The Possibility of an Arctic Treaty

(by Brit Fløistad and Lars Lothe)

The Arctic has certain special features: It is partly ice covered, it is environmentally vulnerable and subjected to rapid climate changes. It is therefore not surprising that the question of a special Arctic treaty has been raised.

One characteristic of international law is that it is often described as a dynamic legal treaty or by customary international law being established through state general practice and being defined as “accepted law”.  Another characteristic is that international law may be of a general character, but also that it is geographically limited to a specific area. An example of the latter is the Svalbard Treaty where a need was seen for a particular treaty and where the geographical application is defined to the islands of Svalbard and its territorial waters.      

It may not come as a surprise that in an area like the Arctic where a good many parties are showing their interests, which is assumed to contain valuable resources and where it is a particular vulnerable environment, the question would be raised of a special Arctic Treaty to reflect the peculiarities of the area. Article 234 of UNCLOS III and the IMO Guidelines both indicate the need for special legal instruments in the Arctic, but they are at the same time examples of such instruments being established within already existing legal framework. In regard to an Arctic Treaty it seems relevant to remind that the U.N. Convention on the Law of the Sea has been described as “possibly the greatest legal development ever to take place¹ ”. It thus seems relevant to assume that there will be ways to relate to maritime matters in the Arctic within the legal framework of this Convention. It is also worth noticing that the IMO Guidelines for ships operating in Arctic ice-covered waters now are  moving in direction of becoming legally binding, and if so, this will be a major part of what should be comprised by an Arctic treaty as such.                                                                                               

Concrete initiatives for a specific Arctic treaty have not been many. The most comprehensive suggestions have been generated by the World Wildlife Foundation (WWF), which has proposed the following² : Based on a problem- and gap analysis³ , it is concluded that the legal instruments relevant to protecting the Arctic marine environment is incoherent and incomplete, does not take into the account the reality of ecosystems, and fails to take into account the effects of various activities, such as oil and gas and fisheries, cumulatively.           On this background, the WWF propose the negotiation of a new legal instrument providing for developing a new international framework agreement covering the entire Arctic, across all sectors. Such a legally binding agreement for the marine Arctic would address the identified governance gaps. This option would allow for management on an ecosystem. The new Arctic Sea emerging from the melting ice requires a regional regime tailor made for arctic conditions developed under the overarching framework of the United Nations Convention on the Law of the Sea (UNCLOS).Such a regional regulatory and governance framework should ensure:

1. Protection and preservation of the ecological processes in the arctic marine environment.

2. Long-term conservation and sustainable and equitable use of marine resources.

3. Socio-economic benefits for present and future generations, in particular for Indigenous peoples of the Arctic region. A new legally binding comprehensive agreement with a new institutional setup which will be able to ensure protection and preservation of the Arctic Ocean and  ustainable ecosystem-based management of its resources would be an optimal solution in WWF’s view.

4. Action to address the unprecedented natural changes the Arctic is facing

Figure 6.1:Jurisdiction in the Arctic 

Source: http://www.dur.ac.uk/resources/ibru/arctic.pdf

It is unclear whether such a new treaty should be negotiated within the realm of the United Nations/UNCLOS III, amongst the Arctic States, or by way of other venues. Further, the European Union has taken interest in the governance of Arctic waters. The EU Parliament passed a resolution 9 October 2009 on Arctic Governance⁴  underlining that the concern for the environment, energy and security in the Arctic, and calling for an international treaty for the protection of the Arctic with the Antarctic Treaty system as its model. To use the Antarctic Treaty as a model seems inadequate: Antarctica is a continent surrounded by oceans, while the Arctic is partly ice-covered waters surrounded by coastal states and with corridors to the Atlantic and Pacific oceans. The European Commission on the other hand, has not called for an Arctic Treaty, but suggested implementation of existing obligations rather than creating newinstruments⁴ .      

It is worth noticing that the core players in the Arctic, namely the Arctic states Canada, the US, Russia, Norway and Denmark have expressed as their opinion that the present legal framework should be built on, rather than creating a special treaty for the Arctic. They expressed that the current international law “provides a solid foundation for responsible management by the five coastal States and other users of this Ocean through national implementation and application of relevant provisions⁵ .” These states thus⁶  saw no need for developing “a new comprehensive international legal regime to govern the Arctic Ocean⁷ .” Additional reference was made to the five Arctic states “cooperating closely with its other and with other interested parties”, and to a will “to strengthen this cooperation based on mutual trust and transparency.” This was re-iterated in 2009 by Russia, Norway and the EU at a conference titled Arctic Frontiers⁷  where these parties stated that UNCLOS III, the IMO and the UN Commission on the Limits of the Continental Shelf are sufficient international instruments for managing the Arctic and the expected results of climate change.

The arctic states makes special mention of the Arctic characteristic, and the need to protect the environment, ensure free passage, strengthening the rescue capabilities and to take indigenous people’s needs into consideration.

On this background, an Arctic Treaty seems to be for a more or less distant future, if it becomes a reality at all. In a shorter perspective, implementation of existing regimes on the other hand, will remain the focus for governance of the Arctic.

Brit Fløistad and Lars Lothe, 2010, The Possibility of an Arctic Treaty, CHNL.©