Exploring Reasons & Remedies for the EU’s Incapability to Devise an ‘Arctic Policy’: The Quest for Coherence
From Ice Law to ICE LAW: Constructing an Interdisciplinary Research Project on the Political-Legal Challenges of Polar Environments
What Role for the Arctic in the UN Paris Climate Conference (COP-21)?
During the two first weeks of December 2015, the UN Climate Conference in Paris will put climate change back at the center of the agenda of the international community. Six years after the breakdown of the Copenhagen climate conference, the international community is once again aiming at finalizing and adopting a new legally-binding instrument to address climate change.
Just as the climate negotiations ramp up in the lead up to this event, climate change has also emerged as a major theme of the ongoing US chairmanship of the Arctic Council. The country has not only committed to work through the Council and its Working Groups towards better addressing climate impacts across the circumpolar world, but mindful of the upcoming Paris conference, President Obama also conveyed an unprecedented intergovernmental conference in the Arctic to highlight the regional implications of climate change and to raise awareness.
In the context of these parallel developments, we review the role that the Arctic plays in relation to these international climate negotiations. How have Arctic climate change been addressed so far by two decades of climate negotiations? Who is “speaking for” the Arctic in this process? Will the Paris climate agreement have an impact on policy and economic developments in the Arctic? Before addressing each of these questions, we will provide a short overview of what the Paris Climate Conference is expected to deliver.
What can one expect from the Paris climate conference?
The Paris climate conference is the final step in a four-years long negotiating process that was initiated to address some of the policy gaps left by the failure of the Copenhagen conference.
The conference is expected to result in a package outcome building on four main elements that will define the response to climate change for the years to come (Boyd et al. 2015: 7). Firstly, governments are finalizing the drafting of a new agreement setting a new framework for climate cooperation. Contrary to its predecessor, the 1997 Kyoto Protocol, this new agreement is expected to involve actively all countries and to address both the reduction of greenhouse gases emissions as well as issues related to climate adaptation. Secondly, all governments are requested to provide a national contribution highlighting the domestic policies and targets in relation to low-carbon development and – for most countries – to climate resilience. Thirdly, the conference will offer an opportunity for developed countries to confirm how they intend to support financially developing countries struggling with climate impacts or intending to implement drastic cuts in their carbon emissions. Fourthly, local governments and private entities are invited to join the momentum for climate action by offering their own voluntary commitments to those of national governments.
By building on self-defined targets and voluntary commitments, this package approach constitutes a shift from the previous rounds of climate negotiations and from the model that underpinned the Kyoto Protocol. The current negotiations build from the premise that governments are not yet willing to take sufficient action to prevent a dangerous increase of temperatures but that a new agreement promoting transparency, financial and technological support and participation by all actors might help to increase incrementally this collective ambition.
How has the Arctic been addressed so far by two decades of climate negotiations?
The Paris conference will be another milestone in a process initiated in 1992 with the adoption of the UN Framework Convention on Climate Change (UNFCCC). Since then governments have continuously worked under the aegis of the United Nations to foster international cooperation on the issue. The Paris Conference is thus the 21st Conference of the Parties to the UNFCCC (“COP-21”), all previous conferences having resulted in their share of decisions – the most significant being the adoption of the Kyoto Protocol in 1997 which set emissions target for a limited set of industrialized countries.
While the Arctic has become the most prominent icon of ongoing climate impacts, the region has not been directly addressed during these two decades of international negotiations (Doelle 2009; Duyck 2012). Indeed, the review of the legal instruments and political decisions adopted at each annual conference reveals a complete absence of reference to the region. Several elements contribute to explain why the UN negotiations have remained seemingly oblivious to the implications of climate change in the Arctic.
Firstly, the international nature of this process limits the opportunity to address regional specificities. The political decisions resulting from the annual climate conference do not refer to specific geographic regions. References to Africa constitute the only notable exception to this principle, the continent being referred to as “the region suffering the most from the combined impacts of climate change and poverty,” a reference meant to highlight the need to channel specific resources to support the climate policies of African countries.
Secondly, the strong distinction established in the Climate Convention between industrialized and developing countries has limited the opportunity for the climate negotiations to address climate impacts in the Arctic. Building on these differentiated roles, the UN addresses the vulnerabilities and adaptation needs of developing countries, those of industrialized nations being primarily considered as a matter for domestic policies. As all circumpolar states fall under the second category, issues related to adaptation to climate impacts in the Arctic have fallen outside of the scope of discussions taking place under the UNFCCC.
Thirdly, the eight Arctic states (Canada, Denmark/Greenland, Finland, Iceland, Norway, Russia, Sweden and the United States) have established the Arctic Council as their own regional forum to address circumpolar issues. Since the adoption of the Arctic Environmental Protection Strategy in 1991, the role of climate change as a driver of regional changes has been at the core of circumpolar environmental cooperation (Koivurova & Hassanat 2010).
In particular, the Arctic Council contributed greatly to the understanding of the implications of climate change through its 2004 Arctic Climate Impact Assessment (ACIA) – an unprecedented regional assessment of ongoing climate change impacts (Nilsson 2007). Since then, the Council continued to foster climate related research, with recent projects focused on the impacts of climate change on the cryosphere and on ocean acidification. While it continues to play a critical role to foster regional cooperation on climate science, the Council struggled for a long time to initiate policy actions on the basis of these recommendations (French & Scott 2009: 654). The reduction of emissions of short-lived climate forcers could in particular provide an avenue for the Council to promote regional action mitigating climate change (Rosenthal & Watson 2011). Currently, the Arctic Council’s Expert Group on Black Carbon and Methane is considering this issue and supports the implementation of the Council’s Framework for Action on Enhanced Black Carbon and Methane Emissions Reductions adopted during the 2015 ministerial meeting.
Who “speaks for” the Arctic in the UN climate negotiations?
Three main groups of actors participating to this negotiation process could possibly highlight the nature of Arctic climate changes: the Arctic states, Arctic indigenous peoples and the research community. The number of Arctic-focused side events organized during the climate conferences provides an indication of the role played by different actors to ensure that Arctic climate changes do inform the negotiations. While these events do not provide formal input to the political process, these events offer a significant opportunity to highlight emerging issues (Hjerpe & Linnér 2010).
The limited role played by the Arctic states and their forum
In state-driven processes such as the UN climate talks, national governments have an almost exclusive role in relation to the definition of its scope. The eight Arctic states are therefore best positioned to potentially promote Arctic specific issues in the climate negotiations. Up to now, their governments have however played a relatively limited role to bring polar issues at the UNFCCC.
In their periodic report on national circumstances and implementation, the Arctic states have increasingly provided information related to the vulnerability of their northernmost territories and to ongoing scientific research conducted in the region (Duyck 2015: 67). On the other hand, the eight states have seldom referred to the region in their negotiating positions and, when they did, these references related primarily to the need for further scientific research on regional climate processes.
Additionally, the visibility of the Arctic Council and its climate-related projects has been very limited in the climate talks. Firstly, the Arctic Council lacks observer status to the UNFCCC due to its peculiar legal nature and consequently has much more limited options to provide contributions to the process. Secondly, some of its members have explicitly requested in the past the Council not to become directly involved in the negotiations. During its recent chairmanship of the Council, Canada also discontinued the practice of delivering an oral ministerial statement on behalf of the Council during the annual conference. Thus, while the Arctic states have repeatedly emphasized the importance of tackling Arctic climate change in each ministerial declaration adopted by the Arctic Council, they have done relatively little to promote this specific agenda under the aegis of the UNFCCC.
Participation to the climate negotiations by Arctic indigenous peoples
Representatives from Arctic indigenous peoples constitute a second group of actors who could raise Arctic specific issues in the climate process. Arctic indigenous peoples have been recognized as key actors in relation to regional environmental governance and have secured a unique status at the Arctic Council (Koivurova 2011). Building on this experience, indigenous representatives have participated regularly at the climate talks, either as members of the governmental delegations or with an observer status. Arctic indigenous peoples’ organization the Inuit Circumpolar Council (ICC) in particular participated in the negotiations between 2003 and 2005 to highlight the human rights implications of climate change and the need for stronger climate action. The ICC had previously been successful in triggering an international response to the issue of chemical pollution of the Arctic, resulting in the adoption of the UN Stockholm Convention on Persistent Organic Pollutant (Downie & Fenge 2003).
However, the messages carried by the ICC message faced much stronger resistance in the climate negotiations (Watt-Cloutier 2015). Even under the framework of the Arctic Council, Arctic indigenous peoples sometimes struggled to get their messages heard on par with those of scientists (Shadian 2014: 187). Consequently, Arctic indigenous peoples organisations have not been able to convey effectively their message among the multitude of voices and communities represented at UN annual climate conference. During the past years, the most prominent messages voiced by indigenous peoples in the UN climate talks have shifted to other themes more relevant to other regions of the world, such as the need to respect indigenous traditional knowledge and indigenous rights, in particular in relation to projects related to the reduction of deforestation in rainforest countries.
Contributions by the research community
Over recent years, the Arctic has actually been mainly mentioned in the negotiating halls of the UN climate talks through the presentations delivered by scientists. In particular, research institutions have repeatedly highlighted the most recent findings related to Arctic changes in side events organized during the conferences.
Additionally, the scientific dialogue initiated in 2013 to review the merits of long-term temperature goal provided the first forum to discuss more specifically Arctic climate impacts. This formal dialogue aims, among other objectives, at reviewing whether the target of 2ºC adopted by governments during the Copenhagen conference is sufficient to prevent the most dangerous impacts of climate change. Considering the direct human rights implications of climate change in the Arctic, information related to Arctic impacts is indeed particularly relevant to inform any interpretation of the objective to avoid dangerous interference with the climate system (Crowley 2010).
Through this process, scientists have highlighted climate impacts observed in the region and warned that an increase of 2ºC of global temperatures implied a much more severe warming of the region. In February 2015, a representative from the Arctic Council’s Arctic Monitoring and Assessment Programme shared information with governmental delegates on the ongoing and projected impacts of climate change across the circumpolar world. This scientific dialogue offered the first concrete opportunity for Arctic scientific findings to inform the UN climate talks, playing the role of a bellwether so often described for the region. However, the impact of this process is limited by the fact that governments are already struggling to provide commitments that would add up to an emission pathway compatible with the initial 2ºC target. The outcome of the review – which will be formally decided in Paris – is therefore unlikely to have more than a symbolic value.
Will the Paris climate agreement have an impact on environmental, policy and economic developments in the Arctic?
References to the Arctic in the UN climate talks have thus mainly remained focused on scientific evidences of ongoing impacts than on specific policy proposals. Consequently, the Arctic is not specifically addressed in the ongoing negotiations towards the Paris climate conference, the formal negotiating text serving as a basis for these negotiations containing no reference to the Polar Regions.
The Paris climate conference is also unlikely to trigger sufficient new commitments by governments in order to reduce emissions sufficiently to prevent irreversible climate impacts in the Arctic. Initial analysis of the national commitments submitted by governments ahead of the October 1st deadline indicated that the current level of commitment might limit the global increase of the temperatures by 3.5ºC by the end of the century. While such an increase of temperatures would be lower than would otherwise occur in a business as usual scenario, it would still be far too high to prevent irreversible climate impacts in the Arctic, such as on the stability of the Greenlandic icesheet or on the summer sea ice (Lenton 2012).
Nevertheless, despite this absence of explicit reference and the failure to secure sufficient mitigation ambition, the future Paris climate agreement could possibly impact Arctic developments through two main channels. Firstly, the agreement could provide a new momentum for international cooperation on adaptation policies. Secondly it could send the strongest message adopted by the international community so far with regards to the commitment of countries to decarbonize the global economy.
Adaptation has always been a core policy area addressed under the UNFCCC (for instance with the establishment in 2001 of an Adaptation Fund or the adoption in 2005 of the Nairobi Work Programme on impacts, vulnerability and adaptation). Cooperation under the UNFCCC on adaptation has however remained focused on supporting developing countries deal with the impacts of climate change. As far as their own adaptation policies were concerned, developed countries are so far only required to implement actions and to provide regular reports on these policies.
However, the new Paris agreement could modify this approach as it is expected to build on a more universal approach, highlighting for instance the responsibility of all parties to implement domestic adaptation measures and to cooperate in the exchange of good practices. This development could foster cooperation and exchange of good practices between developed countries, including through regional forums. The Arctic Council’s project “Adaptation Actions for a Changing Arctic” (AACA), perceived by some as the opportunity to restructure the work of the Arctic Council (Kankaanpää 2012: 105), could for instance benefit from this new momentum.
Secondly, the adoption in Paris of a long-term mitigation goal could affect the prospects for the fossil fuels industry seeking to operate in the Arctic. While governments agreed in Copenhagen to a quantified objective (limiting warming below 2ºC), they have remained evasive as how they intend to meet this goal. In the lead up to the COP-21, a growing number of countries and institutional actors have increasingly called for the adoption in Paris of a new and more practical universal policy goal that would highlight the need for the long-term decarbonisation of the global economy or the reduction to zero of emissions generated from the combustion of fossil fuels emissions.
This provision would mainly have, at this stage, an aspirational nature. Even if countries in Paris were to endorse the need to phase-out fossil fuels emissions before the end of the century, the governments of the five Arctic coastal states are unlikely to shift their current position and to renounce to exploit the oil and gas reserves trapped under their Arctic continental shelves. But such a statement could further emphasize the financial risks related to stranded assets (resources which are no longer able to earn the economic return originally expected due to a change of the regulatory or economic landscape). In a region where the scale of investments required to produce fossil fuels leads to particularly slow return on investment, a strong commitment by all governments to phase out fossil fuels emissions could further undermine the economic rationale of new oil and gas extraction projects.
The New Nexus of Climate & Energy Security for the Sustainable Arctic Future
The Arctic is a prism to display history of the earth, interaction of global economy, and integration of cross-cutting issues in sustainability. In a broad context of social policy, the nexus of climate and energy security is critical to develop policy mix for the transition to the green economy and sustainable development. The social dimensions of green economy require changes in patterns of investment, technology, production associated with sustainable development.
Figure 1 displays a comparison between social indices among Arctic Council member countries, when we set the case of US equals 1. Compared to US, Russia spends more on military expenditure and less on health care. Canada and Norway outperform US, in terms of mitigation policy and economic growth, respectively. However, an economic slowdown is remarkable, especially in Nordic countries and Russia due to the low price of oil and global recession.
West Texas Intermediate (source: OPEC, IEA) fell from $73 USD per barrel in the fourth quarter of 2014 to $49 USD per barrel in the first quarter of 2015 and accordingly, consumer energy prices fell early in the year. CBO (2015) expects that the global economy is still in the midst of a recovery and oil prices begin to rise by the end of 2015, largely in response to rising global demand for oil, which will lead to gradual increases in consumer energy prices.
The Arctic becomes global and more complicated, since dramatic changes, such as sea ice loss, are projected to occur in Arctic ecosystems and influence the rest of the world with extreme weather events and unpredictable consequences. Arctic sea ice has decreased 14% between 2010 and 2012 since the 1970s (Tilling et al. 2015). The changes in the Arctic Ocean are so profound and climate change is faster and more severe in the Arctic than in most of the rest of the world. The Arctic is warming at a rate of almost twice the global average. That's why sound adaption strategy against climate change in the Arctic is needed for the global community as well as for the Arctic region.
Climate change triggers irreversible changes. 95% of the change in the climate is caused by CO2. And CO2 emissions come from energy use, mostly fossil fuel. The Arctic has huge potential to supply oil and gas, although challanges to Arctic resource recovery comprise two sides of the same coin. Balancing opportunities and obstacles is key in developing Arctic oil and gas. Although the external cost in present value seems to be high in the case of Arctic oil drilling, the timing of Arctic oil recovery depends on two markets: the global oil market and the carbon market.
Several of the Arctic Council members are exporters of oil and gas. And their CO2 emmissions on a per capita basis are above the world average. However, most of the countries (except Russia) in the Arctic are experiencing a decrease in the CO2 emissions on a per capita basis, since 2005 (Figure 2). This is largely due to ambitious reduction targets and successful renewable policies in the Nordic Countries. In the case of United States, shale gas has contributed to mitigation progress in the industrial sector.
The Nordic countries have pioneered energy and carbon taxes, which provide incentives for energy-saving and fuel switching to lower carbon energy. Figure 3 illustrates renewable energy share in total energy supply and net removals of CO2 from LULUCF in Nordic countries. Iceland has a high proportion of renewables in their total energy supply. And carbon sequestration such as LULUCF has resulted in a decrease of net carbon emissions, by 25% lower than in 1990.
Climate change is not a regional issue, but rather part of a global agenda. Without support from developing countries, the synergy effects of national policies in leading countries will be limited. In this regard, carbon financing can be a catalyst to promote investments towards a low-carbon economy.
The European Union Emissions Trading Scheme (EU-ETS) has served climate policy using market instruments, providing price signals for abatement technology since 2005. It allows firms to choose abatement technologies based on market price of CO2 permits, so that market price reflects information regarding demand and supply for the carbon permits. As such, market efficiency is a key element to providing right price signals to market participants as well as to potential investors for technology development.
Investors have been skeptical about market efficiency of the EU-ETS, because the carbon market is considered as a relatively thin market, compared to the stock market. Few transactions take place, so that the carbon market has often been volatile and less liquid, reflecting policy risks and uncertainty about allocation plans from phase I to phase III. However, regardless of the criticism, EU-ETS has offered opportunities for the firms under CO2 regulation to reduce abatement costs. In particular, EU-ETS allows market players to trade the permits within the same commitment period and this flexibility provides less incentive to switch between spot and futures. Kim and Lee (2015) and Lean et al. (2010) point out, in a short period, how there may exist arbitrage opportunities in the EU-ETS, but arbitrage opportunities in the EU-ETS will disappear in a long-term commitment period, as long as the market is efficient.
Korea launched an emissions trading scheme in 2015, which is a significant milestone in cutting greenhouse gas emissions and bolstering its clean technology. California and Québec have linked their cap-and-trade systems. China plans to implement a national emissions trading system as early as 2016. As articulated by the World Bank, carbon pricing is expanding. Carbon pricing is an essential element of the policy mix towards sustainable development and a green economy, not only for the Arctic community, but also for our future of global community.
The 21st COP of UNFCCC is expected to provide momentum to open a new paradigm for global commitments towards green economy. We are confronting challenges at the new nexus of energy and climate security. Since the Arctic is vulnerable to climate change and energy security, we should try our best efforts to initiate constructive dialogues, to promote public-private partnerships and to enhance interdisciplinary collaboration on Arctic research and policy development.
The Oslo Declaration on High Seas Fishing in the Central Arctic Ocean
Erik J. Molenaar
On 16 July 2015, in Oslo, the coastal states of the Arctic Ocean – Canada, Denmark, Norway, the Russian Federation and the United States (Arctic Five) – took a long-awaited further step in the international regulation of Arctic Ocean fisheries by signing the ‘Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean’ (Oslo Declaration). Key features of the Declaration are that it contains various political commitments, rather than international obligations; it relates exclusively to fishing in the high seas portion of the central Arctic Ocean; it is different than a ‘moratorium’, ‘ban’ or ‘freeze of fishing effort’; and it applies only to the Arctic Five.
The origins of the Arctic Five’s process on Arctic Ocean fisheries can be traced back to the United States Senate joint resolution No. 17 of 2007, directing the United States “to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean.” One of the first intergovernmental discussions on Arctic Ocean fisheries occurred at the November 2007 meeting of the Arctic Council’s Senior Arctic Officials (SAOs), which concluded that “There was strong support for building on and considering this issue within the context of existing mechanisms.” The search for a suitable mechanism – existing or new – took place largely in 2008 and 2009, during which various existing regional and global bodies were proposed by interested states and entities. No consensus among the Arctic Five could be reached for any of these proposals.
By the end of 2009 or at least by early 2010, the Arctic Five agreed that if a new international instrument on Arctic Ocean fisheries should be developed at all – which was not yet evident for all five by then – its development should be initiated and led by the Arctic Five outside the framework of (other) existing mechanisms. For this purpose, the Arctic Five have, since March 2010, convened a number of policy/governance meetings at senior officials level, alongside a series of science meetings. The former includes three meetings on which information was made publicly available, namely in June 2010 (Oslo), in April/May 2013 (Washington D.C.) and in February 2014 (Nuuk). Other meetings on which information was not made publicly available have also been held, both before June 2010 and after February 2014. Science meetings have been convened in June 2011 (Anchorage), October 2013 (Tromsø) and April 2015 (Seattle), the last one also involving scientists from China, Iceland, Japan and South Korea.
The Declaration signed in Oslo was already envisaged in the Chairman’s Statement of the February 2014 Nuuk meeting and was scheduled to be signed at ministerial level in June 2014. The Russian Federation’s annexation of Crimea and the subsequent events in Eastern Ukraine disrupted these plans and for a while it was uncertain if these and ‘The Way Forward’ agreed to in Nuuk would ever come to fruition. The Oslo Declaration – signed at ambassadorial rather than ministerial level, probably instigated by Canada in view of the many Canadians with Ukrainian descent – brought an end to this uncertainty and confirmed that the consensus that existed in Nuuk had remained largely intact.
The most important commitment of the Oslo Declaration is that the Arctic Five will implement an interim measure that authorizes their vessels “to conduct commercial fishing in [the high seas portion of the central Arctic Ocean] only pursuant to one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with recognized international standards.” The wording is identical to that agreed in Nuuk, except for the substitution of “modern” by “recognized,” which is arguably not a very significant change. As already said above, this commitment cannot be equated with a ‘moratorium’, ‘ban’ or ‘freeze of fishing effort’ as it still allows fishing pursuant to existing or new regional fisheries management organizations or arrangements (RFMOs/As). The Oslo Declaration’s explicit reference to the North-East Atlantic Fisheries Commission (NEAFC) – whose mandate extends to part of the high seas portion of the central Arctic Ocean – amounts to a recognition that NEAFC is one such existing RFMO/A.
A similar explicit recognition of the Joint Norwegian-Russian Fisheries Commission (Joint Commission) is not included in the Oslo Declaration, even though its geographical mandate implicitly includes the entire Arctic Ocean, and Norway and the Russian Federation appear to view it as an RFMA. However, for a number of reasons – more relating to geopolitics than international law – it does not seem very likely that Norway and the Russian Federation will authorize their vessels to engage in commercial fishing in the high seas of the central Arctic Ocean exclusively pursuant to regulation by the Joint Commission. First of all, their participation in the Arctic Five’s process on Arctic Ocean fisheries already reflects their support for a multilateral rather than a bilateral approach. Moreover, while the Oslo Declaration repeats once again the Arctic Five’s position that there is “no need at present to establish” a new RFMO – as commercially viable fisheries are unlikely to materialize in the future – it also envisages a “broader process” involving other interested States (and entities) “to develop measures consistent with [the Oslo Declaration] that would include commitments by all interested States.” It is submitted that such measures would constitute an RFMA.
The Nuuk Chairman’s Statement also envisaged this ‘broader process’ and even explicitly mentioned that “the final outcome could be a binding international agreement.” Its non-inclusion in the Oslo Declaration reflects as a minimum a lack of consensus on the need or desirability of the sentence. However, the root cause for this could also be a lack of support by one of more of the Arctic Five for a legally binding outcome. On the other hand, the significance of the non-inclusion of the sentence should also not be overstated, as a legally binding outcome is not ruled out.
At the time of writing, the envisaged broader process still seemed to be in a design-phase without agreement on rules of procedure, date and venue of a first meeting, and who will participate besides the Arctic Five. Some time ago the intention seemed to be that participation in the broader process would be exclusively based on invitation by the Arctic Five, and that the following non-Arctic states and entities would be invited: China, the European Union (EU), Iceland, Japan and South Korea. Participation by states and entities in the broader process would thus consist of ‘Five-plus-Five.’ Limiting participation in this way may also serve to ensure that the Arctic Five are not outnumbered by non-Arctic Ocean coastal states and entities. However, the substitution of the phrase “additional States” by “all interested States” raises the question if the Arctic Five are perhaps considering more inclusive participation.
The Oslo Declaration recognizes the interests of Arctic indigenous peoples “in the proper management of living marine resources in the Arctic Ocean.” However, participation of their representatives in their own right – rather than as part of the delegations of the Arctic Five – is probably not able to secure consensus among the Arctic Five, and may also be opposed by non-Arctic States that have concerns relating to indigenous peoples, in particular China. Participation by non-governmental organizations – both green and industry – may be less controversial.
So far, the only real challenge to the role claimed by the Arctic Five seems to have come from Iceland, which took/takes the view that it is entitled to join the Arctic Five, apparently on account of the possibility that the distributional range of fish stocks that occur in the Arctic Ocean also overlaps with Iceland’s maritime zones. It is nevertheless submitted that, in their capacity as coastal states to the Arctic Ocean, the Arctic Five share certain rights, interests and concerns as well as obligations, and it is therefore perfectly understandable – and often in fact required – that they cooperate and coordinate on various issues at one level or another. Iceland is simply not an Arctic Ocean coastal state on account of geography. If the Arctic Five were to allow Iceland to join them, they would not only have difficulty in finding a convincing common denominator but would also stimulate ‘applications’ by other ‘nearby’ states or entities, or renewed calls to convene the ‘broader process’ under the auspices of the Arctic Council.
One of the earliest instances of cooperation among the Arctic Five – although not necessarily conceived as belonging to the domain of the international law of the sea – is the 1973 Agreement on the Conservation of Polar Bears. So far, the Arctic Five’s process on Arctic Ocean fisheries is not inconsistent with international law. Most importantly, nothing in the Oslo Declaration suggests that the Arctic Five’s commitments will be imposed on non-signatories. The Declaration only observes that the Arctic Five “intend to continue to work together to encourage other States to take measures in respect of vessels entitled to fly their flags that are consistent with these interim measures.” This will probably above all be done by means of the envisaged broader process.
While the Arctic Five’s process on Arctic Ocean fisheries has so far arguably been in conformity with international law, there are certainly concerns about the envisaged broader process. First, the Arctic Five have repeatedly and explicitly claimed a lead role in the development of international regulation of high seas fishing in the central Arctic Ocean. The Nuuk Chairman’s Statement describes their lead role as “appropriate.” At earlier occasions, one or more of the Arctic Five argued their lead role to be based on their ‘special/particular responsibility’ and ‘unique interest and role’ as Arctic Ocean coastal states. The Oslo Declaration is silent about the Arctic Five’s lead role, however, and contains instead a clarification of the Declaration’s rationale and international legal basis, with particular reference to the precautionary approach.
This does not mean that the Arctic Five have renounced their lead role. Among other things, they are likely to maintain full control on the crucial and sensitive issue of participation in the broader process. If participation would indeed consist of Five-plus-Five, this would be open to challenges of inconsistency with the freedom of high seas fishing and the right of all states with a ‘real interest’ to participate in RFMOs/As that have a partial or exclusive high seas mandate. The difficulty for such challenges is that Five-plus-Five would be largely in line with the current overall practice on membership or participation within such RFMOs/As. It should also be kept in mind that there are currently no commercially viable fisheries in the high seas of the central Arctic Ocean and this may remain unchanged for a considerable number of years to come. Finally, as noted above, it may well be that the Arctic Five are considering more inclusive participation than Five-plus-Five.
Another reason why the Arctic Five claimed a lead role was to significantly shape the substantive output of the broader process. The Oslo Declaration stipulates that the measures resulting from the broader process are to be “consistent with” the Oslo Declaration. This raises the question as to how much flexibility among the Arctic Five, and room for maneuvering and negotiation there eventually will be? Or, to put it differently, to what extent will the substance of the Oslo Declaration amount to a fait accompli and preclude the newly invited states and entities from participating in the broader process in a way that would be both meaningful and consistent with their rights under international law? Here too, however, it must be emphasized that there are currently no commercially viable high seas fisheries and that the Oslo Declaration does not propose a ‘moratorium’, ‘ban’ or ‘freeze of fishing effort’.
A second distinct concern on the broader process is that the Arctic Five have spatially confined it to the high seas of the central Arctic Ocean. If this remains unchanged, it would not address the potential risk that coastal State maritime zones in the central Arctic Ocean will be subject to less stringent regulation than the high seas portion. It can be safely assumed that fisheries will become commercially viable within coastal State maritime zones earlier than within the high seas area. The more urgent challenge, therefore, is for each of the Arctic Five to ensure that commercial fishing in their own maritime zones is also regulated in accordance with ‘recognized international standards’, with particular reference to new and exploratory fisheries. Such regulation will - for reasons of credibility and in light of the notion of compatibility laid down in Article 7 of the 1995 Fish Stocks Agreement – be crucial for securing support among non-Arctic Ocean coastal states and entities to participate in the envisaged broader process and its eventual adoption of a regional instrument on high seas fisheries in the central Arctic Ocean. Non-Arctic Ocean coastal states and entities may also propose that the notion of compatibility be included in this instrument. For the United States this would not appear to be problematic, as it has already put in place a ‘freeze of fishing effort’ in its exclusive economic zone off Alaska in the Arctic Ocean. Hopefully, the other Arctic Ocean coastal states either already have regulation with a similar stringency level in place or are prepared to do so sooner or later, but at any rate before the conclusion of the broader process.
Despite these points of concern, it would be inappropriate to conclude this contribution without due appreciation for the Arctic Five’s pro-active and precautionary efforts and commitments, and implicit dismissal of a laissez-faire, laissez-aller attitude. It is to be hoped that their envisaged broader process commences in the near future, will operate in accordance with international law and produce a successful outcome, in particular in light of the ecosystem approach to fisheries management.
Exploring Reasons & Remedies for the EU’s Incapability to Devise an “Arctic Policy”: The Quest for Coherence
Adam Stępień & Andreas Raspotnik
The European Commission and the European External Action Service (EEAS) are, at the time of publishing of this year’s Arctic Yearbook, working on a new policy statement concerning the EU’s Arctic policy. The new communication, requested by the Council of the European Union, is likely to surface in the first half of 2016, slightly passing the original 2015 deadline (EU-Council 2014). In this Briefing Note, we focus on the formulation of the EU Arctic policy as an overarching framework, which so far has found its expression in declaratory statements (communications) from the Commission and the Union’s High Representative. Two main questions shine out: Why has it been so difficult to formulate a statement that meets expectations of analysts and Arctic actors and are we likely to see it finally occurring in 2016?
2016 would mark eight years since the Commission’s first communication on Arctic matters. Eight years during which the geopolitical “hot” Arctic turned into a realistic “cold” Arctic. Eight years during which the EU’s general approach towards the North is still a matter of debate and its policy still an emerging one – a policy in search for a clear goal and a purpose. This painful and discouraging process of elaborating a clear statement of the EU’s Arctic ambitions, contrasts with the otherwise appreciable progress in the EU’s Arctic-specific activities. The EU’s funding for Arctic research is still widely prized. The EU’s representatives in the work of Arctic Council have been able to provide visible inputs, in particular as regards short-lived climate forcers (Joint Research Centre), birds (European Environment Agency) or to the work of PAME (DG Move and the European Maritime Safety Agency). Although leaving much to be desired, the dialogue with Arctic indigenous peoples has become regular and more substantial. Recently, consultations regarding streamlining EU Arctic funding have been carried out. While characterized by far too many deficiencies, the very fact of conducting such consultations deserves acknowledgment.
Despite this progress, during eight years, the EU’s three main institutions (the Council, Commission and European Parliament) have appeared to be incapable of proposing a clear-cut overarching Arctic policy. What are the underlying reasons for this particular European incapability? The answer may lie in an issue raised by the EU institutions themselves; that is the matter of (internal and external) “coherence” and a proposed aim of formulating an “integrated” policy.
The European Parliament (EP), in its 2014 resolution, called for the formulation of a “united EU policy on the Arctic” and a “coherent strategy and concretized action plan on the EU’s engagement in the Arctic” (European Parliament 2014). At the same time, the Council requested the Commission to work towards “further development of an integrated and coherent Arctic Policy” (EU-Council 2014). Consequently, the essential question is what coherence and integration could mean in the context of a crosscutting Arctic policy. Commentators – and apparently also the EP and the Council – would like to see the EU’s Arctic policy statement to be comprehensive, coherent, integrated, co-ordinated, action-oriented and specific. However, could it be the case that the very nature of the EU Arctic policy and the character of the multifaceted EU-Arctic nexus make such expectations somewhat exorbitant?
Coherence, notwithstanding multiple meanings of the term, could refer to the consistence between constitutive elements of a policy, so that contradictions between a variety of policy objectives and components are avoided or minimized. But more importantly, coherence should entail encouraging synergies between these various components. The policy should therefore make a positive difference and have added value within a policy system, and not merely minimize internal contradictions (May et al. 2005; Mayer 2013; Stępień, forthcoming).
In an EU internal horizontal context, coherence may also refer to “speaking with one voice” and related uniformity between the relevant institutions. When applied to a geographical space, an external dimension to the policy coherence needs to be considered, as the policy should facilitate synergies not only between various EU actions, but also with the actions of other actors operating in the region (Gebhard 2011).
An “integrated policy” – a concept closely associated with coherence and equally ambiguous – could refer to a policy that brings together under a set of common objectives and instruments a number of interrelated sectors (e.g. fisheries and maritime transport) or a policy rooted in general EU policy frameworks (e.g. the EU’s Common Fisheries Policy or the Integrated Maritime Policy) (see e.g., Meijers & Stead 2004; van Hoof et al. 2012).
In the case of a crosscutting issue like the Arctic, various components of a possible Arctic policy (fisheries, research, climate change, maritime transport, etc.) are bound together by a specific geographical label. In order to be something more than merely a label - to be more than just a sum of these different components and have added value – the EU’s final Arctic policy product would thus need to have even a minimal degree of coherence and integration. A genuine overarching “policy” needs to make even a modest difference: either in the region or within the general EU policy framework. In our understanding two issues make this quest for coherence a critical, but at the same time perhaps an insurmountable challenge:
- the diversity of issues brought together under the Arctic policy umbrella; and
- a marginal position of Arctic issues within the EU policy system as such.
Over the years, an increasing number of issues started to fall under the umbrella of an emerging EU Arctic policy. While 2008 documents focused on research, fisheries, marine environment, shipping and hydrocarbon extraction, from 2011 and 2012 the Arctic label was stuck to regional development in Fennoscandia, mining, reindeer herding or the Sámi issues. Currently – based on the content of recent consultations on streamlining EU Arctic funding – terrestrial transport, infrastructure and numerous EU funding programmes are being added to the list.
The objectives or instruments of an overarching Arctic policy would have to be fairly abstract and vague in order to encompass such a diversity of components (and in addition would have to correspond to actions and positions taken by the Arctic states themselves). And indeed, so far the objectives proposed in the 2008 and 2012 communications were anything but concrete and workable (see e.g., Keil & Raspotnik 2012). In 2012, the objectives virtually degraded to three buzzwords – knowledge, responsibility and engagement – which turned out to be little more than headlines for various disconnected, mostly already on-going, activities (Airoldi 2014).
Would it be at all possible, instead of these general objectives, to propose a short list of concrete, new actions or to find a single organizing idea (May et al. 2005) for the Union’s Arctic policy? Accordingly, climate change could be positioned as such a top priority. However up to now, it somehow has not caught broader attention to really make it an Arctic policy driving force, i.e. a glue that could bind together diverse issues labelled as “Arctic.” Yet, would the various interest groups within the EU actually allow the response to climate change to be prioritized over other problems and objectives? And even if climate change was to become the key organizing priority, another problem remains, namely the peripherality of Arctic issues as a concern for the EU. The Arctic appears to be fairly marginal from the point of view of a policymaker regulating for a half a billion citizens.
In that regard – as already noted by Powell (2011) – the very (analytical) starting point sounds rather simple but seems to be impossible to answer: What does the Arctic say about the (future) extent of Europe? Moreover, what does the European Arctic or the broader Northern Neighbourhood actually mean for the European Union in general?
The Eastern Neighbourhood (e.g. the Ukraine-Russia-EU triangle) and the Southern Neighbourhood (e.g. the Mediterranean migration crisis) undoubtedly and in fact matter, whereas the Northern Neighbourhood does not. Moreover, the term “Northern Neighbourhood” actually does not even exist in official EU vocabulary. The Arctic region may be (economically) relevant in the decades to come, however currently it is simply not.
Hence, a key question occurs: how to “integrate” this “not-yet-existing-policy-region” into the EU’s current policy structure?
Instead of devising an “integrated” strategy that essentially lacks a common understanding (“one thought/perception, one voice”) of what the region is and means, EU policymakers could initially focus their crosscutting Arctic activities on creating procedures, instruments and mechanisms enhancing and supporting the EU’s very presence in the region – presence which already has a couple of positive facets. Elements of such an approach could include:
- enhanced coordination within the Commission, between EU institutions and Member States;
- durable and meaningful consultation platforms for engaging Arctic stakeholders (including those from outside the EU or EEA); and
- considering long-term mechanisms for communicating the knowledge gained through the EU’s Arctic engagement to the general EU decision-making processes (for instance via impact assessments conducted before EU regulations are proposed).
Some steps towards that direction have already been taken, but the challenges are still plenty. The established inter-service group that brings together policy officers from various DGs, EEAs and EU agencies was a first necessary step for an envisaged coordinated approach. However, so far the irregular meetings have served primarily information purposes. Additionally, the channels for informing major EU decision-making processes on Arctic-specific problems are scarce, if any. The ways for better informing both EU public and Arctic stakeholders about what the EU does in the Arctic are also being discussed. However, numerous critical comments (Personal communications, Rovaniemi, Oslo, Brussels, April-July 2015) on recent consultations dedicated to streamlining EU Arctic funding indicate that the implementation of stakeholder engagement remains a major challenge. And as regards EU-indigenous Arctic Dialogue meetings, we are yet to see any concrete effects of this format for the EU’s activities in the Arctic.
The upcoming policy document will show whether progress has been made in any of these procedural areas, whether any concrete goals could be devised, organizing ideas found and in general whether the “Northern Neighbourhood” has any real and defined significance for the EU as a whole, a significance beyond declaratory and formal statements. The new communication might show whether the overarching EU Arctic-policy framework can be coherent, whether it can – against the odds – manifest features of an integrated policy and whether it supports many, still disconnected, EU activities in the region.
25 Years of the International Arctic Science Committee (IASC)
The Arctic Council (AC) is generally considered the primary circumpolar forum for international cooperation in the region (Graczyk 2012; Koivurova 2009). This view is reflected in the increasing interest that the Council has attracted over the last couple of years – both from the non-Arctic states and actors as well as from Arctic nations, in particular the United States which holds the AC Chairmanship from 2015 to 2017. Yet, while the Arctic Council is coming to its 20th anniversary in 2016, another body established by the eight Arctic states celebrates this year twenty-five years of its operation.
The International Arctic Science Committee (IASC) founded in 1990 is a non-governmental international scientific organization, which today encompasses national science organizations from 23 countries conducting research in and on the Arctic. Over the past 25 years IASC has evolved into the leading international science entity focused on the North and thus the anniversary provides an excellent opportunity to recall its beginnings and to reflect upon its evolution, achievements made to date and challenges that lay ahead of it in future.
Foundation of IASC
The initiative for the development of IASC drew largely on the history of polar exploration (Keskitalo 2004) and international scientific cooperation in the Arctic that began in the late 19th century with the first International Polar Year (IPY) (1882-1883) organized by the International Polar Commission.1 The first IPY did not only collect an enormous amount of material and information, but it was also the first successful attempt at collaboration by different countries in the field of scientific research (Barr & Luedecke 2010) and a major breakthrough in the conduct of research in the Arctic, dominated until that time by patriotic rivalries and separate competitive national explorations (Stone 2015: 71). The second IPY took place fifty years later in 1932-33 and the third, under the banner of International Geophysical Year (IGY), in 1957-1958. The IGY had a strong focus on Antarctica and, as a form of its legacy, the International Council of Scientific Unions (ICSU, today’s International Council for Science) established in 1958 the Scientific Committee on Antarctic Research (SCAR), which later came to serve as a model for scientific cooperation in the Arctic. It was during the SCAR meeting in San Diego in 1986 that the idea of creating an equivalent body for scientific collaboration in the Arctic was informally discussed among delegates from both Arctic and non-Arctic countries. The initiative came from the United States and the then President of SCAR and the Chairman of the newly established US Arctic Research Commission (USARC) who proposed the creation of similar collaboration mechanisms that existed for the Antarctica also for the North. However, the situation in the Arctic was much different from that around the South Pole and still strongly marked by the Cold War divisions.
Apart from single occasions like the signing of the Polar Bear Treaty in 1973, the Soviet Union had a strict policy of bilateral contacts in the region, which during the 1980s took form of scientific cooperation between the USSR and Canada, and the USSR and Norway. Moreover, the long-standing Soviet position was that Arctic affairs should be dealt with by Arctic rim states alone (Keskitalo 2004: 45). Hence, even though the main outcome of the San Diego meeting was a consent to continue to explore the possibility of creating an international Arctic science committee (Rogne, Rachold, Hacquebord & Corell 2015: 9), due to the USSR stance it was agreed that the next meeting would include representatives solely from Arctic nations. However, at that time no clear definition of the Arctic nation yet existed. It was only after a series of consultations, which began with the Arctic littoral states, that it was decided that countries with territories north of the Arctic Circle would be considered the Arctic ones, hence laying ground for the final identification of the eight states as “Arctic” (Keskitalo 2004: 45), the definition later adopted by the Arctic Environmental Protection Strategy (AEPS) and subsequently by the Arctic Council.
With regard to what later became the International Arctic Science Committee (IASC), the planning process and elaboration of the organizations founding articles continued in the cycle of meetings between February 1987 and May 1989. In the meantime, in October 1987, Mikhail Gorbachev delivered his groundbreaking speech in Murmansk, which paved the way for future collaborative efforts in the region. Next to proposing an integrated plan for protecting Arctic natural environment, Gorbachev put forward the idea of an international organization to facilitate scientific research in the North. While the discussions on its creation had already been well underway, the Murmansk speech ensured the USSR support to the initiative and provided the impetus for further work.
However, it turned out that the main obstacle in the process was reaching an agreement among Arctic countries on participation and a role of non-Arctic nations in the new body. Even though delegates from the Federal Republic of Germany, France, Japan, Poland and the UK took part in the abovementioned gathering during the SCAR meeting in San Diego, due to the USSR position and to the disappointment of leading scientists from those countries, further talks continued without them. Hence, to clarify the situation on the founding process of IASC, they asked their governments to take action and in March 1989 France, Germany, the Netherlands and the UK formally approached the Arctic countries with a ‘Note Verbale’ to explain their policy on the IASC (Rogne et al. 2015: 22).
The note drew significant attention of the Arctic eight and resulted in a temporary standstill of the negotiations as it occurred that there was no consensus among Arctic states on the role of non-Arctic countries in the new organization. Both Canada and the USSR strongly opposed participation of non-Arctic states on an equal basis and argued that “the founding articles of IASC must reflect the broader range of scientific interests and responsibilities of the Arctic countries” (Note Verbale Canadian Foreign Office Ottawa in: Rogne et al. 2015). On the contrary, the United States was in favour of the exclusively scientific body without any governmental control or distinction between the scientific organizations from Arctic and non-Arctic states. This point illustrates well the degree of politicization of the whole process, where despite IASC being a non-governmental organization, “representatives of national governments played a central role in its creation” (Young 1992: 40-41, draft in: Keskitalo 2004).
To find a way out and to move forward, representatives of three states (Canada, USA and the USSR) met in December 1989 in Moscow and came up with a new proposal for a structure and founding articles of IASC. To find compromise on the interests of both sides, it was agreed that next to the IASC Council, i.e. the highest decision-making body of the organization, where all the member countries – both Arctic and non-Arctic ones – would enjoy equal rights, the Regional Board would be created with inclusion of representatives of relevant national organizations solely from the Arctic eight (Rogne et al. 2015: 24). The Board was to consider general regional problems affecting the common interests of the Arctic countries and ensure that the activities of IASC would remain consistent with those interests (IASC Founding Articles, part D, art. 1).2 This agreement removed the last obstacle on the way to establishment of the International Arctic Science Committee, which was eventually founded in Resolute Bay, Nunavut, Canada in August 1990. Whereas representatives of France, Germany, Japan, Poland and the United Kingdom attended the meeting still solely as observers, during the first regular meeting of the IASC Council in January 1991 the science organizations of France, Germany, Japan, the Netherlands, Poland and the United Kingdom were admitted as the first non-Arctic full members of IASC.
From early days to ICARP III
The founding of IASC marked the beginning of a new era of collaborative efforts in the region. Not only fruitful completion of negotiations on the Committee helped to energize the process which led to signing of the Arctic Environmental Protection Strategy (AEPS) in Rovaniemi in June 1991 (Young 1998: 116), but the International Arctic Science Committee played a pivotal role in overcoming divisions and developing cooperation between Russian and Western scientists working on the Arctic who previously had had very limited contact.
Initially, even though according to its founding articles IASC was supposed to operate through the working groups, most of its work was done through international projects, to deliver tangible outcomes within a prescribed period of time. The projects revolved around the themes of impacts of global changes on the Arctic region and its peoples, Arctic processes of relevance to global systems, natural processes within the Arctic, and sustainable development in the region. In order to provide a more robust roadmap for researchers working on the region, in 1995 IASC convened the first International Conference on Arctic Research Planning (ICARP I), which brought together more than 250 scientists and defined ten large research themes, later undertaken by scientists and translated into concrete research projects. Moreover, as Oran Young notes, ICARP I provided IASC with a programmatic identity and enhanced links between Arctic and global science. It also brought a sense of community among scientists working on Arctic issues (Oran Young in: Rogne et al. 2015: 42-43).
As the first conference proved to be a success, it was decided that it would be repeated every ten years. Hence, the second ICARP took place in 2005 in Copenhagen. It gathered more than 450 participants and produced twelve scientific plans, which helped to identify fundamental questions for Arctic science as well as numerous activities that later contributed to the fourth International Polar Year (2007-2008) and were subsequently implemented. Another form of legacy of ICARP II and the fourth IPY has been a very strong encouragement for inclusion of early career scientists into the work of IASC, which began in the preparations to both initiatives. Since its foundation in 2006 the Association of Polar Early Career Scientists (APECS) has developed a close partnership with IASC and greatly profited from the Committee’s support. In addition, in 2014 IASC established a Fellowship Program to promote the next generation of scientists working on the Arctic and to involve them in works of five of the IASC working groups (WGs): Atmosphere WG; Cryosphere WG, Marine WG, Social & Human WG; and the Terrestrial WG.
However, the partnership between IASC and APECS is only one among many synergies that the Committee has generated over the course of time. From the perspective of bringing science closer to policy-making circles perhaps the most important one is the relationship with the Arctic Council with which IASC partnered in producing one of the most seminal works documenting the region's change, the Arctic Climate Impact Assessment (ACIA).4 Moreover, IASC has been an observer to the AEPS, and consequently to the Arctic Council, from the time the Rovaniemi Process started in 1991. Since that time IASC has supported works of the AC by bringing the scientific expertise from all of its members, including non-Arctic states, to the AC assessments or by coordinating the reports’ scientific review processes as it did in case of the Arctic Human Development Report-II (AHDR-II) or the Arctic Resilience Report (ARR). A further step towards bringing the two institutions closer together and towards facilitating the science-policy dialogue is organizing the March 2016 meeting of the Arctic Council’s Senior Arctic Officials (SAO) in Fairbanks, Alaska in conjunction with the Arctic Science Summit Week (ASSW), which is the largest gathering of the international organizations supporting and facilitating Arctic research that convenes annually under the auspices of IASC since 1999.
It was also during the ASSW, which this year took place in Toyama, Japan that the 25th anniversary of IASC was celebrated. The summit gathered more than seven hundred participants from twenty-seven countries - international scientists, policy makers, research managers, indigenous peoples and students - and saw the culmination of the ICARP III process that began a year earlier, during the ASSW 2014 in Helsinki. Whereas its final report is to come out in fall 2105, the ASSW 2015 concluded with the Toyama Conference Statement Integrating Arctic Research: A Roadmap for the Future, which contains a set of overarching messages for future Arctic research planning process.
The document also pinpoints major challenges that lie ahead of Arctic science and our understanding of changes occurring in the region which transformation spurs global interest and unprecedented attention.
Into the Future
Nothing better confirms the organization’ focal position in promotion and facilitation of international research on the Arctic than the incoming applications for IASC member status. Since the time of its foundation in 1990 the IASC membership has been constantly growing and today includes twenty-three countries conducting research in the Arctic. Throughout the time IASC has become a market place (Rogne et al. 2015) or a “forum where an idea first germinated before being brought to fruition through extensive international collaboration in other organizations (particularly those controlling infrastructure and other resources)” (Stone 2015). The organization played also an important role in moving Arctic science onto the cutting edge of science at large and deepening our comprehension of the dynamics of the coupled socio-ecological systems (Rogne et al. 2015). Yet today, changes in the Arctic are still challenging our understanding of their consequences both on the regional as well as on global scale, and the scientific community’s ability to provide relevant and timely knowledge for decision-makers (Toyama Conference Statement). Addressing those challenges requires sustained scientific observations and combining them with insights from local and traditional ecological knowledge - both efforts strongly encouraged and supported by IASC. And while the Arctic moves from the periphery of international relations closer to the center of the world’s political and economic interests, science still remains the key to sustainable development and future of the region. As the long historical tradition of polar research shows, greatest achievements down this road come through international collaboration and cooperation where over the last twenty-five years the role of IASC has been indisputable.
From Ice Law to ICE LAW: Constructing an Interdisciplinary Research Project on the Political-Legal Challenges of Polar Environments
Philip Steinberg & Kate Coddington
This briefing note reports and reflects on the ICE LAW Project (the Project on Indeterminate and Changing Environments: Law, the Anthropocene, and the World), a venture convened by IBRU, the Centre for Borders Research at Durham University with the support of the UArctic Thematic Network on Arctic Law. In June 2014, twenty-two scholars with expertise in cultural anthropology, state theory, political geography, and legal studies gathered to consider the challenges that ice – and particularly the sea ice of the polar regions – poses to regulatory norms and political institutions based on a Western legal framework that assumes a clear, permanent, and experienced division between solid land and liquid water. In this briefing note, we describe the process of constructing an interdisciplinary research project based on the geophysical complexities of ice, report on the results of the 2014 workshop, describe the interdisciplinary methodological approach constructed, and outline further research endeavours. In addition, we reflect on a number of research challenges posed by the project: How can one examine general characteristics of polar environments while acknowledging the specificity of inhabited (i.e. Arctic) regions? How can a research focus on one element (sea ice) be paired with acknowledgment of the complex ways in which livelihoods cross between polar surfaces? How can one identify regulatory gaps and inform practical solutions while advancing conceptual understanding? How can a focus on the Arctic be used to address broader global challenges amidst unprecedented anthropogenic transformation of the global environment?
Although the United Nations Convention on the Law of the Sea (UNCLOS) (United Nations 1982) is universally recognised as providing the fundamental governing framework for the ocean that lies at the centre of the Arctic region (e.g. Ilulissat Declaration 2008), only one of its 320 articles acknowledges that parts of the ocean are, for at least part of the year, not liquid. Article 234 gives coastal states exceptional environmental powers in portions of their exclusive economic zones where the persistence of “ice-cover” for “most of the year” poses a hazard to navigation. However, even this article contains lacunae that complicate effective implementation: what is meant by “ice-cover”? At what point would melting due to climate change render an area not “ice-covered” for “most of the year”? How do these provisions relate to other provisions in UNCLOS, such as those governing international straits? Can Article 234 inform legal practice in other areas where UNCLOS implementation is complicated by the presence of ice (e.g., the role of ice edges in determining baselines)? How does Article 234 reflect (or fail to reflect) the concerns of users other than commercial shipping interests, such as indigenous inhabitants, for whom ice is not a hazard but an enabler of livelihoods? (Aporta 2011; Byers 2013; Kay 2004; Steinberg et al. 2015).
For all these reasons, it is apparent that UNCLOS provides, at best, a starting point for regulating activities in ice-covered maritime regions. But if UNCLOS is not fully up to the task, how might it be supplemented, or interpreted, or replaced to better reflect the activities that transpire on a frozen ocean? And, equally significantly, what does the failure of UNCLOS to adequately account for frozen ocean tell us about the underpinning principles of state sovereignty and international law, in the Arctic and elsewhere?
In 2014, these questions led researchers at IBRU, Durham University’s Centre for Borders Research, to form the Ice Law Project.1 The Project’s first event was the Workshop on International Law, State Sovereignty, and the Ice-Land-Water Interface, held in June 2014 in Durham, England, with support from the University of the Arctic’s Thematic Network on Arctic Law.
The Workshop on International Law, State Sovereignty, and the Ice-Land-Water Interface
The workshop was designed to address sea-ice related questions at a number of overlapping levels. At the most practical level, the workshop sought to identify gaps resulting from UNCLOS’ failure to recognise sea ice and suggest ways that these gaps might be filled through new legal instruments. At a somewhat more conceptual level, the workshop sought to explore how the absence of a comprehensive regime for sea ice was reflective of a systemic disjuncture between, on the one hand, temperate-zone-derived legal and political principles and, on the other hand, the realities of the ways in which indigenous peoples, non-indigenous residents, and outside investors and states encounter the Arctic environment. This inquiry, although conceptual, was also of practical import because, as the workshop’s programme noted, “As the imprint of state institutions intensifies in the Arctic, these ruptures between ideals of state sovereignty and the actual territories that are constructed by those who would control, live in, invest in, or pass through them are likely to become more apparent and more problematic for all parties involved” (IBRU 2014). Finally, in organizing the workshop, we hoped that it and its follow-up projects would contribute to far-reaching understanding of how “legal, political, and regulatory systems are faced with the need to adapt to the uncertainties and instabilities associated with dynamic notions of ‘territory’ amidst climate change and geophysical flux” (IBRU 2014).
To meet its more ‘practical’ goals, the workshop sought to join anthropological expertise in the uses of ice in Arctic livelihoods with legal expertise in how ice was being regulated in national and sub-national jurisdictions to identify how international law’s blindness to the specificities of sea ice might be overcome. We recognized from the start that any attempt to implement recommendations emerging from this exercise would face formidable political hurdles. The modern state system is based on a fundamental distinction between solid land (which is divided into state territories) and liquid ocean (which is beyond territory) (Steinberg 2001, 2009). The history of preliminary efforts to conceptualize an ‘Arctic Treaty’ has made it clear that any effort to implement a legal regime based on any other understanding of the relationship between geophysics and geopolitics in the Arctic would face a chilly reception in diplomatic circles (e.g. Bellinger 2008; Ilulissat 2008).
Nonetheless, we felt that ‘blue sky’ thinking was needed to begin a conversation that could become highly relevant should the political opportunity emerge. To encourage this ‘blue sky’ thinking, we attempted to bracket questions of political practicability to the greatest extent possible. The programme sent to participants prior to the workshop made this intent clear:
As an academic grouping without sponsorship from any policy-implementing body, the collection of anthropologists, legal scholars, and political theorists being brought together for this workshop will have the freedom to consider options that address the concerns and practices of peoples and institutions that encounter the specificities of Arctic and sub-Arctic landscapes and seascapes (IBRU 2014).
The politics that might hinder implementation would be considered later, if at all.
We also sought to prevent the discussion from being overly constrained by considerations of political practicality by pairing the ‘practical’ goal with the workshop’s more ‘conceptual’ goals: to use sea ice as a lens for exploring more generally the ways in which geophysical categorizations fail to reflect experiences of space ‘on the ground’. Such an inquiry would address a broader trend within political geography and international relations toward querying the material basis of political categories and institutions and, in particular, the relationship between geophysical and geopolitical binaries (e.g. Clark 2010; Coole & Frost 2010; Millennium 2013).
To ensure that both the conceptual and practical goals were continually engaged, twelve invited Arctic scholars were joined by ten invited scholars without any particular Arctic expertise but with strong research profiles in related areas of law, political theory, anthropology, and geography. As might be expected, the Arctic experts, and in particular the anthropologists and lawyers among them, focused more on the practical goals. Conversely, the non-Arctic experts, and in particular the political theorists and geographers among them, focused on the more conceptual goals. However a surprising diversion of priorities emerged as the conversation proceeded. Notwithstanding the project’s origins in the identification of a specific gap in UNCLOS (and the need to suggest ways to fill it), ‘practical’-oriented Arctic experts consistently argued that the remit of the project should expand beyond sea ice. If, they asked, the goal was to investigate how actual encounters with the environment resist the categorizations of modern law, then should the remit of the project not be expanded to Arctic waters regardless of their frozen state? Should it not also include ice-covered land, which also confounds the idealized land-sea binary of modern law? Indeed, if the goal was to create legal frameworks that reflect the livelihoods of northern peoples, should the focus not be the entire Arctic environment? To do otherwise, the argument went, would be to reproduce the binaries that the project was aiming to transcend.
Likewise, just as the practical-minded participants objected to the focus on ice (and, especially, sea ice), some among them also objected to the focus on law. It was noted that law, by its very nature, divides space (and uses of space) into generalizable categories that deny the possibility for change over time, and thus some argued that the focus on law was inconsistent with the project’s objectives. Some workshop participants suggested that the legal focus needed to be abandoned entirely if we were to maintain an understanding of Arctic space and its uses as dynamic and unstable. Others suggested that these problems could be addressed by expanding the legal focus to include international soft law (e.g. regulatory mechanisms that operate by means not directly connected with the control of territory) or by adopting a legal pluralist perspective that recognized how state-based legal systems and practices are interwoven with community-based regulatory norms.
In short, several of the participants who were more directly engaged in applied Arctic advocacy and research, questioned both the focus on ice (and particularly sea ice) and the focus on law (and particularly formal public international law). These were potentially damning critiques for an initiative called the Ice Law Project. After all, if the Ice Law Project was not to be about either ice or law, then what was to be its focus?
During the final day of the workshop, participants agreed that we had begun a creative and potentially fruitful conversation that joined scholars studying human encounters with icy environments, other scholars examining the adaptations and frustrations that occur when Western law is applied to those environments, and still others theorizing what these experiences tell us about the relationship between state and space. However, many in the group acknowledged that the initially chosen vehicle for that conversation – the development of a model law for sea ice (Article 234a, as it came to be called at the workshop) – might not be well suited for the task. The general consensus was that the goal of constructing a model public international law of sea ice was too constrained by the formality of law, the temporal and spatial restrictions mandated by the category of sea ice, and the impracticality of its realization. Nonetheless, participants retained a commitment toward addressing the broader question of how Western law is and is not suited to frigid environments. They also retained a commitment toward exploring how answers to that question might enhance both the development of Arctic regulatory institutions and our understanding of the geophysical underpinnings of modern state institutions.
To that end, in the year since the workshop occurred, the Ice Law Project has taken on four tasks that have sought to pursue its research agenda through a more distributed approach. The first, and most simple, has been to rename the Ice Law Project as the ICE LAW Project, with the acronym standing for ‘Indeterminate and Changing Environments; Law, the Anthropocene, and the World’. This name change signifies that the project is not solely about understanding the intersection between ice and law (and perhaps developing a new set of legal mechanisms for regulating human uses of ice). It also announces our intent to use our understanding of that intersection for making broader insights about the relationship between a dynamic geophysical world undergoing unprecedented, human-generated climate change and a political-legal system that imagines static and absolute boundaries among land-based, territorial states and between solid land and liquid sea. Some of these insights will likely be of especial relevance for understanding the Arctic, but some may well be oriented toward increased understanding of global processes and institutions.
The second task has been to solicit brief ‘reflection’ pieces from workshop participants. As the project website notes:
Participants were asked to submit 500-1000 word reflections on the mismatch between, on the one hand, the assumed division of the world into solid land and liquid water and, on the other hand, space as it is experienced and produced in polar regions. Participants were asked to reflect on the opportunities that this mismatch provides for:
- Understanding historic and potential relationships between the perceived physicality of the earth and notions/practices of territory, and/or
- Developing legal/regulatory mechanisms that are suited to address the challenges that the physicality of the region poses to actors there (Ice Law Project 2014).
Thirteen participants have provided ‘Reflection’ pieces that continue the conversation beyond the confines of the meeting room.
Thirdly, the different foci and priorities that emerged during the project suggested that the best route forward was to continue a conversation among diverse individuals stimulated by overlapping questions and perspectives rather than by working toward a single scholarly or practical product. To this end, discussion during the final day of the workshop identified four coherent themes where more research was needed regarding the challenges and disjunctures that emerge when Western norms are applied in icy environments: Territory, Legal Instruments, Resources, and Mobilities.3 These were subsequently joined by three other themes: Local and Indigenous Perspectives, Migrations, and Global Connections. As of this writing (June 2015), two major grant proposals are pending that, if successful, will facilitate sub-project workshops as well as information-sharing and networking among sub-project leaders.
Fourthly, the ICE LAW project has fostered follow-up research within its individual subprojects, with two funding proposals presently pending. One, within the Territory subproject, proposes to examine sea ice relative to three other (non-Arctic) spaces where dynamic geophysical processes are also confounding the idealized binary between land and sea. The other, which cuts across the Legal Instruments, Local and Indigenous Perspectives, and Mobilities subprojects, seeks to investigate how local and indigenous communities are mobilizing to build hazard response capabilities in response to the region’s changing environment. Other projects are likely to follow.
From Ice Law to ICE LAW, the project’s one-year journey sheds light on the pitfalls and possibilities that emerge when one engages the Arctic as a region that is both exemplary and exceptional. One the one hand, using the Arctic as a lens or, worse yet, as a laboratory for understanding the world is highly problematic. When one adopts this approach, the Arctic’s unique attributes are either elided or oversimplified, and the actual experiences and needs of Arctic peoples and social institutions are forgotten. On the other hand, the tendency to frame the Arctic as solely a place for practical problem-solving is equally problematic as it relegates the region to the margins of social thought and, ultimately, social power. In its effort to approach the Arctic as both a space of practical solving and as an exemplar for exploring processes that transcend the region the ICE LAW Project continues to negotiate the tensions and possibilities that emerge from these two conflicting objectives.
Coda: ‘Blue Sky’ vs. ‘Blue Water’
As of this writing, we have before us an announcement for the Norwegian Scientific Academy for Polar Research’s August 2015 summer school in Svalbard: Arctic Ocean Governance as a Multifunctional Challenge. At first glance, the programme announcement looks oddly familiar:
A circumpolar system of governance is in the making for the Arctic Ocean, both when it comes to regime and structure. Among the eight Arctic states there is broad agreement (Ilullisat-declaration of 28 May 2009) that the United Nations Convention on the Law of the Sea of 1982 (UNCLOS) and other global ocean conventions is to be applied as the basic regulatory foundation of the Arctic Ocean. At the same time, the fact is that the UNCLOS mostly was developed to regulate the challenges of “blue water” Oceans. Out of the 320 articles of the UNCLOS, only one - Article 234 - deals specifically with ice-covered waters. Issues specific to Arctic natural conditions, such as sea ice, environmental fragility/sensitivity, polar darkness etc. are not fully or sufficiently addressed in UNCLOS. (Norwegian Scientific Academy for Polar Research et al., 2015).
A closer reading reveals, however, that this gathering will be very different from the Durham workshop. The Durham meeting sought to temporarily bracket practical political considerations so as to encourage ‘blue sky’ thinking regarding what the problems of regulating ice can tell us both about the Arctic and about the geophysical basis of the modern state. The Svalbard school, by contrast, is resolutely grounded in practical possibility. The focus will be on identifying and discussing soft law mechanisms that could fill the gaps left by UNCLOS’ ‘blue-water’ focus. These include mechanisms that have been already agreed to, such as the International Maritime Organisation’s Polar Code and the Arctic Council-negotiated Arctic Search and Rescue Coordination Agreement, and potential future mechanisms. The organisers of this gathering have identified specific problems and they are bringing together policy experts and engaged students in an effort to explore possible solutions.
We find both efforts exciting. Both potentially could affect the livelihoods of Arctic residents as well as how the Arctic is perceived by outsiders. And yet we find the differences in the two meetings’ orientation intriguing as well, as they are indicative of a broader tension that has characterised the Ice Law / ICE LAW Project since its inception and that echo broader tensions within the discipline of Arctic studies: how can one merge the critical study of law and society with the imperative to develop workable solutions for a distinct region beset by a wide range of social, political, legal, and economic challenges, some of which are regionally unique? The different, but complementary approaches of the Durham and Svalbard groups demonstrates the exciting potential of the Arctic for generating new ways of thinking about global legal, political, and environmental challenges and the need to draw from a wide range of perspectives so as to develop practicable solutions for the region. We look forward to reading a report from Svalbard in next year’s Arctic Yearbook.
Crossing & Bridging Borders in the Euro-Arctic North
Andrian Vlakhov & Hanna Lempinen
This year’s edition of the Calotte Academy, an established travelling symposium focusing on the social and political issues in the Arctic, took place in three Northern European countries: Finland, Russia and Norway. The Academy owes its name to the Northern Calotte, i.e. the northernmost part of both Fennoscandia and Russia, and it has a long and glorious history. Having started in the late 1980s when the region was still divided by many borders, both political and symbolic, the “nomadic” summer school has witnessed many changes since then: the empires fell, the borders opened, the people changed. The school itself has changed, too, but it has preserved the main idea of the original Academy: the person-to-person interaction between local experts and decision-makers and established and early career researchers whose scientific interests lie in the Arctic, regardless of any borders. This year, given the complex political situation and tensions between Russia and the West, preserving this idea was crucial, even the most important since the end of the Cold.
The 2015 Academy had its focus on the theme “Resources and Security in the Globalized Arctic”. However, this did not limit the scope of participants’ topics to political science only: the presenters had different academic background and areas of focus, including among others anthropology, law, psychology, economics and environmental sciences. Together, the group provided the nexus between different areas of science, the thing many Arctic research planners are seeking now; maybe this is the way how the new Arctic research agenda can begin to be introduced.
Day 1-3: from Finland to Russia
The symposium started in Rovaniemi, the capital of Northern Finland and home to the University of Lapland on the 31st of May with a conference reception hosted by the city of Rovaniemi. In the following day, it was time for the academic sessions to begin. This year’s conference program consisted of research presentations by participants as well as brainstorming meetings, and already the first day effectively combined these two types of activity. First two sessions, both focusing on political sciences − “Resources, Energy and Security” and “International Cooperation, Arctic Strategies, Science Diplomacy and Security” − covered the trending processes in the globalized Arctic. The presenters discussed the role of resources for Arctic development and management, ways of developing and implementing Arctic strategies by different states, and new political challenges in the region (mostly connected to Russian international policies). As anticipated, the discussions were animated and even heated, however the general idea of reaching a consensus prevailed throughout the debates. The brainstorming meetings included discussions of major research projects, international scientific activities and other topics aimed at career development; on the first day’s session, a new research network initiative Global Arctic was presented, and the participants were given a chance to discuss their possible future contributions and collaboration.
Day two was the first border-crossing day during the symposium. After a short morning session that included a presentation by the mayor of Salla municipality and some research insights into Salla’s life and development (a result of a cross-border research project itself!), the group started making its way towards Russia. This journey both busted some myths about Russia and supported others. Indeed, the border crossing was smooth and took little time (proof that the physical boundaries are easily permeable), which left some time to visit the borderland Russian municipality of Alakurtti, the base of the newly established Arctic Brigade of the Russian Army (which proves that the Russian military buildup in the Arctic is real). The road to Apatity, the Academy home for the next two nights, was much better than anticipated: the infamous gravel road from the border to the highway was partly freshly paved, which made the journey smooth and fast, unlike the general perception of the poor quality of Russian roads. However, the sad surprise was a vivid ethnographic insight into Russian life: the pipe maintenance in Apatity resulted in the absence of hot water in the whole town, confirming that Russia still has much to do in its transition from the Soviet period.
Day 4-5: from Russia to Norway
The third day, hosted by the Luzin Institute for Economic Studies of the RAS Kola Science Center, comprised mainly of presentations by Russian participants focusing on economics. Unfortunately, the dramatic changes in the Russian economy made it virtually impossible for regional Russian researchers to make the entire journey with the rest of the Academy, but this day managed to bridge this gap and secure full Russian participation in this important cross-border activity. The participants focused mainly on the economics of energy development of the Russian Arctic, cross-border cooperation in the Barents Region, and issues of social and environmental sustainability in the circumpolar north. It is to be noted that the language of the science doesn’t recognize the political boundaries: all the talks − even if delivered through an interpreter − contained valuable insights into the global processes and provided ground for interesting discussions. One can only hope that the so far successful cooperation between Western and Russian partners can be sustained despite the complex political and economic situation.
The fourth day of the Academy didn’t contain any presentations; however, it featured long and in many ways enlightening travel across the entire Kola Peninsula, the heart of the Russian North and the home to many cultural, natural and man-made attractions. The first part of the day’s journey, the northbound route towards Murmansk, was telling the tale of conquering the North: the heavily polluted industrial sites of Monchegorsk and Olenegorsk, the Kola Nuclear Power Plant and the long-gone indigenous history of the area. The city of Murmansk, the largest human settlement above the Polar Circle and home to the Russian Northern Fleet, served as the midpoint of the journey. During the second part of the day’s ride, the Academy participants had an opportunity to look at the Russian war monuments, military installations from the Cold War era, heavy industrial pollution in Nikel and Zapolyarny (with nearly all vegetation destroyed) and borderland area with barbed wire and streaming rivers. Such insights into the cultural and natural history of the Arctic keep reminding researchers that the Arctic keeps traces of all kinds of human activity and there is still much to be discovered.
Days 6-7: From Norway Back to Finland
The last two days of the Academy, held at the maritime Norwegian town of Kirkenes and in Inari, the capital of Finnish Lapland, mainly focused on the issues of social sustainability, human capital in the North and indigenous and environmental studies. The researchers presented several cases from all across the Arctic, some of them discussing ways of achieving social sustainability and welfare in the circumpolar communities (indigenous and non-indigenous alike), some studying the strategies of environmental management in the Arctic Ocean and the Barents Region, some reflecting on the national policies of the Arctic activities and climate change mitigation. The continuity found in these talks provides an interesting insight into Arctic research in general: how the community-based approach and the studies of global processes can both serve to assess and address potential Arctic futures and build development strategies for global and grass-roots actors. The last evening of the tour brought all the participants together for an outdoor barbeque dinner by the campfire and the genuine Finnish sauna experience on shores of still icy-cold Lake Inari; indeed, not only the academic sessions, but also the endless hours spent in the bus and the well-planned social program are crucial components for making the Calotte Academy what is – a forum for open and enlightening discussions with a friendly and welcoming atmosphere.
The 2015 Calotte Academy features an outstanding example of how the boundaries between different groups and actors can melt and disappear if cooperation and communication are the chosen approach. This concerns boundaries between the established and the early-career researchers, Western and Russian scholars, women and men, but most importantly — researchers from different disciplines. The nexus between social and political sciences and humanities and, more broadly, between “hard” and “soft” sciences, is crucial for conducting meaningful Arctic research. Only comparing different points of view and assessing the situation from different perspectives we can understand the deep roots of the global processes such as climate change and militarization of the Arctic or, vice versa, understand how the global issues are reflected in individual case studies at the local level. This is exactly what happens during the Calotte Academy: exchange of ideas between people from different countries and different disciplines, evaluation of the research results by peers and established scholars, person-to-person contact between the brightest representatives of the Arctic research. Such opportunities keep bringing people together, and despite the fact that the Academy takes a different route every year, the ideas created during it persist and keep crossing the borders — physical and imagined ones alike.
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