The Developing Legal Regime in the Marine Arctic

By E.J. Molenaar
Senior Research Associate, Netherlands Institute for the Law of the Sea (NILOS), Utrecht University & Adjunct Professor, University of Tromsø.

The impacts of climate change in the Arctic in the past decade have been so apparent and dramatic that it has generated wide support for reform of the regime for governance and regulation of the marine Arctic. In 2008 this was already acknowledged by the five coastal states to the Arctic Ocean, namely Canada, Denmark (Greenland), Norway, the Russian Federation and the United States in the Ilulissat Declaration.
The Arctic Council’s Ministerial Meeting in Nuuk (May 2011) forms one of the most recent steps in that process of reform. Agreement was, among other things, reached on the establishment of a standing Arctic Council secretariat in Tromsø, a Task Force for Institutional Issues (TFII) “to implement the decisions to strengthen the Arctic Council” and a Task Force on Marine Oil Pollution Preparedness and Response (MOPPR Task Force). In addition, the Arctic Council adopted the ‘The criteria for admitting observers and role for their participation in the Arctic Council’.
The convening of the Nuuk Ministerial Meeting was also used as the occasion for the signature of the Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic (Arctic SAR Agreement). Even though the Arctic SAR Agreement was merely negotiated under the auspices of the Arctic Council - and therefore not adopted by it - it is nevertheless the first legally binding international instrument negotiated by the eight members of the Arctic Council. The successful conclusion of this negotiation-process reflects a clear determination to reform the international regime for the Arctic. The newly established MOPPR Task Force, which seems intent to pursue the same negotiation-process as the Arctic SAR Agreement, is a further step in that regard.
As the Arctic SAR Agreement - and the institutional component established by it - is arguably part of the Council’s output, this gives rise to the notion of the ‘Arctic Council Multilateral System’ (ACMS). This notion is both inspired and contrasted by the notion of the Antarctic Treaty System (ATS), which comprises several framework treaties with institutional components and underlying legally binding and non-legally binding instruments. The acronym ACMS nevertheless uses ‘multilateral’ instead of ‘treaty’ as the core of the ATS is formed by the 1959 Antarctic Treaty (Antarctic Treaty, 1959) and the Arctic Council was established by means of a non-legally binding instrument. Use of the notion of the ACMS is further supported by the envisaged Arctic MOPPR Agreement - which could well have an institutional component - and the significant steps agreed at Nuuk in 2011 towards the Council’s strengthening, in particular the establishment of a permanent Arctic Council secretariat and assessed financial contributions.
Among the challenges for the developing ACMS are the need to ensure coordination between its various components, among others in view of the objective of ecosystem-based management (EBM), and dealing with the rights, obligations and interests of non-Arctic states and entities under international law.
Willem Barentsz Poolinstituut

Bundeling van kennis, onderzoek en onderwijs over de Noord- en de Zuidpool






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