Retired U.S. Admiral James Stavridis wrote a piece in Foreign Policy this week calling for the negotiation of an Arctic Treaty. To add insult to injury, he also suggested designating the Arctic as a common heritage of all mankind, or global commons. Has the Admiral no decency?!
I appreciate how curmudgeonly it seems to oppose things as nice sounding as international treaties and common heritages of mankind. If those things are wrong who wants to be right? Yet the Arctic political and legal community has come to broad consensus over the past decade that in fact such a treaty would be both inappropriate and unnecessary.
The obvious inspiration for the idea of an Arctic Treaty is the Antarctic one, signed in 1959, which has evolved into the Antarctic Treaty System, with 29 Consultative and 21 Non-Consultative Parties. To the uninitiated, the Antarctic Treaty may seem a logical model for the Arctic, since both places are icy and cold, and sit at the poles. But legally, politically, socially and economically, that is where the similarities end. One is an Ocean; the other is not. One is inhabited; the other is not. One includes territory under the exclusive sovereignty of nation-states; the other does not. Begging your pardon, I find comparisons to the Antarctic Treaty System mostly pointless.
The Ilulissat Solution
Fortunately the Arctic is not a Wild West in need of a legal framework, for it has many, the most prominent of which is the United Nations Convention on the Law of the Sea (UNCLOS) – an international treaty which has much to offer the Arctic. UNCLOS is one of the largest and important legal agreements in history and it is foolish to think it could be improved upon or made more robust in a separate Arctic Treaty negotiated by the Arctic 5 or 8 – in particular since the United States has failed to sign UNCLOS itself.
The five states that have coastlines in the Arctic Ocean – Canada, Denmark/Greenland, Norway, Russia and the United States – came together back in May 2008 to address the growing concerns of commentators, much like those of Admiral Stavridis, that the Arctic was the scene of an exploitative resource rush, on the brink of conflict, and generally lawless. They issued the llulissat Declaration, where they articulated their commitment to existing international law and the orderly settlement of possible overlapping claims in the region, and declared that “we therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean.”
Nothing has happened in the past six years that would suggest the Arctic states have reneged on their commitments and obligations to protect and preserve that Arctic marine environment which is under their national jurisdiction, as required under UNCLOS and articulated in various national laws of the Arctic states. Furthermore, as Rachel Lorna Johnstone points out, any damage done to the area of the Arctic Ocean that is beyond national jurisdiction – the extent to which is still unknown pending the submission of Canada and Russia’s Arctic continental shelf claim and the decision on the Danish one – is subject to judicial proceedings by any UNCLOS States Parties. So the doughnut hole is covered too.
UNCLOS has also provided the mechanism by which continental shelf disputes will be settled as possible overlapping claims are submitted by Denmark, Canada and Russia. States are not acting “unilaterally, pushing the envelope of their claims to neighboring waters and pushing geopolitically on borders and boundaries” as Admiral Stavridis claims. They are filing hundreds of pages of scientific and legal evidence, much of which was gathered jointly, to the Commission on the Limits of the Continental Shelf. If a pundit or politician chooses to provide some headline-generating fodder in the meantime, well, so be it. The processes are working as intended.
It is worth mentioning that the Arctic seabed area beyond national jurisdiction is already designated the common heritage of mankind under UNCLOS. At the same time, the Arctic states may designate areas of the Arctic Ocean under their jurisdiction as national marine conservation or protected areas. In fact, since practically they are the only ones with the capacity to protect the Arctic Ocean, this may be preferable to a global commons, since national legislation would oblige them to protect and preserve their territory.
While UNCLOS covers the oceanic part of the Arctic, the whole of the Arctic’s terra firma comes under the sovereign territory of the five Arctic littoral states. These states do no worse, and generally fare much better, in protecting the Arctic portions of their territories than their more southerly areas, and so no reasonable demand for an international treaty or global commons to rule over those areas could be asserted; and as far as I know, none have.
High Arctic, Low Tension?
Journalists and various commentators are having a hard time deciding if the Arctic region, alongside the Arctic Council, is a model for international cooperation, or if it’s a theatre of tension, competition, militarization and “a host of other troubles”, as Admiral Stavridis suggests. Having been a student of Arctic politics for over a decade, I can share that while the evidence points overwhelmingly in favour of the former, there has never been a year to pass where the Russian bear wasn’t proffered as an impending threat. The Ukraine conflict certainly increased tensions between NATO and Russia; but these have not spilled over into the Arctic, which has proven amazingly resilient to outside geopolitics. Concerns were just as inflated in 2007 with the North Pole flag planting, in 2008 with the Russian incursion into Georgia, and at every point that a new Canadian or Russian military expenditure has been announced. Some promised that the conflict in Ukraine would have repercussions in the Arctic. For the Arctic Council, it hasn’t.
Perhaps most egregiously, Admiral Stavridis proposes that Greenpeace’s Save the Arctic campaign and its ilk have a role to play in informing public opinion on the Arctic. I articulated my own, strong, opinions on this matter last month, and cannot claim to be objective. However it is worth pointing out that the Arctic Council itself has rejected Greenpeace’s application to become Observer in the forum, so disparate are its goals and values with those of the Arctic states and Permanent Participants. (See the full list of Observers here, which includes several other environmental organizations.) Emphatically, Greenpeace’s Save the Arctic campaign is not seen in the Arctic epistemic community as “helpful” for “public outreach” as Admiral Stavridis suggests.
What puzzles of international cooperation would an Arctic Treaty solve? I can’t think of any. Efforts to negotiate such a Treaty would take years, and thousands of man-hours that the Arctic region desperately needs to devote to its growing sustainable development and environmental protection agenda. Global commons and treaties are easy to explain to the public, and they sound really nice. But when it comes to Arctic governance, we shouldn’t demand nice and easy. We should demand effective.