By Caitlyn Antrim – Changes in climate, technology, and resource economics have raised expectations and concerns about the impact of economic development and increased maritime shipping in the Arctic. These concerns have spurred discussion of possible regimes under which state and industry activities in the Arctic will be conducted and the interests of environmental advocates will be addressed.
The nations of the Arctic region have emphasized that the 1982 U.N. Convention on the Law of the Sea (LOS) already provides the framework that is needed to manage the Arctic. The Convention, along with related treaties and organizations, builds upon a base of global principles that address sovereignty, environment and development, integrated assessment, and knowledge sharing that have been developing since as early as the 17th century and which have been explicitly accepted throughout the world in the past several decades.
Under the Convention, the Arctic region is the subject of a complex meta-regime that encompasses power-based regulation by sovereign states, interest-based regional and functional rulemaking through international organizations, and collaborative functions of research and information sharing through regional organizations.
The first two aspects build upon decades, even centuries, of experience in ocean use. The Law of the Sea Convention does this by defining a series of zones of authority at sea and enumerating the powers, rights, and responsibilities of states within each zone, leaving states to decide what specific laws and regulations they will impose and to the Convention’s dispute resolution procedures to provide peaceful avenues to challenge activities that others view as inappropriate. It also provides roles for international organizations with special competence to develop common rules and guidelines to be applied by states in their management of their Exclusive Economic Zone (EEZ), the continental shelf, and ships under their flag in international waters.
In addition to setting the rules by which the zones of authority are determined, the Convention’s other primary function is to layout the internationally agreed norms that guide states and organizations in implementing the principles through implementation of national laws and internationally agreed regulations and guidelines.
The LOS Convention does provide the structure for governance and management in the Arctic Oceans and its surrounding coastal regions with regard to the traditional issues of navigation, coastal and high seas resources, marine science, and environmental protection; however, it falls short in providing support for the knowledge-based regime that is needed to build consensus among coastal states and indigenous peoples on how to address and prepare for the changes in the Arctic region that may come in the future (changes for which the LOS regime is unprepared).
The Convention does, however, suggest regional activities in Part IX of the Convention on Enclosed and Semi-Enclosed Seas. While the Arctic may not fit the strict definition of enclosed and semi-enclosed seas, the provision’s recommendation that states surrounding such seas consult among themselves regarding regional resource development, environmental protection, and marine science activities and also involve other states and organizations as they see fit is entirely compatible with the mission and functions of the Arctic Council. Such a knowledge-based regime can build upon the same principles upon which the LOS Convention is based, drawing upon appropriate norms for regional cooperation and collaboration, and for information sharing under the Convention and the Arctic Council, with its focus on consultation and collaboration among the Arctic States and peoples.
Even with the provision for regional cooperation, the current regime based on the LOS Convention together with the Arctic Council still falls short in supporting the foresight function needed to adapt to the issues of a changing Arctic. At this time, the Arctic Council is not well structured to take on this role. Dependence on an institutional infrastructure that changes every two years, has no permanent staff, and whose financial resources depend upon the parochial interests of member states and the inspiration of a few advocates for special interests or projects cannot support a foresight capability that addresses the interests of all parties and develops options for action that is responsive to the interests and policies of members while also responding to the concerns affecting the Arctic as a whole. Nor can it build confidence in itself as an institution when there is no continuing institution in place.
Changing the structure of the Arctic Council to support a robust foresight function would face an organizational version of the ‘precautionary principle.’ Unless future benefits, which are difficult to determine in advance, outweigh potential constraints on sovereign actions, the more powerful and influential states are likely to view a significant increase in autonomy by the Arctic Council as an unacceptable outcome.
This has been the nature of the Arctic Council since its founding in 1996, but the increasing rate of change is rendering the old system obsolete. But it is not necessary to take the step to a full time, autonomous secretariat in one fell swoop. An initial step could be taken by establishing a “virtual” secretariat with staff based in their home countries but linked together as a team electronically. As such, staff could provide a more direct link with their governments while working as a team with the secretariat leadership and with whatever staff, advisors, or consultants support the administrative or project functions the members of the Arctic Council authorize the Secretariat to take.
Photo Credit: Arctic Ocean, September 2009: The US Geological Survey (Patrick Kelley, U.S. Coast Guard)