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Arctic Legal Regime for Environmental Protection

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IUCN Environmental Law Programme Arctic Legal Regime for Environmental Protection Linda Nowlan IUCN Environmental Policy and Law Paper No. 44 Arctic Legal Regime for Environmental Protection Partners International Council of Environmental Law (ICEL) – Towards Sustainable Development – The International Council of Environmental Law (ICEL) was formed in 1969 in New Delhi as a public interest organisation with the aims of encouraging advice and assistance through its network, and of fostering the exchange and dissemination of information on environmental law and policy and among its elected members. As a non-governmental organisation in consultative status with the United Nations Economic and Social Council, ICEL has permanent representatives at the UN offices in New York, Geneva and Vienna. ICEL is a member of IUCN - The World Conservation Union and supports the IUCN Environmental Law Programme. West Coast Environmental Law Research Foundation West Coast Environmental Law strives to empower citizens to participate in forming policy for, and making decisions about, protecting our environment. From the local to international level, its work supports the right of the public to have a voice in how we share our earth. Since 1974, it has been providing free legal advice, advocacy, research and law reform services. And through the Environmental Dispute Resolution Fund, West Coast Environmental Law has given away over $2,000,000 to hundreds of citizens’ groups across BC to help them solve environmental problems in their own communities. Arctic Legal Regime for Environmental Protection Linda Nowlan West Coast Environmental Law IUCN Environmental Policy and Law Paper No. 44 IUCN - The World Conservation Union 2001 The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN or International Council of Environmental Law (ICEL) concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers and boundaries. The views expressed in this publication do not necessarily reflect those of IUCN or ICEL. Published by: IUCN, Gland, Switzerland and Cambridge, UK in collaboration with IUCN Environmental Law Centre, Bonn, Germany, International Council of Environmental Law (ICEL), Bonn, Germany. ICELICEL Copyright: © 2001 International Union for Conservation of Nature and Natural Resources Reproduction of this publication for educational or other non-commercial purposes is authorised without prior permission from the copyright holder provided the source is fully acknowledged. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. Citation: Linda Nowlan (2001). Arctic Legal Regime for Environmental Protection. IUCN, Gland, Switzer- land and Cambridge, UK and ICEL, Bonn, Germany. xii + 70 pp. ISBN: 2-8317-0637-8 Cover design by: IUCN Environmental Law Centre Cover photo: Layout by: Barbara Weiner, Desktop Publications Co-ordinator Produced by: IUCN Environmental Law Centre and International Council of Environmental Law (ICEL) Printed by: Daemisch Mohr, Siegburg, Germany Available from: IUCN Publications Services Unit 219c Huntingdon Road, Cambridge CB3 0DL, UK www.iucn.org/bookstore or IUCN Environmental Law Centre Godesberger Allee 108-112, D-53175 Bonn, Germany www.iucn.org/themes/law A catalogue of IUCN publications is also available The text of this book is printed on paper made from low chlorine pulp. Table of Contents Preface vii Acknowledgments viii Executive Summary ix I. THE ARCTIC LEGAL REGIME – MOVING FROM ENVIRONMENTAL PROTECTION TO SUSTAINABILITY? 1 1. Unlike Antarctica, the Arctic is not a Nature Reserve 1 2. Adequacy of Current Environmental Legal Regime 2 II. THE CURRENT ARCTIC ENVIRONMENTAL LEGAL REGIME 2 1. The Arctic Region 2 1.1 Environmental Issues in the Arctic 3 2. The regional Legal Regime 4 2.1 Overview of Regime 5 2.2 Growth in Arctic Cooperation Initiatives 5 3. Arctic Environmental Protection Strategy (AEPS) 7 3.1 Evaluation of Effectiveness of AEPS 8 4. Arctic Council 9 4.1 Role of Indigenous People 10 4.2 Procedure of Council 11 4.3 Arctic council Working Groups 12 4.4 Evaluation of Effectiveness of Council 15 III. ENVIRONMENTAL ISSUES AND THE ARCTIC – APPLICABLE TREATIES AND AGREEMENTS 16 1. Links between Arctic Environmental Issues and Global treaties and Agreements 16 2. Evaluations of Global Treaties and the Arctic Environment 17 3. Existing Global Agreements and the Arctic 18 3.1 Marine 18 3.2 Atmosphere 22 3.3 Biodiversity: Protection of Species and Ecosystems 26 3.4 Resource Extraction and Waste Disposal 35 3.5 Environmental Impact Assessment (EIA) 37 3.6 Indigenous People and indigenous rights 38 3.7 Trade Agreements 39 4. Greater Use of Existing Global Agreements 39 IV. THE ANTARCTIC ENVIRONMENTAL LEGAL REGIME 40 1. The Antarctic 40 2. Overview of the Antarctic Treaty System 41 3. The Antarctic Treaty 42 4. The Convention for the Conservation of Antarctic Seals (CCAS) 44 5. The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) 44 v 6. The Protocol on Environmental Protection to the Antarctic Treaty (Protocol or Madrid Protocol) 1991 45 7. Contribution to International Law 47 V. COMPARISON OF POLAR ENVIRONMENTAL LEGAL REGIMES 48 1. Relationship Between Two Polar Legal Regimes 48 2. Different Legal Treatment of Common Issues 49 2.1 Science 49 2.2 Territorial Sovereignty 49 2.3 National security 49 2.4 Environment 50 3. Evolution of Two Legal Systems 54 VI. NEED FOR REGIONAL ARCTIC AGREEMENT ON ENVIRONMENTAL PROTECTION 55 1. Accelerating Arctic change 55 2. How well is the Arctic legal regime protecting the environment? 55 3. Regional Arctic environmental protection agreement 57 3.1 Advantages of an Arctic environmental treaty 58 3.2 Disadvantages of an Arctic environmental protection treaty 59 3.3 Potential Subjects for a new Agreement 60 4. Innovative Features for a new Treaty or Regional Agreement 62 4.1 Indigenous Participation 63 4.2 Co-management 63 4.3 Traditional Ecological Knowledge (TEK) 63 4.4 Impact Benefit Agreements 64 4.5 Indigenous Knowledge and Intellectual property Rights 66 5. Conclusion 66 BIBLIOGRAPHY 67 vi Preface For many years, concerns have been expressed about environmental issues in the Arctic. This interest was again evident during the World Conservation Congress 2000, when the IUCN member- ship unanimously adopted a Resolution recognising the circumpolar Arctic as a priority ecosystem, calling also for the preparation of an Arctic Strategy and Action Plan. The publication presented here is intended to assist those working on the Arctic legal regime as well as IUCN members concerned with the development of this Arctic strategy and plan. We are very grateful to Linda Nowlan, who is both the Executive Director of the West Coast Environmen- tal Law and a member of the IUCN Commission on Environmental Law, for providing this excel- lent and comprehensive approach to the issues. Recent science details the threats to this unique ecosystem. While the Arctic region – unlike Antarctica – has been inhabited for thousands of years, it is under unique threat because of its vulnerability toward resource exploitation and the deposition of various airborne pollutants. With its varied populations, and with eight Nations asserting territorial interests, the Arctic needs a care- ful approach to its protection and development. Various legal initiatives have arisen from this political amalgam, including the legal arrangements applicable to the Arctic set forth in global treaties such as the United Nations Convention on the Law of the Sea and the Convention on Bio- logical Diversity, and in regional arrangements emanating from the Long Range Treaty on Atmos- pheric Pollution. Such legal arrangements represent binding approaches, but for many issues within the Arctic, such as mining extraction, a non-binding approach applies, unlike in Antarctica. This “soft law” approach began with the Declaration on Protection and the Arctic Environmental Protec- tion Strategy (AEPS), a voluntary mechanism adopted in 1991 by the “eight Arctic countries”. When the Arctic Council was created in 1996, it took over the responsibility for policies and pro- grams developed under the AEPS. The Arctic Council has been viewed as continuing the tradition of the soft law approach, and other non-binding instruments have followed. The IUCN Environmental Law Centre and the International Council of Environmental Law (ICEL) have initiated this work in order to explore whether the current approach can sufficiently address the threats to the Arctic. It is especially important to learn from the experience gained from the Antarctic Treaty regime. While, as Ms. Nowlan points out, these regions are in many ways “polar opposites”, she quite rightly also notes that they have many similarities. Therefore, this review of these legal and policy contrasts can help us consider future directions for the Arctic legal regime. With the help of a generous grant from the Elizabeth Haub Foundation (Canada), IUCN and ICEL are pleased to be able to add this important paper to the current discussion. Charles Di Leva Director, Environmental Law Programme Wolfgang E. Burhenne Executive Governor, International Council of Environmental Law vii Aknowledgments This report was initiated by Charles Di Leva, Director of the Environmental Law Centre of IUCN - The World Conservation
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