Md. Waliul Hasanat
I. I N T RO DUC T I ON
Arctic- wide inter- governmental cooperation protecting the Arctic envi-ronment formally began in 1991 with the establishment of the Arctic Environmental Protection Strategy (AEPS), which was later transformed into the Arctic Council in 1996. The Arctic states created the Arctic Council to provide a mechanism to address the common concerns and challenges faced by the Arctic governments and the people of the Arctic with the adop-tion of the Declaraadop-tion on the Establishment of the Arctic Council (Ottawa Declaration).1 The main objective of the Arctic Council is to promote envi-ronmental protection and sustainable development in the Arctic. Climate change has seriously affected this objective, however, and has become a central concern within Arctic- wide cooperation. Therefore, two years after its establishment, the Arctic Council began addressing the issue of climate change. In general, the council provides important information to makers and other actors by conducting a number of projects to mitigate the impacts of climate change on the ecosystems and inhabitants of the Arctic.
The council has also issued a comprehensive policy document regarding climate change in the Arctic.
The founding documents of this Arctic- wide cooperation (the Cooperation) were soft law in nature rather than internationally concluded treaties, which can be seen as the main drawback of the cooperation since soft law instru-ments may create either voluntary or political commitinstru-ments rather than legally binding obligations under international law.2 Alternatively, it is somewhat diffi cult for the members of the Arctic Council to be bound by any legal obligation in the fi eld of climate change, in particular, because of con-fl icts with their varied national interests. Moreover, imposing legally bind-ing obligations on the Arctic states is not suffi cient to address the issue of
1 Declaration on the Establishment of the Arctic Council, Ottawa, Canada, 19 September 1996, Joint Communiqué and Declaration on the Establishment of the Arctic Council, 35 I.L.M. 1382 (1996) [Ottawa Declaration].
2 Evan T. Bloom, Establishment of the Arctic Council 93 A.J.I.L. 712 at 712 (1999).
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A RCTIC-W IDE EN V IRON MEN TA L COOPER ATION 123 climate change—the involvement of the global community is essential since activities conducted elsewhere also have an impact on the Arctic climate.
This Arctic- wide Cooperation encourages non- state actors—in particu-lar, indigenous peoples in the Arctic—to participate along with states.3 It also provides important information and recommendations to state actors to protect the sensitive Arctic from adversities created both in the Arctic and in the rest of the world.4 In the course of time, the Arctic Council has involved a number of states and organizations from outside the region in advancing its mandates. The Cooperation has accomplished a number of projects related to climate change, and others are ongoing. However, they have not always been entirely effective in dealing with the growing chal-lenges presented by climate change, which raises a number of questions.
How well do these p rojects help the inhabitants of the Arctic counter the challenges created by climate change in their way of life? To what extent is this Cooperation successfully attracting the attention of residents living in the non- Arctic parts of the member states? Does the Cooperation have any additional value as a regional forum compared with a global climate change regime or a system of national activities addressing the issue of cli-mate change?
There are a few scholarly works that have dealt with this Cooperation,5 some of which have made recommendations for improving its opera-tions, although the Arctic states have hesitated in accepting them.6 Two decades after the beginning of the Cooperation, it seems timely to con-duct an extensive evaluation of its success mainly in the fi eld of climate
3 Granting ‘permanent participant’ status to the indigenous communities of the region is a comparatively new concept in international cooperation.
4 The working group s and subordinate bodies p rep are sep arate rep orts based on fi nd-ings from both scientifi c research and traditional knowledge and submit them to the Arctic Council from time to time.
5 Timo Koivurova and David L. VanderZwaag, The Arctic Council at 10 Years: Retrospect and Prospects 40 U.B.C. L.R. 121 (2007); Timo Koivurova, Limits and Possibilities of the Arctic Council in a Rapidly Changing Scene of Arctic Governance 45 Polar Record 1 (2009);
and Monica Tennberg, The Arctic Council: A Study in Governmentality (1998).
6 Timo Koivurova, Alternatives for an Arctic Treaty: Evaluation and a New Proposal 17 R.E.C.I.E.L. 14(2008); Olav Schram Stokke, Protecting the Arctic Environment: The Interplay of Gl obal and Regional Regimes 1 Y.B. Polar L. 349 (2009); D. VanderZwaag, R. Huebert, and S. Ferrara, The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters 30 Denver J. Intl L. & Policy 131 (2002); David Leary, Bi- Polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as wel l as for Antarctica? 17 R.E.C.I.E.L. 41 (2008); Philippe Sands, Principles of International Environmental Law, at 731 (2nd edition, 2003); Geir Hønneland and Olav Schram Stokke, Introduction, in Olav Schram Stokke and Geir Hønneland, eds., International Cooperation and Arctic Governance: Regime, Effectiveness and Northern Region Building, at 1 (2007); Julia Jabour and Melissa Weber, Is It Time to Cut the Gordian Knot of Polar Sovereignty? 17 R.E.C.I.E.L. 27 (2008); D.R. Rothwell, The Polar Regions and the Development of International Law (1996); and H. Corell, Refl ections on the Possibilities and Limitations of a Binding Legal Regime 37 Envt’l Pol’y & L. 321 (2007).
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change. By examining the relevant existing literature and other sources (for example, debates in the meetings of the Arctic Council, discussions in international seminars, and interviews), this article analyses the present Cooperation in the Arctic, highlights the main shortcomings within the Cooperation’s functioning system, and offers a few recommendations for how the existing Cooperation could perform better in the area of climate change.
The article consists of seven parts. Following an introductory section, the second part describes the development of Arctic- wide Cooperation. The third section deals with the functioning system of the Cooperation. The fol-lowing part explains how the Cooperation has addressed the issue of climate change, and the fi fth part analyses the achievement of this Cooperation with respect to climate change in the Arctic. The next part discusses its main shortcomings in countering climate change in the Arctic. The fi nal part con-cludes with a proposal for a model of Arctic- wide Cooperation that effec-tively addresses climate change in the Arctic.
I I. H I S T O RY O F T H E A RC T I C C O O P E R AT I ON
During the Cold War, the existence of the United States and the Soviet Union in the Arctic, two superpowers at odds with each other, made any coopera-tive relationship among the Arctic states a complex matter. However, the initiative of Finland as well as support from other Arctic states and actors, in particular, organizations of indigenous peoples, resulted in the creation of the AEPS. At the end of the Cold War, this Cooperation became better organized when the Arctic Council was established and took over the activi-ties of its forerunner, the AEPS. As a result, the development of the coopera-tion process can be described in two phases: the cooperacoopera-tion of the AEPS and the formation of the Arctic Council.
1. The Cooperation of the AEPS
The Arctic environmental protection process began when the secretary gen-eral of the former Soviet Union, Mikhail Gorbachev, spoke in Murmansk in October 1987, inter alia, about cooperation for the protection of the Arctic environment.7 His idea for cooperation advanced somewhat in 1989 when Finland organized a meeting in Rovaniemi with the representatives of the eight Arctic states: Canada, Denmark, Finland, Iceland, Norway, the Soviet Union, Sweden, and the United States. In 1991, the Arctic states met again
7 The proposal included a nuclear weapon- free zone in northern Europe, limited naval activities in the sea areas adjacent to northern Europe, the utilization of Arctic resources in a peaceful manner, scientifi c research on the Arctic, cooperation among northern countries for environmental protection, and openness of the northern sea route to icebreakers for escorted passage. For details, see Rothwell, supra note 6 at 229–31.
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A RCTIC-W IDE EN V IRON MEN TA L COOPER ATION 125 in the same place along with other actors (including, in particular, various indigenous people’s organizations) and developed the Declaration on the Protection of the Arctic Environment (Rovaniemi Declaration),8 along with the AEPS in a single document.9
The ministers of the eight Arctic states committed themselves to the implementation of the AEPS and the further expansion of their coopera-tion. In addition, they committed themselves to a joint action plan that would include cooperation on scientifi c research and the assessment of envi-ronmental impacts as well as the full implementation of measures to control pollution and further considerations for reducing negative impacts on the Arctic environment.10 The ministers also committed themselves to imp le-mentation of the Arctic Monitoring and Assessment Program (AMAP), the Protection of the Marine Environment in the Arctic (PAME), Emergency Prevention, Preparedness and Response in the Arctic (EPPR), and the Conservation of Arctic Flora and Fauna (CAFF).11
The objectives of the AEPS led to high expectations (for example, the protection of ecosystems, the maintenance of environmental equality, the sustainable utilization of natural resources, and respect for traditional cultures),12 and they included a monitoring system for the Arctic environ-ment as well as the elimination of pollution.13 The principles adopted for the AEPS seemed goal- oriented (including, for example, international coopera-tion, mutual cooperacoopera-tion, and indigenous knowledge).14 In fact, the AEPS more or less limited its activities to collecting data, research, assessment, information exchange, and cooperation. Decisions made at the ministerial meetings were weakened by the lack of binding obligations,15 and the expec-tations for robust response mechanisms and obligatory instruments were never met.
2. Formation of the Arctic Council
Canada took the initiative for an international instrument that would be legally binding in the Arctic.16 Canadian prime minister Brian Mulroney
8 Declaration on the Protection of the Arctic Environment, Rovaniemi, Finland, 14 June 1991, <http://arctic- council.org/fi learchive/Rovaniemi%20Declaration.pdf> [Rovaniemi Declaration].
9 Declaration on the Protection of the Arctic Environment, 1991, and the Arctic Environmental Protection Strategy, Rovaniemi, Finland, 14 June 1991, 30 I.L.M. 1624 (1991),
<http://arctic- council.org/fi learchive/artic_environment.pdf> [AEPS].
10 Rovaniemi Declaration, supra note 8 at paras. 8–10. 11 Ibid. at paras. 12–15.
12 Timo Koivurova, Environmental Impact Assessment in the Arctic: A Study of International Legal Norms, at 71–2 (2002). 13 AEPS, supra note 9 at s. 2.1.
14 Ibid. at s. 2.2.
15 See Evelyn M. Hurwich, Arctic 5 YbIEL 233 (1994). The second ministerial meeting of the AEPS was held in Nuuk, Greenland, in 1993, the third in Inuvik, Canada, in 1996, and the fourth and fi nal meeting in Alta, Norway, in 1997.
16 VanderZwaag, Huebert, and Ferrara, supra note 6 at 154.
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proposed the idea of establishing the Arctic Council in Leningrad in November 1989.17 However, US offi cials were unwilling to support the initia-tive until the Democrat Bill Clinton became president in 1993. In September 1994, the United States proclaimed a new policy regarding its involvement in Arctic environmental issues. Canada also announced the idea of trans-forming the AEPS into a legally binding international instrument in the same year.18 In February 1995, US President Bill Clinton announced that the United States would join with Canada and the other Arctic nations to set up an Arctic Council by early 1996.19 However, the United States insisted on certain conditions for its participation: the Council would not deal with security- related issues, and fi nancial contributions would be voluntary rather than compulsory.20 These issues, along with others, were resolved through a long process of negotiation.21
The third ministerial meeting of the AEPS took place in Inuvik, Canada, on 15 March 1996, and it decided on the earliest possible creation of the Arctic Council.22 Offi cials from the Arctic states prepared the fi nal draft of the Ottawa Declaration to establish the Arctic Council, and it was adopted by the Arctic states along with the Joint Communiqué of the Governments of the Arctic Countries on 19 September 1996. The declaration created the Arctic Council as a ‘high level forum’ with four main purposes:
to provide a means for promoting cooperation, coordination, and inter-1.
action among the Arctic states involving the inhabitants of the Arctic, in particular, indigenous communities, on issues affecting the Arctic, par-ticularly sustainable development and environmental protection of the Arctic;
to continue with the programs of four working groups established under 2.
to provide information, encourage education, and call attention to issues 4.
related to the Arctic.23
17 Alan Sounders, Pondering an Arctic Council 19 Northern Perspectives 1 (1991).
18 Hurwich, supra note 15 at 233.
19 Evelyn M. Hurwich, Arctic 6 YbIEL 298 (1995).
20 VanderZwaag, Huebert, and Ferrara, supra note 6 at 154.
21 Four negotiation meetings were held in June, August, September, and December 1995 in Ottawa, Copenhagen, Washington, DC, and Toronto respectively aiming to conclude the agreement to establish the Arctic Council. See Hurwich, supra note 15 at 302–3.
22 Inuvik Declaration on Environmental Protection and Sustainable Development in the Arctic, 21 March 1996, <http://arctic- council.org/fi learchive/The%20Inuvik%20Declaration .pdf> at para. 15 [Inuvik Declaration].
23 Ottawa Declaration, supra note 1, Article 1.
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A RCTIC-W IDE EN V IRON MEN TA L COOPER ATION 127 In accord with US conditions, matters related to military security were kept outside the jurisdiction of the Arctic Council.
The meeting also identifi ed three initial priorities: to develop the rules of procedure for the Arctic Council and the terms of reference for a sustainable development program, and to ensure the completion of the transformation of the AEPS into the Arctic Council by the next AEPS ministerial meet-ing.24 At its fi rst ministerial meeting in 1998, the Arctic Council adopted the Arctic Council Rules of Procedure25 and the Terms of Reference for a Sustainable Development Program.26 The next fi ve ministerial meetings were held in 2000 in Barrow, Alaska, in the United States, in 2002 in Inari, Finland, in 2004 in Reykjavik, Iceland, in 2006 in Salekhard, Russia, and in 2009 in Tromsø, Norway, respectively.
I I I. F U N C T I O N I N G S Y S T E M O F T H E C O O P E R AT I ON
The functioning system of the Cooperation can be explained under two sections: the organizational framework and the operational framework.
1. Organizational Framework
For the purposes of this article, the organizational framework means the basic working structure of the Cooperation. It points to the entities respon-sible for the interior functions of the system as well as its various making functions. The Cooperation comprises three different entities in its main body. They are members, permanent participants, and observers. The establishing instrument of the Arctic Council specifi es the members and the criteria for permanent participants and observers.27
A. Members
The eight Arctic states are members of the Arctic Council: namely Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden, and the United States.28 The members are the same as those that participated in the AEPS cooperation. The presumption is that membership in the Arctic
24Joint Communiqué of the Governments of the Arctic Countries, 35 I.L.M. 1386 (1996), <http://
arctic- council.org/filearchive/Joint%20Communique%20of%20the%20Governments%20 of%20the%20Arctic%20Countries.pdf>.
25 Arctic Council Rules of Procedure as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, Iqaluit, Canada, 17–18 September 1998, <http://www.arctic - council.org/fi learchive/offi cial%20rules%20and%20procedures.pdf> [Rules of Procedure].
26 Arctic Council Terms of Reference for a Sustainable Development Program as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, Iqaluit, Canada, 17–18 September 1998, <http://arctic- council.npolar.no/Meetings/Ohers/CBW/
ACTermsofReference2.pdf> [Terms of Reference].
27 Ottawa Declaration, supra note 1, Articles 2–3. 28Ibid., Article 2.
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Council is limited to these eight states in the absence of any provision for expanding the membership.
B. Permanent Participants
Representatives of certain indigenous peoples groups in the region are entitled to be permanent participants in the Arctic Council.29 The Ottawa Declaration incorporates three associations of indigenous peoples as per-manent participants,30 which were also observers in the AEPS,31 and has also provided opportunities for the participation of other indigenous groups in the region.32 According to the declaration, a permanent participant can be chosen from among the majority of the Arctic indigenous constituency representing ‘a single indigenous people resident in more than one Arctic state’ or ‘more than one Arctic indigenous people resident in a single Arctic state.’33 The Arctic Council can accredit more permanent participants, but their total number must always be less than the number of the council’s members.34 Currently, there are six permanent participants: (1) the Aleut International Association; (2) the Arctic Athabaskan Council; (3) the Gwich’in Council International; (4) the Inuit Circumpolar Council; (5) the Russian Association of Indigenous Peoples of the North; and (6) the Saami Council.35 Therefore, the council could, if it so desired, accredit one more permanent participant.36
The inclusion of permanent participants is a way of recognizing the spe-cial importance of the indigenous peoples of the Arctic region.37 The idea behind the selection of the permanent participants is to ensure their active involvement and full consultation.38 They are welcome not only in minis-terial meetings but also to all other meetings and activities of the Arctic Council.39
29 Although the Ottawa Declaration has used the term ‘indigenous peoples’ out of respect for its traditional use by indigenous groups, it has also made it clear that the word ‘peoples’
does not have any implications relating to the creation of rights under international law (ibid., Article 2).
30 The Inuit Circumpolar Council, the Saami Council, and the Association of Indigenous Minorities in the Far North, Siberia, the Far East of the Russian Federation.
31 AEPS, supra note 9, Preface. 32 Ottawa Declaration, supra note 1, Article 2.
33 Ibid. 34Ibid.
35 Despite the fact that the organization changed it name to the present form before the creation of the Arctic Council in 1994, the declaration uses the former name, the Association of Indigenous Minorities in the Far North, Siberia, and the Far East of the Russian Federation.
36 There are eight members of the Arctic Council. Since it already has six permanent par-ticipants, it could choose one more. 37 Terms of Reference, supra note 26 at para. 1.
38 See the Ottawa Declaration, supra note 1, Article 2; Rules of Procedure, supra note 25,
rule 5. 39 Rules of Procedure, supra note 25, rule 5.
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A RCTIC-W IDE EN V IRON MEN TA L COOPER ATION 129 The Rules of Procedure allow the permanent participants to take part in all meetings and activities of the Arctic Council. According to the rules, a permanent participant is entitled to raise a point of order during discussion on any issue, and this point will be decided immediately by the chairper-son.40 Consultations with the permanent participants are also essential to fi x the time and location of biennial meetings41 and limit the size of
A RCTIC-W IDE EN V IRON MEN TA L COOPER ATION 129 The Rules of Procedure allow the permanent participants to take part in all meetings and activities of the Arctic Council. According to the rules, a permanent participant is entitled to raise a point of order during discussion on any issue, and this point will be decided immediately by the chairper-son.40 Consultations with the permanent participants are also essential to fi x the time and location of biennial meetings41 and limit the size of