Tag Archives: Arctic Council

Connected Disaster Risks: Wildfires and Climate Change in the Arctic

New Article (double blind peer review), , , ,

The Arctic is a place that, for outsiders, is often perceived as an empty canvas on which one’s own ideas and imaginations can be painted. This is not only inaccurate as it disregards the lived reality of the people who live there, but it also can be dangerous if decisions were to be made on matters of safety and disaster risk reduction and response without taking into account the practical realities on the ground.

There is not one generally accepted definition of what constitutes the Arctic. For the purposes of this paper, the term “Arctic and Sub-Arctic” is used to describe the area that is comprised of the parts of the United States, Canada, Greenland, Norway, Sweden, Finland and Russia that are located north of 60° N. In practice, the focus will be on the forested, taiga and tundra areas of the continental areas because the situation in Greenland, which had seen a wildfire in the far West in 2019,[1] and Iceland is rather different from the afore-mentioned regions.

From the outside, the Arctic and Sub-Arctic is often perceived as a rather cold and humid place, characterized by ice and water, lakes and marshes. The reality is, however, that many parts of the Arctic receive very little precipitation compared to e.g. central Europe (although precipitation in the Arctic is increasing significantly[2]), and such outside perceptions view can lead to underestimating the risk of wildfires in the region, when seen from the outside. Within the Arctic, though, the issue of wildfires has been a topic of increasing international concern for some time, notably at the Arctic Council. In recent years, the risk of wildfires has grown significantly: “Wildland fires across the Northern hemisphere have notably increased in frequency, severity and area across the Arctic over the past several years.”[3]

Due to climate change, thunderstorms and lightning strikes that used to be rare in the Arctic, have become more common,[4] and vegetation changes contribute to an elevated wildfire risk. Across the Arctic, wildfires are a growing threat.[5] A few years ago, Siberia was especially affected by wildfires,[6] but today this is a circumpolar challenge in the Arctic and Sub-Arctic.

Although the term wildfire might lead to the assumption that this is mainly a problem of rural and remote regions, fighting wildfires is also a particular concern for fire departments in urban areas such as Anchorage, Alaska,[7] or Yellowknife in Canada’s Northwest Territories (NWT), which had to be evacuated in August 2023.[8] Many urban areas in the boreal Arctic and sub-Arctic are like islands in an ocean of trees (similarly, other settlements often are experienced as islands in vast expanses of tundra, or, like at the coasts of Greenland, occupy small spaces between the sea and the ice). At the edges of these boreal Arctic cities, towns and settlements, urban, including residential, areas touch forest areas. Like low-lying islands are at risk of devastating flooding during storm surges, Arctic towns and neighbourhoods are at risk from wildfires. This requires urban firefighters to prepare for different kinds of disasters than the fires in built-up areas that they are usually trained to deal with.[9] Other challenges for fire departments in boreal Arctic cities include limited infrastructures, including limited road infrastructures in residential areas.[10] Transport infrastructure that is sufficient for everyday uses in thinly populated regions can quickly result in dangerous bottlenecks in case large-scale evacuations become necessary.[11] Such challenges can also be found elsewhere, and international cooperation between those tasked disaster response and prevention could use such practical commonalities as starting points.

In a single month, June 2019, Arctic wildfires caused the release of 50 megatons of carbon-dioxide into the atmosphere.[12] This is about the same amount that the entire country of Sweden emits of the course of a whole year.[13] In 2020, Russia’s Sakha Republic was the Arctic region that was most affected by wildfires, also other parts of Russia contributed significant greenhouse gas emissions from wildfires.[14] This problem is growing,[15] what was not long ago seen as “extreme fire seasons”[16] and has for all practical purposes become the new normal as “climate change and forest fires [form] a vicious circle”.[17] The 2023 wildfire season was particularly severe in the Arctic, especially in Canada,[18] which experienced “the worst wildfire season on record”.[19] In June 2023, smoke from wildfires in Canada caused dangerous levels of air pollution in major population centers along the East coast of North America, including in New York City.[20] Already by mid-October 2023, the NWT had suffered more than 180 wildfires.[21] In Quebec, the severity of wildfires in 2023 was “50% more intense, and seasons of this severity [are] at least seven times more likely to occur”[22] in the future. The 2023 wildfires in Canada raise serious issues in the context of the social and legal dimensions of disaster risk reduction as they “had disproportionate impacts on indigenous, fly-in, and other remote communities who were particularly vulnerable due to lack of services and barriers to response interventions”[23] These challenges can exist similarly in other parts of the Arctic that are also sparsely populated and lack infrastructure. But the effects of Arctic wildfires are not limited to the Arctic: “The consequences of the [2023 Canadian] wildfires reached far beyond the burned areas with displaced impacts due to air pollution threatening health, mobility and activities of people across North America.”[24]

In responding to the experiences of the dramatic 2023 wildfire season, the NWT’s Minister of Municipal and Community Affairs, Vince McKay, advised the residents to get insurance and emergency kits and to make sure that they are prepared for possible wildfires.[25] The NWT government stated that “climate change means the territory can expect more frequent and more severe wildfires and floods, and that while they can’t make exact predictions about wildfire and breakup seasons, they can take steps to prepare.”[26]

In the Arctic, due to limited human and material resources, preparing for such disaster risks requires international cooperation. Despite its shortcomings, the Arctic Council continues to be the most relevant international forum for international cooperation in the region. On paper, the Arctic Council remains the institution most prepared to facilitate cross-border cooperation between the Arctic states. Due to Russia’s departure from Arctic cooperation in 2022, in practice, cooperation is limited to the seven Western Arctic states, which are united in NATO. Today, Arctic cooperation is transatlantic cooperation. Based on its earlier work, the Arctic Council in 2023 accelerated its wildfire initiative[27] that aims at bringing different actors together and to facilitate disaster risk reduction and disaster response efforts in the Arctic.

There are clear human and social dimensions to Arctic wildfires. “Wildland fires are a critical environmental concern with far-reaching ecological, social, cultural and economic implications.”[28] Wildfires contribute to air pollution in the Arctic.[29] This, in turn, affects human health. Arctic wildfires are a global problem, too, because of the global health effects from wildfires: “Every year, there are an estimated 340,000 premature deaths from respiratory and cardiovascular issues attributed to wildfire smoke”.[30] Wildfires also lead to displacement and to the loss of homes.[31] Indigenous communities are particularly at risk from wildfires because of their particular dependence on an intact natural environment:[32] “Arctic wildfires can hit Indigenous Peoples’ lands particularly hard, destroying food and water sources and disrupting their livelihoods and culture practices”.[33] Indigenous communities might also be at a higher-than-average risk of adverse effects of wildfires because they might be overlooked by policies that focus on population-dense areas or that might be based on lack of information or even colonial stereotypes. This elevated risk for marginalized groups is a problem the Arctic shares with other parts of the world.[34] The same is true for the long-term effects as “[t]he effects of wildfires linger long after the flames die down, hitting public health and wellbeing far into the future”.[35]

In recent years, the fact that there is no longer a fire season but that wildfires are a permanent problem has gained mainstream attention.[36]

In the words of Canadian writer, explorer and environmental expert Ed Struzik, the Arctic is the “part of the world [which] is going to be hit hardest from an ecological point of view. Wildfire affects so many of the specialist species in the Arctic most notably caribou. The more the tundra burns, the more the lichen and the forest burn, the less likely caribou will make it over the hump [and it is thought that] there will be small, shadow herds in the future, but nothing like the great migrations that we’re seeing now. Once lichen burns, it takes 60, 70, 80 years before it comes back and it’s one of the primary components of [the] diet”[37] of rangifer tarandus. Already today, reindeer and caribou[38] are threatened by climate change. Wildfires will kill more iconic Arctic animals by starvation, thereby threatening not only polar biodiversity but also livelihoods and cultures of peoples across the Arctic region.

Indigenous peoples have long been seen as a concern for the Arctic Council.[39] Importantly, indigenous representative organizations are key actors within the Arctic Council system. The Arctic Council’s founding document, the 1996 Ottawa Declaration, and the subsequent practice of the Arctic Council give indigenous peoples an elevated (bis still relatively limited) role in the making of international law.[40] This makes the Arctic Council also particularly qualified to take into account indigenous rights in any attempt to reduce disaster risks. Given the rapid increase in wildfires in the Arctic, the perspectives of local communities in the region are particularly relevant.

But Arctic wildfires are not only a regional problem. Climate change increases the risks of wildfires:[41] “Climate change causes and accelerates Arctic wildfires in several ways as rising temperatures create drier conditions and increase the number of lightning strikes – leading to a future with more and larger fires that are both more intense and stretch over a prolonged fire season. In turn, this creates a dangerous feedback loop as black carbon and other emissions are released into the atmosphere. For people living in the Arctic, fires can quickly become a threat to life and property, alter available food sources and degrade the air quality with damaging effects on their health”.[42]

While in the northern hemisphere, many wildfires are the result of human action, including arson and negligence,[43] climate change is making wildfires more likely, Climate change means an increase in the likelihood of lightning,[44] it slows the jet stream,[45] causes longer heatwaves,[46] makes soil drier,[47] increases the risks of pests, such as bark beetles, and diseases that are harmful for trees.[48] As a consequence, trees are more likely to die due to these effects of climate change.[49] This leads to more dead wood, which in turn increases the risk of more wildfires.[50] There is a vicious circle connecting wildfires and climate change.[51] That the Arctic is particularly affected by climate change is well-documented – for example “the Canadian Arctic is about 10 degrees (Celsius) warmer than average”.[52] The increasing likelihood of wildfires are one effect of human-made climate change on the region.

“As the increasing effects of climate change and land-use change make wildfires more frequent and intense, it is estimated that we could witness a global increase in the occurrence of extreme fires of up to 14 per cent by 2030, 30 per cent by 2050 and 50 per cent by the end of this century.”[53] A significant part of this growth will hit the Arctic. According to the Director of the United Nations Forum on Forests Secretariat with the United Nations Department of Economics and Social Affairs, Juliette Biao Koudenoukpo, “Climate change, unsustainable land use and deforestation are among the key drivers of wildfires. Climate change exacerbates wildfire risk through increased drought, high air temperatures, low relative humidity, dry lightning and strong winds.”[54]

While climate change is not the only factor that drives wildfires, climate change in the Arctic means that the areas in the Arctic that is suitable for plant (e.g. shrub) growth is growing.[55] Shrubs have a local isolating effect, resulting in a warmer soil.[56] Similarly, climate change in the Sub-Arctic also means a change in vegetation which can have different effects on the likelihood and spread of wildfires.

Often, climate change means more wildfire. But wildfires can also mean more climate change: wildfires contribute to the expansion of shrubs in the Arctic.[57] Even on this simple level, even when not taking into account the dangers posed by the large amounts of methane that were trapped in the rapidly melting permafrost and other issues and that are released due to the warming, we can see a dangerous feedback loop. Climate change makes wildfires in the Arctic more likely. Wildfires accelerate the loss of permafrost in the Arctic,[58] and in this way contribute to the release of methane into the atmosphere, which further accelerates climate change. This is repeated all over the Arctic. Arctic wildfires are made more likely by climate change and Arctic wildfires contribute to climate change.[59]

Since the late 1970s, the Arctic has been heating up four times faster than the global average.[60] The effects of climate change on the Arctic and Sub-Arctic are manifold but one of the most dramatic ways in which climate change affects the people who live in the circumpolar north are wildfires. 2023 has been a particularly dramatic year in this regard. While the international community is taking note, it remains to be seen if future disasters can be prevented effectively. The Arctic Council’s efforts are notable, but they also need to translate into practical results that contribute to protecting local residents in the region, including marginalized groups and people living in rural areas.

 

Endnotes & references

[1] European Commission’s Directorate-General for European Civil Protection and Humanitarian Aid Operations (2023). Arctic Region | Wildfires 2018-2023 – DG ECHO Daily Map | 14/11/2023, https://reliefweb.int/map/canada/arctic-region-wildfires-2018-2023-dg-echo-daily-map-1411202, last accessed 17 September 2024.

[2] J. E. Walsh, S. Bigalke, S. A. McAfee, R. Lader, M. C. Serreze &  T. J. Ballinger (2023). “Precipitation”, Arctic Report Card 2023, DOI: 10.25923/hcm7-az41.

[3] Arctic Council (2023). Norwegian Chairship Launches Initiative to Address Wildland Fires in the Arctic, 19 October 2023, https://arctic-council.org/news/norwegian-chairship-arctic-wildland-fires-initiative, last accessed 11 March 2024.

[4] See Yang Chen, David M. Romps, Jacob T. Seeley, Sander Veraverbeke, William J. Riley, Zelalem A. Mekonnen & James T Randerson (2021). “Future increases in Arctic lightning and fire risk for permanent carbon”, in: 11 (5) Nature Climate Change, pp. 404-410, https://doi.org/10.1038/841558-021-01011-y, last accessed 11 March 2024.

[5] For an in-depth look at developments of Arctic wildfires in recent years see Jessica L. McCarty, Juha Aalto, Ville-Veikko Paunu, Steve R. Arnold, Sabine Eckhardt, Zbigniew Klimont, Justin J. Fain, Nikolaos Evangeliou, Ari Venäläinen, Nadezhda M. Tchebakova, Elena I. P arfenova, Kaarle Kupiainen, Amber J. Soja, Lin Huang & Simon Wilson (2021). “Arctic fire regimes and emissions in the 21st century”, 18 (1) Biogeosciences, pp. 5052-5083, https://doi.org/10.5194/bg-18-5053-2021, last accessed 11 March 2024.

[6] Davide Cotti & Zitta Sebesvari (no year). Arctic Heatwave, Technical Report, Interconnected Disaster Risks 2020/2021, https://s3.eu-central-1.amazonaws.com/interconnectedrisks/reports/Research/Arctic_Heatwave_TR_210906.pdf, last accessed 11 March 2024, at p. 9; The Associated Press (2020). “New NOAA report finds vast Siberian wildfires linked to Arctic warming”, in: Eye on the Arctic, 9 December 2020, https://rcinet.ca/eye-on-the-arctic/2020/12/09/new-noaa-report-finds-vast-siberian-wildfires-linked-to-Arctic-warming, last accessed 11 March 2024; see also I.V. Canosa, R. Biesbroek, J. Ford, J.L. McCarty, R.W. Orttung, J. Paavola, D. Burnasheva, “Wildfire adaptation in the Russian Arctic: A systematic policy review”, in: 39 Climate Risk Management, article number 100481, DOI: 10.1016/j.crm.2023.100481.

[7] The Associated Press (2023). “Wildfires in Anchorage? Climate change sparks disaster fears”, in: Eye on the Arctic, 2 May 2023, https://rcinet.ca/eye-on-the-arctic/2023/05/02/wildfires-in-anchorage-climate-change-sparks-disaster-fears, last accessed 11 March 2024.

[8] See e.g. Dustin Jones (2023). “Out-of-control wildfires in Canada force all 20,000 residents of Yellowknife to flee”, in: NPR, 27 August 2023, https://www.npr.org/2023/08/17/1194388692/wildfire-yellowknife-canada-evacuation, last accessed 28 September 2024; Ian Austen (2023). “After 3 Weeks of Wildfire Exile, a City of 20,000 Returns”, in: New York Times, 6 September 2023, https://www.nytimes.com/2023/09/06/world/canada/wildfire-yellowknife-evacuation-return.html, last accessed 18 September 2024; Pat Kane (2024. “Yellowknife’s Wildfire Evacuation Was Tailored for the Privileged”, in: The Walrus, 16 August 2024, https://thewalrus.ca/yellowknifes-wildfire-evacuation-was-tailored-for-the-privileged/, last accessed 18 September 2024.

[9] The Associated Press (2023). “Wildfires in Anchorage? Climate change sparks disaster fears”, in: Eye on the Arctic, 2 May 2023, https://rcinet.ca/eye-on-the-arctic/2023/05/02/wildfires-in-anchorage-climate-change-sparks-disaster-fears, last accessed 11 March 2024.

[10] Ibid.

[11] Ibid.; see also Mike Rudyk (2023). “Yukon government to review this summer’s wildfire evacuations in Mayo, Old Crow”, in: Eye on the Arctic, 23 November 2023, https://recinet.ca/eye-on-the-arctic/2023/11/23/yukon-government-to-review-this-summers-wildfire-evacuations–in-mayo-old-crow/, last accessed 11 March 2024.

[12] Arctic Council (2023). Norwegian Chairship Launches Initiative to Address Wildland Fires in the Arctic, 19 October 2023, https://arctic-council.org/news/norwegian-chairship-arctic-wildland-fires-initiative, last accessed 11 March 2024; see also Gloria Dickie (2022). “Insight: Why Arctic wildfires are releasing more carbon than ever”, Reuters, 8 September 2022, https://reuters.com/business/environment/why-arctic-wildfires-are-releasing-more-carbon-than-ever-2022-09-08, last accessed 11 March 2024.

[13] Arctic Council (2023). Norwegian Chairship Launches Initiative to Address Wildland Fires in the Arctic, 19 October 2023, https://arctic-council.org/news/norwegian-chairship-arctic-wildland-fires-initiative, last accessed 11 March 2024.

[14] No author named (2020). Summer Wildfires in the Arctic Circle Set New Emissions Record, 3 September 2020, WWF, https://wwf.mg/?749191/summer-wildfires-record, last accessed 5 March 2024.

[15] See Even Jeffries & Catherine Perry (2020). “Fires, Forests and the Future: A Crisis Raging out of Control?, Gland & Boston: WWF & BCG, https://wwwfeu.awsassets.panda.org/downloads/wwf_fires_forests_and_the_future_report.pdf, last accessed 5 March 2024.

[16] Ibid., p. 9.

[17] Ibid., p. 10.

[18] Clair Barnes, Yan Bonlanger, Theo Keeping, Philippe Gachon, Nathan Gillett, Jonathan Boucher, François Roberge, Sarah Kew, Olivia Haas, Dorothy Heinrich, Maja Vahlberg, Roop Singh, Manon Elbe, Sajanika Sivanu, Julie Arrighi, Maarten van Aalst, Fredi Otto (2023). Climate change more than doubled the likelihood of extreme fire weather conditions in Eastern Canada, 21 August 2023, http://doi.org/10.25561/105981, last accessed 4 March 2024, pp. 2-3; on the 2023 fires in Canada’s North West Territories see Barry Scott Zellen (2024. “The Arctic Aflame: Intensifying Arctic Wildfires Present a Sobering Reminder that Climate Change Remains a Grave and Gathering Threat to the Arctic”, The Arctic Institute, 20 February 2024, https://thearcticinstitute.org/arctic-aflame-intensifying-arctic-wildfires-present-sobering-reminder-climate-change-remains-grave-gathering-threat-arctic, last accessed 11 March 2024.

[19] Nicole Martillaro (2023). “This has been the worst wildfire season on record. What could 2024 have in store?”, in: CBC News, 27 September 2023, http://cbc.ca/news/science/2024-wildfire-season-el-nino-1.6978559, last accessed 4 March 2024.

[20] The Associated Press (2023). “Smoke from Canadian wildfires forecast to reach Norway”, in: Eye on the Arctic, 8 June 2023, https://rcinet.ca/eye-on-the-arctic/2023/06/08/smoke-from-canadian-wildfires-forecast-to-reach-norway, last accessed 11 March 2023.

[21] Center for Disaster Philiantrophy, 2024 North American Wildfires, no date, http://disasterphilantrophy.org/disasters/2024-north-american-wildfires/, last accessed 4 March 2024.

[22] Clair Barnes, Yan Bonlanger, Theo Keeping, Philippe Gachon, Nathan Gillett, Jonathan Boucher, François Roberge, Sarah Kew, Olivia Haas, Dorothy Heinrich, Maja Vahlberg, Roop Singh, Manon Elbe, Sajanika Sivanu, Julie Arrighi, Maarten van Aalst, Fredi Otto (2023). Climate change more than doubled the likelihood of extreme fire weather conditions in Eastern Canada, 21 August 2023, http://doi.org/10.25561/105981, last accessed 4 March 2024, p. 2.

[23] Ibid.

[24] Ibid.

[25] Vince McKay, cited by Natalie Pressman (2024. “N.W.T. minister urges emergency preparedness ahead of ‘high-risk’ wildfire season”, in: Eye on the Arctic, 9 February 2024, http://rcinet.ca/eye-on-the-arctic/2024/02/09/n-w-t-minister-urges-emergency-preparedness-ahead-of-high-risk-wildfire-season, last accessed 4 March 2024.

[26] Ibid.

[27] Arctic Council (2023). Norwegian Chairship Launches Initiative to Address Wildland Fires in the Arctic, 19 October 2023, https://arctic-council.org/news/norwegian-chairship-arctic-wildland-fires-initiative, last accessed 11 March 2024.

[28] Ibid.

[29] See in detail Steve R. Arnold, Heiko Bozem & Kathy S. Law (2023). “Arctic Air Pollution”, in: Hayime Akimoto & Hiroshi Tanimoto (eds.), Handbook of Air Quality and Climate Change, Singapore: Springer, https://doi.org/10.1007/978-981-15-2527-8_19-2, last accessed 25 March 2024.

[30] Even Jeffries & Catherine Perry (2020). “Fires, Forests and the Future: A Crisis Raging out of Control?, Gland & Boston: WWF & BCG, https://wwwfeu.awsassets.panda.org/downloads/wwf_fires_forests_and_the_future_report.pdf, last accessed 5 March 2024, p. 12.

[31] Ibid., p. 11.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid., p. 12.

[36] See e.g. Susie Nelson (2020). “‘Zombie’ fires smoldered beneath Arctic ice all winter then reignited, causing one of the region’s worst fire seasons in history”, in: Business Insider, 9 September 2020, http://businessinsider.com/zombie-wildfires-in-siberia-smoldered-beneath-ice-reignited-2020-9, last accessed 7 March 2024; On the phenomenon of so-called zombie fires see Shelly Sommer (2020). “The Arctic is burning in a whole new way”, Institute of Arctic and Alpine Research, 28 September 2020, https://colorado.edu/instaar/2020/09/28/arctic-burning-whole-new-way, last accessed 11 March 2024; Alejandra Borunda (2021). “‘Zombie fires’ in the Arctic are linked to climate change”, in: National Geographic, 19 May 2021, https://nationalgeographic.com/environment/article/zombie-fires-in-the-arctic-are-linked-to-climate-change, last accessed 11 March 2024.

[37] Gloria Dickie (2017). “Answering Some Burning Questions About Arctic Wildfire”, in: The New Humanitarian, 5 September 2017, https://deeply.thenewhumanitarian.org/arctic/community/2017/09/05/answering-some-burning-questions-about-arctic-wildfire, last accessed 8 March 2024, quoting Ed Struzik.

[38] Disregarding small artificially introduced herds, rangifer tarandus are referred to as caribou in North America and as reindeer in Europe and North Asia. While forming several sub-species, the dietary needs of reindeer are similar across the circumpolar north.

[39] See Edward Alexander & Evan T. Bloom (2023). The Arctic Council and the Crucial Partnership Between Indigenous Peoples and States in the Arctic, Polar Points No. 21, 27 July 2023, http://wilsoncenter.org/blog-post/no-21-arctic-council-and-crucial-partnership-between-indigenous-peoples-and-states-arctic, last accessed 7 March 2024.

[40] Timo Koivurova & Leena Heinämäki (2006). “The participation of indigenous peoples in international norm-making in the Arctic”, in: 42 (2) Polar Record (2006), pp. 101-109, doi: 10.1017/S0032247406005080.

[41] Clair Barnes, Yan Bonlanger, Theo Keeping, Philippe Gachon, Nathan Gillett, Jonathan Boucher, François Roberge, Sarah Kew, Olivia Haas, Dorothy Heinrich, Maja Vahlberg, Roop Singh, Manon Elbe, Sajanika Sivanu, Julie Arrighi, Maarten van Aalst, Fredi Otto (2023). Climate change more than doubled the likelihood of extreme fire weather conditions in Eastern Canada, 21 August 2023, http://doi.org/10.25561/105981, last accessed 4 March 2024.

[42] Arctic Council (2023). Norwegian Chairship Launches Initiative to Address Wildland Fires in the Arctic, 19 October 2023, https://arctic-council.org/news/norwegian-chairship-arctic-wildland-fires-initiative, last accessed 11 March 2024.

[43] Even Jeffries & Catherine Perry (2020). “Fires, Forests and the Future: A Crisis Raging out of Control?, Gland & Boston: WWF & BCG, https://wwwfeu.awsassets.panda.org/downloads/wwf_fires_forests_and_the_future_report.pdf, last accessed 5 March 2024, p. 5.

[44] Ibid., p. 10.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Ibid.

[50] Ibid.

[51] Danielle Bochove (2023). “How Arctic ice melt raises the risk of far-away wildfires”, in: Phys.org, 13 Junue 2023, http://phys.org/news/2023-06-arctic-ice-far-away-wildfires.html, last accessed 7 March 2024; see also On the feedback loop between climate change and Arctic wildfires see Kat Kerlin (2022). “Unprecedented Arctic Wildfires Fuel Climate Warming Cycle”, UC Davis, 8 November 2022, https://ucdavis.edu/climate/news/unprecedented-arctic-wildfires-fuel-climate-warming-cycle, last accessed 11 March 2024; Eric Reston (2021). “Arctic Fires Are Melting Permafrost That Keeps Carbon Underground”, in: Bloomberg, Green-Energy & Science, 13 December 2021, http://bloomberg.com/news/articles/2021-12-13/arctic-fires-are-melting-permafrost-that-keeps-carbon-underground, last accessed 22 March 2024.

[52] Prof. Julienne Stroeve cited by Danielle Bochove (2023). “How Arctic ice melt raises the risk of far-away wildfires”, in: Phys.org, 13 Junue 2023, http://phys.org/news/2023-06-arctic-ice-far-away-wildfires.html, last accessed 7 March 2024.

[53] Juliette Biao Koudenoukpo (2023). “As Wildfires Increase, Integrated Strategies for Forests, Climate and Sustainability are Ever More Urgent”; in: UN Chronicle, 31 July 2023, https://www.un.org/en/un-chronicle/wildfires-increase-integrated-strategies-forests-climate-and-sustainability-are-ever-0, last accessed 22 March 2024.

[54] Ibid.

[55] Yanlan Liu, William J. Riley, Trevor F. Keenan, Zelalem A. Mekonnen, Jennifer A. Holm, Qing Zhu, Margaret S. Torn (2022). “Dispersal and fire limit Arctic shrub expansion”, in: Nature Communications 13:3843, https://doi.org/10.21203/rs.3.rs-1048197/v1, last visited 25 March 2024, p. 2.

[56] Ibid.

[57] Ibid., p. 4.

[58] See also Diana Yates (2021). “Study: Fire hastens permafrost collapse in Arctic Alaska”, University of Illinois Urbana-Champaign News Bureau, 9 December 2021, https://news.illinois.edu/view/6367/852889507, last accessed 8 March 2024; Yaping Chen, Mark S. Lara, Benjamin M. Jones, Gerald V. Frost & Feng Sheng Hu (2021). “Thermokast acceleration in Arctic tundra driven by climate change and fire disturbance”, in: 4 (12) One Earth, pp. 1718-1729, https://doi.org/10.1016/j.oneear.2021.11.011, last accessed 8 March 2024.

[59] No author named (2020). Summer Wildfires in the Arctic Circle Set New Emissions Record, 3 September 2020, WWF, https://wwf.mg/?749191/summer-wildfires-record, last accessed 5 March 2024. See maps on this correlation at Flavio Justino, David H. Bromwich, Vanucia Schumacher, Alex da Silva & Sheng-Hung Wang (2022). “Arctic Oscillation and Pacific-North American pattern dominated modulation of fire danger and wildfire occurrence”, in: 5 npj Climate and Atmospheric Science, Article number 52 (2022), https://doi.org/10.1038/s41612-022-00274-2, last accessed 8 March 2024, p. 5.

[60] M. Rantanen; A. Y. Karpechko; A. Lipponen, A. et al. (2022). “The Arctic has warmed nearly four times faster than the globe since 1979”, 3 Nature Communications Earth & Environment 168, https://doi.org/10.1038/s43247-022-00498-3, last accessed 18 September 2024.

Polar Law after the Invasion of Ukraine

Volume 18, no. 2 (2023), Article (double blind peer review), , , , ,

Introduction[1], [2]

The Russian attack on Ukraine on 24th February 2022 sent shock-waves throughout Europe. The violence and occupation since that date have led to human, economic and cultural devastation, over 6 million refugees from an original population of around 41 million and another 6 million internally displaced persons.[3] Addressing the human suffering from this war must always be the first concern.

The sudden geopolitical shift that has followed the rightful condemnation of Russia’s conduct requires many seasoned academics, including the present author, to reconsider certain assumptions in their disciplines and reassess the viability of established pathways for cooperation and negotiation over differences. International lawyers, especially those of the liberal school of international law that believe in institutional cooperation for mutual benefit (in contrast to realist accounts of zero-sum games), must explain how and why international law still constrains the conduct of powerful States in a meaningful way.

Every war has its own unique and terrible features. But the Russian attack on Ukraine in 2022 presents a challenge to the international legal order that has not been seen since 1945. Although Russia’s invasion and annexation of Crimea in 2014 was equally unlawful, it was a more constrained mission to gain territory; it was not an attempt to eliminate an entire nation. Other States responded to Russia’s conduct at that time with sanctions (countermeasures) but cooperation on Arctic and Antarctic affairs mostly continued.[4] Other violations of the most fundamental norm of the post-war international order – the prohibition on the use of force[5] – have also been more limited in scope and ambition.[6]

The article which follows examines the discipline of polar law[7] in the shadow of the Russian aggression which has threatened more than thirty years of gradual trust-building and collaboration in human rights, Indigenous rights, scientific research, environmental protection and economics. It shows that while many fora for cooperation with Russia in the polar regions are suspended or diminished either formally or de facto, legal solutions to challenges and disputes still have a critical role to play – and are in fact supported by the Russian Federation. Differences regarding interpretation or perceived gaps in legal regulation in the polar regions have not changed significantly following the Russian conduct and they require legal experts (amongst others) to negotiate solutions.

The article begins with a discussion of the resilience of international law in general before addressing the problems that the Russian aggression poses in the field of polar law. Specific attention is then paid to the Arctic Council, legal mechanisms for cooperation in the Arctic, the Antarctic Treaty System and other legal regimes of importance in the polar regions. The focus in the article is primarily on public international law but private law is also important in the polar regions, even if this area has not been well covered in past academic literature under the polar law banner.[8] Private law is, however, beyond the scope of the current article.

The article demonstrates that the Russian Federation, notwithstanding its illegal conduct in Ukraine, is committed to legal solutions in important Arctic and Antarctic fora. Legal approaches to challenges and disputes in the polar regions remain of critical importance.

International Law is Resilient

Although the geopolitical context in which polar law operates is fundamentally altered by the Russian invasion of Ukraine, the basic fabric of the legal order remains unchanged. In other words, the law is the same; the conditions are different. This might seem at once both self-evident and naive but is worth restating for the legal sceptics who point to one egregious breach and declare the whole system deceased. A simple analogy from domestic law will hopefully suffice to quieten those anxious that international law is finished, impotent or irrelevant since a powerful country can breach its most basic norm and remain in breach for over a year – indeed, over nine years when considering the occupation of Crimea.

The prohibition of murder is probably the most important norm of criminal law. The ability of individuals and families to go about their daily life and make plans for the future pivots upon it. Most people refrain from murder not because they are dissuaded by a possible sanction (in contrast to, e.g., parking or speeding offences) but because they have no particular incentive or passion to kill another. Nevertheless, sometimes there are murders. Extraneous circumstances such as the quality of governance, availability of weapons, demographics, poverty and economic inequality make these more or less frequent.

The response to cases of murder, even the most horrific – or perhaps especially the most horrific – is not to declare the futility of the criminal law and give up on it entirely. John’s having killed Martin yesterday is no defence to Jane’s killing of Fatima tomorrow. Furthermore, it is no justification for Jane’s stealing of Fatima’s car, driving it dangerously while texting on her phone and later parking in the spot reserved for the university rector (assuming Jane is not, in fact, the university rector).

International law, like criminal law, contract law, family law and administrative law, works most of the time; but is only noticeable in the breach. A breach of law, even an egregious breach of the most fundamental law, is not the end of law but the opportunity for law to show itself in the institutional reactions.

A more sophisticated account of the ongoing application of international law is presented in the International Law Commission Articles on State Responsibility which remind us:

The legal consequences of an internationally wrongful act under this Part do not affect the continued duty of the responsible State to perform the obligation breached.[9]

The State in breach must both cease its wrongful conduct and uphold its original obligation[10] – in the case of the Russia Federation, cease all acts of aggression in Ukraine and return all territory within the 2014 borders to Ukraine.

Other States are in certain circumstances entitled to suspend carefully selected obligations vis á vis the State in breach (countermeasures or measures[11]) and even to terminate treaties with the offending party,[12] but all this happens not in the absence of international law but specifically according to international law. The fundamental norms of international law (known in law as norms of ius cogens or peremptory norms) can never be suspended or terminated in response to the wrongful conduct of another State.[13]

While there are calls for suspension of political and scientific cooperation with the Russian Federation, no State is seeking the suspension of law. The States calling for the defence of Ukraine are instead demanding that international law be upheld, now more than ever. Although the UN Security Council is paralysed by the Russian veto (as it has been stymied in the past by Chinese, American and French vetoes), the General Assembly, the International Court of Justice, the International Criminal Court, the European Union, the European Court of Human Rights and dozens of individual States have swung into action with resolutions, rulings and countermeasures. Furthermore, as shall be shown below, in other important fora of importance to the polar regions, the Russian Federation is still following international law and international legal procedures to manage its interests and has even made (spurious and unsustainable) claims that its actions in Ukraine are legally justified.[14]

The Immediate Challenges to Polar Law

In 2023, Tanaka, Johnstone and Ulfbeck defined polar law according to three criteria: spatial scope (the polar regions); material scope (international, regional and domestic law); and temporal scope (polar law is constantly evolving).[15] They likewise identified three functions of polar law: coordination, cooperation and economic.[16] Polar law contains two distinct fields: law pertaining to the Antarctic and law pertaining to the Arctic; but common features identified by Tanaka, Johnstone and Ulfbeck include emphasis on environmental protection; scientific research; peaceful use; and international cooperation.[17] All of these features, which are intertwined, are challenged by Russia’s conduct and the obligations of all other States to respond in defence of the territorial integrity of Ukraine.[18]

The threat to peaceful use might be the most obvious although it is probably the least immediate of the above. It has become difficult to trust that the territorially largest Arctic State and original party to the Antarctic Treaty will respect the prohibition on the use of force to settle disputes. Its neighbours are seeking shelter in new ways (for example, the swift applications of Finland and Sweden to NATO membership) but there is no indication that Russia will use force in the polar regions per se. However, political, scientific and environmental cooperation have all been undermined.

The most visible suspension of international cooperation is in the work of the Arctic Council. This includes dozens of projects involving Russia’s vast Arctic, including environmental monitoring and disaster-prevention and preparedness activities. Beyond the Arctic Council itself, the sanctions-regimes imposed in response to the Russian aggression have thwarted dozens of international scientific projects as it is no longer possible to pay salaries and expenses from Western institutions to Russian scientists, to obtain visas for fieldwork or in-person meetings and to transfer equipment across borders. This affects environmental as well as educational and economic projects. The 2017 Arctic Science Agreement was designed precisely to simplify these processes. How it will be interpreted and applied in the event of a Russian scientist making an application to conduct research in the West or vice versa has yet to be seen.[19]

The forty-fourth Antarctic Treaty Consultative Meeting (ATCM) took place in Berlin in May and June 2022 amidst a great deal of disquiet and the forty-fifth ATCM was held in Helsinki in June 2023.[20] The system is ultimately functioning about as well as normal which is to say slowly and at the great frustration of those who would like to see stronger measures to protect the seventh continent.

Non-State cooperation remains increasingly difficult, not least in the academic sector that is critical to the development of new insights to manage the regions peacefully and equitably. On 4th March 2022, the Russian Union of Rectors, on behalf of over 300 Russian universities, issued a statement supporting the Russian attack and the Putin government. It called for Russian universities ‘to conduct a continuous educational process, to instil patriotism in young people, the desire to help the Motherland’ as the ‘main duty’ of Russian universities.[21] On the same day, the Duma passed a law to criminalise any critique of the war in Ukraine with a potential jail sentence of up to fifteen years for anyone who called the war a war.[22] If partner universities were wavering on whether they could continue direct cooperation, the statement made it clear that academic freedom in Russia was over (temporarily, one hopes) and that Russian-based researchers would face personal risk were they to acknowledge the realities of the situation. The Arctic Circle Assembly in Reykjavík and the Arctic Frontiers Conference in Tromsø, interdisciplinary conferences that attract diplomatic, Indigenous, academic and business representatives, have gone ahead with very limited Russian participation.

The Arctic Council

Iceland concluded its chairship of the Arctic Council in 2021 with a celebration of the 25th anniversary of the forum before handing the chairship over to the Russian Federation. But pan-Arctic cooperation goes back to the late 1980s – indeed, it can be traced to the Reagan-Gorbachev Reykjavík Summit in 1986. Only a year later, Gorbachev called for cooperation on six themes: resource development; science; Indigenous Peoples; environmental protection; and – perhaps most striking today – a nuclear-weapons free zone; and restrictions on naval activities.[23] This led to the Arctic Environmental Protection Strategy in 1991, to which the Arctic Council, founded in 1996, is a direct successor.[24]

On 3rd March 2022, the Arctic Council came to an abrupt halt as the seven western State members of the Arctic Council, in response to the invasion of Ukraine, ‘temporarily paused participation in all meetings of the council and its subsidiary bodies.’ They did, however, ‘remain convinced of the enduring value of the Arctic Council for circumpolar cooperation and reiterate[d] support for this institution and its work.’ They added, ‘We hold a responsibility to the people of the Arctic, including the indigenous peoples, who contribute to and benefit from the important work undertaken in the Council.’[25]

On 8th June 2022, the seven States declared a tentative resumption of some Arctic Council work on some projects that had been approved at the Reykjavík ministerial meeting in 2021, just before the chairship passed to Russia. Around 60-70 projects have resumed, out of a total of 130 – none of which involve Russian partners, territory or maritime zones.[26] Importantly, Russia has not withdrawn from the Arctic Council, nor has it objected to the limited activities of the other seven States under the Arctic Council banner. This indicates that it is not ready to abandon the Arctic Council infrastructure completely and that the other State members do not wish its expulsion (which would, in effect, dismember the Arctic Council entirely).

Amidst some geopolitical jitters, a low-profile, online only Arctic Council ministerial was held in May 2023 in which the chairship passed formally from Russia to Norway. Unsurprisingly, in the absence of any political negotiations for over twelve months, no Arctic Council Declaration was agreed, as is the norm at the highest-level, biennial event. Rather, a bland statement was issued with the quiet acceptance of all Arctic States.[27] The statement steers clear of commitments but recognises the ‘valuable work accomplished by the Arctic Council since the last Ministerial meeting’ and approves the ongoing work of the Council, including funding for the Arctic Council Secretariat and the Indigenous Peoples’ Secretariat through 2025.[28] The very fact that all eight States agreed this statement indicates a will for the revival of the Arctic Council. The chairs and secretariats of the six working groups and the Expert Group on Black Carbon, the Arctic Council Secretariat and the Indigenous Peoples’ Secretariat met the Norwegian Chair of the Senior Arctic Officials in Tromsø in June 2023 to examine how they might resume their activities, ‘supported by all eight Arctic States and six permanent participants.’[29]

But caution is required. On 21st February 2023, Russia released a revised Arctic policy paper in which it had replaced a reference to ‘cooperation within the Arctic Council’ with a new focus on ‘development of relations with foreign states on a bilateral basis… taking into account the national interests of the Russian Federation in the Arctic.’[30] This indicates that Russia will only turn to the Arctic Council to the extent that this is in its own interests. Otherwise, it will prioritise relations – economic, environmental and political – with States that are prepared to tolerate its conduct in Ukraine.

Indigenous Peoples of the Arctic were amongst the first to reach out across Cold War frontiers and their cross-border populations (bearing in mind that State frontiers were built across their territories). They may provide once again the impetus to rebuild trust in due course. Three of the cross-border Indigenous Permanent Participant organisations at the Arctic Council contain Russian members (Aleut International Association (AIA), Inuit Circumpolar Council (ICC) and Saami Council (SC). Another, the Russian Association of Indigenous Peoples of the North (RAIPON), represents forty Indigenous Peoples within the Russian Federation. This, especially in the light of the criminalisation of dissent in Russia, puts them all in extremely difficult positions. RAIPON, already emasculated following a temporary suspension and reestablishment under a new president favoured by the Putin government,[31] issued a statement in support of the Russian attacks on Ukraine.[32] However, other representatives of Indigenous Peoples in Russia have spoken out against the war.[33] ICC and SC have avoided direct condemnation of the war in Ukraine and called for cooperation to continue through the Arctic Council.[34] Nevertheless, SC has stopped its Russian members from taking part in its activities while expressing regret for their exclusion which it attributes directly to the war.[35] Some permanent participant representatives have expressed frustration at being sidelined by the State members of the Arctic Council in responding to the situation, being ‘informed’ of steps but not consulted in contrast to their habitual and structurally in-built participation at Arctic Council meetings themselves.[36]

The Arctic Council lives on – but it remains seriously weakened. Even if Russia retreats from Ukraine tomorrow, the trust and spirit of partnership that has been cultivated cautiously since Gorbachev’s historic speech at Murmansk in 1987 may take a similarly long time to rebuild. Regional cooperation through the Barents Euro-Arctic Council (BEAC), the Northern Dimension policy of the EU, Iceland, Norway and Russia, and the Council of Baltic Sea States (CBSS) looks more vulnerable. BEAC’s work involving Russia is paused following a declaration by the Nordic countries and the EU that they would ‘suspend activities involving Russia’ and all projects involving Russia or Belarus under the Northern Dimension are likewise suspended.[37] Russia’s retort to ‘these clearly unfriendly steps’ was that ‘without Russia, the existence of these bodies loses meaning.’[38] Ten State members and the High Representative of the European Commission effectively suspended Russia (and observer Belarus) from the forum’s ‘proceedings, work and projects’ to which Russia responded by declaring its withdrawal.[39]

International Law in the Arctic

Yet the Arctic Council is not the be all and end all of polar law. In fact, pedantically speaking, very little of what it does is law at all. At a purely academic level, the weakness of the Arctic Council may actually prove a blessing in disguise by forcing scholars, diplomats and advocates to move away from an over-emphasis on the Arctic Council as the fulcrum of Arctic cooperation and examine more closely and systematically other fora. This is particularly important in the legal arena which Koivurova and Shibata have argued is more resilient than ‘soft’ institutional cooperation.[40]

The Russian Federation, whilst in flagrant breach of the prohibition of the use of force, is quietly following international law and legal process in the polar regions. Unsurprisingly – ‘country following the law’ does not garner any more international headlines than ‘person does not commit murder’. A couple of illustrations should suffice to illustrate the point but more can be found in recent publications by Koivurova and Shibata,[41] and Koivurova and others.[42] These include reflections on the Svalbard Treaty, the Polar Bear Agreement and regional fisheries organisations.

The Delineation of the Continental Shelf

The UN Commission on the Limits of the Continental Shelf (CLCS) reviews State submissions on the extent of States’ continental shelves.[43] The CLCS distinguishes between the sections of the ocean floor over which States have exclusive resource rights (the continental shelf) and the bits left over which are common heritage of humankind (known in international law as the Area beyond national jurisdiction).[44] It does not adjudicate between overlapping submissions by different States. Its role, in part, is to protect the common heritage against overzealous submissions by States but not to intervene in disputes over the boundary lines between States.

On 6th February 2023, the CLCS accepted most of Russia’s data indicating which parts of the ocean floor were continental shelf and hence not common heritage of mankind. It did not (nor should it nor would it) determine which pertained to Russia, Greenland/Denmark or Canada. However, the CLCS (following the recommendations of the sub-Commission) found that there was insufficient evidence to support the Russian submission regarding one part – the Gakkel Ridge.[45]

Russia responded with a revised submission to the CLCS just ten days later[46] – suggesting that they anticipated the response of the CLCS and had a revised map and data already prepared. In the new submission, Russia implicitly accepted the advice from the CLCS, i.e., that the Gakkel Ridge does not constitute a part of the continental shelf and hence neither Russia nor any other State has exclusive rights to its resources.

This is an example of Russia abiding by both legal process and conclusions, where the legal result does not match Russia’s ambitions.

Arctic Ocean Fisheries

Russia – and other parties that have taken what can most generously be described as an ambiguous stance on Russian aggression – are likewise moving forward, albeit slowly, under the most recent (non-)fisheries agreement, the Central Arctic Ocean Fisheries Agreement (CAOFA).[47] The agreement came into force in 2021. It prohibits any commercial fishing in the High Seas area of the Central Arctic Ocean and calls for a cooperative scientific programme to identify the potential for sustainable fisheries in the zone. Commercial fisheries may only be established if the science shows that they can be managed sustainably and a regional fisheries management organisation is established for this purpose. There are ten parties: the United States, Canada, Kingdom of Denmark, Norway, Russia, Iceland, China, Japan, South Korea and the European Union (which represents Finland, Sweden and all other EU member States). Online meetings of the provisional scientific coordinating group (PSCG) were held in May and September 2022 and the first conference of the parties (COP) was held in South Korea in November.[48] Not only did all the parties send a delegation, they were able to agree by consensus the rules of procedure for the COP going forward as well as the mandate for the PSCG (tasked with developing a joint programme on scientific research and monitoring).[49] (A second COP was held in South Korea in June 2023 but the proceedings were not available at the time of writing.) Two observers were admitted to the first COP (the International Council for the Exploration of the Sea and the World Wildlife Fund for Nature Arctic Programme).[50] The CAOFA requires the integration of Indigenous and local knowledge in the scientific research and any decisions regarding the opening of fisheries operations[51] but Indigenous organisations are not parties to the CAOFA itself (a privilege extended only to select States and the European Union) and were represented at the meeting only through national delegations.[52]

The research programme is likely to be slow-moving and hindered in practice by the barriers to cooperation with the Russian Federation at this time. Russia is unlikely to permit marine scientific research in its EEZ (bordering on the Central Arctic Ocean and containing many of the stocks that might straddle the High Seas in due course) by States loudly protesting the war in Ukraine (whether under the CAOFA structures or otherwise). Meanwhile, Russian scientific programmes are unlikely to be able to work with partners in the EEZs of the other four littoral States.

The consequences, however, of inaction or sluggishness on the scientific programme are that commercial fishing in the Central Arctic Ocean remains even more unlikely, until at least, 2036. It was never in the interest of Russia or the other four littoral States to promote science that might identify the feasibility of commercial fishing in the zone as any stocks therein will straddle the EEZ of the littoral States.[53] To put it simply, any fish taken in the Arctic High Seas are fish that cannot be taken in the EEZ. On this, Russia’s interests align with the US, Canada, Norway and Greenland (Kingdom of Denmark) and are opposed to those of the other five parties who have no neighbouring EEZ and hence no (potentially) straddling stocks.

The ‘Arctic Council’ Treaties

Three treaties were agreed under the auspices of the Arctic Council but are formally independent of it.[54] The parties to each are exclusively the eight Arctic States. They cover Search and Rescue, Emergency Oil Spill Preparedness and Response, and Arctic Science.[55] While these treaties remain in force, there is little or no activity under them. All three remain difficult to implement as they depend on the functioning of the Arctic Council, especially the Emergency Prevention, Preparedness and Response Working Group, and related institutions such as the Arctic Coast Guard Forum.[56] The first two treaties create very little law (beyond which already exists in global treaties and international customary law[57]) but rather open the door to cooperation and practice exercises – which cannot take place without political cooperation and trust between military and coastguard teams on the frontline of rescue and oil-spill emergency responses. The Chair of the Arctic Council acts as convenor for the Arctic Science Agreement but it is understood that no requests for research access under the agreement had been received following the Russian invasion up to the transfer of the chairship to Norway in May 2023.[58]

The Rights of Indigenous Peoples and Decolonisation

Russia aside, the Western Arctic States have no shortage of legal issues to address, especially regarding their treatment of Indigenous Peoples. These examples are not intended to justify any form of whataboutery – that ‘the West’ so-called is also breaking international law so should not criticise Russia for its violations in Ukraine. Russia’s own Indigenous Peoples, including over forty national groups, are hardly better off and may indeed be literally at the frontline of the war.[59] Rather, these cases are a timely reminder that there is plenty work still to be done in polar law without Russian cooperation.

On 1st February 2019, the UN Human Rights Committee concluded that Finland was in breach of the International Covenant on Civil and Political Rights owing to its interference in the electoral roll for the Sámi Parliament in Finland.[60] Four years have now passed and the government’s latest attempt to revise the law, in February 2023, could not even get out of the parliamentary committee stage.[61]

Norway’s own Supreme Court declared the massive windfarm at Fosen unlawful on 21st October 2021 on the basis of the same convention.[62] Nevertheless, at the time of writing, the turbines still turn, cutting across Sápmi – the Saami homeland – disrupting the migrating reindeer and unlawfully interfering with Saami rights to their land and culture. The longer the windfarm operates, the harder it becomes for Saami to bring their herds back to the area and the larger the profits of the operator.[63]

Next door in Sweden, the Girjas Sami also won their court battle in 2020 when the Supreme Court declared that the Girjas Sami Village had exclusive rights to issue licences for hunting and fishing in their historic territory and that the Swedish State had no authority in this area.[64] In what appears a quite distinct area of law but in fact pivots on very similar questions around Indigenous sovereignty, the US Supreme Court in June 2023 upheld the Indian Child Welfare Act against a challenge from non-Indigenous parents, the State of Texas and a law firm working pro bono that is better known for representing oil firms.[65] The Act protects native Alaskan and American Indian children. The precedent is an important indication of the Supreme Court’s reluctance to interfere with tribal sovereignty though nothing can be taken for granted as the case pivots, in part, on the standing of the plaintiffs.

While all these cases are technical legal ‘wins,’ one is reminded of President Jackson’s famous remark (quite possibly fictional) on another case in which native American rights were upheld: ‘John Marshall has made his decision, now let him enforce it.’[66] The Trail of Tears continued unabated for another eighteen years.

The Greenland Constitutional Commission unveiled a draft Constitution of Greenland in April 2023.[67] Although it will take many rounds of negotiation in numerous fora before such a text can be implemented, if at all, the draft points to yet one more step in Greenland’s decolonisation process. Originally asked in 2017 to prepare two drafts – one to function for Greenland within the Kingdom of Denmark and one in the case of independence as a sovereign State – the commission decided to deliver only on the latter.

Not all decolonisation efforts are strictly legal but a spate of inquiries into colonial history in the Arctic records abuses conducted through law and under the cover of law as well as raising questions about legal remedies. Canada continues to reckon with the findings of the Truth and Reconciliation Report of 2017: to date, of 94 Calls to Action, only 10 have been fully implemented.[68]

A much smaller-scale reconciliation commission in Greenland reported in 2017 and its recommendations were not systematically followed-up or measured.[69] However, three new inquiries are now beginning: on involuntary contraception of Greenlandic women and girls in the 1960s and 1970s; the integration process of 1953; and on Danish post-war policies in Greenland.[70]

Norway’s Commission to Investigate the Norwegianisation Policy and Injustice against the Sámi and Kvens/Norwegian Finns delivered a 758-page report in June 2023.[71] Two commissions are currently underway in Sweden – one regarding Saami and the other on Tornedalians, Kvens and Lantalaiset.[72] Finland has a Truth and Reconciliation Commission Concerning the Sámi People.[73]

The United States has not even begun to reckon with its historic mistreatment of Native Americans and Alaska Natives in a systematic manner though calls for truth and reconciliation in the United States with a mandate to investigate taken native children and attempts to assimilate them in an abusive boarding school system are gaining ground.[74]

These cases, inquiries and outstanding issues do not depend on cooperation with Russian participants. A cooling of Arctic relations or increasing ‘securitisation’ of the discourse on Arctic cooperation must not be deployed as a smokescreen to conceal or deprioritise action on these matters. In short, polar law, including the law of Indigenous Peoples and decolonisation, still has much to do.

The Antarctic Treaty System

Notwithstanding the similarities of extreme (to humans) climate and environmental vulnerability, the legal orders of the polar regions are fundamentally different. In many, if not most respects, the Arctic legally is no different to any other geopolitical space to the extent that its governance is based on State sovereignty and the law of the sea. State sovereignty is being reconceived in new (or perhaps old?[75]) ways with the recognition that Indigenous sovereignty was never extinguished in the Arctic. Indigenous Peoples present similar claims based on the same legal principles in other regions, principally in Latin America.

The Antarctic, by contrast, is legally unique. It is the only terra firma in the world that is not governed according to territorial sovereignty, the claims of the seven claimant States being suspended in 1961 by the Antarctic Treaty which also prohibited the expansion of claims or the making of new claims as long as the treaty remains in force.[76] So far, it has endured for over sixty years.

Calls for an Antarctic-style treaty system in the Arctic in the 2010s were misplaced as they were based on superficial – and sometimes inaccurate – similarities and assumptions, such as that the polar regions were empty of human activity and should remain perpetually so.[77] They were resoundingly rebuffed by the Arctic States and Indigenous organisations who reminded the world of their long presence and leadership in the region.[78] The Antarctic system is not presented here as a model per se for Arctic governance but rather as a reminder that cooperation can withstand hostilities even between the most powerful parties. The Antarctic Treaty was negotiated at the height of the Cold War and agreed in 1959, entering into force two years later. It was not so much agreed despite the Cold War but because of it. The Antarctic Treaty is first and foremost a peace treaty, responding to a fear that the last unpopulated continent would become a playground for weapons testing, military exercises or even hostilities to secure prestigious title. The treaty demands in its first article that:

  1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons.
  2. The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose.

Two related instruments, the Convention for the Conservation of Antarctic Seals and the Convention on the Conservation of Antarctic Marine Living Resources were negotiated in the 1970s and 1980s respectively.[79]  These treaties have already withstood a war between two consultative parties – indeed, two States with overlapping territorial claims in the Antarctic – the United Kingdom and Argentina. A fourth treaty, on comprehensive environmental protection, the Madrid Protocol, was agreed in 1991 and came into force in 1998.[80]

If the Arctic Council System is a three-tier system with States, Permanent Participants and Observers, the Antarctic Treaty System is a three-tier system of Consultative Party States, other States Parties and Observers. (There is, of course, no Indigenous population in the Antarctic.) Only the Consultative Parties have decision-making power and they reach agreements, as in the Arctic Council, by consensus, primarily at the annual Antarctic Treaty Consultative Meetings (ATCMs) and at meetings of the Commission on the Conservation of Antarctic Marine Living Resources (CAMLR Commission).[81]

Unease was evident in the run-up to the 44th ATCM in Berlin, not least because it was unclear whether Russian representatives would be able to secure the necessary visas to enter Germany at all. On this point, the aftermath of Covid-19 provided a face-saving option of virtual attendance. Four Russian representatives joined as ‘virtual audience’ with only three in-person representatives.[82] Meanwhile, Ukraine sent seven in-person delegates and Belarus five.[83]

The Consultative Parties to the ATCM include, as well as the Russian Federation and Ukraine, a number of States that have been more equivocal of Russian aggression in Ukraine, including Brazil, China, India and South Africa. Hence, the Russian Federation is less isolated in this arena. Nevertheless, twenty-five States (of which twenty-three are Consultative Parties) expressed their disapproval by leaving the meeting when the Russian representative took the floor, in an organised expression of support for Ukraine.[84]

The meeting progressed otherwise as anticipated, which is to say that very little of substance was agreed but nor were there any retrogressive steps on, e.g., principles of peaceful use, scientific cooperation and environmental protection.[85] In other words, the consensus-based decision-making system functioned – as much as it ever functions – despite the potential blocking powers of Ukraine, the Russian Federation and their various allies.

The meeting reports from the 45th ATCM in Helsinki, May 2023, have not yet been published but a few factors are notable from the material that is in the public domain at the time of writing. First of all, the virtual attendance option was repeated and around 1/5 of the five-hundred delegates joined online. This has potential not only to make access more equitable vis á vis States with fewer resources (including non-consultative Parties[86]) but may encourage States to send smaller in-person delegations with others joining virtually in order to reduce the climate impacts. Delegation-lists are not yet published from Helsinki but, already in Berlin, the United States included seven virtual audience members to complement fifteen in-person attendees.

The big news from the Finnish ATCM is the agreement of the historic Helsinki Declaration on Climate Change and the Antarctic.[87] The declaration emphasises science cooperation and science communication regarding climate change in Antarctica.[88] Although non-binding, it is significant that this declaration was reached at all, just four years after the Arctic Council failed to reach a declaration on anything because of US refusal to acknowledge climate change science.[89]

Tucked in at the end of the declaration is firm recommitment to the mining ban. The Consultative Parties and Members of the Committee on Environmental Protection:

Reaffirm our commitment to Article 7 of the Protocol on Environmental Protection to the Antarctic Treaty, and stress that Antarctic mineral resource activities other than scientific research, including the extraction of fossil fuels, remains prohibited, in accordance with the Protocol on Environmental Protection to the Antarctic Treaty, which does not have an expiry date.

The moratorium on mineral activities in the Antarctic is a robust provision of the Madrid Protocol that is, as indicated in the declaration, not time limited. It can be reviewed in 2048 at the request of one of the Consultative Parties but can only be lifted once a binding legal regime for mining activities has been negotiated. To come into force, any amendment to Article 7 requires a rigorous two-step process. First of all, the revision must have the support of three-quarters of the twenty-six Consultative Parties which held that status at the time the protocol was adopted, i.e., in 1991. Thereafter, the modification must be ratified by all of these twenty-six States as well as three-quarters of all Consultative Parties at the date of the modification.[90] The prohibition on mining in the Antarctic also has wider support from the United Nations General Assembly.[91]

Some have expressed concern that Russian scientific research activities on minerals in the Antarctic have crossed the threshold into (prohibited) prospecting though other State Parties have not made any formal protest.[92] The Russian Federation has (at least) acquiesced to the inclusion of this paragraph but the Consultative Parties may need to take a more pro-active approach to ensure that all parties respect the moratorium.

The Helsinki meeting also agreed that a long overdue framework on Antarctic tourism be developed and this is a key item for the 2024 meeting in India.[93] The devil remains, as always, in the detail and a framework does not necessarily mean that regulations on Antarctic tourism will become stricter.[94] Up until now, tourism in the Antarctic has been limited, not least through self-regulation by the operators themselves and by the refusal of any of the Parties to establish accommodation for tourists on the continent itself. However, numbers are rising rapidly and there is always a risk of new operators entering the market who do not follow the voluntary guidelines.[95]

Despite the difficulties presented by Russia’s attack on Ukraine, the aforementioned examples indicate that the parties are keen to see the Antarctic Treaty System operate in a relatively normal way – with all the limitations that ‘normal’ Antarctic governance implies.

However, on one important matter, the treaty provisions were ostensibly set to one side. Belarus and Canada both sought consultative party status. According to Article IX of the Antarctic Treaty, parties are entitled to consultative status either by virtue of being an original party (twelve, including the seven claimant States) or ‘during such time as that Contracting Party demonstrates its interest in Antarctica by conducting substantial scientific research activity there, such as the establishment of a scientific station or the despatch of a scientific expedition.’[96] Canada acceded to the Antarctic Treaty in 1998 and Belarus in 2006; they have since both conducted relevant scientific research activities on the continent. There are no additional requirements. Nevertheless, admission to the elite group requires consensus of existing Consultative Parties, including Ukraine (party since 1992 and Consultative Party since 2004). At the Helsinki meeting, Ukraine blocked Belarus’ application and Canada responded by postponing its application to 2024, anticipating that it would be vetoed by Russia and/or others in response.[97] Ukraine’s position, while eminently understandable, creates problems for the other parties who wish to see the Antarctic Treaty System continue relatively untroubled by the war in Ukraine.[98] If a precedent is set according to which any existing Consultative Party can block acceptance of a new State at the decision-making table, it politicises a longstanding arena of cooperation that has so far been isolated from the kind of political jostling that routinely troubles applications for membership of the United Nations. Furthermore, it creates yet another level of gatekeeping to Antarctic decision-making in addition to the already onerous requirement of breathtakingly expensive scientific research.[99]

Just a month after the Helsinki meeting, the CAMLR Commission held a special meeting in Santiago, Chile to discuss marine protected areas (MPAs) in the Antarctic.[100] The membership of the CAMLR Convention does not coincide perfectly with the ATS membership as not all Antarctic Treaty parties (consultative and otherwise) are members of CAMLR and the latter includes a number of States and the European Union with interests in fisheries in the Southern Ocean that are not Antarctic Treaty parties. The CAMLR Commission operates, amongst other things, as a regional fisheries management organisation for the Southern Ocean and in this respect, it plays a critical role in collating scientific data and regulating fisheries, including quota allocations. The CAMLR Commission also operates on a consensus basis, meaning that any single State Party can block agreement. Nowhere are the tensions between States prioritising environmental protection and those of a more extractive bent more apparent than in the negotiations of MPAs in the Southern Ocean. The environmental champions chalked up a significant win in 2016 with the agreement of a huge MPA in the Ross Sea but attempts to create additional MPAs are repeatedly thwarted.[101] China, usually followed by Russia, repeatedly rejects new MPAs under the cover of ‘science-based’ decision-making – insisting that no restrictions should be introduced until there is sufficient scientific evidence to prove their necessity in a rejection of a precautionary approach.[102] At the 2023 meeting, China and Russia once more blocked the creation of new MPAs, calling instead for more scientific research. Their position is longstanding and has no evident connection to Russia’s isolation over its conduct in Ukraine.[103]

The Antarctic Treaty System has proven resilient for six decades; its founding principles of peace and science are not facing any present danger, notwithstanding the armed attack of one Consultative Party on another. The original treaty precedes by over a decade the first global conference on the environment and the ‘birth’ of international environmental law as a discipline.[104] Innovations honed in the Antarctic such as environmental impact assessments and steps to reduce illegal, unreported and unregulated (IUU) fishing have informed global practices.[105] The system faces many challenges adapting to pressures from increasing tourism, climate change, risks of over-fishing and IUU fishing, as well as the environmental footprint of the scientific expeditions so privileged under the treaty. Protected by both a geographic and geopolitical distance, the attack on Ukraine has not to date had a significant impact on the legal systems of the Antarctic, even if it has generated a distinct diplomatic chill.

Other key fora and instruments on polar law

Much of the law that governs the polar regions is global in nature but with regional effect. The Russian Federation remains governed by and an active participant in these institutions as it has through years of increasing tensions since its unlawful annexation of Crimea. The climate change framework and the law of the sea are the most obvious categories in this regard but so too are basic norms of sovereignty, human rights and trade law in the Arctic as well as environmental law at both Poles. Global instruments and fora govern polar shipping, use of resources on the deep seabed, MPAs and search and rescue. The Polar Code that applies to most commercial shipping (though not smaller cargo, fisheries or smaller tourist vessels) is a work in progress. Katsivela identifies a number of areas that require strengthening if the safety of seafarers and the vulnerable polar environment are to be adequately protected, including expansion of scope to cover other vessels, safety equipment, seafarer training, use of heavy fuel oil in the Arctic, black carbon emissions, noise pollution and biofouling.[106] This can only be achieved through negotiations at the International Maritime Organization (IMO). The IMO has, since 2019, been an observer at the Arctic Council and has been invited to send experts to ATCM meetings.[107] Neither the Arctic Council nor the ATCM have legal personality so neither can be represented in their own right at the IMO though of course the State members are all represented. However, ICC has been attending the IMO meetings for years and in November 2021 was granted provisional consultative status, in recognition of the importance of Inuit expertise in decision-making about shipping in their territories.[108] The Antarctic and Southern Ocean Coalition (ASOC), an NGO observer to the ATCM, also attends IMO meetings (through the Friends of the Earth International delegation) to lobby for shipping regulation in the Southern Ocean.[109] More general measures through the IMO to reduce carbon emissions from shipping (not currently included in the Paris Agreement targets[110]) could slow the rapid warming at the Poles.[111]

The milestone Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement), an implementing agreement under UNCLOS, provides for equitable use of marine genetic resources, area based management tools (including MPAs), environmental impact assessments, and capacity building and transfer of technology to developing countries in respect of the High Seas and deep seabed.[112] The reaching of an agreement does not ensure that the agreement enter into force with any great speed. Sixty ratifications are required and one should recall that the UNCLOS itself, after a decade of negotiations, took a further twelve years to enter into force.[113] The BBNJ Agreement is the first general instrument to govern fair and equitable use of marine genetic resources in areas beyond national jurisdiction (including the Central Arctic Ocean). It also enhances the available processes on environmental impact assessment and MPAs. For the first time in a global law of the sea instrument, it requires States Parties to integrate traditional knowledge of Indigenous and local communities and uphold their rights.[114]

Mining on the deep seabed in the Arctic may not be an immediately attractive prospect so long as mining in temperate zones has yet to be tested but the International Seabed Authority (ISA) regulates any exploitation of the seafloor beyond the limits of the continental shelf under the Arctic Ocean (albeit a relatively small Area that is very difficult to access).[115] The ISA has to date taken a cautious approach to the Area under the Southern Ocean. This reflects uncertainties regarding potential conflict with provisions of the Madrid Protocol (that bans mining activities south of the 60°S parallel at least under the jurisdiction of its Parties) and the regime for the deep seabed under the 1994 Agreement.[116] The issue is further complicated by doubts about whether the Antarctic continent can generate a continental shelf, given the lack of recognition of State territorial claims in Antarctica and the freezing of the same under Article IV.[117] Until a few years ago, an ISA-published map of deep seabed under its jurisdiction excluded all the ocean below the 60°S parallel but it has since been removed from the public domain.[118] The more recent map on the ISA website is cut off at the foot of Patagonia.[119]

These three examples of the ongoing operation and relevance of global fora – the IMO, the BBNJ Agreement and the ISA – demonstrate that international law still very much governs human activities in the polar regions. The regimes may not be as robust as some would desire in terms of environmental security but international cooperation through these fora offers one of the best opportunities to strengthen protections.

Conclusion

The distinct bodies of law in the Arctic and Antarctic as well as global law and institutions with specific impacts on the polar regions have so far proven hardy enough to withstand the Russian attack on Ukraine. Geopolitical alliances may be shifting (though that is nothing new), trust between neighbours undermined, and cooperation increasingly challenging for some years to come. ‘Soft’ fora for cooperation are particularly vulnerable but the legal institutions remain operative. The above examples indicate not only that international law is resilient and continues to govern human and State activities at the Poles but in many contexts is little affected by the Russian conduct. Moreover, while in blatant violation of the ius ad bellum in Ukraine, the Russian Federation is ostensibly committed to international law in the polar regions even when the results do not fully align with its ambitions. This is demonstrated in its most recent submission to the CLCS in respect of the Gakkel Ridge.

A commitment to legal solutions to disagreements and disputes remains critical to the stability of the international order. The onus is on all parties, States and non-State actors alike, to insist on legal norms and processes to ensure that the near eighty-year peace in the polar regions endures. Experts in polar law are required to identify and pursue solutions to the many outstanding challenges.

[1] Note on spelling: there is no single preferred spelling of Saami/Sámi/Sami as it depends on the Saami language being used. In this article, the spelling ‘Saami’ will be preferred as per Saami Council, unless in reference to another proper noun, e.g., Sámi Parliament of Finland, Girjas Sami Village, etc.

[2] The author thanks Timo Koivurova, Nikolas Sellheim, Marc Lanteigne and Jonathan Wood as well as the two anonymous reviewers for their excellent comments on an earlier draft of this paper. She also thanks Timo Koivurova and Akiho Shibata for sharing background documents. All errors are the responsibility of the author.

[3] ‘Ukraine Refugee Situation’ (UN Operational Data Portal, last updated 26 June 2023) <https://data2.unhcr.org/en/situations/ukraine> accessed 29 June 2023; ‘Country Profile: Ukraine’ (Internal Displacement Monitoring Centre, last updated 24 May 2023) <https://www.internal-displacement.org/countries/ukraine> accessed 29 June 2023.

[4] Timo Koivurova and others, Arctic Cooperation in a New Situation: Analysis on the Impacts of the Russian War of Aggression: Government Report 2022:3 (Government of Finland, 2022), 33.

[5] Charter of the United Nations 1 UNTS XVI, Article 2(4).

[6] See, Rachael Lorna Johnstone, ‘Ukraine: Why this war is different’ (Polar Connection, 10 March 2022) <https://polarconnection.org/ukraine-war-different-2/> accessed 23 June 2023.

[7] On Polar law as an academic discipline, see Rachael Lorna Johnstone, Yoshifumi Tanaka and Vibe Ulfbeck, ‘Polar Law as a Burgeoning Discipline’ in Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck (eds), Routledge Handbook of Polar Law (Routledge 2023) 3-6.

[8] See, ibid, 5.

[9] Articles on Responsibility of States for Internationally Wrongful Acts 2001 in Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR, UN Doc A/56/10 (2001) (ILC Articles on State Responsibility), article 29.

[10] See also, ibid, article 30.

[11] Ibid, articles 42 and 48-54.

[12] Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331 (VCLT) article 60.

[13] ILC Articles on State Responsibility (n 9) Articles 26 and 50.

[14] See, Johnstone (n 6) on Russia’s purported justifications and why they do not stand up to scrutiny.

[15] Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck, ‘Polar Legal System’ in Routledge Handbook of Polar Law (n 7), 18-22.

[16] Ibid, 22-23.

[17] Ibid, 25-27.

[18] On the obligation of all States to uphold peremptory norms of international law, see ILC Articles on State Responsibility (n 9), Article 41(1).

[19] The Agreement on Enhancing International Arctic Scientific Cooperation, Fairbanks, May 11, 2017. Entered into force, 23 May 2018, <http://hdl.handle.net/11374/1916>.

[20] ATCM, ‘Final Report of the Forty-fourth Antarctic Treaty Consultative Meeting’ (23 May – 2 June 2022) Vol I (ATCM XLIV); ‘Helsinki Antarctic Meeting Culminates in Agreement on Climate Declaration,’ (Ministry for Foreign Affairs of Finland, 14 June 2023) <https://um.fi/news/-/asset_publisher/GRSnUwaHDPv5/content/helsingin-etelamanner-kokous-huipentui-sopuun-ilmastojulistuksesta/35732> accessed 27 June 2023.

[21] https://web.archive.org/web/20220320105358/https://www.rsr-online.ru/news/2022-god/obrashchenie-rossiyskogo-soyuza-rektorov1/ translation by Jonathan Wood.

[22] Ekaterina Zmyvalova, ‘The Impact of the War in Ukraine on the Indigenous Small-numbered Peoples’ Rights in Russia’ (2022) 13 Arctic Review on Law and Politics, 407, 409-410.

[23] Mikhail Gorbachev, ‘Speech in Murmansk,’ (1 October 1987) <https://www.barentsinfo.fi/docs/Gorbachev_speech.pdf> accessed 26 June 2023.

[24] Declaration on the Establishment of the Arctic Council, September 19, 1996 (Ottawa Declaration), <https://oaarchive.arctic-council.org/handle/11374/85> accessed 26 June 2023.

[25] United States, Department of State of the United States of America, Joint Statement on Arctic Council Cooperation Following Russia’s Invasion of Ukraine (3 March 2022) <https://www.state.gov/joint-statement-on-arcticcouncil-cooperation-following-russias-invasion-of-ukraine> accessed 26 June 2023.

[26] United States, Department of State of the United States of America, Joint Statement on Limited Resumption of Arctic Council Cooperation (8 June 20223) <https://www.state.gov/joint-statement-on-limited-resumptionof-arctic-council-cooperation> accessed 26 June 2023; Timo Koivurova, ‘Russia’s War in Ukraine: What are the Consequences to the Cooperation in the Arctic Council?’ (Finnish Institute in Japan: Science Tuesday, 28 February 2023) <https://sciencetuesday0228.peatix.com> accessed 28 February 2023.

[27] ‘Joint Statement of the Arctic States and Indigenous Permanent Participants issued on the occasion of the 13th Meeting of the Arctic Council on 11 May 2023’ (Arctic Council, 11 May 2023) <https://oaarchive.arctic-council.org/handle/11374/3146> accessed 26 June 2023.

[28] Ibid.

[29] ‘Norwegian Chairship Hosts First Meeting with Working / Expert Group Chairs and Secretariats’ (Arctic Council, 15 June 2023) <https://arctic-council.org/news/norwegian-chairship-hosts-first-meeting-with-working-expert-group-chairs-and-secretariats/> accessed 29 June 2023.

[30] See, Malte Humpert, ‘Russia Amends Arctic Policy Prioritizing ‘National Interest’ and Removing Cooperation Within Arctic Council,’ High North News (Norway, 23 February 2023) <https://www.highnorthnews.com/en/russia-amends-arctic-policy-prioritizing-national-interest-and-removing-cooperation-within-arctic> accessed 23 June 2023.

[31] See, Mary Durfee and Rachael Lorna Johnstone, Arctic Governance in a Changing World (Rowman and Littlefield 2019) 67.

[32] Zmyvalova (n 22), 408.

[33] Ibid.

[34] Koivurova and others (n 4) 49.

[35] Saami Council, ‘Váhtjer Declaration 22nd Saami Conference’ (Saami Council, 11-14 August 2022), <https://static1.squarespace.com/static/5dfb35a66f00d54ab0729b75/t/6392e3f3069dea6ddeed9638/1670570996486/Va%CC%81htjer+declaration.pdf> accessed 29 June 2023.

[36] Koivurova and others (n 4) 50.

[37] Ibid, 8, 39- 42-44.

[38] ‘Comment by Foreign Ministry Spokeswoman Maria Zakharova on the Situation around the Northern Dimension and the Barents Euro-Arctic Council (BEAC)’ (The Ministry of Foreign Affairs of the Russian Federation, 11 March 2022) <https://mid.ru/ru/foreign_policy/news/1803807/?lang=en> accessed 29 June 2023.

[39] Timo Koivurova and Akiho Shibata, ‘After Russia’s invasion of Ukraine in 2022: Can

we still cooperate with Russia in the Arctic?’ (2023) 59(e12) Polar Record 1, 3-4.

[40] Ibid.

[41] Ibid.

[42] Koivurova and others (n 4).

[43] UN Convention on the Law of the Sea 1982, 1833 UNTS 397 (UNCLOS), Part XI, Section 4 and Annex II. See also, Durfee and Johnstone, 185-189 (for a simplified account of the process).

[44] The Area in this context is always, capitalized, see UNCLOS (n 43) article 1.

[45] Commission on the Limits of the Continental Shelf, ‘ Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Partial Revised Submission made by the Russian Federation in respect of the Arctic Ocean on 3 August 2015 with Addenda Submitted on 31 March 2021’ (6 February 2023), para 73; Commission on the Limits of the Continental Shelf, ‘Progress of work in the Commission on the Limits of the

Continental Shelf, fifty-seventh session’ (23 January–10 March 2023) UN Doc CLCS/57/2, Item 5.

[46] Russian Federation, ‘Partial Revised Submission of the Russian Federation in respect of the Continental Shelf of the Russian Federation in the South-East Eurasia Basin in the Arctic Ocean: Executive Summary’ (14 February 2023) <https://www.un.org/depts/los/clcs_new/submissions_files/rus02_rev23/23rusrev2e.pdf> accessed June 26, 2023.

[47] Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (adopted 3 October 2018, entered into force 25 June 2021) OJ L 73, 15.3.2019, 3–8 (CAOFA).

[48] Meeting of the Conference of the Parties to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, ‘Report’ (23-25 November 2022) Doc CAOFA-2022-COP1-10. See also, paras 7 and Appendices 4 and 5.

[49] Ibid, Appendices 7 and 9.

[50] Ibid, para 3.

[51] CAOFA (n 47), Articles 4(4) and 5(1)(c).

[52] See, Inuit Circumpolar Council, ‘Inuit Delegates with Strong Presence at Central Arctic Ocean Fisheries Agreement Scientific Coordinating Group Meeting’ <https://www.inuitcircumpolar.com/news/inuit-delegates-with-strong-presence-at-central-arctic-ocean-fisheries-agreement-scientific-coordinating-group-meeting/> accessed 27 June 2023.

[53] See Erik J Molenaar, ‘Participation in the Central Arctic Ocean Fisheries Agreement” in Akiho Shibata, Leilei Zou, Nikolas Sellheim, and Marzia Scopelliti (eds), Emerging Legal Orders in the Arctic: The Role of Non-Arctic Actors (Routledge 2019) (explaining the straddling stocks issue).

[54] See also, Koivurova and others (n 4) 36-37.

[55] Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (adopted 12 May 2011, entered into force 19 January 2013) <https://oaarchive.arctic-council.org/handle/11374/531> accessed 27 June 2023; Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (adopted 15 May 2013, entered into force 25 March 2016) <https://oaarchive.arctic-council.org/handle/11374/529> accessed 27 June 2023; Agreement on Enhancing International Arctic Scientific Cooperation (adopted 11 May 2017, entered into force 23 May 2018) <https://oaarchive.arctic-council.org/handle/11374/1916> accessed 27 June 2023.

[56] Koivurova and Shibata (n 39) 5-6.

[57] Durfee and Johnstone (n 31) 222.

[58] See also Koivurova and others (n 4) 37.

[59] Zmyvalova (n 22) 410-11; Amy Mackinnon, ‘Russia is Sending its Ethnic Minorities to the Meat Grinder,’ Foreign Policy (Washington DC, 23 September 2022) <https://foreignpolicy.com/2022/09/23/russia-partial-military-mobilization-ethnic-minorities/> accessed 27 June 2023.

[60] Sanila-Aikio v Finland (2018) UN Human Rights Committee, UN Doc CCPR/C/124/D/2668/2015.

[61] ‘Controversial Sámi Bill Runs Aground in Parliamentary Committee’ Yle News (Helsinki, 24 February 2023) <https://yle.fi/a/74-20019662> accessed 27 June 2023.

[62] HR-2021-1975-S, (case no. 20-143891SIV-HRET), (case no. 20-143892SIV-HRET) and

(case no. 20-143893SIV-HRET), Supreme Court of Norway, Judgment, 11 October 2021.

[63] See, ‘— Days of Human Rights Violations. Illegal Income Since the Supreme Court Verdict’, <https://fosenticker.github.io/Fosen/?fbclid=IwAR1YAP_wDMLYDMKNiadX-fH5TvAbQ0ok-Fx58d7QKOTgS8Uh0atNvu4hHeo> accessed 28 June 2023 (for a ticker counting the days since the verdict and estimating the profits of the energy firm).

[64] Office of the chancellor of justice v Girjas sameby, case no T 853-18, Supreme Court of Sweden, 23 January 2020.

[65] Haaland v Brackeen, Docket nos 21-376, 21-377, 21-378 and 21-380, Supreme Court of the United States, 15 June 2023.

[66] Edwin A Miles, ‘After John Marshall’s Decision: Worcester v. Georgia and the Nullification Crisis’ (1973) 39(4) The Journal of Southern History 519–544, 519.

[67] The Constitutional Commission of Greenland, ’Forfatningskommissionens Betænkning’ (The Constitutional Commission 2023).

[69] Grønlands Forsoningskommission, ’Vi forstår fortiden; Vi tager ansvar for nutiden; Vi arbejder sammen for en bedre fremtid’ (Office of the Prime Minister of Greenland 2017).

[70] Christine Hyldal, ‘Hele Inatsisartut er enig: Der skal laves en udredning om spiralkampagnen’ KNR (Nuuk, 25 May 2022) <https://knr.gl/da/nyheder/hele-inatsisartut-er-enig-der-skal-laves-en-udredning-om-spiralkampagnen> accessed 27 June 2023; see also, DR, ’Spiralkampagnen’ (podcast) (Copenhagen 6 May 2022) <https://www.dr.dk/lyd/p1/spiralkampagnen> accessed 28 June 2023 (which first unveiled the scale of the Danish measures); Helle Nørrelund Sørensen, ‘Politikerne er enige: Afkolonisering af Grønland skal undersøges’ KNR (Nuuk, 4 June 2022) <https://knr.gl/da/nyheder/politikerne-er-enige-afkolonisering-af-gr%C3%B8nland-skal-unders%C3%B8ges> accessed 27 June 2023;  [70] Office of the Prime Minister of Denmark, ‘Danmark og Grønland beslutter historisk udredning af de to landes forhold’ (9 June 2022) < https://www.stm.dk/presse/pressemeddelelser/danmark-og-groenland-beslutter-historisk-udredning-af-de-to-landes-forhold/> accessed 27 June 2023.

[71] Sannhets- og forsoningskommisjonen, ‘Sannhet og forsoning – grunnlag for et oppgjør med fornorskingspolitikk og urett. Rapport til Stortinget fra Sannhets- og forsoningskommisjonen’ (1 June 2023).

[72] Sanningskommissionen för det samiska folket, ‘Om kommissionen’ <https://sanningskommissionensamer.se/om-kommisionen/> accessed 24 May 2023; Kväner Lantalaiset Tornedalinger, ‘Truth and Reconciliation Commission for Tornedalians, Kvens and Lantalaiset’ <https://komisuuni.se/en/start-en/> accessed 24 May 2023.

[73] ‘Truth and Reconciliation Commission Concerning the Sámi People’ (Finland) <https://sdtsk.fi/en/home/> accessed 27 June 2023.

[74] United States Senator Lisa Murkowski, ‘Murkowski Joins 26 Senators to Reintroduce Bill Seeking Healing for Stolen Native Children and their Communities’ <https://www.murkowski.senate.gov/press/release/murkowski-joins-26-senators-to-reintroduce-bill-seeking-healing-for-stolen-native-children-and-their-communities> accessed 27 June 2023.

[75] See, Priyasha Saksena, ‘Jousting over Jurisdiction: Sovereignty and International Law in Late Nineteenth Century South Asia’ (2019) 38(2) Law and History Rev 419 (on divisible sovereignty in colonial South Asia of the 19th century).

[76] The Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 UNTS 71, Article IV; see also Patrizia Vigni, ‘Territorial Claims to Antartica’ in Routledge Handbook of Polar Law (n 7), 33-46.

[77] EU Parliament, Resolution of 9th October 2008 on Arctic Governance (11 December 2008) OJ C 316 E 41, December 11, 2008; see also Greenpeace, ‘Protecting Lands: Creating an Arctic Sanctuary’ <https://www.greenpeace.org/usa/arctic/arctic-sanctuary/> accessed 27 June 2023.

[78] Foreign Ministers of Canada, Denmark, Norway, Russia, and the US, ‘The Ilulissat Declaration’ (28 May 2008); Inuit Circumpolar Council, ‘A Circumpolar Inuit Declaration of Sovereignty in the Arctic’ (28 April 2009), <https://www.inuitcircumpolar.com/icc-international/circumpolar-inuit-declaration-on-arctic-sovereignty/> accessed 27 June 2023.

[79] Convention for the Conservation of Antarctic Seals (adopted 1 June 1972, entered into force 11 March 1978 1080 UNTS 175 (CCAS); Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 1329 UNTS 47 (CAMLR Convention).

[80] Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 1.

[81] On consensus decision-making, see Kees Bastmeijer, ‘Introduction: Madrid Protocol 1998 – 2018. The need to address ‘the Success Syndrome’ (2018) 8(2) The Polar Journal 230.

[82] ‘ATCM XLIV – CEP XXIV List of Participants,’ ATCM XLIV (n 20) Doc AD003. One of the ‘virtual audience’ for the main ATCM attended the CEP as the Russian representative. The Head of delegation and alternative both attended the CEP virtually as did the other three who had also joined the ATCM as virtual audience. The ATCM alternate for the Russian Federation did not attend the CEP.

[83] Ibid. Belarus had 4 ATCM delates, one of which was also a CEP delegate, plus one other CEP delegate. Ukraine had 7 ATCM delegates, of which two were also CEP delegates.

[84] ‘25 Antarctic countries supported Ukraine and staged a démarche to the representative of the Russian Federation during the Antarctic Treaty Consultative Meeting’ (Ukraine State Institution National Antarctic Scientific Center, 24 May 2022) <http://uac.gov.ua/en/25-antarctic-countries-supported-ukraine-and-staged-a-demarche-to-the-representative-of-the-russian-federation-during-the-antarctic-treaty-consultative-meeting/> accessed 27 June 2023.

[85] ATCM XLIV (n 20).

[86] By definition and design, only well-resourced States can become new Consultative Parties as they must demonstrate scientific work in Antarctica to qualify for consultative status, see Antarctic Treaty, article IX.

[87] Helsinki Declaration on Climate Change and the Antarctic, Resolution E (2023) of the Forty-fifth Antarctic Treaty Consultative Meeting’ available from Ministry for Foreign Affairs of Finland (9 June 2023) <https://um.fi/current-affairs/-/asset_publisher/gc654PySnjTX/content/helsinki-declaration-on-climate-change-and-the-antarctic> accessed 27 June 2023.

[88] The ATCM would not be the appropriate forum in which to negotiate climate mitigation, adaption or financing obligations; rather that takes place – or does not take place as the case may be – at the globally representative UN Framework Convention on Climate Change Conference of the Parties: ‘Conference of the Parties’ (United Nations Climate Change) < https://unfccc.int/process/bodies/supreme-bodies/conference-of-the-parties-cop> accessed 27 June 2023.

[89] Timo Soini, ‘Statement by the Chair on the Occasion of the Eleventh Ministerial Meeting of the Arctic Council’ (Rovaniemi, 6-7 May 2019) < https://um.fi/documents/35732/0/Rovaniemi-Statement-from-the-chair_FINAL_840AM-7MAY.pdf/8ae0c2a6-fe6a-43e2-2326-f145e8a536cf?t=1557218507134> accessed 27 June 2023; see also Timo Koivurova, ‘Lessons from Finland’s Chairmanship of the Arctic Council’ (2020) 12 Yearbook of Polar Law 197.

[90] See Alan D Hemmings and Timo Koivurova, ‘International Regulation of Mineral Resources Activities in the Polar Regions’ in Routledge Handbook of Polar Law (n 7) 310-13.

[91] Question of Antarctica, UNGA Res 47/57 (9 December 1992), para 9.

[92] See, Hemmings and Koivurova, 311-12.

[93] See, ‘Helsinki Antarctic Meeting Culminates in Agreement on Climate Declaration’ Statement by the Host Country (Ministry for Foreign Affairs of Finland, 14 June 2023) <https://um.fi/current-affairs/article/-/asset_publisher/iYk2EknIlmNL/content/helsingin-etelamanner-kokous-huipentui-sopuun-ilmastojulistuksesta/35732?fbclid=IwAR2avMNIkXIm0dYS1ek6qclunf1a8xLPuDrdSj7cTTAv8SGDcw47_81sOxs> accessed 27 June 2023.

[94] See Kees Bastmeijer and others, ‘Regulating Antarctic Tourism: the Challenge of Consensus-Based Decision-Making’ (2023) AJIL doi: 10.1017/ajil.2023.34 (on the challenges of regulating tourism under consensus system).

[95] Ibid, 2-3.

[96] Antarctic Treaty (n 76), Article IX(2).

[97] Andrew Silver, ‘Ukraine Freezes Belarus Out of Antarctic Research Work’ (Research Professional News, 16 June 2023) <Ukraine freezes Belarus out of Antarctic research work – Research Professional News> accessed 29 June 2023.

[98] See Akiho Shibata, ‘Looking Towards 2026 ATCM (in Kobe?): Some Homework to Do’ (Kobe PCRC Antarctic Open Symposium Series 2022, 2 December 2022) <https://www.youtube.com/watch?v=ZjCjojfqdqM> accessed 27 June 2023.

[99] See Rachael Lorna Johnstone, ‘Global Polar Law?’ in Kamrul Hossain (ed) Current Developments in Arctic Law X, 70, 72.

[100] CAMLR Commission, ‘Third Special meeting of the Commission’ (19-23 June 2023), <https://meetings.ccamlr.org/en/ccamlr-sm-iii> accessed 29 June 2023.

[101] See, e.g., ‘International Meeting on Antarctic Ocean Protection Ends with No Further Progress’ (Nature MCM/Martin CID Magazine, 25 June 2023) < https://martincid.com/en/2023/06/international-meeting-on-antarctic-ocean-protection-ends-with-no-further-progress/> accessed 27 June 2023.

[102] See Kees Bastmeijer and Rachael Lorna Johnstone, ‘Environmental Protection in the Antarctic and the Arctic: the Role of International Law’ in Malgosia Fitzmaurice and others (eds) Research Handbook of International Environmental Law (Edward Elgar 2021) 459, 470 (on science-based decision-making as a barrier to substantive action on Antarctic MPAs).

[103] See, Gastautor, ‘China and Russia are Blocking Creation of a Third Antarctic Marine Protected Area’ Polar Journal (Zurich, 19 June 2023) <https://polarjournal.ch/en/2023/06/19/china-and-russia-are-blocking-creation-of-a-third-antarctic-marine-protected-area/> accessed 27 June 2023.

[104] Stockholm Declaration on the Human Environment (1972) 11 ILM 1416.

[105] Madrid Protocol (n 80), Annex I; CCAMLR Secretariat, ‘Elimination of IUU Fishing and the World’s First Catch Document Scheme’ (CCAMLR, 7 October 2021) <https://40years.ccamlr.org/elimination-of-iuu-fishing-and-the-worlds-first-catch-document-scheme/> accessed 27 June 2023.

[106] Maria Katsivela, ‘The IMO and Outstanding Maritime Safety and Environmental Issues under the Polar Code’ in Routledge Handbook of Polar Law (n 7), 325, 332-341.

[107] ATCM XLIV (n 20), para 345.

[108] ‘Non-Governmental international Organizations which have been granted consultative status with IMO’ (International Maritime Organization) <https://www.imo.org/en/OurWork/ERO/Pages/NGOsInConsultativeStatus.aspx> accessed 27 June 2023.

[109] ASOC report to the ATCM, Agenda item ATCM 4 (22 April 2022) <https://www.asoc.org/wp-content/uploads/2022/08/ASOC-report-to-ATCM.pdf> accessed 27 June 2023.

[110] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) 3156 UNTS

[111] Fiona Harvey, ‘Shipping Emissions could be Halved without Damaging Trade, Research Finds,’ The Guardian (London, 26 June 2023) <https://www.theguardian.com/environment/2023/jun/26/shipping-emissions-could-be-halved-without-damaging-trade-research-finds> accessed 27 June 2023.

[112] Draft Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction,’ UN Doc A/CONF.232/2023/L.3 (BBNJ Agreement).

[113] Ibid, Article 68.

[114] Ibid, Articles 7, 13, 19, 21, 24, 26, 31, 32, 35, 37, 41, 44, 48, 49, 51 & 52. See also Preamble.

[115] Edwin Egede, ‘The International Seabed Authority and the Polar Regions’ in Routledge Handbook of Polar Law (n 7) 342, 347-351.

[116] Ibid, 354-355.

[117] Ibid, 353-4.

[118] The map is reproduced in Donald R Rothwell and Tim Stephens, The International Law of the Sea (2nd ed. Bloomsbury 2016) 129.

[119] MarineRegions.org, GEBCO, NOAA, ‘Map of the Area’ (International Seabed Authority) <https://www.isa.org.jm/maps/map-of-the-area/> accessed 27 June 2023.

Special Guest Foreword: Our Home the Arctic

Introductory note, , , , ,

The Arctic has in recent years received outsized attention in international discourse. A perceived last frontier of uninhabited and ungoverned spaces – of which it is neither – ripe for great power competition – for which there is little appetite.

In this special issue on International Relations Theory, the Arctic is examined through the tenets of IR Theory with a firm grasp of the region’s complexities, diversity and fairly clear-cut position in international legal hierarchies.

Not only is the Arctic a home to over 4 million people, it is also a relatively well defined space from the perspective of international governance. All landmass falls under the national jurisdictions of the eight Arctic States or their sub-national jurisdictions. All sea falls under either national jurisdictions or is governed by the tenets of the UN Convention on Law of the Sea, under the auspices of which a number of bilateral and multilateral agreements have been made. The Central Arctic Ocean is the largest area of high seas in the Arctic. Surrounded by the exclusive economic zones of the Arctic States, it is as well subject to international governance through the legally binding Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, signed in Ilulissat, Greenland on October 3, 2018, and entered into force on June 25th, 2021.

The Arctic Council, the leading intergovernmental forum for the region, serves to promote cooperation and coordination among its members, the Arctic States and its Permanent Participants which represent the Arctic Indigenous peoples. It also serves as an interlocutor to the Observers to the Council, including non-Arctic states, governmental and non-governmental entities.

Thus despite the sometimes high strung exclamations to the contrary, so far all is well in the Arctic when it comes to international cooperation and collaboration. The primacy of national sovereignty combined with observance and respect for the rules and norms of international law, all give substance to the policy of maintaining peaceful cooperation and coexistence so steadfastly pursued by the governments of the Arctic.

This does not mean the region is without its challenges, including but not limited to crowded housing, food insecurities, limited health service in remote communities, lack of connectivity, insufficient infrastructure and ever more rapidly warming climate. Sustainability, economic challenges or opportunities, the impact of climate change, geopolitical rivalries, environmental degradation, all impact a fragile and important region, often disproportionately.

The Covid-19 pandemic has in fact highlighted some of these challenges. Political developments on the national and international level do so as well. To maintain the Arctic as an area of peaceful coexistence and cooperation will become an ever-increasing challenge, not least due to the increasing complexities of the challenges we who call the Arctic home are facing.

For Iceland, managing these challenges, during its two year Chairmanship of the Arctic Council, combined with a global pandemic, was not always easy. It is, however, a task successfully completed. Not least due to the fact that everyone involved kept their focus, recognizing that failure was not really an option. In the end, at the Reykjavik Ministerial at the end of May 2021, an ambitious Strategic Plan for the next ten years of the Council’s work was agreed, collectively and by consensus, accompanied by a comprehensive Ministerial Declaration highlighting our shared challenges and achievements. It certainly provides a positive gateway to the next two years of the Russian chairmanship of the Council.

The security dimension remains outside the scope and function of the Arctic Council. Rightfully so, as it would without any doubt impede its other work. That does not preclude us from finding an eventual appropriate home for those deliberations. That will be one of the tasks for the next months and years, and indeed, Russia’s Foreign Minister Lavrov, at the Reykjavik Ministerial, called for the resumption of meetings among Arctic Chiefs of defense.

In this collection of essays and articles you will find interesting, illuminating and challenging observations and insights for anyone intrigued by the Arctic from any angle, be it environmental, societal, economic or geopolitical – a resource and inspiration for further deliberation.

For any scholar of International Relations Theory, the compilation provides a vibrant insight into our region from a theoretical perspective not often seen – a foundation from which to study and reflect on the dynamics we see.

To Dr. Zellen and his students and colleagues who have accomplished this excellent work and provided their keen insights I offer my congratulations and sincere appreciation for being allowed to bask a bit in the glory of their collective achievements.

Fridrik Jonsson
Iceland’s Senior Arctic Official
November 2019 – June 2021

Svein Vigeland Rottem, The Arctic Council: Between environmental protection and geopolitics (London: Palgrave Pivot, 2020)

Book review (editorial review), ,

In 1996, government officials of eight States, who would later be known as the “Arctic 8”, gathered in Ottawa alongside representatives of the Inuit Circumpolar Conference (now Council), the Saami Council and the Association of Indigenous Minorities of the North, Siberia and the Far East of the Russian Federation (now RAIPON) to sign the Ottawa Declaration on the establishment of the Arctic Council. To the few attentive observers and experts present at the time, the Arctic environment was already undergoing drastic physical changes. Arctic collaboration, however, was not high on the agenda. A forum bridging the gap between politics and Arctic scientific research was therefore regarded as a means to develop cooperation on environmental issues.

As the world of Arctic governance celebrates the council’s 25th anniversary, it does not come as a surprise to see an array of both monographs and edited volumes looking back at how this high-level intergovernmental forum has managed to put itself at the centre of Arctic affairs. Published last year (2020), Rottem’s The Arctic Council: Between Environmental Protection and Geopolitics gives a rather thorough overview of the history and work of the Arctic Council. It is a careful retelling of the Council’s well-documented journey from a body solely focused on environmental matters in the late 1990s and early 2000s to one that finds itself at the forefront of international cooperation in the Arctic. In the now typical style of Palgrave’s Pivot series, which often offers concise and to-the-point introductions to specific specialised topics in around a hundred pages, the book manages to explore the nuance and diversity of an organisation whose prime focus is the production of relevant Arctic knowledge.

The Arctic Council is, of course, only one element of Arctic governance. Many other more regional and subregional fora spring to mind when thinking of Arctic cooperation (e.g. Barents Euro Arctic Council, West Nordic Council, Arctic Military Environmental Cooperation Program, Northern Forum, etc). However, few have found themselves under so much spotlight as the Arctic Council has. Studies and publications about the council’s role in Arctic governance, such as The Arctic Council, have therefore become common occurrences. Across five different chapters, the book weaves Rottem’s own broad experience and knowledge of Arctic issues with the history and challenges facing regional cooperation.

Readers interested in the functioning of the Arctic Council will, without doubts, relish reaching Chapter 4 where Rottem advocates for ways in which the Arctic Council could be reformed to foster closer coordination. Of course, the conversation around reforming the Arctic Council is not a new one. For instance, a few years ago, Exner-Pirot et al.[1] and Smieszek[2] published their research assessing the Council’s strengths and weaknesses in light of the 2019 strategic plan. Acknowledging that both efficiency and effectiveness are key for the AC going forward, these recent publications suggested concrete recommendations to improve the Arctic Council’s form, function, and funding streams. In the same vein, Rottem’s The Arctic Council regards structural changes as key for the high-level intergovernmental forum to keep its place as the main venue for discussions around the future of Arctic governance (p.73).

Once again, rooting its analysis in calls for past reforms and ensuing reports, the book identifies some proposals to streamline the Council’s work. According to Rottem, the recurring challenges for the AC are the lack of clear long-term vision and strategy that could offer certainty and continuity to the Council’s work (p. 86). Amongst his suggestions, the author makes the case for appointing an expert panel tasked to overview potential structural changes, discuss and recommend steps to improve coordination, avoid overlaps between Working Groups and reorganise the Council’s structure. The idea of a clearer strategic vision is pivotal to Rottem’s book. His other suggestions, the creation of an Arctic Summit and holding SAO meetings in capital cities for relevant organisations to attend and partake in an “Arctic Week”, are both linked to give the Council’s a broader reach and better clarity going forward.

Beside chapter 4, which explores the above-mentioned recommendations, there is nothing significantly new about the book. Rather, it is an ode to the Arctic Council itself, as a platform navigating between the global and regional challenges of a changing region. Early in the book, Rottem expresses the hope that having read it, readers would have gained some understanding of the Arctic Council (p. 2). With The Arctic Council, not only does Rottem provides some understanding of the Council, but he also manages to brush a complex and nuanced portrait of its crucial role as a focal point for bringing a broad range of different stakeholders, not just indigenous representatives and state governments, to the same table, or at least to the same room. The Arctic Council provides a starting point for people interested in geopolitics, from seasoned academics to undergraduate students, who are looking to dive into the world of Arctic affairs.

Endnotes

1 Heather Exner-Pirot et al, “Form and Function: The Future of the Arctic Council”, The Arctic Institute (5 February 2019) Available online: https://www.thearcticinstitute.org/form-function-future-arctic-council/

2 Gosia Smieszek, “Costs and Reality of Reforming the Arctic Council”, The Arctic Institute (9 April 2019) Available online: https://www.thearcticinstitute.org/costs-reality-reforming-arctic-council/

Andreas Raspotnik, The European Union and the Geopolitics of the Arctic (Cheltenham & Northampton: Edward Elgar, 2018)

Book review, , , ,

Andreas Raspotnik, in his new book “The European Union and the Geopolitics of the Arctic”, critically scrutinizes the decade-long history of successes, failures and attempts of the European Union in constructing its own legitimacy and credibility in the multi-layered geopolitics of its “northern neighborhood”, the Arctic. In doing so, the author attempts to define this “unknown” but yet a “component of the Arctic geopolitics”, that is to say the EU, and to provides his own response to the long-standing matter of which role the EU has to play in the region.

One immediate question that arises in the mind of those who are more familiar with EU’s studies, especially with regards to the Arctic, is not if the EU has an influence in the Arctic region, but whether the EU holds the actual capacity to act as an international actor in the given geopolitical context. Regardless of EU’s formal acceptance as an observer to the Arctic Council – now a symbolic token, as the EU can de facto observe, taken by too many as the ultimate proof of EU’s extraneousness to the region – this politico-economic Union of 28 Member States has shown clearly over the years both its negative and positive influence, yet influence nonetheless; though the question remains in which capacity. Raspotnik raises this question in his introduction, and skillfully adds another layer to this already complex picture, by using his study to “question [EU’s] broader role as an international actor with evolving geopolitical identity”. The study won’t provide the reader with a clean-cut answer, as the very last sentence of the book suggests – “[u]ltimately, the European Union attempts to act as sui generis geopolitical actor in the Arctic” – but it is a classic example of research where the journey itself is more relevant than the destination.

The main text of the book is structured in 5 parts which, excluding “Introduction” and “Conclusions”, compose the title of the book: II) Geopolitics, III) The Arctic, and IV) The European Union. This structure underlines the choice and need of the author for excavating and critically analyzing each of these concepts before providing – in an almost Hegelian fashion – a final synthesis. This book is indeed very well researched, and combines a vast literature of classic “Arctic Geopolitics” scholars, interviews, official documents and speeches given by EU representatives. Under several aspects – e.g. the use of explanatory “boxes” within the text and the careful contextualization of each new term used – this book could be positively marked as a textbook for students in geopolitics or European studies or a vade mecum for scholars, without ever providing a superficial account of the issue it addresses.

Raspotnik’s sets the start of his journey in 2007/2008, when high-level representatives of the EU and its member states – J.M. Barroso (former president of the EU Commission), Angela Merkel and Romano Prodi – all visited in different moments the new “Mecca of climate change”, Greenland, to experience first-hand the ice-cap melting. The Arctic was, in the meanwhile, experiencing a new moment in the global media, with the Russian flag being planted more than 4000 m beneath the North Pole, or the new record low in the Arctic Ocean’s sea-ice extent in September 2007. In addition, climate change – which will quickly turn into one of the strongest leitmotifs of the European Union’s narrative in the Arctic – was also having a new impetus in the same years and made it to the top of the G8 Summit agenda in Bad Doberan/Heiligendamm (Germany). Therefore, climate change, (potential) availability of resources, environmental and social challenges turned into a potential security issue for the EU, which, with the strong encouragement of Finland, added the Arctic to its “neighborhood’s radar”. In 2008, the EU formally started developing its own Arctic Policy.

This process took about 10 years, many documents and speeches, and for many observers it is not even yet fully finalized. The chapter dealing with this “policy-in-the-making” process is actually one of the highlights of this book. An overview that too easily risks turning into a repetitive and pedantic mantra – given the nature itself of the EU’s structure where documents/proposal need to bounce among the EU Parliament, the Commission and the Council (and repeat this itinerary several times) – was given new life. The author alternates the description of each step taken toward the development of an EU Arctic Policy with an “external reading”, combining in this way facts with his analyses.

The formal analysis used in the book, while accomplishing the need for providing a deep understanding of the EU’s role in the Arctic, runs into the same negative underestimation made by the EU regarding the role of indigenous people in the Arctic geopolitics. Reading this book, likewise most of the narrative and approaches used by the EU itself, the feeling is that the indigenous peoples of the Arctic appear more as a cameo – or a political/formal duty to be discussed – rather than part of Arctic geopolitics. In the description of the Arctic’s layered geopolitics, for example, a good overview is provided with regards to the “issue of eight national identifies”, but no mention at all is given regarding Indigenous peoples’ visions for their own territories. The role of Indigenous Peoples Organizations (IPOs) within the Arctic Council is only formally addressed and therefore minimized (“although the AC includes IPOs, decision making formally remains with its core members, the A8”), and the “seal-issue”, which ultimately costed the EU its formal acceptance as observer at the Arctic Council from 2009 to 2015 (then the Crimean crisis came into play) is dealt as a largely solved political issue, which formally and politically it is, but not in practice, at least for some of the indigenous peoples of the Arctic.

Timo Koivurova, QIN Tianbao, Sébastien Duyck & Tapio Nykänen (eds.), Arctic Law and Governance: The Role of China and Finland (London: Hart Publishing, 2017)

Book review (editorial review), , , , , , , ,

This edited collection of essays is the product of a two-year project to assess and compare Chinese approaches to the Arctic with Finnish and/or EU approaches. These three entities are quite distinctive in population, politics and power and hence are not an obvious triumvirate. Nevertheless, the books’ chapters draw out interesting points of comparison. China is a relative newcomer to international relations and economic development in the Arctic. Backed by both military and economic clout, it triggers concerns amongst Arctic inhabitants and other stakeholders regarding its ambitions. Such worries are not helped by China’s closed political decision-making and limited official statements on its Arctic policies. This project, therefore, aims at increasing knowledge and understanding of China’s interests and expectations in the region.

The introduction to the book provides a good summary of the analyses that follow in the self-standing chapters which are themselves grouped into three Parts: Chinese Perspectives; Comparison between Finland and China; and Comparison between the EU and China. As a collection of essays, the book does not have a single or overarching thesis as such but a number of common themes are identified in the introductory and concluding chapters (by the 4 editors). One repeated them is climate change and pollution. Climate change is not coming to the Arctic: it is already here. China is the World’s biggest fossil fuel consumer and responsible for 29% of global greenhouse gas emissions (the EU, 11%). However, black carbon – a short term climate forcer – in the Arctic comes mostly from Europe. Europe is also a more significant source of the persistent organic pollutants (POPS) that end up in the Arctic (7). Another theme is economic development: even if the rights to exploit natural resources lie with the Arctic States and the peoples within them, the viability of doing so pivots on demand – and that demand is predominantly Chinese and European (8.)

The chapters go a long way to making up for China’s decision not to publish a comprehensive Arctic strategy or make regular and clear statements about its Arctic plans. China is not necessarily to be blamed for this: China is a lot more significant in the Arctic than the Arctic is for China, even if the book demonstrates that Chinese interest (and interests) in the Arctic have grown swiftly in recent years.

QIN Tianbao and LI Miaomiao’s chapter, “Strengthening China’s Role in the Arctic Council” calls for an official Chinese Arctic strategy but is itself rather more candid than an official State policy document is likely to be and as a result, probably more useful. The two authors make a rather bold proposal that China become a fully-fledged member of the Arctic Council (42), which will raise a few eyebrows amongst the more territorially sensitive of the Arctic States. Let’s just say that an official, published Chinese Arctic strategy is the more likely of the two scenarios in the near-term!

Ren Shidan turns to Chinese Arctic research and points to, amongst other things, frustration with Russia regarding access (53). She argues for freedom of research in the Arctic and rejects arguments that Chinese research is a foil for long-term plans to strip the region of resources. However, her concerns regarding Norway’s interpretation of the Svalbard Treaty (concerns shared by a number of European states) turn the chapter back to resource development (55-57).

Julia Jalo and Tapio Nykänen identify Chinese priorities in the Arctic based on World Affairs (a government-controlled magazine and unofficial mouthpiece). Only nine articles on the Arctic have been published since 2004 (indicating that the Arctic is still a relatively peripheral zone in Chinese politics). However, eight of these articles were published in 2008 or later, peaking when Chinese sought and accepted its seat as an observer at the Arctic Council in 2013, suggesting that interest is growing. The authors recognise that China is often viewed as a ‘threat’ in the Arctic, especially by those taking a classical realist approach, but they conclude that either China is indeed playing down its real intentions or that (more likely in their view) China is genuinely concerned about climate change and other environmental problems in the Arctic. In either case, they agree with QIN Tianbao and LI Miaomiao that a published strategy would help to clarify the situation.

Xiaoyi Jiang and Xiaoguang Zhou then consider maritime sovereignty and rights in the Arctic, looking in particular at the potential of the Northern Sea Route as an alternative to (or at least a supplement to) the Malacca route – even if they also note that Chinese shipping companies are adopting a ‘wait-and-see’ approach (96). They comment that China “has virtually no influence on the decision-making process at ministerial meetings” (of the Arctic Council)(90) and, like the other Chinese contributors, note that China is trying to be viewed as a partner in the Arctic rather than a threat (95).

Part II brings us to Finland with Lassi Heininen’s assessment of Finland, the EU and China and the asymmetry between them. Climate change – and China’s potential to take a lead role – is once again a key theme (107). Heininen sees common interests in shipping (Finland builds; China ships) (109); scientific research; resource governance and international cooperation (129). However, Finland and China also have shared interests in resource development in the Arctic (Finland produces; China buys) (118-120).

Tapio Nykänen presents the other chapter in this Part, using critical geopolitics to explore how the Arctic is framed in Chinese and Finnish Discourses. He agrees with the other writers that China is trying to build trust in the Arctic, seeking to present itself as a constructive partner (137). He analyses China’s position as a self-declared ‘near-Arctic state’, pointing out that geographically, it is extremely far from the Arctic Circle but arguing that instead it is geocritically close (140). Nykänen recognises China’s contributions to Arctic science but sees a political undercurrent to this: science is a ‘door’ through which China can claim a legitimate interest in Arctic governance (140).

Chapter Eight (Timo Koivurova, Waliul Hasanat, Piotr Graczyk and Tuuli Kuusama) is based on interviews with participants in the Arctic Council system, Chinese officials and scholars. It produces original, qualitative research on China’s position within the Arctic Council and identifies issues that would be unlikely to be uncovered by looking only at official publications. For example, the authors report that some Chinese officials are unhappy with the Nuuk criteria on observers (169)). They also identify a problem in the delegations which both lack continuity and do not always match the mandates of the working groups (175-177).

On fisheries, Sébastien Duyck sees shared interests in China and the EU – both being major fisheries jurisdictions and being outsiders seeking to ensure that their industries are considered in any new regime for the Central Arctic Ocean (Chapter IX). China, Duyck points out, is a ‘developing country’ and positions itself as a ‘leader’ of the G77 (196). Its policies on fisheries differ from the EU, being more defensive of High Seas freedoms and rational use, compared to a more conservationist (or even preservationist) orientated EU (197-198).

Adam Stepien considers China’s and the EU’s respective engagement with indigenous peoples. China maintains the questionable position that it has no indigenous peoples inside of China (222).  On the one hand, this means that China is not unnecessarily concerned with establishing precedents that could complicate matters at home (cf its position on international straits and Arctic shipping) but on the other hand, means that it has no experience and limited understanding of the stakes for indigenous people. China talks the talk (for example supporting indigenous rights in the UN – as long as it is clear that they don’t apply to or in China! (223)) but its engagement is uncoordinated and inconsistent (216). Environmental impacts are once more brought to the fore as Stepien explains that European and Chinese emissions are a major threat to indigenous communities (210-211). The EU, recognising the Sámi as the only indigenous people within the EU itself, has a more proactive stance on Arctic indigenous peoples and is, in theory, supportive of indigenous rights (218). That does not mean, however, that the EU always gets things right.

Nengye Liu and Kamrul Hossain address navigation in the Arctic and highlight the dependence of China’s economic strategy on shipping (243). The Northern Sea Route (less so the Northwest Passage) holds the promise of faster, cheaper shipping untroubled by the politics of alternative routes but, for now, this is still only a promise. While the shipping companies take things cautiously, the government has published the first Chinese guidelines on Arctic shipping (244). Like Xiaoyi Jiang and Xiaoguang Zhou, they note that China did not get involved in the development of the Polar Code and wonder if Chinese delegates to the IMO could take a more active role (247). They also suggest that China work alongside Japan and South Korea to promote (and defend) its shipping interests at the Arctic Council (249).

The concluding chapter by the four editors draws together the main findings of the contributions, reiterating the centrality of climate change and the consequent expectations of a natural resources boom (253-254). They note the resistance of the Arctic Eight to (too much) non-Arctic State involvement and how the Arctic Council system keeps the most powerful outsiders – like the EU and China – relatively subdued (261). Like most recent academic work on the Arctic, the final conclusion is that the answers are there and can be reached peacefully. International law has the answer to most questions; and for the others, it has processes by which to find, peacefully, those answers.

Although a number of writers call for a Chinese Arctic policy or strategy, this book gives us much more than any state policy every could. The original research and analysis by both Chinese and European scholars helps readers understand the dragon and, hopefully, fear it less. Nevertheless, there are subtle differences in approaches, with the Chinese authors tending to play down China’s resource ambitions and emphasise science and environmental concerns with some of the European contributors implying that China’s scientific contributions are driven by those very resource ambitions. I would wholeheartedly recommend this collection to anyone working on international law, international relations or economic development in the Arctic. Well edited, it is an accessible read for students as well as more seasoned academics. Even were the Chinese government to respond to the call to publish a formal strategy, it will not replace the excellent scholarship in this book.

Little Fish, Big Pond: Icelandic Interests and Influence in Arctic Governance

Conference proceedings (double blind peer review), , , , ,

Introduction

On pretty much any measure of international comparison, Iceland is a little fish. Nevertheless, its geographical location next to the Big Pond that is the Arctic Ocean has put in a position of influence in a region of growing international importance.

In this paper, I will explore Iceland’s influence in the Arctic region based on international relations considerations such as its political alliances; and based on international law: Iceland’s rights and responsibilities.

The paper presents the Arctic Council and Iceland’s role within it before turning to issues that are governed outside of the Arctic Council system, in particular, Arctic fisheries and maritime boundaries. The paper explains Iceland’s approach to Arctic cooperation in light of its published policy documents and explore the tools available to Iceland to defend its interests.

Iceland as a ‘Small State’

Small States seek shelter: usually on a regional basis.[1] They make alliances to advance their objectives and protect themselves from the lions. On hard security issues, Iceland finds this in the folds of NATO. The Arctic Council does not address hard security issues at all – and despite some heated press coverage, Russia is not posing a military threat in the Arctic, to Iceland or anyone else. But Iceland also needs economic and environmental security which it has fostered through Nordic cooperation, EFTA, the EEA and, of increasing importance, the Arctic Council.

International relations provides a number of objective criteria on which to measure a State as ‘small’: population, territory, GDP and military.[2] States may be small by one measure but not by another – for example, having a very large territory but a tiny military; or having a small population but a high GDP.

In a global context, Iceland is very small. Its surface area amounts to less than 0.07% of the Earth’s land; its population less than 0.005% of the World’s; its GDP is under 0.02%. And Iceland has no military as such.

But States are also big or small in a given geopolitical context: the Kingdom of Denmark is a small State in global affairs but not in the Nordic Council. Being ‘small’ or even ‘very small’ is a relative matter rather than an absolute. Therefore although Iceland is a very small State at the international level, within the Arctic Council system, it exerts an influence that belies its small territory, population and economy.

Iceland’s Relative Size in the Arctic Council

‘The Arctic’ has a number of different definitions for different purposes, even within the Arctic Council system itself. For example, the area covered by the sustainable development working group is based on human interests; the protection of the marine environment working group is only concerned with the seas; conservation of arctic flora and fauna is determined by ecosystems. In all cases, Iceland is included in its entirety even if almost all of it sits below the Arctic Circle. By contrast, for the purposes of the Polar Code, agreed through the global International Maritime Organisation (IMO), Iceland is entirely to the South of the protected area: this is based on considerations of the marine conditions – temperature and ice-cover especially.

The Arctic Council consists of the eight States with territory that stretches above the Arctic Circle: Canada, the Kingdom of Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States of America. In addition, there are six permanent participants: these are organisations of indigenous peoples from around the Arctic. Each is transnational in character. Five permanent participants represent peoples that inhabit more than one State: the Aleut International Association, the Arctic Athabaskan Council, Gwich’in Council International, Inuit Circumpolar Council and Saami Council.  The sixth is the Russian Association of Indigenous Peoples of the North and represents over 40 small-numbered indigenous peoples in Northern Russia.

When thinking about small State theory, how ‘small’ is Iceland in the Arctic Council?

Iceland is still very small when territory is considered: it is dwarfed by the Russian and Canadian Arctics. However, when looking at population, Iceland is not far from the average with a population of approximately 330,000 (see Figure 1).

Arctic populations
Figure 1: Arctic populations

However, these figures are based on assuming that the whole of Iceland is ‘Arctic’. This is indeed the position of the Icelandic government and important to securing its legitimate participation in Arctic governance. Foreign Minister Össur Skaphérðinsson stated in his introduction to the Icelandic Arctic Policy statement in 2009 that: “Iceland is the only state that is wholly within the Arctic area, as it is generally understand international affairs or at the Arctic Council.”[3]

The current draft policy, Iceland’s Interests in the Arctic, goes even further and suggests that Iceland is somehow more Arctic than its neighbours – in which the vast majority of the population and the territory (but for the Kingdom of Denmark) lies well south of the 66th parallel.

 

Iceland is unique when we compare it to other nations that are geographically part of the Arctic. Most other countries, aside from Greenland, are predominantly South of the Arctic according to these definitions and their populations live mostly outside of the Arctic.[4]

If we then stop to consider the observers at the Arctic Council, the Iceland once more disappears – over half the World’s population is now represented in some form at the Arctic Council.

Further, it is not just the observer States and intergovernmental fora that make Iceland look little: WWF, observer at the Arctic Council, has a membership in excess of 5 million people. These are not just people who happen by birth to be affiliated to a particular State; these are people who care enough about WWF’s priorities, including its Global Arctic campaign, to pay an annual subscription.

The History of the Arctic Council

So how can Iceland exert its influence at the Arctic Council? And why was it in favour of the great expansion of observers in 2013? To understand this, we need to explore the Arctic Council’s origins and the way it functions today.

In the 1970s and 1980s, the only international interest in the Arctic was how long it would take to fire an intercontinental missile across it. A diligent doctoral student in the 1980s (now a very well-known professor of law of the sea) was told by his supervisor that he was wasting his time writing about the Northern Sea Route!

Iceland invited Gorbachev and Reagan to meet for disarmament talks in Reykjavík in 1986 and although no agreements as such were agreed, it was sufficient – no pun intended – to break the ice.

It was Gorbachev who then came along with the olive branch: the speech at Murmansk in 1987 in which he identified six areas that he saw as ripe for cooperation:

  • A nuclear weapons-free zone in Northern Europe;
  • Reductions and restrictions on naval activity in Northern Europe;
  • Cooperative development of hydrocarbon resources in the Arctic;
  • Scientific cooperation;
  • “Cooperation of the northern countries in environmental protection”; and developing “jointly an integrated comprehensive plan for protecting the natural environment of the North”; and
  • Opening of the Northern Sea Route to international vessels.[5]

Finland seized on this overture and initiated the Rovaniemi Process which in turn led to the Arctic Environmental Protection Strategy (AEPS) in 1991.[6] Pointedly, this initiative was established at a meeting of 8 ministers for the environment, not foreign ministers. The four original working groups, later joined by Sustainable Development and, under the Arctic Council, Arctic Contaminants Action Program (ACAP), are all environmentally oriented.

The transition to the Arctic Council in 1996 was effected through the Ottawa Declaration.[7] This change indicated a much broader range of interests: this was no longer solely a forum for managing shared environmental threats and clean-up activities – it was now, in theory at least, able to address any shared concerns with the explicit exception of military security. According to the Ottawa Declaration, the Arctic Council is established to “provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of Arctic indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.”[8]

But in 1996, the Arctic Council was still a fairly marginal institution and outside concern with the Arctic did not extend much beyond preservation of polar bears. Even in Iceland, there was little awareness of the Arctic as a geopolitical region as such or Iceland’s place within it. Iceland looked South to Europe and West to North American for trade but it did not really look North.

Between 1996 and 2000, the number of permanent participants rose from two to six and in the early 2000s, there was a slow but gradual increase in the number of observers. Iceland took the rotating chairmanship from 2002-2004; this also happened to be the time when international interest in the Arctic took off. By around 2005, the Arctic was gathering more and more attention in international relations, international law, development, economics and environmental scholarship and activism. The battle lines were being drawn between those that wanted it closed off as an international natural park; and those that wanted to exploit its apparently abundant resources (forgetting, perhaps, that Russia had been exploiting Arctic resources since at least the times of Stalin).

From about 2010 onwards, five rising Asian States, Italy and the European Union were seeking a formal place at the Arctic table: observership at the Arctic Council. This was awarded for the six States in 2013 and effectively for the EU at the same time but followed three years of intense lobbying efforts and heated discussions.[9]

 

The Operation of the Arctic Council and Iceland’s Influence within it

How can Iceland, then, maintain its influence in the shadow of these giants? To understand this, we need to examine how the Arctic Council operates.

The Arctic States are the members of the Arctic Council and the associations of indigenous peoples are permanent participants. This is a unique format for an international body. The Arctic States and permanent participants sit together at Arctic Circle meetings and have equal rights to contribute to the agenda and debate.[10] Decisions are made by consensus between the member States and in practice, usually the consensus of the permanent participants as well.[11]

The Arctic Council operates at a number of levels (see Figure 2). At the top is the biennial ministerial meeting, the location of which coincides with the chairmanship (which changes every two years on a rotating basis). The Senior Arctic Officials (SAOs) are the member States’ ambassadors who meet alongside the permanent participants and observers twice yearly. A number of subsidiary bodies exist, principally the six working groups which are essentially scientific bodies that can present findings to the SAOs and ministerial meeting but whose policy recommendations must be endorsed by the Arctic States. The working groups are standing bodies but there are also time–limited Task Forces which address specific issues and now the Expert Group on Black Carbon.

The Arctic Council
Figure 2: The Arctic Council

Observers at the Arctic Council[12] have much less influence than the members or permanent participants; in short, their role is to ‘observe’ and not to talk. To become and remain an observer, an entity must: bow to Arctic States’ sovereignty; recognize and commit to uphold international law, in particular, the law of the sea in the Arctic; respect the rights of indigenous peoples; demonstrate commitment, including financial commitment, to the work of the permanent participants; and show its capacity to contribute to Arctic interests, including scientific research.[13]

Observers’ have limited rights at Arctic Council meetings and are expected to contribute principally through the working groups.[14] Unlike the member States and the permanent participants, observers may not propose items for the agenda or raise points during Arctic Council meetings (ministerial or SAO meetings) although they are permitted to submit written statements.[15] Even at the subsidiary bodies, the observers are sat apart at the ‘children’s table’, behind the main table and they may speak only after the States and permanent participants have had their say and even then at the discretion of the chair.[16] Observers are also reviewed every four years but can be excluded at any time as their observer status only lasts as long as consensus exists amongst the ministers. In other words, it would require only one member State to exclude an observer.[17] This means that observers cannot exert the influence they have in other international fora within the Arctic Council. To maintain their observerships, they must placate all the Arctic States and most of the permanent participants, most of the time. Iceland might be little but in the Arctic Council it wields a great deal more influence than China.

The Arctic Council punches well above its weight for what is structurally no more than a roundtable for discussion with no law-making powers or compliance mechanisms. Nevertheless, there are two very significant limitations on what it can do. The first is financial: it has no regular funding and seeks contributions on an issue-by-issue basis.[18] This requires States – including observer States – being willing to front cash. Secondly, the consensus model means that it requires only one State to object to anything to take it off the table – whether that be the wording in a recommendation or the initiation of a project in the first place. Iceland can veto anything.

The Arctic Council has also successfully insulated itself from international tensions and disputes that have dampened East-West relations over the past few years such as the crises in the Crimea and Syria. While Iceland ties itself in knots internally over the Russian sanction regime, this is entirely curtained off at the Arctic Council meetings. When tensions have occasionally arisen between Canada and Russia, Iceland can sit back and enjoy the show; it is not forced to take a position. Also, Iceland, having no indigenous peoples of its own, can play the honest broker and be a neutral mediator between the permanent participants and States.

Alliances in the Arctic Council are fluid; there is no obvious ‘Nordic block’ as often occurs at the United Nations and Iceland will defend its own interests on an issue by issue basis. The consensus approach – or the ‘veto’ approach if you prefer – means that fixed alliances are not necessary; no State can be forced into a position that it finds unacceptable.

Beyond the Arctic Council

From Iceland’s perspective, as a very small State, the Arctic Council is a very attractive forum in which to advance its interests. Its official policy, to prioritise the Arctic Council as the key forum, mirrors that of Sweden and Finland, because it is here that the States have the most meaningful influence.[19] A very small State has limited bargaining power in bilateral negotiations with much larger countries; but it also has minimal influence in global fora in which it is outweighed – and outspent – by major powers. Even worse is a forum in which Iceland is not represented at all.

The same consensus-based system that allows Iceland to protect its interests in the Arctic Council allows the other seven States to do the same – and allows them each to keep certain things of the agenda to be dealt with elsewhere. The so-called ‘Arctic Five’ have squeezed out Iceland over two issues: Arctic High Seas fisheries; and the delimitation of the outer continental shelf.

The Arctic Five

Iceland has a small Arctic coastline but it is does not itself border the Arctic Ocean per se. Its exclusive economic zone (EEZ) is met by the Norwegian and Greenlandic EEZ’s in the North. Therefore although Iceland is an ‘Arctic Coastal State’ is it is not an ‘Arctic Ocean littoral State’ – i.e. it does not have a coastline or EEZ that borders the Arctic Ocean.

The Arctic Five – Canada, Denmark, Norway, Russia and the USA – meet occasionally outside of the Arctic Council framework, pushing to one side not only the other three Nordic State partners but the permanent participants as well. The basic justification for this is that the Arctic Ocean is a ‘semi-enclosed sea’ – a debatable claim geographically but one that gives those five States a special responsibility under the Convention on the Law of the Sea to manage the area.[20]

This group met in Oslo in 2007, Ilulissat, Greenland in 2008 and Chelsea, Québec in 2010 to discuss the legal framework for the Arctic Ocean. The Ilulissat meeting culminated in a declaration which was a broad reaffirmation of State sovereignty in the Arctic, an endorsement of the law of the sea as the governing framework for the Arctic Ocean and a message to non-Arctic States that a treaty based on the Antarctic model of environmental protection and internationalization would not be accepted in the North.[21]

Iceland registered its objections and emphasized the importance of the Arctic Council as the principal forum; but the Arctic Council cannot have a monopoly on any topic and nothing can prevent States from meeting and negotiating outside of the Arctic Council system.

The Outer Continental Shelf in the Arctic

The sexy issue in the Arctic today is the grand carve-up of the outer continental shelf. Iceland does not have a stake in this game because it does not have an Arctic coastline. In any case, while it might resemble a colonial land-grab with dramatic flag-planting and grand declarations of sovereignty, the system to resolve and allocate rights over the ocean floor is long settled.[22] It is admittedly slow and laborious but in short: Canada, Russia and Denmark or Greenland will sooner or later sit down and resolve their overlapping map submissions through bilateral negotiations. There is no hurry to do this as all the resources of any near-term commercial interest are far from the contested zones.

In respect of Iceland’s continental shelf, the Dragon Area to the North by Jan Mayen is long settled as a joint development zone with Norway. Iceland has three potential areas of outer continental shelf that are being mapped and of these, the Rockall area to the South is contested as four States (the Kingdom of Denmark (Faroe Islands), Iceland, Ireland and the United Kingdom) jostle for exclusive rights; but this is not an Arctic issue (see Figure 3).[23]

Iceland's maritime zones - The thick black line circling Iceland indicates the boundary of Iceland’s EEZ. The red line to the South indicate Iceland’s maximum potential outer continental shelf around Rockall; the purple, green and yellow lines indicate the submissions of the Kingdom of Denmark (Faroe Islands), the United Kingdom and Ireland respectively.
Figure 3: Iceland’s maritime zones – The thick black line circling Iceland indicates the boundary of Iceland’s EEZ. The red line to the South indicate Iceland’s maximum potential outer continental shelf around Rockall; the purple, green and yellow lines indicate the submissions of the Kingdom of Denmark (Faroe Islands), the United Kingdom and Ireland respectively.

Arctic Fisheries

Fisheries are more interesting but not an immediate concern. Iceland has exclusive rights over fish stocks within its EEZ but it has to manage shared and straggling stocks and highly migratory species in cooperation with neighbouring States (see Figure 3).[24] For the most part, this goes reasonably well though there is an ongoing sore point over the mackerel which has been gradually shifting Northward and Westward and competing with the cod stocks.

There are very good reasons to keep this out of the Arctic Council framework. The European Union is a key player in this dispute and the last thing any of the Arctic States want to do is give the European Union equal standing at the Arctic Council.

More speculative is the future governance of fisheries in the Arctic High Seas (see Figure 4). [25]

The EEZs and High Seas in the Arctic Ocean
The EEZs and High Seas in the Arctic Ocean

Currently, there are no fishing in the Central Arctic Ocean (the High Seas marked dark blue in Figure 4) as it is too far, and mostly ice-covered, to offer commercially exciting fisheries. Existing fisheries are all safely within the 200 nautical mile EEZ of the coasts. They are managed by the Coastal States and various regional fisheries management organisations (RFMOs). The North East Atlantic Fisheries Commission (NEAFC) NEAFC covers a small corner of the High Seas, but otherwise, the Central Arctic Ocean is an international commons.

The Arctic Five have taken the lead – again under protest from Iceland. High Seas are beyond the jurisdiction of any State and under the UN Convention on the Law of the Sea and the Fish Stocks Agreement, to prevent a ‘free-for-all’ and a tragedy of the commons, States with a ‘real interest’ should work together.[26] The difficulty in the Central Arctic Ocean is that there are currently no fisheries and hence it is very difficult to determine who has a ‘real interest’ in the legal sense.

Where the High Seas are concerned, Iceland’s position is that it has just as much interest in the area as the five littoral States; the Arctic Five disagree and began negotiations amongst themselves. This concluded with a moratorium in July 2015 – a temporary ban on Arctic High Seas fishing until such time as scientific studies had evaluated the available stocks and their resiliency.[27]

A moratorium agreed with the Arctic Five cannot bind other States which is why they invited five other entities to a discussion in Washington DC in December 2015 about future governance of living marine resources in the Central Arctic Ocean. The five littoral States attended, alongside five invited participants: The European Union, China, Japan, South Korea and Iceland: the ‘A5+5’.

Russia had expressed scepticism as to the need to include any other States at this point but nonetheless attended the December talks.[28] This indicates the Arctic Five’s recognition that these are all entities with a ‘real interest’ as they are those most likely to have the potential for fisheries in the Central Arctic Ocean. It is also indicative of a view amongst the Arctic Five that no other State or entity has a ‘real interest’ – at least at this time.

Being left on the second tier alongside distant Asian States might be humbling for Iceland but an ‘Arctic Six’ is simply not going to happen. Iceland does have legal interests in the Central Arctic Ocean: but in law, these are no different to those of the EU or China. This is not an urgent matter as there is no immediate economic potential but Iceland nonetheless can be expected to protest any exclusion and to defend the role of the Arctic Council to prevent precedents being set for Arctic governance without its involvement.

 

Arctic Shipping

The last hot topic in the Arctic that is outside of the Arctic Council system is shipping. Freedom of navigation is a fundamental principle of law of the sea that applies right up to States’ baselines. It is a global right that is managed at global fora, in particular, the International Maritime Organization that developed the Polar Code. Iceland has no special legal or commercial interests in the Arctic shipping. .[29] Iceland’s EEZ has no ice-covered waters so it has no extended authority to protect its marine environment beyond that which applies generally under the Convention on the Law of the Sea.[30] But that will not prevent it examining commercial opportunities should commercial shipping develop.

Iceland’s Arctic Policy

The priorities I have identified are reflected in the development of Iceland’s Arctic policies. Increasing governmental attention to the Arctic can be traced at least to the Icelandic chairmanship of the Arctic Council but this section will look only at the official policy formulations from 2009 onwards.

Former Minister of Foreign Affairs, Össur Skarphéðinsson set the ball rolling in 2009 with the report, Iceland in the Arctic.[31] He followed this up by making the Arctic a key theme of his 2010 report to the Alþingi and then sent them a draft to develop into a formal policy (stefna) which the Parliament then took up and agreed with few changes in 2011.[32]

In May 2015, the new government issued a draft for consultation: Iceland’s Interests in the Arctic: Opportunities and Risks, though this has yet to be finalized and the projected date has been repeatedly put back.[33] The current Minister of Foreign Affairs, Gunnar Bragi Sveinsson, put the Arctic once more at centre stage in his 2016 annual report to Parliament.[34]

In all of these, we see an emphasis on multilateral approaches, the importance of the Arctic Council and the assertion of Iceland as an ‘Arctic coastal State’ that is a challenge to the legitimacy of the Arctic Five.

In Skarphéðinsson’s extensive first report, Iceland in the Arctic, international cooperation is the first priority with particular attention on the Arctic Council. However, the Barents-Euro Arctic Council and the West-Nordic region are also mentioned as important fora. In his 2010 report to Parliament on international affairs, the first region to be addressed is the High North and of the ten Arctic priorities, the first is:

to secure Iceland’s position as a coastal state and a key stakeholder in shaping the future development of the High North. Iceland should be considered a full-fledged coastal state on a par with such countries as the USA, Denmark (for Greenland), Canada, Norway and Russia.[35]

 

This repeats an earlier rebuke to the Arctic Five for their exclusion of Iceland but it is also noteworthy that for all Iceland’s talk of the importance of the Arctic Council, it is not unduly concerned about the exclusion of Finland, Sweden or the indigenous representatives from the Arctic Five talks.[36]

Defence of the Arctic Council comes later (Arctic priority 4) but all the priorities point to Iceland’s need for multilateral Arctic governance and the importance of securing of Iceland’s role within it.[37]

Until such time as the current government agrees a new policy, the official Icelandic Arctic policy remains the 2011 Parliamentary Resolution.[38] It largely follows Össur’s 2010 report though one interesting change is that the Alþingi changed the order, placing the Arctic Council first. However, it also highlights Iceland’s special status as a ‘Coastal State within the Arctic Region’ in priority two.[39]

One surprising aspect of the draft of the latest Arctic policy is that it follows much of the previous approaches but makes very little direct reference, perhaps reflecting a desire of the governing coalition parties to present the Arctic as their project.[40] It was these two coalition parties who held the reins when the Arctic first hit the radar of Icelandic politics and who actively pursued increased cooperation and investment in Arctic relations and research. The draft highlights once more Iceland’s Arctic credentials, now suggesting that Iceland is somehow more Arctic than the other States (in which most of the land and population are far South of the Arctic).[41]

International cooperation is still the top priority, especially through Arctic Council.[42] However, other fora are mentioned and special relations with Greenland and the Faroe Islands are promoted.[43]

The opportunities (tækifæri) identified are very much business-focused: new fisheries, hydrocarbons and shipping; climate change is not presented as wholly negative.[44] This is reminiscent of Berit Kristoffersen’s concept of ‘opportunistic adaptation.’[45]

Indigenous peoples are overlooked in the report almost entirely; mentioned only once in the introduction, their rights and interests are ignored throughout, even in areas where proposed Icelandic activities can have serious impacts.

Most recently, in March 2016, the current Minister for Foreign Affairs, Gunnar Bragi Sveinsson, delivered his annual report to Parliament. The Arctic is once more the first region to be assessed. The 2011 Parliament resolution remains the key policy and there is no mention of development of the new strategy document (i.e. Iceland’s Interests in the Arctic).[46]

Sveinsson seeks an increase in Iceland’s contributions to the Arctic Council’s activities, especially at the level of working groups, task forces and expert groups and points to the need to begin preparations for the Icelandic chairmanship that begins in 2019.[47] The Arctic Council’s operations are explained in a fair degree of detail to Parliament (given the habitual nature of such reports) some detail (given the nature of such reports) in the following pages.[48]

West-Nordic cooperation is also given special attention, indicating an interest in promoting further cooperation with the Faroe Islands and Greenland.[49]  This is a region or sub-region that is not given a great deal of attention in international relations but has the potential to grow in importance. In this context, Iceland is the ‘big State’ and the only one of the three countries to have decolonised from the Kingdom of Denmark (so far). However, the West Nordic Council is significantly limited in its activities in the absence of considerable investment: not easy to come by in three very small and cash-strapped countries.

The Arctic High Seas fisheries issue is not addressed directly in the report and no reference is made to the A5+5 December 2015 meeting in Washington DC. (This may have been a matter of the timing of the drafting of the report or it may indicate that the current foreign ministry no longer wishes to continue to fight this battle.) Nevertheless, within the section on Arctic cooperation, Sveinsson obliquely refers to the dependence on marine resources of the Icelandic economy and the importance for Iceland of ‘actively participating in international cooperation concerning ocean affairs’.[50]

Making Sense of Iceland’s Priorities

The official Icelandic approach does not diverge widely from what might be expected from a very small fish beside a very big ocean. Multilateral cooperation is key and the Arctic Council is the preferred forum as it secures Iceland’s influence. Nevertheless, although Iceland objects to the Arctic Five, it would quite happily accept an Arctic Six – as long as it is in it.  Iceland objects to its own exclusion and does not necessarily take a particularly principled stand in defence of broader multilateral cooperation.

However, Iceland has been open to the expansion of observers at the Arctic Council; some of these courted Iceland generously during the application period. Iceland needs its international partners beyond Arctic States but if Iceland can channel them through the Arctic Council, it prevents them from overpowering it.

Iceland continues to assert its interest and demand involvement in fisheries management. Iceland must be practical here and take part in the A5+5 – even if it would prefer an A6+4. The shelf is not so pressing and will be resolved in time. Iceland sees some commercial opportunities in shipping –but this is a very long game and will be managed through the IMO.

The current government’s approach to the Arctic is rather more commercially oriented that its predecessor as it looks to climate change as an opportunity (as well as a risk factor) and seeks to profit from the resources that the receding ice ostensibly presents. Nevertheless, those resources remain very expensive to access and develop irrespective of the state of the ice.

[1] See, eg, Alyson Bailes, Baldur Þórhallsson, and Rachael Lorna Johnstone, “Scotland as an Independent Small State: Where Would It Seek Shelter?,” Stjórnmál og Stjórnsýsla 9, no. 1 (2013).

[2] Ibid, 3.

[3] Össur Skarphéðinsson, Ísland á norðurslóðum, Inngangur, 2009 (translation by present author).

[4] Ministerial Committee on Arctic Affairs, Hagsmunir Íslands á norðurslóðum: tækifæri og viðsjár (draft), March 2015.

[5] Mikhail Gorbachev, Speech at Murmansk, 1st Oct.1987, available at <https://www.google.is/search?q=murmansk+speech&rlz=1C1LENP_enIS499IS499&oq=murmansk+speech&aqs=chrome..69i57j0l3.1838j0j9&sourceid=chrome&ie=UTF-8> (accessed 4 April 2016).

[6] Arctic Environmental Protection Strategy (AEPS), Declaration of the Ministerial Meeting in Alta, Norway, 13 June 1997, available at <http://library.arcticportal.org/1271/> (accessed 4 April 2016).

[7] Ottawa Declaration on the Establishment of the Arctic Council, 19 September 1996, available at < http://library.arcticportal.org/1270/> (accessed 4 April 2016).

[8] Ibid, para. 1a.

[9] Arctic Council, Kiruna Declaration, 15 May 2013, 6, available at <https://oaarchive.arctic-council.org/handle/11374/93> (accessed 4 April 2016).

[10] Arctic Council, Rules of Procedure, as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, Iqaluit, Canada, revised by the Arctic Council at the Eighth Arctic Council Ministerial Meeting, Kiruna, Sweden, available at <https://oaarchive.arctic-council.org/handle/11374/940> para 19 (accessed 4 April 2016).

[11] Douglas C Nord, The Arctic Council: Governance within the Far North (Routledge 2016) 38 & 70.

[12] United States of America, Department of State, ‘Arctic Council Structure’ <http://www.state.gov/e/oes/ocns/opa/arc/ac/structure/> (accessed 4 April 2016).

[13] Rules of Procedure, supra note 10, Annex 2.

[14] Ibid, Rule 38

[15] Ibid, Rules 12, 19 & 38.

[16] Arctic Council, Observer Manual for Subsidiary Bodies, as adopted by the Arctic Council at the Eighth Ministerial Meeting, Kiruna, Sweden, revised by the Arctic Council Meeting of the SAOs at Anchorage, Alaska, United States of America, October 2015, available at <https://oaarchive.arctic-council.org/handle/11374/939> para 7.3 (accessed 4 April 2016).

[17] Rules of Procedure, supra note 10, Rule 37 and Annex 2, Rule 5.

[18] See, e.g., Nord, supra note 11, 35 & 72-74.

[19] Parliament of Iceland, Þingsályktun um stefnu Íslands í málefnum norðurslóða (2011) 139th legislative session, 28 March 2011.

[20] United Nations Convention on the Law of the Sea 1982, 10 December 1982, 1833 UNTS 397 (UNCLOS), Part IX.

[21] Ilulissat Declaration, Foreign Ministers of Canada, Denmark, Norway, Russia, and the United States of America, The Ilulissat Declaration, 29 May 2008, available at <http://www.arcticgovernance.org/the-ilulissat-declaration.4872424.html> (accessed 4 April 2016).

[22] UNCLOS, supra note 20, Part VI and Annex II.

[23] Icelandic Ministry of Foreign Affairs, ‘Viðræðum fram haldið um Hatton Rockall-málið’ 24 November 2004, available at <https://www.utanrikisraduneyti.is/frettir/nr/2472> (accessed 4 April 2016).

[24] UNCLOS, supra note 20, Part V.

[25] Ron Macnab, Olav Loken and Arvind Anand, ‘The Law of the Sea and Marine Scientific Research in the Arctic Ocean’ Meridian Newsletter (2007-2008) 3, Figure 2 <http://www.polarcom.gc.ca/uploads/Publications/Meridian%20Newsletter/MeridianFall2007.pdf> (accessed 6 April 2016).

[26] UNCLOS, supra note 20, Part V; United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 88, article 8(3).

[27] United States Library of Congress, Global Legal Monitor, ‘Canada; Denmark; Norway; Russia; United States: Fishing Declaration Covering Central Arctic’ 21 July 2015, available at <http://www.loc.gov/law/foreign-news/article/canada-denmark-norway-russia-united-states-fishing-declaration-covering-central-arctic/> (accessed 4 April 2016).

[28] United States Department of State, ‘Meeting on High Seas Fisheries in the Central Arctic Ocean: Chairman’s Statement’ 3 December 2015, available at <http://www.state.gov/e/oes/rls/pr/250352.htm> (accessed 4 April 2016).

[29] IMO, ‘Shipping in Polar Waters’ available at < http://www.imo.org/en/MediaCentre/HotTopics/polar/Pages/default.aspx> (accessed 4 April 2016).

[30] UNCLOS, supra note 20, article 234.

[31] Skarphéðinsson, supra note 3.

[32] Skýrsla Össurar Skarphéðinssonar utanríkisráðherra um utanríkis- og alþjóðamál, May 2010; Parliament of Iceland, supra note 19.

[33] Ministerial Committee on Arctic Affairs 2015, supra note 4.

[34] Skýrsla Gunnars Braga Sveinssonar utanríkisráðherra um utanríkis- og alþjóðamál, May 2016.

[35] Skarphépinsson 2010, supra note 32, 15-16.

[36] Ibid, 12

[37] Ibid, 16.

[38] Parliament of Iceland, supra note 19.

[39] Ibid, 1.

[40] Ministerial Committee on Arctic Affairs, supra note 4.

[41] See quotation above, supra note 4.

[42] Ministerial Committee on Arctic Affairs, supra note 4, 6-8.

[43] Ibid, 8.

[44] Ibid, Chapters 2 & 3.

[45] Berit Kristoffersen, ‘Opportunistic Adaptation: New Discourses on Oil, Equity, and Environmental Security’ in The Adaptive Challenge of Climate Change, Karen O’Brien and Elin Selboe (Eds) (Cambridge University Press 2015).

[46] Sveinsson 2016, supra note 34, Chapter 2.

[47] Ibid, 12.

[48] Ibid, 13-14.

[49] Ibid, 14.

[50] Ibid, 12.