Arctic Yearbook 2012
Exner-Pirot
NORDEFCO.
11
This approach has its benefits, in that many aspects are well established, generally
effective when implemented, and easier to negotiate. However as the previously unused Arctic
Ocean opens up to activity, new multilateral arrangements will almost certainly be required to
manage the area sufficiently.
Piecemeal Approach
While most agree that UNCLOS provides a good
starting
point, the mainstream position accepts that
at least some issue areas would benefit from further cooperation. Even the
Ilulissat Declaration
talks
about the need to “strengthen existing measures and develop new measures to improve the safety of
maritime navigation and prevent or reduce the risk of ship-based pollution in the Arctic Ocean” and
to “further strengthen search and rescue capabilities and capacity around the Arctic Ocean…through
bilateral and multilateral arrangements between or among relevant states.” (Ilulissat Declaration,
2008). Certainly the articulation of the 2011 Search and Rescue (SAR) agreement indicates that
statement was not simple rhetoric.
Noted Arctic expert Oran Young, while rejecting a comprehensive, legally binding regime, supports
the development of issue-specific regulatory arrangements. He argues that this is preferable for
several reasons. First, it is the most pragmatic: far better to have “a messy process that yields
effective governance with respect to some important issues [than have a] more comprehensive and
orderly process that fails to achieve success across the board” (Young, 2009a: 441). Young does not
see the development of a legally binding treaty to be politically feasible, especially on the part of the
United States and Russia (Young, 2009b: 75). The United States in particular has had an extremely
hard time ratifying even largely uncontroversial treaties.
According to Young, there are also advantages to a soft law approach. Arrangements that are not
legally binding “may contain content that states would not accept in a legally binding instrument, are
likely to have an easier time encompassing the activities of a range of non-state actors, and, above all,
are ordinarily easier to adjust or even restructure in response to changing circumstances relating to
the issues at stake” (ibid: 76). Given the dynamic nature of Arctic issues and events, it may be
preferable to have the flexibility inherent in the soft law approach to deal with the inevitable political,
economic and environmental changes that will occur in the region in the coming years.
Similarly, pursuing a hard law strategy implies a reliance on negotiations and compliance from
national
governments; however the soft law regime in place today has allowed for greater space in which