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The Arctic, the Arctic Council, and the Law of the Sea

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The Arctic, the Arctic Council, and the Law of the Sea CHAPTER 2 The Arctic, the Arctic Council, and the Law of the Sea Erik J Molenaar* 1 Introduction The international community’s interest in the Arctic increased spectacularly in the period between 2004 and 2008. Prior to that, international coopera- tion on the (marine) Arctic mainly involved Arctic States, and regional coop- eration occurred largely by means of non-legally binding instruments and informal fora, rather than through legally binding instruments and intergov- ernmental organisations. The launch of the Arctic Climate Impact Assessment (ACIA)1 in 2004 contributed to broadening recognition within the internation- al community that climate change is largely driven by anthropogenic pollu- tion. This recognition grew even more after the dramatic Arctic sea-ice loss in 2007,2 which spread a sense of alarm and urgency within the international community. Another game changer was the Russian Federation’s planting of its flag on the geographical North Pole’s deep seabed in 2007, during the gathering of data on the outer limits of its continental shelf. The Russian Federation’s flag plant- ing triggered a number of reactions and counter-reactions. The first of these was the incorrect perception by many—e.g., media, academics, environmental non-governmental organisations (NGOs) and the European Parliament—that the flag planting heralded the last land-grab on earth and a resource bonanza that was unchecked due to an international law vacuum. This incorrect per- ception was then followed by the incorrect assumption that it would be logical * Email: [email protected]. The author is very grateful for assistance and/or comments re- ceived from Bob Beckman, Tore Henriksen, Henning Dobson Fugleberg Knudsen, Amy Merten, Alex Oude Elferink, Ashley Roach, Jan Solski and Jorden Splinter on an earlier ver- sion. All Arctic Council documents are available at http://www.arctic-council.org/index .php/en/. 1 ACIA Overview Report and the Scientific Report, accessed 15 March 2017 at http://www .amap.no/arctic-climate-impact-assessment-acia. 2 See information accessed 15 March 2017 at http://nsidc.org/. © koninklijke brill nv, leiden, ���7 | doi ��.��63/9789004339385_003 The Arctic, the Arctic Council, and the Law of the Sea 25 to fill this vacuum by a treaty modelled on the Antarctic Treaty,3 and calls to that effect.4 By means of the 2008 Ilulissat Declaration,5 the Arctic Ocean coastal States— Canada, Denmark/Greenland, Norway, the Russian Federation, and the United States (also the ‘Arctic Five’)—dismissed the perception of the Arctic (Ocean) as an international law vacuum governed by a ‘first-come, first-served’ attitude with all the associated risks of conflicts, ‘boom-and-bust’ resource exploita- tion, and other forms of impacts on the environment and its biodiversity. The Arctic Five recalled that ‘an extensive international legal framework applies to the Arctic Ocean’, namely ‘the law of the sea’. In fact, all global instruments apply in principle also to the entire marine Arctic and Arctic Ocean, however defined, and so does the competence of the global bodies established by these instruments. The global component of the international law of the sea is mere- ly one domain of this global framework. The international law of the sea is made up of a multitude of global, (sub-) regional and bilateral instruments and bodies, acts adopted by such bodies, and rules from other sources, including customary international law. The 1982 United Nations Convention on the Law of the Sea (UNCLOS)6 and its two Implementation Agreements—the Part XI Deep Seabed Mining Agreement7 and the Fish Stocks Agreement8—function as the cornerstone of the interna- tional law of the sea.9 3 Antarctic Treaty, adopted 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961). 4 See, inter alia, the EP’s Resolution on ‘Arctic governance’ (Official Journal 2010, C 9/7; Doc P6_TA(2008)0474) para 15. 5 Ilulissat Declaration, Arctic Ocean Conference of 28 May 2008, 48 ILM 362. 6 United Nations Convention on the Law of the Sea, adopted 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). 7 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted 28 July 1994, 1836 UNTS 42 (entered into force 28 July 1996). 8 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted 4 August 1995, 2167 UNTS 3 (entered into force 11 December 2001). 9 The envisaged Implementation Agreement on marine biodiversity in areas beyond national jurisdiction (see United Nations General Assembly Resolution 69/292, 6 July 2015, which established a Preparatory Committee (PrepCom) as a further step in the so-called ‘BBNJ Process’ (biodiversity in areas beyond national jurisdiction)) will eventually be part of this cornerstone as well..
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