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Environmental Protection in the Arctic and Antarctic: Can the Polar Regimes Learn From Each Other?

Published online by Cambridge University Press:  28 February 2019

Extract

There has been increasing dissatisfaction with the way Arctic-wide cooperation under the Arctic Council operates. Scholars and nongovernmental organizations (NGOs) have taken up the idea of finding a new direction for the work of the Council by drawing on the experience of the other pole, the Antarctic, and its well-established structures of governance. At first sight, this may seem like a misdirected idea, given that the two poles show more differences than similarities: the Arctic consists of ocean surrounded by continents, whereas the Antarctic is a continent surrounded by ocean; the Antarctic has no permanent human habitation, while the Arctic is inhabited by indigenous peoples and other local communities. Yet, the two polar areas also resemble each other in many respects. Both have extreme climatic conditions, receiving less radiation from the sun than other parts of the globe, and the ecosystems have had to adapt to very cold and dark environments with short and light-filled growing seasons. In such conditions, the ecosystems are simple, containing only a few key species, and are thus more vulnerable to human-induced pollution than those of more temperate areas.

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Articles
Copyright
Copyright © 2005 by the International Association of Law Libraries. 

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References

1 Iceland also has territorial sovereignty areas above the Arctic Circle, as its territorial sea extends above the Circle.Google Scholar

2 Already before this, the International Council for Scientific Unions had established the Scientific Committee on Antarctic Research (SCAR), which plays an important role in the ATS.Google Scholar

3 These were Chile, Argentina, the United Kingdom, Australia, New Zealand, Norway and France. In one sector, the Antarctic Peninsula, the claims of Chile, Argentina and the United Kingdom overlap. One area of the Antarctic, that comprising Ellsworth Land and Marie Byrd Land, remains unclaimed by any state; it is the last area of unclaimed land on Earth.Google Scholar

4 These were Belgium, South Africa and Japan.Google Scholar

6 According to Article IV of the Treaty: Nothing contained in the present Treaty shall be interpreted as: a. a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; b. a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; c. prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's rights of or claim or basis of claim to territorial sovereignty in Antarctica. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.Google Scholar

7 For a discussion, see Donald Rothwell. The Polar Regions and the Development of International Law (Cambridge University Press, 1996), 96-100, 110-154.Google Scholar

8 This is so because there were still potential coastal states that had only agreed not to consolidate their sovereignty claims for the duration of the Treaty. They have still adopted maritime zones for their Southern Ocean waters. For an analysis, see Vigni, Patrizia. “Antarctic Maritime Claims: “Frozen Sovereignty” and the Law of the Sea”. The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (eds. Elferink, A.& Rothwell, D.): 85-104. Kluwer Law International 2001.Google Scholar

12 See the Commission's website at http://www.ccamlr.org/.Google Scholar

14 See the Committee's website at http://www.cep.aq/.Google Scholar

15 See the final report of the meeting, available on the World Wide Web at http://168.83.9.25/27atcm/e/index.htm.Google Scholar

16 Gorbachev proposed that a nuclear-weapon-free zone be declared in northern Europe; naval activity be limited in the seas adjacent to northern Europe; peaceful cooperation be the basis for utilizing the resources of the Arctic; scientific study of the Arctic has great significance for all mankind; the countries of the North co-operate in matters of environmental protection; the Northern Sea Route be opened by the Soviet Union to ice-breaker-escorted passage.Google Scholar

17 The history of the negotiation process is studied in Tennberg, Monica. The Arctic Council. A Study in Governmentality. University of Lapland 1998: 5361. The AEPS is reproduced in 30 International Legal Materials 1624 (1991).Google Scholar

18 The 1996 Declaration on the establishment of the Arctic Council. The Declaration is reproduced in 35 International Legal Materials 1385-1390 (1996) and is available on the World Wide Web at http://www.arctic-council.org/en/main/infopage/73/.Google Scholar

19 Ibid., Article 1 (a) of the Declaration.Google Scholar

20 Ibid., footnote at p. 3.Google Scholar

21 Ibid., Article 1 (b).Google Scholar

22 Ibid. Article 1 (b) reads: “The Arctic Council is established as a high level forum to … b. oversee and coordinate the programs established under the AEPS on the Arctic Monitoring and Assessment Program (AMAP); Conservation of Arctic Flora and Fauna (CAFF); Protection of the Arctic Marine Environment (PAME); and Emergency Prevention, Preparedness and Response (EPPR).”Google Scholar

23 Ibid. Article 1 (c) reads: “The Arctic Council is established as a high level forum to … c. adopt terms of reference for, and oversee and coordinate a sustainable development program.”Google Scholar

24 The home page of the SDWG is available on the World Wide Web at http://www.sdwg.org/.Google Scholar

25 Article 2 of the Declaration enumerates the following as permanent participants: “The Inuit Circumpolar Conference, the Saami Council and the Association of Indigenous Minorities of the North, Siberia and the Far East of the Russian Federation.” Three organizations have since been accepted as permanent participants: the Aleut International Association, the Gwich'in Council International and the Arctic Athabascan Council.Google Scholar

26 Ibid. Article 3 of the Declaration reads: “Observer status in the Arctic Council is open to: a) non-Arctic states; b) inter-governmental and interparliamentary organizations, global and regional; and c) non-governmental organizations that the Council determines can contribute to its work.”Google Scholar

27 Ibid. Article 2 (2) reads: “Permanent participation is equally open to other Arctic organizations of indigenous peoples with majority Arctic indigenous constituency, representing: a. a single indigenous people resident in more than one Arctic State; or b. more than one Arctic indigenous people resident in a single Arctic state.” Decisions by the Arctic states on whether this criterion is fulfilled must be unanimous. Article 2 also states: “the number of Permanent Participants should at any time be less than the number of members.”Google Scholar

28 Ibid., Article 2.Google Scholar

29 See the programmes of the Arctic Council, available on the World Wide Web at http://www.arctic-council.org/en/main/infopage/5/.Google Scholar

30 Articles I and V of the Antarctic Treaty.Google Scholar

31 See the scientific reports of the AMAP programmes, available on the World Wide Web at http://www.amap.no/.Google Scholar

32 The Agreement on the Conservation of Polar Bears. The Agreement is reproduced in 13 International Legal Materials 13 (1974).Google Scholar

33 The recently released Arctic Human Development Report (AHDR) by the Arctic Council applies the narrower definition of the Arctic, yielding a population of 4 million people for the region. Furthermore, the report highlights that it is extremely difficult to assess how many of these people are of indigenous origin, given the differing definitions adopted in census statistics in the Arctic countries. See the AHDR, 27-41. The report is available on the World Wide Web at http://www.svs.is/AHDR/AHDR%20chapters/Chapters%20PDF.htm.Google Scholar

34 Ibid., 101-118Google Scholar

36 Rothwell, 110-121.Google Scholar

37 For an analysis of the different views, see Timo Koivurova, Environmental Impact Assessment in the Arctic: a Study of International Legal Norms (Ashgate Publishing 2002): 69127.Google Scholar

38 For an analysis of one of these failures, see Timo Koivurova, “Environmental Assessment of Natural Resource Exploitation in the Arctic: Towards Strategic Environmental Assessment”. Circumpolar Connections; Proceedings of the 8th Circumpolar Universities Cooperation Conference 2003: 3237.Google Scholar

39 The text of the Convention is available on the World Wide Web at http://www.pops.int/documents/convtext/convtext_en.pdf. Paragraph 3 of the Preamble reads as follows: “Acknowledging that the Arctic ecosystems and indigenous communities are particularly at risk because of the biomagnification of persistent organic pollutants and that contamination of their traditional foods is a public health issue.”Google Scholar

40 The Plan of Implementation is available on the World Wide Web at http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm.Google Scholar

41 See the editorial by the director of the WWF's Arctic Programme, Samantha Smith, in WWF Arctic Bulletin No. 1 (2004), available on the World Wide Web at http://www.panda.org/news_facts/publications/arctic/index.cfm.Google Scholar

42 The difference between the WWF and the IUCN is that the IUCN is a hybrid organization whose membership consists not only of states (78) and government agencies (113) but also of international and national NGOs. For statistics on the various members, see the IUCN website on the World Wide Web at http://www.iucn.org/members/Mem%20Statistics.htm.Google Scholar

43 For a critical scholarly view, see, for instance, Vanderzwaag, Davidet al., “The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters.” The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (eds. Elferink, A. & Rothwell, D.): 225248. Kluwer Law International 2001.Google Scholar

44 Linda Nowlan. Arctic Legal Regime for Environmental Protection. IUCN Environmental Policy and Law Paper No. 44. This publication can be downloaded from the World Wide Web at http://www.iucn.org/themes/law/info04.html. See parts V and VI. Philippe Sands has also argued in this direction in his widely read textbook on international environmental law: “The adoption of the Arctic Environmental Protection Strategy and the establishment of the Arctic Council provide a useful opportunity to develop new legal arrangements and institutions to govern an ecosystem which transcends national boundaries and requires international cooperation for its adequate protection to be assured. The soft law approach currently envisaged provides a first step; ultimately, it will be necessary to establish appropriate institutional arrangements and substantive rules, perhaps similar to those applied in the Antarctic, to ensure that agreed obligations are respected and enforced.” Philippe Sands. Principles of International Environmental Law (second edition). Cambridge University Press 2003: 731.Google Scholar

45 Nowlan, part VI.Google Scholar

46 The present author was invited to this meeting. The expert meeting was attended by scholars, representatives of Arctic indigenous peoples and government officials. The IUCN recently decided to establish a permanent Arctic Specialist Group.Google Scholar

47 This International Polar Year (IPY) will be the fourth of its kind, the most recent being organized fifty years ago (1957-1958). It is not a single year but a two-year period, although not even the two mentioned in the name (2007-2008). The IPY will start in March 2007 and end by March 2009 to allow for two summer field seasons at both poles. See the IPY home page at http://www.ipy.org/.Google Scholar

48 IPCC reports are available on the World Wide Web at http://www.ipcc.ch/; the ACIA report can be accessed at http://www.acia.uaf.edu/.Google Scholar

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