Ministers from Russia, the U.S., Canada, Norway, and Denmark met in Ilulissat Greenland today to discuss the appropriate legal framework for the development of the Arctic (The Ilulissat Conference, Arctic Economics, May 27).
The outcome was the two-page Ilulissat Declaration. You can download a copy at the Danish Foreign Ministry website: Conference in Ilulissat, Greenland: Landmark Political Declaration on the Future of the Arctic. The key text reads:
By virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean the five coastal states are in a unique position to address these possibilities and challenges. 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.
The key points seem to be: (1) the unique relationship of the five coastal nations to the Arctic; (2) the law of the sea treaty as the key to the legal framework for development; (3) the legal framework is best implemented through national action by the five coastal states; (4) there is no need for a comprehensive new legal regime for Arctic development; (5) a role for "other users" of the Arctic - nations that do not use the Arctic evidently don't have a role.
The next paragraph acknowledges that the five parties have stewardship responsibilities towards protecting the Arctic environment from shipping accidents. The parties commit to taking steps in cooperation with "other interested parties." This seems to acknowledge that other parties have an interest in the Arctic environment and a right to be involved in protecting it from marine accidents. A special reference to the UN's International Maritime Organization also seems to recognize role for other interested parties.
The five parties also commit to cooperate among themselves and with relevant states in developing Arctic search and rescue infrastructure. They agree to cooperate in data sharing among themselves and with interested parties. The commit to continuing to work actively on the Arctic Council and other relevant international fora.
The World Wildlife Fund thinks the approach embodied in the Ilulissit Declaration is inadequate (Arctic protection needs new approach: WWF, May 27):
“We take a very different view,” said Dr. Neil Hamilton, director of the WWF International Arctic Programme. “The main existing framework for arctic governance is the UN Convention on the Law of the Sea, which by itself it cannot address the special problems and growing threats faced by the Arctic.”
The Law of the Sea Convention (UNCLOS) has no provisions to deal with the special circumstances of conservation in ice-covered waters. “It fails to address the biggest, baddest and fastest growing threat to the Arctic and its ecosystems: climate change,” Hamilton said....
UNCLOS allows coastal states to enact regulations to protect ice-covered waters within their exclusive economic zones (EEZs), but there are no uniform standards for protection of ice-covered international waters or international shipping in such areas.
“UNCLOS provides a solid foundation on which to build, but by itself is not enough to meet the changes and the challenges facing us in the Arctic in the 21st Century,” Hamilton said. “What we need now is a new legal mechanism for arctic governance to protect this most critical and vulnerable marine environment.”
The WWF laid out its ideas on how to govern the maritime Arctic in more detail in a report in January: A New Sea: The Need for a Regional Agreement on Management and Conservation of the Arctic Marine Environment. This report, by Dr. Rob Huebert and Brooks Yeager, finds:
Over the past fifteen years, the arctic nations have established an initial framework for cooperation in addressing issues of mutual concern in the Arctic. The existing cooperative framework, embodied in the Arctic Council, is characterized by a ‘soft law’ or essentially voluntary approach, reflecting the lack of appetite of at least some of the Arctic governments for more strenuous treaty arrangements. Issues are generally brought forward for consideration first and foremost as technical issues, with the result that a priority has been placed on scientific research and problem identification, with less emphasis on cooperative remedial action. The existing arrangement is also a ‘low-cost’ approach, with no permanent secretariat and few real resources for cooperative action.
To be effective, a strengthened management framework for the Arctic must be comprehensive and ecosystem-based, must provide for the effective management of human activities in the Arctic so that the region’s living resources can be conserved, and must assure that development is sustainable and does not neglect the welfare of traditional communities.
There are a number of steps that can be taken in order to move towards such a framework, including steps to strengthen the existing Arctic Council and give it more decision-making power. However, there are also built-in limitations to a forum-based collaborative approach such as the Council. Other available approaches, for which there are useful models in other regions, include the establishment of a regional fisheries management organization or a regional sea agreement under the United Nations Convention on the Law of the Sea (UNCLOS), each of which would require negotiations among the arctic governments. Ultimately, it appears that a regional treaty arrangement could form the strongest basis for a management framework capable of conserving the Arctic’s living resources and making sure that existing and new economic activities in the region are sustainable for the future.
Jacqueline McGlade, the Executive Director of the European Environment Agency, spoke to these questions at a conference in Tromso in January 2007 (The Arctic Environment – Why Europe should care):
Although an Arctic treaty is not likely to be feasible or practical, it is important that the Arctic community of parliamentarians, scientists, policy makers and communities press for an internationally agreed approach - a Polar Ocean protocol under the Law of the Sea Convention - drawing on the experience from the member states for supplementary mechanisms and instruments, and supplemented by strengthened mechanisms for the Arctic within the wide range of multilateral environmental agreements. Without these in place, it is inconceivable that the institutions and Arctic states on their own will be able to withstand the pressure from within as well as from outside the region to exploit the resources as they become more accessible or scarcer in other parts of the world.
In the early stages, Arctic states and indigenous people’s will need to focus on reducing the impacts of the major sources of pollution mentioned earlier, preventing a rush to exploit all the available resources of the Arctic - another Klondyke – and avoiding the destabilising effects of massive infrastructure developments. To do this will require that member states fully implement their obligations under the wide range of agreements and protocols including LRTAP and Kyoto.
The Arctic Council made up of its member states is in fact the only legitimate institution to oversee this process and must by default assuming a leadership role in this regard. However, it should also be stressed that the European Union and especially its Arctic member states have an extra duty of care – namely to raise awareness of the situation and issues concerning the Arctic and to gain support in all the relevant international settings for increased controls for the protection, conservation and sustainable use of resources in the Arctic region, building a shared environmental information system for reporting on the state of the environment and evaluating the effectiveness of European and key global environmental policies on the Arctic over the coming decades.
The emphasis is in the origiinal. The wide range of multilateral environmental agreements include the Convention on Biological Diversity, the Convention on International Trade in Endangered Species (CITES), and so on.
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