Tag Archives: indigenous rights

A. Shibata et al. (eds.), Emerging Legal Orders in the Arctic: The role of non-Arctic actors (London: Routledge, 2019)

There is no doubt that the Arctic is undergoing unprecedented changes. Not only has the Arctic environment been changing at a rapidly fast pace over the last decades, the Arctic has also become a more distinct social, political and legal region. All these ontological changes require more stable norms and institutional frameworks. Based on these premises, Emerging Legal Orders in the Arctic has put together a wide-ranging collection of deeply polar legal research by both familiar names in the field of polar legal studies but also by early-career researchers. As the editors point out at the beginning, this book is the outcome of a symposium held by the Polar Cooperation Research Centre at Kobe University, Japan in December 2017 on the role of non-Arctic states and actors in the Arctic legal order-making. The overarching theme of this book is to explore how, where and to what degree traditional non-Arctic actors, especially Asian States, interact with, influence and shape the creation of the legal order in the Arctic from a normative angle.

Part I of the book aims at giving a contextual understanding of and define the present and future scope of non-Arctic states’ engagement in regional governance with Timo Koivurova’s chapter and the rise of Asian countries, mainly China and Japan, on the Arctic stage. Describing the political and economic contexts of Asian engagement in the Arctic, Tonami points out, in chapter 3, that Asian states mainly pursue economic diplomacy with the aim to both enhance national economic prosperity and use economic leverage to increase domestic political stability. As Asian States’ role in Arctic governance increases, Arctic States expect them to be even engaged within existing institutions such as the AC and contribute to international norm-making in the region. Tonami argues, however, that from an Asian perspective, they are only willing to play this role to the extent that it serves their long-term political and economic agenda. According to her, the rise of Asian States in the region has resulted in a period of contested multilateralism. In chapter 4, Japan’s former ambassador in charge of Arctic affairs, Keiji Ide, analyses Japan’s contribution to the rule of law in the Arctic. He concludes that the challenges presently faced by the Arctic might be too great for Arctic States to deal with on their own. He argues in favour of more involvement and cooperation between both Arctic and non-Arctic states to face the challenges of our times. Taking the example of China and its Arctic policy white paper, Nielsson and Magnússon assesses China’s efforts to create and foster relationships with Arctic partners in order to better understand the region as a whole. According to them, China’s white paper on Arctic policy presents a balanced view between the opportunities for Chinese companies to enhance economic cooperation, the protection of the environment and combatting climate change.

Part II titled “People(s) in the Arctic” is the book’s shortest section with only two chapters. Chapter 6 written by the international chair of the Inuit Circumpolar Council, Dalee Sambo Dorough, argues that any discussion about the legal order in the Arctic should recognise the status and rights of indigenous peoples for whom the Arctic is home.  She emphasises that indigenous peoples are not just stakeholders in Arctic-related matters they are rightsholders in the region. According to her, although they are not Arctic states, non-Arctic States must engage more with Arctic indigenous peoples as they seek to become more involved in the Arctic legal order. Indigenous rights should not only be mentioned in Arctic policies, the status, rights and role of Arctic indigenous peoples should be respected in practice. Dalee Sambo makes some interesting recommendations for non-Arctic actors to better engage with indigenous peoples. To her education in the field of indigenous and human rights, engaging with communities at the local level, engaging outside with indigenous peoples outside of the AC, reaching out to indigenous peoples’ organisation and the AC Permanent Participants, identifying areas of mutual interests both within and outside the AC, being clear and straightforward about their Arctic interests and projects and, advancing research in social sciences and other areas of concerns to Arctic indigenous peoples are all means worth exploring to foster meaningful cooperation. The other chapter in Part II is an assessment of the role of non-governmental organisations (NGO) in influencing the Arctic sealing, whaling and hydrocarbon regimes in the Arctic by Nikolas Sellheim and Marzia Scopelliti.

In Part III on the marine Arctic, Joji Morishita discusses the Arctic Five-plus-Five process that led to the negotiations of the Central Arctic Ocean Fisheries (CAOF) Agreement. Morishita analyses each of the ten countries that took part in this process and takes the readers to the heart of the negotiations of this unique fisheries agreement. Although the Arctic Five (Canada, Kingdom of Denmark, Norway, Russia, and the United States) and the Plus Five (Iceland, Japan, China, Korea, and the EU) have substantial different interests, they share the same objectives regarding how the CAO should be managed according to the precautionary principle to avoid illegal fishing activities. The next chapter by Law of the Sea specialist, Erik J. Molenaar, is an almost-40-page-long masterpiece, which complements and adds another layer of understanding to Morishita’s chapter and provides one of the most in-depth analysis of the CAOF Agreement published thus far. Molenaar gives a concise but thorough overview of how the CAOF Agreement fits into international fisheries law and international law. Towards the end of the chapter, Molenaar also makes a comparative analysis of how participation in the Five-plus-Five process and the CAOF Agreement compares to participation in other RFMO/As. The following two chapters turn their focus on Arctic shipping as Rasmus Gjedssø Bertelsen delves into transnational knowledge network and epistemic communities and Leilei Zou provides a thorough analysis of cooperation between China and Russia in the legislative development of the Northern Sea Route.

Part IV switches gear to focus on scientific cooperation and the Arctic Council. In chapter 12, Akiho Shibata analyses the Arctic Science Cooperation Agreement that entered into force in May 2018 from the perspectives of non-Arctic States. In reviewing this third agreement negotiated under the auspices of the Arctic Council, Shibata assesses to what extend AC Observers States have been able to give substantive inputs at the negotiation stage. In his analysis, Shibata concludes that many pressing Arctic governance issues (e.g. black carbon) cannot be addressed without including non-Arctic actors. One of Part IV’s main themes seems to analyse the evolution of the relationship between AC Observer States and the Arctic Council. In their chapter, Sebastian Knecht and Jennifer Spence show that despite legal equality of all AC Observers, political considerations still play an important role. In the last chapter of the book, Yuanyuan Ren expands on China’s relation with the Arctic Council. According to Ren, China has shown more engagement at the AC level since being granted Observer status in 2013.

The book’s small, and perhaps only, quibble is that most of the chapters focus on non-Arctic States and look at Arctic law-making through a State-centric lens. This can in part be explained, as Sellheim and Scopelliti mention, because international law remains a state-driven process that tends to exclude non-State actors and communities. This seems like a missed opportunity to broaden that scope and to expand on the relation between non-Arctic actors, non-State actors and Arctic indigenous peoples in the context of creating new legal orders in the region. Such quibbles however do not detract from the book’s overall scholarly quality. The exploration of the evolution of the Arctic normative framework and its expansion on the global stage is still very much a work in progress. As the first edited volume in Routledge’s Research in Polar Law series, Emerging Legal Orders in the Arctic provides an in-depth and timely look at how the Arctic legal order is evolving and is a most welcome addition to the literature on international law that will certainly be of value not only to legal scholars involved in polar research but also to those with a broader interest in both Asian studies and region-building in the Arctic.

Shawn Selway, Nobody Here Will Harm You. Mass Medical Evacuation from the Eastern Arctic, 1950-1965 (Hamilton, Ontario: James Street North Books, 2016)

Shawn Selway has written a thoughtful, and in many places disturbing, account of the policies and ensuing actions taken by Canadian leaders to control the tuberculosis epidemic in the Eastern Arctic. Over a thousand Inuit and Cree were evacuated to Mountain Sanatorium in Hamilton, Ontario between 1950 and 1965. While authorities were clearly concerned about loss of life, reviewing their actions shows that sometimes providing help can also have negative repercussions. When assistance is rendered without proper understanding of the culture of the people and without adequate planning, the assistance itself can have unintended consequences.

According to historical and governmental records, Canadian officials determined that the best way to protect the most people was to evacuate anyone who tested positive for tuberculosis to the South. Several reasons were provided for why they chose to evacuate instead of treating them in the North. First, it was difficult to get the necessary specialists to go to the Arctic. Second, with effective treatment, the number of cases was expected to decline. Therefore, spending money building new treatment facilities would be a waste, particularly since many beds had recently opened at the sanatorium in Ontario. Finally, the ultimate goal was to remove the source of the infection from communities. Allowing infected individuals to remain close to the community increased the risk of the infection spreading.

However, the medical evacuations were plagued with problems. The author explained some of the logistical problems faced because the communities lived in the Arctic. For example, transportation was difficult to plan. Initially, only ships transported patients. The ships ran on tight schedules based on weather and ice conditions, allowing very little time for the medical professionals to test everyone. Once they had the test results, they did not have the time to obtain proper consent from patients and their families. While people were not exactly forcibly removed, consent was not exactly given either. This rushed schedule also led to lack of proper documentation. Records were lost and so were people, particularly when the patients were young children. Once these patients were cured there was no way to get them back to their families. Even after helicopters and planes were employed, there were still weather and logistical conditions to consider, and the trips were not always pleasant for patients.

Another error discussed in the book dealt with faulty patient services after they were relocated. No one considered how vitally important it would be for patients to be able to communicate with their families. Without any contact from home, patients were depressed and their families grieved for the loss, not knowing if they would see their family member again.  This harmed the patients and caused communities to lose trust in the medical professionals, and after their stories spread, some people refused to be examined or go near the ships.

The evacuations impacted these Indigenous communities in similar ways to the residential schools. Children were taken at young ages, and by the time treatment was over, they no longer remembered their language or cultural practices. When they returned home, many of them did not feel comfortable in their own communities. The longevity of culture, language, family, and community structures were just as threatened by these medical removals as the educational ones.

Selway compared these Arctic evacuations with the approach used to fight tuberculosis in the Navajo Nation. Among the Navajo, people were treated without being removed from the community. However, the distances are greater and conditions more severe in the Arctic. The Navajo model could not have been replicated under these differing circumstances.

A good point was made in the preface. It is easy to look back on historical events with a moral superiority because we have the benefit of hindsight. We now recognize how damaging the evacuations were on the Inuit and Cree. We can see where actions were not planned well and understand what should have been done. The communities suffered and even now their views on what happened have been largely discounted. By recognizing that the officials were working with technological limitations and a genuine fear of the epidemic does not change the negative impact of their decisions, but it might help contemporary society understand the history of the Arctic, acknowledge the damage that was done, and come to terms with the legacy of this era.

Sadly, after the evacuations, the Canadian government then focused on resettling Indigenous Arctic communities. As with the evacuations, the resettlements were not well-coordinated and they made life harder. Sled dogs were shot in settlements destroying dog teams, but snow machines were too expensive for everyone to purchase and maintain, making food and materials scarce and costly. The very communities that they claimed to be assisting were once again the victims of unintended consequences.

The height of irony in this story is that in 2010, the rates of new tuberculosis cases in Nunavut hit an all-time high (p. 209). The very disease that these evacuations and resettlements were supposed to eradicate is on the rise. As stated in the book, “[t]he resettlement policy carried through in part in order to improve access to medical services inadvertently produced the living conditions that have allowed TB to persist and even flourish.” (p. 216)

My biggest criticism of the book is structural. Some sections jumped around in time, making the account difficult to follow. Also, the author went on tangents that, while interesting, could have been shortened. Sometimes I found myself lost in the technical details and not sure whether I would get back to the human story that the book is telling. However, even with these criticisms, the book includes important details and reveals pieces of a story that has received too little attention over the years. Indigenous communities in the Arctic are still living with the consequences of poor governmental policies and actions made in response to the tuberculosis epidemic. In order to learn from the past, wrongs and harms should be acknowledged so that communities can heal and poor decision-making will not be replicated in the future.

Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Brill, 2015)

The Arctic is estimated to hold the world’s largest remaining untapped gas reserves and some of its largest undeveloped oil reserves. Developing these resources in the harsh Arctic environment will be complex and challenging and can have far-reaching consequences. Consequently, the prevention of offshore marine pollution from oil and gas development activities is amongst the more important issues that need to be discussed in this context.

Continue reading Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Leiden: Brill, 2015)