192 Project Day Session Legal Challenges in the Arctic Dr. Natalia Loukacheva Visiting Fellow Munk Centre for International Studies University of Toronto, Canada Introduction Arctic Constitution or Arctic Charter, or an Arctic Trea- ty. Ideas of the creation of some comprehensive regime 2 Over the course of the last decades, the challenges posed in the Arctic, or as O. Young puts it: “[…] a constitu- to the existence of human, economic, sustainable devel- tional contract, for the Arctic treated as a distinct region 3 opment and multi-level governance systems in the Arc- in international society” are not new. The possibilities tic have prompted a renewed inquiry into the concrete and limitations of the establishment of a binding legal forms of legal arrangements, new legislation and other regime/or legal system pertaining to the Arctic have 4 legal measures that secure the basis for eff ective and re- been recommended by the Nordic Council in 2006, dis- silient adaptation and evolution of the Northern lands. cussed at the 7th Conference of Parliamentarians of the 5 This development in the legal fi eld takes place in inter- Arctic region, 2006 and several other workshops/semi- national and trans-national areas, national and regional nars, e.g. seminar on Multilateral Environmental Agree- 6 levels within the eight Arctic States and forms a con- ments and their relevance to the Arctic, 2006. Thus, in structive aspect of the general processes of globaliza- its statement, the 7th Conference suggested the legal re- tion, institutionalization and cultural, social, economic, gimes that impact the Arctic be audited and proposed political and other changes happening in the North. By that the UN conduct the Annual 2007 Treaty Event with 7 drawing on some Canadian developments, this paper the focus on UN treaties relevant to the Arctic. outlines general perspectives on understanding exist- ing legal challenges and the role of law in dealing with Despite many discussions, “Arctic law” terminology is Arctic ma ers. confusing and requires further analysis. There are other relevant terms, such as, for example: Nordic law, which Common Legal Challenges and usually covers legislative practices of Nordic countries. Clearly, development of “Arctic law” is hampered by the Role of Law divergences in the domestic legal systems which are becoming more integrated and gradually nullify dif- Recent initiatives involving various legal experts in ferences between a Common law, “Aboriginal law” and addressing legal ma ers in the Arctic (e.g. Chapter on the Civil/Continental (Pandect) systems of law (e.g. “Legal Systems” in the Arctic Human Development Re- Canada). There are obstacles in diff ering approaches 1 port, 2004, and ongoing cooperation among Nordic le- within each Arctic state toward the place of the North gal institutions via several networks, such as the Nordic in the national policies and consequent priorities in de- Research Network for Saami and Environmental Law veloping various legal regulations regarding Northern and the Nordic Human Rights Network), show an in- issues. OV en there is no coherence between federal/cen- creasing importance of legal thinking in various areas tral framework legislation and immediate needs that of Arctic and global developments. These trends also Northern legislators address locally. Local performers point to the question of the existence or necessity of de- oV en mimic existing national rules, policies, and agenda velopments of an “Arctic law,” a comprehensive legal due to the lack of fi nancial and scientifi c/manpower ca- regime which would embrace the legislative practices pacity to introduce a unique northern vision at the level of the eight Arctic States and international law relevant of regional legislation. There are some notable excep- to the Arctic region, or could lead to the development tions, for instance, the Nunavut Wildlife Act, which came of some documents common to the Arctic States (e.g. an into force in July 2005, includes about 13 Inuit Qauji- Project Day Session Project Day Session 193 Leg majatuqangit (IQ- traditional knowledge) principles and place of indigenous knowledge, cultures and concepts concepts. It can be argued, however, that the legislative in decision-making/legislative policies and the admin- al process itself is rooted in the mainstream legal system istration of justice. Chall and enforcement without a real connection to the Inuit 8 legal traditions. Further, debates over the benefi ts of soV - law instru- ments in the Arctic, as opposed to the necessity of legally eng Further challenge in defi ning “Arctic law” is connected binding agreements, also question the need for the de- es with processes of legal globalization and developments velopment of “Arctic law.” Despite the fact that soV -law in international law, which, on the one hand, is becom- oV en provides a basis for hard law developments, these in ing more “universal” and points to the integration with debates raise the question of the importance of hard-law the domestic legal systems. On the other hand, there is an commitments in the Arctic. Already existing web of soV - Ar overlap within various areas of international law it- law declarations, informal arrangements, and growing cti self. The new notion of “transnational public law” has institutional cooperation in the Arctic, show that these c emerged. According to H. Koh, it “[…] is neither fully measures oV en prove to be quite effi cient in addressing international, nor is it based only on one domestic law existing challenges. Activities of various Arctic forums, 9 or another. It is both.” Growing inter-dependence be- e.g. the Arctic Council, the Nordic Council, the Nordic tween national and international legal practices is rel- Council of Ministers, many bodies of environmental evant to the Arctic. Thus, common legal challenges to co-operation, University of the Arctic etc. also point to the Arctic countries oV en point to the need for interna- the benefi ts of employing informal practices. Increased tional legal guidance. In the meantime, developments intergovernmental cooperation among various levels in international law reveal that its jurisprudence relies of governance in the North also results in a growing on examples from domestic legal practices. amount of inter-governmental arrangements which are oV en effi cient. For instance, concluded in 2003 and re- Common legal challenges to the Arctic states include, newed in 2006 by 3 Canadian Northern territories the 10 for example: Northern Cooperation Accord (NCA) which had the aim of collaborative work to achieve goals common to • illegal immigration, fi shing and hunting activities Yukon, the N.W.T. and Nunavut agenda has paid off . Although it is questionable whether the NCA has any • drugs, possible human traffi cking real impact on the northern legal landscape, the terri- tories received substantial additional funding from the • cross-border crime and security against potential ter- Federal government. This success of the territorial lead- rorist threats ership was also conditioned by the ability and willing- ness of Northern premiers to work together. • effi ciency of judicial systems Further, activities of indigenous NGO, like the Inuit Cir- • environmental, health, educational, trade, economic, cumpolar Council, which represents more than 155,000 human resources regulations Inuit of Alaska, four regions in Canada, Greenland and • affi rmative action/positive discrimination rules, em- Chukotka, show that this non-governmental organiza- ployment equity rules tion despite, limitations of its mandate, is oV en ahead of national governments of the USA, Canada, Denmark • traveling and visa policies/regulations and the Russian Federation in tackling the most urgent issues for Northern communities, e.g. POPs or climate • The need for more comprehensive international regu- change. For instance, the ICC’s petition to the Inter- lations due to technological developments and increas- American Commission on Human Rights Seeking Relief ing capability of commercial and other shipping activi- from Violations Resulting from Global Warming Caused ties by Acts and Omissions of the United States, submi ed 11 12 December 7, 2005, despite its outcome, was breaking • High energy prices, improving economic feasibility new ground in international environmental law and en- of mineral exploration and exploitation in the Arctic, vironmental rights of indigenous peoples. increase in tourism activities require coherent mining, tourism, economic, etc. policies and call for correspond- Should international law, domestic law of Arctic states, ing legislative measures e.g. pollution, undersea min- trans-national law or developing practice of soV -law ing regulations etc. measures determine the direction of dealing with legal challenges in the North? Or in the future shall we work • The impact of colonialism on indigenous peoples, the with the concept of “Arctic law” which may embrace 194 Project Day Session elements and practices of several legal regimes and Danish fl ag over the Island for several years and re- branches of law? peated visits to the Island. Canada contests this claim and has shown similar activities on the Island. There is Currently, we witness some success and gaps in inter- speculation that the Island is of interest to both sides be- national law and national legal systems in dealing with cause of probable natural resources, e.g. oil which may Northern ma ers. For instance, the UN Convention be located on or near the Island. The argument on both Concerning the Protection of the World Cultural and sides is that the Inuit of Canada and Greenland have Natural Heritage (November 16, 1972) helps to protect been using this Island for centuries as an area for polar several thousand rock carvings created by the ancestors bear hunt. Some Inuit in Nunavut state that Canada can of Saami in Alta, Norway. These carvings have been on claim the Island on the basis of historic use by Canadi- the World Heritage List since 1985. Canada ratifi ed this an Inuit of lands on the Queen Elizabeth Islands which Convention in 1976.