An Arctic Treaty in an Age of Contagion?
In 1350 the Bubonic plague moved north across Europe eventually reaching the Arctic. In 1918 a freighter from the U.S. and a passenger ship from Denmark delivered the Spanish flu to Iceland, infecting at least 10,000 denizens of Reykjavik.
And Arctic communities have not been immune from Severe Acute Respiratory Syndrome (SARS) and even Middle East Respiratory Syndrome (MERS).
As climate change emerged as a threat, calls for a new treaty accelerated.
Now climate change converges with COVID-19. What are the prospects for an Arctic Treaty? An Arctic Treaty In An Age Of Contagion. Prof. Charles Norchi explains how the often called “scramble for the Arctic” is now “a scramble to protect the well-being of the Arctic”.
To Treat or not to Treat?
Every once in a while someone - a scholar, a concerned citizen, an environmental advocate, an opinion writer - declares the need for an Arctic Treaty. After all, Antarctica has one. So why not the Arctic?
A treaty is a public contract concluded among two or more sovereign entities binding them to largely reciprocal legal obligations. They are designed to stabilize expectations by ensuring a stream of prescribed outcomes as understood by the parties. Making a treaty is a complex process involving national policies, diplomatic negotiations, a text, national ratification, and a commitment to be bound. Treaties are supposed to be observed in good faith, or what international lawyers call pacta sunt servanda, until renounced or terminated.
States make treaties that serve their interests. When the common interest of two or more States transcends the self-interest of a single State, a treaty becomes a plausible strategy to advance those interests. If the agreement ceases to further the objectives of one or more of the parties, the result is denunciation and withdrawal. In the absence of global legislative institutions, international agreements are among the strategies by which State elites shape present and future policies among themselves. Such is the case in Antarctica.
How Antarctica got its Treaty
Antarctica is land surrounded by water. It has long been an object of discovery, exploration, sovereign claims and geopolitical maneuvering. The age of Antarctic exploration commenced at the dawn of the 20th Century. Territorial claims to the continent were asserted beginning in 1908 eventually encompassing 85% of the continent and many claims overlapped.
By 1911 Amundsen of Norway and Scott of the United Kingdom were in a race to reach the South Pole. During the Second World War the British hunted German submarines and the strategic significance of Antarctica, including as a passage point between the Atlantic and Pacific oceans, became apparent.
Science as a Common Interest
When the war ended, geostrategic interests in Antarctica did not.
The United States and the Soviet Union asserted Antarctic interests, but made no territorial claims. Still, seven sovereign claims were asserted. Those of Argentina, Chile and the United Kingdom overlapped. An additional eight nations were engaged in exploration and activities were unregulated.
The Soviet Union and the United States established scientific stations. The USSR declared that it would recognize no Antarctic settlement absent its participation. Interests were at the point of collision.
During the 1950s a group of geophysicists worked out a plan to study the earth's oceans, atmosphere, geodesy, geomagnetism and the role of the sun. They would focus on the planetary problems of the earth. Building on earlier International Polar Year, the scientists organized the International Geo-physical Year of 1957-58. Sixty-seven countries participated and two World Data Centers were created, one in the USSR and the other in the US. A new common interest of States emerged: science.
More than sixty Antarctic research stations were established. The Antarctic Treaty was signed in Washington on December 1st 1959.
The Antarctic treaty set geopolitics and territorial claims aside, demilitarized the continent and the agreement continues to facilitate scientific cooperation. It disallows military bases, testing of nuclear weapons, nuclear explosions and disposal of radioactive waste. The agreement provides for observers to carry out inspections in all areas of Antarctica.
Decisions are executed through the Antarctic Treaty Consultative Meetings (ATCMs). The Secretariat is in Buenos Aires, Argentina.
The Antarctic framework has enabled the conclusion of related agreements such as the Protocol on Environmental Protection to the Antarctic Treaty, the Convention for the Conservation of Antarctic Seals, and the Convention on the Conservation of Antarctic Marine Living Resources.
The common denominator of science helped generate stable institutional practices—a public order of the Antarctic. Now as cryospheric change, including ice melt, enables access to resources-- minerals, krill and hydrocarbon—there will be new opportunities and thus new demands for exploitation.
But the regime has the flexibility to adapt, in part because it is more than an agreement, it is a system with a purpose. Can climate science and epidemiology now do for the Arctic what geophysics did for the Antarctic?
The waters appurtenant to the Arctic states are subject to the United Nations Convention on the Law of the Sea (UNCLOS). To the extent that an Arctic treaty exists, this is it. JONAA©Kristjan Fridriksson
A Treaty for the Arctic?
The Arctic is water surrounded by land. The territories of Canada, Denmark (Greenland), Iceland, Finland, Norway, Sweden the United States and Russia apply their national laws to their respective terrestrial and marine domains including their Arctic domains.
A number of those sovereigns have entered into bilateral and multilateral treaties for the settlement of their boundaries, fishing rights and so on. In 1990 the US and USSR settled the longest maritime boundary in the world--1,600 nm. In 2010 Norway and Russia settled their maritime boundary dispute by treaty.
The region remains subject to the ebb and flow of geopolitics. The Arctic Ocean is a major theatre of operation for NATO and Russian submarines. Russia operates many High Arctic vessels, including a fleet of nuclear powered icebreakers and maintains regional naval bases.
In 2007 a Russian expedition planted the country's flag in a symbolic gesture on the seabed below the North Pole. President Vladimir Putin has indicated an urgent need for Russia to secure its strategic, economic, scientific and defense interests in the Arctic and has increased military flights near Canadian and Danish airspace. NATO’s Arctic member states – the United States, Canada, Denmark, Norway and Iceland – have announced policies reinforcing Arctic defense capabilities. The maritime transit route known as the Greenland–Iceland–United Kingdom (GIUK) Gap is critically important to the United States. And the US Department of Defense. Arctic strategy underscores competition with China and Russia as an overriding challenge to U.S. security interests in the region.
The United Nations Convention on the Law of the Sea
The waters appurtenant to the Arctic states are subject to the United Nations Convention on the Law of the Sea (UNCLOS). To the extent that an Arctic treaty exists, this is it. UNCLOS regulates the breadth of maritime zones attributable to, and claimable by, States. The treaty enables the continually shaping and sharing of ocean space - territorial seas, exclusive economic zones and continental shelves whose established limits can be extended.
However, melting sea ice will likely have an impact on maritime zones because as sea level rises the baselines and maritime zones, presumed to have been settled under international law, will change.
There are maritime sources of tension and unresolved disputes, notably overlapping claims to extended continental shelves where hydrocarbon is located. Although most sedimentary basins holding oil and gas are within the jurisdiction of coastal states. Under UNCLOS, States may claim an extended continental shelf beyond 200 nautical miles by submitting supporting scientific technical information to the Commission on the Limits of the Continental Shelf (CLCS). Russia’s submission to the CLCS covers nearly 1.2 million square kilometers and includes the North Pole.
Boundaries circling the Arctic Ocean and the North Pole. The Arctic comprises the world’s fourth largest ocean and eight Arctic Circle states: Russia, Canada, Denmark by virtue of Greenland, Norway, Sweden, United States, Finland and Iceland. Most activities are subject to the law of the sea and maritime law. Map compiled by Winfried K. Dallmann / Norwegian Polar Institute. Published with permission from the Arctic Council.
Overlapping claims and unresolved matters
Whether Canada or Denmark has sovereignty over Hans Island remains unresolved. Whether the Northwest Passage and parts of the Northern Sea Route are straits used for international navigation or internal waters is disputed. The United States and Canada temporarily settled their Northwest Passage differences with the 1988 Arctic Cooperation Agreement.
UNCLOS Article 234 provides protection for ice-covered areas:
Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice …create[s] obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.
UNLCOS Article 122 urges cooperative management of semi-enclosed seas. Articles 197 through 201 provide for regional cooperation to protect the marine environment, prevent pollution and sharing of scientific data. Other provisions pertaining to maritime delimitation, vessels and navigation, search and rescue, pollution, and dumping are equally applicable in the Arctic. And non-polar States, most of which are party to UNCLOS, possess interests in the Arctic - conservation, research, security, shipping, mining, oil and gas.
A declaration concluded at Ilulissat, Greenland in 2008 by the five littoral Arctic states underscored:
“…an extensive international legal framework applies to the Arctic Ocean, that the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims. This framework 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 provisions. We therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.”
Does this reflect a lack of political will to negotiate a new framework treaty?, UNCLOS is not the solely applicable treaty. It’s preamble states: “Matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” Directly applicable are the UN Fish Stock Agreement, the Agreement on the Conservation of Polar Bears, the North East Atlantic Fisheries Convention (NEAFC), the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) and the International Code for Ships Operating in Polar Waters (The Polar Code) which establishes regulations pertaining to ice, safety and ship design all apply in the Arctic. A draft agreement for the conservation of marine biological diversity in areas beyond national jurisdiction that would apply in the Central Arctic Ocean is being considered by a UN working group.
“Whilst COVID-19 has caused a severe international health and economic crisis, failure to tackle climate change may threaten human well-being, ecosystems and economies for centuries.” JONAA©Kristjan Fridriksson
International law and institutions of Arctic competence
Generally applicable international laws includes the United Nation Charter, the Universal Declaration of Human Rights, the Declaration on Indigenous Peoples Rights Treaties, the UN Framework Convention on Climate Change (UNFCCC), the Convention on Biological Diversity, The International Convention for the Prevention of Pollution from Ships, The London Dumping Convention of the Convention on Long-Range Transboundary Air Pollution, the Convention on International Civil Aviation, the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor, and the Svalbard Treaty. There is a treaty, and an institution, to address nearly every Arctic problem: environmental protection, climate, fisheries, aviation, arms control and infectious disease.
Institutions with varying degrees of Arctic competence include the European Union, the International Civil Aviation Organization (ICAO) the International Tribunal for the Law of the Sea (ITLOS), the International Seabed Authority (ISA), the Barents Euro-Arctic Council, the International Maritime Organization (IMO), the OSPAR Commission, the North East Atlantic Fisheries Commission, the Nordic Council, NATO, the Arctic Council and effective Non-Governmental Organizations (NGOs) such as the International Arctic Science Committee (IASC), the Inuit Circumpolar Council (ICC) and the Sami Council.
The Arctic Council (AC) is especially important. The AC is a forum of governments, indigenous people as permanent participants and observer States. Science drives much of the decision-making informing agreements such as the Arctic Search and Rescue Agreement, the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, and the Agreement on Enhancing International Arctic Scientific Cooperation. The Council, the applicable treaties, agreements and the decisions emanating from States, international organizations, and indigenous communities comprise the public order of the Arctic - how the region is presently governed.
Climate, COVID, Treaty?
The COVID-19 climate change convergence now affects the public order of the entire world community. How might this convergence affect the Arctic and the treaty interests of States? What are the trends, goals, projections and alternatives for the public order of the Arctic? The climate change trends are deterioration -until mitigated and reversed. The coronavirus trends are immediate illness, debilitation and death - until contained, prevented and cured. Based on present trends, the projections are grim. How might alternative futures be achieved? If the goal is well-being and prosperity for every Arctic community confronting this convergence, is the means another treaty?
The tools exist to fight this two front war in the Arctic. Consider what must be accomplished: limit access, restrict mobility, reduce carbon, and enhance controls over shipping, drilling, mining and other industrial activity. The mass tourism that generates welcomed revenue must be reconsidered. Local control over global access can be strengthened by the Arctic governments through national legislation. Port State Control measures are especially critical. Key provisions in the existing web of applicable treaties such as the UNCLOS quarantine provisions of the contiguous zone are available. The Arctic Science Agreement and national permit compliance can ensure responsible research. The UN Climate Change Framework must be invoked and applied by all Arctic States. The WHO International Health Regulations facilitate mobilization against infectious disease. The International Civil Aviation Organization and Convention can assist national aviation authorities monitor, secure and possibly restrict air travel.
Rather than a new treaty, this is the moment for Arctic States to apply existing treaties and other instruments that are fit for purpose. The current Arctic Treaty System can be augmented by international agreements to address the convergence of climate change and COVID-19. Coordination, which the Arctic Council does well, will be critical. And the Council is already working on regional pandemic spread.
But will the hue and cry to arrest anthropogenic climate change be dimmed by a collective demand to arrest the current global pandemic? In this two front war, can one battle be won while retreating from the other? World Meteorological Organization (WMO) Secretary-General Petteri Taalas observed “Whilst COVID-19 has caused a severe international health and economic crisis, failure to tackle climate change may threaten human well-being, ecosystems and economies for centuries.” The immediate pandemic must be confronted along with the climate change threat. High North leaders must engage the “art of the possible” - diplomacy and international law. The climate-COVID convergence means that the once “scramble for the arctic” is now a scramble to protect the well-being of the Arctic. ▢
Will the hue and cry to arrest anthropogenic climate change be dimmed by a collective demand to arrest the current global pandemic? JONAA©Kristjan Fridriksson
Charles H. Norchi is the Benjamin Thompson Professor of Law in the University of Maine School of Law., co-President of the Arctic Futures Institute (USA), and a member of the JONAA advisory board. He was recently Fulbright-Ministry of Foreign Affairs Arctic Scholar in Iceland.
FURTHER READING
David Balton and Andrei Zagorski, Implementing Marine Management in the Arctic Ocean (2020)
John B. Bellinger, Treaty on Ice, New York Times, 23 June 2008
Michael Byers, International Law and the Arctic ( 2013)
Edward T. Canuel, “The Four Arctic Law Pillars: A Legal Framework,”
Georgetown Journal of International Law (2015)
Mary H. Durfee & Rachel Lorna Johnstone, Arctic Governance in a Changing World (2019)
Bjarni Magnusson & Charles Norchi, “Geopolitics and International Law in the Arctic,” Routledge Handbook of Arctic Security, (2019)
Charles Norchi and Paul Mayewski, “The Arctic: Law, Science and Policy.” Ocean & Coastal Law Journal (2017)
Charles Norchi , “The Arctic in the Public Order of the World Community”Ocean & Coastal Law Journal ( 2017)
James Kraska, (ed.); Arctic Security in an Age of Climate Change (2011)
Donald Rothwell and Alan D. Hemmings (eds) International Polar Law. (2018)
Donat Pharand, “The Case for an Arctic Region Council and a Treaty Proposal,” Revue Generale de Droit (1992)
Alexander Proelss and Till Muller, “The Legal Regime of the Arctic Ocean.” (2008)
Helmut Tuerk, “The Arctic and the Modern Law of the Sea,” in Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee and Jin-Hyun Paik, Governing Ocean Resources: New Challenges and Emerging Regimes, (2013)
Molly Watson, “An Arctic Treaty: A Solution To The International Dispute Over The Polar Region,” Ocean & Coastal Law Journal (2008)
Rudiger Wolfrum, The Arctic in the Context of International Law, Heidleberg Journal of International Law (2009)
Erik J. Molenaar, Alex G. Oude Elferink and Donal R. Rothwell, The Law of the Sea and the Polar Regions (2013)
Oran Young, “If an Arctic Ocean treaty is not the solution, what is the alternative?” Polar Record. (2011)
More Stories That Need To Be Told:
