Michael Byers, International Law and the Arctic (Cambridge: Cambridge Studies in International and Comparative law, Cambridge University Press, 2013)

The title should not dissuade scholars from disciplines other than law from a close reading of its contents, as it goes well beyond a strict legal analysis to explain the historical and political processes that are inseparable from law in real world relations. In this vein, Byers gives the legal principles practical relevance and makes constructive proposals for resolution of outstanding disagreements, (e.g. on the Beaufort maritime zones, pp. 83-90). He has successfully identified and succinctly outlined the key trends, the most significant of which being the (paradoxical?) site of the frozen Arctic as the first place for tense Cold War relations to thaw and ever-increasing cooperation since Gorbachev’s game-changing Murmansk speech in 1987.

Byers devotes five of eight chapters to territorial, sovereignty and boundary issues in one form or another (land and maritime). His careful exposition fully justifies his thesis – long accepted amongst experts in Arctic affairs but routinely downplayed in popular media – that the Arctic is a site of peace and cooperative international relations.  It is in his chapter on the outer continental shelves that Byers’ remarkable skill in communicating complex concepts to a general audience is most apparent. He succeeds in synthesising the provisions of article 76, their relation to geophysical criteria and their real world application in an accessible manner that remains too rare amongst legal scholars. For example, he distinguishes, in a single paragraph, oceanic ridges, submarine ridges and submarine elevations (p. 104).

The chapter on international environmental law (chapter six) pinpoints the most pertinent issues but some could have been better explained, for example: the (failed) attempt to upgrade the polar bear under CITES[1] which was based on politics, not science (p. 175); his proposal for an agreement to communicate and coordinate submarine traffic (which seems to rather defy point of being covert in the first place!) (p. 190); the discussion of the deep seabed, which might have highlighted the fact that to date no company or State has gone beyond the early exploration stages even in more temperate and accessible zones and does not refer to the 2011 Advisory Opinion of the Seabed Dispute Chamber on the subject (pp. 191-194)[2]; or the vast differences between drilling conditions off Northern Norway as compared to the North American Arctic (pp. 200-213).

Coverage of indigenous peoples (chapter seven) similarly lacks the breadth of his analysis on territorial and maritime delimitation and delineation. While reviewing an interesting collection of historic and current indigenous issues in the Arctic, it does not provide a general legal overview of the fast developing international law in this area, as might be expected from a book with such a title. The UN Declaration on the Rights of Indigenous Peoples[3] is mentioned only in passing (p. 232) but merits a section of its own and the 1989 Convention of the ILO[4] is omitted entirely. Alongside a richer analysis of the collective rights of indigenous peoples (e.g. over territory and resources and to self-government), this chapter could have covered in a more systematic manner the application of general human rights instruments to indigenous persons and at least some of the key jurisprudence in this area.[5]

Security is the title of chapter eight, which covers as well as traditional ‘hard security’, the risks of drug smuggling or illegal immigration (pp. 261-265) which are more a matter of domestic criminal law and do not themselves pose a risk to the State per se. Security can also mean human security, food security and economic security, issues that could have been brought in either here or within the chapter on indigenous peoples. However, it is in the security chapter, that Byers makes one of his most astute observations, and one that has not received sufficient attention until now. This is that the Search and Rescue Agreement[6] negotiated through the Arctic Council did not actually impose any new legal obligations on the States parties that they did not have already under pre-existing treaty obligations. It opens doors to increased cooperation, true, but State to State cooperation does not require a treaty basis. Instead, it is as much (if not more) a statement about the Arctic Council and Arctic cooperation than it is a legal agreement on search and rescue (pp. 278-9). A memorandum of understanding would have been adequate, but would not have had the same gravitas nor cemented the Arctic Council as the pivotal site of decision-making for the High North.

 

Byers does not fear controversy and makes a number of bold statements. I here pick out a few that will no doubt be the subject of lively debate.

Unsurprisingly, Byers continues the argument outlined in Who Owns the Arctic?[7] regarding the North West Passage (NWP) (Chapter five). International Law in the Arctic suggests that this is largely a bilateral dispute, with Canada and the United States as the protagonists, and hence something that can be resolved in bilateral negotiations. But States throughout the World, as well as the European Union, do not recognise the NWP as internal waters, even if they are for the most part happy to sit back and leave the United States to the business of formally objecting. Satisfactory resolution will require at the very least the acquiescence of States far removed from the Arctic. Byers’ (and Canada’s) reliance on Inuit ‘occupation’ of the ice-covered NWP is also problematic: nemo dat quod non habet. In no other case has it been held possible to ‘occupy’ the sea, the UNCLOS[8] excluding the possibility. Canada needs a better argument (e.g., p. 244). Byers’ comparison with Danish/Greenlandic claims for Hans Island based on historic occupation and use differ fundamentally in that the latter concern occupation of land, so the Island of Palmas[9] principles apply. I look forward to Byers’ response to Phil Steinberg’s ‘third-way’ proposal: that the NWP is neither internal water nor strait, but straight-forward territorial water and EEZ.[10] 

Byers explains the position of the permanent participants in the Arctic Council which is indeed unique, innovative and a model for indigenous inclusion in international relations. Representatives of the permanent participants (six indigenous organisations) sit at the table alongside the representatives of the eight Arctic States and are fully involved in all discussions and this can be contrasted with the observers (States) who do not participate directly at the highest level, though are active in working groups. In short, the observers ‘observe’; the participants ‘participate’. Nevertheless, Byers may have exaggerated the point, indicating that the permanent participants effectively enjoy a veto (pp. 229-230). His argument is that owing to the consensus-based decision making at the Arctic Council, a permanent participant need only recruit one of the eight Arctic States to block a decision they do not like. But if a veto-wielding friend is all that is required, then the same could be said of the observer States, or indeed any State or organisation. China could recruit Iceland, or Greenpeace could recruit Sweden to block unwelcome decisions. On the same basis, any State could enjoy a de facto veto at the Security Council by persuading one of the big five to cast a negative vote. While the Inuit Circumpolar Council (ICC) and Saami Council are influential, the other four permanent participants lack the funds to be as active. The relatively muted reaction to the Russian disestablishment of RAIPON[11] from the Senior Arctic Officials and permanent participants indicates they still have a long way to go. Further, the albeit conditional and temporary admission of the EU to the Arctic Council table belies Byers’ argument: the Canadian arm of the ICC expressed an unbending resolve to have them excluded pending satisfactory resolution of the seal ban dispute.

The Arctic Council has from its origins steered clear of hard security matters but Byers believes the time has come for them to open up (p. 253). It seems unlikely that the Arctic Council will deal with any of these issues in the foreseeable future, at least not qua Arctic Council. In other words, even if the eight Arctic States get together to discuss security matters, it is unlikely to be under the Arctic Council banner because of a strong political commitment in the Ottawa Declaration that excludes matters of ‘military security’. Byers proposes discussions on a nuclear-weapons free Arctic, which appear idealistic given American and Russian positions (pp. 256-261) and a general demilitarisation of the area, which is difficult to reconcile with the dependence on military vessels and personnel for search and rescue (pp. 261 and 272). One point that is minor in the Arctic context but nonetheless cannot be left unchallenged is the claim that: ‘the right of self-defense may be exercised pre-emptively’ – a highly contested position that cannot simply be given as an unambiguous statement of law as it appears in this book (p. 266).

Byers also indicates a greater tension between the Arctic States and China than is convincing. The Arctic Council, as Byers notes, required applicants for observer status to recognise: ‘the Arctic States’ right to administer the Arctic Ocean under the Convention on the Law of the Sea’ and suggests that China could never sign up to such a sweeping statement as it implies a power of the Arctic States to govern the entire Arctic Ocean. But this phrasing can reasonably be interpreted as meaning ‘according to’ the Convention on the Law of the Sea, which China has long supported (pp. 254-255), including the provisions of Part VI on continental shelf resources. In any case, it is no longer accurate to talk of ‘permanent observers’ as all observer States in the Arctic Council are now subject to periodic reassessment.

Finally, to a European reader, the book has an unashamedly North American outlook with a disproportionate emphasis on Canada, the United States and Russia, with the five Nordic States receiving markedly less attention. To some extent, this reflects the fact that two of the Nordic States have no Arctic coastline, and Norway has recently settled, after forty years, its maritime boundary dispute with Russia. Byers implicitly justifies this focus given Canada’s and Russia’s enormous territory in the North and related clout, alongside the United States’ enduring superpower status (p. 280). Nevertheless, it leaves the feeling that it could only have been written by a Canadian! A stronger European emphasis might, for example, have permitted an examination of the ongoing mackerel dispute as an example of an immediate impact of climate change on economic – and now even diplomatic – relations in the Arctic. There might have been less of ‘little Norway’ (p. 46) and greater reflection on Norway’s longstanding harmonious relations with its grand neighbour as well as the power of the former’s huge oil revenues. On the other hand, European scholars, such as the present reviewer, benefit from considering a different viewpoint. Further, Byers’ long Canadian experiences enables him to distinguish ‘real’ international statements from domestic political posturing, e.g. on the NWP (pp. 155-156) and on Russian military manoeuvres in international airspace around 80nm from Canadian territorial waters (pp. 251-252).

On more prosaic matters, the inclusion of more maps to demonstrate the geography of the Arctic coastlines and competing maritime claims, for example of the NWP and NSR or the new Barents treaty boundaries would have helped immensely for readers who are not up to speed on Arctic geography. (There is only one map, displaying the purported maritime zones in the Beaufort, p. 61.) The bare text is fine for those already working on Arctic law and politics but one can imagine a newcomer to the Arctic struggling to imagine where exactly certain islands are situated. Rather lost in the introductory section (p. xvi), between acknowledgments and abbreviations, are references to two key maps of the Arctic which would have improved the book had they been included in full.  

This review may appear unduly critical, picking out as it does the more contentious issues and passing over too briefly the excellent analysis of territorial and sovereign rights. However, this should be interpreted instead as a recognition of the book’s cutting edge legal and political analysis of the High North and its potential to provoke a flurry of scholarship. In fact, it is to Byers’ credit that International Law in the Arctic can inspire these reflections, most of which Byers would heartily debate and many of which may simply be proven wrong over time. This book is a unique contribution to the literature on law and international relations in the Arctic. It will be indispensable to teachers and students working on the High North and a great introduction to anyone seeking a quick, comprehensive, and readable introduction. However, International Law and the Arctic is more than a textbook that describes or summarises existing knowledge but provides analysis at the vanguard of Arctic studies which will keep Byers’ colleagues busy for some time.

 


[1] Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973, 993 UNTS 243 (CITES).

[2] International Tribunal for the Law of the Sea: Seabed Disputes Chamber Case No. 17: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) 1 February 2011 <http://www.itlos.org/index.php?id=109>.

[3] Declaration on the Rights of Indigenous Peoples 2007, UNGA Res 61/295.

[4] C169, Indigenous and Tribal Peoples Convention, 1989.

[5] E.g. International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3 (ICESCR) and International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (ICCPR). Both are mentioned in the context of the right to self-determination, but not the General Comment of the Human Rights Committee on the same, nor the provisions of article 27 ICCPR. The ICESCR gets a nod in relation to economic and social conditions in Canada and Russia but Byers is unclear about the committee monitoring process attached to his treaty (p. 240).

[6] Arctic Council Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic 2011, available at <http://www.arctic-council.org/article/2011/5/arctic_council_ministers_sign_agreement>.

[7] Michael Byers, Who owns the Arctic? (Douglas and McIntyre 2009).

[8] UN Convention on the Law of the Sea 1982, 1833 UNTS 397.

[9] Island of Palmas case (Netherlands v United States of America) 1928, Permanent Court of Arbitration, Arbitrator: Huber, 2 RIAA 829.

[10] Philip E Steinberg, ‘Steering between Scylla and Charybdis: The Northwest Passage as Territorial Sea” Ocean Development & International Law 2014 (forthcoming).

[11] See, RAIPON Open Statement to Senior Arctic Officials of the Arctic Council, 14 November 2012, <http://www.raipon.info/Documenty/English/RAIPON_Stat_ment_to_SA%CE_Haparanda.pdf>; and Statement by Senior Arctic Officials and Permanent Participants of the Arctic Council Concerning the Russian Association of Indigenous Peoples of the North (RAIPON),  14 November 2012, <http://indigenouspeoplesissues.com/index.php?option=com_content&view=article&id=16755:russia-statement-by-senior-arctic-officials-and-permanent-participants-of-the-arctic-council-concerning-the-russian-association-of-indigenous-peoples-of-the-north-raipon&catid=26&Itemid=59>. This statement is no longer visible on the Arctic Council’s own website.