Abstract
When an area is about to transform in a dramatic manner, we can expect that policy analysts and legal scholars aim to identify whether there are gaps in governance of the region. After all, the status quo does not seem anymore plausible solution for such a place. This is particularly the case in regards to the Arctic Ocean, which is changing due to economic globalisation and climate change with an accelerating speed. The article will first look at what types of normative “gaps” we might observe in the gradually emerging new Ocean and then how the Arctic policy actors have planned to respond to these. It was two unrelated events – the Russians planted their flag underneath the North Pole on the Lomonosov ridge in August 2007 and 1 month later satellite imagery confirmed that the extent of summer sea ice on the Arctic Ocean had decreased to a record low – that triggered a serious discussion on how to best to govern a region that was seen by many as inaccessible desert without any need for governance. Yet, gradually, the region’s states and other actors have identified the “gaps” that need to be addressed, together with procedures for filling them in. The article will finally examine whether the current consensus between the region’s actors can be seen as the best possible approach to governing the Arctic Ocean.
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Notes
- 1.
“Regulatory gap” refers to a legal analysis of what is covered by international legal rules and instruments, an approach that is seen by the present author as too limiting. If we think of gaps in regulatory frameworks, this term encompasses a broader set of “gaps” in our responses to a certain collective problem. The very act of studying these collective response measures or international regulatory gaps entails a commitment to a view that norms and rules do have an effect on state behaviour, an assumption that is not shared by some schools of international relations. If a scholar thinks that norms have no independent role in steering the behaviour of states, there is no need to perform any gap analysis either.
- 2.
This is not such a big problem nowadays, given that many CIL rules have been codified as treaty rules. A good example of this is the United Nations Convention on the Law of the Sea [42]; most of its provisions codify CIL, and thus treaty and CIL rules co-exist. In the Arctic, the distinction between the two is an important one, since the United States as a non-party to the UNCLOS admits that it is legally bound by most of the LOS provisions as embodiments of CIL. Although treaty and CIL rules co-exist, there are many times important differences in terms of legal consequences. For instance, since the US is not a party to the UNCLOS, none of the dispute settlement procedures prescribed in Part XV of the UNCLOS can be invoked against it.
- 3.
These problems are even more pronounced in relation to the third primary source of international law, general principles of law, since there are multiple views on how it might evolve. For instance, the International Court of Justice [19] has never based a decision on it, probably for the simple reason that the Court is hesitant to relying on a source that is not a product of state consent, explicit (treaty) or implicit (CIL).
- 4.
Article 205 of the UNLCOS [42] reads: “States shall publish reports of the results obtained pursuant to article 204 or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States.”
- 5.
Even the journal Foreign Affairs published an article [7] arguing: “The situation is especially dangerous because there are currently no overarching political or legal structures that can provide for the orderly development of the region or mediate political disagreements over Arctic resources or sea-lanes. The Arctic has always been frozen; as ice turns to water, it is not clear which rules should apply. The rapid melt is also rekindling numerous interstate rivalries and attracting energy hungry newcomers, such as China, to the region. The Arctic powers are fast approaching diplomatic gridlock, and that could eventually lead to the sort of armed brinkmanship that plagues other territories, such as the desolate but resource-rich Spratly Islands, where multiple states claim sovereignty but no clear picture of ownership exists.”
- 6.
The Ilulissat Declaration [23] states: “In this regard, we recall that an extensive international legal framework applies to the Arctic Ocean as discussed between our representatives at the meeting in Oslo on 15 and 16 October 2007 at the level of senior officials. 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 scientific research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims.”
- 7.
As provided in the Ilulissat Declaration [23]: “In this regard, we recall that an extensive international legal framework applies to the Arctic Ocean as discussed between our representatives at the meeting in Oslo on 15 and 16 October 2007 at the level of senior officials. 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 scientific 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 five 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. We will keep abreast of the developments in the Arctic Ocean and continue to implement appropriate measures.”
- 8.
European Commission [11] noted: “An extensive international legal framework is already in place that also applies to the Arctic. The provisions of the UN Convention on the Law of the Sea (UNCLOS) provide the basis for the settlement of disputes including delimitation…The European Parliament has recently highlighted the importance of Arctic governance and called for a standalone EU Arctic policy urging the Commission to take a proactive role in the Arctic. The parliamentary dimension of Arctic cooperation is crucial to raise awareness and to strengthen policy input. The European Parliament has been playing a valuable role in this respect.”
- 9.
As noted by the European Council [12]: “The Council recognises the Arctic Council as the primary competent body for circumpolar regional cooperation and expresses its continued support for the applications by Italy and the Commission to become permanent observers in that body. The Council encourages Member States, and the Commission together with the EEA to continue to contribute to the work of relevant Arctic Council working groups….The Council believes that the EU should actively seek consensus approaches to relevant Arctic issues through cooperation also with Arctic states and/or territories outside the EU, Canada, Greenland, Iceland, Norway, the Russian Federation and the United States, as well as with other relevant actors with Arctic interests.”
- 10.
The main processes are the United Nations Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction and the thematic Marine and Coastal Biodiversity programme under the Convention on Biological Diversity [10].
- 11.
This appears in many parts of the UNCLOS [42], for example Article 197: “States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features”.
- 12.
In the words of the Ilulissat Declaration [23]: “The Arctic Ocean is a unique ecosystem, which the five coastal states have a stewardship role in protecting. Experience has shown how shipping disasters and subsequent pollution of the marine environment may cause irreversible disturbance of the ecological balance and major harm to the livelihoods of local inhabitants and indigenous communities. We will take steps in accordance with international law both nationally and in cooperation among the five states and other interested parties to ensure the protection and preservation of the fragile marine environment of the Arctic Ocean.”
- 13.
One early but authoritative articulation of this approach is in Rio Declaration [39], principle 15: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.
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Koivurova, T. (2013). Gaps in International Regulatory Frameworks for the Arctic Ocean. In: Berkman, P., Vylegzhanin, A. (eds) Environmental Security in the Arctic Ocean. NATO Science for Peace and Security Series C: Environmental Security. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4713-5_15
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