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Governing the Arctic: Is the Arctic Council going global?

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Abstract

This article explores the possibility for an Arctic Council (AC) that would a have global voice, achieved through multilateral engagements. The number of observers, including non-Arctic states, has grown robustly in recent years, yet the structure of the Council does not allow for an increase in its membership. The present structure does not afford particularly extensive engagement for actors other than members, a shortcoming which hampers “effective inclusiveness” and a global orientation. We examine the roles and functions of the AC, as well as its structural expansions, to identify gaps that could be filled by accommodating multilateralism in its structure. Improvements in the position of the non-Arctic states as observers were proposed in 2015 in the addendum to Observer Manual 2013, signaling a willingness on the part of the Council to accommodate the voices of other actors. We argue that this trend will spark a trend enabling greater engagement by global actors. In assessing the future direction of the Council, we argue that what he have termed “effective inclusiveness” would offer a suitable mechanism for governing a globalized Arctic and thus making the AC a stronger global forum, one in which actions achieve greater global legitimacy.

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Notes

  1. The Arctic Council is a high-level intergovernmental initiative that addresses common issues and concerns faced by Arctic governments and indigenous peoples of the High North. It is the most active intergovernmental forum concerned with the Arctic, and the only one to include all eight Arctic nations: Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden, and the United States. The Arctic Council is primarily concerned with the promotion of environmental protection and sustainable development of the region.

  2. Fisher, J. A., et al., Factors Driving Mercury Variability in the Arctic Atmosphere and Ocean Over the Past 30 Years, 27 Global Biogeochem Cycles 1226–1235, 1227 (2013).

  3. Nadezhda Filimonova & Svetlana Krivokhizh, How Asian Countries are Making their Way Into the Arctic, The Diplomat, Oct. 29, 2016, http://thediplomat.com/2016/10/how-asian-countries-are-making-their-way-into-the-arctic/.

  4. Kai Sun, China and the Arctic: China’s Interests and Participation in the Region, in East Asia-Arctic Relations: Security and International Politics 4 (Kimie Hara & Ken Coates eds., CIGI, 2013).

  5. These traditional freedoms include navigation, overflight, laying of submarine cables and pipelines, construction of artificial islands and other installations, fishing and scientific research. These are known as the six freedoms of the high seas. See United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 87 (hereinafter UNCLOS).

  6. See, e.g., Id., art. 88.

  7. Id., art. 117.

  8. Non-ice-capped areas in the Arctic Ocean include The Banana Hole and Loophole in the Norwegian and Barents Seas, respectively; and the Donut Hole in the Bering Sea.

  9. Kristin Bartenstein, Commonality and Arctic Governance: Global and Regional Perspectives, 1 China Oceans L. Rev. 486 (2015).

  10. UNCLOS, art. 90.

  11. Id., art. 234.

  12. Albert Buixade Farre, et al., Commercial Arctic Shipping Through the Northeast Passage: Routes, Resources, Governance, Technology, and Infrastructure, 37 Polar Geography 298, 299(2014).

  13. Arild Moe, International Use of Northern Sea Route – Trends and Prospects, in Asian Countries and the Arctic Future 109 (Leiv Lunde et al. eds., 2016).

  14. Trude Pettersen, Northern Sea Route traffic plummeted, Barents Observer, Dec. 16, 2014, http://barentsobserver.com/en/arctic/2014/12/northern-sea-route-traffic-plummeted-16-12.

  15. In 2013, 40 vessels traveled eastbound carrying 895,000 tons in cargo and 6,000 tons of ballast. In contrast, the 31 westbound vessels carried 460,000 tons of cargo and 500,000 tons of ballast. See Northern Sea Route Traffic Mostly One-Directional, World Maritime News, Nov. 3, 2014, http://worldmaritimenews.com/archives/142034/northern-sea-route-traffic-mostly-one-directional/. It is also significant that of the 73 vessels that have passed through the NSR, 46 were operating under Russian flag. See NSR Transit 2013, Northern Sea Route Information Office, http://www.arctic-lio.com/docs/nsr/transits/Transits_2013_final.pdf.

  16. List of NSR Transit Voyages in 2014 Navigational Season, Northern Sea Route Information Office, http://www.arctic-lio.com/docs/nsr/transits/Transits_2014.pdf.

  17. Vessels Transited NSR in 2015, Northern Sea Route Information Office, http://www.arctic-lio.com/docs/nsr/transits/Transits_in_2015.pdf.

  18. Transit Statistics, Northern Sea Route Information Office, http://www.arctic-lio.com/nsr_transits#.

  19. “Arctic passages are nearly 2,000–3,500 nautical miles shorter than the customary sea routes from Chinese coastal ports to the east coast of North America, and reduce the length of customary routes from ports north of Shanghai to the ports of western Europe, the North Sea and the Baltic Sea by 25 to 55 percent”. See Kai Sun, China and the Arctic: China’s Interests and Participation in the Region, in East Asia-Arctic Relations: Boundary, Security And International Politics, CIGI 5 (Kimie Hara & Ken Coates eds., 2013). The NSR shortens the sea route from Hamburg to Yokohama to 40% of the traditional route via Suez. See Fujio Ohnishi, The Process of Formulating Japan’s Arctic Policy: From Involvement to Engagement, in East Asia-Arctic Relations: Boundary, Security and International Politics, CIGI 4 (Kimie Hara & Ken Coates eds., 2013).

  20. “It is suggested that the NSR will cut the time by a maximum of 10 days and, will reduce fuel costs by 25 percent”. See Young Kil Park, Arctic Prospects and Challenges from a Korean Perspective, in East Asia-Arctic Relations: Boundary, Security and International Politics, CIGI 2 (Kimie Hara & Ken Coates eds., 2013).

  21. Zou Leilei & Huang Shuolin, A Comparative Study of the Administration of the Canadian Northwest Passage and the Russian Northern Sea Route, in Asian Countries and the Arctic Future 123 (Leiv Lunde et al. eds.,2016).

  22. Shiloh Rainwater, International Law and the “Globalization” of the Arctic: Assessing the Rights of Non-Arctic States in the High North, 30 Emory International L. Rev. 128 (2015).

  23. According to the US Geological Survey (USGS), the Arctic is estimated to have up to 90 billion barrels of oil and 1,669 trillion cubic feet of natural gas.

  24. Michael T. Geiselhart, The Course Forward for Arctic Governance, 13 Washington University Global Studies L. Rev. 155, 162 (2014).

  25. Iselin Stensdal, Arctic Mining: Asian Interests and Opportunities, in Asian Countries and the Arctic Future 155 (Leiv Lunde et al. eds., 2016).

  26. Yang Jian, Introduction, in Asian Countries and the Arctic Future 3 (Leiv Lunde et al. eds., 2016).

  27. Id., at 5.

  28. The Ilulissat Declaration, May 28, 2008.

  29. Id. at 2.

  30. Id.

  31. Although the coastal states have a right to exploit living resources, such as fishing, in the EEZs, they also have a duty to maintain a proper conservation and management strategy based on best available scientific assessments and to promote sustainable resource utilization. In regard to promoting conservation, where fish stocks, for example, occur in two or more coastal states’ EEZs or beyond in the adjacent areas, UNCLOS requires the parties to cooperate either directly or through appropriate regional or sub-regional organizations. A similar approach both within and beyond the EEZ is also endorsed in the context of highly migratory species, such that states cooperate either directly or through appropriate organizations; where no such organization exists, coastal states are to cooperate to establish one. See UNCLOS, arts. 61-64.

  32. Id., art. 6(1)(b)(iii).

  33. Id., art. 234.

  34. According to article 77(1) of UNCLOS, coastal states exercise sovereign rights over the continental shelf “for the purpose of exploring it and exploiting its natural resources”. Id., art. 77(1).

  35. Conference of the Parties to the Convention on Biological Diversity, Marine and Coastal Biological Diversity, Kuala Lumpur, Malaysia, Feb. 9–20, 2004, Decision VII/5, UNEP/CBD/COP/DEC/VII/5, https://www.cbd.int/decision/cop/default.shtml?id=7742. In the broadest sense, a marine protected area can be defined as any area of the coastal zone or open ocean with some level of protection conferred for the purpose of managing the use of resources and ocean space, or protecting vulnerable or threatened habitats and species. See Tundi Spring Agardy, Marine Protected Areas and Ocean Conservation 99 (1997). The most frequently used definition, however, is that of the International Union for the Conservation of Nature (IUCN), which states: “Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment.” See Timo Koivurova, Governance of Protected Areas in the Arctic, 5 UTRECHT L. REV. 44, 45 (2009).

  36. Julian Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the IMO’s Particularly Sensitive Sea Area Concept 30 (2007).

  37. Pursuant to these articles, states are to take “all measures” necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened, or endangered species and other forms of life. Id., at 32.

  38. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, adoption Nov. 13, 1972, 138 U.N.T.S. 1977.

  39. International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 1340 U.N.T.S. 184, modified by the Protocol of 1978 and by the Protocol of 1997.

  40. 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation, Nov. 30, 1990, 1891 U.N.T.S. 51 (entered into force May 13, 1995).

  41. Adopted within the framework of the International Maritime Organization (IMO), the Polar Code offers amendments to Annexes I, II, IV, and V of MARPOL, and a new Chapter XIV within the framework International Convention for the Safety of Life at Sea (SOLAS). The measures in the Polar Code are in effect from 2017 and focus on safe vessel operation and protection of the marine environment in polar waters. International Code for Ships Operating in Polar Waters (Polar Code), IMO Doc. MSC. 385 (94) (Nov. 21, 2014), http://www.imo.org/en/MediaCentre/HotTopics/polar/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf.

  42. See Erik J. Molenaar & Alex G. Oude Elferink, Marine Protected Areas in Areas Beyond National Jurisdiction - The Pioneering Efforts under the OSPA Convention, 5 Utrecht L. Rev. 14 (2009).

  43. Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic (May 15, 2013) [hereinafter Oil Spill Agreement], http://arctic-council.org/eppr/agreement-on-cooperation-on-marine-oil-pollution-preparedness-and-response-in-the-arctic/.

  44. Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 1989 U.N.T.S. 309 (entered into force Sept. 10, 1997).

  45. The applicability of these instruments to hydrocarbon activities offers room for adopting precautionary measures to minimize the adverse consequences for the marine environment.

  46. See generally The Agreement between Denmark, Finland, Iceland, Norway, and Sweden concerning Cooperation in Measures to Deal with Pollution of the Sea by Oil or Other Harmful Substances, Mar. 29, 1993; Agreement for Cooperation Relating to the Marine Environment, Aug. 26, 1983; the 1974 Agreement Relating to the Establishment of Joint Pollution Contingency Plans for Spills of Oil and Other Noxious Substances (Canada and the United States); the 1989 Agreement between the United States and the Soviet Union concerning Cooperation in Combating Pollution in the Bering and Chukchi Seas in Emergency Situations; the 1994 Agreement between the Government of the Kingdom of Norway and the Government of the Russian Federation on Cooperation and Response to Oil Pollution in the Barents Sea.

  47. Most of the Arctic states are parties to all of these instruments.

  48. Cecile Pelaudeix, What is “Arctic Governance”? A Critical Assessment of the Diverse Meanings of “Arctic Governance”, in 6 Y.b. Polar L. 422 (Gudmundur Alfredsson & Timo Koivurova eds., 2014).

  49. Yoshinobu Takei, The Role of the Arctic Council from an International Law Perspective: Past, Present and Future, in 6 Y.b. Polar L. 355 (Gudmundur Alfredsson, Timo Koivurova and Hjalti Omar Agustsson eds., 2014).

  50. The Geopolitics of the Arctic: Commerce, Governance and Policy, (Institute for Defence Studies and Analyses, Sept. 23-24, 2013).

  51. Arctic Athabaskan Council (AAC), Aleut International Association (AIA), Gwich’in Council International (GCI), Inuit Circumpolar Council (ICC), Saami Council, and the Russian Association of Indigenous Peoples of the North (RAIPON).

  52. Gordon Foundation & Arctic Council Indigenous Peoples’ Secretariat, A Guide to the Arctic Council 5, Oct. 2015, http://gordonfoundation.ca/sites/default/files/publications/A%20Guide%20to%20the%20Arctic%20Council_20160303.pdf.

  53. These six WGs are Arctic Monitoring and Assessment Program (AMAP), Arctic Contaminants Action Program (ACAP), Conservation of Arctic Flora and Fauna (CAFF), Emergency Prevention, Preparedness and Response (EPPR), Protection of the Arctic Marine Environment (PAME), Sustainable Development Working Groups (SDWG). See Id., at 11.

  54. Arctic Council, Task Forces of the Arctic Council, Aug. 17, 2016.

  55. Yoshinobu Takei, supra note 49, 359.

  56. Gordon Foundation & Arctic Council Indigenous Peoples’ Secretariat, supra note 52.

  57. Arctic Council, Observer Manual for Subsidiary Bodies, May 15, 2013.

  58. Id., at 9.

  59. Arctic Council, Observers, May 7, 2015.

  60. Arctic Council, supra note 57, at 3.

  61. Arctic Council, Arctic Council Rules of Procedure, 14, May 15, 2013.

  62. Arctic Council, supra note 57, at 5.

  63. Id., at 7.

  64. Id., at 9.

  65. Olav Schram Stokke, Can Asian Involvement Strengthen Arctic Governance? in Asian Countries and the Arctic Future 57 (Leiv Lunde et al. eds., 2016).

  66. Sebastian Knecht, Procedural Reform at the Arctic Council: The Amended 2015 Observer Manual, 52 Polar Record 601, 602 (2016).

  67. Piotr Graczyk, Observers in the Arctic Council – Evolution and Prospects, 3 Y.B. Polar L. Online 575, 609 (2011).

  68. Arctic Council, Addendum to the Observer Manual for Subsidiary Bodies, Oct. 20-22, 2015, https://oaarchive.arctic-council.org/bitstream/handle/11374/939/EDOCS-3020-v1B-Observer-manual-with-addendum-finalized_Oct2016.PDF?sequence=8.

  69. Id., at 9.

  70. Knecht, supra note 66.

  71. Id., at 603.

  72. Arctic Council, supra note 68, at 13.

  73. Filimonova & Krivokhizh, supra note 3.

  74. Knecht, supra note 66, at 604.

  75. Shiloh Rainwater, International Law and the “Globalization” of the Arctic: Assessing the Rights of Non-Arctic States in the High North, 30 Emory Int’l L. Rev. 131 (2015).

  76. See Sect. 2 of this article for a detailed discussion.

  77. Bartenstein, supra note 9.

  78. Admission of new members – China, South Korea and Japan together with India, Singapore and Italy – in the observer category in the year 2013 “signals the legitimacy of non-Arctic states’ interests in the Arctic region”. See Rainwater, supra note 75, 147.

  79. Geiselhart, supra note 24, at 167.

  80. Andreas Østhagen, The European Union – An Arctic Actor? 15 J. Military & Strategic Stud. 71, 82 (2013).

  81. Filimonova & Krivokhizh, supra note 3.

  82. For example, many of the current Observer states have made extensive contributions indeed to Arctic governance through scientific research and institutional reforms at their domestic level, as well as through bilateral cooperation with the Arctic states. For instance, as far back as 1973, Japan established the National Institute of Polar Research, an inter-university research institute, which in turn established the Arctic Environment Research Center (AERC) in 1990. The Ministry of Foreign Affairs of Japan established the Arctic Task Force in 2010; and on the bilateral level, the International Northern Sea Route Program serves as an example of cooperation between Japan, Russia and Norway. See Ohnishi, supra note 19, at 173-177; amongst the Asian countries, China has been heavily engaged at the level of both scientific research and commercial activities. China “had conducted a total of five Arctic scientific expeditions by the end of 2012, and over the next three to four years three Arctic research expeditions are planned. It has established a research station – Huang He Zhan – in Svalbard, Norway and it has plans to build a new 8000-ton ice breaker in addition to its current vessel, the Xuelong-Snow Dragon, to cruise the Arctic region to conduct various expeditions”. See Brianna Wodiske, Preventing the Melting of the Arctic Council: China as a Permanent Observer and What It Means for the Council and the Environment, in 36 Loy. L.A. Int'l & Comp. L. Rev. 305, 318 (2014).

  83. Oran R. Young, Adaptive Governance for a Changing Arctic, in Asian Countries and the Arctic Future 16 (Leiv Lunde et al. eds., 2016).

  84. Kaisa Pulkkinen, The Arctic Council and the Northeast Asian Observers, 23 Ulbrief 5 (2013).

  85. Id., at 6.

  86. Pelaudeix, supra note 48, at 403.

  87. Geiselhart, supra note 24, at 176.

  88. Bartenstein, supra note 490.

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Authors and Affiliations

  1. Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, Rovaniemi, Finland

    Kamrul Hossain

  2. Swansea University, Swansea, UK

    Marija Mihejeva

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  1. Kamrul Hossain
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  2. Marija Mihejeva
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Correspondence to Kamrul Hossain.

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Kamrul Hossain—Associate Professor and Director.

Marija Mihejeva—LL.M Student.

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Hossain, K., Mihejeva, M. Governing the Arctic: Is the Arctic Council going global?. Jindal Global Law Review 8, 7–22 (2017). https://doi.org/10.1007/s41020-017-0044-0

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