Emerging Legal Orders in the Arctic

The Role of Non-Arctic Actors

Akiho Shibata, Leilei Zou, Nikolas Sellheim, Marzia Scopelliti

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429865916
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

More than ever before the changing environmental and political landscape in the Arctic requires stability and foreseeability based on resilient common norms. The emerging legal orders in the Arctic cannot be legitimately created or effectively implemented unless all relevant actors are involved. Simultaneously, it must always be based on respect for the sovereign rights of the eight Arctic states in the region, as well as the tradition and cultural livelihood of the local communities. It is this delicate balance between Arctic and non-Arctic interests that is the core problématique for the emerging legal orders in the Arctic.

Emerging Legal Orders in the Arctic critically examines the role of non-Arctic actors in this advancement of the shape and scope of the Arctic legal order. Discussing the admittance and participation of Observer states and organisations in the Arctic Council, including task force meetings where new treaties are negotiated, it details the issues and successes this can result in. Setting up the context of the current legal orders in the Arctic, the book discusses Asian, indigenous and European perspectives, amongst others. There is a strong focus on the groundbreaking fisheries agreement of November 2017 in the Central Arctic Ocean (CAO), and the impact on both Arctic and non-Arctic actors. Interests in marine living resources, scientific cooperation and the Arctic shipping regimes and governance are also thoroughly discussed from multiple perspectives.

The book combines the expertise of academics and practitioners in the fields of international law and Arctic governance, uniquely focusing on Asian actors in the Arctic legal order-making. The resulting study is a fascinating insight into the interplay between non-Arctic actors and the Arctic legal order, and will be invaluable to academics in the field of Arctic and international law.

1 An ocean in the making

Non-Arctic actors and emerging Arctic legal orders

Akiho Shibata, Leilei Zou, Nikolas Sellheim and Marzia Scopelliti

1.1 Changing tides in Arctic legal order-making

We live in times marked by remarkable change all over the world, but particularly in the Arctic. Ever since the recognition of the role of the North as a bellwether for global change¹ and the emergence of the Arctic as a distinct political and legal region,² global attention has shifted from the Arctic being a peripheral, frozen region to the Arctic being a centrepiece in and for global affairs. Indeed, Finger and Heininen note: “[T]he Arctic has now become global, ecologically, economically, politically and culturally.”³ As the Arctic Climate Impact Assessment (ACIA) Report has shown, environmentally the most pressing effects in the Arctic are caused by non-Arctic sources. Arctic change, it seems, is essentially of non-Arctic origin.

The changing landscape in the Arctic – both environmentally and politically – requires more than ever the stability and foreseeability based on resilient common norms and multilateral institutions applicable in the Arctic. When looking at the international legal history of the Arctic, legal orders that are relevant for and in the Arctic have not merely been drafted and shaped by the Arctic’s numerous socio-political actors, but have been equally influenced by actors that are neither geographically nor politically “Arctic”. Instead, these actors emerge from regions outside of the Arctic or are globally operating.⁴ Thus, we argue that the emerging legal orders in the Arctic cannot be legitimately created or effectively implemented unless all the relevant actors, including states, peoples, governmental and non-governmental organisations, are involved in the processes of such order-making and implementation. Here we see a potential, and even a necessity, for non-Arctic actors to play a constructive role.

The recent increase in the admittance and participation of Observer states and organisations in the Arctic Council⁵ is but one such signal of expectation. In 2013, China, India, Italy, Japan, Republic of Korea and Singapore gained Observer status in the Arctic Council. At the same time, the Arctic Council has increasingly become a law-making forum where legally binding treaties are negotiated, including the most recent Agreement on Enhancing International Arctic Science Cooperation, signed in 2017 and entered into force on 23 May 2018.⁶ Outside of the Arctic Council, we see the collaboration between Arctic and non-Arctic states within the International Maritime Organization (IMO) in establishing the shipping rules for ice-covered seas, the Polar Code, which came into force on 1 January 2017.⁷ The five central Arctic Ocean (CAO) coastal states and five other distance fishing actors, namely China, European Union, Iceland, Japan and Republic of Korea, successfully concluded the negotiation on an Agreement to Prevent Unregulated Commercial Fishing on the High Seas of the Central Arctic Ocean in 2017, and nine of the ten negotiating parties formally signed the agreement on 3 October 2018 in Ilulissat, Greenland.⁸

These examples of recent law-making activities are relevant to the Arctic with the participation of non-Arctic actors and which we consider as forerunners of future legal orders in the Arctic. At the same time, a legitimate legal order-making in the Arctic should always be based on the respect for the sovereignty and sovereign rights of the eight Arctic states, as well as the traditions and cultural livelihoods of the indigenous peoples and the local communities. It is this delicate balance between Arctic and non-Arctic interests and perspectives that is the core problématique for the emerging legal orders in the Arctic.

1.2 Rising waves: the Arctic and non-Arctic, particularly Asia

When examining the future design of Arctic legal orders from the perspective of actors being Arctic or non-Arctic, it becomes necessary, first and foremost, to clearly identify who the Arctic states are. Even in today’s globalised world, states still hold the privileged legal status of inherent and primary subject of international law with law-making capacities. Timo Koivurova (Chapter 2: “The Current and Future Role of Non-Arctic States in Arctic Governance”) demonstrates that the recognition of being an Arctic state had not been a straightforward political process. It was a hard-fought achievement over the life of the Arctic Council, spanning now more than 20 years. Today, the Arctic states are those eight states that are members of the Arctic Council, and they are the ones establishing the Arctic as a distinct political region. As a consequence, all other states are non-Arctic states, with the possibility of obtaining the Observer status in the Arctic Council. We consider this legal status as a non-Arctic state will not be influenced by, for example, such a state self-identifying as a “near-Arctic state” or something similar.

An identification of Arctic states within the governing structure of the Arctic Council leads to a clear image of who are Arctic actors other than states. According to Koivurova, the Arctic indigenous peoples and their representative non-governmental organisations (NGOs) that first started as observers in the Arctic Environmental Protection Strategy (AEPS) but came to be recognised as Permanent Participants in the Arctic Council demonstrate their strength in Arctic governance as core Arctic actors. Another category of Arctic non-state actors are the provinces and other sub-national units that actually conduct Arctic governance. The Northern Forum is the primary example.

This Arctic/non-Arctic dichotomy, however, can only highlight the actual and potential role of non-Arctic states and actors in the future of Arctic legal-order making. This is particularly the case of all major Asian states. In the face of the rise of Asian states in the Arctic region, Aki Tonami (Chapter 3: “The Rise of Asia and Arctic Legal Order-making: Political-Economic Settings”) argues that Asian states are realists, placing more priority on the balance of power, diplomacy and the formation of alliances, and they are only willing to play a role if norm-making efforts serve their political/economic goals in pursuing their economic security. This depiction of potential involvement of Asian states in Arctic legal order-making is contrasted by Keiji Ide, a former Japanese Ambassador in charge of Arctic Affairs, in analysing Japan’s Arctic Policy announced in October 2015 and its implementation (Chapter 4: “Japan’s Role in Formation and Strengthening of Arctic Legal Orders”). Ambassador Ide explores the Japanese efforts to promote international cooperation and the rule of law in the Arctic, particularly in the elaboration and implementation of Arctic-relevant binding instruments.

On the other hand, the analysis by Egill Thor Nielsson and Bjarni Már Magnússon on the Chinese Arctic policy with its “Polar Silk Road” element announced in January 2018 (Chapter 5: “China’s Arctic Policy White Paper and its Influence on the Future of Arctic Legal Developments”) seems to confirm that the economic sway of China as the world’s largest trader and second largest economy, alongside its tangible commitment in the Yamal LNG project, Arctic shipping and scientific achievements, already makes it a significant stakeholder in terms of Arctic affairs. According to Nielsson and Magnússon, the reaffirmation of its international legal commitments towards the Arctic in the Chinese Arctic policy white paper is a sign of potentially employing international law to strengthen its perceived position in the Arctic as a key player and downplaying its secondary status as an Observer in the main intergovernmental forum in the Arctic, the Arctic Council. Within such a complex political setting, the role of non-Arctic states and actors in the emerging legal orders in the Arctic must be analysed.

1.3 The homeland, the ocean and non-Arctic actors

While we naturally acknowledge that there are many different legal regimes impacting on the Arctic, for the people and peoples living in the Arctic it does not matter which of the different legal regimes impacts their lives – it is, after all, their homeland, their one Arctic, which is subject to non-Arctic influences and even forces.⁹ But, as so powerfully presented by Aytalina Ivanova, Arctic peoples, in this case the Sakha people in Russia, are not passive objects for outside law-making, but they themselves are active agents and actors in the influencing of their legal environment.¹⁰

The centrality of Arctic indigenous peoples in the making of Arctic legal orders is reflected in the contribution of Dalee Sambo Dorough, where she assesses the history and current role of the Inuit political organisation within the frameworks of the United Nations and the Arctic Council, as well as the emergence of Inuit rights in the traditional Inuit homeland in Greenland, Canada and the United States (Chapter 6: “Our Homeland: Arctic Indigenous Peoples’ Perspective of Non-Arctic States”). The chapter ends with recommendations for non-Arctic states and actors when engaging in the Arctic and with Arctic indigenous peoples, primarily to recognise and to respect the Inuit’s right, role and status under international human rights law.

Environmental NGOs interested in the conservation of the Arctic wildlife are, according to Koivurova’s categorisation, non-Arctic actors. While many such organisations play a constructive role particularly within the Arctic Council as Observers in providing scientific and environmental expertise in its norm-making activities, the tensions sometimes arise not only with the Arctic state governments but also with Arctic indigenous peoples. The conflicting relationship maintained by a few of those NGOs that sustain an extreme conservationist agenda in and for the Arctic well illustrates these tensions. Marzia Scopelliti and Nikolas Sellheim have considered extreme cases of law-shaping in the context of international sealing, whaling and hydrocarbons legislation in which non-Arctic, non-governmental influence has not only challenged prevailing legal orders but also negatively impacted on Arctic indigenous peoples’ traditional livelihoods (Chapter 7: “Sustaining a Conservationist Agenda? NGO Influence on Arctic Sealing, Whaling and Hydrocarbon Regimes”).

The ocean in the Arctic has been the main arena of interests for non-Arctic states and actors, particularly in the business sectors pursing real and potential economic gains through shipping, investments, and direct engagement in the resource developments. For non-Arctic states, the ocean provides the legal opportunities under international law of the sea to access the Arctic for navigation and shipping, to sustainably utilise its resources and to contribute through marine scientific research to the development of knowledge on the Arctic as well as the globe. These accesses, utilisation and contribution are provided as rights under international law of ocean user states with the corresponding obligations on the coastal states. Thus, in this particular context of use of the Arctic Ocean, one could expect the Arctic and non-Arctic dichotomy being subsumed into that of user states and coastal states. However, as can be seen in the negotiations and the texts of the Arctic Science Cooperation Agreement and the central Arctic Ocean fisheries agreement, the Arctic/non-Arctic dichotomy is very much alive, as the Arctic (Ocean coastal) states declare “the special role and responsibility for marine stewardship in the Arctic region”¹¹ or “the special responsibilities and special interests in relation to conservation and sustainable management of fish stocks in the central Arctic Ocean”.¹²

It is thus particularly pertinent in this context to examine the two legally binding international instruments specifically applicable to the Arctic Ocean, one on fisheries and another on shipping, and to analyse the role of non-Arctic states and actors in them. Non-Arctic contribution to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean has been analysed by Joji Morishita and Erik J. Molenaar, drawing from first-hand observations as part of the Japanese and EU delegations to the negotiations (Chapter 8: “The Five-plus-five Process on Central Arctic Ocean Fisheries Negotiations: Reflecting Interests of Arctic and Non-Arctic Actors”; Chapter 9: “Participation in the Central Arctic Ocean Fisheries Agreement”). The Polar Code comprises an essential component of the Arctic shipping governance. Rasmus Gjedssø Bertelsen analyses the contribution that transnational knowledge networks and epistemic communities make to Arctic shipping governance by mitigating its complexity and overall facilitating international policy cooperation in this area (Chapter 10: “The Role of Transnational Knowledge Networks and Epistemic Communities in Arctic Shipping Governance”), while Leilei Zou examines “Russia’s Legislative Development Pertaining to the Northern Sea Route and Its Interaction with Sino-Russian Arctic Cooperation” (Chapter 11).

1.4 Shifting currents? Science, Arctic Council and Observers

As discussed above, the Arctic/non-Arctic dichotomy as a fundamental approach to Arctic legal order-making originates from the institutional structure of the Arctic Council. Koivurova notes that the global legal orders pertinent to the Arctic, such as the United Nations climate change and the Law of the Sea regimes, have little or no relevance to the Arctic/non-Arctic dichotomy. Also as the chapter by Nielsson and Magnússon (and to a lesser extent, that by Zou) attests, the bilateral governance-building based on concrete reciprocal merits between non-Arctic state (China in their essays) and Arctic states tends to reflect more accurately their economic, political, scientific, and/or military interests and powers, rather than their formal status as Arctic or non-Arctic. So, do we see an underlying shift in the ocean currents where important Arctic-related law-making is more likely to occur outside of the Arctic Council, where the Arctic/non-Arctic dichotomy has less relevance and thus where the latter has more leverage in the outcome?

Koivurova is very clear in situating the Arctic Council as the only standing inter-governmental forum focusing on Arctic policy issues. He states that “it is natural that any actor wanting to contribute to improving Arctic governance, needs to als...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• List of illustrations
• Notes on contributors
• Acknowledgements
• List of abbreviations
• 1 An ocean in the making: non-Arctic actors and emerging Arctic legal orders
• Part I Setting the contexts
• Part II People(s) in the Arctic
• Part III Arctic marine legal order-making
• Part IV The universality of science and the Arctic Council
• Appendix
• Index