Page Wilson

On 23 August 2013, the Office of the Finnish Prime Minister published an updated Strategy for the Arctic Region, which included express statements of support for placing the Arctic Council on a treaty footing (14, 44). Four months later, the Prime Minister publicly linked this objective with Finland’s proposal to hold a summit of Council leaders and with Finland's upcoming chairmanship of the Council in 2017 (Nilsen 2013). The goal of this commentary is to contextualise and evaluate this fresh development in Arctic affairs.

Finland’s intention to work towards a treaty-based Council singles it out from the forum’s other members, the most powerful of whom have favoured consistently more informal, non-binding and piecemeal approaches to Arctic governance based on the legal status quo. At the formation of the Council in 1996, the US “had difficulty with the notion” of establishing a new international organisation, and thus the Council was created without legal personality (Bloom 1999).1 In the Ilulissat Declaration of 2008, the ‘Arctic Five’ states of Canada, US, Norway, Denmark and Russia rejected the need for “a new and comprehensive international legal regime to govern the Arctic Ocean”, citing instead their commitment to the existing “extensive international legal framework” (para 4, 3). They also took the opportunity to assert their “unique position” in terms of responding to Arctic climate change “by virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean” (para 3). In a similar vein in 2011, members of the Council agreed to include within the criteria for admitting observers recognition of: (1) Arctic states’ sovereignty, sovereign rights and jurisdiction in the region; and (2) the “solid foundation for responsible management” provided by the current “extensive legal framework” applicable to the Arctic Ocean (SAO Report 2011: 50).2 Via this mechanism, the most dominant Council members have already succeeded in gaining in-principle acceptance of the legal status quo from Japan, China, India, South Korea, Singapore and Italy, all of whom were admitted as observers last year. The way in which the Council Secretariat was established, also in 2013, further underlines the highly conservative position of the most powerful Council members when it comes to legal and institutional innovation in the region. While the Secretariat was bestowed with limited legal personality for the purposes of facilitating relations with its host country and employing personnel, general legal personality was not extended to the Council as an international organisation in its own right (SAO Report 2011: 49).

While this so-called ‘soft law’ approach has dominated Arctic politics for some time, Finland’s current push towards ‘hard law’ is not entirely without precedent. The idea of an Arctic Treaty, modelled on the Antarctic Treaty of 1959, gained some popularity a few years ago, culminating in 2008 - just four months after the Ilulissat Declaration - with the European Parliament calling on the European Commission “to be prepared to pursue the opening of international negotiations designed to lead to the adoption of an international treaty for the protection of the Arctic” (2008: para 15). The lack of support for such an idea amongst the Arctic states themselves ensured that no progress in this direction was made. Subsequently, the Arctic states signed two new treaties - the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic and the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic. From this, a growing appreciation among Arctic states as to the benefits of ‘hard law’ might be implied. However, a deeper examination of these agreements reveals their inherent and major weaknesses: both are explicitly made ‘subject to the availability of relevant resources’ (2011: art 12(2); 2013: art 15(2)), and the dispute settlement procedure is simply ‘by direct negotiations’ or ‘consultations’ amongst the disputing parties themselves (2011: art 17; 2013: art 18). Thus, the terms of the agreements ensure individual sovereignty is preserved. This strongly suggests that the desire for more hard law mechanisms in the region remains tenuous, and that the goal of creating an independent, treaty-based Council is likely to remain an uphill battle for its supporters for some time yet.

Nevertheless, there are good, persuasive arguments in support of a treaty-based Council, which, over time, may gain greater acceptance among its members. Firstly, transforming the Council into an international organisation would cement its status as the pre-eminent body for Arctic affairs in a region replete with non-binding fora pursuing overlapping and uncoordinated agendas. A treaty basis would not only elevate the Council’s status, but would also preserve to a certain extent the privileged position of its members in the region – arguably a necessary compromise if deep and sustained Arctic cooperation is to mean anything at all in practice. This rationale is likely to be particularly appealing to Finland, Iceland and Sweden, the three Council members that have been excluded entirely from meetings of the ‘Arctic Five’ – a separate forum within which decisions concerning the central Arctic Ocean have been taken.3 Despite formal protest and criticism from the ‘Arctic Three’ about their exclusion, ‘Arctic Five meetings continue.4 Thus, forging ahead with a strengthened and formalised Council represents the best opportunity for the ‘Arctic Three’ to maintain their influence over the future direction and shape of Arctic affairs.

Secondly, a treaty-backed Council could provide the infrastructure, momentum, coordination and planning necessary to underpin present Arctic activities and instigate new ones, while avoiding duplication of effort. For instance, a legally reinvigorated Council could play an ongoing role monitoring and encouraging compliance with the 2011 Search and Rescue agreement and the 2013 Marine Oil Pollution agreement, as well as making available its ‘good offices’ in the event that dispute settlement was needed. Thirdly, an independent Council with its own status and identity could take on a primary advocacy role for the region, helping to counter some of the more sensationalised and self-interested accounts of Arctic politics which have surfaced, particularly since 2007.

Perhaps most importantly, the stepchange represented by a Council grounded in treaty law would help to move Arctic politics on from the present unsatisfactory scenario in which powerful Arctic states (both individually and collectively) insist upon their own leadership in their ‘backyard’, while at the same time failing to lead when it comes to the important work of building a strong and shared vision for the region. From this perspective, Finland’s initiative represents a welcome and valuable chance to reconsider the basic assumptions, aims and avenues of Arctic cooperation and governance that have shaped the politics of the region since the 1990s. This is a particularly important exercise in light of much greater knowledge and awareness of the social, environmental and economic changes now taking place in the Arctic. It is imperative that mechanisms for Arctic cooperation and governance reflect the seriousness of these changes and are structured so as to facilitate collective and coordinated responses to them. An Arctic Council with proper legal standing would go a long way towards providing a stable and authoritative framework within which such action could be designed, negotiated and implemented. Whether the dominant Council members take up the vital opportunity presented by Finland’s proposal in order to achieve this outcome is, however, another matter.

Notes

1. Prior to 1996, however, Bloom notes that Canada “began to advocate the transformation of the Arctic Environmental Protection Strategy (AEPS) into a new international organization which would not only subsume the existing AEPS programs but would also address the broader issue of sustainable development”: 3.
2. Each of these criteria draws heavily on language used originally in the Illulissat Declaration, though with important differences. For instance, while the Illulissat Declaration referred to the “sovereignty, sovereign rights and jurisdiction” of the “five coastal states”, in the Council observer documentation, this has been broadened out to include all of the “Arctic states”. The Illulissat Declaration also described “an extensive international legal framework" that provided a “solid foundation for responsible management by the five coastal states” [emphasis added]. With whom responsibility for management lies is not specified in the Council documentation. The Senior Arctic Officials’ Report outlining the observer criteria was officially adopted by the Council in the Nuuk Declaration.
3. Various meetings of the ‘Arctic Five’ group have taken place. The first was convened by Denmark in 2008 and resulted in the Ilulissat Declaration. The second was held in Canada in 2010, reaffirming the joint position set out by the Illulissat Declaration: see Minister Cannon Highlights Canada’s Arctic Leadership at Arctic Ocean Foreign Ministers’ Meeting. The most recent meeting of the ‘Arctic Five’ took place February 2014 in Greenland, where a temporary prohibition on commercial fishing in the high seas of the central Arctic Ocean was agreed: see Joint Statement – Recently Convened Five Arctic Ocean Coastal States Meeting.
4. See, for example, Iceland Protests a Meeting of 5 Arctic Council Member States in Canada. US Secretary of State Clinton’s statement at the 2010 Arctic Five meeting - that “significant international discussions on Arctic issues should include those who have legitimate interests in the region. And I hope the Arctic will always showcase our ability to work together, not create new divisions” – has been widely interpreted as indirect criticism of the decision to exclude Iceland, Finland and Sweden from the ‘Arctic Five’ meetings (Sheridan, 2010). Echoing this language, the Swedish Strategy for the Arctic Region (2011: 22) stated ‘An energised Arctic Council could reduce the need for the coastal states to drive forward issues in the Arctic Five format. It is important for Finland, Iceland and Sweden to be able to participate in decision-making in cases where they have legitimate interests and that the status of the Arctic Council is maintained.’

References

Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic.(2011).Retrieved July 1, 2014 from http://www.arctic-council.org/index.php/en/document-archive/category/20-main-documents-from-nuuk

Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic.(2013).Retrieved July 1, 2014 from http://www.arctic-council.org/eppr/agreement-on-cooperation-on-marine-oil-pollution-preparednessand-response-in-the-arctic/

Antarctic Treaty.(1959).Retrieved July 1, 2014 from http://www.ats.aq/documents/recatt/att465e.pdf

Bloom, E.(1999).Establishment of the Arctic Council.American Journal of International Law 93(712).Retrieved July 1, 2014 from http://www.state.gov/documents/organization/212368.pdf

European Parliament Resolution of 9 October 2008 on Arctic Governance.(2008).Retrieved July 1, 2014 from http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008-0474&language=EN

Iceland Protests a Meeting of 5 Arctic Council Member States in Canada. (2010). Retrieved July 1, 2014 from http://www.mfa.is/news-and-publications/nr/5434.

Ilulissat Declaration. (2008). Retrieved July 1, 2014 from http://www.oceanlaw.org/downloads/arctic/IlulissatDeclaration.pdf

Joint Statement – Recently Convened Five Arctic Ocean Coastal States Meeting. (2014). Retrieved July 1, 2014 from http://news.gc.ca/web/article-en.do?mthd=index&crtr.page=1&nid=819859

Minister Cannon Highlights Canada's Arctic Leadership at Arctic Ocean Foreign Ministers’ Meeting. 2010. Retrieved January 20, 2014 from http://www.international.gc.ca/media/aff/news-communiques/2010/120.aspx.

Nilsen, T.(2013). Finland Aims for Arctic Summit. Retrieved July 1, 2014 from http://barentsobserver.com/en/arctic/2013/12/finland-aims-arctic-summit-04-12

NuukDeclaration. (2011). Retrieved July 1, 2014 from http://arctic-council.npolar.no/accms/export/sites/default/en/meetings/2011-nuuk-ministerial/docs/Nuuk_Declaration_FINAL.pdf

Office of the Prime Minister. (2013). Strategy for the Arctic Region. Retrieved July 1, 2014 from http://vnk.fi/julkaisukansio/2013/j-14-arktinen-15-arktiska-16-arctic-17-saame/PDF/en.pdf

Senior Arctic Officials (SAO) Report to Ministers. (2011). Retrieved July 1, 2014 from http://library.arcticportal.org/1251/1/SAO_Report_to_Ministers_-_Nuuk_Ministerial_Meeting_May_2011.pdf

Sheridan, M. 2010. ‘Clinton Rebukes Canada at Arctic Meeting’. Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2010/03/29/AR2010032901626.html.

Sweden's Strategy for the Arctic Region. (2011). Retrieved July 1, 2014 from http://www.government.se/content/1/c6/1/78/5/3baa039d.pdf