrier (Art. 3(1)).

Non-shipping Incidents Article 3(2) regulates liability for loss caused by “non-shipping incidents.” The category includes incidents that are not “shipping incidents” in the technical sense of this term. The rule imposes liability on the carrier for its negligent acts and places the burden of proof on the claimant. With regard to shipping in the polar regions, dangerous situations may be created by the mere choice of route. Routes in the polar regions may be dangerous because they are not fully charted or because rescue services cannot arrive due to the remoteness of the place. As mentioned, the Polar Code, chapter  11, contains requirements with regard to “voyage planning.” Thus, Section  11.3 lists a number of factors that the master must take into account when planning the route, including in 11.3.9: “operation in areas remote from search and rescue (SAR) capabilities.” However, the fact that remoteness must be taken into consideration does not prevent a voyage in such areas. If personal injury occurs in such situations – for instance, if a passenger falls overboard due to harsh weather – the incident will not technically qualify as a shipping incident, and it will be up to the claimant to show that the carrier acted negligently in choosing the route. According to the rule, fault-based liability also applies to cases in which the incident is not a typical shipping incident but rather something that might as well have happened on land. Examples include a passenger tripping in the restaurant onboard the ship, getting poisoned food or getting

29 For challenges in establishing satellite communication in the Arctic, see www.researchgate.net/publication/262575866_ Arctic_Communication_Challenges; www.esa.int/Enabling_Support/Preparing_for_the_Future/Space_for_Earth/ Arctic/Arctic_poses_communications_challenges. 30 The formulation does not mention that the phenomenon or its consequences must be “beyond the control” of the carrier.

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injuries because a chair breaks down.31 It is not entirely clear how the exact line between “maritime perils” and “ordinary perils” is to be drawn.32

Leaving the Cruise Ship Cruise ship tours often include excursions on land. Also, cruise ships to the polar regions may include such excursions. Excursions are often provided by independent contractors or by the tour operator. This raises the question of the possible liability of the carrier for accidents occurring away from the cruise ship. According to PAL 2002, Article 1(8), the concept of the “carriage” includes the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation, and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice versa.33 With regard to onshore excursions, this means that the carrier could be liable if the passengers get injured while embarking from or disembarking for an on land excursion.34 This applies whether or not the transfer has been outsourced by the carrier to a third party.35 In contrast, as a starting point, the carrier is not liable for personal injury caused during excursions away from the cruise ship.36 However, in case law, a number of exceptions to this general rule have been developed. For example, it may be possible to hold the carrier liable for breach of a duty to warn against dangerous environments.37 This exception could be particularly relevant for cruises to the polar regions. In addition, the carrier may also be held liable if it is possible to show that he has acted negligently in the selection of shore excursions operators.38 If it is not possible to the carrier liable on the basis of PAL, it may still be possible for the passenger to claim compensation from the tour operator.39

Summing Up on Passenger Injuries The PAL 2002 has been ratif ied by several polar cruise States. It is also applicable on the basis of other criteria independent of flag State. This makes the PAL 2002 relevant as a regulatory framework in case of passenger injuries in the polar regions. The liability for passenger injuries rests on the carrier under the PAL 2002 and in addition, on the tour operator when the EU

31 For the so-called hotel risks, see Simone Lamont-Black, “Sea Passengers Rights and the implementation of the Athens Convention in the EU,” Australia and New Zealand Maritime Law Journal (2018): 32, 36–58, 56, with note 227. 32 Gahlen, “Civil Responsibility,” 250, Lamont-Black, “Sea Passenger Rights,” 56, note 227, A. Tettenborn, “Passenger Injury Claims, Plain Sailing or Not?” Journal of International Maritime Law 18, no. 1 (2012): 20. 33 On this see also Thor Falkanger, Hans Jacob Bull and Lasse Brautaset, Scandinavian Maritime Law, The Norwegian Perspective (Oslo: Universitetsforlaget, 2017), 555. 34 Lamont-Black, “Sea Passenger Rights,” 55 with reference to Lawrence v NCL (Bahamas) Ltd (the Norwegian Jade) [2017] EWCA Civ. 2222; [2018] 1 Lloyd’s Rep 607. 35 Lawrence v NCL (Bahamas) Ltd (the Norwegian Jade) [2017] EWCA Civ. 2222; [2018] 1 Lloyd’s Rep 607. 36 Lamont-Black, “Sea Passenger Rights,” 55, and see, in general, Thomas A. Dickerson, “The Cruise Passengers’ Rights and Remedies 2014: The COSTA CONCORDIA Disaster: One Year Later, Many More Accidents Both on Board Megaships and during Risky Shore Excursions,” Tulane Maritime Law Journal 38 (2014): 515. 37 Soyer and Leloudas, “Carriage of Passengers,” 531. 38 Ibid. 39 See the previous discussion on the EU Travel Package Directive.

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Travel Package Directive is applicable. Although identifying the carrier or the tour operator may in itself give rise to diff iculties – for example, where the cruise trip has been purchased on an online platform – it is an advantage for the passenger that there are potentially two actors who can be liable to pay compensation. Effectively, the carrier and the tour operator will often be subject to the same liability rules under these regulatory frameworks (i.e. the rules found in PAL 2002). The liability rules in this framework are quite detailed. The concept of the “shipping incident” is central. The harsh weather conditions and the fact that chart coverage in the areas may not be adequate may pose an increased risk of shipping incidents such as shipwrecking, collisions and stranding. For such shipping incidents, PAL 2002 imposes strict liability on the carrier. However, other emergency situations may arise – for example, if the choice of route brings the vessel outside the reach of communication or rescue services. In such situations, liability of the carrier is fault based, meaning that it is for the passenger to prove that the choice of route was a negligent act on the part of the carrier. In these situations, the passenger well be less well protected than in the shipping incident situations. In general, the rather detailed regulation of the applicable liability standards in PAL 2002 leaves limited space for national liability law to play a role with regard to passenger injury claims. This limits the actual effect of choice of flag as a regulatory mechanism in the hands of the shipowner when PAL 2002 is applicable.

Crew Introduction Cruise ships do not only function as means of passenger transportation but also as a workplace for their personnel (e.g. the captain, crew, engineers, cleaning staff, waiters, chefs, entertainment staff). Whereas the passenger of a cruise ship has a contract of carriage with the carrier (who may or may not be the shipowner), the seafarer has a contract of employment with the employer. The employer is typically the shipowner. The adoption of the Maritime Labour Convention (MLC)40 in 2006 has been considered an important step forward in securing workers’ rights and safety at sea. It has been widely ratif ied and today, it covers more than 96% of the world’s gross shipping tonnage.41 The MLC imposes requirements on shipowners with regard to the working environment and certain social security rights.42 It also contains some minimum standards with regard to the shipowner’s liability for work injuries.43 However, in general the MLC leaves it to the national law of the flag State to regulate these matters. For example, the MLC does not contain a def inition of the concept of a work injury or rules concerning the basis of liability. It also does not contain rules concerning the calculation of the compensation to be paid in case of a work injury. Whereas the Global Limitation Convention prohibits the use of global limitation rights to limit seafarers’ claims for work injuries,44 the MLC does not prevent national law from limiting the liability of the shipowner in certain situations.

40 Martime Labour Law Convention 2006, with later amendments, see www.ilo.org/wcmsp5/groups/public/---ed_ norm/---normes/documents/normativeinstrument/wcms_554767.pdf, accessed September 2022. 41 See https://news.un.org/en/story/2022/04/1115982, accessed November 12, 2022. 42 See e.g. MLC Regulations 2.2. on wages and 3.1 on accommodation and recreational facilities. 43 See MLC Regulation 4.2. 44 Convention on Limitation of Liability for Maritime Claims (LLMC) 1976 with later amendments.

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This means that the central questions concerning compensation for work injuries at sea are left to national law. This also means that the flag of the ship becomes relevant for identifying the relevant rules on compensation for work injuries.

Work Injuries Under FoCs – the Examples of the Bahamas and Panama As mentioned in the introduction, cruise ships in the polar regions often sail under FoCs. Although these systems often provide for weaker protection of seafarers, seafarers are not entirely without compensatory rights in case of work injuries. For instance, under the laws of the Bahamas, the shipowner is obliged to pay for certain expenses, including medical expenses, incurred due to a work injury onboard as long as the seafarer is onboard the ship.45 After the seafarer has left the ship, the shipowner is only obliged to pay wages for a period of 16 weeks from the day of the injury.46 Seafarers who are citizens of the Bahamas or ordinarily residents of the Bahamas will subsequently be covered by the National Insurance Act47 concerning social security in the event of work injuries. The shipowner is obliged to take out insurance under the National Insurance Act. The shipowner is not obliged to pay for social security for seafarers of other nationalities48 unless such obligation is provided on the basis of the employment agreement.49 Under Panamanian law, seafarers’ work injury claims can be pursued either in labour law or in civil law.50 A labour law claim must be f iled in the labour law courts. In addition, it is also possible to f ile a civil law claim for compensation in the civil law courts. A civil law claim can be based on tort law and requires proof of negligence on the part of the shipowner. It can also be based on the contract if there is a basis for such a claim in the contract. Compensation obtained in a civil law claim is deducted from any compensation achieved in a labour law claim. Despite the fact that seafarers, to some extent, have the right to compensation for work injuries under the legal systems of FoCs, the enforcement of such rights may be problematic. A main problem related to seafarers’ rights to compensation under FoCs is that complicated company constructions may make it diff icult to identify the shipowner (employer). Some open registry States do not require shipowners to disclose their identities at all.51 This makes it possible for shipowners to operate under a high degree of anonymity. This means that even if a right to compensation exists according to the rules sketched out earlier, it may still be diff icult to make use of this right in practice. In addition, monitoring of FoCs and enforcement of safety rules are often weak in regard to vessels flying FoCs,52meaning that seafarers on these ships may often be exposed to particularly high safety risks.

45 Information Bulletin no 148, section  4.1, see www.bahamasmaritime.com/wp-content/uploads/2020/10/BMABulletin-148-Shipowner-liability-and-social-security.pdf, accessed November 12, 2022. 46 Information Bulletin no 148, section 4.2. This rule is in accordance with the minimum standards in the MLC. 47 Information Bulletin no 148, section 5.1. 48 Apart from those covered by the special CARCOM agreement, see Information Bulletin no 148, section 5.2.1. 49 Information Bulletin no 148, section 5.3. 50 See in general Juan David Morgan, The Shipping Law Review, Panama, accessed September 2022, https://thelawreviews. co.uk/title/the-shipping-law-review/panama, on which the following is based. 51 Carlos Felipe Llinas Negret, “Pretending to Be Liberian and Panamanian; Flags of Convenience and the Weakening of the Nation State on the High Seas,” Journal of Maritime Law & Commerce 47, no. 1 (2016): 1–28, 12. 52 Negret, “Pretending to be Liberian,” 10.

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Work Injuries Under Nordic Law – the Example of Norway As mentioned, some polar cruise ships sail under the Norwegian flag. The Norwegian Workers’ Compensation Act53 stipulates in Section 1 that the law covers personal injuries inflicted on employees when working for employers in the country. According to Section 1 c, the relevant minister can lay down rules on the applicability of the rules in the Norwegian Workers’ Compensation Act to seafarers. This has been done in a guideline54 which contains special rules governing the coverage on industrial injuries of seafarers. According to paragraph I (3), employees working on a ship registered in the Norwegian Ordinary Ship Register55 (NOR) and in the Norwegian International Ship Register56 (NIS) are covered by the Norwegian Workers’ Compensation Act.57 This means that as a starting point, the seafarer can claim compensation under the act if he is employed by the owner of a ship registered in NOR or NIS. However, the act is not applicable to employees with foreign citizenship working on a ship registered in NIS58 or in a foreign ship register.59 It is also not applicable if the employee works for a foreign employer which conducts business onboard a ship in an international transport.60 Instead, such seafarers may be able to obtain some compensation through the Norwegian Social Security Act.61 Under Norwegian law, the employer is obliged to take out insurance covering industrial injuries (cf. the Norwegian Workers’ Compensation Act, para. 3). Liability is strict. This means that as a starting point, the shipowner cannot escape liability because of the fact that an injury was caused, for instance, by harsh weather in the polar regions and as such was beyond the control of the shipowner. However, not any injury suffered onboard a ship will be covered under Norwegian Workers’ Compensation Act. It is a requirement that the injury can be characterised as a “work injury.”62 It has been established in Norwegian case law63 that the concept of the work injury in the Norwegian Workers Compensation Act should be understood in the same way as the corresponding concept in the Norwegian Social Security Act.64 Here, a work injury is def ined as follows: A work injury is a sudden or unexpected external influence which the worker has been exposed to at work. It is also regarded a work injury if a specif ic, time limited external

53 Act 1989–06–16–65 on Workers’ Compensation (Lov om yrkesskadeforsikring). 54 Guideline, FOR-1989–10–13–1041 (Forskrift til lov om yrkesskadeforsikring). 55 Accessed September  2022, www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registrationin-nor/ 56 Accessed September 2022, www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/newregistration-nis/ 57 The applicability extends to employees on ships registered in a foreign ship register if the employee works for an employer established in Norway, unless the employee is working in the hotel and restaurant business onboard of a cruise ship registered in NIS. 58 Cf. Guideline, para I(3), b). 59 Ibid. 60 Cf. Guideline, para I(3), c). 61 However, seafarers with foreign citizenship may be covered by the Norwegian Social Security Act, see § 2–6. 62 Workers’ Compensation Act, para 11. 63 HR-2005–2000-A, Rt-2005–1757. 64 Folketrygdloven § 13–3.

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influence causes an impact or a strain which is unusual as compared to what is normal in the work carried out by the injured party.65 Despite the wording of this def inition in the Social Security Act, it is established in Norwegian case law that there is no requirement of any “external influence” as the cause of the injury. It is suff icient that the worker has experienced a sudden or unexpected – that is, an “extraordinary” strain or impact66 or an unusual strain or impact caused by a time limited influence, whether or not that influence is external. This means that if a seafarer trips and gets injured, for instance, due to rough weather, the injury will normally be recognised as a work injury, the impact being “sudden” or “unexpected.” Thus, the seafarer will be entitled to compensation even though experiencing rough weather must in general be regarded a normal risk for a seafarer. This means that the special risks posed by travelling in the polar regions in general will not reduce the seafarer’s chance of getting compensation for work injuries caused by sudden or unexpected impacts under a system as the Norwegian workers’ compensation scheme. In other words, it cannot be argued that in these regions, a seafarer should be prepared for more dangerous work conditions.67 Unlike what is the case for passenger injuries, the seafarer will also be entitled to compensation according to the same rules regardless of whether the same injury could have happened on land. For example, a seafarer who gets injured while carrying out repairs on the ship which might as well have been carried out on land would be entitled to compensation as long as the injury can be regarded as caused by a “sudden” or “unexpected” impact. Working on cruise ships necessitates the seafarers’ presence for a longer period than the standard working hours between nine-f ive. When off-duty, the seafarer is still present at the ship and cannot leave home. A question that naturally arises is whether the workers’ compensation coverage has any time limits. In the Guideline to the Norwegian Workers Compensation Act, it is made clear that the Workers’ Compensation Act applies at all times when the seafarer is onboard. Moreover, time used for embarkment and disembarkment is recognised as working time in the meaning of the Norwegian Workers’ Compensation Act. This applies if the transportation takes place in the interest of the employer or if the transportation entails an increased risk of injury.68

Summing Up on Work Injuries With regard to work injuries, the flag of the vessel is crucial for determining the relevant liability regime since the liability rules for work injuries onboard ships are to be found in national law. The concept of the work injury may differ in different legal systems and the extent to which the special risks connected with seafaring in the polar regions can be taken into account may also differ.

65 Unautorised translation). For Norwegian language version, see Norwegian Social Security Act (Folketrygdloven) § 13–3. 66 See court decisions HR-2005–2000-A, Rt-2005–1757. See also Rt-2007–882. 67 If an injury is caused without a “sudden” or “unexpected” impact, the case can be more complicated. As an illustration can be mentioned the case LG-2009–119082 where a seafarer experienced back pains caused by an imbalance on the boat. The imbalance did not cause the seafarer to slip or fall. There were no diff icult or unnormal weather conditions. As there was nothing unusual in the situation, the back pains were not recognised as a work injury. 68 Also under Danish law, the Workers’ Compensation Act to some extent covers injuries suffered in connection with embarkment and disembarkment. Thus, the national board of appeal has concluded in Principal Decision no. 4–19, “Injuries that occur during seafarers stay on Danish-registered ships in countries of departure or embarkation are covered by the Workers’ Compensation Act if the employer’s circumstances are the reason for the stay.”

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In general, work injury rules are often related to labour law and social security law, and the seafarer will have to make a claim against the shipowner. Most polar cruise ships sail under FoCs. Here, the protection of the seafarer is typically rather weak. Although a legal framework may to some extent entitle the seafarer to compensation, identifying the shipowner may pose diff iculties in particular with regard to vessels flying under FoCs. This reduces the practical effect of the protective rules. But even legal systems that insist on more transparency with regard to ownership and generally provide for a higher level of workers’ protection have some weaknesses. For example, under Norwegian law, seafarers with Norwegian citizenship are largely protected under the Norwegian Workers’ Compensation Act, allowing for compensation for work injuries, but seafarers who are not Norwegian citizens have weaker protection.

Conclusion It is characteristic for cruise ships in the polar regions that they often fly under FoCs. In general, this will have a greater impact on the right to claim compensation for injuries for seafarers than for passengers. Thus, with regard to passenger injuries, although the PAL 2002 has not been very widely ratif ied, a fairly large number of polar cruise States are members of this convention. In addition, the applicability of this legal framework is dependent not only on the flag of the vessel but is also triggered if a vessel departs for or arrives in a State that is a member of the convention. This means that the rules of the convention will often be applicable to passenger injuries in the polar regions. In addition, PAL 2002 contains rather detailed liability rules leaving little space for national law to play a role in establishing a basis of liability. The same is not true with regard to crew injuries. Although the MLC is widely ratif ied, the flag of the vessel is always decisive in determining the relevant liability rules. This is because the convention only regulates liability for work injuries to a very limited extent, largely leaving compensatory issues to national law. Looking into the substance of the rules, it can f irstly be noted that with regard to the basis of liability for passenger claims, the central concept in the PAL system is the “shipping incident,” whereas the central concept for injury claims raised by seafarers is the concept of the “work injury.” This means that although passengers and workers are onboard the same vessel and may suffer the same types of injuries due to the same causes, such as harsh weather or poor route planning, the legal concepts that are decisive for the right to compensation for these two groups of people on the ship are fundamentally different. With regard to passengers, the central question is whether the incident that has happened is an incident that is typical of seafaring whereas this criterion is typically irrelevant for the application of the concept of the “work injury.” Furthermore, it is characteristic that passengers are covered regardless of nationality, whereas citizenship may have an impact on the extent to which crew members are covered by various national work injury compensation schemes and social security systems. Looking at liability subjects, the passenger can claim compensation from the carrier under the PAL 2002 or– if EU law applies – from the tour operator under the EU Travel Package Directive. If it is diff icult for the passenger to identify the carrier, it is an advantage that also the tour operator can be held liable and vice versa. In contrast, the seafarer must sue its employer in case of work injuries. The employer is normally the owner of the vessel. However, complex company structures may obscure ownership and make it diff icult to identify the liability subject, in particular in FoC jurisdictions. All of these means that the possibility of obtaining compensation for personal injuries caused under cruise ship tours may differ signif icantly for passengers and crew. This is so even if the injuries are completely comparable and have been caused in the same way. So, although passengers and crew are physically on the same boat, legally, they are not. In the polar regions, where a large number of vessels fly under FoCs, this will be particularly obvious. 673

40 SHIPPING, INSURANCE AND THE POLAR CODE Trine-Lise Wilhelmsen and Hans Jacob Bull

Introduction The topic of this chapter is shipping, insurance and the Polar Code (PC or the Code). The purpose is to investigate what consequences the PC has for the insurance of ships sailing within the geographic area regulated by the Polar Code. Thus, the concept of shipping in this context is limited to the operation of ships in this area. Insurance related to ships is part of the insurance branch called marine insurance. It is divided between three areas: hull insurance, which covers loss of or damage to the vessel itself; loss-of-hire insurance, which covers the assured’s loss when the vessel is prevented from earning income due to damage to the vessel that is covered under hull insurance; and liability insurance, which covers the shipowner’s liability against a third party. The PC is an international convention regulating safety of ships and environmental risk in the polar waters. It has been signed by Norway and implemented in Norwegian legislation. This chapter’s scope is therefore limited to Norwegian law, although it is also relevant for the other Nordic countries due to common Nordic insurance contractual provisions (see the next section). We will f irst give an overview of the legal sources and types of insurance relevant to Nordic vessels. Thereafter, we will outline the PC. Finally, we will discuss the impact of the PC on the insurance cover.

The Legal Sources and Types of Insurance The Legal Sources All the Nordic countries have their individual Insurance Contract Acts, but as a general rule, these acts are not mandatory for marine insurance. The relevant legal sources are therefore mainly the insurance contracts. There are two categories of such contracts. The f irst is the Nordic Marine Insurance Plan 2013 Version 20191 (NP or the Plan), which is an agreed document that may in

1 The Nordic Marine Insurance Plan of 2013, Version 2019, September 14, 2018, www.nordicplan.org/The-Plan/. The NP is based on the previous Norwegian Marine Insurance Plan 1996 (NMIP) Version 2010. The NMIP 1996 was based on the previous NMIP 1964 and earlier similar agreed plans from i.a. 1907 and 1930. DOI: 10.4324/9781003404828-51 674

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many ways be compared to private legislation.2 This is a comprehensive set of provisions that cover most types of marine insurance except for general liability insurance and that also regulates issues that are covered by the Nordic Insurance Contract Acts for non-marine insurance. As NP is a Nordic set of provisions, it is constructed for use in the Nordic market and used by all the Nordic insurance companies but is also used by insurers in other countries. It is published with a Commentary that provides guidance on the background for the clauses, the purpose and the interpretation.3 The second category is the P&I4 insurance conditions, which cover the shipowner’s liability against third parties to the extent that this liability is tied to the operation of the insured vessel. P&I insurance is effected in mutual clubs, and each club has its separate conditions.5 However, due to cooperation through the International Group and a common “pooling agreement,” the conditions are substantially similar.6 Here, Gard’s Rules (GR) are used as reference.7 The GR come with a guidance on how to interpret them.8 A casualty in the polar waters may trigger both damage to or total loss of the ship, as well as loss of income and liability. In the following, therefore, we give an overview of the relevant insurance regulation.

Loss of or Damage to the Vessel The type of insurance covering loss of or damage to the vessel is hull insurance.9 The assured’s interest in the economic value of the vessel is divided between two types of hull insurance: ordinary hull insurance and hull interest insurance. The ordinary hull insurance covers both damage10 to the vessel and total loss11 of the vessel. Hull interest insurance only covers the risk for total loss.12 Hull and hull interest insurance is organised as two layers: the f irst layer is hull insurance, which provides general hull cover within a def ined sum insured, whereas hull interest insurance provides a second layer which is only triggered by total loss and with a more limited sum insured. The main reason for this system is that total loss cover alone is cheaper than full hull cover because the risk is lower. However, hull interest insurance may only be effected with an assessed insured value of 25% of the assessed insurable value for hull insurance.13

2 See further Trine-Lise Wilhelmsen and Hans Jacob Bull, Handbook on Hull Insurance (Oslo: Gyldendal juridisk, 2017), 26 ff. 3 “Nordic Marine Insurance Plan 2013 Version 2019 – Commentary,” accessed April 16, 2021, www.nordicplan.org/ Commentary/. Each version of the NP is accompanied by a commentary. The reference here is made to the pdf download containing the commentary to the 2019 version. 4 Protection and indemnity. 5 In Norway Skuld and Gard, in Sweden Swedish Club. See further Thor Falkanger, Hans Jacob Bull and Lasse Brautaset, Scandinavian Maritime Law: The Norwegian Perspective (Oslo: Universitetsforlaget, 2017), 679 ff. 6 Ibid., 680. 7 Gard Rules 2021, www.gard.no/web/publications/document/781871/gard-rules-2021. 8 “Gard Guidance to the Rules 2021,” Gard AS, accessed April 16, 2021, www.gard.no/web/publications/document?p_ document_id=20747880 Cf. also Richard Williams, Gard Guidance to the Rules (Arendal: Gard AS, 2015). 9 NP ch. 10–12 for ocean-going ships, ch. 17 for f ishing vessels and ch. 18 for mobile offshore units. 10 NP ch. 12. 11 NP ch. 11. 12 NP ch. 14. 13 NP Cl. 14–4 sub-clause 1, see further Wilhelmsen and Bull, Handbook on Hull Insurance, 378–79.

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Insurance Against Loss of Income The main insurance against loss of income is loss-of-hire insurance,14 which covers the assured’s loss when the vessel is prevented from earning income due to damage to the vessel that is covered under hull insurance.15 This cover is only triggered in case of damage and not in case of total loss. The reason for this is that in case of total loss, the assured may claim the sum insured under hull insurance and hull interest insurance,16 and this sum is normally equal to the agreed insurable value and assessed as the full economic value of the vessel at the inception of the insurance period.17 The full economic value of the vessel will normally include the value of the vessel’s future freight income, and thus, there is no need for a separate loss-of-hire insurance. Even so, the assured may effect so-called freight interest insurance on top of hull and hull-interest insurance. The underlying reason for this is that such extension may be necessary to cover loss of long-term employment in case of total loss, but there is no requirement that such loss has actually occurred.18

Liability Insurance The main liability insurance for vessels is P&I insurance, which covers most situations where the assured is liable for damage or loss to a third party. The insurance covers both contractual and noncontractual liability and includes cover for liability for claims related to persons,19 liability connected to cargo,20 pollution liability21 and other liability, hereunder part of the liability connected to wreck removals,22 general average23 and salvage.24 One specif ic third-party liability risk is by tradition covered by hull insurance, and that is liability for collision and striking.25 However, the liability of the hull insurer is limited by an extensive list of exclusions,26 including exclusion for pollution risk.27 Also, this risk is as a starting point covered for an amount similar to the sum insured under the hull insurance.28 If the liability exceeds this amount, the difference is covered by hull interest insurance within the sum insured under this insurance.29 Any amount exceeding this value is covered by P&I insurance.30

14 NP ch. 16. 15 NP Cl. 16–1 sub-clause 1. 16 NP Cl. 4–1 cf. Cl. 2–2. 17 NP Cl. 2–2 sub-clause 1. 18 NP Cl. 14–2. This insurance may, similarly to hull interest insurance, only be effected with 25% of the sum insured under the ordinary hull insurance, cf. NP Cl. 14–4, and further Wilhelmsen and Bull, Handbook on Hull Insurance, 381–82. 19 GR R 27–33, Falkanger et al., Scandinavian Maritime Law, 685. 20 GR R 34–35, Falkanger et al., Scandinavian Maritime Law, 685–86. 21 GR R 38, Falkanger et al., Scandinavian Maritime Law, 687. 22 GR R 40, Falkanger et al., Scandinavian Maritime Law, 687. 23 GR R 41, Falkanger et al., Scandinavian Maritime Law, 687. 24 GR R 42, Falkanger et al., Scandinavian Maritime Law, 687. 25 NP ch. 13. 26 NP Cl. 13–1 (a) – (j). 27 NP Cl. 13–1 (f). 28 NP Cl. 13–3. 29 NP Cl. 14–1 (b). 30 GR R 36–37, Falkanger et al., Scandinavian Maritime Law, 686.

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Summary A casualty occurring in polar waters may trigger hull insurance and loss-of-hire insurance in case of damage to the ship, hull insurance, hull interest insurance and freight interest insurance in case of total loss, hull insurance, hull interest insurance and P&I insurance in case of collision and P&I insurance in case of all other types of liability, contractual and non-contractual. Any limitations in the cover related to the polar trade will depend on the regulation of the scope of cover and duties of the assured under the contracts (cf. the following sections).31

The Polar Code Introduction The Polar Code32 is developed to supplement existing IMO instruments in order to “increase the safety of ships’ operation and mitigate the impact on the people and environment” in the remote, vulnerable and potentially harsh polar waters.33 The PC consists of a preamble, an introduction and two main parts. The preamble contains general statements regarding the overarching objectives and purpose of the Code. The relationship between additional safety measures and the protection of the environment is that “any safety measure taken to reduce the probability of an accident, will largely benef it the environment.”34 The PC contains one part on safety provisions for ships (Part I-A) and one part on environmental provisions (Part II-A). The IMO’s Marine Safety Committee (MSC) adopted the safety-related provisions of the Code in November 2014,35 whereas the IMO’s Marine Environment Protection Committee (MEPC) adopted the environmental regulations in May  2015.36 Part I-A on Safety Measures is included in the SOLAS Convention37 Chapter XIV: Safety measures for ships operating in polar waters.38 Part II-A on Pollution Prevention Measures is adopted through amendments in MARPOL39 Annexes I, II, IV and V.40

The PC Part I-A as Implemented in SOLAS The application of the PC Part I-A is regulated by SOLAS Chapter XIV Regulation 2. According to subclause 1, the chapter applies to “ships operating in polar waters, certif ied in accordance with chapter 1”. The concept of “polar waters” is def ined in Regulation 1, subclause 4, as “Arctic waters and/or the Antarctic area.” Subclause 2 def ines the “Antarctic area” as the “sea area south of latitude 60° S.” The def inition of Arctic waters in subclause 3 is much more detailed, but a useful simplif ied description is that it refers mainly to all areas north of latitude 60ʹN, except for those where ice

31 See the sections “The Signif icance of the PC for Cover According to the NP” and “The PC and P&I Insurance.” 32 Marine Environment Protection Committee (MEPC) 68/21Add.1 Annex 10 (PC). 33 PC Preamble 1. 34 PC Preamble 5. 35 Resolution MSC.385(94). 36 MEPC.264(69). On the legal history, see Øystein Jensen, “The International Code for Ships Operating in Polar Waters: Finalization, Adoption and Law of the Sea Implications,” Arctic Review on Law and Politics 7, no. 1 (2016): 61 ff. 37 International Convention for the safety of life at sea, 1974, as amended (SOLAS 1974). 38 Resolution MSC.386(94), adopted by MSC, November 21, 2014, entered into force January 1, 2017. 39 International Convention for the Prevention of Pollution from Ships of November 2, 1973, as amended in 1978. 40 MEPC.265(68), Jensen, “The International Code for Ships Operating in Polar Waters,” 60–61.

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is not present.41 Here it should be noted that the PC applies to the sea areas adjacent to Svalbard, Norway’s remote Arctic archipelago, visited by many cruise liners every year.42 The Code’s application is also limited to ships certif ied in accordance with SOLAS chapter 1. SOLAS applies as a main rule only to ships on “international voyages,”43 which is a “voyage from a country to which the present Convention applies to a port outside such country, or conversely.”44 According to SOLAS Chapter XIV, Regulation 3, ships to which the chapter applies, “shall comply with the requirements of the safety-related provision of the introduction and with part I-A of the Polar Code.” The actual safety measures are regulated by Part I-A. According to Chapter 1.3 of Part I-A, “Every ship to which the code applies shall have on board a valid Polar Ship Certif icate” (1.3.1) “issued after an initial or renewal survey” (1.3.2). Chapter 2 of Part I-A then provides rules on a polar water operational manual that shall include information on the ship’s specif ic capabilities and limitations (2.2.2) and be carried onboard (2.3.1). Chapters 3–12 contain regulations on ship structure, subdivision and stability, watertight and weathertight integrity, machinery installations, f ire safety and protection, life-saving appliances and arrangements, safety of navigation, communication, voyage planning, and manning and training. In general, the regulations start with “goal” and “functional requirements” and continue with detailed technical regulations.

The PC Part II-A as Implemented by MARPOL The environmental provisions in Part II-A of the Code are implemented by amending four different annexes of MARPOL (i.e. Annexes I–V corresponding to the f ive chapters in the Code, discussed further here). The changes have taken the form of amendments of the wording to various regulations and adding or replacing some paragraphs. Contrary to the new SOLAS chapter XIV, there is no overarching chapter concerning the scope of application, and therefore, 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 scope of the new provisions are def ined, in terms of geographical area and which ships the rules apply to.45 The PC Part II-A has f ive chapters that regulate different types of pollution: “Prevention of pollution from oil” (ch. 1), “Control of pollution by noxious liquid substances in bulk” (ch. 2), “Prevention of pollution by harmful substances carried by sea in packaged form” (ch. 3), “Prevention of pollutions by sewage from ships” (ch. 4) and “Prevention of pollution by garbage from ships” (ch. 5). The structure is different compared to the party relating to safety. 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 def initions.46 In Arctic waters, any discharges into the sea of oil or oily mixtures from any ship are prohibited.47 The same holds true for discharge of noxious liquid substances, or mixtures containing such

41 Jensen, “The International Code for Ships Operating in Polar Waters,” 65. See also the map. 42 Ibid., 69. 43 SOLAS chapter I, Part A, Regulation 1, litra a. 44 SOLAS chapter I, Part A, Regulation 2, litra d. 45 Jensen, “The International Code for Ships Operating in Polar Waters,” 67. All the annexes are posted at www.marpol training.com/MMSKOREAN/MARPOL/intro/index.htm. 46 Ibid., 69. 47 PC Part II-A 1.1.1.

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substances.48 The prohibition relating 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 PC provides for additional and separate regulations with regard to the Arctic49 and the Antarctic.50 Chapter  1 also contains structural requirements for category A  and B ships constructed after January 1, 2017, in relation to oil fuel tanks, cargo tanks utilised to carry oil, and protection of the tanks.51

The Signif icance of the PC for Cover According to NP Introduction and Overview The PC applies to ocean-going vessels that are insured according to NP (ch. 12–14) and offshore units insured according to NP (ch. 18). As a starting point, it will not apply to f ishing vessels insured according to NP (ch. 17).52 The Nordic insurance system makes a distinction between the objective scope of cover and the regulation of duty of disclosure and due care. The regulation of these issues in NP is general and, therefore, applies to all the types of insurances that are relevant in this context (i.e. hull, hull interest, freight interest and loss-of-hire insurance).53 The expression “scope of cover” refers to the def inition of which perils the insurance covers, how these perils must materialise in order to trigger liability for the insurer, what losses are covered and the question of causation.54 This regulation appears not to be influenced by the PC. Marine risk insurance according to NP is based on the all-risk principle, which means that the insurance covers all perils to which the interest may be exposed, except for certain def ined exclusions.55 The starting point, therefore, is that a vessel sailing in polar waters is fully covered for any peril threatening in these areas, including ice. The other set of provisions concerns rules on duty of disclosure and due care.56 Whereas the rules on scope of cover regulate objective circumstances, i.e. circumstances where the acts or omissions of the assured have no influence, the rules on duty of disclosure and due care concern duties of the assured and the person effecting the insurance, and the consequences of a breach of these duties. Contrary to the objective scope of cover, the issue here is thus how the acts or omissions of the assured or the person effecting the insurance or persons that may be identif ied with these influence the right to compensation. The duties of disclosure and due care concern two different situations: f irstly, when the insurance contract is negotiated and, secondly, during the period when the insurance is running. The latter group is the relevant group here and may be divided into four sets of rules, concerning alteration of risk, safety regulations, duty of notif ication and duty to avert or minimise loss, and casualties caused negligently or intentionally by the assured. In relation to the Polar Code, two set of rules are

48 49 50 51 52 53 54 55 56

PC Part II-A 2.1.1. PC Part II-A 5.2.1. PC Part II-A 5.2.2. PC Part II-A 1.2.1–1.2.4. SOLAS chapter I, Part A, Regulation 3. Cf. NP part I, ch. 2 and 3. Cf. Wilhelmsen and Bull, Handbook on Hull Insurance, 78–79. NP Cl. 2–8. Cf. Wilhelmsen and Bull, Handbook on Hull Insurance, 146–48.

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particularly relevant. The f irst is the regulation of alteration of risk in regard to trading areas. The second is the safety regulations.

Trading Areas Trading areas are regulated by NP Cl. 3–15, which reads as follows: The ordinary trading area under the insurance comprises all waters, subject to the limitations laid down in the Appendix to the Plan as regards conditional and excluded areas. The person effecting the insurance shall notify the insurer before the vessel proceeds beyond the ordinary trading area. The insurer may consent to trade outside the ordinary trading area and may require an additional premium. The insurer may also stipulate other conditions which shall constitute safety regulations, cf. Cl. 3–22 and Cl. 3–25, sub-clause 1. The vessel is held covered for trade in the conditional trading areas, but if damage occurs while the vessel is in a conditional area with the consent of the assured and without notice having been given, the claim shall be settled subject to a deduction of one fourth, maximum USD 200,000. The provision in Cl. 12–19 shall apply correspondingly. If claims arising out of ice damage are a result of the assured’s failure to exercise due care and diligence, further reduction of the claim may be made based on the degree of the assured’s fault and the circumstances generally. If the insurer has been duly notif ied in accordance with sub-clause 1 of trade within the conditional trading areas, the insurance remains in full force and effect, subject to compliance with conditions, if any, stipulated by the insurer. If the vessel proceeds into an excluded trading area, the insurance ceases to be in effect, unless the insurer has given his consent in advance, or the infringement was not the result of an intentional act by the master of the vessel. If the vessel, prior to expiry of the insurance period, leaves the excluded area, the insurance shall again come into effect. The provision in Cl. 3–12, sub-clause 2, shall apply correspondingly. According to this provision, the trading area is divided into three areas. The f irst area is def ined as the ordinary trading area, where the vessel is free to sail. The second area is the conditional trading area, where the vessel may sail, but sailing into this area must be notif ied to the insurer, who may claim an additional premium and may also stipulate special safety regulations. The insurance continues to be in effect, however, even if the assured fails to provide the required notif ication, but if damage occurs, this will trigger an extra deductible to be applied. The third area is the excluded trading area. If the vessel sails into this area, the insurance ceases to be in effect unless the insurer is notif ied beforehand. The appendix to the Plan contains a more detailed def inition of the trading areas and also includes maps demonstrating the limits of the areas. The excluded areas are outlined in Map No. 1: As a general rule, the waters def ined in SOLAS as Arctic and Antarctic waters will fall within the excluded areas in the Plan. Consequently, the insurances contained in the NP will not cover the areas regulated by the Polar Code. However, the assured may keep the insurance intact when sailing in these waters if he has permission from the insurer. There is no specif ic regulation in the NP on this issue, but one of the main marine insurers in Norway, the Norwegian Hull Club, permits trading in the Northern Sea Route (NSR) on certain conditions. 680

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681 Map 40.1  Map over excluded and conditional trading areas

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The NSR is def ined as follows: The NSR is the sea route def ined under Russian Federal Law as: “the water area adjacent to the Northern coast of the Russian Federation, comprising the internal sea waters, the territorial sea, the adjacent zone and the exclusive economic zone of the Russian Federation and conf ined in the East with the Line of Maritime Demarcation with the United States of America and Cape Dezhnev parallel in Bering Strait, with the meridian of Cape Mys Zhelania to the Novaya Zemlya Archipelago in the West, with the eastern coastline of the Novaya Zemlya Archipelago and the western borders of Matochkin Strait, Kara Strait and Yugorski Shar.” When permitting trading in this area, the insurer asks for both additional premium and an additional ice deductible. The general deductible for the vessel may also be increased. Further, the assured is asked to conf irm the following requirements: • ice class – equivalent to DNV 1A; • conf irmation of icebreaker assistance in place; • documentation/conf irmation that all necessary permissions from relevant authorities have been given; • if possible, conf irmation of agreement with local salvors (e.g. Atomflot in Russia) – and their responsibility in case of towing/salvage. The insurer will also insert certain subjectivities/warranties: • subject to compliance with requirements, recommendations and regulations of local authorities in respect of navigating in ice. In addition, the insurer may also insert special safety regulations for sailing in Arctic and Antarctic waters. The question is, however, to what extent the regulation in the PC has status as a safety regulation according to NP, without any individual agreement.

Safety Regulations To What Extent Does the PC Have Status as a Safety Regulation? Safety regulations in the context of marine insurance means that the assured has to comply with certain requirements aimed at reducing the risk for a casualty. The relevant provisions in the Plan are NP Cl. 3–22 to Cl. 3–28. Cl. 3–22 sub-clause 1 def ines the concept of a safety regulation according to the Plan: Clause 3–22. Safety regulations A safety regulation is a rule concerning measures for the prevention of loss, issued by public authorities, stipulated in the insurance contract, prescribed by the insurer pursuant to the insurance contract, or issued by the classif ication society.

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The provision does not def ine the actual regulations that the assured has a duty to comply with but rather points out what kind of public or other regulations constitute a safety regulation according to NP.57 A f irst condition is that there must be “a rule concerning measures for the prevention of loss.” The formulation “prevention of loss” must be interpreted as loss under the type of insurance covered by the Plan, i.e. loss of or damage to the vessel and loss of income caused by this. The Preamble 1 of the PC states, The International Code for Ships Operating in Polar waters has been developed to supplement existing IMO instruments in order to increase the safety of ships’ operation and mitigate the impact on the people and environment in the remote, vulnerable and potentially harsh polar waters. The purpose “to increase the safety of ships’ operation” is obviously relevant to the kind of insurance regulated here. On the other hand, the purpose of mitigating the impact on the people and environment is not relevant in relation to hull and loss-of-hire insurance. However, NP Cl. 3–22 does not require that the sole purpose of the regulation is to prevent loss. If the regulation pursues several purposes, it will suff ice that one of these purposes is to prevent casualties or mitigate their effect.58 Thus, the provisions in the PC Part I-A will, as a starting point, constitute safety regulations in relation to NP. On the other hand, the prohibition of discharge of oil or other pollutions in Part II-A are not relevant in this context, as this is not a regulation to avoid damage to the vessel. A second condition is that the regulation must be issued by “public authorities.” It is not expressly stated but presumed that the regulation must be binding for the assured.59 The relevant public authorities is therefore as a starting point the flag State of the vessel. Even if SOLAS/PC is signed by Norway, the Code is not binding as such for Norwegian assureds. However, Part I-A of the PC is implemented in Norwegian legislation as a regulation,60 and as such is issued by the relevant “public authorities.” The concept of safety regulation in this context does not constitute any problem with regard to the technical regulations in Part I-A chapters 3–12 concerning ship structure, subdivision and stability, watertight and weathertight integrity, machinery installations, f ire safety and protection, life-saving appliances and arrangements, safety of navigation, communication, voyage planning, and manning and training. The same is true for the rules in 1.3 on certif icate and survey, although here the requirement for causation may raise a problem. The requirement for a Polar Water Operational Manual (PWOM) in chapter 2 is more problematic. The PC requires that the Manual shall include or refer to specif ic procedures to be followed in normal operations (2.2.3), in the event of incidents in polar waters (2.2.4), in the event that conditions are encountered that exceed the ship’s specif ic capabilities (2.2.5) and when using icebreaker assistance (2.2.6). It must also include the methodology used to determine capabilities and limitation in ice (2.3.2) and contain risk-based procedures for several specif ied situations in order to fulf il the functional requirements (2.3.3–2.3.6). The question here is whether the safety regulation is the

57 Ibid., 187. 58 “NP Commentary,” 119; Wilhelmsen and Bull, Handbook on Hull Insurance, 187. 59 “NP Commentary,” 120; Wilhelmsen and Bull, Handbook on Hull Insurance, 187. 60 Forskrift om sikkerhetstiltak for skip som opererer i polare farvann, FOR-2016–11–23–1363, § 2 implements SOLAS ch. XIV and § 3 implements the Polar Code.

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requirement to implement a Manual according to the functional requirements as listed in 2.2 and regulations as listed in 2.3 or whether also the procedures and methodology listed in the Manual constitute a safety regulation. According to the wording of NP Cl. 3–22, the safety regulation is “issued by public authority.” This implies that the safety regulation is the rules in the Code itself, and not the procedures def ined by the assured to be included in the PWOM. This solution is also supported by the Commentary, which includes the following discussion in relation to the status of the ISM Code in regard to Cl. 3–22:61 Under the 2016 amendment of the Plan it was discussed whether individual provisions must be seen as part of the ISM regulation and therefore each provision in the system constitutes a safety regulation. However, as the Safety Management System will contain individual policies, instructions and procedures that may vary substantially between different shipowners, this would put a prudent shipowner with a more detailed system in a worse position with regard to the insurance cover than a shipowner who has chosen a less detailed system. It would be contrary to the goal of the ISM regulation if shipowners were induced to establish a less rigid system in order to prevent the risk of losing their insurance cover due to the breach of a safety regulation. It was consequently agreed that the individual instructions and procedures in the SMS do not constitute a safety regulation according to Cl. 3–22. On the other hand, the duty according to the ISM Code is to “develop, implement and maintain” the Safety Management System. A mere establishment is therefore not enough if the system is not prudently maintained. Further, a repeated breach of the individual instructions or procedures may indicate that the Safety Management System is in reality not implemented or maintained by the management, or that they have failed to supervise the system, cf. further under Cl. 3–25 below. . . . To the extent an individual manual repeatedly is breached by the management, depending on the circumstances in each case such breach may also be considered breach of a safety regulation. The PC prescribes that the Manual must be developed to contain a listed set of procedures and must be carried onboard (2.3.1). There is no specif ic requirement to maintain the Manual, but a risk-based procedure is by nature a dynamic concept that must take into consideration changes in the risk. The recommendations in the Commentary regarding the ISM Code therefore also seem to be relevant for the PWOM. If so, the procedures as such do not constitute a safety regulation according to the NP Cl. 3–22.

Consequences of Breach of the Regulations Introduction Breach of a safety regulation is regulated by NP Cl. 3–25: Clause 3–25. Breach of safety regulations If a safety regulation has been breached, the insurer shall only be liable to the extent that the loss is not a consequence of the breach, or that the assured has not breached the safety regulation through negligence. . . .

61 “NP Commentary,” 121.

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If the breach relates to a special safety regulation laid down in the insurance contract, negligence by anyone whose duty it is on behalf of the assured to comply with the regulation or to ensure that it is complied with shall be deemed equivalent to negligence by the assured himself. The insurer has the burden of proving that a safety regulation has been breached, unless the vessel springs a leak whilst afloat. The assured has the burden of proving that he did not breach the safety regulation through negligence, and that there is no causal connection between the breach of safety regulation and the casualty. According to this provision, the insurer is free from liability if the assured negligently breaches a safety regulation and the breach results in a casualty. The provision raises four issues: the f irst is the requirement for negligence, the second the requirement for causation, the third the burden of proof, and the last of def ining who has the duty to comply with the regulations.

Negligence The insurer may only invoke breach of a safety regulation if the breach is done negligently. The concept of negligence is not def ined in the Plan text or further discussed in the Commentaries in relation to safety regulations. The Commentary to Cl. 3–33 on gross negligence from the assured States, however, that “[o]rdinary negligence occurs when the assured has not acted as a competent and reasonable person would have done in an equivalent situation.”62 This is further developed in the literature with the following remarks:63 If the casualty is caused by a breach of legislation or class regulation, the presumption is that the person responsible for the breach has acted with negligence, in particular if the regulation is aimed at preventing casualties. Such cases would, however, normally all be within the scope of the rules on safety regulation in NP. More relevant circumstances in regard to an evaluation of negligence according to Cl. 3–22 is therefore the risk for the ship being involved in an accident, whether or not this risk was foreseeable for the assured, to what extent the risk could be avoided, and how much time the assured had at his disposal to act. Thus, a breach of a safety regulation provides as a starting point a presumption of negligence, both because there is a breach of a legal rule and because the rule is aimed at avoiding the risk of damage. In order to avoid the breach being negligent, the assured must therefore have an excuse for the breach – for instance, that the risk has been assessed as being less than presumed by the regulation or that there was an acute situation where there was little time to follow a regulation, for instance, on procedures. For requirements to install technical installations, it is more diff icult to envisage an excuse.

Causation The second condition to invoke a breach of a safety regulation is that the loss is a consequence of the breach. This means that the breach must be a necessary condition for the casualty; i.e. if there was no breach, there would be no casualty. According to the wording, it is suff icient that the breach

62 Ibid., 135. 63 Wilhelmsen and Bull, Handbook on Hull Insurance, 206–7.

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is a necessary condition for the casualty, even if other causes also contributed. However, the NP Cl. 2–13 operates with an apportioning rule in case of a combination of causes, and according to the Commentary, this should also be applied in relation to a breach of safety regulations. An example given is where a breach of safety regulation prescribed by national authorities in accordance with the SOLAS Convention is combined with an error committed by a member of the crew.64 If there is a breach of the more technical requirements in the Polar Code, the causation requirement seems fairly straightforward.65 Such a requirement is more diff icult if there is a failure in relation to the implemented Manual or the vessel does not have a valid Polar Ship Certif icate. Even if such failures may create a substantial risk of there being a casualty, it is diff icult to attribute an actual casualty to such a failure. In relation to such rules, it may be argued that a warranty approach constitutes a more eff icient legal tool than the approach of safety regulations.66 This solution is however similar to the solution for the ISM Code.

Burden of Proof Burden of proof is regulated by NP Cl. 3–25 sub-clause 3. According to the f irst sentence, the insurer has the burden of proving that a safety regulation has been breached. Similar to the situation for causation, this may be easy to establish with regard to technical requirements, but more diff icult in relation to the rules on the Manual. The problem is illustrated by the following remarks in the Commentary on the burden of proof with regard to breach of the ISM Code:67 Approval by the vetting authority is strong prima facie evidence that an appropriate system is established. Consequently, the insurer must produce evidence if alleging that the system itself is either inadequate, lacking some essential element or that it has not been properly established within the organisation or on board. More commonly, the issue is whether the system has been followed, monitored and maintained for instance through prudent reporting and evaluation systems. It is not a breach of the ISM Code that the established management system could be improved. One of the reasons why the ISM Code is based on general functional requirements rather than prescriptive rules is that the system shall be able to develop and adapt in light of experience. The discovery of weaknesses that can be improved is evidence of a functioning system. It is important not to compromise this process by fear of the consequences. Loss of insurance cover is such a serious matter that it can only be justif ied when an evaluation of all the evidence shows that the system as such failed either because it was quite inadequate, had not been implemented or had not been followed up at the relevant management level. Applied to the Polar Ship Certif icate and the Manual, it may be argued that if the ship has a valid Polar Ship Certif icate, this creates a presumption that the Manual is in accordance with the Polar Code, even if the insurer can demonstrate that the Manual could be improved.

64 “NP Commentary,” 126, see also Wilhelmsen and Bull, Handbook on Hull Insurance, 119. 65 Cf. “NP Commentary,” 126, in regard to the specif ic duties in the Norwegian Ship Safety and Security Act chapter 3 with accompanying regulations. 66 Wilhelmsen and Bull, Handbook on Hull Insurance, 198, see also “NP Commentary,” 126. 67 “NP Commentary,” 127–28.

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According to sub-clause 3 second sentence, the assured has the burden of proving that he did not breach the safety regulation through negligence and that there is no causal connection between the breach of safety regulation and the casualty. Since negligence with regard to the Manual must be evaluated against the rules on the Manual and not against the individual procedures in the Manual, it will not be suff icient for establishing negligence to show that there is an isolated breach of the procedures. On the other hand, a breach of the procedures may be the result of a negligent failure to supervise the maintenance of and compliance with the Manual.68 The assured will also carry the burden of proof that there is no causative connection between the breach of safety regulation and the casualty. The reason for this is that such regulation is aimed at reducing risk, and a breach will therefore normally raise the risk for a casualty. This again means that causation may be presumed.69

Who Has the Duty to Comply with the Safety Regulations? According to NP Cl. 3–25 sub-clause 1 f irst sentence, the insurer may invoke a breach of a safety regulation by the assured. The assured is the person who has the claim against the insurer in case of loss,70 being normally the owner of the vessel. The shipowner is normally a company, whereas the concept of negligence presumes an assessment of an act or omittance, which must be attributed to a person. The attribution of negligence to a company as the assured therefore necessitates an identif ication of persons acting on behalf of the company. The starting point here is that the shipowner as the assured is identif ied through the rules in company law on who acts on behalf of the company. If the person effecting the insurance or the assured is a limited liability company, actions taken by the management (board of directors/chief executive off icer) of the company will be deemed to be actions of the company itself; the company management is the company.71 In ocean hull insurance, the fault of the assured will often manifest itself by the assured failing to supervise his staff’s compliance with applicable rules. In relation to the Polar Code, there may be fault with regard to implementing or maintaining the Manual, but as mentioned, it may be argued that if the ship has a valid Polar Ship Certif icate, this creates a presumption that the Manual is in accordance with the Polar Code. The assured may, however, be guilty of a failure to supervise that the system is followed. The extent of the assured’s obligation must be determined on a caseby-case basis.72 A more practical situation is that the breach is made by an employee in the company or by another company having been delegated the responsibility for the management of the vessel or for parts of its management. As this breach is not made by the assured, Cl. 3–25 f irst sub-clause is not directly applicable. However, the assured may in certain cases be identif ied with his helpers. Concerning safety regulations, two identif ication rules are relevant. First, NP contains general rules on identif ication, i.e. to what extent the assured can be identif ied with other organisations or persons acting on his behalf. The relevant rule on identif ication of the assured with his servants is Cl. 3–36:

68 Wilhelmsen and Bull, Handbook on Hull Insurance, 199. 69 Ibid., 196. 70 NP Cl. 1–1 (c). 71 “NP Commentary,” 138, Wilhelmsen and Bull, Handbook on Hull Insurance, 211. 72 Wilhelmsen and Bull, Handbook on Hull Insurance, 195, cf. Totsholm, ND 1980.91 (Hålogaland Court of Appeal).

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Clause 3–36. Identif ication of the assured with his servants The insurer may not invoke against the assured faults or negligence committed by the vessel’s master or crew in connection with their service as seamen. The insurer may invoke against the assured faults and negligence committed by any organisation or individual to whom the assured has delegated decision-making authority concerning functions of material signif icance for the insurance, provided that the fault or negligence occurs in connection with the performance of those functions. Sub-clause 1 states that the “insurer may not invoke against the assured faults or negligence committed by the vessel’s master or crew in connection with their service as seamen.” If the master breaches the requirements of the PC as part of his service as seaman onboard, such breach may therefore not be invoked against the assured. On the other hand, a breach made by an organisation or individual to whom the assured has delegated decision-making authority concerning functions of material signif icance for the insurance may be invoked against the assured. The typical example is the use of a management company. As the PC regulates issues of safety and the main goal is to avoid risk, it must be presumed that the responsibility for implementing the Manual, obtaining the Polar Ship Certif icate and complying with the technical regulations in the Code are functions “of material signif icance for the insurance.” However, the assured can only be identif ied with a person having the relevant “authority” and not with an individual who is merely implementing decisions made by his superiors.73 Thus, the assured will be identif ied with a person who is responsible for implementing and maintaining the Manual and the technical measures, but not with an employee who fails to follow the routines in the Manual or in the use of the installations. The second provision is part of the rules on safety regulation in NP. If the insurer includes special safety regulations in the insurance contract, he may also include a wider degree of identif ication, according to Cl. 3–25 sub-clause 2: If the breach relates to a special safety regulation laid down in the insurance contract, negligence by anyone whose duty it is on behalf of the assured to comply with the regulation or to ensure that it is complied with shall be deemed equivalent to negligence by the assured himself. The expression “special safety regulation laid down in the insurance contract” refers to a safety regulation prescribed directly in the NP or in the individual policy.74 As the PC gains status as a safety regulation, through the authorities’ implementation of the Code as Norwegian regulations, it does as a starting point not fall into this category. However, if the insurer refers to the PC as a “special safety regulation according to Cl. 3–25 sub-clause 2” in the individual policy, it will gain status as “regulation laid down in the insurance contract,” with the application of the extended identif ication provision.75 It should be noted that Cl. 3–15 sub-clause 2 on permission to sail outside the ordinary trading area states that the insurer may stipulate conditions which shall constitute safety regulations according to Cl. 3–22 and Cl. 3–25, sub-clause 1, which means that the extended identif ication provision does not apply in this context.76 However, the parties may of course agree to a stricter

73 “NP Commentary,” 144, Wilhelmsen and Bull, Handbook on Hull Insurance, 215–16. 74 “NP Commentary,” 121–22 and 127. See further Wilhelmsen and Bull, Handbook on Hull Insurance, 192–94. 75 “NP Commentary,” 121–22. See further Wilhelmsen and Bull, Handbook on Hull Insurance, 195–96. 76 “NP Commentary,” 108.

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regulation on identif ication within the individual policy.77 The same applies if the insurer similar to NHC includes subjectivities/warranties, as mentioned previously: • Subject to compliance with requirements, recommendations and regulations of local authorities in respect of navigating in ice. If this is included as a warranty, there is no need for identif ication, as any breach may be invoked against the assured. If it is included as a safety regulation pursuant to Cl. 3–15 sub-clause 2, the starting point is that there is no extended identif ication since this provision refers to Cl. 3–25 subclause 1 only, but the insurer may include a reference to sub-clause 2 in order to obtain extended identif ication.

The PC and P&I Insurance P&I insurance covers the assured’s liability against a third party. The insurance follows the underlying liability regulation, which means that a breach of the PC by the shipowner is, as a starting point, not relevant for the insurance cover for the claim. The P&I rules, however, similarly to NP, contain duties for the assured to comply with.78 There is no regulation similar to the NP provisions on trading area. However, it must be presumed that the assured has a duty to disclose the trading area of the vessel when the contract is entered into and that any premium consequences of such trade are taken care of through this regulation.79 Added to this, GR Rule 8 Classif ication and Certif ication of the Vessel states, 1 Unless otherwise agreed in writing, it shall be a condition of the insurance of the Vessel that:  . . . f) the Member shall comply or procure compliance with all statutory requirements of the state of the Vessel’s flag relating to the construction, adaptation, condition, f itment, equipment, manning, safe operation, security and management of the Vessel and at all times shall maintain or procure the maintenance of the validity of such statutory certif icates as are issued by or on behalf of the state of the Vessel’s flag in relation to such compliance.  . . . 3 The Member shall not be entitled to any recovery from the Association in respect of any claim arising during a period when the Member is not fulf illing or has not fulf illed the conditions in Rule 8.1. The expression “statutory requirements of the state of the Vessel’s flag relating to the construction, adaptation, condition, f itment, equipment, manning, safe operation, security and management” obviously includes the PC Part I-A as implemented in Norwegian law. Part II-A on environment

77 Ibid. 78 GR R 6, 7, 8. 79 GR R 6: “The Member shall prior to the conclusion of the contract of insurance make full disclosure to the Association of all circumstances which would be of relevance to the Association in deciding whether and on what conditions to accept the entry.”

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regulation is implemented in Norwegian law through another public regulation.80 As this regulation concerns environmental safety, it appears to be included in the list of statutory requirements to be complied with. This is supported by the Guidance to the rules, which expressly refers to the regulation in SOLAS and MARPOL.81 The assured’s duty is tied to statutory requirements. Similar to what is stated on safety regulations, this implies that the insurer may invoke a breach of the regulation to implement and maintain a Manual but not a breach of the procedures prescribed in the Manual. This is supported by the following statement in the Guidance on non-compliance with the ISM Code:82 However, if the Ship does carry all the required certif icates, but the incident arises as a result of the acts and/or default of the Crew which constitute non-compliance with the regulations for which a certif icate has been issued, the Association is not entitled to deny cover under Rule 8.3., e.g. where the circumstances causing the incident and/or the subsequent handling and reporting of the incident constitute non-compliance with the ISM Code. Apart from this, it does not matter what organisation or person does the breach (“comply or procure compliance”). However, Rule 8.1 f is much stricter against the assured on other aspects, as neither negligence nor causation is a condition.83 According to 8.3, the insurance is suspended when there is a breach of the rules, i.e. there is no cover at all. A cruise vessel sailing in the Northern Sea Route without the required certif icates or the Manual will therefore have no cover for liability to passengers, even if all safety measures concerning passengers are installed and followed. Further, as discharge of oil is prohibited, there will be no cover for liability for oil pollution in this area. However, there are a few exclusions from this prohibition in MARPOL – for instance, if the discharge is necessary in regard to the safety of the ship or to save life at sea or due to damage to the ship in certain conditions.84 On the other hand, it follows from 8.1 that the parties may agree otherwise in writing. The Guidance to Rule 8 offers the following explanation:85 This is an example of the flexibility that is given to the Association pursuant to Rule 2.3 to agree any special conditions that it may consider to be relevant to a particular entry. Therefore, based on its risk assessment of the particular entry, the Association may consider that strict compliance with the provisions of the Rule may not be necessary in particular circumstances. Such flexibility is recognised to be a desirable feature of P&I cover and is mirrored by the provisions of the Pooling Agreement which allow the Association to conf irm in appropriate circumstances that a breach of some or all of such requirements does not constitute a breach of condition. However, the Association will not lightly agree to waive compliance with the requirements of Rule 8 and can be expected to exercise its discretion to the contrary only if the Member can put forward strong and persuasive reasons why it should do so.

80 Forskrift om miljømessig sikkerhet for skip og flyttbare innretninger, FOR-2012–05–30–488, § 19. 81 Williams, Gard Guidance to the Rules, 82. 82 Ibid., 83. 83 Ibid., 78. 84 MARPOL Annex 1 Regulation 4. 85 Williams, Gard Guidance to the Rules, 78.

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Some Reflections This chapter has discussed the signif icance of the Polar Code for the insurance cover for ships sailing in polar waters. As a starting point, the PC has no signif icance for hull and loss-of-hire insurance as these waters are already excluded by the cover through the provisions in NP Cl. 3–15. The risks that have generated the need for the PC are considered too high to be covered under ordinary conditions. Cover according to NP in this area can only be obtained with special permission to sail which will then entitle the insurer to special conditions on premium, deductibles and warranties, and/or safety regulations. In addition, the assured will have to comply with the PC Part I-A as safety regulations. The insurer may not invoke breach of the PC, unless the assured is negligent and there is causation between the breach and the casualty. Further, if the breach is combined with a peril that is covered under the insurance, the insurer may be liable for part of the loss, cf. NP Cl. 2–13. Even if the PC contains strict rules, the duty of the assured is no different from that in relation to other regulations imposed by the Norwegian authorities, and the regulation protects the assured in cases of excusable mistakes and no causation. P&I insurance, on the other hand, applies as a starting point to polar waters, but the insurance conditions contain provisions on compliance with statutory rules, hereunder the PC Part I-A and II-A. The sanction against a breach of the PC is stricter than that of the NP, as there is no requirement for negligence or causation and no partial liability for combined causes. The reason for this difference is that the P&I insurance follows the English warranty approach, whereby compliance with such rules is seen as a strict condition for cover.86 The Nordic tradition with safety regulations is a more assured-friendly approach. A sanction is only invoked to the extent that the breach has actually had consequences for the insurer’s liability. The Nordic view is that this is a more fair and flexible solution.87 From a private governance perspective, it can be noted that the duties of the assured under both NP and the P&I conditions is to comply with statutory provisions and not with the assured’s own procedures established according to the PC. This approach seems convenient according to the remark in the NP Commentary referred to the previous section: It would be contrary to the goal of the ISM regulation if shipowners were induced to establish a less rigid system in order to prevent the risk of losing their insurance cover due to the breach of a safety regulation.88 89 However, it is important to emphasise that the NP Commentary also states that “To the extent an individual Manual repeatedly is breached by the management, depending on the circumstances in each case such breach may also be considered breach of a safety regulation.” The tool for reacting against serious breaches of internal procedures therefore seems to be in place.

86 As regulated by the UK Insurance Contract Act, 2015, c. 4, sec. 10. The difference between the traditional warranty and this regulation is that the insurance is suspended during the breach and not terminated. See on this change Wilhelmsen and Bull, Handbook on Hull Insurance, 32–35. 87 Cf. Trine-Lise Wilhelmsen, “Planen som Nordisk Plan – forholdet til konkurrerende produkter, særlig engelske vilkår,” Marius, no. 525 (2019): 30 ff. 88 “NP Commentary,” 121. 89 See the section “To What Extent does the PC Have Status as a Safety Regulation.”

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INDEX

Note: page numbers in italics indicate figures, those in bold indicate tables, and those with “n” indicate endnotes. A8 see Arctic States (A8) Aarhus Convention see Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) AAT see Australia Antarctic Territory (AAT) ABA see Arctic Biodiversity Assessment (ABA) ABMTs see area-based management tools (ABMTs) ABNJs see areas beyond national jurisdiction (ABNJs) aboriginal subsistence whaling (ASW) 284 – 285 AC see Arctic Council (AC) ACCE Report see Antarctic Climate Change and the Environment Report (ACCE Report) ACGF see Arctic Coast Guard Forum (ACGF) ACIA see Arctic Climate Impact Assessment (ACIA) ACPB see Agreement on the Conservation of Polar Bears (ACPB) ACS see Arctic Council System (ACS) AEC see Arctic Economic Council (AEC) AEPS see Arctic Environmental Protection Strategy (AEPS) affected stakeholders 564, 565, 568, 569, 570 – 572, 575, 577, 579, 580 Agreed Measures for the Conservation of Antarctic Fauna and Flora 181, 254, 502, 503 Agreed Minutes Approach 70 – 71 Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic (NAMMCO Agreement) 286 – 287, 295

Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic see MOSPA Agreement Agreement on the Conservation of Polar Bears (ACPB) 22, 25, 178, 279, 291 – 292 Aichi target 11 221, 222, 230 AIS see automatic identification system (AIS) Alaska Native Claims Settlement Act (ANCSA) 584 Alaska Native Corporations (ANCs) 10, 582 – 595; autochthonous approach to corporate law 584 – 587; chthonic law, role of shareholders in 589 – 590; chthonic law, role of shares in 587 – 588; origins of 583 – 584; reform of existing corporations and 591 – 594; terminology 583 Alders tids Bruk 440 AMAP see Arctic Monitoring and Assessment Programme (AMAP) ambiguity, in regional ATS 131 – 134 ambivalent approach 39; see also bifocal approach AMSA see Arctic Marine Shipping Assessment (AMSA) ANCs see Alaska Native Corporations (ANCs) ANCSA see Alaska Native Claims Settlement Act (ANCSA) Antarctic and Antarctica: baselines in 54 – 61; China and 519 – 525; climate change in, legal and policy responses to 212 – 215; colonisation of 395 – 397; dispute settlement in 165 – 170; environmental impact assessment in 196 – 202; fisheries and CAMLR Convention 264 – 267; institutional-communitarian model for protection of environment 181 – 188; international regulation

692

Index APEIs see areas of particular environmental interest (APEIs) approach voyage 643n64, 644 ArCS see Arctic Challenge for Sustainability (ArCS) Arctic: baselines in 50 – 54; China, investment treaties with States and 613 – 627; China and 513 – 519; China’s investment treaties with States 613 – 627; climate change in, legal and policy responses to 215 – 219; colonisation of 388 – 394; decentralised-relational model for protection of environment 178 – 181; dispute settlement in 160 – 165; environmental impact assessment in 190 – 196; fisheries and CAOF Agreement 267 – 270; genetic resources 596 – 612; international regulation of mineral resources activities in 306 – 309, 313 – 315; Japan and 506 – 511; marine, ISA in 347 – 352; marine, role of ISA in 347 – 352; maritime boundary delimitation in 69 – 78; natural resource development 437 – 455; navigational rights and freedoms in 113 – 119; non-State actors in maritime security in 146 – 149; Northeast and Northwest Passages 116 – 119; partially agreed maritime boundaries in 72 – 76; pinnipeds in 296 – 297; pinnipeds in, legal framework for conservation of 296 – 297; regional agreements and arrangements for MPAs in 226 – 230; regional agreements in global and polar context 128 – 129; shipping 509 – 510, 631 – 645; structure of polar law in 25; traditional maritime security in 144 – 146; Trans-Polar Passage 115 – 116; wilderness protection in 248 – 253 Arctic Biodiversity Assessment (ABA) 280 Arctic Challenge for Sustainability (ArCS) 507 Arctic Circle 20, 249, 304, 513 Arctic Climate Impact Assessment (ACIA) 208 – 209 Arctic Coast Guard Forum (ACGF) 363 Arctic Council (AC) 129, 142, 190; law-making activities, dimensions of 359 – 364; legal nature of 356 – 359; legislative activities of 356 – 365; wilderness protection considered in 251 – 253 Arctic Council System (ACS) 359 – 360 Arctic Economic Council (AEC) 363 Arctic Environmental Protection Strategy (AEPS) 129, 190, 194, 251 Arctic Five 28, 215 – 218, 268 – 269, 271 – 272, 347, 510, 518 Arctic Marine Shipping Assessment (AMSA) 362 Arctic Monitoring and Assessment Programme (AMAP) 20, 208 Arctic Offshore Regulators Forum (AORF) 363 Arctic States (A8) 129, 135, 138, 347n42 Arctic Waters Pollution Protection Act (AWPPA) 85, 86 – 87 ArcticZymes 598 area-based management tools (ABMTs) 221

of mineral resources activities in 309 – 317; Japan and 499 – 506; maritime boundary delimitation in 78 – 83; navigational rights and freedoms in 107 – 112; oil pollution liability for polar shipping 654 – 661; pinnipeds in 295 – 296; polar law in, structure of 23 – 24 (see also Antarctic Treaty System); present and future challenges to current governance of 42 – 45; regional agreements and arrangements for MPAs in 230 – 238; regional agreements and scientific research 134 – 139; State practice in regard to baselines in 60 – 61; territorial claims to 33 – 46; territorial sovereignty in 34, 39, 78, 80, 83, 98, 110, 500; wilderness protection in 248, 253 – 258 Antarctic Climate Change and the Environment Report (ACCE Report) 206, 208, 213 Antarctic Management and Governance (ATME) 213 – 214 Antarctic specially managed areas (ASMAs) 182, 256 – 257, 374, 520 – 523 Antarctic specially protected areas (ASPAs) 182, 255 – 257, 374, 396 – 397, 520 – 523; Guidelines 256 Antarctic Treaty (AT) 33, 123 – 124, 295; Article IX of 367 – 369; consultative meetings 366 – 382; dispute settlement in Antarctica 165 – 167; Japan’s Antarctic policy under 501 – 502; Japan’s involvement in Antarctica before 499 – 500; maritime boundary delimitation in Antarctica and 78 – 79; Secretariat 380 – 381; status of territorial claims to Antarctica according to 38 – 42 Antarctic Treaty Area (ATA) 40, 132 Antarctic Treaty consultative meetings (ATCMs) 22, 23, 100, 129, 166, 181, 182, 197, 206, 212, 213, 230, 257 – 258, 329, 366 – 382, 520 – 523; Antarctic Treaty Secretariat 380 – 381; Article IX of Antarctic Treaty 367 – 369; decision-making process 373 – 376, 374; decision-making requirements 379; as forum of law-making 366 – 382; as international forum 371 – 373; legal effects of wording of recommendation and measures 378 – 380; Multi-Year Work Plans 378; participation 369 – 371; recommendations and measures 376 – 378; Strategic Work Plan 131n59; wilderness protection considered in 257 – 258 Antarctic Treaty consultative parties (ATCPs) 254 Antarctic Treaty Meeting of Experts (ATME) 213 – 214 Antarctic Treaty System (ATS) 3, 22, 23, 42, 96, 130 – 134, 142, 165, 190, 248 – 249, 285, 295, 304, 352, 366 – 367, 397, 513, 519; ambiguity and restraint in regional 131 – 134; climate change and 212 – 215 AORF see Arctic Offshore Regulators Forum (AORF)

693

Index autonomous underwater vehicles (AUVs) 508 AUVs see autonomous underwater vehicles (AUVs) AWPPA see Arctic Waters Pollution Protection Act (AWPPA)

areas beyond national jurisdiction (ABNJs) 191, 229, 230, 265 areas of particular environmental interest (APEIs) 351 Argentina: Antarctic Treaty and 78; Article 36 and 159; ASMA proposal and 522; CLCS submissions and 82, 83; colonisation and 395, 396; continental shelf and 316, 353, 503; EEZs and 97, 110; environmental protection and 187; Intervention Convention and 650; national Antarctic Directorate and 380 – 381; nationally determined contributions (NDCs) and 211; SAR regions and 150; sovereignty dispute between United Kingdom and 80; territorial claims to Antarctica and 35, 63 – 37, 143, 157 Article 98 LOSC 150 Article 234: AWPPA and 86 – 87; Canada NORDREG controversy and 89 – 91; climate change and 94 – 95; IMO Polar Code and 91 – 92; maritime jurisdiction in Antarctica and 95 – 101; Russia and Northern Sea Route legal regime and 92 – 94; UNCLOS III and 87 – 89 Article IX of Antarctic Treaty 367 – 369 ASMAs see Antarctic specially managed areas (ASMAs) ASPAs see Antarctic specially protected areas (ASPAs) ASW see aboriginal subsistence whaling (ASW) AT see Antarctic Treaty (AT) ATA see Antarctic Treaty Area (ATA) ATCM see Antarctic Treaty consultative meeting (ATCM) ATCPs see Antarctic Treaty consultative parties (ATCPs) Athens Convention from 1974 (PAL 1974) 663 – 665 Athens Convention from 2002 (PAL 2002) 663 – 665 ATME see Antarctic Management and Governance (ATME); Antarctic Treaty Meeting of Experts (ATME) ATS see Antarctic Treaty System (ATS) Australia 400, 664; Antarctic Treaty and 78; Article 36 and 159; ATCMs 372; CLCS submissions and 81; colonization and 395, 396; EEZs and 97, 110, 506; environmental protection and 520 – 521, 522; Indigenous Peoples and 416, 420; Japan and 499, 503, 505 – 506; maritime domain awareness (MDA) and 154; maritime entitlements and 81; mineral resource activities and 316; Polar Code and 331, 338, 341; SAR regions and 150; Volga case and 160; wilderness protection and 258 Australia Antarctic Territory (AAT) 61, 98 autochthonous approach 584 – 595 autochthonous Indigenous legal tradition 585 automatic identification system (AIS) 153

background papers (BPs) 375 Bahamas, work injuries under FoCs and 670 Baltic and International Maritime Council (BIMCO) 634 baselines: in Antarctica 54 – 61; Antarctic ice 55 – 57; Antarctic State practice 60 – 61; in Arctic 50 – 54; around icy Antarctic continent, establishing 57 – 60; challenges relating to 47 – 62; challenges relating to definition of 50 – 51; State practice on 51 – 54 BATs see best available techniques (BATs) BBNJ see biodiversity beyond national jurisdiction (BBNJ) BC see black carbon (BC) Belgian thesis 399 BEPs see best environmental practices (BEPs) Bern Convention 287 – 288 best available techniques (BATs) 195 “best efforts” obligations 560 best environmental practices (BEPs) 195 best management practices (BMPs) 292 BIA see Bureau of Indian Affairs (BIA) bifocal approach 39 – 41, 43, 132 – 133 bilateral investment treaties (BITs) 538, 547 BIMCO see Baltic and International Maritime Council (BIMCO) biodiversity beyond national jurisdiction (BBNJ) 125, 222, 512 biofouling 339 – 341 BITs see bilateral investment treaties (BITs) black carbon (BC) 336 – 338 Black Sea case 47n5, 67 BMPs see best management practices (BMPs) bottom-up approach 565, 575, 580 BPs see background papers (BPs) Bunkers Convention 648 burden of proof 686 – 687 Bureau of Indian Affairs (BIA) 583 CAFF see Conservation of Arctic Flora and Fauna Working Group (CAFF) Calanus AS 598 CAMLR Convention see Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) CAMLR Scientific Committee (SC-CAMLR) 265, 274 Canada: Aboriginal rights in 416, 419, 422; Arctic Council and 357; Article 234 and 89 – 91; bilateral investment treaties (BITs) and 619; Canada - Denmark (Greenland) boundaries

694

Index CEP see Committee for Environmental Protection (CEP) cetaceans 283 – 290; Bern Convention 287 – 288; CITES 288 – 289; CMS 289 – 290; ICRW 283 – 285; NAMMCO Agreement 286 – 287; regional agreements 286 – 290; whaling in Southern Ocean 285 – 286 charterparty contracts and clauses for Arctic shipping 631 – 645; see also vessel chartering for Arctic shipping Chile 143 – 144, 150, 157, 333, 370; Antarctic Treaty and 78; Article 36 and 159; baselines and 61; CLCS submissions and 82; colonisation and 395; continental shelf and 316; EEZ claims and 97, 110; environmental protection and 187; SAR regions and 150; territorial claims to Antarctica 35, 36 – 37 China 512 – 526; Antarctica and 519 – 525; Arctic and 513 – 519; Chinese investment as case study 614 – 615; COC for Protection and Management of Dome 522; environmental protection in 514 – 516, 520 – 523; international principles and guidelines 615 – 617; investment treaties with Arctic States 613 – 627; overview and methodological limitations 617 – 620; resources use in 516 – 519, 523 – 525 CHM see common heritage of mankind (CHM) CHRWG see Commission on Human Rights Working Group (CHRWG) chthonic law: Indigenous legal tradition and 585; role of shareholders in 589 – 590; role of shares in 587 – 588 Circumpolar Protected Area Network (CPAN) 227, 252 CITES see Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) claimant State (CS) 5, 8, 33 – 46, 58, 61, 78, 81, 98, 101, 104n4, 107n26, 109 – 110, 132 – 133, 160, 316, 352 – 353, 385, 396 – 397 CLCS see Commission on the Limits of the Continental Shelf (CLCS) climate change 205 – 219; in Antarctic, legal and policy responses to 212 – 215; in Arctic, legal and policy responses to 215 – 219; Article 234 and 94 – 95; international response to 209 – 211; summary of climate impacts 207 Climate Change Response Work Program (CCRWP) 214 Clipper Route 111n66 CMs see conservation measures (CMs) CMS see Convention on the Conservation of Migratory Species of Wild Animals (CMS) CNIIMF see Central Marine Research and Design Institute (CNIIMF)

in Arctic and 73 – 74; colonisation and 390, 397; decolonisation and 399 – 400; Denmark (Greenland) and, partially agreed maritime boundaries in 73 – 74; Ilulissat Declaration and 347; international investment agreements (IIAs) and 620; international law and mutually agreed terms 610; International Seabed Authority (ISA) and 349; languages spoken in 469; memoranda of understanding (MOUs) and 294; mineral resource activities and 305, 307, 315; Nagoya Protocol and 606; NAMMCO and 286; NORDREG controversy 89 – 91; polar bears and 290; Polar Code and 328, 331, 333, 335 – 336, 338; stakeholder consultation and 566; “Statement of the Government of Canada on Indian Policy” 422; Svalbard Treaty and 477; United States and, overlapping maritime claims in 76; wilderness protection in 241, 245, 249 – 250 CAO see Central Arctic Ocean (CAO) CAOF Agreement see Central Arctic Ocean Fisheries Agreement (CAOF Agreement) CAP see Conservation Strategy for the Polar Bear (CAP) Capricorn Greenland Exploration A/S (Capricorn) 551 causation 685 – 686 CBD see Convention on Biological Diversity (CBD) CCAMLR see Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) CCAMLR Ecosystem Monitoring Program (CEMP) 274 CCAS see Conservation of Antarctic Seals (CCAS); Convention for the Conservation of Antarctic Seals (CCAS) CCRWP see Climate Change Response Work Program (CCRWP) CDAs see community development agreements (CDAs) CDEM see construction, design, equipment, manning (CDEM) CEE see comprehensive environmental evaluation (CEE) CEMP see CCAMLR Ecosystem Monitoring Program (CEMP) Central Arctic Ocean (CAO) 76 – 78, 139 – 140, 230, 267, 518 Central Arctic Ocean Fisheries Agreement (CAOF Agreement) 8, 22, 127, 139 – 140, 217 – 218, 263 – 264, 350 – 351, 510, 513, 518; Arctic fisheries and 267 – 270; conservation versus utilisation objectives of 270 – 272; precautionary ecosystem-based management 272 – 273; science in, role of 274 – 275 Central Marine Research and Design Institute (CNIIMF) 506

695

Index Conference of the Parties (COP) 193 – 194, 221 – 222, 225, 293, 371, 599 conservationist approach 214, 280, 501 – 502 conservation measures (CMs) 131 Conservation of Antarctic Seals (CCAS) 279, 367 Conservation of Arctic Flora and Fauna Working Group (CAFF) 216, 227, 252, 280, 362 Conservation Strategy for the Polar Bear (CAP) 291 – 292 conservation versus utilisation objectives 270 – 272 Constitutional Commission; see also Greenland, evolving constitution of: composition and organisation of 467 – 468; scope of work of 466 – 467 Constitution for the Oceans 104n6, 105, 342; see also Law of the Sea (LOSC) construction, design, equipment, manning (CDEM) 490 consultative parties (CPs) 130 continental shelf: delimitation of, beyond 200 M 68 – 69; international regulation of mineral resources activities in 314 – 317; outer, beyond 200 M in Arctic Ocean 348 – 349; outer, beyond 200 M in Southern Ocean 353 – 354 contract law, sustainable development in see sustainable development in contract law Convention 169 (1989) see Indigenous and Tribal Peoples Convention Convention for the Conservation of Antarctic Seals (CCAS) 21, 130 – 131, 169, 181 – 182, 367 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) 152 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) 192 Convention on Antarctic Mineral Resources (CRAMRA) 501 Convention on Biological Diversity (CBD) 124, 190, 193 – 194, 220 – 222, 279, 362, 519, 596, 599; marine mammals in polar regions 282 – 283; Nagoya Protocol and 598 – 601; regional agreements and arrangements for MPAs 225 – 226 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) 191 – 195 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 279; cetaceans 288 – 289; Compliance Mechanism 298n152; polar bears 293 Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) 150 – 151, 326 – 327, 334; STCW Code 150 – 151, 334

coastal States in ice-covered waters: AWPPA and Article 234 86 – 87; Canada NORDREG controversy and Article 234 89 – 91; climate change and Article 234 94 – 95; IMO Polar Code and Article 234 91 – 92; jurisdiction of 84 – 102; maritime boundary delimitation, in Antarctica 79 – 81; maritime jurisdiction in Antarctica and Article 234 95 – 101; Russia and Northern Sea Route Legal Regime and Article 234 92 – 94; UNCLOS III and Article 234 87 – 89 COC see Code of Conduct (COC) Code of Conduct (COC) 522 colonisation, Indigenous Peoples and see Indigenous Peoples, colonisation and colonisation, of Antarctic 395 – 397 colonisation, of Arctic 388 – 394; Arctic expansion 388 – 392; forced relocations 392 – 393; Indigenous occupation, physical and psychological elements of 393 – 394 Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) 182, 214, 232 – 239, 265 – 277, 305, 367, 371, 512 – 513 Commission on Human Rights Working Group (CHRWG) 422 Commission on the Limits of the Continental Shelf (CLCS) 31, 81 – 83, 145, 161, 305, 316, 480 – 481, 503 Committee for Environmental Protection (CEP) 166, 184, 197, 206, 212, 214, 257, 368 – 369, 373, 520 common forest area 450 Common Forest of Inari (case study) 447 – 449, 448 common goods 34, 43n65, 44, 617 common heritage of humankind 43 – 44 common heritage of mankind (CHM) 342, 350 – 351 common jurisdiction 98 – 99 communication, in contract law 559 community development agreements (CDAs) 549 community interests 21, 175, 176, 177, 181, 625 – 626 community objectives in international investment agreements (IIAs) 624 – 626 community research needs and desires 124 COMNAP see Council of Managers of National Antarctic Programs (COMNAP) compensation 542 – 544 comprehensive environmental evaluation (CEE) 199, 200, 256 concessions (mineral licences) 536 – 538 concluded maritime boundaries in Arctic, maritime boundary delimitation in 69 – 72; Denmark (Faroe Islands) – Iceland – Norway: Agreed Minutes Approach 70 – 71; Denmark (Greenland) – Norway (Jan Mayen) 70; Iceland – Norway (Jan Mayen) 69; Norway – Russia 71 – 72

696

Index and 480; decolonisation and 399 – 400; Denmark (Faroe Islands) – Iceland – Norway boundary: Agreed Minutes Approach and 70 – 71; Denmark (Greenland) – Norway (Jan Mayen) boundary and 70; Denmark (Greenland) – Norway (Svalbard) boundary and 72 – 73; Eastern Greenland case and 398; environmental impact assessment and 193; forced relocations and 392; Ilulissat Declaration and 64, 347; International Seabed Authority (ISA) and 349; Legal Status of Eastern Greenland between Norway and 160; marine protected areas (MPAs) and 226; meaningful stakeholder consultation and 565; mineral exploitation and 544, 545 – 546; mineral resources and 305, 307 – 308, 315; Nagoya Protocol and 606, 607, 608, 609, 610; polar bears and 290, 293; Polar Code and 331; sustainable development and 556; Tartupaluk dispute and 164; use and carriage for use of HFO and 335; wilderness protection in 241, 250 Denmark and Greenland, relationship between: current legal framework of 465 – 466; historical evolution of 460 – 465; Norway (Jan Mayen) and, concluded maritime boundaries in 70; Norway (Svalbard) and, partially agreed maritime boundaries in 72 – 73 Denmark (Faroe Islands) – Iceland – Norway, concluded maritime boundaries in 70 – 71 descriptive approaches to stakeholders and stakeholder management 567 – 568 “Diplomatic Note” 94 direct democracy tools 468 discontinuity approach 410, 419, 423 dispute settlement and polar regions 157 – 171; Antarctica 165 – 170; Antarctic Treaty 165 – 167; Arctic 160 – 165; CAMLR 170; CCAS 169; contemporary treaty frameworks 161 – 163; ICJ 159 – 160; LOSC 160; Madrid Protocol 167 – 169; peaceful settlement of international disputes 158 – 160; Protocol on Environmental Protection to the Antarctic Treaty 167 – 169; State practice 164 – 165 distant water fishing (DWF) 517 – 518 doctrine of aboriginal rights 419 doctrine of original land ownership 442 domain awareness (MDA) 152 – 155 due diligence approach 565 – 566 due regard to navigation 85, 88 – 89, 91, 94, 117 – 118, 120 Dundas 553 DWF see distant water fishing (DWF)

Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) 8, 20, 22, 41, 130 – 131, 181 – 182, 212, 263 – 265, 304 – 305, 367, 371, 501, 519; Antarctic fisheries and 264 – 267; conservation versus utilisation objectives of 270 – 272; dispute settlement in Antarctica 170; precautionary ecosystem-based management 272 – 273; regional agreements and arrangements for MPAs 233 – 237; science in, role of 274 – 275 Convention on the Conservation of Migratory Species of Wild Animals (CMS) 283; cetaceans 289 – 290; polar bears 294 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) 254, 310, 520 COP see Conference of the Parties (COP) corporate governance and ANCs see Alaska Native Corporations (ANCs) Council of Managers of National Antarctic Programs (COMNAP) 150, 374 CPAN see Circumpolar Protected Area Network (CPAN) CPs see consultative parties (CPs) CRAMRA see Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) cruise shipping 662 – 673; crew 669 – 673 (see also maritime crew injuries, liability for); passengers 663 – 669 (see also maritime passenger injuries, liability for) CS see claimant State (CS) cultural well-being, contract law and 558 – 559 Danish Parliament (Folketing) 463, 464, 465, 466 data collection approaches 277 decentralised-relational model 176 – 181; compliance procedures 180 – 181; legal framework for protection of Arctic environment 178 – 180 decision-making, in Antarctic Treaty consultative meetings (ATCMs) 373 – 376, 374, 379 decolonisation: incomplete 399 – 402; as statehood 401 – 402; under United Nations 399 – 400; uti possidetis juris 400 – 401 deep seabed, mineral resources activities in 313 – 315 delimitation: of continental shelf beyond 200 M 68 – 69; maritime boundary 66 – 67 delineation 7, 8, 48, 68, 84, 143, 146, 163, 255, 316, 345, 347, 487, 633 Denmark 28, 31, 268, 289, 290, 510, 621; see also Denmark and Greenland, relationship between; Arctic Council and 357; Article 36 and 159; baselines and 52 – 53; Bern Convention and 287; bilateral investment treaties (BITs) and 618; Canada – Denmark (Greenland) boundary and 73 – 74; CLCS submissions and 77 – 78, 145; colonisation and 391, 392, 398; continental shelf

Earth Summit 548n3 EBCME Framework see Enhanced Black Carbon and Methane Emissions Reduction Framework for Action (EBCME Framework)

697

Index EBSAs see ecologically or biologically significant marine areas (EBSAs) ECHR see European Convention on Human Rights and Fundamental Freedoms (ECHR) ecologically or biologically significant marine areas (EBSAs) 226 economic objectives in international investment agreements (IIAs) 620 – 622 ecosystem approach 128, 212, 222, 234, 237, 264, 265, 270, 273, 274, 275, 282, 361, 495, 524 educational initiatives, contract law and 558 EEA see European Economic Area (EEA) EEZ see exclusive economic zone (EEZ) EIA see environmental impact assessment (EIA) employment, contract law and 556 – 557 Enhanced Black Carbon and Methane Emissions Reduction Framework for Action (EBCME Framework) 216 environmental impact assessment (EIA) 7, 131, 182 – 183, 189 – 204, 255 – 257, 308, 451, 533; in Antarctic 196 – 202; in Arctic 190 – 196; case study 200 – 201; discussion 201 – 202; domestic obligations 192 – 193; international obligations 190 – 192, 196 – 198; procedural obligations 193 – 196, 198 – 200; regional obligations 192 – 193, 196 – 198; substantive obligations 193 – 196; wilderness protection considered in 255 – 257 environmental issues, Polar Code and: biofouling 339 – 341; black carbon 336 – 338; IMO 335 – 341; underwater noise 338 – 339; use and carriage for use of HFO 335 – 336 environmental protection: biological diversity in the polar regions by marine protected areas, protection of 220 – 239; China and Antarctica 520 – 523; China and Arctic 514 – 516; climate change and polar regions 205 – 219; environmental impact assessment in polar regions 189 – 204; models on 175 – 188; objectives in IIAs 622 – 624; of Svalbard 485 – 489; wilderness protection in polar regions 240 – 259 Environmental Protocol see Madrid Protocol equidistance approach 74 equidistance line 47, 66, 67, 69 – 76 equidistance/special circumstances rule 66 EU see European Union (EU) European Convention on Human Rights and Fundamental Freedoms (ECHR) 428, 470 European Economic Area (EEA) 307, see European Union (EU) 4, 30, 165, 211, 303 – 304, 479, 606 exclusionary and discriminatory approaches 253 exclusionary approaches 244 exclusive economic zone (EEZ) 42, 47, 84, 125, 147, 268, 479, 503 exploratory fisheries 266, 275 extensionist approach 410

Facilitation Committee (FAL) 326 FAL see Facilitation Committee (FAL) FD see Florianopolis Declaration (FD) feedback management approach 275 Finland 27, 28, 337, 341, 552, 577; AC chairmanship 195; Arctic Council and 357; Article 36 and 159; bilateral investment treaties (BITs) and 618 – 619; Convention on Biological Diversity (CBD) and 606, 607; environmental impact assessment and 193, 195; environmental protection and 514, 515; Honkavaara-Isovaara wind farm and 450; international FSC certificate for 449; mandatory human rights due diligence and 565; mineral resources and 306, 307; Nagoya Protocol and 609, 610; natural resources and 438, 439, 441 – 442; reindeer husbandry law and 444 – 445; Saami identity debate and 446 – 447; Saami land rights in Finnish Lapland 452 – 453; use and carriage for use of HFO and 335; wilderness protection in 241, 249, 250 fisheries, regulation of 263 – 278; Antarctic fisheries and CAMLR Convention 264 – 267; Arctic fisheries and CAOF Agreement 267 – 270; CAMLR Convention and CAOF Agreement in contrast 270 – 275; conservation versus utilisation objectives of 270 – 272; Convention objectives: conservation versus utilisation 270 – 272; precautionary ecosystem-based management 272 – 273; science in, role of 274 – 275 fixed catch limit approach 275 flags of convenience (FoCs) 662 flexible approach 624 Florianopolis Declaration (FD) 284 FoCs see flags of convenience (FoCs) Folketing (Danish Parliament) 463, 464, 465,  466 Forest Stewardship Council (FSC) 448 – 449 Forstanderskaberne 461 FPIC see free, prior and informed consent (FPIC) framework act 532 France 143, 333, 470, 477; Antarctic Treaty and 78, 503; Article 36 and 159; CLCS submissions 82; colonisation and 395, 396; continental shelf and 316; environmental impact assessment and 199, 201; environmental protection and 522; exclusive economic zone (EEZ) 97; Monte Confurco case and 160; territorial claims to Antarctica 33, 34, 37; use and carriage for use of HFO and 335 free, prior and informed consent (FPIC) 570 – 571, 576, 626 freezing approach 40, 108, 109, 502 freight interest insurance 676, 677 FSC see Forest Stewardship Council (FSC) functionalist approach 86 FUND Convention 648 – 650, 651

698

Index Hans Island see Tartupaluk hard-law approach 360 health, contract law and 559 Heard and McDonald Islands (HIMI) 79, 316 – 317 heavy fuel oils (HFOs) 120, 332, 336, 492; use and carriage for use of 335 – 336 “help desk” approach 298 HFOs see heavy fuel oils (HFOs) HIMI see Heard and McDonald Islands (HIMI) historic sites and monuments (HSMs) 182, 376 holistic approach 424 Honkavaara-Isovaara wind farm (case study) 450 – 451 hotel risks 668n31 HRIA see human rights impact assessment (HRIA) HSMs see historic sites and monuments (HSMs) Hudson Greenland A/S 552 human rights impact assessment (HRIA) 575 hydrocarbon development 307, 317

Gard’s Rules (GR) 675 GEF see Global Environment Facility (GEF) gender perspective, in contract law 557 general reports 301 genetic resources, Arctic 596 – 612; Convention on Biological Diversity and Nagoya Protocol 598 – 601; products on market derived from 598; scale of interest in 597 – 598 GHG emissions see greenhouse gas (GHG) emissions Girjas Saami case 424 – 436; centrality of international principles of law for Saami constitutional protection 431 – 433; historical background and facts 425 – 427; key arguments of Girjas Association 427 – 428; Saami right of disposition of wildlife resources according to immemorial prescription 433 – 435; Saami right of disposition of wildlife resources under the Reindeer Husbandry Act 430 – 431; Swedish government’s response 428 – 429; Swedish Supreme Court’s judgement 429 – 436; wider impact of 435 – 436 global commons see common goods Global Environment Facility (GEF) 298 global jurisdiction 98 – 99 “Good Practices for Environmental Impact Assessment and Meaningful Engagement in the Arctic” (Good Practices) 195 – 196, 204 governance approach 206 GR see Gard’s Rules (GR) great whales 283 greenhouse gas (GHG) emissions 515 – 516 Greenland; see also Denmark and Greenland, relationship between: business community in transition 549; Constitutional Commission, composition and organisation of 467 – 468; Constitutional Commission, scope of work of 466 – 467; constitution-making and timing, general choices on 469; evolving constitution of 466 – 473; future towards further independence 473 – 474; Impact Benefit Agreements 548 – 563 (see also sustainable development in contract law); inclusion of citizens in process 468 – 469; linguistic matters 469 – 470; mineral exploitation licenses in 531 – 547; preamble 470 – 471; socio-economic concerns in mining projects 549 – 550; topics of draft constitution 471 – 473; topics of three working groups 473; transparency 469 Greenland Parliament (Inatsisartut) 466, 531, 541, 547 grounding zone 59

IA see Inuit Ataqatigiit (IA) IAATO see International Association of Antarctica Tour Operators (IAATO) IASC see International Arctic Science Committee (IASC) IBA see impact benefit agreement (IBA) IBHR see international bill of human rights (IBHR) ICARP see International Conference on Arctic Research Planning (ICARP) ICC see Inuit Circumpolar Council (ICC) ICCPR see International Covenant on Civil and Political Rights (ICCPR) ice-box technique 108 icebreakers 640 – 642 Iceland 1, 21, 28; ABS legislation and 610; Arctic Council and 357; Article 36 and 159; Bern Convention and 288; bilateral investment treaties (BITs) and 618; climate change and 217; commercial whaling operations 284; Conciliation Commission report and 164; concluded maritime boundaries in Arctic 69 – 71; Constitutional Commission and 468; constitution-making process 469; continental shelf and 315; Convention on Biological Diversity (CBD) and 606; environmental protection and 514, 518; fisheries and 267, 269; Indigenous Peoples and 392, 402; jurisdictional rights in the Arctic and 84; mineral resource activities and 307; nationally determined contributions (NDC) and 211; Spitsbergen Treaty and 73; Trans-Polar Passage and 115; use and carriage for use of HFO and 335; wilderness protection and 241, 249 – 251 ice pilotage 640 – 642 ICES see International Council for the Exploration of the Sea (ICES) ICG see Intersessional Contact Group (ICG)

Handbook: Arctic-Antarctic interface 4; features of 3 – 5; interaction of global, regional, domestic and Indigenous legal regimes 4; private law as part of polar law 4 – 5; Rights of Indigenous Peoples 4 – 5; structure of 6 – 10

699

Index ICJ see International Court of Justice (ICJ) ICRW see International Convention for the Regulation of Whaling (ICRW) ICSU see International Council for Science (ICSU) IEE see initial environmental evaluation (IEE) IGOs see intergovernmental organizations (IGOs) IGY see International Geophysical Year (IGY) I-I Agreement see Inuvialuit-Inupiat Polar Bear Management Agreement in the Southern Beaufort Sea (I-I Agreement) IIAs see international investment agreements (IIAs) IK see Indigenous knowledge (IK) ILBI see international legally binding instrument (ILBI) ILC see International Law Commission (ILC) illegal, unregulated and unreported (IUU) fishing 266, 274 ILO see International Labour Organisation (ILO) Ilulissat Declaration 64, 84, 146, 163, 165, 226, 347, 348, 351 IMMAs see important marine mammal areas (IMMAs) immemorial prescription 433 – 435 IMO see International Maritime Organisation (IMO) impact benefit agreement (IBA) 534, 535, 548 – 563, 577; see also sustainable development in contract law important marine mammal areas (IMMAs) 289 – 290 Inatsisartut (Greenland Parliament) 466, 531, 541, 547 income, insurance against loss of 676 Indian Reorganization Act (IRA) 590 Indigenous knowledge (IK) 124 Indigenous Peoples, colonisation and 385 – 407; Arctic 388 – 394; colonialism and 385 – 387; forced relocations 392 – 393; ILO Convention 169 (1989) 403 – 404; incomplete decolonisation 399 – 402; Indigenous issues at United Nations 403; Indigenous occupation 393 – 394; Indigenous rights as a consolation prize 406; legal theories of colonisation 387 – 388; occupation, bending of theories and 397 – 398; occupation, physical and psychological elements of 393 – 394; UNDRIP 404 – 406 Indigenous Peoples, rights of: colonisation at the poles, incomplete decolonisation and the creation of Indigenous Peoples 385 – 407; discontinuity approach 410, 414 – 419; extensionist approach 410 – 414; Girjas Saami case 424 – 436; human rights 408 – 423; Indigenous Peoples, as actors of polar law 29; interactionist approach 409 – 410, 419 – 423; natural resource development in the Arctic 437 – 455 Indigenous and Tribal Peoples Convention (Convention) 169 404

inflexible approach 43 – 44 information papers (IPs) 375 initial environmental evaluation (IEE) 199 – 200, 256 INSROP see International Northern Sea Route Programme (INSROP) Institute Warranty Limits 637, 639 institutional approach to polar governance 325 – 382; Antarctic Treaty consultative meetings as a forum of law-making 366 – 382; Arctic Council and its legislative activities 356 – 365; IMO and outstanding maritime safety and environmental issues under Polar Code 325 – 341; International Seabed Authority and polar regions 342 – 355 institutional-communitarian model 177 – 178, 181 – 188; compliance procedures 185 – 188; legal framework for the protection of Antarctic environment 181 – 185 instrumental approaches to stakeholders and stakeholder management 567 – 568 Insurancesee Shipping insurance interactionist approach 410, 419, 423 intergovernmental organizations (IGOs) 371 Intergovernmental Panel on Climate Change (IPCC) 205, 208 International Arctic Science Committee (IASC) 138, 506 International Association of Antarctica Tour Operators (IAATO) 522 international bill of human rights (IBHR)  570 International Code of Safety for Ships Operating in Polar Waters see Polar Code International Conference on Arctic Research Planning (ICARP) 138 International Convention for the Prevention of Pollution from Ships (MARPOL Convention) 92, 169, 678 – 679 International Convention for the Regulation of Whaling (ICRW) 279, 283 – 285, 505 International Convention for the Safety of Life at Sea (SOLAS Convention) 92, 150, 326 – 328, 677 – 678 International Convention on Maritime Search and Rescue (SAR Convention) 150 International Council for Science (ICSU) 130 International Council for the Exploration of the Sea (ICES) 138 International Court of Justice (ICJ) 157, 159 – 160 International Covenant on Civil and Political Rights (ICCPR) 408 international disputes, peaceful settlement of 158 – 160; Antarctica 165 – 170; Arctic 160 – 165; ICJ 159 – 160; LOSC 160 international forum, Antarctic Treaty consultative meetings (ATCMs) as 371 – 373 International Geophysical Year (IGY) 129, 500

700

Index Ironbark IBA 554, 556 – 558 Ironbark Zinc Ltd. 552 ISA see International Seabed Authority (ISA) ISPS Code see International Ship and Port Security Code (ISPS Code) ITLOS see International Tribunal for the Law of the Sea (ITLOS) IUCN see International Union for Conservation of Nature (IUCN) IUU fishing see illegal, unregulated and unreported (IUU) fishing IWC see International Whaling Commission (IWC)

International Governmental Panel on Climate Change (IPCC) 519 International Hull Clauses 637 international investment agreements (IIAs) 613 – 627; Chinese investment as case study 614 – 615; community objectives in 624 – 626; economic objectives in 620 – 622; environmental objectives in 622 – 624; international principles and guidelines 615 – 617; overview and methodological limitations 617 – 620; regulatory objectives in 620 – 626 International Labour Organisation (ILO) 403 – 404, 432, 570 – 571, 589 International Law Commission (ILC) 105 international legally binding instrument (ILBI) 133 International Maritime Organisation (IMO) 8, 29, 85, 147, 218, 362, 490, 509; Article 234 and 91 – 92; biofouling 339 – 341; black carbon 336 – 338; environmental issues 335 – 341; habitable environment in life rafts and lifeboats 333 – 334; maritime safety issues 332 – 334; non-SOLAS vessels 332 – 333; non-State actors in maritime security and 150 – 151; seafarer’s training 334; underwater noise 338 – 339; use and carriage for use of HFO 335 – 336 International Navigating Limits 639 International Northern Sea Route Programme (INSROP) 506 international organisations (IOs) 29 – 30, 345 International Polar Year (IPY) 128, 138 International Seabed Authority (ISA) 8, 29, 177, 314, 342 – 355; in marine Arctic, role of 347 – 352; overview 343 – 347; role of, in marine Arctic 347 – 352; in Southern Ocean, role of 352 – 355 International Ship and Port Security Code (ISPS Code) 152 International Tribunal for the Law of the Sea (ITLOS) 27, 67, 153, 160 International Union for Conservation of Nature (IUCN) 221 – 222, 243 International Whaling Commission (IWC) 279, 290, 505 Intersessional Contact Group (ICG) 201 Inuit Ataqatigiit (IA) 546, 553 Inuit Circumpolar Council (ICC) 127 Inuit cosmology 460, 472 Inuvialuit-Inupiat Polar Bear Management Agreement in the Southern Beaufort Sea (I-I Agreement) 294 – 295 IOs see international organisations (IOs) IPCC see Intergovernmental Panel on Climate Change (IPCC); International Governmental Panel on Climate Change (IPCC) IPs see information papers (IPs) IPY see International Polar Year (IPY) IRA see Indian Reorganization Act (IRA)

Japan 498 – 511; Antarctica and 499 – 506; Antarctic policy under Antarctic Treaty 501 – 502; Arctic and 506 – 511; Arctic shipping 509 – 510; basic legal position as non-claimant 502 – 504; conservation and sustainable use of living resources 504 – 506; conservation and sustainable use of marine living resources 510 – 511; formulation of Arctic policy 507 – 508; involvement in Antarctica before Antarctic Treaty 499 – 500; involvement in Arctic before 2010 506; position on legal regime of Arctic Ocean 508 – 509 Japanese Antarctic Research Expedition (JARE) 500 JARE see Japanese Antarctic Research Expedition (JARE) JARPA II 285 – 286, 505 – 506 JCBN see Joint Commission for the Conservation and Management of Beluga and Narwhal (JCBN) JOA see joint operating agreement (JOA) Joint Commission for the Conservation and Management of Beluga and Narwhal (JCBN) 286 joint operating agreement (JOA) 534 Joint Program of Scientific Research and Monitoring (JPSRM) 269, 511 JPSRM see Joint Program of Scientific Research and Monitoring (JPSRM) KGH see Kongelige Gronlandske Handel (KGH) Kongelige Gronlandske Handel (KGH) 460 KPR see Kyushu-Palau Ridge Region (KPR) Kristiania conferences 476 Kyushu-Palau Ridge Region (KPR) 346 Lake Vostok 200, 202 Land-based marine pollution 179 Lapland 438 – 455; see also natural resource development, in Arctic Lapp basis 445 – 446, 455 Lapp Tax Lands 442 – 443 Lapp villages 439 – 444, 440, 446, 454 law enforcement 152 – 155 law-making, ATCMs as forum of 366 – 382 Law of 1908 (Loven af 1908) 461

701

Index Law of 1925 (Loven af 1925) 461 Law of the Sea Convention (LOSC) 7, 21, 42, 47, 64 – 69, 84, 124, 132, 142, 158, 177, 221, 305, 326, 342, 509, 513, 517; application of, to polar regions 104 – 107; Arctic exception of 107; delimitation of continental shelf beyond 200 M 68 – 69; marine mammals 281 – 282; maritime boundary delimitation 66 – 67; mineral resources activities, international regulation of 313 – 317; Modern International Law of the Sea and 65 – 66; peaceful settlement of international disputes 160; regional agreements and arrangements for MPAs 223 – 224; Svalbard and developments in 479 – 485 LEG see Legal Committee (LEG) Legal Committee (LEG) 326 legal regimes governing the polar regions: baselines in polar regions, challenges relating to 47 – 62; dispute settlement and polar regions 157 – 171; ice-covered waters, jurisdiction of coastal states in 84 – 102; maritime boundary delimitation in polar regions 63 – 83; maritime security in polar regions 141 – 156; navigational rights and freedoms in polar regions 103 – 122; polar legal system 17 – 32; scientific research in polar regions 123 – 140; territorial claims to antarctica 33 – 46 legal system, polar law as 25 – 27 liability: Antarctic liability regime 654 – 661; for breach of sustainability requirements 560 – 562; insurance 676; international liability conventions 648 – 654; limitations of 657 – 658; maritime crew injuries, liability for 669 – 673; maritime passenger injuries, liability for 663 – 669; non-shipping incidents 667 – 668; oil pollution liability for polar shipping 646 – 661; PAL 2002 regulations 665; rules on relationship with other conventions on limitation of 658 – 659; strict liability approach 561 lifeboats and life rafts, habitable environment in 333 – 334 liquefied natural gas (LNG) 517 listing approach 287 LNG see liquefied natural gas (LNG) local knowledge 124 LOSC see Law of the Sea Convention (LOSC) Loven af 1908 (Law of 1908) 461 Loven af 1925 (Law of 1925) 461

ecosystem-based conservation and 296; environmental impact assessment in Antarctic and 196 – 202; environmental protection and 26, 101, 166, 175, 182 – 184, 520 – 521; Japan and 501, 502, 503 – 504; LOSC provisions on MSR and 131 – 132; marine protected areas and 231 – 233, 238; Preamble 175; Prohibition of Mineral Resource Activities 310 – 313, 314 – 315, 354 – 355; that scientific and 355; tourism activities and 112; wilderness protection and 254, 255 – 257 Marealis AS 598 marine Arctic, role of International Seabed Authority (ISA) in 347 – 352; activities in the area 350 – 351; marine scientific research 351 – 352; outer continental shelf beyond 200 M in Arctic Ocean 348 – 349 marine biological diversity, protection of 220 – 239; see also marine protected areas (MPAs); concept of MPAs in 221 – 222; international framework for 222 – 226; regional agreements and arrangements for MPAs in Arctic and Antarctica 226 – 238 marine environment of Svalbard, protection of 489 – 496; conservation and management of living marine resources 494 – 496; regulating shipping in waters off Svalbard 489 – 494 Marine Environment Protection Committee (MEPC) 150, 326, 338, 677 marine insurance 10, 636 – 637, 674 – 675, 682 marine living resources, in Japan 510 – 511 marine mammals 279 – 302; CBD 282 – 283; cetaceans 283 – 290; compliance procedures 298 – 301; LOSC 281 – 282; pinnipeds 295 – 297; polar bears 290 – 295 marine protected areas (MPAs) 7 – 8, 215, 276, 505, 512 – 513; in Antarctica 230 – 238; in Arctic 226 – 230; CAMLR Convention 233 – 237; CBD 225 – 226; definitions 221 – 222; general 226; international legal framework for 222 – 223; LOSC 223 – 224; Madrid Protocol 231 – 232; Pan-Arctic Network of 216, 228 – 230; protection of marine biological diversity and use of 220 – 239; regional agreements and arrangements for 226 – 238; relationship between framework of, under Madrid Protocol and CCAMLR/status on MPAs 238 marine scientific research (MSR) 125 – 126, 132, 345; in Arctic Ocean 351 – 352; in Southern Ocean 355 maritime boundary delimitation 63 – 83; Antarctica 78 – 83; Antarctic Treaty 78 – 79; Arctic 69 – 78; Central Arctic Ocean 76 – 78; CLCS submissions, practice in 81 – 83; coastal States in 79 – 81; concluded maritime boundaries in 69 – 72; law of the sea and 64 – 69; overlapping maritime claims in, Canada – Unites States 76; partially agreed maritime boundaries in 72 – 76

Madrid Protocol 7 – 8, 19, 21; annexes 22, 182, 376, 377; Antarctic Treaty Area defined by 132; Antarctic Treaty Consultative Meetings and 368, 369, 373, 376, 377; Antarctic Treaty System and 23 – 24, 130, 519; China and 520 – 521; Committee for Environmental Protection 131, 184; compliance procedures 185 – 188; conduct of scientific activity and 131; dispute settlement in Antarctica 167 – 169;

702

Index maritime crew injuries, liability for 669 – 673; summing up on 672 – 673; work injuries under FoCs, Bahamas and Panama as examples of 670; work injuries under Nordic law, Norway as example of 671 – 672 maritime domain awareness (MDA) 142, 152 – 156 Maritime Labour Convention (MLC) 669 maritime passenger injuries, liability for 663 – 669; leaving cruise ship 668; non-shipping incidents 667 – 668; PAL 2002 regulations 665; regulatory frameworks 663 – 665; shipping incidents 665 – 667; summing up on 668 – 669 maritime perils 665 – 666, 668 Maritime Safety Committee (MSC) 90, 150, 325 – 326, 677 maritime safety issues, Polar Code and: habitable environment in life rafts and lifeboats 333 – 334; IMO 332 – 334; non-SOLAS vessels 332 – 333; seafarer’s training 334 maritime security 141 – 156; Arctic Ocean 144 – 149; IMO Polar Code 150 – 151; law enforcement and MDA 152 – 155; non-State actors 146 – 152; Southern Ocean 143 – 144, 149 – 150; traditional maritime security 143 – 146; transnational criminal activities 151 – 152; transnational criminal activities and, non-State actors and 151 – 152; understanding maritime security 142 – 143 MARPOL Convention see International Convention for the Prevention of Pollution from Ships (MARPOL Convention) material scope of polar law 21 MDA see maritime domain awareness (MDA) meaningful stakeholder consultation 568 – 574; affected stakeholders and rights-holders 570 – 572; engagement and focus 572 – 574; social impact assessment 574 – 581 meeting of the parties (MOP) 371 memoranda of understanding (MOUs) 180 – 181, 294 – 295 MEPC see Marine Environment Protection Committee (MEPC) MEXT see Ministry of Education, Culture, Sports, Science and Technology (MEXT) MFN treatment clause see most-favoured-nation (MFN) treatment clause mineral exploitation licenses, in Greenland 531 – 547; dispute resolution, digressive comment on 545; framework conditions 547; granting mineral licences, regulatory framework for 532 – 536; hybrid legal nature of mineral licences (concessions) 536 – 538; intertemporal legislation 541 – 542; licence terms and parallel regulation 539 – 541; public modifications and position of licensee without BITs 538 – 545; public modifications powers 538 – 539; safeguarding licensee, constraints and compensation in

542 – 544; third-party state intervention, impact of self-government and position of Denmark 545 – 546 mineral resources activities, international regulation of 303 – 319; Antarctica 309 – 317; Arctic 306 – 309, 313 – 315; continental shelf 314 – 317; deep seabed 313 – 315; under global regime of LOSC 313 – 317; under polar regimes 306 – 313 Mineral Resources Authority (MRA) 531, 533 Ministry of Education, Culture, Sports, Science and Technology (MEXT) 507 Ministry of Land, Infrastructure, Transport and Tourism (MLIT) 507 misappropriation 608 MLC see Maritime Labour Convention (MLC) MLIT see Ministry of Land, Infrastructure, Transport and Tourism (MLIT) models on environmental protection 175 – 188; decentralised-relational model 176 – 181; institutional-communitarian model 177 – 178, 181 – 188 Molotov/Arctic Icecap 53 MOP see meeting of the parties (MOP) MOSPA Agreement 20, 22, 25, 27, 31n83, 149, 217, 309, 363 most-favoured-nation (MFN) treatment clause 618 MOUs see memoranda of understanding (MOUs) MPAs see marine protected areas (MPAs) MRA see Mineral Resources Authority (MRA) MSC see Maritime Safety Committee (MSC) MSR see marine scientific research (MSR) mutually agreed terms see genetic resources, Arctic; Nagoya Protocol Nagoya Protocol: CBD and 598 – 601; implementation of, in domestic jurisdictions in Arctic 605 – 608; private international law issues, mutually agreed terms and 608 – 611; private international law relevant to implementation of 602 – 605 NAMMCO see North Atlantic Marine Mammal Commission (NAMMCO) NAMMCO Agreement see Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic (NAMMCO Agreement) National Contact Points (NCPs) 579 nationally determined contributions (NDCs) 210 NATO see North Atlantic Treaty Organization (NATO) naturalness or natural intactness 243, 244, 245, 256, 258 natural resource development, in Arctic 437 – 455; Common Forest of Inari (case study) 447 – 449, 448; historical overview 439 – 447; Honkavaara-Isovaara wind farm (case study)

703

Index 450 – 451; injustices against Saami land rights in Finnish Lapland 452 – 454; interview survey, 1962 445 – 447; land and water rights of Saami in 17th and 18th centuries 441 – 442; report of the committee that prepared first reindeer husbandry law 444 – 445; Saami land law in present-day Sweden 442 – 444; Sokli Mine in Eastern Lapland (case study) 451 – 452 natural resources: China’s investment treaties with the Arctic States 613 – 627; corporate governance and Alaska Native Corporations 582 – 595; meaningful stakeholder consultation and social impact assessment 564 – 581; mineral exploitation licenses in Greenland 531 – 547; mutually agreed terms, Arctic genetic resources and private international law 596 – 612; sustainable development in contract law 548 – 563 Navigation, Communications, Search and Rescue (NCSR) 332 – 333 navigational rights and freedoms 103 – 122; Antarctic 107 – 112; application in practice, in Antarctic 108 – 111; application of LOSC to polar regions 104 – 107; Arctic 113 – 119; Article 234 and 120 – 121; legal conundrum, in Antarctic 108 – 111; Northeast and Northwest Passages 116 – 119; Polar Code 119 – 121; Trans-Polar Passage 115 – 116 NCPs see National Contact Points (NCPs) NCSR see Navigation, Communications, Search and Rescue (NCSR) NDCs see nationally determined contributions (NDCs) NEAFC see North-East Atlantic Fisheries Commission (NEAFC) negligence 685 NEWREP-A see New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A) New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A) 285 – 286, 505 New York Produce Exchange (NYPE) 1946 form 634 New Zealand 335, 341, 370, 400; Antarctic Treaty and 78, 372, 503; Article 36 and 159; CLCS submissions and 82, 316; colonisation of Antarctic 395; decolonisation and 402; environmental protection and 522; on ice shelves in Antarctica 60; Polar Code and 331, 333; Ross Sea MPA and 236; SAR Agreement and 150; territorial claims to Antarctica 37; wilderness protection and 258 NIS see Norwegian International Ship Register (NIS) NLS see noxious liquid substances (NLS) noise, underwater 338 – 339 non-claimed States 33, 38 – 39n37, 39 – 43, 46, 78, 79, 96, 132 – 133, 352 – 353, 500, 502 – 504 non-objection agreements 68

non-SOLAS vessels 332 – 333 NOR see Norwegian Ordinary Ship Register (NOR) Nordic approach 537 Nordic Marine Insurance Plan 2013 Version 2019 (NP or the Plan) 637n33, 674 – 675; burden of proof 686 – 687; causation 685 – 686; duty to comply with the safety regulations 687; negligence 685; NP Cl. 3 – 22 (safety regulations) 682 – 684; NP Cl. 3 – 25 (breach of safety regulations) 684 – 687; NP Cl. 3 – 36 (identification of assured with his servants) 688 – 689; ocean-going vessels insured according to 679 – 684; trading areas 680 – 682, 681 NORDREG see Northern Canada Vessel Traffic Services Zone Regulations (NORDREG) normative approaches to stakeholders and stakeholder management 567 – 568 North Atlantic Marine Mammal Commission (NAMMCO) 279, 286 – 287 North Atlantic Treaty Organization (NATO) 4, 27, 72, 155 North-East Atlantic Fisheries Commission (NEAFC) 267, 272 Northeast Passage 116 – 119 Northern Canada Vessel Traffic Services Zone Regulations (NORDREG) 85, 89 – 91, 101, 102, 118 – 119 Northern Sea Route (NSR) 85, 147, 506, 509, 631, 634 – 635, 680 Northwest Passage (NWP) 116 – 119, 147 Norway: Agreed Minutes Approach 70 – 71; Denmark (Faroe Islands), Iceland and, concluded maritime boundaries in 70 – 71; Jan Mayen and, concluded maritime boundaries in 69, 70; Norway-Russia Joint Fisheries Commission 267; Russia and, concluded maritime boundaries in 71 – 72; Svalbard and, partially agreed maritime boundaries in 72 – 73; work injuries under Nordic law 671 – 672 Norway-Russia Joint Fisheries Commission 267 Norwegian International Ship Register (NIS) 671 Norwegian Ordinary Ship Register (NOR) 671 Norwegian Worker Compensation Act 671 – 673 noxious liquid substances (NLS) 331 NP or the Plan see Nordic Marine Insurance Plan 2013 Version 2019 (NP or the Plan) NSR see Northern Sea Route (NSR) Nuuk Declaration 27 NWP see Northwest Passage (NWP) Nyordningen af 1840 (Reorganisation of 1840) 461 NYPE 1946 form see New York Produce Exchange (NYPE) 1946 form objective approaches 243 ocean acidification 206, 208, 209, 214, 216

704

Index phased approach 337 P&I see protection and indemnity (P&I) pinnipeds 295 – 297; in Antarctica 295 – 296; in Arctic 296 – 297 polar-bear-range States (PBRSs) 134 – 135 polar bears 290 – 295; ACPB 291 – 292; CITES 293; CMS 294; MOUs 294 – 295; Polar Bears Agreement 22, 25, 178; US/Russia bilateral agreement 292 – 293 Polar Bears Agreement see Agreement on the Conservation of Polar Bears (ACPB) Polar Code 325 – 341; Article 234 and 120 – 121; biofouling 339 – 341; black carbon 336 – 338; brief description 328 – 332; environmental issues, IMO and 335 – 341; habitable environment in life rafts and lifeboats 333 – 334; maritime safety issues, IMO and 332 – 334; navigational rights and freedoms 119 – 121; non-SOLAS vessels 332 – 333; seafarer’s training 334; underwater noise 338 – 339; use and carriage for use of HFO 335 – 336 polar law 1 – 11; in Antarctic, structure of 23 – 24; Arctic-Antarctic interface in Handbook 4; as burgeoning discipline 3; emergence of 1 – 2; features of Handbook 3 – 5; global perspective on 5 – 6; interaction of global, regional, domestic and Indigenous legal regimes in Handbook 4; private law as part of polar law in Handbook 4 – 5; Rights of Indigenous Peoples in Handbook 4 – 5; structure of Handbook 6 – 10 polar legal system 17 – 32; actors of polar law 28 – 30; Antarctic law (Antarctic Treaty System) 23 – 24; Arctic law 25; challenges of polar law 30 – 31; functions of polar law 22 – 23; Indigenous Peoples and 29; international organisations and 29 – 30; material scope of polar law 21; polar law as a legal system 25 – 27; private actors and 30; scope of polar law 18 – 22; spatial scope of polar law 18 – 21; States and 28; structure of polar law 23 – 27 polar resource management: fisheries, regulation of 263 – 278; marine mammals 279 – 302; mineral resources activities in the polar regions, international regulation of 303 – 319 polar science: Antarctic regional agreements and scientific research 130 – 139; Arctic and Antarctic regional agreements in global and polar context 128 – 129; ATS 130 – 134; in CAMLR Convention and CAOF Agreement in contrast 274 – 275; global components of the legal regime for 124 – 128; introduction to 123 – 124; science-dependent agreements, early 134 – 135; scientific research 123 – 140 Polar Water Operational Manual (PWOM) 330, 683 – 684 Pollution Prevention and Response (PPR) 335, 337, 340 – 341 Polyarny Glacier 53

Offshore Oil and Gas Guidelines 195, 304, 308, 359, 361 oil pollution liability for polar shipping 646 – 661; Antarctic liability regime 654 – 661; applicability in polar coastal areas 648 – 651; applicability in polar high seas 651 – 654; basis for liability and responder immunity 656 – 657; claims procedure 656; international liability conventions 648 – 654; limitations of liability and insurance 657 – 658; main rules 654 – 655; overview 647; rules on relationship with other conventions on limitation of liability 658 – 659; special rules on relationship with other conventions on limitation of liability 659 – 660; uniform liability law for Antarctica 660 – 661; what can be claimed 655 – 656 online reporting system (ORS) 301 OPEC see Organization of Oil Producing Countries (OPEC) OPOs see Persistent Organic Pollutants (POPs) Organization of Oil Producing Countries (OPEC) 309 ORS see online reporting system (ORS) Outside Working Group (OWG) 328 overlapping maritime claims in Arctic, Canada – Unites States 76 OWG see Outside Working Group (OWG) PA see preliminary assessment (PA) PAL 1974 see Athens Convention from 1974 (PAL 1974) PAL 2002 see Athens Convention from 2002 (PAL 2002) PAL 2002 regulations 665 PAME Working Group see Protection of Arctic Marine Environment (PAME) Working Group Panama, work injuries under FoCs and 670 Pan-Arctic Network of Marine Protected Areas (MPAs) 216, 228 – 230 Paris Agreement on Climate Change (Paris Agreement) 44, 209 – 211, 216, 219, 300, 306, 317, 362, 516, 519, 548 partially agreed maritime boundaries in Arctic 72 – 76; Canada – Denmark (Greenland) 73 – 74; Denmark (Greenland) – Norway (Svalbard) 72 – 73; Russian Federation – United States 75 – 76 Part II-A (Pollution Prevention Measures) 150 partners, in contract law 557 – 558 PBRSs see polar-bear-range States (PBRSs) PCBs see polychlorinated biphenyls (PCBs) PCIJ see Permanent Court of International Justice (PCIJ) PEIA see preliminary EIA (PEIA) Permanent Court of International Justice (PCIJ) 160 – 161 permanent participants (PPs) 357 Persistent Organic Pollutants (POPs) 361 – 362

705

Index research and monitoring plan (RMP) 525 resources use, in China: Antarctica and 523 – 525; Arctic and 516 – 519 restraint, in regional ATS 131 – 134 Revised Rules of Procedure 187 – 188 Reykjavik Declaration 26, 27 RFMO see regional fisheries management organisation (RFMO) RFMO/A see regional fisheries management organisations and arrangement (RFMO/A) RHA see Reindeer Husbandry Act (RHA) riders 634 RMP see research and monitoring plan (RMP) Ross Sea MPA 183, 215, 236, 237, 505 Russia: Northern Sea Route legal regime, Article 234 and 92 – 94; Norway and, concluded maritime boundaries in 71 – 72; Norway-Russia Joint Fisheries Commission 267; polar bears, US/ Russia bilateral agreement and 292 – 293; Russian Federation – United States, partially agreed maritime boundaries in 75 – 76

polychlorinated biphenyls (PCBs) 247 PPR see Pollution Prevention and Response (PPR) PPs see permanent participants (PPs) precautionary approach 128, 184, 189 – 190, 194, 218, 229, 230, 234, 272 – 273, 282, 344, 494, 495, 496, 524 – 525, 526 precautionary ecosystem-based management 272 – 273 preliminary assessment (PA) 199 preliminary EIA (PEIA) 195 preservationist approach 280 private actors, of polar law 30 private governance 3, 9, 10, 663, 691 private law 5, 9, 430 – 431, 536, 545, 553, 563, 596, 608, 633 proactive approach 142, 149, 526 protection and indemnity (P&I) 636, 689 – 690 Protection and Management of Dome 522 Protection of Arctic Marine Environment (PAME) Working Group 195, 227, 252, 361 – 362 Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol) see Madrid Protocol public participation 191 – 194, 549, 565, 576 – 578, 580, 581 PWOM see Polar Water Operational Manual (PWOM)

Saami: Girjas Saami case 424 – 436; homeland 446, 451, 452; land and water rights in 17th and 18th centuries 441 – 442; land law in present-day Sweden 442 – 444; land rights in Finnish Lapland, injustices against 452 – 454 Saami Parliament Act 445 – 447, 451, 455 safety regulations in context of marine insurance 682 – 689; breach of 684 – 687; identification of assured with his servants 688 – 689; overview 682 – 684 SAR see search and rescue (SAR) SAR Convention see International Convention on Maritime Search and Rescue (SAR Convention) Sassumap Arnaa 472 SATCMs see special Antarctic Treaty consultative meetings (SATCMs) Sápmi 388, 390, 407 SCA see Science Cooperation Agreement (SCA); Scientific Cooperation Agreement (SCA) SCAR see Scientific Committee on Antarctic Research (SCAR) SC-CAMLR see CAMLR Scientific Committee (SC-CAMLR) SCIC see Standing Committee on Implementation and Compliance (SCIC) Science Cooperation Agreement (SCA) 127 Scientific Committee on Antarctic Research (SCAR) 128, 206, 258, 372 Scientific Cooperation Agreement (SCA) 135 – 139 Scientific Cooperation in the Arctic (SCTF) 135 scientific research 123 – 140; Antarctic regional agreements and scientific research 134 – 139; Antarctic Treaty System 130 – 134; Arctic and Antarctic regional agreements in global and polar

quantitative approaches 246 rare earth elements (REEs) 552 – 553, 556 REEs see rare earth elements (REEs) regal doctrine 442 regional agreements, Antarctic and 134 – 139; Antarctic Treaty System 130 – 134; Arctic Scientific Cooperation Agreement 135 – 137; early science-dependent agreements 134 – 135; in global and polar context 128 – 129; multiple actors, institutions and instruments of Arctic science governance 137 – 139 regional environmental management plan (REMP) 351 regional fisheries management organisation (RFMO) 524 regional fisheries management organisations and arrangement (RFMO/A) 267, 511 reindeer herding 390, 424 – 426, 434 – 437, 441, 443 – 445, 447, 450 – 453, 453, 455, 578 – 579 Reindeer Herding Act 445, 447 reindeer husbandry: Girjas Saami case 424 – 427, 429, 432, 435, 436; Saami land rights 437 – 455 Reindeer Husbandry Act (RHA) 425, 430 – 431, 443, 444 – 445 REMP see regional environmental management plan (REMP) Reorganisation of 1840 (Nyordningen af 1840) 461

706

Index context 128 – 129; Arctic Scientific Cooperation Agreement 135 – 137; early science-dependent agreements 134 – 135; in global and polar context 128 – 129; global components of the legal regime for polar science 124 – 128; introduction to polar science 123 – 124; multiple actors, institutions and instruments of Arctic science governance 137 – 139 SCM see special consultative meeting (SCM) scope of cover 677, 679 SCTF see Scientific Cooperation in the Arctic (SCTF) SDC see Ship Design and Construction (SDC) SDGs see Sustainable Development Goals (SDGs) SDWG see Sustainable Development Working Group (SDWG) SEA see strategic environmental assessments (SEA) seafarer’s training 334 search and rescue (SAR) 667 Secretariat, Antarctic Treaty 380 – 381 secretariat papers (SPs) 374 – 375 sectorial approach 223 self-determination 8 – 9, 385 – 386, 399 – 401, 406 – 407, 412 – 414, 417, 420, 421 – 422, 426, 432, 435 – 436, 459, 464 – 466, 473 SFPZ see Svalbard Fisheries Protection Zone (SFPZ) Ship Design and Construction (SDC) 339 shipping: charterparty contracts and clauses for Arctic shipping 631 – 645 (see also vessel chartering for Arctic shipping); cruise 662 – 673; insurance and Polar Code 674 – 691; oil pollution liability for 646 – 661; sea routes in Japan 509 – 510 shipping, Polar Code and 677 – 691; breach of regulations, consequences of 684 – 689; Part I-A as implemented in SOLAS 677 – 678; Part II-A as implemented by MARPOL 678 – 679; P&I Insurance and 689 – 690; safety regulations 682 – 689; significance of, for cover according to NP 679 – 684 shipping insurance 674 – 677; insurance against loss of income 676; legal sources 674 – 675; liability insurance 676; loss of or damage to vessel 675 Ship Safety Act (SSA) 490 Ship Systems and Equipment (SSE) 333 – 334 Shirase, Nobu 498, 499 short-lived climate pollutants (SLCPs) 516 SIA see social impact assessment (SIA) singular legislation 544 size 243, 244 – 245, 248, 250, 258 SLCPs see short-lived climate pollutants (SLCPs) small-scale exploration and exploitation of minerals 533 Snow, Water, Ice and Permafrost in the Arctic Report (SWIPA) 209 social impact assessment (SIA) 192 – 193, 203, 533, 550, 570, 574 – 581

social sustainability impact assessments 575 – 576 social well-being, contract law and 558 – 559 soft-law approach 239, 260, 363 SOI MPA see South Orkney Island MPA (SOI MPA) Sokli glades 451 Sokli Mine in Eastern Lapland (case study) 451 – 452 SOLAS Convention see International Convention for the Safety of Life at Sea (SOLAS Convention) solitude 240, 243 – 244, 246 – 247, 250, 258 South China Sea arbitration 224, 483 Southern Ocean: activities in area of 354 – 355; marine scientific research 355; non-State actors in maritime security in 149 – 150; outer continental shelf beyond 200 M in Southern Ocean 353 – 354; role of ISA in 352 – 355; traditional maritime security in 143 – 144; whaling in 285 – 286 South Orkney Island MPA (SOI MPA) 235 spatial scope of polar law 18 – 21 special Antarctic Treaty consultative meetings (SATCMs) 368 special consultative meeting (SCM) 310 special issues: China and polar regions 512 – 526; Greenland, evolving constitution of 459 – 474; Japan and polar regions 498 – 511; Svalbard 475 – 497 Special Report on the Ocean and the Cryosphere in a Changing Climate (SROCCC) 205, 206, 209, see special safety regulation laid down in the insurance contract 685, 688 Spitsbergen, treaty concerning archipelago of 477 – 485; see also Svalbard Treaty SPs see secretariat papers (SPs) SROCCC see Special Report on the Ocean and the Cryosphere in a Changing Climate (SROCCC) SSA see Ship Safety Act (SSA) SSE see Ship Systems and Equipment (SSE) stakeholder: concept 567 – 568; consultation, meaningful (see meaningful stakeholder consultation); involvement approach 566 – 568 Standing Committee on Implementation and Compliance (SCIC) 24 State-based non-judicial remedy institutions 579 State-centric approach 43n65 statehood, decolonisation as 401 – 402 “Statement of the Government of Canada on Indian Policy” 422 State practice, dispute settlement in Arctic and 164 – 165 States, as actors of polar law 28 STCW see Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) STCW Code 150 – 151, 334

707

Index New Sweden Company 390; Peace Treaty of Hamina and 439; reindeer husbandry conditions in 444 – 445; Saami case and 424 – 436; Saami land law in 442 – 444; Svalbard Treaty 477; use and carriage for use of HFO 335; wilderness protection in 241, 249, 250 Swedish Supreme Court, in Girjas Saami case judgement 429 – 436 SWIPA see Snow, Water, Ice and Permafrost in the Arctic Report (SWIPA)

Stockholm Convention on Persistent Organic Pollutants (POPs) 361 – 362 strategic environmental assessments (SEA) 191 – 192 strict liability approach 561 SUA Convention see Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) Subcommittee on Pollution Prevention and Response (PPR) 335, 337, 340 – 341 Sub-Committee on Ship Design and Construction (SDC) 339 Sub-committee on Ship Systems and Equipment (SSE) 333 – 334 subcontractors, in contract law 557 – 558 subsoil licences 533 success syndrome 203 Sustainable Development Goals (SDGs) 221, 554 – 555, 566 sustainable development in contract law 548 – 563; see also impact benefit agreement (IBA); as “best efforts” obligations 560; communication and 559; educational initiatives and 558; employment and 556 – 557; enforcing 562 – 563; gender perspective and 557; as guiding principle for interpretation 555; health and 559; liability for breach of sustainability requirements 560 – 562; as objective of 554 – 555; projects 550 – 553; social and cultural well-being and 558 – 559; structure 553 – 554; subcontractors and partners and 557 – 558; as substantial requirement 555 – 559 Sustainable Development Working Group (SDWG) 358 Svalbard 475 – 497; developments in LOSC and 479 – 485; environment, protection and preservation of 485 – 486; environmental policies for 486 – 489; marine environment, protection of 489 – 496; protection and preservation of 485 – 486; sovereignty and retained rights 476 – 485; treaty concerning archipelago of Spitsbergen 477 – 485 (see also Svalbard Treaty) Svalbard Environmental Protection Act 487 – 489 Svalbard Fisheries Protection Zone (SFPZ) 479 – 485 Svalbard Treaty 477 – 485; full and absolute sovereignty 478; peaceful utilisation 479 – 485; preserving rights from terra nullius regime 478 – 479 Sweden 28, 159, 163, 357; China’s bilateral investment treaties (BITs) with 618 – 619; compliance with EU environmental standards 193; Convention on Biological Diversity (CBD) and 606, 607; environmental code 578; environmental protection in 514 – 515; forced relocations and 392; Kristiania conferences 476; land and water use rights 439 – 442, 447, 452; mineral resources in 307; Nagoya Protocol and 609, 610; North American trade through

Tanbreez IBA 554, 555, 557, 558, 562 Tanbreez Mining Greenland A/S 552 – 553 Tartupaluk (Hans Island) 52, 73, 164, 402 Taxed Mountain Case 442n12, 443 Tax Lands 442 – 443 TCC see Technical Cooperation Committee (TCC) Technical Cooperation Committee (TCC) 326 TEIA see transboundary environmental impact assessment (TEIA) terra nullius 478 – 479 territorial claims, to Antarctica 33 – 46; origin of 34 – 38; present and future challenges to current governance of Antarctica 42 – 45; status of, according to Antarctica Treaty 38 – 42 territorial sea baselines 48, 60, 61 territorial sovereignty, in Antarctica 34, 39, 78, 80, 83, 98, 110, 500 theoretical approaches 386n8, 536 Third UN Conference on the Law of the Sea (UNCLOS III) 85, 87 – 89, 342 three-stage approach 47n5, 67, 69 TLK see traditional and local knowledge (TLK) TNG see True North Gems Greenland (TNG) TNG IBA 552, 554, 555 – 558, 560, 561 top-down approach 575, 577 tourism 112 trade measures, defined 298n152 trading areas 680 – 682, 681 traditional and local knowledge (TLK) 136 transboundary environmental impact assessment (TEIA) 189 – 190 transnational criminal activities 151 – 152 Trans-Polar Passage 115 – 116 True North Gems Greenland (TNG) 551 two-step approach 360, 467 UAVs see underwater autonomous vehicles (UAVs) UDHR see Universal Declaration of Human Rights (UDHR) unclaimed sector 33n3, 314, 397 UNCLOS III see Third UN Conference on the Law of the Sea (UNCLOS III) UN Conference on Environment and Development 548

708

Index Universal Declaration of Human Rights (UDHR) 408 Uranium Agreement 544 urminnes hävd 440 uti possidetis juris 400 – 401

UN Declaration on the Rights of Indigenous Peoples (UNDRIP) 125, 386, 404 – 406, 408, 432, 570 – 571 underwater autonomous vehicles (UAVs) 126 underwater noise 338 – 339 undevelopedness 243, 244, 246, 247 UNDRIP see UN Declaration on the Rights of Indigenous Peoples (UNDRIP) UNECE see UN Economic Commission for Europe (UNECE) UN Economic Commission for Europe (UNECE) 191 UN Environment Programme (UNEP) 245 UNEP see UN Environment Programme (UNEP) UNFCCC see UN Framework Convention on Climate Change (UNFCCC) UN Framework Convention on Climate Change (UNFCCC) 124 – 125, 208, 209 – 210, 516 UN General Assembly 105, 342, 399 – 400, 403, 404 – 405, 421, 422, 501 UNGPs see UN Guiding Principles on Business and Human Rights (UNGPs) UN Guiding Principles on Business and Human Rights (UNGPs) 565 United Kingdom 33, 553, 610; Antarctic Treaty and 78, 380 – 381; Arctic expansion and 390, 392, 395 – 397, 400; Article 36 and 159; Article 234 and 97; baseline claims 51; CLCS submissions and 82 – 83; continental shelf and 316; environmental protection and 522; Falklands War between Argentina and 157; joint inspection report of 187; ratification of the Intervention Convention 649 – 650; sovereignty dispute between Argentina and 79; territorial claim in Antarctica and 108, 143 – 144; territorial claims to Antarctica 34, 37, 38 United Nations: Convention on the Law of the Sea (LOSC) (see Law of the Sea Convention (LOSC)); decolonisation under 399 – 400; Indigenous issues at 403; UNDRIP 404 – 406 United States: Canada and, overlapping maritime claims in 76; “Diplomatic Note” 94; Russia bilateral agreement on polar bears 292 – 293; Russian Federation and, partially agreed maritime boundaries in 75 – 76

vessel, loss of or damage to 675 vessel chartering for Arctic shipping 632 – 645; icebreakers and ice pilotage 640 – 642; ice clauses 643 – 645; insurance obligations and navigating limits 636 – 640; routes and safe ports 638 – 640; vessel characteristics, classification and certificates 635 – 636; weather-related delays 642 – 643 vessel-source marine pollution 179, 180, 327 warranty approach 686, 691 weather-related delays, in Arctic shipping 642 – 643 WGIP see Working Group on Indigenous Populations (WGIP) whaling in Southern Ocean 285 – 286 Whaling in the Antarctic case 159 – 160, 285, 505, 506 wilderness protection 240 – 259; in Antarctic 248, 253 – 258; approaches to 249 – 251; in Arctic 248 – 253; in ATCM measures and related debates 257 – 258; common effort by Arctic Council 251 – 253; in context of EIA and area protection 255 – 257; distinctive features of polar wilderness 244 – 248; wilderness defined by common characteristics 242 – 244 wilderness value 154, 255, 256 Working Group on Indigenous Populations (WGIP) 421 working papers (WPs) 374 workers’ compensation 671 – 673 World Summit on Sustainable Development (WSSD) 524 World Trade Organisation (WTO) 6, 296 WPs see working papers (WPs) WSSD see World Summit on Sustainable Development (WSSD) zonal approach 223 Zooca 598

709