Poles Apart? The Antarctic Treaty System as a …climate.org/wp-content/uploads/2017/11/Trevelyan_Wing_10...where Arctic foreign ministers assemble to discuss and guide the work of

Poles Apart? The Antarctic Treaty System as a Model for

Arctic Governance

Trevelyan Wing

October 2017

A British soldier participates in a NATO exercise in northern Norway. Photo by Nick Tryon/Crown copyright 2010

1 The Climate Institute|Poles Apart? The Antarctic Treaty System as a Model for Arctic Governance

Abstract: For over half a century, the Antarctic Treaty System (ATS) has been largely successful in governing the southern circumpolar region. The ATS has shielded the pristine Antarctic environment from mining and fossil fuel extraction, sustainably managed Southern Ocean fisheries, promoted peace and scientific endeavor across the continent, and is widely regarded as a model in international environmental law. The Arctic, by contrast, lacks a comprehensive governance regime – largely relying instead on a non-binding and relatively unstructured intergovernmental system. Today, the region faces potentially unsustainable exploitation of natural resources, increasing militarization, and other worrying trends that – coupled with the accelerating effects of climate change – now pose growing challenges for governance in the far north. While the two circumpolar regions differ in many respects, this paper explores how Arctic governance might benefit from examining – and perhaps incorporating – lessons from the more efficient framework managing the Antarctic.


1. Arct i c Governance in a Time o f Change In 2007, Russia planted its flag beneath the North Pole, laying claim to large expanses of Arctic Ocean seabed – expected to contain billions of dollars’ worth in oil and gas reserves – and triggering a northern “gold rush.”1 Due to climate change and a loose regional governance regime, Arctic resources are becoming increasingly accessible for exploitation, and new sea routes are emerging in this fragile ecosystem.2 While the region’s vast tundra ecosystems transform from carbon sinks into carbon sources, the rush to develop is stronger than ever.3 In 2008, Borgerson wrote that ‘the Arctic countries are likely to unilaterally grab as much territory as possible and exert sovereign control over opening sea-lanes wherever they can.’ In the ‘legal no man’s land’ of the far north, he worried that Arctic states were ‘pursuing their narrowly defined national interests’ in a way that would undermine regional stability and lead to potential conflicts.4 Likewise, US Admiral James Stavridis warned in 2012 that ‘for now, the disputes in the north have been dealt with peacefully, but climate change could alter the equilibrium.’5 As competition for Arctic resources has heightened, so too has militarization. Russia made its greatest push to expand regional military capabilities since the fall of the USSR,6 NATO coordinated the largest Arctic military exercise to date, and the US garrisoned 300 marines in Norway – the first time foreign troops have been stationed there since WWII;7 Barabanov opines that these actions ‘could trigger an arms race.’8 Collectively, they are destabilizing the region and increasing the potential for conflict. Where does this leave the Arctic’s 4 million inhabitants? In light of these newly arising challenges, the Arctic Council (AC) – the central pillar of Arctic governance – is falling short. Clearly, more comprehensive governance is needed, but what shape should this take? A streamlined structure, with greater authority, would be a significant improvement. How such a system should be constituted, however, remains in dispute. This paper seeks to contribute to the discussion by investigating whether the Arctic might draw lessons from the Antarctic Treaty System (ATS), which has successfully governed the circumpolar south for over 50 years. Koivurova states that ‘the two polar regions are poles apart from a politico-legal viewpoint,’ and their contrasting structures encourage a comparison.9 The fundamental question is, to what extent – if any – can the far north benefit from the Antarctic governance model? This paper explores that question through a comparative analysis of the two polar regimes, scrutinizing key structures in each region, examining current debates, and concluding with proposals for a pathway forward.


2. Polar Governance : Dif f erent Regimes for Dif f erent Regions?

The Arctic

2.1 The Arctic Council Established by the 1996 Ottawa Declaration as an intergovernmental forum for regional cooperation, the Arctic Council (AC) is the main pillar of Arctic governance and the only interstate forum for political discussions on Arctic issues.10 It covers a number of different topics – from assessing regional pollution levels to developing emergency preparedness and prevention initiatives – and operates on a 2-year cycle, with sessions every 6 months culminating in a Ministerial Meeting, where Arctic foreign ministers assemble to discuss and guide the work of the Council. A non-binding declaration is subsequently produced, which details any progress made along with the AC’s future plans.11 The AC has produced useful knowledge for policymakers and successfully raised awareness of Arctic issues globally. Though the Council lacks legal authority – it was not founded by an international treaty – it has nevertheless facilitated the creation of two legally binding agreements in recent years, which have established a cooperative framework for Arctic search and rescue operations, and created a preparedness and response mechanism for marine oil pollution.12 The AC is an exclusive club; with membership dependent on the possession of sovereign Arctic territory, there are only eight member states.13 The AC also grants Permanent Participant status to six indigenous organizations, which have consultation rights in all AC negotiations and decisions.14 Permanent Observer status is bestowed on non-Arctic states, inter-parliamentary and intergovernmental organizations, and NGOs upon agreement by the full members, while temporary ad hoc observer status can be granted to enable these parties to attend an individual AC meeting.15 This reveals a flexible but flawed institutional architecture. Numerous negative externalities caused by the relatively unregulated and increasingly unsustainable development of Arctic resources, for example, affects people throughout the world. In this context, countries beyond the Arctic Circle clearly have a legitimate stake in what happens within it, and cannot therefore be reasonably shut out of regional decision-making. The AC has faced other critiques as well. According to Herber, the AC ‘was not designed to be a comprehensive regional decision-making forum,’ and it consequently ‘does not provide umbrella coverage of all major governmental functions and responsibilities’ despite being the most comprehensive of the region’s governance institutions.16 This has led to criticism that the Council is


failing to effectively address the growing challenges confronting the Arctic. In Koivurova’s opinion, the AC is ‘a soft law organization’ with a mandate that is too limited.17 2.2 UNCLOS Because the Arctic is an ocean surrounded by land, the UN Convention on the Law of the Sea (UNCLOS) plays a central role in regional governance alongside the AC. Signed by all Arctic nations except for the US – which nevertheless accepts the majority of its provisions – UNCLOS codifies customary law of the sea, maintains traditional free access rights to the high seas as well as to their associated marine resources, and joint rights to mineral resources located beneath the deep seabed in those areas. 18 Importantly for the Arctic, the Convention awards coastal states an Exclusive Economic Zone (EEZ) extending 200 nautical miles offshore – granting sovereign property rights over mineral and marine resources within the EEZ. UNCLOS Article 234 further grants coastal states

the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and the pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance.19

The article also mandates that ‘[s]uch laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.’20 Together with the framework provided by UNCLOS to negotiate separate international treaties regarding efficient harvesting of marine resources above the seabed, and a supranational institution – the International Seabed Authority – to manage mineral resource exploitation below the deep seabed of the high seas, these provisions have major implications for the Arctic Ocean and its resources.21 Article 123 may also prove useful here, but it hinges on interpretation: namely, whether or not the Arctic Ocean constitutes a “semi-enclosed sea”. UNCLOS holds that ‘States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention.’22 Article 197 could likewise be invoked to strengthen Arctic governance. This provision mandates that ‘States shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.’23


However, Koivurova argues that UNCLOS is perceived as providing ‘governance solutions, but in such a way that each coastal state interprets what they require in the Arctic waters.’24 While the Convention has been regarded by some as addressing many legal issues in the Arctic Ocean, it is clearly not a panacea. According to Koivurova, UNCLOS ‘does not provide operational regulation, but mainly framework-type general regulation that leaves a lot of room for states to interpret and implement it the way they want.’25 2.3 Other Contributions to Arctic Governance Other initiatives have also framed Arctic governance. In 2008, for example, the five Arctic coastal states26 released the Ilulissat Declaration, which recognized the major climate-related changes facing the Arctic Ocean, the potential impacts on vulnerable ecosystems and peoples, and the states’ stewardship responsibility to protect the region’s unique ecology.27 The parties further proclaimed that they were ‘in a unique position to address these possibilities and challenges’ given their ‘sovereign rights and jurisdiction in large areas of the Arctic Ocean.28 These states, however, used the Declaration to assert that there was ‘no need to develop a new comprehensive international legal regime to govern the Arctic Ocean,’ because of the existence of UNCLOS.29 The parties stated that they remained ‘committed to this legal framework and to the orderly settlement of any possible overlapping claims,’ asserting that the existing framework ‘provides a solid foundation for responsible management by the five coastal States and other users of this Ocean through national implementation and application of relevant provisions.’30 This explicit statement – that a new Arctic treaty is unnecessary – was rejected by the European Parliament (EP) that same year. The EP resolved

that the [European] Commission should be prepared to pursue the opening of international negotiations designed to lead to the adoption of an international treaty for the protection of the Arctic, having as its inspiration the Antarctic Treaty, as supplemented by the Madrid Protocol signed in 1991, but respecting the fundamental difference represented by the populated nature of the Arctic and the consequent rights and needs of the peoples and nations of the Arctic region.31

The EP held that ‘as a minimum starting-point such a treaty could at least cover the unpopulated and unclaimed area at the center of the Arctic Ocean.’ Less controversially, a number of other international instruments have also helped to regulate maritime and environmental concerns in the Arctic. The International Maritime Organization (IMO), for example, recently instituted a Polar Code – a previously non-binding agreement made mandatory at the urging of Arctic states – which sets guidelines ‘to increase the safety of ships’ operation and mitigate the impact on the people and environment in the remote, vulnerable and potentially harsh polar waters.’32


Further initiatives have been put forward to supplement these institutional steps. Announcing the program for the 2015-17 US chairmanship of the Arctic Council, U.S. Special Representative for the Arctic Adm. Robert Papp laid out proposals for a Regional Seas Program (RSP) to help coordinate and support scientific research, manage growing human activity, and promote safer maritime operations in the Arctic Ocean.33 All of these efforts notwithstanding, however, UNCLOS and the AC are still at the center of Arctic governance today. A number of issues, including maintaining regional peace, remain unaddressed.

The Antarctic 2.4 The Antarctic Treaty of 1959 Turning our eyes to the Antarctic, a more evolved structure appears. In 1959, the Antarctic Treaty was signed by twelve states – seven of whom, notably, had territorial claims in Antarctica that were subsequently suspended by the agreement.34 The signatories had previously taken part in the 1957-1958 International Geophysical Year (IGY) – a cooperative scientific initiative studying the earth – which was in turn the culmination of earlier efforts to improve international scientific partnerships during the Cold War.35 In this spirit, the treaty affirmed ‘that it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.’36 The parties to the treaty further acknowledged ‘the substantial contributions to scientific knowledge resulting from international cooperation in scientific investigation in Antarctica,’ and emphasized the need for ‘the establishment of a firm foundation for the continuation and development of such cooperation on the basis of freedom of scientific investigation in Antarctica,’ centralizing ‘the interests of science and the progress of all mankind.’37 In this vein, and acting on its commitment to peace, the treaty banned all military activity and weapons testing, nuclear explosions, and radioactive waste disposal – successfully denuclearizing and demilitarizing the continent.38 The treaty is also inclusive. The Antarctic Treaty Consultative Meetings (ATCM), which oversee the agreement, are open to all – provided that a country first conducts ‘substantial research activity’ in the Antarctic to prove its commitment to the region.39 Since 1959, 41 additional states have signed the treaty and 17 now qualify to participate in the ATCM, meaning there are now 29 Consultative Parties. The remaining 24 Non-Consultative Parties may attend the ATCM, but do not take part in decision-making.40 In total, the signatories comprise all major industrial and developing countries, and cover more than 80 percent of the world’s population. In marked contrast to the Arctic regime, the Antarctic Treaty is therefore ‘a truly global supranational government.’41 2.5 Instruments within the ATS


Rooted in the 1959 treaty, the Antarctic Treaty System (ATS) has continued to develop and incorporate further agreements that augment the original.42 These include the 1964 Agreed Measures for the Conservation of the Antarctic Fauna and Flora, the 1972 Convention for the Conservation of Antarctic Seals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), and the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol). Alongside the founding treaty, they now collectively comprise the ATS – regarded today as one of the success stories in international environmental law. Two of these, the CCAMLR and the Madrid Protocol, jointly provide key policy mechanisms for environmental management under the ATS. The CCAMLR is a key component of the ATS.43 It uses an ecosystem-based approach to ensure sustainable harvesting of the Southern Ocean fisheries through the granting of licenses, establishment of yearly fishing quotas, satellite surveillance, and fishing vessel inspections, among other measures.44 Its Commission, meanwhile, regulates how living marine resources are used – from enforcing catch limits, to closing certain fisheries on a seasonal or area basis as needed, to setting out measures to minimize potential impacts on local ecosystems and non-target species. This body is in turn advised by the Scientific Committee.45 The Madrid Protocol recognized Antarctica as a ‘natural reserve, devoted to peace and science.’46 It further laid out a set of principles governing human activity on the continent, and prohibited all activities targeting mineral resources – a ban that cannot be dismantled until a replacement, legally binding regime regulating mineral resource activities is actualized in the region. 47 To ensure implementation, the Protocol set up the expert advisory Committee for Environmental Protection (CEP), which meets annually and is tasked with advising and making recommendations to the ATCM. Importantly, until the year 2048, the Environmental Protocol can only be modified by unanimous consent on the part of the Consultative Parties to the Antarctic Treaty.48 According to Herber, ‘[f]or over fifty years, the Antarctic Treaty System has provided a politically stable, scientifically successful, and environmentally friendly, governance regime in the southern circumpolar region,’ and its performance ‘in governing an entire continent has been impressive.’ It has, over the years, provided ‘an integrated and comprehensive governance umbrella for Antarctica that is based upon the highest level of authority offered under the prevailing tenets of international law – the international treaty mechanism,’ which has been crucial to its success.49

3. Lessons for Arct i c Governance 3.1 Reimagining the Current System


It is becoming increasingly apparent that a more comprehensive Arctic governance regime is needed. Rapid economic development of the Arctic’s natural bounty carries implications for the entire planet. A laissez-faire approach with limited oversight, if pursued in the current manner, will result in unsustainable resource exploitation – the heavy environmental costs of which the rest of the world will be forced to bear, without having had any input into the decision-making that allowed these problems to arise. In Herber’s view, there are today ‘significant negative externality effects from the failure of the Arctic region to follow sustainable economic practices,’ and what is needed is an Arctic regime ‘that seeks to achieve, simultaneously, both what is good for the Arctic and what is good for the world.’50 According to Koivurova, an underlying problem is the fact ‘that there is no way to coordinate between different governance mechanisms now functioning in their own fields in the Arctic.’ In his view, ‘[t]his is a problem if one thinks that we need to prepare for a rapidly and dramatically transforming region, requiring strong policy and legal measures, and/or that we need to overcome sectorial governance prevailing in the region and build our governance on ecosystem-based holistic governance.’51 These conditions thus demand a new structure, one that ‘would be empowered to make, on the basis of science, legally binding decisions, and coordinate between other Arctic-specific governance rules and regimes.’ A strong institution of this kind ‘would need to be created via an international treaty, with strong decision-making powers (e.g., towards ecosystem-based holistic governance).’ In short, ‘[s]ince it is the gaps in regulations that have been diagnosed as problematic [in Arctic governance], the cure for this is to identify those areas where law is still needed via those institutions that possess mandates to do this.’52 Incorporating a higher level of governance would bring together these disparate areas of responsibility under one umbrella, thereby enabling more efficient management. 3.2 Applying the ATS to the Arctic A number of experts have debated whether the ATS might be applied to the far north. According to Borgerson, ‘[a]lthough it is tempting to look to the past for solutions to the Arctic conundrum, no perfect analogy exists….There is simply no comparable historical example of a saltwater space with such ambiguous ownership, such a dramatically mutating seascape, and such extraordinary economic promise.’ In Borgerson’s view, while the 1959 Antarctic Treaty certainly offers lessons, ‘it concerns a continent rather than an ocean.’53 Herber goes further, stating that ‘there is no basis, whatsoever, to advocate a close replication of the Antarctic model in the Arctic region.’54 Indeed, Koivurova asserts that ‘[t]he starkly contrasting roles sovereignty plays in the regions should make it especially clear that the ATS model cannot really function in the Arctic other than by way of providing a source of inspiration.’55 As Arctic Centre


researcher Sebastien Duyck explains, the two poles differ too much to facilitate ‘a one-size-fits-all model for Polar governance.’56 Nevertheless, this does not mean that an Arctic treaty is impracticable, or that aspects of the ATS cannot be adapted to suit the needs of the Arctic. As Koivurova points out, a ‘common mistake is to think that suggesting an Arctic treaty means the same as suggesting that the ATS should evolve to govern the Arctic.’57 Indeed, despite his opposition to transplanting the ATS, Herber argues that it ‘can serve, in several important ways, as a valuable reference for the design of an Arctic government that can effectively deal with its difficult future challenges.’58 The goal should therefore not be to completely scrap the existing Arctic model, but rather to reform and enhance it – and the ATS can help show the way. By identifying the relevant and transferrable strengths of the ATS – its global outlook and openness, for example, or its treaty-based commitment to demilitarization and peace, scientific cooperation, and sustainable environmental management – Arctic governance could be reimagined for the better.59 The Madrid Protocol, for example, provides an effective mechanism for environmental management of Antarctic natural resources, and a parallel approach in the Arctic would – according to Herber – constitute ‘a major step forward in addressing the need for the efficient management of all major natural resource uses in Arctic industries.’60 3.3 An Arctic Treaty: Critiques and Rebuttals Of all the Arctic states, only Finland has advocated for an Arctic treaty in recent years. 61 Nevertheless, a number of experts believe that this is the best way forward for the region. In Borgerson’s view, ‘[t]he ideal way to manage the Arctic would be to develop an overarching treaty that guarantees an orderly and collective approach to extracting the region’s wealth.’ He recommends the US ‘convene a conference to draft a new accord based on the framework of the Arctic Council,’ which ‘should incorporate relevant provisions of UNCLOS and take into account all of the key emerging Arctic issues.’62 There are skeptics. One worry is that the significant consultation rights currently enjoyed by Arctic indigenous peoples under the AC would be lost in a potential treaty, given the notion that only full states can participate in international treaties. Koivurova rejects this view as misguided because ‘there is nothing in the customary law of treaties, as codified in the Vienna Convention on the Law of Treaties, that would prevent states from giving indigenous peoples that status in an international treaty; after all, indigenous peoples do not have any decision-making power in the [Arctic] Council, other than being consulted by states before decision making.’ Another concern derives from AC admirers, who laud its success as an intergovernmental forum and fear its loss to an Arctic treaty. Koivurova dismisses this objection as well. ‘Many stakeholders in Arctic governance…mistakenly believe that to negotiate an overarching, legally binding instrument


for the Arctic would fully halt the functioning of the Arctic Council,’ but this is mistaken because the member states ‘could set up a separate process to negotiate a legally binding instrument for the Arctic, or its Ocean, which in no way would halt the functioning of the Arctic Council.’63 Others have worried that an Arctic treaty would simply take too long to create, pointing to the fact that UNCLOS took nearly a decade to negotiate (from 1973-1982), and did not enter into force until 1994. Koivurova once again disagrees, pointing out that ‘UNCLOS was possibly the most ambitious treaty negotiation process’ ever undertaken by the world’s nation states; conflating it with a future Arctic treaty is unwarranted.64 Either way, it is evident that crafting a treaty for the Arctic – and even winning the argument for one in the first place – will be no easy task. A treaty-based Arctic system, however, is both desirable and possible. Imbued with legal authority, it would significantly build upon existing structures and extend their purview to meaningfully cover all major areas that currently demand more effective regional governance – while making them more responsive to the increasing nexus of interlocking challenges emerging in the Arctic. 3.4 Looking to the Future Today, the Arctic stands at a crossroads. It is increasingly subject to rapid and chaotic economic development, with heavy environmental costs and potential new international conflicts. This is not in the best interests of the region, its peoples, or the wider world. Rather, it is an unhealthy trend occurring largely due to a governance vacuum. Unlike Antarctica, the Arctic has no treaty-based mechanism scrutinizing economic activities being pursued within its boundaries, and no prohibition on military activity. In this context, a legally binding agreement for the Arctic makes sense – offering an opportunity for a more comprehensive and efficient governance model that can address the diverse governmental needs of the circumpolar north. While some are concerned that adding another layer of governance to the Arctic will create more problems that it solves – or undermine existing institutions – these fears need not stand in the way of pursuing more effective management, which the region sorely needs. Multi-level governance is already a reality in many places around the world, and there is no reason why it cannot be suitably adapted to the far north as well, under the umbrella of an Arctic treaty. 65 In an age of dramatic environmental change, action must be taken to preserve the important, vulnerable ecological systems of this polar region, and a treaty-based approach holds great promise. Trevelyan Wing is a Graduate Research Fellow at the Climate Institute. Founder of the Indigenous Youth Forum on Climate Change and former Stefansson Fellow at the Institute of Arctic Studies, he holds an MPhil in Environmental Change and Management from the University of Oxford.


Notes 1. The Arctic is estimated to hold 412 billion barrels worth in oil and oil-equivalent natural gas alone – about 22 percent of the earth’s undiscovered reserves. See U.S. Geological Survey, ‘Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle’ (USGS Fact Sheet 2008-3049, Washington DC, 2008) Table 1 <http://pubs.usgs.gov/fs/2008/3049/> accessed 18 April 2017; Scott G. Borgerson, ‘The Coming Arctic Boom: As the Ice Melts, the Region Heats Up’ Foreign Affairs (New York July/August 2013) <https://www.foreignaffairs.com/articles/global-commons/2013-06-11/coming-arctic-boom> accessed 20 April 2017; Tom Parfitt, ‘Russia Plants Flag on North Pole Seabed’ The Guardian (London, 2 August 2007) <https://www.theguardian.com/world/2007/aug/02/russia.arctic> accessed 20 April 2017; ‘Russia Plants Flag Under N Pole’ BBC News (London, 2 August 2007) <http://news.bbc.co.uk/1/hi/world/europe/6927395.stm> accessed 20 April 2017. 2. These shipping routes promise to significantly reduce the time needed to transport goods between Asia and Europe. Grigory Stratiy, deputy governor of Russia’s Murmansk region, estimates that international cargo ships will be able to traverse the Arctic Ocean year-round by the 2020s. For more on this, see: Ed Struzik, ‘Shipping Plans Grow as Arctic Ice Fades’ Yale Environment 360 (17 November 2016); Andrew Osborn, ‘Putin’s Russia in biggest Arctic military push since Soviet fall’ Reuters (London 31 January 2017) <http://uk.reuters.com/article/us-russia-arctic-insight-idUKKBN15E0W0> accessed 17 April 2017. 3. Robert Max Holmes and others, ‘Permafrost and Global Climate Change’ (Woods Hole Research Center, Policy Brief, June 2015) 1-2 <http://whrc.org/wp-content/uploads/2015/06/PB_Permafrost.pdf> accessed 17 April 2017; ‘Climate Change and Antarctic’ (Antarctic and Southern Ocean Coalition, 2016) <http://www.asoc.org/advocacy/climate-change-and-the-antarctic> accessed 19 April 2017. 4. Scott G. Borgerson, ‘Arctic Meltdown: The Economic and Security Implications of Global Warming’ Foreign Affairs (New York March/April 2008), 73-74. 5. ‘Special Report: The Arctic’ The Economist (London 16 June 2012) 8 <http://www.economist.com/sites/default/files/20120616_the_arctic.pdf> accessed 18 April 2017. 6. This has seen old Soviet bases re-opened and new ones constructed, alongside a nuclear icebreaker fleet. See Osborn (n 2); ‘Russia’s new Arctic Trefoil military base unveiled with virtual tour’ BBC News (London 18 April 2017) <http://www.bbc.co.uk/news/world-europe-39629819> accessed 18 April 2017.


7. Trude Pettersen, ‘15 nations take part in military exercise in Norway’ Barents Observer (Kirkenes 5 March 2012) <http://barentsobserver.com/en/topics/15-nations-take-part-military-exercise-norway> accessed 9 April 2017; Trefor Moss, ‘Frosty Relations: Militarizing the Arctic’ World Policy Journal (New York 22 April 2014) <http://www.worldpolicy.org/blog/2014/04/22/frosty-relations-militarizing-arctic> accessed 13 April 2017; Trude Pettersen, ‘Russian military experts: NATO exercise in Norway a provocation’ Barents Observer (Kirkenes 14 March 2012) <http://barentsobserver.com/en/additional-menu/russian-military-experts-nato-exercise-norway-provocation> accessed 18 April 2017. 8. Osborn (n 2). 9. Timo Koivurova, ‘How to Improve Arctic International Governance’ (2016) 6[1] UC Irvine LR 95. 10. The Arctic Council has a Permanent Standing Secretariat, which supports the ongoing work of the Council. This body is headquartered in Tromsø, Norway. 11. Declaration on the Establishment of the Arctic Council (19 September 1996) (Ottawa Declaration); ‘What does the Arctic Council do?’ (Arctic Council, 4 November 2016) <http://www.arctic-council.org/index.php/en/about-us/arctic-council/faq> accessed 16 April 2017; Koivurova (n 9) 93. 12. These instruments are the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic – signed at the 2011 Ministerial Meeting – and the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic – signed at the 2013 Ministerial Meeting – respectively. See Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic (adopted 12 May 2011, entered into force 19 January 2013) 50 ILM 1119 (Arctic SAR Agreement); Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic (adopted 15 May 2013, not yet in force) 107 AJIL 661 (Arctic MOPPR Agreement). 13. The member states include the US, Canada, Denmark (representing Greenland), Iceland, Norway, Sweden, Finland, and Russia. This exclusivity stands in marked contrast to the Antarctic Treaty System, to which all states may become a party. 14. The Permanent Participants include the Saami Council, Russian Association of Indigenous Peoples of the North, Aleut International Association, Gwich’in Council International, Arctic Athabaskan Council, and Inuit Circumpolar Council. See ‘Permanent Participants’ (Arctic Council, 22 March 2017) <https://www.arctic-council.org/index.php/en/about-us/permanent-participants> accessed 16 April 2017.


15. ‘Observers’ (Arctic Council, 15 March 2017) <http://www.arctic-council.org/index.php/en/about-us/arctic-council/observers> accessed 16 April 2017. 16. Bernard P Herber, ‘Economic Change in the Arctic: Is the Antarctic Governance Model Needed?’ (2013) Udall Center Environmental Policy Working Paper 2/2013, 6, 11 <http://udallcenter.arizona.edu/eppubs/herber_economic_2013.pdf> accessed 25 March 2017. 17. Koivurova (n 9) 93. 18. Koivurova (n 9) 90. 19. United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, ATS 31, 21 ILM 1261, (UNCLOS) art 234. 20. UNCLOS, art 234. 21. Herber (n 16) 12-13. 22. The full text of Article 123, Cooperation of States bordering enclosed or semi-enclosed seas, reads as follows: States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. ‘To this end they shall endeavour, directly or through an appropriate regional organization: (a) to co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to co-operate with them in furtherance of the provisions of this article; UNCLOS, art 123. 23. UNCLOS, art 197. 24. Koivurova (n 9) 92. 25. Koivurova (n 9) 90. 26. Namely, the US, Canada, Denmark, Norway, and Russia. 27. Ilulissat Declaration (Arctic Ocean Conference, 28 May 2008) 1-2 <http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf> accessed 20 April 2017.


28. They also agreed that ‘shipping disasters and subsequent pollution of the marine environment may cause irreversible disturbance of the ecological balance and major harm to the livelihoods of local inhabitants.’ See Ilulissat Declaration, 1-2. 29. In full, the Declaration stated that ‘the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea.’ See Ilulissat Declaration, 1. 30. Ilulissat Declaration, 1-2 31. European Parliament resolution of 9 October 2008 on Arctic governance (2008) 2010/C 9 E/07 <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AC%3A2010%3A009E%3ATOC> accessed 20 April 2017. 32. The Polar Code sets mandatory guidelines under the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL). See International Code for Ships Operating in Polar Waters (adopted 21 November 2014, entered into force 1 January 2017) IMO Res MSC.385(94) (Polar Code), preamble; Koivurova (n 9) 92. 33. U.S. Arctic Council Team, ‘U.S. Chairmanship Brochure’ (Bureau of Public Affairs, U.S. Department of State) 1-2 <http://www.arctic-council.org/images/PDF_attachments/US_Chairmanship/Chairmanship_Brochure_2_page_public.pdf> accessed 19 April 2017; Koivurova (n 9) 96-97. 34. The 12 states were the US, UK, USSR, South Africa, Norway, New Zealand, Japan, France, Chile, Belgium, Australia, and Argentina; Antarctic Treaty, art 4 35. These collaborations had previously seen American meteorologists winter over at the USSR’s Mirnyy station in 1956, and Soviet meteorologists winter over at the US’s Little America station in 1957. For more, see: ‘Antarctic Treaty: Narrative’ (U.S. Department of State: Treaties and Agreements) <https://www.state.gov/t/avc/trty/193967.htm#narrative> accessed 17 March 2017. 36. Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 12 UST 794, 402 UNTS 71, 19 ILM 860, preamble. 37. In their view, ‘a treaty ensuring the use of Antarctica for peaceful purposes only and the continuance of international harmony in Antarctica’ would ‘further the purposes and principles embodied in the Charter of the United Nations’. See Antarctic Treaty, preamble.


38. This lofty agreement would apply to the entire region south of 60o South Latitude, ‘including all ice shelves’ (explicitly safeguarded under the treaty, though the rights – and exercise thereof – ‘of any State under international law with regard to the high seas within that area’ would not be affected). See Antarctic Treaty, arts 1, 2, 3, 4, 5(1), 6. 39. Antarctic Treaty, art 9(2). 40. Antarctic Treaty, art 9; ‘Antarctic Treaty: Parties’ (Secretariat of the Antarctic Treaty) <https://www.ats.aq/devAS/ats_parties.aspx?lang=e> accessed 19 April 2017. 41. Herber (n 16) 15. 42. The ATS has a permanent secretariat that is headquartered in Buenos Aires, Argentina. 43. Established to conserve Antarctic marine life during a period of growing commercial interest in krill – a keystone species in the Antarctic marine ecosystem – and in reaction to overexploitation of other resources in the Southern Ocean, CCAMLR has a Secretariat based in Hobart, Tasmania. 44. Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 33 UST 3476; 1329 UNTS 48; 19 ILM 841 (CCAMLR), preamble, arts 2, 9(1, 2, 5), 15(2c, 2d), 20, 24(2b). 45. The Arctic Council, by contrast, has no mandate to manage fisheries in this way. See Koivurova (n 9); CCAMLR, preamble, arts 2, 9(1, 2, 4, 5), 14, 15(2c, 2d), 16, 20(1), 23, 24(2b). 46. Madrid Protocol, art 2. 47. There is an exception for scientific purposes. See Madrid Protocol, arts 3, 7, 25(5) 48. Madrid Protocol, art 25(2). 49. Herber (n 16) 16. 50. Herber (n 16) 25-26. 51. Koivurova (n 9) 93-94, 97. 52. Koivurova (n 9) 90, 94. 53. Borgerson further maintains that the differences between the two polar regions and their disparate institutional histories – the ATS, for example, was negotiated during the Cold War – affect


the extent to which governance structures can be transplanted in the Arctic. See Borgerson, ‘Arctic Meltdown’ (n 4) 73. 54. Herber (n 16) 20-21. 55. As discussed previously, all territory in the far north – along with much of the Arctic Ocean – falls under the sovereign rights of the eight Arctic states. See Koivurova (n 9) 94-95. 56. Sebastien Duyck, ‘Drawing Lessons for Arctic Governance from the Antarctic Treaty System’ in Gudmundur Alfredsson, Timo Koivurova and Kamrul Hossain (eds), The Yearbook of Polar Law, vol 3 (Brill 2011), 683. 57. Koivurova (n 9) 94-95. 58. Herber (n 16) 20-21. 59. For example, although forestry, international shipping, mining, and oil and gas production are not present in the Antarctic, aspects of the ATS model could still be applied to regulating those industries in the Arctic. 60. In his view, the Arctic could also benefit from adopting ‘a meaningful set of science-oriented components’ paralleling those enshrined in the ATS. See Herber (n 16) 19, 22-24. 61. Page Wilson, ‘An Arctic Council Treaty? Finland’s Bold Move’ (Arctic Yearbook 2014, Commentary) <http://www.arcticyearbook.com/commentaries2014/153-an-arctic-council-treaty-finland-s-bold-move> accessed 20 April 2017. 62. Borgerson, perhaps overoptimistically, believes that with ‘a strong push from Washington, the Arctic states could settle their differences around a negotiating table, agree on how to carve up the region’s vast resource pie, and possibly even submit a joint proposal to the UN.’ See Borgerson, ‘Arctic Meltdown’ (n 4) 75. 63. Koivurova (n 9) 94. 64. UNCLOS, Koivurova argues, was a much bigger undertaking ‘given that it resolved most of the contentious issues of ocean governance in one single treaty, with its 320 articles and nine annexes. UNCLOS has been rightfully called the Constitution for the Oceans.’ See Koivurova (n 9) 94-95. 65. Koivurova (n 9) 97.

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