The E.U. Challenges the Premises of the Ilulissat Declaration

 

European Parliament Building in Strasbourg.  Source: Wikipedia

In May, ministers from the five nations with Arctic coastlines (Russia, Canada, Denmark (Greenland), Norway, and the United States) met in Ilulissat Greenland and adopted a declaration on Arctic governance (The Ilulissat Declaration) whose key points were:

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..

Earlier this month, the European Parliament adopted a resolution saying, "Not so fast."  Tony Barber reports (Europe's Arctic Challenge):

It was seven months ago that Javier Solana, the European Union’s foreign policy chief, warned about the risks to international stability from the intensifying competition among countries in the Arctic region. Today the European Parliament drew attention to the issue again by passing a resolution that called on EU policymakers to push for an international treaty for the protection of the Arctic.

Legislators adopted the resolution by 597 votes to 23 with 41 abstentions, demonstrating that it had overwhelming cross-party support....

The problem in the Arctic is that there are no comprehensive rules governing how states should behave there. There is no system for managing fish stocks, nothing to regulate the extraction of oil and gas, and not much guidance on how to settle territorial disputes that may flare up as the polar ice recedes.

Here's the resolution itself: European Parliament resolution of 9 October 2008 on Arctic governance.  The key elements appear to be:

The European Parliament,

F.   whereas the Arctic region is currently not governed by any specifically formulated multilateral norms and regulations, as it was never expected to become a navigable waterway or an area of commercial exploitation,

14.  Urges the Commission to take a proactive role in the Arctic by at least, as a first step, taking up 'observer status' on the Arctic Council, and considers that the Commission should set up a dedicated Arctic desk;

15.  Suggests that the Commission should be prepared to pursue the opening of international negotiations designed to lead to the adoption of an international treaty for the protection of the Arctic, having as its inspiration the Antarctic Treaty, as supplemented by the Madrid Protocol signed in 1991, but respecting the fundamental difference represented by the populated nature of the Arctic and the consequent rights and needs of the peoples and nations of the Arctic region; believes, however, that as a minimum starting-point such a treaty could at least cover the unpopulated and unclaimed area at the centre of the Arctic Ocean;

The European Commission is preparing a report on the Arctic which will discuss governance.  The Antarctic Treaty is a very comprehensive agreement. 

The Norwegians have a different view: Arctic discussion in the European Parliament.  Here are some talking points the Norwegian Foreign Minister, used in May:

We will not be able to address future challenges without a rule-based response and without concerted, effective action that builds on the best available scientific data and a responsible and precautionary approach. This is the basis of the Norwegian Government’s policies....

...Do we lack an adequate legal order for the Arctic Ocean?

...No. We have the overall framework - what I would call the rules of the game. In short: we are talking about the United Nations Convention on the Law of the Sea. This is the comprehensive multilateral regime that applies in the Arctic.

So this is a fundamental point of departure. We do not exclude future new regulation in particular fields. But only if real needs have been identified with precision. Our priority now should be implementation of the overall framework through concrete policies – by states applying and playing by the rules of the game.

And let us remember that the formulation, adoption and entry into force of international legal rules that can become applicable to all relevant states is a very time consuming and often difficult process. The road that led to the Convention of the Law of the Seas is a good illustration.

According to the talking points, the Law of the Sea and existing international law provides most of the necessary legal foundation:

• It took decades to agree on and become bound by the Law of the Sea Convention.  Does it contain rules on ice-covered waters? Yes. Have they been implemented nationally? Only to a very limited extent.
• Does the Convention allow for the adoption or recommendation of specified mandatory maritime routes in difficult waters by the IMO? Yes, it does.
• Does the Convention allow coastal states to adopt non-discriminatory measures, including the establishment of protected areas, within economic zones for various purposes? Yes, it does.
• Does this Convention, and other international agreements, contain rules designed to promote scientific research, environmental protection and other measures relevant to the Arctic Ocean? Yes, they do. Have these been fully implemented? Not really.
• Then there is the question of boundaries, which are always a potential source of disagreement or even outright conflict. However, vast areas of the Arctic Ocean are subject to state authority within the constraints of international law.
• A key issue here is the extent to which the coastal states in the Arctic can lay claim to the continental shelf beyond the 200-nautical-mile exclusive economic zone.  Here too we are guided by the Convention. The matter is to be determined by the Commission on the Limits of the Continental Shelf. Coastal states must give priority to the vast task of undertaking the necessary scientific research and documentation. It is important that rule-based clarity about the outer limits be ensured.
• Then there is the potential case of unresolved boundary issues between states...  Has international law evolved a lot during these past years, providing guidance to states in this regard? Yes, indeed. Do we favour resolving these delimitation issues? Yes, we do.
• With state authority follows state responsibility, and a basis for taking concrete measures,
  including on environmental protection. We welcome that.
• What about the waters beyond the reach of the coastal states? Here too the rules are clear. The areas in the Arctic that will not constitute exclusive economic zones or continental shelf will belong to an area in which the resources are referred to by the Convention as the “common heritage of mankind”.

In addition to a legal structure its also necessary to have policies and guidelines.  Coastal states and the Arctic Council can provide much of this, but there may be need for involvement by other parties as well.  With respect to navigation, these include flag states:

• And finally, not all issues can be addressed through rules. We also need policies.  Clearly – as Hans Corell observed – the fact that the Convention on the Law of the Sea applies in the Arctic certainly does not mean that there is no need for further work at the international level. Indeed there is, in particular to ensure the protection of the environment in this extremely sensitive area.
• We are developing Norwegian policies for Norwegian waters - such as the comprehensive
  management plan for the Barents Sea which addresses the various needs linked to energy
  exploration, management of fishing resources, transport and environmental concerns.
• At a next stage, developing policies is a prime task for modern multilateralism. A number
  of guidelines have been developed by important bodies such as the Arctic Council. It has
  formulated guidelines for Arctic oil and gas exploration, building on the precautionary
  approach, defining a number of important minimum obligations, and leaving it to the
  states concerned to go beyond if required. A number of other guidelines have been
  adopted or are being considered, together with a large number of cooperative projects.
• One key challenge of ice melting is the increasing amount of drifting ice, combined with
  more navigation.  This requires increased preparedness and cooperation, including with regard to search and rescue. Challenges in the northern waters are in this respect notoriously difficult to meet, partly because of large distances. We rely heavily on increased cooperation, including
  between coastal states, but also with flag states.

Minor edit to clarify intent Oct 28, 2008.

Comments

[Mongoose]

Interesting article. Thanks.