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Rebalancing state and Indigenous sovereignties in international law: An Arctic lens on trajectories for global governance

  • Sabaa Ahmad Khan (a1)

Abstract

The environmental and economic realities of Arctic climate change present novel problems for international law. Arctic warming and pollution raise important questions about responsibilities and accountabilities across borders, as they result from anthropogenic activities both within and outside the Arctic region, from the Global North and the Global South. Environmental interdependencies and economic development prospects connect in a nexus of risk and opportunity that raises difficult normative questions pertaining to Arctic governance and sovereignty. This article looks at how the Arctic has been produced in international legal spaces. It addresses the implication of states and Indigenous peoples in processes of Arctic governance. Looking at specific international legal instruments relevant to Arctic climate change and development, the author attempts to tease out the relationship between the concepts of Indigenous rights and state sovereignty that underlie these international legal realms. What do these international legal regimes tell us with respect to the role of Arctic Indigenous peoples and the role of states in governing the ‘global’ Arctic? It is argued that while international law has come a long way in recognizing the special status of Indigenous peoples in the international system, it still hesitates to recognize Indigenous groups as international law makers. Comparing the status of Indigenous peoples under specific international regimes to their role within the Arctic Council, it becomes evident that more participatory forms of global governance are entirely possible and long overdue.

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The author wishes to thank the Editor and anonymous reviewers for their comments. She thanks the American Society of International Law for supporting the presentation of an early version of this work at the Seventh International Four Societies Conference (Tokyo, Japan). She expresses her gratitude to Octaviana Trujillo (Pascua Yaqui Tribe of Arizona), Sarah James (Neet’sai Gwich’in elder, Arctic Village), Dean Jacobs (Walpole Island First Nation), Konstantia Koutouki, Faiz Khan, and Yat-Chi Lau for insightful discussions throughout the writing process. This research has been conducted with funding from the Academy of Finland (Decision #314767).

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1 National Cowboy and Heritage Museum, ‘End of Trail: Introduction’, available at nationalcowboymuseum.org/learn-discover/online-unit-studies/end-of-the-trail-introduction/.

2 A widely cited working definition of the concept of Indigenous peoples endorsed by Indigenous representatives is the definition advanced by Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities Jose R. Martinez Cobo: ‘Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.’ See UN, Study of the Problem of Discrimination Against Indigenous Populations by José R. Martinez Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1986/7/Add. 1-4(1986-1987), at paras. 379–82. See also Secretariat of the Permanent Forum on Indigenous Issues, The Concept of Indigenous Peoples, UN Doc. UN PFII/2004/WS.1/3(2004).

3 See M. Battiste (ed.), Reclaiming Indigenous Voice and Vision (2000); S. J. Anaya, Indigenous Peoples in International Law (2004). On Indigenous civil rights in Canada, Australia, and New-Zealand see P. Grimshaw, R. Reynolds and S. Swain, ‘Paradox of “Ultra-Democratic” Government’, in D. Kirkby and C. Coleborne (eds.), Law, History, Colonialism: The Reach of Empire (2010), 78.

4 See Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep. 12.

5 Self-determination is defined in similar language in both international human rights covenants and the UNGA, United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295(2007) (UNDRIP). Art. 3 UNDRIP states: ‘Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ The international legal definition of self-determination is narrower than how self-determination is understood by certain indigenous peoples. The Inuit Circumpolar Council (ICC), an international non-governmental organization representing Inuit of Alaska, Canada, Greenland, and Russia, defines self-determination more broadly: ‘It is our right to freely determine our political status, freely pursue our economic, social, cultural and linguistic development, and freely dispose of our natural wealth and resources.’ ICC, ‘A Circumpolar Inuit Declaration on Sovereignty in the Arctic, adopted by the Inuit Circumpolar Council’, April 2009, available at iccalaska.org/wp-icc/wp-content/uploads/2016/01/Signed-Inuit-Sovereignty-Declaration-11x17.pdf.

6 T. Koivurova, ‘Redefining Sovereignty and Self-Determination through a Declaration of Sovereignty: The Inuit Way of Defining the Parameters for Future Arctic Governance’, in I. Ziemele et al. (eds.), Making Peoples Heard: Essays on Human Rights in Honour of Gudmundur Alfredsson (2011), 491.

7 See ECOSOC, Prevention of Discrimination and Protection Of Indigenous Peoples: Indigenous peoples’ permanent sovereignty over natural resources, Final report of the Special Rapporteur, Erica-Irene A. Daes, UN Doc. E/CN.4/Sub.2/2004/30(2004), para. 18.

8 Macklem, P., ‘Indigenous Recognition in International Law: Theoretical Observations’, (2008) 30 Michigan Journal of International Law 177 .

9 It is important to understand this as Indigenous determinations of ownership rather than western legal conceptions of individual or collective property.

10 As the late Erica-Irene A. Daes remarked, using as examples Vattel, Worcester v. Georgia and other US jurisprudence on tribal sovereignty and the right of sovereign immunity of tribes, ‘in legal principle there is no objection to using the term sovereignty in reference to indigenous peoples … Different forms of indigenous sovereignty are recognized and operative within different states’. ECOSOC, supra note 7, para. 20.

11 UNGA, UNDRIP, supra note 5.

12 Paris Agreement, 55 ILM 740, 12 December 2015.

13 United Nations Framework Convention on Climate Change, 31 ILM 849, 9 May 1992.

14 International Code for Ships Operating in Polar Waters, MEPC 68/21/Add. 1, Annex 10, 3.

15 Sovereignty and self-determination open up vast landscapes of international legal scholarship. This article explores and engages in these discussions in a way that looks at the meaning, relevance, deployment and interpretation of these topics in the context of the rights of Indigenous peoples. While the autonomy that self-determination implies can also be perceived as separatist, demanding a dissolution of existing territorial boundaries or the creation of new political structures such as in the case of decolonization or secession, this article is concerned with self-determination as a fundamental human right of all peoples, and follows Anaya in emphasizing the unity that is inherent in the concept: ‘peoples as such, including indigenous peoples with their own organic social and political fabrics, are to be full and equal participants at all levels in the construction and functioning of the governing institutions under which they live’. S. J. Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era’, in C. Charters and R. Stavenhagen (eds.), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (2009), 184.

16 A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005); E. Louka, International Environmental Law: Fairness, Effectiveness and World Order (2006). See Louka’s discussion of ‘coercive conservation’ practices by colonial and post-colonial governments in developing countries at 28–9. See also D. Bodansky, J. Brunnée and E. Hey (eds.) The Oxford Handbook of International Environmental Law (2007), 2: ‘International environmental law continues to struggle with the complaint that it reflects the concerns of developed countries more than those of developing countries and that it merely rearticulates some of the patterns of colonial exploitation in environmental terms.’

17 Anghie, A., ‘“The Heart of my Home”: Colonialism, Environmental Damage and the Nauru Case’, (1993) 34 Harvard International Law Journal 445 ; Anghie, supra note 16.

18 Anghie, A. and Chimni, B. S., ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, (2003) 2 Chinese Journal of International Law 77 .

19 On the history of the right of conquest see S. Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996); see also L. G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of their Lands (2005).

20 See Anghie’s discussion of recognition in Anghie, A., ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law’, (1999) 40 Harvard International Law Journal 1, 38. See also I. Brownlie, Principles of Public International Law (1990).

21 M. Rafiqul Islam, ‘History of the North-South Divide in International Law: Colonial Discourses, Sovereignty, and Self-Determination’, in S. Alam et al. (eds.), International Environmental Law and the Global South (2015), 23.

22 See M. Kuegelman, S. Levenstein and C. Atkin (eds.), The Global Farms Race: Land Grabs, Agricultural Investment, and the Scramble for Food Security (2013); P. B. Matondi et al., Biofuels, Landgrabbing and Food Security in Africa (2011); J. Zigler, Betting on Famine: Why the World Still Goes Hungry (2013); Cramb, R., ‘Oil Palm and Rural Livelihoods in the Asia-Pacific Region: An Overview’, (2012) 53 Asia Pacific Viewpoint 223 ; A. Cassel and R. Patel, Agricultural Trade Liberalization and Brazil’s Rural Poor: Consolidating Inequality (2003); T. Bartley et al., Looking Behind the Label: Global Industries and the Conscientious Consumer (2015).

23 ICC, ‘Inuit Call for Action from Global Leaders at UNFCCC COP 21 in Paris, France’, 2015, available at static1.squarespace.com/static/5627862ce4b07be93cfb9461/t/564c8521e4b00d3489f701fa/1447855393362/Arctic+ICC.pdf.

24 J. N. Larse et al., ‘Chapter 28 : Polar Regions’, in V. R. Barros et al. (eds.), IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2014), 1567–612.

25 OHCHR, ‘Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change’, 26 November 2015, available at www.ohchr.org/Documents/Issues/ClimateChange/COP21.pdf.

26 See, for example, OHCHR, Summary report of the Office of the United Nations High Commissioner for Human Rights on the outcome of the full-day discussion on specific themes relating to human rights and climate change, UN Doc. A/HRC/29/19 (2015); Government of the Maldives, ‘Submission of the Maldives to the Office of the UN High Commissioner for Human Rights, Maldives Submission under Resolution HRC 7/23’, 25 September 2008, available at www.ohchr.org/Documents/Issues/ClimateChange/Submissions/Maldives_Submission.pdf.

27 See Arctic Athabaskan Council, ‘Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations of the Rights of Arctic Athabaskan Peoples Resulting from Rapid Arctic Warming and Melting caused by Emissions of Black Carbon by Canada’, 23 April 2013, available at earthjustice.org/sites/default/files/AAC_PETITION_13-04-23a.pdf; S. Watt-Cloutier, ICC, ‘Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, 7 December 2005, available at earthjustice.org/sites/default/files/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf.

28 On Asia’s expanding investment in the Arctic region see J. Peng and N. Wegge, ‘China’s Bilateral Diplomacy in the Arctic’, (2015) 38 Polar Geography 233; N. Hong, ‘Emerging Interests of Non-Arctic countries in the Arctic: A Chinese perspective’, (2014) 4 The Polar Journal 271. On China’s Polar Belt Road Initiative see N. Liu, ‘Will China Build a Green Belt and Road in the Arctic?’, (2018) 27 RECIEL Special Issue on the Arctic 55.

29 Shadian, J. M., ‘Of Whales and Oil: Inuit Resource Governance and the Arctic Council’, (2013) 49 Polar Record 392 .

30 UNDRIP, supra note 5, Arts. 10, 19, 29, 28, 32. Normative foundations of the requirement include Art. 1 of the Covenants. See also Committee on the Elimination of Racial Discrimination (CERD), General Recommendation No.23: Indigenous Peoples, UN Doc. A/52/18, annex V(1997). For a comparative analysis on implementations of the international duty to consult and its relationship to the FPIC in the context of Latin America see Anaya, S. J. and Puig, S., ‘Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples’, (2017) 67 University of Toronto Law Journal 435 .

31 Hughes, L., ‘Relationships with Arctic Indigenous Peoples: To What Extent Has Prior Informed Consent Become a Norm?’, (2018) 27 RECIEL Special Issue on Arctic Environmental Governance 26 .

32 Koutouki, K., Lofts, K. and Davidian, G., ‘A Rights-based Approach to Indigenous Women and Gender Inequities in Resource Development in Northern Canada’, (2018) 27 RECIEL 63 .

33 State Council Information Office of the People’s Republic of China, ‘China’s Arctic Policy’, January 2018, available at www.scio.gov.cn/zfbps/32832/Document/1618243/1618243.htm.

34 E. C. H. Keskitalo and M. Nuttall, ‘Globalization of the “Arctic”’, in B. Evengård et al. (eds.), The New Arctic (2015), 175, 179–80.

35 One of the first comprehensive studies on the Arctic impacts of climate change was the 2004 Arctic Climate Impact Assessment (ACIA), that drew upon the work of over 250 scientists and six representative groupings of Arctic Indigenous peoples. See ACIA, Impacts of a Warming Arctic: Arctic Climate Impact Assessment (2004).

36 O. R. Young, ‘Governing the Arctic Ocean’, (2016) 72 Marine Policy 271, 274.

37 AMAP, ‘Chemicals of Emerging Arctic Concern: Summary for Policy-Makers’, 2017, available at www.amap.no/documents/download/2890/inline; AMAP, ‘Black Carbon and Ozone as Arctic Climate Forcers: Summary for Policy-Makers’, 2015, available at www.amap.no/documents/download/2506/inline.

38 Walker’s concept of ‘global law’ attempts to capture the way in which the legal world is evolving beyond the Westphalian dichotomy of national and international law, and how governance is spatially produced within and beyond the state, from underneath and outside statist spheres through an assemblage of cross-scalar legal instruments and actors. It emphasizes the inherently pluralistic and decentralized nature of ‘international’ governance in practice. N. Walker, The Intimations of Global Law (2014).

39 S. Watt-Cloutier, ‘Foreword’, in S. Duyck, S. Jodoin and A. Johl (eds.), Routledge Handbook of Human Rights and Climate Goverance (2018), xix.

40 Ilulissat Declaration, 28 May 2008, available at cil.nus.edu.sg/wp-content/uploads/2017/07/2008-Ilulissat-Declaration.pdf.

41 United Nations Convention on the Law of the Sea (UNCLOS), 1833 UNTS 3, 10 December 1982.

42 Inuit Nunaat refers to international circumpolar homeland of the Inuit. Art. 1.2 of the ICC’s Circumpolar Declaration on Sovereignty in the Arctic Declaration states: ‘From time immemorial, Inuit have been living in the Arctic. Our home in the circumpolar world, Inuit Nunaat, stretches from Greenland to Canada, Alaska and the coastal regions of Chukotka, Russia. Our use and occupation of Arctic lands and waters pre-dates recorded history. Our unique knowledge, experience of the Arctic, and language are the foundation of our way of life and culture.’ ICC, ‘A Circumpolar Declaration on Sovereignty in the Arctic’, 2009, available at inuit.org/about-icc/icc-declarations/sovereignty-declaration-2009/.

43 Ibid.

44 See D. Sambo Dorough, ‘Statement at UNPFII, 12th session, New York’, 30 May 2013; C. Watt, ‘Inuit Rights to the Arctic, Law Now, 7 May 2015, available at www.lawnow.org/inuit-rights-to-the-arctic/; Hutchins Legal INC., ‘Canada’s Submission to the Commission on the Limits of the Continental Shelf and the Legal Protections for Inuit Rights to the Arctic Ocean, Paper commissioned by Senator Charlie Watt’, March 2014, available at liberalsenateforum.ca/wp-content/uploads/2014/07/Watt_Canadas-Claim-to-the-Continental-Shelf-2014.pdf.

45 Nicol, H., ‘From Territory to Rights: New Foundations for Conceptualising Indigenous Sovereignty’, (2017) 22 Geopolitics 794, 806.

46 ICC, ‘The Sea Ice Never Stops: Circumpolar Inuit Reflections on Sea Ice Use and Shipping in Nunaat’, 2014, available at www.sdwg.org/wp-content/uploads/2016/04/Inuit-Response-to-AMSA-Final-Report.pdf, ii.

47 Ibid.

48 Macklem, supra note 8.

49 While the ILO’s work on indigenous peoples’ rights goes back to the time of its establishment in 1919, neither of the two legally-binding treaties relating to indigenous peoples that were adopted by the ILO (ILO 169 and the earlier 107 which is outdated but remains in force) affirm the right to self-determination. As Macklem notes, ILO Convention No.169 ‘comprehends international indigenous protection as measures internal to and compatible with the sovereign authority of the State in which they are located’. See Macklem, supra note 8. As discussed further on in the present work, this same critique applies to the UNDRIP, despite its integration of the seemingly emancipatory language of self-determination.

50 B. Feiring, Indigenous Peoples’ rights to lands, territories and resources (2013).

51 HRC, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. J. Anaya, UN Doc. A/HRC/9/9 (2008), para. 85.

52 UNGA, ‘Statement of Victoria Tauli-Corpuz, Chair of the UN Permanent Forum on Indigenous issues on the occasion of the adoption of the UN Declaration on the Rights of Indigenous Peoples’, 13 September 2007, available at www.un.org/esa/socdev/unpfii/documents/2016/Docs-updates/STATEMENT-VICTORIA-TAULI-CORPUZ-IDWIP-2007.pdf.

53 UNGA, Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/RES/1514/XV(14 December 1960).

54 J. Nichols, ‘“We Have Never Been Domestic”: State Legitimacy and the Indigenous Question’, in J. Borrows et al. (eds.), Centre for International Governance Innovation, UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws Special Report, 39, available at www.cigionline.org/sites/default/files/documents/UNDRIP%20Implementation%20Special%20Report%20WEB.pdf, 43.

55 Macklem, supra note 8.

56 See J. Borrows, ‘Sovereignty’s Alchemy: An analysis of Delgamuukw v. The Queen’, (1999) 37 Osgoode Hall Law Journal 537; J. Borrows, ‘Revitalizing Canada’s Indigenous Constitution: Two Challenges’, in Borrows et al., supra note 54.

57 HRC, ‘Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, Addendum: The situation of indigenous peoples in Canada, 27th session’, 2014, available at www.ohchr.org/Documents/Issues/IPeoples/SR/A.HRC.27.52.Add.2-MissionCanada_AUV.pdf.

58 Government of Canada, Indigenous and Northern Affairs Canada, ‘Tuberculosis Task Force Backgrounder’, 7 November 2017, available at www.canada.ca/en/indigenous-northern-affairs/news/2017/10/tuberculosis_taskforce.html.

59 Z. Nungak, Wrestling with Colonialism on Steroids: Quebec Inuit Fight for their Homeland (2017), 80.

60 Macklem, supra note 8, at 209.

61 Ibid.

62 HRC, supra note 51.

63 Tauli-Corpuz, supra note 52.

64 Macklem, supra note 8.

65 On UNDRIP’s reception into Canadian case law and its application in the interpretation of Aboriginal rights and domestic human rights legislation, see Nunatukavut Community Council Inc v. Canada (Attorney General), 2015 FC 981, paras. 101–6; Mitchell v. Minister of National Revenue, 2001 SCC 33, paras. 80–3; Canada (Human Rights Commission) v. Canada (Attorney General), 2012 FC 445, paras. 350–4; Simon v. Canada (Attorney General), 2013 FC 1117, para. 121. On regional systems see HRC, Ten years of the implementation of the United Nations Declaration on the Rights of Indigenous Peoples: good practices and lessons learned 2007–2017, UN Doc. A/HRC/EMRIP/2017/CRP.2 (2017), paras. 24–35.

66 Fakhri, M., ‘The WTO, Self-Determination and Multi-jurisdictional Sovereignty’, (2015) 108 AJIL Unbound 288, 292.

67 Lenzerini introduces the term to denote the shifting of ‘significant sovereign prerogatives’ from states to Indigenous peoples that has emerged in light of international legal developments on Indigenous rights, and contemporary state practice recognizing Indigenous autonomy. Lenzerini, F., ‘Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples’, (2006) 42 Texas International Law Journal 155.

68 S. J. Anaya, ‘Self-Determination as a Collective Human Right Under Contemporary International Law’, in P. Aikio and M. Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to Self-Determination (2000), 3.

69 Lindroth, M., ‘Paradoxes of Power: Indigenous Peoples in the Permanent Forum’, (2011) 46 Cooperation and Conflict 543 .

70 See, for example, Michelle Daigle’s juxtaposition of self-determination as it is lived by the Omushkegowuk Cree nation against understandings of self-determination within official state structures. Daigle, M., ‘Awawanenitakik: The Spatial Politics of Recognition and Relational Geographies of Indigenous Self-Determination’, (2016) 60 The Canadian Geographer , 259–69 .

71 Anaya, supra note 15 (emphasis added).

72 ILO, Equality Team, ‘Information note for ILO staff and partners: ILO Standards and the UNDRIP’, 13 September 2007, available at pro169.org/res/materials/en/convention169/Information%20Note%20on%20ILO%20standards%20and%20UNDRIP.doc.

73 UNFCCC, Synthesis Report on the aggregate effect of the intended nationally determined contributions, UN Doc. FCCC/CP/2015/7(2015).

74 The ICC holds Consultative Status II at the United Nations and is a Permanent Participant of the Arctic Council.

75 ICC, supra note 23; ICC, ‘Inuit Call on Global Leaders at UNFCCC COP 18 in Doha, Qatar: Making the most of the 2013-2015 review and the second commitment period under the Kyoto Protocol’, 5 December 2012, available at iccalaska.org/wp-icc/wp-content/uploads/2016/03/ICC-Statement_UNFCCC-COP18.pdf. On emissions sources see AMAP (2015), supra note 37, at 9. Overall, Arctic states account for 10% of global anthropogenic emissions of black carbon.

76 See Khan, S. and Kulovesi, K., ‘Arctic Black Carbon: Global Problem-solving through the Nexus of Science, Law and Space’, (2018) 27 RECIEL Special Issue on Arctic Environmental Governance 5 .

77 Paris Agreement, supra note 12, Preamble.

78 UNFCCC, Decision 1/CP. 23, Adoption of the Paris Agreement, UN Doc. FCCC/CP/21/2015/10/Add.1 (29 January 2016), para. 135.

79 UNFCCC, Decision 2/CP.23, Local communities and indigenous peoples platform, UN Doc. FCCC/CP/2017/11/Add.1 (8 February 2018).

80 Ibid., para. 6(a).

81 Ibid., para. 6(c).

82 Ibid., para. 8 (emphasis added).

83 G. Reed and T. Sadik, ‘Operationalizing the Local Communities and Indigenous Peoples’ Platform: A Step in the Right Direction?’, CIGI, 4 December 2017, available at www.cigionline.org/articles/operationalizing-local-communities-and-indigenous-peoples-platform-step-right-direction.

84 Nicol, H., ‘Nunavut, Sovereignty and the Future of Arctic Peoples’ Involvement in Regional Self-Determination’, (2013) 37 The Northern Review 127, 136.

85 D. S. Dorough, ‘The Rights, Interests and Role of the Arctic Council Permanent Participants’, in R. C. Beckman et al. (eds.) Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States (2017), 68, 98.

86 Ibid.

87 See ‘IMO Secretary General meets with Arctic indigenous leaders’, Chamber of Shipping, 28 October 2016, available at www.cosbc.ca/index.php?option=com_k2&view=item&id=2948:imo-secretary-general-meets-with-arctic-indigenous-leaders&Itemid=292; S. S. Zerehi, ‘Indigenous leaders head to London to lobby for stronger Arctic shipping regulations’, CBC News, 25 October 2016, available at www.cbc.ca/news/canada/north/polar-code-international-shipping-arctic-1.3818865.

88 See IMO, ‘Marine Environment Protection Committee (MEPC), 70th session, 24-28 October 2016’, 28 October 2018, available at www.imo.org/en/mediacentre/meetingsummaries/mepc/pages/mepc-70th-session.aspx.

89 ICC, ‘Utkiagvik Declaration’, July 2018, available at www.arctictoday.com/wp-content/uploads/2018/07/2018-Utigavik-Declaration.pdf.

90 IMO, ‘Member States, IGOs and NGOs’, 2019, available at www.imo.org/en/About/Membership/Pages/Default.aspx.

91 A. Chircop, ‘The IMO, its Role under UNCLOS and its Polar Shipping Regulation’, in R. C. Beckman et al. (eds.), Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States (2017), 107, 117.

92 Ibid.

93 J. George, ‘Pressure’s on UN shipping agency to embrace heavy fuel oil ban’, Nunatsiaq News, 12 April 2018, available at nunatsiaq.com/stories/article/65674pressures_on_un_shipping_agency_to_embrace_heavy_fuel_oil_ban/.

94 Schade, J. and Obergassel, W., ‘Human Rights and the Clean Development Mechanism’, (2014) 27 Cambridge Review of International Affairs 717 ; Savaresi, A., ‘REDD+ and Human Rights: Addressing Synergies between International Regimes’, (2013) 18 Ecology and Society 5 .

95 Selin, H. and Selin, N. E., ‘Indigenous Peoples in International Environmental Cooperation: Arctic Management of Hazardous Substances’, (2008) 17 RECIEL 72, 75.

96 Inuit Tapiriit Kanatami (ITK), ‘Inuit Priorities for Canada’s Climate Strategy: A Canadian Inuit Vision for Our Common Future in Our Homelands’, 2016, available at www.itk.ca/wp-content/uploads/2016/09/ITK_Climate-Change-Report_English.pdf, 41.

97 Stockholm Convention on Persistent Organic Pollutants, 40 ILM 532, 22 May 2001, Preamble; Minamata Convention on Mercury, Kumamoto, 10 October 2013, in force 16 August 2017, available at www.mercuryconvention.org/Portals/11/documents/Booklets/COP1%20version/Minamata-Convention-booklet-eng-full.pdf, Preamble.

98 ICC, ‘ICC Charter’, available at www.inuitcircumpolar.com/icc-international/icc-charter/, Art. 3(a)(b).

99 Ibid., Art. 3(c).

100 Bloomfield, L. P., ‘The Arctic Last Unmanaged Frontier’, (1981) 60 Foreign Affairs 87 , 90 cited in Selin and Selin, supra note 95.

101 Arctic Council, Ottawa Declaration of the Establishment of the Arctic Council, 19 September 1996, available at oaarchive.arctic-council.org/bitstream/handle/11374/85/EDOCS-1752-v2-ACMMCA00_Ottawa_1996_Founding_Declaration.PDF?sequence=5&isAllowed=y, Art. 1(a).

102 Dorough, supra note 85, at 82.

103 Koivurova, T. and Heinämäki, L., ‘The Participation of Indigenous Peoples in International Norm-Making in the Arctic’, (2006) 42 Polar Record 101, 104.

104 Ibid., at 103.

105 A. Stepien et al., ‘Arctic Indigenous Peoples and the Challenge of Climate Change’, in E. Tedsen, S. Cavalieri and R. A. Kramer (eds.), Arctic Marine Governance: Opportunities for Transatlantic Cooperation (2014), 71.

106 Koivurova and Heinämäki, supra note 103. See also Koivurova, supra note 6, for Koivurova’s discussion on state responses to Saami and Inuit agency in international relations and other practices of external self-determination. On the participation of Indigenous groups within the climate regime see E. A. Kronk Warner, ‘South of South: Examining the International Climate Regime from an Indigenous Perspective’, in S. Alam et al. (eds.), International Environmental Law and the Global South (2015), 451.

107 Rajagopal, B., ‘International Law and Social Movements: Challenges of Theorizing Resistance’, (2003) 41 Columbia Journal of Transnational Law 397 . The term is understood here to imply the disruption of the international legal dominance of the state and individual.

108 ICC Charter, supra note 98.

* The author wishes to thank the Editor and anonymous reviewers for their comments. She thanks the American Society of International Law for supporting the presentation of an early version of this work at the Seventh International Four Societies Conference (Tokyo, Japan). She expresses her gratitude to Octaviana Trujillo (Pascua Yaqui Tribe of Arizona), Sarah James (Neet’sai Gwich’in elder, Arctic Village), Dean Jacobs (Walpole Island First Nation), Konstantia Koutouki, Faiz Khan, and Yat-Chi Lau for insightful discussions throughout the writing process. This research has been conducted with funding from the Academy of Finland (Decision #314767).

Keywords

Rebalancing state and Indigenous sovereignties in international law: An Arctic lens on trajectories for global governance

  • Sabaa Ahmad Khan (a1)

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