Creating a Regional Arctic Regime

Whether the world needs an international environmental regime in the Arctic is an area of debate that had been frozen until recently. On May 28, 2008, the five states that border the Arctic – Canada, Russia, the United States, Norway and Denmark – issued the two page Ilulissat Declaration stating that they believe current international law provides an adequate basis for Arctic governance. The five states, which have long jealously guarded their regional sovereignty, indicated that they are willing to accept the “important rights and obligations” given under the Law of the Sea. Acknowledging their stewardship role, the five states nonetheless stated that they do not see a need for a new international legal regime to govern the Arctic.

The Arctic region must be approached as a global problem. Development will be accompanied by increased shipping. With increased shipping will come shipwrecks, which will introduce the threat of oil spills and other environmental hazards, such as alien species living in ballast water, to the Arctic. Search and rescue operations in the remote and hostile climate of the Arctic will be difficult even in the best of circumstances. Development will also threaten fragile and valuable fisheries, especially since there is currently no comprehensive regional fisheries management regime.

Contextual factors matter in the Arctic and natural and human events unfolding outside of the Arctic, particularly climate change, demand progressive thinking and commitment to active cooperation in and protection of the Arctic that only an international regime can create. The United Nations Convention on the Law of the Sea does not provide a level of regulation and coordination that can simultaneously protect the fragile Arctic environment, ensure that shipping traffic is safe and well-monitored and manage development. As Oran Young and Gail Osherenko note in Polar Politics, developing effective international legal regimes requires using intellectual capital. Unless the nations embrace new ways of thinking, they will become prisoner to conventional perspective.  In order to escape the current painfully slow approach to policymaking, the Arctic nations need to move beyond jurisdictional approaches to the Arctic.

The Antarctic can serve as an example: the Antarctic Treaty effectively suspended all national territorial claims for the duration of the treaty but addressed key legal issues by creating a demilitarized zone and an environmental protection regime. The Antarctic Treaty was unique and pace-setting, establishing the first nuclear-free zone and installing international rights of inspection and observation.

The Antarctic Treaty was also the first treaty designed to protect scientific concerns. Politicians stepped aside and let the scientific community, which had freshly completed coordinated research during the 1957-8 International Geophysical Year, assemble a legal regime designed in the best interests of mankind. The scientific community has a similar history of cooperation in the Arctic, having recently completed the 2007-8 International Polar Year, and could therefore play a facilitating and largely apolitical role in assembling an international environmental legal regime.

The Arctic nations have taken the first steps tot facilitate negotiating such a regime. In 1996, they created the intergovernmental Arctic Council, in which the Arctic nations as well as indigenous peoples’ groups are represented. The Arctic Council provides a ready forum for negotiating a cooperative legal regime that serves the interests of the nation-states, indigenous peoples and other parties. A cooperative legal regime would also discourage free-riders without compromising national sovereignty.

Protecting the Arctic is important: the global community only gets one earth, and creating an international Arctic regime is the most effective way to ensure that the Arctic region is well protected both today and in the future. An Arctic Treaty would ensure that regulations are applied more evenly across states and thus promote better protection than domestic regimes in which nations may have incentives to undercut each others’ policies. An international legal regime would also be an explicit acknowledgement that the Arctic is a particularly fragile and important region.